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Les diagrammas suivants illustrent la mAthode. f errata dto It IS peiure, pon A n 1 2 3 32X 1 2 3 4 5 6 THE JUSTICE AND POLICY or THE LATE -■ ACT OF PARLIAMENT, Making more EffeSlual Provifion for th Government of the Frovince of ' OU E B E C ASSERTED and PROVED; A N D T H I CONDUCT OF ADMINISTRATION RESPECTING THAT PROVINCE, #' • ■ ■ STATED AND VINDICATED. LONDON: Printed for J. W:lkie, at No. 71, in St. PauPs Church-yard. MDCctxxiv. ERRATA. fage ^, line 13, for Signeuries, read Seigneuries, .w 14, for Signeur, md Seigneur, 20, for Signeury, read Seigneurie, Page 2q, line 6, ioi puttings tezd pulling, 58, — - 24, for direSiiony read difcrttioni 64, ——17, fory^, xeid/ucht c n v: A < . i ;, - ^:•)A -r V 1 "'< c • ■s . f 'T ■iv;.r)i V % If . . 4 '^ •^^.r7.'.'--* ▼• -v*>«e* • ^'-^ -^. r". \,.)^f • ' II ^ '->•.-.. i T H E JUSTICE AND POLICY -iVf OF THE LAT£ ACT OF PARLIAMENT, &c. :t^ih. MISREPRESENTATION of the proceedings of the Supreme Legi- flature is not only injurious to the indivi- duals who compofe the legiflative body, but a crime againft the coiiflitution. Power may enforce fubmiffion to its will among JIaves ; for fubjedis arc no longer free, when their obedience to their rulers is induced by fear alone: but it is to Authority that freemen pay obedience ; for where we allow autho- rity to refide, we always fup^pofe power accompanied with wifdom and benevo- lence ; and our obedience is ' then more the refult of our refpedt than of our dread. ' "'-r* • "^''; '"' '- ^'---^ • B WhOr m t ' ( 6 ) WHoevcr, therefore, epdeavoprs ^q dived us of refped for the fupreme au- thority in the ftate, labours to eradicate from our minds every idea of a Free Go- vernment, and either to reduce us to the cpndition of flaves whilH; we ^^b^lit to it, or to excite us to dedroy the condi- tution and ourfelves by overturning it, Jt is in4eed the duty, as well as the pri- vilege, of Englijhmen to difcufs every public meafure, and to trace the confe- quences of every important ad of date ; but, in fo doing, we ought to be guided tfy truth and reafon, ^^d carefully avoid mifrepfefentation of fads, apd unfounded ipaput^tion of motives. We ought to cxpeft np more of pur rulers, than to do what upon the whole appears to l^e the bed; and, if that can be made out tn the fatisfadion of our un- biaffed jijdgement, we have furely nq right tp fuppofe their condud tp be governed by fmider or >^icked motives. Had thefe confiderations been attended to. f ( > ) to; the clamour, which has been endea« ▼oured to be raifed againft the late A6t iFor the better regulating the Province of SfifeSec, would never have been excited ; buty fmce fuch endeavours have beenufed» it becomes the duty of the friends of government, Who wi(h to give con- tent and fatisfadion to the minds of the people, to lay before the public a fair and fimple reprefentation of the purpofetl of the law» and to fuggeil the confide^ rations upon which that imeafure appears to be founded ; in order to enable every candid Englijhman to form a right judge-^ ment of its propriety^ and of tbeii^ title to his efteem and cohfidence, upon whofe advice it was taken up, or by whofe affiftance it has been carried into eSedk. When the vaft territory of imaja liecame part of the dominions of the crown of Great Britain^ it wad found to contain near one hundred thoufand inhabitants ; a hardy induflrious race of men, equally (killed in the management B 2 of , t ( 8 ) of the plough, the filhing-net, and the mufket. They were defcended from Frenchmen, attached to France^ and pro- felTed the religion of that country. They had obtained a confiderable influence over the Wellern Savages, who had been accuftomed to wage an almofl continual war, under their diredion, with the Englijh fubjedls, againft whom they che- rifhed the flrongeft antipathy and ma- levolence. ' ^> - ■ ' ' :; A. r7 y -> '>^ 1 3. - The lands of Canada had been granted by the French king in Signeuries upon feudal tenure ; and the figneur had par- celled thetn out among the inhabitants upon the like conditions ; and the rela- tion and compad between lord and te- nant was ftill more firmly cemented, by the former being appointed to command the militia of his figneury, and being alfo veiled with the civil jurifdi6tion in all matters of a trivial value. He wad alfo flierifF of his diftri£t ; and all pro- 'r'- '^- -'^." ■ .' ceis •A •'•* I ( 9 ) tefs iffuing out of the fuperior courts againft his tenants were direded to him, and by him were mod pundbually and faithfully executed. Hence was it, that the peafants of Canada became fo formi- dable a militia, and that, with fo little aid from France, the troops of the colo- ny fo long baffled all the efforts of the numerous armies raifed by our provinces^ and were at laft fubdued only by the fu- perior bravery and difcipline of the king's regular forces. '^ * ;' .1 The religion of the Canadiani was found to be that of the GaUican Church, fcarce a fingle Hugonot^ or diffenter from the RomiJJj faith, was to be met with in this vaft territory ; and very noble provi- iion had been made for the education of the Canadian youth, by the ample en- dowment of religious feminaries, from whence the parifhes were fupplied with priefts, and miffionaries fent for the in- flrudion and converfion of the favages. »»>■ ? By ( io j f By the ciipitulation granted to th^ Canadians by Sir Jffffry Amberfi^ the free exercife of their religion} and the full enjoyment of their property^ were fecured to them i and* in the fubfequent treaty of Paris^ the like terms were more folemnly ftipulated and ratified by the king. Such were the circumftances under which Canada became a dependency of the crown of Great Britain \ and the eflablifhment of a proper mode 'of civil government therein was confidered by the then« and every (ubfequehty admini* ftration, as a matter of fo great impor- tance and of fo much difficulty, that it became the objed of almoft continual deliberation. Every means of informa* tion was put in ufe> and every ailiftance called for, that could be fuppofed to throw light ttpon the fubjed^ or furnidi a clue to lead to the wtfhed for point. But, while thefe difcuifions were going on, it was neceflary that iome civil judi* catiM t.'; h$. % i «• ) ftature ihoutfl be ereded, and a legal government of fome fort (hould take place; and therefore his Majefly was advifed to introduce the laws of Eng^ land in general into Canada for the pre- fent : And a proclamation was accord- ingly iflfued for that and other purpofes^ on the 7th of OSfober^ ly^S* » This proclamation was attended by a code of inftru^ions to General Murray^ then appointed Civil Governor of Ca-' nada, by the new name of ^ebec ; and foon after, the Lords of Trade prefented to his Majefly in G)uncil a paper of propofitions for regulations to be adopted in that province. Thefe propofitions were referred to the then Attorney and Solicitor General, who took fome months to deliberate upon them, before they delivered in their report. But, in the mean time, the publication of the pro- clamation, and of an ordinance, which the Governor and Council promulged - for i ,1 ( « ) for eftablifliing courts of juftice m confequence thereof, filled the poor Canadians with grief and amazement. They faw themfelves at once bereft of their own laws and cuftoms, and an unknown fyftem of jurifprudencc eftablifhed in their room. They were utter ftrangers to the language in which thefe new laws were written, and they had no idea of the ufages by which they were to govern them- felves In cafes where the written laws gave no diredlion : But, as they were accuftomed to fubmit to authority, hey reflrained their murmurs, and wa. ed the event with patience, though ot without great anxiety. As the laws of England^ which \.,s now introduced in the grofs, were fup- pofed to exclude Roman catholics from all offices ; the captains of the militia and figneurs were all fuperfeded of courfe, and fuch of the king's antient fubjedls, as had % 1 'l/y ■i { 13 ) had taken up their abode in Canada, were appointed magiftrates and militia officers in their room. Few of thefe perfons were of a refpedable clafs in the provinces from wherice they had emi- grated ; and th^'!r deportment in their new dignity tlid not much ferve to alle- viate the grief and chagrin of the dif^ carded French Noblefle, who felt them- felves not . lefs difgraced by their own diAniffion, than by the elevation of fuch men into their feats. There were few or none of thefe antient fub|e The reports of thefe learned gentle- men contained a great variety of propo- fitions ; but, like the opinions of moft Jearned gentlemen, they were very dif- ferent from each other. And thus it fell out, that, after all the pains which had been taken to procure the beft and ableft advice, the minifters were in a great meafure left to adt upon their own judgement. ;, . .,.. In this lituation it was natural to have recourfe to precedents ; and thofe, which had any fimilarity to the prefent cafe, were carefully examined. .. ; li ( 60 ) tRELAND and Minorca furniflied the mod ftrikiiig inftances of the treat- ment, given by our ancefiors to a con- quered people profeffing the Romijh re- ligion ; and as the meafureSy purfued in thofe inftances, were exceedingly dif- ferent, the efFeds of each were in\refti- gated with the mofl: critical exad- nefs* The IriJJj papifts, when the revolution took place, had attached themlelves to the banifhed king through principle ; as well becaufe he was their king, as becaufe he loft the crown of England by his zeal for the religion they profeflied. The capitulation of Limerick was the only afturance they had received from the conqueror of the enjoyment of theif property or the exercife of their religion ; and thofe who had the misfortune not to be included in that capitulation, which was a vaft majority of that wretched people, were abfolutely at the mercy of the vidorious proteftants. The number of I ■ \ iidicd ( 21 ) of inhabitants in Ireland did not then amount to a million; and the Roman catholics were four fifths of the whole. Dread of their numbers, and refentment for the cruelties they had inflided upon the proteilants while their rule lafted, didlated the plan, which was then adopted, and which has to this day been unremittingly purfued, for preventing the growth of popery in that ifland, and depriving its profeflbrs of all means of difturbing the government or abetting the enemies of the ftate. All papifts, not included in the capitulation of Lime^ rick^ are by law rendered incapable of purchaling, inheriting, or even obtain- ing the fecurity of a mortgage upon a landed eftate : And to encourage the difcovery and detedion of offenders againft thefe laws, as well as to promote reformation, the informers are rewarded with a grant of the lands, which, upon convidion of the owner, becomes for- feited to the crown. Befides the legal difabilities, which papifts are fubjeded to D by Ill k °ff-five or deS:: " f- ""^^P"- f"^' for them to cut ; J "'■' '"'"'«= tnives exceedin;> a " ^"^'"'''' ^«h Wade. They are dT'" ''"^"» '"" "- ♦h- children' ntdulr' °' ^'^'"^ "nprovemcnts thev .„ l ' '■°" ^"7 'h^''>farmsftouIda;„'-'''^P^°«^^°f ;°;«-do„ethtd7tr^''^^-"'' Jeafes become voidah, ''""' '^eir '•"y of them be i" ^"' *°"'d ^°"h «ore than Tu "P°? '■•" h°rfe, compelled to fell h/m r " ""'''^ f° te to him. ^^ ^^^es a liking *'■- ^t is difficult to, mo • v°-byfej;2::'r'""'--- ^^^'OrtodepW::tf,;''-^'Vi/h 'i'"-" or ability ^/.l^f'-^^ers of all '* ^-e -flay believe the /.S '^""''^ ^'' "°^ by any mel^/'"°'^«^«». v. "' ""'^-ered thefe their U /. o* ^ Roman 'Capons s made is with in the giving under 1 any fits of found their lould lorfe, ^o be e to ing :an all ( 23 ) tlieir avowed purpofcs, nor firved iri iny degree to recommend them for our iml- btion in ^ebec. For, after the expe- rience of almofi a century, we are told, fuch is ftill the malignant hatred borne by the papifts to the proteilants, and fuch their determined purpofe to yield that kingdom to a foreign power when^ ever the opportunity prefents itfelf, that, although the proteilants now bear the proportion of two to five to the Roman catholics, are in poiTejQion of all the offices of the ftate, the land- owners of nearly the whole ifland, and protedted and fupported by the whole power of "England^ they think themfelves in thd utmofl danger of being mafTacred by the papifls, if, even in time of peac«, there {hould happen to be a lefs number thaa twelve thoufand effective troops re-* maining ill the ifland *• Now * The argurtients ufed by the oppofers of th6 Popifil Mortgage Bill, all tended to (hew, that (houtd the Irifii Papifts ever ac^ire property iA D 2 that •i - 1 »l I i *l 1 ■! ( 44 ) Now the Irtfl) papifls are Irijhmen, mixed in blood, and defcended from many of thofe, who are at prefent pro- tcdant families. There is not an in- dividual inhabitant, that has ever borne arms againft the Englijh government; nor has there been any rebellion, infur- redlion, or the face of an enemy (Thu^ roth excepted), feen for fourfcore years in that kingdom : And yet if, notwith- flanding i' It that country, they would certainly employ it to the deflru£(ion of the Proteftants. And the fame men, who declaim upon the hardihips impofed on Ireland by Englijh Laws, which exclude the inhabitar.ts from lucrative branches of trade, with the fame breath aflfert, that the conftitution would be in the utmoft danger, (hould three-fifths of the Inhabitants find means of fparing a fliilling from their immediate neceflities* In another century, perhaps, fome ftatcfmen may arife in that country, who can conceive men to be more difpofed to fup- port a government that proteAs them in all the rights of humanity, than one whofe policy it is to extirpate them ; that, as men always entertain a praedile£tion in favour of the country where they are educated, to compel the Roman Catholics to fend ^SWl»w ( as ) flanding thefc happy circum (lances, fcvc- rity has fo little ierved to attach thefe infatuated people to the V.nglijh go^ vernment and their fcDow-fubjedls ; what fuccefs may wc hope for from the like methods in Canada , where the "Roman catholic inhabitants are five hundred to one proteflant, and thofe fend their children to France for education, is not the beft means of weaning their aflfecElions from that kingdom ; that men, who inveft their wealth in fixed property, are not the moft apt to excite infurredions ; and that to oblige men to tranfmit their property into foreign countries, is not the fureft method of attaching them to the ilate they refide in. Bifliops, it is alfo to be hoped, may be found in future times, who will be able to difco- ver, that their being brought up in ignorance, is not the likelieft way to teach men to difcern and overcome early prejudices} that it is paying an ill compliment to the authors of the Reformation, to infift upon mens profeiHng themfelves Proteftants antecedent to their receiving any inftrudtion ; and that Chriftianity no more authorizes Proteftants to make converts by penal ftatutes and difabilities, than it does Roman Catholics to propagate their creed by fire and faggot» "Roman 1 ( 26 ) tloman catholics ten years ago wera fubjeds of France^ and every man bear- ing arms againft England; in pofleffion too of a country fituated three thoufand miles from Great-Britain^ and all accefs to it denied by nature to our fleets and armies for fix months in every yeaf: The efFeds of lenity in the other inftance recurred to, which was that 01 Minorca^ were more promifing ; and the cafe was more in point than that of Ireland, The inhabitants of Minorca were originally Spaniards^ and hoftile to England, They had been permitted the full enjoyment of their religion and properties, from the ceflion of the ifland to Great-Britain by the treaty of Utrecht to the prefent hour : and, although we have had two wars with Spain in that time, and the ifland has once been con- quered by France ; the inhabitants have ftiewn no impatience under the Englijb government, nor have they been found to invite or abet an invafion by their former t ( 27 ) former fovereign, or any other Roman catholic prince. • - r . It is true, little profit has hitherto accrued to England from the pofTeilion of that ifland ; for it has never been at- tempted to be made a colony, nor has any civil government been eftablifhed there ; no adminiftration, before the prefent, having had fufficient leifure, or been fo zealous for the public welfare, as to engage in an undertaking, which, it wa^ eafy to forefee, muft (like the ^ehec bill) occafion much clamor, and furnifli a topic for oppofition to declaim upon. Hence it is, that one of the fined iflands in Europe, and the moil advantageoufly fituated, has been fuf- fered to be without improvement for half a century; although the nation pays above 100,000 1. in every year of peace to fecure to our commerce the pro^edion of its harbour in time of w*^r. I I : I ■:. ! I i i i 1 • HI- Mil -'i? m The \h !■ 1 1: (28 ) The inducement to adopt a plan of lenity and indulgence, arifmg from the comparifon of the advantages with which that mode of treatment has been attended in Minorca, with what has been the re- fult of the fevere fyftem which has taken place in Ireland, was greatly heightened by a confideration of the avowed pur- pofe of the old colonies to oppofe the execution of the laws of England, and to deny the authority of the fupreme legiflature: for,, however different the views and purpofes of the leaders of this oppofition might be from the wifhes of the Canadians ; yet, it was not to be doubted, they would take advantage of any dif- content which a harfh proceeding might excite among them, and, by fair pro- mifes of redrefs, endeavour to lead them to take part in their undertaking. An alliance of this fort, however un- natural, we know once took place in the reign of James the Second, between certain of the Diflenters and the Roman Catholics ( 29 ) Catholics m England^ for the fubverfion of the eftabliflied Church ; and it is no uncommon thing in any country, for two feds or parties, who mutually dif- like each other, to make a common caufe of putting down a third, that attrads the enmity of both* I have hitherto argued the point upon the oppofition's own ground ; and I truft I have made it appear, to the con-* vidion of ever;; unprejudiced mind, that the plan, which benevolence and hu- manity recommend, is confonant to the foundeft policy : But there is flill one important confideration to be added ia favour of fuel! a plan, which would outweigh even its impolicy, if that could be proved ; which is its jujiice. By the 4th article of the treaty of Paris^ ratified by the king and approved by parliament, it is ftipulated ; " That his " Britannic Majefly, on his fide, a^ee^ " to grant the liberty of the cathtolic *' religion to the inhabitants of Cam'da. E t He m > 1 'J' !: « I m I 1 i ( 30 ) «* He will, confequently, give the moft *' precife and moft efFedual orders, that " his new Roman catholic fubjeds may " profefs the worfliip of their religion, " according to the rites of the Romip ** church, as far as the laws of Greats «* Britain permit ^^-^hti us then exa- mine how far the laws of England do or do not allow the Canadians the free and public exercife of their religion, and how far, under the ftipulations recited, they are entitled to the common right* of Britijh fubjeds in that cpuntry. For- tunately *for my purpofe, thefe cafes have been already ftated, and the opinions of as able lawyers, as this country has produced, have been given upon them. In 1765, the Lords of Trade fent the following query to Sir Fletcher Norton and Sir William Be Grey^ then attorney and folicitor gene- ral ; " Whether his majefty's fubjedls, " being Roman catholics and refiding " in the countries ceded to his majefty " in America by the treaty of Paris^ ' { 36 ) of the new fcttlers, at the OStober feflions in 1764, after declaring, " That ** they muft be confidered at prefent as " the ONLY REPRESENTATIVE of the colony, and that they, as Britijh fub- jedls, had a right to be confulted before any ordinance, that may affe£i the body they reprefent^ be pafled into a law ;" * proceeded to prefent, as a grievance among others, and a violation of their moft facred laws and liberties, the impannelling Roman catholics upon grand and petty juries. And the more fully to manifeft their envy at the in- dulgent treatment of the Canadians^ and their fettled purpofe to deprive them of the moft valuable privileges of Britijh fubjeds, fhould they ever poffefs the «< «( <( (C « * The learned promulgers in 1766 of the heaven- born do6lrine of taxation and reprefentation being nccelfarily and eternally connedled, appear to have been mere plagiarifts of the grand jury of ^ehec ; for they had difcovercd it two years before, and extended it, with as good reafon, to all adis of legi- flation, r • power : i'' / ■ > ( 37 ) J)ower of doing it ; they took upon them to interpret the flipulations in the treaty of Paris refpe£ting the Canadians^ as limited and reftrained to fuch toleration of their religion, as is permitted to Roman catholics in England by the ftatute of the 3d of king James the firft ; and that therefore the Roman catholics in ^lebec i\rere liable to all the penalties and difabili- ties of that ftatute. The reprimand, given by the bench to this grand jury for their prefumption, with-held future grand juries from afluming the ftyle and au- thority of reprefentatives of the colony : And thefe perfons, finding there were no means, by which they could opprefd the new fubjedts or feize upon the powers of government, but by obtaining a pro- teftant aflembly to be called, of which they only could be members, have laboured that point by repeated petitions to his majefty and reprefentations to the governor ; all of which petitions and reprefentations have regularly been en- countered by petitions of the new fub-. F jedts * < ? -v^^ ^ ( 38 ) jeds for the reftoration of thetr antient laws and cuftoms. I HAVE thought it necelTary to givo fo large an account of what paiTed pre- vious to the introdudition of the late a£t into parliament} in order to fhew the real flate of the province, and to obviate the charge of delay^ which has been fo repeatedly made againft adminiftration in the courfe of their proceedings. It is now time to confider the a€k itfelf^ and to examine, how far it is founded upon the principles of humanity, and correfjponds with that plan of juftice and found policy, which I have aflerted to have been adopted by his majefty'» fervants. The objeQs of this a£t are, the exten- fion of the boundaries of the province ; the revocation of the civil government, which took place in confequence of the proclamation in 1763, and all its adbs; the toleration of the Roman catholic reli- gion, i ( 39 ) gion, agreeable to the treaty of Paris ; the fecuring to all the Canadian fubje^tsy except the religious orders and communi- ties, the enjoyment of their properties and civil rights ; the re-eftabli(hment of their antient laws and cuiloms, fub- jedt to fuch alterations as the legiflature pf the province may think fit to make ; the continuation of the adminiftration of the criminal laws of England^ fubjed to the like alteration ; and the eftablifh- ment of a temporary legiflature wi^hii) the province. i^ When the linesy drawn by the pro- clamation of 1763 for the boundaries of ^ebec and of the FloridaSf and fpr the limitation of fettlements under grants from the old provinces, were refolved upon ; a general plan for the regulation of the trade with the favages was under confideration of the Board of Trade, and in great forwardnefs. To give this plan uniformity and effedl, it was thought necciTary to exclude all the provinces F 2 from ,.ij; «^ ?4, J All thefe defects will be iiipplied by the governor of ^lebec^ who has autho- rity to make grants of lands and fifhing pods, and can appoint magiftrates to refide during the whole of the filhing feafon ; and the king's courts of ^ebec will be equally open to the fifhermen ' . for { 47 ) for redrefs of Injuries, as to all other his majefty's fubjeds. But fhould the information, upon which this meafure is founded, prove erroneous, or any injury to the fifhery accrue from the propofed regulations ; the legiflature of ^ebec can interpofe, or if its authority be infufficient, parliament will not fail to apply an adequate remedy. — I muft not however quit this point without re- marking, that, as the nature of this oil-fifhery renders it impoflible to be carried on in the manner of the New-- foundland fifliery from Great-Britain \ it muft fall into the hands of relidents : and fmce that is the cafe, it does not appear a very important confideration, whether the profits of it go to Bojlon or ^ebec^ in the firft inftance. But fhould the people of England chufe to take a fhare in it, and make fettlements there for that purpofe, the order of his majefty in council to the governor of ^lebec will always fecure to them a G 2 grant H pt] It 5 jji. ( 48 ) grant of 2tny unoccupied fifhing poft* which they may apply for. - The claufe, which revokes all com- miflions and annuls all ordinances, made by the governor and council relative to the civil government and adminiftration of juftice, ftands next in order in the ad; but, as this claufe is only meant to clear the ground for the intended fuperftru£lure, I fhall pafs it over and haften to the fucceeding claufes, which refped: religion and the laws. Strange things have been aflerted in parliament, and out of parliament, of the wicked tendency of thefe claufeSi Nothing lefs than an abfolute dominancy and legal eflablifhment is faid to have been given, in the one cafe, to the Roman catholic religion, to the deprelTion and exclufion of t/jat of the church of England and of all proteftants 5 and, in the other, EngliJJomen are faid to be put under an arbitrary French judicature, and ji ( 49 ) and deprived of the right of trial by juries in all civil caufes. Hard charges thefe upon the very great majority in both houfes, which palTed the bill> and upon our mod: benign and religious king who gave his royal affent to it ! But, I truft, things will not appear fo bad upon examination. The enading claufe runs thus : " And, " for the more perfect fecurity and eafe ** of the minds of the inhabitants of the ** faid province, it is hereby declared, *• That his majefty's fubjeds profefling *• the religion of the church of Rome^ ** OF and IN the faid province of Que- ** BEC, may have ^ hold and enjoy the free ** exerct/e of the religion of the church ** g£ Rome^ subject to the king's ** SUPREMACY, declared and eftabliihed^ *' by an ad made in the firft year of " the reign of queen Elizabeth, ** over all the dominions and countries " which then did or thenafter Jhould belong to the imperial crown of this ** realm X cc ! I H iW ( 50 ) *• realm \ and that the clergy of the " faid church may hold, receive and enjoy their accuftomed dues and rights with refpedt to fuch perfons only as *^ fhall profefs the faid religion;*' C( C( .1 The man who can difcover the domi- nancy and eflablifhment of the Roman catholic religion in the words of this claufe, muft be able to out-jefuit the keeneft of the fons of Loyola. Vot^ to a common underflanding, the words of this claufe feem to exprefs a meaning^ very different from an eftablifhment of popery. They clearly and plainly de-' clare the Icing to h^fupreme head of the church in ^ebecy by authority of the aft of the firft of Elizabeth, May I then afk, of what church it is, that the adt of the firft of Elizabeth declares and eftabliflies the king to be fupreme head ? For, whatever church that \s% That muft be the eftablifhed church in ^ebec by this a£t. Had the adk of qaccii Elizabeth been repealed in^C3id of being ',i< ( 51 ) being declared of force by this ad ; there might have been fome ground for fup- pofing, that the ellablifhmeut of the church of England had been negleded : But a fubfequent provifo, by abrogating the oath required to be taken by that a6t, and by introducing a new one to be taken by Roman catholics in ^ebec^ under pain of incurring the fame penal- ties, forfeitures, difabilities and inca- pacitieSy as they nvould have incurred and been liable to for refujing to take the oath required by the /aid Jiatute of queen Elizabeth, in my poor opinion, gives force and efficacy to the whole, accord-' ing to that antient law maxim, exceptio frobat regiilam^ Perhaps, indeed, this point might have been made more clear, and the dJdi might have been exprefled in terms more precife; but then there would have been danger of undoing, what the claufe fets out with the pro- fefled purpofe of doing, *' The giving ** eafe and fecurity to the minds of the " Canadians^"* who would naturally I have I I I! ;•* i i2 ) have imagined, that, by dtcJaring ik4 eftabliihment of the church of England in ^ebeCf its ecclefiaftical judicature was alfo e(labli(hed, to which they wer^ to be amenable, and by which they ihould be perfecuted. The declaration of his majefty's fupremacy, as efta-* blifhed by the a6t of the firft of £liza-« BETH, was therefore judged a fitter mode of proceeding ; as it leaves it with his majefty to give fuch jurifdidtion and authority to his own church in ^eiec, as he ihall think necefTary. And left it fhould be imagined, that his majefty is reftrained by any thing contained in this ad from conferring fuch jurifdidion and authorities, the laft claufe of the zGt puts it beyond all poffibility of doubt, thaC iie is not* The words are ; " And be it •* father enaded, That nothing herein ** contained fhall extend, or be conftrued •• to extend, to prevent or hinder tiis ** majefty, &c. by his or their Letters •* Patent under the great feal of Great-^ •* Britaiuy from eredringy conjlituting^ ♦' and li.; ( s:i ) ** and appointing fuch courts of cn'm'na/, ** civil, and ecclesiastical jur/f- *' diBion^ within and for the faid pro- " vince of ^tebcc^ and appointing from *' time to time the judges and officers " thereof, as his majcfly, his heirs, and *' fucceflbrs, s pi all think neces- " SARY AND PROPER for the circum- *' Itances of the faid province." ■15 It) The right of the Romijh clergy to tythes, and confequently to all their ac- cuflomed dues, has been already fhewn to be founded in law upon very great authority. They are by this adl de^ f rived of that right over the lands, perfons, and properties, of proteftants ; which is certainly putting the Romijh clergy in a worfe fituation than they were before, and takes away all poflible pretence to any eftablifhment of that church and religion. But the operation of this part of the claufc may, and probably will, be attended with confe- quences Hill more fatal to the authority . H of ?l i\ II it (5 1, > ( 54 ) of the Romp clergy, as it holds out i<^ their people an exemption from it in the moment they declare themfelves pro-* tejiants. And as his majefty is enabled to appropriate the tythes and other dues^ which proteftants were obliged to pay to the Romijh clergy before the paffing of this ad, ^^for the encouragement of the *' PROTESTANT RELIGION, aS WCU f* as for the maintenance and fupport of *' a proteftant clergy ;" fhould it be judged the beft means of encouraging proteftantifm in ^lebec to exempt its profeflbrs from the payment of all tythes and ecclefiaftical dues whatever, and a fuitable provifion be made out of the public revenue of the province for the fupport of the proteftant clergy, as is done in other colonies where the church of England is eftablifhed by provincial laws ; the Roman catholics will have not only an exemption from the authority of their priefts, but alfo a confiderable pecuniary advantage to induce them to reform : And pecuniary motives, { 55 ) biotives, it is well known, have, in all ages and in all places, had their influence in making converts. Upon the firfl eftablifliment of an Englijh colony, before a local legiflature can be formed, the inhabitants are held to be fubjedl to fuch laws of England, as were of force antecedent to the efta- blifliment of any Britijh colony in America^ as far as they are applicable to their circimjiances^ and to all fuch fub- fequent ads of parliament, in which the colonies are named. Our ftatutes, ante- cedent to the reign of Elizabeth^ are not very voluminous, and the provifions tnade by them, refpeding commercial matters, are very inapplicable to the prefent ftate of trade in England^ and Hill lefs adapted to that of a new colony in America, Until therefore a local legiflature takes place, the inhabitants in moft civil cafes are without laws ; and the magiftrates generally adopt the ufages of the neighbouring colonies, whofe H 2 circum- I ( 56 ) circuiiiftances and fituation bear a Hear refemblance to their own ; and, by the tacit confent of the people to their fitnefs, they acquire the authority of laws : And things are conducted upon this (though fomewhat arbitrary) footing, until a legiflature is formed ; And then the laws of the other colonies are taken for models ; and, with fuch alterations a8 circumflances render neceflary, they are enaded the laws of the new colony. I never remember to have heard this proceedin?^ blamed, or an aflembly in a new colony cenfurcd, for adopting any approved law of an old one; nor do I recolle£t that our aflemblies in the IFtJI India illands have been exclaimed agaliifl for taking part of their laws, for regulating their flaves, from the Code Noir of the French^ or converting into ada of aifembly any of tiie French edids or arrets : and yet v.liat a deal of miicliief is pretended to be appre* bended ( 57 ) hended from our doing the like in ^ebec ^ - All allow that this new colony re- quired a conftitution different in many I'efpeds from all our other colonies, and for which none of them could furnifh a pattern. The French Code Noir (which it feems might have been ufed without offence) would not fcrve ; for the inha- bitants are not /^/^/ri. ;;!3 From whence then could a model for the laws by which they were hereafter to be governed be fo fitly taken, as from the laws by which they had been go- verned, except in cafes where they had learned from experience to prefer the laws of England to their ov/n ? To this model, therefore, the late ad: has rc- courfe, and eftablifhes thofe lavrs and cuftoms, which have heretofore been in ufe in Canada in all civil cafes, as the laws of the nev/ colony for the prefent^ and until the legijlature tiow appointed fiall I make i 111 iC iC ( 58 ) mah other provifion. The following are the words of the a£t : '* That, in all *' matters of controverfy relative to pro- " perty and civil rights, refort fhall be *' had to the laws of Canada^ as the rule " for the decifion of the fame : And " all caufes, that fhall hereafter be in- ** llituted in any of the courts of juflice^ *' to be appointed within and for the *' faid province by his Majefty, his heirs and fuccefTors, Ihall, with refped: td fuch property and rights, be deter- *' mined agreeably to the faid laws and " cuftoms of Canada^ until they " SHALL BE VARIED OR ALTERED BY " ANY ORDINANCES THAT SHALL " FROM TIME TO TIME BE PASSED " IN THE SAID PROVINCE." This is the claufe, which, it is faid, deprives the Britijh fubjcdts of their birth-right of trial by juries ; and indeed, it muft bd confeffed, if; gives no diredions about juries ; for it leaves thofe and all other civil matters to the wifdom and dirediori of the provincial legiflature, as hath ever been ( 59 ) been done in the cafe of new colonies. There is no adt of parliament exifting, except the late ad for regulating the government of Majjachufefs Bay^ which fdircijts the trial of civil caufes to be by juries in America. And, in every new colony, until an ad of the provin- cial legiflature has been pafled for the fummoning of jurors, which indeed is always done in their firft feffion, there is no law to guide a returning officer in his pannel, nor can any juror, who re- fufes to give his attendance, be legally fined. What fecurity then, may I afk, have the merchants trading to Eqfi-Flo^ rida^ that their caufes will be deter-? mined by a jury, beyond what the ^ebec merchants have, that theirs fhall be fo determined ? In the cafe of the former, we know there is no legiflature compe- tent to impofe fines, or inflid penalties, on any pcrfons who being fummoned ihould refufe to ferve as jurors, even if the judges fliould dired a jury to be impannelled 5 and, confequently, there ' / may .1 If - I.* I ? i I ) ( 60 ) may be juft ground to apprehend, that no jury will be had. In the other cafe, a competent legiflature is appointed, and it is left to them to pafs an ad that fhall dire£l in what cafes Juries are to be im- pannelled ; and they have power to inflid fufficient penalties to compel juries to attend and do their duty. The repealing claufe of the a£t does not begin to operate before the firft of May, 1775 ; and it is highly probable, that the governor, chief juf- tice, and other public officers, together with the legiflative council, will be all in ^iebec fome time before, and have taken upon them the exercife of their feveral fundlions, agreeable to the authority and diredlions of the ad. The eflablifhments of courts of juftice, and the modes of proceeding therein, muil neceilarily en^ gage their immediate attention ; and in the ads, which they fhall think proper to pafs for this purpofe, they will, no doubt, make provifion for trials by juries in all fuch cafes, as upon a full confide- jratio^ ( 6i ) ration of all local circumftances (many of which cannot be known here) fhali appear fit to be fo determined. r< I There is good reafon to believe, that the Canadians do not defire to have their civil caufes decided by juries t and if the Britijh inhabitants wifh for that mode of trial, why (hould it be fuppofed that the legiflature will not give it to them in their caufes, and only with-hold it from the others ? Surely thofe, who exclaim againft the Dependency of the ^ebec legiflature, will not fufpedt them of Ihewing lefs refpedl to the orders of government, or of being lefs partial to Englijh modes and cuftoms, than the aflemblies of Rhode-IJland, Connediicut^ or Majfachufet^s Bay ; and yet the choice of the mode of trial was committed to them, in criminal as well as in civil cafes* by their refpe£tive charters. But, although the mode of trial be left to the difcretion of the provincial I legiflature ( 62 ) legiflature In ^ebec^ care has been taken, by the laft claufe of this aft, that all the laws, which have heretofore been made; by parliament for the extenfion of com- merce and the fecurity of the Britijh merchants trading to the colonies, fhall have full force and efFeft in that pro- vince ; and confequently the a£t of the 5th of George the fecond, for the more eafy recovery of debts in the plantations, is by this claufe extended to ^ebec^ and adds much to the fecurity of the mer- chants trading there ; not only as it gives the fame force and effedt to afRdavIts taken before the chief magiftrate of any corporation in Great Britainy as to viva voce evidence in the courts of civil judi- cature there ; but as it fubjeds the lands in ^ebeCy notwithftanding the entail of their tenure, to be extended and fold for the fatisfaftion of all debts due from the proprietors. The Habeas Corpus is another privi- lege of EngUJIomeny which the fubje£l8 41 'Hi ( 63 ) in ^l^ebec are faid to be deprived of by this ad. If by the Habeas Corpus is meant the ad of the 31ft of Charles the fecond, which direds and enjoins the ifTue of that writ, I will take upon me to aflert, that there is no fecurity in this refped given to the inhabitants of any colony in America by that ad ; for it is merely local, and confined to England: Nor is there any other adt of parliament,- under which the fubjeds in the old colo- aies claim the benefit of that writ ; and, therefore, the fubjeds in Canada are upon the fame footing in this refped with all the others. His Majefty indeed, by his inftrudions to his Governors of every colony, enjoins them to take care, that the fubjeds in their feveral provinces have their Habeas Corpus ; and thofe in- ftrudions are direded to be made public, and regiftered among the records of the court : And, unlefs the provincial legif- Jafures have pafled ads, adopting the ad I :j - of ( 64 ) of Charles the fecond (which is the cafe in fome colonies, though not in all) thofe inftrudions are the only fecurity, which the inhabitants have, for enjoy- ing the benefit of this juftly efteemed writ. The declamation againft govern- ment in this cafe is, therefore, fomewhat premature ; for, until Goverr.or Carleton has received his new inftrudions, it can- not be certainly known, that the fubjedls in ^ebec are not to have their Habeas Corpus. , .::,;>:; l!l It would be great prefumption in me to pretend to fay, what will or ought to be done in the cafe ; but it may not be amifs to call to the recolledtion of the old whigs, who are fo ftrong advocates for fecuring the grant of this writ to the Canadians^ that there have been times when very good friends of public liberty have thought it ^neceflary to fufpend the 2>fX of Charles the fecond \n England. And the proteftants of Ireland are fo jealous of the advarxtage, which the Roman ( 65 ) Jbrnan catholics in that kingdom might take of it, that, to this day, they vo- luntarily deprive themfelves of its fecu- rity, left the general ufe of it might be productive of greater mifchiefs to them, than any they apprehend from the power which government has over their perfons through the want of it. But fo whimfi- cally inconfiftent are the railers at the meafures of adminiftration (for they are not of importance fufficient to be entitled to the name of opponents) that, whilft they raife a cry againft the indulgence ihewn to the Canadians in religious matters, they afFedl to be exceedingly angry with the minifters, for confining their civil liberties within too narrow bounds ; although indulgence, in the one cafe, can be attended with no dan-r gerous confe^uences to the ftate, and, in the other, every thing would be put to the hazard. No cenfure has been paffed upon the claufe continuing the adminiftration of the criminal law of England in Quebec, fubjed lli! \ ( 66 ) fubjed neverthelefs to fuch alterations and amendments, as the local legiflature ihall think fit to make ; nor have the objedions, which have been made to the mode, by which the legiflature is appointed, been confidered, even by the propounders of them, as of equal weight with the arguments which have been ad- duced againft every other mode, by which a legiflativc body has been pro- pofed to be eftabliihed. r. ,, .v : . • • r ' The objedions to an ele«SlIve aflfembly, in the prefent circumflances of the colony, are infupcrable ; for thp members muft either be chofen by the land owners, in which cafe the new fubjeds would ele6t the whole body, or the land owners muft be fet afide, and then the very eflence of a reprefentative aflembly would be in- tirely taken away, /\ > ,5:.^ ■ .i,^ U i. t. . A local legiflature is certainly necef- fary to give life and vigour to any con- ftitution of government, that could have been framed for this colony ; for none :. :, - 3 but: ( 6? J but thofe, who, by long refidence in the Country, have made thcmfelves fully ac- quainted with its circumftances, can judge of the utility of a multitude of minute provifions; which are however Exceedingly necelTary.— In matters of greater magnitude, parliament may and {)robably will take the pains to interpofe* and the impodng of taxes and duties is cxprefsly referved for the exercife of jparliamentary authority alone. Indeed the reflraihts laid by this adt iipon the local legiflature confine its dif- cretionary powers within very narrow bounds, and almoft reduce it to a neceiGdty of exercifmg its authority for the general good only. And fince what is eflablifhed has the advantage upon the comparifon of every other poffible form, it is (at lead) entitled to a fair trial, before it is^ Cenfured or exploded. I Will not further increafe the fize of this pamphlet, already I fear too large for the patience of my readers, by . K dating I !,■' I n U. i ( 68 ) ilating and refuting every cavil, which ignorance, party or malevolence may be fuppofed to fuggeft againft the meafure I have been defending : They will pro^ bably be produced in anfwers or ohfer-^ vations upon what is here laid before the public ; and if it fhould happen, that they have more influence upon the pub-* lie opinion than they have had upon the minds of the members of either houfe of parliament, they {hall not pafs with- out a reply. In the mean time I flatter myfelf, that the information the public will now be in pofTeflion of upon this fubjed will wholly remove any difadvantageous impreflions, which the mifreprefenta- tions fo indufl:rioufly circulated may have made, and refl:ore and preferve to thofe fervants of the crown, who have fo arduoufly laboured to deferve it, that univerfal applaufe and appro- bation, by which their many eminent fervices to the ftate have been fo ho-» nourably attended and diftirtguiflied. APPENDIX. !l.J 4 APPENDIX. I Tranflation of a Petition from the Inha* bitants of Quebec to the King. fo the KINGV Mofi Excellent Majefty^ The Petition of your Majefty's moft dutiful and loving Subjefts, the Lords of Fiefs, landed Proprietors, Citizens, Merchants and Traders, Inhabitants of the Dillria: of Que- bec, in the Province of Quebec, in North America. YOUR Majefty's faid new fubjeas moft humbly pray, and take the liberty to throw them- felves at the foot of your Majefty's throne, to pre- fent thofe fentiments of love, refpeft, fidelity and fubmiiTion, with which their hearts are filled for tiheir auguft Sovereign, and to render their humble thanks for the paternal care, which it has pleafed your moft excellent Majefty to have for them. Their gratitude compels tl^em to acknowledge, that the remembrance of the melancholy fpedacle of being conquered by the vi I] li. • i K' 'I I it; ii ^ i ^ i ( 88 ) with the Confent of His Majefty's Governor, or, in his Abfence, of the Lieutenant-governor, or Commander in Chief for the Time being. Provided always. That nothing in this A£t contained (hall extend to authorife or impower the faid leglflative Council to lay any Taxes or Duties within the faid Province, fuch Rates and Taxes only excepted as the Inhabitants of any Town or Diftri£V within the faid Province may be autho- rifed by the faid Council to aflefs, levy, and apply, within the faid Town or DiftriJl, for the Purpofe of making Roads, eredllng and repairing public Buildings, or for any other Purpofe refpe<5ting the local Convenience and CEconomy of fuch Town or Diftria. Provided also, and be it enacted by the Authority aforefaid, That every Ordinance fo to be made, fhall, within Six Months, be tranf- mitted by the Governor, or, in his Abfence, by the Lieutenant-governor, or Commander in Chief for the Time being, and laid before His Majefty for His Royal Approbation ; and if His Majefty ihall think fit to difailow thereof, the fame (hall ceafe and be void from the Time that His Majefty*s Order in Coi^ncil thereupon Ihall be promulgated at ^lebec. Provided al$o. That no Ordinance touching J^eliojion, or by which any Punifliment may be in- iiiaed .i W ^ r .((' " ( «9 ) l!i£lecl greater than Fine or Imprifonment for Three Months, (hall be of any Force or Efte£t, until the fame fliall have received His Majefty's Approbation. Provided also, That no Ordinance fliall be pafTed at any Meeting of the Council where lef» than a Majority of the whole Council is prefent, or at any Time except between the Firft Day of January and the Firft Day of May^ unlefs upon fome urgent Occafion, in which Cafe every Mem- ber thereof refident at ^ehec^ or within Fifty Miles thereof, fhall be perfonally fummoned by the Governor, or, in his Abfence, by the Lieute- nant-governor, or Commander in Chief for the Time being, to attend the fame. And be it further enacted by the Au- thority aforefaid, That nothing herein con- tained fliall extend, or be conftrued to extend, to prevent or hinder His Majefty, His Heirs and Suc- ceflbrs, by His or Their Letters Patent under the Great Seal of Great Britain^ from ere^ VI ! ^Provided always, Ai^ir • it is HtRfiEll^ EYJActED,* That nothing in this A(5t contained ihall extend, or be conftrued to extend,' to repeal' or make void, within the faid Province of ^ebety i any Aft or Afts of the Parliament of Great Bri" tain heretofore made, for prohibiting, reftraining, or regulating, the Trade or Commerce of his Ma- jefty's Colonies and Plantations in America ; but that all and every the faid Afts, and alfo all Afjts of Parliament heretofore made concerning or re- fpefting the faid Colonies and Plantations, (hall be, and are hereby declared to be, in Force, within the faid Province of ^ebec^ and every Part thereof. ■ - « * u ^t ^ '- ^\ ' . < , 1. td W 'i *>4 1>. f * •< T :;>:> ?-.^^2 m -i t:J -it t .1 i;#^ V tr A*;/ t^i '5 1 -.1 T I . 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