isolated institution such as the shire-court may survive and prove of extraordinary importance in constitutional development; but we no longer seek the origins of our greatest constitutional principles or institutions in Anglo-Saxon history. At every step in modern Canada we are forced inevitably back to that romantic failure which in reality triumphed on the Heights of Abraham.

[AUTHORITIES.-The most complete work on the seigniorial system has been done by Professor W. B. Munro in The Seigniorial System in Canada : a Study in French Colonial Policy (New York, 1907); Documents relating to the Seigniorial Tenure in Canada (Toronto, 1908); The Seigneurial System' in Canada and its Provinces, vol. ii, pp. 531 ff., with an excellent bibliography in vol. xxiii, pp. 239 ff. The workings of the system can be followed in J.-Edmond Roy, Histoire de la Seigneurie de Lauzon (6 vols., Montreal, 1897-1907); M. Benjamin Sulte provides records and ordinances in Le Moulin Banal' in his Mélanges Historiques, vol. v (Montreal, 1920).]

CHAPTER IV

THE RÉGIME MILITAIRE', 1759–64

FRENCH colonial possessions on the North American continent only gradually passed under the British flag and the introduction of British institutions was equally gradual. It is best to postpone the constitutional history of those possessions, known in British history as the Maritime Provinces, as it fits in with the general discussion of representative and responsible government, and to continue the history under British rule of the settlements along the valley of the St. Lawrence. After the fall of Quebec in 1759, delay over the final peace made a period of military rule inevitable. This period, known in Canadian history as the régime militaire', did not. leave permanent marks on the development, but it is important that it should be considered for several reasons. Round this earliest point of contact between British officers and Canadian civilians has gathered an unfortunate tradition which needs examination. The actual history has become somewhat obscured and requires disentangling. Finally, within these years sprang up a friendship between the military chiefs and the French-Canadians which cannot be overlooked in the background of evolution.

In 1759 General Monckton, who had assumed command of the forces at Quebec, was granted leave on account of his

1 Nova Scotia in 1713, Cape Breton in 1758, Citadel and district of Quebec in 1759, the remaining French possessions in 1760.

2 * Military rule lasted from September 18, 1759, to the establishment of civil government, August 10, 1764. The peace of Paris was signed February 10, 1763, but the introduction of civil government was delayed, because the terms of the peace allowed eighteen months to any Canadians who might wish to leave the country.

'

wounds, and he appointed the next senior brigadier, James Murray, military governor of Quebec, with Colonel Burton as lieutenant-governor, until the king's pleasure should be known.1 As soon, however, as Montreal capitulated, General Amherst issued a placard' appointing Colonel Burton governor of the administrative district of Three Rivers, and General Gage governor of the administrative district of Montreal. The arrangements of Monckton and Amherst thus continued the three French divisions of government. Murray had already begun his work and made his plans for the district of Quebec, and he was not bound by Amherst's instructions to Burton and Gage. The date and source of his appointment produced in Quebec a type of military rule quite different from that in

Three Rivers and Montreal.

While Murray was penned within the ramparts of Quebec in the months following Wolfe's victory, he appointed one of his officers, Colonel Young, to act as judge in civil and criminal cases within the city and its environs. A little later, on January 16, 1760, he extended the administrative machinery by appointing a seignior, Jacques Allier, civil and criminal judge' for the well-being and profit of the inhabitants of the parish of Berthier and those lying beyond as far as Kamouraska inclusive'.3 In the following October he issued an ordinance establishing a system of military courts. For criminal and the more important civil cases, as well as for petitions and requests, the governor held a court every Tuesday. Here he might act summarily, or he might refer such cases as he thought fit to the military council' or 'council of war' which assembled

1 Murray to Pitt, October 8, 1759 (A. and W. I., vol. lxxxviii); John Knox, An Historical Journal of the Campaigns in North America for the years 1757– 1760, vol. ii, p. 241 (ed. A. G. Doughty, 3 vols., Toronto, 1914–16).

2 Placard from his Excellency General Amherst, September 22, 1760, A. Shortt and A. G. Doughty, Documents relating to the Constitutional History of Canada, 1759-1791, pp. 40 ff. (Ottawa, 1918).

bi-weekly. All minor cases were left for trial to the commandant of the troops in each locality', subject to appeal to the military council if the case pertains thereto and there is reason for it'. Within the district of Quebec the administration of justice thus passed into the hands of British officers. In Three Rivers and Montreal other arrangements were made. When Amherst organized these administrations, he set up courts of first instance composed of French-Canadian militia officers, who were as far as possible to settle amicably all disputes and differences and to execute justice. Cases in which an immediate decision was not possible were to go before the officer commanding the troops in the district. Serious cases and all appeals were to be dealt with by the governor.1 Amherst's instructions to Burton and Gage illustrate his plan and show the spirit in which he acted: Take upon you the administration of the whole, governing the same, until the king's pleasure shall be known, according to the military laws, you should find it necessary; but I should choose that the inhabitants, whenever any differences arise between them, were suffered to settle them among themselves agreeable to their own laws and customs.' 2

if

In October 1761 Gage reorganized the administration of his government, dividing it into five districts with a chamber of justice' in each, composed of French-Canadian militia officers presided over by a captain. The court sat fortnightly for civil and criminal cases, and had powers to inflict corporal punishments, to imprison, or to fine. The more serious cases, such as felony or murder, were sent to trial before British courts martial, which sat monthly for each group of two subdivisions. All decisions were subject to the approval of the governor, who might lessen or excuse the punishment, but might not

2

1 Ibid., pp. 40 ff.

Amherst to Burton, Camp of Montreal, September 16, 1760. Colonial Office Records, M. 216, pp. 250 ff. (Canadian Archives).

increase it.1 In the following year Haldimand, who had succeeded Burton at Three Rivers, organized a similar scheme. Conditions are well illustrated by the fact that a proclamation suspended the ordinary administration of justice from August 7 to September 15, in order that those in charge might attend to their duties on the farms.2

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6

When an estimate is made of the 'régime militaire', it is possible to accept the statement of a modern French-Canadian historian: the archives prove that the military régime, instead of being capricious and harsh, was gentle and paternal." We can afford to neglect the sweeping attacks on the period and such statements as that the Canadians spurned the booted and spurred legalists placed among them', preferring to settle their disputes before the priests. The animosities of later years have unfortunately coloured the history of this period. a matter of fact there was plenty of law; Murray noted the general ‘litigious disposition' of the people, and Haldimand complained that his captains of militia were worried by the extraordinary love for litigation and by the incompetence of Canadian lawyers."

As

Leaving out of consideration the private manuscripts of the period, we find from the official documents of the time that the predominating administrative aim was conciliation through equity in a mixed régime of martial and French civil law. This spirit went so far that British officers used the French language in speech and writing when they desired to communicate with this downtrodden people! Gage himself bore

1 G. Doutre and E. Lareau, Le Droit Civil Canadien, pp. 503 ff. (Montreal, 1872). 2 Ibid., p. 533.

3 J.-Edmond Roy, L'Ancien Barreau au Canada, p. 70 (Montreal, 1897). 4 'Les Canadiens repoussèrent les juges éperonnés ', &c., F. X. Garneau, Histoire du Canada, vol. ii, pp. 372 ff. (Québec, 1852).

5 Shortt and Doughty, op. cit., p. 53.

Haldimand to Amherst, June 22, 1762, Haldimand Papers, B. 1, 192 (Canadian Archives).

7 See the documents quoted and commented on in M. B. Sulte, ‘Le Régime