A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

[56] See above, p. 60.

[57] The opponents of the Quebec Act maintained that it took away the right of Habeas Corpus. Thus petitions from English residents in Quebec, dated November 12, 1774, complained, in respect to the Quebec Act, ‘That in matters of a Criminal Nature the Habeas Corpus Act is dissolved:’ and again, ‘That to their inexpressible grief they find, by an Act of Parliament entitled an act for making more effectual provision for the government of the province of Quebec in North America, they are deprived of the Habeas Corpus Act and trial by juries:’ and again, ‘an Act of Parliament which deprives His Majesty’s ancient subjects of all their rights and franchises, destroys the Habeas Corpus Act and the inestimable privilege of trial by juries’ (Shortt and Doughty, pp. 414-18). The Government on the other hand contended that before the Quebec Act, the Statute of Habeas Corpus was not in force in Canada, although, both before and after the Act, the Common Law right existed. Thus Wedderburn, the Solicitor-General, before the Quebec Act was drafted but while the subject matter was being considered by the Government, reported, ‘It is recommended by the Governor, the Chief Justice, and the Attorney-General, in their report, to extend the provisions of the Habeas Corpus Act to Canada. The inhabitants will, of course, be entitled to the benefit of the writ of Habeas Corpus at Common Law, but it may be proper to be better assured of their fidelity and attachment, before the provisions of the statute are extended to that country’ (Ib. 300); and in November, 1783, Governor Haldimand reported that he was going to propose an ordinance for introducing the Habeas Corpus Act, ‘which will remove one of the ill-grounded objections to the Quebec Act, for though that law had never been introduced into the province, people were taught to believe that the Quebec Act had deprived the inhabitants of the benefit of it’ (Ib. 499). The point at issue, and it is not free from doubt, was whether the introduction en bloc of the English criminal law into Canada, brought with it ipso facto the introduction of the Habeas Corpus statute. Haldimand passed his ordinance in 1784 under the title of an ‘Act for securing the liberty of the subject and for the prevention of imprisonments out of this province’. The preamble stated that ‘The Legislature could not follow a better example than that which the Common Law of England hath set in the provision made for a writ of Habeas Corpus which is the right of every British subject in that kingdom’.

CHAPTER III
THE WAR OF AMERICAN INDEPENDENCE

Ticonderoga and Crown Point.

The War of American Independence began with the skirmish at Lexington on the 19th of April, 1775. The battle of Bunker’s Hill was fought on the following 16th of June. Between these two dates a forward move was made towards Canada by the American colonists, and the forts of Ticonderoga and Crown Point on Lake Champlain were surprised and taken.

Carleton urges the upkeep of strong forts in North America.

Years before, shortly after taking over the administration of Canada, Carleton had called attention to the dilapidated condition of these forts. In a letter, dated the 15th of February, 1767,[58] he wrote to General Gage, then Commander-in-Chief in North America—‘the forts of Crown Point, Ticonderoga, and Fort George are in a very declining condition, of which, I believe, your Excellency is well informed. Should you approve of keeping up these posts, it will be best to repair them as soon as possible.’ The letter went on to suggest that, in addition to repairing the forts in question, there should be ‘a proper place of arms near the town of New York and a citadel in or near the town of Quebec’, the object being to secure communication with the mother country and to link the two provinces together. Written in view of ‘the state of affairs on this continent’, the letter was statesmanlike and farseeing in a high degree. The writer argued that ‘the natural and political situation of the provinces of Quebec and New York is such as must for ever give them great influence and weight in the American system’. He pleaded, therefore, for strong forts at Quebec and New York, and strong posts on the line between New York and Canada. Thus, in the event of war breaking out, the King’s magazines would be kept secure, the northern colonies would be separated from the Carleton’s policy: (1) adequate defences and garrisons: (2) attachment of the Canadians to the British Crown especially by giving them employment under the government. southern, and delay in transport and difficulty of communication, so dangerous, especially in the early stages of a war, would be averted. In the years which preceded the War of American Independence, Carleton had constantly in view the twofold contingency of war with France and war with the British colonies in America; and there were two cardinal points in his policy, which he never ceased to impress upon the Home Government, on the one hand the necessity for adequate military forces, and adequate forts in America, on the other the necessity for taking such steps as would attach the Canadians to the British Crown.

In November, 1767,[59] he wrote to Shelburne, ‘The town of Quebec is the only post in this province that has the least claim to be called a fortified place; for the flimsy wall about Montreal, was it not falling to ruins, could only turn musketry.’ He went on to show how the French officers who still remained in Canada, and the Canadian seigniors who had served France, had lost their employment through the conquest of Canada, and, not having been taken into the English King’s service, had no motive to be ‘active in the defence of a people that has deprived them of their honours, privileges, profits, and laws’; and again he urged the importance of building a citadel, for which he enclosed a plan, within the town of Quebec. ‘A work of this nature,’ he wrote, ‘is not only necessary as matters now stand, but supposing the Canadians could be interested to take a part in the defence of the King’s Government, a change not impossible to bring about, yet time must bring forth events that will render it essentially necessary for the British interests on this continent to secure this port of communication with the mother country.’

In January, 1868,[60] he wrote again to Shelburne, and referring to his previous letter and to the scheme for constructing a citadel at Quebec, he said—‘Was this already constructed, and I could suppose it impossible for any foreign enemy to shake the King’s dominion over the province, still I shall think the interests of Great Britain but half advanced, unless the Canadians are inspired with a cordial attachment and zeal for the King’s Government.’ Once more he urged that the Canadians had no motive of self-interest to attach them to British rule. The laws and customs which affected their property had been overturned. Justice was slow and expensive. The different offices claimed ‘as their right, fees calculated for much wealthier provinces’; and the leading Canadians were excluded from all places of trust and profit. Give the people back their old laws and customs in civil matters, let them feel thereby secure in their property, take a few Canadians into the service of the Crown, enlist in the King’s forces ‘a few companies of Canadian foot, judiciously officered’, ‘hold up hopes to the gentlemen, that their children, without being bred up in France, or in the French service, might support their families in the service of the King their master,’ and, at any rate, some proportion of the French Canadians would be found loyally attached to the British Government.