Diary in America, Series Two

by Frederick Marryat

We will now claim the support of his lordship upon another question, which is, how far is it likely that the law will be duly administered if the power is to remain in the hands of the French Canadian population? Speaking of the Commissioners of Small Causes, his lordship observes:—

“I shall only add, that some time previous to my leaving the Province, I was very warmly and forcibly urged, by the highest legal authorities in the country, to abolish all these tribunals at once, on the ground that a great many of them, being composed entirely of disaffected French Canadians, were busily occupied in harassing loyal subjects, by entertaining actions against them on account of the part they had taken in the late insurrection. There is no appeal from their decision; and it was stated that they had in the most barefaced manner given damages against loyal persons for acts done in the discharge of their duty, and judgments by default against persons who were absent, as volunteers in the service of the Queen, and enforced their judgment by levying distresses on their property.”

Relative to the greatest prerogative of an Englishman, the trial by jury, his lordship observes:—

“But the most serious mischief in the administration of criminal justice, arises from the entire perversion of the institution of juries, by the political and national prejudices of the people. The trial by jury was introduced with the rest of the English criminal law. For a long time the composition of both grand and petit juries was settled by the governor, and they were at first taken from the cities, which were the chefs lieux of the district. Complaints were made that this gave an undue preponderance to the British in those cities; though, from the proportions of the population, it is not very obvious how they could thereby obtain more than an equal share. In consequence, however, of these complaints, an order was issued under the government of Sir James Kempt, directing the sheriffs to take the juries not only from the cities, but from the adjacent country, for fifteen leagues in every direction. An Act was subsequently passed, commonly called ‘Mr Viger’s Jury Act,’ extending these limits to those of the district. The principle of taking the jury from the whole district to which the jurisdiction of the court extended, is, undoubtedly, in conformity with the principles of English law; and Mr Viger’s Act, adopting the other regulations of the English jury law, provided a fair selection of juries. But if we consider the hostility and proportions of the two races, the practical effect of this law was to give the French an entire preponderance in the juries. This Act was one of the temporary Acts of the Assembly, and, having expired in 1836, the Legislative Council refused to renew it. Since that period, there has been no jury law whatever. The composition of the juries has been altogether in the hands of the Government: private instructions, however, have been given to the sheriff to act in conformity with Sir James Kempt’s ordinance; but though he has always done so, the public have had no security for any fairness in the selection of the juries. There was no visible check on the sheriff; the public knew that he could pack a jury whenever he pleased, and supposed, as a matter of course, that an officer, holding a lucrative appointment at the pleasure of Government, would be ready to carry into effect those unfair designs which they were always ready to attribute to the Government. When I arrived in the Province, the public were expecting the trials of the persons accused of participation in the late insurrection. I was, on the one hand, informed by the law officers of the Crown, and the highest judicial authorities, that not the slightest chance existed, under any fair system of getting a jury, that would convict any of these men, however clear the evidence of their guilt might be; and, on the other side, I was given to understand, that the prisoners and their friends supposed that, as a matter of course, they would be tried by packed juries, and that even the most clearly innocent of them would be convicted.

“It is, indeed, a lamentable fact which must not be concealed, that there does not exist in the minds of the people of this Province the slightest confidence in the administration of criminal justice; nor were the complaints, or the apparent grounds for them, confined to one party.

“The trial by jury is, therefore, at the present moment, not only productive in Lower Canada of no confidence in the honest administration of the laws, but also provides impunity for every political offence.”

I have made these long quotations from Lord Durham’s Report as his lordship’s authority, he having been sent out as Lord High Commissioner to the Province, to make the necessary inquiries, must carry more weight with the public than any observations of mine. All I can do is to assert that his lordship is very accurate; and, having made this assertion, I ask, what chance, therefore, is there of good government, if the power, or any portion of the power, be left in the hands of those who have in every way proved themselves so adverse to good government, and who have wound up such conduct by open rebellion.

The position of the Executive in Canada has, for a long while, been just what our position in this country would be if the House of Commons were composed of Chartist leaders. Every act brought forward by them would tend to revolution, and be an infringement of the Constitution, and all that the House of Lords would have to do, would be firmly to reject every bill carried to the Upper House. If our House of Commons were filled with rebels and traitors, the Government must stand still, and such has been for these ten years the situation of the Canadian government; and, fortunate it is, that the outbreak has now put us in a position that will enable us to retrieve our error, and re-model the constitution of these Provinces. The questions which must therefore be settled previous to any fresh attempts at legislation for these Canadians, are,—are, or are not, the French population to have any share in it? Can they be trusted? Are they in any way deserving of it? In few words, are the Canadas to be hereafter considered as a French or an English colony?

When we legislate, unless we intend to change, we must look to futurity. The question, then, is not, who are the majority of to-day, but who will hereafter be the majority in the Canadian Provinces; for all agree upon one point, which is, that we must legislate for the majority. At present, the population is nearly equal, but every year increases the preponderance of the English; and it is to be trusted that, by good management, and the encouragement of emigration, in half a century the French population will be so swallowed up by the English, as to be remembered but on record. If, again, we put the claims of British loyalty against the treason of the French—the English energy, activity, and capital, in opposition to the supineness, ignorance, and incapacity of the French population,—it is evident, that not only in justice and gratitude, but with a due regard to our own interests, the French Canadians must now be wholly deprived of any share of that power which they have abused, and that confidence of which they have proved themselves so unworthy. I am much pleased to find that Lord Durham has expressed the same opinion, in the following remarks; and I trust their importance will excuse to the reader the length of the quotation.

“The English have already in their hands the majority of the larger masses of property in the country; they have the decided superiority of intelligence on their side; they have the certainty that colonisation must swell their numbers to a majority; and they belong to the race which wields the Imperial Government, and predominates on the American continent. If we now leave them in a minority, they will never abandon the assurance of being a majority hereafter, and never cease to continue the present contest with all the fierceness with which it now rages. In such a contest, they will rely on the sympathy of their countrymen at home; and if that is denied them, they feel very confident of being able to awaken the sympathy of their neighbours of kindred origin. They feel that if the British Government intends to maintain its hold of the Canadas, it can rely on the English population alone; that if it abandons its colonial possessions, they must become a portion of that great Union which will speedily send forth its swarms of settlers, and, by force of numbers and activity, quickly master every other race. The French Canadians, on the other hand, are but the remains of an ancient colonisation, and are and ever must be isolated in the midst of an Anglo-Saxon world. Whatever may happen, whatever government shall be established over them, British or American, they can see no hope for their nationality. They can only sever themselves from the British empire by waiting till some general cause of dissatisfaction alienates them, together with the surrounding colonies, and leaves them part of an English confederacy; or, if they are able, by effecting a separation singly, and so either merging in the American Union, or keeping up for a few years a wretched semblance of feeble independence, which would expose them more than ever to the intrusion of the surrounding population. I am far from wishing to encourage, indiscriminately, these pretensions to superiority on the part of any particular race; but while the greater part of every portion of the American continent is still uncleared and unoccupied, and while the English exhibit such constant and marked activity in colonisation, so long will it be idle to imagine that there is any portion of that continent into which that race will not penetrate, or in which, when it has penetrated, it will not predominate. It is but a question of time and mode; it is but to determine whether the small number of French who now inhabit Lower Canada shall be made English, under a government which can protect them, or whether the process shall be delayed until a much larger number shall have to undergo, at the rude hands of its uncontrolled rivals, the extinction of a nationality strengthened and embittered by continuance.