BILL FOR THE ADMINISTRATION OF CANADA.
Towards the close of this session a bill was brought into the house of lords, “for making more effectual provision for the government of the province of Quebec, in North America.” The main objects of this bill was to ascertain the limits of that province; to form a legislative council for all its affairs, except taxation, which council should be appointed and be removable by the crown, and in which his majesty’s Canadian Roman Catholic subjects should have a place; to establish the old French laws, to which the Canadians had been accustomed, including trial without jury, in all civil cases, and the English laws with trial by jury in all criminal cases; and to secure to the Roman Catholics those rights which the articles of capitulation had allowed—that is, the legal enjoyments of their lands and of their tithes, in their own community, or from all who professed their doctrines. This bill passed through the lords without difficulty; but in the commons it met with a storm of opposition. On the second reading, which took place on the 20th of May, Mr. Thomas Townshend, junior, asked why the affairs of Canada had been so long postponed, and why the country, from the time of its conquest, had been left a prey to anarchy and confusion? The bill proposed to enlarge the boundaries of the province, so as to comprehend the whole country lying between New England, New York, and Pennsylvania, to the Ohio and eastern bank of the Mississippi; and northward, to the southern boundary of the territory granted to the merchant adventurers of England trading to Hudson’s Bay. Of this Townshend complained, and he said that it was the general opinion, that ministers intended to make all this vast tract of country an essentially French colony, as the population was almost entirely French, and the religion, laws, &c., that of France—the only exception being that they had at their head a subject of Great Britain as their governor. This, he opined, would one day cause a revolution, and would tend to re-establish the dominion of France in that country. As for the legislative council he deemed it as proposed the very worst kind of government ministers could have invented. He remarked:—“If it is not the proper time to give to Canada an assembly like those which exist in our other American colonies, it is better to let the governor be absolute—better to let him be without a council. He will then be responsible. But what have we here? Seventeen or eighteen gentlemen, who may be removed or suspended by the governor; so that, if an act of oppression should come from the crown, these may be a screen for the governor to excuse and justify him.” Townshend next condemned the countenance given by the bill to the church of Rome, and then put a series of stringent questions to the ministers concerning the administration of the French laws in Canada. Were they, he asked, to be administered by Canadians or French lawyers? and were English gentlemen who had bought estates in that country to be subject to them? It would be better, he conceived, to show the French Canadians, by degrees, the advantages of English law, and to gradually mix it with their own. In reply, Lord North excused the delay which had occurred in bringing this measure forward, on the ground that he had been seeking the fullest information before he legislated. He did not pretend that the bill was perfect, but he considered that it was the best that could have been devised, both for Great Britain and the colony, under all circumstances. North then justified the enlargement of the limits of the colony, and the concessions which the bill made to the Roman Catholics. He observed:—“The honourable gentleman dislikes the omitting the assembly; but the assembly cannot be granted, seeing that it must be composed of Canadian Roman Catholic subjects, for otherwise it would be oppressive. On the other hand, as the bulk of the inhabitants are Roman Catholics, to subject them to an assembly, composed of a few British Protestant subjects would be a great hardship. Being, therefore, under the necessity of not appointing an assembly, this is the only legislature you can give the Canadians, and it is the one under which they live at present. The governor and council really have been the legislature ever since our conquest, only now it is put under some regulation.” As regarded the question of law, he reminded the house, that the most material part, that of the criminal law, was to be English, and that if the French civil law should be found incompatible with the wishes of the colony, the governor and council would have power to alter it. Returning to the question of religion, North remarked, that the free exercise of it was confirmed to the Canadians by treaty, and that the laws of Great Britain permitted the full and free exercise of any religion different from that of the Church of England, in any and all of the colonies. It was another question, he added, whether it is convenient to continue or abolish the bishop’s jurisdiction; though, at the same time, he asserted, no bishop could be there under papal authority, as such is expressly forbidden in the act of supremacy. North concluded by asserting, that there was no intention of substituting French lawyers and judges for the English who now administered the laws in that country. Townshend rejoined; complaining bitterly of carrying the system of French law into those parts of the country where it had not previously existed, and where there were some thousands of British subjects. Having, at the end of the war, promised the Canadians English law, he conceived that injustice would be done them by giving them that of France. Mr. Townshend was followed by Mr. Dunning, who called the measure one of the most extensive, as well as the most pernicious, ever offered to parliament. He particularly inveighed against the concessions made to the Roman Catholics, though he admitted that the free exercise of their religion was promised to the Canadians by the treaty of peace. This bill, however, he contended, gave them more than this: it established the Roman Catholic faith, whereas Protestantism was merely tolerated, and its clergy left for a maintenance to the discretion of the crown. He observed:—“Different gentlemen may entertain different opinions: my opinion of toleration is, that nothing can be more impolitic than to give establishment to that religion which is not the religion of our own country. Among the circumstances that unite countries, or divide countries, a difference in religion has ever been thought to be the principal and leading one. The Catholic religion unites France, but divides England. Without going further into the subject, it suffices me to say, that the religion of England seems to be preferable to the religion of France, if your object is to make this an English colony. When one sees that the Roman Catholic religion is established by law, and that the same law does not establish the Protestant religion, the people are, of course, at liberty to choose which they like. Are we, then, to establish the Roman Catholic religion, and tolerate the Protestant religion?” Mr. Dunning next insisted, that the civil law, as well as the criminal law of England, should be preserved, and that the institution of juries, however unpalatable it might prove to the Canadians, ought not to be dispensed with. He concluded by showing the unfitness of this political state to the habits and character of English settlers, and that there was an insurmountable difficulty in reconciling the feelings and habits of the small minority with the great French majority. The bill was next defended warmly in all its points by Attorney-general Thurlow. The definitive treaty of peace, he said, was made in favour of property in Canada; in favour of the Catholic religion, and in favour of the several religious orders, under which obligations it was that the crown of this country was called upon to frame a constitution for the colony. As for the importing and enforcing English laws in a country already settled, and habitually governed by other laws, he considered that it would be an act of the most absurd and cruel tyranny ever practised by a conquering nation over a conquered country—an act which would be unprecedented in the world’s history. He thought it would be equally monstrous to strip the Roman Catholic clergy of their rights and dues, and to set up an Anglican establishment where the followers of our church were but few in number. To assimilate the constitution of the province to that of England he deemed neither practicable nor desirable, and asserted, that the constitution now proposed was on the side of liberality, and the best that could be given under existing circumstances. He concluded thus:—“If any English resort to that country, they do not carry with them the laws that are to prevail the moment they get there. It would be just as wise to say, if an Englishman goes to Guernsey, the laws of the city of London are carried over with him. To take the laws as they stand in Canada has been allowed—to act according to those laws, and to be bound by their coercion, is a natural consequence. In this view I think the bill has done nothing obnoxious. I have no speculative opinions. I would have consulted the French customs to a much greater extent, if it had been for me to have framed the law.” Colonel Barré, Lord John Cavendish, and Sergeant Glynn next warmly opposed the bill, and they were followed by the Solicitor-general, Wedderburne, who defended it with greater ability and more knowledge of history than had been displayed by any of the preceding speakers. Sergeant Glynn had asserted, that in conquering the Irish and Welsh our laws had been imposed upon them; but Wedderburne clearly showed that this was only effected in the lapse of ages; English laws not being introduced into Ireland till the time of James I., and in Wales till the time of Henry VIII. He argued, that it was the custom of all conquering states to leave the conquered countries in the possession of their own laws. He remarked:—“Not only are there instances of great states not considering themselves warranted, by right of conquest, in forcing their laws upon the conquered, but even countries that have scarcely any trace of public laws and general systems, have had that good policy with regard to the countries they have made themselves masters of. The very Mussulman, the Ottoman, the Turks—the worst of all conquerors—in the countries they subdued left the people in possession of their municipal laws. This is the case in Wallachia; this is the case in Moldavia; this is the case with all the great settlements in which the Turks have pushed their arms.” Wedderburne next showed the difference existing in the law of succession in England and Canada, and argued, that it would be hard upon all younger sons in that province to establish the right of primogeniture on a sudden. He concluded by representing the people of Canada as having, for several years past, been annually calling upon government to let them know what really was to be the law of the province. Charles Fox argued, that as the bill allowed the clergy of the Church of Rome their dues and rights, which dues he understood to mean the receiving of tithes, which were a tax upon the Canadians, it was to all intents and purposes a money bill. This objection he conceived fatal to the bill, inasmuch as the commons never permitted bills of that nature to originate in the lords. Dunning now took up the same line of argument, and as Lord North denied the conclusion to which these members had suddenly come, the speaker was appealed to for his opinion. The speaker replied, that he had seen bills that had originated in the lords that, he thought, ought not to have been brought into the lower house, but that he never presumed to judge upon them himself, and in this in stance it would be very unbecoming in him to do so, therefore’ he would leave it for the house to determine as was thought right. The second reading was carried by a majority of one hundred and five, against twenty-nine; and on the 31st of May, when the house went into committee on the bill, several amendments were negatived, with equally large majorities. On this occasion petitions were presented against the measure from Thomas Penn, on behalf of himself and of John Penn, Esq., true and absolute proprietors of Pennsylvania, and the counties of Newcastle, Kent, and Sussex, in Delaware, praying that the territory granted by King Charles II. to their father and grandfather might not be encroached upon by any extension of the frontiers of Canada. Ministers denied that it was ever intended to entrench upon other colonies, and the petition was ordered to lie upon the table; leave, also, being given to the petitioners to be heard by counsel if they thought proper. At the same time a petition was presented from merchants of the city of London, trading to the province of Quebec, praying for the preservation or establishment of the English civil law, in all matters of controversy relative to property and civil rights, with trial by jury, &c. This petition was ordered to be referred to the committee on the bill, and the petitioners were also ordered to be heard by themselves or counsel. Counsel were heard, and witnesses examined, which occupied the attention of the house for more than a week; but on the 13th of June the bill passed the commons as it originally stood—a few boundary amendments, made in committee, alone excepted. The bill thus passed was sent back to the lords for their concurrence in the amendments, on which occasion Chatham rose to reprobate the whole spirit of the bill. It tended, he said, to establish the worst of despotisms, and denounced it as a most cruel, oppressive, and odious measure—a measure which destroyed the very roots of justice and good principle. He called the bill “a child of inordinate power,” and asked, if any on the bench of bishops would hold it out for baptism? He invoked the bishops to resist a law which would spread the Roman Catholic tenets over so vast a continent, and asserted, that parliament had no more right to alter the oath of supremacy than to repeal the great charter, or the bill of rights. The dangerous innovations of the bill, he declared, were at utter variance with all the safeguards and barriers against the return of popery and of popish influence, so wisely provided against by all oaths and offices of trust, from the constable up to the members of both houses, and even to the sovereign in his coronation oath. Chatham concluded by expressing his fears that such a measure might shake the confidence of his majesty’s Protestant subjects in England and Ireland, and totally alienate the hearts of all his American subjects. The bill, however, passed by twenty-six to seven, and received the royal assent on the 22nd of June; the corporation of London having ineffectually petitioned the king to refuse it.