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 informed 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 on 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 English constitution valuable? This is new language to me. If 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. Whoever may think the criminal laws are alone the valuable part of this constitution, 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 to remember, and it will for ever dwell in my recollection, unless driven out 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 persons, very different from the present. To find out the time, it is necessary to contrast it with the trial by ordeal and the trial by battle. Will this earlier principle be avowed now to be the principle of the King's lawyers in this House, or the other House, or in any house?

... This proposed constitution for Canada does this: it denies to English subjects the English birthright, trial by jury, Sir, the most valuable of their civil rights is taken from them by this bill. The honourable gentleman near me observes, that the Habeas Corpus is among those civil rights. Is that among the laws of Canada?—I do not know what they are. I cannot put questions. I cannot see any man here who would be warranted in giving me an answer, if I did ask questions about those unknown laws of Canada. We know, however, so much of them as to know that they are adopted from France. The Canadians brought them from France; and is it not among those laws, that the governor may issue a lettre de cachet to send away whom he pleases, to shut up whom he pleases? I know lettres de cachet are issued against persons not charged of any crime; not even suspected of any: some reasons have, notwithstanding, operated to make a man invisible for a time. This law of France I take to be transplanted to Canada by this bill. By the laws of England, a man may find his remedy: the laws of Habeas Corpus are among the laws of England: they existed at common law in some instances, they are made more beneficial by the statute law. But when the laws of Canada are looked to in order to furnish redress, the same laws will, of course, refuse any redress. Is this a trifle, to leave the people of Canada in a situation, which any man who hears me would shudder to be left in himself? Whether this legislative council has authority to add to the number of those laws whether those laws are the groundwork, as the noble lord says, in conformity with which, according to the plan sent to them, this legislative council is expected to make new laws, in the spirit and temper of the old ones-I trust that those gentlemen who are now sending to Canada, to a district of this immense extent, a constitution of this nature, will not be found to furnish arguments in favour, either of abolishing the trial by jury, or of establishing the laws of France.

I see also, that this country is hence forward to be governed by a legislative council, consisting of seventeen at least, and not more than twenty-three. The governor may make and unmake his creatures, as they

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 te 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.