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the promise given? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assurred them of the constitution under which they were to live.

The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April, 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should admit-You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called: the promise imports the contrary; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice; not an interposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called; it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly.

We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island. of Grenada-in general to all whom might concern-that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King.

Therefore, though the right of the King to have levied taxes on a conquered country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the findng of the verdict, paid in Barbadoes and all the other Leeward islands; et by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is verted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the bject of these letters patent of the 26th of July, 1764, it can only now be one, to use the words of Sir Philip Yorke and Sir Clement Wearg, "by the assembly of the island, or by an act of the Parliament of Great Britain."

The consequence is, judgment must be given for the plaintiff.

XXIV

DEBATES IN THE BRITISH PARLIAMENT ON THE QUEBEC ACT, 17741

[Trans.: Wright, Cavendish's Debates on the Canada Bill (London, 1839].

Lord North-The honourable gentleman next demands of us, will you extend into those countries the free exercise of the Romish religion? Upon my word, Sir, I do not see that this bill extends it further than the ancient limits of Canada; but if it should do so, the country to which it is extended is the habitation of bears and beavers; and all these regulations, which only tend to protect the trader, as far as they can protect him, undoubtedly cannot be considered oppressive to any of the inhabitants in that part of the world; who are very few, except about the coast, and at present in a very disorderly and ungovernable condition. The general purpose is undoubtedly to give a legislature to that country. It was very much, I believe, the desire of every person, if it were possible, to give it the best kind of legislature; but can a better legislature be given than that of a governor and council? The honourable gentleman dislikes the omitting the assembly; but the assembly cannot be granted, seeing that it must be composed of Canadian Roman Catholic subjects, otherwise it would be oppressive. The bulk of the inhabitants are Roman Catholics, and to subject them to an assembly composed of a few British subjects would be a great hardship. Being, therefore, under the necessity of not appointing an assembly, this is the only legislature you can give the Canadians, and it is the one under which they live at present. The governor and council really have been the legislature there ever since our conquest of it, and it is now put under some regulation. Hitherto, France has conducted the business-that is all the difference; if we do nothing, it must remain in the hands of the governor and council. The question is, whether, so regulated, this is not better. All the other colonies have been governed by a governor and council; it is not, therefore, so totally anomalous. The honourable gentleman objects to the want of a quorum. It is only giving full notice to all whose duty it is to attend, and when they do attend, things are to be decided by the majority, as in all other assemblies.

Now, Sir, with regard to giving French law-if gentlemen will remember, the most material part of the criminal law is to be according to English law. The civil law of Canada certainly is to be the French law; but, Sir, I understand the establishing of these laws to be given as the basis upon which the governor and legislative council are to set out. Sir, you would not send the governor and council to choose their own constitution to choose their own laws entirely. You must tell them from what laws they are to take their departure. It has been thought better calculated to secure the happiness of Canadians, and more beneficial for all who live in the country, that they should have the civil law of Canada, and not that of England. If the Canadian civil law is incompatible with the present condition and wishes of the colony, the governor and council will have power to alter it. But there must be a general basis; there must be a law established, ready to be amended and altered as occasions shall

1 The Quebec Act was introduced in the House of Lords on May 2, 1774, by Lord Dartmouth, President of the Board of Trade and Plantations. It passed without opposition on May 17. In the House of Commons it was debated from May 26 to June 13. During these debates several witnesses were examined, including Carleton, Chief Justice Hey and Maseres, and some minor amendments were made.

The debate in the House of Commons was begun by Thomas Townshend (afterwards Viscount Sydney), who accused the Government of lukewarmness and delay in relation to Canadian affairs. Lord North defended the measure through all its stages until it passed the House of Commons on June 13 by a majority of twenty-six in a house of seventy-six. It was finally passed in the House of Lords on June 16, by a majority of nineteen in a house of thirty-three, and received the Royal assent on June 22. Lord Chatham opposed the bill in a violent speech, of which only an outline has been preserved. (See Chatham's Correspondence, IV, pp. 351 ff.)

A

The Coutume de Paris codified in 1510 and introduced into Canada in 1664. detailed report on the civil law in force in French Canada was drawn up at Carleton's request and published in London in 1772.

arise, and as the circumstances of the colony shall require. It has been the opinion of very many able lawyers, that the best way to establish the happiness of the inhabitants is to give them their own laws, as far as relates to their own possessions. Their possessions were marked out to them at the time of the treaty; to give them those possessions without giving them laws to maintain those possessions, would not be very wise. The French law may be worse than the English, but the particular portions for which we have the highest value ourselves, are a part of our political law, and a part of our criminal law. These may be acted on in Canada, seeing that the criminal law has been submitted to for nine years, and is, I dare say, approved of by the Canadians, because it is a more refined and a more merciful law than the law of France.

As to the free exercise of their religion, it likewise is no more than what is confirmed to them by the treaty, as far as the laws of Great Britain can confirm it. Now, there is no doubt that the laws of Great Britain do permit the very full and free exercise of any religion, different from that of the church of England, in any of the colonies. Our penal laws do not extend to the colonies; therefore, I apprehend, that we ought not to extend them to Canada. Whether it is convenient to continue or to abolish the bishop's jurisdiction, is another question. I cannot conceive that his presence is essential to the free exercise of religion; but I am sure that no bishop will be there under papal authority, because he will see that Great Britain will not permit any papal authority whatever in the country. It is expressly forbidden in the Act of Supremacy.

I dare say, Sir, I have not given an answer to many of the questions put to me by the honourable gentleman; nor do I recollect whether I have explained what I take to be the purpose of the present bill. It certainly gives to the Canadians many of their laws and customs; which laws and customs can be safely given to them. If alteration in those laws and customs should be deemed necessary, there is a legislature established, which will be ready to make those alterations. In a general plan of government, it is not possible to enter into a detail of what is proper, or what is improper, in Canada: it must be left to the legislature on the spot to consider all their wants and difficulties. The present bill will give laws, the principal laws, from which the legislature ought to take their departure-criminal law, civil law, political law. That is the purpose of the bill. It has appeared to be the best plan that could at present be devised; and it requires and deserves the immediate attention of the House. The honourable gentleman asks, why, before it was introduced into the House of Lords immediately after Easter, full notice was not given, that it would come down here? Sir, we are not to blame for the omission: there is, however, abundance of time to go through the bill, to correct, to approve, or to amend it. His Majesty's message recommended Parliament to take up the subject: and as soon as it was in a fit state to be laid before the other House, I am confident the noble lord brought it forward.

Sir, the honourable gentleman proposes to limit the bill in point of time. That will be a proposition for the committee to consider: it is not now proper to be entertained. If you mean to have the bill exist even but for a year, you will read it now a second time. The question of duration is a question that will come on hereafter; it is not a proper one for the present moment. I own I shall not be for a limitation, and I shall be ready to submit my reasons; but if the committee should think proper to alter it, I must acquiesce, rather than leave the Canadians without any legislature at all. Better far to give them some legislature, than leave them for three or four years in their present situation.

The honourable gentleman put a question to me concerning a revocation of the judges' commissions. Certainly, there can be no intention to remove any of those officers who are now there. It is a happy circumstance for this country, that gentlemen of their merit should have been willing to go and establish themselves there. It is a happy circumstance for the Canadians, that they are there established: but as the form of the courts of justice is not agreeable to the practice in England, it must be altered;

which will make a revocation of their commissions necessary. I dare say, and I am sure I hope, they will be given to the same individuals, who have exercised their functions so honestly. Nothing, I am confident, will stand in the way of it, but the wishes of the gentlemen themselves. I have not heard that any of them desire to quit their situations; and it most assuredly is neither the interest of his Majesty, nor that of his subjects, to desire them to quit the posts they so honourably hold. . .

Mr. Dunning-Sir, the bill is as extensive as any bill that was ever offered to the consideration of Parliament. Its direct object is to take from a large number of the King's subjects that constitution which was given to them ten years ago; to take that constitution from them, and to give them another in the place of it. Have, Sir, those subjects expressed a wish to part with what has been given them? Have they expressed a wish to have the one which is to be given in the place of it? I apprehend no such wish has been communicated to this House; and if any servant of government in that country has sent home a representation to that effect, such representation is equally unknown to me, and I apprehend to the rest of the members of this House; but if any such representation is intended to be made, I should wish this House to be acquainted with it.

However, let us see, Sir, what is the form of government, for the sake of which this bill is to be supported. The form of government is this. The Roman Catholic religion is established by law. All the arguments urged by the noble lord, tending to shew that, de jure, the Roman Catholics are entitled to a full toleration, I admit to be well founded in law; but does that imply, that the same toleration should be given to them every where? Upon the last part of the case, different gentlemen may entertain different opinions. My opinion of toleration is, that nothing can be more impolitic than to give establishment to that religion which is not the religion of our own country. Among the circumstances that unite countries, or divide countries, a difference in religion has ever been_thought to be the principal and leading one. The Catholic religion unites France, but divides England. Without going further into the subject, it suffices for me to say, that the religion of England seems to be preferable to the religion of France, if your object is to make this an English colony. When one sees that the Roman Catholic religion is established by law, and that the same law does not establish the Protestant religion, the people are, of course, at liberty to choose which they like. Permission is given to the governor, to do what he will with the Protestant religion; and this, to those who are gone there in pursuance of the proclamation, may give encouragement; but the bill gives them none. Are we, then to establish the Roman Catholic religion, and tolerate the Protestant religion? I conceive so; for this distinction is founded in the terms of the bill.

The noble lord says, the free exercise of religion was promised by the treaty of peace-was promised by the proclamation. Does the noble lord say, that this bill gives them nothing more? If the noble lord will do me the favour of casting his eye a little down the same page, he will see that the clergy of the Roman Catholic religion are reinstated in all their accustomed rights and dues. What, Sir, are those accustomed rights and dues? I wish some gentleman would do the House the favour to inform them, what is the extent of the rights and dues of the Roman Catholic clergy. I take leave to suppose that, under the denomination of Catholic clergy, the bishops' rights and dues are included. The noble lord says, there is no papal jurisdiction. I wish to be told, what is the authority by which he becomes a bishop? I know he becomes such by consecration in France; but, in order to qualify him for this present office, the noble lord will be so good as to tell us what the act appoints. We shall then be able to judge how far he considers himself of papal constitution, or instituted by government. Sure I am, if he is allowed to exercise this right, he will be found to insist upon it.

But, Sir, the religion of the country is only one of the various objects which this bill professes to regulate and establish, throughout this vast extent of territory. The bill provides, that the laws of Canada are to be

in future the laws of the country. As the bill first stood in the other House of Parliament, it was not expressed whether the laws were to be those of Canada or England. The clause stood, with the omission of those words; but Canada is now inserted, and all persons are henceforward to be subject to that law. As to all their civil rights, the noble lord has in formed us, that the criminal law of England is to be preserved by this bill, agreeably to the proclamation. But, Sir, is the criminal law alone that ou which we pride and value ourselves? Have we no civil law, on which we pride and value ourselves? Is there nothing at all in the constitution of England worth priding and valuing ourselves upon, but the mode of trying criminals? Is that the single circumstance that makes the bug lish constitution valuable? This is new language to me. It that is the idea of the noble lord, I wish him joy of it; but, to do him justice, I believe he did not mean to be so understood, in the largeness of the phrase Who ever may think the criminal laws are alone the valuable part of this com stitution, I beg leave to say, that the civil distribution of justice in this country is, in my apprehension, its pride, its boast, and its glory, and that it is among the most valuable rights that any country can enjoy. To my apprehension, the trial by jury is the best adapted for the investigation of truth-for the establishing of truth-for the distributing equal justice of any measure of which the annals of history have furnished us with any intelligence. Young, Sir, as I am in my profession, I am old enough th remember, and it will for ever dwell in my recollection, unless drych mul by the principle which the noble lord has endeavoured to establish. I am old enough to remember to have heard, that the institution of juries began at a time, and was adapted to a state of things and peruma, very uttered from the present To find out the time, it is nerviary to Oudied it wán the trial by ordeal and the trial by bare

avowed now to be the principle of the King's lawyers u. Tone live in bud other House at my borse?

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