His elevation to the Bench took place on the 30th of May, 1874, when he was appointed a Judge of the Court of Error and Appeal. He then removed to Toronto, where he has ever since resided. Upon the elevation of Mr. Justice Strong to a seat on the Bench of the Supreme Court at Ottawa, in October, 1875, Mr. Burton became, and still continues to be, the Senior Justice of the Court of Appeal for this Province. He has filled his position worthily, and with acceptance to the public and profession. He has delivered many important judgments. One of these, in the case of Smiles vs. Belford et al., is of special interest to persons connected with literary pursuits. The plaintiff was the well-known Scottish writer, Samuel Smiles, author of "The Life of George Stephenson," "Industrial Biography," and various other works of a similar character which have enjoyed great popularity among the young. The defendants were a firm of publishers in Toronto. The case came before Judge Burton in the month of March, 1877, by way of appeal from a judgment previously rendered by Vice-Chancellor Proudfoot; and the effect of Judge Burton's decision was to affirm the Vice-Chancellor's conclusions. It was held that it is not necessary for the author of a book who has duly copyrighted the work in England under the Imperial statute 5 and 6 Victoria, chapter 45, to copyright it in Canada under the Canadian Copyright Act of 1875, with a view of restraining a reprint of it there; but that if he desires to prevent the importation into Canada of printed copies from a foreign country he must copyright the book in Canada. The judgment is an elaborate one, and well worthy of the careful perusal of literary men.
LORD DORCHESTER.
Prominent among the band of heroes who accompanied Wolfe on his memorable expedition against Quebec in 1759 was a gallant hero who held the rank of Lieutenant-Colonel in the British army, and whose name was Guy Carleton. He was an intimate personal friend of General Wolfe, and was at that time thirty-seven years of age, having been born in 1722, at Strabane, in the county of Tyrone, Ireland. He had embraced a military career in his earliest youth, and had already done good service on more than one hotly-contested field. He had served with distinction under the Duke of Cumberland on the Continent, and had acquired the reputation of a brave and efficient officer. He was destined to attain still higher distinction, both in military and civil affairs, and to preserve for his king and country the realm which Wolfe died to gain. He has been called "the founder and saviour of Canada," and if these terms are somewhat grandiloquent, it must be admitted that they are not altogether without justification. "If," says a well-known Canadian writer, "we owe to Wolfe a deep debt of gratitude for the brilliant achievement which added new lustre and victory to our arms, and placed the ensign of Great Britain on this glorious dependency of the empire, where he fought and bled and sacrificed a life his country could ill spare, we assuredly, also, owe much to those brave and gallant men who preserved this land when conquered, through dint of hard toil, watchful vigilance, and loss of blood and life."
Guy Carleton's friendship with Wolfe, who was four years his junior, dated from their early youth. There are many friendly and affectionate references to him scattered here and there throughout Wolfe's published letters, and it is evident that their friendship was founded upon the highest mutual respect and esteem. Wolfe seems to have lost no opportunity of pushing his friend's fortunes, and to his patronage the Lieutenant-Colonel was indebted for many signal marks of favour. When the General was appointed to take charge of the operations against Quebec, he was informed by Pitt that he would be allowed to choose his own staff of officers. He accordingly forwarded his list of names to the Minister, and among them was that of Colonel Carleton, to whom he had assigned the office of Quartermaster-General. Carleton, however, had made himself obnoxious to the King by passing some slighting remarks on the Hanoverian troops—a most heinous offence in the eyes of the Elector. When the Commander-in-Chief submitted the list to the Sovereign, His Majesty, as was expected, drew his pen across Carleton's name, and refused to sign his commission. Neither Pitt nor Wolfe was likely to humour the stubborn monarch's whim. Lord Ligonier was therefore sent a second time into the royal closet, but with no better success. When his lordship returned to the Prime Minister he was ordered to make another trial, and was told that on again submitting the name he should represent the peculiar state of affairs. "And tell His Majesty likewise," said Mr. Pitt, "that in order to render any General completely responsible for his conduct, he should be made, as far as possible, inexcusable if he should fail; and that, consequently, whatever an officer entrusted with a service of confidence requests should be complied with." After some hesitation Ligonier obtained a third audience, and delivered his message, when, obstinate and unforgiving as the old King was, the sound sense of the observation prevailed over his prejudice, and he signed the commission as requested. And so it came about that Colonel Carleton accompanied the conqueror of Quebec in the capacity of Quartermaster-General on that memorable expedition, which was fraught with such important consequences to both.
The story of the siege of Quebec is already familiar to readers of these pages. The only further reference to that siege necessary to be made in this place is to chronicle the fact that Colonel Carleton was severely wounded in the hand on the plains of Abraham, and was only a few paces distant from his commander when the latter received his death-wound. For his services on that eventful day he was advanced to the dignity of a Brigadier-General. The next important event in his life necessary to record was his accession to the Governorship of Canada, as successor to General Murray. He was already regarded with great favour by the colonists, who had begun to look up to him as a protector. His character and conduct have been variously judged, some attributing his wisdom and gentleness to native goodness of heart, others to a prudent and far-seeing policy. There is no necessity for inquiring too curiously into his motives. Suffice it to say that he was regarded with the highest favour and admiration by the colonists. The Government of his predecessor, General Murray, had, at the outset, been an essentially military Government, and had been the reverse of popular with French Canadians generally. During his regime the French Canadians seem to have been morbidly given to contemplating themselves as a conquered people, and to have been ever ready to avail themselves of any pretext for establishing a grievance. Nor were such pretexts altogether wanting. The civil and criminal law of England had been introduced into the colony by royal proclamation, and Courts of King's Bench, Common Pleas, and Chancery had been established for its administration. Now, the law of England was a system of which the French Canadians knew nothing, and for which they could hardly be expected to have much enthusiasm. Trial by jury was an especial bugbear to them. It was incomprehensible to them that any man who was conscious of the goodness of his cause should wish to be tried by twelve ignorant men; men who had never studied the principles of law, and who were very imperfectly educated. That a suitor should prefer such a tribunal to an erudite judge, whose life had been spent in the study of jurisprudence, was, to the French Canadians of those days, pretty strong evidence that the said suitor had little confidence in the justness of his plea. Moreover, trials were carried on in the English language, of which the French Canadians in general knew little more than they knew of English law. A native litigant was compelled to plead through an interpreter, and not seldom through an interpreter who could be bribed. Even the higher officials of the courts were sometimes appointed for political reasons, and were utterly unfit for positions of trust. It is not too much to say that there were flagrant instances in which judicial decisions were literally bought and sold. General Murray's report on the condition of the colony, published after his return to England in 1766, affords indisputable evidence that the alleged grievances of the French Canadians were not wholly imaginary. The ex-Governor cannot be suspected of any undue prejudice in favour of the native population. He describes the British colonists of the Province as being, with a few exceptions, the most immoral collection of men he had ever known. Most of them, he alleged, had been followers of the army, of mean education, or soldiers disbanded at the reduction of the troops, who had their fortunes to make, and who were not very solicitous as to how that end was accomplished. They were represented as persons little calculated to conciliate the natives, or to increase the respect of the latter for British laws. The officials sent out from the mother country to conduct the public service are described as venal, mercenary, and ignorant. "The Judge fixed upon to conciliate the minds of 75,000 foreigners to the laws and government of Great Britain," says the report, "was taken from a jail." Both the Judge and the Attorney-General were unacquainted with the Civil Law and with the French language. The chief offices of state were filled by men equally ignorant, who had bought their situations for a price. Such a state of things was little calculated to endear British rule to the French Canadians. The picture is a dark one, but hardly darker than the facts justified. And such was the posture of affairs when Guy Carleton succeeded to office as Murray's successor.
He was wise enough to perceive that such a system could not be lasting, and just enough to desire the establishment of a better one. Scarcely had he succeeded to office before he made some important changes among the higher state officials. He deposed two obnoxious councillors, and set up two better men in their stead. He then turned his attention to law reform. Previous to the Conquest, the law in vogue in the Province had been a modification of the Civil Law known as the "Coutume de Paris." This system, abridged and modified so as to meet the requirements of the colony, he set himself to reëstablish. Under his direction some of the leading French lawyers set to work at the task of compilation. Upon the completion of this work he crossed over to England, taking the compilation with him for the approval of the authorities there. He met with strong opposition, and for some time it seemed doubtful whether he would be able to accomplish the object of his mission. He was subjected to repeated examinations before the law officers of the Crown, and before Committees of the House of Commons. Thurlow, the Attorney-General, opposed the measure with all the forensic learning he could summon to his aid. The Mayor and Corporation of London also threw the weight of their influence into the same scale. The great Edmund Burke exhausted against it all his unrivalled powers of rhetoric. Finally a compromise was effected, and the famous "Quebec Act" was passed. It repealed all the provisions of the royal proclamation of 1763, annulled all the acts of the Governor and Council relative to the civil government and administration of justice, revoked the commissions of judges and other existing officers, and established new boundaries for the Province. It released the Roman Catholics in Canada from all penal restrictions, renewed their dues and tithes to the Roman Catholic clergy from members of their own Church, and confirmed all classes except the religious orders and communities in full possession of their property. The French laws were declared to be the rules for decision relative to property and civil rights, while the English law was established in criminal matters. Both the civil and criminal codes were liable to be altered or modified by the ordinances of the Governor and a Legislative Council. This Council was to be appointed by the Crown, and was to consist of not more than twenty-three, nor fewer than seventeen members. Its power was limited to levying local or municipal taxes, and to making arrangements for the administration of the internal affairs of the Province; the British Parliament reserving to itself the right of external taxation, or the levying of duties on imports and exports. Every ordinance passed by this Council was to be transmitted within six months, at farthest, after enactment, for the approbation of the King, and if disallowed, was to be void on its disallowance becoming known at Quebec. Such were the principal provisions of the Quebec Act, under which Canada was governed for seventeen years. There can be no doubt that its enactment was largely due to Carleton's representations, and it is not to be wondered at if, when he returned to Canada in the autumn of 1774, he was received with rapturous enthusiasm by the French Canadians, who made up nearly the entire population of the colony. The Legislative Council, composed of one-third Catholics and two-thirds Protestants, was inaugurated. The "Continental Congress," which was then in session at Philadelphia, made vain overtures to the Canadians to join them in throwing off the British yoke. The French Canadians believed that they had more to lose than gain by a change. They had not even yet much love for British institutions, but they thought they saw a disposition on the part of the Imperial authorities to accord to them some measure of justice, and were not disposed to rebel. They were moreover greatly attached to the Governor who had fought so gallantly on their behalf. "The man," says M. Bibaud, "to whom the administration of the Government had been entrusted had known how to make the Canadians love him, and this contributed not a little to retain, at least within the bounds of neutrality, those among them who might have been able, or who believed themselves able, to ameliorate their lot by making common cause with the insurgent colonies."
A time soon arrived when the fealty of the French Canadians was to be subjected to a stern and an effectual test. On the 19th of April, 1775, the revolt of the American colonies assumed a positive shape, and the skirmish at Lexington took place. The colonists then proceeded to strike what they believed would prove a deadly blow to Great Britain on this continent. American forces under the command of Ethan Allen and Benedict Arnold passed over to Canada, believing that they would find the country an easy prey. Crown Point, which was invested with a very small garrison, was compelled to yield to the invaders. A similar result followed the attack of the Americans on Fort Ticonderoga, and the capture of the only British sloop of war on Lake Champlain gave them entire supremacy in those waters. Then General Carleton manned himself "to whip the dwarfish war from out his territories." He at once determined to recover the forts which had been lost, and proceeded to raise a militia. But when he appealed to the French Canadians to flock to the side of their seigniors in accordance with the old feudal customs for which they professed so much veneration, and which he himself had been instrumental in restoring to them, he found that he could not count upon their aid. The seigniors, indeed, were most of them chivalrous and willing enough, but the peasantry refused to lift hand in a quarrel which was not of their seeking. Much eloquence has been wasted in attempting to prove that the French Canadian habitans refused on principle to rally at this juncture. It has been said that their hearts warmly sympathized with the struggle of the Americans for freedom, and that they believed that to aid Great Britain would be to strike a blow at liberty itself. The facts of the case do not justify any such assumption. Looking back upon that memorable rebellion by the light of the hundred years which have elapsed since its occurrence, there are not many right-thinking persons of British blood who will be disposed to regret its issue. But the "shot heard round the world," of which Emerson so eloquently sings, produced no echo in the hearts of French Canadians. They were simply indifferent. They had no stomach to draw their swords and perform military service in behalf of a cause which did not appeal to their enthusiasm. Whatever sympathies they had were undoubtedly enlisted on the side of the Americans, but these were too weak to impel them to endanger their lives. They had enjoyed an interval of peace, and many of their most pressing grievances had been redressed. They owed a debt of gratitude to their Governor, and they were willing to repay it by passive fealty; but they were as lukewarm as erst were the people of Laodicea. It was in vain that the seigniors mustered their tenants and expatiated on the nature of feudal services, and the risk of confiscation which they would incur by refusing to render such services in this hour of need. They almost to a man denied the right of their seigniors to exact military services from them. In a word, they refused to fight. The Governor was thus placed in an extremity. He had only two regiments of troops at his disposal—the 7th and the 26th. Their combined strength was about 850 men. The British colonists were even less disposed to draw sword than the native Canadians. The American Congress believed the Canadian people to be favourable to their cause, and resolved to strike a blow which should be decisive. They despatched a force of nearly 2,000 men into Canada by way of the River Richelieu, under the command of Generals Schuyler and Montgomery. Another expedition, consisting of a force of 1,100 men, under Colonel Benedict Arnold, was simultaneously despatched from Boston to Quebec by way of the Rivers Kennebec and Chaudière. The campaign was not badly planned. The larger of these forces was to capture the forts on the way from Albany to Montreal. Upon reaching Montreal that town was to be captured and invested, after which a descent was to be made to Quebec and a junction formed with Arnold.