become fit tools for his purpose. They will therefore at all times, while in their senses, be solicitous and anxious in endeavouring to guard against incurring his displeasure. The minister has nothing to do but issue his order: those individuals have nothing to do but obey. He will find the inhabitants at his disposal; because the inhabitants who are at his disposal are creatures of the minister. In my apprehension, Sir, if the King remained the sole legislator of the country, the condition of it would be better than when the governor is put in his place to exercise that power.(Here Mr. Dunning paused a long time.)

I should have been sorry to have forgotten the avowed purpose of bringing in this bill. It is no less than to exercise, by assuming, for the purpose of exercising it, the dispensing power which, hitherto, is claimed only by the great pontiff, the pope. We are to take his place; we are to regulate, model, dispense with the King's conscience. The King, thirteen years ago, give a constitution. The King, upon that occasion, gave encouragement to future settlers. Though the King is said to be the sole legislator, it is a strange inconsistency, that he should be hampered by his own legislation. Some doubts have arisen upon this part of the case, for want of looking forward; and the consequence is, when any temporary inconvenience arises, then a breach of the King's promise-a breach of the King's compact, is talked of: but is it fit, is it decent, that the King's word should be brought into question? But somebody else should do it for him! The King would be thought to act an unbecoming part if, in violation of his promise, he were to take from them their former constitution, and give them a different one; but it is proper enough for Parliament to do that! Sir, how comes this to be so? Have gentlemen a precedent to produce, to prove that it is proper for Parliament to do it, and not proper for the King himself to do it? But is it not, at the same time, fit that the promise should be kept? Ought you not, upon the principle of strict justice, to make some provision for persons coming to the place upon promise that the English laws should be continued, who find out that they have got into a country governed by a despotism;-that they have got into a country where the religion they carried with them has no establishment?-that they have got into a country where they are to wander throughout an immense extent of territory, or to find their way back again as they can; which they will do, when they consider the treatment they are to meet with if they remain there?

Sir, the bill professes ostensible good, but is pregnant with ostensible mischief. It is not adopted or avowed by anybody, abroad or at home. All the answer the honourable gentleman received to his question was, "this is a bill that came from the House of Lords." If that circumstance alone is sufficient reason for passing it, without any argument, to be sure the bill is so far entitled to the concurrence of this House; but if something more like a reason is thought necessary, I shall be glad to hear it; I shall be glad to have a ground to change my opinion. Until then, Sir, I shall certainly give this bill a decided negative.

The Attorney-General [afterwards Lord Thurlow].-. . . .With regard, Sir, to the rest of the inconveniences: we have been told, that this bill proposes to take from our fellow-subjects of Canada a constitution, which has already been given, and to place them under a despotism, unfit to be established in any province belonging to Great Britain. The articles mentioned in support of this assertion are, the religion and civil law of the Canadians being established at Quebec, and the political government formerly in Canada being continued there. I will say one word, if the House will indulge me, as to the taking away the right formerly given. Canada was a country that had been held by the French for above two hundred years before our conquest of it. It had been taken from the people of France by the King of France, and put under his immediate government, for above a hundred years before it was taken by our people. At the time of the conquest, with 120,000 souls, if I recollect right, there were about one hundred and fifty of those of the order of noblesse. The original form, not of the government, that is not said, but the original form of civil

justice, under which they lived (using the word "civil" in the largest sense, for it took in both civil and criminal law), was taken from them; but there was very little of the law contained in the Parisian book carried over to the country. The reason is exceedingly obvious, because, in the establishment of a country totally new, differing in all particulars from the country of old France, it would have been the most enormous of all cruelties to have carried over a law, from the meridian of Paris, in order to put it into immediate execution in a raw, unformed province. So much as was carried over appears to have received very considerable alteration from the legislature which the King of France established there. The legislature consisted of the governor and of the council, which they called the superior council, and in which the intendant of police bore a principal part. Beyond the authority which he had as a magistrate, and as the president of the council, he had great independent authority in making laws of police; he had great independent authority in being sole judge of all causes that related to the revenue; and under that establishment the province remained for ninety or one hundred years, before it was taken by the English. When it was taken, gentlemen will be so good as to recollect upon what terms it was taken. Not only all the French who resided there had eighteen months to remove, with all their moveable effects, and such as they could not remove, they were enabled to sell; but it was expressly stipulated, that every Canadian should have the full enjoyment of all his property, particularly the religious orders of the Canadians, and that the free exercise of the Roman Catholic religion should be continued. And the definitive treaty of peace, if you examine it as far as it relates to Canada, by the cession of the late King of France to the Crown of Great Britain, was made in favour of property; made in favour of religion; made in favour of the several religious orders. In this situation it was, that the Crown of this country was called upon to form a constitution for Canada: yet, something has been thrown out, as if it was a favourite idea of certain men of this country, that the Crown should be considered as the legislator of a country newly conquered. I will not run through all the authorities, and all the arguments, which are common-place upon the subject; but I have always considered the English constitution, upon that point, to be this, that what was conquered by the arms of England acceded to the English sovereign, which is as much as to say, to the King, Lords, and Commons of England. I have always understood, also, that it was under that authority, and in conformity with the rule and measure of law, that in every instance, through every period of English history, the King has given to newly-conquered countries their constitution; subject to be corrected by the joint interposition of the King, Lords, and Commons of this country; and that such constitution might be reformed, by correcting the ill advice, if any ill advice had been given, under which the King had acted, in giving them a constitution, upon the event, and at the moment, of the conquest.

Then, Sir, the question occurs-upon the conquest of this country, what was it incumbent to advise the King to do with respect to it? I have heard a great deal of the history of the famous proclamation of 1763; which, though not an act of Parliament, fares pretty much as ill as this proposed act appears to do; for I think it meets with nobody to avow it. The proclamation certainly gave no order whatever with respect to the constitution of Canada. It certainly, likewise, was not the finished composition of a very considerable and respectable person, whom I will not name, but went unfinished from his hands, and remained a good while unfinished in the hands of those to whom it was consigned afterwards. It professed to take no care of the constitution of Canada; it states all the acquisitions, both of the peopled countries and barren territories-the latter being many hundred times larger than the former-which were made in the course of the last war; and, speaking of them all in general, it declares to mankind, that his Majesty thought proper to divide them into certain distinct and separate governments; that it was in his Majesty's contemplation to give them a constitution, like that which had been given to the other colonies,

as soon as the circumstances of the colony would admit of it; and it promised to settlers, expressly to invite them to settle, that, in the meantime, they should have the benefit of the laws of England. So ran the proclamation. Now, Sir, a proclamation conceived in this general form and applied to countries the most distant, not in situation only, but in history, character, and constitution, from each other, will scarcely, I believe, be considered as a very well studied act of state, but as necessary immediately after the conquest. But, however proper that might be with respect to new parts of such acquisitions as were not peopled before, yet, if it is to be considered according to that perverse construction of the letter of it; if it is to be considered as creating an English constitution; if it is to be considered as importing English laws into a country already settled, and habitually governed by other laws, I take it to be an act of the grossest and absurdest and cruelest tyranny, that a conquering nation ever practised over a conquered country. Look back, Sir, to every page of history, and I defy you to produce a single instance, in which a conqueror went to take away from a conquered province, by one rough stroke, the whole of their constitution, the whole of their laws under which they lived, and to impose a new idea of right and wrong, of which they could not discern the means or the end, but would find themselves at a loss, and be at an expense greater than individuals could afford, in order to inform themselves whether they were right or wrong'. This was a sort of cruelty, which, I believe, was never yet practised, and never ought to be. My notion, with regard to this matter, I will venture to throw out as crude and general. To enter into the subject fully, would require more discussion than the nature of such a debate as this will admit of. My notion is, that it is a change of sovereignty. You acquired a new country; you acquired a new people; but you do not state the right of conquest, as giving you a right to goods and chattels. That would be slavery and extreme misery. In order to make the acquisition either available or secure, this seems to be the line that ought to be followed-you ought to change those laws only which relate to the French sovereignty, and in their place substitute laws which should relate to the new sovereign; but with respect to all other laws, all other customs and institutions whatever, which are indifferent to the state of subjects and sovereign, humanity, justice, and wisdom equally conspire to advise you to leave them to the people just as they were. Their happiness depends upon it; their allegiance to their new sovereign depends upon it. Sir, what happened at the conquest? This proclamation being sent out in the manner mentioned, was not addressed to the Canadians. If it be true, that his Majesty may, according to the principle of law, or pursuant to the history of the law, of this country, universally and uniformly-(there is not an exception to the contrary)-give new laws to the country, in what manner is that to be done? By an instrument not addressed to them? By an instrument, so far from adding anything to their laws, not mentioning them? But, it is said, they generally did understand, that such should be their constitution, without reference to them in particular. I wish gentlemen would go back to the proclamation in 1763, and I would ask them from what expression it is, that either the Canadians can discover or English lawyers advance, that the laws of Canada were all absolutely repealed, and that a new system of justice, as well as a new system of constitution, was by that instrument introduced. Sir, the consequence of that proclamation was, that commissions were granted to the governor, in the manner they were granted to the governor of New York on a former occasion. The difference between the establishment of New York and the establishment of Canada was, as the difference of 1,700 and 120,000. It is true, there was likewise a commission of admiralty given in the English form; and a variety of other articles, known to antiquarians, not known in Canada. There was also a commission of oyer and terminer. The honourable and learned gentleman who spoke last made an objection to repealing all the present existing commissions. I do not know whether it had occurred to 1 See No. XXIII. Lord Mansfield's Judgment.

him to read the present existing commissions. If it had, I think he would not hesitate much upon repealing them; because the general commissions of oyer and terminer, etc., are temporary. The other commissions are, one to the court of King's Bench, and another to the court of Common Pleas. The commission to the court of King's Bench is to inquire, by the oath of good and lawful men of the country, into all crimes, causes of actions, and upon issue; jumbling together the criminal and civil jurisdiction of the country. They were framed, I believe, in Canada. How they came to be so framed, I cannot imagine. The first thing discovered was, that they were impracticable; not only impracticable with respect to the people, but impracticable with respect to the commissions themselves. The people were so ignorant, not only of the form of our law, but with respect to personal actions, that it was totally impossible to execute them. If any dispute arose, there was no instance of the Canadians resorting to the English courts of justice; but they referred it among themselves, for among themselves only could they find any idea of what they had been used to. I would ask any gentleman, whether, if the thing had been done according to some men's opinions, they could have afflicted any country with a greater curse, than an intricate system of laws, which they could not understand the terms or meaning of?

With regard to the criminal law of the country, in the first place, it is more simple, in the next place it is more compulsory; so they did, in point of fact, find their own way. The first thing that happened which I recollect in the history of Quebec, was, that the grand jury desired to have all the accounts of the province laid before them, and, in the next place, there were some very laudable, good Protestants among them, who desired that the Popery laws should be carried fully into execution. They lodged a general presentment against all the inhabitants of the colony for being Papists.

With regard to the civil laws, the whole was overturned. In their tenures, when any man found himself wronged by the French laws, he went to an English attorney, to know how to get it righted. If wronged by the English laws, he was told, that a proclamation was no law. The consequence was, that the King lost all profit from tenures; and in many other articles, such as transmutation of property, they were unwilling, because they had not the benefit of the English laws, to pay any thing to the King.

The state of confusion the country was reduced to, and individuals were reduced to, was beyond all manner of description. In this situation they remained uncorrected during all this compass of time; and now the present bill is upbraided, because it does not adopt a trial by jury, which necessarily includes the form of English actions, in a case where it would be destructive to the peace and happiness of the country. If it would make them happy, undoubtedly let us give them English laws. If the English laws would be a prejudice to them, it would be absurd tyranny and barbarity to carry over all the laws of this country, by which they would lose the comfort of their property, and in some cases the possession of it. As far as that goes, I consider it merely as a gift of the conqueror to the conquered people, whom he does not mean to treat cruelly. The criminal law stands as in England. I have observed many things exceedingly strong which have, in my poor opinion, prejudiced the Canadians against the bill; but as to the criminal law, it is certainly liable to none of the objections now urged.

The next article is with regard to religion. To take away religion is what nobody wishes. What is to be substituted in the place of it? Why, a general toleration, says my learned friend, without any kind of establish ment; or if an establishment, that of the church of England; or that the church of England should at least go pari passu with the church of Rome. Taking it in either of those views, I fairly own, I differ very much in opinion with regard to the law of this country. By the first of Elizabeth, I take it that there is no reason whatever, why the Roman Catholic religion should not have been exercised in this country as well as in that; confining

it entirely to that act, I know no reason to the contrary. The 37th article of our religion speaks in such language, that the poorest Roman Catholic, who had any sense, might use it just as much as the warmest Protestant; for the language by the act, and article, is only this, that no foreigner whatever should have any jurisdiction, power, or authority within the realm: but there is nothing in the act to prevent a man believing the infallibility of Popery, if he thinks proper to believe it. It may refer to any church in the known world. I take the act of parliament to be purely declaratory of that which is the law-of that which must be the law, in every sovereign state under heaven. Then as to the right of the clergy to their dues; the right of the bishop to his dues-these rights do not extend to his ecclesiastical functions; they extend only to that maintenance which he was possessed of before, and which was small enough before. In lieu of tithe, there was a thirteenth paid to the clergy. The bishop has always lived in a seminary; the see was not sufficient, in point of effects, to maintain him: but observe in what manner his rights are reserved. They are reserved to be exercised only with relation to such as choose to be Catholics. Nobody is compelled to be a Catholic: they are rather invited not to be Catholics, by having an exemption held out to them. If that be the sufficient performance of the stipulation in the treaty of peace, and if the country is ready to accept of it eo nomine, gentlemen should make no objection to it. It is the very least that could have been given either to humanity or justice; considering them as having stipulated for that religion at the time. If I had had to prescribe what was to be given them, I should, instead of stripping the Roman Catholics of their religion, which was the religion of all temporal and all judicial authority, have thought myself bound in conscience and humanity to have allowed the religion, with one degree more of establishment, if it must be called establishment; I mean with one degree more of maintenance than it had before.

The next objection is that which relates to the governor and council. I could wish that those gentlemen who object to the legislature would be pleased to substitute something in the place of it. I have never yet heard the most sanguine of those who desire to assimilate the government of Canada to the constitution of Great Britain say, it is fit to give the Canadians a governor, council, and assembly; but if it is not fit, what kind of government would you reserve for them, preferable to the one chalked out by the bill before us? Do not let us amuse ourselves with aggravating the possible consequences which may befall the wisest constitution in the world. But how is it to be carried into execution? Why, by drawing as many of the Canadians as it is possible to do with safety to the sovereignty of Canada, into that assembly; by making it a somewhat better thing than the form of their present constitution. At present, it consists of a governor and council, with authority to make laws, which do not affect the life or limbs of any person; in which every law that has been thought necessary has been brought under a doubt, by the form in which the authority is conveyed; for if they are enabled to make only such laws as do not affect the life or limbs of any person, what law does not come within one of those bounds? It is meant to give them a more active constitution. It is confessed, on all hands, that this is essentially necessary, and that it is impracticable to put it in the form which other gentlemen seem to wish.

With regard to the question asked by the honourable gentleman, whether this is to be a permanent constitution?-whether it is wished there should be so rough a form of government established in any English province whatever?-I can only say, that unless the present government be not only objected to, but the objection so stated as to point out some period of time in which it is fancied to be right to create the assembly which is now confessed to be wrong, I do not see how it would be possible, with the fullest purpose of doing it, to assimilate that constitution, in point of form,to this. But it is to be assimilated by a new clause, to be added to the present bill! If you were to give them a very short duration of time, every body knows that the same argument against assemblies would go to the short time to be prefixed. If the idea were to make the law to last