Uncer situation. Excellent as had been both the intentions and the practice of tainty of the British administrators, a note of uncertainty still prevailed with regard to the future of Canada. Apart from the question of the establishment of a popular Assembly, which remained in abeyance in spite of the opinion of the Board of Trade in 1765 (September 2) that such an Assembly might be constituted, the electors to be Roman Catholics and the representatives Protestants, two questions above all called for settlement; the question of the future status in the colony of the Catholic Church, and that of the law which should be administered. Status of With regard to the first, the liberty to practise their religion had been given to the Canadians both at the time of the capitulations of Quebec and Montreal, and again by the final treaty of peace. Nothing, however, had been said with regard to what provision would be made for the Roman Catholic religion in the future. Would the English tolerate the institution of a Catholic bishop, and if not, how was the continuity of the priesthood to be secured? The British Government was unwilling to have the matter discussed in Parliament, and preferred to give an informal recognition to Monseigneur Briand, who had been consecrated Bishop of Quebec in Paris in March, 1766. The position of the Roman Catholic Church was not settled till the Quebec Act, under which the clergy of that Church were to hold, receive, and enjoy their accustomed dues and rights, exemption being given from such payments to those who were not Roman Catholics. Question of The question of the form of law to be administered in form of Canada was one of great difficulty. Three courses were possible. The English law might have been substituted in its entirety for the French. The French law might have been restored throughout; or, lastly, a fusion might have been made of all that was best in either system. At first the intention appeared to be to adopt the first course.1 The Pro1 Ordinance of September 17, 1764. law. clamation of 1763 seemed to contemplate the abolition of the Canadian usages and customs with the rough hand of a conqueror rather than in the true spirit of a lawful sovereign'.' The new subjects, as the French Canadians were termed, however, remained generally in ignorance that the legal system had been altered, and lands continued to be divided as formerly and the estates of intestates to be distributed according to French law. At the same time, when it worked in their favour, the Canadians were acute enough to take advantage of the English law. Such being the state of affairs, the English law officers advised in 1766 that in all personal actions founded upon contract or tort, the substantial maxims of law, which are everywhere the same, should be followed. In suits or actions relating to titles of land, and generally where questions of real property were concerned, they advised that the local customs and usages should prevail.2 The task, however, of evolving a convenient and equitable Different code by means of blending the English with the French laws opinions on form of proved too difficult, and the practical alternative lay between law. the English and French systems. The admission in 1766 of French Canadian jurors, and the permission at the same time given to advocates to plead in French, remedied one main grievance; and in the following year an enactment of Carleton confirming the French laws and customs concerning the tenure, inheritance, and alienation of land further improved the position of the French; but far more was required to put things on a permanent basis. With regard to one point there was general agreement. The English criminal law was recognized to have the advantage both in certainty and lenity, and there was practically no opposition to its enforcement. But with regard to the law relating 1 Report of Attorney-General E. Thurlow, of January 22, 1773. 2 Report of Attorney-General Yorke and Solicitor-General de Grey, of April 14, 1766. Quebec Act. Reasons for refusing an Assembly. to property and contract there was great difference of opinion. Maseres, who was Attorney-General under Carleton, reported strongly against the re-establishment of the whole body of the French law, on the ground that it would involve a reversal of the original intention to assimilate the position of Canada to that of the other British provinces. Maseres was of Huguenot descent, and was to some extent biased by Protestant prejudices. Carleton, on the other hand, was strongly in favour of recognizing the French law on the broad general ground that by every means possible the French Canadians should be made to feel that it was to their interest to remain British subjects. Carleton returned home in 1770 and played a great part in the negotiations which resulted in the Quebec Act of 1774. Under that Act, in all matters of controversy relative to property and civil rights, resort must be made to the laws of Canada. This provision, however, was not to apply to lands granted by the Crown in the English tenure of 'free and common socage', and liberty was given to leave property by will in the forms recognized by either the French or English system of laws. With regard to the criminal law, the English law was to remain in force. The passage of the Quebec Act involved for the time being the renunciation of the idea that the constitution of Canada should be assimilated to that of the American colonies. As late as 17691 the Board of Trade had advised that a means might be found of reconciling rival interests by the establishment of a General Assembly, fourteen of the representatives to be Protestants, chosen from Quebec, Montreal and Three Rivers, and thirteen, if preferred, Roman Catholics, chosen from the country districts. One object of establishing an Assembly was the provision of a revenue, but as relations with the American colonies grew more strained, the arguments in favour of an Assembly may well have seemed less strong. Moreover, the intention had been to secure by this means an immigration of 1 Report of June 10, 1769. English settlers from England and the American provinces; but such immigration showed no signs of taking place. In any case the difficulties in the way were great. To put Roman Catholics and Protestants on an equal footing was to run counter to the religious prejudices of two centuries. But if Attitude of English the English Acts against Catholics were to apply, the result minority. would ensure that a minority of some four hundred would lord it over a population of some seventy thousand. The English settlers, accustomed to the view that Irish Catholics stood on the footing of negroes, had at first no misgivings. The petition, which demanded Murray's recall, claimed the establishment of an Assembly 'as in the other provinces, there being a number more than sufficient of loyal and well-affected Protestants... to form the House'. With great condescension the new subjects were to be allowed to elect Protestants 'without burdening them with such oaths as in their present mode of thinking they cannot conscientiously take'. The popularity of Carleton for a time kept in check the demand. for an Assembly, but, in 1773, when he was in England, the question again came to the fore. This time an attempt was made to secure the adhesion to the movement of the French Canadians. In consequence the Protestant character of the Assembly was no longer insisted upon. The vague demand was made that the Assembly should be constituted' as to your majesty in your royal wisdom shall seem best adapted to secure its peace, welfare, and good government'. The French Canadians, however, were distrustful of their new friends, and, with few exceptions, stood aloof from the movement. Quebec Act. Carleton, who distrusted the English settlers and desired Council under that the French Canadians should be dealt with according to their own notions, brought the weight of his influence to bear in favour of the solution given by the Quebec Act. Under this, it being at present inexpedient to call an Assembly', a Council was constituted for the affairs of the province, to Case for Quebec Act. Objec consist of not more than twenty-three nor less than seventeen members; such Council to have the power to make ordinances for the province. This power, however, did not extend to the levying of taxes or duties, except of such local rates as were required for purely local purposes. No ordinance touching religion, or which constituted a greater punishment than fine or three months' imprisonment, might take effect until it had received the sanction of the home authorities. The provisions of the Quebec Act were considered in the American colonies to be part of a deep-laid scheme against popular liberties, and this view has received some countenance from later American historians. It must be confessed that in 1774 the British Government did not regard with much favour popular Assemblies; and there was a natural inclination to prefer the simple, primitive, new subjects to the self-assertive and critical colonials. Still, there is ample evidence to show that the Act was really considered from the point of view of Canadian interests, nor from such standpoint should it be harshly criticized. It was indeed afterwards maintained that the Act was a political mistake in that it stereotyped the French nationality. It is possible that at this early date something might have been done in the way of anglicizing the people by means of free education taught by English Roman Catholics. But with the experience of the past behind us we may say that attempts at eradicating the French nationality would probably have failed, in which case the political disaffection of subsequent years would have taken a more dangerous character and caused the estrangement of the clergy and the upper classes no less than of the common people. Be this as it may, the numerous drafts of the Bill which have come down to us show that its clauses were the subject of anxious consideration and thought. Granted that prima facie representative government is Assembly, a blessing, political philosophy has taught us that institutions tions to |