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MDCCLXXIV. # K. iO ■^- ^ C IT % mmi mm iPiip^i PUP ,; '':K> 'Hi''- My LOkJ&i _{' •, .' ..v4; THE bHl for ibe jgoirehitnent of Qgebec, whilii it engages the iitefitiQii of tlbe pi^^Uc, cannbt but bring back to i0xt minds that glorioas sra, ^hen GIdada Was addled to the Britifh Empire fiyi^ fuccefs of his Majefly's arni^. dke&td by t!ie genius^ and ani- mated by the vigour of your councils. It ha& 9D0 ollen happened that national 'wifaom has flept^ "while the fpirit of conquefl: has been awake ^ in the midft of victories and of triumphs, it is not to be wondered that the low and (lill voice of jurifprudcnce was never heard 5 B but. ''•'•'^mm^fm^'''^''-''^^mm'^mftmm^^^mmmm i I « ] hilt, at length, is the time come when a fyftem of government is to be formed for that cxtcnfivc country, differing from our own in her religion, her laws, her habits^ and her cuilomsA Had the queflion once occurred to your Lordfhip how tl&t ought to be done, the pof- fefiion of Canada might not perhaps have been the firft objedl of your care in prefereii^ ioGuidaloupe, Martinique, and tblf'^ther rich idands which were reflored to the French apd Spaniards in the Weft Indies. But it ddci'^nbt ap- pear that thecivileflabM^m^)of Ca- nada had ever a place in yd0^|||ou^hts i becaufe, after thirteen years ^pl^lfion of the country, your mind wai jfci en- tirely vacant on this fubjedl^ that I don't find your Lordfhip propofed 6fi<;^tdea of your own, either for the^framing of any law, or for the amendment of that Jaw which has lately received the royal aflcnt. .f'^i ?C77s'5r.ioi;-ic}tnrr. 'p 'iim^, 1 mmmm ^^^W^mm iiii'< (¥ :-■-"-■■ t .,3 :] ,•• ■;■;■ If ev^r there wa& an event on which the public might demand an opinion, it had a right to yours on the fe^tle- mcnt of Canada. From your rwikdnd experience in the (Ute, your .Jooport- ;ance in your cou^^> aod» above all, as the atchievement was youm> the manner of maintaining it ihould hdve ¥- been yours alfo. You was the minifter, . when Canada was ^nqu^i;^). .When : ypfu returned^ to pwej^ 1^ fca^i?|J tiipc, f?!Jl I PSoppfc^^ no )|giilfl^j^^ for its regular|p|^ andjgpvernrixft^t; mi^ift I ,«« :/?!&,. ^^i4 ^if^f^C^-^f ypqr abil}|ip ftirc conftited, who can excijfc yo^r ||cg!cd: ? Or if,. in this bufipefe, ^^hher inacc«;jracy of head, inatt^ntioji. ^ of 'i|^il>|, or incorredtp^fs of judgment, ^ m^y. be invpwtcd to fhy Jnan^ on wborti can that cfiarge fall, mdre juftly than upon your Lordfhip? ^Why then did you chpofe this peculiar moment to B a^ break S # ^P' 5*5;'- t;' s^ ...y. '{ 4 ] break forth from your retirement B Surely, my Lord, your condefcenfioii ^is not fuch ds to lead you to become 'fhemitr harbinger of my Lord Mayor, tnd his addrefs within the palace, and of his co^triotsfpifi^e?!^/, Vfhp attended 'his Majefty from St. Jameses to the f)6di4mc|^.j ' The d^ i)f ffie houfe ot Ibi^ds afe >1hil^;%il^ ^M Cbathami^ «xprei!ion$ ^arc ttoi (not^iW dy^lptcant to be) cbA- ifiried. I xttcfaii not t^ iitiln(3to«n ybiir ^^iKrtment*Sdr^e e|l^cts by fWckyou :^ddfcribea'^tfB^^p# 'j^i0m^miy <^bu fatd, was eftdbjifeed; tS ^P^^ ^iiehiirch devoted, alid die^I wn h. ^ off *■• ' k. i. ■> ft I '"i: #' af'c 1^ fl 1-5 "] ^off tfie maf^ae, and -opened their pha of deiipotifin* . . . fl This plan: of defpotifm, my Lord) Is the fubditution.of an aA.of parliafient in lieu of a goyernmcnt by proclama- tion ; a proclamation which at firfl was 4idated^ has been often varied, and till this tithe has fubfiited by the mebr will ^nd pleafure of th^ crQwn» It was /;»- "perium hmirtit ihsii haiigoverned the Canadians j^ci^ the 'j^^ it Is impe' ^i^im ^i^ij th^ them here- |||(^:;'jps^ it h^eflaiy to explain ^ll^||ii^^^ is i f!ate of Mtal^^ of tyranny? Goh- i \^nth the hiftory and fate of hd- iihm* yq^fj JLordfhip knows that all off unhappy ^ople who havp loft their ;|l haire ften thofe liberties end ']^d6^y where the government of will I kj^an. But your Lord/hip is pleaied to ,|^ever(e this propofition ; and you, who '^ •'^^ V. J*v in ■T««"" [ 6 1 in your love o£ paradoiccs formerly told us that Canada was conquered in Ger- many, now tell us that this fame Ca- iiada is eniflavedy becaufe it is no longer •'tb be governed by proclamation, biiit bylaw. 1 • I rida, ap4 *« Grenades, logcthcr with Candida, ^oun- ' tries as dii^erent in their e^lablifliQicnti .as in their fi)i], and in their t^liwAt^i various therefore were , the iriiflru^tions ' given to the feveral governors, and after- wards changed according as information and experience pointed oul new fyftenis, ^In Canada, thjc French laws alone 'pre- vailed till 17^4, then the Engliih lawa .^•^' r.j ; ,, , / I \) r t 7 I got fome footing. The governors and officers of juftice always doubtful which to take for their guide, fometimes prefer- ring the English, fbmetimes the French laws, as each feemed applicable to the cafe before them — One year a procla- mation, another year an inftrudtion to a governor, another year a local ordinance, changed the principle, and varied the courfe of their judiciary proceedings.—' In this (late of fiudtuation, no man knew by what right ^e co^ld take, or giye, inherit, or convey, pofTefSy or en- joy property; or by what ipode or rule he could bring his right to a trial. One neceffary confequence was a frequent refort to the crown for amendment, ex- planation, and decifion ; *' cujus e(t ** condcre, ejus eft interprctari." — And what lefs than defpotifm is the power of the crown, when it can create or .,^1*'* interpret. U4 ■HMIIWi r M interpret, eftabliih or deftroy laWS, hf virtue of its own mandates? ■^.■^ The condition of thcfc wfetcbedt people under tbia govcrnmcftt, is de* fcribcd by lord Coke in the very motta which he chofc for his works, " miCertt «♦ eft. fervitus ubi jua eft vagum aut in*. ** cognitum." I need not tell yout^ tordftiip that the parliament of Henr/ VIII. gave the king's proclamations the power of law ; it muft give fomd comfort to all fbber people to fee thd parliament of this day annul the force of a proclamation, in order to eflablifli law.— If therefore I can agree with you^ my Lord, in thinking the king's mini- fters are fo atrocious as to have formed any plan of defpotifm, I muft agree with you alfo, that they are more inept and ftiallow' in the execution, fmce they have .V ' ' '^li- X ' [ 9^ 1 4- iiavc let go the very power which you fay they grafp at. And if could ever be a proper time to the king's perfon with a cry of arbi- trary power, furely, my Lord, there could have been no time lefs feafonable tlian that, when he was going to giyfc his aiTent in parliament to redore to the Canadians their birth-right in theic laws, and to relinquifli that very power which conqueft had put in his hands. Irhis prockmatIon> however^ we are told, with the treaty, and oth^ adls of royal authority, was confidered as an en- gagemeht, undfrr which the colonifts embarked their peribns, and the mer- chants their fortunes for Canada, and that the natbnal faith was plighted to form a government as near as might be agreeable to the laws of England -, for C it ^>*. • M mm mm # ft Is 4aid that nonfe wonM h^i ttrv^ barktd or traded thither, without the jproQ)^ of Eng!i(h laws, and of Eng- Irfh juries. HoW far the real engagc- mcnt has been kept, and whether any p^rt of the laws of jEngknd, that could be bxa^^ted, have been tvith^held, we Jfcalf inquire bye and bye; but firft let |be appeal to your Lordfhip's know-^ fc^e^and tKe ktiowledg^ of every man, whether it is heceffary there ^ould be a trial by jury, wherever cur mer- cMnts "^irpotl ^ their ^ifi^uft<9iures ? In all <^r great foreign' markets there are ho juries j itl Afherica there U8 Hqdprs, of#hich they fharc ^re^lirgely With th6§'Cuifotoers thfe commoii iSldfci^i -^he courts of juftice ^fit oncei week. The iiumbier of the Better fort of Ehglifh i;irill not afford "dne'lcgal panel in the Whble year, and infu^icnt to do the bufinefs of juried, even fuppofing them to give up their tinr", artd every other occupation to that fervice only : Mr. Mafercs * therefore ad- ^ ^ Attorney General for the Province of Quebec. mits J^-s VMHTM mm .j,} h^, prop#s %^,jApng^^ heac} fof of .jprymfP :Wfif^4 bfpp;^ ' a trad?, ^ tr^^pipd^ed, tfe^tppqe of jthe belter,for( f Jiqfc yet^raqfi -jsjifeq hftvc |^ft Aft . 4f niy hdders, : ^J;^^% 4^f JJenge^ wthoat «5feange, JM^d, r ill Ihqpi 'ij^kmX «IMI oV Iribute i^;w Ei3i|^%ij«M^ Qrmpih ^ ipcak Jt«?« a fMwf Jl ^ ipcffe^^ x>f an E^igliib jury, tha||a>^ J^i^^ kit Hate it would *pc the w#Hl way ^ trial upon earthy ..^ But it .in^y be fai4. tW.e are above i ^n hundred thoufand Canadians quar ... * .*., ''^mm \ t in lified to a^e^on'ji^f^Y iiot taie ^biit jiiHds ftem thetiit < 'Becauife yotit Lordfhip wiH hard'jr trttft thd property W^ouf Cdittittymcn td ft' jCity bfCana"- diitis onlf. Bat tb*: jtiri«ii^ ftisty' W mixcdj-^in wli^t j[)ri^ti6ii ? BF ydii iafcc an equai ^lumhet lof itttgfifti ^rti a( Caiiadiaiis, how aUe th^y td dtJdidi it all? Or take an uneqttdfitQmher, aiid decide by the yote, (as in ccmrts martial) then if the majdrity of the jury be Canadians, the ver<^Ct will be the fame 9S if th^ whole was Canadian, or if JW>U tlritjW the mjyority^ the fide of %e Wti^ifkf where is tfee ibipartiality, on which the Canadian can depend t Befidefty the civil law of Frande, and the trial by jury in England! are fo dilTonant, that the forms of one can never be blended into proceedings of the other J the rules in relpeft of tenures, aheniations. au ■■P ^'^^mmmm m^tmmffl^ "5!PW«l»T '4'-. t i6 J quite diffcrenfcj^ow could the law gcf on in the :wodi%<5n%la|i^iiages ? If the Canadian {haaii^^l^ tty, how can his oiu^^^ prtpare the proceis for an Englijh jury f Or if he goes to an £ngli(h attorney, how is the lattef to fettle a proceeding, according to th^ laws of France? .. Butin&iminat law the dtfeis dif^ ferent; (ot to the &d of gtiilt or ui« nocence, one mat! is as cbmjpetent ai another; and in our own courti^ It "H the adtual pradlice, where a fbte^er & to be tried, to have a jOiff ^ muSeiiii^ lingua, one half Engli(h> liie lilf ^ F^^ reigners. I mean not, my Lord, a general dc-^ fence of the criminal laws of England, as they are of late years multiplied and extended. or ( extended. .For if a moiety of thofe who arc condemned were to fuffer death, their blood would cty out for vengc- ance $ and I am perfiuidei, that the fre- quency of pardotli^ even ^nere mercy is due> gives rife to nine in ten of the thefts and robberies that are committed. But the JB'rench law of torture to procure confeflloni is to lis unknown. On the cdMrary, the.accded perfon is, or ought to !>€, warned frdtit injuring himfelf by hh oWh C^iifeffion. It is but modern l|ii^''|&it any man could be convidted on ^ bwillci^nfcl&M}, and even now con- fcflfoitt^ diight hot to be admitted with- otit ihe treated caution. To us is unknown likewife all cruelty of punifhment ; no racks, or wheels, or inftruments of barbarity and tyranny arc to be fecn in our executions. From thefe D appendages ^mmmn'-ymvi i«™ { i8 ] appendages of dtCfodhi are the Qfuia- dians now delivered, and may live pro- tcdled in their for|u|ef9 ,|their honours, and their lives, under vi^hat I truft will ftand for ever, the inipregnable fortrefs of an Englifh jury. In the courfe of all the evidence that has been l^d befoiie the poblit, w^ $nd that the €anadiaf^^i^;^i{Mi^#^Ofie conftani uniform wifli fo^v g0yi||»^ by their own lawsi aod th^t the Eng^^i have aa fervently di^re^tp be j^verflfi by the laws of England- *f te C»i||- dians are above ioq,ooo« the Eis^fli not more than 2000 me|i, wofneil, and children. The legiflature wis there- fore to coniider whether the law and government ought to be adapted to thci many or to they^'O^. ^:3i?t)i: a There "^^W ^m w [ ^9 1 There can be no rule for the com- jpofing of laws, but the fentiments and inclinations of thdfe who arc to be go- vcrned by them. In a (late of nature, liberty knows no bound but that of fuperior force. ' Jura inventa metii injuflt^ and that portioh of liberty Which each man is wiHtiig ta giv6 lip for the convenience, MtVfi and pr6te<3:ion of individuals, of ^ilhiiieSy of focieticr.and of ftates, is the fifft principle of law. It is true, the nitdtitude do not compofe the form, but it 6auft be framed to correfpond with- their genius and temper, fo that their underftandings may be prepared to meet, and their hearts ready to embrace it, — The habits, cuftoms, and manners of a people, are the mirror in which D 2 * alone r ■# «!«•» I ao 1 alone their general difpofitl^n may be feen ; even regard mufl be had to their prejudices and their w^aknefs j for Imv muji be enadled (as Grotius has eKpreifcd it) ** cum fenfu humanae imbccillitatij." When Solon was complimented on hav- ing given good laws to his countrymen, his reply was, " They are only fuch as " the Athenians arc capable of receiv- *« ing." Even the law of God, as pro- pofed by Mofes, was fubmitted to the judgment of the people before it was adopted by them *. But if thefe rules are indifp^nfable \n X)^t formation, they apply much more forcibly to the adual eftabliihment of law. If nothing but violence can im- fofe law, it would be flill greater tyranny to rob a nation of that law which they approve * Exodus, f ') I « } approve upon experience^ and which is endeared by habit. Allowing then that the Canadians prefer a worfe law fo a better, even that bad choice is deciflve upon the conduct of Great Britain. They yielded themfelves up to our protecflion and our faith. How then can we de- prive them of the iirft rights of human nature ? , *^^ k Wc are now come to that part of the bill which relates to their religion i and knowing, my Lord, hov/ much you are an admirer of civil liberty, and can reprefent it with fb many graces and advantages, I {hould have been glad to have heard that your Lordfliip, with equal grace and dig- , nity, had fiipported the caufc of religious liberty. But it feems you declared that no true Proteftant could fupport this bill. — No true Proteftant, my / )• be wmmm I 4111 I V.IIIMLI I I »a ] fce a pcrfecuton no true Proteftant can harbour any fuch idea as that of efta- blifliing religion by force. Is the Spa- niard in Mexico to be an example for « Proteftant legiflator ? Religious liberty is nearer to the heart and conicience than civil liberty; for ^y are Roman Catholics dtemed ene- mies to our conftitution ? Not be- caaie they don't love liberty, (we owe; Magna Charta to them) but becauie, without fubverting the condiltistion and the law, the Romifh religion can never be reftored. The Reformation was not the work of force.— Science had begun to dawn, and fo difpel fuperftition. The tyranny of Rome was become hateful, and her authority contemptible, when that great ' event ^: mmm MPIP np muff t t «3 ] event took place. The defires and opi- nions of the people co*incided with the humours of the King ; and the moment parliament had eftablifhed the Prote-» ftant religion, it became not the voice only, but the adfc of the whole nation* The cafe of Canada is totally different, ^he people there adhere to their religidn, and did not furrender without a fti- pulation and folemn engagenient for the free exercife of it. YourLordfliip was minifter when the capitulation was granted by Sir JefFery Amherft, and you found no fault with that able General for that prudent and humane conceffion. This freedom was again infured at the peace, approved and confirmed by par- liament ', nor did your Lordfhip, in your long difplay of eloquence * on that oc- * hox\\ Chatham ipoke three hours and a half agalnft the peace, j >*t ^ fion. ■ \ •"i"iH^i"^«HTW" mmmm t «* J fion> once bfame tbat part of the treaty. Bt»t you are now pleafed to call the IWeafai-e atracms^ Jhalhuo^ arid inept ^ bfccaufe it has fecured to the clergy their property, and becaufe it has fub- ftituted an oath of allegiance inftead of that of fupremacy as required by the i ft of Elizabeth. The beft diftimf^ion t kiibw between eftabli(hment and tole- ration is, that the greater number has a right to the one, and the lefs to the other. The public maintenance of a clergy is inherd'nt to eJiMijhment -y at the Reformation^ therefore, as much of tlie church eftates as was thought ne- ceffary for its fupport, was transferred to the Proteftant church as by law efta- bliflied. Surely then, when the free exercifc of the national religion was given to the Canadian nation, it could never be underftood that* they were to - be ^iiW^* »*. p be deprii^ed of their clergy; ihd if tibu i national pt-ovifiori for that clergy fol- lows of courfe. ' ,■ _ ■ ■ t > It has' alfo beeii aflerted, that Ihe Proteftant religion is rooted out of Ca- nada by this bill. The reverfe is the truth ', for no mail who />, or who may become a Proteftant, is to pay tythes or any church dues to the Romifh efta- blifhmenti but the money is ftill to be colleded, in order to conftitute a fund for the railing and fupporting of a Pro- teftant church in Canada* ?"» n r» ■ iw.'. 1 Some have doubted whether thbfe claufes of the i Eliz. which eftablifti the oath of fuprcmacy, extend to any of his Majefty*s prefent dominions but fuch as belonged to the crown when that memorable ftatute was made. If this A'£Lfi^-H-- •^tm wm mm ■[ a6 1 this conftrudion is a true^one, the Ca- nadians were not obifged to take the oath of fuprcmacy; and the new oath which the Quebec bil] has eilabli^ed, IS fofar an acquifition/ and advantageous • to thecaufe of proteftantifm, as it adds to the common oath of allegiance^ and • obliges every Catholic of Canada, who fliall from henceforth excrcife any func- tion,' civil or rcVtgiQii^, to renoimc^ all pardons and dij^enfationt from an^ power ■ or per/on whomfoe'ver contrary to that eatb» But if we are to foppofe the above-mentioned Con(lni6lion to be falfe, and that every part of the ift of Eliz. extends to all his Majefly's prefent ' dominion?, I will venture then to afTert that the Roman Catholic religion would not have had in Canada even the advantage ! of a toleration, if the oath of fuprcmacy had not been repealed. For no honefl «imI „a Roman •^mf^Hf^'mmmmi^ Roman QithoHc Pijeft could hav^ta|Len» that oath in the (rucfenfc pf the wqrds iiv whiph it:i$ cxprtS^i mi if h? ha4 vc^n- lured: to exercifc any cc^kfial^ical func- tion without having taken ity he would Jjavc been fubje^ ^J^ the penalt^e^ and difabiJities which the law has in (uch c^fe infiidted -, and that there are periods in Canada ready \o coaimence profe^utions againfl eyery offender of this kiqd, ^e <;^n ^ita^^dly . dqi^ht, whcQ we- r^cqlled that pnfi grand jury though^ i:t theii^ duty t9 m^l^^ § public prefent- Qient of every |lp|nan C^di^tic of the province > and nii|(l therefore have con- fidered th§ni no^ pnly as perfons not under the prote^ion of the law, but ^s^ offend^s againfl it. Sut though the legiOatiir^ has thought fit to repeal the oath e^ablifhed by the id of Eliz. and to j^biUtute another oath in the place: ^-.4,-'-- ■ '• E 2 of "%^ "lUKPillUP*! I MipiJi, i,! c a,8 i; of it, which in truth is no more than what has been frequently dbne before i yet the King's fuprcHlacy is not on that account in any danger, as has been ig-* Borantly and abfurdly fuppofcd. The Quebec bill, inftead of giving urp his Majefty's fupremacy, aflerts it as efta* Wiifhed by the iftofEliz. ; that is, in ail caf^s, ecclefiaftical as* well as civil ; no ecclefiaftidal officer or rninifter can exercife in Canada any authority or jurif- didion that is not deHved from the cr6Wii : and •if any man fhall hereafter prefuine to • •exercife therein any power* derived from any foi*eign authority, or jurlfdidion whatfoever, or iiiall mali- cioufly and adviftdly endesiv^oUi^ to aa^- varice or fupport the claims or preten*- fions of the Pope^ or of any fordgn prince or ftate, he will ftill be fiibjed to the faoie penalties to which be would K^.w»?s^li Mil I '9, I have been liable if thelQuebcc bill had never pafled; and the law of England has ftill in ftore punifhments fully fuffi- cient to deter the moll zealous Cathblic of Canada frim the dbrhrnlflion of fuch m offence; ' ^ ' ^ Since then your Lordflnp -has been Co very fevcre ih y6ur ftridares on this part of the Quebec bill, let me again implore • you ^ to tefll • u^ what; iplaft* '^bu yourfelf wiuld recommend 5> Would you? Plow cori^tvhi^thejre^ eicePtife ^religiofi to be lefs than the Canadians <. thought it when they threw themfelves upon your ^ith ? W6)ild you hoW become their perfecutor ? Or v^ould yoa ftill fuiFer them to enjoy their religion, with its con- fequential property ; not however by the conftitutional authority of an aft of parliament,' but by virtue of an aflual , > exercife ^^^^tmmitmmmmm^m ^mmmfi^^mmm^^^'mmmm f 30 ] CKCfctie of a (Ujpenfing power in th« orowa? Ypur Lordihip is faid to have a& fencdd^efe two things > that the bill was intended to raife a flrength in Canada, in order to intimidate other parts of Aflfierica ; and then, that the bill ^a^ ii^qrious to the Canadians. s TheJmputpd injury is* tfea the law of France which is defpotifiny Is tnT ^taiied^ and the Uw of Efigland which fa freedom, ^,. S y-i!. / ■•' t>- ■lillPIIIIPWIWTP f \ i'