Yale University Library

39002005653648

Smith, William
First days of British rule in Canada.
(Queen's Univ. bulletin, no.4E,March, 1922)

'TiaLIl«¥]MH¥IEI^SIir¥«'

BULLETIN OF TKe DEPARTMENTS OF fflSTORY AND
POLITICAL AND ECONOMIC SCIENCE IN QUEEN'S
UNIVERSITY, KINGSTON, ONTARIO, CANADA.

NO. 42, MARCH, 1922

FIRST DAYS OF BRITISH RULE IN CANADA

BY
WILLIAM SMITH

The Jaeksoa Press, Kiacstoa

BUli^TIN OF THE DEPARTMENTS OF HISTORY AND
POLITICAL AND ECONOMIC SCIENCE IN QUEEN'S
UNIVERSITY, KINGSTON, ONTARIO, CANADA.

No. 1, Tbe Colonial Policy of Chatham, by W. L. Grant.
No. 2, Canada and the Most Favored Nation Trestles, by
O. D. Skelton.
No. 8. The Status of Women in New England and New France,
by James Douglas.
No. 4, Sir Charles Bagot: An Incident in Canadian Parlia
mentary History, by J. L. Horison.
No. 5, Canadian Bank Inspection, by W. W. Swanson.
No. 6, Should Canadian Cities Adopt ComnUssion Govera-
ment, by William Bennett Mimro.
No. 7, An Early Canadian Impeachment, by D. A. McArthnr.
No. 8, A Puritan at the Court of Louis XIV, by W. L. Grant.
No. 9, British Supremacy and Canadian Autonomy: An Ex
amination of Early Victorian Opinion Concerning
Canadian Self-government, by J. L. Morison.
No. 10, The Problem of Agricultural Credit in Canada, by
H. MichelL
No. 11, St. Alban in History and Legend: A Critical Examina
tion; The King and His Councillors: Prolegomena to
a History of the House of Lords, by L. F. Rushbrook
Williams.
No. 12, Life of the Settler in Western Canada Before the War
of 1812, by Adam Shortt
No. IS, The Grange in Canada, by H. filichelL
No. 14, The Financial Power of the Empire, by W.W. Swanson.
No. 15, Modem British Foreign Policy, by J. L. MorisML
No. 16, Federal Finance, by O. D. Skelton.
No. 17, Craft-Gilds of the Thirteenth Century in Paris, by F.
B. Millett.
(Continued oa inside back page)

FIRST DAYS OF BRITISH RULE IN CANADA.

FORTUNE, in casting upon Great Britain the duty of estab
lishing relations with French Canadians, and of organiz
ing some form of administration for her new dependency, at
the same time provided her with two great advantages in the
undertaking she was obliged to assume. In stage phrase, these
advantages may be described as of setting and of dramatis
personae. Th6 setting was furnished by the last French administra
tor. Bigot, Intendant of Justice, Finance and Police in New
France, for ten years prior to the Conquest, wrought in his
charge with a single eye to the advancement of his own for
tunes. Nothing that fraud and oppression might achieve was
-left unattempted, in his efforts to accomplish his aims. His
Master in France from whom he received his commission, and
the people, whose lives and interests were entrusted to his
care, were equally the victims of his rapacity. Army supplies*
and the grain and cattle of the habitant, were exploited with
perfect impartiality. Upon him more than upon all other
agencies combined rests the responsibility for the loss of the
Colony by France. He left in the hands of the people nothing
but sheaves of paper money, utterly valueless, until the British
Governmeijt insisted on its partial redemption. At the mo
ment of the conquest, the people were in black despair. Look
ing backward, they saw only Bigot and his satellites. The
future' held out nothing that was reassuring. The British
soldier was sedulously represented to them as an implacable
monster, deaf to the cry for mercy; and, indeed, the devasta
tion of his fields, and the burning of his houses and barns in
the course of the campaign, seemed to furnish grounds for his
worst fears.
But his first encounters with the troops came to the Cana
dian with a shock. The Tommy Atkins of that day was not
very different from his successors, whom we all know. Within
a few weeks after Quebec was taken, private soldiers were
seen in the fields, helping the habitant to get in his grain, and

refusing with a laugh the pay which was offered to him ; and
officers and men alike contributed a day's pay every month to
relieve the prevailing distress. This brings us to the second
, advantage which Great Britain held in her first dealings with
the Canadians, the advantage of dramatis personae. Although
the whole territory from Quebec down the St. Lawrence to the
eastern boundaries of the Colony was in the hands of the Brit
ish troops from September 18, 1759, five days after Wolfe's
victory on the Plains, and all the remainder of the country
from September 8, 1760, when the French governor capitulated
to General Amherst, it was not until August 10, 1764, that a
regular civil government was erected in Canada.
During those periods, of nearly five years in the one case
and of four years in the other, the sole government of Canada
was that administered by military officers in Quebec, Mont
real and Three Rivers, under the supreme direction of the
mander-in-chief, who was stationed in New York. The gov
ernment was carried on without reference to the authorities
in London, who knew next to nothing of what was being done
in the newly occupied country. But we are fortunate enough
to possess in the Canadian Archives, the contemporary records
of these local military governments.
A study of these records, as well as of such French Cana
dian testimony as has come down to us, leaves no doubt of the
success, in Canada, of a form of government universally held
in abhorrence. On the day following the capitulation, Amherst
in a General Order, after thanking the troops for their ser
vices, expressed his confidence that the troops would not dis
grace themselves by the least appearance of inhumanity, as
the Canadians had now become British subjects, and would
feel the good effects of His Majesty's protection; and two
weeks later, in some words addressed to the French Canadians
in their own language, Amherst said to them that, as it had
been specially enjoined on the troops to live with the habitants
in harmony ahd good fellowship, he recommended the habitant
to receive and treat the troops as brothers and fellow-citizens.
These injunctions were laid to heart by both. The Canadians
were relieved to find that their anticipations were so happily
disappointed, and the troops proceeded to make themselves

entirely at home. Many married Canadian girls, and settled
down in complete content. The numerous Macdonalds, Fra-
sers, MacKays, Bains, and MacMillans with their fluent
French and halting English, are living testimonies of the
breadth and depth of the goodwill which prevailed among the
erstwhile enemies.
The leading French Canadians' in a protest to -the British
Government against the removal of General Murray declared
that "for ,four years we enjoyed the greatest tranquillity."
"Mr. Murray, has up to the present time, at the head of the
Military Council administered to us all the justice that we
could have expected from the most enlightened jurists. This
could hardly have been otherwise, disinterestedness and equity
being the basis of their decisions." Senator Chapais concluded
an exhaustive study of this period, in these words: "The
Military Government was finished. It was, indeed, little mili
tary except in name. Our civil laws were maintained, our
language and customs respected, and our fathers were called
upon to submit to fewer injustices than they had to endure
under the regime which succeeded, and which, nevertheless,
is called in our history, 'civil government.' "
With the goodwill which pervaded the community there
was another circumstance, which did much to promote the
tranquillity which the Canadians signalized in the address just
mentioned. The Canadians and the troops were strikingly
alike in one particular, which above all contributes to har^
mony. They were both devoid of what may be called the poli
tical mind. Both were accustomed to live under orders. They
cared nothing about participating in the selection of their
rulers, or in the making of the laws, and were content with
the rulers and laws, which were given to them, so long as
these were neither unjust nor oppressive. They would have
agreed heartily with Pope's dictum:
"For forms of government let fools contest,
Whate'er is best administered is best."
To this temper of mind, the mixture of paternalism and lais
sez-faire which seems to be the secret of the British governing
mind, was quite satisfactory. In the courts of first instance

in Montreal and Three Rivers, the presiding judges were all
French Canadians.
. From_ the early days of the French regime, the men of the
colony, between the ages of 16 and 60, were enrolled in the
militia. The men of each parish were summoned, drilled and-
led to war by an officers chosen from among their number, and
known as the Captain of Militia. Although, of habitant origin,
he would naturally be a man of superior qualities, and, it came
to be the practice of the authorities to employ these captains
in a variety of capacities, which had no relation to their mili
tary duties. The Intendant, in particular, required from!
them the services which are now entrusted to bailiff's. It was
these captains of militia whom the British Governors chose to
constitute their courts. In the proclamation published two
weeks after the capitulation, Amherst, with a view to the
amicable settlement of the differences that would arise among
the inhabitants, charged the captains' of militia to listen to all
complaints, and, if they could do so, to remove them with all
due justice and equity. If, for any reason, the captains felt
themselves unequal to dispose of a case, they were to take the
parties before the officer commanding the troops of the dis
trict. There was a final appeal to the governor. The idea, thus
far realized, soon developed. Courts were set up at convenient
places throughout the districts of Montreal and Three Rivers,
in which the presiding judges were a body of those officers of
militia. From them appeals lay to a court of military officers,,
with, as before, an ultimate recourse to the governor. ""
The arrangements for the administration of justice in the
government of Quebec were somewhat different. Murray, a
short time after the conquest, appointed Canadian notaries to
judgeships in the several districts, but, after a year's trial,
he abandoned this scheme, and erected a court at Quebec,
which was made to serve the whole government which ex
tended eastward as far as the present boundaries with New
Brunswick. Some of the records of all these courts have been pre
served. The cases, as was to be expected in such communities,
were simply, demanding for their settlement common sense
and good judgement, rather than a knowledge of the techni-

calities of the law, and the decisions as reco;rded satisfy one's
sense of justice. In the general administration of affairs, the
governors simply continued the French system, which had
been in operation for over a century. Local matters were-
regulated by a set of ordinances, issued by the governors, and
which were in general mere reproductions of the ordinances
of the French intendant. The whole work of government in
the three districts was carried on in French. It is only in this
language that we have the records of the courts. In the Que
bec court, which was composed of seven British officers, the
proceedings are all set down in French. The only words in the
records which indicate that the cases in the Quebec govern-;
ment were heard before English officers, are the names of the
officers themselves.
'A sense of the troublous times that immediately succeeded,
this period, inclines one to linger a little over the Regne Mili-
taire. Its importance in our history, however, may be over
rated. It laid the foundations for a certain mutual esteem
and, in many cases, affection, which the long period of con
flict that followed strained to the uttermost but did "not en
tirely destroy; and it made, it clear that there was no such
temperamental incompatibility as would keep Canadians and
British inevitably asunder. These results are not trifling. But
a little reflection will convince one that Canada, as we know it,
could never have developed out of the conditions which pre-
- vailed during the Regne Militaire. As between the two races
this was but the courting time. But the Treaty of Paris which
was signed on February 10, 1763, was in effect a marriage;
and the attempt to set up a common household, in which the
aspirations of each craved for realization, revealed divergences
so wide that the best efforts on both sides, from that day to
this, still leave a gap which can only be bridged by faith and
hope. The first measures taken for the establishment of a regu
lar civil government disclosed not only the exceeding difficulty
of the problem demanding solution, but the inadequacy of
those in power to deal with it. At this time the population of
Canada included, in addition to the French Canadians and the
British troops, a number of civilians, who had been coming

into the country ever since the Conquest. Some of them were
either British merchants or their agents, who had contracts
for army supplies ; others were Americans, who had been in
vited by Amherst to bring supplies to make up the shortage of
provisions from which the Canadians were suffering. Others,
again, came because they thought they saw in Canada a field
for their enterprise. To these people, military rule was ana
thema. They were moved to hatred by the peremptory orders,
which the Canadians and the troops accepted without resent
ment, and it was with repugnance that they saw themselves
obliged to take their suits before a court of military officers,
who made no pretence to knowledge of commercial law, instead
of having disputed facts established by the well-accustomed
jury. Their one hope lay in the introduction of a regular
.government, with its restoration to them of the rights and
privileges of British subjects. They would have their laws
made by popularly elected assemblies, not by a governor and
council, both of whom were appointed by the King. And the
Canadians would be made to feel the difference between the
conqueror and conquered. Indeed, their conduct was marked
by all that arrogance that so galls the self-respect of those
against whom it is directed.
But, though riun;ierically insignificant, these old British
subjects occupied a place of great importance in the commun
ity. All the wholesale trade of the country was in their hands,
and their connexions with the mercantile interests in London
enabled them to exert great pressure on the government.
Governor Murray, who had a feud with them which led to his
downfall, referred to them as passengers, rather than settlers,
men who had been brought to the country by motives of self-
interest, and who would stay no longer than those motives had
influence. But the Governor was wrong. These men had come
to stay. Many of the' great commercial houses in Montreal
can trace their origin to these early comers They were strong
men, whose patriotism was marred by more than a touch of
narrowness and self-interest. Some of the later governors
complained that their tasks would have been appreciably
lighter if the English residents had abated some of their
patriotic zeal.

These men were the elements in the population to which
the attempt at civil government was to be applied. The mili
tary element declined rapidly in importance, and, in a few
years, the society of Canada consisted of, and alas! was di
vided into, French and English. With a society so composed,
a struggle for supremacy between its two sections was inevit
able, but, Unfortunately and perhaps needlessly, it was pre
cipitated by the first act of the British Government. The
task imposed on the British Government by the treaty of 1763
was stupendous. Before the Seven Years War, England's
possessions in North America were limited to the old colonies
on the Atlantic seaboard. Nova Scotia, and the undefined ter
ritories of the Hudson's Bay Company. Canada and the great.
hinterland in ^;he west belonged to either France or Spain.
As a result of the treaty, the whole continent, with practically
unreachable exceptions, became British, and the first duty of
the Ministry was to provide suitable forms of government for
the several parts of the newly acquired territory.
Canada, under French rule, comprised a vast stretch of
country ¦ extending from the Straits of Belle Isle to the indefi
nite West. A comparatively small portion was settled, all the
remainder to the east, north and west being Indian country.
It was decided by the British government to confine the limits
of the new province, which was to be called Quebec, to include
merely the part which had been under settlement by the
French. Its eastern boundary was fixed at the west or hither
end of Anticosti; its western, at a point near the present
boundary between Ontario and Quebec; while its northern
boundary was a line drawn easterly from the southern end of
Lake Nipissing along the head waters of the rivers emptying
into the St. Lawrence. The chief merit of the limited area
lay in its manageableness. The King's writ would run without
much difficulty anywhere within those limits, and the inhabi
tants of Canada would be discouraged in any attempts they
might make to wander into the interior, by the fact that they
were passing outside the protection of the laws.
The Lords of Trade, in reporting their opinion as to the
most suitable form of government for the new province, stated
that it seemed to them that "the chief objects ofany new form

8
of government to be erected in that country ought to be to
secure the ancient inhabitants in all the titles, rights and pri
vileges granted to them by treaty, and to increase as much as
possible the number of British and other new Protestant set
tlers." This is admirable, and gained the immediate assent of
the Government; but, unfortunately, this was a period when
governments changed rapidly, and shortly after this opinion
was given Lord Shelburne, its author, retired, and was rer
placed as head of the Board of Trade by Lord Hillsborough, a
man of quite inferior stamp. He grasped at and emphasized
the second of Shelburne's recommendations as to the necessity
•of increasing the number of British and other foreign settlers,
and ignored entirely the one which assumed that the ancient
inhabitants should be secured in all the titles, rights and privi
leges granted to them by treaty. The consequence was that
the royal proclamation was, on this side, a mere immigration
pamphlet, addressed to British and other Protestant peoples.
It promised a government after the model of those in the older
colonies, and, until a House of Assembly could be elected, it
gave a pledge that all who came and settled iri Canada should
have the benefit of the laws of England.
The commission to the Governor and the accompanying
instructions, being drawn up by the same hand, were infused
with the same spirit. The Governor was directed in his com
mission, which was at once published, to call an assembly
elected by the people, as soon as the circumstances of the
Province would permit. The choice of members was limited
to those who would take the oath against popery — which
would exclude the whole body of the people from repre
sentation by members of their own nationality, and leave the
making of the laws governing the lives and fortunes of SO, 000'
people in the hands of the representatives of less than 200.
The English merchants were elated when they were made
aware of the terms of the Proclamations and of the orders to
the Governor to prepare for the election of an assembly. In^
deed, there was that in the proceedings of the Home Govern
ment on this occasion which the uncharitable might denounce-
as chicanery- The commission, which was published through- ^

out the land, gave no hint that the Government had in con
templation an intermediate period, in which the affairs of the
country would be carried on without the assistance of repre-
^ sentatives of the people. But the Instructions to the Governor,
which were addressed to him personally, and which were not
published at all, contained these words, "But as it may be
impracticable for the present to form such an establishment,
you are in the mean time to make such rules and regulations,
by the advice of our said Council, as shall appear to be neces
sary for the peace, order and good government of our said
Province." In other words, it directed that, for a certain
indefinite period, the Province should be governed by the Gov
ernor and an appointed Council, and that during that period
the people should have no infiuence in the Government through
their elected representatives.
The old British subjects were impatient to have a govern
ment in which they should have a voice. Barely two months
after civil government was established, the first grand jury
which was struck declared, in the course of a lengthy present
ment, that as they were at that time the only representative
body in the Colony, they, as British subjects, had a right to
be consulted before any ordinance affecting the body they re
presented was passed into a law, and that, to prevent all
abuses, embezzlements or wrong application of public money,
they would propose that the public accounts be laid before the
Grand Jury, at Ifeast every six months, in order that they
might be audited. To the Governor and Council all this sav
oured of strong presumption, and, indeed, one cannot feel
that, in their dealings with the Canadians, the views of the
new British population were likely to err on the side of gen
erosity. But the Englishman had enough right on his side to
entitle him to be disappointed in its not being recognized. He
had the delusion, common at that time, that an Englishman
travelling anywhere within the Empire carried with him the
laws of England, much as he carried his umbrella; and when,
as in this case, he found his sentiment supported by a pledge
made to him by his sovereign, he was fully justified in his
insistence. But if the representative assembly had to wait for a more

10
propitious season, the Englishman had no ground for com
plaint as to the laws he was called upon to obey. A superior-
court was erected in Quebec, which was presided over by a
Chief Justice who was a member of the English, bar;
and the laws that reigned were the laws of England and the
local legislature. In all trials, Canadians as well as old British
subjects were admitted on juries, without distinction. This
court was English to a point probably not intended by its
originator, for neither the Chief Justice nor the Attorney-
General understood a word of French.
But it was impossible to leave the vast proportion of the
population without a tribunal in which their disputes could
be heard and determined; and the Governor, with many mis
givings that he might be transgressing the terms of his in
structions, set up a lower court called the Court of Common
Pleas for the express use of the Canadians. Three judgeSt
were appointed to preside in this court — an army surgeon, an
army officer, both British, ahd a French Protestant merchant.'
They were directed to determine the cases brought before
them, according to equity, having a general regard for the laws
of England. They knew nothing of law, either English or
French, but they all understood the French language well. As
French lawyers pleaded before them, and they knew no Eng
lish law, it is clear that such law as crept into the decisions
of this court was French law. Indeed, the two English judges
applied themselves at once to the study of French law, in
which they were doubtless assisted, though perhaps not quite
disinterestedly, by the Canadian lawyers who appeared before
them. The first clash between English and French arose over
this court. The Grand Jury mentioned deplored its creation
as "tiresome, litigious and expensive to this poor colony" ; ahd
they went on to declare their belief that "the admitting per
sons of the Roman Religion, who own the authority, supremacy
and jurisdiction of the Church of Rome, as jurors, is an open
violation of our most sacred laws and liberties, and tending to
the utter subversion of the Protestant religion and His Ma
jesty's power, authority, right and possession of the Province
to which we belong." The Canadians took up the challenge

V

11
thus thrown down, with commendable spirit. There was an
immediate protest from the Canadians on the Grand Jury,
who had signed the presentment in ignorance of its contents.
The Court of Common Pleas they declared to be a "sanctuary,
in which they might be judged as Frenchmen by Frenchmen,
according to ancient customs, and in their own tongue." They
also represented the injustice of depriving them of the rights
they enjoyed as British subjects, because they had been born
and brought up as Roman Catholics, saying that "the leniency
of the existing government had made them forget their losses,
and had attached them to His Majesjty and to the Government;
while their fellow-citizens made them feel their con(Jition to
be that of slaves." This protest to Governor Murray was fol
lowed up by a strong plea to the King, which was signed by
all the leading Canadians. Maintaining the same general line,
they ask "who would wish to have us proscribed? About 30
English merchants, 15 of whom are settled here. Who are the
proscribed ? Ten thousand heads of families who feel nothing
but submission to Your Majesty." And, again, "What would
become of the general prosperity of the Colony, if those who
form the principal section thereof became incapable members
of it, through difference of religion? How would justice be
administered, if those who understand neither our language
nor our customs should become our judges, through the me
dium of interpreters?"
But the Canadians were not alone with their humble peti
tions at the foot of the Throne. The Briti&h merchants in Can
ada, supported by their mercantile associates in London, made
a vigorous presentation of their grievances, due to the various
transgressions and shortcomings of the Governor, and de
manded his recall. They also pleaded for a House of Assem
bly, alleging that there was a number more than sufficient of
loyal and well affected Protestants to form a competent and
respectable House. Governor Murray, conceiving that the
experience he had gained in the Colony would be helpful in
-enabling the Ministry to deal judiciously with the divergent
pleas to the King, wrote a letter to the Lords of Trade giving
his views of the situation. Murray had many virtues, but they
were of a sort that would- win applause in the camp rather

12
than in the Cabinet. He was an energetic partisan of those
who placed themselves under his care, and in the description
of the merits of his friends or the failings of his enemies his
feelings had at least as much play as his judgement. Of the
two sections of the population, he said, "Little, very little, will
content the new subjects, but nothing will satisfy the licen
tious fanatics trading here but the expulsion of the Canadians,
who are perhaps the bravest and best race upon the Globe."
Murray had many reasons for disliking the civilians
under his authority. Shortly after the Conquest, American
dealers were invited to bring their wares to Canada, to make
up the deficiencies in food and other things essential to life.
But they had not been long in the country when he was threat
ening them with expulsion on account of the extortionate
prices they charged for the commodities they brought with
them. In the memorial in' which they demanded his recall,
they charged him with unnecessary interference with their
trade; with enacting ordinances' which they described as
"vexatious, oppressive, unconstitutional, injurious to civil
liberty and the Protestant cause; with treating them with a
rage and rudeness of language as dishonourable to his trust as
painful to those who suffer from it; and with the discoun
tenancing the Protestant religion by an almost total neglect
of attendance on Church service." Murray replied vigorously
to those and other charges, and succeeded in convincing the
Ministry that they were groundless.
When the state of things in Canada brought about by the
ill-considered Proclamation was learned in England, it aroused
a storm of indignation. Lord Mansfield asked in amazement:
"Is it possible that we have abolished their laws, and customs,
and forms of judicature all at once? a thing never to be at
tempted or wished. The history of the world don't furnish
an instance of so rash and unjust an act by any conqueror
whatsoever; much less by the Crown of England, which has
always left to the conquered their own laws and usages, with
a change only so far as the sovereignty was concerned." Lord
Thurlow said: "I take it to be an act of the grossest and
absurdest and cruelest tyranny, that a conquering nation ever
practised over a conquered country." Lord Hillsborough, who

13
as President of the Board of Trade was responsible for the
Proclamation, and the Governor's commission and instruc
tions, endeavoured to shift the blame to the shoulders of Gov
ernor Murray and his legal advisers. He declared that in
framing the Proclamation "it never entered our idea to over
turn the laws and customs of Canada, with regard to property,
but that justice should be administered agreeable to them."
A charge of injustice to the Canadians bore very hardly on
Murray, who was not only their friend, but even their parti
san. But he conceived that the plain words of the document
left him no choice. In setting up the Court of Common Pleas
for the Canadians he greatly feared that he had exceeded his
instructions, and entered into an elaborate plea to justify his
action. But Murray's explanations were not heeded. The
Ministry desired to know why he had abolished the French
laws and customs. On looking over the ordinance creating the
courts, they could discover nowhere an indication that these
had been saved to the Canadians. The court, which was estab
lished specifically for their benefit, was directed to give its
decisions, not according to the old laws and customs, but
accoirding to equity, having regard, nevertheless, to the laws
of England. They did not understand, nor was Murray at
. pains to let them know, that in practice the Canadians had
nothing to complain of. Nor had they complained. They
were justly apprehensive of what might happen, if the views
of the Grand Jury prevailed, but they expressed gratitude for
the provisions made for the determinations of their suits at
law. But the Ministry were as anxious to repair the injustice
done by the Proclamation and the Governor's commission as
they had been careless in the preparation of those documents.
Indeed, there was danger that they would be swung by their
sympathies too far in the other direction, and neglect the in
terests of the British-born subjects, who, though objectionable
from their aggressiveness and intolerance, had acquired un
doubted rights, based on the pledge given to them in the Pro
clamation, that they might confide in the protection of the laws
of England. The Ministry had created a diificult position for
themselves, and looked to the Law Officers of the Crown for

14
guidance on to clear ground. Their first question to these
officers was as to whether the English penal laws directed
against the Roman Catholics in Great Britain, applied to the
Roman Catholics of Canada. To their great relief the Minis
try was informed that in the opinion of the Law Officers the
English penal laws were not applicable in Canada. The Law
Officers were then requested to examine the Ordinance creat
ing the Courts in Canada and submit, if necessary, a systenl
of laW adapted to conditions in Canada. ;
The Law OflScers condemned the Governor's ordinance in
many of its parts, and recommended that it be put aside alto
gether. They drew up a scheme for a judicial system, and^
then applied themselves to the knotty questions as to what
body of laws should govern in Canada. To begin with, they
proposed that the Criminal laws of England should be adopted.
This much was, indeed, scarcely questioned by the Canadians.
Such objections as they made had to do with the difficulty of
blending into one system the parts of two different systems.
But^there was every reason for believing that the Canadians
would not be discontented by the adoption of the English
Criminal laws. '
In civil actions there was a large number in which
the maxims of law were the same amongst civilized
nations. Such were the numerous classes named compendi
ously breaches of contract. In these cases, nO injustice would-
be done, if judges applied these universal maxims to the cases
brought before them.
But there was' a class of cases in ^which it was of the
essence of justice that the ancient laws of the country should
retain their full vigour, and that British subjects coming to
Canada should conform thereto, as they conform to the local
laws in force in the several parts of the United Kingdom.
These were the laws relating to the titles of land, its descent,
alienation and encumbrances. The social system of every
community is based on its land laws, and, any sudden drastic
, change in these would occasion infinite confusion and injus
tice. The propositions of the Law Officers were considered in
Council, and met with general approval. There was one great
officer, however, who refused to listen to them, and his un-

15
compromising stand not only wrecked the scheme, but brought
about the downfall of the government, which supported it.
The Lord Chancellor declared, truly enough, that nothing
had come from Canada to indicate that they were suffering
from the suppression of their laws, or that the plans pro
pounded would be satisfactory to Canadians. Until he had
more light on these points, he would not consent to have the
proposed scheme put in operation. The disagreement; led to
the resignation of the Lord Chancellor, and the dismissal of
the Rockingham Ministry by the King. In the cabinet which
succeeded, the Lord Chancellor was reap'pointed; and on the
Canada question coming up for consideration, he renewed his
objection, and at his instance an official was sent to Canada
to study the several questions at first hand and to take back
with him reports from the Governor and the Law Officer in
Quebec. After a stay of eighteen months in the Province, this offi
cer, who was private secretary to Lord Shelburne, the Colonial
Secretary, drew up an elaborate report, containing profoundly
interesting information as to the system of laws in operation
during the French period, and recommending the perpetuation,
in large measure, of those laws. He also took with him the
reports of the Governor, the Chief Justice, and the Attorney-
General. With all this material before them, the Ministry,'
with true British thoroughness, set about the elaboration of a
scheme which would be satisfactory to both sections of the
population. They sent the papers, in turn, to the Attorney-
General, the Solicitor-General and the AdvocaterGeneral, with
instructions to each to prepare a scheme which in his view
would meet the conditions in Canada.
Each of these great officers made an exhaustive study of
the documents submitted to him, and each made a report con
taining his views as to the system of laws proper to be adopted
for use in Canada. Needless to say, each recommendation
differed in important particulars from the other two.
The Cabinet then took the question into their considera
tion, and, as may well be believed, found themselves confronted
and encumbered by an embarras de richesses.- The Under
Secretary of State says that having perused the several papers

16
they were compelled to set aside all the various schemes pro
posed, and to prepare one of their own. Their task was to
satisfy two different and apparently irreconcilable sets of
interests. The French Canadians demanded the system of
laws known as the Custom of Paris; the English inhabitants
demanded the fulfilment of the Royal pledge given on their
behalf, which had induced them to settle in the country. But
a study of the actual conditions indicated a means by which
the apparently irreconcilable might be reconciled, and both
interests satisfied. The essence of the Canadian demand was
that they should have such parts of the old laws as were neces
sary for the preservation of their old social system, in other
words, the domestic laws. The vital concern of the English
was the assurance of the English commercial laws. Draft
after draft was submitted to the Cabinet, until there finally
emerged the bill that expressed their ideas, and which when
enacted is the well known Quebec Act of 1774.
It may be supposed that, with objects so definite, the
Cabinet would have no difficulty in framing a form of words
that would enable those objects to be realized. But this was
not the case. Although they desired to establish the Commer
cial laws of England in Canada, they were quite ignorant as
to what parts of those laws would be applicable in a new coun
try like Canada. The Commercial laws of England were the_
growth of centuries, and had been gradually adapted to the
needs of the most highly developed commercial system in the
world. As an instance of the unsuitability of the whole body
of the English Commercial laws to Canada, a strong protest
was made by the merchants in Canada themselves against the
introduction of the Bankruptcy laws, which they declared
would work infinite injury in the country. In order to meet
this difficulty, they proposed to leave the selection of the laws
desirable to the commercial community, to the Governor and
Council, several of whose members were large merchants. The
case was the same with the Habeas Corpus Act. The Act in
force in England had been enacted in the reign of Charles II,
and it was thought that it might contain provisions not
adapted to conditions in the new possession. The plan finally
settled upon was to pass an Act, introducing the whole body

"17
of the civil law of French Canada, and to make provision for
needed amendments of this Act by the Governor and Council
in Canada. In transmitting the Act to the Governor, the Colo
nial Secretary accompanied it with a set of instructions, in
which, inter alia, he directed the Governor to lay this part of
his instructions before the Council, and to require them to
investigate which parts of the Commercial Laws of England
might advantageously be adopted in Canada He also directed
that a Habeas Corpus Act be enacted, declaring that "security
to personal liberty is a fundamental principle of Justice in all
free governments, and the making due provision for that pur
pose is an object the legislature ought never to lose sight of."
This well-matured and beneficent scheme for meeting the
requirements of the several interests in the Colony was never
given a trial. The Governor at once put into operation the
whole body of French laws, formerly in force in Canada, but
disobeyed his instructions to take measures to introduce either
the Habeas Corpus, or such parts of the English commercial
laws as would be of advantage to the commerce of the country.
It is usually pleaded, on behalf of Governor Carleton, that the
imminence of the struggle which resulted in the independence
of the older English Colonies, made it inexpedient to jeopardize
the good will of the French Canadians by any breach in the
solid body of their Civil laws ; and that the English merchants
had already indicated their sympathy with American views.
The plea will not hold. The English merchants in Quebec and
Montreal were, as I have described them, exceedingly tena
cious of their rights as Englishmen, and these rights had been
confirmed to them by the Royal pledge. But there was no
reason at this time to charge them with disloyalty. That
many of them, embittered by this slap in the face and by the
violation of the King's word, came to espouse the cause of the
Americans is not surprising, nor should it, in my opinion, be
made a ground of reproach. They were caught up in the
whirlwind which swept over a continent, and the Government
in Canada had done all it could to paralyse their disposition
to resist that pressure. As for the Canadian seigneurs, they
had no just grounds on which to rest a grievance. They had
been given the whole body of laws affecting their interests.

18
Trade was a peculiarly British interest, and if Carleton had
shown a determination to protect both classes, English and
French, I am' persuaded he would have earned additional
respect from the Canadians. That was certainly the view of
the British Government, pressed again and again on the
. Governor. Governor Carleton has many titles to the veneration of
Canadians. His administration in its every part exhibited a
lofty disinterestedness that shines by contrast with much that
was sordid at that period. There was no mistaking his affec
tion for, and his constant desire to promote, what he consid
ered to be the best interests of the country. But the course
he pursued, in regard to the Quebec Act, was not among those
things calculated to conserve those- interests.
What might have been done towards ameliorating the
conditions created by the partial application of the Quebec
Act, had not the rebellion in the older Colonies everywhere
darkened counsel, is matter for speculation. Carleton resigned
in 1778, and was succeeded by General Haldimand, a mah of
the highest character, but whose whole career from boyhood
was that of the professional soldier. Under his stern regime
dissatisfaction and confusion reigned throughout the Pro
vince. The incoming of the Loyalists in 1784 gave rise to a
new situation, with which the British Government dealt by
the Act of 1791. By this Act two Provinces were erected.
Upper and Lower Canada, and Pitt's. experiment of furnishing,
French Canadians with an example of government among
British people of approved loyalty and ample experience was
given a trial, which extended over half a century.
William Smith.
Dorninion Archives, Ottawa.

No. 18, The Co-operative Store in Canada, by H. Michell.
No. 19, The Chronicles of Thomas Sprott, by Walter Sage.
No. 20, The Country Elevator in the Canadian West, by W. C.
Clark.
No. 21. The Ontario Grammar Schools, by W. E. Macpherson.
No. 22, The Royal DistUowance in Massachusetts, by A. G.
Dorland.
No. 23, The Language bstte in Canada; Notes on the Language
Issue Abroaid, by O. D. Skelton. .
No. 24, The Neutralization of States, by F. W. Baumgartner.
No. 25, The Neutralization of States, by F. W. Baumgartner.
No. 26, Profit-Sharing and Prodncen^ Co-op«rati(m in Canada,
hy H. BfichelL
No. 27, Should Maximum Prices be Fixed? by W. C. Clark.
No. 28, Sir George Arthur and His Administration of Upper
Canada, by Walter Sage.
No. 29, Canadian Federal Finance — ^11, by O. D. Skelton.
No. 30, English Courtesy Literature Before 1557, by Fred. B.
Millett.
No. 31, Economics, Prices and the War, by W. A. Mackintosh.
No. 32, The Employment Service of Canada, by Bryce M.
Stewart.
No. 33, AUenby's First Attempt on Jerusalem: A Chapter in
Scottish Military History, by J. L. Morison.
No. 34, John Morley: a Study in Victorianism, by J. L. Mori
son.
No. 35, Elizabethan Society^-A Sketch, by J. B. Black.
No. 36, The Condensed Milk and Milk Powder Industries, by
F. W. Baumgartner.
No. 37, Nationality and Common Sense, by J. L. Morison.
No. 38, Eapuskasing — ^An Historical Sketch, by Watson
Eirkconnell.
No. 39,' Palestine in Transition from War to Peace, by A. E.
Prince.
No. 40, Business Cycles and the Depression of 1920-21, by W.
C. Clark.
No. 41, Captain John Deserontyou and the Mohawk Settle
ment at Deseronto, by M. Eleanor Herrington.
No. 42, First Days of British Rule in Canada, by William
Smith.

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