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CHAPTER VIII

THE COMING OF REPRESENTATIVE

GOVERNMENT

IF the American revolution was influenced by the Quebec Act the revolution in its turn influenced Canada. Canada lost the territories south and west of the great lakes which had been included in the province. Arbitrary government was accentuated during the war. The progress of hostilities and the peace of 1783 brought into Canada a crowd of loyalists, who created a new situation with their just claims on a home under the British crown. Their advanced political thought, their experience in popular institutions, and their objections to arbitrary government not a whit removed from those of the triumphant colonists were bound to upset such equilibrium, in political, social and religious life, as existed in Canada. The American revolution made a new constitutional development inevitable.

When the revolutionary war was over, the boundaries remained to some extent unsettled and Great Britain held the western trading posts till 1794, hoping that the United States would in some way compensate the loyalists. The new boundary was defined in a long and detailed clause of the treaty,' but imperfect maps led to a series of boundary disputes which are best considered here. The north-west angle of Nova Scotia was exceedingly hard to find or to define, and a line due west from the Lake of the Woods to the Mississippi did not at all come near that river. It was only in 1818 that a line was agreed on, and the 49th parallel of north latitude became the boundary line west of the Lake of the Woods, while that between Maine and New Brunswick was not settled till the

1 Kennedy, op. cit., pp. 167 ff.

Ashburton Treaty of 1842.1 The American wedge' thus created was a feature against federation in 1867.

Owing to the progress and issues of the war, the Quebec Act was almost a dead letter, and students are thus robbed of an opportunity to watch an interesting constitutional experiment completely at work. The political institutions of Canada did not pass unscathed through the ordeal. Carleton, who had returned to Canada in 1774, began with a clean slate, as the Quebec Act swept away all ordinances relating to civil government and the administration of justice before May 1, 1775. The revolutionary war made him more than ever careful. He organized in April 1775 a temporary court of common pleas, but he had no intention of being either rash or communicative. He withheld his instructions and concealed concessions, lest the seigniors should be alienated in a difficult situation which rendered the proclamation of martial law necessary. His hands were full not merely with the war situation in Canada but with dispatches from home. The possibilities of French-Canadian assistance, as a return for the grant of the old laws and customs, now loomed up. Carleton's former estimates of the situation were recalled, and he was asked to furnish at first three thousand and later six thousand Canadian troops.5 When at length disappointment, invasion, and intrigue allowed a resumption of civil government, Carleton was as far from concessions as ever.

Civil jurisdiction was organized, July 23, 1776, in the district of Quebec, and in the following August a court of

1 For a discussion (with detailed references) of the various boundary problems, see W. Houston, Documents illustrative of the Canadian Constitution, app. A, B (Toronto, 1891).

2 Quebec Gazette, April 27, 1775.

3 See above, pp. 55 ff.

4 Masères, Additional Papers concerning the Province of Quebec (London 1776), p. 170 (Proclamation of June 9, 1775).

5 Dartmouth to Carleton, July 1, 1775, State Papers, Q. 11, p. 152; same to same, July 24, 1775, ibid., p. 182.

• Shortt and Doughty, op. cit., pp. 674 ff.

appeal was set up consisting of the governor and council.1 Early in 1777 the civil and criminal courts were reorganized and their proceedings regulated. These ordinances reproduced essentially the system at work between 1770 and the Quebec Act; but civil cases were withdrawn from the king's bench, where theoretically English law prevailed, and the optional use of juries to decide facts was discontinued, provision, however, being made to hear evidence according to English law. Carleton maintained that juries would spoil his regulations, and a motion in their favour was voted down.3 Captains of militia were revived as coroners and peace officers throughout the parishes. The governor and council acquired a judicial power which, added to their executive and legislative functions, recalled the authority of the old sovereign council. The very name of jury was ruled out and French-Canadians resumed local administrative functions. The French note was distinct throughout. American conditions reacting on the province raised a storm which was long and bitter. Carleton's estimate of his plans is noteworthy these ordinances have been framed upon the principle of securing the dependence of this province upon Great Britain, of suppressing that spirit of licentiousness and independence that has pervaded all the British colonies upon this continent, and was making, through the endeavours of a turbulent faction here, a most amazing progress in this country.' 4

The storm began early with petitions from the traders, and gathered strength at the period when Haldimand was brought to book for disobedience to official orders. In the reprimand, the privy council referred the whole subject of the administration of justice to the governor and council, and asked for a report. The administration became divided on definite racial lines. 1 Ibid., pp. 672 ff. 2 Ibid., pp. 679 ff.

3 Minutes of the Legislative Council, D, p. 13.

4 Carleton to Germain, May 9, 1777, Shortt and Doughty, op. cit., p. 676. 5 See above, pp. 53, 56.

Haldimand inherited Carleton's outlook and training. He had no experience as a civil governor and conditions made him suspicious and nervous. He feared changes and he supported the narrowest terms of the laws and ordinances. Carrying the majority of his council with him he crushed every movement in favour of English commercial law and the writ of habeas corpus. Professing an entire indifference to the form of government, he considered the rigid interpretation of the Quebec Act as ideally adapted for Canada.1 When the war was over and the peace signed, the party in the council opposed to arbitrary rule grew stronger. Led by two imperial officials, LieutenantGovernor Hamilton and Hugh Finlay, the deputy postmastergeneral, they succeeded in forcing Haldimand to grant the substance of habeas corpus. After Haldimand's departure, the new policy enjoyed a brief temporary triumph. In 1785 an ordinance was passed granting the right of trial by jury in civil cases and in personal actions for damages. There, however, the encroachment on the scheme of the Quebec Act stopped. Hamilton, the lieutenant-governor, was dismissed from office, and a successor was found in Brigadier-General Hope, one of Haldimand's right-hand men, on whose zeal and discretion the king relied to put down party spirit.3 At once there was a reversion to the old policy. It might thus appear that the American revolution was about to leave an unfortunate legacy to Canada of arbitrary and bureaucratic government, but it produced in reality a change which might not otherwise have taken place until modern times. With the coming of the loyalists new forces began to work. At first small and inarticulate and only used to support older positions, they at length

2

1 Haldimand to North, October 24, 1783, Shortt and Doughty, op. cit., p. 737. 2 Ibid., pp. 780 ff. Sydney to Hope, August 20, 1785, State Papers, Q. 25, p. 35 (Canadian Archives).

3

4 Hope to Sydney, November 2, 1785, Shortt and Doughty, op. cit. pp. 793 ff.

became strong enough to produce developments whose form lasted for half a century and whose principles remained permanent in the constitution.

When Carleton returned to Quebec late in 1786 as Baron Dorchester, he faced a situation in which the old internal difficulties had become more complicated and those outside more serious. France was standing on the threshold of a movement destined to rock the foundations of the civilized world. In the United States, one of the great new political parties was full of hatred for Great Britain and of resentment against its opponents because Quebec had not been added to the triumphant colonies. In Quebec itself every old sore lay open. In addition, a newer Canada was being carved out of the virgin forest by those who had passed through dark waters to new homes in a French province. Petitions and movements for change had continued intermittently from 1774, but after the conclusion of the war a new series began, more concrete and nore emphatic. The financial situation of the province had become precarious and once more the prospect of a house of assembly loomed up. Naturally the French-Canadians protested, but the scheme took form. All the older points of vantage were maintained, but there were notes of peace. The proposals included 'new' as well as 'old subjects', and a recognition that the concessions to the Roman catholic church were permanent. On the other hand, the repeal of the Quebec Act was demanded.1 There was also an important new addition to the statement of claims. The coming of the loyalists was emphasized and the fact that the régime of a French feudal province was hardly likely to command their adherence or sympathy. On their side the French-Canadians recognized the essence of the Quebec Act, when they protested that their only desire was to continue as before the conquest.2 Before

1 Petition of November 24, 1784, ibid., pp. 742 ff.

2 Ibid., p. 766.

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