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C( 
 
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..-^ 
 
 ADDITIONAL PAPERS 
 
 C NCERNING THE 
 
 Province of OUEBECK: 
 
 BEING 
 
 An appendix 
 
 To the BOOK entitled. 
 
 " An Account of the Proceedings of the Britt/Ij 
 " and other Protejlant Inhabitants of the 
 ** Province of Rebeck in "North America^ 
 " sn order to obtain a Houf: of AJfcmbly in 
 ** that Province," 
 
 .$^<ijt^iiA^ 
 
 \ 1 
 
 LONDON: 
 
 Sold by W. White, Horace's Head, Fleet-ftreet. 
 
 M.DCC.LXXVI, 
 
Fc 
 
 i 
 
 I 
 
 pre 
 
 the 
 
 alTc 
 
 Ca 
 
 wii 
 
 tio] 
 
 wil 
 
 of I 
 
 tell: 
 
 pie; 
 
 ftiti 
 
 cou 
 
 or I 
 
[.3 ] 
 
 
 
 tf* »f< ♦^^ »'<• 
 
 ADDITIONAL PAPERS 
 
 CONCERNING THE 
 
 Province of QUE BECK. 
 
 IT has been (hewn, in the foregoing ac- 
 count of the proceedings of the Britifli 
 and other Proteftant inhabitants of the 
 province of Quebeck, in the latter end of 
 the year 1773, in order to obtain a houfe of 
 aflembly, that they follicited the French, or 
 Canadian, inhabitants of the province to join 
 with them in making the neceflary applica- 
 tions for that purpofe. And it has been like^ 
 wife fhewn that they were willing to accept 
 of an afTembly compofed indifferently of Pro- 
 teftants and Roman-Catholicks, if it fhould 
 pleafe his Majefty in his royal wifdom to con- 
 ftitute an affembly in that manner. But they 
 could not be prevailed on by the Canadian, 
 or French, inhabitants of the province (who 
 
 A 2 alfo 
 
 n 
 
 Iv 
 
 ..i i > 
 
 mi 
 
t 4 ] 
 
 alfo wiflied to have an aflembly,) to join 
 with them in defiring his Majefty to depart 
 from what they conceived to be the ancient ' 
 and fundamental maxims of the Britifh go- 
 vernment, and intircly to overlook the diffe- 
 rence of religion in the conlHtution of the 
 affembly. This they tliought would be highly 
 improper for two reafons. In the firll place, 
 they did not approve the meafure itfelf, or 
 conceive it to be neceflary either to the ends 
 of juftice or good policy. They thought 
 that it was no more a hardship to exclude a 
 Canadian from a feat in the alTembly of Ca- 
 nada on account of his being a Roman-Ca- 
 tholick, than it was to exclude an Englifh- 
 man from a feat in the Englifh parliament, 
 or an Irifliman from a feat in the Irifh par- 
 liament, on the fame account. They could 
 not conceive that a conquered people, who 
 had lately been in arms againft the crown, of 
 a different language and manners, and who 
 lately had lived under different laws, from 
 his Majefty's other fubjeds, had any right to 
 expedt greater indulgences and exemptions 
 from thofe difabilities which, not their birth 
 or country, but their profefiion of the Ro- 
 man-Catholick religion (which is fo hoftile 
 to the general fpirit of the Britifli govern- 
 ment) lay them under, than were allowed to 
 his Majelly's ancient Irifh and Englifh Ro- 
 man-Catholicks fubjcds, who were born un- 
 der his Majefly's allegiance, and attached by 
 
 habit 
 
in- 
 Jby 
 bit 
 
 [ 5 ] 
 
 habit and education to the Englirti manners, 
 laws, and government, with relpedt to all 
 temporal matters. And therefore they thought 
 the eftablifhment of an ailbmbly in the pro- 
 vince, confining of proteflant members only, 
 agreeable to the direciions which his Majefly 
 had been pleafed repeatedly to iiiue for that 
 purpofe in his comniiiiions of Governour in 
 chief of the province fucceifively given ta 
 the Generals Murray and Carleton, would 
 not be an unjufl meafure. And they like- 
 wife had many reafons for thinking that 
 it would not be an inexpedient or impolitic 
 meafure, nor generally difagreeable to the 
 body of the Canadian freeholders, though it 
 might probably be clamoured againit by the 
 Romifh priefts of the province and by a few 
 Canadian lawyers and fome of the noblelTc 
 refiding in the towns of Quebeck and Mont- 
 real, and, perhaps, a few of the merchants 
 of thofe towns to the number of a few do- 
 zens, or fcores, of perfons in the whole pro- 
 vince. They had, I fay, many reafons for 
 thinking that it would not be oifenfive to 
 the general body of the Canadian freeholders, 
 provided thofe freeholders were permitted, 
 (as all the Englifh and other proteftant inha- 
 bitants in the province v^ifhed them to be) 
 to vote for the election of members of the 
 alTembly, n Jtwithdanding their profeilion of 
 the Roman-Catholick religion, though not 
 to be eled:ed into it themfelves. Their rea- 
 fons 
 
 I 
 
 
 
[ o ] 
 
 fons for thinking fo were as follows. In the 
 firll place, the Englifh and proteflant inha- 
 bitants are pretty numerous, being not fewer 
 than three thoufand fouls, exclufive of the 
 king's troops in the province, as has been 
 found fince the palling of the late Quebeck 
 adt by an enumeration that has been made 
 of them. This number, though far fhort of 
 the number of the Canadian or French inha- 
 bitants of the province, (who are thought to 
 be 1 20,000, or perhaps 1 50,000, fouls) is 
 yet fufficiently large to afford to the Cana- 
 dian freeholders a very ample choice of per- 
 fons to reprefent them in an afTembly of the 
 province. And among them would be found 
 many perfons very well known to, and much 
 rcfpedted by, the Canadians ; 1 believe, I 
 may venture to fay, more fo than the gene- 
 rality of their own nobleffe or gentry, or even 
 merchants. For many proteftant inhabitants 
 have married Canadian women, who were 
 bred in the Roman-Catholick Religion, and 
 who for the moil part ftill continue in the 
 profeffion of it, without being in the lead 
 degree follicited or importuned by their huf- 
 bands, or any of their hulband's friends, to 
 abandon it : which creates a familiar inter- 
 courfe between thofe hufbands and the Ro- 
 man-Catholick relations of their wives. Thus, 
 for example. Captain John Frafer, of Mont-, 
 real, lately one of the Judges of the court of 
 common-pleas for that diflridl, and fmce the 
 
 ift 
 
;) is 
 
 t 7 1 
 
 I ft of May laft one of the new confefvators 
 of the peace for the fame diftridt, is married 
 to a daughter of Monfieur Des Chambaud, a 
 confiderable French gentleman of that place, 
 and who is owner of a valuable feigniory. 
 And another daughter of the fame gentle- 
 man, who was the widow of a Monfieur De 
 Longeuil is married to Mr. William Grant, 
 a proteftant Scottifti merchant at Quebeck. 
 A daughter of Monfieur De Belleftre, a Ro- 
 man-Catholick gentleman of note at Mont- 
 real, who is appointed a member of the new 
 legiflative council of the province, is married 
 to Major Wharton, an officer of the army. 
 A daughter of Monfieur La Corne de St. Luc, 
 another and moft zealous Roman-Catholick, 
 who is alfo a member of the new legiflative 
 council, is married to Major Campbell, ano- 
 ther officer of the army. The daughter of 
 Monfieur Beaubien, a Canadian merchant at 
 Quebeck, a moft zealous Roman-Catholick, 
 is married to Monfieur I'Eveque, a French 
 proteftant merchant at the fame place, who is 
 a member of the legiflative council. The fifter 
 of a Roman-Catholick gentleman of the name 
 of Reverin is married to Mr. Antill, a native 
 of New Jerfey in North America, who is a 
 'proteftant and pradifes the law at Montreal. 
 And many more fuch inftances might be pro- 
 ducec' of proteftants married to Roman-Ca- 
 tholic women, and who are confequently, 
 for the moft part, much conneded with the 
 
 Roman- 
 
 4 I 
 
ill 
 
 [ 8 ] 
 
 Roman-Catholicks of their wives families. 
 Others of the Englidi and protcftant inhabi- 
 tants have gained the refped and efteem of 
 the Canadians- by their upright and difinterefted 
 behaviour as Judges of the courts of Juftice, 
 Juflices of the peace, and Lawyers of ability 
 and integrity. Thus Mr. Martehl by his up- 
 right and impartial condud formerly as a 
 Juftice of the peace at Quebeck, and of late 
 years as a Judge of the court of common- 
 pleas at Montreal, (but more efpecially in the 
 former character of a Juftice of the peace) 
 has gained the refped and confidence of the 
 Canadians to an high degree. And the fame 
 may be faid of Mr. du Calvet, a French pro- 
 teftant of confiderable fortune and an un- 
 fpotted reputation at Montreal, who has acfted 
 with great integrity and difintereftednefs as a 
 Juftice of the peace in that place ; and of 
 Mr. Du Mas Saint Martin, another French 
 proteftant, that was a Juftice of the peace at 
 Montreal -, and of Captain Gugy, an officer 
 on half-pay, who is retired to the country 
 3nd lives at Mafchiche, 1 8 miles to the South 
 of Three-rivers, upon part of the feigniory 
 which he bought, and has cultivated and im- 
 proved with great induftry and fuccefs, and 
 who has executed the office of a Juftice of 
 the peace to the great advantage and fatis- 
 fadion of his neighbours ; and of Mr. Tho- 
 mas Walker, of Montreal, while he was ia 
 the commiffion of the peace for that diftridt ; 
 
 the 
 
families. 
 
 inhabi- 
 tecm of 
 itercfled 
 Juftice, 
 f ability 
 his up- 
 ly as .1 
 
 of late 
 mmon- 
 ^ in the 
 
 peace) 
 
 of the 
 le fame 
 :h pro- 
 m un- 
 s a<5ted 
 fs as a 
 md of 
 ^rench 
 :ace at 
 officer 
 )untry 
 South 
 jniory 
 d im- 
 and 
 ice of 
 fatis- 
 Tho- 
 as in 
 :ri<ft; 
 the 
 
 [ 9 ] 
 
 the Canadians having always conlidered him 
 as their friend and protedor. And others 
 might, I doubt not, be added fo this lift of 
 upright magiftratcs amongft the Engli(h and 
 protcftant inhabitants of the province, who 
 have, by their good behaviour, and the be- 
 neficial ufe they have made of their autho- 
 rity, obtained the good- will and cfteem of the 
 Canadians ; though it muft at the fame time 
 be confelTed, that there were amongft the 
 Juftices of the peace, in the years 1768 and 
 1769, a few perfons of a different charadier, 
 and who were thought to have made a bad 
 ufe of a certain civil jurifdidion, to deter- 
 mine fmall civil af^ions for fums of money not 
 exceeding 3I. 15s. fterling, which was at that 
 time annexed to that oHice, but which has 
 lince been feparated from it by an ordinance 
 in the year 1770. I muft add to thefe up- 
 right proteftant magift rates the two principal 
 Englifh lawers in the province, Mr. Kneller, 
 the prefent attorney-general of it, and Mr. 
 Williams ; who are, both of them, much 
 known to the Canadians, and often employed 
 and much efteemed by them ; infomuch that 
 Mr. Cugnet himfelf, the very acrimonious 
 and cenlbrious Mr. Cugnet, has declared, in 
 a paper 1 have feen of his hand- writing, that 
 he thinks them fit to be judges in the pro- 
 
 vince. 
 
 9 
 
 Here, 
 
Here, therefore, are two fets of peribna 
 amongft the Enghfli and proteftant inhabi- 
 tants of the province, out of whom, it is 
 probable, that the Canadian freeholders would 
 be willing to chufe reprefentatives to the ge- 
 neral alTembly of the province. I will now 
 add to thele a third clafs of perfons, more 
 numerous than both the former put toge- 
 ther : I mean, the Englifh merchants of Q^e- 
 beck and Montreal, who are engaged either 
 in the fur or the corn-trade. The former of 
 thefe employ great numbers of the Canadians 
 to carry blankets and other woollen fluffs, and 
 fire arms with powder and fhot, and divers forts 
 of hard-ware, and other goods for the ufe 
 of the Indians, in large birch-canoes, up the 
 river Saint Lawrence, into lake Ontario, and 
 the other four great lakes in the interiour 
 part of North America, (which is ufually 
 there called, k Pais d'en haut^ or, the upper- 
 country,) to be exchanged with the Indians 
 of that country for beaver, fox, and martin- 
 fliins, and other fpecies of furs, which they 
 bring down in the fame manner to Mont- 
 real, from whence they are fent to Qucbeck, 
 and there (hipped for Europe. 
 
 By thefe adventures both the merchants 
 of Montreal, who employ thefe Canadians, 
 and the Canadians who are fo employed, of- 
 ten get confiderablc fums of money : and 
 iftcr a few of thefe expeditions, made in 
 
 their 
 
 ii - 
 
[ 
 
 II 
 
 ] 
 
 tlicir youth, it is ufual for the Canadians, who 
 have made them and have acquired little 
 fortunes by fo doing, to leave off going upon 
 them, and enter into a more fettled courfe 
 of life, and employ themfelves in the clearing 
 and improving tra^s of land, which they eafily 
 obtain either by grants from the Seigniors, 
 or by purchafe, leaving the journies into the 
 upper-country to be taken by a new fet of 
 younger adventurers. Now it is eafy to fee, 
 that this intercourfe between the merchants 
 of Montreal and the Canadians they fo em- 
 ploy, mull create, during the time that 
 it continues, a great degree of dependance 
 of the latter on the former, and afterwards 
 will often be the occafion of their enter- 
 taining a high refpeft for them, accompa- 
 nied, as we may fuppofe, with gratitude 
 and confidence. And, as to the corn-mer- 
 chants of the towns of Quebeck and Mont- 
 real, they cannot fail of acquiring a like 
 influence over a ftill greater number of 
 the Canadian freeholders. For, as corn 
 is the ftaple commodity of the country, 
 (five hundred thoufand bufhels of wheat 
 being annually exported from it,) more pcr- 
 fons are concerned in felling it to the mer- 
 chants who export it, than are engaged in 
 the fur -trade. And thefe merchants (of 
 whom the greater part are Englilhmen) go 
 about the moft fertile parts of the province 
 in the fpring of the year, about the month 
 
 B 2 of 
 
 I' 
 

 [ 12 1 
 
 of May, and contracfl with the Canadian 
 freeholders for fuch quantities of their corn 
 as they think they fliall be able to fparc 
 them, to be delivered to them in the months 
 of Auguft and September, at certain prices 
 agreed on between them, which are very 
 confiderable, and greatly exceed the prices 
 given for corn in the time of the French 
 government : and on thefe occafions the Eng-* 
 Jirti merchants are apt to give them greater 
 prices than the French merchants are, for 
 the moft part, willing to give them for it 
 at this day, the latter being more cautious and 
 timid in their manner of carrying on trade 
 than the Englifli merchants. This is a very 
 great fource of influence to the Englilh mer- 
 chants over the Canadian freeholders, who, 
 by that means, not only come to be per- 
 fonally acquainted with them, but to con- 
 lider them as their patrons and protestors, 
 being the perfons by whofe means they are 
 daily improving their fortunes. Accordingly 
 they always fpeak of thefe merchants with 
 great refped and gratitude, and feem to 
 entertain a high opinion of their abilities 
 and importance in the province. From 
 amongft thefe merchants, therefore, both of 
 fur and corn, they would probably be much 
 inclined to chufe their reprefentatives to the 
 aflembly, and would often chufe them even 
 in preference to their own countrymen, if 
 
 ' : t- Roman- 
 
r '3 ]• 
 
 Roman-Catholicks were permitted to fit in 
 the aflembly. 
 
 I ■'! 
 
 i •,. 
 
 For thefc reafons the Englifti and Pro- ' 
 teftant inhabitants of the province were in- ' 
 clined to think, that the inftitution of a 
 Proteftant aflembly would not be thought 
 en oppreflive meafure by the generality of ^ 
 the Canadian freeholders, though it would 
 be the fubjed of clamour amongft the Ca- 
 nadian Seigniors and other gentry, and the ' 
 French merchants in the towns of Quebeck 
 and Montreal, together with the French 
 lawyers and priefts, who would, probably, on 
 fuch occafion, call themfelves the Canadian* 
 people, and pretend that their own fenti-' 
 ments were tnofe of all their countrymen, ' 
 as they did in their petition to the king's 
 Majefty, in December 1773, (fee the above 
 account, page 112.) notwithftanding it was 
 obtained in a clandeftine manner, and with- 
 out the knowledge of the greater part of the 
 Canadian people, and was (igned by only 65 
 perfons in the diftridt of Montreal (including 
 feveral of the fame families, and fome boys) and 
 that too in confequence of the utmoft exertion 
 of the influence of the bi(hop and his party. 
 
 And further, the Englifli and protefliant 
 inhabitants of the province were the more 
 inclined to be of this opinion, to wit, that a 
 
 proteftant 
 
 fl 
 
 
t '4 I 
 
 m 
 
 n 
 
 I 
 
 i!l 
 
 ^^ 
 
 protcftant aflcmbly might be eflablifticd in 
 the province without dilgufting the bulk of 
 the Canadian inhabitants, becaufe they had 
 found, by the experience of nine or ten years, 
 that the faid inhabitants were perfe(5lly eafy 
 and fatisfied under the government of the 
 Govcrnours and councils which his Majefty 
 bad till then eftablifhed in the province, and 
 of the Judges and Juftices of the peace and 
 other officers of government, who had till 
 then been inveRed with authority in it, not- 
 withftanding only proteftants had been ad- 
 mitted to thofe offices, or been deemed ca- 
 pable of being admitted to them. And fo 
 far were they from being offended at the ex- 
 ciufion of their own former magiftrates and 
 other gentry from thofe offices of power, that 
 they feemed rather to be pleafed at it, as being ' 
 thereby emancipated from a flate of fubjedion 
 to them, and would often exprefs a kind of 
 terrour and unealinefs, when any mention was 
 made (though only in the way of converfa- 
 tion, and conjedure of what was likely to 
 be done hereafter towards the more compleat 
 fettlement of the province,) of re-invefling 
 thofe magiftrates with the power they had 
 formerly enjoyed. This being the cafe, the 
 Englifh and proteftant inhabitants of the pro- 
 vince thought, on this as well as the former 
 accounts, that it would be a very fafe and 
 praifticable meafure to eftablifh an alfembly 
 m the province which fhould confift of pro- 
 
 le:lant 
 
[ '5 ] 
 
 teftant members only, notwithftanding the 
 feeming hardfhip of it arifing from the great 
 fuperiority of the numbers of the Roman- 
 Catholick inhabitants, which naturally ftrikes 
 people at firft iight, and is apt to lead them 
 into a contrary opinion, while they continue 
 flrangers to the condition of the province, 
 and are ignorant of thofe peculiar circum- 
 ftances attending it, which have been juft 
 now defcribed. 
 
 was 
 
 j^erfa- 
 
 y ^o 
 
 3leat 
 
 lling 
 
 had 
 
 the 
 pro- 
 •mer 
 
 and 
 nbly 
 pro- 
 Mant 
 
 And, as the English inhabitants were of 
 opinion, that the eflabli(hment of a proteftant 
 aflembly was a fafe or pradicable meafure, 
 that would not difguft the body of the Ca- 
 nadian freeholders in the province, (provided 
 they were permitted to eledl members into 
 the aflembly, though not to be eleded into 
 it,) they made not the leall difficulty of 
 thinking, that it would alfo be a wife or 
 politick meafure, becaufe they were convinced 
 that it would gradually operate as an induce- 
 ment to fuch of the Roman-Catholick in- 
 habitants of the province, as were not very 
 flrongly attached to the church of Rome, to 
 abandon its erroneous dodtrines, and embrace 
 the proteftant religion ; and that, with re- 
 fped even to thofe of them who were mofl 
 zealous in the belief of the Romifh religion, 
 it might prove a means of engaging them 
 to examine the foundations of it with free- 
 dom, which could hardly fail of producing 
 
 fci 
 
 m 
 
11 
 
 i 
 
 • '■I 
 
 i'! 
 
 i; 
 
 [ i6 ] 
 
 in them a convidlion of its errors, and, in 
 the end, an abjuration of them: and thus 
 they were of opinion, that the Proteftant 
 . religion would, in confequence of fuch an 
 fCftablifhrnent, gain ground in the province 
 amongft his Majefty*s new Canadian fubjcdls, 
 which they confidered as a mod defireable 
 event, and one that would greatly contribute 
 to ftrengthen tiie attachment of thofe new 
 fubjeds to his Majefly's government. 
 
 For all thefe reafons his Majefty*s Engliili 
 and proteftant fubjeds in the province, were 
 of opinion, that neither Juflice nor good Po- 
 licy required, that his Majefty and the Briti(h 
 parliament fhould break through the ufual 
 
 , maxims of the State, and the diredlions twice 
 given to his Majefty's Governours in chief of 
 the province under the great fcal of Great- 
 Britain, in order to permit Roman- Catholicks 
 to be chofen into the affembly : and there- 
 fore, they refufed to join with fome Roman- 
 Catholicks in the city of Qijebeck in ex- 
 
 , prefsly defiring his Majefty to do fo. And 
 they further thought, that, even if they could 
 have approved the meafure, it would not have 
 become them to advife his Majefty to it, not 
 being his Majefty's counfellors,but his humble 
 petitioners, who had no right to fuggeft to 
 him the meafures of State and Policy, which 
 he, in his royal wifdom, ought to purfue, 
 and much lefs to defire him to take fo very im- 
 portant 
 
 
province 
 
 I '7 1 
 
 portant arid unufual a ftep. And upon theie 
 grounds, I apprehend, they were compleatly 
 juftifiable, and even much to be commended, 
 for not joining with thofe Roman-Catho- 
 licks at Quebeck in exprefsly petitioning 
 his Miijefly to permit Pap ills to fit in the 
 ailembly. • ,. ,, , ". * 
 
 Yet fuch was the moderation of their con- 
 dud: on that occafion, and fo great was their 
 defire to have an alTembly eflabliflied in the 
 province, that (though they did not approve 
 of the admiffion of Papifts into it, and would 
 not, therefore, join with the Canadian gentle- 
 men at Quebeck in exprefsly defiring his Ma- 
 jefty to admit them into it,) they declared in 
 their petition to his Majefly, (fee the above 
 account, page 19.) that they were willing to 
 acquiefce in an ajfembly of fuch confiitution and 
 Jorm as to his Majejiy, in his royal mfdom^ 
 Jliould feem befi adapted to fecure the peace, wel- 
 fare, and good government of the pro'^'ince ; in- 
 timating by thefe words their willingnefs to 
 accept an affernbly into which Roman-Ca- 
 tholicks Ihould be admitted. But this did 
 not fatisfy the Canadian gentlemen at Que- 
 beck, who continued to be apprehenlive, that 
 the maxims of the Britifli government, with 
 refpe<5t to the exclulion of Papifts from feats 
 in the affembly, or a lliare of the legiflative 
 authority of the province, were fo highly 
 refpeded in England, and confidered by his 
 »''>;•' i ; ..rQ .. . MajeftyV 
 
 V 
 
 ■■>K 
 
 '■hA 
 
p. 
 
 1 1 j- 
 ''U\' ' 
 
 I- '! 
 
 i:l 
 
 ill 
 
 ■'ii 
 
 11; 1 
 
 [ i8 ] 
 
 Majefty's Miniflers as of fuch fundamental 
 im- ortancc, that they Ihould not probably 
 obtain their requeft of being admitted into 
 the alTembly without taking the oath of Su- 
 premacy, unlefs the Engliln and other pro- 
 ttllant inhabitants of the province fhou^ld 
 cxprefsly join with them in making it. And 
 thereupon they dropped their delign of pe- 
 titioning his Majeity for a houfe ^f aflem- 
 bly, tho' fevcral of tnem \yere very dcfirous of 
 having one. And, fome months after, the fmall 
 number of 6 1; perfons * in the diftrid of Monr 
 treal fent up the other petition above-mentioned, 
 which requefts the king to enlarge the number 
 of the council of the province, and give them* 
 a very limited legiflative authority, inflead of 
 ered:ing an atfembly, but upon a fuppolition, 
 that no taxes are to be impofed in the pro- 
 vince, until an afiembly fliall be eftablifhed 
 in it. (See the above account of the pro-v 
 ceedings, £::c. page 112.) . ^'v -' "'' 
 
 That feveral of the Canadian gentlemen, 
 at ana near Quebeck, in the Autumn of the 
 year 1773, and particularly Monlieur Cugnet 
 and his friends, or thofe who were guided by 
 his opinion in public matters, were very de- 
 firous of having an aflembly, provided the 
 i- ■'.- 1 ■i:.,v*=x ;► , . -'. , f:[i v.\,-z •:...:! Roman- ' 
 
 * N. B. I have fome reafon to think that another copy of 
 the fame petition was fent up by the Noblefie and a few other 
 perfons in the dillriit of Quebeck, hut do not know by how many 
 perlons it was figned. If it was figned by thrfame number as 
 figned the former copy of it, the whole number of the French 
 petitioners in the province will have been 130 inlbad of 65. 
 
[ '9l 
 
 Roman-Catholicks were admitted Into it, will 
 appear by the perufal of the following draught 
 of a Petition to the king's Majefty and the 
 two houfes of Parliament for that piirpofe, 
 which was drawn up by the faid Monfieur 
 Cugnet, at the defire of fome of his Roman- 
 Catholick friends at Qnebeck, in the latter 
 end of Aiiguft 177^» and fcnt by him, with 
 the letter here-under following, to Mr. Mal- 
 colm Fnifer, a Britilh inhabitant of eminence 
 in the province, who was known to be very 
 deliroiis of having an airembly eftabliHied in 
 it, and who, for that reafon, as well as on 
 account of his abilities (which made him pe- 
 culiarly fit for that office,) was chofen on the 
 30thof Odlober following, (two months after 
 Uie date of that letter) Secretary to the com- 
 mittee of the Britifli and other proteft mt in- 
 habitants of the province, then aflemblod at 
 Quebeck^ for the purpofe of making the pro- 
 per applications to Government, both in the 
 province and in England, for obtaining an 
 houle of AlTembly-. This letter and petition 
 have lately been put into my hands, and, as 
 they relate to a very public and important 
 ftibje<5l, and tend to give ufeful information 
 to his Majefty's Miniiters, and the Members 
 *ef both iioufes of Parliament, (to whom the 
 further regulation of this unhappy province 
 belongs,) concerning the fentiments of fom^ 
 of his Majefty's Canadian Subjects on the 
 eftabliHiniSiit of an houfe of A(Tcmh]y in 
 the province, they feem fit to be. laid b-:fo.c the 
 
 C 2 pLibiick. 
 
 I* 
 
 i. 1 
 
|:|i 
 
 i 
 
 nil '' 
 
 i 
 
 illi 
 
 ' 1 
 
 I : 
 
 [ 20 ] 
 
 publlck. I iliall therefore here infcrt them 
 without further preface, together with Eng- 
 hfli tranllations of them, and with Mr. Mal- 
 colm Frafer's anfwcr to Mr. Cugnet's letter, 
 containing the refufal of the Englifh and 
 proteftant inhabitants of the province to join 
 with Mr. Cugnet, and his Canadian friends, 
 in figning the faid petition, which he had 
 drawn up for the eltablifhment of an houfe of 
 aflembly into which the Roman-Catholicks 
 fhould be admitted. *. \ 
 
 o. 
 
 Copy of a letter from Monfieur Cugnet, a 
 French Genleman of the city of Quebeck, 
 eminent for his abilities and knowledge of 
 the French laws and cuftoms, that pre- 
 vailed in the province of Quebeck in the 
 time of the French government, to Mal- 
 colm Frafer, Efq. a Britifh gentleman of 
 eminence in the province, who was foon 
 after chofen Secretary to the committee of 
 the Britidi inhabitants of the province, 
 who were affembled at Quebeck, for the 
 purpofc of preparing petitions to the Lieu- 
 tenant Governour of the province, and to 
 the King's Majcfty, for the eftablifhment 
 of a houle of AlTembly in the faid province. 
 Dated the lii of September, 1773. 
 
 Monfieur, . . • ■' 
 
 ^IT'OUS n'avez pas pu reuffir quant a votre 
 
 ^ petition ; aucuns Canadiens ne veulent 
 
 la figner. Le glaive eft cependant fufpendu 
 
 fur 
 
lent 
 
 :ndu 
 
 fur 
 
 [ " ] 
 
 fur nos t^tcs. II faut, pour ^vitcr la tcm- 
 pete qui menace la province, prendre un 
 parti. Quelques ncmveaux fujets de mes 
 amis, (hommes, par confequcnt, peafant plus 
 jufte que les autres, et qui n'ont point fign6 
 des complimens ni de fades adrefles,) m ont 
 engage, (connoifTant ma fa9on de penfcr,) 
 de drefler une nouvelle rcquete : et je I'ai 
 fait, fur raflurance qu'ils m ont donnee qiic 
 plulieurs des anciens fujets de la balTe ville 
 leur avoient donne leurs paroles de (igner 
 celle que je ferois, quelque demande que 
 puilTent y faire les Canadiens, Je leur ai 
 communique avant hier mon projet. lis me 
 Tont fait redlifier : et je vous I'envoye tel 
 qu'ils le jugent convenable, 
 
 Vous y verrez, Monfieur, que les Cana- 
 diens, comme les plus nombreux, les plus 
 forts en propriete, vous font confentir k ce 
 qu'ils entrcnt dans raflemblee en plus grand 
 nombre. Cette demande n'eft qu'une forme. 
 Je fuppofe qu'il y entre deux tiers des nou- 
 veaux : le tiers d'anciens fujets, plus inftruits 
 qu'eux, emportera certainement la voix des 
 deux tiers. Je ne vous fais point I'eloge dc 
 mes compatriotes : mais, malheureufement, 
 je connois leur peu d'intelligence et de talens. 
 Leur demande ne doit done pas arreter la 
 
 %nature des anciens. lis demandent aufli 
 
 que, s'il n'eft pas poflible qu'ils entrent dans 
 rafTemblce, que les loix de propriete de la 
 
 province 
 
 •'.' 
 
' 'I 
 
 :ii!,, 
 W^ 
 
 ■I :i[ . 
 
 M 
 
 [ 22 ] 
 
 ))rovince Tolcnt cnticrcmcnt confcrvccs^ et 
 que le Gouvcineur et Conleil, qui fera com- 
 poie d'anciens et dc nouvcaux llijets, aient 
 
 wn pouvoir limitc. lis concluent ccpcn- 
 
 dant toujours a rulleinblce du pcupie. 
 
 Les Canadlens prctendent que cettc Pcti- 
 itlon doit ctre feulcnient en langue Fran^oife^ 
 
 puilque tous les anciens fujcts I'cntendent. - f 
 
 ■ » 1 . 
 
 Si, aprcs Vous etrc confnltc avcc quelque.4' 
 Mns de vos amis, vous puifficz conlentir h< 
 llgner et envoyer cette petition, je Li ferai 
 copier par duflicala fur deux parchemins, et 
 je vous la remettrai pour la faire figner par 
 les anciens fujets. Un de mes amis Ic charge, 
 de la faire figner par les nouveaux. Vous 
 me rendrez reponfe apres avoir conliilte ; et 
 vous me renvoycrez ma minute, foit poul* 
 n'en plus parler, foit pour la mettre en exe- 
 cution. 11 faut prendre un parti pour le 
 Qui ou pour le Non. Les Canadiens ne 
 figneront que celle-ci : ils vous propofcnt 
 
 de vous joindre a eux. Accoutumes u 
 
 obeir et a etre dans I'efclavage, ils prefcrcnt 
 a ctre plutot arranges par le Roi et le par- 
 Icment qu'a avoir une alfemblce dont iis 
 feroient exclus. 
 
 Je fuis, avec confideration, Monfieur, votrc 
 ' tres-humble et tres-obeifTant ferviteur^ 
 
 Franrols Jofeph Cugiict; 
 Ce I" Scptcmbre, 
 
 '77i- 
 
 ■.'ill !i; 
 1 "; r 
 
 |«! 'ii 
 
 i^iiili 
 
 IH ;!l 
 
I a3 1 
 
 ... . . , 
 
 Tranflation of the foregoing Letter 
 from Monfieur C u o n e x to Mr. 
 
 Malcolm Fraseb» 
 
 i^< S I R, • 
 
 «^ i-i'i^ 
 
 »». 
 
 .J 
 
 ■»» 
 
 YOUR Petition has not met with fucccfs. 
 None of the Canadians will fign it. Yet 
 the fword hangs over our heads : and it is 
 necclTary, in order to efcape the ftorm which 
 now threatens the province, to come tp a dc- 
 cifive refolution. Some Canadian gentlemen, 
 who are my particular friends, ( and who, 
 confcquently, are perfons of a more rational 
 way of thinking than the others, and who 
 have never yet ligned any compliments or in* 
 fipid addrefles,) have defired me (knowing; 
 my way of thinking,) to draw up a new pe- 
 tition : and I have accordingly done fo, upon^ 
 the aflurances they gave me, that great num- 
 bers of his Majefty's Englifli fubjc(5ts in the 
 lower town of Queheck had promifed them, 
 that they would fign the petition I ihould 
 draw, notwithftanding any requeil that might 
 be contained in it in behalf of the Cana* 
 dians. I yefterday fliewed the petition I had 
 thus been induced to druw up, to my Cana-^ 
 dian friends, at whofe requefl I had prepared 
 it : and they have made a few alterations in 
 it. And 1 now fend it to you with thofe cor-, 
 , , reclions, 
 
 I 
 
 i' 
 
 I 
 
id I 
 
 !!i 
 
 !| 
 
 <;i: 
 
 fii 
 
 h 
 
 < I 
 
 !!:' 
 
 I ii' 
 
 IT' 
 
 
 Hv!' - 
 
 I 
 
 (i: 
 
 '!» 
 
 IIH 
 
 [ 24 ] 
 
 fedions, and expreffed in a manner they ap- 
 prove and will agree to. ■ .' / ,- .' :,,t 1 
 
 t ^ 
 
 You will perceive, Sir, upon the perufal 
 of this petition, that in it the Canadians make 
 you join with them in requefting his Ma- 
 jefty, that they, as being the greater number 
 of his Majefty's fubjeds in this province, and 
 pofleffed of the greateft fhare of property in 
 it, may be reprefented in the aflembly by a 
 greater number of members than his Ma- 
 jefty's Britifh fubjeds in the province. But 
 this requeft ought not to alarm the Britifh 
 fubjedls. For, if you will conlider the mat- 
 ter with temper, you will foon agree with 
 mc, that this privilege of the Canadians, of 
 having the greater number of members in the 
 aflfimbly, will, in its confequences, prove to 
 be a thing of form only, that cannot be at- 
 tended with any fubftantial efFeds. For, I 
 will fuppofc, by way of example,, that two 
 third parts of the members that compofe the 
 affembly were to be Canadians, and the other 
 third part Englifhmen. It is next to certain 
 that tne Englifh third of fuch an affembly, be- 
 ing fo greatly fuperiour as they are to the Ca- 
 nadians in abilities and knowledge and capa- 
 city for public bufinefs, would in fuch cafe 
 eafily obtain the fulFrages of the other two 
 third parts of it to whatever meafures they 
 fhould propofe. You will fay, perhaps, that 
 this is paying no great compliment to mycoun* 
 V ■- trymen. 
 
 i:rym 
 
 unfo 
 
 with 
 
 city 
 
 othei 
 
 fore, 
 
 ougl 
 
 an 
 
[ a5 J 
 
 jrymen, the Canadians. J confefs it. Bu^ 
 unfortunately, I am but too well acquainted 
 with their great want of knowledge and capa- 
 city to prefume to fpeak of them in any 
 other manner. This requeft of theirs, there- 
 fore, in the Petition I have now fent you, 
 ought not to deter the Englifh inhabitants of 
 the province from figning it. Thefe are the 
 fentiments of my Canadian friends concerning 
 an airembly. , . '• 
 
 But if, after all, it fhould not he thought 
 expedient (on account of their attachment 
 to the Roman- Catholick religion j) to admit 
 them into an aflembly of the province, my 
 Canadian friends above-mentioned do in that 
 cafe defire, in the next place, that the French 
 jaws of the province, relating to their pro-^ 
 perty, may fie wholly prefervec} to them ; 
 and that the Governour and council (to whom 
 they prefun^e the power of making Ims for 
 |he province, will in that cafe be intrufted,) 
 may be compofed, in part, of his Majefty's 
 new Canadian fubjeds \ and that t^e legifla-? 
 tive authority, entrufted to them^ may be re-' 
 ftrained within proper bounds. But this, il; 
 mull be remembered, Js only their fecond 
 wirti ; for that they greatly prefer a houfe of 
 aifembly of the CQi^ftuution above d^fcrjb^dj 
 
 .* - . . , f 
 
 My Canadian friends alfo dellre, that this 
 ipint P^tjtioq of the nevy an4 q14 fMbjcfls qf 
 
 "■■ ' ■ ' his 
 
 i \ 
 
 

 1 i ■'! 
 
 ^■«;;ii 
 
 ii;! 
 
 >i! 
 
 Iji 
 
 )'l 
 
 i '! :f 
 
 1. 1j:! 
 
 !^1 !!■■ 
 
 
 ill i'!i 
 
 !• l>!!i 
 
 ill 'mi 
 
 iit! iii' 
 
 I;,, -'■ ■ 
 '11' ■.,: 
 
 i^ ' 
 
 »(i iT 
 
 li'l .!(: 
 
 'il: 
 
 I 
 
 h]s Majefty may be prefented only in thf 
 French language. This reqiieft they conceive 
 to be reafonable, and no-vvays inconvenient 
 to the Englifh gentlemen, who intend to fign 
 this petition, becaufe all the Englifh inhabi- 
 tants of the province uhderftand French, 
 
 ift( 
 
 ith 
 
 of 
 
 having cohfulted 
 your friends, you can bring yourfelf to con- 
 fent to lign and fend this Petition, I will 
 caufe tv^^o copies to be made of it on two 
 different fkins of parchment ; and, as foon as 
 they are ready, I will fend you one of them 
 for you to get it figned by his Majefty's Bri- 
 tifh fubjedts in the province. One of my 
 friends has undertaken to get the other copy 
 figned by the Canadian fubjed:s. When you 
 have fufficiently confulted upon this fubjed: 
 with your friends, and have come to fomc 
 refolution concerning it, I beg you would let 
 me know the refult of your deliberations by 
 an anfwer to this letter : and at the fame time 
 you will pleafe to fend me back my original 
 draught of this petition, which I have here- 
 with fent you ; to the end that we may either, 
 on the one hand, fay no more about it, ia 
 cafe you do not confent to it, or, on the 
 other hand, if you fhould approve it, and re- 
 folve to fign it, may proceed, without further 
 delay, to caufe it to be copied out as above- 
 mentioned for the purpofe of being figned by 
 his Majefty*s fubjedtg of both nations. You 
 
 muft 
 
 *^j 
 
 mt 
 
 or 
 
 mai 
 
 no^ 
 
 to 
 
 fori 
 
 will 
 
 tioi 
 
 con< 
 
 to 
 
 yok' 
 
 poli 
 
 and 
 
 Hy 
 
 te I 
 
C ^^ \ 
 
 muft not, on this occafion, attempt to treat 
 or argue any further upon the matter, or to 
 make any alterations in this petition, as it is 
 now drawn up : but you muft refolve, either 
 to iign it, or not to fign it, in its prefent 
 form. For I plainly fee, that the Canadians 
 will never be brought to fign any other peti- 
 tion than this, to which they now defire your 
 concurrence. From their habits of obedience 
 to Royal authority, and fubmiffion to the 
 yoke of (lavery, they would fooner let their 
 political concerns be regulated by the king 
 and parliament, than be governed by an aflem- 
 }>ly of the province from which they ihould. 
 te excluded.. 
 
 -\ r 
 
 '4. ■ > 
 
 ■ ■ t .''I ■' 1 
 I ■ 
 
 I temain, SIR,. 
 
 with great- regard, 
 your moil, humble and 
 moft obedient fervant, 
 
 Francis Jofeph Cagnet. 
 
 This I ft of September,, 
 
 » ' . >-t 
 
 ^ VI'. 
 
 ■,-v 
 
 --, » -! 
 
 The petition mentioned in the foregoing 
 letter of Mr. Cugnet was as follows : 
 
 
 
 D 2 
 
 Draugk 
 
:|t! 
 
 
 I, I'll, 
 
 !ii: 
 
 
 m: 
 
 m 
 
 
 
 ! ■! 
 
 ilM 
 
 ;'! 
 
 ■i i 
 
 
 : ,:!l u? 
 
 f « i • • - 
 
 . t. 
 
 t «» 1 
 
 »i.<.i.i,.y w> 
 
 
 braught of a Petition t6 be presented td 
 
 • the King's Majefly and the two Houfes 
 
 of the Britilh Parliament from both the 
 
 Canadian and the British inhabitants of 
 
 . the province of Quebeck ; prepared by 
 
 Monfieur Cugnet in the month of Auguft^ 
 
 ^773 
 
 • ■! 
 
 .'■ ^ 
 
 ■J < ^i ' ^ 
 
 
 w J » 
 
 ■i . >'v ' >( .Jlluf .' • . !.'»!<; 
 
 < '• '.f iTj 
 
 Au Roy, ft tr^s-excellehte Majefte i 
 .. Ics Seigneurs Spirituels ec Temporelsj 
 i €t les communes de la Grande- Bre- 
 tagnej afferables en parlemcnt ; 
 
 Hequete de trcs-obeilTans it fideies fujets 
 de fa tres-exccllentc Majefte, tant nou* 
 veaux qu'anciens. Seigneurs de iiefsj pro- 
 J)rietaires de bien de fonds, citoyens, 
 negotians, et marchands, habitans de la 
 ' 'prdvince de Quebec dans TAmerique 
 Septentrionale> tant pour eux que pour 
 ' tous; t 
 
 ^ 
 
 • k • ' 
 
 "O Emontrent tres-numblemerlt vols eXpofansj 
 -•^ Qu'ayant appris par les derniers debats 
 en parlement que les affaires de cette province 
 doivent entrer en confide ration dans la feance 
 prochaine, ils prennent la liberte de reprefen- 
 ier a votre tres-excellente Majefte et augufte 
 
 affembiee, 
 
 % 
 
 
 1* 
 
t 29 1 
 
 iifTcmblec, qu*ayant ete encourages par la Ca- 
 j)itulation generale du Canada, par le traite 
 definitif de paix, et plus encore par la pro- 
 clamation royalle de votre tres-excellente Ma- 
 jefte du 7'«"»'^ Odobrcj 1763, les prenniers 
 [les Canadiens] ont refte et fe font etablifr 
 dans la ditte province, et que plufieurs dey 
 derniers [ les Anglois, ou anciens fujets] y font 
 venus, y ont achete des biens, et y viennent 
 journellement, dans I'efperance qu'ils ont eue> 
 les uns et les autresj de jouir des benefices et 
 avantages de Sujets Britanniques, ainfi qu'il 
 leur a cte promis par la ditte proclamation. 
 
 Vos expofans fe flattent qtie la COnduIte 
 qu'ils ont tenue d'obeifTans et fideles fujets; 
 eft pour eux un titre d'cfp^rer la protedion 
 de votre tres-excellente Majefte et I'augufte 
 parlement, afin de jouir des conftitutions Bri- 
 tanniques quant a la furcte de leur liberte 
 perfonnellci de leurs droits et polTeflions, dont 
 ils ne pourront jamais etre pleinement affures 
 tant qu'il leur Inanquera une chambre d'af- 
 lemblee du peuple, compof<^e de nouveaux 
 et anciens fujets fans diftin[(ftion ; ce qui eft 
 Une des parties les plu^ elientieMes des dittei 
 
 COnftitUtioriSi ''■' - ^ ^^H'^f -'b ,•-■'•' !.■;; M i:;-T: 
 
 •5 /-.I;: 
 
 L'augmehtatioh d'un li vafte pais, dont fe 
 nombre des habitants excede aduellement 
 celui de cent mille, dont quatre-vingts, dix- 
 huit, font nouveaux fujets 5 -— Tavancement de 
 
 '■' fon 
 
 I; 
 
:;;, 
 
 1 ! 
 
 mi 
 
 m 
 
 f 
 
 J; ' ii( 
 
 i 
 
 i| Si' 
 
 ; 1 i!ii 
 
 !!! I'! 
 
 lii'll 
 
 I IM!- 
 
 
 ^ii:i;'i' ^ 
 
 ill;; 
 lijiii 
 
 111!! 
 
 ■I.i''' 
 
 [ 30 ] 
 
 fon agriculture ; — rencouragemcnt dc fa lu- 
 
 vigation et de fon commerce; un arrange* 
 
 ment a faire fur des fondemens folides et in-, 
 cbranlables, qui puifle dcraciner la confufion 
 qui y regne, a fon detriment, faute de loix 
 
 fixes i font des points prefentement en 
 
 conlideration, qui font dignes de la fagelfc de 
 la legiflature Britannique, et qui meritcnt cer- 
 tainement I'attention particuliere de la nierc- 
 patrie et toutes les. erac^5 quelle peut iui ac- 
 
 '■ 'J '. 
 
 Vos cxpofans prennent k liberte de vouSv 
 reprefenter tres-refpedlueufement, que la po- 
 lice intcrieure et I'arrangement a faire quant 
 aux loix de la province, doivent etre defereS: 
 a fes, habitans. Us doiyent, fan.s,aucune doute, 
 ainii que ceux des autres provinces, etre les, 
 meilleucs juges, et les plus naturels, de leur&, 
 interets et de leurs befoins. en tous les terns,, 
 leur bien-etre dependant entierement d'un 
 arrangement folide. IJs font les feuls en etat. 
 de. demon trer la voye qu'il eft ncceifaiye de^ 
 prendre pour parvenir a rediger des regie-; 
 mens, qui produironj indubitablement leur 
 propte bonheur, et qui. re.ndrQn^ probable-, 
 ment la colonic, de plus en plus,, tres utile i 
 I'Empire Britannique ; deux objets egalement 
 intereffan? a. la Grande Bretagne et glorieux 
 a votre tres-excellente Majefte,. pere 4,'vmi 
 peuple libre. . . ^;. . .. 
 
 <j'.'-i 
 
M 
 
 range- 
 et in-, 
 ifufion 
 ie loix 
 mt en 
 lellc de 
 It cer- 
 , nierc- 
 iui ag- 
 
 M • .' « • 
 
 € VOU^ 
 
 la po- 
 : quant 
 defereS: 
 doute, 
 tfe les, 
 e kurs, 
 terns,, 
 dun 
 n etat. 
 ij-e de^ 
 regie-: 
 leur 
 able- 
 tile aw 
 ment 
 rieux 
 
 Vm 
 
 
 'I 
 
 SI 
 
 ■1 
 
 ( it J 
 
 Vos expofans, quoique de differens fcnti-*' 
 mens en matieres de religion, ont n^anmoins 
 ▼ecu depuis la conqu^te en bonne intelli- 
 gence, lis ignorent totalement le Jacobi- 
 tifme : ils font et feront toujours bons et 
 fideles fujets : ils ne reconnoiflent que I'au- 
 gufte famille d'Hanovre : ils defirent d'etre 
 unis et ferres avec les memes liens, qui les 
 rendront a jamais et leur pofterite foumis en 
 tout a votre tres-excellente Majefte et ^ fes 
 heritiers et fucCefTeurs ainli qu'au Gouverne- 
 ment Britannique. 
 
 Vos expofans prevoyent qu'on pourra leur 
 •bjedter; / 
 
 Premierement, Que, fuivaht les conftitu- 
 tions Britanniques, une chambre d'afTemblec 
 ne doit etre compofee que d'Anglicans : 
 
 Secondement, (et, fans doute, avec quelque 
 cfpece de raifon,) Que ce pais, qui fe refTent 
 encore des malheurs de la guerre, n*eft point 
 
 en etat de fe foutenir lui-m6me ; > Qu'il 
 
 n'eft point encore tems d'y admettre une affem- 
 blee du peuple, et qu'un tel etabliffement feroit 
 fujet a beaucoup d'inconveniens. 
 
 Ils prendront la liberie d obferver en rc- 
 ponfe, quant a la premiere objedtion, que, 
 lorfque la Grande-Bretagne a redige fes con- 
 ftitutions a cet egard, elle n'a pas pii prevoir 
 
 qu'elle 
 
 

 \>.\'W. 
 
 I 
 
 ■; mi 
 
 I lii!; 
 
 i in :i,ll ( 
 Ji'l lli';''t 
 
 I 32 ] 
 
 qu*elle ferolt par la fuite la conqucte d un pat^ 
 immenfe, peuple de gens nes dans le fein do 
 
 I'Eglife Gallicane : Que ce pais conquis,. 
 
 qui contient cent mille ames et plus, dont 
 feulement deux mille font de rEglife Angli- 
 cane, ne peut etre fujet aux ancicnpes Qonftitu^ 
 
 tions : Que la conduite irrcprochable qu'ont 
 
 tenue les nouveaux fujets depuis la conquete, 
 et leur foumiflion au Gouvernement Britan- 
 Dique, doivent ctre des furs garants a la mere- 
 patrie qu'ils n'ahuferonc pas de la derogation 
 quelle voudra bien faire en leur faveur a fcs 
 
 anciennes conftitutions : Que votre tres- 
 
 exccllente Majefte, en les afTurant par la pro^ 
 clamation royale qu'ils jouiroient, ainli que fes 
 anciens fujets Britanniques, du benefice des 
 loix Angloifes, ijur a lolemnellemcnt promi^ 
 qu'ils en auroient tous les avantages -, et que, 
 comme fujets Britanniques, il leur feroit per- 
 mis de fe faire reprelenter dans une chambre 
 d'aflemblee par des Canadiens de leur propre 
 
 choix : Que la mere-patrie ne peut raifonr 
 
 liablement leur rcfufcr cette grace, puilqu'elle 
 leur a deja accorde, centre fes conftitutions, a 
 .ctre Jures,'non feulement dans toutes les affai- 
 res civiles, niais mfime daqs taqte affaire cri- 
 minell.e. 
 
 i 
 
 ■i i:;' ill 
 
 Et, quant a la feconde objedlion, Qi^ils font 
 trjfs-reconnoiflans des foins paternels ' qu'il a 
 plu a votre tres-excellente Majefte d'avoir pour 
 cux i et, comme ils n'oqt 4'autres intentions ni 
 
 d'autres 
 
 I'tf'' 
 
 ■I \\m 
 
[ 33 ] 
 
 d'autres vnes que cdlcs que doivcnt avoir Ics 
 bons ct fldcles iujets, ils font precs a contri- 
 buer, autnnt qu'il Icur fcia puflible, au (ouiieii 
 du Gouvernement auffitot qu'il plaira a vutra 
 tres-excellcntc Majelle d etablir unc adcrnblecdu 
 peuple compolee de nouveaux et d'anciciis fujcts 
 ians diftindtion, les nouveaux ne pouvant jamais 
 foulcrire a letabliflement d 'une chambre dont 
 ils feroient exclus, etant les plus nombreux et 
 les (euls interelfes a cauie de Icur propriete, 
 (qui excede de beaucoup et au-dela de icpt 
 dixiemes, en fcigneuiies et terres en roturc, 
 celle des anciens,) au bon etabliircinent de la 
 province. .,.. . , ,, .. 
 
 Comme vos expofants fgavent que la pro- 
 vince fouftrira beaucoup dcs taxes qu'ils pour- 
 ront s'impofer par le peu d etendue qu'on lui 
 a donne, qui en a necefTairement refferre le 
 commerce et les reflburces, ils prennent la 
 liberte de demander tres-refpedueufement a 
 votre tres-excellente Majefte, a fin de pouvoir 
 contribuer au foutien du gouvernenient, de vou- 
 loir bien leur accorder la grace de reunir a la 
 province toute la cote de Labrador, qui ea 
 a ete fouftraite ainfi que plulicurs parties du 
 pais d'en haut. , • , 
 
 S'il n'eft pas poffible de deroger aux ancien- 
 nes conftitutions Britanniques pour letablific- 
 mcnt d'une aflemblee du peuple dans laquellc 
 les Caaadiens ibient admis comme principaux 
 
 £ membres 
 
 ' ■ 
 
 
 ■ ( 
 
 > i 
 
liil'v' 
 
 ii :!;X 
 
 
 I 
 
 ii 'ii 
 
 n 
 
 [ 34 ] 
 
 membrcs et en plus grand nombre, Vos expo- 
 fans, (qui ne peuvent confcntir d une aflcm- 
 blee fculement compofec d'anciens fujets, ) de- 
 mandent a v6tre trcs-exccllentc Majeftc ct 
 augufte aflemblee, Que leurs loix de propricte 
 leur foient confervees en confequence du 37"*' 
 article de la capitulation generate et du 4""' du 
 traite definitif de paix. Ii eft de I'interet de la 
 couronne de les leur laifTer, parcequ'cn les 
 leur confervant ils feront tenus de payer sL 
 v6tre tres-excellente Majefte les droits et pro- 
 fits feodaux, comme Quint quant aux fiefs, 
 et laods et ventes quant aux rotures j droits, 
 qui pourront monter annuellement, ^ caufc 
 des mutations frequentes, a trois ou quatre 
 mille livres fterling, qui ferviront aux depenfes 
 
 du Gouvernement. Leurs loix de propriety 
 
 confervees, ils confentent que votre tres-ex- 
 cellente Majefte et augufte afiemblee accordent 
 au Gouverneur et Confeil, compofe d'anciens 
 et nouveaux fujets, le pouvoir de ftatuer feule- 
 ment des ordonnances pour le maintien de 
 la police, ( confer mement aux anciens ufages,) 
 et des reglemens pour la forme de Proce- 
 dure ; pourvu toutefois que ce pouvoir no 
 puifle jamais s'etendre a alterer en quoi que 
 ce foit les fonds des loix de propriete dans 
 les plus petites chofes. 
 
 ,K: ii:' 
 
 
 ' •!; ii 
 
 s 
 
 Ii 
 
 i'l'i' ■■'■it 'I 
 
 ill I '1' !■ 
 
 I', m 
 
 m 
 
 i 
 
 ^ ii 
 
 Vos Expofans fupplient tres-refpeflueufe- 
 ment et tres-humblement v6tre tres-excellente 
 Majefte et augufte parlement de prendre leurs 
 
 affaires 
 
r 35 ] 
 
 afl^aires en confid^ration, et de vouloir bien 
 
 ]cs terminer ; leur bien-etre, leurs fortunes, et 
 
 ]eurs libertes perfbnnelles dependant entiere- 
 
 ment d'un arrangement convenable et folide. 
 
 Et ils ne doutent point que v6tre trcs-excel- 
 
 Icnte Majeft^ voudra bien leur confirmer la 
 
 promeffe royalle et gracieufe qu'ellc leur a 
 
 faite par la proclamation, qu'ils jouiroient 
 
 de I'ineftimable avantage de fujets Britan- 
 
 niques, dont celui d'avoir le droit de fe re- 
 
 prelenter par des perfonnes de leur propre 
 
 choix eft un des principaux. , 
 
 i 
 
 Et vos expofans, alnfi qu'il eft de leur 
 devoir, ne cefferont d'offrir leurs vceux a Dieu 
 pour la profp^rite de votre tres-excelkute 
 Majeftc, et de la Grande-Bretagne. 
 
 ..'5 
 
 ;' 
 
 Trantiation of the foregoing Draught of a 
 V Petition to the King and Parliament of 
 . Great -Britain, drawn up by Monfieur 
 Cugnet* 
 
 i 
 
 \* 
 
 E 2 
 
 To 
 
[ 36 ] 
 
 ' I'.i 
 
 f ■'sill 
 
 lii lit 
 
 ^ if 
 
 To the King's mofl: excellent Majefty ; 
 and the Lords Spiritual and Tem- 
 poral ; and the Commons of Great- 
 Uritain in Parliament afll-mbled ; 
 
 •*■■ • 
 
 THE Petition of divers of his mofl: ex- 
 cellent Majefty 's moft taithlul and obe- 
 dient Subjects, both new Subjcds and old 
 ones, conlifting of Lords of manors, Proprie- 
 tors of freehold lands of inheritance, Citizens, 
 Merchants, and Traders, in the province of 
 Qii.cbeck in North-America, both for them- 
 fclves and in behalf of all the other inha- 
 bitants of the province i 
 
 ■ 'j-y.nti .■ I 
 
 1 J 
 
 ..•f l.y<i.. » 
 
 Humbly flieweth. 
 
 That your Petitioners, having been informed 
 that it appeared by the declarations made in 
 the courle of Ibme late debates in parliament, 
 that the affairs of this province were to be 
 taken into confideration in the enfuing fcffion 
 of parliament, do now take the liberty of re- 
 preicnting to your moft excellent Majefty and 
 this auguft affembly, that, in confequence of 
 the encouragement given them by the gene- 
 ral capitulation of Canada, and by the defi- 
 nitive treaty of peace, and ftill more by the 
 Royal Proclamation, publifhed by your moft 
 excellent Majefty on the 7th day of Odo- 
 
 ber, 
 
 liil i iii!i^;i 
 
 111 
 
 
r 37 1 
 
 her, T763, the former part of your Majcfty's 
 fubjc^ .^, the French inhabitants of this pro- 
 vince, have remained in the province and 
 lettlcd themlclves in it, and divers of the lat- 
 ter, ) our Majclty's ancient Englifh fuhjcds, 
 have come into the lame and bou:;!u lands 
 thct cin, and others of them are daily coining 
 into it, in the hope which tluy have ail 
 entertained of enjoying the privilcijcs and 
 advantages of Britiih lubjedts, agreeably to 
 the promife made to them in the laid pro- 
 clamation. • ' 
 
 M '« 
 
 Your petitioners prciume to hope that their 
 uniform good behaviour, as faithful and obe- 
 dient fubjedls, will be thought fufficient to 
 intitle them to the protection of your mod 
 excellent Majefty and the honourable parlia- 
 ment of Great-Britain, for the enjoyment of 
 thofe parts of the conftitution of the Britifh go- 
 vernment, which tend to fecure their perlonal 
 liberty, their rights, and poflcffions, which they 
 conceive can never be rendered perfedly fafe, 
 until an affembly of the people is eftablifhed 
 amongft them, confilhng indifferently of Ca- 
 nadian and Engli(h members, without any 
 diilindtion whatloever j this being one of the 
 moll eflential branches of the faid Britifh con- 
 liitution, i:- ■ ; . ■ L .:,: . .-; ,.: .,, :„'• 
 
 V »l > 
 
 The increafe of the population of fo ex- 
 tc.ifive a country as Canada, which already 
 
 contains 
 
 (f 
 
 ;^ ' \ 
 
 . t 
 
 »"■ .1 
 

 
 
 il'ii < ■:' '' 
 
 j % 
 
 11 
 
 !!■ 
 
 I 
 
 ''■f 
 
 :! ! 
 
 iP. 
 
 ! 
 
 n; 
 
 hi' 
 
 i; ill ■ 
 
 ill 
 
 ■ 'il 1 'i' ilJ' 
 
 iiH' 
 
 ■ ^ 4 
 
 1 38 1 
 
 tontains above an hundred thoufand inhabitants, 
 of whom ninety eight thoufand are new fub- 
 
 jeds of your Majcfty, the improvement of 
 
 its agriculture, the encouragement of its 
 
 navigation and commerce, and a fcttlement 
 
 of the laws, which are to be followed in it, 
 upon folid and unremoveabie foundations, fo 
 as to put an end to the confuflon which now 
 prevails in the province through the want of 
 
 known and certain laws s are matters 
 
 which are now to be taken into confidfra- 
 tion, and are objedls worthy of the wifdoni 
 of the legiflature of Great-Britain, and which 
 certainly deferve the mod particular atten* 
 tion of the mother-country, and all the fa* 
 vours and afTiflance towards their attainment 
 and completion, which it is in her power 
 to bcftow. 
 
 Your petitioners do further take the liber- 
 ty moft humbly to reprefent to you, that 
 dbe interiour regulation of the province and 
 the choice and fettlement of the laws that 
 are to prevail in it, ought to be left to the 
 inhabitants of the province themfelvcs. They 
 muft, doubtlefs, be the bcft judges, (as they 
 arc evidently the moft natural ones,) of their 
 own interefls and wants at all times ; jufl as 
 the inhabitants of the other provinces in Ame* 
 rica are of their refpedive wants and interefts : 
 their welfare wholly depending on a folid and 
 judicious fettlement with refptdt tg thefefubjeds. 
 
 They 
 
 
 1:1 ■1I: 
 
 ^. fi 
 
I 
 
 r 39 1 
 
 They arc the only perfons who arc able to point 
 but the methods which it is ncceflary to take 
 in order to fucceed in drawing up fuch re- 
 gulations as will not fail to promote their 
 own happinefs, and will probably render this 
 colony continually more and more ufeful to 
 the Britifh Empire j which are two great ob- 
 jeds, that are equally intercfting to Great- 
 Britain, and glorious to your moft excellent 
 Majefty, the Father of a free people. 
 
 Your petitioners, though they entertain dif- 
 ferent opinions upon matters of religion, have 
 neverthelefs lived in a friendly intercourfe with 
 each other ever fince the conqueft of the 
 country. They are all of them untainted 
 with Jacobite principles : they are, and ever 
 will remain, good and faithful fuhjedls to your 
 Majefty : they acknowledge no title to the 
 crown, but that of the illuftrious houfe of 
 Hanover : they deiire to be united and cou- 
 neded by the fame ties, which will prcferve 
 both them and their pofterity to the lateft 
 generations, in a ftate of perfect obedience 
 to your moft excellent Majefty, and your 
 Heirs and Succeffors, and to the Britifli Go- 
 vernment. 
 
 Your petitioners forefee, that two objedionjs 
 may be made to their requeft* 
 
 In 
 
 
 h i\ 
 

 
 '■.!!! 
 
 !.;ll.;| 
 
 ft lit 
 
 'i 
 
 I 
 
 :|;i'iir 
 
 [ 40 ] 
 
 In the firft place it may be faid, that, 
 according to the fundamental laws of Great- 
 Britain, a hcufe of afTembly ought to confift 
 only of proteftant members, of the commu- 
 nion of the church of England. 
 
 And in the fecond place it may be faid, 
 (and, it muft be confelTed, with fome de- 
 gree of truth,) that this country, (which ftill 
 feels the efFeds of the ravages of the late 
 war,) is not yet in a condition to bear the 
 
 expence of its own civil government j that 
 
 it, therefore, is not yet time to eftabliili a 
 houfe of allembly in it -, and that the eflablilh- 
 ment of one would be attended with many 
 inconvenient confequences. 
 
 In anfwer to the firft of thefe objections, '•' 
 your petitioners take the liberty of obferving, ' 
 firft, that when the Britifh legiflature made 
 the laws now in being upon that fubjedl, 
 they could not forefee that they ftiould, at 
 a diftant period of time, make a conqueft of 
 an immenle tradt of country, inhabited by a 
 people born and bred in the church of France j 
 and, fecondly, that this conquered country, 
 which contains above an hundred thoufand 
 fouls, of whom only about two thouland are 
 proteftants, cannot confiftently, with juftice 
 and good policy, be made fubjedts to thofe 
 Britifh laws, which were fo made in former 
 ages, without any view to perlbns in their 
 
 condition 
 
 
[ 4' 1 
 
 condition and fituation -, and, thirdly, that 
 
 the irreproachable conduct of your Majefty's 
 new fubjeds ever fince the conquefl of the 
 country, and their fubmilTion to the Britifli 
 government that has been eftabliihed here, 
 ought to be confidered by the mother-coun- 
 try as fure pledges of their difpolition to 
 make a good ufe of any departure from the 
 ufual maxims of the Briti(h Government, 
 which fhe fhall vouchfafe to make in their 
 
 favour : and, fourthly, that your mofl 
 
 excellent Majefty, by the alTurances given to 
 them in your royal procLimation, that they 
 as well as your Majefly's old fubjcdls, the 
 Britifh inhabitants of the province, fliould 
 enjoy the benefit of the Englifh Laws, has 
 folemnly promifed, that they ihould have all 
 the advantages of thofe Laws, and, confe- 
 quently, that, as Britifli fubjeds, they fliould 
 be permitted to chufe fuch pcrfons as they 
 fhall think proper, whether Canadians or 
 Engliflimen, to reprefent them in a general 
 afTembly : and, laflly, that the mother- 
 country cannot rcafonably, nor confillently 
 with what flie has already thought pioper to 
 do for their fatisfadlion, rcfule them this fa- 
 vour, feeing that flie has already permitted 
 them, in derogation to the Britifli laws upon 
 this fubjedt, to be impanelled upon Ji'.rics, 
 not only in all civil cafes, but even upoii the 
 decifion of criminal matters. 
 
 i 
 
 And, 
 
' '■ ' ' 1 
 
 1 : 
 
 -^ 
 
 
 i"i .'I 
 
 A 
 
 
 m 
 
 If 
 
 : ■:■■ 'il,'\ 
 
 ■ r 
 
 !l! 
 
 ii 
 
 And, in anfwer to the other objedion above 
 mentioned, to wit, that the province is not 
 yet in a condition to bear the expence of its 
 own civil government, your petitioners beg 
 leave to declare, that they are very thankful 
 for the paternal care which your mod excel- 
 lent Majclly has been pleafed to take of them, 
 and that^. as they have no other intentions 
 nor views than fuch as are fit to be enter- 
 tained by good and faithful fubjedts, they arc 
 willing and ready to contribute, in propor- 
 tion to their means and abilities, to the fup- 
 port of Government, as foon as your mofl 
 excellent Majefty Ihall be pleafed to eftablifh 
 in the province an open aflembly of the people 
 into which both the Canadian and Britifh 
 inhabitants of the province fliall be admitted 
 without diftindlion ; your Majefty's new Ca- 
 nadian fubjed:s being utterly unwilling to 
 confent to the eftablifhment of a houle, of 
 afTembly out of which they fhould be ex- 
 cluded ; which, they think, would be highly 
 unreafonable, becaufe they are fo much more 
 numerous than the Englifh inhabitants, and 
 polTefled of fo much greater a fhare of the 
 landed property of the province, (having no 
 lefs than feven tenth parts of the whole of 
 that property,) and, from this greater {hare of 
 the property of the province, are fo much 
 more interefted in its welfare. 
 
 •:■;!! 
 
 As 
 
 i. fm 
 
 :m 
 
 
[ 43 1 
 
 As your petitioners are fully fenfible, that 
 the province muft lufTer a great deal from the 
 weight of the taxes which its inliabitants 
 may probably grant for the fupport of their 
 own civil government, when an allembly (liall 
 be eftabliihed in it, bccaufe, from the narro*vV 
 limits, which have been given to the pro- 
 vince by your Majefty's proclamation in 1763, 
 its trade and means of acquiring wealth are 
 rendered fcantier than they had been in the 
 time of the French governmciit, they take 
 the liberty of moil: humbly intreating your 
 moft excellent Majefly, in order to enable 
 them the better to contribute to the fupport 
 of the government of the province, to grant 
 them the favour of re-anncxing to the pro- 
 vince all the Coaft of Labrador, which has 
 been taken from it, and put into the govern- 
 ment of Newfoundland, and alio of re-an- 
 nexing to it thofe feveral trails of coun- 
 try in the interiour and higher part of North- 
 America, which made formerly a part of the 
 government of Canada, in the time of its 
 fubjedion to the crown of France, but whicii 
 now, by the limits affigned to this province 
 by the aforefaid proclamation, are out of ils 
 jurifdidion. 
 
 s 
 
 - 1 
 
 
 ■1^1 
 
 But if, after all, it Hiould not be judged 
 proper to depart from the ancient maxim-; Ui' 
 the Britiih government, and to eiiabli-ii ..n 
 alfembly of the people in taiti pro /ince of il:i•^. a 
 
 F z t-uij^ 
 
'^ 
 
 \ 1 
 
 iF 
 
 4li' 
 
 i 
 I 
 
 
 ' 
 
 
 1i 
 
 ! 1 ■ 
 
 1^ 
 
 
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 i- 
 
 
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 i 
 
 
 
 
 
 
 
 
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 I 
 
 conftitution that the Canadians Ihould be per- 
 mitted to be chofen into it in greater numbers 
 than the Englifli, and form the principal part of 
 it, your petitioners (who can by no means con- 
 fent to be governed by an alTemblyconlirting on- 
 ly of Englidi members) do in that cafe humbly 
 intreat your moft excellent Majefty, and this 
 honourable alTembly, to preferve to them 
 their ancient laws concerning their property, 
 agreeably to the 37 th article of the general 
 Capitulation, and the 4th article of the de- 
 finitive treaty of Peace. It is for the in- 
 terefl of the Crown that thefe laws fhould 
 be preferved to them, becaufe by the con- 
 tinuance of thefe kws your Majefty's faid 
 new fubjeilis will remain under the fame 
 obligation of paying to your mod excellent 
 Majefty the dues and feudal profits arifmg 
 out of their lands, to which they have always 
 hitherto been fubjedt ; fuch as the fifth part 
 of the purchafe-money upon every fale of a 
 fief, or traift of land holden of the Crown 
 by fealty and homage, and the JJrok de Laods 
 et FeTiti's, or the twelfth part of the purchafe- 
 money upon every fiile of a piece of land 
 holden by rent-fervice j which profits (by 
 reafon of the very frequent alienations of 
 land in this province) are fuppofed to amount 
 to between three and four thoufand pounds 
 ikrling a year; which would be a confi- 
 derable aid towards defraying the expence 
 
 of the government of the province. If 
 
 their 
 
t 45 1 
 
 their laws, concerning property, are thus prc- 
 ferved to them, they confent, that your moft 
 excellent Majefty, and this honourable Aflem- 
 bly, fliould delegate to the Governour and 
 Council of the province (the faid Council 
 being compofed of Canadian as well as Eng- 
 iiih members) the power of making ordi- 
 nances for the maintenance of good order in 
 the province, (agreeably to the delegation of 
 a like limited legiflative authority to the Su- 
 periour Council in the time of the French 
 government,) and of regulating the forms of 
 proceeding in Courts of Juftice ; but with 
 an exprefs provifion, that they fliall not have 
 any authority to alter the laws of property, 
 even in the minuteft particulars. 
 
 Your petitioners moft humbly and moft 
 refpedtfully in treat your moft excellent Ma- 
 jefty, and the honourable Parliament, to take 
 their affairs into conlideration, and to bring 
 them to a final conclulion ; as their welfare, 
 their fortune, and their liberty depend in- 
 tirely on a fuitable and fblid fettlement of 
 them. And they do not permit themfelves 
 to doubt, that your moft excellent Majefty 
 will vouchfafe to confirm to them the royal 
 and moft gracious promife, which you were 
 pleafed to make to them by your proclama- 
 tion above-mentioned, that they fhoald en- 
 joy the ineftimable advantages of Britifh fub- 
 jedls, of which the right of being repre- 
 
 fented 
 
 1'' i 
 
 i* 
 
 A 
 
 
[ 46 ] 
 
 fcnted in a general aflembly of the province 
 by fuch perlbns as they fhall think fit to 
 chufe, is one of the molt valuable. 
 
 4 ■ 
 
 9 ■ 
 
 And your petitioners, as they are in 
 duty bound, fliall ever pray to Al- 
 mighty God for the Profperity of 
 your moft excellent Majefly, and of 
 Great-Britain. 
 
 ; : , ! . 
 
 I It. 
 
 im 
 
 / 
 
 1(1 :,« VM.\m\ 
 
 iiil 
 
 iii 
 
 
 
 . ii;;.t,tlll:l a 
 
 ' r 
 
 ». 1 f » 
 
 ' This Petition the Engliih and Proteflant 
 inhabitants of the province refufed to fign, 
 becaufe it exprefsly defired the King to admit 
 Roman-Catholicks into the afTembly, inftead 
 of limply declaring a w^illingnefs to acquiefce 
 in an aflembly of fuch form and conftitution 
 as his Majefty, in his royal wifdom, fliould 
 think fit to eflablifh, which the Englifli 
 thought was the proper line of condu^it for 
 them to purfue on that occafion, and which 
 they accordingly did purfue in the petition, 
 which they tranfmitted to England a few 
 months after to his Majefly for the eflablifh- 
 ment of a houfe of afTembly in the province. 
 See their petition in the aforefaid Account of 
 the Proceedings t &c. page i6> & feq. Mr. 
 Malcolm Frafer, therefore, upon the refufal 
 of the Englifh to fign the foregoing draught 
 of a petition, which Mr. Cugnet had pie- 
 r pared, 
 
 lijiiit' 
 
 ii.iK 
 
[ 47 ] 
 
 pared, fent it back to Mr. Cugnet, with a * 
 letter in anfwer to Mr. Cugnet's letter afore- 
 faid, which was as follows : 
 
 :i 
 
 The Anfwer of Mr. Malcolm Frafcr to 
 Mr. Cugnet's Letter above recited, 
 of the firft of September, 1773. 
 
 To Mooficur Cugnet. 
 
 SIR, 
 
 T Return you the inclofed Petition, which 
 '■• you was fo good as to fend me with your 
 pennilTion to communicate it to fome of my 
 friends. It was accordingly fhewn to feveral in 
 the lower town ; and they feem unanimous not 
 to lign any petition that didtates to hisMajefty, 
 his Council, or his Parliament, what they are 
 to do. But, as we all feem to be of the fame 
 opinion, that it is for the general good of the 
 country that there fliould be an Aflembly of the 
 People, to form their own Laws and Police ; 
 if the old Canadians will agree to addrefs hi$ 
 Majefty, in general, decent, terms, for an Houfe 
 of Aflembly, leaving it to his wifdom, how ; 
 who are to eled:, and to be ele6:ed, the new 
 Canadians will join with them. If not, they 
 may addrefs his Majefty in their own ftile, 
 requefting what they want h^ fliould do for 
 ■>. ■ : ' them. 
 
 7 
 
 I 
 
 ' f 
 
 
 ft' 
 
 % 
 
 ■ %■.' 
 
 
 
 f^ 
 
 1^ 
 
 it. 
 
[ 48 ] 
 
 them. Thefe arc, as far as I can recolledl, tJ»e 
 fentiments of thofe I have had an opportunity 
 to fpeak with, as well as of ■■ 
 
 Qucbeck, 
 September 4, 1773 
 
 SIR, Your, &c. 
 
 Malcolm Frafer. 
 To Monfieur Cugnet. 
 
 4 
 
 ■!■ 
 
 n 
 
 ^(Hs 
 
 Miiii 
 
 M 
 
 From the foregoing draught of a Petition 
 and letter of Mr. Cugnet, thcfe three con- 
 clufions may be drawn -, to wit, 
 
 Firft, That Mr. Cugnet and his Canadian 
 Friends, (whom he reprefents as perfons of 
 a more rational way of thinking than the 
 generality of their countrymen, and who have 
 never ligned any compliments or infipid ad- 
 dreffes j fee above, page 23.) were very de- 
 firous of having an affembly eftablifhed in 
 the province, into which the Roman-Catho- 
 licks (hould be admitted indifcriminately with 
 
 the Proteftants. ; r - ^ V^ * s 
 
 . ■: . . ■ ; ■ _ -. ''- ■ - \:.\\ ,;;■'.' 
 
 Secondly,' That Mr. Cugnet himfelf wat 
 fo deiirous of having an affembly, that he 
 would have preferred even an aflembly of 
 Proteftants only, to any other mode of govern- 
 ment; 
 
 ill 
 
I 49 1 
 
 ment ; fince he afcribcs the difpofition of his 
 countrymen, to have their political concerns ^ 
 regulated by the King and Parliament, rather 
 than by an aflembly of the province, from 
 which the Roman-Catholicks /lioLild be ex- 
 cluded, to their habits of obedience to the 
 royal authority and of fubniiirion to the yoke 
 of llavery. See the lail fentence of his letter 
 above mentioned. In this opinion, that an 
 aflembly of Proteftants only, (though not fo 
 defireable a thing for the Roman-Catholick 
 inhabitants of the province as an open aflfem- 
 bly, into which Proteftants and Roman-Ca- 
 tholicks fhould be admitted indifcriminately) 
 would yet be preferable to a government by 
 a legiflative council, Mr. Ciignet agrees with 
 Monlictir dc Lotbinierc. See the above Account 
 of the proceedings^ &cc. page 175. & feq. 
 
 a 
 
 Thirdly, It appears, that Mr. Cugnet and his 
 friends thought, that the principal objedion to 
 the eltablifliment of an aflembly of the province 
 was the inability of the province to bear the 
 expence of maintaining its own civil govern- 
 ment ; which they feem to have apprehended, 
 would be an immediate confequence of fuch 
 an eflablifliment. And they endeavour to ob- 
 viate this objedlion by declaring, that the 
 province is able and willing to bear a part 
 of that expence, though not the whole. 
 Their manner of wording this part of the 
 petition is remarkable, and feems to imply an 
 
 J 
 
 /:• 
 
 ■if 
 
 >f\fx 
 
 */. 
 
 .( 
 
 ij ^- I 
 
 ■••r.f'; 
 
 G 
 
 opinion 
 
 ti 
 
^1 "t 
 
 • 
 
 ' 
 
 [ 50 ] 
 
 'i; 
 
 opinion that they ought not to be taxed, and 
 an e>.peOation that they fliould not be taxed 
 at all, until an (^pen alfembly, confilling in- 
 J Vcrently of Prottftant and Roman-Catho- 
 lick mtnibers, rtiould be eftablifhed in the 
 province. The words are thefe : lis font pret$ 
 a irntrihiier autant qiCil leur fera poffiblt\ au 
 foutien du Governemcnt, aufjitot quil plaira ^ 
 'ootre trcS'CXCcllcnte Majejii detablir une ajfem- 
 blee du pntple compofie dc muveaux et d'aficiens 
 Jujets fans diJlviBion. This expedation of not 
 being taxed till an afTembly is cflabliftied in 
 the province, appears likewife in the memo- 
 rial of the 65 petitioners of the diftrid of 
 Montreal, which accompanied the petition,, 
 which was actually tranfmitted to England, 
 and prefented to his Majelly in February* 
 1774. See the abpve Account oj the proceediugSy 
 &c. page 120. . _ >' , ; 
 
 \i 
 
 »'>'.'!•« 1 • 
 
 In the above Account of the Proceedings, &c, 
 page 265, &c. I have printed a copy of a 
 certain French letter, llgned Le Canadtett Pa- 
 triotey which was circulated in the province 
 of Quebeck among the French, or Canadian, 
 inhabitants in December 1774, and January 
 1775, ^^^^ ^ ^^^^ ^^ prejudice them againft 
 the Englifh law, and to perfuade them to 
 approve the late Quebeck acT:, and to forbear 
 joining with the Britifh inhabitants of the 
 
 province. 
 
|)rovince to follicit a repeal of it. In thd 
 lUccceding month of February 1775, the fol- 
 lowing anlwer was written to that letter by 
 fome Englifli gentleman in the province, who 
 thought it prudent to conceal his name. It 
 was tranflated into French, and copies of 
 the tranflation were handed about amongil 
 the Canadians. It contains many juft re- 
 flexions upon the feveral falfe arguments ad- 
 vanced in the other letter, delivered in a de- 
 cent and manly ftyle, and is well worth the 
 perufal of every gentleman, who wifhes to 
 be truly informed of the ftate of that pro- 
 It is as follows t ■ • I '• • 
 
 vmce. 
 
 t.; r.., r 
 
 An Anfwer to the anonymous Letter 
 written in December 1774, and 
 figned Le Canadien Patriate. 
 
 {See the above Account of the Proceedings^ 
 page 265, &c.) 
 
 
 ♦ 
 I > 
 
 !' I 
 
 J? 
 
 >• 
 
 G 2 
 
 to 
 
 im 
 

 m 
 
 ■I 1 
 
 lili, 
 
 ■I •.» 
 
 l''i. 
 
 ! '1 
 
 '';!.' 
 
 ;;.!! 
 
 ? . 
 
 
 
 
 
 
 1 
 
 
 i 1 
 
 
 ■H 
 
 
 
 
 .'li 
 
 
 ■ ^ 
 
 
 
 
 
 
 ^■^il 
 
 
 .il:. 
 
 
 ' r 
 
 
 
 
 
 
 .1 
 
 
 
 V ft 
 
 ; 
 
 ii; 
 
 [ 52 1 
 
 To the Writer of the Letter under the 
 Signature of Le Canadie?i Patriate. 
 
 -.. .g J j^^ . :..-•./.•: .... .. .. ■-. _■ . 
 
 Finding no anfwer has been given to the 
 letter delivered to Mr. Olry on the 26th 
 of December laft, nor any enquiry made after 
 the author, I have employed a few minutes 
 in peruling your very extraordinary epiftle ; 
 on which, I beg leave, to make the following 
 remarks by way of anfwer, in order to ob- 
 viate, if poffible, the prejudices which the 
 difperfion of that letter may have created. 
 
 * 
 
 You fet out by aiferting, that fome of the 
 Englilh people of this province employ them- 
 felves in ftirring up the Canadians againft 
 the late ads of parliament, and againlt the 
 French laws, thereby intended to be intro- 
 duced, and that they endeavour to alarm them 
 with apprehenlions of the revival of letters de 
 cachet, and other dreadful confequences of the 
 re-introdu<5lion of thofe laws. In a matter fo 
 very interefting to all the inhabitants of the 
 province, it is very probable, that the Englifli, 
 as well as the French, very often make the 
 late adts and the confequences of them the 
 fubjed of their converfation. But, I believe, 
 on examination it will be found, that the 
 favourers of the ad and their emilTaries have 
 been much more ailiduous and more clan- 
 
 defline 
 
[ 53 1 
 
 deftinc in their applications to obtain the adt» 
 which regulates the government, as well as 
 in preparing the minds of the people to fub- 
 mit to it, than its enemies have been in op- 
 poling it. For the latter hardly thought it 
 pofTible, that fuch a law could pafs J and 
 now, that it has paft, they truft more to 
 the goodnefs of their caufe than to any 
 importunate applications to particular perfons, 
 or infidious and fcurrilous publications. And 
 though fome paragraphs have appeared in 
 the publick papers refledting on the reli- 
 gion and civil tenets of the Canadians, yet 
 a little attention will (hew, that it was im- 
 poflible, that any of the Englifh people 
 in Canada could be the authors of fuch pa- 
 ragraphs. 
 
 The example fet by the Canadien Pafn'otf, 
 might be here thought fome excufe for illi- 
 beral language. But the Englifh flatter them- 
 felves, that the duft * of which their bodies 
 are compofed, is animated by fouls that difdain 
 to make national or perfonal reflections, or to 
 blame a generous people for the unmerited 
 alperfions of perhaps one individual. No ! 
 we, by experience, know the Canadians in 
 general to be a people endued with more 
 generous and brave fentiments than this pre- 
 tended 
 
 ' i 
 
 u 
 
 4 
 
 4?- 
 
 ,4 
 
 M 
 
 >l?l 
 
 
 • '1 his alludes to an expreff.on in the ether letter. See 
 the AcauKt if the ProacdtKgSt tic. page 267, iuie 19, &c. 
 
' !'' '' 
 
 i 
 
 t 
 
 I 
 
 t 54 ] 
 
 
 l'=^:' 
 
 t^ftded Patriot ever felt, and that they are abov^ 
 giving credit to any anonymous libels. Let them 
 refledt on the time pad:, and they will find, that 
 the few Englilhmcn that are fettled in the 
 province have ever been ready to treat them 
 With that fraternal kindnefs which is be- 
 coming fellow-fubjed:s and fellow-Chriftians, 
 and that they have liberally contributed to 
 alleviate their diftrefles on every occalion. 
 And the Englifh with pleafure acknowledge 
 thefe obligations to have been reciprocah 
 Happy will it be for both, if this harmony 
 is not interrupted by thofe whofe duty ought 
 to prompt them to ufe their talents to pro- 
 mote unanimity and Chriflian charity, but 
 whofe ambition induces them to proftitute 
 thcfe talents to fervile adulation and fowing 
 divifion. 
 
 \y 
 
 The revival of the French law very na- 
 turally implies a revival of the powers exer- 
 cifed by the governours and people in power 
 under that law. To illuilrate this, I fhall, 
 after the example of the Patriote, put a few 
 queftions. And, firft. Is there any thing 
 in the ad that provides againft the exercife 
 of thefe arbitrary powers in all civil and 
 even many criminal matters ? Did not Let- 
 ters de Cachet fubfift in the French time ? 
 Did not the governours and intendants take 
 the people's effedls, and put an arbitrary 
 value on them ? Did they not drag the people 
 
 to 
 
[ 55 1' 
 
 to prifon and to the wars ? Did they not 
 jimpofe taxes without their confent ? You 
 lown they did. Was not juftice adminiftred 
 |by the arbitrary will and caprice of the 
 [judge ? and, fuppofing him inclined to be 
 [upright, might he not be intimidated, or 
 Jinfluenced, by the Governour, the intendant, 
 lor their emilFaries f Were there no examples 
 ]of fuch arbitrary proceedings during the 
 French government ? Has not juftice been 
 adminiftred with impartiality under the png- 
 |li(h government ? Is not the Englidi mode 
 more favourable to that liberty which is the 
 [natural right of mankind ? Is there then no 
 connection between the French laws and 
 Lf -rtiS de Cachet, prifons, dragging to the 
 K , arbitrary taxes* and the defpotifm of 
 |Go,ernours ? Or were thefe powers exer- 
 [cifed in Canada without law ? And, if the 
 [French law countenances the exercife of 
 [them, may it not be feared, that they will 
 [revive along with it t Mijera eji fervitm iibi 
 [;«; ejl vagwn aut incogiiitum. But further, 
 [is it impofTible, that an ignorant or corrupt 
 [judge may be ^pointed ?^ And if the ii.iitors* 
 [or the rulers of the provLice, are bafe enough 
 to impofe on his ignorance, or to bribe or 
 intimidate him, is there not a greater chance 
 of thefe practices fucceeding with one cor- 
 rupted heart, though he may, perhaps, have 
 a very clear head, than with twelve difin- 
 jterefted honeft men, whQfe hearts are good, 
 
 thcugl.4 
 
 • .(■'■- 
 
 
 :f 
 
Bi I 
 
 
 < 
 
 if 
 
 ■ ;■ ''iHi-^' 't 
 
 :'-'ii'!: 
 
 [ J6 ] 
 
 though they may not, perhaps, know al! thp 
 chicane of the laws ? Might not the ex- 
 pence of law-fuits be diminifhed without 
 annulling the Englifh law ? And what fecu- 
 rity have we, that the French law, when 
 eftablifhed, will be lefs expenfive than the 
 Englilh law ? Does not the Englifh law Al- 
 low a man to leave his ellate to any of nis 
 children, or even to a flranger, or to divide 
 it among them by a deed under his hand 
 and feal ? Has not the French method of 
 granting lands been followed by the Seigniors 
 under the Englifh law ? Why may it not 
 be continued ? Are tythes exad^ed in Ame- 
 rica ? Or, who ever before dream'd, tliat 
 the tythes would be exa<^ed in Canada as 
 in England ? Is not the law in all countries 
 of Europe fo interlarded with Latin, or ob- I 
 folete terms, as to be unintelligible to any but 
 Lawyers ? What matters it, therefore, in what 
 language it is wrote originally, provided it 
 is tranflated for the ufe of the people ? And 
 will not the Englifh have the fame objedlion 
 againfl the French law ? — If thefe q^ueflions 
 are candidly anfwered, I believe, it will be 
 found, that the Englifh laws have every fort 
 of advantage, and that thfe great Montefquieu 
 and other judilrious French writers give them 
 the preference for the government of a free 
 people. The Canadian Patriot is certainly 
 mifinformed (to fay no worfe) when he fays, 
 that the Eriglifh are aduated by envy at the 
 
 eaablifli- 
 
[ 57 ] 
 
 cftablifliment of the Roman- Catholick reli- 
 gion in their oppolition to the adls. This, 
 he may be alTured, is by no means the cafe. 
 For, though they certainly think the pro- 
 teftant religion the beft, it cannot be faid 
 that for above fifteen years, that the govern- 
 ment has been adminillred by proteilants, 
 there was any infiik ofi^ered to the Roman 
 Religion or its profclfors. — No ! the pro- 
 teftants have (except in a very few inflances 
 at the commencement of civil government) 
 fhowed an uniform inclination to live in 
 harmony, and to avoid all religious difputes: 
 and they are ftill refolved to perfevere in 
 doing fo, notwithftanding the ungenerous 
 and ill-grounded afperfions of this pretended 
 Patriot. . 
 
 When the Englifli inhabitants of the pro- 
 vince were informed^ that there was fome- 
 thing in agitation in England, regarding the 
 fettlement of Canada, they immediately com- 
 municated the information in November 
 1773, to fome Canadian Gentlemen at Que- 
 beck, and (it is faid) fome of the latter met 
 the former at a publick houfe, where they 
 propofed to join in a petition for an aflem- 
 bly in the terms of the King's ^proclamation. 
 But when the Canadian Gentlemen propofed 
 to afk in exprefs terms for two thirds of the 
 houfe of Affembly to be Roman-Catholicks, 
 the Englifli objected, that this would be pre- 
 
 H fcribin^ 
 
 
 !^^* -.4 
 
 I 
 
 J.* 
 
 i 
 
 •I)., .ti 
 
 .f 
 
 Vi 
 
 n 
 
 I*. 
 4, 
 
 H : 
 
m4 
 
 f 
 
 .'!*, 
 
 .;..; 
 
 t 58 ] 
 
 fcflbinf? rules to the Kirr^; and thcreu^^oit 
 the French Gentlemen broke off fr<«m the 
 LnLlifi), v/V' were thereby obliged to peti- 
 ticni ihc i;i*^^ in thdr own n?.me3 only. They 
 never thck£: t(;(.k cr.re in their petition to 
 afn: only f r r." cflcmbly in general, without 
 tkfirinr the ^.xcluliun or cidmiffion of the 
 follcwers t-f any particular fedt of religion. 
 It is true, there has been a petition publilhed 
 in I nr'lane\ -^s having been tranfmitted by 
 the Engliih, in which it is ftatc.1, that there- 
 are p;ote{l,i'i!: fu jjedts enour^-i in the province 
 to c mpofe a houfcof afTembly. But this pe- 
 tition (if it is not altogether fpurious) muft 
 have been tranfmiited federal years r.go, when 
 it would h: ve bejn thought an ipfult to 
 propofe to his Majcfly to ndmit any other 
 
 than prolellants. The generality of the 
 
 Engliih nt.w in Cjnada, wh(/ can be fup- 
 pcltd tr> inteifcrc in fuch matters, are fo far 
 . from ilem.:.ridi.)g the cxclufionof the Cana- 
 dians that they lail year declare'.), and it is 
 believed, moil of them are flill of opinion, 
 that it would be far preferable for the in- 
 habitants of this province to be governed 
 under the Eiitiih mode of a Governour, Coun- 
 cil, and Gcner.d Affembly, even if they w«fc. 
 all Romaij-Catholicks, than by the moft un- 
 exceptionable Governonr and Leglflative Coun- 
 cil that caij be imagined, though they fhould 
 all be Pioiell^nts, unlefs tliey couh! be ren- 
 dered immortal ; and, rather than to truft 
 
 to 
 
 
 w 
 
[ 59 ] 
 
 to a council eligible by the governonr, or 
 even by the ving himfclf, they think it would 
 be much fafer to have the vvhde power of 
 jjovcrnment iodgecl in a 'in^le [^erfon, who 
 would alone bear the 11: me of vUjy niifcon- 
 fluit. Be arure.l, thercfc e, th-jit ihe Eng- 
 Ji^?. Jefire no exclulive privilc^^e, r^n .1 that 
 they look on '.ill kinds jf reli.^iot^s pe^iecu- 
 tion with abhorrence, and only wilh to ho 
 derdt with as they would deal wiih others. 
 It is, therefore, needlefs to revive the me- 
 mory of the fanccuinary tranfaclions of pad 
 ages on the fcore of religion, which may 
 be more juftly attributed to the depriyity 
 of human nature, than to the fundamer^- 
 tal princi^des of any fedl of the Chriltiaa 
 rclieion. 
 
 
 
 As to what is kid by the Patriot about 
 the duty on rum, diat article mufl be pafied 
 over at prefcnt, a flifcufiion of it would 
 lead into an exa. nation of the ;M*efent un- 
 hapi)y .lifFereaccs . tween the m-)i.:ier-coun- 
 try and our fifler- colonies ; a difcii-'lioii of 
 which we are both v^iy incapalde, and with 
 which the people here have hitherto no im- 
 mediate concern. It is hoped, thefe Jifputcs 
 will not proceed to extremities. But, if 
 they unhappily ld>ould, the Englifn and Ca- 
 nadians will, no doubt, ihew that attach- 
 ment to the conllitution and government of 
 Great-Britain, which the lirfl owe to their 
 
 H 2 nurivf 
 
 ^r . 
 

 [■ 60 ] 
 
 native country, the latter to their bcnefac-f 
 tors, and both to their Sovereign. As to 
 the Canadian Regiment talk'd of, if it takes 
 place, the province muft not only find the 
 men, but in time probably the money to pay 
 them alfo. 
 
 ji.' 1 
 
 -!>■ 
 
 The Canadian Patriot might pofTibly think 
 his performance unanfwerable, if no notice 
 was to be taken of it : w^hich has occafioned 
 my writing thefe remarks on it. If he chufes 
 to make any reply, avoiding illiberal reflect 
 tions, he will probably be attended to : but 
 if he perfifls in his former ftile, he needs ex-? 
 pedl no further attention from . ; 
 
 Any Lover of Truth ''* ■ 
 and gQo4 Manner^f 
 
 Indian Lbrette, • - 
 February §, 1775. 
 
 f.:ii.i.; I: 
 
 '.. i"' 
 
 * : j«n ', 
 
 ?; 
 
 A Defence 
 
 
 i J' f 
 
 ■^JL.' 
 
 ) 41 
 
 ■i t'rs*- 
 
 
[ 6, 3 
 
 A Defence of the Britifli and Pro- 
 teftant Settlers in the province of 
 Quebcck, againft the imputation 
 of endeavouring to procure a houfe 
 of affembly in that province, frora 
 which all Roman-Catholicks lliould 
 be excluded, with a view to ooprefs 
 the Canadian, or French, inhabi- 
 tants of the faid province, 
 
 Jn a Letter to the Printer of the Public Adr- 
 J ijertifer^ publilh'd June 7, 1775. 
 
 - • . ■ 
 
 SIR, 
 
 AS the Britifh and proteflant inhabitants of 
 the province of Quebeck have been often 
 reprefented by the patrons of the late Que- 
 beck ad as a turbulent handful of new fett- 
 lers in that province, who wifhed to opprefs 
 and perfecute the great body of the French 
 or Canadian inhabitants of it, and, as a means 
 of doing fo, are defirous o^ having an aiTem- 
 bly eftablifhed in the province that fhould be 
 chofen .only from among themfelves, I beg 
 you would communicate to the publick the 
 following paragraph of their laft petition to 
 ^e king for an houfe of alTembly ; in which 
 
 they 
 
 i\ 
 
 \ 
 
 \\ 
 
^lE.-'' 
 
 [ 62 ] 
 
 t!"cyr^i3*c • 's r'.<"ajeuy of their renJine^. to 
 acce^.L o* w i.ouJs oi* alll'irtbly oi' fuch (orn\ 
 apri c 'r^'trii'^1 as Ijis .Miijcfly in bis royui 
 wLJoiii .-j.'.ll cl''i:k lie to eluibMlli,. * 
 
 ^* You* MrjcHy's pcfificner? btlnj- fully 
 ♦* convi :cc. % f:jm tiicir relLlcnce in tbe ;to-? 
 ** vincc, "n.^ ih-ir e::ptrletice in llic afiairg 
 ** of it, tlr.r. 1 ''-ei^ciiil ficml^ly woulf^ very 
 •* nrjch C''n::ri!>uw 'P ti^courage anci jiro- 
 " nvtc iu 'u(hy, a^-'icuUurv. an<! coinmcrce, 
 r.-T^ (''.s they hv]^"'j) Vj cicntj '^ai: lony i ncl 
 'i^^.:y\ umlciVin' -i ic: betv/ccn v.uir i^'I."';e{ly's 
 new r.n^. ul-^ fuljc.ls, .-.v ' l!,v.>v'^ly rup,ili-. 
 *' catc vour MHfily t ; tv- ^ the ./rernifies 
 into your n ;"i c nfi'cration, ana to ('irc£t 
 vour M^jwlly's f/c.er r, Cy.r comniyn'ler 
 in chief, U c Jl . gnucnJ iljcmbly, in fu,ch a. 
 mm jr ..nd 'ffud innjti.uiijn and jorm as io 
 yci'.)' M^iefly in ynur j-'v^i 'wildum Jhull feem 
 be. ^Aapied lo icure its peace, welljare and 
 ** ^ood g()vcrnn::m. - - , 
 
 ^* An(^. your petitioners, fis in duty bound, 
 " iliall ever pray, i5cc." ^ , 
 
 Dated P.lontreal, Jan. 10, 1774. . . . ,• , 
 
 
 <( 
 CC 
 «C 
 CC 
 
 Thefe words were intended to obvidte ?s\y 
 objedtion that might be made to the efl.i'.lirti- 
 ment of a houfe of affembly in the j^.rovince 
 of Quebeck^ from the feciping hardlhip of ex-^ 
 
 cludin 
 
 
t 63 ] 
 
 cluilinr^ frdm it the Roman-Cntholick inli^.'>i- 
 trnts c r the j)rovincc, who wee fo ivuch inofo 
 numch us than the protLAants. ft is true, in- 
 <^ccd., that the Uritilh and p^oteftant inhabi- 
 tants of tiial. province had formerly entertained 
 hopes of licino; governed by an alFcmbly, 
 co)infiin}; of ; rotellant merchants only, as the 
 people of r^^'aryland have ever been, notvvith- 
 ftanding the majority of them have always 
 been, and llill are, Roman-Catholicks. And 
 their rcafons for entertaining this hope had 
 Iieen %y no means triding ; for, in the firfl 
 place, they imagined that the wifdom and ge- 
 neral policy of the Critiln government would 
 never commit the publick authority of the 
 province to the hands of perfons who re- 
 fufe'! to abjure the foreign jurifdidion of the 
 bilhop of Rome, let their numbers be what 
 they would ; and efpecially when thofe per- 
 fons had been lately in arms a;i:ainfl: the 
 Crown, and un !er the allegiance of ihe French 
 king, who may be confide red as the na- 
 tural rival and enejny of the Crown of thefe 
 kingdoms. And, in the fecond place, they 
 ol'ierved that his Majeily, in both his com^ 
 millions of Governcur in chief of the pro- 
 vince to General I^'iurray and General Carle- 
 ton, had given dLreO:tions that the fevcral 
 mem!>ers, both of the council and afTembly 
 of the province, fliouL:, before they , Were' 
 permitted to fii and \oie in th.ofe capacities, 
 take the oath of abjui-ation of the Pope's air^ ' 
 • thoritjf 
 
 :| . 
 
 
t 64 ] 
 
 tJiority (which is commonly called the oath 
 of Supremacy) and the declaration againfl 
 tranfubflantiation, as well as the oath of al- 
 legiance, and the oath againfl the Pretender's 
 
 title to the crown. 
 
 «■ ' . 
 
 Upon thefe grounds they have conceived the 
 fupremacy of the crown to be a matter of fuch 
 fundamental importance in the Britifli govern- 
 ment, that the oath enjoined for its lecurity 
 ought never to be difpenfed with in any of the 
 dominions of the crown, with refpedt to per- 
 fons who were to be in veiled with publick au- 
 thority } yet they had expeded that the Ro* 
 man-Catholick inhabitants of the province 
 would have been permitted to vote at the elec-^ 
 tions of members of the aflembly, though not 
 to be eleded into it themfelves ; and this they 
 knew would give them a great influence in the 
 aflembly, by means of the members they 
 ihould fo cledl. For as the protellants in the 
 province are no lefs than three thoufand, and 
 many, or mofl of them, are adive, clever 
 people, much more capable of doing the du- 
 ty of aflembly-men than the French or Ro- 
 man-Catholick inhabitants of the province, 
 it would be eafy for the eledors, out of fo 
 great a number of qualified perfons, to choofc 
 fuch members as would be agreeable to them 
 and attentive to their wiflies and interefls. 
 But when the Britifh and proteflant inhabi- 
 tants of the province came to hear that this great 
 
 funda- 
 
 func 
 
 ackn 
 
 Cro\ 
 
 ofG 
 
 ad 111 i 
 
 ^ivci 
 
 be cj 
 
 Rom 
 
 with 
 
 acqui 
 
 not h 
 
 ihnal 
 
 lo\v-fi 
 
 from 
 
 grouHf 
 
 adhere 
 
 wliicii 
 
 to de]) 
 
 ddly 
 
 to dec] 
 
 quiefc( 
 
 withou 
 
 as his 
 
 tliink 
 
 accordi 
 
 in Janu 
 
 in vvhic 
 
 which, 
 
 pe^t on( 
 
 above n 
 
 tion to 
 
 fulncfs 
 
[ 65 ] 
 
 fundamental principle of governnicnt, the 
 ackiiowlcd^.';cinent of the fiipretnacy of the 
 Crown, hid been difpenfed with in the illand 
 of Granada, and Roman-CathoHcks had been 
 admitted into the affemhly there, and were 
 given to underdand that, if an afleinbly ihould 
 be called in the province of Quebeck, the 
 Roinan-Catholicks would there alfo be treated 
 with the like indulgence ; they rcfolved to 
 acquiefce in a mcaUire which they could 
 not have advifed ; and as they had no per- 
 fonal averfion to their Roman-Catholick fel- 
 low- fubjeds, nor any defire of excluding them 
 fro:ii the alfcnibly but upon thofc general 
 grounds of policy, which had formerly been 
 adhered to by the Britifli government, but 
 which it had been thought expedient of lijte 
 to depart from, they refolved, with the mo- 
 dcfty becoming loyal and obedient fubje*its, 
 to declare before-hand their readinefs to ac- 
 quiefce in the new fyftem, and to accept, 
 without complaining, of fuch an allembly 
 as his Majeily in his royal wifdoni lliould 
 think fit to ertablidi in the province. They 
 accordingly drew up a petition to his Majefly 
 in January j 774, to grant them an alTembly, 
 in which, after fetting forth the grounds upon 
 which, they thought, they had reafon to ex- 
 pert one, they concluded with the pj^ragrapli 
 above recited, which exprefied then- dilpofi- 
 tion to acquiefce in, and accept with chenr- 
 fulnefs an aifembly of fuch form and c>jnfii- 
 
 I nation 
 
 f 
 
 1 
 
 
 i 
 
>'iJ:,l 
 
 tl 
 
 I 
 
 :H.':t 
 
 ¥$: 
 
 i'l?. 
 
 
 ■ii';> 
 
 [ 66 ] 
 
 tution as his Majefly in his royal wifdom 
 iliould think fit to grant them. ; . 
 
 , This petition was figned by 148 perfons, 
 and was dcUvercd to Lord Dartmouth in March 
 1 774, two months before the late Quebeck 
 Bill was brought into parliament. And about 
 the fame time, that is, about February or 
 March 1774 a certain French petition was 
 prefented to his Majefty, which was ligned 
 by only 65 perfons, Ibme of whom were un- 
 der age, and one of them, young Mr. St. Ours, 
 a boy of only thirteen years of age -, yet this 
 petition has been confidered as exprefling the 
 wifhes of the whole body of the Canadian 
 inhabitants of the province, and has been 
 made the ground-work of the late extraordi- 
 nary ad of parliament. 
 
 Mr. Printer, I have thought it the more 
 neceffary to infert the foregoing paragraph of 
 the Petition of the Britilh and Proteftant fett- 
 lers in the province, becaufe I find it has been 
 afierted in a pubUck Vindication of the late 
 Quebeck adt, that they were defirous of op- 
 preifing their Canadian fellow-fubjeds, and 
 as a means of accomplifliing their purpofe, 
 had petitioned for an affembly confiding of 
 Proteilants only. The author of a ilaufible 
 trad:, publiilicd lafl fummer, and intitled, 
 ** The Juftice and Policy of the late Adt of 
 ** Parliament for Quebeck aiTerted and prov- 
 
 '' ed, 
 
t 67 ] 
 
 »* ed," has, amongfl other very great mlflakes 
 upon this fubjedl, the following palllige in his 
 27th page : ^* And thefe perfous (fpcaking of 
 the Britidi and protedant inhabitants of the 
 province) finding there were no means by 
 which they could opprefs the new fubjefts, 
 or feize upon the powers of government, but 
 by obtaining a proteftant afT'^mbly to be 
 called, of which they only could be mem- 
 bers, have laboured that point by repeated 
 petitions to his Majefty and reprelentations to 
 the governour." And, as a proof of the 
 truth of this aflertion, he give's his readers, in 
 his appendix, a copy of a petition from the 
 Britiih inhabitants of the province, in which 
 they reprefent to his Majelly, ** that there 
 is now a fufficicnt number of his Majelly's 
 proteflant fubjedis refiding in, and polfefTed 
 of real property in, the province, and who 
 are otherwife qualiried to be members of a 
 general allembly, and then conclude, by de- 
 liring him to give direcl:ion to his governour 
 to call a general ailembly in the faid province, 
 to meet at the city of Qliebeck, in fuch man- 
 ner as is ufed in thole provinces in America 
 which are under his Majeily's immediate go- 
 vernment." Now this is a part of a petition 
 from the Britifh inhabitants of this province, 
 which was prelented fome years ago ; I have 
 been told in the year 17705 but is no part 
 of the lad petition for an aflembly, which . 
 was prefented in March 1774, two months 
 
 ' I 2 bcibre 
 
 
 i, 
 
 r.) 
 
h i 
 
 t 68 ] 
 
 before the bringing in of the late Quebeck 
 Bill into parliament, and therefore it ought 
 not to have been alledged by the anchor of 
 that pamphlet in juflification of that adt. But 
 that author has thought fit to be entirely 
 filent, both in the body of his pamphlet, and 
 in his appendix, as to that laft petition of the 
 laid inhabitants which was delivered in March 
 1774. He befl knows his reafons for this 
 iilence : But it is fit, in juflice to the faid 
 Britilh inhabitants, that the publick fhould 
 be let right upon this fubjcdt. '"..'"' 
 
 As to the difpofition to opprefs and perfe-» 
 cute the Canadians, which this writer im- 
 putes to the Britifh inhabitants of the pro- 
 vince, I will venture to fay that there is not 
 the leafi: ground for fuch a charge. They 
 have always wifhed to live in the utmoft har- 
 mony with his Majefty's new fubjeclls iii the 
 province,and to fee them partake with themfelves 
 in the Liberty and Security, which the Laws of 
 England, till the late Adl, afforded them all in. 
 common ; and they would have been happy 
 to fee them gradually abandon the tenets of 
 the Romifh Religion, and that adherence to 
 a foreign jurifdidion, which had been till 
 lately fuppofed to be a juft ground for ex- 
 cluding the perfons who hold them fron\ 
 power (though not from liberty and fecurity) 
 in Canada as well as England, and thereby 
 become capable of partaking with themfelves 
 
 in 
 
i 69 J 
 
 in the exerclfe of the government of the coun-* 
 try. And we have now feen, by the para- 
 graph above recited from their petition, that, 
 when they were informed of the change in 
 the general policy of the Briti'h govcriimw^nt, 
 v/ith refpe(^l to the cxclufion of iloman-Ca- 
 tholicks from places of trull: and power, they 
 fubmitted their own fentiments to thofe of 
 their fuperiours, and declared their willing- 
 nefs to acquiefce in the eilabliflnnent of a. 
 General Airembly, into which the Roman- 
 Catholicks iliould be admitted. 
 
 i 
 
 •i-.. 
 
 About the beginning of December lafl 
 177^, a gentleman of Quebeck, of exceeding 
 good fenle, and who is well acquainted with 
 that province, (which has been his uliial place 
 of relidence ever fince the year 1768,) re-- 
 lated to me fome very extraordinary fafis, 
 concerning the dillatisfadion of the great 
 body of the freeholders of Canada, at the 
 late Quebeck- adl, on account of the general 
 revival of the French laws of the province 
 itv all civil matters, which i.s contained in it, 
 and which, in their apprehenfion, includes a 
 revival of the powers of Government, that 
 were formerly exercifcd over them by their 
 NoblefTe and the officers of the crown, during 
 the fubjedion of the province to the French 
 king 3 of which powers they have a great 
 
 dreai 
 
 
 
 .\\ 
 
dread and abhorrence. They have been mot'6 
 particularly alarmed at fome endeavours which 
 have been made by fome of the Seigniors, 
 or Lords of manors, in the province to call 
 out their tenants to attend them, as foldiers, 
 to oppofe the American army under General 
 Montgomery, under pretence of a right to 
 command their military fervice on fuch cc- 
 cafions, by virtue of their tenures of their 
 lands. Thefe attempts of the feigniors have 
 fo difgufted the peafants of the feigniories 
 in w^hich they have been made, that they 
 have broke out into a(5ts of open violence 
 to rclifl them. Of thefe tumultuous pro- 
 ceedings of the peafants, the gentleman above 
 alluded to, gave me three remarkable in- 
 ilances, of v^^hich I fhall now proceed to 
 infert the following narrative, which was 
 drawn up by that gentleman himfelf, at my 
 defire, as 1 did not care to venture to re- 
 late them myfelf from the verbal accounts 
 which he had given me of them, for fear 
 of making fome material miftake. 
 
 1,1 
 
 A 
 
[71 ] 
 
 A Narrative of the tumultuous con- 
 dudl of the freeholders of divers 
 
 ' fcigniories in the province of Que- 
 beck in the fummer of the year 
 1775, in oppcfition to the endea- 
 vours ufed by their Seigniors to call 
 them out to take arms againft the 
 American army, that had invaded 
 the province : Shewing their aver, 
 fion to being commanded by their 
 Seigniors, and the little influence their 
 Seigniors, and the other Nobleffe of 
 Canada, have over them. 
 
 (Written by a Gentleman very lately 
 arrived from Quebeck.) 
 
 (■ : 
 
 f 
 
 t'. 
 
 AN opinion prevails in the Province of 
 Quebeck, (whether juft or not, I will 
 not pretend to determine) that the Seigniors 
 owe military iervice to their Sovereign, by 
 the tenure of their lands ; and that in the 
 adls oi (lot et Homage^ or) fealty and homage, 
 they promife to perform the fame to the 
 Crown, when called upon : And that, by 
 th;i fan:ie a:t, they alfo engage for the perfo- 
 nal fervice of all their vallals, and other te- 
 nants. 
 
L- 
 
 [ 72 ] 
 
 jiants, who hold their lands from them, 
 either par joi ef horrid ge. or far ecus et rente, 
 or (as it is often exprelTed) en Rotiire, It ia- 
 univerfally bc^licved, that the Seigniors have 
 by the ciiflonis of Canada, (which are re- 
 vived by the late Quebeck acl) a legal right, 
 to command the perfonal fervice of all the 
 holders of land under them, whenever the 
 Sovereign, or his Reprefentative, calls upon 
 then^, (the feigniors) for that purpofc : And 
 Government has thrown out hints, that 
 thofc inhabitants, who refufcd to obey their 
 feigniors lall Sununer, when called upon to 
 oppofe the provincials, have, by fuch refu-r 
 fal, forfeited vW the title to their lands, which 
 ought, on that account, to revert to the 
 feigniors : And that, as foon as things (liall 
 be fettled in the province, fuits of lav/ fliould 
 be inflitutcd, in the Courts of Juiiice, to dif-. 
 pofiefs them. The inhabitants themfelves 
 acquiefce in the truth of ^^s doctrine ; but 
 they are determined to hold pblftiTion of their 
 lands by force. 
 
 Mr. La Corne, a young man of about 
 twenty-two years of age, and nephew to Mr. 
 La Corne de Saint Luc, was fent by General 
 Carleton to raife the inhabitants of Terrebonne, 
 ;i village of which he (the younger Mr. La 
 Corne) is Seignior. Lie addrefled them in a 
 \ery high tone, mentioning the above right, 
 ^vhich he had, by the tenure of their lands, 
 
 Xo 
 
 ■V;" 
 
r 73 1 
 
 to command their military fervicc. They 
 anfwered, " that they were now becoaic 
 " fubje(fls of England, and did not look on 
 <* themfclves as Frenchmen in any refpect 
 ** whatever." Mr. La Corne w.is imprudent 
 enough to ftrike fome of thofe who f; oke 
 loudeft. This provoked the people to fuch 
 a degree, that Mr. La Corne found it ne- 
 cefTary to get away from them, and go back 
 immediately to Montreal, but threatcn'd to 
 return fpeedily amongft: them with a party of 
 two hundred foldiers, who would make them 
 dearly pay for their refufal to obey him. 
 The people, hearing this, forthwith armed 
 themfelves, fome with guns, others with 
 clubs; and they all refolved to die rather than 
 fubmit to be commanded by their feignior. 
 General Carleton, hearing of the diflui bance 
 that Mr. La Corne's behaviour had occaiioncd, 
 inflead of complying with his deOre of fend- 
 ing troops to enforce obedience to his autho- 
 rity, thought it advifeable, to fend with him 
 an Englifh officer of merit, Capt.. Hamiiton, 
 (late of the 15th Regiment, and now Lieute- 
 nant Governour of Detroit,) to pacify the 
 people. Capt. Hamilton afked them, what 
 they meant by aflembling in that riotous, dif- 
 orderly manner ? They anfwered, that their 
 intentions were to defend themfelves from the 
 foldiers, with whom they were threatejied 
 by Mr. La Corne, their feignior. " if Ge- 
 ** neral Carleton (faid they) requires our fer- 
 
 K »« vices. 
 
 V. 
 
 
 ^ . ^ 
 
 
 i 
 
 \\ 
 
 1.: 
 
 i 
 
[ 74 ] 
 
 •^ 5:1 
 
 tt 
 
 vices, let him give us Englifhmen to com-' 
 " mand us : fuch a man as you, for in- 
 ** fiance, we would follow to the world's 
 ** end." But, replied Mr. Hamilton, Eng- 
 lifh military gentlemen are not to be found 
 in fufficient numbers, in the province, to 
 take the command of you. " Then, faid 
 they, " give us common foldiers to lead us, 
 ** rather than thofe people. For we will not 
 ** be commanded by ce petit gars, that is, 
 (litterally, by that little boy, but, in their 
 fenfe of it,) by that infignifant, raw, young 
 man." At laft, upon Capt. Hamilton's pro- 
 mife, that their feignior (hould come no 
 more among them, they difperfed. Whe- 
 ther or not thofe people would have kept 
 their word, and followed Englifh Leaders, 
 is uncertain, becaufe General Carleton has 
 never thought proper to make the experi- 
 ment.^^ 
 
 This behaviour of thofe peoj>le is the more 
 remarkable, becaufe Mr. La Corne is a very 
 pretty young man in his perfon and ap^ 
 pearance, and not defpicable in point of un- 
 derftanding, and not lefs than three and twen- 
 ty years old ; fo that nothing; but his quality 
 of feignior, and the odious powers which they 
 fuppole to be connedled vith that character, 
 can have rendered him difagreeable to the 
 people. 
 
 Mr. 
 
' [ 75 ] 
 
 Mr. Defchambaud the fon, (an officer at 
 this lime in the fervice and pay of the king 
 of France, who is abfent from his regiment 
 upon leave,) went over to a feigniory be- 
 longing to his father, lituated on the river 
 Ricnlieu, and began to harangue the inhabi- 
 tants of the feigniory, much in the fame 
 ftile that Mr. La Corne had ufed at Terre- 
 bonne. Like confequences enfued. The people 
 were exafperated at his treatment of them. 
 They replied with fliarpnef<5. He drew his 
 fword : they furrounded him, and beat him 
 feverely. He returned to Montreal, and 
 complained of them to General Carleton. 
 The next day Mr, Defchambaud, the father, 
 went over and told the people, that the go- 
 vernour was highly difplealed at the treat- 
 ment his fon had received from them : But 
 that all would be forgiven, if they would 
 repair to Montreal and afk his (young Def- 
 chambaud's) pardon ', otherwife they might 
 cxpedt to be feverely punifhed for their be- 
 haviour. 
 
 This fpeeph ferved only to provoke them 
 ftill more : they armed themfelves imme- 
 diately, went to the traders on the river 
 Richlieu, and purchafed all the ammunition 
 they had in their flores, paying fo great a 
 price as iiv& (hillings a pound for powder, 
 which is ufually fold for Icfc than a third 
 part of that fum. They aflembled to the num- 
 
 K 2 bcr 
 
 i 
 
[ 76 1 
 
 ber of near three thoufand at Fort Chambly ; 
 and began to march towards fort St. John's, 
 to face the two regiments of regulars, that 
 Wen. in garrifon there -, that being the force, 
 which, they imagined. General Carlcton would 
 employ ngainft: them. But he, upon notice 
 of their proceedings, fent an Englifh officer 
 to difavow the melTage delivered them by 
 Mr. Defchambaud, the father, and to ac- 
 quaint them, that all would be well, if 
 they would difperfe, anu retire, each to 
 his home. This was immediately comply- 
 cd with, 
 
 Mr. Cuthbert, an Englifh gentleman, who 
 is proprietor of an extenfive and valuable 
 feigniory, called Berthier, fummoned the in- 
 habitants on his feigniory to aflemble at his 
 houfe. They fent him for anfwer, that, if 
 he had any thing to communicate, he might 
 come to them : and they accordingly affem- 
 bled at a place where three roads meet, an4 
 where there is a crofs ereded. Mr. Cuthbert 
 came thither to them, and made a perempto- 
 ry demand of their fervices on the French, 
 fyftem, as being their feignior. They told 
 him, if that was his bufmefs with them, 
 he had beft retire to his own home, and 
 trouble them no more ; for that not a man 
 of them would follow him And as foon 
 as he was gone, they all made oath on the 
 crofs, round which they were aflembled, that 
 
 they 
 
[ 17 1 
 
 they never would take arms againft the provin- 
 cials : That, if one among them offered to 
 
 join government, they would diredly burn his 
 houfe and his barn, and deftroy his cattle : — 
 And that, if General Carleton fliould attempt 
 to compel them into the fervice, they would 
 repel force by force. And, having thus fworn, 
 they went home. This happened in the lat- 
 ter end of July, or the beginning of Auguft. 
 Afterwards, (I think) about the end of Sep- 
 tember, Mr. Lknaudiere, the f©n, (who is 
 owner of a feigniory at another place, called 
 ^aint Anne^sJ came to them from Montreal, 
 and faid, that he was employed by General 
 Carleton to lead them againft the provincials ; 
 that he was going at that time to his eftate 
 at St. Anne's, but fhould return to Berthier 
 in a few days, when he expefted that they 
 (hould be prepared to follow him ; otherwife, 
 he alTured them, that their lands and houfes 
 (hould be burnt and laid wafte. He accor- 
 dingly did return to Berthier fome days after; 
 and, on entering the limits of the parifh,he,and 
 Mr. Tonnancour, the fon, with fixteen others, 
 their attendants, were furrounded and made 
 prifoners by the inhabitants. Warm debates 
 cnfued amongft them, whether or not they 
 (hould fend Mr. Lanaudiere to the provincial 
 camp near St. John's. It was, at length, 
 agreed to fet him and his friends at liberty, 
 on his promife to obtain for them General 
 Carl^ton's pardon for this outrage, and on his 
 
 further 
 
;i!; 
 
 •i:»' 
 
 
 ) 
 
 [ 78 ] 
 
 further promifc, never to come again amongit 
 them on the Hke errand. 
 
 Violent as the proceedings of thefe people 
 may appear, and averfe as they may feem to 
 the fervice required of them ; they have, not- 
 witftanding, often declared, to Mr. Charles 
 Gordon, a young man of knowledge and ex- 
 cellent character, from whom I had this in- 
 telligence, and who has refided two years in 
 that parifh j they have, I fay, declared to him, 
 that, if General Carleton would promife, (by 
 affixing a writing, to that purpofe, to the 
 church-door,) that he would ufe his intereft 
 and endeavours for the repeal of the Que- 
 beck Bill, and for reftoring to them thofc 
 privileges of which they were deprived by 
 its operation ; in that cafe, the inhabitants 
 of that diflridt (who are very numerous.) de- 
 clared themfelves ready, to defend the pro- 
 vince for Government. ** But (fay they) 
 as things are now circumftanced, what have 
 we to fight for ? We have enjoyed very va- 
 luable privileges, fince we became fubjedts 
 of Great Britain : We had the Royal Pro- 
 '* mife for the continuance of that enjoy- 
 ** ment. On a fudden, without our having 
 done any thing to merit fuch treatment, 
 we are deprived of thofe ineftimable pri- 
 vileges, and reduced to our former flate of 
 flavery. The people, whom we are de- 
 fired to regard as enemies, tell us, they are 
 
 ** our 
 
 <( 
 
 .(( 
 
 iS 
 
 4( 
 
 (( 
 
 €€ 
 
 «< 
 
 C( 
 
 <( 
 
 iVi> ■ 
 
 M 
 
I ■ 
 
 If 
 
 (( 
 
 « 
 
 I 79 ] 
 
 *• our real friends ; and they give us con- 
 " vincing proofs of their fincerity. They 
 " are now in arms for our defence from 
 " our opprefTors ; and they make the repeal of 
 ** the Quebeck Bill one of the conditions 
 ** on which they offer to lay them down* 
 " Which party then ought we to afTift ? Cer- 
 " tainly that one, which is fighting for the 
 reftoration of that liberty to us, of which 
 we have been wantonly and moft cruelly 
 deprived by the other." And this is not 
 the language of the inhabitants of that diftridt 
 only : the fame is in the mouths of the moft: 
 ignorant peafants all over the province. 
 
 There are in Montreal many Englifh 
 Gentlemen of experience in military affairs, 
 who offered their fervices to Governour Car- 
 leton, and would have been glad of being 
 employed to head the Canadians. But their 
 offers were not accepted \ while Mr. de Rigou- 
 ville, a French Gentleman, whofe talents 
 cither for the Cabinet or the Field are not in 
 the highefl reputation, was invefted with a 
 command. The confequence was, that hi$ 
 party all ran away, and he himfelf was fur- 
 prifed in his bed, and taken prifoner. Major 
 Cox, an Englilh Officer of eminence, and 
 Lieutenant Governor of Gafpe, offered to go 
 to St. John's, with 25 men, which he had 
 raifed at Beaufort : but he was told, (as Moa- 
 iitur le Brun had been on his making a fi- 
 
 milar 
 
 r\ . 
 
 4 
 
 t * 
 
 *' , 
 
 I? ■ 
 
 I 
 
 ■ i f 'j 
 
I-' " 
 
 1^ 
 
 [ 80 J 
 
 milar offer of his ferviccs) de refier tranquil char, 
 lui ; to ftay quietly at home and not meddle 
 in the bufmefs. The Englifh inhabitants of 
 the province, though they felt for their treat- 
 ment from Adminiftradon, and from General 
 Carleton, yet did not think, that trpa^rrent 
 could jultify their countenancing, in any de- 
 gree, thofe who were in arms againft t'leir 
 Sovereign. Accordingly they have been very 
 active in the defence of the province -, .nd 
 thofe few Canadians, who have taken pjrt 
 with Government, have been influenced en- 
 tirely by their perfuafion and example. 
 
 It is true, that Mr. Thomas Walksi , and 
 one or two others, are not of the number of 
 thofe who have laboured to raife the Cana-t 
 dians for government. But it is evident, that 
 the cauie of their behaviour could not be a 
 Gonvidtion of the juftice of the American 
 dodrine of exemption from taxation by the 
 Britilh legiflature ; becaufe Mr. Walker and 
 the other fufpedted perfons were members of 
 that committee whicn drew up the petitions, 
 which were prefented to the different branches 
 of the legiflature laft Sp-ing againft the Que- 
 beck Bill. The ilile of thofe petitions, if 
 not the adt of petitioning itfelf, is, furely, an 
 acknowledgement of the fupremacy of parlia- 
 ment. And befides, no mention is made in 
 them of the adts which impofe duties on 
 fpirituous liquors imported into theprovincej 
 
 nor 
 
t 8i ] 
 
 r.or has h ever been confidered as a hard/liip 
 h\ thoie gentlemen, nor by any other perfons in 
 tiie province that evtr I have heard of. On the 
 contrary, thole duties have been regarded as 
 v;^ry moderate and judicious, and tending 
 much to the advantage of the colony. Nay, 
 fo far were they from entertaining any idea, 
 tliat derogated from the fupremacy of parlia- 
 rnciit, that they much feared, that the Bri- 
 tifh legiflature w^ould delegate the power of 
 tixatijn to the legifl.itive council of the pro- 
 vince ; and they were very happy to lind 
 that they had retained that power in their 
 own hands. 
 
 The conduvfl of tliofe gentlemen, then, is 
 to be accounted for in fome other manner. 
 
 Though they difapprove of the Americm 
 principle of independency, they are "afraid of 
 the confequences that may attend their being 
 fubdued by force. They acknowledge tht 
 Americans to be in the wrong ; but they 
 cannot think adminiftration altogether in (he 
 right ; and, having no confidence in the Mi- 
 niftry, they do not look for a redrefs of the^ 
 grievances of their own province, but through 
 the flrength of the other colonies. For this 
 reafon they may, perhaps, wi(h fuccefs to 
 thofe, whofe conduit they cannot quite ap- 
 prove of. — It is impoflible, that they cou'd 
 aerive benefit in any other manner, by the 
 
 L province 
 
[ 82 ] 
 
 province falling into the hands of the pro- 
 vincials ; on the contrary, as they are people 
 in trade, it would be extreamly prejudicial 
 to their interefts. 
 
 However, the conduct of thofe very few 
 perfons ought not to aifed; the majority of 
 the Englifh inhabitants of the province, who 
 have, on this occafion, defer ved well of go- 
 vernment, and in juftice to whom, (was there 
 no other confideration) the iniquitous Que- 
 beck Bill ought to be repealed. For, I 
 will fuppofe for a nioment, (though it is the 
 reverfe of the truth,) that all the Canadian 
 inhabitants have been, fo blind to their true 
 interefts and deareft rights, as to afk the 
 miniftry for the laws eftablifhed by that 
 Bill : And, that the miniftry, to humour 
 their foolifti prejudices, have departed from 
 the wife maxims of the founders of our con- 
 ftitution, and from the fpirit thereof ; and 
 have fhamefully broke the Royal Promife, fo- 
 lemnly pledged to the Britifti inhabitants re- 
 forting to the province. In that cafe, the 
 Canadians have, by their prefent inadivity, 
 behaved with the bafeft ingratitude to their 
 Benefactors, and have ftiown themfelves ill- 
 deferving of fuch extravagant indulgence. 
 
 
 
 The 
 
I 83 ] 
 
 The fulleft account, that I have Teen of 
 the late imprifonment of Mr. Thomas Walker, 
 of Montreal, upon a fufpicion of his having 
 favoured the provincials under General Mont- 
 gomery, who have invaded Canada, is con- 
 tained in the following extradt of a letter 
 from Quebeck, dated on the 25th day of laft 
 Odober, 1775, which was written by a gentle- 
 man of good fenfe and veracity. 
 
 An account of the late arreft of Mr. 
 Thomas Walker, of Montreal, by 
 ^ party of foldicrs, by order of 
 Governour Carleton. 
 
 Quebeck, 061. 25, 1775. 
 
 t Forgot to tell you in my laft letter, that, 
 "*• amongft the many groundlefs reports, 
 which > were daily fpread about in the pro- 
 vince during the laft fpring and fummer, there 
 have been feveral relating to Mr. Walker, of 
 Montreal. His former enemies were not idle 
 on thefe occafions, and all the friends of the 
 Quebeck Bill were fo much exafperated againfl 
 him for his truly fpirited conduct on the 
 committee that drew up the petitions to Par- 
 liament againft it, which were fent over to 
 England laft December, that they began fo 
 
 h 2 early 
 
L 84 ]■ 
 
 early as in March laic to plan his ruin. Whei.i 
 the congrefs fent their lirfl addreis to the 
 Canadians, a Mr. Culhions, (:\n old and par- 
 ti.cular acquaintance of Mr. Walker's, when 
 he rclidcd at Bofton) lent him a packet of 
 them, printed in French, to diihuhutc. Mr. 
 Walker made no fecret of his having received 
 this packer, as \vc had long before received 
 that addrefs in the News-papers, and tranf- 
 lated copies of it had been handed about the 
 country by the French themfelves. How- 
 ever, Rouville and Cugnet took occafion from 
 it to tell the Governour in oublick at his table, 
 that Mr. Walker correfponded with the con- 
 grefs : And when that Ihameful infult, of 
 which I have formerly fent you an account, 
 was offered to his Majefty's marble BuH: at 
 Montreal, on the day on which the Quebeck 
 a6l took place, mention was again made of 
 Mr. Walker by his enemies, as having a 
 concern in that odious bufinefs. But fortu- 
 nately (if I can with propriety fay fo) for him 
 in that matter, he was at that time, and had 
 been for iome days before, very ill with the 
 rheumatifm, under the care of Dr. Beaumont. 
 One day Rouville got into a difpute with 
 him and others, in the market in Montreal, 
 "What the difpute began upon, it is not ma- 
 terial to enquire ; but Rouville would fupport 
 this pofition,. ^e k roi eft maitre, that is, 
 that the King is mailer, or that his will inu/l 
 silways be complied with. Mr, Walker faid 
 
 very 
 
 
 " I 
 
[ % ] 
 
 very coolly, ** That, with regard to Mohfieiir 
 de Rouville, it might be fo, as he eat of his 
 Majefty's bread ; but, faid he, I deny that 
 the King is my mafter. I refpect him as my 
 lawfui Sovereign and King, and am ready tu 
 pay due obedience to his lawful commands ; 
 but 1 cannot acknowledge him for my mafter 
 while I live by my own induilry. When I 
 receive pay from him, I will acknowledge 
 him for my Mafter." Rouville immediately 
 wrote to the Govcrnour an account of this 
 converfition, and added, that he had made 
 no reply to Mr. Walker : and in a few days 
 he received an anivver from the Goveniour, 
 which he fhewcd to fevcral peribns at Mont- 
 real, in which ^he Governour cor.imends his 
 prudence, and promifes not to forget him. 
 And accordingly he was foon afvcr njmed for 
 one of the Judges of Montreal, to the great 
 furprize and altonifhment of all the Fiench 
 inhabitants, who had conceived an ill opi- 
 nion and a flrong diflike of ! im from his 
 behaviour in the office of a Judge, of ibmt; 
 kind or other, many years ago in the time of 
 the French government. This Mr. Rouv lie 
 is remarkable for taking every opportunity 
 (as he fpeaks a little fcngli(h) to th .w him- 
 felf in the way of the Engliih inhabitants of 
 Montreal, in order to pick up what tales he 
 can, to fend them to the Governour : And 
 this has been fo well known to be his prac- 
 tice that many perfons have arraufed thcm- 
 
 f fclvcs 
 
[ 86 ] 
 
 fclves by leading him into miftakes, by open- 
 ing their letters in his prefence at the Poft- 
 Office, (where he was always fure to be,) 
 and, mentioning things as if they read them 
 in the letters, of which not a word was 
 faid in them, and which were totally without 
 foundation. And it was while Mr. Rouville 
 was thus upon the hunt for private anecdotes 
 amongll the Englifh inhabitants of Montreal, 
 that Mr. Walker fell into the above difpute 
 with him. This difpute, together with ma- 
 ny invedives from fome of the military 
 gentlemen, who were particularly fevere, and 
 gave themfelves many airs, ftyling the mem- 
 bers of our committee, that prepared the 
 petitions to Parliament, rebels, and conflruing 
 our diflike of the Quebeck Bill into a fpirit 
 of oppofition to government, and declaring, 
 that they hoped every moment to receive or- 
 ders to take us up ; I fay, the converfations 
 of this kind, which were frequently heard, 
 (though chiefly indeed among the young and 
 inconSderate,) yet had fo ugly an appearance, 
 and fo bad a tendency, that they determined 
 Mr. Walker, in the month of May, to go 
 to his country-houfe at AfTumption to the 
 pot-a(h works which he had eredted there, 
 and amufe himfelf with thofe, and with his 
 farm, merely for the fake of being out of the 
 way of fuch converfations, and out of the 
 reach of the calumny of his enemies. But 
 all would not do ; for it would be impoiTiblc 
 
 in 
 
 fit 
 
t 87 ] 
 
 in the fpace of a letter to relate the many 
 artful reports that have been fpread to fet his 
 fellow-citizens againft him, that he might 
 with the greater eafe be made a facrifice to 
 their refentment. One time it was reported, 
 that packets of letters to him and others had 
 bet > intercepted, which were anfwers to let- 
 ters wrote by him ; at another, that letters 
 from him had been taken j then that two Ca- 
 nadians werv°: taken up and in prifon, who 
 had brought letters for him from the South- 
 ward ; then that he had been over the river 
 with the provincials. Once it v/as afferted 
 here, that he and two other perfons were 
 taken up and imprifoned, and that three more 
 perfons at Quebeck were foon to be fo ; then 
 it was faid, that he had quitted the province, 
 and afterwards that he was fortifying himfelf. 
 Mr. John Bondfield, having bufmefs up the 
 country, called on him at AiTumption, and 
 mentioned thefe reports, and that we had 
 publickly contradi(5led them at Quebeck. It 
 was the firft time he had heard of them ; for 
 he had not been eafier or quieter for a long 
 wh'le, as he faw nobody but his own people, 
 and amufed himfelf on his farm, and with 
 reading. But as things grew worfe and worfe, 
 and our military preparations went on with 
 vigour, (fo that thofe, who did not carry fire 
 and fword in words and adions, were fufpecied 
 of favouring the provincials,) nothing was 
 talked of but parties of men to take up peo- 
 ple; 
 
ill! 
 
 t 88 J 
 
 pie ; and on thefe occafions Mr. Walkcr*s 
 name was always uppermofl. And at laft, 
 on the 7th of Odober the Poft-nian brought 
 the News, that jiill as he left Moiitreal, 
 Mr. Walker had been brought in there a 
 prifoner ; that General Cr.rleton had fent 
 out in the night, with the greateil lecrec}^ 
 an ollicer and thirty foldiers from Montreal, 
 who were to receive their orders on their 
 arrival at a certain place ; and that thefe or- 
 ders were to take him and bring him to town 
 (as the officer faid) dead or alive. They ac- 
 cordingly furrounded his houfc juH: about day- 
 break, and fumm^ned him to furrender ; on 
 which he dew to his arms, chuliag rather the 
 Ipfs of life than to fufFer what he thought he 
 might expert from the foldiery when employed 
 on fuch an errand in fuch troublefome times 
 as thefe. He defended himfelf a long whde 
 with great courage, and wounded the officer 
 and a foldicr or two. At laft, finding they 
 could not get at him, they fet fire to the 
 houfe, and then he, with Mrs. Walker, were 
 obliged to make their efcape from the flames 
 out of a garret window naked -, and thus he 
 fell into the foldiers bands, who then, it is 
 faid, fell upon him, and beat him unmerci- 
 fully. They carried him in a battoe to Mon- 
 treal, where he was immediately put into 
 very heavy irons, and no candle, or pen, ink 
 and pafer, were allowed him. Mr. John 
 Portcous was permitted to fee him, being a 
 
 corie- 
 
 ! 1.5 
 
 
 tf 
 
 ft 
 
 <( 
 
 to reai 
 iirft n( 
 taken 
 of Sep 
 gan's I 
 cernini 
 were 
 Monti 
 replied 
 all 
 they 
 and 
 ** five 
 artfullj 
 withou 
 to encc 
 But, b( 
 pired, : 
 ing the 
 taken f 
 a gentle 
 heard t 
 convi(ft 
 the dej 
 wench, 
 vincials 
 fore thi 
 fome oi 
 table. 
 
IS he 
 
 ■ 
 
 it is 
 
 1 
 
 erci- 
 
 B 
 
 •lon- 
 
 9 
 
 into 
 , ink 
 John 
 inga 
 oriC- 
 
 
 [ 89 ] 
 
 correfpondcnt of Mr. John Strettel of London,, 
 who is alfo Mr. Walker's friend and corre- 
 fpondcnt : and he obtained a candle for him 
 to read by. The poft-man, who brought the 
 firfl: news, faid that the Canadians, who were 
 taken in the adion near Montreal on the 25th 
 of September againft Allen's and Jerry Dug- 
 gan's party, when they were examined con- 
 cerning the reafons of their enterprize, and 
 were alked how they could think to take 
 Montreal with (0 finail a body of men, had 
 replied, ** that Duggan had affured them that 
 ** all the Canadians were in his intereft; that 
 they had doubtlefs heard of Mr. Walker; 
 and that he was to join them with four or 
 five hundred men." Now Duggan might 
 artfully have faid all this to the Canadians 
 without any foundation whatfoever, in order 
 to encourage them, and keep up their fpirits. 
 But, be that as it may, not a fyilable tranf- 
 pired, nor could any thing be learnt concern- 
 ing the grounds on which fuch a flep was 
 taken from that day until two d lys ago, when 
 a gentleman in the fervice of government was 
 heard to fay he had full evidence enough to 
 convidt him, and to mention at the fame time, 
 the depofition of Mr. Walker's own negro 
 wench, who fwears that a captain of the pro- 
 vincials dined with Mr. Walker the day bs- 
 fore the adlion near Montreal, and relates 
 fome of the converfation that then paffed at 
 table. Others fay there is certain proof that 
 
 M h: 
 
 \: 
 
 it 
 
 «( 
 
 « 
 
I ' t 
 
 [ 90 ] 
 
 he had a number of Canadians ready to join 
 the provincials. But this I never will believe 
 until I fee it provrd by good undoubted tefti- 
 mony ; for hail ihat been the cafe, nothing 
 could have prevented their fucceeding. And 
 as to that proviijcial captain's having been at 
 Mr. Walker's on the day before the a<5lion, as 
 16 faid, it ftems 10 me, that if that report is 
 true, it affords a (Ucng pi oof in Mr. Walker's 
 favour, that, inflead of complying with the 
 captain's requeft to j«^in him with the Cana- 
 dians under his influence, (for that we muft 
 fuppofe to hj.ve been the captain's errand) 
 he difapproved and declined the propofal. 
 
 A worthy and very fenfible gentleman of 
 this place (Quebeck) who has been for fomc 
 time paft at Montreal, and returned from 
 thence fince Mr. Walker was taken up, can- 
 not give the leaft credit to any one of the 
 reports that are circulated there to his preju- 
 dice; nor can he, for his life, imagine on 
 what grounds the Governour goes in this 
 violent profecution of him. His lofs muft be 
 very great by the burning of his houfe, Itore, 
 pot-afti, books, &c. belides the cruel, igno- 
 minious treatment of him, rarely executed on 
 felons until convided. 
 
 An 
 
[ 91 ] 
 
 An account of the ftate of the pro- 
 vince during the laft funimer, and 
 of the motives that have caufed the 
 Canadian, or French, inhabitants 
 of it to decline taking arms for the 
 the defence of it ; extracted from 
 a letter, dated at Quebeck, on the 
 25th of Odober, 1775. 
 
 Quebeck, Odt. 25, 1775. 
 
 A Dminiftratlon may now eafily fee, (if they 
 ^^ are not determined to remain in perpe- 
 tual blindnefs and ignorance) what operates 
 with the Canadians in this grand unhappy 
 conteft, and that it is not in the power of a 
 Governour, a beggarly NoblefTe, or their 
 feigniors, (whom they deteft) nor in the 
 power of their clergy with all their threats 
 and interdidions (if you can fuppofe they 
 preach the fame in private, as they do in 
 publick) to make the Canadians take up arms 
 to fhackle themfelves in (lavery. If we dared 
 to apply to the Canadians for an union with 
 us to petition the King for an amendment 
 of the Quebeck bill, we ihould find the tradef- 
 men, moft of the merchants, and all the 
 country-inhabitants, unanimous in our fa- 
 vour. But we are deemed, and (I do b^- 
 
 M 2 lieve,) 
 
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 licve,) arc reprefented by thofc perfons who 
 are the authors of all our misfortunes, to the 
 Minifters of State to be worfe than the Bofto- 
 nian rebels, for infufing the principles of Li- 
 berty, (the birth-right of every Briton) into 
 our fellow-fubjedts in Canada. For they 
 inuft make fomebody or other bear the blame 
 of the behaviour of their jaithful CanadianSy 
 as they ufed to call them, vi^hich has been 
 fo contrary to the falfe reports they had 
 made, concerning their fentiments, to his 
 Majefty's Minifters of State. And if the 
 fecret, wicked plots of thele perfons take place 
 againfl us, many innocent perfons muft fuf- 
 fer on account of this defedtion of the Ca- 
 nadians, though the real caufes of their be- 
 haviour, at this time, are thefe : Firft, a ge- 
 neral cowardice j for they feem to have a 
 horrid averfion to taking arms : fecondly, a 
 fharp remembrance of their former ftate of 
 ilavery ; and a dreadful apprehenfion of re- 
 turning into the fame ftate, under their an- 
 cient laws and cuftoms now confirmed to 
 them : to which we muft add, in the third 
 place, that the canting Enthufiafts, who have 
 come as emiflaries at different times from 
 New England to preach Liberty and Indepen- 
 dency among them, have had more influence 
 over their principles (if you allow them to 
 have any) in this unhappy conteft, than all 
 the Jefuits in France, before their expuKion 
 fjTom that kingdom, could have had : and, 
 
 laftly, 
 
 \ 1 
 
[ 93 ] 
 
 laftly, the behaviour of their feigniors to- 
 wards them (for General Carleton would hardly 
 employ any others to command them) in- 
 creafed their difobedience to government. 
 This day's poft brings advice, that a ftrong 
 body of men was to have croffed over the 
 river Saint Lawrence from Montreal on Tuef- 
 day laft, and that another body was to march 
 up under the command of Colonel Mac- 
 Leane, a very adive officer ; and that then 
 both thefe bodies were to clear the country 
 before them, join each other, and relieve the 
 Fort of Saint John's. This week muft: de- 
 termine our fate, whether there be a proba- 
 bility to keep the country until we have a 
 re-inforcement from England next Spring, 
 or become fubjedled to the American aflb- 
 ciation. 
 
 Extract of another Letter from the 
 fame perlon. Dated Quebeck, No- 
 vember 9, '775* 
 
 T Wrote to you the 25th day of laft month. 
 •■' About ten days before that time, thirty 
 Yankies, with a party of Canadians, (as we 
 have fmce learnt, though it was concealed 
 from us here at the time) brought two pieces 
 of cannon from the camp before St. John's, 
 and planted them before Fort Chambly, and 
 
 very 
 
'•l: 
 
 [ 94 1 
 
 very foon made a breach in that finglc rotten 
 •wall ', by which the garrifon, which cpnfifted 
 of eighty men with fix or feven officers, were 
 obliged to furrender. They obtained leave 
 to carry all their baggage with them; but 
 left about eighty barrels of powder, a quantity 
 of fhot, fome flour and pork, and their arms, 
 and the colours of the 7th regiment, in the 
 fort. 
 
 On the fecond of this month the fort of 
 St. John's was obliged to furrender, the gar- 
 rifon being reduced to half a barrel of powder, 
 and a very few pounds of flour and pork, 
 without fire-wood, and moft of them without 
 (hoes, infomuch that they were obliged to 
 tear off the fkirts of their coats to wrap about 
 their feet. They are all fent prifoners to 
 Harford in Connedicut, except the fick and 
 wounded, who are left in the fort with a 
 furgeon to attend them. The Provincials 
 have taken a very pretty train of artillery s but 
 I don't know the exadt number of pieces. 
 
 Since the furrender of this fort the provin*- 
 cials have formed a camp at Sorely and have 
 ient a ftrong party with cannon and mortars 
 againft Montreal, which muft be in their 
 pofl!effion very foon, becaufe it is not tenable. 
 Governour Carleton and general Prefcot were 
 both there till Monday. As they have (hut 
 up the communication between Montreal and 
 
 this 
 
 py 
 
[ 95 1 
 
 this place, wc have not heard any thing of it 
 fincc : but we may foon expedl to fee both 
 the generals come down by water, or hear of 
 their being made prifoners. As fo )n as the 
 armed veflels at Montreal and Sorel fhall be 
 obliged to drop down the river to be laid up 
 for the winter, we fhall be inverted on all 
 quarters here. Yellerday three hundred men 
 arrived, it is faid, at Point Levy, from New- 
 England, by the river Chaudiere. They have 
 flopped the communication on that fide from 
 the town, fo that we cannot know their num- 
 bers, or what they have brought with them, 
 or what they are about. And, as all the 
 Canadians in the country join them, we may 
 foon expedl to be pretty clofely cooped up 
 here. We have but a very poor ftock of pro* 
 vilions, and a far lefs ftock of fire-wood : 
 and befides, many of the inhabitants of the 
 town do not feem to be very eager in the 
 defign of oppofing the Provincials at the rifk 
 of their lives and fortunes, when they have no 
 troops to fupport them : fo that I am very 
 apprehenfive that we fhall become fubjeded 
 to the American afTociation before we have 
 any relief from Britain. If we fhould, it will 
 require more than double the number of 
 troops that conquered it before under the 
 command of the brave general Wolfe, to 
 retake it. 
 
 • H 
 
 u 
 
•I 
 
 [ 96 1 
 
 In cafe this unhappy conteft fhall be foon 
 fettled, and the different American eftablifh- 
 ments (hall return to their primitive ftate, or 
 whatever the eflabUfhments are to be, I muft 
 beg of you to be attentive to the welfare of 
 this province, which has been loft by narrow- 
 minded, wicked, plots and falfe reprefenta- 
 tions. -The adminiftration have now great 
 caufe to reproach themfelves for their credu- 
 lity and confidence in men unequal to the 
 charge intrufted to them. 
 
 Extraft of a letter from Quebeck, 
 dated Odober 24, 1775, fhewing 
 
 . the diflatisfadion of the body of 
 the French, or Canadian, inhabi- 
 tants of the province of Quebeck 
 at the revival of the French laws by 
 the late Quebeck ad. 
 
 Quebec, Odtobre 24, 1775. 
 
 Monfieur, 
 
 JE crois ne pas ctre le premier a vous ap- 
 prendre la trifte fituation de n6tre mal- 
 heureufe province. Mais je puis avec certi- 
 tude vous apprendre, que I'annonce de 1 etii- 
 blilTement des loix Fran9oifes, et la nomina- 
 tion 
 
. [ 97 J 
 
 don des Confeillers et Juges pour la ditt< 
 
 province, que le tout cnfemble, dis-je, 
 
 a fait un mdconlentement fi general et une 
 condernation fi grande que la foudre la plus 
 redoutable n'a jamais pu faire fur un peuple. 
 
 On en a audi reffenti les efFcts auflitot. 
 
 Car dans ce meme moment nos frontiercs 
 
 ayant ete envahies par les ennemis du roi, on 
 
 a voulu avoir recours aux habitants pour de- 
 
 fendre ce malheureux pa'is. Mais, loin d^ 
 
 s'y preter, plufieurs cantons fe font joints 
 
 aux rebelles : et, en general, aucuns n'ont 
 
 voulu prendre les armes, «/, difent-ils, de- 
 
 fendre un tas de b"^— de penfionnairesy ni leurs 
 
 Jl — Itfix Franqoifes, Voici, Monfieur, les pro-- 
 
 pres tcrmes dont ijs fe fervent. — — Ajoutez \ 
 
 cela que Ton ne fe fert envers eux que des per-r 
 
 fonnes qui leur font ^n abomination. 
 
 Vous f^aurez que dernierement Monfieur 
 Walker de Montreal a ete arrete comme 
 traitre et rebelle, et efl en confequence d^^ 
 tenu prifonnier comme tel. J'aurois eu I'hon-f 
 neur de vous adreffer une relation exadle de 
 tout ce qui s eft paffe dans ces contrees de- 
 puis le mois de Mai : mais, comme Ton a 
 etabli ici les loix militaires, et que, par ces 
 loix defpotiques, nos vies et nos biens ne 
 font pas en iQrete, je craindrois que Ton ne 
 s'avife d'ouvrir ma lettre, et que Ton ne me 
 
 N fafTe 
 
 \\ 
 
 >^ 
 
 
 *» 
 
} 
 
 f 
 
 1 J4l. 
 
 [ 98 ] 
 
 ittfTc un mauvais parti ^ cc fujct, c eft a dire, 
 pour diic ct ecrire la v^rite. . . 
 
 Tranflation of the foregoing extraft 
 of a icttcT from Que beck, dated 
 Odlober 34, 1775. 
 
 -■; 
 
 SIR, 
 
 T Prefume that, before this reaches you, 
 •*• you will have received from other hands 
 an account of the difmal iituation of our 
 unhappy province. But I can afTure you with 
 the greateft certainty, that the news of the 
 revival of the French laws in this province, 
 together with the appointment of the mem- 
 bers of the legiflative council and the new 
 judges for the faid province, have fpread fuch 
 a general difcontent throughout the province, 
 and thrown it into fo great a confternation, 
 that the moft violent ftorm of thunder and 
 lightning could not have produced a greater 
 cned upon a people. 
 
 The ill efFeds of this new eftahlifhment 
 have been felt almoft as foon as it took place. 
 For at that very inftant the frontiers of the 
 province were invaded by the king's enemies, 
 and the Governour endeavoured to excite the 
 inhabitants of it to take arms in its defence. 
 Rut they were far from complying with his 
 
 exhor- 
 
[ 99 ] 
 
 exhortations. For many of the pariflies joined 
 the rebels : and throughout the reft of the 
 country the inhabitants have, in general, re- 
 fiiftd to take arms for the government, and to 
 defend^ as they exprefs it, a pack of rafially 
 pen/toners of the crown, and their damrid French 
 laws. For thofe. Sir, are the very words that 
 they make ufe of. Add to this, that no per- 
 fons have been employed to endeavour to raife 
 them on this occafion but fuch as they hold 
 in utter deteflation. 
 
 You will no doubt have heard that Mr. 
 Walker of Montreal has lately been arrefted, 
 upon a fufpicion of treafon and rebellion, and 
 is kept a prifoner on that account. 1 fhould 
 have given you an exadt account of every 
 material occurrence that has happened in this 
 province fmce the month of May laft, if it 
 had not been for the eftablifhment of martial 
 law in it. But as under that arbitrary law 
 our lives and fortunes are not in fafety, I was 
 afraid that my letters might have b :a opened, 
 and that I might have been broaght into 
 trouble on that account, that is, for fpeaking 
 and writing the truth. 
 
 • I, 
 
 N. B. The new judges that have been ap- 
 pointed in the province, and who are there- 
 fore, I prefume, alluded to in the above let- 
 
 N 2 ter. 
 
 i 
 
I 
 
 [ lOO 1 
 
 ter, are Monficur Claude Panet, of Quebcck, 
 and Monfieur Rene Ovide Hertel de Rouville, 
 of Montreal ; of whom the former has been 
 appointed a Judge, of fomc fort or other, for 
 the diftridt of Quebeck, and the latter for 
 the diftrid: of Montreal. 
 
 * • 
 
 The writer of the above letter is a Ro- 
 man-Catholick, and a new fubjjedl, as they 
 are called ii> Canada, that is, a perfon who 
 had been a fubjed to the French king before 
 the conqueft of the country, and became a 
 fubjedl of the crown of Great-Britain in con- 
 fequence of the conqued. He is a man of 
 extream good fenfe, and lives in a country 
 village amongfl the Canadian peafants, and 
 has thereby a better opportunity of hearing 
 and knowing their fentiments than thofe per- 
 fons who reSde in the towns of Quebeck and 
 Montreal. 
 
 4 
 
 To the foregoing letters it may be proper 
 to add the following long extradt of a letter 
 from an Englifh merchant at Quebeck, dated 
 Nov. 9, I y^^, which gives a further account 
 of the ftate of the province and the fenti- 
 ments of the Canadians concerning the re- 
 crtablifhment of the French laws by the late 
 Quebeck adl^ 
 
 Extra<ft 
 
 '*^l 
 
— « 
 
 [ loi ] 
 
 Extraft of a letter from Quebeck, dated 
 Nov. 9, 1775. 
 
 T leutenant Governour Cramahe told Mr. 
 *^ Mac Aulay of this place, a few days ago, 
 in great anger, " that it was our damn'd 
 committees that had thrown the province in* 
 to its prefent ftate, and prevented the Cana- 
 dians from taking arms ; hut that he /hould 
 hear more of that hereafter." By thefe words 
 we prefume we are to underfland, that if 
 they had power in their hands to enforce their 
 authority, a ftar-chamber would be eredled 
 to harrafs thofe who might differ in opinion 
 from them, or might make any attempts, by 
 future' applications to the Throne, for a re- 
 drefs of their grievances ; for we are told that 
 all meetings are illegal by martial law. The 
 new arrangement of government under the 
 Quebeck- bill, met with a general difappro- 
 bation. Not to mention the Englifh innahi- 
 tants, (who could not but diflike it, as it was 
 totally different from what they had expe(fled 
 and applied for) the Canadians in general 
 were difplcafed with it, and declared that it 
 was not at their defire or follicitation that 
 it was paffed ; and that they had not been 
 made acquainted with the petition which was 
 pre'snted to the^ing from a few perfons in 
 the province^ and was made the ground of 
 
 pafUng 
 
 ■•%■ 
 
W ' 
 
 r 
 
 
 lit .1 
 
 [ ^02 ] 
 
 PafTing it. They faid that the pcrfons, who 
 had figned that petition, confided principally 
 of their ancient opprcflbrs, their Nobleflc, 
 who wanted nothing more than, as formerly, 
 to domineer over them ; and they exclaimed 
 againft them bitterly on that account; but 
 intimated that they had better take care of 
 themfelves, and not be too forward to put 
 their intentions into execution. The Lawyers 
 and Notaries, and fuch of the citizens as 
 had been induced to fign that petition (or 
 rather, had been afraid to refufe to fign it, 
 for fear of being pointed at by the friends to 
 fuch meafures) almofl unanimoufly declared 
 their difapprobation and diflike of the Adt of 
 Parliament, more efpecially when the ap- 
 pointments of the members of the new coun- 
 cil came to be made, and it was found that 
 none but the NoblefTe, or thofe who had the 
 Croix de Saint Louis, were appointed to it, 
 without a fingle perfon taken from the com- 
 mercial part of the French inhabitants of the 
 province. This, with the giving the half- 
 pay to a fet of French officers who had ferved 
 on a Battoe^expedition againfl the Indians in 
 General Murray's time, and the appointment 
 of Monlieur de Rouville for one of the 
 Judges at Montreal, and of Claude Panet 
 for Quebeck, with falaries, as it is given 
 out, of 700I. a year each, and, in fhort, the 
 wantonly and profufely inventing places for 
 
 creatures 
 
[ »03 1 
 
 creatures and fycophants, with which the 
 Governour was continually furrounded, has 
 given great dilguft. It is indeed alarming to 
 think now all this money was to be railed. 
 A very little matter would have induced the 
 Canadians to^unite in a body to petition for 
 a Repeal of^the Adl. But no one cared to 
 ftep forth, and fet forward any meafure of 
 that kind, partly thro* the fear of the ill treat- 
 ment, which they might be made to fufFer 
 in confequence of having done fo, now that 
 the Governour's Authority is fo extenfive, and 
 partly through the hope that we continually 
 entertained of hearing from England of the 
 Repeal or Amendment of it. Peter Panet, 
 of Montreal, (who is brother to the other, 
 but quite another fort of man) had every 
 reafon to expedl to ,be made a Judge, if any 
 of the French were^to be made fo. He is 
 really very clever, and had been Clerk to the 
 Court of Captains of the Militia immediately 
 after the conqueft of the country, or, one 
 may almoft fay, both Clerk and Chief Judge ; 
 and he certainly ought, on this occafion, to 
 have had the preference by far to Rouville. 
 Indeed, the nomination of the latter to this 
 office is fo ofFeniive to the Canadians at Mont- 
 real, that they were quite exafperated at it, 
 and were going to prefer a petition to the 
 Governour againft his being appointed to it. 
 But the taking of Crown-Point/ and the fub- 
 fequent difturbances in the province, put a 
 ^ ftop 
 
 ii 
 
I i 
 
 
 [ 104 1 
 
 fiop to every thing, and has prevented any 
 part of the Ad from taking place. 
 
 The Canadian inhabitants b{ this pro- 
 vince openly avow their aHTedion to the 
 Englifli manners and cuftoms, ana declare 
 that they never wifh to live quieter or more 
 happy than they have done fmce the com- 
 mencement of the civil government. In- 
 deed it is furprifing to fee how much they 
 have flourifhed and increafed in riches within 
 thefe few yeais, by meeting with fo good a 
 market for their produce. This is owing to 
 the great fpirit of fpeculation-trade that pre- 
 vails aiiongft the Englifli Merchants here 
 and their Friends at Home, and cannot in 
 any degree be attributed to the French Mer- 
 chants, who have nothing of the fpirit of 
 trade in them. This flouriihing ftate of the 
 province, fince ihe eftabliihment of ihe Eng- 
 lifli laws in it, makes the Canadians fond of 
 thofe laws, and dciirous of their condnuance : 
 And numberlefs are the proofs that might be 
 given of heir preferring theni to the French 
 laws by which they were formerly governed, 
 were it not for the artifices of a very few 
 perfons, the NobleiJe of the province, who, 
 by having gained the fupport and afliftance of 
 Government, h^ve had it in their power tQ 
 difguife the truth, and prevent an union between 
 the old and new fubjeds in making applica^ 
 tions to the Throne to obtain a fcttiement of 
 
 . ■ ^ ' the 
 
C 'OS 1 
 
 the province upon the foundation of the Eng- 
 lifli law. When any flrangers from England 
 have come to thefe parts by way of curiofity, 
 who on their return might have rcprefented 
 things in a true light, they have been kept up 
 amongfl a fmall circle of people, and have 
 hardly ever appeared in publick, Sr converfed 
 with the people at large, and have thereby 
 been prevented from getting true and general 
 information concerning the real ftate of the pro^ 
 vince and the fentiments of its inhabitants. - 
 
 The Canadians, very early this Spring, de- 
 clared, that the Noblefle had no manner of 
 authority over them, and that even their feigniors 
 had no right to command their military fer- 
 vice. They acknowledged, that they owed 
 them relped as their Lords of the Manor j but 
 they infilled, that, when they had paid them 
 their quit-rents, and all their other juft dues, to- 
 gether with certain compliments which were 
 cuftomary at different feafons, they owed them 
 nothing further, and were not bound to fub- 
 mit to any power they might prefume to exer- 
 cife over them. For fome of the feigniors 
 have pretended to fome authority over their 
 tenants; of which there was an indance in 
 die feigniory called La Beauce behind Point- 
 Levi, where the young feignior, Monf. Tafche- 
 reau, caufed one of ^ his tenants to be con- 
 fined for refufmg to march at his command 
 againft the Provincials, who had invaded the 
 
 ■ p pro- 
 
 ■tr^ 
 
 I ;)l 
 
 :1 ' Ml 
 
r 106 r 
 
 provihce ; but he foon thought it befl to folli-^ 
 cit the man's releafe, and did not afterwards 
 try the fame experiment with any other of 
 them. ^»/fiut in other parts of the province fe- 
 veral of the Canadians have been threatened 
 with the fame treatment, if they did not obey 
 their feignior's order to take arms for the de- 
 fence of the province, in order to frighten them 
 into the fervice. But it has had the contrary 
 effed, and has been found to be of bad con- 
 fequence. Nothing of this kind had appeared 
 before the Quebeck Bill <paffed. But the 
 ftrongeft verbal proof that I can give you of 
 the diflike of the Canadians to the Quebeck 
 Bill is this : Mr. John Thompfon (who is a 
 very honeft man) told me yefterday, that he 
 was prefent at the CofFee-houfe at Montreal 
 when Mr. James Finlay of that place declared 
 publickly, that the Captain of the French Mi- 
 litia had, in his prefence, told Governour Carle- 
 ton, " That the Canadians in that town, them- 
 felves included, would not take arms as a Mi- 
 litia, unlefs his Excellency would afTure them 
 on his honour, that he would uie his utmofl 
 endeavours to get* the Quebeck Bill repealed;" 
 and that he thereupon promifed them, that 
 he would do fo. But now all thefe confide- 
 rations nre at an end for the prefent, as we arc 
 likely to have new matters ftiortly. 
 
 TheGovernour's reafon for eftabliftiing Mar- 
 tial Law in this province was, that he might 
 
 be 
 
[ lo; 1 
 
 be able by means of that law (which hf 
 thought would authorize him fo to do) to 
 force the Canadians to take arms. But he has 
 entirely failed of fuccefs in this attempt. In* 
 deed, it was a mod ridiculous attempt^ as he 
 had no troops at hand to enforce his; authori- 
 ty or commands. Great threats are frequently 
 thrown out, and every now and then people 
 are put under confinement by the militia. On 
 Saturday, the ?8thof Odober, Mr. John Dyer 
 Mercier,^ as he was going into the Upper* 
 Town, was laid hold of by the Town-Serjeant,, 
 and conduced to the main guard, and there 
 confined, and his papers were feized and exa- 
 mined, merely by the order of the Lieutenant- 
 Governour, without any crime or accufation^ 
 alledged againft him; and at day-break the 
 next morning he was put on board Uie Hun- 
 ter Sloop of War. This was very alarming 
 to the citizens of Quebeck, who thercupoa 
 had a meeting, and appointed three of their 
 number to wait on the Lieutenant-Governour 
 to know the caufe of fb remarkable a ftep. 
 He made anfwer, " that he had fufficient rea- 
 fons for what he had done, which he would 
 communicate when and to whom he fhould 
 think proper." Rut he foon thought better of 
 it. For the next morning he called together 
 the fix Captains of the Britifh Militia, and com- 
 municated to them onejor more intercepted 
 letters direfted to Mr.'^Mercier, of a nature 
 that was fufficient to w^rranthis bemg fccured 
 
 O 2 for 
 
 \^'mi 
 
 j 
 1 
 
 1 
 1 
 
 
 ^ 
 
\^, < 
 
 
 [ 108 ] 
 
 for the fafety of the town. But nothing was 
 found that had proceeded from him, or that 
 could ferve as a proof to convidl him of any 
 crime. This communication gave a good deal 
 of fatisfadlion. It is a piece of Juftice to the 
 French inhabitants of the province to fay, that 
 thofeof them who have taken arms for the defence 
 of the province, are not corrupted in their tempers 
 by the ufe of them, fo as to be ready to ad 
 as the inftruments ofl^rbitrary power over 
 their fellow-citizens, but rather decline being 
 fo employed. Of this we had lately a re- 
 markable inftance at Montreal. For General 
 Prefcot, who commands at Montreal, having 
 thought fit to place centinels at the fore and 
 back doors of Mr. Walker's houfe to be a 
 guard upon Mrs. Walker (notwithftanding her 
 hufband is no longer with her, but a prifoner 
 on board a (loop of war) ordered Pafcal Fil- 
 let, one of the French inhabitants of Montreal 
 who had taken arms for the defence of that 
 city, to attend that duty. But Fillet would 
 not do it, 4)ut replied, " that he took up arms 
 for the defence of the city, and was willing 
 to (land fentry in his turn on the walls to 
 oppofe the enemy, but would not be em- 
 ployed as a gaoler to watch his fcllow-citi«- 
 zens, but would fooner throw down his arms, 
 though they were his own property, and let 
 thofe perfons take thefn who wouW confent to 
 be fo employed. . 
 
 .if. 
 
 'I 
 
 General 
 
 •4 
 
 
[ I09 ] 
 
 General Prefcot, upon being told of this 
 refufal, thought prop^ to drop his delign of 
 fetting a guard upon'TVIrs. Walker, and faid, 
 it was hardly worth while to watch an old 
 woman. This certainly does honour to the 
 fpirit and temper of the French inhabitants 
 who have entered into the Militia upon this 
 occafion. Shortly after this affair we heard, 
 that Fort Chambly was taken, with eight of- 
 ficers and 60 men. Then it was faid, that a 
 plan was formed for General Carleton and Col. 
 McLean to join their forces, and march to the 
 relief of St. John's Fort. It was given out 
 here, that General Carleton had 1 500 Cana- 
 dians with him. Proper (ignals were agreed 
 on, and General Carleton was to crofs over 
 the River St. Lawrence with his army, which 
 confifled, firft, of the militia of Montreal ; and, 
 fecondly, of a number of Canadians that he 
 had with him, and whom he had maintained 
 for fome time before at Montfeal ; and, third- 
 ly, a few troops that he had with him, who 
 might amount to about 100 men, and who 
 were to have headed the Canadians ; and, laftly, 
 fome Indians. They accordingly fet off fjom 
 Montreal in high Ipirits, and attemptecf to 
 crofs the River St. Lawrence, and land at Lon- 
 gueuil ; but they were fo warmly received by 
 the provincials on the other fide the river, that 
 they could not make good their landing, but 
 were thrown into great confufion, and retired 
 with predpitation. Some of them ran a-ground 
 
 on 
 

 w 
 
 U .1 
 
 I'.f 
 til 
 
 
 
 on an ifland, and had like to have periihed, 
 but were faved by the New-England men. 
 Two Indians were killed, and two more taken 
 prifoners. The next Exprefs informed us, that, 
 upon Colonel McLean's party hearing of this 
 repulfe, his Canadians had all left hiqo, and re- 
 tired to their homes. And the nigh? before laft 
 an Exprefs brought the News, that the garrifon 
 of Fort St. John's had capitulated, (being ftarved 
 out) and were all made prifoners of war ; and 
 that Montreal was invefled, and its commu^ 
 nication with the country entirely cut off s and 
 that the provincials were on St. Helen's Ifland, 
 over-againft the town, and were there eredling 
 a battery to fire upon it, in cafe they (hall re- 
 fuie to capitulate ; and that Governour Carleton, 
 was on board the Fell, an armed fnow. 
 
 There are alfo 1500 provincials arrived at 
 ^^' Point-Levi. We have within a few days paft 
 heard of their approach, and our guards have 
 been doubled on that account. Our fate (at 
 lead for fome time) niuft fbon be decided. 
 There are fifteen Commiffaries appointed, con- 
 fifling of the fix Englifli and fix French Cap- 
 tains of Militia, and the three Judges. Three 
 of them fit every day, to examine into fmall 
 matters, and give paffes to all the canoes that 
 come into, or go out of, the town. This, 
 with the means made ufe of to get Canadians 
 from the neighbouring country to dd^Juty in 
 town has fo intimidated the inhabitants of the 
 
 count! y, 
 
[ ... ] 
 
 country, that very few of them venture to 
 come to town, fo that we have hardly a fup- 
 ply of provitions from hand to mouth, much 
 jcfs to {land out a liege. ^/\{'i> 
 
 p. S. Juft now an order is come down for 
 eight men from each of the fix companies of 
 the Britifh Militia to appear on the parade 
 without Arms, to receive One Shilling and a 
 pint of Porter for the bufinefs they were to do. 
 Orders are alfo given for a party of Marines, 
 to be on the parade armed. So we are in- 
 clined to judge the intentions of our Govern- 
 ment to be to force us to a defence of the 
 town, and facrifice our lives and properties. 
 The Shilling and a pint of Porter arc fuppofed 
 to be conlidered as King's money to enlift us, 
 and fubjedl us to military difcipline. The 
 Lord prote(ft us from our enemies within and 
 without ! 
 
 ' s 
 
 As the defign of publifhing the foregoing 
 papers is, to prefent to the publick a true 
 account, and, as it were, a pidure, of the fen- 
 timcnts of the inhabitants of the province of 
 Qu^ebeck, both French and Englilh, and more 
 efpecially thofe of the French, or Canadians, 
 which many people here in England have 
 gceatly mifconceived, it may not be amifs to add 
 
 to 
 
 jj 
 
 ..^■1: 
 
 I-:; '■ \ 
 
 '■I 
 
 n 
 
 ■ ' 
 
 
ilfl 
 
 
 k. 
 
 ii»l 
 
 t "2 ] 
 
 to them the following little French Cong, which 
 the Canadians have made this la(l fummer upon 
 Monf. Briand, their bifhop, in ridiculeof a circu- 
 lar letter he had writ to them to exhort them to 
 take arms for the crown againft the other Ame- ^ 
 ricans, and in which he had promifed indul- 
 gences to thofe who (hould comply with his 
 exhortations, and threatened thofe who fhould 
 refufe to do fo with excommunication. The 
 fending fuch a letter amongft them, they con- 
 fider as a proceeding quite unfuitable to the 
 charader of a Chriftian biftiop, who ought to 
 have no concern with matters of a military 
 nature, or that tend to the fhedding of blood : 
 and they afcribe the bi(hop's complaifance in 
 writing it to his gratitude for a, peniion from 
 the crown of 200I. per annum, which has been 
 lately beftowed upon him, and to his hopes of 
 getting it increafed. This fong is as follows: 
 
 II 
 
 ri«,!-; 
 
 It; 
 
 iM'f ■■ 
 
 Sur I'air, Belle brum ^ que j adore. 
 
 "DERNARD netoit qu*une bete 
 
 Aupres de notre Briand.. 
 Grand Dieu ! quelle bonne tetc ! >,..,* 
 Cak du ciel un vrai prefent. .^ .•> ,; ' 
 
 
 'ii 
 
 Au 
 
{ 1^3 1 
 
 JM Pijl*. 
 
 Au mandat de fa qroif^ae 
 Armons nous, mes chers amjs, 
 
 Bofton neft qu'qne promenade : 
 Ces mutins feront foftiDis 
 
 V III. 
 
 Nous voyons bien le.ur d^fakes 
 
 Affurees pour Ic certain. ^ . 
 lis n'obfervent pas nos fetes, ^ 
 
 Et n'adorent pas nos §fk\^h 
 
 IV 
 
 Le pr^lat dit de combattre. 
 
 Pourrions-nous done balancer ? 
 « La Foi, dit-il, va sabattre, 
 
 " Si vous ofez refufer. 
 
 V. 
 
 « Vous perdez, les, inclplgences, 
 
 « Que j*accorde a. cbaqae.fpifi. 
 « D'un CGSur plein de vaiU.ance* 
 
 « Quand a I'autel je parois. 
 
 VI. 
 «< Les Jefuites dans les formes 
 
 ** Subiront, fans contrc-dit, 
 " Uanatheme lance de Rome, 
 
 «* Si vous nctes pas foumis." 
 
 ■ r M 
 
 VJL 
 
 1 ,■ 
 
 J I 
 
 tir-^ 
 
 !'^} 
 
•I 
 
 l( 
 
 1'^ 
 
 I: 
 
 t n4 ] 
 
 Vlt 
 
 Marchon$ en bona fanatiquesi 
 Allohs nous faire ^gorger j 
 
 Puifque la Foi Politique 
 De nos forts veut decider. 
 
 VIII. 
 Les indulgences pl^ni^res 
 
 Nous conduiront f^rement 
 A r^ternelle lumiere * ' 
 
 Si nous fbmmes obeiiTans. 
 
 IX. 
 
 En depit de la vraie gloire 
 Portons nos pas en avant; 
 
 pans le temple de Memoire 
 JSfous ferons mis tridement. 
 
 X. 
 
 £t> par nos braves proueiTes 
 Dans les combats, m^ritoni 
 
 Qujon augmente avec largeilir 
 Du prelat la |)fnfion. 
 
 ,-?■' 
 
 
 Good 
 
 1. ■ .• « 
 
 He 
 
 1 
 
 ( 
 
 At his 
 
 ' ' ' 
 
 Let 
 
 V 
 * - 1 
 
 A ma 
 
 V .- . ■ » 
 
 Anc 
 
 t. 
 
 We fe 
 
 ,-( • . "• ^» 
 
 Afce 
 
 •-* 
 
 For th( 
 
 1 
 
 And 
 
 
 It is oui 
 
 •■ 1 *;,J. ■■* 
 
 Canv 
 
 
 " The t 
 
 ..rU...:v,i ;> • 
 
 "If 
 
 < 
 
 Tranfla-- 
 
 1 
 
 . 1 
 
 
 
I "5 J 
 
 ■^fs" 
 
 Tranflation of the foregoing French 
 ^ Song. .,. J r . . 
 
 I. 
 
 t. _ .»/) 
 
 ^T^HE great St. Bernard was but a blockhead 
 
 In comparifon to our bifhop Briand. 
 Good God ! how great a genius he pofTefles \ 
 He is truly a gift to us from heaven. 
 
 II. 
 
 , ■»' 
 
 At his command to engage in this crufade. 
 Let us take arms, my dear friends. 
 
 A march to Bofton is but a pleafant walk : 
 And thefe rebels will foon be fubdued. 
 
 III. 
 We fee their ruin - 
 
 Afcertained beyond a doubt. ' • 
 For they do not obfervc our holydays^ • *' 
 
 And do not worfhip ouf Saints. 
 
 It is our biihop that commands us to take arms. 
 Can we then hefitate a moment about doing it ? 
 
 ** The true faith, he fays, will be ruined, '- 
 *' If you prefume to refufe your af&ftance ia 
 this war. . , . . v > * 
 
 a Pa V. 
 
 WW 
 
 I , ' . 
 
 t >( 
 
 )! 
 
 ■\ 
 
 !-> 
 
irr t 
 
 m 
 
 W X 
 
 W '» 
 
 [ '^6 1 . 
 
 *• Vou will lofe the benefit of the indulgence!' 
 '* Which I grant every time that, 
 
 " With a heart abounding with courage, 
 " I appear at the altar. . , . 
 
 ** 'the Jefuits will now be forced, 
 
 << Without all doubt, to undergo in all its 
 extent -* 
 
 " The fcntence of diflblution which has been 
 pronounced againft them at Rome, 
 ** If you are not obedient to my orders to 
 you to take arms." . ^„^^ ^ ,, ;. 
 
 Vll. 
 
 Let us then, my friends, like true and obedient 
 fons of the church, begin our march i 
 
 And chearfuUy go and get our throats cut : 
 Since this new Faith Politick ., . 
 
 Thus refolves to determine our fate. 
 
 •■ ' ,» ♦. 
 
 .■-c: . ..:.-VIII. ... 
 Plenary indulgences ^' ^ - 'i 
 
 Will carry us fafely 
 To the regions of eternal light, ; v u 
 
 If we are obedient to our biihop. <? 
 
 
 IX. 
 
 I'S.;; '' 
 
 W ' 
 
 I- * 
 
[ «i7 ] 
 
 lie * " 
 
 In dircA oppofition to the love of true glory. 
 Let us advance in this warfare } 
 
 Though in the t|piplc of Memory . 
 
 We (hall, for our pains, make but a piti* 
 
 ful figure. 
 
 ■■ , ' ■ _', ■ - ' 
 
 And, by our valiant exploit! 
 In the field of battle, let us acquire a right 
 to afk, as a reward of our fervices, 
 That his Majefty would be pleafed to make z 
 liberal addition ii • - 
 
 To the penfion he has beflowed upon our 
 bifhop. 
 
 , - /./... 
 
 The gentleman, who favoured me with a 
 copy of this fong, has communicated with it 
 the following remark, which I underfland to 
 have been written by this gentleman's corre* 
 fpondent in the province of Quebeck, who 
 had fent him a copy of the fong. 
 
 ^ N. B. On dit que plus de 30 chanfont 
 pareiiles et 50 placards, ou la cupidite, I'extra- 
 vagance, et Tambition du prelat font develop- 
 pecs, et qui annoncent parfaitement i quel 
 point de m^pris il s'cft reduit par une con- 
 
 duite 
 
 I! 
 
 1 
 
I! I 
 
 
 i 
 
 [ n8 ] 
 
 duite audi extraordinaire pour fon ^tat, lui ont 
 tout a fait tourne la tcte. II envoyc, en haul 
 tt en bas du pais, excommunications fur ex« 
 communications. Ce neft plus au roi qu'on 
 defobeit ; c^eft a Teglife, dont il eft le chef. Sa 
 folic, (qui ne fait qu*irriter les peuplesj dure 
 depuis le 20 de May. Cependant depuis le 
 3 de ce mois (Novembre) il fe tait j — menace 
 meme le pais de s'en aller en France. Plut 
 a Dieu qu'il executat fa menace ! mais ce n'cfl: 
 que la peur qu'il a des Boftonnois qui la lui 
 iait faire* ., • , , , • 
 
 ^ranjlation af the foregoing Remark, 
 
 N. B. I am informed, that more than thirty 
 fongs of the fame nature with the foregoing, 
 have been made in the province of Quebeck 
 upon the bifliop, befides fifty papers that have 
 been pofted up in publick places, in which 
 his avarice, his love of povver, and extrava- 
 gant behaviour, are freely cenfured, and which 
 plainly fhew to what a low pitch of contempt 
 he has funk himfelf, by a condudt fo unfuit- 
 able to his epifcopal charadter ; and it is faid, 
 that thefe mortifications have aloioft turned 
 his head. He has been continually ifluing 
 forth excommunication after excommunication 
 throughout every part of the province, and 
 talks of nothing but difobedience, not to tho 
 King, but to the church j of which he (the 
 bifhop) is the bead. This wild condudt (which 
 
 has 
 
 ill 
 
t "9 ]■ 
 
 has no cffcdt but that of difgufting the people 
 of the province) has continued ever fincc the 
 20th of lad May. However, fince the 3d of 
 this month of November, he has been quiet; — 
 and even threatens to leave the province and 
 go to France. Would to God, that he would 
 put this threat in execution ! But it is only 
 the fear of the Americans, who have invaded 
 the country, that has been the cauie of his 
 making it. • 
 
 From this Song, and the remark upon it, 
 it feems evident, that the endeavours which 
 have been made by Government to make ufe of 
 the fpiritual authority of the Popifh bi(hop of 
 Quebeck to excite the Canadians to take arms 
 againft the Englifh Americans from motives 
 of religion, have produced the quite contrary 
 effedt: They have indifpofed the Canadians, 
 both againft the biftiop and the caufe he re- 
 commended to them. This difguft of the Ca- 
 nadians againft their biftiop, on account both 
 of the penfion he has accepted from the go- 
 vernment, and of the circular letter he has 
 writ to them, to exhort them to take arms 
 againft the other Americans, will further ap- 
 pear from the following anecdotes concerning • 
 his imperious conduct both in the laft Summer 
 and for fome few years paft, which are contained 
 in an extradt of a French letter written by a 
 Canadian Roman-Catholick, who is at this 
 time refident in that province, and who, not- 
 ^ithftanding his attachment to that religion, 
 
 much 
 
 
 4H- 
 

 ( J20 ] 
 
 much dlfapproves fuch violent and exorbitant 
 abufes of fpiritual power. 
 
 • ' - * . 
 
 Anecdotes fur la conduite de Monfieur 
 Briand, Eveque de Quebec. 
 
 Extraites d*une lettre de Quebec de la fin de 
 Septembre, 1775, a un ami ^ Londres. 
 
 TL y a fept ans que Mr. Vincelot, Seigneur de 
 ■*• riflette, donna, d la requifition de TEvcque 
 dans fa vifite, un terrein de huit arpens en fu- 
 perHcie aux conditions qu on batiroit TEglife 
 fur ce terrein. Monfieur Vincelot y fit con- 
 flruire a fes frais un tres vafle prefbitere, dans 
 lequel on pouvoit dire la mefle, en attendant 
 que TEglife fut 6difiee : le Cure y etoit loge. 
 Au bout de deux annees Monfieur Briand, plus 
 incondant que le Vent, a la demande des ha- 
 bitans du haut de la paroifle, determina aiileurs 
 un lieu ou i'Eglife devoit etre batie. Elle 
 9'eleva infenfiblement, et apres trois annees on 
 la mit dans le cas d'y pouvoir dire la mefle. 
 Les conditions n etant pas remplies, Mr. Vin- 
 celot reprend fon terrein et la maifon qu'il y 
 avoit elevee. UEveque lui fait fignifier par le 
 cure, que ce qu'il a donne a I'Eglife, il ne 
 peut le retircr ; Et qu'en confequence, s'il ne 
 remet le terrein au cure, // I'excommunie avec 
 toute fa famille, Mr. Vincelot m^prife fa me- 
 nace, et garde fon terrein. Le preiat devient 
 furieux, lui fait figni^er par le cure Texcom- 
 
 munica- 
 
 doit 
 defef 
 glois 
 les raj 
 fon 
 
 'A . 
 
[ '2' ] 
 
 munication, et a fon epoufe, (i cllc eft du 
 memc fentiment. Alors Mr. Vincelot I'attaque, 
 et en pleine cour lui reproche fes fureurs, 
 fes violences, et fon ambition de vouloir fe 
 rendre defpotique dans le pais, le traitte dc vrai 
 perturbateur du repos publique. La cour garde 
 un profond filence pendant que Mr. Vincelot 
 parle, et ordonne que, les claufes n'ayarjt point 
 ete tenues, le dit terrein retourneroit a lui, dit 
 
 Mr. Vincelot. Cette avanture eft du mois 
 
 de May de Tannic derniere, et a rendu I'Eveque 
 beaucoup plus traitable avec Mr. Vincelot qu'il 
 ne 1 etoit avant. 
 
 Une autre, beaucoup plus forte, arrlva quatre 
 mois apres. Un homme de la paroifte de St. 
 Jean, dont Mr. Gafpe eft feigneur, voulut fe 
 marier avec une de fes pareptes allez eloignee, 
 et demande la difpenfe a I'Eveque. Comme 
 Mr. Briand aime un peu Targent, il exige de 
 ce nauvre malheureux une fomme qui exce- 
 doit la valeur de fa tcrre. Cet homme au 
 defefpoir s'adrefle d'abord a un Miniftre An- 
 glois pour le marier, qui le rcfule, et lui donna 
 les raifons de fon refus. Mon homme prend 
 fon parti, aflemble fes parens et fes amis, leqr 
 donne un feftin, et avant de fe mettre a table, 
 fait paroitre fa par tie, et en prefence du p?re 
 de la fille et des convives, 1 un et I'autre fe 
 donne mutuellement le confentem.ent pour le 
 manage. L'homme, il eft vrai, etoit puniifable, 
 mais Mr. Briand ne sen tiens pas la 3 il e^'com^p 
 
 Q^ munie 
 
i 
 
 '•"% 
 
 p 
 
 t ^22 ] 
 
 munlc non fculement les maries et les con« 
 vives, mais toute la paroifle fans exception : 
 en forte que Mr. et Mad. Gafpe a une lieue 
 et dcmie dc la nopce, fe trouvent enveloppes 
 dans rexcommunication. Le Cure de Tlflette, 
 qui dellert cette paroiiTe, de la part de I'Eveque 
 le porte fur le lieu ; eteint la lampe du maitre 
 autel, renverfe les cierges par terre, fait don- 
 ner les coups de cloche, confomme les hofties, 
 retire ciboire, calice, et foleil, lit la fentence 
 d'excommunication, et declare qu'elle durera 
 tant que la paroifle gardera dans fon fein cea 
 deux rebels a I'Eglile. Cette pauvre paroifle, 
 toute defolee, depute les marguillers : ils fe 
 tranfportent a Quebec, et a deux genoux vien- 
 nent fupplier I'Eveque. II etoit aiors illumine 
 d'une couple de bouteilles de bon Madeire (ce 
 qui lui arrive quelque fois, et dans ces momens 
 il ne fait pas bon de Tapprocher :) il les traita 
 comme les derniers des malheureux. Non^ 
 dit-il, je ne vous r clever ai Jamais de cette excorn^ 
 munication, Je vous apprendrai a craindre un 
 Eve que ; et le pais ^ par voire exemple^ deviendra 
 plusjoumis a I'EgliJe, Je vous ordonne de chajfer 
 ces malheureux de chez vous j et [i vous ohiijfeZy 
 je verrai ce que jaurai a fair e, Ces pauvres 
 gens fondant en larmes a fes genoux j ** ils 
 " font fur leur terres, repondirent-ils, ce n*eft 
 " point a nous a les chaffer, mais aux juges*" 
 RetireZ'VCuSy canaille, leur dit-il, en ouvrant fa 
 porte. Ils fe releverent, mais un de la bandc 
 devenant plus hardi, au lieu de fortir commc 
 
 fes 
 
t 123 
 
 1 
 
 Ifes confreres, lui dit d*un ton ferme, en pre- 
 fence de Mr. Mabane, juge des plaidoyers com- 
 muns, qui fc trouva par hazard a cette fcene ; 
 ** Monfeigneur, fi cet homme eut donne cent 
 ** cinquante piaftres que vous exigiez pour ter- 
 " miner le mariage de m^'^^ une telle, ii auroit 
 '* eu fa difpenfe, et n'auroit pas tombe dans 
 " cette faute j mais/ Monfeigneur, vous de- 
 *^ viez le punir comme coupable, et non pas 
 " toute une paroilTe qui eft innocente." Mr. 
 Mabane rit a ce debut, et pria inftamment 
 I'Eveque de relever cette excommunication, qui 
 refta neantmoins, et ne fut relevee que plus 
 de deux mois apres aux inftantes fuppliques 
 
 de Monf. et de Mad. Gafpe. Le nomme 
 
 Francois le Glerc, qui etoit un de ces marguil- 
 lers, et de qui je tiens cette hiftoire, dit que 
 I'Eveque, loin de rire comme faifoit Mr. MaM.. 
 bane, jettoU feu et flamme, ^ 
 
 D'apres ces emportemens, et de mille autres 
 qu'un volume in folio auroit peine a contenir, 
 furtout depuis I'arrivee du Gouverneur en ce 
 pais, pourroit-on accufer d'humeur celui qui 
 travailleroit a faire expulfer cet homme dc la 
 Golonie ? Non ; moi, ainfi que tous ceux du 
 pais, ne lui donnent que cette annee. Quand 
 Londre fera inftruit que le peu de rcuflite da 
 General, a mettre en armes les Canadiens pour 
 en impofer aux Boftonnois rebels ; quand la 
 cour laura que ce refus general lire la fource 
 principale ds^ns la conduite contradidtoire dc 
 
 0^2 cet 
 
 V'- 
 
 i 
 
 ■n 
 
 ■\t 
 
t 124 ] 
 
 i" 
 
 li 
 
 1^1:; 
 
 cet Evcquc, qui, apres avoir entretenu la mes*- 
 intelligence entre les nouveaux et les anciens 
 fujets depuis la conquete du pais jufqu'd pre- 
 lent, infpirant aux nouveaux un mepris Ibu- 
 verain pour les anciens jufqu'au point de faire 
 declamer dans la chaire des Jeluites par un 
 pefe Le Franc, que quiconque des Catholiques 
 Romains a quelques liaifons avec les Pro- 
 teftants, etoit ainfi qu eux hors de la vraie 
 Egliie, confequemment fans efpoir de falut j 
 quand>dis-je,ce memeEveque s'avife aujourd'hui 
 de rcpandre une lettre circulaire dans laquelle 
 il annoncc, " que nous fommes tous freres en 
 ** Jefus Chrift, reunis fous le meme Roy, que 
 " nous devons par notre ferment de fidelity 
 *' nous armer contre les Boftonnois dont notre 
 '* Roy commun eft mecontent, &c." Quand 
 la cour verra que le peuple, autrefois fi foumis 
 aux idees chimeriques de cet Eveque, adluel- 
 lement depouille du fanatifme, et las de fes 
 violences, de fes emportemens, de fes fureurs, 
 a la vue de cette lettre li contradidtoire a fa 
 conduite precedente, Ta pris en averfion et en 
 horreur> ne le regardant que conime un homme 
 inconfequent qui accorde fa religion fur fon 
 inter^t, elle comprendra qu'il eft de trop dans 
 le pais pour le bon ordre et rharmonie qui doit 
 regner entre les fujets et leur Roy ; deplus 
 que la concorde, ['union, et la paix ne pa- 
 roitra dans le Canada entre les anciens et les 
 nouveaux fujets, que lorfque c££ Eveque n'y 
 fera plus, et que fon diocele fera gouverne par 
 
 fon 
 
 C( 
 
 (C 
 
 cc 
 
 cc 
 
 lit 
 
 tc 
 
 rr 
 
 <c 
 
 ac 
 
 cc 
 
 dc 
 
 cc 
 
 de 
 
 C( 
 
 E 
 
 cc 
 
 d\ 
 
 cc 
 
 m 
 
 cc 
 
 m 
 
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 m 
 
 cc 
 
 cl- 
 
 cc 
 
 tii 
 
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 n' 
 
 C( 
 
 di 
 
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 bi 
 
 cc 
 
 rtc 
 
t 125 ] 
 
 fon coadjuteur, enfant du pais et tres paifible. 
 En efFet, cette lettre circulaire a revolte tout 
 le pais J et il fembleroit que les campagnes 
 des trois dcpartemens fe leroient abouchees 
 pour tenir le meme langage j ce qui ne peut 
 etre. ** Depuis quand, ont-ils dit, lorlque cette 
 " lettre a paru, notre Eveque eft-il dcvenu le 
 " general du pais ? Son metier eft de nous 
 ** faire des pretres, et de nous edifier par fa 
 *' conduite. C'eft aller contre fon etat, que 
 " de nous donner pareii ordre ; et dez que 
 <* dans cette lettre, il menace les ritifs de rejus 
 " de Sacreniens, et promet aux obit [fans des in- 
 " dulgences j nous comprenons clairement qu*il 
 ** joue la religion, et veut prouver fa recon- 
 " noilTance a la cour des deux cens livres fter- 
 ling de penfion quelle lui a accordees, et s*en 
 menager deux cens autres. Cela s'accorde 
 admirablement bien avec ce qu'il n'a cefTe 
 " de nous annoncer dans toutes fes vifites 
 depuis fon arrivee dans le pais comme 
 Eveque. ^il avoit refuje Douze-mille livres, 
 d' appointemens^ pour itre plus libre dans fon 
 tninijiere. Si notre General nous eut com- 
 " mandes, nous nous ferions expliques avec luij 
 ** mais dez que I'Eveque, fans doute comme 
 " chef de notre religion, croit avoir un defpo- 
 " tifme fur nous, pour lui faire voir que nous 
 ** n'attendoiis de lui que des pretres, une con- 
 " duite reguliere, plus douce, et moins am- 
 bineufe, nous meprifons fes ordres, et nous 
 ne marcherons point.'* -f*' Ce raifonnement 
 
 / eft 
 
 cc 
 
 (C 
 
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 cc 
 
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 <c 
 
 cc 
 
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 [ 126 ] ' 
 
 c(l g,encral dans toutes les campagnes, et il eft 
 etornant de voir de fimples habitans parler et 
 penftr commc de fins politiques ; bien d'autres 
 qwi moi en lont cmervcillesy^Tant il eft vrai 
 que cette fotte foumiflion aux decifions epifco- 
 pales abrutit pendant un terns : on s'endore 
 fur les abus jufqu a ce que quelque evenement 
 nous chatouille, et nous faife lortir dc cet af- 
 foupiiTement : Ce premier effort fait, adieu fa- 
 natifme, adieu tout autre moyen que la rai- 
 fou def-approuve, Sec. &(?. 
 
 Tranflation of the foregoing Anec- 
 dotes concerning the condu(!l of 
 John Oliver Briand, the Popifh 
 Bifliop of Quebeck ; extraded from 
 a letter written by a perfon of credit 
 in the province of Quebeck, to his 
 friend at London, about the end of 
 September, 1775. 
 
 Til 
 
 ■lb 
 
 il! 
 
 CEVEN years ago. Monfieur Vincelot, the 
 ^ Seignior of IQette, at his requifition of the 
 bifi:iop of Quebeck in his vifitation of the pa- 
 rifhes of his diocefe, gave a piece of ground, 
 eight French arpents fquare, for the inhabi- 
 tants of that parifh to build a church upon. 
 And he himfelf built upoa it, at his own ex- 
 
 penct, 
 
r ^27 ] 
 
 J3crice, an uncommonly fpacious parfonage- 
 houfe, in which the people of the parilli might 
 meet to hear mafs during the time the church 
 would take in building. And in this houfc 
 the prieft of the parifli lived. At the end of 
 two years Monfieur Briand, the biHiop, at the 
 requeft of the inhabitants of the higher part 
 of the parifh, appointed another place for the 
 fituation of the church which the inhabitants 
 of it were to build : and the inhabitants ac- 
 cordingly begun to build the church in this 
 latter place j and in the courfe of three years 
 (they proceeding but (lowly in the work) made 
 it fit for the performance of divine fervice. 
 When the building of the church was com-* 
 pleated, Mr. Vincelot refumed the pofTcffion 
 of the former fpot of ground and of the par- 
 fonage-houfe which he had built upon it ; 
 grounding his right to make this refumption 
 upon the non-performance of the condition 
 upon which alone he had given this ground to 
 the parifh, which was that they fliould ere<il 
 a church upon it. This proceeding gave of- 
 fence to the bifhop, who immediately fent 
 orders to the curate of the parifh to inform 
 Mr. Vincelot, that what he had once given to 
 the church, he could never after refume ; and 
 that he, the birtiop, therefore required him 
 immediately to reftore the piece of ground in 
 queftion to the curate of the pari(h ; and that, 
 if he refufed to do fo, he, the bilhop, would 
 immediately excommunicate him and all his 
 
 family. 
 
 i\ 
 
 n' 
 
 \'t 
 
 ' i 
 
[ 128 ] 
 
 I' ! 
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 I I 
 
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 1 
 
 h. 
 
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 family. This threat was difregarded by Mr, 
 Vincelot ; and he continued to keep poflcflion 
 oF the piece of ground. Upon this the pre- 
 late flew into a rage, and immediately com- 
 manded the iame curate of the parifli to ac-i 
 quaint Mr. Vincelot that he had excommuni- 
 cated him, and had extended the excommu- 
 nication to his wife alfo, if (lie joined with 
 him in his rcfufal to reftore the land. Upon 
 this Mr. Vincelot brought the matter before 
 one of the courts of Juftice^ and there openly 
 reproached the bi(hop with his pallionate and 
 violent behaviour, and his inordinate ambition 
 and defire of making himfelf an abfolute ruler 
 in the province, and declared him to be no- 
 thing lefs than a difturber of the public peace. 
 The Judges obferved a profound filence while 
 Mr. Vincelot was fpeaking, and then decided, 
 that, as the conditions upon which Mr. Vin- 
 celet had made the donation of that piece of 
 land to the parifli, had not been obferved, the 
 land muft revert to Mr. Vincelot. This affair 
 happened in the month of May, 1774, and 
 Was the occafion of the bifhop's relaxing very 
 much from the haughtinefs and feverity with 
 which he had before treated Mr. Vincelot, 
 
 Another and a much flronger inflance of 
 this bifhop's violence of temper happened about 
 four months after the former. A man that 
 lived in the parifh of St. John, cf which Mon- 
 fieur Gafpe is the Seignior, wanted to marry a 
 
 woman 
 
H "9 ) 
 
 woman who was his coufin tlipugh in a pretty 
 didant degree. In order to this he applied to 
 the bifhop for a difpenfation to enable him to 
 do fo. As Mr. ^^riand is rather fond of money, 
 he required of this poor man, for the difpen- 
 fation he wanted, a mm of money which was 
 greater than the whole value of the land ho 
 held in the parifli. This threw the poor man 
 into defpair; and he went to the proteflant 
 minifter of Quebeck, and defired him to marry 
 him. But the n^inifter refufed tQ do (o^ and 
 informed him of the rcafons which induced 
 him to make this refufal. Upon this the man 
 refolve^ to take a new courfe of his own con- 
 triving, n^ \nvites his, relations and friends 
 to his houfe, and gives them a feafl ; and, 
 before they (it dovyn to table, he produces his 
 intended bride ; and, in the prefence of tl^e 
 girl's father and of all the company ther^ at 
 (embled, the two parties declare their confent 
 \o take each other for man and wife. Now 
 this proceeding was undoi\btedIy blameable ; 
 ^nd the man was liable to he punifhed for it. 
 But thp punifl^ment of the guilty parties was 
 not fuHicipnt ^o fatisfy the hiOiop's vengeance, 
 Befides the man and the wonian who had 
 been thus married, he excommunicated all tho 
 company who had been prefent on the occa- 
 iion, and all the inhabitants of the parifli 
 without exception y fo that Monfieur Gaipe ^he 
 Seignior of the parifh, and his yVifc^ who 
 Jive at the diftance of four miles and ^ bajf 
 
 R from 
 
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 I '30 1 
 
 from the place where this offence was conr- 
 mitted, were involved in this excommunica*- 
 tlon. The curate of Iflette, who docs the 
 duty of the parifli of St. John, was fent thither 
 by the bifliop to carry this fentencc of excom- 
 munication into execution. He accordingly 
 comes to the parifh-church, and extinguilhes 
 the lamp of the principal altar, throws down 
 the wax-tapers upon the ground, orders the 
 bell to be rung, burns the confecrated bread, 
 and carries away the box that contained it, 
 the calice, and the fun, and reads the fcntence 
 of excommunication, and declares that it is to 
 continues in force fo long as the parifli fliall 
 harbour within it thofe two rebels to the autho- 
 rity of the church. Alarmed at this terrible 
 threat, the inhabitants of this unfortunate pa- 
 rifli depute their church-wardens to the bifliop 
 to implore his mercy. The church-wardens 
 repair to Queheck, and on their knees intreat 
 the bifliop to take off the excommunication. 
 But they could make no impreflion on him. 
 On the contrary he behaved to them with the 
 
 freateft rudenefs aad contempt, faying, *' No! 
 will by no means take off' this excommurdca-^ 
 tion. I will teach you to dread the power of a 
 biJJoop : and the rejl of the province will^ in con- 
 fequence of your example^ become more obedient 
 to the church, I therefore command you to drive 
 thofe two wretches from among you : and, if you 
 obey this command, I will then confider what it 
 may be proper for me to do with reJpeSi to the 
 
 excofH' 
 
 .'ill 
 
I '3' 1 
 
 'enrmmunication'' The poor church- wardens, 
 ftill on their knees, fell into tears at thofe harfli 
 words, and faid in anfwer to them, " thaty as 
 tk,/ perfons iccre upon their own land^ thcy^ the 
 ither parilJ.ncncrSj had no authority to drive 
 them out of the pariJJj^ as his Lordjhip 770W re- 
 quired them to do : but that this could only be 
 done by the Judges" ** Get you gone^ you black-* 
 guards^ get out of the room this moment j ** re- 
 plied the bifliop, and at the fame time opened 
 them the door. Upon this they rofe from 
 their kneeling pofture, to go out of the room. 
 But one of them, growing bolder than the 
 reft, ftayed behind in the room for a fliort 
 (pace of time after the reft had quitted it, and 
 (aid to the bifhop in a fteady tone of voice, 
 in the hearing of Mr. Mabane, (one of the 
 Judges of the court of common pleas,) who 
 happened to be with the bifhop at the time, 
 " My hordy if this man had given you the 1 50 
 "Dollars which you ajked of him for a difpenfa- 
 tion to marry his relation, you would have granted 
 him the dijpen/ation ; and then he would not 
 have been guilty of this offence, Andy now my 
 Lordy that he has been guilty of it, you ought to 
 have confined your punijhmetit to him alone, and 
 2J0t have extended it to the inhabitants of a whole 
 parijh, who are entirely innocent** Mr. Mabane 
 was ftruck with the juftnefs of the obfervation, 
 and could not refrain from laughing when the 
 man delivered it ; and he earncftly interceded 
 with the bifhop to take off the communica- 
 
 R 2 tion^ 
 
 t'- 
 
 ■1 
 
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 ill 
 

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 t 
 
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 t 
 
 
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 tiohv iBut he did not fUGceed. Por the bi* 
 fiiop thought fit to continue it for two months 
 longer^ apd then at laft took it off at the 
 humble and urgent requeft of Monfieur and 
 Madatn iCafpiS, This ftory was related to me 
 by Francis Le Clerc, ont of the church-war- 
 dens above-ttientioned, who waited on the bi- 
 Ihop at the defire of the other inhabitants of 
 the parifli on the occafion above-recited. 
 
 After thi^fe inftances of this bifhop's pride 
 and paflion, and a thoufand others of the fame 
 kind, which a folb volume would not be 
 large enough to contain^ (and which have 
 happened more frequently fince the Governour s 
 return info this country than before) can a 
 hian be juftly accufed t)f cenforioufnefs or ill- 
 Mature Who Should ufe his endeavours to get 
 this perfcHi fent out of the colony ? No, furely. 
 And accordingly there are great numbers of 
 people in the province who are refolved to 
 bear with him only one year longer, to try if 
 he will alter his behaviour, before they openly 
 prefer coniplaints againfl htm and petition the 
 governtnent to remove him. When it ihall 
 be generally known in Londdft that the littl6 
 fuccefs which General Carleton has ttiet With 
 in his "endeavours to artn the Canadians in or^ 
 der to teftrain the N^w^England rebels 5 — I 
 fay, when the government in England thall be 
 infoi oied that this general refufal of the Ca- 
 nadians to engage in this fervice is principally 
 
 owing 
 
 moft 
 
 I' 
 
 
 \ ^ 
 
[ 133 J 
 
 bwihg to Ihe inconfiftency of the bifliop's coii^ 
 dudt, they will readily conclude, that his con- 
 tinuance in the province can be no way be* 
 neficial to it. Kis whole bufinefs ever fince 
 the conqueft of the country has been to kee{> 
 up a fpirit of dif-uilion and mif-underilanding 
 between the Canadian and Englifh inhabitants 
 of the province^ and to infpire the former 
 with a fovereign contempt and abhorrence for 
 the latter 5 even fo far as to encourage one 
 father Le Franc, a Jefuit-preacher^ to declare 
 from the pulpit in the Jefuit*s chapel, " that, 
 whatever perjom of fbe Roman-CatboHck religion 
 have any <:onne£liom or intercourje with the 
 ^roteflanis, are out of the true churchy as well 
 as the proteflants, and confequently are without 
 hope of eternal Jalvation" Yet this fame man 
 ha6 this year fent about a circular letter in 
 which he holds a quite diflferent language, 
 acknowledging therein, " that all the inhabit 
 tants of the proivincey whether protefiants or pa^ 
 pijis^ are brothers in ChriJi^Jefus^ and Jelhw-' 
 fubjeSls of the fame king^ to whom we aU have 
 fworn and owe allegiance : and declaring^ thaty 
 in confequence of our allegiance^ we are bound 
 in duty to take arms againji the New-Englanders 
 who -have fallen under the difpleafure of our com-- 
 mon Sovereign, &c." The inconfiftency of this 
 language with the bi(hop's former dodirine and 
 conduct is fo glaring tnat it has amazed and 
 (hocked all the Canadians in the province : 
 and they have looked upon him, ever (ince 
 
 they 
 
 \i' ' 
 
 ;M 
 
 ■ \ 
 
[ 134 ] 
 
 i 
 
 " )' 
 
 II; 
 
 If 
 
 they have feen this circular letter, as a man 
 who has no fixed principles of condudl, but 
 makes his religion bend to fuit his inten^ft. It 
 is furprizing to obferve how much this circu- 
 lar letter has difgufted the whole body of the 
 Canadians. One would think, from the uni- 
 formity of the fentiments they exprefs con- 
 cerning it, that the inhabitants of the three 
 diftrids of Quebeck, Three Rivers, and Mont- 
 real had had meetings with each other to con- 
 fer together concerning it j which however is 
 impofllble. " Since 'when is if, (did they fay 
 with one voice upon the fight of that circular 
 Letter,) that our bijhop is become General of the 
 cstmtry^ We thought that the hiifmels of his 
 office had been tQ ordain new priefls for us when 
 they were wanted^ and to edify us and encourage us 
 to virtue and piety by the example of his own 
 regular and virtuous conduB, It is aBingagainfi 
 the nature of his ojfice to fend usfikb an order as 
 we have now recci'ved from him* jind when we 
 read in this letter the pajfages in which he threatens 
 thofe who Jhall prove refraSlory with the depriva- 
 tion of the facraments of the churchy and promifes 
 indulgences to thofe who Jhall comply with this 
 exhortation^ we eafily conclude that he is making 
 a tool of our religion^ and is endeavouring to Jl:ew 
 his gratitude to the government ftjr the penfion of 
 two hundred pounds Jlerling a year which he has 
 lately received from it, and to entitle himfelf if 
 he can, to an addition of two hundred more* 
 We wonder in what manner he will undertake 
 
 to 
 
. t »35 1 
 
 to reconcile this attention to his pecuniary inter efl 
 to the declarations he has been continually making 
 to us at every vifitation oj bis diocefe Jince his 
 arrival in the country in the charaBer oj bijhop^ 
 of his having refufed a falary of 12000 livrct 
 (or ^oo\, Jierling) a year ^ that had been offered 
 him by the government ^ in order that he might 
 freferve his independency ^ and aB with the greater 
 freedom in the exercife of his epifcopal office, If^ 
 injlead of our bijhopy our general had, on tlm 
 occafion^ commanded us to take arms^ ive JJmdd 
 have endeavoured to give him JatisfaBion, But 
 nvhen we find our bifljop, in confequence of his 
 being our head in matters of religiony affiime an 
 abjolute authority over us with rejpedl to matters 
 of a totally different nature ^ we are determined 
 to rejiji this ufurped [pedes of authority^ and ta 
 convince him that the only good offices we expeBy 
 or defire^ at his bands^ are ; to ordain new priefls 
 for us whtn they arc wanted^ to jet us an example 
 of virtuous arid godly livings and to behave to- 
 wards us with more mildnej's and moderation than 
 be has hitherto done, and not give himj'elf up to a 
 fpirit of ambition. And with this view we are 
 rejolved to negledl bis military order Sy and not 
 take arms on this occafion',' This is the kind of 
 reafoning that one hears in aimoft every village 
 throughout the province from the mouths of 
 the common peafants that inhabit them, who 
 fcem on the prefent occafion to be turned into 
 grave and fubtle politicians, to tlie great afto- 
 ijilhment of many other people, who arc well 
 
 acquainted 
 
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 '^\ti 
 
 
M, 
 
 1l 
 
 " III 
 
 1^ 
 
 •^!^ 
 
 if: 
 
 [ 136 ] 
 
 acquainted with this province, as well as myfelf. 
 So true is it that a blind fubniiffion to epifpopal 
 authority can only prevail in a country for a time, 
 but cannot continue its in^Buence over men's 
 minds when fome alarming occa(V>f^ offers that 
 roufes them to examine its nature. When once 
 they have made this firft exertion, and dared to 
 begin this inquiry, fuperftitious opinions are very 
 foon difcarded, and reafon and common ferife 
 relume their proper influence over the mind. 
 
 : u 
 
 n 
 
 ■■rt 
 
 >%^ 
 
 '|!.!| 
 
 ■I 
 
 ■!,f 
 
 
 H 
 
 Remark on th^ foregoing anecdotes 
 ._ concerning the Popifh hifhop of 
 Quebeck. * 
 
 npHESE anecdotes feem to prove that it 
 * was an injudicious indulgence to the more 
 bigotted part of the Roman-Catholick inhabi--. 
 tants of Canada to permit any perfon to exercife 
 the office of a popifti bi{hop in that province, 
 as it has operated as a qenter of timon to the 
 Roman-Cathplicks of that province^^ by which 
 they have been kept fteady in their attachnxent 
 to uie RpmanrCatholick religion, through the 
 terrours of e^communicatipiis and other epifgo- 
 pal cenfures, and have been thereby prevented 
 from abandoning the errours of popery, or fbme 
 of them, and embracing the tenets of the pro- 
 teftant religion, even though they may have 
 been fecretly inclined to do fo. And it has 
 
 likewife. 
 
 ■tiji. 
 
{ '37 1 
 
 likcwife, we fee, tended to keep np in the Ro- 
 man-Catholkks an averfion to the proteftant 
 inhabitants, and to prevent that free intercourfe 
 between them which would otherwilb, pro- 
 bably, have taken place, and which indeed, I 
 am affured, bad begun to take place before the 
 year 1766, when Monfieur Briand returned 
 into the province in the charader of biOiop, 
 He feems, however, at laft, by a violent and 
 indifcreet ufe of his epilcopal authority, to have 
 loft much of his influence in the province; 
 which I confider as a very fortunate circum- 
 ftance. And the acceptance of a penfion of 
 200 1. fterling a year from the crown fe.ems to 
 have contributed very much to this eifedl. 
 And on this account, I muft confefs, 1 efleem 
 that penfion to have been mod properly be- 
 ftowed. 
 
 '';*. ^ ' 
 
 Wi i 
 
 The province of Quebeck had been without 
 ? biihop from the year 1760 to the year 1766, 
 when Monfieur Briand was permitted to return 
 into it in that chara(5ler. He had only a verbal 
 permiflion to do fo, without any licence, or 
 other authority in writing, from the king's ma- 
 jefty, or any of his minifters for that purpofe. 
 And there is reafon to think that he had ftipu- 
 lated with the perfons by whofe recommenda- 
 tion he was permitted to return into the province 
 in that charadter, that he would exercife only 
 that part of his Ipiritual authority by which he 
 was enabled to ordain priefls, and confecrate 
 
 S new 
 
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 [ '38 1 
 
 new churches and chapels and burying-grounds, 
 and perform the like inofFenfive offices, but 
 would not make ufe of his fpiritual thunders, 
 or the power of excommunicating perfons, or 
 caufing them to be hindered from receiving the 
 facraments, or of depriving priefts, or fufpending 
 them from the exercife of their fpiritual fundions, 
 or of interdiding divine worfhip in the churches 
 or chapels of the province. Thefe latter pow- 
 ers, 1 fey, it is probable he had promifed not 
 to exert. ^At leafl: it is certain that when, upon 
 his arrival in the province in the character of 
 bifliop, his friends received hittl with the cere- 
 mony and refped that had ufually been paid to 
 his predeceflbrs in that high office, he rather 
 declined thofe compliments, and made anfwer 
 to them, •* that he did not come into the pro^ 
 vince to be a bifhop upon the fame high foot- 
 ing as his predeceflbrs in the time of the 
 French government, and was not therefore 
 intitled, and did not delire, to be treated with 
 the fame ceremony and refpedt as had beenufed 
 *' towards them ; but that he was unjimplefaifeur 
 ** de pretres^ a mere ordainer of new priefts." 
 That, I have been well afliired, was the ex- 
 preffion he ufed on that occafion. It is pro- 
 bable that, without thefe ftipulations, he would 
 not have been permitted to return into the pro- 
 vince in the charader of bifhop. In purfuance 
 of this humble plan, (which he feems to have 
 promifed to obferve,) he wore for the firft 
 inonth, or two, after bis arrival at Quebeck in 
 
 June, 
 
 cc 
 
 <c 
 
 cc 
 
 cc 
 
 (C 
 
[ 139 3 
 
 June, 1766, only a common black gown, like 
 the other Roman-Catholick priefts. But in a 
 fhort time he grew tired of doing fo, and put 
 on a purple robe, with a golden crofs at his 
 bread, which are the ufual enfigns of the epif- 
 copal dignity among the Romcin-Catholicks. 
 And fince that time he has fufiicicntly exer- 
 cifed the tremendous powers of fulpending and 
 depriving priefts, excommunicating and depriving 
 perfons of the facraments, and interdidling di- 
 vine worfhip in churches and chapels. So little 
 are promifes and ftipulations of this kind to be 
 depended on ! ^^^^ 
 
 We have feen that the Canadians had done 
 without a bifhop for fix years, to wit, fron> 
 1760 to 1766, when Monlieur Briand returned 
 into the province in that charader. And I 
 have been well afTured that the greater part of 
 the Canadians were very well fatisfied without 
 orie, and that it was only the more zealous and 
 high-church party amongft them that widicd 
 to have a bifliop relident amongft them for the 
 greater fplendour and more permanent eftablifh- 
 ment of their religion -, the reft of the people 
 being very well contented with the very ample, 
 and indeed conipleat, toleration of the wor(hip 
 of it, in conformity to the capitulation and de- 
 finitive treaty of peace. And they all had, in 
 a manner, given up the expedntion of ever 
 having another Popifh bifhop, in the coune cf 
 thofe fix years that they were without one, and 
 
 S 2 were 
 
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 ■■ 
 
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 were prepared to acquiefce in the want of 
 one, when Monfieur Briand returned into the 
 province. 
 
 The pretext which this gentleman and his 
 patrons made ufe of with his Majefty's Mini- 
 fters of State in the year 1766, to induce them 
 to confent to his returning into the province in 
 the charadler of a Roman- Catholick bifhop, 
 was the neceflity of providing new priefts to 
 fupply the vacant livings, or diofe which fhould 
 become vacant hereafter by the deaths of their 
 incumbents. ** You have granted, laid they, 
 to the Canadians by the treaty of peace, the 
 liberty of publickly exerciling the wcrlhip 
 of their religion. To the enjoyment of this 
 privilege Roman -Catholick priefts are necef- 
 iary. There is at prefent a great want of 
 fuch prieds ; there being many parifhes at 
 this time in the province that have no priefts 
 to do duty in them. And when the priefts 
 now in the province (hall be dead, their 
 places muft be fupplied by new ones. Now 
 the queftion is, how thefe new priefts fhall 
 be procured ? Will you permit new French 
 priefts to come into the province from old 
 France, from time to time, to fupply thefe 
 vacant livings ? That would, fiirely, be dan- 
 gerous : becaufe thefe French priefts might be 
 Ipies for the king of France j or, at leaft, 
 vC'ouId be well affedled to his intereft, and 
 would keep up an attachment to old France 
 
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 *< in the minds of the Canadians, and a defire 
 of returning to that government. Is it not 
 much better to breed up the young Cana- 
 *' dians to the Romifli church in the femina- 
 ** ries, or colleges, which are already eftablifli- 
 " ed in the provim; ^ and then to have them 
 ordained in the province itfelf, by one of his 
 Majefty*s own fubjeds, who will be con- 
 ftantly refident in the province? and, for 
 this purpofe to permit a Roman-Catholick 
 bifhop to relide in the province, by whom 
 thofe young Canadians may be fo ordained ? ** 
 This was the argument, as I have reafon to 
 believe, by which his Majefty's Minifters, in 
 1766, were prevailed upon to connive at Mon- 
 sieur Briand's returning into the province of 
 Quebeck in the character of bifhop : I fay, 
 €onniv€ at his doing fo ; becaufe, as they did 
 not procure for him any licence or permiflion 
 in writing to authorize him to do fo, it can 
 hardly be called by any other name. And it 
 muft here be obferved, that even the Quebeck 
 adt itfelf (which reftores to the Romifh priefts 
 their legal right to their tythes, and other an- 
 tient dues from their Roman>Catholick pa- 
 rifhioners) does no more than connive at the 
 bifliop's exercifing the epifcopal authority in 
 Canada, there being no claufe in it that im- 
 powers him to do fo, or that makes mention 
 of his refidcnce in the province. 
 
 The 
 
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 [ 142 1 
 
 The above-mentioned argument is certainly 
 fpecious : but I do not think it conclufive. 
 For it would have been eafy to have obtained 
 the advantages, which are the ground of it, 
 that is, the exclufion of frefh priefls coming 
 into the province from c'A France, without 
 permitting a Popifh bifliop to refide in it, by 
 purfuing the following plan. The feminary, 
 ojr college, at Quebeck might have been pre- 
 served, with all its members and teachers of 
 Popifh divinity and its revenues, (which are 
 faid to amount to fix or feven hundred pounds 
 fterling a year,) for the education of young 
 Canadians to the profeffion of the priefthood : 
 and when they had attained the proper age for 
 taking orders in that church, thefe young men 
 might have been fent over to England at the 
 King's expence with the Governour's recom- 
 mendation to his Majefty*s Secretary of State 
 for America, as young men of good beha-? 
 viour and principles, that were fit to be made 
 priefls and hold benefices in the province. And 
 from England they might have been fent to 
 Munfter in Germany, or to the Popifti canton of 
 Lucerne inSwitzerland,(attended by fome proper 
 and trufty companion, who (hould have taken 
 care that they (hould not have fet their foot in old 
 France) with recommendations, if they had gone 
 to Switzerland, from the Secretary of State for 
 America to his Majefty's Refident, or other 
 Minifter, to the Swifs Cantons -, and there they 
 might hime been ordained to the priefthooiof the 
 
 chu ch 
 
Tl 
 
 
 [ »43 1 
 
 thurch of Rome by the bifliop of Munftcr, 
 or Lucerne, or fuch other Roman-Catholick 
 diftridt, (not in old France,) as his Majefty, 
 in his royal Wifdom, fhould have thought fit 
 to fend them to. And when thus ordained 
 priefts of the church of Rome by fuch foreign 
 Popifh bi(hop, they fhould have returned to 
 England, and from thence to Quebeck by the 
 firft convenient opportunities, at the king's cx- 
 pence. Such a voyage to Europe would pro- 
 bably have been confidered, by the young can- 
 didates for the priefthood who would have had 
 occaiion to take it, as a party of pleafure rather 
 than a hardship. And the expence of it to 
 the Publick would have been trifling ; perhaps 
 300 1. or 400 1, once in three or four years. 
 For, as the whole number of parilhes in the 
 province is but 128, (at lead it was no greater 
 in the year 1767 5 I know not how many new 
 parishes may have been created fince : ) a fup- 
 ply of two new priefts a year, or fix or feven 
 every three years, would probably have been 
 fufficient to keep the benefices always full. By 
 this obvious and eafy method of procuring new 
 priefts for the fupport of the Roman-Catholick 
 religion agreeably to the toleration promifed 
 by the capitulation and treaty of Peace, the 
 fuppofed neceflity of permitting a Popifti bi- 
 fliop to refide in the province might have been 
 avoided. But, fince a Popilh bifhop is per- 
 mitted to refide there, [ am extreamly glad 
 he has a penfion &Qm the crown, and that 
 
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 I '44 1 
 
 his acceptance of it has lefTened his influence 
 over the French and Roman-Catholick inha- 
 bitants of the province in the manner repre- 
 fcnted in the foregoing papers. 
 
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 ^ i 
 
 
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 1 
 
 • 1 !; 
 
 We have feen above in the Account of the 
 proceedings^ &c. page 112, the Petition of a 
 fmall number of the French inhabitants of the 
 province of Quebeck to the King's Majefty 
 concerning the revival of the French laws and 
 the admiHion of Roman-Catholicks to places 
 of trufl: and profit, which was made the foun-* 
 dation of the late Quebeck ad. And we have 
 feen in the Petition of the Britifh and other 
 proteflant inhabitants of the province to the 
 houfe of Commons againfl the faid Quebeck 
 adl, that they declare^ " that the faid French 
 petition bad never been imparted to the inhabi- 
 tants of the province in general, that is, to the 
 freeholders, merchants^ and traders of the pro-* 
 vince, who are equally alarmed with them (the 
 faid Britijh and other inhabitants,) at the Cana^ 
 dian laws being to take place, but was in afecret 
 manner carried about andjigned by a few of the 
 Seigneurs, Chevaliers [de Saint Louis] [French^ 
 Advocates and others in their confidence, at the 
 fuggefiion and under the infience of their prieftsl* 
 See the Account of the Proceedings, &c. page 
 257. It is therefore to the influence of the 
 
 Romifh 
 
E '4? } 
 
 Romin> piicfts of the province of QiiebccJc, 
 who adl under the autnority and by the di- 
 redion of their bifhop, that v/c are to afcrlbe, 
 in a great meafure, the fending over that F; :nch 
 petition in the beginning of the year 1774, 
 which was made the foundation of the Que- 
 bcck adt. And I have hear'd by other ac- 
 counts, that the faid bi(hop*s influence was very 
 powerfully exerted to procure the fignatures to 
 that petition : fo that the prefent revival of tho 
 French laws in all civil matters by the late 
 Quebeck adt is in a great degree owing to 
 that bifhop. This is confirmed by the fol- 
 lowing paflage, which is contained in a paper 
 writ by a French Roman-Catholick of very 
 good fenfe in the province of Quebeck about 
 the month of November, 1774, a few months 
 after the arrival of the faid Quebeck ad in the 
 province, and during the firft great and gene- 
 ral confternation into which the great body of 
 the inhabitants of the province, both French 
 and Engli{h, Roman-C-atholicks and Protef- 
 tants, with the few exceptions above-rmen- 
 tioned, v/ere thrown by its contents. 
 
 11 faut ohfer'ver que, /i la lot Angktfe ria pm 
 en lieu dam k pdis^ et que celle des Franpis a 
 pris fa place, Nveque de ^ebec eft le fetd auteur 
 
 de la chofe : ^e, ft quelques Jeigneurs ont 
 
 approuvi cet arrangem!;nt, que c'eji ni du gcut 
 
 dei bourgeois ni des habit ant Sy qui Je voyeni 
 
 ■: ■ T adiuellement 
 
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 [ 146 ] 
 
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 it 
 
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 Gdiiiellement genh tel qu Us r etoient du tempi 
 
 des Francois : ^e fa lot Anghifey qui avoit 
 
 juhfijle depuh le fi^ge^ a*uoit mis tout le monde 
 au meme niveau \ et que tout le monde itoit 
 content** 
 
 ^ranjlation of the foregoing French pajfage. 
 
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 " It muft be obferved, that the fuppreflion 
 of the Englifli law in the province by this 
 aft of parliament, to make way for the re- 
 vival of the French law, is intirely owing to 
 the bifhop of Quebeck : — That, though it 
 may be true that a few of the feigniors of 
 the province have expreflfed an approbation 
 of this new fettlement of its laws and go- 
 vernment, it is not at all fuited to the taftes 
 of either the merchants and other inhabitants 
 of the towns in the province, or the peafants; 
 all of whom now conceive themfelves to be 
 reduced to the fame uneafy ilate of fervitude 
 to the noblefle and the officers of government 
 in which they were kept in the time of the 
 
 French government: That the laws of 
 
 England, which had been in force in th^ 
 province ever fince the conqueft of it by the 
 Briti(h arms, had introduced an equality of 
 freedom and independency through all ranks 
 of people in the province, and had thereby 
 given general iatisfadion to them all." 
 
 From 
 
[ H7 ] 
 
 From this and all the other preceding papers 
 I think it is fufficiently evident that the revival 
 of the whole body of the French laws in civil 
 matters in the province of Quebeck by the late 
 ad of parliament, is by no means agreeable to 
 the bulk of the French, or Canadian, inhabitants 
 of the province, any more jthan to the Englifh 
 fettlers in it. And they are likewife but little 
 pleafcd (as I am informed) with that part of 
 the faid adt which has revived the compuKive 
 obligation of the Roman-Catholicks to pay the 
 priefts their tythes and other antient dues. The 
 reafon of this difTatisfadion is fet forth in the 
 following paper, which was publifhed in the 
 form of a letter in the Public Advertifer of 
 December 29, 1775. 
 
 ks 
 by 
 
 On the diflatisfadion of the Canadians 
 at the re-eftablifliment of popery in 
 Canada by the kte Quebeck a6t. 
 
 December 9, 1775. 
 
 TT may feem ftrange, Mr. Printer, to many 
 -■" of your readers, that the re-eftablifliment of 
 the popifti religion in Canada, by giving the 
 priefts a legal right to their tythes, can have 
 given the Roman-Catholicks in that province 
 any difguft, as they are known to be ftrongly 
 attached to that religion : yet, that it has done 
 
 T 2 f > 
 
 M 
 
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I 
 
 ji !' 
 
 'i* [11: 
 
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 t' 
 
 ( '48 1 
 
 fo ill a very high degree, I am well aflured by 
 fome gentlemen of fenfe and credit that arc 
 lately arrived here from that country. This 
 event does not indeed much furprize thofe 
 perfons who vere acquainted with the ftate of 
 that province bi-fore the pafiing of the Quebeck 
 bill J for they knew how amply the popifh re- 
 ligion was tolerated there before that time by 
 virtue of the capitulation, and the remarkable 
 fpiritof mildnelsand juftice which then induced 
 both the government of the province and the 
 EngliQi and other proteftant inhabitants of it, 
 to oblerve and execute that lacred article of the 
 capitulation to its utmoft extent 5 and they had 
 been witneffes of the great aflonifliment and 
 fatisfaxflion which this high degree of toleration 
 had excited amongft: the Canadians; which 
 indeed was fo great, that the noblefTe of the 
 province did not venture in their petition of 
 December, 1773, (which was made the foun- 
 dation of the late Quebeck-ad) to make any 
 complaint upon this head ; for the few perfons 
 vvholigncd that petition, (who, including a boy 
 of 1 3 years of age, and fome other very young 
 perfons, amounted only to 65 perfons, in the di- 
 flridl of Montreal) Iky nothing of a want of free- 
 dom in the exercife of their religion, but com- 
 plain only of the exclufion of Roman-Cathplicks 
 irom places of truft and profit, which is an in- 
 convenience of a quite different kind, and which 
 even thofe of the proteftant difTenters from the 
 Church of England, who comply with the terms 
 
 of 
 
 f < 
 
I 149 ] 
 
 ing 
 
 kh 
 the 
 ms 
 
 of 
 
 of the toleration adl, are expofed to here in 
 England. But, to return to the toleration of 
 the Roman-Catholick religion in Canada before 
 the late Quebeck-adt, — I fay, that it was fo 
 compleat as to aftonifh the Canadians, and give 
 them tlie fulled fatisfadion. The churches and 
 chapels of the province were all left entirely in 
 their hands: their priefts polTefTed the glebe 
 lands and parfonage houfes: they wore their 
 habits on all occafions and in all places, and 
 performed their religious exercifes and ceremo- 
 nies in their antient and accuftomed manner, 
 and even had their publick proceffions of the 
 hoft through the ftreets of Quebeck and Mon- 
 treal, as often as they pleafed, and without the 
 lead moleftation or infult, or even ridicule, from 
 the proteftants in the province.— The proteftants 
 contented themfelves with borrowing of the 
 Recollet monks at Quebeck, and of the Urfulinc 
 nuns at Montreal, by their leave and favour, 
 the ufe of their refpedive chapels for one hour 
 in a week, every Sunday morning, for the per- 
 formance of divine fervice. Such was the tole- 
 ration of the Roman-Catholick religion before 
 the late Quebeck- ad. It could not be more 
 compleat, and the Canadians were perfedly 
 fatisfied with it. Yet it was ifuf a toleration ; 
 the fupport of the religion depended entirely on 
 the free choice and will of the Canadians, and 
 no legal procefs could be ufed in the courts of 
 juftice, to compel them to pay the tythes, and 
 other former taxes, for the maintenance of their 
 
 priefts. 
 
 -i. 
 
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 pricfts. And this the Canadians well knew 
 and were much pleafed vviih, becaufe (they 
 faid) it made their priefls more condefcending 
 and affable in their behaviour to them, and 
 more diligent in the difcharge of their duty. 
 /^ This being the cafe, I believe, Mr. Printer, it 
 will no longer appear furprifing to your readers, 
 that the Canadians fliould not be pleafed with 
 that claufe in the late a(St, which, without in-^ 
 creafing the freedom of the exercife of their 
 religion (for that, in truth, could not be in- 
 creafed) has unneccflarily and ofHcioufly revived 
 the compuliive obligation under which they had 
 formerly lain, to pay the priefts their tythes, 
 but from which they had lived exempt and 
 happy for the fpace ot fifteen years. y( fay, this 
 compulfive obligation to pay the tythes, has been 
 revived unnecejfarily and officioujly^ becaufe no 
 part of the above-mentioned petition of a few 
 of the nobkfle (though obtained, as I am cre-f 
 dibly informed, in the moft clandcftine manner^ 
 and by the utmoft exertion of the bi{hop*s in- 
 fluence) requefted the revival of it : and much 
 lefs was there the lead reafon given to thegovern- 
 ment to fuppofe that the reft of the Canadians, 
 the merchants, tradefmen, and yeomanry of the 
 province j that is, in a word, the great body of 
 the Canadian PEOPLE, (whofe wifhcs alone 
 ought to have been confulted on this occafion) 
 were in the leaft defirous of it. And in fad, 
 BOW that this obligation is revived, they are 
 equally furprifed and difguiled at it. And, i 
 
 prefume, 
 
 prefi 
 Mr. 
 
 ftate 
 their 
 
 ii' 
 
[ 'SI ] 
 
 prefume, the impartial part of your readers, 
 Mr. Printer, when they read this plain and true 
 ftate of this matter, will no longer wonder at 
 their being fo. 
 
 I am your humble fervant, 5oc. 
 
 P. S. I am told that the Canadians are at 
 this time under dreadful alarms at the apprc- 
 henfion of the numerous fuits for tythes which 
 they exped their priefts will bring againft them, 
 as foon as any Courts of Civil Judicature (haU 
 be opened in the province. For by the late 
 Ad of Parliament, all the former Courts of 
 Juftice were abolKhed on the ifl day of May 
 laft, and no others were ereded in their ftead ; 
 the confequence of which has been, that the 
 province has continued in a ftate of anarchy, 
 at leaft with refped to Civil Matters, ever lince 
 that fatal day. For the new Legiflative Council, 
 (confifting of Monfieur de Belleftre, Monfieur 
 de Contrecoeur, Monfieur La Coine de Saint 
 Luc, and others,) to whom the delicate and 
 difficult bufinefs of ereding new Courts of Ju- 
 dicature in the province, to fupply the place of 
 the old ones, was entrufted by the late Ad, 
 have not yet exercifed their Legidative Talents 
 in the difcharge of this important duty. I mean 
 on the 15th of laft Odober: fo that from the 
 I ft of May till that day no civil adion of any 
 kind could be brought in the province. It is 
 fuppofed, however, 3iat this ftate of things can- 
 not 
 
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 not laft long ; and that the Governour and hfs 
 Legiflative Counfellors, will foon meet again 
 to confult upon this very urgent bufinefs. And 
 happy will it then be for the province, if they 
 liften more to the advice of Mr. Hey, the Chief 
 Juftice of it (who is a Man of real under- 
 ftanding) than they did at their laft meeting, 
 when his fuggeftions in favour of the re- 
 eftablifhment of the Commercial Laws of £ng« 
 land and the Trial by Jury, (to be had at the 
 option of the parties, with the confent and 
 approbation of the Judge) were oppofed by 
 Monfieur La Corne de Saint Luc, and the other 
 new Roman Catholick Members of the Coun- 
 cil, till their Meetings were broke up by the 
 news of another invafion of the province, by 
 the troops of the United Colonies near Mont- 
 real. 
 
 the 
 
 m 
 
 
 
 The Quebeck ad aboli(hed all the courts of 
 juftice in the province on the firft day of May, 
 1775, by the following remarkable claufe: 
 ** Be it Jurther enadled by the authority aforefaidy 
 that the Jaid proclamation^ (of OBober^ ^l^l) 
 fo far as the fame relates to the Jaid province of 
 Rebeck i—and the commijfion under the authority 
 whereof the government of the f aid province is at 
 prefent adminiftered -, — and all and every the ordi- 
 nance and ordinances made by the Governour and 
 Council of Rebeck for the time beings relative to 
 
 ike 
 
 ;i| 
 
t '53 ] 
 
 the civil government and admimjlration of juftice 
 
 in the [aid province ; and all commiffions to 
 
 judges and other ojjicers thereof \ be^ and the 
 
 fatne are^ hereby revoked^ annulled^ rndmade void, 
 from and after the firfl day of May, one thoufandy 
 /even hundred, and feveniy-five" And it did 
 not eftablifh any other courts of juftice in the 
 province in the room of thofe which it fo abo- 
 iifhedj but only recognized a power in the 
 crown-to eftablilh them. The claufe by which 
 this power is recognized in the crown is as fol- 
 lows. *' And be it further enaBed by the authority 
 aforefaid, 'That nothing herein cojitained Jljall 
 extend, or be conftrued to extejid, to prevent or 
 hinder his Majefty, his heirs and fucce^ors, by his 
 or their letters patent under the great feal of 
 Great'Britain, from creeling, conjiituting, or 
 appointing^ fuch courts of criminal, civil, and 
 ecclefiajlical, jurifdi&ion within and for the faid 
 ■province of Rebeck, and appointing, from time 
 to time, the judges and officers tljereof, as his 
 Majefty, his heirs and fucceffors fjjall think ne- 
 ceffary and proper for the circumjlances of the 
 jaid province r 
 
 In purfuance of this claufe it fhould feein, 
 that fome inftrument ought to have been pre- 
 pared by his Majefty *s authority, and palled 
 under the great feal of Great- Britain, as foon as 
 poflible after the pafling of the Quebeck adl, 
 to eredt other courts of juftice in the province, 
 v/hich ftiould begin to fit and exercife their 
 
 U powers 
 
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 poweVs of judicature on the faid firft day of 
 May, 1775, in lieu of the former courts of 
 juftice, which were to ccafe and 4)6 aboliflied 
 on that day. But no fuch inftrument was 
 prepared : infomuch that, when the firft day 
 of May arrived, the province muft have fallen 
 into a ftate of perfedt anarchy by means of the 
 firft of the two foregoing claufes of the Quebeck 
 adt, if Governour Carleton had not endeavoured 
 to prevent it by appointing three magiftrates, 
 whom he called Confervators of the Peace, for 
 the diftridt of Qu,ebeck, and as many more for 
 the diftrid of Montreal. Thofe appointed for 
 the diftrid of Quebeck were Mr. Adam Ma- 
 bane and Mr. Thomas Dun, (who had been 
 the judges of the court of Common-Pleas for 
 that diftridt before the fuppreflion of that court 
 on the faid firft day of May, 1775, by the 
 Quebeck ad,) and Monfieur Claude Panet, a 
 French Roman-Catholick lawyer and notary 
 at Quebeck : and thofe appointed for the 
 diftrid of Montreal were Captain John Frafer 
 and Mr. John Marteilhe, (who had been the 
 judges of the court of Common-Pleas for that 
 diftrid before the fuppreflion of that court on 
 the faid firft day of May, 1775, by the Quebeck 
 ad>) and Monfieur Rene Ovide Hertel de 
 Rouville, a French Roman-Catholick gentle- 
 man of Montreal, who had been a judge at 
 Three Rivers in the time of the French go- 
 vernment. 
 
 5oon 
 
t 155 1 
 
 Soon after the appointment of thefe confer- 
 vators of the peace, an accident happened at 
 Montreal which gave occafion to thofe of that 
 diAridt to exercife their authority in a very re- 
 markable manner. It was as follows. 
 
 On t)ie morning of the ift of May, fome ill- 
 difpofed pcrfons (who remain to this hour un- 
 difcovered) had daubed over the king's buft at 
 Montreal with black, and hung a crofs at the end 
 of it, which they indecently ornamented with a 
 mitre and a ftring of beads, and writ under it 
 thefe opprobrious words, * Voici le Pape du 
 
 * Canada, et le Sot des Anglicans i" that is, 
 ^ This is the Pope of Canada and the Fool of 
 
 * England." 
 
 This adl was undoubtedly feditious, and de- 
 ferving of puni(hment j but it was not, and I 
 prefume few Engliflimen will think it ought to 
 have been, a capital crime. However, it feems 
 that Monfieur de Belleftre, a French gentleman 
 in the province of Quebeck, and one of the 
 new Roman-Catholick members of the legilla- 
 tive council eftabliflied in it, was of a different 
 opinion ; for as the people were gathered to- 
 gether on the next day to hear a proclamation 
 made of a reward for the difcpvery of the pcr- 
 fons who had committed this offence (which 
 reward was no lefs than one hundred guineas, 
 which the Englifli inhabitants of Montreal had 
 immediately fubfcribed at a general meeting, 
 
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 nnd which was proclaimed by beat of drum at 
 the head of the grenadiers of the 26th regiment) 
 this very loyal French gentleman faid, * that he 
 
 * would give 1 00 1. out of his own pocket to 
 
 * find out the perfons who had done this, and 
 ' fee them feverely punifhed and fent out of 
 ' the province ; for that they deferved to be 
 
 * hanged, and, if they were in France, would 
 
 * befo." 
 
 Upon hearing this fevere opinion, a young 
 English merchant, of the name of Franks, who 
 is fettled at Montreal, and who at that time 
 happened to be (landing near Monfieur dc 
 Belleftre, replied to him in thefe words, " On 
 *' ne pend pas pour fi peu de chofes en Angle- 
 " terre ;" that is, " In England men are not 
 " hanged for fuch fmall offences j" which 
 words he repeated twice or three times. This 
 provoked Monfieur de Belleftre to fuch a degree, 
 that, after giving the young man much oppro- 
 brious language, he at laft proceeded to blows, 
 ftruck him in the face, and pulled him by the 
 nofe J upon which the other gave him a blow 
 in the face, which knocked him down. The 
 next day. May the 3d, upon a complaint of 
 Monfieur de Belleftre to the faid confervators of 
 the peace for the diftrid of Montreal, not of 
 the blow he had received from Franks (for to 
 this he was confcious he had given occafion by 
 ftriking him firft) but of the words pronounced 
 by the latter, to wit, " that in England people 
 
 (t 
 
 were 
 
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 t «57 1 
 
 " were not hanged for fuch fmall offences;** 
 ihefe confervators iffiied the warrant here-under 
 following for committing young Franks to 
 prifon : and he was accordingly carried thither 
 by a party of foldiers with bayonets fixed ; and 
 lOjOOol. bail, that was offered to procure his 
 liberty, and be fecurity for his appearance to 
 take his trial for this offence, was reilifed. And 
 there he continued for a week j at the end of 
 which time the fame confervators of the peace 
 (by the diredion, as it is fuppofed, of Governour 
 Carleton) ordered him to be difcharged without 
 any bail at all. The warrant of commitment 
 was as follows : ' 
 
 " Diftria de Montreal. 
 
 " Par Jean Frafer, Jean Mar'teilhe, et Rene 
 Ovide Hertei de Rouville, ecuyers, juges et 
 confervateurs de la paix dans la diftridt de 
 Montreal. 
 
 ** Fran9ois Marie Picote de Belleflre, ecuyer, 
 ayant fait ferment fur les Saints Evangiles, 
 que, mardi le dcuxieme May courant, s etant 
 arrcte pour entendre la publication d'un ban 
 a Toccalion des miferables qui avoient infulte 
 le bufte de fa Majefte, il auroit dit hautement, 
 qu*ils meriteroint d'etre pendus j a qui le 
 nomme Salilhury Franks auroit repondu avec 
 aigreur, '* que Ton ne pendoit point pour fi 
 peu de chofes, et que cela ne valoit point la 
 
 peine j" 
 
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 [ 158 1 
 
 " peine 5" cc qu*il avoit diflfercntcs fois, publi-' 
 *' quement et a haute voix re- here : 
 
 " Nous, ayant ^gard \ la dittc plaintc, et con- 
 *' fiderant combien tout bon citoyen doit en- 
 vifager avec horreur un afte aufli atroce, et 
 que^ par confiquence^ touts ies propos qui tendent 
 a dire que defi peu de cho/es, doivent etre riput^s 
 ** crimineh\ 
 
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 " Pour CCS caufes nous vous authoril()ns et 
 nous vous ordonnons de conduire Salilbury 
 Franks dans la prifon de cctte ville, pour y 
 ** ^tre detenu jufqu*^ ce qu'il en foit de- 
 •• charge par la loi. Et pour cela ce warrant 
 •' vour fervira de decharge. 
 
 " Donne a Montreal fous nos f^eaux ct 
 ** fcings le troifieme jour de May, i yy^, 
 
 " Seigned, 
 
 cc 
 
 John Fraser, 
 John Marteilhe, 
 " Hertel de Rouville. 
 
 cc 
 
 Cf 
 
 " Aux bailiffs de Montreal/* 
 
 The warrant to the jailor to receive and de- 
 tain him, was as folipws : 
 
 W 
 
 <c V 
 
 Ycu 
 
 f • ' I 
 
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[ '55 1 
 
 '* You are hereby ordered to receive the 
 ** within mentioned prifoner, and keep him 
 ** in cuftody, till by law difcharged. 
 
 « 
 
 J. F. with the initial letters of judgt 
 ** Frafcr*s name. 
 
 " To Mr. Mackay, gaol-keeper.*' 
 
 The Englirti of the above warrant of com- 
 mitment is as follows: 
 
 - " Diftria of Montreal. 
 
 " By John Frafer, John Marteilhe, and Rene 
 
 * Ovide Hertel de Rouville, efquires, judges 
 
 * and confervators of the peace in the diflri(fl 
 ' of Montreal. 
 
 " Whereas Francis Mary Pic6te de Bellcftrc, 
 efquire, has made oath on the Holy Gofpels, 
 that, on Tuelday the fecond day of this pre- 
 fent month of May, as he was (landing dill 
 in the ftreet to hear a proclamation publiihed, 
 concerning thofe wretches who had infulted 
 his Majefty's buft, he had openly declared 
 that he thought they deferved to be hanged : 
 And that thereupon one Salifbury Franks 
 had anfwered with fharpnefs, * that it was 
 not ufual to hang people for fuch fmall of- 
 fences, and that it was not worth while to 
 do fo 5 " and that he had repeated thefe 
 words feveral times, and with a loud 
 :' voice ; 
 
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 We, having regard to the faid complaint, 
 and confidering that every good fubjedt 
 ought to look upon the faid infult to his 
 Majcfty's Burt: as an ad of the mod atrocious 
 nature, and as deferving of the utnioft ab- 
 horrence ; and that therefore all declara- 
 tions made in converfation that tend to 
 affirm it to be a fmall offence, ought to be 
 efteemed criminal i 
 
 ** Do, for thefe reafons, authorize and com- 
 mand you to convey the faid Salifbury Franks 
 to the prifon of this town, to be there de- 
 tained until he {hall be thence difcharged 
 according to law. And for fo doing, this 
 warrant fhall be your juftification. 
 
 ^-'f 
 
 «:. i 
 
 «* Given at Montreal, under our hands 
 " and feals on the third day of May, 
 
 ^775- 
 Signed, 
 
 cc 
 
 John Fraser, 
 John Marteilhe, 
 " Hertel de Rouville. 
 
 cc 
 cc 
 
 The warrant for his difcharge, on the 9th 
 day of the fame month by the fame magi- 
 ftratcs, was as follows : . 
 
 « Diftria 
 
[ i6i ] 
 
 " Diftria of Montreal. 
 
 C( 
 (( 
 
 It 
 (( 
 €C 
 (C 
 « 
 (C 
 CC 
 
 <C 
 
 " By John Frafer, John Marteilhe, and R^ne 
 Ovide Hertel, efquires and confervators of 
 the peace in the laid diftri(fl in the province 
 of Quebec. 
 
 " To the keeper of the jail in Montreal. 
 
 •* Whereas David Salifbury Franks is now 
 in your cuftody, in virtue of our u^arrant 
 duly fcaled and figncd ; thefe are now to 
 command you to forbear detaining any longer 
 the faid David Salifbury Franks, but to fuffer 
 him to go at large wherever he pleafes, and 
 that without fees. And for (o doing, this 
 will be your fufficient warrant. 
 
 " Given under our hands and feals at Mont- 
 real the 9th of May, 1775. 
 
 CC 
 
 Signed, 
 
 " John Fraser, , 
 
 ** Marteilhe, 
 
 ** Hertel de Rouville.' 
 
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 1. 
 
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 The reader will make his own refledions 
 on the flyle of the above warrant of commit- 
 ment, and the fpirit of the new government of 
 that unhappy province that appears in it. 
 
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 The occafion of ifluing this warrant is re-* 
 lated more minutely in the following narra- 
 tive of the whole tranfadlion, which was writ- 
 ten by the poor young man himfelf who was 
 the fubjedl of it, during the time of his con- 
 finement. It is writ with fuch an air of truth 
 and modefty, and with fuch ftrong profeflions 
 of loyalty to his Majefty, as cannot fail to in- 
 creafe that indignation in the breads of all the 
 readers of it, which they, doubtlefs, muft have 
 felt at the relation of the unworthy treatment 
 he has met with, and the perufal of that 
 flrange, arbitrary, warrant, by which he was 
 imprifoned* ^ « 
 
 A 
 
 '•, :r - 
 
 A Nar- 
 
A Narrattive of the quarrel that* 
 happened on the fecond day of lad 
 May, 1 775, at Montreal, in the pro- 
 vince of Quebtck, between Monfieur 
 De Belleftre, a French gentleman 
 of that province, and Mr. David 
 Salifbury Franks, a young Englifli 
 merchant, or trader, of the fame 
 place, and which was the occafioa 
 of the imprifonraent of the latter 
 by Captain John Frafer, Mr. John 
 Marteilhe, and Monfieur Rene O vide 
 Hertel de Rouville, confervators of 
 the peace for the diftrift of Mont^ 
 real. Written by Mr. Franks him- 
 felf during his confinement. ^ '^ 
 
 \T7Hereas my affair with captain Belleftre 
 ^^ (for which I am confined in the prilbn 
 of this city) is not perfectly known to the 
 publick, I take this method of (hewing to 
 every impartial perfon a true (late of it from 
 the beginning. .. - 
 
 On the 2d of May I was (landing with Mr. 
 Kay, Mr. Montigny, Mr. Rou(reau, and feveral 
 others at the corner of the Seminary Garden, 
 
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 [ 164 ] 
 
 oppofite to Mr. Kay*s houfe. We were all 
 waiting to hear the publication of a reward 
 offered to find out the perpetrators of that in- 
 fult offered to the Marble Buft of his Majefty 
 laft 30th of April. The drums and crycr 
 were juft coming up, and our difcourfe turned, 
 as was natural, on that fubjedl. We all con- 
 demned it as an atrocious adion that deferved 
 a very heavy punifhment. I afked, what 
 could be done to the perfon who committed 
 the adion, if he was found out. Our opi- 
 nions differed upon this point : and juft at 
 this inflant Monfieur De Belleflre intruded in- 
 to ouir company, and faid, in a very haughty 
 tone to me by way of anfwer to this queftion, 
 ** II feroit pendu ;" that is, " that he would 
 " be hanged/* I turned about, and replied 
 very coolly, " that I thought that by the law 
 " ^it waxS not death." Monfieur De Belleflre 
 then faid, " that I fpoke like a fool and a 
 ** babillard, or idle prater," I told him, that 
 I was not ufed to fuch language 5 and, to avoid 
 hearing any more of this kind, I ftepped a 
 little from him. He then came up to me 
 again, and very imperioufly afked me, what I 
 knew about the matter, and gave me a pufh 
 pretty roughly on the arm. I told him I did 
 not underltand fuch ufage. He then called 
 me by feme other bad name in French, which 
 I do not remember -, and, upon my returning 
 it, he called me yean Foutre, I gave him 
 back the Jean Foutre -, upon which he took me 
 
 by 
 
 » 
 
r »6s ] 
 
 by the nofe, and twifted it. This was a fecond 
 aflault, and of fo violent a kind, that in return 
 I caught hold of him by the coat, and he at 
 the fame time caught hold of me by the hair. 
 I dealt him a few ftrokes on the face, and 
 he at the fame time gave me fome knocks, 
 and one (which, I think, was with the butt 
 end of his flick) over the eye. Mr. Montigny, 
 to the beft of my knowledge, cried out at 
 firft, ** LailTez-les battre ;" (that is, " let them 
 " fight it out.)" But finding, I had the ad- 
 vantage, he took me off from Monfieur De 
 Belleflre by the hair. Mr. De Belleflre then 
 again made up to me to flrike me with his 
 (tick, but was prevented by the Gentlemen near 
 us. I then went away, after taking the by- 
 flanders to witnefs, that he not only abufed 
 and afTaulted me in the publick flreet, but alfo 
 called me, Joutu coquin, twice or thrice, for 
 which I told him, 1 would profecute him. In 
 the afternoon of the fame day I waited on Mr. 
 Marteilhe, and opened the affair to him. He 
 told me to fit down, and write out my depo- 
 fition ; and when I had done fo, and read it 
 to him (being in fubflance as above) he told 
 me, he would not adminifler the oath to me, 
 but bid me call upon him in the morning of 
 the enfuing day. Upon this I went over to 
 Mr. Frafer's houfe to make my depoiition be- 
 fore him ; but he was gone into the country. 
 And on this day (the 4th of May, the day 
 next after that on which this quarrel happened) 
 
 1 called 
 
 1I! 
 
 '1; 
 
 1 ::<^ 
 
r'^ •• 
 
 \ 
 
 
 [ 166 ] 
 
 I called again on Mr. Marteillic, who told mo 
 to go over to Mr. Frafer's, as he and Monficur 
 De Rouviile were then together. I accordingly 
 went thither, and, after having waited there 
 ionic time, I was admitted to Mr. Rouviile and 
 Mr. Frafer. Mr. Frafer aflced me if I had any 
 bufinefs with him : upon which I prpfented to 
 him my intended dcpolition ready drawn up. 
 He took it, and read it over, and then afked 
 me very angrily, *' if I was the perfon who 
 had treated Monfieur De Belleftre in fo fcan-r 
 dalous a manner." I told him, " yes j and 
 that fuch abufe as I had then received froiix 
 Mr. De Bellcftre I could not bear from any 
 man on earth but my prince, or his repre- 
 lentative ; and that my education and rank 
 in life, though not high, were yet above 
 fuch treatment." He faid I had no bufinefs 
 to enter into altercation upon the fubjed. I 
 anfwered, " that 1 had not done fo, and that 
 I had not intruded upon Monfieur De Bel- 
 leftre, but that he had come into the conir 
 pany with which I was converfing ; and that 
 I had rather avoidtd than fought to dilpute 
 with him on the fubjed. And then I de- 
 fired Mr. Frafer to take my depoiition, that 
 I might fend it to my father at Qaebeck for 
 him to {hew it to his Excellency Governour 
 Carleton, to whom I had the honour to be 
 known, hoping tjiat his Excellency would 
 be Convinced by it that I was far from oe-. 
 ing a diilurber of the peace, or diiafredfti 
 ' ' - to 
 
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 X 167 ] 
 
 ** to Government. And I added, that I wn$ 
 of too little confequence to create any dis- 
 turbance, but that what little power I had 
 fliould be always exerted in fupport of his 
 Majefty's authority j for that my heart was 
 truly loyal and upright j and 1 was fo far 
 from approving what was done on the 30th 
 of April tof file King s Buft, that I detclkd 
 " the adion, and would freely contribute my 
 " (hare of the reward offered by the merchants 
 ** to find out the authors of it." Mr. Frafcr 
 then defired me to call again in the afternoon ; 
 which I accordingly did, and waited there 
 about an hour and a half without being ad- 
 mitted to fee him. At laft, having fome buii- 
 nefs at home which I wanted to do, and think- 
 ing 1 might go about it, 1 refolved to go home 
 for a fliort time, and told the bailiff in writing 
 that r would be back again prelently. 
 
 I had gone but a few fleps from Mr. Fra- 
 fer's door when 1 met Mr. Marteilhe, who was 
 going thither. He afked me where I was go- 
 ing ? and at the fame time two bailiffs called 
 out to me to come back immediately. 1 ac- 
 cordingly returned, and was fliewn into a room, 
 where Mr. Rouville, Mr. Prater and Mr. Mar- 
 teilhe were afTembled; who, after telling me 
 that I had behaved very ill, read the warrant 
 of commitment, of which the publick has feen 
 copies (the charge in which is very falle) and 
 told me I was^ a prifo.aer. I faid, *' that it 
 
 *' was- 
 
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 [ 168 ] 
 
 " was very hard that I fhould be fent tojait 
 " for differing in opinion from another man ; 
 *• that it would greatly injure my little affairs -, 
 " that I had no clerk, and nobody but my 
 •* fifter to take care of my houfe and bufinefs ; 
 ^< and that fhe was defencelefs, and liable to 
 be impofed upon : And I concluded with 
 offering to find bail to any amount." This 
 offer they peremptorily refufed, and gave me 
 in charge to two bailiffs, and a file of foldiers, 
 who conduded me here (to the publick prifon 
 of Montreal) about four o clock, like the 
 moft ignominious offender. I begged the Judges 
 to fend off the foldiers, and not make me a 
 fpedacle to the world, and I gave my word 
 that I would go quietly to jail with the bailiffs : 
 But this requeft they likewife thought fit to 
 refufe. When I was got to the prifon, I wrote 
 a few notes to fome of the gentlemen of my ac- 
 quaintance in the town (of Montreal) to acquaint 
 them with what had befallen me ; whereupon 
 they went to the Judges, and offered bail for 
 me to the amount of fome thoufands of pounds : 
 But it was again refufed. 
 
 Meflieurs Rouville, Marteilhe and Frafer 
 would not take my depofition concerning this 
 affair, though I applied to them before Mr. de 
 Belleftre ; Yet they afterwards took his depo- 
 fition, and committed me to prifon in confe- 
 quence of it. 
 
 Thi 
 
 i* I' 
 
f »69 1 
 
 This is a true ftate of the afF^'r ; and. as 
 fiich, I fubmit it to the perulkl of the impar- 
 tial publick. , 
 
 David Salisbvry Fran:-;*, 
 
 From Montreal Jail, May 4, 1775. 
 
 P. S. Since I wrote the above, his Excel- 
 lency Governour Carleton has ordered mc to be 
 fet at Liberty, without paying the jail fees, by 
 an Exprefs from Quebeck to Captain FraCer. 
 This was done on Tucfday the 9th of May, 
 at half an hour after four o'clock in the af- 
 ternoon. 
 
 1 1 
 
 it 
 
 i^ 
 
 The only kind of judicial authority that fcems. 
 to have been eftablifhed in the province of Que- 
 beck from the firft day of May, Jyj^y (when, 
 by the above-mentioned claufe in the Quebeck- 
 ad, all the courts of juftice and commiffions 
 in the province were aboliftied, without an efta- 
 blifhment of any others in their room,) to the 
 ninth of the following month of June, was 
 that of the aforefaid confervators of the peace. 
 On the faid ninth of June Governour Carleton 
 iffued the following proclamation for eftablilh- 
 ing martial law throughout the province. 
 
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 By His Excellency Guv Carleton, 
 Captain-general and Governour in 
 Chief, in and over the province of 
 Quebeck, and the territories depend- 
 ing thereon in America, Vice-admi- 
 ral of the fame, and Major-general 
 of his Majefty's forces, commanding 
 the Northern diftrid, &c. &c. &c. 
 
 A PROCLAMATION. 
 
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 1X7HEREAS a rebellion prevails in many 
 ^^ of his Majefty's colonies in America^ 
 and particularly in iome of the neighbouring 
 ones; and whereas many of the aforefaid 
 rebels have with an armed force made in- 
 curfions of late into this province, attacking 
 and carrying away from thence a party of 
 his Majefty*s troops, together with a parcel 
 of (lores and a velTel belonging to his Ma- 
 jefty, and are at prefent adually invading 
 this province with arms in a traiterous and 
 hoftile manner, to the great terror of his 
 Majefty's fubje(5ls, and in open defiance of 
 his la>vs and government, falfely and ma- 
 licioully giving out, by themfelves and their 
 abettors, that the motives for fo doing are 
 to prevent the inhabitants of this province 
 
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 [ '71 T 
 
 from being taxed and opprefTcd by govern- 
 ment, together with divers other falfc and 
 fcditious reports, tending to enflame the 
 mind.; of the people and alienate them from 
 his Majefly : To the end therefore that fo 
 trcalbnablc rm inv.ifion may be foon defeated, 
 that all fuch traitors with their faid ai)etLors 
 may be fj^^^cdily brought to judice, u!ul the 
 publi^k peace and tranquillity of this province 
 agiin leilored, which the ordinary courfc of 
 the Livil law is at prefent unable to cilect, 
 I Imvc thought fit to iflue this pro.clamition, 
 hereby declaring that, until the aforefaidgood 
 purpcfc can be attained, I Ihall, in virtue of 
 the powers and au-hority to me given by iiis 
 Majeily, execute Martial Law, and caufe 
 the fame to be executed throughout this 
 province : and to that end I fliall order the 
 militia within the fame to be forthwith railed . 
 Bat, as a fufficient number of commiflions to 
 the feveral officers thereof cannot be imme- 
 diately made out, I fliall in the mean time 
 dired all thofe having any militia commiflions 
 from the Hon. Thomas Gage, the Hon, 
 James Murray, Ralph Burton, and Frederick 
 Haldimand, Efquires, heretofore his Majedy's 
 governours in this province, or either of them, 
 to obey the fame, and execute the powers 
 therein mentioned, until they fhall receive 
 orders from me to the contrary ; and I do 
 accordingly in his Majcfty's name hereby 
 require and command all his iubjeds in this 
 
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 province, and others whom It may concern, 
 on pain of difobcdience, to be aiding and 
 adifting to fuch commiflloned officers, and 
 others who are or may be commiflloned by 
 
 •* me, in the execution of their faid com- 
 
 •* miffions for his Majefty's fervice. 
 
 ** Given under my hand and feal of arms at 
 ** Montreal, this ninth day of June, one 
 " thoufand feven hundred and feventy^r 
 ** ^ve, in the fifteenth year of the reign 
 " of our Sovereign Lord GEORGE the 
 " Third, by the Grace of GOD, of 
 •* Great-Britain, France, and Ireland, 
 ** King, defender of the faith, and fo 
 " forth. 
 
 GUY CARLETON. 
 
 By his Excellency's command, 
 H. T. Cramahe. 
 
 GOD fave the KING.** 
 
 It muft be obferved that at the time of ifluing 
 this proclamation, and through all the remain^ 
 ing part of the lad fummer, down to the begin* 
 ning of November, when the provincial army 
 under General Montgomery took fort Saint 
 John's, the towns of Quebeck and Montreal, 
 (which are the places in which the courts of 
 juftice in that province had ufually fat to ad- 
 minifter juftice,) were in the peaceable pofleffion 
 of his Majefty's officers of government -, fo that 
 
 juftice 
 
[ »73 1 
 
 juftlce might have been adminiftcrcd in them, 
 and offenders of every kind brought to condign 
 punifliment, according to the laws of the pro- 
 vince eftablifhed by the late a£t of parliament, 
 as eafily and regularly as if no didurbances had 
 prevailed in the adjoining provinces j and con- 
 lequently there feemed to be no pretence for 
 eftablilhing Martial Law there. For, if that 
 law can ever bs legally eftabliflied under the 
 Englifh government, (which fcems doubtful) 
 it is only when there is an invafion or rebellion 
 in the kingdom, or province, in which it is to be 
 eftabliflied, that has rifen to fuch a height ai 
 to make it impoflible for the king's judges to 
 fit in the ordinary courts, and adminifter jufticc 
 according to the laws of the land. This will 
 appear more plainly from the following reflec- 
 tions upon Martial Law, which were publiflied 
 in the form of a letter to the printer of the 
 Public Advertifer in the month of September, 
 1775, foon after the* receipt of the aftonifliing 
 news that Martial Law had been eftabliflied in 
 the province of Quebeck. 
 
 N. B. It may further be obferved, that the fore- 
 going proclamation (in cafe it had been legal toiflue 
 it at all) ought to have been publilhed under the 
 public fealof the province, of which the governour 
 (by a claufe in his commiflion of governour) is the 
 keeper. The inhabitants of the province are not 
 bound to take notice of proclamations under the 
 governour*s private feal of arms. The king's pro- 
 clamations in Great-Britain arc always under the 
 great feal of Great-Britain. 
 
 Refledlions 
 
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 [ 174 1 
 
 Refleflions on Martial Law. 
 
 U I 
 
 In a Letter to the Printer of the Public Adver- 
 tifer, publifhed on the 6th, the 8th, and the 
 I ith days of September, 1775. 
 
 Mr. Printer, 
 
 Aug. 30, 1775. 
 
 T TPON the arrival of the late proclamations 
 ^ made by General Gage at Bofton, and 
 General Carleton at Qiiebeck, for eftabliOiing 
 martial law in their reipedive provinces, I have 
 cbferved many people exprefs a good deal of 
 furprizc at bearing of fo extraordinary a fpecies 
 of law, that feems by its name to differ fo clTen- 
 tially from all the known branches of law that 
 are allowed in the Britifli dominions. It feems, 
 fay they, to be neither common law, nor ftatute 
 law, nor civil law : What law then is it ? and 
 in what cafes can it be eftablifhed ? and by 
 what authority ? Can the King eftablijfh it by 
 his (ingle authority without the concurrence of 
 parliament ? and if b^* can, can he do it in all 
 cafes, or only in certain cafes marked out by the 
 law ? and if only in certain cafes, what are thofe 
 cafes ? and if the King can eftablifii it in Eng- 
 land in certain proper cafes, without the con- 
 currence of parliament, can his goveinours of 
 "his American provinces do the lame in thtir 
 jeipe<i^ive goveinments v^thout the concurrence 
 
 of 
 
[ 175 ] 
 
 of the councils and affemblies of thofe pro- 
 vinces, or, at leaft, of the councils only ? 
 
 Thcfe, Mr. Printer, feem to be reafonable 
 qvicftions, and have excited in nie the lame 
 dtfire of know^ing the proper anfvvers to them, 
 as I have obferved the generality of people, who 
 refled: at all upon publick meaibit:^, to bepof- 
 feffcdwith: and, in order to fatisfy my curi- 
 ofity upon this head, I have looked a little into 
 our books of lavi' .•nd hifiory to fee what they 
 fay about it. Now the refult of what I have 
 met with in them upon this iubjed is as follows: 
 
 In the firft place it feems clear that martial 
 law, when it is eftablifhed, relates only to the 
 army and navy, and the perlbns who join with 
 the loldiers, and follow the camp . tor, in the 
 year 1626, the fecond year of the rei^n of 
 King Charles I. when that king had injudicioufly 
 entered into a war with the crown of Spain, and 
 fome of the troops, which he had employed in 
 that war in an unfuccefsful expedition againft 
 Cadiz, had returned to England, it appears by 
 Rufliworth's Colledions, vol. i. page 41^, 
 " that the companies of foldiers [who had fo 
 ' returned from Cadiz] were fcattc red here and 
 
 there in the bowels of the kingdom, and 
 
 governed by martial law. Thj King gave 
 " commiflions to the lords lieutenants and their 
 
 deputies^ i^ cafe of felonies, robberies, mur- 
 
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 I 176 ] 
 
 ders, outrages, or mifdemeanours, committed 
 by mariners, foldiers, or other diforderly 
 perfons joining with them, to proceed, ac- 
 cording to certain inftrudions, to the trial, 
 judgement, and execution of fuch offenders 
 as in time of war. And fome were executed 
 by thofe commiflions." 
 
 This meafure of granting commiflions to 
 execute martial law, though it was confined to 
 the punifhment of offences committed by ma- 
 riners, foldiers, and diforderly perfons joining 
 with them, was afterwards exprefsly condemned 
 as j/kgal by the famous a(5t of parliament, com- 
 monly called the Petit ten of Right, in the year 
 1628, notwithftanding the King had been at 
 war with Spain at the time of iffuing thefe 
 commiflions j becaufe, as there was no enemy 
 in the kingdom, the ordinary courfe of juftice 
 was not interrupted, but the court? of juftice 
 fat aa freely to adminifter juftice as they had 
 ufed to do before the war againft Spain had been 
 declared ; and confequently it was poffible to 
 try and punifh thofe mariners, foldiers and 
 others, for the faid felonies, robberies and mur- 
 ders, and other offences, according to the 
 known laws and ftatutes of the realm, without 
 having recourfe to a more fummary and arbi- 
 trary mode of trial. The claufc of the petition 
 of right relating to this fubje(S is as follows ; 
 
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 *' And whereas of late great companies of 
 " foldiers and mariners have been diipcrlcd into 
 ** divers counties of the realm, and the inh.ihi- 
 *' tants, again ft their wills, have been compelled 
 " to receive them into their houfes, and there 
 " to fuffer them to fojourn, againll the laws 
 " and cuftoms of this realm, and to the great 
 
 grievance and vexation ol the people : 
 
 " And whereas alfo by authority of parlia- 
 ment, in the 25th year of the reign ot King 
 Edward the Third, it is declared and enaded, 
 That no man fhall be fore-judged of hie or 
 limb againft the form of the great charter and 
 the law of the land : and by the laid great 
 charter and other the Lnvs and ftatiitesof this 
 your realm, no man ought to be adjudged to 
 death but by the laws eilablirtied in thi -. your 
 realm, either by the cuftoms of the lame 
 realm or by ad? of parliament : And whereas 
 no offender of what kind locver is exempted 
 ifom the proceedings to be ufed, and punifti- 
 ments to be inflicted, by the laws and llatutes 
 of this your realm : 
 
 " Neverthelefs, of late, divers commifiions 
 under your Majefty's gicut feal have ilTued 
 forth, by which certain pcrfons have been 
 afligned and appointed commifliorjers, whli 
 power and authority to proceed within the 
 land according to the julHce of martial kw 
 againft fuch loldiers ard ir.aiiners, or other 
 
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 [ 178 ] 
 
 dlflblute perfons joining with them, as fliould 
 commit any murder, robbery, felony, mu- 
 tiny, or other outrage or mifdemeanor what- 
 ibeveri and by fuch liimmary courfe and 
 order as is agreeable to martial law, and is 
 ufed in armies in time of war, to proceed to 
 the trial and condemnation of fuch offenders, 
 and them to caufe to be executed and put to 
 death accordino: to the law martial : 
 
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 By pretext whereof fome of your Majefty's 
 " fubjeds have been by fome of the faid com- 
 " miffioners put to death, when and where, 
 " if by the laws and ftatutes of the land they 
 " had deferved death, by the fame laws and 
 " ftatutes alfo they might, and by no other 
 ought to have been adjudged and executed : 
 
 " And alfo fundry grievous offenders, by 
 colour thereof claiming an exemption, have 
 efcaped the punifliment due to them by the 
 laws and ftatutes of this your realm, by rea- 
 fon that divers of your officers and miniftcrs 
 of juftice have unjuftly refufed, or forborn, 
 to proceed againft fuch offenders according 
 to the fame laws and ftatutes, upon pretence 
 that the faid offenders were punifhable only 
 by martial law, and by authority of fuch 
 commiffions as are aforefaid j v/hich com- 
 miffions, and all others of like nature, are 
 wholly and diredly contrary to the faid laws 
 and ftatutes of this your realm : 
 
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 [ 179 ] 
 
 *' They do therefore humbly pray your mofl 
 Excellent Majefty, 
 
 " That your Majefly will be plcafed to re- 
 move the faid foldiers and mariners, and that 
 your people may not be fo burfhencd in time 
 to come i and that the fore faid com miflions 
 for proceeding by martial law may be revoked 
 and annulled j and that hereafter no com- 
 miffions of like nature may iiluc forth to any 
 perfon or perfons whatfoever, to be executed 
 as afot-efaid, left by colour of them any of 
 your Majefty's fubjedts be deftroycd or put to 
 death, contrary to the laws and franchifes of 
 th- land." 
 
 
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 Thefe are the words of this moft excellent ftatute, 
 *vvhich is faid to have been penned by the famous 
 Sir Edward Coke, and is without all comparifc:!, 
 the moft important and beneficial ftatute to public 
 liberty of all the laws 1 ow in being, and there- 
 fore ought to be moft diligently read Jnd ftudied, 
 and conftantly kept in remembrance, by every 
 lover of the Englifli conftitution. And by 
 thefe words it is clear beyond a doubt, that 
 commitiions to execute mar''il law, (even with 
 refped to mariners, foldiers, and other diilo- 
 lute perfons who join with them) are illegal 
 in time of war, as well as in time of peace, 
 unlefs the war bj at home in the heart of tlie 
 kingdom, and the fuccefs and power of the 
 enemy be fo great, that tlie courts o[ juAice 
 capnot fit to aJminifter jufticc upon the orr'jnd- 
 
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 ing rolditrs and nv.\riiicrs accordin|y to the known 
 laws and llaliitcs of the realm : nor is it clear 
 that thi'j cafe is excepted Ironi the general pro- 
 hihition of the cxcrciie of mailial law contained 
 in diis noble ftatute. Bur, as the main ground 
 of this prohibition ( which is the pra(5ti- 
 cability of trying and puniihing fuch offen- 
 ders according to the known laws and flatutes 
 of the realm) does not extend to that cafe, it 
 feems reafonable to fuppofe that the prohibition 
 itfelf was not meant to extend to it. But in all 
 cafes fhort of that cafe of general confufion 
 and extreme neceflify, it is clear that the exer- 
 cife of martial law is illegal. 
 
 That it was only in this extraordinary cafe of 
 general confufion, and an impoflibility of pro- 
 ceeding by the ufual methods of the law in the 
 King's courts of juftice, that martial law could 
 legally be exerciled, (even before the palling of 
 the petition of ri^ht) was admitted by Serjeant 
 Aflilcy himielf, the King's ferjeant, in the de- 
 bates upon that petition, in a famous fpeech at 
 ii conference between the two houles of parlia- 
 ment, in which he endeavoured to juftify the 
 late imprilonments by the fpecial order of the 
 King in council, widiout afligning a caufe, and 
 advanced that dangerous dodrine, of the exig- 
 ence o( a fpccies of law which he called the 
 Lai.y of the State y or P.ate necefllty, that pro- 
 ceeded not by the law of the land, but according 
 to natural equity j a dodrine that appeared 
 
 „fo 
 
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 fo very mifchicvous and unconQItutlonal to the 
 Houfc of Lords, that, upon the motion of the 
 Earl of Warwick, he was ordered into cuftody 
 for advancing it. Yet in this very fpcecli he 
 fpcaks thus concerning martial law : 
 
 " The martial law likewifc, (thonr^h not 
 ** to be exercifed in times of pcLue, when 
 " rccourfe may be had to the King's courts) 
 " yet in time of invafion, or other times of 
 *' hoftility, when an army royal is in the field, 
 *' and offences are committed which require 
 fpeedy refolution, and cannot expedt the fo- 
 lemnities of legal trials, then fuch imprifon- 
 ment, execution, or other jultice done by 
 the law martial, is warrantable, and is jus 
 gentium^ which ever ferves for a fupply in 
 dcfc<5t of the common law, when ordinary 
 proceedings cannot be had." See the Par- 
 liamentary Hillory, vol. viii. p. 47. 
 
 Tbis feems to be a rational account of the 
 cafes in which the excrcile of martial law was 
 legal, by a pcrfon who certainly was not dif- 
 poled to curtail the prerogative of the crown 
 upon that fubjed:, any more than upon the power 
 ot iuipriloning men without affigning a caufe. 
 We may theicfore fafcly conclude, that if the 
 exercifeof martial law is ever legal, (which may 
 pc^ihaps be doubted fmce the above-mentioned 
 lirong and general prohibition of it by the petition 
 
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 of right) It is only in that cafe of extreme ne- 
 ceflity, defcribcd by Serjeant A(hley, when re- 
 courfe cannot be had to the King's courts. 
 
 It is alfo evident from thefe authorities, that 
 the Martial Law, in the cafes in which it may 
 legally be exercifed, relates only to mariners 
 {ind foldiers^ and thofe perfons luho join themfelvcs 
 to theniy and not to the inhabitants of the king- 
 dom at large, who are quiet at their homes, 
 axid have no connexion with the army. It is, 
 in fliort, a fummary kind of criminal law 
 adapted to the government of an array. 
 
 Nor does it feem, according to thefe autho- 
 rities, to include in it any right of levying an 
 army, or prefjing men into the fervice, but 
 only of governing it, when levied^ by a fpeedy 
 and difcretionary punifhment of the crimes, 
 which the foldicrs, wha lliall engage in it, may 
 commit. 
 
 In that cafe of a general confufion occa-^ 
 iioned by the invafion of the kingdom by an 
 enemy, and a confequent impofiibility to have 
 rccourfe to the King's ordinary courts of Juflice, 
 for the punifhment of offences committed by 
 the foldiers, in which alone the exercife of 
 martial law is legal, I conceive it may be 
 cftablifhsd by the King alone, without the 
 concurrence of his Parliament. EJut in England^ 
 the exercife of this prerogative of the cjown 
 
 is 
 
[ i83 ] 
 
 is rendered totally unneccfTiry by the annual 
 renewal of the Mutiny Ad, which prelLribes 
 and ertabliflies a particular Code of military 
 regulations for the good government of the 
 army, by the joint authority of King and 
 Parliament, and thereby takes away all pre- 
 tence or occafion for eftablifliing any other 
 Ipecies of martial law. 
 
 The illegality of eflablifliing martial law, 
 tor the government of the army in time of 
 peace, any othecwife than by Adt of Parlia- 
 ment, is recognized and recited in the pre- 
 amble to the annual Mutiny- Ads, which runs 
 in thefe words : 
 
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 " Whereas the railing, or keeping, a {landing 
 *' army within this kingdom in time of peace, 
 *' unlefs it be with conlent of pailiamen:, is 
 *' againft law : 
 
 ** And vvhereas it is judged neccfiary by his 
 Majcfty and this prefcnt parliament that a 
 body of forces fliould be continued for the 
 fafety of this kingdom, the defence of the 
 poirelTions of the crown of Great-Britain, 
 and the prefervation of the balance of power 
 in Europe ; and that the whole number of 
 luch forces fliould confift of twenty- one 
 thoufand, nine hundred, and thirty, efFedivc 
 
 men, invalids included; 
 
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 " And whereas no man can be foie- 
 judged of lite or limb, or Tubjcded, in 
 lime of peace, to any kind of punilli- 
 ment within the realm, by martial law, or 
 in any other manner than by the judgement 
 of his peers, and according to the known 
 and eftabliflied laws of this realm ; yet, 
 neverthelcfs, it being requifite for the re- 
 taining all the before-mentioned forces in 
 their duty, that an exadt difcipline be oh- 
 ferved, and that foldiers who ihall mutiny^ 
 or ftir up fedition, or (hall defert his Ma- 
 jefty's fervice, within this realm, or the king- 
 dom of Ireland, Jerfey, Guernfey, Alder- 
 ney, and Sark, or the lilands thereunto be- 
 longing, be brought to a more exemplary 
 and fpeedy punifliment than the ufual forms 
 of the law will allow. Be it therefore 
 enaded, &c." 
 
 Thefe, Mr. Printer, are the mod material 
 obfervations I have been able to colle^St con- 
 cerning the eftabli(hment of martial law with- 
 in the Realm of Great Britain. As to the 
 Governours of the colonies^ they cannot, I pre** 
 fume, have a greater power in this refped in 
 their feveral governments than the King, their 
 Mafter, whofe perfon they reprefent, has here 
 within the Realm. But, I conceive, they may 
 have the fame power, if the King, by his com- 
 miffion, under the great fcal, of Captain Ge- 
 neral and Governour in chief, thinks proper to 
 
 give 
 
 give 
 that 
 
 ty, 
 
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t '85 ] 
 
 give it to them ; unlefs where it may happen 
 that the king's power of making fuch a dele- 
 gation of his authority lias been limited by the 
 terms of a provincial charter ; in which cale 
 every thing in the king's commifllon, that is 
 contrary to the charter, will be void. But 
 otherwife, I apprehend, that an American Go- 
 vernour has juft lb much of his Majefty's authori- 
 ty, with refped of the eftablifliment of martial 
 law in his province, as his Majefly has thought 
 proper to aflign to him by his commifllon as 
 Governour : and therefore to know, how much 
 that is in the cafe of any particular Governour, 
 recourfe muft be had to his commifllon. Now, 
 the commilFion of the Captain-General and Go- 
 vernour in chief of the province of the Mafla- 
 chufett's Bay is not any where publiflied, that 
 I know of: at ledfl: it is not to be found in 
 governour Hutchinfon's Hifl:ory of that pro- 
 vince : But I prefume it does not differ much 
 from that of the governour of the neighbouring 
 province of New- York ; of which we find a 
 copy in Mr. Smith's Hifl:ory of that province. 
 Now in that commifllon of governour of New- 
 York there is the following claufc, to impower 
 the governour to levy troops, and employ them 
 againft enemies, pirates, and rebels, and alfo to 
 execute martial law. " And we do hereby 
 give and grant unto you, the faid Danvers 
 Olbornej by yourfelf, or by your captains 
 and commanders by you to be authorized, 
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 command, and employ, all pc^fons what(bB> 
 ever redding within our faid province of 
 New- York, and other the territories under 
 your governments and, as occafioh (hall 
 Terve, to march them from one place to an- 
 other, or to embark them, for the redding 
 and withdanding of all enemies, pirates, and 
 rebels, both at Tea and land ; and to tranf- 
 port dich forces to any of our plantations in 
 America^ if necedity (hall require^ for the 
 defence of the fame againd the invadons or 
 attempts of any of our enemies : and fuch 
 enemies, pirates, and rebels, if there (hall be 
 occadon, to purfue and profecute in or out 
 of the limits of our faid province and plan- 
 tations, or any of them -, and, if it diall fo 
 pleafeGod, them to vanquidi, apprehend, and 
 being taken, either according to law to put 
 to death, or keep and preferve alive, at your 
 difcretion: and to execute martial law in 
 time of invadon, or other times, when by 
 law it may be executed : and to do and exe- 
 cute all and every thing and things which 
 to our Captain-General and Governour in 
 chief doth, or ought of right to belong." 
 
 Now this claufe fuggeds the following ob- 
 fervations. In the firft place, by the power to 
 levyy arnti and mufter troops^ we are not to 
 underdand a power to prefs mea for foldierg 
 againd their will ; becaufe that is a power 
 which the King has not himfeif ia England, 
 
 ai)d 
 
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[ '87 ] 
 
 and therefore cannot delegate to his Gover- 
 nours in America : And if he were to infert a 
 claufe in his commiflions for the exprefs pur- 
 pofe of delegating it, the claufe would be ille- 
 gal, and confequently void. This power to 
 levy, arm, and mufter troops muft, therefore, 
 mean only a power to raife volunteers for the 
 king's fervice, and to arm and mufter them. 
 In the fecond place, it muft be obferved, that 
 if any of the enemies, pirates, or rebels, (hall 
 be vanquifhed and taken prifoners, they are 
 either to be kept alive, or to be put to death, 
 at the governour*s difcretion > but if they are 
 put to death, it is diredted to be according to 
 law J by which, I prefume, is meant, that if 
 they are foreign enemies, they are to be put to 
 death according to the law of nations, which 
 is the law that reljates to foreign enemies -, and 
 if they are pirates, they are to be put to death, 
 according to the laim of the Admiralty^ or the 
 Maritime law^ which is the law that relates to 
 Sea-ofienders ; and if they are rebels, they are 
 to be put to death according to the laws of the 
 land againft high-treafon, and to be tried by a 
 Jury, with the ufual allowance of challenges, 
 and other advantages, in the manner prefcribed 
 by thofe laws ; but in neither cafe to be put to 
 death in a hafty^ and fummary manner, with- 
 out a regular trial, and by the mere order of 
 the governour, under colour of martial law : 
 becaufe that would be contrary to this diredion 
 tj the governour to put them to death* (if he 
 
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 fliall think fit to put them to death) according 
 to law. For martial law, as we have feen 
 above, relates only to the foldiers of the army, 
 and the per Ions who join themfelves to them. 
 In the third place, it muft be obfcrved, that 
 that part of the foregoing claufe which con- 
 veys to the Governour of New-York a power 
 to execute martial law, and which is contained 
 in thefe very few words : " And to execute 
 ** martial law in time of invalion, or other 
 " times when by law it may be executed,'* 
 feems intended to enable the Governour to com- 
 mand and govern, in a manner fuitable to 
 military dilcipline, the army of volunteers, 
 \vhom he fhall raife, at any time of invafion 
 and rebellion in his province, to oppofe the 
 enemies, or fubdue the rebels y which army of 
 volunteers are not, like the regular army, made 
 fubjed to military difcipline by the annual Mu- 
 tiny Ads, and, therefore, without the eftablifh- 
 ment of martial law amongft them, might 
 become diforderly and ufeleis, and a burden, 
 inftead of a fafe-guard, to the province. 
 
 This, Mr. Printer, I take to be the true 
 meaning of the foregoing claufe in the Gover- 
 nour of New- York's commiflion, by which he 
 is impowered to levy, arm, and mufter troops, 
 and execute martial law in his province. And 
 the like claufes I believe to be contained in the 
 commiflions of theGovernoursof Maflachufett's 
 Bay and Quebeck. This leads us to the confi- 
 
 deration 
 
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 E 189 ] 
 
 deration of the proclamations of thofe two Go- 
 Vernours for eftabliflxing martial law in their 
 refpedive provinces. 
 
 Now it feems to me, Mr. Printer, that th? 
 proclamation of martial law by Govern our Gage 
 in the province of Maflachufett's Bay, is in- 
 deed legal, becaufe that province is in a ftate 
 of ablblute rebellion, and the King's Courts of 
 Judice have long been unable to adminifter 
 Juftice in it according to the laws of the pro- 
 vince, at lead ever fince the arrival of the 
 Adt of Parliament for altering their charter. 
 But it does not appear to me that this edablifh- 
 ment of martial law can be of much ad- 
 vantage to his Majefty's fervice in that province. 
 For, as to the government of the regular forces 
 at Bofton, that was already better provided 
 for by the Mutiny Adt -, and I do not hear that 
 Governour Gage has been able to raife any re- 
 giments of volunteers amongd the inhabitants 
 of that province, for the government of whom 
 the eflabliHiment of martial law might be- 
 come expedient : For it mufl: always be re- 
 membered, that martial la\y relates only to 
 the government of an army, and not to the 
 inhabitants of the province at large, who live 
 peaceably at their refpedlive (dwellings. At 
 lead fo it now appears to me in confequence 
 of this inquiry into the fubjedt, and the autho- 
 rities concerning it , which I have cited here 
 above j thpugh I conf«?fs, that^ before I made 
 
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 [ 190 ] 
 
 this inquiry, I had (as many others feem ta 
 have done, and amongft them, perhaps, Go- 
 vernour Gage and Governour Carleton) con- 
 ceived martial law to have had a more exten- 
 five operation, and to have been a fummary 
 and difcretionary method of governing all the 
 inhabitants of the kingdom, or of the province 
 in which it was eftabliflied, and of determining 
 all contefts and complaints in it, thofe of a 
 civil as well as thofe of a criminal nature, 
 which was allowed to take place in cafes of 
 extreme neceffity, when a foreign or a rebel 
 army was raging in the heart of the country, 
 and the ordinary Courts of Juftice had it not 
 in their power to adininifter Juftice. But I 
 now fee that I was miftaken, and that this 
 law in no, cafe extends to any perfons but 
 the foldiers of the armyi and the perfons wha, 
 join themfelves to them. Upon the whole,^ 
 therefore, it feenris to me, that the eftablifh- 
 ment of martial law in the province of the. 
 Maffachufett's Bay, is (though a legal) an un- 
 jTCcelTary meafure, and cannot be of advan- 
 tage to his Majefty's fervice. However, in^^ 
 ti»is 1 fhall be glad to find myfelf miftaken : 
 and I heartily wiih that the brave and loyal 
 Brigadier General Ruggles may foon be able 
 to raife a body of provincial troops there, to. 
 join his Majefty's forces in fubduing the rebet 
 army, and reducing the province once more" 
 to the obedience of the Crown ; in which cafe 
 tl**^ exercife of n.artial law WjU undoubtedly * 
 
 be 
 
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[ iQi ] 
 
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 be proper and ufeful for the good government 
 of fuch provincial troops, becaufe the Mutiny- 
 Adt does not extend to them. 
 
 But, as to the proclamation for eftabllfhing 
 Martial Law in the province of Quebeck, I can 
 hardly conceive it to be legal in the ftate in 
 which the province was reported to be when 
 it was publifhed, that is, on the 9th of June 
 laft : For, according to all the accounts wc 
 have had from thence, that province was then, 
 and, I hope is ftill, in a ftate of perfedl tran- 
 quillity. It is true that the rebel Americans 
 nad, by Order of the Continental Congrefs, or 
 fome of its principal Members, feized upon the 
 Forts of Ticonderoga and Crown- Point. But 
 thefe places are not in the province of Que- 
 beck, even according to the late prodigious 
 enlargement of the boundaries by the Que- 
 beck Ad:. Nor is there any reafon to appre- 
 hend, that the provincial troops, who are now 
 in pofleflion of thofe places, will make Incur- 
 'fions from thence againft the Canadians, unlefs 
 the Canadians fhould be perfuaded to take part 
 in the prefent unfortunate difpute, and invade 
 the back-fettlements of the revolted Engllfli 
 provinces; in which cafe it is indeed moft cer- 
 tain, that the provincials at Crown-Point would 
 very foon invade, and probably over-run, and 
 Jay wafte, and ruin the whole province of 
 Quebeck. But, if the Canadians continue neu- 
 %-al (as it is evidently for their own interei>, 
 
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 [ 192 ] 
 
 and probably bcft for the King's fcrvice upori 
 the whole, that they (hould do) it is next to 
 cisrtain that the Americans will not invade 
 their province, but will be very wdl contented 
 to get rid of fo formidable, or, at leaft, fo 
 troublefome an enemy as they would be, at ib 
 cheap a rate as that of leaving them at peace 
 in their own province. And this they have 
 all along declared. So that Canada both was, 
 and was likely to continue, in a ftate of per- 
 fect tranduillity on the 9th of June laft, when 
 the proclamation for eftablifhing Martial Law 
 was publifhed there, unlefs the Canadians (hould 
 be prevailed upon to become aggreflbrs againfl 
 the other colonies. 
 
 I know it will here be obferved by fonie 
 perfons, that the Americans at Crown-Point 
 actually did make an incuriion into Canada, 
 and took a fmall floop, belonging to his Ma- 
 jefty, and fome battoes upon Lake Champlain^ 
 and that fome of them did appear at St. John's, 
 a place near that Lake, that is within the pro- 
 vince of Quebeck. This is true. But it is 
 alfo true that they confidered the taking of the 
 (loop and battoes as a meafure neceifary to 
 their own fecurity at Crown-Point and Ticon- 
 deroga, as thofe vefTels might otherwife have 
 been ufed by his Majefty's troops in Canada^ 
 or by other perfons ill-difpofed towards them ^ 
 for the purpofe of molefling them in their pof- 
 fcflion of Crown-Point : So that it was no 
 
 proof 
 
 
[ 193 ] 
 
 proof of theit intention to invade Canada. And, 
 as to the party that appeared at St. John's, ia 
 the province of Quebeck, their proceedings 
 were a proof that they did not intend to in- 
 vade Canada, or moleft any of its inhabitants : 
 For when a Mr. Bindon, an Englilh merchant 
 at Montreal, fell into their hands at St. John's 
 (whither he went, by the permifllon of a Field- 
 Officer, of the 26th regiment, to look after 
 Ibme goods which he had fent there, in order 
 to be carried over Lake Champlain to Major 
 Skeene's fettlement, called Skeene's-Borough, 
 near that Lake,) they treated him well, kept 
 him all night, and then fent him back with a 
 letter, writ by one Allen, to the people of 
 Montreal, in which he allured them that the 
 provincials had not the leaft intention of com- 
 mitting hoftilities, or any way molefting the 
 Canadians or the Indians -, that their buiinels 
 was only to procure ftores, provifions, and 
 fome ammunition, to the amount of 500I. 
 which they would pay for. This you may 
 depend upon, Mr. Printer, for "ruth. And 
 this does not fhew any intention \\ the pro- 
 vincials of invading Canada, or ading offen- 
 fively againft the Canadians. * And further, 
 .,... - , . Bb this 
 
 • N. B. It is true that fince the publication of this htter 
 the provincials have invaded and conquered the whole pro- 
 vince of Quebeck, excepting only the town of Quebeck. 
 It is probable they were induced to do this, partly, by the dit- 
 pofition which the bulk of the Canadians between thcrivcr.s 
 
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 this Hnali paHy of provincials, fuch as it Was* 
 (hoftite or otherwi(e> as you may pleafe to 
 confider them,) retreated the next day from 
 St. John's, upon bearing of the march of a 
 body of troops againil them, and went out of 
 the province back to Crown-Point. So that 
 upon the whole it feems clear, that the whoU 
 policy of the rebel provincials in taking Crown- 
 roint and Ticonderoga is to keep the Cana- 
 dians in awe, and prevent them from adling 
 againd the other Americans, and not to invade 
 the province of Qu,ebeck, or aft ofFenfively 
 againfl any of its inhabitants. This being the 
 cafe, and this fmall party of provincials^ that 
 had appeared at St. John's, having retreated out 
 of the province the neict day, what pretence 
 was there for edabliihing martial law in the 
 province ? Where was the invafion, where the 
 internal and violent diilurbance of die province 
 
 Richlieu and St. Lawrence ihewed to favour them, which 
 made them believe fuch an enterprize could not fail of 
 fucccfs, and partly by the apprehenfion that in the courfe 
 of this unhappy contention, and when more troops ihould 
 be fent into the provinte^ others of the Canadians might 
 be prevailed on to enlift in the new regiment which, (as 
 we have feen by the letter of the Caruutitn Patriotic) the 
 Governour was defirous of raifing amongft them, and, when 
 £o enlifted, might be made to march out of their own pro- 
 vince and attack the back fettlements of New- England or 
 the other united provinces. The apprehenfion that this 
 uk would be made of the Canadians was probably the chief 
 motive that induced the provincials to invade and conquer 
 Canada, in order tq be beforehand with the Govornour in 
 that attempt, 
 
 that^ 
 
that, 
 
 [ '95 ] 
 
 thati according to Serjeant Adiley's cxprefTiony 
 made it impolTible to have recourfe to the 
 King's Courts for the puniihment of ofFcnces» 
 and which alone could make it legal to edablifh 
 Martial Law ? I profefs I can (ee nothing in 
 the (late of the province to warrant fuch a 
 meafure. Nor indeed, if it had been legal at 
 that time to edablifh Martial Law in the pro- 
 vince, can I fee any good end that it would have 
 anfwered ; feeing that Martial Law has nothing 
 to do with the levying of troops, but only with 
 the government of them, when levied ; and 
 that, at the time of this proclamation for Mar- 
 tial Law, Governour Carleton had not levied 
 any new troops amongft the Canadians to be 
 the obje<fts of this law. If indeed the eflablifh- 
 ment of Martial Law in the province would 
 have enabled his Excellency to prefs the Cana- 
 dians into the fervice (into which they ap- 
 peared fo little likely to enter as volunteers) 
 there would have beeq a motive to induce 
 his Excellency to publiHi this Proclamation for 
 edablifhing Martial Law. And it is not im- 
 podible that a belief, that the eilablifhment 
 of Martial Law would have this efFedt, may 
 have influenced him to eflabliih it. But in 
 this, if this was his belief, (which I by no 
 nieans prefume to. affirm) I conceive for the 
 reafbns above-rmtntioned, that his Excellency 
 has been miflaken, and that the edablifliment 
 of Martial Law in the province, even if the 
 iituation of the province had been fuch as to 
 
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 make fuch a meafurc legal, would not have 
 authorifed him in tlie leaft degree to prefs the 
 Canadians into the rcrvice on this occafion 
 againft their will, but only to govern in a mi- 
 litary manner by that fummary fpccies of law, 
 fuch of them as (hould, freely and of their 
 own accords, have engaged in it, during fuch 
 time as they fhould have lawfully continued 
 to be embodied, and have adted as an army. 
 But, in the (late of peace and <^uiet in which 
 the province appears to have been on the 9th 
 of lad June, I think it is plain that the efla- 
 bliihment of martial law was illegal, and con- 
 fequently, that every adl that fhall be done in 
 purfuance of it, and that would not otherwife 
 have been warranted by the laws of the pro- 
 vince, may, on fome future occafion, be made 
 the ground of an indidment for murder or 
 battery, or of an adlion of trefpafs, or adlion on 
 the cafe againft the doers of them, in which 
 the plaintiffs will be entitled to recover a pe- 
 cuniary compenfation for the damages they 
 fliall have been made to fuffer by means of 
 fuch unwarrantable proceedings. And if this 
 be the cafe (as 1 think can hardly be doubted, 
 after the perufal of the authorities above cited, 
 and particularly that mofi venerable of Laws, 
 the Petition of right) it feems to follow, that 
 the wifeft thing the governour of that province 
 can do, after having imitated, by an unhappy 
 miftake, the conduct of king Charles the Firft, 
 
 in 
 
 X 
 
[ »97 1 
 
 in cftablifhing martial law at a time when it 
 could not legally be eftablifhed, will be to imi- 
 tate that monarch in the fubfequent part of 
 his condudl, when he gave his confent to the 
 Petition of right, and cancelled his commif- 
 lions for executing martial law, by publifliing 
 another proclamation in the province to revoke 
 and annul the former, by which martial law 
 was declared to be ellabliihed, leji by colour thereof 
 (as the Petition of right expreiTe* it) any of 
 his Majeflys Juhjedhy in the faid province of 
 Quebeck, be dejiroyed or put to deaths contrary^ 
 to the lawy and Jranchijes of the land* 
 
 •\i 
 
 / : I am, S I R, 
 
 Your very humble Servant, . 
 
 
 A Friend h the Petition of Right. 
 
 
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 I 198 1 
 
 Additions to the foregoing Refledions 
 on Martial Law. 
 
 * 
 
 THE inquifitive reader of the foregoing 
 Refledions will probably be glad to know 
 what the charter of the MafTachufett's Bay ^nd 
 the new commiflion of Captain-General and 
 Governour in chief of the province of Que- 
 heck, granted to General Carleton finco the 
 pafling of the Quebeck Ad, declare concerning 
 the eftabli(hment of martial law. I fhall 
 therefore proceed to infer t the claufes of king 
 William's charter to the MafTachufett's Bay> 
 and of the faid new comn^illion to the go- 
 vernour of Quebeck, which relate to that 
 fubjed. 
 
 TAe claufe relating to martial law^ in the char^ 
 ter granted by king fVtlliam and queen Mary 
 to the inhabitants of the province of J^taja* 
 chufetfs bay^ in the year 1692. 
 
 " And we do, by thefe prefents, for us, 
 ** our heirs and fucceflbrs, grant, eftablifh, 
 " and ordain, that the governour of our faid 
 " province, or territory, for the time being, 
 " (liall have full power, by himfelf, or by 
 " any chief commander, or other officer or 
 ** officers, to be appointed by him, from time 
 ** to time, to train, inftrud, cxercife, and go- 
 
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 Vern the militia there ; — and for the fpecial 
 defence and fafety of our faid province or 
 territory, to aflemble in martial array, and 
 put in warlike pofture, the inhabitants of 
 our faid province or territory, and to lead 
 and conduct them, — and with them to en- 
 counter, expulfe, repel, refift, and purfuc 
 by force of arms, as well by fea as by 
 land, within or without the limits of our 
 faid province or territory 5 and alfo, to kill, 
 flay, dcftroy, and conquer, by all fitting 
 ways, enterprizes, and means whatfoever, 
 all and every fuch perfon and perfons as fhall, 
 at any time hereafter, attempt or enterprize 
 the deftrudion, invafion, detriment or an- 
 noyance of our faid province or territory; — 
 and to ufe and exercife the law martial in 
 time of adtual war, invafion, or rebellion, 
 as occafion fhall neceflarily require ; — and 
 alfo, from time to time, to eredt forts, and 
 to fortify any place or places within our faid 
 province or territory, and the fame to fur- 
 nifh with all neceffary ammunition, provi- 
 fion, and ftores of war, for offence or de- 
 fence ; and to commit, from time to time, 
 the cuflody and government of the fame, to 
 fuch perfon or perfons as to him (hall leern 
 meet ; — and the faid forts and fortifications to 
 demoli(h at his pleafure ; — and to take and 
 furprize, by all ways and means whatfoever, 
 all and every fuch perfon or perfons, with 
 their (hips, arms, ammunition, and ether 
 
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 gooas, as (hall in a hodile manner inVade, 
 or attempt the invading, conquering, or 
 annoying of our faid province or territory* 
 Provided always, and we do, by thefe pre*- 
 fents, for us, our heirs and fucceflbrs, grant, 
 eftablifh, and ordain, That the faid gover* 
 nour (hall not, at any time hereafter, by vir- 
 tue of any power hereby granted^ or here* 
 after to be granted to him, tranfport any of 
 the inhabitants of our faid province or terri- 
 tory, or oblige them to march, out of the 
 limits of the fame, without their free and 
 voluntary confent, or the confent of the Great 
 and General Court, or Aflembly, of our faid 
 province or territory j nor grant commiflions 
 for exerciiing the law martial upon any the 
 inhabitants of our faid province or territory, 
 without the advice and confent of the Coun- 
 cil, or Affiftants, of the fame." 
 
 I % 
 
 N. B. No alteration is made in this part of 
 the charter of the Maflachufett's bay by thp 
 late adt of 14 Geo. 3. 
 
 iR-,: 
 
 77je claufe in the new commiffton of the Cover- 
 nour of the province of ^ebeck^ relating to 
 martial law, 
 
 " And we do hereby give and grant unto 
 ** you, the faid Guy Carleton, by yourfelf, or 
 " by your captains and commanders by you 
 •* to be authorized, full power and authority 
 
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 to levy, arm, tnufter, command, and em- 
 ploy all perfons what foe ver refiding within 
 our faid province ; — and, as occaiion ihall 
 ferve, them to march, en^bark, or tranfbor^ 
 from one place to another, for the relifting 
 and withftanding of all enemies, pirates, 
 and rebels both at land and fea j — and to 
 tranfport fiich forces to any of our planta- 
 tions in America, if neceflity (hall require, 
 for defence of the fame againft the invafion^ 
 or attempts of any of our enemies; — and fuch 
 enemies, pirates and rebels, if there (hall be, 
 occafion, to purfue and profecute in, or out 
 of, the limits of our faid province ; and, if 
 it {hall fo pleafe God, them to vanquifli, ap- 
 prehend, and take, and, being taken, ac- 
 cording to law to put to death, or keep or 
 preferve alive, at your difcretion ; — and to exe- 
 cute martial law in time of invafion, war, 
 or other times, when by law it may be exe- 
 cuted ; — and to do and execute all and every 
 other thing and things, which to our cap- 
 tain-general and governour in chief doth or 
 of right ought to belong." , 
 
 ■n 
 
 la 
 
 (C 
 
 N. B. This jcjaufe is word for word the fame 
 with that in the former commiflion, contrary 
 to what has been afl'erted in fome of the publick 
 news-papers. The differences between the 
 two commiffionsare tliefe that follow, which 
 are grounded for tlie mofl part on the late 
 
 Cc aa 
 
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in 
 
 » 
 
 
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 [ 202 ] 
 
 ad of parliament, for regulating the govern- 
 ment of that province. 
 
 *Y?>>X- 
 
 Differences betHveen the bid aitd new commif- 
 
 fionS of the Govermur of the province of 
 
 ' Rebeck, 
 
 •f -■ 
 
 The firft difference is in the defcription of 
 the boundaries of the province. In the old 
 commifllort this defcription is in thefe words : 
 Bounda- <« Our province ofQuebeck in America; bound- 
 prov*in«f ** ed on the Labrador coaft by the river St. John ; 
 ** and from thence by a line drawn from the 
 " head of that river through the lake St. John 
 " to the fouth end of the lake Nipiflim, from 
 ** whence the faid line croffing the river St. 
 ** Lawrence and the lake Champlain, in forty- 
 five degrees of northern latitude, pafles along 
 the high lands which divide the rivers that 
 etnpty themfelves into the faid river St. 
 ^* Lawrence from thofe which fall into the 
 fea *, and alfo along the north coafl of the 
 Bay de Chaleurs and the coaft of the gulf 
 of St. Lawrence to Cape Rofieres -, and from 
 " thence crofiing the mouth of the river St. 
 ** Lawrence by the weft end of the ifland of 
 ** Anticofti, terminates at the aforefaid river 
 *' St. John. 
 
 cc 
 
 <c 
 
 <c 
 
 <c 
 
 <c 
 
 <c 
 
 -■;; 
 
 In the new conimiflion the defcription of 
 the province is in thefe words: " Our pro-* 
 ** vince of Quebeck in America, compre- 
 
 ** bending 
 
f< 
 
 n 
 
 ft 
 
 <c 
 cc 
 M 
 
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 re 
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 t 203 1 
 
 hending all our territories, iilands, and coun- 
 tries in North-America, bounded by a line 
 from the bay of Chaleurs along the high 
 lands, which divide the rivers that empty 
 themfelvcs into the river St. Lawrence, from 
 thofe which fall into the fea, to a point in 
 forty-five degrees of northern latitude, on 
 the eaftern bank of the river Connedicut ; 
 Jvceping the fame latitude diredly weft 
 through the lake Champlain, until in the 
 fame latitude it meets with the river St. 
 Lawrence; from thence up the eaftern bank 
 of the faid river to the lake Ontario; thence 
 through the lake Ontario, and the river, 
 commonly called Niagara; and thence along 
 by the eaftern and fouth-eaftern bank of 
 lake Erie, following the faid bank, until 
 the fame fhall be interfered by the northern 
 boundary granted by the charter of the pro- 
 vince of Penfylvania, in cafe the fame Ihall 
 be fo interfered, and from thence along the 
 faid northern and weftern boundaries of the 
 faid province, until the faid weftern boun- 
 dary ftrikes the Ohio ; but, in cafe the faid 
 bank of the faid lake ihall not be found to 
 be fo interfeded, then following the faid bank, 
 until it fhall arrive at the point'of the faid bank 
 which fhall be neareft to the north-weftern 
 angle of the province of Penfylvania; and 
 thence by a right line to the faid north- 
 weftern angle of the faid province; and thence 
 along the weftern boundary of the faid pro- 
 
 * 
 
 I't 
 
 Cc 2 
 
 i( 
 
 vince. 
 
 ''r\\i' 
 
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 ^ 
 
 Hv 
 
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 T 204 1 
 
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 vincc, until it ftrikes the river Ohio, and 
 along the bank of the faid river weflward to 
 the banks of Miffiflippi, and northward 
 along the eaftern bank of the faid river to 
 the fouthern boundary of the territory 
 granted to the merchants adventurers of 
 England trading to Hudfon's Bay; and 
 alfb all fuch territories, iflands, and coun- 
 tries, which have, fince the tenth of Fe- 
 bruary, 1763, been made part of the go- 
 vernment of Newfoundland, as aforefaid." 
 
 V 
 
 The next difference is in the claufe direding 
 i-awstobcthe Governour how to adt. In the old com- 
 bytheGo.miflion the words are thefe; " According to 
 vcrnour. « the feveral powers and diredtions granted 
 or appointed you by this prefent com- 
 miflion, 6cc. and according to fuch reafon- 
 " able laws and ftatutes as fliall hereafter be 
 '* made and agreed upon by you, with the 
 " advice and confent of the council and aflem- 
 bly of our faid province under your govern- 
 ment, in fuch manner and form as is herein 
 after exprelTed." 
 
 ti 
 
 (t 
 
 <( 
 
 tc 
 
 (< 
 
 In the new commiflion this claufe is as 
 follows : " According to the feveral powers 
 ** and diredions granted or appointed you by 
 ** this prefent commiflion, &c. and according 
 *' to fuch ordinances as fhall hereafter be 
 ** made and agreed upon by you, with the 
 *' advice arid confent of the council of our 
 
 faid province under your government,' in 
 
 fuch 
 
 i* 
 
 tt 
 
(205] 
 
 <f fuch manner and form as is herein after 
 *« exprefled." 
 
 The third difference between the two com- 
 miffions is as follows. After the claufe con- 
 cerning the oaths to be taken by the members 
 of the council, (which is the fame in both 
 commifHons) there is in the new commifTion 
 the following claufe directing, that the Ro- 
 man-Catholick members of the council fhall 
 be admitted into it without taking either the 
 oath of fupremacy or the oath of abjuration 
 of the Pretender's title to the crown, which 
 are required of the proteftant members of it. 
 This new claufe is in thefe words. ** AndRoman- 
 vvhereas we may find it expedient for ourp"gfg°//jj' 
 ftrvice, that our council of our faid pro-toofficesof 
 vince fliould he in part compofed of fuchex"cufed 
 of our Canadian fubjeds, or their defcen-!'"Of" ai- 
 dants, as remain within the fame under thepope and 
 faith of the treaty of Paris, and who niavj^^^j^l^^' 
 profefs the religion of the church of Rome ; 
 it is therefore our will and plcafure, that in 
 all cafes where luch perfons fhall or may be 
 admitted, either into our faid council or 
 into any other offices,* they fhall be exempted 
 
 ** from 
 
 <t 
 
 (( 
 
 i( 
 
 <t 
 
 «( 
 
 C( 
 
 <( 
 
 C( 
 
 (( 
 
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 ■t ■ *-, 
 
 * N. B. By virtue of this claufe Roman -Catholicks arc 
 intitlcd to hold military commiffions in the province of 
 Quebeck; fo that a popifii army might lawfully be raifed 
 there, fuppofing that the king can lawfully raife any other 
 troops, in that or any of the«other out-lying dominions of 
 the crown, than thole allowed every year by the parliament 
 by the muti;iy-a(St, as fome lawyers are faid lately to have 
 alicrtcd. 
 
 
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 [ 206 ] 
 
 *f from all tcfts, and from taking any other 
 oath than that prefcribed in and by an acfl 
 of parliament, pafled in the fourteenth year 
 of our reign, intituled, ^n a^ for making 
 more effedlual provifton for the gcvtrnment of 
 the province of Rebeck in North- America ; 
 *.* and alfo the ufual oath for the due executioa 
 " of their places and trufls refpedively." 
 
 Licufe- Fourth difference. In the old commifHon 
 vernoursofthe Govemour is direded to adminiiler the 
 •nd'rroi's ^^^^^ ftatc-oaths to the Lieutenant-governours 
 Rivieres, of Montreal and Trois Rivieres : in the new 
 
 commiffion no mention is made of thefe Lieu- 
 
 ^enant-governours. 
 
 Vowrrof Fifth difference. In the old conimifiion 
 rour "o^*^' there is a claufe impowering the Governour, 
 call an af-^itJ^ the advice and confent of the council of 
 the province, to call an affembly of the free- 
 holders, and to caufe the ufual oaths and the 
 declaration againft tranfubliantiation to be ad- 
 miniflered to th? perfons chofen into the 
 aflembly, before they take their feats there. 
 In the new commiffion this claufe is intirely 
 omitted ; fo that the Governour has it not now 
 in his power to fummon m affembly, though 
 it fliould be thought by his Majefly expedient 
 to do fo. 
 
 The fixth and the four foUo.wing differences 
 between the two commitfions are in the claufe 
 
 which 
 
taking any other 
 in and by an adl 
 .e fourteenth year 
 tn a£i for making 
 the pcuernment of 
 I North- Amenca ; 
 the due executioa 
 relpedively." 
 
 le old commiflion 
 to admin ifter the 
 tenant-governours 
 ieres : in the new 
 ade of thefe Lieu- 
 
 e old conimifiion 
 
 g the Governour, 
 
 of the coupcil of 
 
 mbly of the free- 
 
 ual oaths and the 
 
 ntiatiqn to be ad- 
 
 chofen into the 
 
 their feats there. 
 
 clauie is intirely 
 
 pur has it not now 
 
 lafTembly, though 
 
 [ajefty expedient 
 
 lo.wing differences 
 Is are in the claufe 
 which 
 
 [ ^^7 i 
 
 which confers the power of making laws. In^^^^j^5[,°^ 
 the old commiflion this claufe is as follows. iaws. 
 And we do hereby declare, that the perfons 
 fo eledted and qualified fhall be called The • 
 affembly of that our province df Qucbeck; 
 and that you, the faid James Murray, by 
 and with the advice and confent of our faid 
 council and affembly, or the major part of 
 them, (hall have full power and authority 
 to make, conftitute, and ordain, laws, fta- 
 tutes, and ordinances, for the publick peace, 
 welfare, and good government of our faid 
 province, and of the people and inhabitants 
 thereof, and fuch others as fliall refort 
 thereunto, and for the benefit of us, our 
 heirs and fucceffors ; which faid laws, fla- 
 tutes, and ordinances, are not to be repug- 
 nant, but, as near as may be, agreeable to 
 the laws and ftatutcs of this our kingdopi 
 of Great-Britain. 
 
 <• Provided that all fuch laws, ffatutes, and 
 '* ordiilancesj of what nature or duration fo; 
 ever they be, fhall be, within three month?, 
 or fooner, after the making thereof, tranf- 
 ** mitted to us, under our feal of our faid 
 province, for our approbation or difallou - 
 ance of the fame, as alfo duplicates thereof, 
 by the next conveyance. 
 
 1 
 
 ■ \ 
 
 « 
 
 *l 
 
 i( 
 
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 f( 
 
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 And in cafe any, ot all, of the faid laws,. 
 •* flatutef?, and ordinances, not before cdn- 
 
 firmed 
 
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 i 208 ] 
 
 ** firmed by us, rtiall at any time be difallowed 
 *• and not approved, and fo fignified by us, 
 ** our heirs and fucccflbrs, under our, or 
 ** their, fignet arid figri manual, or by order 
 ** of our, or their; privy council, unto you, 
 «* the faid James Murray, or to the com- 
 ** mander in chief of our faid province for 
 «* the time being, then fuch and fo many of 
 *' the faid laws, flatutes, and ordinances, as 
 *' fhall be fo difallowed and not approved, 
 ** fhall from thenceforth ceafe, determine, 
 *• and become utterly void and of no effe^ ; 
 *' any thing to the contrary thereof notwith- 
 ftanding. 
 
 <( 
 
 4€ 
 
 it 
 it 
 *k 
 
 U 
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 it 
 
 it 
 ft 
 it 
 
 •* And to the end that nothing may be 
 palTed or done by our faid council or aflem- 
 bly to the prejudice of us, our heirs and 
 fuccefrors> we will and ordain that you the 
 faid James Murray fhall have and enjoy a 
 negative voice in the making and pafling all 
 laws, ftatutes, and ordinances, as aforefaid ; 
 and that you fhall and may likewife, from 
 time to time, as you fhalljudge necefTary, 
 adjourn, prorogue, or diffolve all general 
 affemblies as aforefaid." .ft- 
 
 iT-'fr. 
 
 In the new commiflion the claufe upon tnis 
 fubjedt is as follows. ^* And we do hereby 
 *• give and grant unto you, the faid Guy 
 ** Carleton, full power and authority, with 
 ^* the advice and confent of our faid council, 
 
 *• to 
 
owed 
 
 4< 
 
 y us. 
 
 €i 
 
 r, or 
 
 t< 
 
 order 
 
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 ► you. 
 
 4t 
 
 com- 
 
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 ce for 
 
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 iny of 
 
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 ■>S, nS 
 
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 roved. 
 
 tf( 
 
 mine. 
 
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 :with- 
 
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 aflem- 
 
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 rs and 
 
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 ou the 
 
 
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 xereby 
 
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 mncil, 
 
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 t 209 ] 
 
 to make ordinances for the peace, welfare^ 
 and good government of the faid province, 
 and of the people and inhabitants thereof, 
 and fuch others, as fhall refort thereunto, 
 and for the benefit 6f uSj our heirs and fuc- 
 ceflbrs : l^ROViDED always, that nothing 
 herein contained rtiall extend, or be con- 
 ftrued to extend to the authoriling and im- 
 powering the pafUng any ordinance or ordi- 
 nances for laying any taxes or duties within 
 the faid province ; fuch rates and taxes only 
 excepted, as the inhabitants of any town or 
 diftridl within our faid province may be 
 authorifed by any ordinance pafTed by you, 
 with the advice and confent of the faid 
 council, to all'efs, levy, and apply within 
 the faid town or diflritlt for the purpofe of 
 making roads, ere(fling and repairing pub- 
 lick buildings, or for any other purpofe 
 refpedling the local convenience and oicono- 
 my of fuch town ordithid: PROVIDED 
 alio, that every ordinance, fo to be made 
 by you, by and with the advice and confent 
 of the faid council, Ihall be, within lix 
 months from the pafling thereof, tranfmitted 
 to us under our feal of our faid province for 
 our approbation or difallowance of the fame; 
 as alfo duplicates thereof by the next con- 
 veyance ; and in cafe any, or all of the faid 
 ordinances, fliall at any time be difallowed 
 and not approved, and fo lignified by us, 
 our heirs and fuccelTors by an order in their, 
 ** Dd " or 
 
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 -< ' ;:••*!. 
 
mi 
 
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 •' I 
 
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 [ 210 ] 
 
 ' or our privy council unto you, the faid Guy 
 ' Carlcton, ur to the commander in chief of 
 ' our faid province for the time being, then 
 ' fuch and lb many of the faid ordinances, as 
 ' {hall be fo difallowed and not approved, 
 
 * fliall , from the promulgation of the faid order 
 ' in council within the faid province, ceafe; 
 ' determine, and become utterly void and of no 
 ' efFedt : PROVIDED alfo, that np ordinance 
 
 * touching religion, or by which any punifh- 
 ' ment may be inflidled greater than fine or 
 
 * imprifonment for three months, fliall be of 
 
 * any force or effedl, until the fame fliall have 
 
 * been allowed and confirmed by us, our 
 
 * heirs and fucceflbrs, and fuch allowance. 
 
 * or confirmation fignified to you, or to the 
 
 * commander in chief of our faid province 
 
 * for the time being, by their or our order 
 in their or our privy council. . ' t * 
 
 ** Provided alfo, that no ordinance fliall 
 ' be pafled at any meeting of the council; 
 
 * where lefs than a majority of the whole 
 
 * council is prefent, or at any time, except 
 
 * between the firfl: day of January and the 
 
 * firfl: day of May, unlefs upon fome urgent 
 occafion; in which cafe every member 
 thereof refident at the town of Quebeck; 
 or within fifty miles thereof, fliall be per- 
 fbnally fummoned to attend the fame: and 
 to the end that nothing may be pafled or 
 done, by our faid CQuncil to the prejudice, 
 
 " of 
 
 U 
 
' ♦ 
 
 I 2'« ] 
 
 •' of US, our heirs and fucccflbrs, wc will and 
 <• ordain, that you, thr* faid Guy Carlcton, 
 •* (hall have and enjoy a negative voice in the 
 ** making jnd paiting of all ordinances, as 
 ** aforefaid." 
 
 gent 
 nber 
 eck^ 
 per- 
 and 
 d or 
 dice, 
 of 
 
 ion 
 
 Thcfe two claufes differ from each other 
 in the following points. 
 
 By the old commifllon the Govcrnour, 
 council, and afTemhly are impowered to make 
 Jaws, llatutes, and ordinances for the pro- 
 vince, tbaf are not to he repugnant^ buty as 
 near as may be, agreeable to the laws of Eng^ 
 land. By the new commiflion the Governour Power of 
 and council only, (without an afTemhly,) areJJJJ't'',' "jj^ ^ 
 impowered to make ordinances for the pro-'jws for 
 vince for every purpofe but the impofition ofyincJlTx- 
 taxes ; and alfo for that purpofe in certain *^^p' '''^' 
 excepted cafes. And there is no proviloe 
 that the ordinances they fliall pafs fhall not 
 be repugnant to the laws of England. This 
 therefore is the fixth difference between the 
 two commiffions. ' 
 
 The next difference between thefe two 
 claufes, or the feventh difference between the 
 two commiflions, is this. 
 
 In the old commifHon the Governour is 
 
 direded to fend over to England copies of the 
 
 ordinances that are paffed by the aircmbly, 
 
 •'■ '" D d 2 within 
 
 •/ 
 
u . 
 U 
 
 I- 
 
 
 f 
 
 It 
 f i 
 
 \k 
 
 
 >#i^ 
 
 '■:'i^i 
 
 .^•f 
 
 'I 
 
 iw 
 
 ■i' 
 
 [ 212 ]• 
 
 Ti-ncs ap-^y-^}^jj^ the fpace of three months after thev 
 lending arc palicd, to be allowed or dilallovved by the 
 SanccTto Kings Majefly, as he fliall think proper, 
 England, Jn the new commilfion the Governour is di^ 
 lowed or I'cded to fend over the Hke copies of the ordi- 
 diiaiiowed nances paiTed by the legiflative council, within 
 kms. ^ the fpace of fix months after they are paffed, 
 to be allowed or difallowed by the King's 
 Majefty, as he (hall think proper. 
 
 The next, or third, difference between thefe 
 two claufes, or the eighth difference between 
 the two commifHons, is this. 
 
 In iht old commiflion it is faid, that, if 
 any of the ordinances paffed by the Governour, 
 council, and affembly, that have not been 
 before confirmed by the King's Majefly, fhall 
 at any time be difallowed by him, it fhall, 
 from the time of the fignification of fuch his 
 Majefly's difallowance, become void and of 
 no efFe<5l. From the natural import of thefe 
 words, " not before confirmed by w^," it fhould 
 fcem that an ordinance paffed by the Gover- 
 nour, council, and affembly of the province, 
 under the old commiffion, and that had been 
 afterwards confirmed by his Majefly by his 
 order in council, could not at any future pe- 
 riod be difallowed by him. But in the new 
 commiirion thefe words, ** not before confirmed 
 by uSy' are omitted ; fo that the King fcems 
 to retain a power of difallowing the ordinances 
 
 pafled 
 
t ^ .- 
 
 [ 213 1 
 
 paffed hy the Governour and legiflative coun-Pe'^pc*"='| 
 cil under the new commilTion at the diftanceSiTcrown 
 of forty or fifty years after they have been^°^"J'^^^j^ 
 paffed, or any other future period, how diftant nances of 
 foever, even though he fhould have confirmed J,^^^^''®" 
 them by his order in council. 
 
 vmcc. 
 
 The fourth difference between thefe two 
 claufes, or the ninth difference between the 
 two commiffions, is this. 
 
 By the old commiflion all the ordinances 
 that (hould be paffed by the Governour, coun- 
 cil, and affembly, were to be in force imme- 
 diately from the time of their pafling, unlefs. 
 a claufe Ihould be inferted in them exprefsly 
 fufpending their operation for a certain time, 
 or till his Majefty had confirmed them by his 
 order in council. But by the newcommifiionordinan- 
 no ordinance concerning religion, or by which"in\"J* 
 any punifhment greater than fine or imprifon- are not to 
 ment for three months may be inflicfted, is tOtiti'they" 
 be of force in the province till it has been^'^^l''^" 
 confirmed by the King by his order in hisby"the^^ 
 privy-council. But it muff be obferved that,^^g"^j'^°'^" 
 with this confirmation of the King by his council, 
 order in council, any ordinance whatfoever, 
 either concerning religion or any new and fe- 
 vere punifhment or mode of trial, or any thing 
 elfe, except the impofition of taxes, may, 
 (for aught that appears to the contrary in this 
 commiilion,) be eftabliflied and executed in 
 
 the 
 
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 r 
 
 ' ill 
 
 ir 
 
 i.'l, 
 

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 I •; 
 
 n< 
 
 I 
 II ' 
 
 
 
 Mil 
 
 
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 4 
 
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 in 
 
 I 2'4 ] 
 
 the province ; the reftridlion above-mentionedl 
 in the old commifTion, which direded that the' 
 ordinances fhould not be repugnant, but, as' 
 near as may be, agreeable to, the laws of 
 England, being omitted in the new one. 
 
 N. B. The expreffion ufed in this part of 
 tJbe new commiffion and in the adt of parlia- 
 ment on which it is founded, of a pum/bmenf 
 greater than fine or imprifonment Jor three months^ 
 ' is a very loofe one, lince it is very difficult to 
 compare the magnitudes of punifhments of 
 different kinds with each other. The ex- 
 preffion ought rather to have been, any other 
 punifiments than thofe oj fine and imprifonment^ 
 or any imprifonment for more than three months : 
 for that, I prefume, was the meaning of the 
 perfon, (whoever he was,) that drew up that 
 adl of parliament. 
 
 Power of The fifth difference between thefe two 
 and pro" .claufcs, or the tenth difference betvvecn the 
 two commiflions, is as follows. In the old 
 coriimiffion the GoVernour is impowered to 
 adjourn, prorogue, or diffolve all general affem- 
 blies of the freeholders : but in the new com- 
 iijiflion there are no words to impower the 
 Governour to adjourn or prorogue the legifla- 
 tive council. QuiEre, whether it is the in- 
 tention of government that the legiflative 
 council Ihall continue fitting for the purpofe 
 of making laws for the whole fdiir months 
 
 from 
 
 pro 
 roguing 
 the coun- 
 cil. 
 
t 215 ] 
 
 IVoifn the firft of January to the firft of May? 
 
 or may they adjourn, or prorogue, themfelves 
 
 by their own authority without the order of 
 
 the Governour ? or what is to be done in this 
 
 matter ? ^- ^; '■' '^' "': '•■ •• '-p.';:- ■••-.- 
 
 ' , - * 
 
 I . .• o ' ... . , . 1 . , -- .- , , ■ I r 
 
 , ■ , _ . 1 ■ ■ ■ i ) » ; . ."■.. -.J* k . • • I .- • I . .. ' 
 
 The eleventh difference between the two 
 commiffions is this. In the old commiffioil 
 the Governour is impowered, by the advice 
 and with the confent of the council of the 
 province^ to iiTue out for the fupport of the 
 government of the province, and not otherwife, 
 all publick monies that fhould be raifed in the 
 province by any ad of affembly. And in the 
 new commiffion the Governour is impowered, 
 by the advice, and with the confent, of the 
 legiflative council of the province, to iffue out 
 by his warrants, for the fupport of the govern- 
 ment, and not otherwife, the publick monies 
 granted and raifed for the publick ufes of the 
 faid province, without the words, raifed by any 
 a£i hereujter to be made within our faid province ^ 
 which are in the old commiffion. This 
 change is neceffary on account of the reftridion. 
 of the power of the Governour and legiflative 
 council, of the province with refpedt to the 
 impofition of taxes ; which makes it impof- 
 fible that any publick monies fhould be raifed 
 by any ad: to be made within the province. 
 
 N. B. This claufe of the Governour's new 
 Commiffion, which impowers hicn, with thri 
 . . *. -. advice 
 
 
 t iJ 
 
 I 
 
 •3 
 

 m 
 
 h ' 
 
 
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 advic^ and confent of the legirtative coiincil of 
 the province, to iflue out by his warrants, for 
 the fupport of the government of the province^ 
 and not otherwife, the publick monies granted 
 and raifed for the publiek ufes of the faid pro- 
 vince, feems to be hardly confiftent with the 
 following claufe in the adt of parliament which 
 pafled in the fummer 1774, at the fame time 
 as the adt for regulating the government of the 
 province of Quebeck, and which granted to 
 the King's Majefty certain duties on rum, 
 brandy, and molafTes imported into the faid 
 province* This claufe diredts, ^bat all the 
 monies that jloall arije by the faid duties (except 
 the necejfary charges of raifingy colle^ing^ levy- 
 ingi recovering^ anfwering, paying, and account- 
 ing for the fame J JJjall be paid by the colleSlor 
 of his Maje/iys cufioms into the hands of his Ma- 
 je/iys receiver-general in the faid province for the 
 time being t and Jhall be applied in the firjl place 
 in making a more certain and adequate provi/ion 
 towards defraying the expences of the adminiftra- 
 tion of jufiice and of the fupport of civil govern- 
 ment in the faid province : and that the Lord 
 High Treafurer, or Commijioners of his Majeflys 
 Treafury^ or any three, or more, of them^ for the 
 time bei?ig, floall be, and is, or are, hereby im- 
 powered, from time to time, by any warrant, or 
 warrants, under his, or their, hand, or hands, 
 to cau/e fuch money to be applied out of the faid 
 produce of the faid duties, towards defraying the 
 faid expences 'y and that the reftdue of the faid 
 
 duties 
 
r 217 1 
 
 duties /hall remain and be referved in the hands of 
 the faid receiver-general for the future difpofition 
 of parliament. By this claufe the monies arif- 
 ing from thefe duties are to be applied, to the 
 purpofes for which they are raifed, by the war- 
 rants of the commiffioners of the treafury: 
 whereas the above-mentioned claufe in the 
 new commiffion of the Governour gives him 
 a power, with the confent of the kgiflative 
 councilyto iiTuc the publick monies raifed ir^ the 
 province by his warrants. Quaere,, by whofe 
 warrants the receiver-general of the province 
 of Quebeck rtt&y lawfully pay the monies 
 arifing froni thefe duties ; by thofe of the 
 commiffioners of the treafury only„ or by thofe 
 of the Governour of the province, with the 
 confent of the legiflative council ? See the 
 Stat. 14 Geo. III. cap. 88. intitlcd, "^« oB 
 to efiablijlj a fund towards further defraying the 
 charges of the adminiftrdtion of jujlicey and fup- 
 fort of the chil government ^ within the province 
 of Rebeck in America,** , • 
 
 The twelfth and fall difference between the 
 two commiffions is this. There is in both 
 commiffions a claufe impowering the Gover- 
 nour, with the confent of the council, to 
 grant lands in the province : and the words of 
 this claufe are the iame in both commiffions. 
 But in the old commifficMi this claufe is fol- 
 lowed by a provifoe diredling that the grants 
 which £hall be made by virtue of it, fliall bq 
 
 £ e made 
 
 M 
 
 *!'J 
 
\ \ 
 
 ■! I I 
 
 im 
 
 \^■ 
 
 [ 218 ] 
 
 made agreeably to the King's inftrudtions to 
 the Governour, and that the faid inftru<ftions 
 fhall be publilhed in the province, and entered 
 on record, in like manner as the grants of 
 land themfelves are direded to be entered. 
 But this provifoe is omitted in the new com- 
 mifTion. The words of this provifoe are as 
 follows. ** Provided the fame be conformable 
 " to the inftrudtions herewith delivered to 
 you, or to fuch other inftrudlions as may 
 hereafter be fent you under our fignet and 
 fign manual, or by our order in our privy 
 council ; which inftrudlions, or any articles 
 *' contained therein, or anv fuch order made 
 '* in our privy council, fo far as the fame fhall 
 " relate to the granting of lands as aforefaid, 
 ** fhall from time to time be publifhed in the 
 province, and entered on record in like 
 manner as the faid grants are hereby di- 
 rected to be entered/* [Quaere the reafoit 
 of omitting this provifoe in the new com- 
 mifiion.J 
 
 €< 
 
 tt 
 
 *€ 
 
 l« 
 
 €€ 
 
 tt 
 
 tc 
 
 , *.VJ -. \ Twis.* 
 
 Thefe are all the differences that I have 
 obferved between thefe two commifllons. 
 The commiflions themfelves have been lately 
 publifhed by Mr. Almon, 
 
 ' • I*, ! ' ■ •*■ \ , < t i'v *.J A, 
 
 i.f-nxi ■-:• --■ "i .^*.'- 
 
 A Remark 
 
 .J-r 
 
 -5,3' 
 
[ 219 1 
 
 ^:.;l r 
 
 . * 
 
 A Remark concerning the power of 
 erecSing courts of juftice in the pro- 
 vince of Quebeck. 
 
 TN the late adl of parliament for regulating 
 ■■* the government of the province of Quebeck 
 there is the following claufe concerning the 
 cftablifhment of courts of juftice in the faid 
 province. " And be it further ena&ed by the 
 authority afore faid^ That nothing herein contained 
 jimll extendi or be conjlrued to extend, to prevent 
 or hinder his Majejiy^ his heirs and JuccefjorSy 
 by his or their letters patent under the great feat 
 of Great'Britainyfro?n ereSling, conftituting, and 
 appointing, fuch courts of criminal, civil, and 
 ecclefiafiical, jurifdidiion, within and for the laid 
 province of Rebeck, and appointing, from time 
 to time, the judges and officers thereof, as his 
 Majejly, his heirs and fucceffors, Jhall thitik ne^ 
 cejfary and proper for the cif cum fiances of the 
 faid provinc^r 
 
 By this claufe it fhould feem that the 
 courts of juftice that are to be eredled in the 
 province, in the room of thofe which arc 
 abolifhed by this ad, ought to be ereded by 
 letters patent under the great feal of Great- 
 Britain. Yet in the new commiflion of Go- 
 vernour Carleton there is a claufe which 
 impowers the Governour, with the confent 
 
 E e 2 «f 
 
 
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<"'• 
 
 ■..y. 
 
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 I 22Qt ] 
 
 of the legiflative council eftabliihed in the 
 province, to ered fuch courts of judicature as 
 he and they ftiall think fit and neceffary fox 
 the hearing and determining all caufes in it, 
 as well criminal as civil. The words of this 
 claufe are as follows. ** And we do by thepi 
 frefents give ^nd grant unto you^ the faid Guy 
 Carkton, fuli power and authority ^ with the ad- 
 vice and conjent of our faid council^ to ereB^ 
 con/lit utey and ejiahlijh^ fuch and Jo many court i 
 of judicature andpublick jujlice within our faid 
 province under your government ^ a% you and they 
 Jhall think fit and neceffary for the hearing and 
 determining all caufesy as li^ell criminal as civile 
 and for awarding execution thereupon^ with all 
 reafonable and neceffary powers y authorities y J^es^ 
 and privileges y belonging thereunto^ 
 
 Quaere, whether this claufe of the com- 
 miflion is not void, as being contrary to the 
 aforefaid claufe of the adl of parliament, which 
 fuppofes that the courts of juftice in the pro- 
 vince will be ereded by the King's letters 
 patent under the great feal of Great-Britain ; — 
 or whether, adly, an ordinance of the Gover- 
 nour and council of the province may be con- 
 fidered as equivalent to letters patent under 
 the great feal of Great-Britain, becaufe it is 
 pafTed in purfuance of the powers granted to 
 theGovernour byhiscommiflion of governour, 
 which is under the great feal of Great-Bri- 
 tain 'y — or whether, 3dly, as the words of the 
 
 ad 
 
 J" 
 hi 
 
con- 
 nder 
 it is 
 ed to 
 our, 
 •Bri- 
 ■the 
 
 [ 221 ] 
 
 zQ, of parliament do not exprefsly prohibit 
 the King from delegating to the Governour, 
 by his commiffion under the great feal of 
 Great-Britain, a power of ercding courts of 
 juftice in the province, but only refer ve to 
 him the power of doing it himfelf by his 
 letters patent, if he (half fo think fit, the ICing 
 ought not to be fuppofed to be at liberty to 
 make fuch a delegation of his power in this 
 behalf to his Governour, in the fame manner 
 as he would have been if the claufe above- 
 recited had not been inferted in the ad. 
 
 Yet the fafeft and moll regular way of pro- 
 ceeding in this bufinefs feems to be to eredt 
 the necefTary courts of juftice in the province 
 by his Majefty's letters parent under the great 
 feal of Great-Britain, agreeably to the fuppo- 
 fition and refervation oftheadt of parliament. 
 And, as to ecclefiailical courts, (if any fuch 
 are to be eftablifhed,) they can only be efta- 
 blifhed by the King's letters patent, becapfe 
 the above-recited claufe in the Governour's 
 commiffion does not make any mention of 
 them, but only fpeaks of courts of juftice for 
 determining caujes criminal and civil. This mat- 
 ter feems to be worthy of further conlideration. 
 
 It is faid that the prefent Lieutenant-gover- 
 nour of the province of Quebeck, Hedlor 
 Theophilus Cramahe, Efqj has aded in the 
 capacity of Lieutenant-governour fince General 
 
 Carleton's 
 
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 il 
 
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 ^1! 
 
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 [ 222 ] 
 
 Carleton's return into the province as Gover- 
 nour. Quaere, whether this is not irregular, 
 the commifTion of Lieutenant-governour im- 
 powering him to adl only in cafe of the deaths 
 or during the abfence^ of the Captain-general and 
 Governour in chief of the faid province. At 
 leaft fuch was the tenour of the commiffion 
 of Lieutenant-governour granted to General 
 Carleton in the year 1766, when General 
 Murray was Governour in chief of the pro- 
 vince. That commiffion was as follows. 
 
 Commiflion of Lieutenant-Governour 
 of the province of Quebeck in North 
 America. ; f ■ 
 
 GEORGE R. 
 
 GEORGE the 7'HIRD. by the grace of God, 
 King of Great-Britain, France, and Ireland, 
 defender of the faith, and fo forth : To our 
 irujly and welUbeloved Guy Carleton, 
 Efquire, greeting ; 
 
 ly^E, repofing efpecial truft and confidence 
 ^^ in your loyalty, integrity, and ability, 
 do, by tnefe prefents, conftitute and appoint 
 you to be our Lieutenant-Governour of our 
 province of Quebeck, in America ; to have, 
 nold, exercife, and enjoy the faid place and 
 office during our pleafure, with all rights, 
 privileges, profits, perquifites, and advantages 
 to the fame belonging or appertaining. 
 
 And 
 
[ a23 1 
 
 And further, in cafe of the death, or during 
 the abfcnce, of our Captain-general and Go- 
 vernour in chief of our faid province of Que- 
 beck, now, and for the time being, we dp 
 hereby authorife and require you to exercife 
 and perform all and lingular the powers and 
 dire^ions contained in our commiiHon to our 
 Captain-general and Governour in chief, ac-r 
 cording to fuch inflrudlions as he has already 
 received from us, and fuch further orders and 
 inflrudions as he, or you, (hall hereafter 
 receive from us. 
 
 And we do hereby command all and fingu-. 
 lar our officers, minifters, and loving fubjeds 
 in our faid province, and all others whom it 
 may concern, to take due notice hereof, and 
 to give their ready obedience accordingly. 
 
 Given at our court at St, James's, the 
 . feventh of April, 1766, in the fixth year 
 .. of our reign. .- ;., r,,. * 
 
 By his Majefty*s command. 
 
 - ^1 ' : V (Signed) H. S. CONWAY. 
 
 Guy Carleton,Efqj Lt. Governour of Quebeck. 
 
 ... 71 fa r. Entered as follows, u :.: ^v -- ■ 
 Entered at the Treafury . i 1 ■ > •>* ' ? ^ - * ti - ii 
 ^' (Signed) THOs. tOMKYNS. ' 
 
 Entered in the office of the Lords Commif- 
 fioners for Trade and Plantations. „. .^ „ 
 (Signed) S. BRADBURY. 
 
 ;.>y,> 
 
 1 I ' (• IK 
 
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 ARc^ 
 
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 ( 424 J 
 
 A Remark concerning the illegality of 
 the arreft of Mr. Thomas Walker 
 in Odober, 1775. 
 
 j;- 
 
 IT Is well known diat the King of Great- 
 Britain, though he is the fountain of all 
 civil and military authority in the kingdom, 
 yet cannot lawfully, by his own immediate 
 warrant under his hand and feal, caufe any of 
 his fubjeds to be arrefted or imprifoned. The 
 reafon afligned for this pcrfonai incapacity of 
 the fupreme magiftrate of the country to exer- 
 cife thefe a<fls or civil power, is a very juft and 
 fatisfadlory one : it is oecaufe he is not ame> 
 nable to any of the courts of juflice in the 
 kingdom, as a defendant, to anfwer the com- 
 plaints of any of his fubjedts concerning any 
 injuries he may have done them by the im- 
 proper exercife of his authority. Since there- 
 fore he is not compellable to make fatisfadion 
 to the peribns whom he lanight wrongfully 
 imprifbn, the law fays he ihall not havepov^r 
 to imprifon any body at all, but that, if he 
 ihall attempt to do fb, his warrant of com- 
 mitment under his hand and ieal ihall not be 
 deemed of fuiHcient authority tOjuAify the jailor 
 in detaining the perfbn whom he fhall have com- 
 mitted to his cuftody, or to proteft himagainfl 
 a civil adtion of trefbafs and falfe imprifon- 
 me;)t brought againu him by the perfon fo 
 
 imprifoned. 
 
 i 
 
I 
 
 [ 225 ] 
 
 imprifoncd. This is clear and fettled law, 
 and of very long (landing. For, in the year- 
 book of tile firli year of Henry VII. page 4, 
 lacito 5, we meet with the following ihort, 
 ui curious, pafljgc, which was afterwards 
 cited by Sir Edward Coke in the debates on 
 ihe famous Petition of right. Huffcy, chief 
 jujlice^ dijoity ^e Sir jfohn Markbam difoit ait 
 hi Edward h 4, que tl ne poit arrcfter tin horn me 
 fur fufpicion de treafon ou Jelonicy ficcmc ajcum 
 de les liges puijfent -, parccque^ fi il fact' tort, le 
 parti ?ie poit aver adlion, ** Hulfey, (the 
 chief juftice of the King's-bench in the firll 
 year of Henry VII.) faid, that Sir John Mark- 
 ham, (who had been chief juftice in the reign 
 of Edward IV.) had faid to King Edward IV. 
 that he could not arreft: any man upon fufpi- 
 cion of treafon or felony, as fomc of his Ma- 
 jefty's liege fubjeds might do j for this reafon, 
 that, if he was to do wrong, the injured party 
 could have no adion againfl him." No in- 
 convenience arifes from this reftraint upon the 
 perfonal power of the King; because there are 
 always magiftrates enough appointed by him, 
 who have authority to commit all offenders 
 againft the laws to prifon upon juft and fuffi- 
 cierit information given before them upon 
 oath, and who (when they adhere to the rules 
 which the law prefcribes,) are fufficiently pro* 
 tedled by the law in the execution of this part 
 of their duty, to be above all fear of being 
 molefled on that account, 
 
 Ff The 
 
 •I' 
 
flf'."-. ' 
 
 iVf 
 
 I ''i 
 
 hi 
 
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 ! IV 
 
 [ 226 ] 
 
 The fame law fubfifls in the American pro- 
 vinces with refpedt to the power of the Go- 
 Vernour ; and for the fame reafon. He cannot 
 imprifon any of the king's fubjedts under his 
 government by his own warrant, or order, of 
 commitment ; becaufe he cannot be fued and 
 compelled to pay damages to the parties whom 
 he might thereby have injured, in the cOiirts 
 of the province of whicn he is governour. 
 General Carleton therefore had no authority 
 to caufeMr. Thomas Walker of Montreal to be 
 arrefted for high treafon, or any other crime, by 
 his own warrant, or order, even tho* we Ihcfuld 
 fuppofe Mr. Walker to have been guilty of itj 
 and the general to have had the fuUeft informa-^ 
 tion, upon the oaths of credible witnefTes, that 
 he was fo. But this could only be done by Mr. 
 Hey, the chief juflice of the province, if he 
 really Was chief juftice of the province at that 
 time, that is, if his commilTion of chief 
 juftice had been renewed fince the firft qf May 
 laft, when his former commiffion was (to- 
 gether with all the other judicial commiflions 
 in the province,) Vacated by the Quebeck-adt* 
 If he was not chief juftice of the province at 
 that time, that arreft of Mr. Walker ought to 
 have been made (if it could be legally made at 
 all,) by Meffieurs Frafer, Marteilhe, and Rod- 
 ville, the three confervators of the peace for th^ 
 diftridt of Montreal (mentipned above in page 
 1 54) whom General Garleton appointed to that 
 new oilice on the ift day of May, 1775, to pre- 
 vent 
 
 W::v 
 
 1 1 
 
 h. ^ 
 
 1; iii 
 
 1— . 
 
 \ fi 
 
t 227 ] 
 
 yent tfce total anarchy into which the province 
 would otherwife have been throv^n by the va- 
 cating claufe of the (Rebeck-ad:. It is true in- 
 deed that juft objedtions may be made even to 
 their authority, becaufe they were appointed, 
 (as I underftand,) by the fingle authority of the 
 Govemour, without the concurrence of the 
 council of the province ; whereas they ought, 
 ^cording to the claufe herein before cited, 
 (in page 220,) from theGovernour's new com- 
 miffion, to have been appointed by the Go- 
 vernour with the advice and confent of the faid 
 council. For the appointment of the firft new 
 judges by commiflipns fpecifying the powers 
 they are to exercife, after the abolition of all 
 the former courts of juftice in the province by 
 the vacating claufe of the Quebeck-adt, is in 
 truth ereBing new courts, of judicature^ which 
 the commiffion dirafts to be done with the 
 confent of the council : and it is only when 
 the courts of judicature of the province have 
 been regularly eftablifhed in it, and their pow- 
 ers and jurifdi(5tions legally fettled and defined, 
 (either by the King's letters patent under the 
 great feal of Great-Britain, agreeably to the 
 power referved to his Majefty in the Quebeck- 
 adt, or by the joint adl of the Governour and 
 council of the province, agreeably to the claufe ' 
 above-mentioned in the Gpvernour's new com- 
 miffion,) that the Goyernovi,r, (according to 
 his commiffion,) may by his fmgle authority 
 appoint the judges who are to fill them. How- 
 
 F f 2 ever 
 
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 [ 228 ] 
 
 ever, thofe confer vators of the peace, if they were 
 not legal magiftraf;es duely appointed according 
 to the directions of the commiflion, were the 
 pcrfons who came the neareft to that charadler 
 of any perfons in the pro\ ince : and therefore 
 they, and not the Governour, ought to have 
 ilTued their warrant to arreft Mr. Walker for 
 high treafon, if in truth there was fufficient in- 
 formation upon oath to juftify fuch aflep. And 
 this was the conduct General Carleton purflied 
 in November, 1766, when he was Lieutenant- 
 governour of the province. He did not then 
 himfelf ifTue warrants to apprehend offenders; 
 but left the fix gentlemen at Montreal, who 
 were charged upon the oath of one Mac- 
 Govock, (an accomplice,) with a concern in 
 the cruel aflault and wounding of this very 
 Mr. Thomas Walker on the fixth day of De- 
 cember, 1764, to be apprehended by the 
 warrant of Mr. Hey, the chief juftice of the 
 province ; and only gave an order to the 
 worthy Lieutenant-colonel Mafley, (who was 
 at that time the commanding officer at Mon- 
 treal,) to give the provoft-marflial, or fheriiF, 
 of the diflridt of Montreal fuch a guard of 
 foldiers, to affifl him in the execution of the 
 chief juliice's warrant, as he fhould defire. 
 This was ading regularly and agreeably to 
 law, ^ I cannot conceive therefore how it 
 comes to pafs that on the late occafion he has 
 taken upon him to iffue his own warrant, or 
 order, to apprehend Mr. Walker, unlefs it be 
 
 upon 
 
I 229 1 
 
 Upon a fuppolition that he was authorized to 
 do fo by the martial law, which he had efta- 
 bli/hed in the province. But, (befides that 
 he had eftablifhed martial law in the province 
 at a time when it ought not to have been 
 eflablifhed, becaufe juftice could have been 
 adminiflered by the King's courts in the pro- 
 vince in the ufual manner,) I prefume it is lufii- 
 ciently evident, from the authorities cited above, 
 in the foregoing Refledions on Martial Law, 
 that that fpecies of law relates only to mariners 
 and foldiers and the perfons who join them- 
 felves to them, and confequently could not;, 
 be legally exercifed with refped to Mr. Tho- 
 mas Walker, who was not either a foldier or 
 a militia-man, but continued in the capacity 
 of a man in trade, carrying on his pot-afh^ 
 works at his country houfe at Aflumption, 
 
 It is plain therefore that this arrefl of Mr. 
 Walker by the Governour's own order, is not 
 to be juftiiied either by the principles of mar- 
 tial law or by thofe of the comnion or the 
 ftatute law of England. If therefore it can 
 be juftified at all, it muft be by fuppofing that, 
 by the revival of the laws and cuftoms of 
 Canada, tn all matters of property and civil 
 rightSy by the late Quebeck-adt, the high 
 powers of government exercifed in that pro- 
 vince by the French governours and intend- 
 ants, in the tiqf^e of the prench government, 
 ■■■'^ ^ ^ are 
 
 • \ 
 
 
t 250 1 
 
 t" 
 
 n 
 
 ;V '.> 
 
 W.!, 
 
 I ii 
 
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 ill 
 
 '^re again revived and vefted in the perfon of 
 the Govjernour. Now, if this be the ground 
 upon v/hich this arrefl of Mr. Walker is to be 
 juftified, it is a plain and flrong confirmation 
 of the apprehenfion entertained by Mr. Dun- 
 ning ^t the tim€ of debating the Qiiebeck-bill 
 in the Houfe of Commons, that fuch a re- 
 eftablifhment of an arbitrary authority in the 
 Governour would be the confequence of that 
 pernicious a(5t. The words matters of property 
 and civil rights are exceedingly extenfive, and 
 therefore exceedingly dangerous. To common 
 ears they feemed to convey no other meaning 
 than this, " that in the defcent of landed 
 eftates, the dower of widows, the diftribution 
 qf the eiFedts of perfons who die inteftate, the 
 cuftomary dues of feigniors from their tenants, 
 (fuch as their right to a toll from them for 
 grinding their corn at their, (thefeigniors) naiUs, 
 and their right to a fine upon the alien^ion of 
 their lands,) and the like indiflferent matters, 
 which are no way connedled with the liberty 
 of the fubjedl, the former laws and cuftoms 
 of Canada fhould be obferved." But it is z 
 ■well-known maxim, that Doloftts verfatur in 
 generalibus s and therefore Mr. Dunning, with 
 nis ufual penetration and fagacity, fufpedted 
 that on this occafion more might be meant than 
 met the ear, and that the arbitrary powers of 
 government exercifed formerly by the French 
 governours and intendants might be intended 
 to be revived by them : at lead he thought 
 
 that 
 
 II.. 
 
 I 
 
[ 2^1 ] 
 
 tikat they might afterwards be made ufe of 
 for that purpofe, though it (hould not have 
 been intended by the framers and fupporters 
 of the bill. He therefore fuggefted the ne- 
 ceflity of inferting a fliort claufe in the bill for 
 giving the inhabitants of that province, in 
 exprefs terms, the benefit of the writ of baifeas 
 corpus, and of all the laws of England that 
 relate to the protection of the liberty of thft 
 fubjed. And, in the further progrefs of the 
 bill, Mr. Dempfter made a motion for the in- 
 fertion of fuch a claufe : but it was foon put to 
 the vote, and carried in the negative. But now, 
 from this arreft of Mr. Walker by the Go- 
 vernour's own order, (fuppofing it to have 
 been done under the authority of the late ad,) 
 tlie neceflity of inferting fuch a claufe is quit^ 
 apparent. 
 
 I 1 
 t ^ 
 
 ■II 
 
 Iti the Account of the ProceeJirdgSt &c. pagej 
 50, — y/f^ I have inferted a draught of an a(^ 
 of parliament for eftablifhing in the province 
 of Quebeck, for the fpace of feven years only^ 
 a Icgiflative council of as free and indepen^ 
 dent a conftitution as I could contrive, with 
 a reftridtion on their power with refped to the 
 impofition of taxes. I have fince thought 
 that the four following reliridlions, with re- 
 fpe& to the power of making laws, would 
 9ifQ be highly ufeful. They ihguld b« intro-* 
 
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 diiced in page 63, Immediately after the iirfl: 
 provifoe (which is againft the power of taxa- 
 tion,) and before the fecond provifoe, which 
 relates to the number of members of which 
 the council is to confift, fo as, themfelves to be 
 the fecond, third, fourth, and fifth provifoes, 
 or the third, fourth, fifth and fixth fedtions, 
 of the draught. ' ' 
 
 Four additional Provisoes, to be in- 
 ferted in the draught of an aft of 
 parliament for eftablifhing a legifla- 
 tive council in the province of Que- 
 beck, printed in the Account of the 
 Proceedings y &c. pages 50, 51, 
 &c. 74. 
 
 PROVIDED ALSO, arid IT IS HEREBY 
 FURTHER ENACTED, that none of 
 the faid laws, ftatutes, and ordinances fhall 
 appoint any capital punifhment, or any pu- 
 niftiment aifeding the members of any of his 
 Majefty's fubjedts in the faid province, or any 
 other punifhment whatfoever but fine and 
 imprifonment, for the new offences which 
 they fhall find it neceffary to create ; and that, 
 fb far as any of the faid laws, ftatutes, or 
 ordin^ces fhall appoint any capital punifh- 
 ments, or any other punifhments than fine and 
 imprifonment, they fhall be utterly void and 
 of no efFe(^ whatfoever, 
 
 IV. PRO- 
 
•I 233 1 
 
 '•^ IV; PROVIDED ALSO, and IT IS 
 HEREBY FURTHER ENACTED, that 
 none of the faid laws, ftatutes, or ordinances, 
 that fliall ordain any crime to be puniflied by 
 an imprifonment of more than three calendar 
 months, (hall be in force until it fhall have 
 hecn fent over to England^ and fhall have 
 been approved and allowed by the King's 
 Majefty by his order in his privy council, and 
 the faid royal allowance of the fame fliall 
 have been made known to the people of the 
 faid province by pubhfliing the faid order ia 
 council in the Quebeck Gazette. 
 
 « A ' i f . 
 
 .'/••S 
 
 h't 
 
 ■ H". ■«. • J ji 
 
 V. PROVIDED ALSO,and IT IS HERE^ 
 BY FURTHER ENACTED, that none of 
 the faid laws, ftatutes, or ordinances, fliall re- 
 late to any alteration of Religion in the pro- 
 vince, or to the encouragement or difcourage- 
 ment of either the Ronian-Catholick or the 
 Protefl:ant religion in the fame ; and that, fo 
 far as any of them fliall have any fuch ten- 
 dency, they fliall be utterly void and of no 
 whatfoever. 
 
 A- 40 
 
 n3:> 
 
 ^ VI. PROVIDED ALSO, and IT IS 
 HEREBY FURTHER ENACTED, that 
 rone of the faid laws, fl:atutes, or ordinances^ 
 fliall in any wife abridge, or diminifli, the li- 
 berties, rights, and immunities of his Ma- 
 jefl:y's fubjedls in the faid .province, that are^ 
 fet forth in the good fl:atute of the third year 
 
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 [ 234 ] 
 
 cf the reign of the late King Charles the 
 firfi, commonly called I'be Petition of Right, 
 or in the flatute of the thirty-firft year of 
 the reign of the late King Charles the fe- 
 ccnd, concerning the writ of Habeas corpus, 
 in titled, " jIh aSi for the better Jecuring the 
 liberty of the jubjeSl, and for prevention of im-' 
 prijonments beyond the feas -, or in the flatute of 
 the firfl year of the reign of the late King 
 William and Queen Mary, intitled, " ^n a^ 
 declaring the rights a?id liberties of the fubjeSiy 
 and fettling the fuccefjion of the crown •" and 
 that, fo far as any of them fhall have any fuch 
 tendency, they fliall be utterly void and of ko 
 authority whatfoever. 
 
 ■i ■.-;♦ r_ ( N 
 
 V r' f * 
 
 .7 
 
 '"t -''Trr 
 
 With thefe additional provisions the legifla- 
 tive council above-mentioned, (which differs 
 widely, as we have fhewn in the Acccunt of 
 the Proceedings, &c, from that which is efla- 
 blifhed by the late Quebeck-adt,) might per- 
 haps be a tolerable inflrument of government 
 for the province of Quebeck fof a few years ; 
 though, I confefs, a much lefs defireable one, 
 to all lovers of liberty, than an alfembly chofen 
 by the people. 1 have only propofed it upon 
 a fuppolition that his Majefty's miniflers of 
 flate fhould perfifl in their refolution not to 
 fuffer an afTembly to be eflablilhed in the pro^ 
 vince : in which cafe it will be ufeful to leflen 
 the evils, that may be apprehended from a 
 legiflative council^ as much as poflible. It is 
 
 with 
 
t 235 ] 
 
 , . . * .,' "i * . • •■' 
 
 With that view only that I formerly prcparcJ 
 the above-mentioned draught of an adt ot par- 
 liament for eftablifhing a legillative council ia 
 the province of as fafe and free a conftitutioii 
 as I could devife : and with the fame view I 
 have now added to that draught thefe further 
 provifions for regulating and reftraining its 
 powers. If any laws creating new felonies, 
 or other crimes that may require other punifh- 
 ments than thofe of fine and imprifonment ; 
 or any laws concerning religion ; fhould here- 
 after be thought to be expedient for the pro- 
 vince ; the fafeft and beft way of proceeding 
 in matters of fo important a nature, will be to 
 eftablifli them * by new ads of the Britifh 
 parliament itfelf, paffed, as the occafions fhall 
 require, for that purpofe. 
 
 Refledlions on the probable consequen- 
 ces of employing Canadian troops 
 
 \ againft the people of New- England 
 and the other united provinces of 
 America. 
 
 Firft puisliftied In a Letter to the Printer of 
 . the Fuhlick Advertifer, on the 1 6th of 
 Auguft, 1775. *: - * 
 
 AS it IS certain, by advices received from 
 -^^ Canada, that General Carleton is endea- 
 vouring to raife forces amongft the inhabitants 
 
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 f 236 1 
 
 of that province, to be fent againfl: the rebel 
 provincials in the Maffachufetts Bay and pro- 
 vince of Nev^r-York; and as many people, 
 from an opinion of the courage and adivity 
 cf the Canadians, and their fkill in the Ame- 
 rican manner of making war by bufh-lighting, 
 fcem to entertain great hopes of good fuccefs 
 from this meafure, I think it may not be im- 
 proper to lay before the publick, by the means 
 of your paper, fome reafons of weight that I 
 have heard alledged upon this fubjed by pcr- 
 fons well acquainted with that country, which 
 feem to me to prove beyond a doubt that this 
 project (which feems at firft fo plaufible,) will 
 be attended with confequences of a quite con- 
 trary kind, mofl pernicious to his Majefty's 
 fervice in America. 
 
 In ftating thefe reafons, I fhall fuppofe that 
 General Carleton is able to raife a body of fix 
 thoufand Canadians, zealoufly difpofed from 
 principles of religion, and (if you pleafe) of 
 new-born loyalty to their conqueror and fo- 
 vereign, to a(5t againft the other Americans ; 
 for this feems to have been the hope and view 
 of thofe who are inclined to try this meafure, 
 as well as gf thofe who advifed and promoted 
 the late Quebeck-ac^, which feems to have 
 been intended to keep the Canadians in a dif- 
 pofition to be fo employed ; yet I mull ob- 
 ierve at the fame time, that the lateft advices 
 from Quebeck reprcfent the Canadians as very 
 
 averfe 
 
 U > 
 
 ,i! 
 
[ 237 1 
 
 avcrfe to this fervicc, and as having adually 
 refufed to engage in it as volunteers. What 
 they will do if they fhould be ordered or prejfed 
 into the fervice in the King's namd by General 
 Carle ton (who has lately eflabliihed martial 
 law in the province, feemingly with a view to 
 be able to ufe this method of raifing them, 
 lince the province at the time of his crtablifh- , 
 ing martial law was in a ftate of perfe6: tran- 
 quillity, and the courts of juftice at full liberty 
 to fit and adminider jufticc, according to the 
 ufual forms of law, with perfed peace and 
 fafety) remains yot to be fecn. But in general 
 we know that perfons that are forced into a 
 fervice that is difagreeable to them, are not apt 
 to exert themfelves in it with zeal and fpirit. 
 However, let us for a moment fuppofe them 
 raifed and well-difpofed to a6l with vigour 
 againft the other Americans ; the queftion is, 
 whether the employing them in this manner 
 will do more good than harm ? Now J appre- 
 hend that the King's fervice in America, and 
 the redudion of the rebel provincials, would be 
 better promoted by keeping the Canadians at 
 home within their own province in a ftate of 
 neutrality with refpedt to the prefent conteft, 
 but yet ready to defend their own province 
 againft the incurfions of the Americans, than 
 by carrying this fame formidable body of fix 
 thoufand Canadians (and the moft fanguinc 
 partizans of the meafure do not prefume to 
 think of a greater number) out of the limits 
 *-. of 
 
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 f 238 1 
 
 ef Canada to make war upon the othef 
 Ajnericans, * , 
 
 • ' ■ • •; ' .■ 
 
 ' For, in tfie firft place, if Canada is neuter, 
 all the corn they are able to export (which is 
 b^ween four and five hundred thoufand bu- 
 fhels) may be fent as a fupply to General 
 Gage's troops at Bofton, who otherwife muft 
 be fupplied with corn either from England 
 and Ireland, acrofs the Atlantic Ocean, or 
 from Nova-Scotia, which I believe does not 
 afford fo large a quantity for exportation as 
 Canada, more efpecially aCt this time, when 
 great numbers of people are gone thither fiPom 
 the continent of America, to avoid the calami- 
 ties of war. And a good deal of live cattle 
 may be fent in the fame manner from Canada 
 to General Gage's army. Now this, I conceive, 
 mufl be an objedt of great importance to the 
 King's troops at Boflon, to whom all the reft 
 of the continent of America affords not a 
 pound of bread. But if the Canadians break 
 their neutrality, and march out of their pro- 
 vince againft tho other Americans, this ad- 
 vantage will be totally loft: for the other 
 Americans will, in return for thefe lioftilities, 
 moft infallibly make incuffions into Canada, 
 «nd^eftroy both the corn and the habitations 
 of the Canadians. This they can ealily- do 
 whenever they pleafe, becaufp they are in 
 jpoffkiTion of thofe two very important for- 
 tr#ires, Ticqnderoga and Cro\s'n Point, which 
 
 arc 
 
 I'/, 
 
 1^. 
 
?i 
 
 othei 
 
 cuter, 
 ich is 
 i hu- 
 meral 
 muft 
 igland 
 n, or 
 es not 
 ion as 
 when 
 rfiTom 
 ilami- 
 cattle 
 anada 
 
 [ 239 J 
 
 arc the very gates of Canada ; without whicl> 
 no troops can pafs either into or out of thaft 
 province, otherwife than by fea, with the te- 
 dious navigation of the river St. Lawrenci^ 
 the mouth of which is no lefs than 360 milef 
 diAant from the town of Quebeck, and 540 
 from Montreal. Hqw thefe mod capital 
 pods came to be furprized by the provincials^ 
 let thofe perfons explain whofe duty it was to 
 preferve tnem. But now that the provinciali 
 have got pofleflion of them, it is probable they 
 will keep it for a long time, as it will be a wor^ 
 of exceeding great difficulty to retake them. 
 And while they do keep pofleflion of them, 
 k is mofl: certain they, have it in their power, 
 whenever they pleale, to pour in parties of 
 three or four hundred men into the richefl: 
 and mofl: fertile part of the province, about 
 Montreal, to burn the houfes, and deflroy th« 
 corn and other flores of every kind. Nor let 
 it be imagined that the Canadians can hinder 
 them from doing fo, fo long as they are 
 mafters of thofe two pofts, even though w« 
 fliould allow the Canadians to be braver men, 
 better foldiers, better ynarkfmen, better woodf- 
 men, better bufli-fighters, better every thing 
 than the Englifli Americans, and able to beat 
 double their own number of the latter where- 
 ever they meet them, as fome people have 
 been taught to bdieve them : for while thcf$ 
 terrible fix thoufand Canadians are employed 
 ih the Engliii proviofig} ij^ laying wafte the 
 
 back- 
 
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 I 240 ] 
 
 tack-fettlements of Maflkchulets Bay, Con- 
 nedicut, and New- York, or are encamped 
 with General Gage at Bofton, or where-ever 
 clfe he (hall take poft, in order to enable him 
 to make head againft the grand provincial 
 army, they will be evidently unable to defend 
 their own province againft the above-men- 
 tioned incurlions of the other Americans from 
 Crown Point : and as to the Canadians, that 
 will then be left in Canada, they will not be 
 above 10,000 men more in the whole country 
 able to bear arms, who will be difperfed in 
 feparate habitations along the banks of the 
 river St. Lawrence, and two or three rivers 
 that run into it, for the fpace of 250 or 300 
 miles, taking care of their private affairs., and 
 particularly of the cultivation of their lands. 
 Now what reliftance can thefe people make to 
 two or three different parties of Americans, 
 of 200 men each, entering the province from 
 Lake Champlain at the fame time, and taking 
 different routs through the country", one on 
 each fide of the river Richlieu, (which takes 
 its rife from Lake Champlain) and another 
 along the fouth-fidc of the river St. Lawrence, 
 and perhaps a fourth venturing to crofs the 
 St. Lawrence, and lay wafte the lands on the 
 north fide of it, and all bent only upon de- 
 vaftation, and retreating as foon as they per- 
 ceive any body of people collected to refifl 
 them ? I believe every one muft be fenfible, 
 that it will be.impofSble to prevent, or refi/l:, 
 , • fuch 
 
[ 241 I 
 
 fuch incurfions. And as a proof from experi- 
 ence that it would be fo, it fhould be remem- 
 befed that the celebrated Major Rogers once 
 penetrated in this manner into Canada, in the 
 laft war, (while it yet belonged to the French 
 king, and the Canadians were moft ftrenuous 
 in defence of it) as far as the town of Three 
 Rivers, that is, 90 miles beyond Montreal, 
 in the road to Quebeck : and then, upon no- 
 tice that fome French troops were marching 
 to oppofe him, retreated again with fafety 
 into the adjoining English provinces. Thefe 
 incurfions will therefore be unavoidable, fa 
 long as Crown Point and Ticonderoga remain 
 in the hands of the provincials, unlefs a ftrong 
 body of troops be encamped on fome neigh- 
 bouring part of the banks of Lake Champlain, 
 or perhaps on the two oppofite banks of it, to 
 watch the motions of the provincials at Crown 
 Point, and the parties that may be fent from 
 thence to make incurlions into Canada. And 
 thefe troops too (hould be pofTeffed of a con- 
 fiderable water-force of large boats and fmall 
 floops of war upon the lake, (which muft all 
 be built upon it) to oppofe the Americans 
 upon the lake, in cafe a Itrong party of them 
 fliould be bold enough to venture to pafs 
 along the lake between the two royal camps 
 on the banks of it, and land on the further 
 fide of them within the province ; an expedi- 
 tion which, though hazardous, would be by 
 no means impoffible, if we conlider the en- 
 
 Hh thufjafm 
 
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 'If 
 
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 [ 242 ] 
 
 • , , . . • • . . » .. 
 
 thuriafm with which they appear to be aivi^ 
 mated in the prefent unhappy conteft, even 
 when they are fighting againft their proteftant 
 fellow-fubje(5ts, nis Majefty's regular forces, 
 who are only doing their duty, and obeying 
 their orders in endeavouring to fupport the 
 authority of parliament; and much more 
 therefore when we conlider the rage and in- 
 dignation which they would feel at having 
 been invaded and moleiled by their late con- 
 quered enemies, the Canadians, thofe bloody^ 
 favage, popifh dogs, as they would call them, 
 whom the parliament feems, by the late Qu&- 
 beck-adt, refolved to continue in the condition 
 of papifls and Haves, on purpofe to cut their 
 groats. For thefe are the fentimencs which 
 the Americans have exprelTed concerning the 
 late Queb«ck-adl ; and this is the fpirit with 
 which they would certainly ad againft the 
 Canadians, in cafe the Canadians fhould take 
 part in this war againft them ; fo that in tmth^ 
 the cruelleft thing that can be done to the 
 poor Canadians (whatever kindnefs may be 
 profeiTed towards them) is to involve them in 
 the prefent war. And indeed I believe they 
 are fenfible of the extreme danger of their 
 a(^ing oiFenfively «n this occafion againft their 
 more numerous and powerful neighbours in 
 the Englifli colonies, and are on that account, 
 as well as others, moft anxioully deiirous to 
 continue neutral. They are confcious that it 
 is not merely defeat, in battle, hut extcrmina'- 
 
 t'lon^ 
 
 "4 
 
[ 243 1 
 
 tion, or the mqft fevere fuhjeSliotit t^at they 
 xVould have to fear from the provincials, in 
 cafe they fhould adt againft them, and fail of 
 fuccefs in the conteft. However, to return 
 to what I fet out with mentioning, I prefume 
 it is now fufficiently apparent that, if the 
 Canadians are made to ad againft the rebel 
 Americans, their country will infallibly be 
 laid wafte, and will confequently be no longer 
 able to fupply the King's troops with corn 
 and other provilions. And this I apprehend 
 will be a confiderable difadvantage to the King's 
 fervice, and perhaps more than counterbalance 
 the advantages that may be derived from the 
 affiftance of a body of Canadians. 
 
 But, in the fecond place, I apprehend that 
 the devaftation of Canada, by the incurlions 
 of the Englifti Americans, will have even a 
 ftill further bad effe<ft. For it is probable, 
 that the Canadians who are engaged in the 
 King's fervice, when they hear rhat their 
 houfes are burnt, and their lands laid wafte by 
 rhe provincials, and their wives and children 
 reduced to a ftarving condition, will thinly it 
 neceft*ary to defert this fatal fervice which 
 expofes them to fuch a variety of mifery, and 
 make what terms they can for themlelves with 
 the Americans 5 in which cafe it is muqh to 
 be apprehended, that they will be force 1 even 
 to jom the Americans in the oppofitlon to 
 Great-Britain. The popular leaders amonj;ft 
 
 •:^n^^ l.v J . Hh 2 •-•' - ■ tli 
 
 1 1 
 
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 [ 244 ] 
 
 the Englifh Americans may then, when they 
 have them at their mercy, proteft againft what 
 they will ftyle, (as heretofore in England in 
 the civil war) a dete/iabk neutrality^ and inlift 
 upon their joining with the other provinces in 
 fupporting what they call the common caufe 
 of American liberty ; and diftrefs and neceffity 
 will oblige the Canadians to comply. And 
 thus by this attempt to make ufe of the Cana- 
 dians to reduce the revolted provinces, we may 
 caufe them to be ultimately drawn in to the 
 wide-extending vortex of this unhappy Ame- 
 rican rebellion. /. Th 1 rtv *y , ^v ,, 1 
 
 Such will probably be the efFeds of this 
 unconflitutional and left-handed policy of 
 arming a fet of new popifh fubjeds to reduce 
 the other Americans to obedience. It Would 
 therefore, as I conceive, be a much wifer 
 condudl to preferve the Canadians in a date of 
 neutrality and tranquillity, which I am in- 
 formed the provincials are at prefent willing 
 to allow them. Thefe thoughts, Mr. Printer, 
 are not wholly derived from my own con- 
 fideration of this important fubjed, but have 
 been partly fuggefted by other perfons who 
 are well acquainted with the fituation of that 
 province, and the temper of its inhabitants ; 
 and they have appeared to me fo juft, that I 
 have found myfelf obliged to aflent to them : 
 and for this rcafon I take the liberty of offering 
 ihem to the confideration of fuch of your 
 
 readers 
 
C 245 if 
 
 readers as take a concern in the prefent mod 
 melancholy conteft. I heartily wi(h that all 
 the Americans were reduced to the obedience 
 of parliament ^ and I wifh dill more heartily 
 that they would, of their own accord, returit 
 to it, and lay afide their apprehenfions of the 
 remote and polTible, but, in my opinion, im- 
 probable opprelHons, under which they may 
 labour in iome future time from any exertion 
 of that authority : for hitherto (I mean, be- 
 fore the Bodon Port-bill and other fubfequent 
 ads of parliament, which are the efFeds, not 
 the caufes, of their refiftance to parliamentary 
 authority) I do not fee that they have had any 
 juft, or at lead any great, fubjedt of complaint. 
 But things that are right and neceiTary (as the 
 fupport of the authority of Great-Britain ia 
 America appears to me to be) ought to be 
 done in a right manner, and by right and proper 
 injiruments. And the friends of the principle* 
 which edablidied the prefent royal family on 
 the throne of thefe kingdoms, and excluded 
 from it, by the adl of fettlement in the 1 2th 
 year of king William, the only fon of the 
 preceding king (then a boy of 12 years of age) 
 merely becaufe he was bred a Papid, and 
 confequently was thought likely to entertain 
 in his future and riper years, maxims of 
 govti*nment incompatible with the Englifli 
 conditution, will never be brought to think 
 that an army of popidi fubjeds of the crown, 
 whether Canadians or Iridi (for thofe alfcj 
 
 are 
 
 i t 
 
 \ s 
 
 / 
 
 . I 
 
 * if 
 
jr '.)■ 
 
 t 246 I 
 
 are talked of on the prefent occafion) is a fit 
 inftniment for this purpofe. It is a cankered 
 tnd poifonous inftrument, that will add venom 
 to the wounds of the nation, and lay the 
 foundation of much greater diforders and 
 difficulties than thofe it is employed to re- 
 
 move. 
 
 « 
 
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 :t 
 
 
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 In the year 1772 Mr. Maferes had prepared, 
 for the confideration of his Majefty's minifters 
 of ftate, a very long draught of an ait of par- 
 liament for fettling the affairs of Religion in 
 the province of Quebeck. It contained ^^ 
 printed pages in folio. The aim of it was to 
 tolerate in the moft ample manner the worlhip 
 of the Roman-Catholick religion in that pro- 
 vince, agreeably to the capitulation in 1760 
 and treaty of peace in 176 ^ ; but, at the fame 
 time, to countenance ^nd encourage the Pro- 
 teftant religion in fo powerful and efficacious 
 a manner that it could hardly have failed of 
 gaining ground and fpreading itfelf amongft 
 the Canadians in the province, and more efpe- 
 cially among the priefts, by very quick de- 
 grees. The convents of monks and nuns 
 were to have been gently fuppreffed, by pro- 
 hibiting the admiffion of new members into 
 them. The popifh biffiop was to have been 
 reftrained from exercifing the powers of fuf- 
 pending and depriving priefls or their benefices 
 
 or 
 
 u 
 
 . f'« 
 
t 247 1 
 
 or the right of exercifing their fpiritual func- 
 tions, and was to have been permitted only to 
 •rdain new priefts, when neceffary, to connrm 
 adult perfons, and confecrate new churches 
 and burying-grounds, and other things to holy 
 ufes : in fhort, he was to have been reduced 
 to the neceffity of being only, what he had 
 probably ftipulated in the year 1766 that he 
 would be, un simple Jaifeur depr^res. And 
 after the death of Moniieur Briand, the pre- 
 fent bifliop, it was provided that there Ihould 
 be no popifh bifhop at all in the province : 
 but that the ordination of the young Roman- 
 Caiholick priefls fhould be otherwife provided 
 for in the manner herein above defcribed, in 
 pages 142, 143. And in the room of the faid 
 popifti bifhop, a protellant brfhop was to have 
 been fent into the province. In the mean 
 time the patronage of all the benefices in the 
 province, (except thofe which belonged to 
 private patrons,) was to have been vefted in 
 the Governour of the provin<ce, ipftead of the 
 bWhop i and the pariih-priefts were to have, 
 been permitted to marry, without any danger 
 of lofing their livings, provided they could 
 obtain the confent of their pariftiioners to 
 their retaining them. And, to encourage them 
 to do ib, their widows were to have had ^ 
 dower out of their benefices, amounting to 
 one fixth part of its annual value, where tbc 
 benefice was worth more tha*i a thoufand 
 buiJiels of corn per annum. And even the 
 
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 [ 248 ] 
 
 monks and nuns now in the province were to 
 have been permitted to marry, if they had 
 chofe it, without lofing their fhares of the 
 revenues of the convents they refpedively 
 belonged to. And other important regula- 
 tions were recommended, which would have 
 operated powerfully in favour of the proteftant 
 religion. With all thefe precautions taken in 
 favour of proteflantifm, it muft be confefled 
 that there was a claufe in this draught of an 
 adt of parliament, by which the Roman-Ca- 
 tholick religion would have been in fome 
 degree eftablifhed; as it directed that the 
 Romifli priefts fhould have a legal right to 
 their tythes from their Roman-Catholick pa- 
 rifhioners only, in the manner prefcribed by 
 the late a<fl. This perhaps was going too far 
 in favour of the popifh religion : — mofl cer- 
 tainly it was going farther than the Britifh 
 nation were obliged to go by the capitulation 
 and treaty of peace, as has been fhewn at 
 large in the Account of the Proceedings^ &c» 
 pages 181, — 199. But it was done for the 
 fake of the Proteftant, not the Roman-Ca- 
 tholick, religion, and to keep the Canadians 
 in the habit of paying tythes, to the end that, 
 when they fhould have embraced the Pro- 
 teftant religion, (which it was fuppofed would 
 happen in the courfe of no very great num- 
 ber of years by means of the encouragements 
 given to that religion by the other provifions 
 of the bill,) the proteftant clergymen, who 
 
 would 
 
[ 249 1 
 
 would then poflefs the benefices of the province, 
 might not be dertitute of a reafonable mainte- 
 nance. But in this draught the exclufion of all 
 other perfons in the province who refufcd to 
 take the oath of fupremacy, (except the faici 
 parifh-^priefts,) from places of truft and profit, 
 prescribed by the grand, fundamental, ftatute 
 of the I ft of Elizabeth (above-mentioned in the 
 Account of the Proceedings ^ &c, pages 1 86, 187, 
 &c.) was continued ; fo that no popKh judges 
 or other magiftrates could have been appointed 
 under it, and much lefs could a popifh army 
 (commiffions in which are the moft important 
 and dangerous offices of truft and power tha^ 
 can be held,) have been raifed under it. 
 
 The having prepared a draught of an adt of 
 parliament of the nature and tendency above- 
 defcribed, for the fettlement of the affairs of 
 religion in that prgvince, ought not, one would 
 imagine, to have fubjeded the perfon who pre- 
 pared it, to the imputation of having been the 
 advifer of the eftabliihment of popery in the 
 faid province in the manner in which it has 
 been eftablifhed by the late Quebeck-ad, that 
 is, by merely and folely giving the Romifli 
 priefts a legal right to their tythes, without any 
 provifions whatfoever for the encouragement of 
 the Proteftant religion i fince the objedl of the 
 faid draught was evidently to undermine and 
 extinguish, (by gentle methods,) the Roman- 
 Catholick religiouj whereas that of the late a<^ 
 
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 250 
 
 ] 
 
 of parliament, or at lead its tendency, Teems to 
 Ve to render that religion perpetual. Yet in tlic 
 Norwich Mercury of February 11, 177^, a 
 letter to the printer of that paper was published, 
 in which that imputation was infinuated. The 
 objedt of the writer of this letter feems to be 
 to defend thofe parts of the late Quebeck-adt 
 which relate to the Roman-Catholick religion : 
 and in juftification of the claufe which gives to 
 the Romifh priefts a legal right to claim their 
 tythes, he does me the honour to cite the au- 
 thority of my above-mentioned draught of an 
 ad of parliament on that fubjedl. This letter 
 was as follows. 
 
 To the Printer of the Norwich Mercury. 
 
 SIR, January 8, 1775. 
 
 T FIND from fome papers, which I had not 
 *• with me, when I fent you what was infetted 
 in your laft, upon fome paflages in the letter of 
 ** A confident Whig," that I was miftaken in 
 faying that the parochial clergy of Canada were 
 entitled to their tythes^ &c, by the faith of treaty. 
 
 In the 27th article of the capitulation of 
 Montreal, September 1760, demand is made 
 and granted " of the free exercife of the Roman- 
 Catholick religion to fubfift entire, &c." But the 
 further demand, ** that the people (hall be 
 obliged by the Englifli government to pay the 
 priefts their tythes, &c." is referred to the kings 
 pleafure^ 
 
[ 25. 1; 
 
 ' the priefts, however, continued to take their 
 tythes, ficc. unmoleftcd, 'till the definitive treaty 
 iji February, 1763, though there had not been 
 any declaration of his Majefty's pleafure con- 
 cerning it. 
 
 No demand with refpedt to religion was made 
 by the French king at fettling the treaty, but the 
 *' toleration of that of the Church of Rome," 
 which was agreed to as far as the laws of Eng- 
 land would permit, ; 
 
 This important point (landing thus, occafion'd 
 the prefent Mr. Curfitor Baron Maferes, his 
 Majefty's late attorney-general of the province, 
 to ftate it as a mattar of doubt, " whether the 
 payment of the tythes (though the people ftill 
 continued it) could be legally demanded, and 
 to whom it ought to be made?"* and to propofc 
 that provifion fhould be made by a<5l of parlia- 
 ment, that *' the Roman-Catholick priefts or 
 " curates, ihould be entitled to demand and re- 
 " ceive from all the Roman-Catholick inhabi- 
 " tants of their parifhes in the place, and by the 
 ** name of tythes, as heretofore, the thirteenth 
 " part of the fruits of the earth, &c."'f' which 
 . 1 i 2 • ' we 
 
 
 
 i. 
 
 0:he 
 
 • Se6l, 4th, claufe jd, of a draught of an a£t of parlia- 
 ment for tolerating the Roman-Caiholick religion in thu 
 province of Quebeck, and encouraging and itjtroducing th-; 
 Proteftant, . &c. Drawn about 1769 or 1770 by Fr.iiVvis 
 Maferes, El'qi his Majelty's Attorney-general to t.ic 
 province. ^ 
 
 t Sei^ion the nth of the above. 
 
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 ■ 'i',. ; (I 
 
 i ft f 
 
 •••li; 
 
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 [ 252 1 
 
 we find adopted in the aft fo much objefted'toj 
 How juftly I leave to your readers, after con- 
 fidcring the ftate of the cafe as it is entire be- 
 fore them. • ' 
 
 Popery, in the ftrift fenfe of the term, is fo 
 far from being eftablifhed by it in Canada, as 
 has been no lefs iniquitoudy than abfurdlyaiTerted 
 in the promiflbry advertifements of candidates 
 fbr feats in parliament, and flipulations of fac- 
 tions of their eledors, in the publications of the 
 conventicle of anarchical deputation in America, 
 and thofe of every incendiary writer at home, 
 tliat it is not fo much as tolerated, but totally 
 interdidcd and fupprefTed. 
 
 ■ , % 
 
 For the ioyal ilipremacy is not only eftabliflied 
 and the papal abolished in the province, but the 
 clergy are obliged to hold their benefices in 
 /iSIual achiowledgment of the law under an ex- 
 prefs deed or grant from his Majefty as Supreme 
 in ecclefiafticals, inftead of holding them by 
 inftitution or licence from a bifliop appointed or 
 approved of by the Roman fee j and all pcr- 
 lons there, in any cafes having recourfe to the 
 jurifdidion of that fee are undoubtedly liable to 
 the penalties of the ads of Henry VIII. and 
 Elizabeth, as it is according to thofe a6ts that 
 the royal fupremacy is eftablilhed. 
 
 The religion; by which I underftand the 
 confeflion of faith with the worfhip and cere- 
 monies 
 
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 'A 
 
 
 m 
 
[ 253 ] 
 
 monies of the Church of Rome, are fo far 
 from edabliOied, or more than tolerated^ as your 
 more ingenuous correfpondent has exprc HTed it, 
 that I hope henceforth, he will think with me, 
 that it is only tolerate d^ and that full as much 
 advantage is taken as in equity ought, of the 
 doubtful ftate of the right of tythes by rcftrain- 
 ing the clergy's demand of them to their own 
 people only, and appropriating all that may 
 arife from the lands of others to the encoUiCige- 
 ment of proteftantifm in the fupport of a pro- 
 teftant clergy. 
 
 But however this may be, and though it 
 clearly appears to me, that the matter as now 
 flated affords no more fupport for hif> thinking 
 otherwife, than as I at firft had apprehended it 
 to be, it is a judice equally due from me to the 
 publick and to him, to retradt my miftake. 
 
 He that writes for truth, and not for party, 
 will not be the fecond, publickly to detedt an 
 error he may have entertained in arguing for it, 
 except when he is not the firft in perceiving it. 
 
 ■i ', 
 
 I am, Sir, 5cc. 
 
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 In 
 
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 In anfwer to the charge infinuated in thij 
 better, to wit, " that I had advifed, in my 
 ** draught of an aft of parliament above- 
 ** mentioned, the re-eftablifliment of the Ro- 
 man-Catholick religion in the province of 
 Quebeck, in the manner in which it is 
 re-eftabli(hed by the late Quebeck adt," 
 I fent to the printer of the Norwich Mer- 
 cury, in the month of Auguft, 1775, the fol- 
 lowing long letter, figned Pbilaletbes, in which 
 an account is given of fome of the principal 
 provifions and regulations, concerning the affairs 
 of religion in that province, that were con- 
 tained in the aforefaid draught of an adt of 
 parliament. Many of thefe regulations will 
 |>robably be thought, by fome people, to be of 
 too bold and dangerous a nature, to have been 
 fit to be immediately adopted by the legifla- 
 ture, and carrie J^ into execution in the pro- 
 vince, even though the tendency of them may 
 be approved. And I even doubted myfelf of 
 the expediency of making them immediately, 
 though, when the fettlement of the affairs of 
 religion, in that province, fhould be taken into 
 confiderajtion by the parliament, they feemed 
 to me to be the moft beneficial meafures that 
 couJd be taken upon that fubjedt. But, as 
 there were, at that time, no complaints in the 
 province concerning religion, but the Cana- 
 dians were perfedly ealy and fatisfied v/ith 
 tke compleat toleration of the Roman-Catho- 
 lick religion, whjch they then enjoyed, I 
 
 thouglit, 
 
n thij 
 n my 
 ibove- 
 le Ro- 
 [ice of 
 it is 
 
 Mer- 
 be fol- 
 which 
 incipal 
 ; affairs 
 
 I 255 ] 
 
 thought, it would have been beft to poftpodt - 
 the confideration of that delicate fubjea to ' 
 fome future period, at the diftance of a few 
 years, and to fettle only the civil affairs of the 
 province by an immediate regulation ; by de- 
 termining, in what points the French lawj 
 (hould be revived, or continued, in the pro- 
 vince, and in what manner the courts of ju- 
 dicature Ihould be conftituted, and juftic« 
 fhould be adminiftered in them, and by eftar 
 blifhing a legiflature, of fome kind or other, 
 for the purpofe of making the new ordinances 
 and regulations, which the emergencies of the 
 province might, from time to time, make ne- 
 ceffary 5 which might be donCj either by calling 
 an affembly of the people, in purfuance of the 
 king's proclamation of O^ober, 1 763, or, (ia 
 cafe, that was not thought to be expedient,) 
 by delegating a certain degree of legiflative 
 authority to the governour and council only, 
 without an affembly, for a fmall number of 
 years, and till it (hould become more pradi- 
 cable to fummon an affembly, and, for that 
 purpofe, increafing the number of the coun- 
 fellors to thirty-one, and making them totally 
 independent of the governour, though not of 
 the crown, and providing the other reftridions 
 and regulations of their power, which are men- 
 tioned in the draught of an ad of parliament 
 upon that fubjed, above recited in the Account 
 of the ProceedingSy &c. pages 50 - 74. The 
 judicious fettlenjenj of %hsk iinportant mat- 
 ters, 
 
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 [ 256 ] 
 
 tcrs, to the fatisfadion of the Canadians, at 
 that time, would, as I conceived, have pre- 
 pared them to receive, with refpedt and a 
 chearful obedience, in a few years after, the 
 regulations, which it might then be judged ex- 
 pedient to make in the province, for the more 
 compleat fettlenient of the affairs of religion 
 in it, the maintenance of the king's fupre- 
 macy, the abolition of the convents and of the 
 power of the popifh bifhop, and the gradual 
 diminution, and ultimate extindtion, of the 
 Roman-Catholick, and encouragement of the 
 protedant, religion. But his Majed/s mini- 
 uers thought proper, rather to fettle the whole 
 of thefe different and important matters at one 
 Aroke, in the manner we have feen, by the 
 Quebeck ad. My letter, in anfwer to the 
 above-mentioned letter in the Norwich Mer- 
 cury, was as follows : ,, 
 
 An 
 
 1 : i 
 
 11 
 
 .|V 
 
[ ^57 y 
 
 An Account of fome of the principal 
 Regulations contained in a Draught 
 of an Ad: of Parliament for fettling 
 the AiFairs of Reli^/ion in the Pro- 
 vince of Quebeck, prepared by Mr. 
 M*\3EREs in the bummer of the 
 Year 1772. : 
 
 Firft pubHlhed in the Norwich Mercury on 
 the 26th day of Auguft, and the 2d, the? 
 9th, and the i6th days of Sept. 1775^ 
 
 To the Printer of the Norwich Mercury. 
 
 SIR, 
 
 July 12, 1775, 
 
 T Have fome time fince been {hewn a letter ia 
 -*• your paper of the nth of laft February, ia 
 which the anonymous writer of it has repre- 
 fented Mr.MASERES, the prefent Curfitor Baron 
 of the Exchequer and late Attorney General of 
 the province of Quebeck, as having been the 
 original advifer of that much-cenfured claufe ia 
 the late Quebcck-ad, which gives the Roman- 
 Catholick priefts a legal right to their tythes and 
 other antient dues from the Roman-Catholick 
 inhabitants of their refpedive parifhes j by which 
 I fuppofe that letter-writer would infinuate that 
 the laid claufci as it now flands in the late a(5t» 
 
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 i/:\- 
 

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 mw 
 
 %f 
 
 ilMiiH'rlli 
 
 
 nit 
 
 (.lllll'i 
 
 
 t 258 ] 
 
 fs agreeable to that gentleman's fuggeftion. Now 
 this is by no means true, he being known to 
 have lamented the infertion of that claufe in the 
 late adt, which he confidered as an eftablifli- 
 ment of the popifh religion in that province, 
 (though of a lefs ample and compleat kind than 
 if the priefts had been authorifed to demand the 
 tythes of their proteftant as well as popilh pa- 
 rifliioners,) to which the Britifh government 
 was not in any degree bound either by the capi- 
 tulation in 1760 or the treaty of peace in 1763, 
 and for which he did not fee any fufficient 
 reafon of expedience or policy. Yet it muft be 
 confefled, that in a certain draught of an a£t of 
 parliament for fettling the affairs of religion in 
 that province, which had been drawn up by 
 tliat gentleman in the fummer of the year 1772, 
 and of which copies had been fent to feveral 
 perfons of weight and confequence, there was 
 a claufe for giving the Romi(h priefts a legal 
 right to their tythes from their popilh parishion- 
 ers, (agreeably to the provifion of thelateadl,) 
 as the above-mentioned letter- writer has aflerted. 
 But it would have been right in that letter-writer 
 to have recolle<5ted that it is the duty of an im- 
 partial witnefs to relate the whok truth concern- 
 ing every fubjedt upon which he has. occafion to 
 give his teftimony, as well as to fay nothing 
 but the truth. And, if he had done fo in the 
 prefent inftance, lie would have told his readers 
 that, though it is true that, in the draught 
 alluded tp, Mr. Mafejrc^ had propofed to give 
 
 the 
 
t 259 ] 
 
 the pritfts a legal right to the tythes of their 
 popifli parifhioners, yet that in other parts of 
 the fame draught (which contained 55 printed 
 pages in folio,) he had recommended fo many 
 provifions of importance that would have tended 
 to encourage the Canadians to abandon the 
 errors of the Church of Rome and embrace the 
 Proteftant religion, that inftead of perpetuating 
 the Roman- Catholick religion (as the late adl of 
 parliament feems likely to do,) that draught . 
 would have contributed very powerfully to ex- 
 tinguifh it; and this without any violence or 
 pedecution, or the leaft breach of that ample 
 toleration of the worfhip of their religion to 
 which the people of that country were intitled 
 upon motives of humanity and policy as well as 
 upon the ground of the capitulation and treaty 
 of peace. But it by no means follows that, 
 becaufe he recommended the giving the priefts 
 the tythes of their popifli parifliioners when 
 accompanied with a variety of important pro- 
 vifions for the encouragement of the Protellant 
 religion, and the gradual extin(5lion of that of 
 the Church of Rome, he therefore approves of 
 that claufe when it ftands fingly by itfelf, with- 
 out any of thofe provilions, and can tend only 
 to fupport and make perpetual the belief of 
 the Roman-Catholick religion. Thefe are 
 furely two very different things ; and the writer 
 of the above-mentioned letter ought, in juftice 
 to the aforefaid gentleman, to have taken notice 
 that they were lo. Some of thefe provifions in 
 
 Kk 2 favoUi- 
 
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 M 
 
 I 
 
 / i 
 
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 avotir of the Protedant religion, contuned in 
 that draught of an adt of parliament, were as 
 follows: 
 
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 ■mm 
 
 w. 
 
 In the firft place it was propofed that all the 
 convents of monks and nuns in the province, 
 and like wife the religious community of fecular 
 prieftsof the order of St. Sulpicius at Montreal, 
 (who are owners, oj^iipper lords, of the whole 
 ifland of Montreal, befides feveral other eftates, 
 to the amount, all together, of at leafl 4000 L 
 fterling per annum J fhould be diflblvcdi — 
 not by turning the prefent members of thefe 
 focieties adrift, and immediately feizing their 
 lands into the King's hands j but by making a 
 partition of the lands belonging to each of thefe 
 religious communities amongfl the feveral mem- 
 bers of it, who now hold them in common, 
 and vefti.ig the reverlions of their feveral Ihares 
 of them in the crown ; fo tliat for the future 
 the faid lands would not have belonged to all 
 the members of each fociety in common, but 
 every monk, and nun, and prieft of the femi- 
 nary of St. Sulpicius at Montreal, would have 
 had a feparate lot, or parcel, of the lands that 
 had belonged to his or her community, and 
 would have held and enjoyed it during his or 
 her natural life ; and, upon the death of each 
 of them, the parcel of land which he or fhe 
 would thus have held for life, would have ac- 
 crued to the crown inftead of accruing to the 
 iiirviving members of the ibciety to which fuch 
 
 dead 
 
[ «6i ] 
 
 dead perfon had formerly belonged. They were 
 likevvifc to have been permitted to marry, if 
 they had chofe it, and yet to retain during their 
 lives the parcels of land that would have been 
 fo allotted to them, notwithftanding they would 
 thereby have departed from the, rules of the 
 religious fociety to which they \had formerly 
 belonged. And, on the other hand, they were 
 to have been permitted to continue in their 
 refpedive convents and houfes during their lives 
 jn a flate of celibacy, and in the obfervance of 
 the rules of their refpedive orders, if they had 
 prefeiTed that manner of life to the other* 
 And it was further provided that the lands 
 which fliould then have accrued to the crown 
 upon the deaths of the feveral members of thefe 
 religious communities, fhould be veiled un- 
 alienably in the crown, and the revenues of 
 them applied to the fupport of the civil govern- 
 ment of the province, the whole burthen of 
 which has hitherto been borne by Great-Britain. 
 
 This firfl: provifion would have foon extin- 
 guiflied the focieties of monks and nuns and 
 iecular priefts of St. Suipicjus throughout the 
 province, without the leaft injury to any one 
 individual} which would have greatly weakened 
 the power of the popifli religion in Canada. 
 For the convents and other religious houfes arc 
 ihe nurferies and fupports of that religion, and 
 (to ufe a metaphor not unfuitable to the nature 
 of a religion fo adverfe and hoftile to the Britiih 
 
 government 
 
 f/ 
 
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 If 
 
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 I'll 
 
 I' S. nil: 1)1 
 
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 government as that is,) may be juftly confidercd 
 as tti headquarters. 
 
 In the fecond place it was propofed in the 
 faid draught of an a£t of parliament, that the 
 popl(h bifhop of Quebeck fhould be retrained 
 from exercifing the dangerous powers of his 
 office, and confined to the bufinefs of ordaining 
 new priefts when they were wanted, confirm- 
 ing adult perfons, and confecrating churches, 
 church-yards and burying-grounds, and the 
 like, to holy ufes, and to the performance of 
 fuch other ceremonies, of a merely fpiritual na- 
 ture, as feemed to be attended with no mcon- 
 vcnience to the publick. The dangerous powers 
 which he was to have been retrained from exer- 
 cifing, were chiefly thofe of depriving priefts of 
 their benefices, of fufpending them from the 
 cxercife of their fpiritual functions and the en- 
 joyment of the temporal fruits of their bene- 
 fices, of interdiAing divJne worship in churches 
 * and chapels, and of excommunicating perfons 
 and prohibiting priefts from adminiflring the 
 facraments to them, as he is well known to 
 have done with refpedl to Mr. Lewis de Lot- 
 biniere, a Romifti prieft in that province of a 
 good family and confiderable abilities, who hiid 
 the misfortune to fall under his difpleafure in 
 the year 1771. And fpecial penalties were 
 appointed in that draught to be inflidted on the 
 iaid bifhop, in cafe he ihould prefume to exer* 
 cife any of the aforefaid dangerous and pr^h- 
 
 bited 
 
 ,, .j^. 
 
o tncon- 
 
 [ 263 ] 
 
 faked powers of his office, and fhould be con* 
 vided in the fupream court of the province of 
 having done fo. — And it was further pro- 
 vided in the faid draught that, after the deatl^ 
 or refignation of Uac • * .,refent popifh bifhop of 
 Qjiebeck, no other popifh bifliop fhould be 
 permitted to exercife any authority at all (even 
 in thofe lefs dangerous articles of ordaining 
 priefts, confirming adults, &c.) in the pro- 
 vince ; but that a proteftant bifhop fhould re* 
 fide there in his flead, for the convenience and 
 fatisfadion of the clergy of the church of Engr 
 land in America, who much wifh for a pro- 
 teftant bifhop in America, and who could go to 
 Quebeck to be ordained with more eafe than 
 they can crofs the feas. And, to fupply the 
 want of a popifh bifhop in the province with 
 fefpedt to the necefTary bufinefs of ordaining 
 new Roman-Catholick priefls, it was provided 
 in the faid draught that the young Canadians 
 who fhould be educated for the fervice of the 
 church of Rome in Canada at the college, or 
 feminary, of Quebeck (which it was propofcd^ 
 to keep up, with all its revenues, its rules and/ 
 orders, and publick teachers, for that purpoTe,) 
 fhould be fent to England at the publick ex- 
 pence, and from England to Munfter in Gef- 
 many, or the popifh canton of Lucerne in 
 Switzerland, or to fome other popifli country 
 in Europe, (other than France,) to be ordaiixei 
 priefls by the popifh bifhop of fuch country^ 
 ai^ fljquld afterwards return to the province of 
 
 Quebeck 
 
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 [ 264 J 
 
 Quebeck in the fame manner, at the publick 
 cxpence, there to fupply the livings that might 
 happen to be vacant. . This expence would 
 have been but trifling f. probably not more 
 than 3 or 400]. a year.l and the voyage to 
 England and journey to Munfler or Lucerne^ 
 (or whatever other place his Majedy ihould 
 have chofen for that purpofe,) would have 
 been confidered as a tour of pleafure lalher 
 than a hardship, by the young candidates for 
 holy orders who would have taken them. And 
 thus the ordination of new prieils would have 
 been provided for without permitting a popifh 
 bi(hop to rcdde in Canada for that purpofe; 
 and that party of the more zealous and high- 
 church Roman-Catholicks in the province of 
 Quebeck, who wifhed to have a bifliop refi- 
 dent amongft them for the greater fplendour and 
 more permanent cftablifhment of their reli- 
 gion, would have been deprived of almoft the 
 only plaufible pretext they could ufe with the 
 Britifh government to obtain one, and by the 
 ufe of which they did fo far prevail (as it is 
 generally fuppofed) with the minifters of date 
 in England in the winter 1765, and fpring 
 1766, as to obtain for the preient bifhop of 
 Quebeck, John Oliver Briand, a verbal, fecret 
 permifHon, (by connivance only, and without 
 any legal licenfe,) to go back to Canada (where 
 he had before lived many years as a priefl,) 
 in the ofHce and charadler of bifhop of Que- 
 beck, upon a ilipulation that he (hould con- 
 fine 
 
 In ,' 
 
[ a65 J 
 
 fine himfelf to the fingle bufincfs of orJainliig 
 priefts, or be only (according; to the cxprel- 
 fion which he himfelf is faid to have made 
 ufe of to his friends in the month of June, 
 1766, upon his firft: arrival at Quebeck in that 
 character, ) un fimplefmfcurde pretres. But the 
 event has unfortunately lliewn that fuch ftipu- 
 lations are not much to be depended on. 
 
 • 
 
 By thefe provifions the power of the popilh 
 bifliop of Quebeck (which now operates as a 
 center of union to all the Roman catholicks 
 in the province, fo as to keep them in a ftridl 
 adherence to their religion, and to prevent and 
 check in the birth, the firll inclinations that 
 any of them may feel to deviate in any degree 
 from it or abandon any of its tenets,) would 
 have been rcftrained within due bounds during 
 the life of the prefent bifliop and totally abo- 
 li{hed after his death ; and every Canadian 
 would have been left at full liberty to be as 
 much or as little a Roman catholick as he 
 (hould have pleafed. And this hberty would 
 probably very foon have operated in favour of 
 the proteftant religion, fince it is certain that 
 terror and extream ignorance are the only 
 means by which the popilh religion is fup- 
 ported in any country. 
 
 In the third place it was propofed in the faid 
 draught of an ad of parliament, that all the 
 Romifli priefts in the faid province fliould have 
 
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 [ 266 ] 
 
 been permitted to marry without lofing their 
 benefices on that account, unlcfs a memorial 
 was prefented to the Governour by a majority 
 oF the houfekeepers of the parifh of which any 
 fuch married pricft fliould have been redor, 
 complaining of his marriage as rendering him 
 incapable, in their opinion, of exercifing the 
 pricftly office, and praying the Governour to 
 remove him and give them another prieft that 
 was unmarried ; in which cafe their petition 
 fliould have been complied with. And it was 
 propofed that the parishioners fliould be at li- 
 berty to make fuch a memorial againft him 
 only during the laft eighteen months of the 
 firft two years after his marriage, and, if they 
 omitted to make it during that time, fliould 
 be deemed to have acquiefced in his marriage, 
 ' and confented to have him continued as their 
 redor ; and that all complaints againfl: him 
 afterwards on that account fliould be of no 
 cffed. i. 1 ; .i (. 
 
 »i ' I 
 
 ^5 ; . 
 
 It is probable that many of the parifli-priefts 
 might, by great moderation, affability, piety, 
 and diligence in the difcharge of their paro- 
 chial duties, have acquired a fufiicient degree 
 of intereft with their parifliioners to have af- 
 forded them a kind of moral certainty that no 
 fuch memorial figned by more than half the 
 houfekeepers in the parifli would be prefented 
 againft them in cafe they fliould enter into the 
 married flate; and under this p.erfuafion we 
 
 4pay 
 
[ 2(37 } . 
 
 may fuppofc that, when an atll of pirllamcnt 
 fhould have declared it lawful for them to do 
 fo, many of them would have entered into that 
 ftate. And this, it is evident, would have been 
 a great ftep towards their becoming protcllunts 
 with refped to other dodrincj-. And, the more 
 to encourage them to take th.is important ftep, 
 it was further propofed in the faid draught oi' 
 an a<5t of parliament, that in all the more va- 
 luable benefices in the province, whofc annual 
 amount was more than one thoufand bufhel*? 
 of corn, the widows of the married incumbents 
 fhould have a dower during their lives out of 
 the benefices of their dcceafed hufbands to the 
 amount of one fixth part of the annual value 
 of the benefice, or one half of the dower of 
 widows allowed by the common law of Eng;^ 
 land out of lay eftates. 
 
 And in the fourth place it was provided in 
 the faid draught of an adl of parliament that 
 the juftices of the peace (hould have had a 
 power to join people in holy matrimony as well 
 as the priefts of either the ppifli or proteftant, 
 religion J and this by a fimple ceremony fet 
 forth in the draught, which would have fuited 
 perfons of all religions in the world. This 
 was intended to facilitate the intermarriages of 
 the British and French inhabitants of the pro- 
 vince, and to prevent the obilrudions to them 
 that might arife either from the parties thein- 
 lelves,. who might fcruple to be married ac- 
 
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 corciing 
 
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 [ 268 ] 
 
 cor(lIng to the ceremonies of a religion they 
 did not believe, or from the priefts, who might 
 relufe to marry perfons who were not both of 
 the religion they prr^cflbd. 
 
 Thcfe, Mr. Printer, are fome of the provi- 
 fions made in that draught of an adt of parlia- 
 ment for the encouragement of the proteftant 
 religion in the province of Qoebeck, by which 
 the author of it hoped that the inconvcnicncies 
 that might otherwife arife from the revival of 
 the legal right of the popifli clergy to their 
 tythes might be counter-aded and prevented. 
 And even with thefe provifions, he doubted 
 whether it would be expedient to revive this 
 right, and was inclined to think that it would 
 have been better to poftpone the final fettle- 
 ment of the affairs of religion in the province 
 to fome future time, and to fettle for the pre- 
 fent only the laws relating to civil and tempo- 
 ral matters, and to eftablifh a proper legiflature 
 in the province. And with this view he pre- 
 pared three feparate draughts of adls of parlia- 
 ment, to wit, one for eftablifhing a legiflative 
 council in the province, (confifting of 3 1 pro- 
 teftant members, all unremovcable and un- 
 fufpendible by the Governour, and removeable 
 only by the King in council,) for feven years, 
 and the end of which time he hoped it might 
 be found pradicable and expedient to permit 
 the people of that country to chufe an alTem- 
 bJy, agreeably to the King's promife in his pro- 
 clamation 
 
[ 269 ] 
 
 clamation of Odober, 1763 ; a fecond for 
 fettling the laws of the province, and deter- 
 mining in what points the Fre ich laws (hould 
 be permitted to continue, and in what points 
 they (hould be fuperfeded by the Englifh laws; 
 and this third draught for fettling the affairs 
 of religion. And he wilhcd either that the 
 two former draughts (hould be adopted by 
 parliament, or that the matters contained in 
 them (liould be fettled in fomc better manner,; 
 and that the latter draught relating to religion, 
 might have been laid afide for the prefent, and 
 referved for future confideration. And this 
 he the rather thought advifeable, becaufe the 
 Canadians in general were very eafy pon the 
 matter of their religion, of which they enjoyed 
 the fulleft toleration that can be conceived, to 
 their own great and moft agreeable ailonifh- 
 ment : and, as to the article of tythes, they 
 were, for the moft part, very well plcafed with 
 the liberty they had enjoyed ever fmce the ca- 
 pitulation in September 1 760, of paying them, 
 or not, as they liked beft, which, they faid, 
 kept their prie(is in good order, and made them 
 lefs infolent than they had ufed to be. And 
 accordingly we find that the French petition of 
 Dec. 1773 (which was prefented to the King*s 
 Majefty, about the month of February, 1 774, 
 and leems to have been the ground of the late 
 ad: of parliament for regulating the govern- 
 ment of that province,) makes no mention of 
 any grievances relating to the exercife of the 
 
 popiih 
 
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 J)opifli religion,' and contains no requefl: that' 
 the people may be obliged to pay the priefts their 
 lythes. Indeed the main otDJedt of that peti- 
 tion feems to have been not a liberty to profeft 
 the dodrines, or attend the worihip of the 
 Roman catholick religion ; (for that they al- 
 ready enjoyed in the highefl degree poffible ; ) 
 
 nor a compulfive law to force them to pay 
 
 the tythes to their priefts ; (for that they were 
 well-pleafed to have left to their own choice 
 and difcretion ', ) - — but a removal of the in- 
 capacity, arifing from their religion, to hold 
 places of truft and power : which removal is a 
 thing totally diftiniS from toleration, and was 
 a degree of indulgence, or favour, which it is 
 not thought fafe to grant even to Britifli fub- 
 jeds of England and Ireland, born under the 
 allegiance of the crown, that profefs the Ro- 
 man catholick religion ; and to which therefore 
 the Canadians could be by no means intitled ; 
 and which, in the opinion of the ger.ieman 
 who prepared thefe draughts of ads of parlia- 
 ment, it was not expedient to grant them. 
 Upon thefe accounts he thought there was no 
 occafion to make any immediate fettlement 
 concerning the affiiirs of religion in the pro- 
 vince, but that it would have been more pru- 
 dent to leave them in their then prefent con-^ 
 dition, with the tythes voluntary, &c. till twa 
 or three years after the other matters, which 
 required a more immaiiate attention, namely, 
 the fettlement of ^le lawS concerning temporal 
 
 mutters 
 
 fi 
 
[ 271 ] 
 
 matters and the appointment of a provindal 
 legiflature, fliould have been difpatched. But, 
 as his Majefty's minifters might be of a. diffe- 
 rent opinion, and might refolve to fettle every 
 thing relating to the province at one ftroke, he 
 drew up that third draught above-mentioned of 
 an ad lor fettling the affairs of religion, in which 
 he inferted a provilion for every article upon the 
 fubjedt that he could recolledt to ftand in need 
 of one, and endeavoured throughout the whole 
 of it, to give th« moft ample toleration to the 
 Roman-cathplick religion, and even, it muft 
 be confefled, went fo far as to give the priefts 
 a legal right to their tythes ; but, at the fame 
 time, abolifhed the monafteries both of monks 
 and nuns ; reftraihed the power of the pre- 
 sent popifh bifhop within fafe and reafbnable 
 
 4Dounds; prevented his having a popifh 
 
 fuccefTorj and dire(fted that a proteflant bifliop 
 fhould after his death, or refignation, refide in 
 the province in his ftead, in order to transfer 
 all the weight arifing from the fplendour of that 
 
 office to the protertant fcale ; encouraged 
 
 the popifh priefls to marry, and provided 3 
 dower for their wives -, facilitated the mar- 
 riages of proteftants with Roman-catholicks, 
 by appointing a limple ceremony for that pur- 
 
 pofe, to be performed by a civil magiflrate -, 
 
 continued upon Roman-catholicks the legal 
 incapacity to hold places of trufl aiiH power, 
 under which they lie in other parts of the 
 Brjtifh empire, and whjch W9uld neceflarily 
 
 have 
 
 
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 h: 
 
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 m 
 
 have hada filent, but continual, operation to in- 
 duce them to quit the errors of popery ;« —and 
 took other precautions that were favourable to the 
 proteftant religion, and were likely to encou- 
 rage both the laiety and clergy of Canada to 
 embrace it. Thefe provifions in favour of the 
 proteftant religion mud be his cxcufe for having 
 propofed in one part of his draught to give the 
 popifh priefts a legal right to their tythes, 
 which perhaps after all is a meafure that ought 
 not to have been adopted. Whether it ought 
 or not, is a point he mufc fubmit. to the 
 judgement of candid perfons. But thus much 
 is certain and evident, that to give the priefls a 
 right to their tythes, when the gift is accom- 
 panied with all the provifions above-mentioned 
 to weaken and difcountenance the Roman ca- 
 tholick, and encourage and introduce the pro- 
 teftant, religion in the province, is a very dif- 
 ferent meafure from a gift ^ of the fame right 
 unaccompanied with thofe provifions. And 
 confcquently a perfon that had advifed the 
 former meafure ought not to be fuppofed on 
 that account to have approved the latter, or to 
 be thought inconfiftent with himfelf if he does 
 not approve it. ^' ^ . ^ . 
 
 Thus much I have thought it neceflkry to fay 
 in vindication of Mr. Maferes from the charge 
 of having been the advifer of the claufe in the 
 late ad of parliament which gives the priefts a 
 legal right to their tythes. But before I entirely 
 
[ 273 ] 
 
 •n 
 
 quit your paper, I beg leave to add a few words 
 concerning the meaning of the word eftablijhment 
 when applied to a religion, which feems to have 
 fomewhat puzzled your correfpondent the writer 
 of the above-mentioned letter, as well as fome 
 other perfons. Now it appears to me that there 
 are three different methods in which a religion 
 may be fupported, which are diftinguifhed froitt 
 each other by the words, Toleration^ Endow^ 
 menty and Eflahlijlment, When the govern- 
 ment of a country permits the profefTors of a 
 religion to meet together in places of worfhip 
 of their own building or hiring, and to have 
 divine worfhip performed in them accoiding to 
 the rites they chufe to adopt, by oriefts, or mi- 
 nifters, of iiicir own, whom they employ and 
 hire for the purpofe j that religion is faid to be 
 tolerated. 
 
 ; 4» 
 
 I r 
 
 . ■ i 
 
 Thus, the Quakers are tolerated in England, 
 and thofe of the Prefbyterians, and other pro- 
 teftant diflenters, who comply with the condi- 
 tions required by the toleration-ail. But the 
 other protectant difTenters who do not comply 
 with thofe conditions, (and who are at this day 
 much the greater part of the whole body) are 
 not tolerated, but are expofed to tiie penalties 
 of feyere laws for meeting together to worship 
 God according to their conference, the bifhops 
 having twice refufed their aflent to bills paflei 
 by the Houfe of Commons for exempting them 
 from thofe penalties. And in like manner the 
 
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 Roman-Catholick religion was tolerated in Ca- 
 nada before the late adt of parliament. For the 
 people were permitted to aiTemble in their 
 churches and chapels to hear mafs and to re- 
 ceive the facraments according to the rites of 
 the Church of Rome, and the priefts to officiate 
 therein, without any moleftation whatfoever: 
 and the tythes and other profits paid to the priefts 
 on this account, were paid voluntarily by the 
 people who followed that mode of worfliip, 
 without any right in the prieds to compel the 
 payment of them by a fuit at law. This was 
 perje^ toleration. 
 
 But it is poflible that a government, though 
 it may think it necefTary in point of juftice to 
 permit the followers of a particular religion to 
 meet together in moderate numbers to worfhip 
 God in their own way, may yet not think it 
 expedient to let that religion take root in the 
 country in a manner that is likely to increafe 
 the number of its votaries. And in this cafe 
 they may forbid its being endowed by gifts of 
 land, or other permanent property, amgned to 
 truftees for the permanent fupport of it. This, 
 I apprehend, would not be inconfiftent with 
 toleration, nor at all unjuft towards the pro- 
 feflbrs of fuch barely- tolerated religion; be- 
 caufe every ftate has a right to judge of the 
 utility of the purpofes for which it allows the 
 property or any of its members to be aliened 
 in mortmain. 
 
 But 
 
 . '1! 
 
 
[ 275 3 
 
 Bat on the other hand it is poffible that a 
 government may think a particular mode of 
 religion, though not worthy to be fupported and 
 encouraged by publick authority, yet to be lb 
 very innocent and inofFenfive to the ftate that 
 they may indulge the profefTors of it with a 
 liberty to alien their land, or other property, in 
 mortmain for the permanent fupport of the 
 minifters and teachers of it ; as in England and 
 other countries in Europe, men are permitted 
 to found pi ofeflbrfhips of the fciences in uni- 
 verfities, or to alien a part of their property in 
 mortmain for the maintenance of the profelTc rs 
 of them. Where this is permitted withrefpedl 
 to any particular religion, and private perfons 
 have made ufe of fuch permiflion, and have 
 fettled permanent funds for the maintenance 
 of the minifters and teachers of fuch religion, 
 that religion may be faid to be endowed, 
 
 Laftly, where the government of a country 
 provide a fund by their own publick authot ity 
 for the maintenance of the minifters andte chers 
 of any religion, fuch a religion is laid to be ejici- 
 bliJJjed. 
 
 Thus, before th(^ reformation the popifti re- 
 ligion was eftablifhed in England, becaufe 
 tythes, and other publick funds, were appointed 
 by the law ot the land for the maintenance of 
 the priefts that taught it. And at the reforma- 
 tion, by the ftatute ot the ift of Elizabeth, 
 
 M m 2 cap. 1, 
 
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 if 
 
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 if 
 
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 [ 276 ] 
 
 cap. I . for abolifhing the foreign jurifdid^ion of 
 the pope ; all priefts who held benefices were 
 required to abjure the fupremacy of the pope, 
 and acknowledge that of the queen ; Xhat is, 
 the benefices, or publick funds afligned for the 
 maintenance of the publick teachers of religion, 
 were transferred from the popidi priefts, who 
 acknowledged the pope to be the head of the 
 church, to the protefiant priefts who acknow- 
 ledged the queen to be fo : and by that transfer 
 the proteftant religion became eflabliJJoed* This 
 is the only fenfe in which the Church of Eng- 
 land can be faid to be eftablifhed at this day. 
 Its priefts are paid for performing its ceremonies, 
 and teaching its dodbines, by funds afligned to 
 them by the publick authority of the ftate. And 
 in the fame fenfe the Roman-Catholick religion 
 may be faid to be eftabliftied in Canada by the 
 late ad of parliament. For a public fund, to 
 wit, the tythes of the popifti pariftiioners, that is, 
 of 49 perlons out of 50 throughout the pro- 
 vince, is thereby afligned to the Romifh priefts 
 as a maintenance and reward for performing the 
 ceremonies, and teaching the dodrines of that 
 religion. 
 
 . I know that fome perfons have aflferted that 
 this meafure is not an eftablifliment of the 
 popifli religion in Canada, becaufe the pro- 
 teftant parishioners are not obliged to pay tythes 
 to the Romifti priefts. But this affedts only 
 th^ quantum of the provifion made for the main- 
 tenance 
 
tenancc of thofe priefts and the religion they 
 are to teach. It is fomewhat Icfs ample than 
 it would be if the proteftants were forced to 
 pay the tythes to them as well as the Roman- 
 catholicks. But the nature and defign of the 
 provifion are the fame in both cafes. It is a 
 fund provided by publick authority for the fup- 
 port of priefts, to excrcife and teach the reli- 
 gion of the church of Rome. And this, I 
 piefume, is all that is meant by thofe who 
 have affirmed that the popifh religion h ejiahlijh^ 
 ed by this adt of parliament, and is all that 
 the words, ejlahlijhment of a religion^ naturally 
 and ufually import. 
 
 Before I conclude this letter, I beg leave to 
 obferve, that in the draught of the ad of parlia- 
 ment for fettling the affairs of religion in th6 
 province of Quebeck which your correfpondent 
 refers to, Mr. Maferes has be^^n miftaken in a 
 point of fadl concerning jthe quantum of the 
 tythes paid to the pariih priefts of Canada in 
 the time of the French government j and your 
 correfpondent has adopted the miftake. Mr. 
 Maferes in that draught, has dated the tythes 
 as having been the 13th part of the fruits of 
 the earth, at the time of the conquefl: of that 
 country. This he did upon the authority of 
 the edi(5t of Lewis the 14th, in the year 1663, 
 which originally appointed the payment of 
 tythes in that province, and fixed it at that 
 rate. But upon a complaint of the land- holders 
 
 of 
 
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 [ 278 ] 
 
 of the province in 1 667 to the fupcriour council 
 of Qucbcck, that this was too great a burthen 
 upon their infant fettlements, it was, by a pro- 
 vi](ional ordinance of that council reduced to 
 the 26th bufticl of corn threflied out and 
 made fit to put up in the granary ; and this 
 ^'edudlion was afterwards confirmed by an eti^cl 
 of Lewis the 14th in 1672, and coiuiiiucj 
 ever after. But this chdii^c of the originil 
 cdidt of 1663 was not mentioned in the ftiort 
 and imperfed abflradl of the French edias and 
 ordinances relating to Canada, which Mr. M— - 
 oonlulted when he was preparing that draught 
 of an adt of parliament ', and this omiflion led 
 him into that midake. 
 
 I remain your humble Servant, 
 
 PHILALETHES. 
 
 The claufe of the above-mentioned draught 
 of an adt of parliament for fettling the af- 
 fairs of religion in the province of Q^eb^k, 
 in which it is propofed, that juftices of the 
 peace fliould have the power of joining per- 
 ions together in holy matrimony, without any 
 regard to their being proteftants or Roman- 
 Catholicks, by a fimpTe, but decent, civil cere- 
 mony, feems to me to be fo exceedingly ufeful 
 to the people ol that province in its preient 
 
 ftate, 
 
r, 
 
 [ 279 ] 
 
 flate, that I fhall take the liberty of troubling 
 my readers with a copy of it. It is as follows : 
 
 An cxtrad from the aforcfaid draught of an 
 adl of parliament for fettling the affairs 
 of religion in the province of Quebcck, 
 containing that part of it, in which it js 
 propofed that juAices of the peace Hiall 
 nave the power of joining pcrfons toge- 
 ther in the holy ftate of matrimony in 
 that province. . » 
 
 • * 
 
 Sect. LX. " And whereas it is of great im- 
 portance to the welfare of the inhabitants of the 
 faid province of Quebeck, that all doubts and 
 difficulties concerning the manner of contradl- 
 ipg marriage in the fame (hould be removed ; 
 and that the ceremonies necefTary to make the 
 marriages therein contraded valid and binding, 
 (hould be clearly and certainly known ; and 
 that the faid ceremonies fhould be as few and 
 as fimple as may be ; to the end that fuch 
 perfons in the laid province as are difpofed to 
 enter into the holy ftate of matrimony with 
 each other, may find no difficulty, in all law- 
 ful cafes, in fo doing : And whereas divers of 
 the Roman-Catholick inhabitants of the faid 
 province efteem it to be fmful to be married 
 by a proteftant priefl according to the cere- 
 monies of the church of England j and the 
 proteftant inhabitants of the lame in like man- 
 ner hold it (inful to be married by a Roman- 
 
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 Catholick prieft according to the ceremonies 
 of the church of Rome ; and many of the 
 Roman*Catholick prieds in the faid province 
 arc unwilling to marry any perfons, even" ac- 
 cording to the ceremonies of the church of 
 Rome, but fuch as declare themfelves to be 
 members of that church : and difficulties have 
 fometimes arifen, and are likely often to arife 
 in time to come, from the faid fcruples, con- 
 cerning the marriages of the inhabitants of the 
 faid province, more efpecially where one of 
 the parties is a Roman-Catholick and the 
 other is a proteftant, whereby the faid mar- 
 riages either may be retarded, or totally pre- 
 vented; which would be to the great detri- 
 ment of the faid province : IT IS THERE- 
 FORE ORDAINED AND ENACTED by 
 the authority aforefaid, that all marriages that 
 have been, or ihall be, folemnized in the laid pro- 
 vince either by a proteftant prieft of the church 
 of England, according to the ceremonies of the 
 i:hurch of England^ or by a proteflant pried or 
 minifter of the church of Scotland according to 
 the ceremonies of the church of Scotland, or by 
 any other proteflant pried, or minifler, or by a 
 Roman-Cathollck prieil according to the cere- 
 monies of the church of Rome, and either be- 
 tween twoproteftants if twoRoman-Catholicks, 
 or a protedant and a Roman-Catholick, diall be 
 valid and binding to all intents purpofes whac- 
 foever: and like wife, that all marriages that 
 (hall be folemnized hereafter in the laid pro- 
 .* vince 
 
vince before any juflice of the peace in the 
 fame, between any perfons, of what different 
 ientiments focver with refpedl to religion, 
 (that are capable by the laws of the faid pro- 
 vince of contradbing matrinu>ny with each 
 other,) according to the form and manner 
 hereafter following, (hall be binding and valid, 
 to all intents and purpofes whatfoever* 
 
 ^-^* LXL When the two perfons, who have 
 agreed to marry eath other, fhall be come before 
 the jiaftke of the peace in order to be mar* 
 riftd by him, he fhaU firft interrogate them 
 concerning their ages, and their degree of 
 coofanguinity^ or ajlinity, to eaCh other, and 
 other circumflances ielative to their legal ca- 
 pacity to contcadt matrimony with each other; 
 and if he ihall be fatisfied that they are by 
 law capable of contrading marriage v^rith 
 each other, he ihalL proceed to folemnize 
 their marriage by diredting them, to pronounce 
 the following words q£ contra^ . and. promife 
 to each other, and, after they (hall. have pro- 
 nounced them, declaring them to be lawful 
 hufband and wife to each other, u. L.;/ 
 
 * Vf ft -J 
 
 :{.i i^i^: 
 
 .1**' The man fhall firil, with his right 
 hand, take the woman by her right hand, 
 and, in the prefence of the faid juflice and 
 of at leaft two credible witneffes, (hall plainly 
 and dtftindlly pronounce thefe words: " /, 
 ^. B. do here^ in. prefence of Almighty Gody the 
 
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 Jearcber of all heart Sy and of tbefi ivitneffes^ 
 take tbee, C Z). y^r My wedded wife i and do 
 promife to be unto tbee a bving and faithful buf- 
 band until death Jhall part us** Or» if he does 
 not underiland Engliib, he (hall pronounce 
 & tranflation of the faid words in the French 
 language. 
 
 a «- #• 4 * f « ',\4 K A • \. .1 < 
 
 ** Then they /hall loofe their hands for a 
 ihort ipace of time : and then the wolnan 
 fhall, with her right hand, take the man by 
 his right hand, and, in prefence of the faid 
 juflice and the faid two, or more, credible 
 witnefles, ihall plainly and diilindly pro« 
 nounce thefe words : 7, C. D. do here, in 
 the prefence of Almighty God, the Searcher of all 
 hearts, and of thefe witnejfes, take thee, A> B. 
 for my wedded bufband\ and do promife to be 
 unto thee a loving, faithful^ and obedient wife, 
 until death Jhall part us** Or, if (he doei not 
 underiland Enelifh, fhe fhall pronounce a 
 tranflation of me ^d words in the French 
 language. / ^ ", 
 
 ^itf-^-.f 
 
 ::iij J?^.^^t,t| 
 
 I • . 
 
 And after the faid words fhall have been 
 thus pronounced by the faid man and wo- 
 man, the faid juflice of the peace fhall '• de- 
 clare the faid man and woman to be from 
 thenceforth lawful hufband and wife to each 
 other in thefe words : /, J5. F. do declare and 
 pronounce thee. A* B. to be the lawful bujband 
 rf C, D, here prefent j and thee^ C. D. to be 
 
 tbe 
 
>I! 
 
 { 283 ] 
 
 the lawful wife of A. B. here prtfent. Depart 
 in peace ^ and live with each other with mutual 
 honour y faith^ and love, as becomes gpdhf perfons 
 joined together in hofy wedkck. And may AU 
 mighty God, in whofe ^efence you have promt fed 
 to be true and faithfm to each other during life, 
 fanBify and bkfsyou in your new eftate, that ye 
 may pleafe him both in body and fhul, and live 
 together in holy love imto your lives end* 
 
 " LXIL And when the faid marriage (hall 
 have been thus concluded, the faid juflice of 
 peace (hall make a record thereof tA writing 
 in the words following : " Be it remembered 
 
 that en the -^day of the month of , 
 
 in the year of our Lord Chrijl — — — , A. B. 
 
 of* (mentioning the place of his abode) 
 
 tn the province of Rebeck in America^ ■ 
 (mentioning his trade, or profeflion, or other 
 addition) and C, D, o/ - (mentioning 
 
 the place of her abode) in the faid province, 
 
 (mentioning her trade, or employment, or 
 other addition) came before me, E. F. one of his 
 Majeflys jufiices of the peace for the dijiri6l of 
 — in the faid province, at pty houfe at ■. , 
 or in the parijh of — > in the faid diflriSl, 
 and were then and there joined together in boli 
 wedlock by me, the faid E. F. in the prefence of 
 G. H, and J. K, and L» M who/e names are 
 hereunto fubfcribed. 
 
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 . In vjitnefs whereof I have hereunto fiibfcribed 
 fny name^ and Jet my JeaJi^ on the day and in the 
 year idfove'meniionea. . ^j. . 
 
 ^ .^^- ^- : /L,s.) E.F.juflice of the peace 
 ^ for the dtfindf of' — tn 
 
 the province of Rebeck** 
 
 
 •.V 
 
 And the faid witnefles, who fhall have been 
 prefent at the faid marriage, fhall fubfcribe 
 their names to the faid record thereof, ii) at- 
 tertation of the fame,^^,,*,,^^^^ . 
 
 And the faid juftice of peace fhall deliver. 
 Or tranfmit, the faid record to the juflices of 
 the peace of the diflrid in vtrhich the faid 
 marriage fhall have been thus folemnized, at 
 "dieir next court of quarter -feflions of the 
 peace, to be kept amongfl the records of the 
 laid court as a perpetual teftimony of the faid 
 marriage. . , ■ , , / r 
 
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 ,"-A-^''iii \.^\ >:^. '■■■ ,v ■- ..,..1^ *M\m'-'. 
 
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 .1- 
 
 A Remark 
 
 
 \ 
 
1 2»5 1 
 
 A Remark concerning the injuftice of 
 the Quebeck-aft with'refped to fuch 
 Creditors as have Debts owing to 
 them in that province that were 
 contraSed fince the ift of Odober, 
 
 1764. 
 
 TN the 42d article of the general capltula- 
 ^ tlon between the Marquis de Vaudreiiil and 
 General Amherft, in September, 1760, by 
 which all Canada was furrendered to the crown 
 of Great-Britain, that French general demands 
 ed in the behalf of the Canadians, that the 
 cuflom of Paris, (which had been generally 
 introduced into the province, and made the 
 common law of it, by the French king's 
 edidts,) and the other laws and ufages then 
 eflablifhed in the country, fhould continue to 
 be obferved in it. But General AmherO:* 
 inflead of complying with this demand, re- 
 ferved this matter to the determination of the* 
 king. The words of this article and of that 
 which immediately precedes it, (to which a 
 reference is made in the anfwer to this,) are 
 as fbUows. '-'' 
 
 a? 
 
 ■>>■■' 
 
 -n.\ 
 
 Art. 41. The French, Canadians, and 
 Acadians, of what ftate or condition foever, 
 who fj^all remain in the colony, (hall not be 
 ■■\\ ^ forced 
 
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u 
 
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 'ill 
 
 I 286 1 
 
 forced to take arms againfl his Moft Chriftian 
 Majefty or his allies^ diredly or indire^ly* 
 on any occafion whatfoever. The Britifh 
 government (hall only require of them an 
 exad neutrality. ' ; 
 
 To this demand General Amherft made 
 tnfwer in thefe words. 
 
 ^liey become fuhjeBt of the King. 
 
 Art. 42. The French and Canadians 
 ihall continue to be governed according to 
 the cuftom of Paris and the laws and ulages 
 eflablifhed for this country. And they ihall 
 not be fubjedl to any other impofls than thofe 
 which were e(labli(hed under the French 
 dominion. ^ 
 
 To this demand General Amhecft made 
 tnfwer in thefe words. * ^ 
 
 .J 
 
 jinfivered by the preceding articles^ and far^ 
 ticularJy by the Iqft. ; 
 
 * i^ 
 
 In the fourth article of the definitive treaty 
 of peace concluded on the loth day of Fe- 
 bruary, 1763, there is the following claufein 
 favour of the exercife of the worihip u(ed in 
 the Church of Rome» with a reference to the 
 laws of Great-Britain as the meafure of that 
 intended indulcrence. 
 
 *• His 
 
!t 
 
 I 1 ^ I 
 
 I 287 ] 
 
 V* His Britannick Majefty» en his fide, 
 agrees to grant the liberty of the Romans 
 Catholick religion to the inhabitants of Ca- 
 nada. He will confequently give the moi^ 
 effedual orders, that his new Roman-Catho- 
 lick fubjedts may profefs the worihip of their 
 religion, according to the rites of the RomiHi 
 church, as Jar as the laws of Great^Britain 
 permit:* 
 
 It appears therefore that the king, or the 
 king and parliament together, (for I don't 
 mean to enter into the queftion whether the 
 lun£ alone, or the king and parliament to- 
 gether, have the right of making laws for 
 countries conquered by, and ceded to, th« 
 crown of Great-Britain ;} had a right to abo- 
 lish, or alter, the cuflom of Paris and other 
 laws and ufaees heretofore eflabli(hed in Ca- 
 nada, if he mould think fit fo to do, without 
 any breach of either the capitulation or the 
 treaty of peace ; excepting only fuch parts of 
 thofe laws as were eiienti J!y necefifary to the 
 enjoyment of the property of the Canadians, 
 which had been promifed them by other 
 articles of the capitulation. Thus, for example, 
 it would have been a breach of the capitulation 
 to abolifh the alienation-fines which were due 
 to the owners of feigniories from the purchafers 
 of freehold lands fituated in their refpe<flive 
 feigniories ; becaufe thofe fines make a con- 
 fiderable part of the property of the felgniors, 
 
 which 
 
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 [ i88 ] 
 
 which has been fully granted to them by' the 
 capitulation. But it would not have been a 
 breach of the capitulation to alter the hw 
 -toncerning the dower of widows with refped 
 to marriages hereafter to be contraded, or the 
 law of inheritance with refpedt to lands which 
 were not entailed, but which the prefent 
 pofTcfTors had a right to difpofe of; becauft 
 nobody's property would have been thereby 
 taken away, but only a new rule would have 
 been eAablifheid for the future devolution of 
 property, at the death of the prefent owners, 
 if the faid owners (hould negled to diredt its 
 courfe in any other channel by their marriage- 
 agreements, or other deeds in their life- time, 
 or by their lafl wills and teilaments at their 
 deaths. Whether alterations of this kind in 
 the antient laws of the countiy would have 
 been wife or politick, is another quedion, 
 which I do not here meah to enter into. 
 But I only fay that fuch alterations might 
 have been made without any breach of the 
 capitulatioil Much more might alterations 
 of thefe antient laws in matters relating to 
 perfonal effedts, and perfonal contrads there- 
 after to be made, and to the manner of fuing 
 for and recovering the debts fo contracted, 
 and other fuch fubjeds of a commercial nature, 
 have been made without any iiich breach. 
 We will now inquire what was done by his 
 Majefty'« authority in confequencc of the 
 
 powers 
 
 ■ • rmf ct V 
 
[ a89 ] 
 
 powers which had been rcfcrved to him in 
 this behalf by the capitulation and treaty of 
 peace. . ./. . ,^ ^ 
 
 In the month of Ocflober, 1763, about 
 eight months after the conclufion of the de- 
 finitive treaty of peace above-mentioned, his 
 Majef^y publifhed his proclamation, under the 
 great feal of C reat- Britain, for ercdting four 
 new civil governments, to wir, thofe ofQue- 
 beck, Eaft Florida, Weft Florida, and Gra- 
 nada» in the countries and iflands in America, 
 which had been lately ceded to the crown by 
 the faid definitive treaty of peace. In this 
 proclamation the king exhorts his fubjeds, as 
 well of his kingdoms of Great Britain and 
 Ireland as of his colonies in America, to avail 
 themfelves, with all convenient fpeed, of the , 
 great benefits and advantages that muft accrue, 
 from the great and valuable acquifitions lately 
 qeded to his Majefty in America, to their 
 commerce, manufadures, and navigation; 
 and> as an encouragement to them to do fo, 
 he informs them that, in the commiflions he 
 has given to the civil governours of the faid 
 four new provinces, he has given the faid 
 governours exprefs power and directions, that, 
 fp Coon as the ftate and circumftances of the 
 laid colonies will admit thereof, they (hall, 
 with the advice and confent of the members 
 cf his Majefty's councils in the faid provinces, 
 fummon and call general aiTemblies of the 
 
 O o people 
 
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 [ 290 1 
 
 people within the fald governments, in fuch 
 manner as is ufed in thofe colonies and pro- 
 vinces in America which are under his Ma- 
 jefty's immediate government ; and " that in 
 the mean iimcy and until fuch ajfeniblies can be 
 called^ as aforejdid^ all perjbns inhabiting in, or 
 reforting tOy his Majeftys /aid colonies, may con- 
 Jidc in his Majejlys royal protcdl ion for the enjoy- 
 ment of the benefit of the laws oj his realm of 
 England : and that for that purpofe his Ma- 
 jefty had given power under the great feal to 
 the governours ot his Majcfty's faid new colo- 
 nies to eredt and conftitute, with the advice of 
 his Majcfty's faid councils refpedlively, courts 
 of judicature and publick juftice within the 
 faid colonies for. the hearing and determining all 
 caujes, as well criminal as civil, according to law 
 and equity, and, as near as may be, agreeably to 
 the laws of England; with liberty to all perfons 
 who may think themfelves aggrieved by the 
 fentencc of fuch courts, in all civil cafes, to 
 appeal, under the ufual limitations and re- 
 ftridtions, to his Majefty in his privy council. 
 
 On the 2ift day of November, 1763, about 
 fix weeks after the publication of the aforefaid 
 proclamation, his Majefty ifTued his com- 
 miflion of Captain-general and Governour in 
 chief of the province of Quebeck to Major- 
 general Murray, which was received by him 
 and publiihed in that province in the month 
 of Auguft, 1764. This commiilion, and the 
 
 inflru^ions 
 
[ 291 ] 
 
 inftru(flion8 that accompanied it, fcemcd every 
 where to prcfuppofc thiit the laws of England 
 were in force in that province, being full of 
 allufions and references to thofe laws on a va- 
 riety of different fubjedts, and did not contain 
 the lead intimation of a faving of any part of 
 the laws and cuftoms that prevailed there in 
 the time of the French government. 
 
 It feemed therefore, upon the whole, from 
 the faid proclamation and commifTion, to have 
 been his Majcfty's intention, with refped to 
 the faid province of Quebeck, to aflimilate the 
 laws and government of it to thofe of the 
 other American colonies and provinces which 
 are under his Majelly's immediate government, 
 and not to continue the municipal laws and 
 cuftoms by which the conquered people had 
 theretofore been governed, any farther than as 
 thofe laws might be necelTary to the prefer- 
 vation of their property. And his Majefty's 
 mirifters feem, at the time of paffmg thofe 
 inftruments, to have been of opinion, that, — 
 by the refufal of General Amherft to grant to 
 the Canadians the continuance of their antient 
 laws and ufages ;— and by the reference made 
 in the fourth article of the definitive treaty of 
 peace to the laws of Great-Britain, as the 
 meafure of the indulgence intended to be fhewn 
 them with refped: to the exercife of their re- 
 ligion ; — fufficient notice had been given to 
 the conquered inhabitants of that province, 
 , Go 2 that 
 
 tiv/H' 
 
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 r ^ 
 
 fii4 
 
 ^^S 
 
 !. 
 
mm ■ 
 
 .M:, 
 
 ':'',<>''iaH! ^li'i 
 
 !«!' 
 
 ♦' ■' ■! 
 
 I 
 
 •;.v • • ; !' . 
 
 F't I 
 
 [ 292 ] 
 
 that It was his Majcfty's pleafurc that they 
 (hould be governed for the future according 
 to the laws of England : — and that the faid 
 inhabitants, after being thus apprifed of hit 
 Majefly's intention, had confented to be fo 
 governed, and had teilified their faid confent 
 by continuing to refide in the country, and 
 taking the oath of allegiance to his Majefty, 
 when they might have withdrawn themlelves 
 from the province, with all their efFeds and 
 the produce of the fale of their eflates, within 
 the eighteen months allowed by his Majefty 
 in the treaty of peace for that purpofe. 
 
 In purfuance of this fuppofition that the 
 laws of England had been introduced into the 
 province by the aforefaid proclamation and 
 commiffion, Governour Murray and his coun- 
 cil> in the great ordinance dated on the 1 7 th 
 day of September, 1764, (pafled at the com- 
 mencement of the civil government of the 
 province for the eftablilhment of courts of 
 juftice in it,) diredted the chief juflice of the 
 province, (who was to hold the fuperiour 
 court, or court of King^s-bencb^ eftablifhed by 
 that ordinance,) to deterriine all criminal and 
 civil caujes agreeable to the laws of England and 
 the ordinances of the province -, and the judges 
 of the inferiour court eilablifhed by the faid 
 ordinance, (which was called the court of 
 Common Pleas,) to determine the matters before 
 them agreeable to equity , having reg^d never- 
 
 ' thelefs 
 
 Ht 
 
I 293 ] 
 
 thekfs to the laws of Englarr<f, as far as the ctf" 
 cumftances and fituation of things will permit^ 
 until Jiicb time as proper ordinances for the in» 
 formation of the people can be eftablijhed by the 
 Governour and council^ agreeable to the laws of 
 England; with this jufl and prudent provifoe, 
 " that the French laws and cuflcms Jhould be 
 allowed and admitted in all caufes in the faid 
 court between the natives of the faid province, in 
 which the caufe of aSfion arofe before the ift day 
 of Odiober, 1764/' 
 
 In confequencc of thefe inftruments of 
 government, all purporting to introduce the 
 laws of England into the province of Quebeck, 
 thofe laws were generally underftood in the 
 province to have been introduced into it, and 
 confequently to be the rule and meafure of all 
 contracts and other civil engagements entered 
 into by the inhabitants of it after the intro* 
 dudtion of them, that is, after the eftablifh- 
 ment of the civil government of the province, 
 or after the faid ift day of October, 1764, 
 And the Englifh inhabitants of the province 
 have more particularly adled upon this fuppo- 
 fition in the great credit they have given to 
 the French, or Canadian, inhabitants of it in 
 their extenlive dealings with them. For it 
 has been aiferted, (and, I believe, with truth,) 
 that three quarters, or more, of the trade of 
 the province is carried on by the Englifh in- 
 habitants: afid they have been remarkably 
 
 free. 
 
 f^ ■;■ 
 
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 .,iv 
 
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 ] :di 
 
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 [ 294 ] 
 
 free, (even to a degree of imprudence,) in 
 giving credit to the Canadians. This being 
 the cafe, it is evident that ftrid juftice re- 
 ^luired that they fhould have been permitted 
 to recover by the methods of trial and the 
 procefles allowed by the Englifh law, the 
 debts which they had permitted the Canadians 
 to contrad with them, and which they had 
 contracfled with each other, upon the afore- 
 faid juft and well-grounded fuppofition that 
 the Englifh law had been eftablifhed in the 
 province. For otherwife the government will 
 have led them into an unfortunate fituation, 
 (againft which the rules of prudence were not 
 a fufficient guard to them,) by firft encou- 
 raging them to lend their money upon a fup- 
 pofition that the Englifh law was in force in 
 the province, and then, by the abolition of 
 the Englifh law, (to which they trufled,) and 
 the revival of the French law, (to which, it is 
 probable, they would not have trufled,) com- 
 pelling them to forego the methods of trial 
 and recovery prefcribed by the Englifh law, 
 and make ufe only of thofe allowed by the 
 French law, to get themfelves paid. Yet the 
 Quebeck-adt takes no notice 01 this hardfhip, 
 and makes no provifion againfl it ; but fays in 
 few and general words, " that in all matters of 
 controverly relative to property and civil rights^ 
 refort fiall be bad to the laws of Canada, as the 
 rule J or the decifion of the fame ; and all caujes 
 that Jl^all hereafter be infiituted in any of the 
 
 COlJ'tS 
 
 
."»i 
 
 :c,) in 
 ; being 
 tee re- 
 mitted 
 nd the 
 V, the 
 ladians 
 ey had 
 afore- 
 )n that 
 in the 
 ;nt will 
 tuation, 
 ^ere not 
 encou- 
 1 a fup- 
 force ill 
 ition of 
 ;d,) and 
 ch, it is 
 com- 
 of trial 
 {h law, 
 by the 
 lYet the 
 rdlhip, 
 fays in 
 tiers of 
 rightSy 
 as the 
 II caujes 
 of the 
 courts 
 
 [ 295 f 
 
 courts of juftice^ to be appointed within and for 
 the /aid province by his Majefiy^ his heirs and 
 fuccejforsy Jhall, with refpeSl to fuch property and 
 rights, be determined agreeably to the faid laws 
 and cujioms of Canada, until theyfiall be varied, 
 or altered, by any ordinances that fkall, from time 
 to time, be pojfed in the faid province by the 
 Governour, Lieutenant -governour, or Commander 
 in chief Jor the time being, by and with the ad- 
 vice and confent of the legiflative council of the 
 fame, to be appointed in manner herein after men- 
 tioned** This claufe is, with refpedt to debts 
 already contradted in the province fince the 
 introdudlion of the English law in Odober,, 
 1764, 2iVi Ex pojl fadlo law, and confequently 
 unjuft. In order to make it confiftent with 
 juftice, it (hould have been accompanied with 
 a provifoe, that thofe matters, 01 which the 
 caufes of a(flion had arifen fmce the jft of 
 Odober, 1764, when the Englifh law was 
 eflabliihed in the province, (hould be deter- 
 mined according to the rules, and by the me- 
 thods prefcribed by the Engli(h law. The 
 like precaution, we have feen above, was 
 taken by General Murray in palling the afore- 
 faid ordinance of September 17, 1764, by 
 which, in purfuance of his Majefty*s procla- 
 mation, he edablifhed the Englifh law in the 
 province. For he accompanied that intro- 
 dudtion of the Englifh law with this pro- 
 vifoe, (which we have already mentioned,) 
 that the French laws and cujioms ff:all be allowed 
 
 and 
 
 
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 [ 296 ] 
 
 and admitted in all caufes in the faid court [of 
 Common-pleas] between the natives of the faid pro^ 
 vince^ in which the caufe of aSlion arofe before 
 the iji day of OSlober^ 1764. 
 
 This fudden revival of the French law in 
 the province of Quebeck, in matters of pro* 
 ferty and civil rights^ without any exception 
 with refpedl to debts already contraded in 
 the province fince the introdudtion of the 
 Englifh law into it, was alfo injurious to ma- 
 ny Englifh merchants refiding in London, 
 who had fent goods into the province to a 
 great amount, upon a fuppofition that the 
 £ngli(h law was eftablifhed in it, for which 
 goods large fums of money were flill owing 
 to them at the time of paiHng the Quebeck 
 adt. And this was humbly fuggefled to the 
 houie of commons, while they had that a(fl 
 \inder their confideration, in the printed cafe 
 of the Britifh merchants trading to Canada, 
 and a delay of at leafl three years was de- 
 lired with refpefl to the revival oiF the French 
 law in the province, that they might have an 
 opportunity of getting in their debts before 
 the change took place. See the printed cafe 
 in the Account of the Proceedings^ &c. pages 
 202 — 222, and the paragraph relating to 
 this matter in pages 207, 208, 209. But no 
 regard was paid to this requeil. Some of' thefe 
 Britifh merchants, refiding in London, had 
 many thoufand pounds owing to them in the 
 province at the time of pafling theQ^cbeckad. 
 
 Some 
 
[ 297 1 
 
 Some people will be apt to fay concernirtg 
 thefe debts, contracted in the province during 
 the eftablifhment of the Englifh law in it> 
 that the revival of the French law can in no 
 
 degree affedt them ; that a debt is a debt, 
 
 and the payment of it muft be enforced, by 
 the French law as well as the Englifh, and 
 indeed by the laws of all civilized and com- 
 mercial nations ; and confequently, that no 
 injury if done to the creditors by obliging 
 them to fue under the French law for debts 
 contraded under the Englifh. But this rea- 
 foning is by no means juft* It is true indeed^ 
 that, concerning debts owing upon bonds, or 
 other very clear and pofitive written inftru- 
 ments, the deciiions of all laws are pretty 
 nearly the fame ; though even here the evi- 
 dence required to afcertain the execution of 
 them by the parties, will fometimes be dif-^ 
 ferent. For, fome laws require two witnelTes 
 to the proof of a fadt, others only one ; and 
 fome laws require inftrumcnts to be made in, 
 the prefence of publick, authorized, perfons, 
 fuch as notaries, in order to their Keing bind- 
 ing on the parties, whereas other laws re-, 
 quire them to be made only in the prefence 
 of honeft mep : and fome laws require ftri<5t 
 proof of a man's having done fome difhoneft 
 action, fuch as a cpnvidlion in a court of 
 juftice upon a criminal profecution, before 
 he can be rejected as a witnefs to any tranf- 
 af^oxi; whereas other laws are contented with 
 
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 a Aighter proof of bad chara£ler> as a ground 
 for fuch rejedlion. Thefe are material dif- 
 ferences between the laws of different nations; 
 even concerning the validity of clear written 
 inflruments. But the law-fuits that happen 
 between people concerned in trade, do not 
 ufually turn upon thefe inflruments, but upon 
 circumflances of a more doubtful nature. 
 Thus, for exaniple, it is fometimes neceffary 
 to prove the delivery of goods that have been 
 delivered j — - at other times, to afcertain their 
 value, when no price has been agreed on 
 between the parties, or when the goods fall 
 (hort of the quality agreed upon between 
 Chem ; — at other times, to afcertain the 
 damage received by goods in their pafTage, 
 and to determine to whom the blame of fuch 
 damage is to be afcribed, and upon whom 
 the lofs, arifing from it, fhall fall ; — at 
 Other times, to afcertain the damages arifing 
 by not delivering a certain quantity of goods, 
 p( a certain kind and value, at the time ap- 
 pointed b^ween the parties : and, a hundrqd 
 -Other inftances of the like kind might be 
 mentioned, in all which it is neceffary to de- 
 termine fome doubtful and delicate matter 
 of faft. Now, in all thefe cafes, the Englilh 
 Jaw fays, a jury of twelve impartial men 
 ihall be impannelled to determine thefe doubt- 
 ful fadls i but the French law fays, thej fhall 
 be determined by the judges only, iipon a 
 due confideration of the evidence* Surely, 
 
 this 
 
 r '» 
 
I 299 I 
 
 (his Is a material difference between the two 
 laws, with refpedt to thefe commercial litiga- 
 tions ! To illuflrate this matter by an exam- 
 ple, let us fuppofe, Mr. Thomas Walker of 
 Montreal to be engaged in a law-fuit of one 
 of the kinds juft now mentioned, with an- 
 other inhabitant of Montreal. By the Englifh 
 law, (under which the caufe of adlion aroft) 
 the matter of fad, and the meafure of the 
 damage fuftained by Mr. Walker, or his ad- 
 verfary, will be determined by a jury. But, 
 by the French law, concerning matters of 
 property and civil rights, which has been re- 
 vived by the Quebeck adl, thefe things will 
 be determined before Captain John Frafer and 
 Monfieur de Rouville, the judges of the dif- 
 tri(5l of Montreal, the former of whom has 
 been long at enmity with Mr. Walker, and 
 the latter of whom feems (by the account of 
 his behaviour, with refpe(fl to him, flated in 
 the extradt of a letter nerein before recited, 
 pages 84, 85,) to have no great affedion for 
 him. Can it then be indifferent to Mr. 
 Walker, whether he is to have the capital 
 fadls of his law-fuit determined by a jury, or 
 by Captain Frafer and Monfieur de Rouville ? 
 and is it no injury to him to deprive him by 
 an ex poft faiio law of the former method of 
 trying it, and to force him to take up with 
 the latter ? Surely, it muft be allowed to be 
 a very great one. This claufe, therefore, of 
 the late Quebeck a<^, fo far as it affe^Ss all 
 
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 Uw-fuits in which the caufe of adtion arofo 
 iince the introdu(5tion of the Englifh law into 
 the province, that is, iince the ift of Odlo- 
 bcr, 1 764, is an ex poflfaSIo law, and conft- 
 quently unjuft. And, therefore, the honour 
 and jimice of the Britifh nation require, that 
 fhe faid claufe (hould either be repealed, or, 
 in this reiped, amended. 
 
 
 
 A Remark concerning the Payment 
 of Tythes to the Roman-Catholick 
 Priefts in the Province of Que- 
 beck. 
 
 A LMOST all the writers who have un- 
 •*^ dertaken to defend the late Quebeck- 
 adt, have juftified that claufe of it which 
 gives the Romi{h priefts a legal Tight to their 
 tythes from their Roman-Catholick parifhio- 
 ners, by aflerting that the faith of the Britifli 
 nation was engaged by the capitulation and 
 ttreaty of peace to the Canadians, that this 
 favour (hould be fhewn to their religion. In 
 purfuance of this dodtrine, fome of thefe 
 gentlemen contend, that the Romilh priefts 
 in Canada had already an aftual right, in 
 point of law, to their tythes before the pafling 
 of the late Quebeck-adt, and that that ad only 
 toiifirmed that right with refped lo the Ro- 
 
 man- 
 
 v\\\ 
 
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 man-Catholick inhabitants of their refpe^ive 
 parishes, and deprived them of it with refpedt 
 to all the other inhabitants of the faid parimes. 
 But others of thefe gentlemen, who are more 
 difcreet and cautious in their affertions, ac^ 
 knowledge that the legal right of the Romifli 
 priefts to their tythes was fufpended, by Gen. 
 Amherft's anfwer to the demand of the French 
 General upon that head, till the King's plea- 
 fure (hould be declared concerning it ; and 
 that his Majefty's pleafure had never been de-* 
 clared upon this liibje<5l till the royal alTent 
 was given to the Quebeck-adt : but they 
 infift, (upon I know not what grounds) 
 that this revival of the priefts right to their 
 tythes was agreeable to the fpirit of the capi- 
 tulation and treaty of peace, and that thofc 
 high national engagements could not have 
 been honourably and liberally carried into 
 execution without it. Both thefe opinions, 
 I conceive to be erroneous ; becaufe the ca- 
 pitulation exprefsly referved the matter of 
 tythes to the king's determination, and the 
 treaty of peace, by referring to the laws of 
 England, with refpedl to the indulgence grant- 
 ed to the Romifh religion, muft, upon the 
 moft liberal conftrudlion, be fuppofed to refer 
 to, and adopt, the ftatute of the firft of queen 
 Elizabeth, for abolifhing the foreign jurif- 
 didion of the pope and eitabliftiing the fupte- 
 macy of the crown, and confequently to ex- 
 clude from a legal poffeflion of ecclefiaftical 
 
 benefices, 
 
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 beneHees, (of which the tythes make the prin- 
 cipal part^ all perfons who will not take the 
 oath of fupremicy. This fubjedl has been 
 fufficiently explained above in the Account of 
 the Proceedings, Sec, pages i8o— 199, to need 
 nothing further to be faid about it in this 
 place, in the way of reafoning or argument. 
 but one of the writers in fupport of the 
 Quebeck-atft, has had recourfe to authority, 
 inftead of rcafon, in fupport of his afTertions 
 upon the fubjed, and has quoted the opinion 
 of two learned law-officers of the crown, in 
 the year 1765, and a report made by other 
 learned gentlemen in the fami) offices, in the 
 year J 768, in proof, as he pretends, of the 
 right of the Romifh prieils at that time, to 
 demand their tythes. This opinion and this 
 report I fhall here examine, in order to (hew, 
 that they do not properly relate to the queflion 
 under conlideration. The writer, who men- 
 tions them, is the author of the pamphlet 
 intitled, ** I'hejuftice and Policy of the late a6l 
 »f parliament for making more effe&ual provijion 
 Jor the government of the province of ^ebeck^ 
 afferted and proved!* The whole pafTage re- 
 lating to this fubjed, is contained in the 29th, 
 30th, 31ft, 3 2d, 33d pages of this pamphlet, 
 and is as follows : 
 
 " But there is ftill one important conlide- 
 ration in favour of fuch a plan | as is adopted 
 by the Q^ebeck-a(ft with refpeift to the popifh 
 
 religio.i 
 
I 303 3 
 
 religion,] which would out- weigh even its 
 impolicy, if that could be proved ; which is 
 its ju/iice. By the 4th article of the treaty of 
 Paris, ratified by the king and approved by 
 parliament, it is flipulated ; ' That his Bri- 
 
 * tannick Majcfty, on his iide, agrees to grant 
 
 * the liberty of the ' catholick religion to the 
 
 * inhabitants of Canada. ,He will, confc- 
 
 * quently, give the moft precife and moft ef- 
 
 * rc6lual orders, that his new Roman catho- 
 ' lick fubjedls may profcfs the worfhip of their 
 
 * religion, according to the rites of the Ro- 
 
 * mim church, as Jar as the laws of Great- 
 
 * Britain permit* — Let us then examine how 
 fat the laws of England do or do not allow 
 the Canadians the ^ee and publick exercife 
 of their religion, and how far, under the fli- 
 pulations recited, they are entitled to the com- 
 mon rights of Britifh fubjedts in that coun- 
 try. - Fortunately for my purpofe, thefe cafes 
 have been already fhited, and the opinions of 
 as iible lawyers as this country has produced, 
 have been given upon them. In 1765, th^ 
 Lords of Trade fent the following query to 
 Sir Fletcher Norton and Sir William De Grey, 
 then attorney and follicitor-general ; * Whe- 
 
 * ther his Majefty's fubjedts, being Roman- 
 
 * catholicks, and refiding in the countries 
 
 * ceded to his Majiefty by the treaty of Paris, 
 
 * are not fubjecfl, in thofe colonies, to the 
 ' incapacities, difabilities and penalties, to 
 
 * which JRoman-catholicks in this kingdom 
 
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 * are fubjedl by the law thereof ?* To which 
 query thofc great men anfwered on the i oth 
 of Jeine, ' That they were not.' And the 
 advocate, attorney, and foUicitor general, in 
 their joint report to the privy-council upon 
 the propofitions of the board of trade, pre- 
 fented on the i8th of January 1768, ftate it 
 to be their opinion, * That the feveral adts of 
 ' parliament, which impofe difabilities and 
 
 * penalties upon the ptwlick exerciie of the 
 ' Roman catholick religion, do not extend 
 
 * to Canada j and that his Maiefty is not by 
 
 * his prerogative enabled to abolifh the dean 
 
 * and chapter of Quebeck, nor to exempt the 
 
 * proteftant inhabitants from paying tithes to the 
 
 * perfonSy legally entitled to demand them from 
 
 * the Roman^catholicksJ Supported by fuch 
 high authorities, I am furely warranted in 
 aflerting. That the Canadians are, by the fti- 
 pulations in the treaty of Paris, entitled not 
 only to the free and publick exercife of their 
 religion, but are alfo capable of and entitled 
 to all the rights of Britifli fubjedts in that 
 jjrovince. For, if the laws of England do 
 not difable or reftrain them, or make a dif- 
 tindion to their prejudice; they have cer- 
 tainly a right to the privileges and advantages 
 of thofe laws, in common with other the 
 king's fubjeds reforting to Canada ; and any 
 fubiequent law, or exertion of the king's pre- 
 jTOgative, which (hould make a diflindtion, 
 which the laws in being, when the treaty wa^ 
 
 ratlHed, 
 
[ 305 1 
 
 ratified, do not make, would be cruel, arbu* 
 trary and unjufl, and a violation of the folenin 
 flipulations of that treatv. Under what co- 
 lour or pretence, then (let mc afk the op- 
 pugner^ of the late ad of parliament), is it 
 that the Ca/iadians ought to have been de^ 
 prived of all (liare in the civil ofBces of the 
 province j that their clergy fliould be ftripped 
 of their maintenance, and the whole people 
 made fubjedt to laws enadled by an afTembly, 
 from which tiiey were to be excluded, and 
 in the eledUon of whofe members they were 
 to be deprived of all fhare ? Upon what 
 ground or pretence is it averted. That a claufe, 
 which ^prefsly takes away from the parish 
 priefls their legal title to tithes of the lands 
 held bv protcftahts, and which our great 
 crown-lawyer^ declared the king could not 
 deprive them of by his prerogative, can be 
 iaid to eflabli(h popery, and grant on!y a 
 precarious toleration to the church of Eng- 
 land ?" Thus far the aforefaid author pf 
 the %/lice and Policy, &c. :\ --^;-^ ^'^^ 
 
 { 'Cbncerning thefe opinions, 1 beg leave to 
 make the following obfervations ; ' 
 
 ".iii \ £ YL>' f xa -:;*}fi 
 
 » ■ t * > 
 
 ^Y)U>>..» % 
 
 V 
 
 'In the firfl place, the queflion proposed 
 to thefe great lawyers. Sir Fletcher Nortoa 
 and Sir William Dc Grey, in 1765, to wit, 
 " iVhether his Majeftys jubjeSis being Romaiir 
 Catholicks and refiding in the countries ceded t9 
 his Majefis in America, by the treaty of Paris, 
 
 
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 t 306 ] 
 
 rfr^ «o^ fubjeSty in thofe cohnieSy to th'e tncapa- 
 cities, difaii Ikies, and penalties, to which Roman' 
 Catholicks in this kingdom arefubjcSl by the laws 
 thereof ^'* is drawn up in a very inaccurate 
 rnanner. For it does not (late the feveral ca- 
 pitulations of Quebeck, Florida, and Gra- 
 nada, (which are the colonies in queftion,) 
 fo as to inform the learned lawyers, who werfc 
 to anfwer. it, what rights the inhabitants of 
 thofe countries were intitled to on that moft 
 important ground \ nor does it ftate the trea- 
 ty of peace, or the king's proclamation of 
 'Odober 1763, nor his Majefty's commiffions 
 of governour of thofe feveral colonies to the 
 firft governours he fent thither -, all which 
 are inftruments of a high nature, and deter- 
 mine the laws and conilitutions of the placet 
 to which they relate. The anfwers, there- 
 fore, that are given to ^ cafe fo imperfectly, 
 fo wretchedly ftated, cannot be intitled to 
 much regard, let the learning and abilities of 
 \Jie gentlemen who give them, be ever fo 
 great : becaufe they are anfwers to a'fi<ftitious 
 <:afe, which differ^ from thofe which really 
 cxift. Th® cafe which that query feems to 
 have had in view is this : *' Whether, if Ca- 
 fiada, Florida, and Granada, had been conquered 
 -without any articles of capitulation, and ceded by 
 the treaty of peace without any Jlipulation in it 
 concerning the toleration of the Roman-Catholick 
 religion i and if his Majejiy had as yet made no 
 proclamation concerning them, and bad ijfued no 
 
 * 1- comriiijljion 
 
 It} i * r f 1 
 
 I 
 
C 307 1 
 
 eommifflon to any chil governoiir of them, ereBitig 
 and con/iittiting a form of government and Jyjlem 
 oj laws for the /aid governours direSlion j whe- 
 ther, in this cafe^ there would be any general 
 maxim of the Engli/h law and government^ by 
 the operation of which the Roman-Catholick in^ 
 habitants of thofe colonies would become fubjedl to 
 the incapacities, di [abilities, and penalties to which 
 Roman-Cat hclicks . in this kingdom are fubjeSl by 
 the laws thereof** This, it is plain, is a quitd 
 different cafe from the real cafe of either Ca- 
 nada, Florida, or Granada, in the year 1765,' 
 when tbe afore-faid query was propofed to; 
 and anfwered by, the great lawyers above-^ 
 mentioned. ^ ^ - 
 
 H'i 
 
 v.. i 
 
 
 
 
 ;.,..- 
 
 'The anfwer given by thofe gentlemen to 
 the cafe propofed to them, (which I con- 
 ceive them to have underftood in the man- 
 ner I have juft now flated it, without any 
 confideration of the capitulation, treaty of 
 peace, or proclamation ; becaufe, in their 
 anfwer to it, they don't fay a word of either 
 of thofe inftruments j) is, that the Roman-Ca- 
 tholick inhabitants of the f aid colonies were not 
 Jubjcii to tbe (aid incapacities^ difabillties, and 
 penalties** Now, this anfwer is certainly true 
 with refpedt to the cafe ftated for their opi- 
 nion, fo far as it regards the penalties and dil^ 
 abilities- to which Roman-Catholicks are fubr 
 ]c(ft in England for publickly exerciling the 
 worfhip fii their religion : becaufe the fla- 
 
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 r 308 ] 
 
 tutes impofing thefe penalties do not, proprh 
 Vfgore, or by their own force and operation, 
 extend beyond the bounds of England ; and 
 confequently, unlefs they have been intro- 
 duced into Canada, and other new provinces, 
 by fome pofitive adt of his Majefty's autho- 
 rity, they cannot be in force there. But, I 
 cannot conceive this anfwer to be true with 
 reCped: to the incapacity of Roman-Catho- 
 licks to bold either ecclefiaflical benefices, or 
 temporal offices of truft and profit, arifing 
 (not from their cxercifing the worfhip of 
 their religion, but) from their refufal to take 
 the oath of fupremacy. This incapacity, I 
 apprehend, extend^ to Roman-Catholicks in 
 thofe new dominions as much as to Roman- 
 Catholicks in England itfclf j becaufe the 
 ftatute of the lil of queen Elizabeth, by 
 which all perfons, who (hall hold any fuch 
 benefices or offices, are required to take the 
 -path of fupremacy, extends exprefsly to all 
 the dominions of the crown, that then were, 
 or thereafter Jbould be, as we have feen in the 
 Account of the Proceedings, 6cc. page 186. 
 This extenfion of the flatute of fupremacy 
 to all the future dominions of the crown, 
 feems to have efcaped thefe learned gentle- 
 men, whofe attention feems to have been 
 principally direded to the flatutes inflicting 
 penalties and difabilities on popifh recufants, 
 and popiih recufants convidt, which do not, 
 |)f theipfelvcs, extend beyond England. 
 
 With 
 
t 3^9 I 
 
 - With this diftindlion between penalties and 
 difabilities, ariling from the exercife of the 
 worihip of the Romifh religion, on the one 
 hand, and an incapacity of holding either 
 eccleiiailical benefices or temporal places of 
 trull and profit, arifing from the refufal to 
 take an oath of fupremacy, on the other 
 kand, I conceive the faid opinion of thofe 
 two learned gentlemen to be alfo true in the 
 reai cafe of the province of Quebeck, as well 
 as in the inaccurate and imaginary cafe that 
 was propofed to them : becaufe neither the 
 reference to the laws of England in the fourth 
 article of the treaty of peace, In thefe words^ 
 jb jar as the law of Great-Britain ivih permit ^ 
 nor the introdudlion of the general body of 
 the Englifh laws into the province by the 
 king's proclamation of Odober 1763, and 
 by the commiflion of GoverBour Murray, and 
 the principal ordinances made in confequencc 
 of them, ought, in a fair and liberal con- 
 ftrudion, to be fuppofed to have introduced 
 into the province the penal flatutes againft 
 Roman-Catholicks, which inflidt thofe penal- 
 ties and difabilities, they being inconfiftcnt 
 with the toleration of the worfhip of the Ro- 
 mifh religion, that is granted to the Cana- 
 dians in the capitulation and treaty of peace. 
 Since, therefore, thefe penal flatutes do not, 
 by their own operation, extend to any place 
 out of England, and ought not to be fup- 
 pofed to have been introduced into the pro- 
 vince 
 
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 vincc by the fubfequcnt inflruments of go- 
 vemmc;nt relating to it, to wit, the treaty 
 of peace, the proclamation, the governour's 
 commiffion, and the provincial ordinances, 
 made in confequence 01 them, it follows that 
 they were not of force in the province in the 
 year 1765. Bnt thefe reafons do not relate 
 to the incapacity to hold ecclefiaftical be- 
 nefices or temporal places of truft and profit 
 in the province without taking the oath of 
 Supremacy, which is grounded on the uni- 
 verfal flatute above-mentioned, of the ift of 
 queen Elizabeth, and which is by no means 
 inconfiftent with the toleration of the worship 
 of the Roman catholick religion in the prOf 
 vince, any more than the like incapacity to 
 hold places of truft and profit and ecclefiafti- 
 cal benefices, without taking the facramcnt, 
 according to the ceremonies of the church of 
 England, and fubfcribing the 39 articles, is 
 inconfiftent with the toleration of the worfhip 
 of proteftant diffcntcrs here in England, w 
 
 This firft query propofed to thofe two great 
 lawyers, and their anfwer to it, fay nothing 
 about the right of the priefts in Canada to 
 their tythes. The report of the advocate, at- 
 torney, and follicitor general to the privy- 
 council upon the propofitions of the board of 
 trade, in January 1 768, as ftated in the pam- 
 phlet above-mentioned, confifts of two pro- 
 pofitions. The firft propofitioh is ii thefe 
 -^ " ' words; 
 
' . 
 
 [ 3" ]■ 
 
 , . . - . . . _ , 
 
 words ; " iTjat the fever al a&s of parliafnent 
 which impofe difabilities and penalties upon the 
 publick exercije of the Roman-Cafholick religion 
 do not extend to Canada" This I readily allow. 
 Bmit does not prove that the incapacity to fiold 
 pccleliadical benefices and temporal places of 
 trufl and profit without taking the oath of fu- 
 primacy, created by the aforefaid (latute of the 
 ifl of Queen Elizabeth, does not extend to 
 Canada. For this is not a penalty or difability 
 impofed by any adt of parliament upon the 
 publick exercife of the Roman-Catholick relV^ 
 ^ion ; but exids independently of any fuch 
 publick exercife, and is built upon quite another 
 ground, to wit, the incompleatnefs of the fide*- 
 lity, or loyalty, of thofe perfons who acknow- 
 ledge the . foreign jurifdi(4ion of the bifhop of 
 Rome, and the danger of truding them with 
 power. / 
 
 '^ The fecdnd pfopolition in this cxtradt frbni 
 that report of thefe law-officers, is in thefe words; 
 " and that his Majejiy is not by his prerogative 
 enabled to abolijh the dean and chapter of Rebeck, 
 nor to exempt the protcfiant inhabitants from pay- 
 ing tyihes to the perfons legally i?ititled to demand 
 them from the Ro7?2an'Catholicks" From thfs 
 opinion one would be led to fuppofe that thefb 
 gentlemen had not been defired to confidci', 
 whether, or noy the Romijh priefls were legalfy 
 intitled to demand the tythes from the Roman^ 
 Caiholick inhabitants of the province-, but tfcit 
 • both 
 
 
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 both they and thofe who afked their opinion^ 
 had taken it for granted that the laid prkfls 
 were intitled to do fo ; and that the only matter 
 of doubt, concerning which the opinion of thofe 
 learned gentlemen was required^ was, whetheri 
 if the prtefts were flili intitled to demand the 
 tythes, the king, by his prerogative alone, could 
 exempt the protedants from paying them. To 
 this queftion (which feems to have been the 
 only one under their confideration,) they anfwer, 
 that the king could not exempt the proteftant^ from 
 paying the priefts their tythes j which I readily 
 admit to be true. But ilill the main quedion 
 remains to be conlidered, which is, whether the 
 Romijh priefts in Canada coidd, without taking 
 the oath ofjupremacy, hold any ecclefiaftical hene^ 
 Jicesy and legally demand the payment of tythes 
 from any of the inhabitants of the province^ 
 whether Protejiants or Roman-Catholicks : and 
 this queftion feems not to have engaged the 
 attention either of the learned gentlemen who 
 made this report, or of thofe who required 
 them to make it ; but it feems rather tO have 
 been taken for granted by them all, that the 
 (sad priefts could legally demand the tythes. 
 This, it may be faid, is a proof that thofe 
 learned gentlemen were of opinion, that the 
 priefts in Canada had a right to demand their 
 tythes. And I confefs it i& ib. But I contend 
 &at it is only a hafty opinion upon a point not 
 propofed to their consideration, and not a de- 
 liberate opinion upon a point exprefsly Laid be- 
 '' . fore 
 
 *i i M \J 
 
t 3»3 1 
 
 fore them for their examination, and dated in a 
 J)roper manner. It feems to have arifen from 
 a want of attention to the articles of the cap!- 
 tulation> and the treaty of peace^ and the grand, 
 univerfal, ftatute above-mentioned, of the ift 
 of Queen Elizabeth, concerning the Royal 
 Supremacy, which is referred to in the treaty 
 of peace, and is acknowledged to be fo referred 
 to even in the late Quebeck-adl, by which fo 
 much favour is (hewn to the Roman-Catholick 
 religion. 
 
 Having thus examined this opinion and re- 
 port of the law-officers of the crown, and 
 (hewn how little ftrefs is to be laid upon them 
 with refpeft either to the right of the Romi(h 
 priefts of Canada to demand the tythes^ or to 
 the capacity of Roman-Catholicks of any kind, 
 (or of any other perfons who refufe to take 
 tfie oath of fupremacy,) to hold places of truft 
 and profit, I fhall now proceed to anfwer the 
 triumphant queftioris afked by the writer of 
 the faid pamphlet, The Juftke and Policy^ &c, 
 in the pafTage herein above cited from the faid 
 pamphlet. * 
 
 His firft queftion, or rather groupe of quet 
 tions, is in tnefe words : " Under what colour, 
 or pretence, then (let me afk the oppugners 
 of the late a<Sl of parliament) is it that the 
 Canadians ought to have been deprived of all 
 " (hare in the civil offices of the province ? — 
 
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 " that their clergy (hould be ftrlpped of their 
 *' maintenance ? — and the whole people made 
 ** fubjedt to laws enaded by an affembly, from 
 " which they were to be excluded, and in the 
 ** election of whofe members they were to be 
 " deprived of all (hare ? " ....... 
 
 Anfwer, They were to have been excluded 
 from civil offices, not as Canadians, but ai 
 Roman-Catholicks, who refufe to take the 
 oath of fupremacy ; even as Roman-Catholick 
 Englifhmen and Irishmen are excluded from 
 civil offices in England and Ireland on the 
 fame account. And this exclufion is under 
 colour, or pretence, or (to fpeak more cor- 
 redtly) by virtue, of the grand, fundamental, 
 univerfal ilatute of the ift of queen Elizabeth 
 above-mentioned, for aboli(hing all foreign 
 juriTdidtion, and edabliihing the fupremacy of 
 the crown, < , ,r. • 
 
 
 »f 
 
 Secondly, Their clergy were not to be 
 firipped of their maintenance. For they had 
 had no legal right to their tythes ever (ince 
 the furrender of the country to General Am- 
 herft in September 1760 j partly by reafbn of 
 his fufpenfion of that legal right till the 
 king's pleafure (hould be declared concerning 
 it, and the want of any declaration thereof 
 before the paffing of the late Quebeck-adt; 
 and partly by virtue of the above-mentioned 
 ftatute of the ift of queen Elizabeth, which 
 
 ■ , . requires 
 
If 3'5 1 
 
 requires that all perfons, who hold eccJc- 
 fiarlical benefices, (hall take the oath of fu* 
 prcmacy. .._;.;, : , .. . 
 
 Add to this, that the bulk of the people in 
 Canada were very well pleafed with the ex- 
 emption from the legal obligation, under which 
 they had formerly lain, of paying the priefts 
 their tythes : but that they neverthelefs, for 
 the moft part, paid them voluntarily, and that 
 few or no complaints were made againft them 
 upon this account. 
 
 Thirdly, The Englifti inhabitants always 
 propofed and wiflied, that the Roman-Ca- 
 tholicks in the province fhould be permitted, 
 equally with the proteftant inhabitants of it, 
 to vote at the dedion of members of the af- 
 fembly, though not to be eleded into itj 
 fo that the whole Canadian people would 
 not have been made fubjcd to laws enaded 
 by an aflcmbly, in the eledlion of whofe 
 members they were to be deprived of all 
 (hare, as the writer of that pamphlet fup- 
 pofcs, but to laws made by an alTembly of 
 their own chu(ing. And the Englifh inhabi- 
 tants of the province even declared themfelves 
 willing to acquiefce in an afTembly into which 
 the Roman-Catholicks (hould be admitted- to 
 fit as members, if his Majefty in his royal 
 wifdom (hould think fit to conftitute the aflem- 
 bly in that manner. 
 
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 The arore-faid writer then aflcs another 
 queftion in thefe words : " Upon what ground 
 or pretence is it afTerted that a claufe which 
 exprefsly takes away from the parifh-priefls 
 their legal right to tythes of the lands held 
 by protedants, and which our great crown- 
 lawyers declared, the king could not de- 
 prive them of by his prerogative, can be 
 faid to eflablifh popery, and grant only a 
 precarious toleration to the church of Eng- 
 « land?" . 
 
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 Anfwer, This is afleited, becaufe the Ro- 
 mifh prieds in Canada had no legal right to 
 the tythes from either the proteftants or the 
 Roman-Catholicks in the province before the 
 late Qucbeck-ad, for the reafons already men- 
 'tioned ; fo that, by that aft, they do not lofe 
 their legal right to the tythes of the proteftant 
 inhabitants) as the quenion fuppofes, but ac- 
 quire a legal right to the tythes of the Ro- 
 man-CathoUck inhabitants, which they had 
 not before enjoyed ever (ince the conqueft of the 
 province in 1 760. This revival of their legal 
 right to the tythes of their popifh pariihioners 
 is making a provifion by publick authority for 
 the teachers of the Romifli religion, which 
 may well be called, ejiablifiing that religion. 
 
 .-■ -I,-.. . .1 
 
 Before 
 
[ 3«7 1 
 
 Before I quit this fubjedt of the revival m^ 
 the legal right of the Romifh priefls to th#*ii 
 tythes by the late adt of parliament, I cann^l 
 but exprefs my furprize at the expedtations 
 which I have obferved many people to have 
 entertained, that this meafure would have given 
 great fatisfadtion to the Canadians, whereas in 
 truth it has had the contrary cfFedt of greatly 
 difpleaiing them, as thofe who knew the pro- 
 vince forefaw it would do. If, indeed, their 
 religion had been only connived at before the 
 pafTing of that adl, and the feveral laws of 
 England infliding penalties and difabilities on 
 thole perfons who fhould publickly exercife 
 it, had been fuppofed to be in force in the pro- 
 vince, and to be only fufpended, or laid afide 
 for a time, by the prudence and humanity of 
 the government of the province for the time 
 being, the changes made by the Quebeck-adt, 
 with refpedt to their religion would, probably, 
 have been confidered by them as a great im- 
 provement of their condition. But their con- 
 dition with refpedt to their religion before the 
 Quebeck-adt was fo good and fo agreeable to 
 them, that it was impodible to make it better. 
 Their religion was not connived at, but legally 
 tolerated, and that In the tnod ample manner 
 pofiible : and they knew that it was io. The 
 penal laws of England were univerfally un- 
 derilood throughout the province to have never 
 been of force in it, but to have been excepted 
 from the general introdudtion of the reit of 
 
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 the laws of England, by the toleration granted 
 them by the capitulation and treaty of peace ; 
 fo that they were under no fort of uneafinefs 
 upon that account. And, as to the dijqualifying 
 laws of England, by which papiOs were ex- 
 cluded from places of truft and profit, (which 
 were indeed underdood to ht*. of force in the 
 province,) they fo little affedled the body of 
 the Canadian people that they hardly ever 
 thought about them. They themjclves, they 
 knew, could have had no chance* or thougiit, 
 of being advanced to thofe places, if their in- 
 capacity, as Roman-Catholicks, had been re- 
 moved : and they had no fort of inclination to 
 iee their own nobleffe and other former fupe- 
 riours, advanced to them; but, on the con- 
 trary, (by all the accounts that I could ever 
 learn of their fentiments,) were much better 
 pleafed to fee thofe gentlemen continue in a 
 private flation, and to have the offices of Judges 
 and Juftices of the peace, and other ofHces of 
 power, filled by Englifhmen. Being thus in- 
 different about the difqualifying laws (which, 
 it muft be remembered, were not extended to 
 jurymen on either grand or petty juries, nor 
 to attornies, notaries, or advocates, all of whom 
 were permitted to follow their profefHons in 
 the fame manner as if they had been pro- 
 te{\ants,) I fay, being thus indifferent about 
 the difqualifying laws of England, and thus 
 free from all apprehenfion of the penal laws of 
 England, which no mortal in the province had 
 
 ever 
 
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I 3»9 1 
 
 ever fuppofcd to be in force there } — and 
 being al(o in full poflTeinon of all the churches 
 and chapels in the province, with their prieds 
 regularly officiating in them in the manner 
 uied in the time of the French government, 
 but with a liberty of paying them their tythes, 
 or letting it alone, as they thought proper ; — 
 how can it be fuppofed, that the mere change 
 of this agreeable liberty, by the late adl o£ 
 parliament, into a compullive obligation to pay 
 the tythes to their priefts, how much foever they 
 might be diiTatisfied with their behaviour, (hould 
 be confidered by them as an advantage and a 
 favour ? The prieds, indeed, and fome few 
 laymen of the upper clafTes, who are more 
 than ordinarily attached to the Romifh religion, 
 and who, looking forwards into futurity, are 
 anxioufly defirous, that it fhould continue to 
 be the prevailing, or the only, religion in the pro- 
 vince, may, perhaps, be pleafed with this claufe 
 of the late ad, which revives the compulfion upon 
 the people to pay the priefts their tythes, on 
 account of its tendency to perpetuate that reli- 
 gitn in the province. But the common run 
 of the Canadian peafantry, (who are the great 
 body of the people of the province,) do not 
 fpeculate fo deeply and fo anxljufly i and, ac- 
 cordingly, they both were, and were likely to 
 be, better pleafed with the liberty they enjoyed 
 in this refpedt before the late ad, than with the 
 compulfion under which they are again laid by 
 lliis claufe of it, I have fomctimes thought, 
 L"'-., that 
 
 
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 that this matter might be illuftrated (fince 
 people fo much miftake it as to make fuch an 
 illuftration neceflary j ) by the fuppo(ition of a 
 fimilar proceeding here in England within our 
 own view. Let us then fappofc, for a mo- 
 ment, by an effort of our imagination, that 
 our bi(hops could be brought to confent to a 
 free toleration of the worfliip of the protcftant 
 diflenters here in England. It would, in the 
 opinion of many people, do their Lordfhips 
 honour, and would certainly be a favour which 
 that loyal and refpedable body of people would 
 highly value. For they would then be in the 
 fame happy and eafy condition, with refpe(ft 
 to their religious liberty, that the Canadians 
 have been in ever (ince the fiirrender of that 
 province to the Britifh arms. A greater degree 
 of liberty could not be given them* But, let 
 us next fuppofe, that their Lordfhips, in the 
 warmth of their new kindnefs to thefe hitherto 
 obnoxious people* were to go a ftep further, 
 and to confent to a law that fhould enad, 
 that every prefbyterian layman that frequented 
 a meeting-houfe, fhould be forced to continue 
 to the minifler of it the payment of his lafl 
 annual fubfcription> whether he would or no, 
 and whether he had reafon to be fatisfied with 
 the conduct of his minifies or otherwife. I 
 imagine, that the bulk of the prefbyterian laiety 
 (whatever a few very zealous men amongft 
 them might do,) would hardly take this fecond 
 provifion as a favour, but would rather be of 
 
 opinion. 
 
 % 
 
>l: 
 
 [ 3^» ] • 
 
 Qpinion> that their Lord(hips had, in tha( in« 
 fiance, been over-zealous tor the fupport of a 
 mode of worihip which they did not them* 
 felves approve. And the iame, we may fup- 
 po(e, will be the fentiments of the generality 
 of the popifh laiety of Canada, with reipeA to 
 the compuliive claufe for the payment of tythes 
 in the late adt of parliament. And, indeed, 
 it is now faid, that fuch are the fentiments of 
 many of them. 
 
 An Account of the Sentiments of the 
 Canadians concerning the Intro-* 
 dudion of the Engliib Laws, and 
 the Trial by Jury, into the Pro-* 
 vince. 
 
 tX7HEN I reiided in the province of Quc- 
 ^^ beck, I inquired, as carefully as I could, 
 into the caufes of the gomplaints that had been 
 made in the province, concerning the ftate of 
 the laws, and the adminidration of judice ia 
 it. And I found, that the greater part of thefe 
 complaints related neither to the introduction of 
 the laws of England into the province in the room 
 of the French laws, nor to the Englifh method 
 gf trying doubtful fadts by a jury instead cf leav- 
 ing them to the decifion of the judges, but 
 almoft intirely to the expence and the delays 
 in the adminiftration of juflice tince the efla- 
 
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 [ '322 3 
 
 bllrtimerit of thft civil government in the pro- 
 vince. Thefe expences and delays have been 
 "iince remedied by an ordinance of the Go- 
 vernour and Council of the province, pafled 
 in the month of February i yjo, by which 
 the courts of Common-pleas have been dired^d 
 to fit every week in the year, (with a very 
 few intervals, at particular feafons) for the ad- 
 hiiniftration of juftice in civil matters ; and 
 the procefs of imprifonment for debt (which 
 before was ufed in all cafes where the debt 
 amounted to forty fhillings) has been reftrained 
 to the cafes of debts of twelve pounds ; and 
 the too hafty fale of the freehold lands of 
 debtors for the payment of their debts has been 
 prevented. In thefe CQprts the French lawyers 
 plead in their own manner, and for very mo- 
 derate fees; fo that thefe objedtions to the ex- 
 pence and delays of law-proceedings have been 
 removed as far as, perhaps, it is poflible to re- 
 xiiove them. As to the Englifh laws them- 
 felves, which had be^ introduced into the 
 province, they had occafioncd no inconve- 
 liiences at all in the province, fo far as they 
 had been felt and experienced by the decifions* 
 of the courts of juftice. But it muft be con- 
 fefled, that the Englifh laws of inheritance, 
 sind other Engliih laws relating to landed pro- 
 perty, would, if they had been appealed to 
 by the Canadians in oppofition to their own 
 cuftoms upon thofe fubjeds, and enforced by 
 the authority of the courts of Juftice (as, per- , 
 
 haps, 
 
 iiv 
 
M.': 
 
 'li 
 
 haps, they mud have been, if fuch matters had 
 been brought before the courts) have occa- 
 fioned great uneafinefs and confufion. This 
 the £ngli(h inhabitants of the province are fen. 
 fible of, and therefore have always declared, 
 that they wiihed the French laws upon thofe 
 fabjedts to be continued, or revived j and more 
 efpecially with refped to the children of mar- 
 riages already contraded. But I am perfuaded 
 that the revival of the French laws upon this 
 fubjedl only, (landed property) would be fuf- 
 ficient to preferve the province froin falling 
 into any confufion and difcontent, tho* the laws 
 of England fliould be introduced into it, or rather 
 continued in it, upon all other fubjedts. And I am 
 confirmed in this opinion by the letter publifhed 
 in tht Account of the Proceedings, &c. fighed Le 
 Canadien Patriote^ which, (tho* it was written 
 for the exprefs purpofe of indifpofing the Ca- 
 nadians againfl the laws of England, and per- 
 fuading them to be pleafed with the revival of 
 the French laws in all civil matters by the 
 late Quebeck a6l,) yet mentions nothing but 
 the Englifh rate of tythes, (to wit, the tenth 
 flieaf of corn,inftead of the twenty-fixth bufhell, 
 which was the tythe paid in Canada,) as mat- 
 ters that they were likely to be difpleafed with. 
 This latter law of England, about tythes, no- 
 body dreamt of introducing into the province ; 
 and the former, about inheritance by primo- 
 geniture, the Englifh declared, they were wil- 
 ling to have exprefsly excluded, and the French 
 
 S s 2 law 
 
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 [ 324 ] 
 
 i^w upon that head exprefsly revived in the 
 province, if the Canadians (hould defire it. 
 Since, therefore, this ingenious writer can find 
 nothing elfe to objedt to, in the laws of £ng« 
 land, we may fafely conclude, that thofe laws 
 might have been continued in the province 
 (with the above-mentioned exception, with 
 refped): to landed property, and leaving the 
 payment of tythes to the Tree choice of the 
 innabitants) without giving any difguO: to the 
 Canadians. 
 
 5 - - ' 
 
 , -- ^ ■ '*• . - * :■■■/.• ^ " 
 
 As to the trial by Jury, the novelty of it, 
 when it was firft introduced into the province, 
 occafioned various reflections upon it amongO: 
 the Canadians. Some of them faid, it was a 
 ftrange thing to refer the decifion of law-fuits 
 to a fet of tradefmen, or, (as fometimes was 
 the cafe,) of ignorant mechanicks, fome of 
 whom could neither write nor read, when 
 the king employed and paid learned judges 
 to decide them. Thefe perfons mifconceived 
 the province of a jury, and fuppofed that 
 they were appointed to try matters of law 
 as well as matters of fadt; though the former 
 are clearly without their jurifdidtion, and 
 cannot, even by the confent of the parties, 
 be ever referred to their detemaination, except 
 where they are fo blended with the latter, 
 (which fometimes happens) as to appear under 
 the form of the latter, that is, to appear to be 
 matters of fad:. Others of the Canadians ob* 
 Served that it was a ftrange thing, and a hard 
 
 one. 
 
,■* • 
 
 [ 3*5 1 
 
 one, to force twelve pcrfons, who really think 
 differently upon a doubtful noatter, that is re- 
 ferred to their determination, to fay, upon their 
 oaths, that they are all of the fame opinion, and 
 to continue to be (hut up together without 
 food or light, till they do fay fo* This, they 
 faid, was putting the decifion of caufes into 
 the power of thofe jurymen who had the 
 dronged conditutions, and could go longeil 
 without food. And it was alfo forcing fome 
 of them to break their oath, and commit a kind 
 of neceflary perjury, by acceding to the opi- 
 nion of their brother jurymen, when they really 
 entertained a contrary opinion. Thefe reflec- 
 tions were made upon the unanimity required 
 amongd jurymen in delivering their verdidk* 
 And, I mud confefs, I think thefe reflections 
 jud : infomuch that I am convinced that this 
 unanimity could never have been required in 
 the original inditution of juries, hut mud have 
 grown up from fome accidental and collateral 
 oaufe in the pradice of this mode of trial ; as, 
 for example, from the unwiilignefs of judges to 
 take the trouble of adding a number of frefh 
 jurymen to the fird twelve, where they could 
 not agree in their verdidl, and caufing the evi^ 
 dence, that had been belbre given in the cauie 
 before the fird twelve jurymen, to be repeated 
 over again by the witnei^ to the additional 
 jurymen, till a verdid was obtained in which 
 twelve, at lead, out of the whole number of 
 jurymen, were really unanimous. For this 
 
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 w^s the way of proceeding in this matter in 
 the days of king Henry the third, that is, 
 about the year 1260, (or about four-fcore 
 years after the firft inftitudon of juries by king 
 Henry the fecond,) as appears by the follow- 
 ing paflage in the famous lawyer, Brafton,- 
 wherc he treats of the iflue of Non diffeifivit, 
 in a writ of Novel dijfetfiny which appears to 
 have been at that time a very comrrK)n adtion. 
 Contingit etiam multotiens quod Juratores in ve^ 
 ritate dicendd funt fibi contrariiy ita quod in 
 unam declinare non pojfunt Jententiam, ^0 
 cafu, de conjilio curia, qffortietur qfjija \that isy 
 the cjfife, or jury, Jball be re^inforced^ or in^ 
 creajed,"] ita quod apponantur alii juxt^ nume* 
 rum majoris partis qua diffenfirit, vel faltem 
 qudtuor velfeXy et adjungantur aliis ; vel etiam 
 per fe ipfos, fine aliis, de veritate difcutiant et 
 judicent et per fe refpondeant : et eorum vere- 
 diHum allecabitur et tenebit, cum qui bus ipfi con-- 
 venerint. That is. It often happens that jury* 
 men> when they come to deliver their verdi&> 
 appear to be of different opinions, fo that they 
 cannot bring in an unanimous verdldt. In 
 thefe cafes, the court murt order the (aflife or) 
 jury to be [re-inforced or] incrcaled by the 
 addition of as many new members as there 
 are in the majority of the jury who already a- 
 gree in one opinion and differ from the mino- 
 rity, or at leaft by the addition of four or fix 
 new members. And thefe additional mem- 
 bers of the jury (hall join with the former jury- 
 ^r:;-'- " men 
 
I 327 1 
 
 men IB confidering and debating the matter* 
 in queftion. Or they may, if the court (hall 
 fo diretft, conlider and debate the matter by 
 themfelves, without any fuch conjunction with 
 the original jurymen, and give their anfwer, 
 concerning the matter in difpute, feparately 
 by themfelves. And the verdidl of tbofe mem- 
 bers of the original jury with whom thefe new 
 jurymen (hall agree in opinion, (hall be allowed 
 and hold good. See Bradton deLegibus & Confue* 
 tudihibusAnglia^ lib. 4. cap. i(), de Afjijdnova 
 dijfetfinay folio 185. page 2. Others of the 
 Canadians complained of the hardfhip of being 
 forced to attend upon juries, which took them 
 from their bufinefs without any profit or com- 
 penfation for their trouble. Yet, notwith- 
 ftanding thefe reflc(ftions, which were made 
 by a few perfons upon the lirft introdudlion 
 of fo new a mode of trial, it may be truly 
 faid, u{)on the whole, that the Canadians were 
 very well fatisfied with the trial- by jury, and 
 had begun to be fenfible of its advantages. For 
 in the court of Common-pleas, (which Gene- 
 ral Murray had inftituted, chiefly with a view 
 to give the Canadians fatisfadion, and in which 
 he had permitted French lawyers to plead in 
 the French language, and according to their 
 own forms and manner of pleading, and in 
 which he had permitted the parties to have 
 their caufes decided either ,vith or without a 
 jury, as they liked beft,) it was moft ufual for 
 the Canadians who were engaged in law-fuits, • 
 V ' ' cither 
 
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 cither with the Britifh inhabitants of the pro 
 vince, or with each other, whenever the mat- 
 ter in difpute was of confiderable value, (as, 
 for inftance, worth 40 or 50 pounds fterling,) 
 to defire to have it tried by a Jury. This 
 was tcftified before the Houfe of Commons at 
 the time of paffing the Quebeck bill, by Mr. 
 Edward Watts, who had refided at Quebeck 
 as principal clerk to an eminent merchant 
 there during feveral years, and Mr. Samuel 
 Morin, who had been vendue-mafter, or li- 
 cenfed auctioneer, at Quebeck, for many years : 
 and they both declared, that they had often been 
 themfelres impannelled, and had ferved as jury-* 
 men in the court of Common-pleas at Quebeck, 
 in confequence of the detire of the parties, and 
 thofe often Canadians, to have their caufe tried by 
 a jury, when they might, if they had pleafed,have 
 bad it determined by the judges only. And I well 
 remember to have hear'd mention made of many 
 remarkable caufes that were tried in that court, 
 in which the parties had deiired to have a jury. 
 And once I was concerned, as counfel, in a 
 caufe in that court, between two Canadians at 
 Montreal, which was tried before a jury, and, 
 if I remember right, before a (pecial jury : 
 for they often chofe to have a fpecial jury, 
 notwithftanding the expence that attended it. 
 And I well remember, that they ufed frequent- 
 ly in converfation to exprefs a fatisfaCtion in 
 the thought that they could have their caufes 
 determined by a jury, inftead of being left 
 
 wholly 
 
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 yfhoUy to the judges, whom (though they did 
 not fufpedt them of bribery, or other poBtive 
 di(hone(ly, they being m^n of fair characters,) 
 they would often fuppofe to be under ait undue 
 byafs and influence towards the other party, 
 either from fome connexion of friend(hfp with 
 him, or from too great a deference to tlie opi- 
 nion of fome favourite lawyer* or of fi>me other 
 peribn who was not at the bar, but who was 
 thought to be fkilled in matters of law, whon^ 
 they privately confulted, and by whom it Wa^ 
 fuppofed that they let themfelves be governed. 
 Now it appears to me, that the conduct of thofe 
 Canadians who were concerned in law-fuit{}^ and 
 their inclination to have their caufes determined 
 iy juries, inftcad of beiftg left to the fole de- 
 termination of the judges, is a much /fa-onger 
 and more refpedtable proof, that that mode of 
 trial was agreeable to the inclinations of the 
 Canadians, than the light obferyations thrown 
 out in common converfation by fuch of the 
 Canadians as were not concerned in law-fuits, 
 (^nd who confequently had not paid fo much 
 attention to the fubje^,) againd that mode of 
 trial, (or rather Againd either its imperfedions, 
 or the inconveriiences attending it,) were of 
 their diflike to it. For that may be reckoned 
 to be, upon the whole, agreeable to a people, 
 which thofe of them who have any concern- 
 with it, chufe voluntarily to do, when they 
 might, if they pleafed, avoid it, I there- 
 fore think it may fafely be affirmed, that the 
 
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 trial by jury was, ift the year 1 774, after ten 
 years experience of It, agreeable to the gene- 
 rality of the Canadian people : and 1 believe, 
 that it would be dill more agreeable to them, 
 if the perfons impannelled upon juries were to 
 be paid a fmall fum of money for their at- 
 tendance, (as, for inftance, five (hillings fterling,) 
 and if they were not required to be, or rather 
 to pretend to be, unanimous in delivering their 
 Verdijfl. And for this reafon, I think, the in- 
 Aitution of juries (hould be amended in thofe 
 two particulars in the province of Quebeck, 
 to make it more fuitable to their inclinations 
 and opinions. And I likewife think, that 
 tneafures fhould be taken to feparate the law 
 in every law-fuit, or, at lead, whenever either 
 of the parties defired it, from the fadls as care- 
 fully as pofHble, fo that the jurymen fhould 
 fee plainly that they have nothing but fads to 
 determine, and (hould alfb fee what the fads 
 were which they were required to determine : 
 by which means the Hrft objedion abovemen- 
 tioned to have been made by fome of the 
 Canadians againft the trial by jury, to wit, 
 that it takes the decifion of matters of law 
 cut of the hands of the king's learned judges, 
 and transfers it to a fet of ignorant jurymen, 
 would be intirely removed. And for this reafon I 
 have endeavoured in the following plan for the 
 adminidration of juftice iivthat province^ (which 
 was drawn up about January 1769, and prefented 
 to LordHilKborough about April 1 770, and upon 
 *i i i which 
 
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 which 1 beAowed a great deal of thought ami 
 pains,) to provide remedies for thefe inconve- 
 niencies by fuggefting, id, That juries (hould 
 be had in civil matters, whenever both or ei- 
 ther of the parties defired it j which, I believe, 
 would be in almoft every caufe of 30 or 40I. 
 value, that turned upon nice and doubtful 
 fadts; and 2dly, That they fhould confid of 
 thirteen perfons, and that the majority of them 
 fhould carry the verdidt, after they had been 
 confined together for a certain number of 
 hours, (as, for example, 24 hours) in order 
 to procure, if pofUble, a real unanimity 
 among them, grounded upon a full difcuffion 
 and deliberation upon the evidence ; and 3dly, 
 That they (hould be paid five fhillings a piece 
 for their attendance ; which money Aiould be 
 paid to them by both the parties, if they both 
 defircd to have a jury, or, if only one of the 
 parties defired to have a jury, by the party 
 which defired to have one ; and 4thly, That 
 the iffues, or contefled matters of fad, pro* 
 pofed to them for their determination, (hould 
 be /pedal iffues, that is, fimple, plain, di- 
 flind matters of fad, intirely feparated from 
 matters of law, and concerning the meaning 
 of which there could not be the leaf); doubt -, 
 and that thefe iffues fhould be drawn up by 
 the adiflance and direction of the judges, and 
 grounded on interrogatories exhibited to the 
 parties by their order, with a view to difcover 
 precifely in what points of fadt the parties 
 
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 agreed, and in what other points they differed 
 from each other. How hr this laft objed of 
 procuring the iflues, or fads, to be (latod fpe*- 
 cftlly under the dlredion of the judges, is at- 
 tainable in practice, I will not pretend to fay. 
 But, I am lure, it is worth endeavouring at, 
 not only for the reaibn already fuggefted, to 
 wit, that juries may be confined to the dif- 
 charge of their proper duty, (which is the de* 
 cifion of mere matters of fai^,) without en- 
 croaching on the province of the judges and 
 determining points of law, but alfo to avoid 
 the great oblcurity and confuHon which has 
 hitherto prevailed in the pleadings of the cauies 
 in the courts of Common-pleas in the pro- 
 vince, which is fometimes (6 great as to render 
 them altogether unintelligible. This requires 
 farther explanation. i: • 
 
 Ir 
 
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 " For the fake of fuch of my readers as are 
 not acquainted with the law, I fhall obferve, 
 that by the word, pleadings, on this occafion 
 they are* not to underftand the fpeeches made 
 by the advocates, or counfel, at the bar before 
 the judges in fupport ot their clients cauies, 
 but the altercation carried on by the adverfe 
 parties in writing, containing, firft. The plaint, 
 or demand, or declaration of the plaintiff; (for it is 
 called by all thefe different names on different 
 occafions,) in which the plaindfF fets forth the 
 whole ground of his : dtion, and fhews wherein 
 he ha$ been injured by the defendant, and 
 ' • ": what 
 
) •'. 
 
 [ 333 1 
 
 Mfhat redrefs he dcHres to obtain from the 
 court ) and 2dly, The anfwer of the defendant 
 to the plaintiff's claim, or complaint, which is 
 called in the Englifh law the defendant's Piea^ 
 and in the French law la riponfe \ and, 3dly, 
 The reply of the plaintiflf to the defendanrs 
 plea, or anfwer, which is called in the £ngli(h 
 law the plaintiff's replication \ and 4thly, The 
 defendant's fecond anfwer, or reply to the 
 plaintiffs reply ;' which fecond anfwer is called 
 in the Englifh law the defendant's Rejoinder to 
 the replication of the plaintiff. And thus, the 
 altercation, or dialogue, between the adverfe 
 parties is carried on till it is brought to fome 
 one, or more, fhort, diflindl, propolitions, either 
 of law or fadl, which the one party pofitively 
 afHrms, and the other as pofitively denies. 
 Thefe fhort points, to which the difpute is 
 thus ultimately brought, are, in the Englifh 
 law, called IJJiiei : if they are points of law, 
 they are called ij^ues in law $ if they are points 
 of fadt, they are called ijfiies infaB^ or fimply, 
 ijfuesy (for the word iJfuUy when ufed by itfelf, 
 always means ijjues in faSi : ) and the reafon,- 
 why thefe fhort points are called ijfuesy (or in 
 Latin, exitus,) is becaufe they come, or arife, 
 out of (in Latin, exeunt,) or refult from the 
 mutual allegations of the parties in oppofition 
 to each other. In this flage of a laW^iuit, the 
 Englifh law directs the judges of the court 
 betore whom it is brought, if the ijues joined 
 by the parties, are ij/ues in JaB, to order, the 
 
 fheriff 
 
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 [ 334 ] 
 
 fherifF. of the county to fummon a jary of 
 twelve free» honed, and impartial men to come 
 and determine them upon their oaths ; but, if 
 the ilTues, joined by the parties^ are mere mat- 
 ters of law, it directs the judges to confider 
 them carefully and maturely by themfelves, 
 without a jury, and, after fuch due delibera- 
 tion, to give judgement concerning them. This 
 is the cburfe of the Englifh law. The French 
 lav^ diredts, diat both iffues in fadt and iffues 
 in law (hail be determined by the judges only. 
 
 Now it is evidently nece(&ry to the right un- 
 derftanding the nature and merits of the fuits 
 that are contefted in courts of juftice, and con- 
 fequently to the jufl determination c^,them, 
 that thefe pleadings, as they are called, (hould 
 be carried on in a clear and methodical man- 
 ner ; and this, whether the law, by which the 
 caufe is to be tried, be the Englifh law, or 
 the French law, or any other law whatfoever. 
 But experience has (hewn, that, to draw up 
 thefe pleadings, or ilates of the pretenfions of 
 the contending parties, in a clear and proper 
 manner,isa matterofconiiderable difficulty, and 
 requires more than a common ihare of precilion 
 in relating fadts, and accuracy in reafoning upon 
 them : infomuch that many perfons, who can 
 (peak fluently and . elegantly upon a fubjedt, 
 and thereby acquit themfelves plaufibly as ad- 
 vocates at the bar, are incapable of conducing 
 this part of their clients bufinefs. This re- 
 *.;<,.' mark 
 
t 335 ] 
 
 mark I believe to be true in all countries, and^ 
 according to all fyflems of law : becaufe na^ 
 ture has not endowed every man with a clear 
 and logical linderilanding ; which is a qualifi* 
 cation essentially neceilary to the management 
 of this buiinefs. But it is more efpecially true 
 in the Engliih law, where the art of drawing 
 thefe pleadings is reduced to certain technical 
 rules, and is diftinguifhed as a particular fcience,r 
 or art, called Special Pleadings which forms a 
 feparate branch of the ftudy and practice of the 
 law, and is known only to a very few lawyers. 
 It is, indeed, to be lamented that it is not 
 any where explained in a full and clear man- 
 ner, fo as to be eafily attainable by all thofa 
 perlbns who have by nature a capacity to un- 
 derhand it, and are willing, to beftow a mo-- 
 derate degree of application in acquiring the 
 knowledge of it ; becaufe of its great utility 
 in thecondudt of law-bufinefs. . But the fadt 
 is as I have dated it: this fcience is, in the 
 Englifti law, a myftery known to but a few 
 perfons. It is, therefore, almoft certain, that, 
 the English lawyers, who are likely to go and 
 fettle in the province of Quebeck, if the Eng- 
 lifh law were to be thoroughly eftabliflied 
 there, would be fome of tholis who ar€ un-- 
 acquainted with this branch of law-learning-; 
 becaufe none of the more learned and accoda-' 
 plifhed Englifh lawyers, that underftand this: 
 ufeful part of the law, can ever be fuppofed to > 
 be willing to leave the lucrative practice which , 
 « , ^ they 
 
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 r 336 1 
 
 they will 'probably obtain in England, or their 
 reafonable hopes of obtaining fuch pradtice, to go 
 and pradiice the law in fo poor a country as that 
 province; And, if the English lawyers, that 
 will fettle in the province of Quebeck, cannot 
 be fuppofed to be likely to underftand this 
 &ience, much le($ can it be imagined that 
 the French attornies and advocates, who pradlice 
 the law in that province, (and who ought, for 
 the fatssfadtion of the Canadians, to be per- 
 mitted to continne to pradice the law there,) 
 will ever be able to acquire the knowledge of 
 18. It may, therefore, be concluded, that the 
 pleadings in the law-fuics in the province of 
 Quebeck will never be drawn ap fkilfiilly ac- 
 cording to the rules of fpecial pleading obfervci 
 in the Englifh law. litjw »*» i^a^c l;^; 
 
 ^' But, perhaps, it mav be thought, thst an 
 imperfect obiervation of thofe rules may fuffice 
 for the condudt of bufinefs in that province 
 in a manner that may anfwer the main piir- 
 pofeft of judke tolerably well : and that in that 
 imperfeSi degree the moft ordinary lawyers arc ca- 
 pable of obferving tb^ rules of pleading, by 
 following the precedents of declarations, and 
 pleas, and replications, and other pleadings, 
 fet forth in printed books of Entries, iiich as 
 Lilly's Entries, or Mallory's Entries, and the 
 like^ I can hardly affent to this opinbn, be- 
 cauie I conceive it to be impoiHble in many 
 cafe9 ibr a pe^fon, who does not underftand 
 
 the 
 
; i; 
 
 [ 337 1 
 
 the fubjedl, t6 make a right ufe of thofe pre- 
 cedents, and to avoid, every now and then, 
 miftaking one cafe for another, that bears fome 
 refemblance to the former, but yet differs from it 
 in fome effential circumdance. But, if we (hould 
 admit, that this imperfedt degree of know* 
 ledge in the art of pleading would be fufHcient 
 for common purpofes, and to prevent great 
 confufion in law-bu(inefs, yet even this degree 
 of knowledge of it is unattainable by the French 
 lawyers in* the province, (by whom great part 
 of the l?'.v-bufinefs in it is tranfadled,) or, at 
 lead, is not likely to be attained by them : fo 
 that one may conclude, upon the whole, that 
 it is impoiUble that the principal part of the 
 law-bufinefs of the province can be carried on 
 according to the forms and rules of pleading 
 obfervcd in the Englifh law, even in an imper- 
 fedt degree. 
 
 And it has appeared in fa6t, that, even in 
 the court of King'<>-bench in the province, 
 (which before the late Quebeck-ad was intirely 
 governed by the rules of the Englifh law, in 
 the forms and manner of pleading as well as 
 in the decifion of the points in litigation,) the 
 fules of good pleading were very imperfedtly 
 obferved, by reafon of want of fkill in the 
 Englifh lawyers who pradifed in it, (as I am 
 fure they will all readily allow) ; and con(i-» 
 derable difficulties and perplexities have oc- 
 curred in caufes whenever the defendants 
 
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 I 338 1 
 
 counfel thought fit to make a fpecial plea to 
 the plaintifTs declaration : and the record, or 
 the whole colledtion of the pleadings, has, on 
 thefe occafions, been rather obfcure and diffi- 
 cult to underftand; though in the common 
 run of caufes, where the general iflue has been 
 pleaded, the pleadings in this court have been, 
 for the moft part, tolerably clear and intelli- 
 gible. But this court, (though it was the 
 iupream court of the province, and was held 
 before Mr. Hey, the chief Juftice of the pro- 
 vince, a man of confefTedly fuperiour know- 
 ledge and abilities to any of the other judges 
 in it, or to all of them put together,) tranf- 
 aded very little of the civil bufinefs of the 
 province. This was not owing to any want of 
 Confidence in the chief Juftice, or in the Eng- 
 li(h lawyers who pradifed in that court, but 
 chiefly to the cuftom, which was obferved in 
 it, of drawing up all the pleadings, in the fuits 
 that were brought in it, in the Englifh language, 
 and of fpeaking at the bar to the merits of 
 them likewife in the fame language, and partly 
 to the greater expence which attended the 
 profecution of caufes in this court, than in the 
 courts of Common-pleas. The FrencJa clients 
 were glad to be able to hear their caufes (poke 
 to in open court in their own language ; and 
 fome of them were alfo defirous of feeing and* 
 underftanding the written pleadings in them, 
 before they were delivered in to the court: 
 and many of them were, for feveral years after 
 
 the 
 
 
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 i 
 
 [ 339 ] 
 
 ••'»,■ ■ ■ • 
 
 the conqueft of the province, delirous of em- 
 ploying French lawyers in the management of 
 them ; though of late years feveral of the 
 French inhabitants of Quebeck have thought 
 fit very often to employ two Englifh lawyers 
 of good charader, Mr. Kneller, (the prefent 
 attorney-general of the province,) and Mr. 
 Williams, in their caufes in the court of Com- 
 mon-pleas there, even in preference to their 
 own countrymen. And both Englifh and 
 French clients were glad to have their caufes 
 managed at as fmall an expence as polfible, 
 and on that ground gave the courts of Com- 
 mon-pleas in the province a preference to the 
 court of King's-bench. Add to this, that ever 
 lince the ordinance already mentioned to have 
 been publifhed in the month of February, 
 or March, 1770, for further regulating the 
 proceedings of the courts of Juftice, the courts 
 of Common-pleas for the two diftridls of Que- 
 beck and Montreal have fat every week in the 
 year, (with a few exceptions,) whereas the 
 court of King's-bench has fat only (as it did 
 before that ordinance,) during three terms in 
 the year at Quebeck, and during two terms 
 in the year at Montreal. This greater fre- 
 quency of the feflions of the courts of Com- 
 mon-pleas in the province, and the expeditious 
 attainment of the ends of the fuits brought in 
 them, which was the necefTary confequence 
 of it, concurred with the other caufes above- 
 mentioned, in making thofe courts become 
 
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 I 340 1 
 
 the ordinary courts for civil bufkiefs in the 
 province, to the almoft total negled of the 
 court of King's-bcnch of late years, with rc- 
 fpedt to that branch of its jurifdidtion, except 
 only upon appeals from declfions in the courts 
 of Common-pleas, which were dill permitted 
 to be made to it, after the faid ordinance of 
 February 1770, as well as before it. The 
 courts of Common-pleas, therefore, have been 
 the efficient courts in the province for the de- 
 ciiion of civil fuits in it, for many years pafl : 
 and confequently the manner of drawing the 
 pleadings in thefe courts, and not that of draw- 
 ing thofe in the court of King's-bench in the 
 province, (which is fo little refortcd to) is 
 what we ought to confider as of moft im- 
 portance to the province, and moft worthy of 
 being brought to fome tolerable degree of or- 
 der and precifion. Now, if it had been found 
 by experience, that the pleadings in thefe 
 courts of Common-pleas were tolerably clear 
 and precife, fo that the Judges who tried the 
 caufes, and alfo the chief Juftice, or other 
 Judges, who were to decide the appeals from 
 them, could clearly underfland what was the 
 matter in difpute, the ends of law and juftice 
 would be obtained, and it would be a matter 
 of perfed indifference, whether the form and 
 manner of drawing thefe pleadings agreed with 
 that obferved in the Englifli law, or with 
 that obferved in the French law, or in anv 
 other law, or not. But the fad is well known 
 
 to 
 
y 
 
 i 34i ] 
 
 to be otherwife, by all thofe who are conver* 
 r^nt with the law-procee4ing$ in that province. 
 For the pleadings in the courts of Common«- 
 pleas, at Jeafl at Quebed?, (for 1 know lefs o£ 
 thofe at Montreal,) are of en drawn up in fo 
 wild, and irregular, and confufed ^ m;u\Qer> 
 ^hat it is impoflible to find out from them, 
 what is the matter really in difpute between 
 the parties, and upon what grounds they fup- 
 port their refpedive claims. This has been a 
 misfortune univerfally obferved and lamented, 
 and which all perfons, converfant with law- 
 proceedings, have wiflied to fee either removed 
 or lefTened, if any method of doing (b can be 
 contrived. I fpeak with hefitation upon this 
 fubjedt, becaufe it is a matter of nicety and 
 difficulty, and by no means eafy to be remedied., 
 Now, it is principally with a view to remedy 
 this inconvenience that I have propofed, in the 
 following plan for the adminiflration of juftice 
 in that province, that the Judges, after perufing 
 the plaindfF's declaration, and the defendant's 
 plea, fhould exhibit interrogatories to them,^ 
 concerning the fadts which fhould appear tQ 
 them (the Judges) to be doubtfully or ob- 
 fcurely Aated in the pleadings, and which they 
 fhould judge to be material to the deciiion of 
 the caule. This appeared to me the (impleft and 
 eafiefl method j — I might indeed fay, the only 
 one, that was pradlicable in that country j — 
 of bringing the matters in difpute between the 
 parties fully and clearly before the court, fo 
 that the fates, in which they agreed, fliould 
 
 be 
 
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 i i42 ] 
 
 lie clearly didinguidied from thofe in which 
 they differed, and the grounds upon which 
 they built their reipedive pretentions might 
 be made apparent. And at the fame time it 
 Knuft be obferved, that the referring to the de- 
 termination of the jury the truth of thofe fe- 
 veral didindb fadts, in which the parties, in 
 their anfwers to the faid interrogatories, were 
 found to contradict each other, would be at- 
 tended with this further advantage, that it 
 would enable the jury to know diftindlly what 
 fadts they were required to afcertain, and would 
 prevent them from going aftray from their 
 proper bufinefs, either to inquire into unne- 
 cef&ry, or immaterial fadts, or to determine 
 points of law. Thefe were fome of the prin- 
 cipal objects I had in view in drawing up the 
 faid plan for the adminiflration of juftice in 
 the faid province. As to the number of courts in 
 the faid province, the extent of their refpedtive 
 jurifdidtions, and the provifion that they fhould^ 
 hold their feffions every week in the year, with 
 only a few neceifary exceptions; all thefe particu- 
 lars were fettled after the model of the courts of 
 juftice that were eflablifhed in the province in 
 the time of the French government, which in 
 all thofe refpedbs were, as I believe, extreamly 
 well fuited to the purpofes of adminidring 
 juftice in it with convenience and difpatch, 
 and fitted to give fatisfadlion to the Canadians. 
 This plan for the adminiftration of Juflice in 
 that province, is as follows : 
 
 ' ' Plan 
 
 
[ 343 1 
 
 Plan of a convenient Method of ad- 
 ; miniftring Juftice in the Province 
 * of Quebeck in North-America. . 
 
 I 
 
 T is conceived that the following method of 
 adminidring juftice would be that which 
 would bed fuit the circumflances of the pro^ 
 vince of Quebeck and the temper of its inha- 
 bitants, and be upon the whole the fitted of 
 any to be carried into execution there, be- 
 ing nearly the fame with that which took 
 place there in the time of the French go- 
 vernment, f : ■' 
 
 
 In the firft place, it would be proper to The pro- 
 divide the province again into the three diftridtsHJouW b« 
 of Quebeck, Three Rivers, and Montreal, as«^»vided 
 in the time of the French government ; and diiwaSfi 
 to call them (hires, which is the name of the^'''^'- 
 didrids into which England is divided]; and Each (hire 
 to appoint a feparate minifterial, or executive, f^veli 
 officer of juftice to each of thefc (hires orff parage 
 diftridts, to be called, as in England, the (lieriflf^"'^' 
 of the (hire, inftead of having an officer of 
 this kind, called a provoft-mar(hal, for the 
 whole province, as is now the cafe. 
 
 \ 
 
 In each of thefe (hires, or diftridts, there ^,^f,*„';',^ 
 (hould be a feparate royal court of judicature, of judica- 
 
 which (hpuld hold its feffion in the chief, orb'/*^creftcd 
 
 rather*" ^^^ 
 
 ,*:•« diUMCt, or 
 
 V' 
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 whieh 
 
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 ihould 
 
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 coniil of 
 
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 one Eng. 
 
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 lifti judge 
 
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 • [ 344 1 
 
 ' ■■ , - • ,, ... 
 
 rather the only town, in the diftriifl ; for the 
 towns of Qucbcck, Three Rivers, and Mont- 
 real are the only towns in the province. Thefe 
 courts (hould confift of one English judge, to 
 be appointed by his Majefly, and a Canadian 
 .afliftant, or affeflbr, to be named by the go- 
 vernour of the province. Thefe courts ihould 
 have full power to hear and determine all mat- 
 ters, botn criminal and civil, arifing within 
 their refpedtive jurifdidtions, juft as the chief 
 judice of the province is impowcred to do upon 
 the prefent eilablifhment throughout the whole 
 province. The Englifh judges (hould be bar- 
 riders at law of at lead five years ftanding 
 at the bar, and at lead, thirty years of age; 
 and they {hould be fuch as, befides their 
 ikill and knowledge in the law, had a com- 
 petent knowledge of the French language. 
 This would be almod a neceffary qualification, 
 in order that they might be able to underftand 
 the evidence given by the French witneffes 
 who would fo often be examined before them. 
 And to enable them to do this the more readily, 
 and like wife to comprehend the nature and 
 extent of fuch of the anticnt laws and cuftoms 
 of the country as his Majefty (hall think fit to 
 revive or continue, would be the principal 
 ufe of giving them the aflefrors above-men- 
 tioned, who (hould be Canadian lawyers or 
 notaries of good character and ability. But 
 thefe Canadian a(re(rors (hould only adift them 
 with their opinbn and advice, without having 
 ' any 
 
age; 
 
 their 
 
 com- 
 guagc. 
 ::ation, 
 rfland 
 tncflcs 
 them, 
 adily, 
 t and 
 ftoms 
 fit to 
 icipai 
 tnen- 
 •s or 
 
 But 
 ihem 
 iving 
 
 any 
 
 I 345 1 
 
 any vote or authority to decide the caufcs in 
 conjundlion with the judges j hut the whole 
 power of finally deciding them (hould be veiled 
 iblcly in the EngH(h judges, t- r.r. . !, ,j 
 
 This employment of the Canadian lawyers, 
 even in this fubordinate capacity of afliftants 
 and advifers, would be thought a Very gra- 
 cious indulgence in his Miijefty by all his Ma- 
 jefty's new Canadian fubjedts: and many of 
 them, to whom it has been mentioned, have 
 expreflcd an intire approbation of it. If they 
 were to have an equal degree of authority with 
 the EngliQi judges in the final decifion of 
 caufes, they would be much more likely thai> 
 the EngliQi judges to abufe it, by reafon of 
 their connections in the country, and the 
 enmities and partialities that thofe connexions ' 
 
 would give birth to : and, befides this, there 
 are other reafons which would make it inex- 
 pedient for his Majefty to truft his new Ro- 
 man CathoUck fubjeds, fo lately brought un^ 
 der this allegiance, with fp greap a degree of 
 
 J»«'er., .:,,:.;„...„.;, ,.3,,,,, .4.;:. .■■.,■. 
 
 ^ Thefe judges and their affiftants fliould hdldThefe 
 their courts every week throughout the year,Ji't cvery^ 
 excepting one month at Chriftmas, one weekweek. 
 at Eafter, and another at Whitfun-tide, which 
 are the three gre^teft feafons for holydays ob- 
 ferved by Chriftians. And they fhould fit on 
 the Tuefday or Wednefday of every week, to 
 the end that the contending parties and their 
 
 X X witnefles 
 
 ' ■ 
 
 I 
 
 I '.^ 
 
 \ \ 
 
 
 ■w. 
 

 
 
 
 
 Kit'' r i 
 
 
 lin 1 
 
 lia , 
 
 [ 346 ] 
 
 witncfles might not be under the neccflity of 
 travelling on Sundays to attend them. ^ 
 
 If the ufe of juries fhould be thought fit 
 to be continued in criminal profecutions, they 
 fhould be fummoned only once a month, that 
 the inhabitants might not be too much diverted 
 from the care of their private concerns by their 
 attendance on the courts in that capacity. But 
 all thofe parts of the criminal profecutions that 
 do not require the attendance of juries, and, 
 if the ufe of juries was laid afide, the whole 
 of thofe proceedings Ihould be carried on in 
 the weekly fefTions, as well as the civil bud- 
 nefs of the didirids. 
 
 Method of The method of proceeding in thefe courts 
 fn°ctvfr ^^ ^'^^' adions might be as follows. The 
 aftions. plaintiff might bring a declaration, or plaint, 
 in writing into court (which might be either 
 in the French language or the Englifh, as he 
 thought proper) praying the procefs of the 
 court to caufe the defendant to be fummoned 
 to anfwer it, but not to be arretted by his body. 
 This plaint (liould be read to the judge in open 
 court, in order that he ihould determine whe- 
 ther or no it contained a good caufe of adlion : 
 and till he approved it, no fummons fhould be 
 iffued upon it. If he approved it, he fhould 
 order it to be filed amongft the records of the 
 court by the clerk [or regifter of the court, and 
 «niould at the fame time award a fummons to 
 . - . . ■ * y ■ he 
 
 /I... 
 
 , •'I- 
 
:/nty of 
 
 n 
 
 ught fit 
 s, they 
 th, that 
 Averted 
 3y their 
 
 . But 
 )ns that 
 ?s, and, 
 
 whole 
 1 on in 
 'i\ bufi- 
 
 ■ > .••. 
 
 courts 
 The 
 
 plaint, 
 ! either 
 
 as he 
 of the 
 imoned 
 s body, 
 in open 
 e whe- 
 adion : 
 )uld be 
 fliould 
 of the 
 rt, and 
 ions to 
 be 
 
 t 347 ] 
 
 ' \j. 
 
 be fent to'the defendant to come and anfwcr 
 the plaintiff's demand at fiich future day as 
 the judge fhould therein ippoint. If he did 
 not approve it, or think it contained a good 
 caufe of adlion, and the plaintiff (hould nerer- 
 thelefs perfift in his dclire of bringing an a(51ion, 
 and fhould think, in oppofition to the judge's 
 opinion, that he had a good caufe of adlion, 
 he fhould have a right to have his declaration 
 filed arnongfl the records of the court, toge- 
 ther with the judge's judgement that it did not 
 contain a good caufe of adtion ; to the end that 
 he might appeal from the faid judgement to the 
 court of the Governour and council of the faid 
 province. And if he obtained a reverfal of the 
 faid judgement in that court, he might after- 
 wards go on with his fuit in the court below. 
 
 r If the defendant negle<5led to appear in court 
 at the time appointed by the fummons, with- 
 out any good reafon for luch negledl, he fhould 
 be condemned to pay to the plaintiff a mode- 
 rate fum of money, to be afcertained by the 
 judge, and which fhould not exceed the fum 
 of five fhillings flerling, as a compenfation to 
 tlie plaintiff for his expence and trouble in at- 
 tending the court, at the time appointed by 
 the faid fummons, to po purpofe ; and he 
 fliould be fummoned a fecond time, to come 
 and anlwer the plaintiff's demand at another 
 day, to be appointed by the judge for that pur- 
 pofe : and if he then alfo negledted to co;ne, 
 judgement Ihjuld be given againfthimby ijU ilt. 
 
 X X 2 When 
 
 '•:;(■' 
 
 U 
 
 
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 il 
 
 ''a '»•.■ "' ' 
 
 ^ii'"' 
 
 •t',- 
 
F',« 
 
 
 
 
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 [• / ,■' 
 
 
 ■/f 
 
 
 . . . i-i^ ■-. . i 
 
 ■*■ '1 
 
 H'-' 
 
 I 348 ] 
 
 When- the defendant appeared, he fhould 
 make his anfwer to the plaint of the plaintiiF 
 in writing, and either in the French or Eng* 
 llfh language, as he thought proper : and his 
 anfwer ihould of courfe, and without the 
 judge's approbation of it, be filed amongft. 
 the records of the court. And then (as it is 
 not probable that the plaint and anfwer would 
 he drawn fo ably, in this country of dulnefs 
 and ignorance, as to affirm and deny clearly 
 a|id pointedly the feveral fa(ft:s mentioned in 
 them) the judge himfelf fhould interrogate 
 the parties concerning thofe fadls (which were 
 material to the dccifion of the caufe,) in their 
 account of which the contending parties 
 feemed to differ : and thefe interrogatories 
 made to the contending parties, and the 
 anfwers made to them by the parties, ihould 
 Theiflues,|3g reduced to writing by the judge, or by the 
 which the clcrk of the court, from words dictated to 
 ing parlfcs^^"^ by the judge. And when the judge had 
 difagrced, thus found in what point of fadV, maierial 
 dlawp up tP the decifion of the caufe, the parties dif* 
 in writing fered, he fhould himfelf flate thefe fadls in 
 iudgt.^ writing, and declare to the parties, that it 
 was necefTary for him to be informed by pro- 
 per teflimony whether they were true or falfe^ 
 and fhould thereupon afk the parties whether 
 both, or either of them, defired that he fhould 
 inquire into the truth of thofe fads by means 
 pf a jury, or by examining wit^iefTeS;, or other 
 proofs, himfelf^ : ' - • -; 
 
 . ^ ' ' ■ ' If 
 
 .• <- V 1 
 
fhoul4 
 ►laintiiF 
 r EngT- 
 md his 
 ut the 
 [nongft. 
 as it is 
 would 
 iulnefs 
 clearly 
 ned in 
 rrogate 
 h were 
 n their 
 parties 
 ;atories 
 id the 
 Ihould 
 by the 
 ted to 
 ge ha(} 
 laierial 
 es dif* 
 i(fts in 
 :hat it 
 y pro- 
 rfalfe^ 
 hether 
 fhould 
 means 
 ■ other 
 
 If 
 
 [ 349 ] 
 
 If both, or either of the parties defired ^o^^f^^^ 
 have a jury, a jury fhould be fummoned tomonedtt^ 
 attend atfuch following fcffion of the court as ;|f*i^JgJof 
 the judge fhould appoint. This jury fhould the parties, 
 be paid for their attendance by tne party at Joufj j^ 
 whofe requefl they were fummoned ; and if paid for 
 both parties- defired to have a jury, then JcndaicV 
 equally by both parties. They fhould re- 
 ceive about five fhillings Sterling a man. For 
 at prefent it is a fubjed of complaint among 
 the Canadians that they are taken from their 
 necefTary occupations to attend upon juriet 
 (which is by no means an agreeable employ- 
 ment to them) without any conlideration for 
 it ; and this, if it happened every week, and 
 without any compenfation, would be thought 
 (and perhaps juftly) a very heavy burthen. 
 But for a reward of five fhillings they will 
 ferve with great alacrity. r * 
 
 - Thefe juries fhould be appointed in, pear- Manner of 
 ly, the fame manner as fpecial juries are in fn|°{J^ 
 England : that is, the fherifF fhould prefenti«"cs. 
 to the court a lifl of four times as many per- 
 fons qualified to be jurymen as were necefTa- 
 ry to conf^itute a jury ; that is, if a jury was 
 to confifl of twelve men, a lifl of forty- eight 
 perfons fo qualified ; and then each party 
 fhould flrike out the names of twelve perfons 
 from the faid lifl 5 after which the names of 
 the twenty-four remaining jurymen fhould t).e 
 fet down in a new lifl in the following or- 
 der; 
 
 
 
 til 
 
 IS 
 
 .i ! 
 
 • > 
 
 1H 
 
 #•' 
 
 : 1 
 1 
 
 "4 
 
 i 
 f 
 
 ii 
 
 V ■.{ 
 
 (. i- 
 

 m 
 
 ri<:'-.M 
 
 
 ,»> 
 
 ^V-i/-, ■ 
 
 
 l'''''t'; '^ 
 
 if" r 
 
 I* 35° I 
 
 dcr ; to wit, firft one at the nomination of 
 the plaintiff, then one at the nomination of 
 the defendant ; and fo on ; each of the par- 
 ties alternately nominating one, till the whole 
 number was exhaufted. And thefe perfons 
 (whofe names were thus fet down in this new 
 lift in the aforefaid order, and who would be 
 enough in number to conftitute two juries) 
 fhould all be fummoned to attend the court 
 on the day appointed for the trial of the caufe, 
 and fhould be called over in the court in the 
 order in which their names were fet down 
 in this new lift. And if there appeared fix 
 or more of the twelve nominated by each 
 of the parties, the firft fix of thofe nomi- 
 nated by the plaintiff that appeared when 
 their names were called over, and the firft 
 fix of thofe nominated by the defendant that 
 appeared at the fame time, fhould conftitute 
 the jury to try the caufe. If fewer than fix 
 of thofe nominated by one of the parties, as, 
 for inftance, only three, appeared in the court 
 when the names in the jury-lift were called 
 over, thofe three, or other number of per- 
 fons fmaller than fix, fhould make a part of 
 the jury which fhould try the caufe ; and the 
 other nine, or other nuteiber requifite to 
 make a full jury, fhould be the firft nine, or 
 other fuch requifite number, of the twelve 
 nominated by the other party that appeared 
 upon this occafion. The reafbn of fummon- 
 ing twice as m.\ny perfons as would be fuf- 
 
 ficijnt 
 
 fl 
 tl 
 
 tl 
 
•I 
 
 1" 
 
 tiou of 
 tion of 
 e par- 
 wnole 
 >erfons 
 is new 
 mid be 
 juries) 
 ! court 
 ; caufe, 
 
 in the 
 
 down 
 
 red fix 
 
 "f each 
 
 nomi- 
 
 when 
 le iirll 
 [it that 
 iftitutc 
 lan fix 
 es, as, 
 I court 
 : called 
 )f per- 
 part of 
 nd the 
 fite to 
 ne, or 
 twelve 
 peared 
 imon- 
 3e fuf- 
 
 ficijnt 
 
 t 351 1 
 
 ficient to compofe a jury is to provide agaiilft 
 the non-attendance of feveral of them. If 
 it was found by experience that the perfons 
 fummoned ufually attended very pundually, 
 it might be 1 efficient to fummon only four- 
 teen or fifteen, or perhaps only twelve, or 
 the very number neceflary to conftitute a jury. 
 In this laft cafe the original lift given in by 
 the fheriff fhould conlilt of only twenty-four 
 names j out of which each of the parties 
 fhould ftrike fix names, and the remaining 
 twelve perfons fhould be fummoned to try 
 the caufe. By this method of appointing a 
 jury the difagreeable and captious practice of 
 challenging jurymen would be avoided, which 
 is apt to give rife to animolities between the 
 perfons challenged and the parties who ob- 
 jedl to them. ** - *^ 
 
 •"i 
 
 . < 
 
 1 1 
 
 
 
 tj'-j. 
 
 i 
 
 •^ i 
 
 ^?i.. 
 
 ii 
 
 jt 
 
 mm fa 
 ry tiic 
 
 Of the jurymen fo chofen a majority fliould a majnri 
 have a right to determine the verdid^ the pre- Ju^yf 
 fent rule of requiring an abfolute unanimity earn 
 anaongft all the jurymen being evidently ab-^"""' 
 furd and unnatural, and, amongft other in- 
 conveniencies, produ(5tive of one of a very 
 important nature, which is the perjury of 
 fome of the jurymen iji every third or fourth 
 caufe that is tried : for it happens at leaft fo 
 often that there is really a difference of opi- 
 nion amongft the jurymen, and that fome go 
 over to the opinion of the reft in oppolition 
 to their own fentiments, and confequently 
 
 contr^iry 
 
 (-! si 
 
 ^.| 
 
 m|u 
 

 m v.. 
 If/. , '• 
 
 15. '■' .* ■ 
 
 lb' ': ' 
 
 
 
 q^' t 
 
 
 i 
 
 r ■« 
 
 .1^ 
 
 ( 352 ] 
 
 contraty to the oath which th^y have taken 
 to give a true verdidt according to the evi^ 
 dence, which doubtlefs means according to 
 their judgement of it. And it has fometimes 
 happened that a great majority of the mem-* 
 bers of a jury has gone over to a fmall, but 
 refolute, minority. This therefore calls loudly 
 for a reformation, and more efpecially in a 
 country where the natural and ordinary dif- 
 ferences of opinion that muft frequently 
 happen amongft jurymen, are likely to be 
 greatly heightened by national and religious 
 prejudices. . • 
 
 , If the agreement of twelve men is thought 
 neceflary to eftablifh the truth of a h&, it 
 would be necefTary to impannel twenty^three 
 jurors. But perhaps a bare majority of twelve 
 men may be fufficient to anfwer all the pur- 
 pofes of juftice in civil matters i and if fo, 
 it would be proper that juries Should confifl 
 of thirteen men, that there might in all cafes 
 be a majoriry on one lide or the other. In 
 criminal matters it might be proper to make 
 the agreement of two thirds of the jury ne- 
 cefTary to the convidion of the accufed per- 
 fon ; or, if flill greater tendernefs to the pri- 
 foner was thought expedient, it might be 
 proper to make the unanimous confent of the 
 whole jury necefTary to his conviction, but 
 not upon that account to infifl upon the jury's 
 bringing in an unanimous verdid, but to con- 
 
 fider 
 
 
 
 ' I 'Hi \ 
 
1^1 
 
 e taken 
 he evi- 
 ding to 
 netimes 
 e mem-? 
 ally but 
 5 loudly 
 ly in a 
 iry dif- 
 quently 
 f to be 
 eligious 
 
 thought 
 faa, it 
 ty-' three 
 twelve 
 he pur- 
 d if fo, 
 i confift 
 aU caies 
 ler. In 
 to make 
 lury ne- 
 ed per- 
 the pri- 
 ight be 
 t of the 
 )n, but 
 le jury's 
 to con- 
 fider 
 
 [ 353 ] » 
 
 fidcr the diiTent of one juryman from the ver-r 
 diift given by the other eleven againft the pri- 
 foner> after deliberating upon their verdidb for 
 twenty-four hours, as a fufHcient ground of 
 an acquittal. ,; , .,^ ,,, ,, ,, ^ 
 
 And as the iflues, or points of fadt, ^^t^i.^^]}* ^f 
 were to be propofed to the conlideration ofjurors ro 
 the jury, (hould be drawn up in a nii'^utej^^^?^^^*^ 
 and particular manner in words dictated by 
 the judge of the court, fo the verdidts of the 
 juries mould be always fpecial verdidls, da- 
 ting the fadts as the jury find them to have 
 happened, with great exadtnefs and particu- 
 larity. This would prevent jurors from en- 
 croaching upon the province of the judge 
 and determining points of law by means of 
 the fhort and general verdidts of, " Guilty or 
 " mt guilty i'* ** he did or did not undertake \* 
 ** be does or does not owe the fum demanded y* 
 and the like, that oftentimes involve points 
 of law mixed with matters of fad:, and here- 
 by give juries an opportunity of committing 
 tne£ irregularities. Whenever thefe things * 
 happen (whether it be from the ignorance 
 and want of difcernment of the jurymen, or 
 from their wilfulnefs and partiality) it is hum- 
 bly apprehended that a real injury is done to 
 the lofing party, whofe right it is, according 
 to the laws or England, to have the points 
 of law, upon which his caufe depends, de- 
 cided by the able and learned judges whom 
 the King has appointed to fill the courts of 
 
 Y y juiHce, . 
 
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 jufticc, as much as it is to have the niutters 
 of fadt in the caufe determined by a jury of 
 honeft freeholders of the neighbourhood. 
 
 Examina- The witneflcs examined in the trial of a 
 wu'nefles. caufe Hiould be examined viva voce in open 
 court, in the prefence of both the parties, or 
 their attornies or advocates; and crofs-exa- 
 mined, if the adverfe party thought proper : 
 and they fhould not be allowed to deliver 
 their teftimony by written depofitions or affi- 
 davits taken in private -, not even in thofe trials 
 that were carried on without a jury ; unlefs by 
 the confent of both the parties, or by the 
 particular diredion of the judge, upon very 
 ilrong reafons for fo doing, moved and de- 
 bated in open court. . , 
 
 :(i' ■{ 
 
 { . 
 
 Execution When judgement was givea for the plaintiff 
 goods^and**^ a civil adtion, whereby a fum of money 
 faflds. was ordered to be paid him by the defendant, 
 either as a debt juftly due to him by contract, 
 or by way of compenfation for fome damage 
 and injury that had been done to him, a writ 
 of execution fliould go againft the goods and 
 Jands of the defendant, but not againfl his 
 perfon ; directing the Iheriff, or other mini- 
 fterial officer that executed the proccfs of the 
 court, to levy the fum of money awarded 
 to the plaintiff upon the defendant's move- 
 able goods and chattels j and, in cafe they 
 £hould, not be fufficient for the purpofe, then, 
 
 bu; 
 
 I. 
 
«D 
 
 [ 355 ]' 
 
 but not otherwife, to fell part of his lands 
 to produce the remainder of that fum. And 
 if the executive officer fhould not find a fufii- 
 cient quantity of either moveable or immove- 
 iable property belonging to the defendant to ; i 
 raife the fum aw^arded, and the judge fhould 
 be of opinion, upon affidavits made before 
 him for that purpofe, that there was reafon- 
 able ground to fufpedt that the defendant had 
 fecreted or concealed fome of his efFe(fls, he The de- 
 might require him to deliver in to the court J^^^iJ^'j^^ 
 upon oath an exad fchedule of all his eflate compelled 
 and effeds of every kind, and of the places j° j^^l^J!" 
 where they were to be found ; and if he re- duie of all 
 fufed fo to do, might commit him to prifonanVcfliai 
 till he complied. And if he omitted to fet"ponoath. 
 down in this fchedule any part of his efFeds 
 to the amount of twenty pounds Sterling, he 
 -fhould be liable to the penalties of perjury. 
 
 -tt Further, where a man had bound IiimfelfThe court 
 to another to do a particular thing, and it J^^^^^'^^o^y, 
 was juft and reafonable that he {houlc( per- eno de- 
 form fuch his covenant, nothing having lince^J^^ pcr^* 
 intervened that rendered fuch performance ronnanoe 
 cither impradicable or unreafpnably burthen- nanV*^*'**' 
 fome and difficult, the judge fhould have a 
 power to award that the party fhould make a 
 fpecifick performance of fuch covenant, and » 
 
 might compel him to do fo, in cafe he re- ' 
 
 fufed to do it, by imprifoning hiqi^tijl he i 
 
 complied. . , . ^j J . .' ' ' . "! 
 
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 courts. 
 
 » 
 
 Cofti. Alfo the judge fhould have a power to 
 
 award reafonable cofls to either party accord- 
 ing to his difcretion. 
 
 A king's jt vvrould bc neceflarv to have in each of 
 
 attorney , _ i . > ' /. 
 
 in rach of thefe coufts a King s attorney to profecute 
 the three £qj. ^j^g \dvig in all Criminal cafes, and in all 
 fuits concerning the king's revenue, and in 
 all other fuits in which the king's interefl is 
 concerned. If his Majefty fhould not think 
 proper to appoint an officer in each court ex- 
 prefsly for this purpofe, the power of carrying 
 on thefe feveral profecutions on the behalf of 
 the crown might be vefted in the clerk, or 
 regifler,* of the court; juft as in the court of 
 King's Bench in England the clerk of the 
 crown (whofe principal duty is to regifler, or 
 enter, the pleas of the crown amonglt the re- 
 cords of the court) is likewife the king's at- 
 torney in that court, and profecutes in his 
 Majefty's behalf. But it would be more con- 
 venient, and more fuitable to the honour of 
 the crown arid the dignity of the court, to 
 have a feparate officer for that purpofe, to 
 be called the king's attorney for that fhire or 
 diftridt, as there was in the time of the French 
 
 government. 
 
 y;..* .,.i'.f4(4"„- 
 
 *• 
 
 4 .y. 41^ . '..If, 
 
 Appeal* From thefe courts there fhould lie two ap- 
 courts to peals ; an appeal to the governour and coun- 
 iour^aliT^*^ of the province, and another from thence 
 couAcii, to the King in his privy council. One great 
 
r 357 1 
 
 ofc of the appeal to the governdur an4 co'>'*-"«5ll5 
 cil would be to preferve an uniformity in thethrKinc 
 law throughout the whole province, which"*®**""** 
 otherwife might gradually become different 
 in the three different fbires^ or diflridls, of it, 
 by the difference of the decifions that might 
 be given in thefe three different courts of 
 juflice, if they were not fubjedt to be revifed 
 by fome common fuperiour court that might 
 correct the errors that fhould be found in 
 them. ♦. 
 
 And for the fame reafon, the decifions of 
 thefe courts fhould not be deemed to form 
 precedents of fufHcient authority to determine 
 any fubfequent difputes; but this authorilir 
 fhould be afcribed only to thofe cafes which 
 had been decided by the governour and coun- 
 cil of the province upon the appeals brought 
 before them from thefe (hire-courts, or bjf 
 the King himfelf in his privy council* , r^^fi^ 
 
 ^ And to the end that the governour and 
 council of the province might not be defU- 
 tute of the advice of perfpns (killed in the 
 laws to aflifl them in ihe determination of the 
 appeals that fhould be brought before thenx« 
 it might be expedient to make the three judges 
 of thefe courts, and perhaps alfo the three 
 king's attornies in them, members of his Ma- 
 jefly's council of the province; by which 
 means all the beA law-abilities in the pro- 
 . vincc 
 
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 The na- 
 ture of 
 thefe ip 
 pcftls. 
 
 [ 3J8 ] 
 
 Vince 'Would be employed ih making thefe 
 imiportant decilions that were to carry .with 
 thenl the force of law. And with this view 
 it might be proper to require the judges and 
 the^ king's attornies of the courts of Three 
 Rivers and Montreal to attend the governour 
 of Quebeck for one month about Chriftmas- 
 time> in order to aflift at the decifion of thefe 
 tppeals, which fhould therefore be referved 
 to this feafon of the year. ;*5 t>(i< •.:•'>» 
 
 Thefe appeals fhould be only, as they now 
 . are, of the nature of writs of error in Eng- 
 land, to correifl the errors in law committed 
 in the courts of thefe fhires or diftridts, and 
 not to re-con(ider the facfts in the caufe, un- 
 lefs they had been fettled by the judge alone 
 without the affiftance of a jury. When the 
 faid^s were fettled in that manner, the parties 
 might, . if they thought fit, caufe the evidence 
 itfelf to be taken down in writing by the 
 ' clerk of the court and figned by the witnefies, 
 that it might make a part of the record, as it 
 docs upon a trial by a general court-martial 
 in England : and, upon the removal of this 
 record before the governour and council, they 
 jnight re-confider the whole matter, the fadts 
 as well as the law, and give fuch judgement 
 upon it as they thought juft ; but they fhould 
 •not admit any new evidence relating to it. 
 Where the caufe had been tried by a jury, the 
 •lofing party might, if he thought proper, and 
 
 the 
 
[ 3i9 1 
 
 the judge, before whom it was tried, thought 
 it reafonable, have it tried over again by aArecon4 
 fecond jury, confifting of twice as *J^any ju-^'j^'j^j^J'* 
 rymen as the firft jury ; and the verdict ofjury. 
 this fecond jury (hould be final with refpe<^ 
 to the matters of fadt determined by it. 
 
 When Gafpey (hall be fettled, a fourth Gafper. 
 judge might be fent thither, whofc jiirifdic- 
 tion (hould extend over a diflridt lying round 
 about it, to be taken out of the diftridl of 
 Quebeck, which is now immoderately large. 
 Such an eftablifhment would be of great con- 
 venience to the inhabitants of that part of thp 
 
 
 '■.'?>•% ^1T 
 
 ■:Ji 
 
 provmee. 
 
 ,, Thefe are the outlines of a plan for th« 
 tdminiftration of juftice, which, I conceive, 
 would be well fuited to the circumftances of 
 this province, and would remove many of 
 the inconveniences of which the Canadian^ 
 now complain, and give them very great 
 
 l^tisfadion. ^.f :,u:i ;..,,. ^rv , * ,-♦ ■ 
 
 FRANCIS MASERES. 
 
 Attorney General of th<? 
 
 province of Quebeck, ' ' 
 
 N. B. This plan of a method of adminiftr- 
 ring juftice in the province of Quebeck 
 was delivered in to Lord Hilliborqugh 
 
 , about the month of April 1 770. 
 
 F. MASERES. 
 
 Con- 
 
 
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 Concerning the Expencc requifite to 
 carry into Execution the foregoing 
 
 ' Plan for the Adminiftration of 
 Juftice in the Province of Que- 
 beck. " 
 
 'T^HE expence of the above plan for the 
 ^ adminiftration of juftice in the province 
 of Quebeck would not much exceed 6000I. 
 ^ year, upon a very large and liberal fcale. 
 Each of the three courts propofed to be efta- 
 bliftied in the province wouid confift of five 
 officers; to wit, an Englifti judge, who 
 ihould be a barrifter at law of at leaft five 
 years ftanding at the bar, and at leaft thirty 
 years of age ; a Canadian afTeffor, or afliftant 
 to the Englifh judge, who fhould likewife be 
 0t leaft thirty years of age ; a clerk, or regifter 
 of the court ; a (heriff of the fhire, or diftridt, 
 over which the jurifdi^on of the court ex- 
 tended ; and a king's attorney, to profecute 
 for the crown in criminal, and other, cafes. 
 The falaries and fees, to be enjoyed by thefe 
 feveral officers, might be as follows : 
 
 -v> , V;» 
 
 To 
 
ite to 
 going 
 n of 
 Que- 
 
 ■or the 
 ovincc 
 6000I, 
 ,. fcale. 
 te efta- 
 bf Ryg 
 
 who 
 ift five 
 : thirty 
 fTiftant 
 vife be 
 cgifter 
 iftridt, 
 irt ex- 
 )fecute 
 cafes. 
 ' thefc 
 
 To 
 
 t 361 } ^ ^ 
 
 . Ster. per Ann. 
 
 To the Engli(h judge, a falary of >(..iooo 
 (No fees from any body) 
 
 To the Canadian ailefTor, a falary of JT, 200 
 
 To the clerk, or regifter of the court, 
 
 a falaiy of - - - - jf; 1 00 
 
 Beddes fees from the crown for en« 
 tering all the criminal proceedings, 
 and other proceedings iii which the 
 crown was concerned, amongft the 
 records of the court, amounting 
 ufually to another - - - - £' ^00 
 
 And he fhould likewife have fome fees 
 from the fuitors, who had caufes in 
 the court* for entering the proceed- 
 ings in their caufes amongfl the 
 records of the . courts and giving 
 them copies of them, and the like 
 fervices : but thefe fees jfhould be 
 
 . very fmall, on account of the povcr- , 
 
 ty of the country. ^ , 
 
 To the fheriiF, a falary of - - iC* * 00 
 
 Bcfides fees from the crown for the „. - 
 execution of procefTes in criminal 
 proceedings, and other matters in 
 which the crown was concerned, 
 amounting to another - - - >C* ^^^ 
 
 And he (hould likewife have fome fees 
 from private perfons, who had buli- 
 nefs in the court, for executing the. 
 procefTes in their caufes : but thefe 
 fees Should be very fmall, on account 
 of the poverty of the country, 
 
 Zz To 
 

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 ■i;ili 
 
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 r!^! 
 
 :i::ii 
 
 . [ 362 ] ■ ^ 
 
 S'e. per Ana. 
 
 To the king's attorney of the diftrid, 
 
 a falary of - - - >C* ^^® 
 
 Befides fees from the crown for the 
 
 profecution of criminals, and the ' ' 
 ' other bufinefs he ihould do for the 
 
 crown, amounting to - - jC* 3°^ 
 He might Ukewife pradice in the court 
 
 as a private barrifter in caufes be- v . 
 
 tween fubjedl and flibjed. 
 
 The fum total of this expence is ;^.2ioq 
 per annum : and therefore the fum total of the 
 whole expence of the three courts in the pro- 
 vince would be jC*^^3^° P^^ annum. This is 
 upon a fuppolition /that the judges have fo 
 large a falary as £, 1 000 a year each. But, 
 perhaps, fome gentlemen of character at the 
 bar, might be found, amongft thofe who are 
 not yet come into bufinefs, (of whom there 
 are always many) who would accept thefe 
 employments for a falary of jC-^oo fterling 
 per annum. It is certain, tnat they might live 
 very decently, and even affluently, in that 
 country ioi: £,^oq per annum ^ and therefore 
 might lay by the overplus of their fabrics 
 (whatever Jiey were,) as a provifion for their 
 families. If thofe falaries of the judges arc 
 computed at £,ZoOy infte tdof ^f .1000 a year, 
 the whole expence of the above eftablifhment 
 would be only £,*S7^^ flerling a year. But, 
 either this fum, or the greater fum of ^T. 6 3 00 
 a year, would be well employed in eftablilhing 
 
 a lyftem 
 
[ 363 ] 
 
 a fyftem of judicature that would be fo con- 
 venient and agreeable to the Canadians as this 
 \/ould be. 
 
 This plan was mentioned to feveral Cana- 
 dian gentlemen of good fenfe, while I was 
 in the province ; and they all very much ap- 
 proved it. And they all faid, that the prin- 
 cipal French lawyers and notaries in the pro- 
 vince would be glad to accept the offices of 
 alTefTors to the judges of thefe courts for the 
 moderate falary of jC'^oo a year. As to the 
 Engiiili judges, as they muft quit their coun- 
 try, and give up their hopes of fuccefs in the 
 lucrative and honounVIe profeffion of the 
 law, in order to take thefe offices, it can 
 hardly be fuppofed that they would accept 
 of them for lefs than >C*So^ ^ y*^^- ^^'^ 
 to this, that thefe offices would be places of 
 great truft and importance, and therefore ought 
 to be accompanied with handfome falaries, to 
 maintain the gentlemen, who Ihould hold 
 them, with fome degree of fplendour and digni- 
 ty : and, upon the foregoing plan, they would 
 ^Ifo be laborious offices, fince the judges 
 would not only be obliged to decid*^ the cui!~ 
 fes brought in their courts, when they were 
 thoroughly prepared and matured for their 
 hearing and confideration 'by the lawyers on 
 both fides, but would be concerned likewii'e 
 in affilting the lawyers to prepare them and 
 bi'ing to an iiiliej which is another rcafofi 
 
 Hi • 
 
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 !«,! 
 
 I 
 
 <♦ 
 
 .1 
 
 1' 
 
 Z Z 2 
 
 wn/ 
 
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 [ 364 I 
 
 why their falaries fhould be confiderable. And 
 the caufes that would be brought before them, 
 would not be a fmall number of caufes of 
 greater confequence than ordinary, (as has 
 been the cafe of late years in die court of 
 King'srbench in the province,) but would be 
 all the caufes in their refpedlive diftrids, moft 
 of which have hitherto been brought in the 
 two courts of Common-pleas above-men-t 
 tioned ; which courts would (if the forcr 
 going plan were adopted) be fuperfeded by 
 thefe three courts of general jurifdiclion. Fo^* 
 thefe reafons I cannot think that £, 800, or 
 even jT, 1000, a year ought to be reckoned 
 too great a reward for the real fervices which 
 thefe gentlemen (if they executed their olii-: 
 ces faithfully) would do the province ; more 
 cipecially, if weconfider that the chief jullice 
 of the province, upon the former plan of the 
 adminiftration of juftice in it, (notwithftand- 
 ing the fmall quantity of civil bufmefs that 
 has been tranfa<^ted in his court,) has had the 
 following fucceflive falaries ', to wit, firft, 
 from the eftablifhment of the civil govern- 
 ment in 1 764 to the year 1 766, £, 600 ilerling 
 per annum; adly, from the year 176; to the 
 year 1768, j^, 800 ilerling per annutn^ by 
 means of an addition of >C«2oo a year allow- 
 ed him by General Carleton, (at that time 
 Lieutenant- Governour of the province,) with 
 the advice and approbation of his Majefly's 
 council of the province, on account of two 
 
 circuits 
 
 
 ,!ii 
 
f 365 ] 
 
 circuits then intended to be made by tho 
 chief juflice in every year to Montreal, in 
 the months of March and September, and 
 which afterwards were accordingly made by 
 him, to hold feffions of his court there for 
 the benefit of the inhabitants of that diftrid ; 
 3dly, from the year 1768, to the year 1774, 
 ^ . 1 000 flerling per annum^ by means of ano- 
 ther addition of r^. %qq per annum^ made by 
 Governour Carleton alone (without the ad- 
 vice of the council of the province) in lieu 
 of certain fmall fees, which had been taken 
 by the chief juflice upon ifTuing procefles of 
 arreft and other proceffes, and which amounted 
 to about jT. 40 or yT. 50 per annwn^ and which 
 he thereupon publickly relinquifhed ; and 
 4thly, and laftly, (as 1 have been informed) 
 X» 1 200 fterling per annum, by the addition 
 of a third ^. 200 per annum, made in the year 
 1 774 by the Lords-commiflioners of the trea- 
 fury here in England ;— — upon what ground^ 
 or for what reafon, I do not know. Thefe 
 continual augmentations of the falary of the 
 office of chief juftice of the province of Que- 
 beck (notwithflanding the little trouble that 
 attended it,) will ferve, I hope, as a juftifi- 
 cation of my propofal of allowing j(,\ 800, 
 or ^. 1000, a year to each of the gentlemen 
 who fhould be appointed to execute the labo- 
 rious office of one of C:it judges of the three 
 diftrids of the province, in ^afe the foregoing 
 plan fhould be adopted. 
 
 If 
 
 I 
 
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 I 366 ] 
 
 If the foregoing plan fliould continue to 
 be thought too expenfive to be adopted in the 
 whole ejrtent above propofed, it might be 
 rendered lefs expeniive by one third part, 
 by dividing the province into only tvi^o dif- 
 tridts, thofe of Quebeck and Montreal, and 
 cftablifhing fuch courts, as are above defer ibed, 
 in thofe two diftridts. The expence of fuch 
 an eftabli/liment would be only jT. ^200 fter- 
 ling per annum ^ reckoning the falaries of the 
 English judges at the higheft rate, that is, 
 at >f. loco iterling each. But three courts 
 would be certainly much more convenient to 
 the Canadians than two, on account of the 
 great diftance of Quebeck and Montreal from 
 each other, which is no lefs than 1 80 miles. 
 The town of Three-Rivers is juft in the 
 middle between the two, 90 miles from each. 
 
 General Carleton formerly approved of the 
 foregoing plan for the adminiftration of juftice, 
 as well as feveral Canadian gentlemen to 
 whom it was communicated. But afterwards 
 he altered his opinion in fome degree, and 
 propofed that there fhould be only one Eng- 
 iifli lawyer in the province in a judicial office, 
 by whom (if I don't miilake) he would have 
 all the criminal bufmefs in the province be 
 tranfaded, and fo much of the civil buliners 
 of it as fliould be brought before him by 
 appeal from the inferiour courts of civil ju- 
 rifdidion. And thefe inferiour courts he. 
 \\ woild 
 
 s 
 
'^IJhl 
 
 [ 367 ] 
 
 would have to be filled by judges not bred 
 at the Englidi bar. In other particulars he 
 ftill approves the foregoing plan, as, for in- 
 ftance, in the frequency of the feflions of 
 thofe inferiour courts, which he recommends 
 to be every week. And accordingly, in the 
 new regulation of the courts of juftice in 
 the province by the ordinance palTed by him 
 and his council in February 1770, he di- 
 rected the courts of Common-pleas at Que- 
 beck and Montreal to hold their feflions every 
 week. What his reafons are for the above- 
 mentioned change in his opinion upon this 
 fubjed:, I do not know, unlefs it be to avoid 
 the expence that would attend the foregoing 
 plan. But, for my own part, I am confident 
 that juftice would be much better admi- 
 niftcred by gentlemen of moderate ability, 
 bred to the profefTion of the law, as is above 
 propofed, than by perfons of equal, or even 
 fuperiour, abilitiP'?, that have been educated in 
 other profeflions. The judges of the court 
 of Common-pleas at Quebeck, at the time 
 of its abolition by the late Quebeck-adt, were 
 Mr. Adam Mabane, the furgeon to the gar- 
 rifon, and Mr. Thom'^s Dunn, v/ho was bred 
 at Oporto in Portugal, as a merchant : and 
 the judges of the court of Common-pleas at 
 Montreal, at the fame time, were captain 
 Jolm Frafcr, a Scottirti gentleman, who was 
 firlt bred (as it is faid) at Saint Omer's, in 
 Flanders, and afterwards was in the army in 
 ■'* the 
 
 
 
 ill 
 
[ j68 ] 
 
 the fegiment of royal Americans, ind Mr; 
 John Martehle, a very worthy French pro- 
 teftant gentlemartj who was born in the South 
 of France, and educated there to fome branch 
 of trade, and afterwards lived in London, as 
 a merchant, froni the year 1746 or 1747, 
 till the conqueft of Canada by the Briti/h 
 arms in 1760. It can be no disparagement 
 to thefe gentlemen (whofe integrity and dili- 
 gence in the adminiflration of juflice I much 
 refped,) to fay that gentlemen of equal na- 
 tural abilities with them, who fhould have 
 ||ad a law-education at the Englifh bar, and 
 have applied to their profefiion with afliduity 
 during their youth, would be better qualified 
 than they are, to difcharge the duties of ju- 
 dicial offices in the province. 
 
 If the foregoing plan for the adminiflration 
 of juflice were to be adopted, I conceive that 
 it would be proper,, that the faid Englifh 
 judges and king's attornies in the faid diflriifls 
 (hould be appointed by the King, either by 
 his Majefly's letters-patent under the great 
 feal of England, or by letters-patent under 
 jthe publick feal of the province, pafTed by 
 the Governour thereof, in purfuance of a man- 
 date from the King's Majefly, under his fignet 
 and lign-manual, diredted to the Governour 
 for that purpofe ; and that, when once ap- 
 pointed, they fhould not be either remov cable 
 or fufpendible by the Governour, but only by 
 
 the 
 
t 369 3 
 
 the King himfelf by his order in his privy- 
 council : and fhat the faid Canadian afleflbrs, 
 fheriiFs, and clerks of the courts, fliould be 
 appointed by the Governour only, by letters- 
 patent under the publick feal of the province ; 
 but that, when once they were appointed, they 
 fhould not be liable to be either removed or 
 fufpended, by the Governour alonfe, but by the 
 Governour and council conjointly, by an a6t, 
 or ordinance, in which at leaft half the whole 
 number of the members of the council fhould 
 concur. 
 
 The foregoing plan for the adminiftration of 
 juftice in the province of Quebeck, had the 
 honour of being much approved, about three 
 years ago, by Mr. Thurlow and Mr. Wedder- 
 burn, his Majefty's attorney and follicitor-ge- 
 neral : and the only objedion, that (as I re- 
 member) they made to it, was the expence of 
 carrying it into execution. But now, I pre- 
 fume, that objedion can be no longer thought 
 of importance, fince the expence of the pro- 
 vince of Quebeck has been lately (fince the 
 pafling of the Quebeck-adt,) increafed from 
 >r. lOjOoo fterling a year to ^T. 20,000, as 1 
 have been credibly informed. The whole of 
 this expence, before the pafling of the Que- 
 beck-adl, was borne by Great-Britain, and was 
 charged in the accounts laid berbre parliament 
 under an odd kind of head for fuch a branch 
 of expence, that of cinny cofTthigencies : and 
 
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 [ 370 ] 
 
 the Governour of the province, or, at leaft, 
 Geheral Carleton, (who, befides being Gover- 
 nour of the province of Quebeck, is briga- 
 dier-general of the king's troops in the nor- 
 thern diftridt of North America) has been im- 
 powered to draw upon the Britifh treafury, at 
 his difcretion, for the money that he fhould 
 find to be neceflary either for the ordinary, or 
 the contingent, expences of the civil govern- 
 ment of the province : and the fums for which 
 he has fo drawn, have been charged hi the ac- 
 counts laid before the houfe of Commons under 
 the aforefaid head of army.-contingencies. The 
 amount of them was ufually, before the lateQute- 
 beck-adl, about jf. 10,000 fterlingayear. Since 
 that time, I have been told, the expence of the 
 province has been increafed to>C» 20,000. Some 
 of this additional expence has arifen from the en- 
 largement of the province by the addition of all 
 the immenfe tradt of country behind the Eng- 
 lifh colonies in America, between the rivers 
 Ohio and Miffifippi, and about the five great 
 Lakes. For a Licutenant-Governour is ap- 
 pointed at Detroit, or the Straights of Lake 
 Erie, and a judge of fome fort is to be fent 
 thither. And the like eftabliftiment (I am told) 
 Is to be made at Michilimakinac, and at fome 
 Other places in the Indian country. Ail which 
 places are now in the extended, province of 
 Quebeck, and confequently the fafaries of thefe 
 new officers make a part of the additional ex- 
 pence of that province. But, I believe, that 
 
 much 
 
 i^^-A 
 
[ 371 ] 
 
 much the greater part of this new expence 
 arifes within the old province (as it was bound- 
 ed by the King's proclamation of October 
 1763,) and is employed in falaries and penfions 
 to divers perfons in it. Some of thefe penfions 
 and falaries, I am informed, are as follows : 
 
 Per Ann. 
 
 To the popifli bifhop of Quebeck, a 
 
 p«?nfion of - - - £.200 
 
 T^ the chief juftice of the province, 
 an addition to his falary of - £, 200 
 
 To the lieutenant-governour, (whoufed 
 formerly neither to a(5t as lieutenant- 
 governour, nor to receive any pay as 
 fuch, during the prefence of the go- 
 vernour in chief in the province, and 
 who, in the abfence of the governour 
 in chief, ufed to receive half the go- 
 vernour*s falary,) a falary of - jC-^^o 
 
 To the attorney-general of the province, 
 
 an addition to his falary of - £• ^5^ 
 
 To three judges, or confervators of the 
 peace, at Quebeck, £>S^o a year 
 each, making togethcK - - £'iS^^ 
 
 To three judges, or confervators of the 
 peace, at Montreal, jC'S^o ^ y^^^ 
 each - . - - £*iS^o 
 
 N. B. The two judges of the court of 
 
 common-pleas at Quebeck, and thofe 
 
 of the court of common-pleas at 
 
 . Montreal, before the late Quebeck-ad 
 
 Aaa 2 took 
 
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 [ 372 ] 
 
 Per Ann. 
 
 took place, bad a falaryof only>r.2.oo 
 a year each, making all logcthm'jT.Soo 
 a year. Therefore the increaft of ex- 
 pence in the falaries of the new judges 
 is the difference between ;/C'3°o<^ '^^^^ 
 >r.8oo a year, which is yeuuy - ^. 2200 
 
 To each of the 23 mcnribers of the new 
 legiflative council of the province, a • 
 
 , falary, or penfion, of ^.100 iterling 
 a year, making together - - jC'^SOO 
 
 N. B. As thefe falaries are not to be 
 given to the members oF the council ' 
 in feparate payments every time they 
 attend the meetings of the council upon 
 publickbuiinefs, but are iixt falaries, to 
 bepaid them whether they attend thofe , v- 
 meetings, or not j they are not likciy to r 
 have much effcdt in caudng the meet- 
 ings of the council to be fully at- 
 tended. The principal effe(5l of them 
 will probably be to make the mem- 
 bers of the council extremely depen- 
 dent on the crown and governour, or 
 (where, from the high fpirit of par- 
 ticular men, it fhall not have that 
 effe(5t,) to make them be conlidered ' 
 by the people as if they were fo, and, 
 in confequence of that opinion, to 
 render them objedls of contempt. 
 
 Thefe fums added together make an increafe 
 of expence in the province, incurred fince the 
 
 late 
 
 
 ||.''*\^I 
 
[ 373 ] 
 
 late Qaebeck-ad, «j^>C-5^5^ flerling per an^ 
 num. And there is another new article of ex- 
 pence, which, I imagine, to be conliderable 
 frcmi the nuirber of the perfons who are the 
 obje(fi:s of it, but of which I do not know the 
 exadl amount. 1 mean a halF-pay, which 
 was given in the beginning of lad May, (when 
 the Quebcck-adt was to have taken place,) to 
 fev^ai Canadian, or French, ofticers, who had 
 gone in the year 1763, or 1764, (at the re- 
 queft of general Murray, who was at that 
 time governour of the province,) upon a mi- 
 litary expedition into the upper, or Indian, coun- 
 try, to oblige the Indims, (who had either 
 continued the war againft the Englifli colo- 
 nies, or begun a new one, after his Majefty 
 had made peace with the French king,) to lay 
 down their arms and make peace with all his 
 Majefty's fubjeds. I have been told, that fe- 
 veral of the Canadian, or French, inhabitants 
 of the province, engaged in that fervice with 
 alacrity^ and went into the Indian country, to 
 make war upon the Indians, and reduce them 
 to terms of peace by force of arms, if they 
 had flood out any longer ; and that the pre- 
 fence of thefe Canadians amongft the Indians, 
 on that occafion, (to many of whom they were 
 known,) contributed very much to ftrikc ter- 
 rour into the latter, and perfuade them to make 
 peace with the Englifh : fince which time there 
 have been no Indian difturbances. This was 
 certainly a very conliderable fervice to his Ma- 
 jelly, 
 
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 [ 374 ] 
 
 jcfty, and to the province, for which the per- 
 ions, who fo chearfully undertook it, deferved 
 both thanks and a reward. I was not at that 
 time in the province; and therefore do not 
 know the exadt particulars of this affair. But 
 I have been told that, at the time, little notice 
 was taken of them on account of this expe- 
 dition, and that they met with no reward. But 
 now of late, thofe of them who had ferved as 
 otHcers on that occafion, have had good amends 
 made them for this long delay of publick gra- 
 titude^ during eleven or twelve years, by re- 
 ceiving each of them a penfion which is to 
 be continued for their lives, equal to the half- 
 pay of the commifllon, in which he ferved on 
 that expedition. Perhaps, this may feem to 
 be going into a contrary extreme to that of 
 the negligent treatment they are faid to have 
 met with immediately after their return from 
 that expedition, when the gratitude of go- 
 vernment for the fervice they had juft been 
 doing, ought naturally to have been warmed : 
 and Tome people will be apt to doubt, whe- 
 ther this liberality has been exhibited towards 
 them from the fingle motive of pure gratitude 
 for their pad fervice, or whether it was partly 
 intended as an encouragement to them and 
 their friends to engage again in the military 
 life, and make war upon their neighbours of 
 New-England ; efpecially if they refledt on the 
 hint given in the letter figfied he Canadien Pa^ 
 triote^ about railing a Canadian regiment. But, 
 
 if 
 
i: i' 
 
 , 
 
 ich the per- 
 
 it, deferved 
 
 ; not at that 
 
 fore do not 
 
 affair. But 
 
 little notice 
 
 ' this expe- 
 
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 lad ferved as 
 
 ood amends 
 
 publick gra- 
 
 ^ars, by re- 
 
 ivhich is to 
 
 to the half- 
 
 le ferved on 
 
 ay feem to 
 
 to that of 
 
 lid to have 
 
 eturn from 
 
 ide of go- 
 
 1 juft been 
 
 n warmed : 
 
 3ubt, whe- 
 
 ed towards 
 
 e gratitude 
 
 was partly 
 
 them and 
 
 le military 
 
 yhbours CM 
 
 edl on the 
 
 lent. But, 
 if 
 
 [ 375 1 
 
 if this was the motive to this meafure, the^ 
 difinclination of the lower clafs of Canadians 
 to engage in fo odious a fervice, has com- 
 pleatly fpoilt the projedb. Though 1 don't 
 know the amount of this half-pay, I prefume 
 it cannot be iefs than jC* ^ 3 5^ fterling a year ; 
 which, with the former fums already mentioned, 
 will make the increafe of the publick expence 
 of the old province, (as bounded by the king's 
 proclamation in 1763,) (ince the paHing of 
 the Quebeck-adt, amount to £»yooo a year. 
 Surely, when the publick money is thus freely 
 dealt about in the province, the expence of 
 ^^•6300 ought not to be thought an obdacle to 
 the eflabli^ment of the foregoing plan for the 
 adminiftration of juftice in the province, if it 
 be judged to be a very convenient plan for 
 the purpofe, and likely to give great fatisfadion 
 to the Canadians. 
 
 Since the pading of the Quebeck-a^ certain 
 duties have been payable in the province upon 
 fpirituous liquors imported into it ; which du- 
 ties were impofed by an a£t of parliament pafTed 
 in June 1774, at the fame time as the Que- 
 beck-aA. Thefe duties have, I believe, pro- 
 duced little or nothing as yet ; becaufe the pro- 
 vince, at the time of laying them, was largely 
 flocked with the flrong liquors, on the im- 
 portation of which they were laid. But, when 
 the province (hall be reflored to a fbite of 
 peace, and frefh flocks of thefe liquors (hall 
 be imported into it^ it i$ thought thefe duties 
 
 win 
 
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 [ 376 ] 
 
 will produce jf. 4000, or, perhaps £*So6o a 
 year. But, the greater of thefe fums is only 
 half of the addition that has been made to the 
 expence of the government of the province fince 
 the paffingof the Quebeck-afl : and confequently 
 Great-Britain is, and will be, at a greater ex- 
 pence in maintaining the government of the 
 province of Quebeck fince the laying on thofe 
 duties on fpirituous liquors imported into it, than 
 before. This is by no means agreeable to the 
 Canadian common people. For they fuppofe, 
 that Great-Britain will not long chufe to bear 
 fo heavy an expence on account of this pro- 
 vince, but will proceed to lay frefli taxes on 
 it, till it pays the whole expence of its own 
 government : and upon this account^ they are 
 much alarmed at the number of penfions and 
 falaries which they have feen beftowed upon 
 the members of the legillative council and the 
 officers above-mentioned, who ferved in the In- 
 dian expedition in 1764, and on the bifhop, and 
 other favourites of government in the province ; 
 all which they think they fhall foon be made to 
 pay out of their own pockets in exoneration of 
 Great-Britain : and hence they all exclaim with 
 one voice throughout the province, (as we have 
 feen above in page 99,) that they will not take 
 arms to defend a pack of rafcally penfioners of 
 the crown y and tbeir damned French laws. 
 
 The king has a clear, acknowledged right 
 to certain very confiderable fines upon the 
 alienation of all lands in the province, that 
 
 are 
 
ims is only 
 made to the 
 ovince fince 
 onfequently 
 greater ex- 
 ent of the 
 ng on thofe 
 into it, than 
 eable to the 
 ley fuppofe, 
 lufe to bear 
 )£ this pro- 
 [h taxes on 
 of its own 
 It, they are 
 >eniions and 
 owed upon 
 icil and the 
 d in the In- 
 bifhop, and 
 e province ; 
 be made to 
 meration of 
 :claim with 
 [as we have 
 vill not take 
 enfioners of 
 ^aws, 
 
 5dged right 
 upon the 
 ^^ince, that 
 are 
 
 t 277 1 
 
 are holden immediately of the crown. If they 
 are holden by fealty and homage, he has a 
 right to a fifth part of the prices paid for them 
 by the purchafers of them : and if they are 
 holden by rent-fcrvice, (in French, par cens 
 et rentesy and in Latin, per cenfum et redditum^j 
 he has a right to a twelfth part of the faid 
 prices. And he has likewife a right to Ibme 
 other emoluments of a fimilar kind, aril^ng 
 from the faid lands. What the annual value 
 of all thefe emoluments, taken together, may 
 be, I do not exadtly know. But we have feeri 
 above, in page 44, that Monfieur Cugnet fup- 
 pofes them to amount to between three and 
 four thoufand pounds, fterling, a year ^ which 
 is no inconfiderable fum. But they have never 
 yet been colle<5led, except in a few inftances, 
 in which the purchafers have voluntarily paid 
 them, and even infifted upon paying them : 
 but thefe inftances are fo few in comparifon of 
 thofe in which they have been neither paid 
 nor demanded, that they are not worth at* 
 tending toj infomuch that it may truly be 
 faid, upon the matter, that the whole expence 
 of the government of this province has hither- 
 to been borne by Great-Britain. This, I think, 
 fliould make the government, for the future, 
 pay more attention than has hitherto been 
 done, to the collection, and proper applica- 
 tion, of the royal revenue in the province in 
 thofe plain, acknowledged inftances, in which 
 the right of the crown is undifputed. 
 
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 [ 378 ] 
 
 Eefore I quit the fubjeft of the expence of the 
 foregoing plan for the adminiftration of juftice 
 in the province, I beg leave to compare it with 
 the expence of the plan adually adopted in 
 that country, and intended to be carried into 
 execution in it. The expence of this latter 
 plan is as follou^s. To the chief juftice (who 
 is to have no original civil jurifdidion, but 
 only to do the criminal bufinefs of the pro- 
 vince, and the civil bufinefs brought before 
 him by appeals from the courts of common- 
 pleas, and whofe office is therefore likely to 
 be attended with very little trouble,) ^.1200 
 fterling per minum* To the three judges of 
 the court at Quebeck yT. 500 fterling per an- 
 num each, making £, 1 500 per annunu The 
 fame falaries to the three judges of the court 
 at Montreal, making £,1^00 per annum more. 
 To the clerk of the crown in the court of the 
 chief juftice ^>ioo fteriiilg per annum. To 
 the attorney- general a falary of ^C-S^o per an- 
 num^ and fees from the crown to the amount 
 qf about £'200 per annum. To the two pro- 
 voft-marfhals, or flieriffs, of the diftrids of 
 Quebeck and Montreal, a falary of, at leaft, 
 ^.100 each. Thefe fums, added together, 
 amount to jf.5000 per annum. And, per- 
 haps, there may be other expences in the pre- 
 iert fyftem of the adminiftration of juftice, with 
 which I am not acquainted. But this fum of 
 yf. 5000 fterling per annum is not a great deal 
 left than the lum of yC'^S^o, which would 
 
 be 
 
'i 
 
 ence of the 
 1 of juftice 
 pare it with 
 idopted in 
 arried into 
 
 this latter 
 ftice (who 
 idion, but 
 f the pro- 
 ght before 
 
 common- 
 ; likely to 
 
 ) £-1200 
 
 judges of 
 ig per an- 
 turn. The 
 
 the court 
 mm more. 
 >urt of the 
 num» To 
 
 00 per an- 
 le amount 
 
 1 two pro- 
 Mrids of 
 ', at lead, 
 
 together, 
 '^nd, per- 
 n the pre- 
 lice, with 
 lis fum of 
 great deal 
 :h would 
 be. 
 
 r 379 ] 
 
 be required for the execution of the foregoing 
 plan for the adminiftration of juftice in the 
 province, upon the largeft fcale: fo that, I 
 think, it may fairly be concluded, upon the 
 whole, that, if the faid foregoing plan for the 
 adminiftration of juftice in that province, be 
 really a good one, and likely to give great fa- 
 tisfa(ftion to the Canadians, the expencc of it 
 ought to be no objedion to its being carried 
 into execution. 
 
 When I fo ftrongly recommend the fore- 
 going plan for the adminiftration of juftice in 
 the province of Quebeck, as likely to be at- 
 tended with Angular advantages to the pro- 
 vince, I do not mean to fay, that all the regu- 
 lations I have propofed in it ; about the man- 
 ner of drawing up the pleadings by the af- 
 (iftance of interrogatories exhibited by the judges 
 of the courts, and propofing a variety of diftind, 
 and very fimple, fadts to the juries for their 
 determination ; and about the manner of ap- 
 pointing the juries, and their giving their vcr- 
 didl according to the opinion of the majority 
 of them without being required to fay they 
 are all unanimous j and about the proceiTi^s to 
 be awarded in execution of judgements for the 
 recovery of debts ; and other particulars therein 
 mentioned ; are evidently and indifputably the 
 beft that can be propofed. I am far from be- 
 ing fo confident in my own opinion upon a fub- 
 ject of fo much difticulty, and, oa the con- 
 
 
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 t 380 J 
 
 trary,. expert that many of thofc regulations 
 will be difapproved by many people. I only 
 wi(h, that thofe perfons who fhali not approve 
 them, may confider them carefully, and pro- 
 pofe fomething better in their (lead. All I can 
 fay for them is, that they are the beft regu- 
 lations that I could contrive upon the fubjedt, 
 after much thought and confideration of it. 
 But what I confider as the efTence of the fore- 
 going plan, and as mod clearly of high im- 
 portance to the welfare and fatisfadion of the 
 Canadians, is, that there fliould be three courts 
 of genera] jurifdidtion cftablifhed in the pro- 
 vince in the three towns of Quebeck, Three- 
 rivers, and Montreal, that (hould be properly 
 conftituted and organized for the compleat ad- 
 miniftration of juftice in all matters whatfoever, 
 criminal as well as civil, in their refpedlive 
 diftrids ; and that they fhould fit every week 
 in the year for that purpofe, (with a few ne- 
 cefl"ary exceptions,) as the like courts did in 
 the time of the French government ; and that 
 in thefe courts men of good abiliiiesy and that 
 have been bred to the law, fhould prefide to ad- 
 minifter juftice j and that they fhould be made 
 fufficiently independent in their fituation, by a 
 handfome falary from tHe crown, to be above 
 doing mean, or uiyuft things, and, particu- 
 larly, that they (hould be taken intirely out of 
 the power of the governour, fo as not to be 
 liable to be* either removed, or fufpended, by 
 him from their offices, upon any pretence, or 
 
 • occafion, 
 
[ 38i ] . 
 
 occafion, whatfoevcr. I fay, that the eftabli(h- 
 mentof three fuch courts, with three fitch judges^ 
 (fuch, for inftance, as Mr. Hey, the prelent, 
 or late, able chief juftice of the province,) 
 would be highly conducive to the welfare and 
 fatisfadion of the Canadians. 
 
 There are two parriculars recommended in 
 the tortgoing plan for the aiiminiflration of 
 juftice in the province of Quebcck, which, I 
 am apprehenfive, may be difplealing to fome of 
 the more zealous admirers of the inftitution of 
 the trial by jury, whom I fain would not offend. 
 Theie are, firft, the propolal that the verdift 
 (hall be given according to the opinion of the 
 majority of the jurymen, without requiring 
 them to be ail unanimous ; and, 2dly, the 
 propofal that the ilTues referred to their deter- 
 mination fhall be all Jpecial iJfueSy or Ample 
 and diftindt queftions ot tad, intirely feparated 
 from all queftions of law that may occur in the 
 caufe before the cc^urt. The firft of thefc 
 deviations from the trial ov jury, as it is ufed 
 here in England, will deiiroy (they will fay,) 
 that refpcd for, and fubmillion to, the ver- 
 dicts of juries, which arifes from the opinion, 
 that they are the unanimous deciiions of twelve 
 honeft and impartial men upon the fa£ts in 
 litigation ; and will likewife open a door to 
 foUicitation and management by the parties, 
 when it may be expected that the gaining one 
 vote amongft the whole twelve will determine 
 i . the 
 
 
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 [ 382 ] 
 
 the vcrdidi in their favour : and the other de- 
 viation from the trial by jury, as it is ufed here 
 in England, to wit, the referring only fpecial 
 iflues to their determination, will be faid, by 
 thefe great admirers of juries, to curtail their 
 power too much, and thereby render them 
 much lefs ufetul to the defence of pubiick liber- 
 ty than they are in England, where, by means 
 of general iflues, they often have it in their 
 power to determine matters of law, as well as 
 matters of fadt. I will now endeavour to 
 anfwer thefe objedlions, and juftify the afore- 
 faid deviations from the ufual method of con- 
 ducing the trial by jury here in England. 
 
 In the firft place then I muft obferve, that 
 the refpedt which is faid, in the firft objedion 
 above-mentioned, to be paid to the verdids of 
 juries here in England, on account of the fup- 
 pofed unanimity of the jurors who give them, 
 would be paid alfo to the verdidts given by 
 juries upon the foregoing plan, when their 
 verdi(5ls were unanimous^ and in a much higher 
 degree, becaufe their verdids upon that plan 
 would be known to be really y and not pretendedcy^ 
 unanimous. And in all other cafes, when the 
 jurors are not really unanimous, it generally 
 comes to be known here in England that they 
 are not fo, (and indeed, it is hardly poflible that 
 it can be concealed;) and the verdid they 
 give, after long confinement together, and much 
 altercation with each other, tnough it is called 
 
 • ; an 
 
 L 
 
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 <!• 
 
 [ 383 ] 
 
 an unanimous verdidt, yet is not confidered as 
 fuch cither by the publick or the parties to the 
 caufe, and confequently does not meet with 
 that rcfpedt and fubmiflion which are fuppoled 
 in the objedion. And, even when it happens 
 not to be known that there has been a dif- 
 ference of opinion amongft the jurymen, yet 
 it is often fuppofcd that there has been fuch 
 a difference, by reafon of the great frequency 
 of fuch an event amongfl jurors ^ infomuch 
 that a verdid is hardly ever confidered as having 
 been really unanimous, except in thofe cafes 
 in which it is known and declared to have 
 been fo. And confequently, the apparent unani- 
 mity of verdidls here in England does not 
 produce the good efFedl, fuppofed in the ob- 
 jedtion, of a great refped and chearful fub- 
 miflion to them, tr r: J : ' ; 
 
 But, fecondly. If it did produce that good 
 cfFedt, I mufl confefs I fhould ftill think it a 
 bad inflitution for two rea,rons : firfl, becaufe 
 it appears to me to be inconfiftent with the 
 rules of morality and religion to require, and 
 in a manner compel, twelve men, who really 
 are of difiVent opinions upon a doubtful fadt 
 referred to their determination, to declare upon 
 their oaths that they are all of the fame opi- 
 nion; and, fecondly, becaufe it opens a door 
 to the abfurdefl of all methods of determining a 
 doubtful fa<ft, that of following the opinion of 
 the minority of the perfons to whofc confide-r 
 
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 ration It is referred, in oppofition to that of the 
 majority > which mud always be the cafe, 
 when thofe who compofe the minority of the 
 jury happen to be men of ftronger confti- 
 tutions of body, and better able to go long 
 without food, or of more refolute tempers of 
 mind, than thofe who compofe the oppodte 
 
 majority. 
 
 , . '.. . . . - _ . . , ^ ... . .\. •- . ., 
 
 And, thirdly, It muft be confidcred that the 
 trial by jury is a new inditution in Canada, 
 of which the inhabitants of that province had 
 no idea before the edabiifhment of the civil 
 government in it in the year 1764. And, 
 therefore, it is prudent to take every method 
 to render it agreoable and fatisfadory to them > 
 and, for that purpofe, to purge it of all thofe 
 imperfedlions and inconveniences of which they 
 have exprefled the greateft diflike, though, 
 from our being long and early accudomed to 
 them, they have ceafed to make a forcible im- 
 preiiion on ourfelves. It is true, indeed, that, 
 even with thefe imperfedtions and inconveni- 
 ences, the Canadians, who have had law-fuits 
 in the courts of common-pleas in that pro- 
 vince, have often chofe to have juries to deter- 
 mine them : but it is alfo true that, if thefe 
 imperfeftions and inconveniences, (which they 
 themfelves have fo often objedted to them,) 
 were removed, they would be flill better pleafed 
 with them. And, furely, it is reafonable to 
 gratify them in this re(pedt« > ; - .~i ;-* 
 
 As' 
 
•t 385 ] 
 
 As to the other objedlion to the propofal of 
 taking the vcrdi^l of the majority of a jury as 
 the verdidl of the whole, to wit, that it would 
 make them more liable to follicitation and 
 undue influence from the parties, whofe caufes 
 they were to determine, I conceive it to be 
 totally withdut foundation. For, in the firft 
 place, as the juries, after they are impanelled, 
 are kept in box, or a room, by themfelve?, 
 without any poflibility of the parties, or their 
 attornies, having any accefs to them, I cannot 
 fee, how they will be more liable to be foUi- 
 cited when the yerdidl is given by the majo- 
 rity of them, than when it is given by their 
 whole body. In both cafes it will be impof- 
 fible, that they can be applied to by the par- 
 ties after they are impanelled. And, fecondly, 
 if it (hould be fuppofed, that they would be 
 more expofed to be follicited by the parties, 
 in the former cafe than in the latter, before 
 t'.sy were impanelled, I cannot fee any ground 
 for fuch a fuppofition. In both cafes it would 
 be uncertain, and equally uncertain, before the 
 jury was impanelled, who would be the per- 
 fons that would compofe it : fo that, till that 
 time, no applications could be made to parti- 
 cular perfons, otherwife than upon a conjedlu- 
 ral fuppofition that they would be upon the 
 jury J and this conjedlure would be made upon 
 the fame uncertain grounds in both cafes. And, 
 laftly, if it could be known before-hand, that 
 any particular perfon would be upon the jury, 
 
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 [ 386 ] 
 
 it would be lefs worth the while of either of 
 the parties to endeavour to influence his vote, 
 if a majority of the jury were to carry the vcr- 
 di^, than if it were necelTary that the whole 
 jury fhouid be unanimous: becaufe, if the 
 verdid is given according to the opinion of the 
 majority, the vote of fuch influenced juryman 
 could only have its proportional efFed, as a Tingle 
 vote; whereas, when the verdict is required 
 to be unanimous, the vote of fuch influenced 
 juryman may (if he is a flrong and a flurdy 
 man, and well refolved to (land out to the laA 
 againft the other jurymen in favour of the 
 party whofe caufe he efpoufes) become equi- 
 valent to two, or three, or four votes, and, by 
 poflibility, to the whole twelve votes of the 
 whole jury, by bringing over either one, or 
 two, or three, of the other jurymen, or, in 
 the lafl cafe, all the other eleven, to fay they 
 are of his opinion, and deliver their verdidt ac- 
 cordingly. This fecond objedion, therefore, 
 to the propofal of taking the verdid of the 
 majority of the jury as the verdidt of the whole, 
 derived from the fuppofitipn of a greater de- 
 gree of danger that undue influence may, be 
 exerted over the jurymen, feems to be totally 
 without foundation : nor (hould I have thought 
 of mentioning it on this occadon, if I had not 
 beared it fometimes darted in converfation upon 
 this fubjedt as an objection of confiderable 
 weight. 
 
 As 
 
t 387 1 
 
 As for the other deviation above-mentioned 
 from the trial by jury as uled in England, to 
 wit, the referring only fpecial iflues to their 
 determination, I cannot but think it would be 
 ufeful in every country where the trial by jury 
 is in ufe, becaufe it both facilitates the duty 
 of the jury by prefenting only clear and fimple 
 quedions to their confideration, and keeps the 
 proper provinces of the judges and the jury 
 quite feparate and diftindt from each other. 
 But it is more necelTary in Canada than in Eng- 
 land, on account of the much greater danger 
 in that country of the proceedings running 
 into intolerable confufion without it. For it 
 is impoHible to take too great pains to make 
 things plain and eafy to a Canadian jury, in 
 order that they may rightly underftand what 
 it is they are to do, and how they are to fet 
 about it. As to the objedtion above mentioned, 
 that by thus referring only fpecial iflues to the 
 determination of juries, their power will be 
 too much curtailed, and they will be rendered 
 lefs ufeful to the defence of publick liberty 
 than they are in England, where, by means 
 of general iflues, they often may determine 
 matters of law as well as matters of fad 5 I 
 can by no means allow it to be a juft one, for 
 thefe reafons. In the fir ft place, 1 conceive it 
 to be a breach of the duty of jurymen, and an 
 encroachment on the province of the judges, 
 whenever a jury knowingly and willingly de- 
 termines a point of law, that happens to be 
 
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 [ 383 ] 
 
 involved in a general iflue referred to their de- 
 termination, othcrwife than as the judge, who 
 tries the caufe, direds them. This, I think, 
 is evident from the oath which the jurymen 
 are obliged to take at the time they are impan- 
 nelled : which is, " well and truly to try the 
 ijfue joined between the parties y and give a true 
 verdiSi according to the evidence,* This plainly 
 relates to the afcertaining a matter of fadt, and 
 not a point of law : and, therefore, if a point 
 of law happens to arife in the courfe of the 
 evidence, (as is fometimes the cafe,) and to be 
 involved with the fad, originally intended to 
 be referred to the jury, the jury ought to con- 
 fider fuch point of law as a foreign matter, 
 that was not meant to be referred to their de- 
 termination, and which they therefore fhould 
 not take upon them to determine by their own 
 judgement; but they fliould either determine 
 it according to the diredions of the judge who 
 tries the caufe, or, if the parties defire it, find 
 a fpecial verdid ; to the end that the parties 
 may afterwards have the matter of law fully 
 argued before the court by able counfel, and 
 afterwards maturely confidered by the judges 
 of the court in which the adion is brought, 
 and alfo by the judges of the higher courts to 
 which writs of error lie, in cafe the parties 
 fhould chufe to bring it before thofe courts by 
 writs of error. If they negled to do this, and 
 take upon them to determine the matter of 
 law themfelves in a manner contrary to the 
 
 opinion 
 
 \rm :^i 
 
I 389 1 
 
 opinion and diredions of the judge, It feems 
 to me that they thereby do an injury to the 
 lofing party by depriving him of an opportunity 
 of having the matter of law determined by the 
 judges, who alone are competent, (both by 
 the authority of their commifiions and by their 
 learning and abilities,) to make a right deter- 
 mination of it. Ad qucejiiojiem juris refpondent 
 judicesy ad qua/iionem fa6ii juraioreSy feems 
 to me to be a wife and juft maxim of 
 law, as well as an ancient and allowed one : 
 and it ought always to be confidered by juries 
 as the polar-ftar by which they ought to regu- 
 late their condud; and ufually, I believe, is 
 fo confidered by them. > . < ^ . . 
 
 -■<!)■ '•?-ir 
 
 An honeft and difcreet juryman, who fhould 
 difcover, that a point of law was concealed 
 under the feeming matter of fadl, which was 
 referred to his confideration, and who fhould 
 be Ibllicited by the counfel of one of the par- 
 ties and by his brother jurymen to bring in a 
 verdidt that fhould determine that point of 
 law in a manner contrary* to the opinion of 
 the judge who tries the caufe, would naturally 
 make anfwer to them in fome fuch manner as 
 this. ** Shall we, the jury in this caufe, think 
 ourfelves authorized to determine the point 
 of law, which now appears to be the hinge 
 upon which this caufe turns, when we re- 
 fied that, if the pleadings in it had been 
 clearly and judicioufly drawn up, fo as to 
 
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 [ 390 ] 
 
 make this point of law appear to be (what 
 we now find it to be,) the only, or prin- 
 cipal, matter in difpute between the parties, 
 it would not have been referred to our de- 
 termination, and even could not, by the 
 law, have been fo, though the parties them- 
 fclvcs (hould have defired that it might ? — 
 Is not this circumftance a plain proof, that 
 it does not belong to our office to determine 
 it, but that it can juftly be determined by 
 the judges only ? — And can we think our- 
 felves warranted, in point of confcience, to 
 take advantage of the imperfect and either 
 fallacious, or foolifh manner, in which the 
 pleadings have been prepared, to arrogate to 
 ourfelves a right of determining matters of 
 law, which we know the law does not allow 
 us in a plain and diredt manner ever to do. 
 Surely, this would not be the condudl of 
 
 upright and confcientious men. Butj 
 
 further, if we could fuppofe ourfelves autho- 
 rifed and warranted, in point of confcience, 
 to determine this point of law, yet what 
 folly would it be for us to attempt to do fo, 
 in oppofition tq the opinion of the judge ? 
 Would it not be fetting up our own opi- 
 nion, ignorant as we are of the law, againd 
 the clear opinion of the learned judge, or 
 againd the doubts, which he has declared 
 that he entertains upon the fubjed, and 
 which, he has told us, he wifhes to take 
 time, and hear further arguments, to cL-ar 
 
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 i 39' 1 
 
 ■I- 
 
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 up ? Should we not^ by fuch ridiculous pro«> 
 fumption, run the riik of injuring the party^ 
 again fl wjiom we (hould determine this point 
 of law, in a manner that could iTot after- 
 wards be redified, or, at lead, not without 
 refcinding, with ignominy to us, the whole 
 of our proceedings ? Would this be either 
 wife or juft ? To me it appears th« very 
 contrary of both : and nothing could, in 
 my opinion, judify us in doing fo, but ab- 
 folute necefilty. If, indeed, we were obliged 
 by any law to give our judgement, one way 
 or other, upon this point of law that ha« 
 arifen before us, I (hould have conddered it 
 as a great misfortune, to which we muft in 
 fuch a cafe have fubmitted : and I (hould 
 then have fet about this dangerous duty, (to 
 the due difcharge of which I (hould have 
 been confcious I was fo unequal) with fear and 
 trembling for the confequence, left I (hould 
 thereby do a ma|^rial prejudice (though in 
 fuch a cafe it would not have bect^ an in- 
 jury) to the lofing party. But, fortunately 
 for us, there is no fuch abfurd law in being. 
 We are under no fuch compulfion to un- 
 dertake a talk for which we are fo unfit. 
 We are at liberty to avoid determining this 
 point of law in oppolition to the judge's opi- 
 nion, by giving our verdid fpecially. And 
 that is what I, therefore, ftrongly exhort you 
 to join with me in doing." Thefe are the 
 reafons which, as I imagine, an honeft and 
 
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 t 392 J 
 
 fcrupulous juryman would alledge on fuch an 
 occafion, to excufe himfelf from complying 
 with his companions in determining a matter 
 of law. My readers muft determine whether, 
 or not, thefe reafons would be juft. 
 
 ._ • » * 
 
 But, fecondly, I am of opinion that no dan- 
 ger will arife to publick liberty by the ftridt 
 adherence of jurymen in all cafes to the de- 
 termination of matters of fadl only, and their 
 cautious refufal to determine matters of law, 
 when they happen to be intermixed with mat- 
 ters of fa(5t, except in plain cafes, in which the 
 judge affures them, that the matter of law is 
 very clear, and they comply with his difedions 
 and determine it according to them. I fay, 
 that I do not conceive that publick liberty 
 would be at all endangered, if jurymen were 
 always to adt in this cautious and difcreet man- 
 ner. On the contrary, I believe, that publick 
 liberty would be rendered more fecure by their 
 purfuing fuch a condud'j^^becaufe the method 
 of trial by jury (which I confider as a great 
 fupport to publick liberty,) would thereby be 
 prelerved in high reputation, and be rendered 
 more fecure againft the attempts of many per- 
 fons of high rank and great power in the 
 kingdom, who are fuppofed to bear it no good- 
 will. Were juries once to give way to an ill- 
 judged ambition of determining matters of law 
 as well as matters of fadt, fo that inftances of 
 that fort fliould become frequent 5 -— and were 
 
 they 
 
on fuch an 
 complying 
 ig a matter 
 ne whether, 
 
 that no dan- 
 >y the ftria 
 
 to the de- 
 
 » and their 
 ters of law, 
 d with mat- 
 1 which the 
 r of law is 
 is diredlions 
 ?m. I fay, 
 iick liberty 
 f^men were 
 ifcreet man- 
 :hat publick 
 lire by their 
 the method 
 ' as a great 
 
 thereby be 
 >e rendered 
 
 many per- 
 ver in the 
 it no good- 
 y to an in- 
 ters of law 
 nftances of 
 - and were 
 
 r 393 ] 
 
 they likewife in the afleflment of the damages 
 fuftained by plaintiffs, (which is their own 
 proper province,) to depart often from the 
 tme and only rule by which they ought to be 
 governed on thofe occalions, namely, the fair 
 and candid eflimation of the real lofs, and da- 
 mage, and uneafinefs, which the plaintiff has 
 fuffered, and to give favourite, or popular, plain- 
 tiffs exorbitant lums of money in compenfa- 
 tion for fmall injuries, whilft to other plain- 
 tiffs they gave lofs tlian the real compenfa- 
 
 tion of their lofles ; the confequence vi^ould 
 
 be, that they would loon grow to be objeds 
 of tcrrour to the publick, inltead of refped: and 
 confidence, and would give their aforefaid 
 enemies (who at no time are fond of tihe infti- 
 tution,) a fair pretence for laying the;n alide by 
 adt of parliament. Upon this account I am 
 always forry when 1 hear of what is called, 
 a very popular verdidt^ in an adtlon of trefpafs, 
 where the jury give much larger damages to 
 the .plaintiff than they, or any body elfe, be- 
 lieve to be a fair compenfation for the injury 
 he has received from the defendant, under tlie 
 notion pf vindi^ive damages, or exemplary da- 
 mages, as they are fometimes called, or by 
 way of example and terrour to other trefpaffers, 
 inftead of compenfatipn for the particular tref- ' 
 pafs referred to their confideration. All fuch 
 proceedings I conceive to be extenfions of their 
 jurifdidion, that are.contrary totheir oath, which 
 binds^ them to determine the matter before 
 
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 [ 394 1 
 
 them according to the evidence. If therefore 
 there is evidence before them, that an injury 
 has been done to the plaintiff, which in their 
 confcience they think would be amply com- 
 penlated by the fum of five pounds fterling, 
 they are bound by their oath to eftimate the 
 faid injury at five pounds, and no more, how- 
 ever odious, and pernicious to the publick fafe- 
 ty, the trefpafs may be which the plaintiff has 
 fuftained. And, if they eftimate the faid in- 
 jury at yT. I CO, or £, 200, inftead of £, 5, 
 they fay upon their oaths, that an injury that 
 really may be compenfated for five pounds, 
 (and which they think the plaintiff would be 
 glad to fuffer over-again for that fum, or lefs,) 
 cannot be compenfated for lefs than jT. 1 00, or 
 jf.2oo 5 which is affirming a falfehood upon 
 oath. All this appears to me extreamly plain 
 and certain, though I know there are many 
 gentlemen of refpedable characters and great 
 underflanding that entertain a different opinion. 
 But every man mufl be governed by the light 
 of his own reafon upon fubjedts that are ca- 
 pable of being eafily comprehended, (as this is,) 
 and do not require a great extent of learning 
 and knowledge to form a judgement con- 
 cerning them. This then being the light in 
 which this fubjedt flrikes me, I cannot but be 
 concerned, whenever I hear of any verdidl in 
 which the jury have either given a plaintiff 
 damages difproportionate to the injury he has 
 teceived -, or taken upon them to determine a 
 
 matter 
 
:|- 
 
 [ 395 ] 
 
 matter of law in a manner contrary to the 
 opinion of the judge, inflead of finding a fpe- 
 cial verdi(5l; or committed any other irregu- 
 larity, that may be taken advantage of to the 
 prejudice of that excellent inftitution. The 
 true way to preferve this mode of trial, and 
 with it the liberty of the people, not only 
 againft the opprellions of the crown, but 
 againft thole ot their rich and powerful fellow- 
 fubjedls, (of which liberty I acknowledge it 
 to be a main fupport,) is to be very difcreet 
 and temperate in the ufe of it, and upon no 
 account to extend it beyond the acknowledged 
 limits of its jiuifdidion, which common fenfe, 
 as well as the rules of law, muft convince us, 
 can relate only to the fettling of matters of 
 fadl, and not to the decilion of doubtful points 
 of law. 
 
 There is, ind'ced, one iubje6t upon which, "^^F'^^^'J-^ 
 I imagine, all lovers of publick liberty would puhiifhing 
 be inclined to think, that juries ought to have^^V"""" 
 the whole power of determining the matter in 
 conteft. The fubjed, I mean, is the dodrine 
 of fcditious libels, and the criminal profecu- 
 tions carried on again it the writers and publifliers 
 of them. Thele profecutions are attended 
 with fo much danger to that mod valuable 
 privilege of Englifli lubjedts, the Liberty of the 
 PrefSy or the right of animadverting freely, 
 and publickly, (but with a i^ridt adherence to "* 
 truth,) on the pernicious tendency of publick 
 
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 i 396 ] 
 
 mcafurcs, that one would wifli them to be 
 intircly under the controul of the people them- 
 felves, (o as never to be carried on with iuccefs 
 but when the people themfelves are fatisficd of 
 the falfehobd and mifchicvous tendency, or, at 
 leaft, of the mifchievous tendency, of the writ- 
 ings which are the occafion of them. And for 
 this purpofe it would be neceflury, that the 
 whole determination of thefe prolccutions fhould 
 be vefted in the juries, who are a part of the 
 people, and may be fuppofed to entertain the 
 fame fentiments with them. For, if the event 
 of thefe profecutions was to depend upon the 
 inclinations 0/ the judges, there would be rea- 
 fon to apprehend, that they would meet with 
 fuccefs much oftener than would be confiftent 
 with that fpirit of free inquiry and examina- 
 tion of the meafures of government, which is 
 necelTary to the correction of the abulcs of 
 power, and the prefervation of publick liberty. 
 Thofc magiftrates muft naturally be fuppoied 
 to be, in lome degree, partial to government 
 in cafes of this kind, even from refpedtable 
 motives. Their friendfhip and their gratitude 
 would often contribute to make them fo j — - 
 not to mention their felf-intereft and ambition, 
 which would lead them to hope for future fa- 
 vours from the crown. For, who would be 
 the object of the cenfures contained in the 
 writings under profecution ? Probably the king's 
 miniflers of ftate, by whole favour and pa- 
 tronage they, perhaps, would have obtained 
 . . their 
 
[ 397 1 
 
 their offices of judges, and might hope to gain 
 ftill higher honours for thcndfelvcs, or prefer- 
 ments for their families. In thcfe cafes, there- 
 fore, a jury of men of ordinary rank, as, for 
 example, oi fubftantial houfe-keepers in the 
 city of London, would be much lefs likely to 
 interpret the intentions of the writers and 
 publiftiers of fuch writings in a fevere manner, 
 and to confider the tendency of them as of 
 dangerous confequence to the publick, than a 
 bench of judges would be : and yet, they 
 would be fufficiently intcrefted in the prefer- 
 vation of the publick peace (upon which the 
 continuance of their own liberty, trade, and 
 property would depend,) to be free from any 
 undue biafs of favour towards thofe perfons, if 
 the writings, they had publiflied, had a real and 
 manifeft tendency to difturb it : and therefore, 
 upon the whole, they would be a fafer and 
 more impartial tribunal for the determination 
 ofthefe matters than the judges. It is reafon- 
 able, therefore, that all lovers of publick liber- 
 ty (liould willi, that the- whole power of de- 
 termining the merits of profecutions upon thefe 
 fubje(^s (hould be vefted in the juries. But, 
 in order to its being fo, it is by no means 
 necefiary, in my apprehenfion, to depart in 
 any degree from the rules above-mentioned, 
 concerning the diftihdl provinces of judges and 
 juries in the decifion of law-fuits, and the mo- 
 ral obligation, under which jurymen have been 
 fuppofcd to lie, to keep llridtly within the 
 
 bounds 
 
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 r 398 ] 
 
 bounds of their own province, without ever 
 prefuming to determine any matters of law. 
 All thefe rules may, as I conceive, be moft 
 inviolably adliered to, and yet juries will re- 
 main in poflertion of the whole of this im- 
 portant power of deciding all the matters in 
 conteft upon profecutions for feditious libels. 
 For in thefc profecutions all the matters in 
 conteft between the crpwn and the defendant 
 upon an iflue of Not guilty arc mere matters of 
 JaB-i without any, the, lead, mixture of matters 
 of law. This 1 fliall now endeavour to prove 
 by confidcring the fevcral allegations which go 
 to the compofition of a criminal charge for 
 writing a feditious libel. 
 
 of the al- An indi(Sment, or information, againft a man 
 canuS ^o*" writing a feditious libel, confifts of the 
 iu itn in- four following allegations, and of nothing more ; 
 fir writing to wit, firft. That the defendant wrote the pa- 
 •nd pub- pgf jjj qiiertion, which is always fet forth, 
 feditious word for word, m the indiament or informa- 
 **'^^- tion 'y fecondly, That he publilhed it 5 thirdly. 
 That he publiflied it with a bad intent ; and 
 fourthly, That the paper has a tendency to 
 difturb the publick peace. I fpeak of an in- 
 didment, or information, in which the fedi- 
 tious paper is not charged to be falfe, but only 
 fcandalous and malicious, and tending to caufe 
 of the a breach of the peace. For, if the charge of 
 Lifhood° falfehood is inferted in the information, that 
 in fuch an j^y(^ )qq reckoned as a fifth allegation contained 
 tion. in It. This was lormerly thought a neceilary 
 
 p.ut 
 
> ; 
 
 t 399 ] 
 
 part of a charge for publishing a feditlous li- 
 bel, hut was onj.rted (for the firft timf\ as I 
 have hear'd,) in the inlormation brought by 
 Sir FJet^ her Norton in 1764, agaiufl: Mr. Wilkes 
 for publidiin;^ the 45th number of the paper 
 called the North Briton, and has been omitted 
 in mofl of the inforinations that have been 
 brought for fuch publications fince that time. 
 The reafon for omitting it was, to avoid the 
 altercation which it ufed conftantly tooccafion at 
 thc'bar upon the trial of thefe informations, and 
 the plaufible, if not juft, pretence it afforded to 
 the defendant's counlel to infift, that the charges 
 contained in them were not proved. For, 
 though this charge of falfehood ufed to be in- 
 ferted in the informations, no attempts were 
 ever made to fupport it by proof, and the judges, 
 who tried thele informations, would neither 
 require the counfel for the crown to prove 
 that the writings in queftion were falfc, nor 
 even permit the counfel for the defendants to 
 bring proof that they were true ; fo that every 
 information, that was brought for a feditious 
 libel, was defedtively proved in this article of 
 the falfehood of it. Yet the juries ufed often 
 to find verdids for the crown again fl the de- 
 fendants, notwithftanding this defefl in the 
 proof of the charges brought againft them -, 
 and the court of King's-bench ufed, in confe- 
 quence of thefe verdidls, to pafs judgements, 
 and inflidl punifhments, upon them. This, 
 however, was fometimes complained of as an 
 ' irregu'.ir 
 

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 ■; . 
 
 irregular way of proceeding, that \yas not con- 
 fident with the rules of law obferved in other 
 cafes, and more efpecially in criminal pro- 
 ceedings, in which, in all other inftances, the 
 greateft flridtnefs is required. And it was 
 often made ufe of at the trial, by the defen- 
 dant's counfel, as an argument to the jury, to 
 perfuade them not to find the defendant guilty, 
 iince the counfel for the crown had not made 
 good the whole of the charge againft him, but 
 had failed with refped: to fo material an article 
 as the falfehood of the paper complained of. 
 " For, faid they, if the law be really fo fevere 
 as to confider the publication of a truth as a 
 publick crime, and deferving of publick pu- 
 nifliment, it mud, at leaft, be allowed, that it 
 is a lefs crime than the publication of the 
 fanle things would be, if they were falfe ; and 
 therefore, the defendant, who is only proved 
 to have publifhed the writings in queftion with- 
 out any proof that they are falfe, ought not 
 to be coniidcred in the fame light, and made 
 liable to be puniflied in the fame manner, as 
 if it had been prcv,ed that the faid writings 
 were falfe, as he will be, if the jury fhould 
 find him guilty upon this information." This 
 argument (which I take to be unanfwerable,) 
 was frequently made ufe of by the counfel 
 for the defendants upon the trial of thefe in- 
 formations, while the charge of the falfehood 
 of the libel, or writing, complained of, ufed 
 to be infertpd in them : and it, probably, might 
 
 fome- 
 
f 401 i 
 
 fometimes prevail with the juries, (notvvith- 
 ftanding the directions of the judges to the 
 contrary,) to find the defendants not guilty. 
 Sir Fletcher Norton^ therefore, feeing that the 
 infertion of this charge of falfehood in thefe 
 informations tended only to hamper the pro- 
 ceedings of the officers of the crown againft 
 the publi{hers of feditious libels, refolved to 
 leave it out for the future in all the informa- 
 tions of that kind of which he was to have 
 the management 5 in doing which he thought 
 himfelf fufticiently warranted by the preceding 
 declarations of the judges on various occafions, 
 that this charge of falfehood was an immate- 
 rial part of every information for a feditiou? 
 libel, which the profecutor was not bound to 
 prove, nor the defendant permitted to difprove. 
 And it is faid, that Sir Fletcher's fucceffors in 
 office have followed his example. And thus, 
 ever (ince that profecution of Mr. Wilkes for 
 the publication of the famous number 45 of 
 the North-Briton, thofe informations have been 
 drawn up without alledging, that the writings 
 complained of in them were falfe ; and the 
 profecutions of thefe offences have gone on, 
 in this refpedt, more fmoothly than before, 
 being rid of all the difficulties, which the in- 
 fertion of that charge of falfehood ufed to 
 give rife to. 
 
 I fay then, that in an information for writing 
 and publifhing a feditious libel, which is not 
 
 Eee charged 
 
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 charged to be falfe as well as malicious and 
 fcandalous, there are only the four allegations 
 before- mentioned, to wit, firft, that the de- 
 fendant wrote it ; 2dly, that he publiHried it j 
 jdly, that he had a bad intention in publifhing it ; 
 and 4thly, that the paper has a mifchievous 
 tendency, or a tendency to produce certain 
 bad effeds that are defcribed in the informa- 
 tion, fuch as alienating the aifedtions of his 
 Majefty *s fubjec^s from his Majefty's perfon and 
 government, or railing jealouiies in their minds 
 againft the parliament or the courts of juftice, 
 and the like* Now thefe allegations, I con- 
 ceive, to be all matters of fad. The two firft 
 of them, to wit, the having writ the paper, 
 and the having publi{hed it, are univerially 
 allowed to be fo : but the two latter, to wit, 
 the, intention of the publiftier and the ten- 
 dency of the paper to produce the mifchievous 
 effeds defcribed in the information, have been 
 fbnnetimes declared by the judges to he matters 
 of law, or, (as they have expreffed it,) infe- 
 rences of law drawn from the fadt of publica- 
 tion, and fit only to be confidered and deter- 
 mined by the judges, without the interference 
 of the juries. But this feems to be a modern 
 dodrine of the judges, that has been adopted 
 by them only fince the time when Lord Ray- 
 mond was chief juftice of the king's-bench. For, 
 before that time we find many judges, (and thoie 
 too, fome of them men of great charadter for abi- 
 lities and learning in the law, and others of them 
 great friends to the royal prerogative, and to a 
 
 rigorous 
 
 t: 'III 
 
[ 403 ] 
 
 rigorous method of government,) who were of 
 opinion, that both the intention of the writer 
 or publilher of the paper, and the tendency 
 of the paper to produce certain ill effedts, were 
 proper objcdts of the jury's confideration. And 
 this opinion, I conceive, to be agreeable to the 
 truth for the following reafons. » 
 
 In making this inquiry into the true diftinc-Of|*etrue 
 tion between matters of law and matters of between 
 fadl, in the law-lenfe of thofe words, that is, fj;^"JJf/'" 
 between matters which are fit only for the matters tf 
 confideration of the judges, and matters which ^*^* 
 are fit objedts of the confideration and deter- 
 mination of a jury, I think, we may affume 
 it as an axiom, or fundamental maxim, which 
 every body muft allow the truth of, that every 
 thing that can be proved by the teflimony of wit- 
 nejjeSy is a Jit objeB of the jurys confideration. 
 For of this fort of evidence, this external evi- 
 dence, they are univerfally allowed to ]?e the 
 proper judges : and the oath they take^ when 
 they are impannelled, " to try the iflue joined 
 between the parties and a true verdidt give 
 according to the evidence^* plainly makes them 
 ib; and, indeed, it gives them a power of 
 judging and determining according to other evi- 
 dencey befides the teftimony of witnefiles, when 
 fuch other evidence is produced before them. 
 But it is fufficient for the prefent purpofe, that 
 they (hould be allowed to be the true and pro- 
 per judges of all that external evidence that 
 
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 confifts in the teftimony of witneffc^. Wc muft, 
 therefore, inquire, whether, or no, the inten- 
 tion of a man in publifhing a writing, and 
 the tendency of the writing to produce a par- 
 ticular ill effedt, are matters which are capable 
 of being ppoved, or difproved, by the tefti- 
 mony of witnefles. Now it appears to me, 
 that they moft manifeftly are capable of being 
 fo proved, or difproved. For, firft, as to tha 
 The in- intention. Who can doubt but that proof may 
 Tman^in ^c givcn by witncflcs, that the paper was 
 publifhing publiflied with an innocent, or even a good 
 a nutter of intent, or, in fome cafes, with an abfence of 
 ha, ti^e i^ad intent alledged in the information, and 
 without which there can be no guilt in the 
 publifher ? This may be ealily illuftrated by 
 the following examples. It is allowed upon 
 thefe profecutions, that the delivery of a (ingle 
 paper from one perfon to another (whether 
 • the paper be in print, or manufcript,) is an adl 
 of publication. Suppofe, therefore, that it could 
 be proved, that the defendant, who was pro- 
 fecuted for publifhing a feditious paper, and 
 who had been already proved to have delivered 
 it to another perfon, that is, to have publiflied 
 it, was an illiterate man, who could neither 
 write nor read 5 and that he knew nothing of 
 its contents ; and that he was a fervant to a 
 printer, or bookfeller, (as, for inftance, their 
 porter,) and had delivered the paper, by his 
 mafter's order, amongft other papers, or par- 
 cels of goods. Certainly this proof would be 
 
 material 
 
 
[ ,405 ] 
 
 material tc the queftion, whether the defen- 
 dant was guihy, or not, of the crime imputed 
 to him by the information, and would be fuf- 
 iicient to (hew, that he had not that ill inten- 
 tion in publi(hing the paper, which was ne- 
 ceflary to make him guilty of that crime, and 
 confequently would be a ground for his ac- 
 quittal. And, as this proof would be extra- 
 neous to the paper itfelf, and could only be 
 given by witnelTes, it could be given only to 
 the jury, who are confelTedly the judges of all 
 the evidence that is delivered by witnefles in 
 every caufe. If, therefore, the information were 
 brought againft fuch fervant, or porter, he 
 ought evidently to be acquitted by the jury on 
 account of this abfence of the criminal inten- 
 tion imputed to him in the information, 11^ 
 indeed, the information was brought againft 
 the bookfeller himfelf, inftead of his porter, 
 and the fame proof was to be produced againft 
 him as has been juft now fuppofcd to have 
 been brought againft his porter, to wit, that 
 he had delivered the paper to another perfo^ 
 with his own hand, but that (though he was 
 fkilled in reading and writing,) he had not 
 read it, and did not know its contents at the 
 time he delivered it, this, perhaps, might not 
 be deemed fufficient to excufe him from the 
 charge of publiftiing it with a criminal inten- 
 tion, becaufe it was his duty, as a mafter- 
 bookfeller, to attend to the nature of the things 
 he publiftied, and examine thetix, or caule 
 
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 them to be examined by other proper perfons, be- 
 fore he ventured to mal^e them publick. I fay, it 
 is poffible that he might, in fuch a cafe, be held 
 guilty of the criminal intention imputed to 
 him in the information ; though I mud con- 
 fefs, I do not think it quite clear that he ought 
 to be lo. And even if, upon an ink rmation 
 againft a bookfcller for publifliing a kditious 
 libel, it fhould be proved, that tb« fervant, or 
 ihopman, of fuch bookfellcr had delivered a 
 fcditious paper to a purchafer, by virtue of his 
 ipafter's general diredions to him to attend in 
 the (hop and fell books to his cuflomers, fuch 
 a delivery by the fervant might, perhaps, 
 (though I am not without fome doubts about 
 it,j be held good prefumptive evidence of an 
 intention in the mafler to publilh it, although 
 it fhould be proved that the mafter himklf 
 knev^^ nothing of the contents of it ; becaufe 
 it might be faid, in this cafe as well as in the 
 former, that the mafler had been guilty of a 
 criminal negligence in not previoufly examin- 
 ing it, or caufing it to be examined, before he 
 ventured to make it publick. But, if, in this 
 lafl inflance of the delivery of the paper by 
 the fervant of the bookfeller, it (hould be 
 proved, not only that the mafler knew no- 
 thing of its contents at the time of its delivery, 
 or pabllcation, but that, at that time, and for a 
 week before the laid delivery of it, or even before 
 it had been received int^ bio (hop, or ordered to 
 be lent to it, he had been lick in bed, and de-. 
 
 lirious. 
 
'1 
 
 [ 407 ] 
 
 lirious, and that the whole bufinefs of his 
 (hop had been condudted by his foreman, he 
 muft, I prefume, in confequence of fuch evi- 
 dence, be efteemed free from the intention of 
 publifhing it imputed to him in the informa- 
 tion, notwithftanding it had been published in 
 coniequence of his general diredlions to his Ser- 
 vant to fell books to his cuftomers ; becaufe he 
 would, in fuch a cafe, have been incapable, 
 at the time of the publication of fuch paper, 
 of fuper-intending the bufinefs of his lliop, and 
 examining the bouks that were brought into 
 it, and confequently Would not have been guil- 
 ty of the criminal negligence above-mentioned : 
 and theiefore, in fuch a cafe, he muft, I pre- 
 fume, be acquitted. Now, in all the(e cafes, 
 the proofs here mentioned, (which relate to 
 the intention of the defendant in publifliing 
 the paper in queftion) could be given only by 
 witnelies, and confequently could be given 
 only before a jury : and therefore, the inten- 
 tion of the defendant in publifliing the paper 
 is a proper objedl of the jury's confideration. 
 
 Many more inftances might be brought to 
 ihew, that the intention of a man in writing, 
 or publifhing, a paper, (or, indeed, in doing 
 any other a(5, of which a mural agent is ca- 
 pable,) may be proved, or difproved, by the 
 teftimony of witnefles, and confequently is a 
 fit fubje^ for the confideration of a jury. And 
 in moft cafes it can be proved no other way. 
 
 Witneffcs 
 
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 Witncffes may prove, that the writer of a libel 
 confefled to them, or declared to them with 
 triumph, that he wrote the paper in queftion 
 on purpofe to raife fuch or fuch a difturbance^ 
 to caufe a mutiny in the army or the fleet, 
 or a reflAante to a new tax, or to fome other 
 aft of government. Or they may prove, that 
 certain praifes given to particular perfons in 
 the libel, are meant ironically, and contain 
 the ievereft cenfuresj — that they hear'd the 
 writer confefs he meant them fo, and declare 
 that he hoped that the world would under- 
 ftand them foj— that they know that the per- 
 fons fpoken of in the paper, are not ufually 
 commended for the virtues therein aferibed to 
 them, but are reproached by their enemies for 
 the want of them, and confequently, that the 
 pafTage is to be underftood ironically. Such 
 evidence would be highly proper and ufeful 
 towards afcertaining the criminal intention of 
 the writer of the paper in queftion ; and with- 
 out fome fuch evidence, it will often be im- 
 poflible for either the judge, or jury, rightly 
 to underftand the meaning and drift of the 
 paper, or the intention of the writer in publilh- 
 ing it. Now, fuch kind of evidence, as it can 
 be given only by witnefles, can be given only 
 before a jury : and, therefore, the jury muft 
 have a right to determine, how far it tends to 
 prove, or difprove, the point to which it re- 
 lates, to wit, the criminal intention of the 
 publiftier of the paper. This feems to me to 
 
 be 
 
ill 
 
 [ 409 ] 
 
 be fo plairt, that I am fomewhat afraid my 
 readers will blame me for dwelling fo long 
 upon the proof of it, and be apt to fay in the 
 words of Cicci'o, concerning a man who fhould 
 take great pains to prove that Alexander alone, 
 without the afliflance of his foldiers, could hot 
 have won the battle of Arbela, uteris in re non 
 dubid argumentis non necejjariis. And indeed 
 I fhould not have thought it needed any 
 proof, if I had not it^n it denied by per- 
 fons of great authority, who have alferted, 
 that the criminal intention of the publifli- 
 er of a libel is not a matter of fud, or 
 matter fit for the confideration of a jury, 
 but merely a matter of law, or an inference 
 of law from the naked fadt of publication, 
 which the judges only ought to make. Yet 
 thefe very perfons of authority acknowledge, 
 th^t the right of determining what the writer 
 of the libel meant by the blanks and initial 
 letters, and the feigned names that are often 
 to be found in feditious libels, belongs to the 
 jury only ; which is not very confiftent with 
 the faid affenion, fince thefe are a part of the 
 writer's intention, which thofe perfons con- 
 tend to be a mere inference of law. I hope, 
 therefore, upon the whole, that the reader, 
 who dares to make ufe of his own judgement, 
 and is not difpofed jurare in verba magijiri^ 
 will be fully convinced that the intention of 
 a man, in publiihing a feditious paper, is a 
 matter of fadt, in the law-fenfe of the word, 
 
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 Of the ten- 
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 paper to 
 produce 
 certain 
 inifchie- 
 voui cf- 
 fcOs. 
 
 This ten- 
 dency is 
 nlfo a mat- 
 ter of fa£l. 
 
 I 410 ] 
 
 that is, an cbjedl of the evidence of witnefles, 
 and of the confideration and determination 
 of a jury, as well as the very ad of publica- 
 tion itfclf. 
 
 It remains that we examine the fourth and 
 laft allegation that is contained in one of thefe 
 informations, to wit, the tendency of the 
 paper complained of to difturb the publick 
 peace^ or produce the other ill effects that are 
 let forth in the information. Now this point, 
 I confefs, is of a more fubtle nature than 
 either of the former three, and may be more 
 eafily reprefented as a mere point of law, or 
 inference of law, (as it is called) to be col- 
 lected from the perufal of the paper itfelf. 
 And yet, I think, upon a clofe examination, 
 it will appear to be a matter of fadt, or a pro- 
 per fubjedt foi ihe confideration of a jury, as 
 well as the three former points. 
 
 In order to difcover whether, or no, the 
 tendency of a particular paper is a matter of 
 fa(fl, or a fit objedt of the confideration of a 
 jury, we mud inquire whether, or no, it can 
 be proved, or difproved, by the teflimony of 
 witnefles i For, if it can, it is a matter of 
 fadl, and the jury have a right to confider and 
 determine it. Now it is certain that this 
 tendency can in moft, if not in all, cafes be 
 either proved, or difproved, by witnefiTes ; 
 though it may alfo, in fome cafes, be eol- 
 
 leded 
 
[ 4n ] 
 
 Icdted from the mere perulal of the p^pc*r. 
 If the paper contains blanks and ini A 
 letters (as moft of thefe papers do,) then it 
 is moft evident that, till the meaning of thofc 
 hlanks is afcertained, the tendency of the 
 paper cannot be known : and the right of 
 ufccrtaining the meaning of thefc hlanks is 
 confcllcd on all hands to belong to the jury. 
 Therefore in thefe cafes the right of deter- 
 mining the tendency of the paper inuft belong 
 to the jury. And, if the paper contains no 
 blanks, but is full of allufions to perfons of 
 great rank and power defcribcd under feigned 
 names by circumftances that are peculiar to 
 them, it is nccelfary to have witnelTes to prove 
 that thofe circumftances relate to the faid 
 perfons, and confequently that they are the 
 peribns meant to be pointed out to the fcorn 
 and indignation of the publick by the writer 
 of the paper. Or in fuch a cafe, the witnelTes 
 may teftify that they hear'd the defendant, 
 the writer of the paper, himfelf, fay that he 
 meant the faid peribns by the faid delcription, 
 and that he hoped the publick would not fail 
 to underftand him. Or they may teftify tliat 
 they have often hear'd him utter th^ fame 
 invedives againft thofe perfons as are con- 
 tained in the paper in queftion, though with-, 
 out confeffing that he meant to defcribe thofe 
 perfons in the faid paper, or even that he was 
 the writer of it. All thefe various kinds of 
 evidence would hi admiflible in fuch a cafe to 
 
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 prove that the allufions in quedion did relate 
 to the faid perfons of rank and power ; with- 
 out which relation the faid paper would be 
 quite innocent and inofFenfive, and have no 
 tendency to difturb the publick peace. This 
 tendency therefore of the paper complained 
 of to difturb the publick peace, or produce 
 the other bad effedls fet forth in the informa- 
 tion, is in all thefe cafes a thing capable of 
 being proved by witncfTes, and which indeed 
 can be proved no other way, and confcquently 
 is a fit objed of the coniideration of a jury, 
 or, in the law-fenfe of the words, a matter of 
 fadt. And even, if we fuppofe the paper in 
 queflion to contain neither blanks, nor initial 
 letters, nor allufions to particular perfons un- 
 der feigned names, nor any other fort of dif- 
 guife whatfoever, (which feldom happens) but 
 to name all the perfons it means to fpeak of 
 by their known names and offices, yet even 
 in this cafe it is certain that witnefTes may be 
 admitted to prove, or difprove, the tendency 
 of the paper, that is, to confirm, or to con- 
 troul and refute, that internal evidence of its 
 tendency, which, I acknowledge, will, in 
 fome degree, refult from the bare perufal of 
 it. For witnefTes may be brought to prove 
 that it has a(^tually occafioned that diflurbance 
 which it feemed to be intended to create, as, 
 for inflance, that it has excited a fpirit of 
 difTatisfacftion in the fleet or the army, or a- 
 gainft the adminiflration of juflice by the 
 
 king's 
 
 I'; ^ t 
 Ivr - 
 
 ^1: 
 
t 4'3 1 
 
 king's courts, or the like. Such evidence of 
 the paper's having produced fuch ill efFeds 
 would be the ftrongeft evidence polTiblc of 
 its tendency to produce them. And, on the 
 other hand, if a paper was writ that con- 
 tained a real pancgyrick upon a great man, 
 couched under the form of a fevere invedlivc, 
 afcribing to him thofe vices from which he 
 was known to be peculiarly exempt, and de- 
 nying him tliofe virtues in which he was 
 known moft to excell, (as, for example, call- 
 ing the great duke of Marlborough an ill- 
 bred, paltionatc, tyrannical man, that was 
 utterly ignorant of the art of war, and quite 
 given up to drunken nefs, when he was known 
 to be the calmeft-tempered, mildeft, bed- 
 bred gentleman of his age, of great Ikill in 
 the art of war, and very temperate,) and an 
 information fhould be brought againfl the 
 writer of it for writing and publilhing a fe- 
 ditious libel, it would in fuch a cafe be lawful 
 for the defendant to call witnefTes to prove 
 that the great man fpoken of in the paper was 
 fo eminently free from the vices imputed to 
 him in it, that it could only be underllood, by 
 all perfons who had any knowledge of his cha- 
 racter, as a panegyrick upon him conveyed un- 
 der the form of an invedlive, and that it had 
 been generally fo underllood by all the world, 
 and confequently could have no tendency to 
 excite thofe dirturbances which a belief of his 
 having thofe vices would probabiy occalion. 
 
 And 
 
 ; 
 
 ^1 
 
 '. \ 
 
~ 
 
 *.;' ■ i ■ 
 
 p ■ 
 
 11. 
 
 .*' 
 
 Ir' 
 
 
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 [ 4H ] 
 
 And if the jury believed thefe witnelles, ami 
 confequently were of opinion that the paper 
 had not the pernicious tendency afcribed to it 
 in the information, (and which from the mere 
 perufal of it, without a knowledge of the cha- 
 racSter of the perfon fpoken of in it, one would 
 be apt to think belonged to it,) it would be 
 their duty to find the defendant Not guilty. In 
 the next place I will fuppofe the oppofite cafe 
 to the former, to wit, that of k fevere in- 
 ventive againft a great man, conveyed under 
 the form of a panegyrick, commending him 
 for virtues which he was generally thought to 
 want, without any blanks, initial letters, or 
 feigned names. In fuch a cafe it would be 
 lawful for the profecutor to produce witneiTes 
 to prove that the writer of the paper was a 
 bitter enemy of the great man thus ironically 
 commended in it; — that they had often hear'd 
 him exprefs a very bad opinion of him, and 
 deny him the virtues afcribed to him in the 
 paper, and afcribe to him the oppofite vices;' — 
 that they themfelves therefore underllood the 
 paper to be meant ironically, and that they 
 had met with feveral other perfon s who had 
 
 all underftood it in the fame manner; 
 
 that not only the writer and the other enemies 
 of the great man, but even moll of his friends 
 were of opinion that he was not intitled to 
 the praiTcs beflowed on him in the paper, 
 and that they therefore, on that account, (as 
 well as on account of the known enmity of, 
 
 the 
 
 
 
 J 
 
 ( 1 
 
 \ ^ 
 
3er was a 
 
 [ 415 ] 
 
 thje writer againft the great man,) believed 
 thofe praifes to be meant ironically, and in- 
 tended to bring him into publick odium and 
 contempt -, — and that they adually had pro- 
 duced that efFedt, and raifed a great difguft 
 againft him in the perfons who were moft 
 coniji^ed with him, and whofe chearful 
 obedience, afliftance, and concurrence, were 
 moft neceflary to his difcharging the duties of 
 his great office with fticcefs and advantage to 
 the publick. If thefe things were made out to 
 the fatisfadlion of the jury, it would be their 
 duty to find the writer of the paper guilty of 
 publiftiing a feditious libel, notwithftanding 
 the apparent inoffenfivenefs of the paper, or 
 its want of tendency to produce any ill cffcd:, 
 {0 far as its tendency could be colleded from 
 the mere perufal of it : fo that in this, as well 
 as in all the former inftances, the tendency of 
 the paper vi^ould be afcertained by the tefti- 
 mony of witnefies, and would confequently 
 be the objedt of the confideration and deter- 
 mination of the jury. We may therefore, I 
 thijik, fafely conclude that this fourth and 
 laft allegation, contained in an information 
 againft a man for writing and publi(hing a 
 feditious paper, or libel, to wit, its tendency 
 to difturb the publick peace, or to produce 
 the other bad elledils fet forth in the informa- 
 tion, is a proper objedl of the confideration 
 and determination of a jury, or, in the law- 
 fenfe of the phrafe, a matter of fad, as well 
 
 ' as 
 
 
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 t 416 1 
 
 as the three former allegations, of the writing 
 the paper, the publifhing it, and the intention 
 with which it was publifhed. 
 
 I have hitherto confidered thofe things only 
 as being matters of fadt, or objeOs of a jury's 
 confidcration^ which are capable of being 
 proved, or difproved, by witnelfes ; becaufe 
 this is the plained and cleareft mark of di- 
 ftindlion between them and matters of law 
 that can, as I apprehend, be given. But I 
 conceive that the province of the jury extends 
 a degree further than this, and that they have 
 a right to make all fuch inferences from fadts 
 as may be made without any fl^ill or know- 
 ledge of the law, even if no new evidence 
 could be given by witnelfes in fupport of fuch 
 inferences. For fuch inferences from fads 
 are merely operations of reafon, which is a 
 talent common to all men, to jurymen as 
 well as to judges : and, with refpedt to the 
 meaning of feditious papers, and the inten- 
 tions of the publifhers of them, and their ten- 
 dency to produce certain bad effedts ftated in 
 an information, it often happens that jurymen 
 are better able to make thefe inferences than 
 judges, even where no evidence ihould be 
 given by witnefTes concerning them ; becaufe 
 they have often a more extenlive intercourfe 
 with the reft of mankind, and a greater know- 
 ledge of the bulinefs and converfation of the 
 world, than judges (who are men of retired 
 lives, given up to the ftudy of the law, and 
 
 the 
 
 \rk 
 
Ihe writing 
 
 " intention 
 
 hings only 
 of a jury's 
 of being 
 ; becaufe 
 rk of di- 
 rs of law 
 n. But I 
 ry extends 
 they have 
 from facets 
 or know- 
 ' evidence 
 3rt of fuch 
 from fads 
 i^hich is a 
 jrymeri as 
 e<^t to the 
 the inten- 
 l their ten- 
 :s ftated in 
 It jurymen 
 -nces than 
 fliould be 
 ; becaule 
 ntercourfe 
 ter know- 
 on of the 
 of retired 
 law, and 
 the 
 
 [ 417 ] 
 
 the difcharge of the duties of their refpedlablc 
 offices,) can be fuppofed to have* Thofe in- 
 ferences therefore ought not to be called in- 
 ferences of law, but inferences of fa(5l, being 
 a Secondary, or fubordinate, fpecies of fadls, 
 derived from the more fimple and diredt fadts, 
 of which they are the circumftances or pro- 
 perties. For fads may be divided into two of the 
 clafTes, which it may perhaps be of fome ufe, ^InZ'^l} 
 in conlidering this fubjedtj to diftinguifh byftifts. 
 the names of primary and fecondary Ja&s, 
 The former. Or primary ^ fads are thofe plain ofprimary 
 and iimple fads which are the objeds of the ^*^'* 
 fenfes, and are generally proved by the pofitive 
 teftimony of witnefles ; fuch as, whether fuch 
 a man gave fuch another a blow, or a wound 
 with a fwOrd, or fired a piftol at him, or 
 whether fuch an one delivered a particular 
 paper to fuch another ; though even thefe may 
 ibmetimes be colleded by inference from cir- 
 cumftances. Thqfe things are fo plainly 
 matters of fad, that bo fojSiiliry in the world 
 Can make them appear to any body to be mat- 
 ters of law. But the latter, or fecondary y of hcon. 
 feds are fa<fts of a. more abftrad, or remote, *^*'^^*^'' 
 kind, and may often be colleded from the 
 former by mere reafoning, without the htlp 
 of external tcflimony. buch is the intention 
 of a man in breaking open and entering a 
 lioufe by night : which, if it be to commit a 
 felony, makes the breaking and entering the 
 houie amount to the crime of burglary, which 
 
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 IS punifhed with death -, but, if it be to com- 
 mit a trefpafs only, (as, for inftance, to beat. 
 Or to frighten, fomebody iii ^he houfe,) makes 
 it only a mifdenieanouf, which is punifhable 
 by fine and impfifunment. And luch is the 
 intention of a Vvriter in writing and publifliing 
 a paper againft the meafures of government ) 
 wnich, if it be to raife a fpirit of difcontent in 
 the people ngainil thei- governour , is crimi- 
 nal, and makes the writer and publisher liable 
 to punifhment ; but, if the paper is intended 
 only as a petition to the king, or any inferioitr 
 magiftrate, praying him to delift from a mea* 
 fure by which the petitioner thinks himfelf 
 aggrieved, and it is delivered only to the per- 
 fon from whom the redrefs is prayed, it is an 
 innocent intention, and cannot make the a^ 
 of publi/hihg the paper the object of ptinifh- 
 msnt. In all thel'e cafes the intention of the 
 party accufed is a matter of fad)-, as well as 
 the giving a blow, or a wound with a fword, 
 or firing the piftol, or breaking and entering 
 the houfe, and the writing and publifhiitg the 
 paper, though it is of a lefs grofs and obvious 
 nature than thofe other fadts, and lefs capable 
 of being proved by the frofitivc teftimony of 
 witneiTes, and fometimes can only be coU 
 leded from thdfe other fads by reafoning 
 upon them ; I fay* fometimes^ becaufe for the 
 moft part, (as we have feen above,) it will 
 alfo admit of confirmation and explanation by 
 the teilimony of witneflcSi Thefe fads there- 
 fore. 
 
M' y 
 
 '■)) 
 
 [ 419 J 
 
 fore, from their being concomitant circum-p 
 fiances of the former, or more fimple, h&s^ 
 may with fome propriety be called fectmdary 
 fads, if the former be called primary ones. 
 And this diflindtion may perhaps be ufeful to 
 prevent thefe fecondary fadls from being con- 
 founded with matters of law, with which they 
 agree only in this point, to wit, that fbme 
 degree of reafoning is to be ufed in diicufUng 
 and inveftigating them both. But the difFe-ofthedif' 
 rence between the cafes is this. The reafon-["""f^f' 
 ing to be ufed in the inveftigation of matterscondary 
 of law is grounded on the knowledge of thcmf/tersof 
 law, and can only be ufed by perfons who are^aw. 
 pofTefTed of that knowledge ; whereas, in the 
 cafe of thefe fecondary fads, the reafoning to 
 be ufed is grounded on common fenfe and a 
 knowledge of the world, and the prefent tran- 
 fadions of it, and the flories that are told of 
 perfons in adtive life and in offices of great 
 rank and power; all which (as we before 
 obferved,) are things that are often better 
 known to jurymen than to judges. And 
 therefore we may conclude that, if no evi- 
 dence could be produced by witneffes to con- 
 firm or difprove thefe fecondary fa<^ts, yet the 
 jury would flill have a right to judge of them, 
 and to infer them from the primary fatts by 
 the exercife of their own reafon. But it al- 
 mofl always (or, perhaps, abfolutely always) 
 happens that thefe fecondary facts, though 
 they may in fome degree be inferred from the 
 
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 view of the 
 
 
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 duty of a 
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 mation for 
 
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 vrriting 
 
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 and pub. 
 
 
 S 
 
 liihing a 
 
 
 
 feditioui 
 libel. 
 
 f 420 ] 
 
 primary fadts by mere reaibning, yet may be 
 alio coafirmed, or controukd and difproved, 
 by the pofitivo teftimoivy of witneffes ; which 
 diflingiiikhes them dill more clearly from 
 matters of law, (in determining which the 
 teftimony of witneffes is wholly inadmiflible,) 
 and proves them beyond a doubt to be matters 
 of faifl, in the law fenfe of the phrafe, or 
 objedts of the confideration and determination 
 of a jury, according to the fundamental po- 
 sition above laid down, to wit, that fuch 
 matters are proper objefts of the confideration 
 and determination of a jury as are capable of 
 being proved, or difproved, by the evidence 
 of witneffes. I conclude therefore that both 
 ibe intention of the writer and publifher of a 
 paper charged to be a feditious libel, and the 
 tendency ot the paper to diflurb the publick 
 peace, or produce the other mifchievous 
 efFe<fls fet forth in the information (which 
 are fecondary fads in the fenfe herein before 
 defined,) are proper obje<fls for the confidera- 
 tion and determination of a jury, or, in the 
 ufual Jaw-phrafe, matters of fadt, as well a9 
 the adual writing and publication of it. ~ - ' 
 
 ■ .\' 
 . » i 
 
 If this conclufion is jufl, the whole bufinefi 
 of a jury, upon the trial of an information 
 for writing and publifhing a feditious libel, 
 may be faid in few words to be this ; ** To 
 inquire into the conduftof the perfon charged 
 with having written and publifhed th^ paper 
 
 in 
 
 u \ 
 
J 
 
 V 421 1' 
 
 In queilion, by the means of the evidence of 
 witnefTes and of .fuch fair inferences as they, 
 the jury, by their natoral reaibn and good 
 fenfe, are able to derive from the faid evi- 
 dence ; and, having thus difcovered what the 
 eondudt of the faid defendant, with refpcdk 
 to the faid charge, has been, to compare it 
 with the condud imputed to him in the in- 
 formation ; and, if they find it to be the fame 
 with the condu<ft imputed ta him in the 
 information in all points, to afiirm the in-^ 
 formation, by finding the defendant gui/ty of 
 the charge in the manner and form fet forth 
 in the information, (for thofe are the words 
 ufed in a verdidt of convidion ;) and, if they 
 find his C(>ndud, as proved by the evidence^ 
 to fall fhort of the condudt imputed to him 
 in the information in any of the four points 
 above-mentioned, to deny the information, 
 bv finding the defendant Not guilty of the 
 charge in the manner and form fet forth in 
 the information, which are the words ufed 
 in averdidt of acquittal." This feems to me 
 to be an accurate and plain defcription of the 
 duty of a jury on the trial of one of thefc 
 informations. ' ^ ;' 
 
 'When the jury have thus exercifed their The qoef. 
 office of inquiring whether the defendant*Sti°er*the*'* 
 real condudl has been commenfurate with theJJ^*^""* " 
 condud imputed to him in the information, the in for. 
 and have determined that it has been fo, byJJ**"^"'^!-* 
 
 * ' - finding fence, or 
 
 '"«' 
 
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 Ill 
 
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 [ 4" ] 
 
 o? '^umih-^^^'^S ^*"^ guilty of the charge in the xn$n^ 
 ment in a ner and form fet forth in the informatipny 
 ^c^rjfs a '^^^^ ^*^^ remains another point to be con- 
 jneftionoffidered before judgement can be given againti: 
 the defendant, which is whether the oSence 
 fo charged and found by the jury is a publick 
 offence, or an objedt of legal punifhment. 
 For, if it /hall be made appear by juft and 
 legal reafonings at the bar, that the writing 
 and publiQiing the paper in queAion, though 
 it was done deliberately, and has the tendenc} 
 afcribed to it in the information, yet is not 
 an offence of fuch great and publick confe- 
 quence as to be an obje(St of legal punifh- 
 ment, it will be the duty of the court to 
 forbear giving judgement againft the defen- 
 dant, and to difmifs him with impunity, not- 
 withflanding the verdidt of convidion found 
 againfl him by the jury. But this, I appre- 
 hend, is a matter which the judges only have a 
 right to determine, cither upon a motion made 
 before them on the behalf of the defendant 
 in arreft of judgement, or of their own accord, 
 without futh a motion, if they of their own 
 accord come to be of opinion that the fadts 
 charged in the information do not conftitute a 
 legal offence. For this is really and truly a 
 matter of law, and not a fecondary fadt, or 
 inference from other fads, nor a matter to 
 which the teftimony of witnefles is in any 
 degree applicable, (like the intention of the 
 writer and the tendency of the paper, and 
 
 other 
 
 •i. 
 
 1 
 
 
 ^ 
 
[ 423 1 
 
 other fuch fecondary fa^s as have been 
 above mentioned,) and therefore is not a fit 
 objc(fl of the conlideration and determination 
 of a jury: An inftance or two will make 
 this matter very plain. It is certainly a 
 publick and punifhable offence to publifti a 
 paper tending to difgrace and vilify the king 
 upon the throne, and alienate the affections of 
 his fubjeds from his perfon and government, 
 more efpecially if the imputations thrown out 
 againil him are falfe. This was the offence 
 committed by Do6\or Shebbcare in the reign 
 of our late gracious Sovereign, George iL 
 for which, in the opinion of moft people, he 
 was defervedly punifhed. But, if the fame 
 abufe were now to be rc-publifhed againft 
 the fame good monarch, it may be doubted 
 v<rhether the publifher of it would be an ob- 
 jedl of legal punifhment, though he would 
 juftly incur the cenfure, and excite the indig- 
 nation, of all good men that remembered the 
 juft and prudent government, and refpeded 
 the memory, of our late fovereign. For, as 
 it can no longer tend to produce the f?.me bad 
 effedts as formerly, the monarch, who was 
 the objedt of it, being no longer among the 
 living, it feems unreafonable to fuppofe that 
 it could be the objedl of that legal cenfure 
 which was grounded on its tendency to pro- 
 duce thofe bad effe(as. Yet it might be faid, 
 on the other hand, that it ftill had a tendency 
 to produce Jbme bad effeds, though not the 
 
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 B^ 
 
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 [ 4*4 ] 
 
 fame as before* nor of fo great importance j 
 and that) on account of its faid tendency to pro* 
 duce thefe leiTer bad efl^ds, it ought Aill to 
 be the objcd of fome, though a lefler, legal 
 punishment. And to this it might be replied 
 on the behalf of the re-publi(her, that every 
 a(5t that in a fmaJJ degree has a tendency to 
 produce fome ill tffttX^ ought not to be the 
 objevSt of a legal punishment, and is not fo by 
 the law of England; — that, for example, the 
 moft fcurrilous words ipoken, (but not writ- 
 ten,) even of a perfon now alive, are not the 
 objed of fuch punifliment, but only of a 
 civil a<5tion ; and many icurrilous words ^re 
 hot even the objtsd of a civil adlion, but only 
 of a proceeding in the eccleiiaflical court c^ 
 the bifliop of the dioceie, carried on pro 
 jalute aniiTKe^ et cofreSlione morum j — that only 
 thofe anions are the obje<5t8 of legal puniih- 
 ment in the temporal courts which have a 
 tendency to produce fome very pernicious 
 publick confequences, and didurb the admi- 
 niflration of the governmept ; and that this 
 was not likely to be the e^e^t of a republir 
 cation of the abufe upon our deceafed fove- 
 reign j and conlequently that fuch a republi- 
 cation was not the object of legal punifhment. 
 Islow in all this argument the teftimony of 
 witnefTes is evidently quite inadmiflible; nor 
 can mere reafon, or common fenfe, deter- 
 mine on which fide the truth lies: but it 
 is plain that this can only be determined 
 by the principles of the criminal law of 
 
 England, 
 
n 
 
 mportancc } 
 Jncy topro- 
 ght flill to 
 iefler, legal 
 t be replied 
 that every 
 tendency to 
 )t to be the 
 is not fo by 
 Kample, the 
 It not writ- 
 are not the 
 only of 4 
 words ^rc 
 but only 
 cal court c^ 
 ied on pro 
 — that only 
 gal punilh- 
 lich have a 
 pernicious 
 i) the admi- 
 d that this 
 ' a republir 
 :eafed fove- 
 I a republi* 
 unifhment. 
 ftimony of 
 [fnble; nor 
 nfe, deter- 
 es: but it 
 determined 
 lal law of 
 Englan^^ 
 
 [ 425 1 
 
 England, and the declfions of former judges, 
 upon folenin arguments, in cafes of the fame 
 kind, or that are nearly (imilar to it, if fuch 
 are to be found : and, therefore, it is truly a 
 mattpr of law, and muft be determined by 
 the judges only. But this does not at all in- 
 terfere with the right that has been above 
 afcribed to the jury, of determining the truth 
 of all the charges contained in the informa- 
 tion, or decjjiring whether, or no, the con- 
 d\xdi of the defendant, as proved by the witr 
 nefles^ agrees, or is commenfurate, with the 
 ^ondudt imputed to him in the information, 
 with r^fpea |o all the allegations of which 
 the infpc;«atioi> i$ CQippofed. 
 
 « 
 
 I have now gone through all I had to offer 
 in the way of reafon and argument, con- 
 cerning the extent of the province of the jury 
 in the trial of an information for publishing 
 a feditious libel. I am fonfible, I have u£bd a 
 great number of words on this occafion, and 
 gven feme repetitions, which I knew not well 
 Jiow to avoid, and which, I therefore hope, 
 the reader will excufe; more efpecially as 
 the reafon of my treating this matter fo fully 
 was that he might clearly fee the grounds 
 upon which I have prefumed to differ in opi- 
 nion from thofe learned and refpeflahle per- 
 ibns who have declared, that the intention of 
 the publiflxer of a feditious paper is a matter 
 of law, which the jury have no right to 
 
 H h h coniider. 
 
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 [ 426 1 
 
 cbnfider* The great rcfpcfl due to thofc 
 eminent pcrfons made me at firft almofl afraid 
 to differ from them, and excited me to exa- 
 mine the fubjedt wiih as much care and at- 
 tention as I was capable of beftowing on it; 
 in confequence of which I became perfed^ly 
 convinced, that their opinion was not well- 
 grounded. And the fame refped to their 
 authority made me afterwards cautious of ex- 
 prefUng the opinion I had formed in oppo- 
 lition to that which they had declared, with- 
 out, at the fame time, fetting forth, in the 
 fuUeft manner I could, the reafons upon 
 which I had prefumed to differ from them, 
 and adopt the other opinion. And now, 
 that I have ventured to flate and maintain 
 that other opinion, I (hall (from the fame 
 motive of refpedt to thofe great perfons) en- 
 deavour to confirm and fupport it by the 
 authority of other great perfons who formerly 
 held the fame high offices of judicature witn 
 themfelves, oppofing judge to judge, and chief 
 juflice to chief juflice, in at leaft equal num- 
 bers, and marfhalling on my fide of the ar- 
 gument, 
 
 Farei aquilaSy et pila minantia pilh ; ' " 
 
 left the weight of thefe great modern autho- 
 rities fiiould be t\ought to over- bear the ar- 
 guments, which, in the courfe of this in- 
 quiry, have been deduced from reafon only, 
 
 in 
 
 
[ 427 ] 
 
 in favour of what I take to be the true opi- 
 nion aipon the fubje^. 
 
 "r- 
 
 In the famous trial of the feven bifhops, A"*.''*'j:'- 
 who were profecuted in the laft year of the «*« "( "Pe 
 reign of king James II. by an information '^'JJ?°'"K 
 in the court of King's-bencn for publifliing ^ 
 a feditious libel. Sir Robert Sawyer, (who 
 had been attorney-general,) Mr. Finch, and 
 Mr. Somers, (who was afterwards Lord-chan- 
 cellor,) were of counfel for the bifhops, and 
 Sir Thomas Poways, (the then attorney-ge- 
 neral,) and Sir William Williams, (tJic then 
 Sollicitor-general,) were of counfel for the 
 Crown. Sir Robert Sawyer contended, " That 
 ** both the falfity of the paper, and that it 
 ** was malicious and feditious, were all mat- 
 ** ters of fadl to be proved ;" and made this 
 the firft head ftf his fpeech to the jury : fo 
 that here we fee, that the falfehood of the 
 paper, the malicious intention of the writer, 
 and the feditious tendency of the paper, are 
 all aflerted by tins learned lawyer to be mat- 
 ters of fadt and objedls of the confideration 
 of the jury. His brother-counfel held the 
 fame language. Mr. Finch exprefled himfolf 
 thus : " If you, gentlemen, (hould think 
 " that there is evidence to prove the deli- 
 ** very, by the bifhops, of the paper fet forth 
 " in the information, yet, unlefs their pre- 
 " fenting it to the king in private may be 
 " faid to be a malicious and fedidous libel, 
 
 H h h 2 " with 
 
 w- 
 

 'it' i ? I 
 
 
 
 
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 witli aft intent to ftir dp Aft ptopU to fr- 
 dition, and to diminish tht King's ptero- 
 gative and authority : unlefs all this can 
 ue found, there is no man living can 
 find the bifhops guilty Upon this informa- 
 tion." *rhis Was aifTerting, that th6 ;// /«- 
 tention of ftirring up difcontents in the minds 
 of the people againft the King, was an cflen- 
 tial part of the charge, and one that the jury 
 ought to take into their cohfideration, and 
 not leave to the judges as a mere inference of 
 law. Mr. Somers fpoke next, and faid. That 
 the paper could not poffibly flir up fedi- 
 tion in the minds of the people, becaufe 
 it was prefented to the King alone. Falfe 
 it could not be, becaufe the matter of it 
 '* was true. There could be nothing of ma- 
 ** lice : for the occafion was not fought ; the 
 ** thing was prefled upon them. And a libel 
 ^* it could not be, becaufe the intent was in- 
 *' nocent." The attorney-general, Powys, 
 thereon faid, " That he fhould not now meddle 
 ** with what the defendant's counfel had of- 
 *' fered, becaufe it was not pertinent." And 
 then Sir Robert Wright, the chief juftice, in- 
 terpofed with thefe remarkable words : ** Yes, 
 Mr. Attorney, I'll tell you what they ofFeri 
 which it will lie upon you to give an anfwer 
 to: they would have you fhew how this 
 has diflurbed the government, or dimi- 
 niftied the King's authority." Here ihen 
 we have king James Il'd's chief juftice of the 
 
 King's- 
 
 «< 
 
 C( 
 
 *t 
 
 it 
 
 €( 
 
 ft 
 
 <( 
 
 €t 
 
 
int was in- 
 
 ?C 4^9 1 
 
 Kifig's-bench exprefsly declaring in this ce- 
 lebrated trial at bar^ that the tendency of the 
 paper in queflion, to dillurb the government^ 
 ought to be made out to the fatisfa(^iion of 
 the jury. Mr. Juftice iPowell faid, ** The 
 ** contrivance and publication ai^ both mat^ 
 " ters of fad, and, upon ilfue joined, the 
 " jurors are judges of the fad, as it is laid 
 '* in the information." Mr. Juftice Hollo- 
 way, after the evidence had been fummed 
 up to the jury, fpoke thefc v4rords : " The 
 
 * queftion is, whether this petition be a li- 
 
 * bel, or no. Gentlemen, the end and intent 
 ' of every adion is to be considered -, and like- 
 
 * wife in this cafe we are to confidcr the 
 
 * nature of the offence that thefe noble per- 
 
 * fons are charged with. It was for deli- 
 
 * vering a petition, which, according as they 
 
 * have made their defence, was with all hu- 
 
 * mility and decency that could be : fo that, 
 ' if there was no /// intent^ and they were 
 ' not men of evil lives, or the like, to de- 
 
 * liver a petition cannot be a fault, it being 
 
 * the right of the fubjed to petition. If 
 
 * you are Jatisfied there was an ill intention of 
 
 * fedition^ or the like^ you ought to find them 
 
 * guilty: but, if there be nothing in the 
 ' cafe of that kind, I think it is no libel, 
 ' It is left to youy gentlemen : but that is my 
 ' opinion." The jury are here exprefsly di* 
 
 reded to confider, whether the biihops had 
 any intention of fedition, or not, in prefenting 
 
 their 
 
 
 
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t 
 
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 [ 430 ] 
 
 their petition to the King, and to find them 
 guilty, or not guilty, accordingly. So far was 
 this judge from thinking, that the intention 
 of he defendants was a mere inference of 
 law, which the jury had no authority to make. 
 Mr. Juftice Powell went further ftill, and 
 faid, that the falfehood of the paj er, as well 
 as ihe malicious intention of the publifher of 
 it, and its tendency to difturb the govern- 
 ment, ought to be proved : by which we 
 may obierve, by the bye, that the modern 
 opinion, " That the falfehood charged upon 
 ** a libel in an information, is not a material 
 ** part < f the charge, and needs not be proved," 
 was not at that time univerfally adopted 
 by the judges. His words are as folio v - 
 *• Truly, I cannot fee, for my part, any a ,; 
 *' of fedition, or any other crime, fixed upon 
 '* thefe reverend fathers. For, gentlemen, 
 ** to make it a libel, it muft be falfe, it muft 
 ** be malicious, and it muA tend to fedition. 
 •* As to the falfehood, I fee nothing that is 
 " offered by the king's counfel, nor any 
 " thing as to the malice. Now, gentlemen, 
 ♦* the matter of it is before you j you are to 
 ** confider of it, and it is worth your confi- 
 •* deration, &c." Such were the diredlions 
 of chief Juflice Wright, and Jultice HoUoway, 
 and Juflice Powell, at this famous trial : by 
 which we fee, that the intention of the de- 
 fendants in publifhing the petition, or paper,, 
 and the tendency of the paper to raife dif- 
 
 coatents 
 
il ]' 
 ) 
 
 [ 43t y 
 
 contents in the minds of the King's fubjed^ 
 againfl his government, were fo far from be- 
 ing confidered by them as mere inferences of 
 law, which they, the judges, only had a right 
 to make, that they were recommended to the 
 coniideration of the jury as the principal ob- 
 jects, to which it was neceflary for them to 
 attend. And chief Juflice Holt appears to 
 have been of the fame opinion, when he 
 fummed up the evidence to the jury upon 
 the trial of the information againft Tutchin, 
 the writer and publifher of certain papers, 
 called The Obfervators^ in the year 1 704. His 
 words, on that occafion, were as follows : 
 Gentlemen of the Jury, this is an infor- 
 mation for publifliing libels againft the 
 Queen and her government." And then, 
 after dating the proof of the publication, and 
 reading fome palTages from The Obfervators^ he 
 goes on in this manner : " So that, now you 
 •' have heard this e adence, you are to con- 
 " fidcr whether you are fatisfied that Mr. 
 ** Tutchin ^4 guilty of writing, compoling, 
 " and publifiiing thefe Libels. They fay they 
 ** are innocent papers, and that nothing is a 
 " Libel but what refle<fls upon fome parti- 
 *' cular perfon. But this is a very ftrange 
 " dodlrine, to fay it is not a libel refleding 
 on government to endeavour to pofTefs the 
 people that the government is male-ad- 
 minifter'd by corrupt perfons that are em- 
 ployed in fuch and fuch ftations, either in 
 
 " the 
 
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 it 
 
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 « 
 
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 [ 432 ] 
 
 *< the liavy or army. For ii is v^ry nccelTary 
 for ?11 governments that the people Should 
 have a good opinion of it : and nothing 
 *;' can be worfe than to endeavour to procure 
 any animofitie$ a8 to the management of it. 
 This has been alvi^ays looked upon as a 
 crime ; and no government can be fafe, 
 without it be puniihed. Now, you are to 
 confider^ whether thofe words, I have read 
 to you, do not tend to beget an i 1 opinion 
 of the adminiltration of the government.** 
 Here we find this able Chief Juftice exprefsly 
 direding the jury to confider the tendency of 
 the papers in queftion, to wit. Whether they 
 do not tend to beget an ill opinion of the 
 adminiftration of the government ? How dif- 
 ferent is this condudl from aflerting that this 
 tendency is a mere inference of law, which 
 the judges only have a right to make, with- 
 out any concurrence of the jury ? From thefe 
 authorities, together with the reafons above 
 fet forth, I flatter myfelf, that the reader 
 will join with me in concludinj^^* that, upon 
 the trial of an information for writing and 
 publiihing a feditious paper, the jury have a 
 right to determine all the particulars of the 
 charge, the malicious intention of the writer, 
 and the mifchievous tendency of the paper, 
 gs well as the more fimple fads of the writ- 
 ing and publication of it, and the meaning 
 of the blanks and feigned names in it i and 
 that the only queiUon, which the judges are 
 . ; to 
 
 If; 
 
f 433 ] 
 
 to determiiie, is, whether, if the whole in- 
 formation, with all the allegations contained 
 in it, the malicious intention of the writer, 
 and the mifchievous tendency of the paper, 
 be admitted by the defendant, or found by 
 the jury, to be true, the conduct fo defcribed 
 and found, is an objedt of legal cenfure. I 
 could wiih, that even this laft particular were 
 alfo to be determined by the jury: but it 
 rather, I muft confefs, appears to me to belong 
 to the province of the judges. 
 
 The occafion of entering into this difcourfe 
 about informations for feditious libels> and 
 the right of the jury to determine all the 
 matters contained in them, was to {hew that 
 the propofal made above in the foregoing plan 
 for the adminiflration of juftice in the pro- 
 vince of Quebeck, to wit, " That the juries 
 *' in that province fhould have only fpecial 
 ** ifTues referred to them for their determi- 
 ** nation," would not at all diminifh their 
 power in the trial of informations for this of- 
 fence. This, I prefume, is now fufficiently 
 apparent. For, fince all the allegations, con- 
 tained in thcfe informations, are matters of 
 fa<3:, or fit objetts of a jury's confideration, 
 it is evident that they would retain their 
 power of determining them, when they fliould 
 be feparately and diftinftly denied by the de- 
 fendant, (according to the method propofed 
 in that plan,) as well as now, that they are 
 ^*" I i i denied 
 
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 [ 434 1 
 
 denied by him in the lump by the general 
 plea of Not guilty. In that cafe, his plea 
 would run thus: ift^ That he did not write 
 the paper in queftion ; adly, That he did not 
 publifh it; ;^dly. That he had no bad inten- 
 tion in publiHiing it, but did it by niiflake> 
 or not knowing i($ contents, or not with a view 
 to fpread it through the world i but to prevent 
 its being fo fpread, by delivering a copy of it 
 to a magiflrate; or becaufe he conceived it 
 to be likely to produce different efFeds from 
 thofe defcribed in the information ; and 4thly, 
 That it has not, in truth, the tendency afcribed 
 to it in the information, but a tendency to 
 produce very differert eficds. And the jury 
 would give feparate verdids, diftindlly upon 
 all thefe different queflions. In both ways 
 of proceeding the fame matters would be 
 confidered and determined by them : only in 
 the one way they would do it feparately and 
 diftindly, or in the detail, and in the other 
 they would dp it in the lump. ., 
 
 n -i. 
 
 I hope therefore, that the friends of Publick 
 Liberty and the Trial by Jury, will not con- 
 fider me as an enemy to that excellent Infli- 
 tution^ on account of the alterations I have 
 recommended to be made in it in the pro- 
 vince of Quebeck, in order to render it more 
 convenient and agreeable to the people of 
 that province. But, if, after all I have al- 
 ledged in fupport of thejo^ th^fe alterations^ 
 
 
 I '4 
 
 '-U 
 
I 435 1 
 
 in that excellent mode of trial, fhould be 
 thought whimiical and injudicious, or dan* 
 gerous to tlie liberties of the people, I beg it 
 may be remembered, that the Canadians are, 
 upon the whole, well pleafed with the trial 
 by jury, in civil matters as well as criminal, 
 even with all the imperfedtions and inconveni- 
 ences, which they have objedted to in its prefent 
 form i as appears by their ufually having chofen, 
 during the fpace of ten years, to have their 
 civil fuits, in the courts of common-pleas in 
 that province, decided by a jury, whenever 
 the matter in difpute has been of any confi- 
 derable value, although they might, if they 
 had pleafed, have left the whole decilion of 
 them 10 the judges. And therefore, I hope, 
 this excellent mode of trial, of which they 
 have been caufelefsly deprived by the late Que- 
 beck-ad, will be reftofed to them. 
 
 
 ' \ ': 
 
 t-. 
 
 ::;: li i 
 
 A Re- 
 
 /•I 
 
 •?'.•" 
 
 
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 ^;;«^'''., 
 
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 ^ .'4 ■ ' - :'iS 
 
 [436 ] 
 
 • 
 
 A Remark on the Poflibility of re- 
 viving fome Parts of the French 
 
 ' Law in the Province of Quebeck> 
 
 , . for the Satisfaflion of his Majefty's 
 new Canadian Subjeds in the faid 
 
 ' Province, with Refped to the Settle- 
 ment of their Families, without re- 
 
 ■ voking his Majefty's Proclamation 
 of Odober, 1763. 
 
 It 
 
 IT has been fhewn above in pages 285 - 292, 
 that the king had, by the articles of capi- 
 tulation in September, 1760, and the defini- 
 tive treaty of peace in February, 1763, re- 
 ferved to himfelf a power of introducing the 
 Englifh laws into the province of Quebeck, 
 in lieu of the cuftom of Paris, and other 
 French laws and ufages, that had been ob- 
 ferved in it in the time of the French govern- 
 ihent. And it has been fhewn alfo, in the 
 fame place, that his Majefty, by his royal 
 proclamation in Odlober, 1763, did make 
 ufe of the power, fo referved to him, for the 
 purpofe of introducing the laws of England 
 into the faid province, as well as the Engliih 
 mode of government by a governour, council, 
 and aflembly. The latter inftitution, to wit, 
 the government by an aflembly he did not 
 
 promife 
 
ty of re- 
 e French 
 Quebeck, 
 Majefty's 
 the faid 
 he Settle- 
 ithout re- 
 clamation 
 
 ./ - 
 
 'V.tl'- 
 
 [285-292, 
 
 les of capi- 
 the defini- 
 
 I i7(>3» re- 
 
 >ducing the 
 
 Quebeck, 
 
 and other 
 
 been ob- 
 
 ch govern- 
 
 Ifo, in the 
 
 his royal 
 
 did make 
 
 n, for the 
 
 England 
 
 le Engliih 
 
 r, council, 
 
 )n, to wit, 
 
 did not 
 
 promife 
 
 [ 437 1 
 
 promife to eftablifli immediately, but only 
 as Joon as the Jituation and circumjlances of the 
 province would admit thereof ^ which was gene- 
 rally underftood to mean as foon as there 
 was a fufficient number of proteftant land- 
 holders in the province, to afford to the Ca- 
 nadians a reannable choice of members, to 
 conftitute fuch aflembly : but the other regu- 
 lation, the eftablifhment of the laws of Eng- 
 land in the province, was to take place />;- 
 mediaielyy his Majefty afTuring his fubjedls, 
 (who (hould go and reiide in the faid pro- 
 vince,) tbaty tn the mean time, and until Jucb 
 ajjemblics can be called as ajorejaidj^ all per" 
 Jons inhabiting in^ or rejbrting to^ his Majejiys 
 faid colonies, [Granada, Eaft-Florida, Weft- 
 Florida, and Quebeck,] may confide in his 
 royal proteBion jor the enjoyment of the bene- 
 fit of the laws of his realm of England: and 
 that for that purpofe his Majefty had given 
 power under the great feal to the governours 
 of his Majefty's faid new colonies to eredt 
 and conftitute, with the advice of his Ma- 
 jefty's councils of the faid provinces refpedtive- 
 ly, courts of judicature and publick juftice 
 within the faid provinces, jor the hearing and 
 determining all caufes, as well criminal and civil, 
 according to law and equity, and as near as tnay 
 be, agreeably to the laws of E^tgJand -, with 
 liberty to all perfons, who may think them- 
 felves aggrieved by the fentence of fuch 
 courts, in all civil cafes, to appeal, under the 
 - ufual 
 
'I ' 
 [■■A 
 
 m^M 
 
 :•>: ■■■■ 
 
 , »> . 
 
 f 438 1 
 
 ntM limitations and redridliofts, to hift Ma^ 
 jefty in his privy council. Here is a folemn 
 ttOi of the of the crown, under the great fcal 
 ^ Great-Britain, introducing the laws of 
 England into the province of Quebeck. And 
 this was accompanied by another important 
 inArument, likewife under the great feal of 
 Great-Britain, the commiffion of Captain- 
 general and Governour in chief of the pro- 
 vince of Quebeck, given to General Murray, 
 purfuing the fame plan, of eflablifhing the 
 English law in the province, that was adopted 
 by the proclamatin. And thefe two inftru* 
 mcnts, which proceeded immediately from 
 the royal authority, were followed by pro- 
 vincial ordinances made by Governour Mur- 
 ray and his council in conformity to them, 
 credling courts of judicature in the province 
 to adminifler juftice according to the laws of 
 England. And thefe courts f»t and aded for 
 ten years together agreeubly to the faid ordi- 
 nances ; and all forts of contra(51s were made 
 in the province upon the fuppolition,that thofe 
 Jaws were in force in it, and were likely to 
 continue fo ; and the bulk of the Canadian 
 inhabitants of the province feemed very well 
 pleafed with their condition, as well as the 
 Briti(h fettlers in it. Who, that attends to 
 thefe plain fadts, can help being aftonifhed, 
 that, at the end of about ten years after the 
 introdudion of this Englifh fyftem of go- 
 vernment, namely, in June, 1774, an a(ft of 
 
 parliament 
 
jrovince 
 
 t 439 1 
 
 parliament (hould pafs, to revoke^ annuls am 
 make voidy this feries of folemn publick in- 
 ftrumcnts ? To what promifcs of govcrnmcot 
 can people hereafter truft ! — It would furely 
 have been more decent, and would have (hewo 
 a. greater regard to the dignity of the crown^ 
 and a greater tendernefs for its honour, to 
 have left the proclamation and the governour's 
 commifTion in force in the province, and to 
 have revived in the province only thofe few 
 parts of the former JFrench fyftem of laws, 
 that were judged to be mod eflerttially nc- 
 ceiTary to the domedicic peace and fatisfadion 
 of the Canadians ; which^ I believe, would 
 have been found to be nothing more than 
 their laws of tenure, their modes of convey- 
 ing land, the laws of dower and inheritance 
 of landed property* and perhaps of the diftri- 
 bution of the goods of perfons who die in- 
 teftate. Surely, this would have been a more 
 prudent, decent^ and honourable way of pro- 
 ceeding than totally to refcind the royal pro- 
 clamation of Odober, 1763, and all the othei* 
 important publick adls above-mentioned ! And 
 this more difcreet and cautious way of pro- 
 ceeding feems even to be fuggefted by fomc 
 words in the proclamation itfelfi which feemi 
 to have been intended to preferve fome parts 
 of the French laws of the province, which 
 might be thought to be moft neeeflary to the 
 fatisfadlion of the Canadiansi and to prevent 
 . . the 
 
 « 4 
 
 r 'I 
 
 \\\ 
 
',/« 
 
 m 
 
 Kf's- 
 
 ■1; . 
 
 
 
 m'\ 
 
 [ 440 ] 
 
 the immediate introducflion of the Engllfh 
 Jaws upon thofe heads. The words, I mean, 
 are thefe, " That the courts of judicature, to 
 be erefted in the faid province, fliall deter- 
 mine all caufes, as well criminal as civil, ac- 
 cording to law and equity, and, as near as may 
 he^ agreeably to the laws of England." Thefc 
 words, as near as may be^ mull have fome 
 meaning. And the moll natural and obvious 
 fenfe that can be put upon them, feems to be 
 that of an intimation to the king's Englifh 
 fubjedts, who Aiould go and fettle in the pro- 
 vince in confequence of this proclamation, 
 that there might be fome fubjeds (of a nature 
 not to afFcdl their principal concerns, their 
 perfonal liberty, and the fecurity of their 
 commercial property,) upon which the laws 
 of England ought not to be, and would not 
 be, introduced into it. And thefe, we may 
 prefume to have been (though I confefs, it 
 is rather to be lamented, that they were not 
 exprclTed in the faid proclamation more dif- 
 tin^ly) the modes of the tenure of lands, 
 the methods of conveying them, and the 
 tranfmiflion of them by dower and inheri- 
 tance upon the deaths of their then prefent 
 proprietors. For thefe, it is certain, are parts 
 of the law of England, which, if they had 
 been fuddenly introduced into the province, 
 would have created great uneafmefs and con- 
 fufion : and confequently, we may reafonably 
 fuppofe them to have been thofe parts of the 
 
 law 
 
r 44X ] 
 
 law of England, which his Majefty, in his 
 royal wilUom and clemency, intended to ex- 
 cept, by the words, as near a^ may bc^ from 
 the general body of the laws of England, in- 
 troduced by the proclamation. And thefe, I 
 will venture to fay, are the only parts of the 
 law of England, the introduction of which 
 into the province would be attended with 
 thofc unhappy confequences. And according- 
 ly, we find that thefe, and the laws that ex- 
 clude papifts from places of trufl: and profit, 
 (which latter laws can affevfl but a very few 
 perfons in the province) arc the only parts of 
 the law of England to which the Canadian 
 petitioners, who have defired to have their 
 antient laws reftored to them, have made any 
 objection. And if thefe petitioners have ob-' 
 jed:ed to no other parts of the law of Eng- 
 land, we may be fure that the bulk of the 
 Canadian freeholders in the province would' 
 not obicd: to them, becaufe it is well known 
 that they are much better pleafed with the 
 Englifli laws and government, than the hand-, 
 ful of men whofe names are figned to that 
 petition. The Canadians, therefore, might 
 have been made cafy without revol^'^'gy an^ 
 nulling^ end making 'uoid^ the royal proclama- ' 
 tion and promife above-mentioned, by only 
 interpreting thofe words, as near as may be^ 
 agreeable to the laws of England^ in fuch a 
 manner as to preferve to them their antient 
 French laws and cuftoms upon thofe tender 
 
 Kkk fubjeas 
 
 !1* 
 
 'tji 
 
W' ''^'' 
 
 
 m 
 
 
 ■ts 
 
 m 
 
 
 !':■ ^ 
 
 im '■', " 
 
 f'4' 
 
 , I 
 
 
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 ■ ■ l\ 
 
 • » 
 
 [ 442 ] 
 
 fubje<5ls that relate to their domeftick happi-- 
 nefs 5 or, if thofe words are not thought to 
 be capable of fuch an interpretation* by re- 
 viving and reftoring, by exprefs enacting 
 worJs, and in oppofition to the proclama- 
 tion, the French laws upon thofe fubjeds. 
 The revoking the proclamation only Jo far 
 would have been juilifiablc. For it would 
 only have been correcting an error, or, rather, 
 fupplying an omiflion in it, that had arifen 
 from precipitation j fince no one can fuppofe, 
 however general the words of the proclama- 
 tion may be, (unlefs they had been quite ex* 
 prefs to that purpofe,) that if was the inten- 
 tion of the framers of it, at once to overturn 
 the laws of dower and inheritance throughout 
 the province. And this would have given 
 no difTatisfadion to the English inhabitants 
 of the province, who are the perfons to whom 
 the promifes in the proclamation are princi- 
 pally addreffed, and who have fettled in the 
 province in confequence of them. And, 
 where the perfons to whom a promife is 
 made, confent to the non-performance of it, 
 the perfon who made it, is, by all the rules 
 of juftice, abfolved from the obligation to 
 obferve it -, even when it has been made with 
 folemnity and deliberation. Thefe, there- 
 fore, are the parts of the French laws of the 
 province of Quebeck, which might have 
 been either revived, (if they had been fup- 
 pofed to have been abolilhed,) or confirmed, 
 
 (if 
 
[ 443 1 
 
 (If they had heen fuppofed to be dill legally 
 in force,) by an adl of parliament, without 
 any breach of the royal promife made to the 
 Englifh fettlers in that province, or rather, in- 
 deed, to all the inhabitants of it : for the pro^ 
 mifes in the proclamation were made to all 
 the inhabitants of Canada, the French as well 
 as the £ng]i(h, though they feem principally 
 to have been intended as inducements to the 
 latter to refort thither j and the bulk of the 
 French, or Canadian, inhabitants of it have 
 (as we have feen,) been weil-pleafed with the 
 introdudion of the Englifh laws into the pro- 
 vince, as far as they have had experience of 
 them. But no arguments can be juflly de- 
 rived from hence for refcinding (as has been 
 done by the late adt of parliment,) the whole 
 proclamation, fo as to deprive all the inhabi- 
 tants of that province, both Canadian and Eng- 
 lifh, of thofe excellent parts of the law of 
 England, which muft r-eceffarily be fuppofed 
 to have been intended to be introduced into 
 the province by thofe emphatical words in 
 the proclamation, which promife to the per- 
 fons who ihall refort to it, and refide in it, 
 the enjoyment of the benefit of the laws of Eng- 
 land, Now thefe words, as 1 conceive, muft 
 be fuppofed to have been meant to introduce 
 at leaft the two following parts of the law of 
 England j to wit, firft, thole parts of it which 
 are particularly beneficial to the fubjedt, by the 
 protedion of his pcrfon and property againft 
 
 Kkk 2 the 
 

 l-^i 
 
 [ 444 ] 
 
 the oppreflions of men in power, and, fecond- 
 ly, thofe parts of it which have relation to 
 commerce, and the method of enforcing the 
 payment of debts contracted in the courfe of 
 it, and fettling the difputes between the mer- 
 chants that (hould be concerned in carrying it 
 on. For, thefe are the perfons whom the 
 proclamation more particularly invites and ex- 
 horts to go and fettle in that province : and 
 thefe are the laws of England, which they 
 mud be fuppofed to be moft attached to, and 
 to have wiihcd to fee introduced into the faid 
 province before they ventured their perfons and 
 property into it, and to have believed and un- 
 derflood to have been introduced there by the 
 faid proclamation. Of the firft of thefe two 
 kinds of laws are, in a moft efpecial manner, 
 the petition of right and the other laws of 
 England, relating to the writ of Habeas corpus^ 
 both according to the common law and by 
 the ftatute, lor the protedtion of perfonal li- 
 berty J which diilinguilhes the fubjedts of 
 Great-Britain from thoie of aimoft every other 
 ftate in the univene. And of this kind alfo 
 is the trial by jury in all criminal matters, and 
 in all civil adlions for wrongs, or injuries, re- 
 ceived, in which a pecuniary compenfation is 
 to be given to the injured party for the injury 
 he has fuftained; inch as adions of flander, 
 battery, and falfe imprifonment ; which par* 
 take, in a great meafure, of the nature of cri- 
 minal matters. For, in all thofe cafes, it is 
 
 obvious 
 
 m>::i 
 
 f ■ 
 
[ 445 1 
 
 obvious that the intervention of a juiy of one*« 
 equals to determine, in the cafe of a criminal 
 profecution, upon the guilt, or innocence, of 
 the party accuied, and, in the cafe of adtions 
 of trefpafs for mjaries received, to affefs the 
 damages fuftaineJ by the fufferer, muft be fin- 
 gularly ufeful (from the fympathy, which the 
 parity of their condition muft infpire them 
 with for the accufed, or the injured, party,) 
 to the protedlion of the weak againft the ftrong, 
 the poor againft the rich, and the private man 
 againft the powerful and high-ftationed op- 
 prtfTor. And of the fecond kind are the laws 
 relating to infurances, bankruptcies, the limi- 
 tation of actions, the procefs of imprifonment 
 for debt, and the trial of matters of contrad, 
 where the caufe of adion is of a commercial 
 nature, (as well as of matters of injury in all 
 cafes,) by a jury ; and many other important 
 articles. In all thefe things it is evident be- 
 yond a doubt, that the royal promife was in- 
 tentionally and deliberately given, that the 
 laws of England ftiould be obferved in that 
 province, in thefe points, therefore, the pro- 
 clamation ought not, in point of juftice, to 
 have been revoked by the late Quebeck-a6t ; 
 and now, that it has been revoked by it, it 
 ought, from the fame motive of juftice, to be 
 re-eftabliftied. For, great and (upream as I 
 allow the power of the parliament to be, it 
 cannot make that to be juft which is in its 
 nature unjuft, as the refuiription of the benejits 
 
 of 
 
 n 
 
 
 lU! 
 
 lili: 
 
iipi 
 
 w 
 
 r 
 
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 [ 446 ] 
 
 ^ the laws of England^ (the Habeas corpus^ and 
 the trial by jury in civil adions, and the like,) 
 firom the Briti(h and other inhabitants of the 
 province, to whom they had been granted by 
 the king's proclamation, appears evidently to 
 be. I therefore hope, that, in fbme calmer 
 moment than that in which the Qaebeck-biit 
 was pafled, the faid royal proclamation will 
 be re-eflablifhed in the province with refpedt 
 to thefe beneficial parts of the law of England, 
 which had been introduced by it into the pro- 
 vince, and enjoyed by its inhabitants for ten 
 years, and that the French laws, that (hall be 
 permitted to continue in it, will be retrained 
 to a few didindt heads, that may be thought 
 moft neceflary to the family-peace and do- 
 meftick happinefs of the Canadians, and the 
 Englifli law again eftablifhed in the province 
 as the general law of it, by which the courts 
 of juftice {hould be governed in their decifions 
 upon every other fubjed, except thofe few on 
 which the French laws (hould have been fo 
 rtferved. 
 
 The juftice and reafonablenefs of reftoring 
 the Engliih law on fome of the more im- 
 portant fubjeds that have been juft now men- 
 tioned, feems to have been felt and acknow- 
 ledged by his Majefty's minifters of ftate foon 
 after the paffing of the unfortunate Quebeck- 
 bill ; tlwugh, while that bill was in the houfe 
 of commons, they voted for the rejedion of a 
 daufe that was offered by Mr, Dcmpftsr icr 
 
 pief^irving 
 
[ 447 1 
 
 preferving to the inhabitants of that province 
 the Englifti laws relating to the writ of HabiM 
 corpus, and likewife of another claufe for pre- 
 ferving the trial by jury. But very foon after 
 the bill was paffed, a draught of a provincial 
 ordinance was prepared by Mr. Hey, the chief 
 juftice of the province, by the diredtion of the 
 Earl of Dartmouth, (at that time his Majefty s 
 fecretary of ftate for America,) in order to be 
 carried over by Mr. Hey, and propofed to the 
 Governour and new legiflative council of the 
 province, and by them paffed into a law ; in 
 which draught the Englifh laws relating to 
 the writ of Habeas corpus, and to the trial by 
 jury in civil cafes, (under certain reftric^ions^ 
 and modifications,) and likewife the EngUllt 
 laws relating to commercial matters, were to 
 be re-eftabli(hed in the province. This draught 
 of an ordinance was accordingly carried over 
 to the province by Mr. Hey, (who arrived 
 there on the 19th day of June laft, 1775,) 
 and v/as propofed to the legiflative council of 
 the province in the month of September fol- 
 lowing, and there debated. The new French 
 Roman-catholick members of the council op- 
 pofed it, but without (as it is faid) alledging 
 any reafons for their oppofition : but the reft 
 of the council feemed difpofed to pafs it ; in- 
 fomuch that it would probably have pafled 
 into an ordinance of the province, if the in- 
 vaficn of the province by the provincials un- 
 der General Montgomery had not obliged the 
 
 Governour 
 
 ■f^ 
 
 i^. 
 
 I Ml 
 
 i = t 
 
 '■)'■ 
 
 tH 
 
 h 
 
 I M - 
 
 
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 it/'".' *< 
 
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 W' . ■ 
 
 J ' -■ 
 
 t' ^ 
 
 .■','.f 
 
 
 [ 448 ] 
 
 Govtrnour to break up the meetings of the 
 council before they had compleated their dif- 
 cuflion of it. Ail this, I am alTured, has been 
 publickiy declared by Mr. Hey, in his fpeech 
 in the houfe of commons, upon a late mo- 
 tion of the Hon. Mr. Charles Fox ; and there- 
 fore, I make no fcruple to mention it as a 
 thing both certain and notorious. Now, fince 
 thefe very confiderable alterations of the Que- 
 beck-adt, in favour of Englifli Law and Liber- 
 ty, are confefled to be juTl and reafonable, it 
 can hardly be denied that, in order to do the 
 inhabitants of that province compleat juftice in 
 thofe refpedts, they ought to be made by the 
 fame high authority that pafTed the adl vs^hich 
 they are intended to corred, that is, by the 
 authority of parliament. For, if they are made 
 only by the aforefaid legiflative council, the 
 people of the province will not have reafon to 
 confider them as permanent regulations ; fince 
 the fame legiflative council, that eflablifhes 
 them one year, may repeal, or abolifh, them the 
 next. They ought, therefore, to be eflabiifhed 
 by ad of parliament, with a claufe to reflrain 
 the legiflative council of the province from 
 ever abrogating, or abridging, them. When 
 that is done, the people of the province will 
 have the authority of the higheft legiflature 
 known in the Britifh government for the fecu- 
 rity and permanency of their enjoyment of 
 them. And that, no doubt, will fatisfy them. 
 
 , . ■ ' ; ■"',-■_ t 
 
 Whenever 
 
[ 449 ] 
 
 Whenever an afb of parliament (hall be 
 pafled for that purpofe, (which from the ftrong 
 reafons of juftice that call for it, I cannot 
 doubt, will, one day or another, be done,) I 
 apprehend, that the beft way of doing it will 
 be to revive the king's proclamation of Odlo- 
 ber, 1763, and re-eftablifh the law of Eng- 
 land in the province, as the general Law of it, 
 and to enadb the continuance of the French 
 laws upon a few particular heads, to be enu- 
 merated or fpecified in the ad, (fuch as the 
 tenure of lands, the modes of conveying them, 
 the tranfmifllon of them by dower and inhe- 
 ritance, and the like,) as being thofe parts of 
 the French law which the King, in his royal 
 wifdom and clemency, bad originally meant, at 
 the time of ifTuing his faid proclamation, to 
 continue to his new Canadian fubjedts by vir- 
 tue of the words, as near as may he, that have 
 been already mentioned. This method of pro- 
 ceeding will be both more honourable to the 
 crown, and likewife much more fafe and pru- 
 dent with refped: to the convenient admini- 
 ftration of juftice in that province, than to 
 revive particular branches of the Englifli law, 
 (fuch as the laws relating to the writ of Ha- 
 beas corpus, and the trial by jury in civil mat- 
 ters, and the like,) and to leave the French 
 law as the general law of the province in all 
 matters of property and civil rights, except 
 thofe heads upon which the Englilh law fhall 
 have bten fo revived. For, as Engliflimen arc 
 
 Lll likely 
 
 M 
 
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 ^'■' ' 
 

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 P^' ' 
 
 11 
 
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 t 
 
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 ! ' 
 
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 m- 
 
 W/',: ■ '1,1 
 
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 ■I' 
 
 [ 45^ ] 
 
 likely to be the King's judges in that province, 
 (unlcfs his Majefty fliall think fit to procure 
 judges from amongft the advocates at the par- 
 liament of Paris ; which is not to be fuppofedj) 
 it is evidently defireable that the laws, which 
 they are to adminifter, fhould be thofe which 
 they underftand, and are capable of adminiftring 
 with fkili and eafe, that is, the laws of Eng- 
 land, rather than the French laws, with which 
 they will be utterly unacquainted. And, there- 
 fore, (independently of the intrinfick merit of 
 the Englifli laws, and their fuperiority to the 
 French laws in other points befides the pro- 
 tedlion of perfonal liberty and the trial by jury, 
 of which I do not pretend to be a judge j ) it 
 will contribute to the due, regular, and ex- 
 peditious, adminiftration of juftice in the pro- 
 vince, that the laws, by which it is to be govern 'd, 
 ihould be, as much as poflible, the Englifh 
 laws, and confequently that the French laws 
 fhould be continued in it upon only a few 
 fubjedts, in which they were judged to be pe- 
 culiarly necelTary to the happinefs and fatis- 
 fadtion of the Canadians. And to this we may 
 add, that the more the Canadians become ac- 
 quainted with Englifli laws, cuftoms, and 
 manners, the more they will be attached to the 
 Englifli government, and the lefs will they be 
 difpofed to return to that of France. And, 
 therefore, upon the whole, it feems highly 
 expedient that the Englifli law fliould be again 
 eftabliflied as tke general law of the province, 
 
 in 
 
 
.' ' 
 
 { 45' ] 
 
 in civil matters as well as in criminal, except 
 upon a few fubjeds, concerning which it may 
 be thought neceflary for the fatisfadlion of the 
 Canadians, to continue the ufc of the French 
 laws. 
 
 .:■; '■■. '1 •ui':irii\i)\' 
 
 
 J'" f ,nu<w ,ni "-'J ': '■ 
 
 i * , * «S 
 
 A fLort Review of the principal Clau- 
 fes of the Quebeck-ad, fliewing that 
 
 ., it is by no Means an Adb of In- 
 dulgence towards the Bulk of the 
 French, or Canadian, Inhabitants 
 
 of that P^-ovince. 
 
 .1, «.«.■» 
 
 17 f >■" * J ' 
 
 j.-Oi.,y,^ 
 
 .h 
 
 IT has often been matter" of furprize to me 
 to hear the Quebeck-adt defended by its 
 patrons as a meafure proceeding from a fpirit 
 of indulgence towards his Majefly's new, or 
 Frencb, fubjeds in the province of Quebeck, 
 and calculated to gain their affedions, and en- 
 gage their gratitude to government' for de- 
 viating fo far from its ufual maxims in order 
 to give them fatisfadion. For to me it ap- 
 pears to be the reverfe of all this, and to be 
 ritted to offend and alarm them in a high 
 degree, and diminifli the refped and gratitude, 
 which they had before entertained for the fa- 
 vours which they had till then received and 
 
 L 1 1 2 enjoyed 
 
 1 
 
 !^: ; ^' 
 

 
 ^ 
 
 'i 
 
 
 ■ .is 
 
 ■^1 
 
 J 
 
 
 
 
 [ 452 ] 
 
 enjoyed under the Britifli government. And 
 we have feen, from their behaviour in the 
 courfe of the lad fummer, that it has had 
 this efFedl upon them ; fince they let a fmall 
 body of the troops of the united, or revolted, 
 provinces take pofTeflion of the province with- 
 out any refinance from them, when, if they 
 had been well-pleafed with the laft arrange- 
 ment of the province by the Quebeck-bill, 
 they might eafily have made head againft 
 them, and driven them out of the province. 
 But, like the Romans, on I forget what occa- 
 fion, when difTatisfied with the treatment they 
 received from their patrician magiftrates, vinci 
 fe patiebantur. Now, that it was reafonable 
 to expedt, that the Quebeck-aft would be 
 thus difagreeablc to them, will appear by the fol- 
 lowing (hort examination of its principal contents. 
 
 In the firft place we will confider the ope- 
 ration of this ad with refped: to religion i on 
 which fubjedl it is afTerted by its patrons to be 
 
 peculiarly indulgent to the Canadians. 
 
 ,. . . . j.„ .. . 
 
 » - ■ , . •■" 
 
 Now, with refpedl to religion, the Qpe- 
 
 beck-adt produces the two following changes 
 
 in the condition of the province. In the firil 
 
 place it gives the Ronian-catholick priefts a 
 
 legal right to demand their tythes from their 
 
 Roman-catholick pari(hioners, which they had 
 
 not had till then ever fince the conqueft of 
 
 the province by the Britifh arms. This com- 
 
 " ' ; pulfion 
 
 ¥.i 
 
 ' 1 
 
[ 453 1 
 
 puKion upon the people to pay their priefls 
 the tythes is not agreeable to them : they were 
 better pleafed with the option they before en- 
 joyed, of paying them, or not paying them, 
 as they liked beft. ^ - i. .n ■ .. •. ^^ r 
 
 i> 
 
 ;». n.U'i •'i 
 
 As to the mere toleration of their religion, 
 with the ufe of their churches for the per- 
 formance of divine fervice according to the 
 church of Rome, they had it in the ampleft 
 manner poflible before the late adt : fo that 
 the late a(5t could do them no good in this 
 refped, but only fuper-added to this perfecft 
 toleration the difagreeable compulflve obliga- 
 tion to pay their priefts the tythes. There is, 
 therefore, no kindnefs (hewn to the Canadians 
 in this firft provifion of the Quebeck-adt with 
 refpedl to religion. See above in pages 147-— 
 152, and 315, 316, 317— 321. 
 
 M 
 
 The fecond provifion of the Quebeck-a6l 
 with refpei^ to religion, is to take away the 
 diftindion between proteOiants and papifls with 
 refpe(5t to the capacity of holding placet) of 
 truft and profit in the province. The inhabi- 
 tants of that province may now be juflices of 
 the peace, judges, and members of the legida- 
 tive council, and even may hold military com- 
 miflions, without taking any of the proteflant 
 tefls, not even the oath of fupremacy. An 
 army of papifls, commanded by popi(h offi- 
 cers, may now be lawfully raifed in the pro- 
 vince 
 
 i'K 
 
(i « 
 
 I"* , ^ 
 
 Ml-' 
 
 v' 
 
 iv-: 
 
 F. ^11 
 
 m 
 
 H 11 
 
 • '1- 
 
 i'4 
 
 [ 454 1 
 
 vincc of Qnebcck, whenever his Majcfty fhall 
 think proper, fuppoiing it to be true (as fomc 
 eminent lawyers are reported to have lately 
 afTcrtcd,) that the king may legally maintain 
 as many troops as he plealcs in the dependant 
 dominions of the crown of Great-Britain, that 
 lie without the realm, or ifland of Great-Bri- 
 tain. And, if this is not true, it will Aill be 
 lawful for his Majefty to raife a popifli army 
 in Canada in all thofc cafes (whatever they 
 may be,)> in which it would before the faid 
 adl have been lawful to raife a proteftant army 
 there. This is what king James Il's parlia- 
 ment refufed to confent to his doing in Eng- 
 land, notwithftanding their great devotion to 
 him in other particulars, and notwithftandir>g 
 they had been eledted during the time that 
 many of the cities and boroughs, by which 
 they were chofen, were gov rned by the ma- 
 giftrates who had been fet over them in the 
 laft years of Charles Il's reign, when they 
 had been new-modcUcd according to the plea- 
 fure of the court. This parliament gave king 
 James a much larger revenue than had been 
 enjoyed by his predecefTor, king Charles II ; 
 and it attainted the duke of Monmouth with- 
 out a trial : but it would not confent to abolifli 
 'le teft-ad and put the fword (that mofl 
 
 iportant truii,) into the hands of papifts. 
 
 et this is now made pradicable in Canada 
 fi, the late ad:, fuppofing it to be lawful for 
 
 J kin'» to rai'e anv troops at all in that pro- 
 
 •.; vince. 
 
[ 455 1 
 
 vincc. And the Canadians have entertained 
 an opinion, that it was the dcfign of govern- 
 ment to raife a body of troops amongll them 
 to be employed in the invafion of the neigh- 
 bouring Englifh provinces. Now, this fccond 
 provifion of the Qnebeck-ai^l with refpedl to 
 religion, whereby papiils arc rendered capabla 
 of holding places of trufl: and profit, is difa 
 agreeable to the bulk of the Canadians on the 
 four following accounts : ' '•• 
 
 .J 
 
 J..,. 
 
 In the firft place, it makes an opening for 
 their own noblcfle, and other former fupe- 
 riours, to come again into places of authority 
 over them, to be their judges, juftices of the 
 peace, &c. This they are alarmed at, becaufc 
 they like the behaviour of the Engliflimen, 
 who have held thofe offices of magiftracy over 
 them for thefe fifteen years paft, much better 
 than that of their own former fuperiours ; 
 having found the EngliQi magiftrates to be- 
 have towards them with a greater degree of 
 impartiality, mildnefs, and moderation. 
 
 Secondly, they are afraid, that they fhall be 
 made to ferve as foldiers under their faid for- 
 mer fuperiours, and thereby be brought under 
 a ftill greater degree of fubordination to them, 
 than if they are made fubjedl to their power 
 only in the capacity of civil niagiftrates. Of 
 this averfion to ferve as foldiers under their 
 own feigniors and noblefle we have feen an 
 
 example 
 
 M, 
 
I:'" 
 
 ' -^f^ 
 
 '.Ij. 
 
 I' i' 
 
 
 [ 456 ] 
 
 example in the anfwer made by the Cana- 
 dians of the feigniory of Terrebonne to cap- 
 tain Hamilton, " That, if their fervices were 
 wanted as foldiers, they defired to have Eng- 
 lifh officers to command them, and that they 
 would follow fuch officerjj to the world's end.** 
 See above, pages 73 and 74. This objection 
 to the Quebeck-a6t, as being likely to bring 
 them again into fubjedlion to their noblefle 
 in a military capacity, is of the fame nature 
 with their firft objedion to it, which arifes from 
 the danger to which it expofes them of falling 
 again under fubjedion to the fame perfons in 
 a civil capacity : but it holds in a much higher 
 degree, mafmuch as a military fubjedtion to 
 perfons they do not like, is more to be dread- 
 ed than a fubjedtion to them only in a civil 
 capacity. , ; ; 
 
 Thirdly, they obferve, that a great deal of 
 money is diftributed to their noblefle and other 
 favourites of government, in ^he form of fala- 
 ries, or penfions i fuch as the falaries of ^. loo 
 per annum, to the 23 members of the legifla- 
 Lve council 5 the half-pay to the officers who 
 ferved againft ihe Indians in the year 1764; the 
 falaries of £»S^^ ^ Y^^^ ^^^^» ^^ three judges 
 at Montreal, and the like to three judges at 
 Quebeck, (inftead of jT.aoo a year each, which 
 the judges of fhofe places, who were then but 
 four in number, received before the lateQae- 
 . beck-aft, )i the large falary of £, 1200 ?l year 
 
 • to 
 
::- 
 
 (o the chief juftice of the province, though 
 they know that very fcw^ of their civil caufes 
 are decided in his court; the falary of >r,6oo 
 a year to the Lieutenant-governour, notwith- 
 ftanding the governour's relidence in the pro- 
 vince; and other the like augmentations of 
 the publick expence of the province. And 
 this increafe of the publick expence of the 
 province, together with that of the pay of the 
 officers of the body of Canadian troops, which 
 they fuppofe it to be the intention of govern- 
 ment to raife amongft them, they apprehend 
 will ultiriiately be raifed upon them hereafter 
 by further taxes, to be inipofed for that pur- 
 pofe ; not imagining that vireat-Britain will 
 continue to bear much longer fo unneceflary a 
 burthen on her own revenue. This apprehen- 
 lion touches them in a tender point, and has 
 cauied them to make the exclamation men- 
 tioned in page 99. See above in pages 98, 
 99-102, 103, 104 — 370 — 378. 
 
 In the fourth place they dread the being 
 obliged to ferve as foldiers, and made to take 
 a part in the prefent civil war in America. 
 This they dread, not only on account of tiieir 
 averlion to being commanded by their own 
 noblelTe and feigniors, but in itfelf, even tho' 
 they fliould be commanded by Englifh ofii- 
 cers ; becaufe they well know, that, if they 
 fliould once be brought to aft otlcnfivcly againil 
 the inhabidants of tlie Knglifh provinces, they 
 
 M m m w^l 
 
 1 1 
 

 •^'■?r'-'Ui[: 
 
 
 N 
 
 will ever after be marked out by thofe inha- 
 bitants (\yhom they know to be much more 
 numerous and powerful than themfelves,) as 
 the objeds of their hatred and revenge. This 
 they juftly dread as the greateft misfortune that 
 can befall them ; and therefore they diflike the 
 claufe in the Quebeck-ad^t, which enables pa- 
 pifts to hold military commiflions, inafmuch 
 as it feems calculated . to expofe them to this evil 
 by making it legal for the government to raife 
 regiments among them to be employed againft 
 the other colonies. See this matter more fully 
 confidered above, in pages 238 — 243. ^ ^ . 
 
 For thefe four reafons the aforefaid claufe 
 of the Qiicbeck-bill, which enables papilts to 
 hold places of truft and profit in the province, 
 (and which, one would naturally think, fhouid 
 be agreeable to the Canadians,) is, in fud:, 
 agreeable only to the icw perfons in the pro- 
 vince, who either have cbtai-^'^d, or hope to 
 obtain, fuch places in it j but is alarming and 
 difgu fling to the great body of the Canadian 
 people. . • ^ 
 
 oftheer. I come next to confider the operation of 
 feaofthe fi^g Quebeck-a6t with refpedl to the laws of 
 
 Qiiebeck- ^* — . _ _ f, i i i 
 
 adt with the province. Now tne change produced by 
 
 thl^lfws° t^f^is ^^ ^^^^"^ refped: to the laws of the pro* 
 of the pre- vicce, is to abolifli the Englifh lavv^s, and revive 
 the French laws i?2 all matters of property and 
 civil rights. By thefe very general words it 
 
 has 
 
 viDce. 
 
r 
 
 [ 459 ] 
 
 has been underftood in the province, that not 
 u!]ly the laws relating to private property, (fuch 
 as the tenure, alienation, and defcent of land, 
 and the diftribution of the goods of perfons 
 who die inteftate, and the like,) but thofe re- 
 lating to the powers of government and the 
 protection of liberty, were to be the fame that 
 were in ufe in the time of the French govern- 
 ment ; and confequently that the Englilh laws 
 relating to the -writ of Habeas corpus^ and the 
 petition of right, and the trial by jury in civil 
 nflions, were aboliflied. This was by no 
 means agreeable to the bulk of the Canadian 
 inhabitants of the province, any more than to 
 the Britifh fettlers in it, they having greatly 
 relinked the eafe and quiet, and fecurity, and 
 impartiality in the adminiftration of juflice, 
 which they had experienced during the ten 
 years that the Englifh laws had been eilablirti- 
 ed in the province. They dreaded a return to 
 their former ftate of fubjedlion to the officers 
 of government, and to their own nobleflc and 
 feigniors, under which they had laboured in 
 the time of the French government. Amongft 
 other parts of the former French law, which 
 they fuppofed to be revived in the province 
 by this claufe, they reckoned the laws relating 
 to the manner of railing the militia : infomuch 
 that, foon after the Qaebeck-a(^ was known 
 in the province, a great number of very young 
 men entered haftily into the married ftate, on 
 purpofc to avoid being compelled to ferve in 
 
 M m m 2 the 
 
 ■/r 
 
I ■ '! 
 
 
 {[ 460 ] 
 
 ihc militia; from which obligation, it fccms, 
 by the laws which were obferved in the pro- 
 vince in the time of the French government, 
 married men were exempted. And thus the 
 revival of the French laws in all matters of 
 property and civil rights, (which one would, 
 at firfl fight, have thought would have been 
 agreeable to the Canadians,) has occafioned a 
 great alarm and terrour throughout the pro- 
 vince. 
 
 Oftheef- 
 feftof the 
 Quebeck- 
 att with 
 refpeft to 
 the legif- 
 lature of 
 the pro- 
 vince. 
 
 In the laft place, we muft confider the Ic- 
 giflature eftablifhed in the province of Que- 
 beck J which is a council confifting of 23 mem- 
 bers, partly proteftants and partly Roman-ca- 
 tholicks, appointed by the king, and remove- 
 able at his pleafure, or even at the pleafure of 
 the governour, in cafe his Majeily (liall pleafe 
 to delegate to him the power of fufpending and 
 removing them, there being no claufe in the 
 Quebeck-adt to prevent his doing fo. Now, 
 this meafure is in fome degree dilagreeible to 
 the Canadians, more efpecially as it is accom- 
 panied with an allowance of a falary of jT.ioo 
 a year to each of the faid 23 counfellors, which 
 the Canadians apprehend they fliall ultimately 
 be obliged to pay. Otherwife it mufl be con- 
 fefled, that the bulk of the Canadian freehold- 
 ers in the province, (though they are very 
 much attached to the Englifh lav/s, or have 
 be«n greatly delighted v/ith that eale and free- 
 dom which they have enjoyed fince thofc laws 
 
 were 
 
'■, 
 
 [ 46i ] 
 
 were introduced in the province, and which 
 they confequently afcribe to the introdudtion 
 of them, yet) are not very follicitous about 
 the conftitution of the body of men in whom 
 the power of making laws fhall be vefted. Only 
 I believe, they would chufe it fhould be com- 
 pofed of Englifhmen rather than Frenchmen, 
 as they efteem the former to be more mode- 
 rate and equitable, and alfo wifer, and better 
 acquainted with the nature of government, 
 than the latter. But they are not very defirous 
 of having an affembly of their own chufing 
 vefted with this authority rather than a coun- 
 cil nominated by the king : and for this plain 
 rcafon, that they have not much refledled on 
 the fiibje(S. I fpeak of them, as they were 
 about feven years ago. For it is not unlikely 
 that, by this time, they may have been in- 
 ftruded in the great advantages of an eledlive 
 affembly by the Englifh Americans, who have 
 invaded the province, and by the ingenious and 
 diligent emiffaries, whom the faid Englifh Ame- 
 ricans had fent into the province, before they ven- 
 tured to invade it, to prepare the Canadians to ad- 
 mit them into it as their friends and deliverers, 
 inftead of oppofing them as their enemies : fo, 
 that it is poffible they may now be difpofed 
 to prefer tUe Englifh mode of government by 
 an affembly, to the French mode of govern- 
 ment by a conjeil fupirieur^ or a legiflative 
 council. And even feven years ago, when the 
 bulk of the Canadian freeholders were (thro* 
 
 their 
 
 ( 1 
 
 I ! 
 
 i> 
 
h', ,.• 
 
 .' .■'. W 
 
 I 462 ] 
 
 
 their ignorance) pretty indifferent, whether 
 they were governed by the one legiflature or 
 the other, there were feveral Frenchmen in the 
 towns of Qnebeck and Montreal, amongft the 
 lawyers and notaries, and merchants, and other 
 people in trade there, who preferred the Eng- 
 lilh mode of government, by an aflcmbly chofen 
 by the people, to the government of a legifla- 
 tive council, provided that Roman-catholicks 
 Ihould not be excluded from fitting in fuch 
 aflembly. In fhort, almoft all thole perfons 
 amongft the Canadians, who knew what an 
 uflembly was, and had at all confidered the fub- 
 jt'dl of government, did, even at that time, pre- 
 fer an aflembly to a legillative council, provided 
 they could be admitted to have feats in the 
 ^Ifembly, though the bulk of the freeholders of 
 the province were, from their ignorance, rather 
 iaidiiferent about the matter. Ignoti nulla ciipido. 
 See the Account of the Proceedings, &c. in pages 
 171, 172, — 179. - - 
 
 But this claufe in the Quebeck-a6l, by which 
 tiie whole power of making lav/s is put into 
 the hands of a council of 23 perfons nomi- 
 nated by the crown, has greatly fhocked the 
 Englifli inhabitants of the province^ who, from 
 their conliderable numbers, (having been found, 
 by an enumeration made fince the Quebeck- 
 adl, to be no lefs than 3000 perfons) and 
 from their carrying on three quarters of the 
 trade of the province, and the great influence 
 they have over the bulk of v:he Canadian free- 
 
 ' holder?, 
 
''1 
 
 
 whether 
 lature or 
 en in the 
 ongft the 
 ind other 
 the Eng- 
 ly chofen 
 a legifla- 
 :atholicks 
 J in fuch 
 b per fens 
 
 what an 
 I the fub- 
 ime> pre- 
 
 provided 
 ts in the 
 lolders of 
 ce, rather 
 lla ciipido. 
 in pages 
 
 3V which 
 put into 
 IS nomi- 
 cked the 
 ho, from 
 n found, 
 uebeck- 
 ns) and 
 s of the 
 nfluence 
 ian free- 
 holder?. 
 
 r 463 ] 
 
 holders, who confider th'^m as their friends 
 and protedors, are in truth the mod impor- 
 tant and confiderable body of people in the 
 province. Now, this refpedlable part of the 
 inhabitants of the province are full of indigna- 
 tion at the Quebeck-adl for depriving them of 
 their hopes of being governed by an aflembly 
 of the people, in purfuance of the king's pro- 
 mife to them in the proclamation of Odtober, 
 1763, wiiich they now confider as never like- 
 ly to be accompliflied. And experience has 
 fliewn, that it was not agreeable to good po- 
 licy, any more than to juftice, to adopt a 
 meafure that was likely fo highly to difguft 
 them. 
 
 And the bad policy of this meafure mull 
 appear in the ftronger light, when we refledt 
 that fome of the leading members of this re- 
 fpedtable, and, I may fay, formidable, body of 
 Englifh fettlers in the province, had, before the 
 pafling of the Quebeck-bill, declared a willing- 
 nefs to acquiefce in the eftablifhment of a legifla- 
 tive council in the province yor a few years only, 
 provided it was conftituted in the manner fet 
 forth in the draught of an adl of parliament for 
 that purpofe, which is recited in the Account of 
 the proceedings y &c. from page 50 to page 74, io 
 as to confift of thirty-one members, who Ihould 
 be independent of the governour, though not of 
 the king, and who fhould be fubjetfl to cer- 
 tain checks and reftridions as to their legifla- 
 tive proceedings, which were Ukely to prevent 
 
 any 
 
 1; 
 
1 ^'' 'i » 
 
 ^ ir 
 
 ■* 
 
 , -'i 
 
 ' I 
 
 ''I 
 
 4 464 ] 
 
 any great abufcs of their power. It is really 
 furprizing, that, when fuch a plan of a legifla- 
 tive council (which is far enough from being 
 equal, in point of freedom, to an alYembly of 
 the people ! ) was known to be likely to be 
 acquiefced in by thofe inhabitants of the pro- 
 vince who were moil defirous of having an 
 afTembly, the government fhould have thought 
 fit to reje<fl it in favour of a legiflative council 
 of fo very dependent a conftitution as that 
 which is eftablilhed by the Quebeck-adt j in 
 which the number of members, inftead of 
 being fixed at thirty-one, is variable at the 
 pleafure of the crown between the lefiTer num- 
 bers of twenty-three and feventeen; and in 
 which all the members may be papifts, if his 
 Majefty (hall fo think fit j and none of them 
 are required to have any landed property in 
 the province j and all of them have penfions, 
 or falaries, from the crown, of ^. 1 00 a year 
 each ; and all of them may (for aught the adt 
 fays to the contrary,) be removed, or fufpend- 
 €d, not only by the king, but alfo by the go- 
 vernour, if his Majefty fhall pleafe to dele- 
 gate to him his own power of fo removing 
 and fufpending them -, and that they fhould 
 have eftablifhed this council, with all thefe 
 objedions to it, not for a few years only, but 
 indefinitely, fo as to remove from his Majefty 's 
 fubjeds in that province all hopes of feeing 
 an aflembly ereded in the province in pur- 
 fuance of the royal promife in the proclama- 
 tion 
 
 1^ - 
 
f 465 1 
 
 iion of Odiober, 1763. It furely muft have 
 Deen the intention of the patrons of this adt 
 to keep the province of Quebeck, (which it at 
 the fame time extends over more than half 
 North-America,) in a very great degree of 
 fubjedtion to the crown ! . • . 
 
 It is worth while to obferve the extent of 
 the powers of this council. They may, with 
 the king's fubfequent confent, make and un- 
 make all forts of laws, excepting laws of taxa- 
 tion. They may abolifh the Englifli criminal 
 law, which is eftablifhed in the province by 
 another claufe in this adfc of parliament, but 
 made fubjedl to fuch alterations as the Governoup 
 and this council (hall caufe to be made therein -, 
 and they may introduce the French criminal law 
 
 in its ftead : they may eftabjifli the punifh- 
 
 ments of flitting the nofe, branding on the cheek, 
 or breaking on the wheel, or any other punifti- 
 ments they (hall think fit : — they may eftabliOi 
 the Roman-catholick religion more compleatly 
 than the adl itfelf has done, by pailing an or- 
 dinance to oblige the proteftant as well as 
 the popifh inhabitants to pay the Romi(h priefts 
 the tythes : — - they may even make penal laws 
 againft the proteftants, and eftablifh the writ 
 
 ile Haretico comburendo : they may eftablifli 
 
 letters de cachet y or the power of arbitrary im- 
 prifonment, by an exprefs law, under pretence 
 of providing for the publick fafety, arid check- 
 iiig and defeating the treacherous pradtices of 
 
 N n n confpirators 
 
 ii 
 
%: ■ I 
 
 i- 
 
 ■,'i 
 
 f^- 
 
 
 
 f;'^ 
 
 [ 466 J 
 
 cdnfpirators and fpies. All thefe things they 
 may do by virtue of thefe few fignificant words 
 in the faid adl of parliament, to wit, " which 
 council, Jo appointed and nominated^ or the major 
 part thereof^ Jhall have power and authority to 
 make ordinances for the peace, welfare, and good 
 government, of the faid province, with the con^ 
 fent of his Majejiys governour, or, in his ab^ 
 fence, of the Lieutenant-governour, or commander 
 in chief for the time being\* in which ciaufe the 
 ufual reftridion which is inferted in all the Ame- 
 rican charters and condmiflions to Governours, 
 to wit, that the faid ordinances fiall not be repug- 
 nant to the laws of England, is not inferted, 
 
 I readily allow, that it is not probable that the 
 governour and the faid legiflative council (hould 
 make fuch mifchievous ordinances as thofe juft 
 now menftioned: and I am confident that, if 
 they did make fach, his Majefty would difal- 
 Ibw them by his orders in his privy council. 
 But this is but a precarious fituation for Bri- 
 ti(h fubjedls to be placed in, who have been 
 ufed to live under a governiiient in which it 
 is not only improbable, but impoffible, that 
 fuch laws fhould be made for them by the 
 crown, or any perfbns appointed by it, without 
 the confent of their own reprefentatives in par- 
 Tiament. It is only this latter fituation that 
 can properly be confidered as legal and Britifli 
 freedom, and as what has been promiied to 
 his Majefty *s fubjeds refiding in the province 
 
 V ' ' 
 
t 4^7 ) 
 
 of Quebeck by his royal proclamation of Oc- 
 tober, 176'^. If, therefore, that province is 
 to be governed by a legiflativc council, the Ic- 
 giflative powers delegated to that council by 
 the Britidi parliament, ought to be reftraincd 
 in fuch a manner that they (hall not be able 
 to make any liich mifchievou'3 laws as thofe 
 above-mentioned, or to abolilh, or in any dc^ 
 gree abridge, the laws concerning the writ of 
 i^abeas corpus^ and the protection of perfonal 
 liberty, and the trial by jury, or any other of 
 thofe important privileges of Engliflimen which 
 piay juftly be confidered as having been grant- 
 ed to the inhabitants of the province by the 
 jaforefaid proclamation by the aflu ranee therein 
 given them of the enjoyment of the benefit of the 
 laws of Enghnii, And for this purpofe fome 
 fuch reftridive provjfoes as thoie mentioned 
 above in pages 232, 233, 234, ought to be 
 inferted in the ad which confers on them 
 their legiflative authority. 
 
 Till fuch reftridtigns are made to the le- 
 giflative powers delegated by the late ad to 
 the governour and council of Quebeck, it may 
 juftly be compared to the ftatute of the 31ft 
 year of the reign of king Henry Vlllth, cap. 8, 
 which gave to the king's proclamations the 
 authority of ads of parliament. For it really 
 goes beyond that ftatute in the power it vcfts 
 in thefe fervants of the crown. For, accordijig to 
 that ftatute, the king could not, by his prochuna- 
 
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 tion, repeal any of the laws then in being, nor 
 make any law afFeding men's inheritances* 
 offices, or poflcffions, nor make any new capital 
 crime, except in cafes of herefy : and the punifli- 
 ments, by which obedience to his proclama- 
 tions was to be enforced, were to be only im- 
 prifonment and fines, which were to be in^ 
 nidte^ in purfuance d[ judgement^ to be palTed 
 upon informations brought before certain great 
 officers of flate enumerated in the ad, or at 
 leaft before half the faid officers, in the Star- 
 chamber. Whereas by the late Quebeck-adl 
 the power of making and repealing all forts of 
 laws in the faid province, and enforcing obe- 
 dience to them by all forts of punifliments, is 
 veiled in thq governour and council of the 
 province, with the fubfequent aflent, or al- 
 lowance, of the king. That (latute of Henry 
 VIII. was repealed, with many other fevere 
 and oppreffive ftatutes, in the firft year of the 
 reign of king Edward VI. under the admini- 
 flration of the good duke of Somerfet, that 
 young king's uncle, who was for a few years 
 protedor of the kingdom, and by his wifdom 
 and zeal in the reformation of religion, and 
 the eftablifhment of civil liberty, during the 
 continuance of his power, deferved and obtain- 
 ed the edeem and affedions of the Englifh na- 
 tion in a very high degree. May fome minifter 
 of ftate, of fimilar principles with that good 
 man, in like manner recommend himfelf to 
 the good affedions of his feilow-fubjcds both 
 
 m 
 
 tt^.f 
 
 1 
 
i 
 
 t 469 1 
 
 in England and America, by procuring thc\fc» 
 peal of the Quebeck-adl ! hn ' -;j.r>: ^noj 
 
 Hitherto I have confidcred the Quebeck-adt 
 only as it afFedls his Majefty's fub^e^Ss, both 
 French and Englifli, in that province itfelf ; 
 and I have endeavoured to fhew that, in that 
 view only, it is highly expedient to repeal it^ 
 But, if we confider the efFed of it with re- 
 fped: to the other American colonies, the ne* 
 ceflity of repealing it will appear ftill ftrong;er» 
 For it feems to have alarmed thofe colonies 
 more than any other aft of parliament that 
 has yet been pafled, and, together with the 
 Bofton-charter adl, to have been the principal 
 caufe of the prefent univerfal refirtance in thofe 
 colonies to the authority of the Britifh parlia- 
 ment. The Bofton-charter ad has made them 
 confider all the privileges granted them, both 
 by that and all the other charters in America^ 
 as precarious and uncertain j lince the faid 
 charters are liable thus to be altered, taken 
 away, or new- modelled, at the pleafure of the 
 Britifh parliament, without a hearing of the 
 parties, or a charge and proof of the mif- 
 iifer of the powers and privileges contained 
 in them. And the Quebeck-adt has carried 
 the alarm ftill further, and made the Ameri- 
 can colonies tremble even for their aftemblies, 
 and fufpedt that the Britifti parliament, if they 
 (hould fubmit to Its authority, would totally an- 
 nihilate thofe popular legill itures, and pftablifti 
 
 kgillative 
 
if'li'- 
 
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 legiildtiv« councils in their flead^ as they hav^ 
 dohe in the province of Quebeck. This and the 
 apprehenfion, that their back-fettlements would 
 be invaded by a popiQi army from Canada, and 
 that the principal defign of the Quebeck-ad: v^^as 
 to enable the king to raife fuch an army there, 
 and (by means of the influence of the Romidi 
 priefts and the noblefle,) to keep the Canadians 
 in a difpofition to enlift in it, and to be fo em- 
 ployed againft them, feem to have compleated 
 the deftrudion of all their confidence in the 
 jBritifh parliament, and confirmed them in their 
 refolution of relifting its authority. For other- 
 ^vife it is hardly to be fuppofed, that the accounts 
 which we have repeatedly received from perfons 
 of chara£ter and experience in America, that a 
 great number of persons of weight and property 
 there were friends to the authority of the Britifh 
 parliament^ and would, when properly fupported 
 by a relpedfcable body of troops, declare them- 
 felves to be fo, fliould prove fo intirely falfe 
 and groundlefs. It is hardly poflible to con^ 
 ceiye that the perfons, who gave thefe accounts, 
 fliould have been fo intirely miftaken in their 
 judgements and opinions of the fentjments of 
 the Americans : and ftill lefs ought wc tb ima- 
 gine that they meant to impofe upon govern-* 
 ment, and bring on the prefent thoft deftrudive 
 Xvar. We muft conclude, thereforcj that their 
 accounts of the fentiments of the Americans 
 Were true in the year 1772, and that till that 
 tjme there were many perfons in America, who 
 
 (notvvithrtanding 
 

 t 471 } 
 
 (notwithftandlng the claim of the Britifh paN 
 liament to the right of impofing taxes on its 
 inhabitants, and their exercife of that right in 
 the continuance of the trifling duty upon tea,) 
 were friends to Great-Britain, and averfe to 
 any meafures of refiftance to the parliament's 
 authority; though they were not difpofed ex- 
 prefsly to acknowledge its right to tax them. 
 But, upon the pafling of the Bofton-^charter 
 adl and the Quebeck-ad in the year 1774, (by 
 the former of which their charter-rights were 
 rendered precarious^ and by the latter they 
 were induced to fufpedt that even their aflcm- 
 blies would foon be taken from them, if the 
 authority of parliament was allowed to be le- 
 gally binding on them,) it feems probable that 
 thele friends of governmentj or Great-Britain, 
 thought it neceflary to change their condu(ft, 
 and go over to the more violent party, who 
 were difpofed to refift the authority of parlia-». 
 ment by force of arms. And it is natural to 
 fuppofe, that the mofl: loyal of thefe friends to 
 Great-Britain have reafoned, ever fince that 
 melancholy sera in the politicks of Great-Bri- 
 tain, in fome fueh manner as the following : 
 *' We have hitherto been engaged in a dif- 
 " pute with our mother country, not concern- 
 *^ ing the exiftence of our alTemblies, nor the 
 ^f free and full exercife of their legiflative 
 <f powers for the benefit of their refpedtive 
 f^ colonies, but only concerning their fub- 
 ^^ ordination to the fupremp Icgifljiture qf the 
 
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 t 47a J 
 
 whole Briti(k empire, the Parliament of 
 Great-Britain. The members of that great 
 legiflature have infifted, that the alfemblies 
 of the American provinces are of the na- 
 ture of the common-councils of the corpo- 
 ration-towns in the ifland, or kingdom, of 
 Great-Britain, which have a local and infe- 
 riour fpeci^s of legiflative authority, or, as 
 it is expreiled in the American charters and 
 commiAions, an authority to make laws for 
 their own good government, not repugnant 
 to the general laws of England, and which 
 are known by the name of bye-laws ; but 
 without interfering in the lead with the 
 fuperiour authority of the parliament, which 
 is the fupream and general legiflature of the 
 whole nation, and has power to bind all the 
 fubjedts of the crown in every part of its 
 dominions. And vve, the fober and loyal 
 party in America, (whom our briiker coun- 
 trymen have fligmatized with the name of 
 TorieSy on account of our attachment to 
 Great-Britain,) being convinced by the force 
 of the reafons alledged in that behalf, and 
 deiirous of maihtaining our union with Great- 
 Britain in the moil perfect manner, have 
 acknowledged the juftice of this pretenfion, 
 and have declared ourfelves to be bound in 
 duty, and willing in fad, to obey the fu- 
 pream legiflative authority of the parlia- 
 ment ; though we have wifhed at the fame 
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 the purpofe of impoling taxes on us, and 
 leave that fingie and delicate bufinefs to be 
 tranfaded by our own afTemblies, as it had 
 always ufed to be till the unfortunate ftamp- 
 ad in 1764. Thefe have been our mode- 
 rate and friendly fentiments towards Great- 
 Britain, though a more clamorous and vio- 
 lent party among us has inflamed the people 
 with notions of a very different kind, and 
 has led away a majority in our afl!emblies to 
 declare, that they are not fubordinate in 
 any refped to the Britifh parliament, but 
 perfedlly co-ordinate with it, and equal to 
 it in authority within the limits of their re- 
 fpedlive provinces. Thefe pretenfions we 
 are forced to difapprove, and have, from 
 time to time, exprefled our difapprobation 
 of them, as far as the over-bearing fpirit of 
 the other party, (who have engaged the com- 
 mon people on their fide,) has permitted us 
 to do fo ; becaufe we were of opinion, that 
 thefe high pretenfions were not only void 
 of foundation in truth and reafon, but that 
 they were contrary likewife to good policy, 
 as they have an immediate tendency to 
 fplit the dominions of the crown of Great- 
 Britain into fo many feparate and indepen- 
 dant ftates, and deftroy that happy union 
 and harmony that has hitherto fubfilled be- 
 tween them. But we had never yet ima- 
 gined, that Great-Britain had begun to envy us 
 the enjoyment of our aflemblies themfelves,- 
 
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 ( 474 ] 
 
 and to wifll to have us governed intirely by 
 officers of the crown, without any (bare in 
 the appointment of the legiflaturcs of our 
 refpedive provinces. But now we have 
 reafon to entertain this new and alarming 
 fufpicion. For an adl of parliament is lately 
 paffed, in diredl oppofition to the king's 
 proclamation of October 1763, (which we 
 had always looked upon as a facred inflru- 
 ment, that was binding on the king and 
 nation, and Could not be repealed without 
 a breach of the publick faith, but which 
 this adt has boldly refcinded and annulled 
 by exprefs words ; ) aft adl of parliament is 
 paffed, to efiaiflijhy inftead of tolerating^ the 
 popifh religion in the province of Quebeck ; 
 and to revive the French laws there in all 
 matters of property and civil rights ; and, 
 confcquently, to refume, from both the 
 French and Englifh inhabitants of the pro-p 
 vince, the grant that had been made to them 
 by the faid proclamation, of the Englifh 
 laws concerning the writ of Habeas corpus, 
 and the enjoyment of perfonal liberty, and 
 concerning the trial by jury in all civil actions, 
 and of divers other beneficial laws of Eng- 
 land;-— and to eftablifh, inftead of an 
 affcmbly, (which had been promifed them 
 by the faid proclamation as foon as the ftate 
 and circumftances of the faid province would 
 permit,) a legiflativ€ council compofed of 
 pcrfoQS nominated by the crown j and which 
 
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 ifi not eftabliftied for only a fmall number of 
 years, but is deligned (for aught that appears 
 to the contrary in the ad,) to be the perma- 
 nent mode of government for that province to 
 all future generations J— and laftly, (which is 
 a matter that concerns us more nearly than all 
 the reft,) to enlarge the boundaries of the pro- 
 vince of Quebeck fo as to take in the five great 
 lakes and all the immenfe and very fruitful 
 country contained between them and the ri- 
 vers Ohio and Miffifippi, and which lies at the 
 back of our provinces j with a view, as it 
 fhould feem, that this new and favourite 
 mode of government, together with the Ro- 
 man-catholick religion (now alfo, to all ap- 
 pearance, become an object of favour with 
 Great- Britain,) fhould prevail throughout all 
 that vaft country. What then can we con- 
 clude from fuch an ad of parliament, (the 
 paffing of which would ten years ago have 
 been thought an impofllble event j ) but 
 that Great-Britain is now governed by the 
 counfels of a fet of men, v^ho, going far 
 beyond the late Mr. GrenvilleV fentiments 
 in their plan of controuling thefe provinces, 
 intend not barely to reduce our alTemblies 
 to their antient and conditutional condition 
 of inferiour legiflatures, iubordinate to the 
 fupream authority of the Britifli parliament, 
 but abfolutely to deprive us of them, and 
 govern us by legiflative councils appointed by 
 the Gi'own, in imitation of that v/hich they 
 
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 [ 476 I 
 
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 have juft now cftablidied in this immenfc 
 new province, which they have ercdled at 
 
 the back of our fettiements ? And if 
 
 this be their dedgn, it behoves us Engllfh 
 Americans, if we deferve the name of Eng- 
 lifhmen, and fet any value on the liberties 
 we now enjoy under the protection of our 
 alTcmblies, to unite with heart and hand in 
 defence of them. In fuch a caufe we are 
 ready to venture any thing, even life itfelf, 
 the continuance of which cannot be plea- 
 fant to us after the extindlion of our liberty. 
 We muft, therefore, now at laft give up the 
 plealing hopes which we, the fober and 
 loyal party in America, (who have acknow- 
 ledged the authority of the BritiQi parlia- 
 ment over us,) have hitherto entertained of 
 feeing an amicable conclufion of our pre- 
 fent difputes with our mother-country, fince 
 ihe has fo far forgot her parental afFeftion 
 towards us as to meditate to reduce us to a 
 ftate of political (lavery ; And we muft hence- 
 forwards unite ourfelves with our more vio- 
 lent brethren to carry on their fchemes of 
 independance on Great- Britain -, fchemes 
 which tbey have adopted from ambition, but 
 which we (hall accede to from the humbler, 
 but not lefs cogent, motive of neceflity, from 
 a fenfe of the impofilbility of preferving our 
 former degree of liberty without it, after 
 the difpofition which Great-Britain has ma- 
 nifefted with re^ed: to us by this furprizing 
 a(5t for the government of Quebeck." 
 
 Such 
 
 
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I 477 J 
 
 Such feem to have been the fentiments of 
 the mod moderate Engli(h Americans upon 
 the pafiing the late Quebeck bill ; and, in 
 confequence of them, the rcfiftancc to par- 
 liamentary authority is become almofl uni- 
 verfal, hardly any perfons among them hav- 
 ing, fince that time, appeared to have any 
 inclination to acknowledge and fupport that 
 authority, except the very officers of govern- 
 ment in America, who hold lucrative em- 
 ployments there at the plealurc of the crown, 
 and a few of the clergy of the church of Eng- 
 land, who are eagerly defirous of having a 
 proteftant bilhop fent to America, and who, 
 probably, have no hope of feeing that favourite 
 meafure accomplifhcd without the interpofition 
 of the authority of the Britifli parliament. 
 This being the flate of things, it feems evi- 
 dent, that ail hopes of reconciliation between 
 Great-Britain and her colonies, upon any laft- 
 ing or cordial terms, are at an end, unlefs this 
 adt for regulating the government of the pro- 
 vince of Quebeck (hall be repealed. And, 
 therefore, if we wifli to retain the colonies in 
 America, as members, or parts, of the domi- 
 nions of the ciown of Great-Britain, in any 
 capacity, (either as fubordinate civil focietics, 
 or corporations, fubjcd to the controul of the 
 Britifh parliament, or as feparate dates of fel- 
 low-fubjcds of the fame king, having Icgifla- 
 tnres of their own co-ordinate with the parlia- 
 ment, or legiiliture of Great- Britain^) it feems 
 ' ^ ^ ■ to 
 
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 i 478 ] 
 
 to be a rhcafurc, not merely of prudence, or 
 expedience, or preferable choice, out of abfo^ 
 lute neceflity, to repeal this mod obnoxious adt 
 of parliament, and pafs another in its (lead, which 
 fhall be more agreeable to the promifes contained 
 in the royal proclamation of Odlober 1763, and 
 the general principles of the Britidi conditution, 
 
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 fit; 
 
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 Of the Power of impofing Taxes in the 
 Province of Quebeck, fince the late 
 A<3 for regulating its Government, 
 
 ^Tp HOUGH the ad for regulating the govern* 
 •* ment of the province of Quebeck exprefsly 
 excepts from the power of making laws, which 
 it delegates to the Governour and council to be 
 eftablifted in it, the power of laying any taxes, 
 or duties, within it; and though the British 
 parliament, at the fame time that it pafTed this 
 adl for the government of that province, pafled 
 another adt for impofing certain taxes and 
 duties on fpirituous liquors imported into it, 
 (which I believe to be both moderate and ju* 
 dicious, and againd which no complaints have 
 been made in the province,) j yet there is fome 
 reafon to apprehend that the (aid ad for regu* 
 lating the government of the province of Que- 
 beck may one day or other be confidered as 
 Jiaving veiled the power of impofing taxes on 
 
 the 
 
 
Icncc, or 
 of abfo*- 
 xious adt 
 id, which 
 :ontained 
 763, and 
 iditution, 
 
 :s in the 
 the late 
 ment. 
 
 e govern* 
 
 exprefsly 
 
 ^s, which 
 
 icil to be 
 
 my taxes, 
 
 e Britifli 
 
 alTed this 
 
 e, pafled 
 
 ixes and 
 
 into it, 
 
 and ju-» 
 
 nts have 
 
 is fome 
 
 or regu- 
 
 of Que- 
 
 dered as 
 
 taxes on 
 
 the 
 
 [ 479 1 
 
 the inhabitants of that province in the crowii 
 alone, without the concurrence of the parlia* 
 ftient. If this fhould be the cffcdl of the faid 
 adl, I readily allow that it was done inadver* 
 tently, and that it is probable the promoters of 
 the adt had no fuch effedl in view at the time 
 of pafling it, but intended to referve the power 
 of impofing taxes in that province to the king 
 and parliament conjointly. But flill I think 
 there is reafon to apprehend that the adt may 
 be confidered as having this operation. M^ 
 reafons for thinking fo are as follows. 
 
 The royal proclamation of Odtober, 176;}, 
 related equally to all the four new governments 
 which were then going to be eredted in the 
 countries that had been ceded to the crown of 
 Great-Britain by the definitive treaty of peace 
 concluded at Paris in the preceding month of 
 February. Thefe governments were thofe of 
 Quebeck, Eaft-Florida, Weft-Florida, and 
 Grenada. And the fame promifes, of being 
 immediately governed according to the Engliili 
 law, and of having the English form of colony->> 
 government, by a Governour, council, and 
 aifembly, eftablifhed in them, as foon as their 
 (ituation and circumftances would admit thereof, 
 were made to them all. In the month of 
 July in the following year 1764, the King 
 ifTued letters patent under the great feal of 
 Great-Britain, reciting, " That in Barbadoes, 
 '' and all the Britiih Leeward iflands^ thepe 
 
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 t 480 ] 
 
 •* was a duty of four and a half per cent, paid 
 •* Upon the export of goods," and then pro- 
 ceeding to irapofe the like duty in the ifland 
 of Grenada in thefe words, " Whereas it is 
 reafonable and expedient, and of importance: 
 to our other fugar colonies, thit the like 
 duty (hould take place in our faid illand of 
 Grenada, we have thought fit, and our royal 
 will and pleafure is, and we do hereby, by 
 " virtue of our prerogative royal, order, diredt, 
 and. appoint, that an impoft, or cuftom, of 
 four and a half per cent, in fpecie (hall, 
 from and after the 29th of September next 
 enfuing the date of thefe prefents, be raifed 
 and paid for and upon all dead commodities, 
 ** of the growth arid produce of our faid ifland 
 of Grenada, which fhall be (hipped fronl 
 the fame, in lieu of all cufloms and import- 
 duties hitherto collected upon goods imported 
 " and exported, into and out of, the faid ifland, 
 " under the authority of his Mofl: Chriftian 
 " Majeftyi and that the fame (hall be col- 
 " leded." This duty of four and a half per 
 cent, was accordingly collected for fome years 
 in the ifland of Grenada "by virtue of thefe 
 letters patent, without either an adl of the Britifh 
 parliament or an aiS of the Governour, council, 
 and aflTembly of Grenada, to confirm them, not- 
 withftanding an aflembly was called in that 
 ifland, and iattodobufinefsinit,intheyear 1765. 
 At laft, in the year ijj^* ^"^ Mr. Alexander 
 Campbell, a natural-born fubjed of Great- 
 Britain, 
 
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cent, paid 
 then pro- 
 the ifland 
 ereas it is 
 nportance 
 
 the like 
 I ifland of 
 \ our royal 
 erebv, by 
 ler, direct, 
 uftom, of 
 ecie (hall, 
 mber next 
 , be raifed 
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 faid iQand 
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 faid ifland, 
 
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 of thefe 
 the Britifh 
 •, council, 
 hem, not- 
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 yean 76 5. 
 Alexander 
 of Great- 
 Britain, 
 
 [ 48t 1 
 
 ^ritain, who had purchafed a plantation In the 
 ifland of Grenada in the month of March, 1 763, 
 and who had paid this duty of four and a half 
 per cent, upon fome fugars which he had ex- 
 ported from it, brought an adtion againfl Mr. 
 Hall, the collcifbor of the cuftoms to whom he 
 had paid it, to compel him to return it to him> 
 Us being money had and received by the faid 
 defendant Hall to his, the plaintifTs, ufe, it 
 having been paid by the faid plaintiff in pur-* 
 fuancc of the faid letters patent of July, 1764, 
 Which he contended to be illegal and void. 
 The defendant Hall refted his defence upon 
 the validity of the faid letters patent -, and the 
 jury found a fpecial verdidt, flating the whole 
 , tnattcr j of which the fubftance has been here 
 relate(i. And this fpecial verdidl was folemnly 
 fargued at the bar of the court of King*s-bench, 
 ilnd judgement was given on it by the judges 
 of that court on the 28th day of November^ 
 1774, in favour of the plaintiff Campbell. 
 Lord Mansfield, the chief juflice of the faid 
 court, delivered th« opinion of the court upon 
 that occafioui which was to the following 
 purport. He faid, that the general queflion 
 Upon the fpecial verdict was this, to wit, 
 ** Whether the letters patent of July, 1764, 
 are good and valid to abolifh the French duties, 
 and, in lieu thereof, to impofe the faid duty 
 . of four and an half per cent, which is paid in 
 ftll the Britifli Leeward iflands," 
 
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 That upon this queftion the counfel for tfcc 
 defendant had contended that the faid letters 
 patent were void, upon two diftinct grounds. 
 
 In the firA place they contended, that; if the 
 king had ifTuedf thefe letters patent before his 
 aforefaid proclamation of October, 1763, (in 
 which he promifed the inhabitants 01 the (aid 
 iitand the enjoyment o^ the benefit of the laws 
 of England and the Englifh mode of govern- 
 ment by a Covernour, council^ and aflembly^) 
 they would neverthelefs have been illegal and 
 void ; for that the king can at no time exercife 
 fuch a legiilative autboFi^ over a Gon<)uere4 
 country. ' t"'; '!"'_r"'/^"^\.^,;^.;^ ^/\' 
 
 And in the feconcl place they iaid, tnat, if 
 the king had had fufficient authority before the 
 iffuing of the faid proclamation of Odobefy 
 I763, to do fuch a legiilative ad, yet that by 
 the faid proclamation of October, 1763, he 
 had divefted himfelf of that authority* 
 
 Lord Mansfield declared that all the judges 
 of the court were of opinion with the plaintiff's 
 coun'iei upon this latter poirit, to wit, that the 
 king had by the faid proclamation of Odober, 
 1763, divefted himfett of this legiflativepower; 
 and therefore they gave judgement for the 
 plaintiff. But he declared it to be clearly his 
 own opinion, and did not intimate that any of 
 the other judges differed from hFm upon that 
 
 n 
 
 t-ii 
 
t 483 1 
 
 point, - " that in the interval of time between 
 the ceffion of the ifland of Grenada to the crown 
 of Great-Britain by the treaty of peace in Fe- 
 bruary, 1763, and the proclamation in Odlober, 
 1763, the king had a power of impofing the 
 faid duty of four and a half per cent, upon 
 goods exported from the ifiand of Grenada by 
 virtue of his letters patent under the great feal; 
 and confequently that, if the faid letters patent 
 ior inipofing the faid duty had been pafTed 
 before the faid proclamation of Qdtober, 1763. 
 inflead of after it, they would have been legal 
 and valid, and tlie judgement in that adtion 
 mud have been for the defendant* 
 
 Amongft other arguments, or rather autho? 
 rities, in fupport of this royal prerogative of 
 impofing taxes on the inhabitants of conquered 
 countries. Lord Mansfield, in delivering the 
 judgement of the court on the aforefaid occafion, 
 mentioned the opinion of Sir Philip Yorke, 
 (who was afterwards Lord Chancellor Hard- 
 wicke,) and Sir Cfemenl* Wearg, when they 
 were attorney and fo)licitor general, upon a 
 cafe referred to them by the privy council. 
 This cafe was as follows. In the year 1722, 
 the aflembly of Jamaica being refra^ory, it 
 was referred to Sir Philip Yorke and Sir Cle- 
 ment Wearg to confider what could be done 
 if the affemibly ihoiild continue to >yith-hold 
 all the ufual fupplies. Upon this they reported! 
 m f qUows : ** That, if Jamaica was ftill to' 
 
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 ( 484 1 
 
 " be confidered as » conquered iflaqd, the king 
 *' had a right to lay taxes upon the inhabitants; 
 *' but, if it was to be confidered in the fame 
 *' light as the other colonies, no tax could be 
 ** impofed upon the inhabitants but by an 
 ** aflembly of the ifland, or by an adt of par-* 
 ** liament." This opinion Lord Mansfield laid 
 great flrefs on, and adopted. / 
 
 Now, if this opinion is true, I apprehend 
 that it will follow that it is at this tinie lawful 
 for the king by his letters patent under the 
 great feal to impofe taxes on the inhabitants of 
 the province of Quebeck, by virtue of that 
 claufe in the late Quebeck-a<Et, in which it is 
 enadted, " that the faid proclamation [of Odto- 
 ber, 1763], fo far as the Jame relates to the 
 faid province of Rebeck, and the commijjion, ^c. 
 be revoked, annulled^ and made void, from and 
 after the firji day of May, one thoufandy feven 
 hundred, and jeventy-fiver For, fince this pro- 
 clamation is hereby revoked with refpedl to the 
 province of Quebeck, it feems naturally to 
 follow that the king^ power with refpedt to 
 that province muft, in all cafes not provided 
 for by the faid adl, be the fame as it was before 
 the faid proclamation was publi{hed, and con- 
 fequently that it will extend to the impofition 
 of taxes upon the inhabitants of that province, 
 there being no provifion in the faid a6t con-- 
 cerning the perlons in whom the power of 
 laying taxes (hall be veiled, but only an ex- 
 
 - • ' . " , ,. . ception 
 
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thelung 
 ibicants; 
 be fame 
 ould be 
 : by aa 
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 iprehenA 
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 tder the 
 irants of 
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 fpe<a to 
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 nd con- 
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 ovince, 
 O: con-^ 
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 an ex- 
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 ccption of it in the claufc which delegates Ae 
 power of making laws to the Govemour and 
 council of the province. And thus the late 
 parliament will, by the late Quebcck-adt, have, 
 inadvertently and by necejfary injerence^ conveyed 
 to the crown alone a power of taxing all the 
 inhabitants of the province of Quebeck, (which 
 they alfo extended over more than half North- 
 America,) at the fame time as they, deliberately 
 and exprefsly^ conveyed to the Governour and 
 council of the faid province a power of making, 
 with the fubfequcnt aflent of the crown, all 
 forts of lawg in the faid province, excepting 
 fuch as relate to the impofition of taxes. This 
 is one of many inftances of the loofe and 
 negligent manner in which that moft important 
 adt is drawn up. 
 
 Now, fince this is the ufe which may one 
 day be made of the aforefaid claufe in the 
 Quebeck-adt, (which revokes the king's pro- 
 clamation of Odober, 1763,) by means of the 
 aforefaid opinion of Lord Mansfield upon the 
 firft point that was in lifted on by the plairitifPs 
 counfel in the aforefaid cafe of Campbell and 
 Hall, it feems reafonable, in cafe the faid 
 Quebeck-ad fliould not be repealed, but only 
 amended, and the aforefaid proclamation of 
 Odober, 1763, fhould not be revived in the 
 faid amending adt, I fay, it feems reafonable 
 in fuch cafe to guard againft this conclufion 
 by an exprefs claufe that (hall veft the power 
 
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 6f impofing taxes on the inhabitants of thd 
 the faid province, until an aflembly of peo-> 
 pie (hall be eftabliihed in it, in the parlia- 
 ment of Great-Britain. With this view it 
 would be proper to corredt the fecond (edtion 
 of the draught of an aA of parliament for 
 eftabliHiing a legiflative council in the province 
 of Quebeck for only feven years, which is 
 recited in the Account of the Proceedings, &c. 
 from page 50 to page 74, (fuppojing that 
 draught were to be adopted as part of an ad 
 of parliament for amending the prefent Que- 
 beck-adt,) in the following manner. -j- 
 
 It PROVIDEP always, and IT IS 
 HEREBY FURTHER ENACTED, tha^ 
 none of the faid laws, flatutes, or ordinances, 
 (hall in any degree tend to the impofing any 
 duties, or taxes, oq the inhabitants of the faid 
 province ; and that, (0 far as any of the faid 
 laws, ilatutes, or ordinances, fhall have any 
 fuch tendency, they fl^all be utterly void and 
 of no cfftO: or authority whatfqever : and that, 
 during the continuance of this prefent a<^, no 
 duties, or taxes of any kind, (hall bei impofed 
 on fhe inhabitants of the faid province by any 
 other authority than that of the parliament of 
 Great- Britain. See the Account oftife frQceeii-^ 
 ingsy^c. page 63. . . .- c 
 
 But, as th^ Quebeck-a(^ is liable to fuch ^ 
 
 nupiber of very capital objedions in almofl^ 
 
 every pari of it, it is to be hoped that, when it 
 
 . . next 
 
 J. ^ ■ 
 
of the 
 
 3f pCO- 
 
 parlia- 
 view it 
 
 fedtion 
 ent for 
 province 
 vhich is 
 
 fgS, &c. 
 
 ng that 
 F an adt 
 nt Que- 
 
 IT IS 
 
 D, tha^ 
 
 linances, 
 
 fing any 
 
 the faid 
 
 the faid 
 
 ave any 
 
 roid and 
 
 nd that, 
 
 a6l, PQ 
 
 inipofec) 
 
 by any 
 
 ment of 
 
 fuch ^ 
 almofl^ 
 I when it 
 next 
 
 t 487 1 
 
 hext undergoes the confideration of parliatnenfi 
 it will not be amended, but totally repealed^ 
 and the king's proclamation of 0<flober, 1763, 
 again revived with refpedt to that province^ 
 with fuch explanations and corre^ions as (hall 
 be judged neceffary for the domeftick happinefs 
 and fatisfadion of the Canadians; agreeably to 
 what has been faid above in pages 436, — — 446. 
 For there never, as I believe, was a written 
 compofition of any kind, that gave a jufter 
 handle to the application of Martiars fatirical 
 diftich. . , 
 
 Emendare tuos, O Fefcennine, libellos 
 .« Non multae poifunt, Una litura poteft« 
 
 ' 'f\ 
 
 'M 
 
 V'....-^ 
 
 .1, . -V , 
 
 
 id* 
 
 -.} 
 
 :j 
 
 A Pfopofal for a Reconciliation witli 
 , the revolted Provinces of North- 
 America, without exempting them 
 from the Authority of the Britifh 
 , Pariiament, . ^ 
 
 ■,^^f 
 
 %'t*J the firft place, to repeal the (Juebeck-adi, 
 •*■ and thereby re-cftablifh the king's proclama- 
 tion of Odlober, 1763, with refpeS to the pro- 
 vince of C^ebeck, and reduce the extent of the 
 faid province to what it was before the late 
 Quebeck-adt; or> perhaps, (if it ihall be thought 
 
 J^^ceflary, 
 
K.^^¥' ■:' 
 
 if;, 'i, 
 
 ♦r' i 
 
 if, •>' 
 
 
 ^1 
 
 r\ 
 
 
 
 [Zl 
 
 '4 
 
 t 488 1 
 
 |iece£[ary, upon a full inquiry into the matter 
 by the tcftimony of fea-officers acquainted with 
 Kewfoundland and the gulf of Saint Lawrence, 
 and thefifheries and trade carried on in thofe parts, 
 and by the tedimony of merchants acquainted 
 with the f^me fubjedls,) to enlarge the former ex- 
 tent of the province of Quebeck, as fettled by the 
 proclamation of Odtober, 1763, by the addition 
 of the coaft of Labrador^ which by the faid 
 proclamation were made part of the govern*^ 
 ment of Newfoundland : but by no means to 
 put all the interiour part of North-America into 
 the province of Quebeck. ., 
 
 Secbndly, After thus repealirtg the Quebeck- 
 adl, and reviving the king's proclamation of 
 October, 1763, and reducing the province of 
 Quebeck to a reafonable and moderate extent, 
 capable of being governed by an aflembly in 
 purfuance of the promife in the faid royal pro- 
 clamation, To afcertain the laws of the pro- 
 vince. This (hould be done by exprefsly 
 mentioning and confirming the petition of 
 right, the ba&eas corpus a£t, the bill, or de- 
 claration, of rights in the firft year of king 
 William and queen Mary, and perhaps a few 
 other flatutes that are (ingularly beneficial and 
 favourable to the liberty of the fubjed, and 
 then by confirming, in general terms, the reft 
 of the laws of England, both criminal and 
 civil, excepting the penal laws againft the excr- 
 cife of the popifh religion, which fhould be 
 VT= ^* - declaied 
 
f 489 ] 
 
 declared to be (what they have aiiwajrs been 
 underflood to be,) utterly null and void with 
 rcfped to that province, and excepting alfo the 
 laws relating to the tenure of land, the manner 
 of conveying it, and the laws of dower and 
 inheritance, at leaft with refped to the children 
 of marriages already contradled, or which fliall 
 be contracted before a given future day, and 
 declaring that upon thefe fubjedts the former 
 French laws of the proviace (hould be in force. 
 
 But the laws of England which difqualify 
 papifts from holding places of truft and profit, 
 ought flill to be continued in the province, 
 though the penal laws (hould be aboliihed; 
 the former laws being net laws of perfecution, 
 but of felf-defence. Yet the king might, if 
 he pleafed, extend his bounty to thofe people 
 who figned the French petition, and to fuch 
 other perfons of the Roman-Catholick religion 
 as he thought fit, by granting them penfions. 
 
 ■ V ■«■■ ' 
 
 Alfo it would be proper to abolifh the feig- 
 neurial jurifdidions in Canada, for the fatif- 
 fadtion of the great body of the freeholders 
 of the province. If this cannot be done con- 
 iiilently with juftice and the terms of the capi- 
 tulation granted by Sir JeiFery Amherft in Sep- 
 tember, 1760, without giving the feigniors a 
 pecuniary compenfation for the lofs of thefe 
 jurifdidions, (though 1 incline to think it might,) 
 fuch pecuniary compenfations ought to be 
 
 Qj2 q given 
 
 
t 
 
 ■< ■A ■■ 
 
 m 
 
 r» 
 
 k^ I 
 
 fM 
 
 t-rt ■ 
 
 i 
 
 V .i 
 
 
 ] 
 
 given them. The expcnce of a week's extra- 
 ordinaries to the army at Bofton would be 
 more than fufhcient to make thefe compenfa- 
 
 tions in a large and ample manner. 
 
 » 
 
 Thirdly, Having thus afcertained the laws 
 
 of the province of Quebeck, it would be 
 
 proper to provide for the convenient adminiftra- 
 
 tion of juftice in it, either by adopting the plan 
 
 fet forth above in pages 343»— 359> or fome 
 
 other that (hall be thought fitter for the purpofc. 
 
 Fourthly, To provide a competent legiflature 
 for the province of Qu,ebeck. The beft le- 
 giflature that could be provided for it, would, 
 as I believe, be a proteftant afTembly chofen 
 by the freeholders of the country, whether 
 Proteftants or Roman-Catholicks. The next 
 beft, 1 fhould be inclined to think, would be 
 a legiflative council confifting of proteftants 
 only, fuch as is propofed in the draught of 
 an a6t of parliament contained in the Account 
 of the Proceedings^ &c. pages 50 — 74, with 
 the corredlions herein above mentioned in pages 
 232, 233, 234, and486, to be eftabliftied for 
 only feven years ; in which all the members 
 fliould be made independent of the Governour, 
 fo as to be neither removeable nor fufpendible 
 by him upon any occafion whatfoever, though 
 they might be removed by the king by his order 
 in council. They ftiould be thirty-one in 
 number^ or perhaps more ; and fhould all fign 
 
 the 
 
 1' 
 
 V ., .^Y 
 
.'s extra- 
 3uld be 
 mpcnfa- 
 
 the laws 
 ould be 
 miniftra- 
 the plan 
 or Ibme 
 ; purpofe. 
 
 cgiflature 
 ; beft Ic- 
 t, would, 
 ly chofen 
 whether 
 [The next 
 would be 
 roteftants 
 aught of 
 jdccount 
 4, with 
 in pages 
 lifhed for 
 members 
 lovernour, 
 ]fpendible 
 , though 
 his order 
 ly-one in 
 
 |"d all fign 
 the 
 
 t 49^ ! 
 
 thfc ordinances for which they gave their votds ; 
 atid (hould be paid forty (hillings each, every 
 time they attended the meetings of the council, 
 in order to induce thenl to attend in confiderablc 
 numbers j as the jufticcs ofthe peace in Eng- 
 land are intitled to a pecuniary allowance for 
 attending, the (Juarter-fcflions of the peace, and 
 the directors of the Eaft-India company for 
 attending the meetings upon the affairs of the 
 company, and the members of the Houfe of 
 Commons are intitled to wages from their 
 conftituents for attending parliament, though 
 nbw they forbear demanding them. But they 
 (hould receive ilo general falaries from the 
 crown, not depending upon their attendances ; 
 as fuch a pradtice can tend to nothing but to 
 make them dependant on the crown, and con- 
 temptible in the eyes of the people. Next to 
 fuch a legiflative council, conlifting of pro- 
 teftants only, a geheral aflembly of the people, 
 confiding of proteftants and papifts indifcrimi- 
 natcly, feems to be the rhoft proper legiflature 
 for the proviilce. And to the eftablifhment 
 of fuch an aflfembly but few objedions can 
 now be made, firice the Englifh fettlers in the 
 province, on the one hand, have declared that 
 they are willing to acquielbe in the eftablifh- 
 ment of fuch an afifembly, and the king and 
 parliament, oti the other hand, have, (bypafTing 
 the Quebeck-adt and permitting Roman-Ca- 
 tholicks to hold all forts of offices, feats in the 
 legiflative council of the province, judicial 
 • i*'; • Q^q 2 oftices. 
 
PU' 
 
 n 
 
 < 
 
 
 ^(^ 
 
 -\ 
 
 
 
 
 ■K 
 
 i 
 
 
 m 
 
 ■■■ ; f 
 
 IM'' 
 
 .'''■. \ 
 
 I ^9i J 
 
 offices, and even military comminions,) dd« 
 dared that they confider the old opinion* 
 ** that Roman-Catholicks were not fit perfons 
 to be inveded witl^ authority under the Britifh 
 governnient/' as ttUgrounded with refpedt to 
 3ic province of Quebeck. For certainly, if 
 there is any hardship in excluding papids from 
 holding places of trud and profit in the pro* 
 vince, there is a (lill greater hardship in ex- 
 cluding them from being chofen members of 
 ,an aflembly of (be province. . : r .- / 
 
 Fifthly, To repeal the Bofton-chartcr adl> 
 and to pafs a refolution in both houfes of par- 
 liament, that, for the future, no charter of any 
 American colony ihall be taken away, or al- 
 tered in any point, by the BritKh parliament, 
 without, either, on the one hand, a petition 
 for that purpofe to the two houfes of parlia- 
 ment, or to the king's majefty, from the 
 aflerobly of fuch colony, whofe charter is pro- 
 pofed to be either taken away or altered, or, 
 on the other hand, a fuit at law by a writ of 
 Jeire facias to repeal the faid charter, regularly 
 carried on in the court of Chancery in Eng- 
 land, upon a charge of fome abufe of the 
 powers of the faid charter by the people of 
 fuch colony, or of fome other mildemeanours 
 committed by them, which may be a legal 
 ground of forfeiture of the /ame, and a judge- 
 ment of forfeiture pronounced in confequence 
 of fuch fuit after a full hearing of the fame, 
 
 . 1 and 
 
ns,) dt^ 
 opinion » 
 t perfons 
 le Britifh 
 efpe^ to 
 tainly, if 
 {([$ trom 
 th« pro- 
 p in ex- 
 mbers of 
 
 irtcr adt^f 
 s of par- 
 ;er of any 
 ly, or al- 
 irliament, 
 
 1 petition 
 if parlia- 
 rom the 
 er is pro- 
 ered, or, 
 a writ of 
 regularly 
 in Eng- 
 
 2 of the 
 Deople of 
 neanours 
 
 a legal 
 a judge- 
 fequence 
 he fame, 
 and 
 
 t 493 3 
 
 ftnd a1 fo a re-hearing in parliament of thi 
 charges in the faid fuit and of the proofs 
 brought in fupport ot them, and of the argu- 
 ments which may be alledged both for and 
 againft the faid colony by counfel, and an ap- 
 probation and confirmation of fuch judgement 
 of forfeiture by both houfes of parliament in 
 confequence of the faid re-hcaring of the whole 
 matter. 
 
 Such a refolutbn of the two houfes of par- 
 liament would give the Americans a ftrong 
 moral aflu ranee that the privileges granted 
 them by their charters would not be lightly 
 and wantonly altered for the future upon the 
 hafly fuggeflions of men little acquainted with 
 their hidory and condition, and whofe notions 
 of government are very different from their own. 
 
 Sixthly, To repeal the trial-ad, for trying 
 officers or foldiers, who fhall be indidted for 
 murder in the MaiTachufets bay, in others of 
 the American provinces, or in England. This 
 adt, I am perfuaded, was intended only for 
 the purpofes of juflice, and to procure a fair 
 trial to the officers and foldiers who fhould 
 happen to be indicted for adtions done by them 
 in the courfe of their duty as aifiitants to the 
 civil magiflrate in the execution of the laws, 
 and not to fcreen them from punifhment when 
 they were really guilty of murder, or had 
 oceafianed the death of his Majelly's fubjedta 
 -►■' in' 
 

 Ml' 4- 
 
 If . 
 
 1 !«' -i 
 
 V. • 
 
 » i 
 
 T 494 3 
 
 In tHat province without fuch juft and lawfcd 
 :caufe. And I am further perfuaded that, in 
 fadl, it would not fcreen them from punifh- 
 ment, provided the charge was fupported by 
 proper teftimony ; but that the faid juries that 
 Ihould try thefe indidments, whether in 
 England or America, would readily convidt 
 fuch officers and foldiers of murder, if they 
 were really guilty of it, and proved to be fo 
 by fufficient evidence. But the difficulty of 
 procuring the witnefTes to the fads to come 
 acrofs the Atlantick ocean to give evid^nci 
 concerning them is fo great, that it may aU 
 mofl be confidered as unfurmountable -, and 
 confequently this method of trying thofe 
 offences may be reckoned to be impracticable, 
 notwithflanding the fpirit of juflice and im- 
 partiality by which the juries would probably 
 be governed. And for this reafon the a*^ 
 ought to be repealed. However, as this acft 
 is only a temporary one, and will expire of 
 itfelf in two years, it is a matter of^ much 
 lefs confequence than the aft for altering the 
 charter of the MafTachufets bay and the Que- 
 beck-adl. Thofe are the ads which have 
 brought on this civil war, and which, I ap- 
 prehend, muft be totally repealed before peace 
 can be reftored. 
 
 Seventhly, To pafs a refolution of both houfes 
 of parliament, that, for the future, no tax or 
 duty of any kind, fhall be impofed by authority 
 
 of 
 
 n 
 
 If 
 
 rri. 
 
iik 
 
 lawfcd 
 :hat, in 
 punifh- 
 )rted by 
 •ies that 
 ther in 
 convi(ft 
 if they 
 to be fo 
 culty of 
 to come 
 jvid^nc4 
 may aU 
 le ; and 
 ig thofa 
 dticable, 
 and im- 
 probably* 
 the a«a 
 this a(ft 
 "cpife of 
 I much 
 ■ing the 
 e Que- 
 have 
 I ap- 
 e peace 
 
 houfes 
 tax or 
 uthority 
 
 gf 
 
 :h 
 
 [ 495 ] 
 
 -.1. . ... '..ji-.tJr 
 
 t)f the parliament of Great-Britain upon hli 
 Majefty's fubjeds redding in thofe provinces of 
 North America in which aflemblies of the people 
 are eftablifhed, until the faid provinces fliall 
 have been permitted to fend reprefentative^ to 
 the Briti(h parliament, excepting only fuch taxes 
 or duties, upon goods exported out of, and im- 
 ported into, the faid provinces, as {hall be 
 thought neceflary for the regulation of the 
 trade of the faid provinces 5 and that, when 
 fuch taxes, or duties, (hall be laid by the Britifh 
 parliament on any of the faid provinces, the 
 whole amount of the fame (hall be difpofed of 
 by ads of the aflemblies of the provinces in 
 which they {hall be colle<Sted, rcfpedively. 
 
 I do not mean on this occafion to recom- 
 mend to the publick the admiflion of repre- 
 fentatives from the American colonies into the 
 Britilli Houfe of Commons j becaufe I have 
 obferved a di{inclination in both the contend- 
 ing parties to adopt a meafure of this kind, 
 which otherwife I {liould think the eafiefl: and 
 mo{l natural method of reconciling and unit- 
 ing them. But what I here propofe is to 
 give the Americans fatisfadion and fecurity, 
 by declaring a refolution not to tax them by 
 the authority of the Britifli parliament, of 
 which they have exprelled fo great a dread 
 and averfion, and at the fame time to fave the 
 honour and dignity of that fupreme legiflature 
 all the Britidi dorninions, by exhorfing 
 ■'■ ' ' ■ th^ui, 
 
 of 
 
u;,^ 
 
 
 :l ' 
 
 .\*'n ' 
 
 !* •. 
 
 
 ' I '• 
 
 
 I 
 
 # 
 
 ,f 
 
 
 l"»"4 
 
 [ 496 ] 
 
 tnem, not to give up their right and authority 
 to tax the inhabitants of the American pro- 
 vinces, but only to forbear the exercife of it 
 till they have taken a ftep towards the ameind- 
 ment of the conftitution of their own body, 
 which the moft flrenuous advocates for their 
 authority acknowledge to be agreeable to 
 equity, in cafe it is their intention to ufe that 
 authority for the purpofe of taxing America. 
 For the late Mr. George Grenville himfelf, 
 and others of the moft zealous defenders of 
 the rights of the Britifh parliament, have 
 acknowledged that fuch an alteration in the 
 conftitution of the Britifh Houfe of Commons 
 by admitting into it a reafonable number of 
 members for the American colonies, (agree- 
 ably to what was done a hundred years ago in 
 the cafe of the bifhoprick of Durham,) would 
 be perfedlly conftitutional and equitable, and 
 could not well be rcfufcd to the Americans, if 
 they were to delire it, and to declare a willing- 
 nefs to fubmit, in confequence of it, to the au- 
 thority of parliament in all things in the fame 
 manner as the inhabitants of Great- Britain. 
 Until therefore an offer of this kind is made 
 to the Americans and refufed by them, it can 
 be no derogation to the honour of parliament, 
 but rather a proof of their equity and mode- 
 ration, and therefore honourable to them, to 
 forbear to exercife their authority over Ame- 
 rica in this delicate and dangerous bufinefs of 
 taxation. And, as the people of Great-Britain 
 
 Icem 
 
mthority 
 can pro- 
 cife of it 
 ; amend- 
 vn body, 
 for their 
 ;eable to 
 > ufe that 
 America, 
 himfelf, 
 snders of 
 It, have 
 m in the 
 'ommons 
 imber of 
 , (agree- 
 irs ago in 
 ,) would 
 ble, and 
 ricans, if 
 willing- 
 ) the au- 
 the fame 
 -Britain* 
 is made 
 , it can 
 liament, 
 d mode- 
 hem, to 
 IT Ame- 
 finefs of 
 :-Britairi 
 Icem 
 
 [ 497 1 
 
 feem hardly more difpofed to make fuch an 
 offer than thofe of America are to accept it, 
 this forbearance of the exercife of the autho- 
 rity of parliament may be continued for many 
 years to come, perhaps for ever, without any 
 lofs of honour to Great-Britain, and with 
 great joy and fatisfadtion to the Americans. 
 
 Eighthly, That all the quit-rents, and other 
 royal dues,colledled in the provinces of America, 
 fhall be appropriated to the maintenance of the 
 civil governments in the fame, and fhall be 
 employed in the payment of the falaries of the 
 governours, and judges, and fheriffs or provofl* 
 marfhalls, and coroners, andotherofiicersofjuflice 
 and civil government in the fame, fo as to lefTen 
 the taxes which it may be necefTary for the go- 
 vernours, councils, and affemblies of the faid pro- 
 vinces, to lay on the inhabitants of the fame for 
 the faid purpofe : and that a feparate receiver and 
 collector of the faid quit-rents and other royal 
 ^ues, be appointed by the feveral governours 
 ot the faid provinces refpedively in every fe- 
 parate province, who fhall hold his faid office 
 during the pleafure of the governour of the 
 province to which he fhall belong, and his refi- 
 dence in the faid province, and no longer, and 
 who fhall receive and enjoy fuch falary, or fees, 
 or other emoluments, during his continuance 
 in his faid office, as fhall be allowed by an a<a 
 of the governour, council, and affembly of 
 the faid province, But the portions of the faid 
 
 R r r q^it- 
 
 .i 
 
p. 
 
 
 in 
 
 [ 498 ] 
 
 quit-rcbts that (hall be afiigned tothe govefv 
 nour, and judges, and other officers of civil 
 government in the faid provinces refpedivelyj 
 fhall be fuch as his Majefty, in his royal wrifdomj 
 fliall think fit to appoint. 
 
 Alfo it fliould be provided that no governour, 
 judge, or other officer of the civil government 
 of any fuch province, (hould receive any part 
 of the falaries arifing from thefe quit-rents, or 
 other royal dues, during the time of his abfence 
 from the faid province, or, after his return to 
 the province, in confideration of his having 
 held the faid office during fuch abfence; but 
 that fo much of his faid falary, arifing from 
 the faid quit-rents and other royal dues, as 
 would have accrued to him in the faid fpace of 
 time, if he had refided during the fame in the 
 faid province, fhall be deemed to be forfeited 
 by his faid abfence, and (hall make a part of 
 the publick treafure of the province, and be 
 difpofed of by the joint adl of the governour, 
 council, and affembly of the faid province. , 
 
 The amount of thefe quit-rents and other 
 royal dues in America (liould be made good to 
 his Majefty out of the finking fund. , ,^ ^, 
 
 Ninthly, The offices of fecretary of the 
 province, clerk of the council, regifter of deed? 
 and patents, or clerk of the inrolments of 
 deeds and patents, provoft-marfhall, or (herifF^ 
 
 commiffary 
 
 
 
govefv 
 )f civil 
 ftivelyj 
 drdonii 
 
 A 
 
 >* - r 
 
 jrnour, 
 nment 
 ly part 
 nts, or 
 ibfence 
 turn to 
 having 
 ej but 
 ; from 
 les, as 
 3ace of 
 in the 
 rfeited 
 )art of 
 nd be 
 rnour, 
 e. 
 
 other 
 ood to 
 
 f the 
 deeds 
 ts of 
 
 lerifF^ 
 iffary 
 
 t 499 1 
 
 commiifary of (lores, receiver- general of the 
 king's revenue, coroners, clerks, or regifters, 
 df the courts of juftice, naval officer, coUedtor 
 of the cuftoms, comptroller of the cuftoms, and 
 all other offices of the civil government in every 
 province, (liouldbe given toperfons refidcnt in 
 the province, to be executed by themfelves, 
 without a power of making deputies j and the 
 fees to be taken by them fliould be fettled by 
 adls of the governour, council, and aflembly 
 of the faid province in v^^hich they are holden ; 
 and they fhould be holden during the pleafure 
 of the governour, or of the king, as his Ma- 
 jefty, in his royal wifdom, fliall think fit, but 
 fhould never be given by patents under the 
 great feal of Great-Britain, to be holden dur- 
 ing the jives of the patentees ; and, much lefs, 
 (hould they be granted in Teverlion : and they 
 Should be holden by feparate officers, fo that 
 no two of them (houid be holden by the fame 
 perfon. 
 
 ' The prefent patentees of any of thefe of- 
 fices fhould have compenfations made to them 
 for the lofs of their patents by penlions for 
 ^heir lives payable out of the finking-fund. 
 
 Tenthly, In the governrnents called royal 
 governments, (which are carried on by virtue 
 of the king's commiffion only, without a char- 
 ter,) the councils of the faid provinces (hould 
 be made more numerous than they now are, 
 
 anJ 
 
p 
 
 k 
 
 ri 
 
 [r' 
 
 it 
 
 K'i,i 
 
 ?1^ 
 
 If ? 
 
 If.*' 
 
 I 500 ] 
 
 and fhould be appouited for life, or during 
 their good behaviour. They now ufually 
 confift of twelve members, all of whom may 
 be removed at the pleafure of the crown, 
 and fufpended from the execution of their 
 offices by the governours of the refpedtive 
 provinces till the pleafure of the crown can 
 be known. This renders them of little 
 weight and confequence in the eyes of the 
 people, and confequently of little advantage 
 to the governour in fupporting his majefty's 
 authority, and preferving the peace of the 
 province. It would, therefore, be proper 
 to enlarge their number to at lead 23 mem- 
 bers, and, in the more populous provinces, 
 to a greater number, (in Virginia, perhaps, 
 to 43,) of whom at leaft 12 fhould be ne- 
 celTary to make a board, and do bufinefs, 
 and to appoint them for life, or during 
 their good behaviour, fo that they could not 
 be removed from their faid offices without a 
 charge of fome mifcondu(!l that fliould be a 
 fufficient ground for removing them from the 
 faid office, and a proof and convidlion of 
 the fame in a trial by jury upon a writ of 
 /cire facias to repeal the patent by which they 
 had been appointed to fuch office, or fome other 
 law-proceeding analogous to fuch writ. This 
 numerous council fhould be the legiflative 
 council of the province, and fhould concur 
 with the aflembly of the people in rrA:.^::!^ laws. 
 ....... r But, 
 
 
 r*.* 
 
during 
 ufually 
 n may 
 crown, 
 f their 
 pedtive 
 vn can 
 
 little 
 
 of the 
 
 /antage 
 
 lajefty's 
 
 of the 
 
 proper 
 
 mem- 
 
 )vinces, 
 
 erhaps, 
 
 be ne- 
 
 ufinefs, 
 
 during 
 
 uld not 
 
 hout a 
 
 d be a 
 
 om the 
 
 tion of 
 
 writ of 
 
 :h they 
 
 tC other 
 
 This 
 ^iflative 
 concur 
 g laws. 
 
 But, 
 
 [ 501 ] 
 
 But, for the executive part of government, the 
 king might appoint a lefler council, confifl- 
 ing of not fewer than 1 2 perfons,, who ihould 
 be a council of flate to advife the governour 
 in all thofe matters relative to the execution 
 of the powers of his commiffion, in which 
 he was diredled by his commiflion to adt 
 with the advice of his council. And feven 
 members of this council flaould be necefTary 
 to make a board, or do bulinefs. The 
 members of this council fhould hold their 
 places 9t the pleafure of the crown, as the 
 king's privy-counfellors do in England ; but 
 fliould not be removeable, or fufpendible, by 
 the governour. Tliey might either be the 
 members of the greater, or legiflativc, coun- 
 cil, or not, as his Majefty, in his royal wif- 
 dom, (hould think fit. » f,..w.. ,. . :> 
 
 f. .: 
 
 This meafure, ** of making .the members 
 of the legiflative councils more numerous than 
 they now are, and indepcndant of the crown, 
 in order to give them more weight and digni- . 
 ty in the eyes of the people, and thereby to 
 render them more capable of being ufeful in 
 the fupport of his majefly's government," is 
 recommended by fome of the warmell friends 
 of Great-Britain in North America ; of which 
 I will mention an inflance or two. In the 
 year 1774 a very • fenfible pamphlet was 
 publiflied for Thomas Cadell> in the Strand, 
 ■ •; ' ' . ' ' • • : ' :' intitled. 
 
 
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 Intitled, " Confideratiom 
 tranfaSlions of the province 
 
 r certain political 
 " South-Carolina,'* 
 lerally afcribcd to 
 Sir Egcrton Leigh, baronet, his majefty's at- 
 torney-general for that province. But, who- 
 foever the author of it may be, he appears to 
 be a perfon well acquainted with the affairs 
 of America, and more efpecially of that pro- 
 vince, and a zealous friend to the interefls of 
 Great-Britain in America, and to the conti- 
 nuance of an amicable connexion between 
 th^ two countries upon the old footing of 
 a fubjedlion of them both to the authori- 
 ty of the Britifh parliament. In pages 68, 
 69, 70, of this pamphlet there is the follow-- 
 ing paflage ; ** In my apprehenlion, it feems 
 ** abfolutely nccefTary that the numbers of 
 *' the council fhould be encreafed ', and for 
 ** this plain and obvious reafon, becaufe a 
 " body of twenty-four counfellors, for in- 
 ** ftance, appointed by the king from the 
 ** firfl rank of the people, moft diftinguifhed 
 ** for their wealth, merit, and ability, would 
 ** be a means of diffufing a confiderable in^- 
 ** fluence through every order of perfons in 
 " the community, which muft extend very 
 " far and wide, by means of their particular 
 ** connexions ; whereas a council of twelve, 
 ** feveral of whom are always abfent, can 
 have little weight, nor can their Voices be 
 heard amidft the clamour of prevailing 
 numbers. 
 
 ^ *' I think 
 
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 ({ 
 
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 bed tq 
 y's at- 
 , who- 
 ears to 
 affairs 
 It pro- 
 refls of 
 conti- 
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 ing of 
 uthori^ 
 ;es 68, 
 Follow-- 
 t feems 
 bers of 
 ,nd for 
 :aufe a 
 ibr in- 
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 ^uiflied 
 would 
 ble in'- 
 fons in 
 nd very 
 rticular 
 twelve. 
 It, can 
 )ices be 
 evailing 
 
 I think 
 
 
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 \ 503 ) 
 
 *» I think this body, adlng Idgiflatively^ 
 ought to be made independent, by holding 
 that flation during the term of their na- 
 tural lives, and determinable only pn that 
 event, or on their intire departure from 
 the province. But the fame perfon might 
 neverthelefs, for proper caufe, be difplaced 
 from his feat in council -, which regula- 
 tion would, in 2i great meafure, operate 
 as a check to an arbitrary governour, who 
 would be cautious how he raifed a power- 
 ful enemy in the upper houfe by a rafh 
 removal ; at the fame time that the power 
 of removal would keep the member with- 
 in proper bounds. The life- tenure of his 
 legiflative capacity would likewife fufli- 
 ciently fecure that independency which is (o 
 neceflary to this flation, and fo agreeable 
 to the conflitution of the parent^ftate, I 
 know fome folks will raife both fcruples 
 and fears ; but for my own part, I think 
 without much reafon ; for if we attend to 
 the workings of human nature, we fhall 
 find, that a certain degree of attachment 
 commonly arifes to the fountain from 
 whence an independent honor flows, Qp- 
 pofitjon feldoni fettles upon the perfons 
 who are raifed to dignity by the favour vif 
 the crown, it having fo much the appearance 
 of ingratitude, one of the mofl deteiled 
 vices ; and it ever a^s a faint and languid 
 ; ; *^ part. 
 
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 ** part, till a dcfcent or two are paft, and 
 " the author of the elevation is extindl. 
 From this reafoning it feems tolerably 
 clear to n>c, that the legiflator being for 
 life, and deriving his confequence from 
 " the crown, will rather incline to that 
 *• fcaie ; and it is not probable that his op- 
 ** pbfition could in any inftance be rancorous 
 ** or fa6liouSy inafmuch as, though his life- 
 *• eftate is fecure, he would not wifh un- 
 ** neceflarily to excite the refentmcnt of the 
 " crown, or exclude his defcendants or con- 
 " nedions, perhaps, from fucceedi.ig after- 
 " wards to fuch a port: of honour and dif- 
 ** tin<flion in their native country : in fhort, 
 ** this idea feems to admit fuch a qualified 
 " dependency^ as will attach the perfon to 
 *« the fide of the crown in that propor- 
 «* tion which the conftitvuion itfelf allows, 
 '* and yet fo much real independency^ as 
 " will make him fuperior to ads of mean- 
 *• nefs, fervility, and oppreffion. Whether 
 ** thefe fentiments are well founded, or 
 ** not, I fubmit to the impartial judge- 
 " ment of my reader; what I principally 
 ** mean to infer is, that the happinefs of 
 *' thefe colonies much depends upon a due 
 ** blending or mixture of power and depen- 
 " dance, and in preferving a proper fubordi- 
 *' nation of rank and civil difcipline." And 
 in pages 72, 73, of the fame pamphlet is 
 
 jhc 
 
 
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{I, and 
 extindl. 
 Dlcrably 
 ;ing for 
 e from 
 to that 
 his op- 
 ancorous 
 liis life- 
 ifh un- 
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 or con- 
 g after- 
 and dif- 
 in fhort, 
 qualified 
 erfon to 
 propor- 
 ' allows, 
 'mcyy as 
 f mean- 
 W^hether 
 ided, or 
 I judge- 
 incipally 
 jinefs of 
 n a due 
 i depen- 
 fubordi- 
 r And 
 phlct is 
 the 
 
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 the folfewihg paflage : " I cannot clofe this 
 ^' fubje<ft without exprefling my lincere c6n- 
 ^* c6rn, that fuch unhappy difputcs divide 
 ^* mens minds, and diftrad the publick coun- 
 *' cils of this country ; and I have prefumed 
 " to ofltr thefe confiderations to the world, 
 " that the fubjedl may be fully underflooJ, 
 ^* and that this colony as well as others may 
 '* judge of it with the greater eafe and cer- 
 ** tainty, by feeing every fa(5t fairly ftated and 
 ** candidly diituifed. But I muft again re- 
 ** peat, that twelve members of the council 
 ** bear no kind of proportion to the numbers 
 ** of the Lower Houfe, which confifls of 
 forty- eight members : and what ftill adds 
 to the defeil is, that, as fcvcral of the 
 council are frequently and neceflarily ab- 
 " fent on their own private concerns, and it 
 ** often happens, that others are either abfent 
 *' from the province, or, through ficknefs, 
 ** are unable to attend, the council feldom 
 *^ confifls of mor(? than five perfons; and 
 ** commonly only three affernbje to diibatch 
 ^* the mod weighty concerns. This circum- 
 ** fiance lefTens the real and ponflitutional 
 ** dignity which this body are intended to 
 <* maintain, and the people cannot be taught 
 ** to reverence or refpedl an inflitution, the 
 *• bufinefs whereof is tranfaded, like a court 
 of quarter feflions, by three juftices of 
 peace! Hence it is, that the middle branch 
 
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 is in a manner overwhelmed by the fisrce q£ 
 numbers in the Lower Houfe, and that 
 ihey fall into derifion and contempt for tho 
 want of numbers in their own. I there-* 
 fore mod ardently wifh to fee this evil re- 
 medied, by fiich an addition to the number 
 of his Majefty's council, as tjiat twelve 
 members at leafl may always be affcmbled 
 on the bufinefs of the flate; then, and not 
 tillthen, will this middle branch be able 
 to maintain a proper balance to fupport 
 their own conftitutional importance, and 
 to withfland the overbearing attempts, and 
 the haughty encroachments of the Lower 
 Houfe. 
 
 ** I finccrely wifh the lading happinefs of 
 the colony of South Carolina ; and I am 
 firmly perfuaded, that nothing is fo likely 
 to promote it, as a timely and fpeedy inter- 
 poution on the part of the crown, and a 
 decilive fettlement of thefe uneafy conten- 
 tions upon the found principles of the 
 Englifh. conftitution," ... 
 
 And the late Mr. Andrew Oliver, (who was 
 iirft Secretary', and afterwards Lieutenant-go- 
 vernour, of the province of the Maffachufets 
 bfay,) in one of his letters to the late Mr* 
 Thomas Whately, (who had been fecretary 
 to the Treafury under the late Mr. George 
 Crenville,) dated February 13, 1769, writea 
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 brce pfi 
 \d that 
 for tho 
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 twelve 
 bmbled 
 ind not 
 be able 
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 :e, and 
 >ts, and 
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 inefs of 
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 > likely 
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 writes 
 
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 tis follows. ** You bbftrve upon two defeds 
 ^* in our conftitution^ the popular election of 
 *• the council, and the return of juries by 
 *' the towns. The firft of thefe arifes from 
 ** the jharter itfelf ; the latter from our pro- 
 ** vincial laws.--*— As to the appointment of 
 " the council> I am of opinion that neither 
 ** the popular elections in this province, nor 
 their appointment in what are called the 
 royal governments, by the king's mandamus^ 
 are free from exceptions, efpecially if the 
 ** council, as a legislative body, is intended 
 ** to anfwer the idea of the Houfe of Lords 
 " in the British legiflature. There they are 
 ** fuppofed to be a free and independent body, 
 ** and on their being fuch, the ftrength and 
 ** firmUefs of the conftitution does very much 
 ** depend : whereas the election or appoint- 
 ** ment of the councils in the manner before- 
 ** mentioned renders them altogether de- 
 ** pendent on their conftituents. The king 
 •* is the fountain of honour, and as fuch the 
 <* peers of the realm derive their honours 
 ** from him , but then they hold them by a 
 ** furer tenure than the provincial counfellors, 
 ** who are appointed by mandamus. On the 
 ** other hand^ our popular eledions very^ 
 ** often expofc them to contempt; for no- 
 •* thing is more common, than for the repre- 
 *• fentatives, when they find the council a 
 ^ little untra^able at the clofc of the year, to 
 
 Sss 2 ** remind 
 
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 remind them that May is at hand."----^ 
 It is not rdquiflte, that I know o£g that a 
 counfcilor fhould be a freeholder. Accor- 
 ding to the charter, his refidence is a Aiffi* 
 cient qualiiication : for that provides on>jr 
 that he be an inhabitant of, or proprietor 
 of lands within, the diftri(a: for whi^h he 
 is chofen : whereas the peers of the realm 
 fit in the Houfe of Lords, (as I take it,*) 
 in virtue of their baronies. If there Should 
 be a reform of any of the colony-charters^ 
 with a view to keep up the refemblance of 
 the three eftates in England^ the legiflative 
 council fhould confifl of men of landed 
 eflates. But, as our landed eflates her® 
 are fmall at prefent, the yearly value of 
 ^.loo flerling fer amram might, in fome 
 of them at ieaft, be a fufiicient qualii^ca^^ 
 tion. As our eflates are partible after th& 
 deceafe of the proprietor, th^ honour could 
 not be continued in families, as in England^' 
 It might however be continued in the 
 appointee quamdiu fe bene gejjerit^ and proof' 
 might be required of fome mal-pradice 
 before a fufpenfion or removal. Bank*' 
 ruptcy alfo might be another ground for 
 removal."— — ** The king might have the 
 immediate appointment [of thefe counfel*' 
 lors] by mandamus y as at prefent in the 
 
 royal governments." ** Beiides this le-' 
 
 gillativ^ council, a privy council might ht- 
 .„: ' ..... " eflabhihed." 
 
 
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I. ---— 
 I that a 
 Accor- 
 a Aiffi- 
 es onijr 
 >prietOf 
 hWhhe 
 
 B realm 
 ike it,*) 
 i Should 
 barters^ 
 iance of 
 giflative 
 landed 
 es her© 
 altie of 
 n fom'j 
 ialif5;ea-* 
 fter th& 
 It eould' 
 rtgland*' 
 in the- 
 d proof' 
 pradice 
 Bank-*' 
 ind for' 
 ave the* 
 ounfel*' 
 in the 
 this le- 
 ight .bd> 
 iiihed." 
 
 1 $09 1 
 
 ** ^flablifhed." Thcfe authoriilk are fatAjj 
 very refpedlable, and of prodigious weight in 
 favour of ikch an amendment of the confli-* 
 tutiiains of i^e king's couneils' in Norths 
 America. Alterations of thofe governments 
 in favour of liberty, that arc fuggefted and 
 recommonded' by fiich friends, ito the authority 
 of -Great-Britain as theautfiors of the forego- 
 ing paflages, icem to be indijfputabty reafbn- 
 ab]e> and' expedient, and fit 4o: be adopted by 
 
 Great-Britain^ 
 
 *t. 
 
 
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 Eleventhly, To deckr^, by refdhitions ity 
 both noufes of parliament, Aat it is not ex- 
 pedient to require the American colonies td 
 
 contribute ar^y tiling' towards* ^hedxickafgc ^£ 
 the^^naitional debt already cOn^ra6led,^ in any 
 mode whatfoever, either . by • ta^es to b© imi-i 
 pofed by the MtiA parliament,' or* by grants 
 in their own aflemblies, or in any otficnrian- 
 ner whatfoever ; but only that it is reafonable 
 that they fhould contribute in a moderate 
 proportion, fuited rto thei^ feveral abilities, 
 to fuch of the future expences of the Britifh 
 empire, as are of a general nature, and relate 
 to all the dominions of the crown, and of 
 which they will reap the' benefit, as well as 
 the inhabitants of Great-Britain. 
 
 Twclfthly, To offer an a6t of pardon, in- 
 demnity, and oblivion to all the Americans, 
 who have offended the laws, upon their lay- 
 ing 
 
.T- 
 
 w-i 
 
 .,1 
 
 
 
 m^ :i 
 
 t s^^ 3 
 
 |ng down their arms* and returning to tH% 
 obedience of the crown within a limited 
 tiipe i without making any exceptions what-* 
 ipeyer, not even of Mr. Adam^ and Mr* Han<* 
 
 cock. ,; .. , ..^v,-.;. ' ^ 
 
 ■•;n 
 
 By fuch a plan the principal caufes of 
 iiheafinefs and difcontent amongft the Ame* 
 ricans would> as I conceive, be taken away» 
 and, confequently, if they are fincere in their 
 declarations of a defire to continue cqnnedted 
 with Great-Britain, (as it feems highly pro- 
 bable that all the colonies, except thofe of 
 New-England, are ; and perhaps even in thofe 
 colonies there may be many perfons of the 
 
 iamc difpofition ;) it fcems rea&nable to hope 
 
 that it would be generally approved and 
 accepted by them. And yet the fupream 
 authority ot the parliament of Great-Britain 
 would not he given up. 
 
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