ftr^^j,; THE GIFT OF K:^.L^A.%. ;^xl4l^..L. Date Due PP" ■ 4K^ - -> rn ■ .y4y J-' '].:■' rr q'5'' 1 \ R\ilt ^ .. i ,-2. 4si**r'i4^ pu X / Cornell University Library E263.C2 C67 The Province of Quebec a"d ,'';;« Sl)', ||,n|];^ olin 3 1924 032 660 643 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032660643 f» • BULLETIN OF THE UNIVERSITY OF WISCONSIN Economics, Political Science, and History Series, Vol. i. No. 3, pp. zys-sfii- THE PROVINCE OF QUEBEC AND THE EARLY/ AMERICAN REVOLUTION f\0^ Vllljrjy,^ A STUDY IN ENGLISH- AMERICAN COLONIAL HISTo\,-^:f5.A'B."^ VICTOR COFFIN, Ph. D. Assistant Professm- of European History in tlie University of Wisconsin PUBUSHED BY AUTHORITY OF LAW AND WITH THE APPROVAL OF THE REGENTS OF THE UNIVERSITY MADISON, WIS. PUBLISHED BY THE UNIVERSITY June, 1896 PRICE 75 CENTS QDontnttttsje of JJitblfcaHon CHARLES KENDALL ADAMS, President of the University EDITORS William H. Hobbs (Chairman), Science George L. Hendrickson, Philology and Literature Nelson O. Whitney, Engineering Frederick J. Turner, Economics, Political Science, and History Democrat Priatiog CJompiiDy, State Printer. BULLETIN OF THE UNIVERSITY OF WISCONSIN Economics, Political Science, and History Series. Vol. i. No. 3, pp. 275-562. THE PROVINCE OF QUEBEC AND THE EARLY AMERICAN REVOLUTION A STUDY IN ENGLISH-AMERICAN COLONIAL HISTORY Submitted to the Faculty of Cornell University in compliance with the regulations regarding the degree of Doctor of Philosophy. THE REGENTS OF THE UNIVERSITY MADISON, WIS. PUBLISHED BY THE UNIVERSITY June, 1896 PHICE 75 CENTS Democrat Printing Uumpany, Btate Printev. BULLETIN OF THE UNIVERSITY OF WISCONSIN EcoNOiHics, Political Science, and History Series, Vol. », No. 3, pp. 275-562, THE PROVINCE OF QUEBEC AND THE EARLY AMERICAN REVOLUTION A STUDY IN ENGLISH-AMERICAN COLONIAL HISTORY VICTOR COFFIN, Ph. D. Assistant Professor of Evroprmi History in the University of Wisconsin PUBLISHED BY AUTHORITY OF LAW AND WITH THE APPROVAL OF THE REGENTS OF THE UNIVERSITY MADISON, WIS. PUBLISHED BY THE UNIVERSITY June, 1896 PBICE 75 CENTS (\.<\(,'\\i> PREFACE. The present study was undertaken as one in English co- lonial history, and my first thought was closely to investi- gate governmental conditions in those parts of North America that did not join in the movement of revolt, not only just before and during the War of Independence, but also for such a period beyond that struggle as might show its more immediate effects on English colonial policy. The claims of other work have required the abandonment of the greater part of this undertaking, and the present publica- tion deals only with the Province of Quebec, from its acquisition in 1760 down into the Revolution. As an insti- tutional study the investigation ends with the Parliament- ary settlement of the constitution of the province by the Quebec Act of 1774; but as a contribution to the history of the American revolution it has gone far enough into the first years of the war to show the main connections of Can- ada with that event. These connections seemed to offer an important and unexplored field of investigation, and have therefore been emphasized to a degree not originally in- tended. On both sides of my work — institutional and revo- lutionary, — the Quebec Act becomes the central point. With regard to the institutional asjDect I have kept in mind, not only the ordinary tasks of government, but also the rarer and more difficult problem of the grafting of English governmental ideas on an alien society. The effort to contribute to American revolutionary history has been guided in the first instance by the idea of tracing, through the critical years immediately preceding the outbreak, the bearing of the Imperial government in an obscure corner PREFACE. where a freer hand was given to it than elsewhere; later there are encountered the obscure and important questions connected with the general colonial bearing of the Quebec Act, with its special influence on the early revolutionary struggle, and with the attitude of the Canadians toward that event. On these latter points I have been obliged, though entering upon the investigation without bias or controversial intent, to present my results in more or less of a controversial style and to go somewhat largely into the evidence. For in regard to them I am strongly at variance with the hitherto prevailing opinions; being forced to conclude both that the provisions of the Quebec Act were neither occasioned nor appreciably afEected by conditions in the other colonies, and that, far from being effectual in keeping the mass of the Canadians loyal to the British connection, the measure had a strong influence in precisely the opposite direction. The Canadians were not kept loyal, and Canada was preserved at this crisis to the British Empire through the vigor and ability of its British defenders, and through the mismanagement of their cause on the part of the revolutionists. As to the hitherto accepted belief with regard to the origin and aims of the Act, I need direct attention only to the Declaration of Inde- pendence and other utterances of the Continental Con- gress, and to the almost unvarying statements of Amer- ican historians ever since. The belief in its beneficial influence in Quebec has been nearly as uninterruptedly held; even by those who admit its disastrous influence on the course of events in the other colonies, it has been constantly regarded as a chef-d'oeuvre of political wisdom and humanity.' With this view I have no sym- ' Lecky, though laying stress upoa its distastefulness to the other colonies, speaks of it as especially important in the history of religious liberty, and as the result of the government having resolved, " as the event showed very wisely, that they would not subvert the ancient laws of the Province, or introduce into them the democratic system which existed in New England." (History of England in the Eighteenth Centvry, III Syflj. For modern Canadian expressions of similar views, as well as for asseverations con- PEEFACE. Y pathy, and I have steadily combated it in the convic- tion that the Quebec Act is really one of the most unwise and disastrous measures in English Colonial history. It will be shown below that it was founded on the miscon- ceptions and false information of the Provincial officials; that though it secured the loyal support of those classes in Canada, — the clergy and the noblesse, — whose influence had been represented as all important, at the critical junc- ture this proved a matter of small moment. For the noblesse were found to have no influence, and that of the clergy was found in main measure paralyzed by the provision which had again laid on the people the burden of compulsory tithes. "Without the Act the old ruling classes, there is every reason to believe, would have taken precisely the same attitude, and the people would not have been exposed to those influ- ences which ranged them on the side of the invader. Apart from Canadian affairs, the disastrous effect of the measure on public feeling in the older provinces must be strongly considered in any estimate as to its expediency. Judgment as to the general political wisdom, in distinction from the expediency, of this settlement of the constitution (and as it proved, largely of the history), of Quebec, will de- pend mainly on the view taken of certain general political facts and problems connected with the later history of Brit- ish North America; aspects which I revert to more specially in my conclusion. A factor in the decision must, however, be the opinion held of the character and spirit of the admin- istration to which that settlement was immediately due. An examination of the antecedents of the Act will indeed, I think, establish the conviction that the main desire of the authors of the measure was to further the security and cerning the unshaken loyalty of the French Canadians, see Watson, Oon.v(tiu(?'ona;i/fs iory of Canada; Lareau, Hist Droit Canadien ; Ashley, Lectures on Canadian Consti- tutional Mislory ; Bourinot, Tarlianientary Procedure and Practice in Canada. Mr. Kingsford, the latest and bostof Canadian historians, while admitting the disaffection of the Canadians at the beginning of the war, represents it as only momentary, and warmly defends the policy, expediency, and success of the Act. vi PREFACE. prosperity of the Province and fulfill treaty obligations toward the French Canadians, and will show that there is practically no evidence of more insidious aims with re- gard to colonial affairs in general. But it will also appear that the step was accompanied by manifestations of an ar- bitrary policy, and that it was taken at a moment when its authors were exhibiting in other ways real evidences of hostility to the free spirit of American self-government. It would be surprising indeed to find a high degree of wisdom and enlightenment displayed in any colonial measure that emanated from the ministry of Lord North. The careful and candid student will on the whole, I think, come to the con- clusion that though there are in the annals of that minis- try many more discreditable achievements than the Quebec Act, no single step taken by it has been more politically disastrous than that which, beside increasing the colonial difficulties of the moment, is mainly responsible for the continued burdening of modern Canadian life with a stead- ily growing problem of national divergence. My sources of information are stated in detail in Appendix II. The main study is based almost entirely on the manu- script copies of British State Papers in the Canadian Ar- chives (the more important ones being also examined in the originals or original duplicates of the London Colonial and Record offices) ; though I have used with profit all the later material that was available, I am not conscious of any such obligations as would call for more special notice than has been given throughout in my notes. An exception how- ever must be made in regard to Dr. William Kingsford's History of Canada, now in course of publication. The high value of Dr. Kingsford's book has been already fully recog- nized, and I very heartily concur in the recognition. My own main work on the period he has already covered has been done indeed in entire independence, and our conclu- sions frequently differ; but still my more intensive investi- gation owes a great deal to his more general and most PREFACE. Vll suggestive views. The material used for the general West- ern aspects of this study has been found mainly in the in- valuable.library of the State Historical Society of Wisconsin. With regard to personal assistance, I am heavily indebted to Dr. Douglas Brymner, the well-known Canadian Archivist, and to the late Professor Herbert Tuttle of Cornell Uni- versity. Dr. Brymner has not only f acilitated_in every way my use of both the Canadian and the English Archives, but has supplemented this assistance by the steady help of that wide and accurate knowledge and keen judgment to which American historical scholarship already owes so much. In Professor Tuttle's seminary the study was begun in the ordinary course of post-graduate work; that early stage of it owes a great deal to his searching and sugges- tive criticism, as does its whole progress to the abiding in- spiration of his own work and methods. I wish also to ex- press my obligation to Professor Frederick J. Turner, the Editor of this series, for very helpful discussion on vari- ous points, and for careful and suggestive proof-reading throughout. TABLE OF CONTENTS. INTEODUCTION. PAGE. English establisliment in Quebec 275 Tlie " Military Rule," 1760-4 ; 275 Outline of constitutional history, 1764-91 277 Abstract of Quebec Act, 1774 278 Material conditions, 1760-74 278 CHAPTER I. THE FRENCH CANADIANS. A. General. Ofi&cial characterizations 282 DifBculty as to such statements 283 General religious petitions, 1764 284 Relations between seigneur and habitant 285 Pacific attitude of the people 286 Emigration to France 287 Popular perception of changed conditions 288 Attitude toward specific matters 290 Watchfulness of officials 291 Absence of popular movements 292 Elements of political education 293 Evidence as to political progress 294 The bourgeoisie 295 B. The Noblesse and the Clergy. General ofiBcial statements as to Noblesse 297 Political manifestations of noblesse 298 The Clergy in the "Military Period " 299 Satisfactory conduct of Clergy throughout 301 X TABLE OF CONTENTS. CHAPTER II. THE BRITISH SETTLERS. A. Numbers, Origin, Occupations, Character. PAGE. Numbers 30? Birth and early life 303 Americans and non-Americans 304 Occupied mainly in trade 305 Connection with the land 306 Antagonism to of Provincial executive 306 As shown in general official reports 307 Injustice of this attitude 309 B. Political Attitude. Prevalence of the American spirit 309 Apparently intolerant attitude 310 The two sections of the party 310 The Grand Jury of 1764 311 Petition against Murray, 1765 313 Opposition to customs duties 313 The general ground of this 314 The Province and the Stamp Act .316 Commercial memorials, 1770 318 Petitions for an Assembly, 1768-74 318 The British party and the Civil law 320 C. Relations loith the French Canadians. Hostility to the noblesse 321 Increasing influence with people 322 Traces of this 323 No evidence of Irreconcilable conditions 324 CHAPTER III. THE PROVINCIAL GOVERNMENT. A. General Status. A Crown Colony without an Assembly 326 Viewed from standpoint of Constitutional legist 326 Proclamation of 1763 the constitutional basis 328 TABLE OF CONTENTS. xi PAGE. Unconstitutionality of the actual government 1764-74 328 Parallel case in Nova Scotia, 1749-55 329 Instructions to Quebec Governors 330 Provincial legislation null and void 331 Difficulty as to laws legally subsisting , 331 Examination of status of English civil law 332 Bearing of Proclamation of 1763 333 B. General Administration. The position of the Governor 337 Relation between Governor and Council 338 The Council 339 Legislation of the period 341 Executive work of Governor and Council 343 Judicial work of Governor and Council, 343 C Judiciary. Civil Service. Organization of Provincial judiciary 344 Recognition of French conditions 346 Important change of 1770 347 Laws actually in use 348 Confusion and difficulty on point 349 Continued use of French law 352 Slight resort of people to courts 354 Injury from confusion and uncertainty 355 Burdensome procedure 356 Abuses of Civil Service 357 Patent offices and fees 358 D. Finances. Dependent financial position of Province 360 Possible sources of revenue 361 Customs duties 362 Expenditures 363 CHAPTER IV. THE SPIBIT AUD DEVELOPMENT OF ADMIKISTKATION. Scope of the enquiry 365 xii TABLE OE CONTENTS. A. The Provinoial Governors. PAGE. Unusual importance of office 365 Governor Murray 366 Policy of Murray's administration 368 Governor Carleton 369 Policy of Carleton 's administration 371 Errors common to both governors 372 Carleton's attitude toward Fi-ench 373 The importance of his views in this regard 375 B. The Imperial Office. Imperial attitude toward French and English 375 Prejudice against the English party 378 General policy of Imperial executive 380 As shown in the fundamental documents 380 The commission of Governor Murray 381 As compared with a Nova Scotian one (1749) 382 With a New York one (1754) 383 Bearing of the divergences 384 Commissions and Instructions of Carleton 384 Official relations of ImperiaFand Provincial authorities (Note) 386 Special interpositions of Imperial executive 386 In regard to legislation 387 Executive interferences 388 Hillsborough and inter-provincial Congresses 389 CHAPTER V. THE QUEBEC ACT, — ITS ORIGINS AMD AIMS. Special interest of the Act 39I The different aspects of its importance 39I A. Prelim manes. Long delay of the settlement of the government 391 Instability of English administrations, 1760-70 392 General references to Canadian affairs, 1764-74 393 Appearance of the Quebec Bill, May 2, 1774 394 The Commons' Debates on Quebec Bill 395 Small attendance in House ony TABLE OF CONTENTS. XUl B. History of Main Provisions. a. Boundaries. PAGE. Importance of this feature as affecting general Western history 398 Modern views in regard to it 398 The idea of change in British policy, 1760-3 399 Slightness of evidence produced therefor 400 Pertinent circumstances attending treaty of Paris, 1763 400 Political writing and the new acquisitions 401 Arguments used in Parliamentary debates 403 Bancroft and Lecky on the Treaty 404 The Proclamation of October, 1763 405 Implied duplicity of its language 406 Profession of solicitude for Indians 406 Keal meaning of this 407 Causes for anxiety about Indians 408 Previous Imperial attitude on matter 409 Proclamation of 1763 only the culmination of this 411 The special question as to limits of Canada 411 Absence of definite idea of limits at peace 412 Preliminary consideration of matter 413 Proclamation in this regard only a partial settlement 415 Disorganization of fur-trade in delay of full provision 416 Steady increase of injury and danger 417 Natural result the extension of Quebec 419 Discussion of matter in Quebec Act Debates 420 Statements of Wedderbourne and Lyttleton 420 Simply expressions of old colonial policy 423 As is also the whole treatment of matter 423 The steady attitude of the Board of Trade 424 Expression of it in 1768 424 Franklin and Hillsborough on this 426 " Vandalia " grant in 1772 no disproof of this 426 For this region on different basis 427 As shown by Reports of 1768 and 1772 428 Old policy still existing north of Ohio 429 William Knox on the point 429 Disastrous character of this Western policy 431 b. Religion. Lecky and Continental Congress on this provision 432 •Government and the Roman Catholic Church in Canada 433 xiv TABLE OF CONTENTS. PAGES. Real import of the Treatj- provision *34 Concessions in regard to the Bishop 135 Instructions to Carleton, 1768 *3' Exact force of provisions of 1774 ^38 No real Establishment of Roman Catholic Church 439- As shown by Carleton's Instructions, 1775 439' Provisions of these in favor of Church of England 440» Discussion of subject in Commons, 1774 441 Position of Roman Catholic Church but slightly improved 442; Treatment of Church in Island of Granada, 1763-8 444 Government influenced mainly by Treaty obligations 446- As shown by illiberality elsewhere **'?' Liberal conduct toward Church throughout period 447 Attitude toward regular clergy *49' c. Civil Law. Establishment of French law, 1774 450' But English law not properly " abolished." 451 Development of policy in this matter, 1763-74 451 Carleton's vigorous views 45o- Reports of Provincial oflicials 456 Important change in regard to land-granting, 1771 457 Reasons for and meaning of this 458- The legal provision in the Commons, 1774 460' Instructions to Carleton, 1775 461 d. Legislative Assembly. Arbitrary appearance of denial of this 463^ Board of Trade on, in 1765 463. Presumption of Assembly in later Instructions 464 Report of Wedderbourne, 1772 465- Discussion of matter by Maseres, 1773 467 The import of his views 46S Debate in Commons, 1774 469 No evidence of sinister design 471 Absence of such evidence with regard to Act throughout 472 But no reasons for careful concealment 472 Some reason for open avowal 472 TABLE OF CONTENTS. C. Application of the Act. PAGE. New Instructions to Governor, 1775 473 New development in regard to council 474 Checked by home government 475 Failure of Act to reform official abuses 477 Continued confusion and uncertainty in law 478 Anarchy in administration of law, 1775-91 478 Act therefore does not advance good government 479 CHAPTER VI. THE QUEBEC ACT AND THE AMERICAN REVOLUTION. A. The Revolution in the Province of Quebec, No ground for laudation of policy of Act 480 For not intended as this would imply 480 And did not produce the effects supposed 481 Disastrous influence on general colonial troubles 481 Effect on English party in Quebec 482 Carleton's report of seditious movements, November, 1774 483 Correspondence with Boston Committee 484 Final split in the English party 485 Tories and Revolutionists 485 Latter a small element 486 Conduct of former throughout war 487 The Quebec Act and the French Canadians 487 No ground to expect favorable results on latter 488 Ground for expecting unfavorable ones 489 Evidence as to alienating effects 490 Difficulty as to early reports 492 Influence of the English malcontents 493 Fears of the French Canadian leaders 493 Increase of popular hostility to Act 494 First shown clearly in American invasion 495 Early steps of Congress concerning Canada 495 The mission of John Brown 496 The first military operations (May, 1775) 496 Carleton attemps to raise militia 497 His complete failure 497 Proclaims Martial Law (June 9, 1775) 498 XVI TABLE OP CONTENTS. PAQE. Official reports as to continued hostile attitude of people 498 Evidence of Chief-Justice Hey and M. Badeau 500 Evidence from the Continental forces 501 Inadequacy of some contemporary reflections 504 Futility of efforts of the clergy 505 Defection of Canadians not merely momentary 506 As shown by later careful official reports 507 Widespread nature of the disaffection 510 Statistics as to Canadians on British side 510 Attitude of the hourgeoiftie 511 Effect of the French-American alliance 512 Courses open to noblesse and clergy 512 Quebec Act wholly needless and largely injurious 513 B. The Failure of the- American Fxpediiions. Connection of this enquiry with previous statements 513 No effective use made of Canadian partiality 514 Conduct of invaders tends to alienate Canadians 514 Inadequacy of general causes assigned for failure 514 Colonial authorities as to importance of Canada 515 Real place of the "hard money " difficulty 516 Canadians laid under contribution 517 Continental statements as to ill-treatment of 518 General character and conduct of Continental troops 521 Statements of commanders 522 Testimony from the ranks 523 Dangerous influence of Carleton upon latter 525 The last of the expedition 526 General reflections upon it 527 What might have been achieved 528 CONCLUSION. Relations of study to American Revolution 529 Purpose of examination of the origins of Quebec Act 530 Objection with regard to the earlier colonial troubles 530 Consideration of English ministerial conditions, 1764-70 531 Whig party committed to Quebec Act provisions 532 The study with regard to later Canadian history 533 Misfortunes entailed by act 533 TABLE OF CONTENTS. XVU PAGE. What should have been done in 177i 534 Illustration from case of Louisiana 534 Considerations as to early English settlement 535 Loyalists kept out by the Quebec Act 537 The direct developments from the Act 538 Lord Durham's Report in 1839 539 Opinions as to Anglicizing of Quebec 540 The development that might have been secured 542 APPENDIX I. The Quebec Act, 1774 544-52 The Quebec Revenue Act, 1774 552-57 APPENDIX II. Authorities 558-562 THE PROVINCE OF QUEBEC AND THE EARLY AMERICAN REVOLUTION. INTRODUCTION. What was known under the French as Canada or New France came into English possession through the capitula- tion of Montreal, September 8, 1760, and was finally ceded to England by the Treaty of Paris, February 10, 1763, closing the Seven Years' War. As thus ceded, no definite limits were assigned to " Canada, with all its dependencies, " the only boundary line mentioned in regard to it being the Mississippi river. The British government was thus given a free hand in defining its extent, subject to the fixed boundaries and well-established claims of the adjacent colonies, to the indefinite possessions of the Hudson's Bay Company, and, more or less, to the conceptions of the Cana- dians themselves. Many causes intervened to delay a final settlement of the matter of boundaries, and mean- while, by the Royal Proclamation of October 7, 1763, the new Province was defined so as to embrace, for the time be- ing, a rectangular district of not more than 100,000 square miles, extending along both sides of the St. Lawrence river from the mouth of the River St. John to the point where the St. Lawrence is intersected by the 45th degree of north latitude. From the date of the capitulation till August 10, 1764, the new acquisition was governed by the commanders of the 276 BULLETIN OF THi; UNIVERSITY OP WISCONSIN. Englisli forces in occupation, and the period is therefore known as that of the Military Rule. The investigation of political conditions in the Province does not necessarily have much to do with this preliminary suspension of civil government; but a brief statement of the general character of the Military Rule is necessary for several reasons, es- pecially to show what had been the earliest experience of the French Canadians under British government, and with what anticipations they were likely to view its permanent- establishment. It may be safely asserted that the military character of the government, so far as felt by the people in ordinary affairs, was to a large extent merely nominal. The final authority of course resided in the military arm, and the courts established for the administration of justice were of a military form; but these courts were not governed by the principles of martial law, at least in matters where the old French law or custom could be dis- covered or applied. French Canadians had a share in their administration,' while such instruments of local govern- ment as existed under the French seem to have been largely retained.- All contemporary testimony from the French Canadians is unmistakeable in its appreciation of the justice and humanity of the general proceedings of the military, and of the hopes the people had thus acquired for the future.^ The official statements throughout the period as to the very satisfactory conduct of the French Cana- dians must be admitted to show a large degree of at least external harmony. We may conclude therefore that the conduct of the British authorities during this difficult time 1 See Lareau, Hist, de droit Canaduui, II, S7. For evidence of the satisfaction of tlie French with these courts see reference to petitions for their retention. (Canadian Archives, Q. 2. p. 273). 2 See as to continuance of the office and functions of the captains of militia. Or- dinance concerning sale of lire wood, Nov. 27, 1765, VoL of Ordinances iu Can. Archives. 3 See Report Ca uadian A rch . , 18SS, p. 19. See also iV. Y, Colonial Documents, X., 1155, for a French memoir (1763) concerning the possibility of exciting a rebellion in Canada. It speaks of the people havins: been further drawn from their allegiance to France by the "mild regime of the English, the latter in their policy having neglected nothing to- espedit* the return of that comfort and liberty" formerly enjoyed. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 277 had been such as to win in large degree the confidence of the conquered people, and that civil government was estab- lished in 1764 under favorable auspices. It was on the model of the other Crown Colonies in America that British civil government was introduced on August 10, 1764, in pursuance of the Proclamation of Octo- ber 7, 1763, and under a commission appointing Gen. James Murray, one of the resident military officers, " Captain-General and Governor-in-Chief in and over our Province of Quebec." Under this official and his suc- cessor. Col. Guy Carleton, government was conducted throughout the whole period covered by my investigation. Until 1775 the Proclamation of 1763, a purely executive act, continued to form the basis of administration; for the Quebec Act, passed May, 1774, and going into force one year later, was the first interference of the Imperial Par- liament in Canadian affairs. This remained the constitution of Canada from 1775 to 1791, at which latter date its provis- ions, so far as they afEected the western part of the country, then being settled by the United Empire Loyal- ists and now known as the Province of Ontario, were repealed by the Constitutional Act. As affecting however the settled regions acquired from the French and distinct- ively known after 1791 as Lower Canada, the Quebec Act, in its main provisions, still continues in force. It has kept alive in British North America a French nation, never so united or self-conscious as at the present time. One of the main objects of this inquiry is to investigate closely the conditions which led to this Act, and the state of govern- ment which it was intended to amend, with reference to the general wisdom and expediency of the measure and to its special connections with the American Revolution. As I must constantly anticipate in my references to the Quebec Act it will be well perhaps to introduce here a short statement of its main provisions.' With the accom- panying Revenue Act it enacted : 1 See App. I. for full reprint. 278 BULLETIN OF THE UNIVERSITY OF WISCONSIN. 1. That the province of Quebec should be extended to in- clude all the territory which the French had been supposed to lay claim to under the name of Canada, i. e., on the east to Labrador, on the west to the boundaries of Louisiana and the Hudson Bay Company's territory, and on the south to the boundaries of the other provinces and the Ohio ; in- cluding therefore to the southwest and west the regions which now form the states of Ohio, Michigan, Indiana, Il- linois, Wisconsin, and part of Minnesota. 2. That all previous governmental provisions in regard to Quebec as before constituted or to any part of the added territory should be annulled, and that the I'rovincial gov- ernment should for the future consist of a governor and council, both appointed by the king, and together invested with a strictly limited legislative and money power. That a revenue should be provided for the province by customs duties imposed by the Imperial government, said revenue being entirely at the disposition of the Imperial authorities. 3. That full toleration of the Roman Catholic religion should exist in the province, including the removal of all disabilities by test oaths; and that the Church of Rome should " hold, receive and enjoy " its accustomed dues and rights with respect to its own adherents. 4. That though the English criminal law should continue to prevail, the inhabitants should "hold and enjoy their property and possessions, together with all customs and usages relating thereto, and all others their civil rights," according to the ancient laws and customs of Canada; these laws and customs to remain in exclusive possession until altered by provincial ordinances. It may readily be imagined that Canada emerged from the final struggle of French and English in no very pros- perous condition. Authorities agree in their doleful descriptions of the greatly weakened and almost destitute state of the colony in 1759, on the eve of the great contest; and the efforts of the two following years still further re- duced it. During the first or military stage of the British occupation we meet with frequent official references to the danger of famine, and the dependence of the people on the government. But this state was not of long duration. When civil government is established, August, 1764, the crisis seems past, and the colony may be said to have again attained the position it had held on the eve of the COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 279 conquest. The new blood and capital that had been intro- duced, together with the unbroken peace of four years, had stimulated all branches of industry and had opened the way for the remarkable growth that is clearly traceable down to 1775. The inhabitants cultivated their lands and pursued the Indian trade and the fisheries in peace and with com- paratively little molestation from the new state of things. Content to be left alone, they concerned themselves little about public affairs, and it is not till 1775 that we meet with any general political manifestations on their part. Har- vests steadily increased; the fear of famine died away; the fanciful schemes for the commercial salvation of the province which we meet with in the early years gradually disappeared. Trade, at least in the wholesale and foreign branches, fell into the hands chiefly of the small but enter- prising body of new English- speaking settlers who, at- tracted by the fur trade and the fisheries, had followed in the wake of the conqueror ; and it soon received from them a very notable impulse. The cultivation of the soil, re- maining almost entirely in the hands of the French Canadians, shared more slowly in the general improve- ment. The old French methods of culture had always been bad, and it was not till the latter part of the French regime that the country had produced enough for its own sub- sistence; but before the year 1770 a considerable quantity of grain was being exported.' In the opening up of new 1 striking evidence as to the comparatively prosperous condition of the people in the latter part of the period is furnished in scattered references of the more observing revo- lutionists who visited the province, 1775-6. Charles Carroll {Journal, Maryland Hist. Soc. Papers, 1876, p. 98), writes in May, 1776, that the country along the Sorel "is very populous, the villages are large and neat, and joined together with a continued range of single houses, chiefly farmers;" and after contrasting the prosperity of these farmers with the poverty of the seigneurs, adds: "It is conjectured that the farmers in Canada cannot be possessed of less than one million pounds sterling in specie ; they hoard up their money to portion their children ; they neither let it out at interest nor expend it in the purchase of lands." The writer of Henry's Account of the Campaign directed special attention to the habitant, and testifies to his economy and prosperity. "It seemed to me that the Canadians in the vicinage of Quebec lived as comfortably in gen - eral as the generality of the Pennsylvanians did at that time in the County of Lancas- ter." (Albany, 1877, p. 95.) 280 BULLETIN OF THE UNIVERSITY OF WISOONSIN. lands, however, very little progress was made in the early years; not indeed until the old French form of grant was reverted to." Manufactures were primitive and unimpor- tant. The policy of the government with regard to them does not seem to have differed in the main from that fol- lowed contemporaneously in the other colonies; though there are evidences of more enlightened conduct in the latter part of the period. = The growth in population of the province during this period cannot be very accurately stated, but a comparison of the various conflicting estimates with general data leads to conclusions that are probably not much astray. A con- siderable decrease was occasioned by the removal to France, on the conquest, of most of the official and a large part of the noble and commercial classes;' and in 1762 the official returns give a total of 65,633 for the settled parts of the province. Beyond this there was by 1775 a scattered pop- ulation in the upper western country of about 1,000 families, as well as fishing colonies around the mouth of the St. Lawrence. The growth throughout the period was al- most entirely a natural one. Cramahe writes in 1773 that "fourteen years' experiences have proved thatthe increase of the province must depend upon its own population." But the French Canadians then as now needed no outside assistance in this matter, and it is probably safe to esti- mate them at 90,000 in 1775. Higher estimates, (and the contemporary ones of Carleton and Maseres are much higher),* are manifestly inaccurate in view of the fact that the official census of 1784 asserts a total of only 113,012. The population from the beginning was divided into two well defined sections of very unequal strength; (1) the French Canadians, who are constantly referred to in the official correspondence as the "new subjects," and (2) the 1 See below. 2 See Can. Arch., Q. 5-2, pp. 760, SJ9 ; Q. 6, p. 15. ' Murray states .July 17, 1761, that the population was then 10,000 leas than in 1759. * Evidence before Commons in Quebec Act debate, Cavendish, Report. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 281 small new English- speaking element, designated as regu- larly as the " old subjects. " These sections, in their distinctive features and activities, will be later considered separately. Suffice it now to say that the British element was almost exclusively a trading one, and that but a very small part of it devoted itself to agricultural pursuits. It had been attracted to the province by the fur or Indian trade, and we shall find that the influence on the fortunes of the colony thus early exerted from this quarter was des- tined to be of the utmost importance throughout the period. 282 BULLETTN OP THE UNIVEaSITT OF WISCONSIN. CHAPTER I. THE FRENCH CANADIANS. A. General. It does not come within the possibilities of this investi- gation to present any close character study of the French Canadian, though it will be readily conceded that some such study is indispensable to the proper understanding of the conditions under which we must consider the new rule. For such a picture we can, however, go to Parliman, whose latest sketches bring the habitant and gentilhonime before us as the English conqueror found them; the former a loyal, ignorant, easily-led, but somewhat unstable peasantry of military extraction and training, with a decided taste for the wild, free life of the woods ; the latter an entirely mili- tary semi-nobility, who from their first appearance had as the basis of existence the Court and the Camp, and who were almost as poor and ignorant and politically powerless as the habitant, whom up to this time they had found a docile follower, and of whose wild and hardy life they had been full sharers. In less romantic but not less pleasing colors is the habitant described by Governor Murray in 1762 — "a strong, healthy race, plain in their dress, virtuous in their morals, and temperate in their living;' in general entirely ignorant and credulous, they had been preju- diced against the English, but nevertheless had lived with the troops "in a harmony unexampled even at home;" and needed only to be reassured on the subject of the preservation of their religion to become good subjects.' Two years later the same authority writes of the French Canadians generally as "perhaps the bravest and best race upon the globe, a race, who, could they be indulged with a '■ General Report, 1762, (Can. Arch., B. 7, p. 1). COFFIN — THE PROVINCE OF QITEBEC, 1760-76. 283 few privileges which the laws of England deny to Roman Catholics at home, would soon become the most faithful and useful set of men in the American empire."' And November, 1767, Carleton describes them as comprising 10,000 men who had served in the late war, "with as much valor, with more zeal, and more military knowledge for America than the regular troops of Prance that were joined with them. " Indeed, this military origin and train- ing of the people must be always kept in mind in estimating their attitude and the causes likely to influence them. Easily led, they were by no means timid or spirit- less. The clearly marked upper class sections ol the French Canadian poj^ulation — the noblesse and the clergy — will be considered more particularly later; for though small in numbers their political weight was very great. Meanwhile, I shall have regard to general features, so far as they can be discerned. And here we are not always free of uncer- tainty; for when the new English observers speak of the " French Canadians, ' or the " new subjects, " or the " peo- ple," in a general way, it is by no means always easy to determine how much worth the observation has as a gen- eral one, or to what extent the observer's vision is narrowed by special conditions. There can be little doubt that most of the representations of the officials as to the attitude and character of the "new subjects" are really ap- plicable only to the small section of them that came more immediately and easily under view, — the noblesse. These were continually hanging about the governmental steps and obscuring the mass of the people; the latter, with no knowledge of their former leaders' designs, and steadily growing out of sympathy with their whole life, stolidly pursued the work that was nearest to their hands, content to be let alone, and troubling themselves very little about changes of government or law. 1 To Board of Trade, October 29th, 1764. Can. Arch., Q. 2, p. 233. 284 BULLETIN OF THE UNIVERSITY OP WISCONSIN. One of the first unmistakably general observations by the new rulers is an assertion by Murray in 1762 that the people are not ripe for the same form of government as in the other colonies. Their strong attachment to the church of their fathers and the great influence the clergy had ex- ercised and could still exercise over them, are . frequently spoken of and insisted upon; though as early as 1762 (after two years of peace and English government), we find Murray stating in his official report that " they do not submit as tamely to the yoke, and under sanction of the capitulation ' they every day take an opportunity to dispute the tithes with their cur4s. " - A year later (October 23, 1763),^ he urges on the home government the necessity of caution in dealing with religious matters; adding how- ever , that the people would not stickle for the continuance of the hierarchy, but would be content with the preserva- tion of the priesthood as a devotional and educational body. Several petitions in regard to religious matters ac- company this letter, and these are undoubtedly the first general manifestations within our period of French Cana- dian opinion on any subject.' They appear on the eve of civil government, being called forth probably by the news of the definite ceding of the country to England. Of their genuineness and representative character there can be little doubt, and making all allowance for the spirit of humility and modesty which the situation would be likely to en- gender, we cannot escape the conclusion that the body of the people had no desire for anything more in regard to religion than the measures necessary for the complete en- ■ 1: 1 In the 27th article of the capitulation (September 8, 1760), the French commander had demanded that the people should be obliged by the English to pay the customary dues to the Church — a demand which was referred by Amherst to the will of the king. The clause was undoubtedly instigated by the clergy, and may be interpreted as show- ing that the latter were not at all disposed to trust to voluntary contributions. The Eioint should be keijt in mind in considering the attitude of the Canadians towards the Quebec Act, which re-established compulsory payment. 'Can. Arch., B. 7, p. 1. sib.,Q. 1, p. 251. •■ lb., Q. 1, pp. 226-47. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 285 joyment of its voluntary features, and that they were already distinctly opposed to its legal establishment with compulsory powers. As to the relations between the habitants and their old secular leaders, the noblesse, we have few indications previous to the Quebec Act. Murray, in a general report ' immediately after his recall, (while still governor, but under the shadow of disapproval and investigation), repre- sents the state of things as perfectly satisfactory, in the sense of the habitants being still of a submissive and reverent spirit; saying that they are shocked at the insults offered the noblesse by other classes in the community. This must be taken very cautiously, for Murray's object was to represent the noblesse, with whom he had been very closely associated against those other classes, as thoroughly in sympathy with the great mass of the people. Nor of much greater weight, probably, is Carleton's rep- resentation, March 15th, 1769, as to the advisability of admitting some of the noblesse to the Council on account of their influence over the lower classes (and over the Indians).^ For he too seems to have remained in error on this point until roughly awakened by the utter failure of the seigneurs in 1775 in their attempt to assert, for the first time since the conquest, the old influence. This will appear more fully later; at present we need only notice the statement by Chief Justice Hey, that Carleton " has taken an ill measure of the influence of the Seigneurs or clergy over the lower orders of the people, whose principle of conduct, founded in fear and the sharpness of authority over them now no longer exercised, is unrestrained, and breaks out in every shape of contempt and detestation of those whom they used to behold with terror, and who gave 1 Can. Arch., B. 8, p. 1. (Aug. 20, 1766.) = Can. Arch., Q. 6, p. 34. See also to Shelboume, Jan. 20, M68 (Q. 5-1, 370), and Not. 6, 1767 (Q. 5-1, 260). The latter is printed in fuU in Bcp. Can. Arch., 1&38, p. 41. 286 BULLETIN OF THE UNIVERSITY OF WISCONSIN. them, I believe, too many occasions to express it."' Our later investigation will show that there can be little doubt that the influence of the noblesse had steadily declined from the first hour of English domination, and that the habitant had come with remarkable rapidity to look upon the seigneur merely in the light of an obnoxious landlord." The causes of this change are not obscure and include a clearer perception of the changed character of government than the Canadians are generally credited with. For the main reason, no doubt, was the greatly altered position of the noblesse under the new regime, and their utter de- privation of that real military and nominal judicial author- ity which they had formerly enjoyed." The contemporary social relations in old France will at once suggest them- selves to the reader; and I need here only remark that this is not the only indication we have that social conditions in the New France were not so different as has usually been supposed. Coming more particularly to the matter of general politi- cal attitude we are at once struck by the fact that the trouble shortly before experienced with the Acadians seems to have no parallel in Canada down to the American inva- sion. At the capitulation the Canadians acquiesced by the most complete submission in the new rule, and during the period that elapsed before the fate of the country was finally decided we have in the reports of the commanding officers only the strongest expressions of content with the manner in which they are conducting themselves. Murray's testimony (already quoted), is amply supported by that of others representing all sections of the country. Burton (commanding at Three Rivers), says that they "seem very happy in the change of their masters," and "begin to feel 1 To the Lord Chancellor, Aug. 28, 1775. Can. Arch . , Q. 12, p. 203. ^ See MasSres' Accountof the Proceedings, etc.; also Cramah6 to Hillsborough, July 25, 1772. (Can. Arch., Q. 8, p. 160.) 3 The influence of military position upon the habitant was early perceived by Murray, ■who in 1764 strongly urges on the home government the necessity on this account of the military and civil authority in the Province being united. (Can. Arch., Q. 2, p. 206.) COFFIN THE PROVINCE OF QUEBEC, 1760-76. 287 that they are no^longer slaves."' Gage (at Montreal), writes that " the people in general seem well enough disposed towards their new masters. " ' The strongest assertions come from Haldimand, a French-speaking Swiss soldier, (Carleton's successor in 1778 as governor of the province), who may be supposed not only to have been best able to make himself acquainted with the real attitude of the people, but also to have been the least easily swayed in his conclusions. August 25th, 1762,' he writes in the most emphatic manner in regard to the groundlessness of the fears that had been expressed lest the Canadians should be dangerously affected by a recent success of the French in Newfoundland, and later asserts that, with the exception of the noblesse and clergy they are not uneasy as to their fate, and will easily console themselves for the change of rulers.' Allowance must probably be made in these representations for the natural desire of the military authorities to put their management of the country in the best light possible ; but making all such we can still have no doubt that matters were in a per- fectly pacific (perhaps, rather, lethargic), state, and that from the conquerors' standpoint the conduct of the habitant left little to be desired. The people were indeed thoroughly exhausted from the recent struggle and all thought of further resistance had departed with their leaders, the most irreconcilable of whom had gone to France at the capitulation. They had been stimulated in their efforts against the English by representations of the tyranny the latter if successful would immediately institute, — representations which had been the more easily credited from their knowledge of the fate which had overtaken the Acadians.^ But that this fear was 1 Official report, May, 1763. Can. Arch., B. 7, pp. 61-83. = Official report, March 20, 1762. Ibid., B. 7, p. 8«. 'Ibid., B. 1, p. 216. * To Amherst, December 20, 1762, and February, 1763. Ibid., B. 1, pp. 262, 266. ' Morray to Halifax, March 9, 1764. Can. Arch., Q. 2, p. 78. 288 BULLETIN or THE UNIVERSITY OP WISCONSIN. rapidly dispelled is strongly indicated by the statistical statement with regard to the emigration to France, which had been provided for in the treaty, and which was open with- out restriction to all for eighteen months from its conclusion. As we have already seen the leading French of the official, military and commercial classes had left be- fore the cession; it is safe to conclude that these for the most part had never been very strongly rooted in the country, and were first of all. Frenchmen. The later records show that those who had any landed interests in. Canada joined but little in this movement, and that still fewer of the mass of the people went.' The term of facili- tated emigration extended through the summer of 1764, and in August Murray, after collecting statistical statements from the different commanders, writes that only 270 are going from the whole province, most of whom " are offi- cers, their wives, children and servants." The tone with which the people finally accepted the irrevocable handing over of the country to England is very plainly to be seen in the religious addresses which have already been referred to as the first movement in any sense common that we meet with on the part of the Canadians. The tone is a manly one, and without any hypocritical professions of pleasure at the state of affairs, indicates a readiness (recog- nizing " que toute autorite vient de Dieu") to make the best of a bad business. In general, therefore, with regard to the lower classes, we do not find throughout the period preceding the Quebec Act any indication that might have made the rulers uneasy. And certainly if anybody had profited by the change of gov- ernment it was the hahitant. He had been relieved from very grievous burdens, and at least during the earlier years, does not seem to have felt much new pressure in their stead. His peace and security had formerly cost him con- 1 Emigration on their part was of course a mucli more serious matter. And the Canadians were early remarkable for love of their native country. {See Cramah6 to HiUsborongh, July 25, 1772. Can. Arch., Q. 8, p. 160.) COFEIN — THE PROVINCE OP QUEBEC, 1760-76. 289 stant and often most critical military service ; now it cost him nothing. And that he was not slow in appreciating some aspects of the change in government is shown by a difficulty those in charge of the battemix service met with in the autumn of 1765. This service (of transporting by water troops and supplies to the garrisons in the upper country), was a constantly necessary one, and had been performed during the military period (i. e., 1760-4) with- out any difficulty by means of impress warrants,— the people apparently regarding as a matter of course what they had been accustomed under the old regime to do as a part of their regular militia duty. On the separation of the civil from the military authority such demands upon the people in time of peace became illegal,' and the service had not been otherwise provided for. During the first year of civil government it seems to have been continued, how- ever, in a moderate way without opposition that we hear of; but October, 1765 the officer in charge reports great difficulties. Governor Murray had refused to grant im- press warrants, sending instead to the local authorities recommendations of a peremptory nature; but we find it stated that half of the parishes applied to had refused to send a man, and that in one place the people had threat- ened to beat the bailiff. The military officer reports that ■■ the bailiffs disregarded the orders given and the people were adverse and corrupted, " and again that "the Canadians are now poisoned in their minds and instructed that they cannot be forced on such services. " And it was not until an impress warrant of full power had been issued by the governor (on the plea of unavoidable necessity), that the service could be performed.' But it would seem that it was only on its military side of relief from oppressive duty and the immediate control of the seigneur or captain of militia, that the change of government seems thus to have 1 See opinion of Prov. Att.-Gen., October 5tb, 1765. Can. Arch., Q. 3, p. 81. 2 Lords of Trade to Colonial Secretary, May 16tli, 1766, with enclosures. Can, Arch., Q. 3, pp. 53-120. 290 BULLETIN OF THE UNIVERSITY OF WISCONSIN. been appreciated. In a letter to Shelbourne of December 24:th, 1767, Carleton, after discussing the fact that the French Canadians still continued to transact their minor legal affairs in ways which would be invalid in the higher courts, writes that he has met only one Canadian " who sees the great revolution ' in its full influence, " and that he anticipates general consternation as the situation comes to be known. In January, 1768, we find Carleton declaring that the ex- clusion of the Canadians from office, though directly concerning but a few (as but few were eligible), indirectly affected the minds of all, being regarded as a national slight and prejudice. There is strong reason for doubting the accuracy of this statement and for believing that on the whole the body of the people did not trouble them- selves about the matter. It is difficult to come to a decision as to how far a similar opinion may be justified in regard to the movement that undoubtedly gained ground, or at least more confident expression, every year, with reference to the full restoration of the ancient civil laws.- But we are safe in taking whatever general expression we find on this head in a much more representative light, for every presumption would lead in that direction, and the influence of the clergy was a constant factor therefor.^ As stated above, the earlier years do not show any very decided steps, and no doubt the more resolute stand of the later years is largely attributable to political education on the part of a few, and to the increasing pressure of the new system, which was daily augmenting the points of contact. It must from year to year have been found more difficult to follow the course with which the people have been ' He is referring more especially to the laws, supposedlj- in ioto changed by the Proclamation of 1763. = English criminal law was never objected to, and probably touched the people on few points. See evidence of Carleton before House of Commons, llli. Cavendish's Report. ^ See in connection here the later discussion of the extent to which French and Eng- lish law was actually used. COFFIN — THE PROVINCE OP QUEBEC, 1760-7G. 291 credited, of avoiding the courts (for the Canadians were naturally a litigious people).' Not many petitions or memorials on this subject have come down to us from these years, but there were undoubtedly more than we know of. It was Carleton's policy to discourage this or any other form of popular demonstration,— a policy which his known sympathy with the objects of the French and the hopes he held out of their being soon attained, enabled him to follow out pretty successfully. August 7th, 1769, he writes that when last at Montreal he had succeeded in suppressing " the rough draft of a memorial to the king for the ancient laws, " which had been " communicated for my approval. " - October 25th, of the same year, he says that the lack of petitions on this subject was due solely to himself, and that if there had been given any hint that such were thought requisite, "there is not a Canadian from one extremity of the province to the other that would not sign or set his mark to such a petition. " " He seems to have succeeded in inspiring the Canadians who were so minded with confidence in his advocacy of their wishes, and when he left the province in the autumn of 1770 (going ex- pressly, as was well known, to give advice preparatory to a decisive settling of the government), he was presented by the French Canadians only with some addresses in regard to education, which they beg him to add to the points to be represented on their behalf. In a word it may be safely asserted that there was nothing in the attitude of the people during this period to give the government serious disquietude. And we have evidence that the officials both at home and in the province were keeping a close watch for all symptoms of discontent, and were predisposed to see them if they existed. March 27th, 1767, Cai'leton writes to Sir William Johnson (in answer to ' Memorial of Pierre du Calvet, October, 1770. Can. Arch., Q. 7, p. 279. 2 Can. Arch., Q.6, p. 115. ■ Can. Arch., Q. 6, p. 151 . Reasons for doubting this assertion wUl be presented later. 292 BULLETIN OF THE TJNIVERSITT OF WISCONSIN an opinion expressed by the latter that the Canadian traders were tampering with the Indians) : — " Ever since my arrival I have observed the Canadians with an attention bordering upon suspicion, but hitherto have not discovered either actions or sentiments which do not belong to good subjects." ' November 20, 1768,- he writes to Hillsborough (apparently in answer to some uneasiness at home), that his observation of the people has not revealed anything to cause him to give any credit to alarming reports; adding, however, (now evidently referring only to the noblesse), that he has not the least doubt of their secret attachment to France, and that the non-discovery of traces of a treasonable correspondence was not to him sufficient proof that it did not exist. Early in 1772 Hillsborough transmits to Quebec a copy of a treasonable letter to Prance, alleged to have been signed by members of the Canadian noblesse.' In answer Cramah^ declares his disbelief in its genuineness, but shows himself by no means satisfied of the trust- worthiness of any class. However, the latest utterance we have previous to the Quebec Act is a statement by the same official, December 18th, 1773, that the people are tract- able and submissive.' It will be inferred from what has been said above that we are not to look for reflections of the public mind in the form of public meetings. Such demonstrations had been jealously prohibited by the French government for more than a century before the advent of the English, and while there is no indication throughout this period that the people generally expressed any wish for such a privi- lege,' the attitude of the provincial government was 1 Can. Arch., Q. 4, p. VXi. 2 Letter printed in full in Report Canadian Arch. , 188S, p. 48. » Can. Arch,, Q. 8, p. HI. *Can. Arch., Q. 10, p. 23. ^ Carleton testified before the House of Commons in the debate on the Quebec Bill that he had never heard of petitions from the inhabitants to meet in bodies. The state- ment was supported by Chief-.Justic6 Hey, who said that he knew of no conference among the Canadians regarding forms of government. That some popular movement, COFFIN THE PROVINCE OP QUEBEC, 17G0-7G. 293 evidently not much more liberal than during the old regime. All popular movements, not only by way of pub- lic meetings, but also through addresses, petitions, etc., were frowned upon by the authorities. Both Murray and Carleton were men of autocratic temper and of military training, and seem to have regarded all such attempts to influence governmental action as partaking of the nature of treason. Very little need be said with regard to such adminis- trative aspects of the new regime as might be considered factors, however slight, in the joolitical education of the French Canadians. It will be remembered that under the old rdgime the highly centralized government had acted in local matters entirely by officials appointed from head- quarters. The situation is but very slightly different in this first stage of English rule. The only trace of local self-government that is to be found is with regard to the parish bailiffs, (in large measure replacing the French captains of militia), who, beside their duties as adminis- trative officers of the courts of justice, acted also in their several districts as overseers of highways and bridges, as fence viewers, and sometimes as coroners. These officials and their assistants were appointed by the government out of a list of six names annually furnished by the house- holders in each parish.' That the regulation was observed throughout the period and that the people seem on the whole to have complied with it, though not very eagerly, however, early took place among the French of the town of Quebec is shown by a paper in the Haldimand collection. It is an answer by Murray to a charge that he occasioned discord among the old and new subjects by allo^ving some of the latter to meet in a de- liberative way ; his explanation being that this had been permitted only under careful restrictions, and with the desire of guarding the dependent French dealer against the influence of the English trader. That at least one such meeting took place is certain ; but it is equally evident that there were very tew, if any, more. It is most probable that the movement was due to a small group of professional men at Quebec, whom I shaU have occasion to refer to later as very rapidly taking the place of the noblesse in the leadership of the people. The matter is of importance also with respect to the dreaded influence of the English trader. 1 Ordinance of Sept. 17, 1764. 2 294 BULLETIN OF THE UNIVERSITY OF WISCONSIN. (probably, as in the case of juries, regarding it more as a burden than as a privilege), is shown by hints from the Council minutes.' Further than this we have no trace of participation by the people in their own government; such local affairs as were not managed by the bailiffs being in the hands of the justices of the peace or other direct ap- pointees of the central government. Of direct representa- tion of the people in regard to the central government there was of course none during the period, the Assembly which had been promised in the proclamation of 1763 never being established.- We need not delay over what might be re- garded as forms of indirect representation, — as through the requirement that the council should consist only of resi- dents, and through grand juries whose duty it was to report grievances, and whose report we find in one in- stance the direct occasion of new legislation; for these could contribute little or nothing to political education. But yet that such political education was proceeding the following study will, I think, furnish considerable indirect and cumulative evidence. Just now I shall point only to some striking direct evidence as to the progi'ess made up to the American invasion. It is the statement of a revo- lutionary oiBcer stationed at Three Rivers, and entrusted 1 Can. Arch., Q. 5-1, p. 295; lb. 5-2, p. S76. ^ In regard to tlie assembly we meet at the outset a curious uncertainty as to whether any measures were actually taken lot the bringing of it to^cether. The modern French Canadian historian, Garneau, asserts that it was actually convoked by Murray, and that its sitting was prevented by the refusal of the Canadians to take the oaths. Mar- riott, in his report to the Crown, 177i, says in reheard to an assembly that "the fact is, though summoned and chose for all the parishes but Quebec by Gov. Murray, it has never sat." On the other hand Mas(>ros states in 1769 that "no assembly has hitherto been summoned." The probability of fact is with MasSres, for it seems incredible that such an important st?p as the summoning in the much-debated matter of an assembly, not to say an actual election, could have taken place without any indication being given in an unbroken official correspondence which goes minutely into comparatively insignificant matters. Marriott, (who is probably Garneau's authority), was possibly misled by some notice of the election of bailiff-lists. It is certain that no assembly was ever constituted, and that whether tbe French Canadians were or were not given an op- portunity to refuse to take tlie religious oaths required, these oaths were the main cause of the delay. That delay is dwelt upon elsewhere in connection with general im- perial policy and the enesis of the Quebec Act. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 295 through that district (containing seventeen parishes), with the task of replacing the militia offlcers appointed by Carleton by others in the interest of the revolutionary cause. Such was the public feeling in this district that this was done by popular election, the account of which shows the existence of a high degree of interest among the Canadians in the proceeding. " In some parishes there are three or four candidates for the captaincy, and I receive information that bribery and corruption is already begin- ning to creep into their elections. At some the disputes run so high that I am obliged to interfere. " ' July 5, 1776, Gen. Wooster writes to Congress that he had caused simi- lar elections to be held in every parish (apparently of the District of Montreal). = The political advance of the French Canadians will best be appreciated through the ex- amination later of their general attitude toward the Quebec Act and the American invasion. One of the conclusions of this study is that under the discouraging and unprogres- sive conditions which marked the few years of misgovern- ment between the conquest and the American revolution they had yet made such advance in the comprehension and appreciation of English government as to justify the strongest confidence in the possibility of a rapid and har- monious Anglicizing of the new province. I had purposed treating of the bourgeoisie separately, but the material seems on the whole scarcely to warrant a sharp distinction between this class and the general body of the habitants. In the former term I include the great majority of the inhabitants of the towns,' as well as the re- tail dealers throughout the country and out of it among the Indians; and the social conditions of old France at the time would lead us to look for almost as wide a chasm between 1 Amer. Arch., IV. 5, 4S1. *'Extract of a letter from an officer in the Continental Army, dated Trois EiviSres, March 24, 1776." * 5 Avner. Archives, 1. 12. " The population of Quebec and Montreal is given in 1765 by Murray as 14,700. 296 BULLETIN OF THE UNIVERSITY OP WISCONSIN. the bourgeois and the habitant as between either and the seigneur. But this is a point in which we do not find the social conditions of old and new France corresponding; for in Canada the bourgeois attitude was in the main that of the peasantry from which it had largely sprung, and with which it had constant and close intercourse.' It is probable indeed that in the absence of manufactures and the great possession of trade by the English element, a large part of the urban population was directly connected with the land, having been attracted to the town by reasons of se- curity and convenience.- Garneau asserts, indeed, that the merchant class went to Prance at the conclusion of peace ; but the statement is probably true in regard only to the more considerable dealers. We are told by Murray in 1762 that the retail dealers are generally natives, and this evi- dently continued to be the case throughout the period. One of the natural results would be the bringing of the French commercial class largely under the influence of the English, the latter practically monopolizing the wholesale trade; and of such an influence we have many traces.'' It is to be expected, of course, that we should find the towns- men more active in public appearances. The addresses in 1763 on the subject of religion are evidently more espe- cially from them; those from Montreal and Three Rivers ex- pressly so represent themselves, though claiming also to act on behalf of the country regions. How correct the as- sumption of representation is we are left to determine for ourselves, but it is safe to assert that there exists no petition or memorial of any kind coming from the habitants in the first instance, nor any indication of any right of action being deputed by them to their so-called representa- 1 See Haldimand's statement to Germaine, July 6, 1781, about the connection between the traders of the town and the country and the influence of the latter over the peas- antry. (Can. Arch., Q. 4, p. 40.) 2 An ordinance was issued by Bigot, toward the close of the French regime, against the country people moving to the towns. ^ Especially in connection with the Quebec Act, 1774-5. See also Ca rleton to Shel- bume, November 29, 1766. (Can. Arch., Q. 4, p. 40.) See above, p. 293, note. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 297 tives. The peasant was too ignorant and too unaccustomed to such measures. But nevertheless we may conclude that, except on points manifestly only of urban application, the voice of the townsman is in the main exjjressive of general grievances and desires. At the beginning of the period Haldimand expressly classes the shopkeeper among the general body of the inhabitants in their apparent in- difference to the fate of the country. B. The Noblesse and the Clergy. As said above, for full and vivid pictures of the differ- ent classes of the community we can go to Parkman. All that is attempted here is to set forth such indications dur- ing our period as may seem to have a bearing on the problems of government. And first in consideration must come the noblesse, the old secular leaders. The earliest general representations we meet with in regard to them are found in the reports of the military commanders in 1762. Murray's picture is not a pleasant one (and it should be re- membered that Murray is generally their determined champion, and was so regarded by them) ; it represents them as in general poor, extremely vain, arrogant toward the trading community, (though very ready to reap profits in the same way when opportunity offered),' and tyrannical with their vassals.^ The contemporary reports of Gage and Burton do not enter into characterizations, but agree with Murray's in stating that the English government will not be relished by the noblesse, and that any emigration will be from their ranks. The vast extent of the seigniories (five or six miles front by six or nine deep), is enlarged upon by Burton; but these estates produced very little to their holders, and we have an apparently trust- worthy statement to the effect that 128 of the seigniories 1 It will be remembered that on account of the poverty of the clas.s its members were allowed by the French government to engage in trade without losing caste . 2 See Hey to Lord Chancellor, August 28, 1775, for statement of the low opinion he had formed of the noblesse in council. Can. Arch., Q. 12, p. 203. 298 BULLETIN OF THE UNIVEESITY OF WISCONSIN. yielded an average of only £60 per year.' Certainly the poverty of the seigniorial families is a matter there can be no doubt of; we meet with constant references thereto throughout the period, it being frequently assumed that their means of livelihood had been taken away by the deprivation of public employment.- For it will be remem- bered that this class was from first to last under the French a militai-y and administrative one,' though without any real influence on the government, which generally took the part of the habitant against them. They were not country gentlemen, most of them residing constantly in the towns and visiting their estates only for the purpose of receiving dues. Everything goes to show that their influence over the people was purely of military foundation, and that it fell to pieces when the military relation ceased.* As shown by a report of Carleton'^ the most important part of the order left Canada at the capitulation or the con- clusion of peace; those who remained being of a lower rank, of less property, and of less close connection with France. These latter are reported as comprising 126 male adults, some of whom have families. The first political manifes- tation which purports to be exclusively from them is the me- morial of the seigniors of Quebec to the king, 1766, in defense of Murray, ° signed by twenty-one names. The docu- ment is a strong expression of personal satisfaction with that official and his methods, beginning, however, with a com- parison of the civil government with the military one they had first experienced in a manner very unfavorable to the 1 Marriott puts the value of the beat at £80 a year. {Code of Laws.) See above, p. 279, note, for reference in Carroll's Journal to poverty of the seigneurs. 2 Mas6res states that 120 had lost office by the conquest, and Carleton writes to Town- send, November nth, 1766, that they had been wholly dependent on the French crown. See also same to Shelboume. March 2d, 1768. (Can. Arch,, Q. 5-1, p, 382, and Hep. Can. Arch., 1886, Note D.) ' Carleton to Townsend, Nov. 17, 1766. Can. Arch., Q. 3, p. 411. < See Haldimand to Germaine, July 25th, 1778. Can. Arch., B. 42, p. 10. 'Nov., 1767. See Hep. Can. Arch., 1888, p. 44. • Rep. Can. Arcli., 1888, p. 19. COFFIN THE PROVINCE OF QUEBEC, 1760-7C. 299 former. It denounces the ■ Cabal " which the okl subjects and a few deluded new subjects had formed against the governor and supplicates his restoration. Of somewhat wider scope is the corresponding petition in the same year from the seigniors of Montreal, which, after asking for Murray's retention, goes on to complain of their own ex- clusion from office and of the expense of the required regis- tration of land (with thirty-nine signatures). In November, 1767, Carleton writes' that as nothing had been done to attach the gentry to the British interest, and as they had lost all employment by the change, it could not be hoped that they would be very warm in its support. " Therefore, all circumstances considered, while matters remain in their present state, the most we may hope for from the gentlemen who remain in the province is a passive neutrality on all occasions, with respectful submission to government and deference for the king's commission in whatever hand it may be lodged; these they almost to a man have persevered in since my arrival, notwithstanding much pains have been taken to engage them in parties by a few whose duty and whose office should have taught them better. " ' One year later (November 20th, 1768), he speaks of their " decent and respectful obedience to the king's government hitherto," though frankly admitting that he has no doubt of their secret attachment to France, which " naturally has the affection of all the people. " ^ Of much greater importance than the noblesse, through their more deeply-seated influence over the people, were the Roman Catholic clergy. Readers of Parkman will re- call the turgid rhetoric in which at the close of his " Old Regime" he sums up the vast share that had fallen to the Church from the very first in the founding and direction of the colony; and though during the period we are con- 1 JJcp. Can. Arch.,imi, p. 41. ^ See Carleton concerning the disapproval by tlie gentry of the verdict against the crown in the matter of duties, December 24th, 1767. (Can. Arch., Q. 5-1, p. 316). 'Can. Arch., Q. 5-2, p. 890. 300 BULLETIN OP THE UNIVERSITY OP WISCONSIN. sidering that influence was undoubtedly on the wane, (how much so will be seen in regard to the American in- vasion), still it was a factor that cannot be neglected. It would seem that the military period had been favourable to the preservation of the personal influence of the clergy, notwithstanding the indication referred to above of the loss of tractability on the part of the habitant in the matter of tithes. For they (as well as such other local magnates as were accessible), took in large measure not only during the military period but even probably in some degree till the Quebec Act, the place of the French local judiciary. Garneau says that all disputes were settled by the inter- mediation of the clergy and other local leaders,' and though his picture is undoubtedly overdrawn, every pre- sumption is in favour of a considerable movement in this direction. It was to the clergy and to the old militia officers rather than to the noblesse that the peasant would naturally betake himself, if only for the reason that with them he felt more in sympathy as being largely of the same class. For the lower clergy then as now was largely drawn from the ranks of the peasantry. Murray, in his report of 1762, expressly states that the most prominent were French, the rest Canadians of the lower class. This is a division we should expect, and it is not surprising also to find indications of some jealousv and difllerence of view between the two sections. The Canadian born element would be much more easily reconciled to the new rule, and it is very probable that the moderate representations spoken of above, which refrain from laying stress on the preser- vation of the hierarchy, were inspired solely by this element, well aware that the continuance of that hierarchy meant in all probability the continuance of the domination of the foreign born priest. Gage, in his report from Montreal in 1762, speaks of this division of interest and of the necessity of detaching the Canadian clergy entirely iHist. du Can., II, :K6. (Quebec, 1S59.) COFFIN THE PROVINCE OF QUEBEC, 1760-76. 301 from Prance. The growth of a native priesthood with feelings not always in harmony with the old government of Church or State, had been a slow one, but that such an element was now firmly established there can be no doubt.' Up to the conquest the scale had been constantly turned in favour of the French-born element, which, according to Cramahe, regarded the Canadian clergy with contempt.'' The policy of the new government may be seen from the statement in the same letter that the French clergy were then jealous of the Canadian as likely to get all the benefices, and that hence the French were in favour of a change which the Canadians were strongly interested to prevent. Whichever element was uppermost however, and by whatever motives it may have been influenced, we have no indication of any but the most satisfactory behaviour throughout this period on the part of the Church in Canada. In June, on the conclusion of peace, a mandate was issued by the vicar general (the highest ecclesiastic remaining), recommending to the inhabitants submission and fidelity. In the autumn of the same year we meet the general addresses already spoken of," which seem to have been called forth by the depleted state of the priesthood and by fear lest the lack of a bishop should leave it to die out. They are all probably inspired. One of these ad- dresses is from the chapter of Quebec, and we must con elude that the moderation of the demands had met with the approval of the prevailing portion of the clergy. It ex- presses no anxiety for a continuance of priests from Europe, expressly saying on the contrary that those edu- cated in the native seminaries would be more patriotic, more united, and less exposed to new opinion;* and that they 1 See Haldimand to Germaine, September 14tli, 1779. Can. Arch., B. 54, p. 177. , = Can. Arch., Q. 8, p. 160. To Hillsborough, July 5, 1772. = AboTe, p. 284. * The petition from Three Rivers dwells more fully on means of escaping French influ- ence in preserving the clergy. 302 BULLETIN OF THE UNIVERSITY OF WISCONSIN. (the petitioners), would be satisfied with a merely titular bishop with full ecclesiastical jurisdiction, but without ex- terior dignity or compulsory means of support. It is fully evident that the petitioners are sincere, and that they aim only at the measures necessary to preserve their edu- cational and spiritual position. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 303 CHAPTER 11, THE BRITISH SETTLERS. A. lumbers, Origin, Occupations, Character. The term " old subjects" was applied during this period and for long after to those inhabitants of the province who had been subjects of Great Britain before the conquest,— i. e., to the new English-speaking element that accom- panied or followed the conqueror. The numerical weight of this element would alone hardly entitle it to considera- tion, for at no time during the period did it in all proba- bility embrace more than 500 or 600 male adults. As late as 1779 Haldimand refers roughly to the non-Canadian population as 2,000 in number. We know, however, that there was some exodus from the province in 1775-6, and it is probable that the maximum number of English-speaking inhabitants had been reached soon after the conclusion of peace. For Carleton writes, November, 1767, that they are diminishing, being discouraged by the severe climate and the poverty of the country.' But notwithstanding this in- significant numerical strength, the energy and the peculiar position of this element make it impossible to avoid reckon- ing with it. Presumably these " old subjects" were subjects of Great Britain by birth. But to what extent they had previously been resident in other parts of America, or what propor- tion of them was American born, it is not easy to determine. And the settlement of the point is of considerable interest in view of their connection later with the American revo- lutionists. We are safe in concluding that the smaller portion only of them were in Canada previous to the con- clusion of peace, and that this portion was the least ^ Report Canadian Archives, 1888, p. 43. 304 BULLETIN OP THE UNIVERSITY OF WISCONSIN. respectable one, and composed mainly of those afterward spoken of with contempt by the provincial officials as sutlers and discharged soldiers' — a class mainly no doubt of European birth. As to the remaining and larger portion, the scattered references that we have lead to the conclusion that they were mainly born in the British Islands. But some of them had doubtless, for shorter or longer xaeriods, been resident in the other colonies before coming to Quebec, and a few were American-born. Whether it was that the portion with previous colonial experience was more enterprising and free-spoken than the others, we find that it comes to stand for the whole in the official mind. Knox, in his "Justice and Policy of the Quebec Act, " ^ evi- dently regards the British subjects in Canada as having all come from, or being all identified with, the other provinces; and this view may be regarded as the general one taken in England. We have, however, among the Haldimand papers a careful analysis of the British in the District of Montreal, 1765, in regard to birth and occupations,' from which we learn that of the 136 adult males there at that time, 98 were born in the British Isles, 23 in other parts of Europe, and 12 in the American colonies; nothing being said as to residence immediately before coming to Canada. But there are many indications that whether this analysis can be considered as representative of the whole body or not, the more politically influential of the new settlers were conversant with the social and governmental conditions of the other colonies to a degree which forces us to the con- clusion that the knowledge must in most cases have been acquired by periods of considerable residence. In the first public appearance of the new element in the province under civil government — the presentment of the grand jury of October, 1764, — we find frequent references to the judicial 1 The census report of 1765 mentioned below gives 43 of the 136 ia the Montreal district as of this character, 2 London, 1774. 3 Can. Arch., B. 8, p. 96. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 305 conditions of the other colonies such as would occur only to those who were recalling institutions (peculiar to the colonies), under which they had lived and to which they had become attached.' Similar evidence appears in their remonstrance against the judiciary ordinance of 1770,^ and in some commercial representations concerning the English bankruptcy laws in 1767.^ Further we have particular in- formation in regard to individuals who later became note- worthy for open sympathy with the revolutionary cause, and find that they are nearly all of American birth or of American political education. A list "of the principal persons settled in the province who very zealously served the rebels in the winter 1775-6 " * names 28 individuals, of whom only 7 are of non- American birth. In this list we find the names of many of the main leaders in the political movements just previous to the Quebec Act. It is evident in short that the most determined and outspoken sec- tion among the new settlers were American by birth or adoption, and it is probable that that portion was, in rela- tion to the whole, a small one. This will be shown more fully later when I speak of political movements. That a distinction could be made, and was made by the provincial officials, is shown by a reference of Carletonto the scale of duties lately adopted as being approved by " both Canadian and English merchants, the colonists excepted." '-' The new English-speaking population seems to have been practically all resident in the towns of Quebec and Mon- treal. Its main occupation was trade, — a trade which had the fur traffic for its backbone. Many of its members are asserted by their detractors to have come to Canada be- cause they had failed everywhere else, but the fact that Canada oifered exceptional advantages for the fur trade iCan. Arch., Q. 2, pp. 233-63. = Can. Arch., Q. 7, p. 95. ' Can. Arch., Q. 5-1, p. 248. 'Can. Arch., Q. 13, p. 106. 6 Deo. U, 1767. (Can. Arch., Q. 5-1, p. 300.) See also to Dartmouth, November 11, 1774. (Can. Arch., Q. 11, p. 11.) 306 BULLETIN OF THE UNIVERSITY OF "WISCONSIN. affords a more creditable exiDlanation. Many were mere agents for English firms ; some, especially of the discharged soldiers, became small retailers of liquor. So averse were they to land occupation, at least on the terms first offered, that the lands set apart for the discharged soldiery were in few cases taken up. But they took with considerable avidity to the acquiring of seigniories when that form of grant was re-established,' and Hillsborough, April 18, 1772, writes that he is pleased to find " that so great a spirit of cultivation of the waste lands in the colony has spread itself among His Majesty's natural born subjects." There can be little doubt that by the end of the period they had come into possession of a large proportion of the seigneurial estates of the province ; - but there is no proba- bility that they at this time settled down on these estates in any permanent manner. They undoubtedly continued to be identified with the towns, and it is suificiently correct for all purposes to regard their connection with Canada as caused and continued either by commercial interests ' or by situations held under government. As to the character of this new element we are unfortun- ately dependent almost entirely upon the testimony of its bitterest enemies. The causes of this enmity will be more fully apparent later; the fact is that throughout the whole j^eriod of civil government the provincial adminis- trators and the " old subjects " were in direct and for the most part bitter antagonism. The latter claimed that they had come into the country in reliance on the Proclamation of 1763, which they considered contained a distinct promise of the establishment in Canada of the forms of government and the system of laiv that prevailed in the other colonies; consequently they maintained a hostile attitude to the system in operation, as purely provisional, and impatiently J See elsewhere concerning land grants. ^ See Evidence, Quebec Act Debates. Also Masfires, especially with regard to Eng- lish petitions and memorials for an Assembly, 1773. = See Carleton, Rep. Can. Arch., 1890, p. 1. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 307 demanded the fulfillment of tlie asserted pledges. The gov- ernors on the other hand had speedily arrived at the con- clusion that such changes would be most disadvan- tageous to the country, and would imperil its possession; and they consequently regarded with no favourable eye the turbulent little body which seemed to be aiming at the same licentiousness as (in the official opinion), prevailed in the other colonies. It is the same antagonism that we see contemporaneously in these other colonies, increased ten- fold by the peculiar circumstances of the province. Race and social prejudices, and collisions between the civil and military elements, complicated the situation and intensified the opposition of the British trading community to the old French military system and its favorers. And in view of these facts we must take with caution the assertions of the governors, who, just as they erroneously looked upon the noblesse as the true representatives of the Canadians, seem to have indiscriminately classed together the whole old subject body as turbulent and republican, and bent on nothing but the oppressing of the French population and the acquiring of gain. That there were individual instances to which they could point in support of this view cannot be denied; nor can we doubt that the British ele- ment throughout the most of the period might well present to the harassed official an intolerant and unconciliatory at- titude. But a scrutiny of the evidence will show that the constant official censure was to a large degree unjust and undiscerning, and that the British party in the Province of Quebec deserved very much more consideration from the authorities than it received. The matter is of importance from other grounds than those of historical justice. For there can be little doubt that the incorrect ideas that swayed the official mind on this point were one of the main agencies in the genesis of the Quebec Act. Murray's expressions of dislike for his fellow-country- men seem to date from the grand jury presentment of 1764, 308 BULLETIN OF THE "UNIVERSITY OF WISCONSIN. "when he writes home of the "licentious fanatics trading here," whom nothing will satisfy except "the expulsion of the Canadians. " ' The following March 8, he says that the merchants " are chiefly adventurers of mean educa- tion, either young beginners, or, if old traders, such as had failed in other countries; all have their fortunes to make and are little solicitous about the means."- August 20, 1766, after he had left the province, he writes of the party which had procured his recall, that "most of them are followers of the army, of mean education, or soldiers disbanded at the reduction of the troops;" and adds, " I report them to be in general the most immoral collection of men I ever knew. " ' This representation is evidently little to be regarded. Carleton, though no particular friend of Murray, seems, however, to have at once assumed the same attitude toward the old subject, and probably with more confidence, as knowing that the home government was not at all likely to gratify their wishes. As with Murray, his military training prejudiced him in favor of the old system and of the military noblesse, to both of which the English element was bitterly opposed. Novem- ber 25, 1767,' he describes the old subjects as having " been mostly left here by accident, and are either dis- banded officers, soldiers, or followers of the army, who, not knowing how to disiDOse of themselves elsewhere, settled where they were left at the reduction ; or else they are adventurers in trade, or such as could not remain at home, who set out to mend their fortunes at the opening of this new channel of commerce, " and adds that they have for the most part not succeeded, and are abandoning the province. March 28, 1770,' he writes in regard to the necessity he has been under of taking from the justices of 1 Can. Arch., Q. 2, p. 233. = lb., p. 377. 2Can. Arch., B. 8, p. 1. 'Rep. Can. Arch., 188S, p. 42. 'Sep. Can. Arch., 1890, p. 1. COFFIN— THE PROVINCE OP QUEBEC, 1760-76. 309 the peace their jurisdiction in civil cases, on account of the oppressive methods of many of them, and proceeds to ex- plain what these methods were; saying that those who had failed in business sought the office in order to make it a means of extortion, and had therein very grievously taken advantage of the ignorance of the people. This oppression seems to have been for a short time a real grievance, and has been considered one of the principal proofs of the evil character of the English element; but a closer examination will show that in that view it has been exaggerated. For it was such as hardly could have been practiced by any but justices in the remoter pa.rts of the province, or at least by those in the country districts, and I have shown above that very few of the English were settled outside of the towns. So that it must have been confined to about a dozen individuals,' and cannot possibly be taken as any in- dication of the general character of the Eaglish-speaking settlers. The matter is simply an instance of the careless grouping and indiscriminate judgments of the period, or possibly of intentional misrepresentation in order to preju- dice the case of the old subject in the eyes of the home government. That this result was attained may be seen in the writings of the pamphleteers who defended the Quebec Act, as well as in the arguments of its supporters in the Commons. B. Political Attitude. What the political attitude of the English party was may be easily gathered from the foregoing. Whether or not accustomed to the greater self-government of the American colonies we find the whole body strongly imbued with a certain degree of the American spirit and determined to lose no opportunity of pressing their claims for the estab- lishment of English law and an Assembly. They con- 1 The list of justices of tlie peace for the whole province as first appointed, included only twenty-three names, of whom most were resident in the towns. See p, yi2, note 1, 3 310 BULLETIN OF THE UNIVERSITY OP WISCONSIN. ■kended throughout that the promises of the Proclama- tion of 1763 on these points had been among the main inducements to the taking up of their residence in the province; and in season and out of season, without regard to the difficulties in the way either from the original con- stitution of the province or from the hazardous nature of the British hold on it, they pressed their demands on the home government and refused any tolerance to the existing provisional arrangements. So that at first sight it would appear (as has generally been represented), that in the pressing of these demands the party showed throughout a factious and intolerant spirit, and gave little evidence of political forethought, or of consideration either for the Canadians or for the difficult position of the administration. As to political forethought they mustbe judged mainly on a careful consideration of the later events, with regard to the question as to how far they were justified in their con- tention that the English system of law and government, so far as they claimed it, would not really be objectionable or injurious to the mass of the people. As to the intolerance and iuconsiderateness of their attitude, we must guard as before against indiscriminate grouping; and it will be found moreover that the evidence on these heads is confined to the early years of the period. A comparison of the names appended to the various petitions and other public manifestations of the time with what appears later as to the individuals who espoused the revolutionary cause, shows that these ma.nifestations were the voice really of that small section which, chiefly American-born, was most thoroughly permeated with American ideas, and which kept itself in touch with the movements on the other side of the border. The bulk of the party, English-born, slower of comprehension, and less used to American self-government, more or less acquiesed in the movements of the bolder spirits, partly on general principles of popular leadership, partly because they had a common ground in their desire COFFIN — THE PROVINCE OF QITEBEC, 1760-76. 311 for, and anticipation of English laws and governmental forms." Hence, it is not surprising that we cannot trace any definite dividing line^ between the English-born and the colonists until the actual resort to arms drove the leaders into the arms of the revolutionists. In connection with this it is interesting to note that the first public man- ifestation of the British party was the most violent and outspoken, supporting therein the idea that it was repre- sentative of the views of the American element when that element had in freshest remembrance the forms they were attached to and had hoped to bring with them into Canada. These hopes had been disappointed by the passing of the judiciary ordinance of September 17, 1764, which, though afterwards condemned by those who supported the con- tinuance of the old system as having aimed at the complete overturning thereof, seemed to the English party a very partial and unsatisfactory measure. Accordingly, at the general quarter sessions of the justices of the peace held at Quebec in the following month, the fourteen English who were summoned (together with seven French), as a grand jury, seized the occasion to express in no measured tones their deep disappointment and disapproval.' The main presentment began (in direct contempt of court), by condemning the late ordinance in regard to the power 1 It is not probable that the claim of general representative powers put forward in 1764 on behalf of the grand jury, (discussed below) , was seriously entertained except by a few of the bolder spirits ; but the attitude of protest and disappointment was evidently largely shared, even by those whose later actions were much more moderate. For in the evidence connected with an investigation in 1768 into the suspension by Murray of a public official, one of the charges against whom was that he had been prominent in this grand jury movement, we find a comparatively numerou sly signed letter of thanks to the jury from their English fellow-countrymen in Quebec, which states that the signers consider the jury "as yet the only body representative of this district, " and that in re- gard to the digression from usual form in the proceedings, "the want of a General As- sembly in the province sufficiently justifies your conduct to the public." (Can. Arch., Q. .'1-2, pp. 62D-69.) 3 Though see Carleton's reference above to the difference of opinion in regard to customs duties. See also Carleton to Hillsborough, AprQ 25, 1770, concerning the re- fusal of the majority of the old subjects to take the stops urged by the more violent concerning the judiciary ordinance of that year. (Can. Arch., Q. 7, p. 89.) = Can, Arch., Q. 2, p. 242. 312 BULLETIN OF THE UNIVERSITY OF WISCONSIN. given to the justices and to the number and incapacity of these officials,' and expressed a determination never again under the system complained of, to act as jurors. It then proceeded to make the very remarkable claim on behalf of the signers as grand jurors that they " must be considered at present as the only body representative of the colony, " and therefore "as British subjects have a right to be con- sulted before any ordinance that may affect the body they represent be passed into law;" furthermore demanding that " the public accounts should be laid before the grand jurors at least twice a year, to be examined and checked by them, and that they may be regularly settled every six months before them." This claim' shows that while con- sidering the existing government as only provisional, they could not grasp the fact that as British subjects they were even under it to be excluded from some form of the self- government they had been accustomed to. The fourteen ^ It is noteworthy that this condemnation was later abundantly justified by the com- plaints as to the ill-working of this provision and the revoking of it by the ordinance of 1770. Here we find the representatives of the English party strongly condemning at its initiation a measure the ill-working of which was afterwards used as a weapon of re- proach against that party. 3 Which they do not attempt to fortify with any precedent from the other colonies, though frequently bringing such on other points. I have been unable to find any direct connection between this incident and contemporary events in the other colonies, but the conclusion is irresistible that some such must have existed. By June, 17t>4, it was known in America that Grenville had given notice of the Stamp Act, and that a bill had been passed increasing customs duties. Before the end of the month Otis and others had formed a committee for intercolonial correspoudence and resistance. Popular at- tention throughout the summer had become more and more concentrated on the sub- ject, and in September the New York Assembly had boldly claimed for the people "that great badge of English liberty, the being taxed only with their own consent." (Ban- croft, III, 89.) Of course, the Quebec movement was as yet fully taken up with a stage beyond which the other colonies had long passed. And we shall see lat«r that it was not likely to get beyond that stage with the bulk of the party. Though it is to be noted that CramahS writes in July, 1774, tto Dartmouth, Can. Arch., Q. 10, p. 79), that "His Majesty's subjects in this province, tho' collected from all parts of his extensive domin- ions, have in general, at least such as intend remaining in the country, adopted Amer- ican ideas in regard to taxation, and a report transmitted from one of their correspondents in Britain that a duty upon spirits was intended to be raised here by authority of Parliament, was a principal cause of setting them upon petitions for an as- sembly." It connection with this see following pages in regard to the revenue trials and the Stamp Act. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 313 English jurors alone also presented an additional article protesting against the admitting of Roman Catholics on juries or to the professions as " an open violation of our most sacred laws and liberties," and tending to the inse- curity of the province. The next appearance of these remonstrants is in the peti- tion of the Quebec British traders against Murray in 1765, signed by twenty-one names,' the signers claiming to act on behalf of their fellow-subjects. The friction between the party and Murray seems to have steadily increased in the intervening year and finally had resulted in this repre- sentation, which was later thought to have procured the governor's recall. It began'-' by stating that the connection of most of the petitioners with the country dated "from the surrender of the colony," goes on to represent the conduct of the governor and the measures of government as oppressive and injurious, threatens removal from the country in case of non-red ress, and ends by requesting the establishment of a house of representatives " to be chosen in this as in other Your Majesty's provinces, there being a number more than sufficient of loyal and well-affected Protestants, exclusive of military officers;" the Canadians to be "allowed to elect Protestants," without the burden of test oaths. The demand for an assembly reappears with more or less distinctness all through the period; though while Carleton remained in the province his decidedly dis- couraging attitude seems to have prevented any very united movement. But resentment at the withholding of representative institutions appears to be the main moving cause in a very determined stand by the English mercantile class after 1766 against the collection of the old French customs duties. In accordance with legal opinion as to the reversion to the crown of all sources of revenue possessed by the French government, the imperial authorities had in 1 Eight of these were among the fourteen English jurors in 1764. ' Bep. Can. Arch., 1888, p. U. 314 BULLETIN OF THE UNIVERSITY OP WISCONSIN. 1765 ordered the above collection, and July 21, 1766, a provincial proclamation was issued setting forth, the duties and the ground on which they were claimed.' A few days later it is reported ofQcially that the merchants " will not pay their duties unless otherwise compelled." Some of them were accordingly prosecuted in the Court of King's Bench before a jury composed entirely of English, and which the Chief Justice charged to bring in only a special verdict as to the facts, leaving to a higher court the point of law - as to whether the English crown had become by the conquest and cession entitled to the old French duties. But the jury, thoroughly in sympathy with the recalcitrant merchants, refused to be restricted in this way, and brought in a general verdict of acquittal. Another suit shortly afterwards had the same result, and all efforts to collect the duties seem then to have been dropped for two years.* In the fall of 1768, however, after an action in the British Common Pleas against Murray, in which the principle of the King's right to these duties was accepted without question, the commissioners of the treasury resolved to make an- other attempt, and instituted prosecutions anew. The issue was the same, however, though Maseres (who was the prosecuting attorney), acknowledges that the jury " con- sisted of some of the most respectable inhabitants of Quebec, and of such as were most moderate in their prin- ciples and disposition." Writing in 1774 he says that it may be seen from these trials that these duties can never be collected in the Quebec courts; from which we may infer that no further attempt was made to collect them during the period.* The ground of this determined resistance is nowhere clearly stated, but there can be little doubt that it was mainly inspired by some portion of the spirit then agitat- , I Can. Arch., Q. 2, p. 377. ^Called by him "very new and difficult." ' Can. Arch., Q. 3, pp. 254, 400. * See Mas6res, CoTumisHons, pp. 288-311. COFFIN — THE PROVINCE OF QUEBEC, 1760-7G. 3] 5 ing the other colonies. In a letter shortly before the later trials Carleton states that the merchants based their oppo- sition on the ground that the duties demanded were not quite the same as the French;' but that the real question was much broader is shown by the argument for the Crown of Maseres, the attorney general, (reported by himself). In it he contends that "whatever might have been asserted to the contrary, in order to inflame the passions of the people and prejudice the minds of the jury against these duties, the king by them did not mean to exert any pre- rogative of imposing taxes by his own single authority and without the consent either of a provincial Assembly or of the General Assembly of the whole British Empire, " and that therefore the requisition did not endanger the public liberty of the inhabitants and the privileges they claimed " either as English in general or under the proclamation of October, 1763, by which His Majesty had promised them the enjoyment of the benefit of the laws of England. " ' The attorney general is here attempting to remove the preju- dice of a jury which was of the same class — the English trading class,— as the accused, and it is evident that he perceived that whatever the special plea put forward, the opposition was founded on the general claim of being English subjects, entitled to the operation of English laws and principles. It would seem also as if the spirit of oppo- sition as expressed on the point had been steadily growing ; for Carleton had written, December 24, 1767, that he was almost certain that a revenue would soon be raised from the customs suiHcient to meet all expenses of government, and that " both Canadian and English merchants, the colonists excepted," were willing to pay much higher duties than those he was then proposing.' Maseres' de- scription of the jury in the trials of 1769 shows that it I Can. Arch., Q. 6, p. 65— May 10, 1769. '^ Commissions, pp. 304-S. s Can. Arch., Q. 5-1, p. 316. 316 BTTLLETIN OF THE UNIVERSITY OF WISCONSIN. could not have been composed of these " colonists, " and therefore we must conclude that either Carleton had de- ceived himself in 1767, or that the "colonist" spirit had on this point taken possession even of the "Canadian and Eng- lish merchants. " This phase of the subject is the more interesting taken in connection with the undeniable acquiescence of the province in the Stamp Act shortly before.' For leaving out a very small circle no opposition to this Act sufficiently strong to send its voice down to us seems to have been made in Quebec or in Nova Scotia.' That it had been put regularly into operation is shown by the proclamation announcing its repeal, which says that " whereas many persons in publick office and others may at present have stampt paper and parchment that has not been made use of ' they will be reimbursed for the same.^ But no state- ment can be found of any revenue from the tax, and it is most probable that the " resistance passive which Garneau attributes to the province* went far enough to reduce the receipts to a very small sum. That the section of the English party known as " the colonists " had made their voice heard against the act is shown by a reference of Carleton's, October 25th, 1766,* and by a statement of 1 The Stamp Act was in force in Quebec apparently from November 1, 1765, to May 28, 1766. -With resard to Nova Scotia some documents' from a later period may here be re- ferred to. In 4 American ArcJiives (III. 619), we find a WhitehaD memorandum dated September 1, 1775, that on that day His Majesty had graciously received an address from the House of Representatives of Nova Scotia, containing a declaration of en- tire submission to the supreme authority of the British Parliament and of readiness to pay taxes fixed by it, to be at its disposal. This loyal document, however, is followed (lb. 780) by a letter from Halifax dated September 23, 1775, which says that the above address represents only about one-thousandth of the inhabitants of the province, and had been procured when most of the House of Representatives were absent ; further, that owing to universal sympathy with the revolutionists no duties had been paid since August last, that some tons of tea arrived the day before had been thrown into the sea, an4 that the revolutionary forces at Boston had been contiDually supplied from Nova Scotia with fresh provisions. "Can. Arch., Q. 5-2, p. 822. 'Hist. Can., II, 399. 'Can. Arch., Q. 3. p. 259. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 317 Murray, August 20th, 1766, (in regard to the Canadians), that "tho' stimulated to dispute it by some of the licen- tious traders from New York they cheerfully obeyed the Stamp Act, in hopes that their good behaviour would recom- mend them to the favour and protection of their sovereign. " ' Previously (February 14, 1776, while the act was yet unre- pealed), the governor had reported that "His Majesty's subjects in this province have not followed the example of the neighbouring colonies, but have cheerfully submitted to the authority of the British legislature. " " On the arrival of Carleton in September, 1766, an address presented to him from the combined English and French inhabitants of the city and district of Quebec expresses " the most profound and submissive reverence to the legislative authority of the British parliament, of which we lately gave a public and signal proof by an immediate and universal obedience to the Stamp Act."' Lastly, the argument which I have quoted from the attorney-general in the revenue trials of 1769 shows conclusively that the class he was trying to influence (i. e. the main, more moderate body of the English trading class), was not supposed to doubt, and therefore could not have made any fundamental objection to, the full legislative authority over the province of the British parliament.* This class then we may suppose to have acquiesced grumb- lingly in the Stamp Act, while the smaller section of American birth or training had no doubt vigorously pro- tested against it. As to the Canadians, the compliant voice of the address to Carleton doubtless represents cor- rectly the attitude of those affected; but there is no ground I Can. Arch., B. 8, p. 1. »Ibid., Q.3, p. 26. « Ibid., p. 344. * Of course it must be remembered that as the province had no assembly the same ob- jection could not be made to such a claim as in the other provinces (see p. 312, note 2). The matter therefore stands on a somewhat different footing. It seems, however, very probable that the Stamp Act afjitation in the other colonies, and its success, had con- siderable influence in emboldening the Quebec merchants to the stout resistance later to the revenue duties. 318 BULLETIN OF THE tJNIVEESITY OF WISCONSIN. to suppose that any attention was paid to the Act by the mass of the French Canadian people. But few of these could, in its brief life, have even become aware of its ex- istence; for, as I have elsewhere shown, the liabitant a,t this time very slightly availed himself of English legal forms or courts. In the spring of 1770 the British element again appears in strong oj)position to the government in regard to the ordinance of February 1, 1770, which on account of the op- pressive conduct of some of the justices of the peace took away from the whole body all power in matters that affected private property, and instituted for the protection of creditors methods which were considered by the mer- chants as vmsatisfactory and j)recarious and likely to affect the credit of the province. The memorial in which the ob- jections of the merchant body were expressed is evidently what it purports to be, a document almost entirely dictated by commercial considerations; and though the action of the government was justifiable and the ordinance in question probably necessary, I cannot look upon this movement of its opponents as of the purely factious and oppressive origin attributed to it by Carleton. In the same year we have the outcome of a movement spoken of by Carleton in 1768,' in another petition for a general assembly, which they claim in part as promised in the proclamation of 1763, and in part because necessary to arrest the declining state of the province and make it really of benefit to the empire. The assembly is still contemplated as being composed only of Protestants, (nothing being said as to the qualifications of electors), the petitioners asserting as in 1765 that " there is now a sufficient number of your Majesty's Protestant subjects residing in and possessed of real property in this province, and who are otherwise qualified to be members of a general assembly; " which they pray shall therefore be 1 He writes, January 20, that the agitation for an assembly which he thought had been dropped a year before, has been resumed, the leaders being "egged on by letters from home." (Q. 5-1, 370.) COFFIN — THE PROVINCE OF QUEBEC, 1760-7G. 319 called "in such manner as is used in those provinces in America under your Majesty's government." (signed by 31 names).' Carleton left for England about the same time, and this step was probably intended to counteract the effect of his presence at home. For the following three years quiet seems to have reigned in the province, the British element applying itself energetically to the acquire- ment of landed property. As the home government, how- ever, came more unmistakeably nearer to the adoption of decisive measures in regard to Canadian affairs, the political energies of the party revived, and as a conse- quence we have the very united and vigorous petitions of 1773 (October-January) for an assembly.^ According to Cramah6* the leaders of the old subjects sedulously at- tempted to induce the French to co-operate, and Masferes relates that the negotiations were broken off in conse- quence of a refusal of the English to insert in the joint petition a specific request that the assembly might be com- posed of Protestants and Catholics alike, with more or less of a preponderance secured to the latter.* The English then proceeded alone, and petitions and memorials were for- warded to the home government about the beginning of 1774, signed there can be little doubt by almost every old subject of any standing (outside the official circles), in the province. The wording of these is in the main of the same tenor as in the previous representations, but a very noteworthy change appears in the reference to the nature of the assembly asked for. In all the previous petitions it had been requested to be called " in such manner as is used in those provinces in America under your Majesty's gov- ernment," coupled with the statement that there were sufficient qualified Protestants in the province to consti- tute such a body. This evidently means the exclusion of 1 Can. Arch., Q. 7, p. 359. "Ibid., Q. 10. See alsoMasAres, Accoimt. >Ibid., Q. 10, p.22. * See below, c. 5. 320 BULLETIN OF THB UNIVERSITY OF WISCONSIN. Catholics, who, however, were to be permitted to vote. But in the present petition the words are, " in such manner and of such constitution and form as shall seem best adapted to secure peace, welfare and good government." The explanation of this change is given by Masferes,' agent for the party in London, who states that though the old subjects had formerly entertained hopes of an exclusively Protestant assembly, on hearing that Catholics had been admitted to that of Grenada," and that the government con- templated the giving of the same privilege in Quebec, they had resolved to acquiesce in this indulgence, though un- willing to join with the French in asking for it. In other words, the party had become convinced that there was no hope of an exclusively Protestant assembly, and preferred a mixed one to none at all; probably relying on their in- fluence over many sections of the French to secure a con- siderable if not the greater share of the power wielded by such a body. The petitioners make the statement that the granting of an assembly is the only sure means of concil- iating the new subjects.' In the matter of the laws to be established in the province we find that, as with regard to an assembly, the views of the British party became much more liberal to- ward the close of the period. The presentment of the grand jury quoted above shows that they were disposed at first to assume a most intolerant attitude, and (holding strictly to the wording of the treaty of cession), to enforce against the French Canadians the penal laws which were not enforced at home. But this we can consider the result of only a momentary access of irritation and disappoint- ment, and as probably confined to a few individuals. For we find nothing of the kind later and have seen that all the petitions for an assembly contemplated the admission 1 A iJditional Proceeding a, etc., p, 61. "^ For conditions in Orenada see below, chapter V., B. b. 3 This petition was supplemented by a correspondiag one from the London merchants who were commerciaEy connected with Canada. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 321 of the French Canadians to the franchise. It will also be shown later that the old subjects welcomed and eagerly ayailed themselves of the restoration of the French form of land tenure. Representations in November, 1767 prove that a large part of them were opposed to the introduction of the English bankruptcy laws. Maseres, who had been an ardent British partisan throughout, and who became in 1774 the agent of the party in London, may be considered to represent pretty accurately their views on these points, and he expressly and frequently declares that the English inhabitants, aware of the uneasiness and confusion that an enforcement of the English laws of inheritance and landed property would have occasioned in the province, had always been willing that the French laws on these subjects should be continued. 1 have thus brought my scrutiny of the "old subjects " down to the establishment of the new constitution and the bringing of the province within the range of the revolu- tion. The consideration of the attitude of the party in this crisis is reserved for another place." It will then be found that the division of feeling whose traces we have discovered beneath apparent unity, becomes at once very manifest, de- claring itself in the same active opposition that was found in the other colonies between Tories and Revolutionists. C Relations with the French Canadians. Of social relations, which it is not within my province to go fully into, we do not meet many traces. There are a few references to inter-marriage and other social connections between members of the noblesse on the one hand, and members of the English military or ofScial circles on the other; but these could be in this brief time of but slight influence, politically speaking. Little or no communication took place between the noblesse and the main body of the English — the commercial class, — the prevailing sentiments 2 See below, chapter VI. 322 BULLETIN OF THE DNIVERSITY OP WISCONSIN. being more or less intense degrees of contempt or hatred.' I have already referred to the fact that the bitter ani- mosity between the English element and Murray was due largely to the latter's partiality for the noblesse; and there can be little doubt that the same state of things was prevalent to some degree under Carleton. But apart from the aristocracy, — a small class, with constantly declining influence, — we have considerable evidence of a very con- stant intercourse, daily increasing in influence on the attitude of both sections, between the main body of the English and the main body of the people. This was based in the first place on commercial relations, which gave the few vigorous and enterprising English merchants, in whose hands was the greatest part of the trade (probably the entire wholesale and foreign trade), and who in the later years also more directly affected the county districts by the large acquirement of seigniories, an influence out of all proportion to their numbers or weight with the gov- ernment. This development was aided by the appearance of those new French leaders from the professional and educated class of whom I have spoken above as becoming rapidly imbued with English ideas of government. There ■can be no doubt that in the ten years during which civil government had been in operation a very considerable change had taken place in the social and political attitude of the body of the people; and we must consider the main factor therein to have been that part of the English ele- ment with which the people were brought into daily contact. The first occasion on which we find representatives of these two sections of the population acting together, — on the grand jury of 1764, — is one in which the French part is ex- hibited in the light of a very easily hoodwinked or influ- enced section, which discovers the real nature of its action only through later outside inspiration. Early in 1766 we find in connection with some difficulties concerning the 1 Murray to Shelboarae, .\Ui?ast20, 17o6. Caa. .\rc'a., B. 8, p. 1. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 323 quartering of troops at Montreal that the new attitude of the French in protesting against the billeting upon them seems to have been due to the instigation of the English civil element, which for some time past had been on ex- tremely bad terms with the military. The affair unmis- takably shows among the French Canadians in that town an access of intelligence, or at least of knowledge of the non-military spirit of the English laws.' The language of the memorial of the Quebec seigniors on behalf of Murray in 1766- proves that even then there was associated with the old subjects in their opposition to that governor a number of the new, who are said for the most part to be "slaves to their creditors."' Of combined English and French movements we have, however, very few traces. We have seen above how the attempt at combined action failed in regard to an assembly in 1773, and it is probable that many other such fell through from similar causes. Shortly after Carleton's arrival he writes in connection with the Walker affair (an assault on an objectionable magistrate which was the outcome of friction at Montreal between the English civil and military elements), that the Canadians are being led by the English into the seditious practices of the other provinces in the belief that these are " agreeable to our laws and customs, " and " are thereby induced to subscribe sentiments very different from their natural disposition."' The degree of influence which the English element had acquired over the French in this short time is dwelt upon by Maseres, who contends that in the event of an assembly being granted most of the French Canadian constituences would choose English representatives. And in the account he .gives of an ap- proach by some of the leading French of the town of Quebec (of the professional class), to the English for the 1 Can. Arch., Q. 3, pp. 122-70. ' Rep. Can. Arch., 1888, p. 21. » See above, p. 292, note 5, concerning meetings of French Canadians. 4 Can. Arch., Q. 4, p. 40. 324 BULLETIN OF TUE UNIVERSITY OF WISCONSIN. purpose of joint action towards an assembly, the French delegation is represented as admitting that even if the greater share of the assembly be granted to the numer- ical superiority of the French, the English will more than make up by their superior knowledge and capacity for public business.' The vigor and modern character of the political methods resorted to by the British party maybe seen by Carleton's reference to a memorial against the new judicial ordinance of 1770, in which he states that he was "really ashamed of the manner in which I was informed many of the king's old subjects had behaved, sending about handbills to invite the people to assemble in order to consult upon grievances, im- portuning, nay, insulting, many of the Canadians because they would not join them." '■' Similar methods are referred to with regard to the movement of protest against the Quebec Act, and the language used indicates a considerable degree of success. As early as November, 1774, (i. e., six months before the calling upon the people for armed service revealed their real attitude), Carleton writes of the upper classes of the Canadians that they '' are not without fears, that some of their countrymen, under the awe of menacing creditors and others from ignorance, may have been induced " to join with the old subjects in their efforts against the " oppression and slavery imposed upon them [the Canadians; Carleton is quoting the representations made to the ]Deople], by those acts of parliament." These efforts will be discussed more fully in another place;' their success proves, among other things, that in this crisis at least the leadership of the people had fallen in very large measure to the more advanced section of the English party. At present it will be sufficient to point out that on the whole, if we except the ineradicable hostility between the J Maseres, Additional Paperf^^ etc., p. 21. = Can. Arch., Q. 7, p. 89. 2 Below, cbapter VI. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 325 noblesse and the commercial English element (an hostility which was not one of race), we certainly discover through- out the period no signs of irreconcilable discord and diilerence of view or interest between the main French and the main English population. It is true that the peculiar attitude of the government towards the English element imposed upon it the necessity of cultivating the body of the people more than otherwise perhaps would have been the case. But taking out the extremists on both sides we would probably find that the average opinions as to the disposi- tion of government and the laws were by no means so wide apart as the makers of the Quebec Act supposed. i 326 BULLETIN or THE TJNIVEESITY OF WISCONSIN. CHAPTER III. THE PROVINCIAL, GOVERNMENT. A. General Status. A full presentation of the conditions attendant on gov- ernment in the province of Quebec throughout our period is essential to any accurate estimate of general policy then or later. It is therefore necessary to discuss some general problems that lay at the basis of authority, and to describe brieiiy the character and principles of administration pre- vious to the Quebec Act. The government of the province, not only during this period, but also under the Quebec Act down to 1791, may be described as that of a crown colony' without an assembly. As no other such government existed contem- poraneously among the older continental colonies, or had existed since the first rude beginnings of government there, we cannot turn to these for illustration.- But a clear idea of the exact constitutional status of the province as it ap- peared to the highest legal authority of the time will be acquired from a study of Lord Mansfield's famous judg- ment of 1774 in regard to the island of Grenada.' Grenada and Quebec (together with East and West Florida), had been on precisely the same footing with regard to the con- ditions of acquirement and the constitutional documents that had issued concerning them. Both had been long settled French colonies, conquered by England about the same 1 Using the classification of colonial governments into crown, proprietary and popular, according to tlie method by which the governor was appointed. 2 We might perhaps except Georgia, 1751-4, during which time the province was gov- erned directly by the crown. But as there was then also neither governor nor council, and as when in 1754 these were appointed, an assembly came with them into existence, it does not seem worth while to refer more directly to conditions there. 3 Case of Campbell vs. Hall, 1774. Cowper's or Lofft's Reports. COFFIN — TUE PROVINCE OP QUEBEC, 1760-76. 327 time, and surrendered on conditions of capitulation very nearly the same; they had been ceded permanently by the same treaty under explicit statement of being affected by the same stipulations;' and finally they had been grouped together and made subject to precisely the same regulations by the Proclamation of 1763. This proclamation had been followed in the case of each by commissions to governors, couched (so far as the present point is affected), in almost precisely the same terms. The Grenada case turned on the question whether the king, without the concurrence of parliament, had power to make a legislative enactment with regard to the Island subsequent to the date of the above mentioned Proclamation of October 7, 1763, which made known to all concerned, that as regarded the new acquirements therein mentioned, he had " given express power and direction to the governors of our said colonies respectively, that as soon as the state and circumstances of the said colony will admit thereof they shall with the advice and consent of our said Council call and summon general assemblies in such manner and form as is used in the other colonies under our immediate government," and that he had given power to the governors, v/ith the consent of the councils and of the assemblies as so constituted, to legislate for the provinces concerned. This is the material instrument involved, though Lord Mansfield cites also another subordinate iDroclamation of the same tenor, and the commission to the governor by which he is given the power spoken of; but whatever added force would come from this last would also affect the province of Quebec to precisely the same degree. Lord Mansfield's conclusion is that, while previous to the publication of these documents (i. e., previous to October 7th, 17G3), the king alone, through the legislative power over a conquered country given him by the royal prerogative, could make any legislation concern- ing the recent conquests consistent with the constitution, ^ See Houston, Canadian VoeumentSy p. 61. 328 BULLETIN OF THE UNIVEESITY OP WISCONSIN. he had by the publication of these instruments divested himself of this power, and had voluntarily and irrevocably granted to the new provinces a constitution under which the legislative power over them could be exercised only by a provincial assembly or by the British parliament. In other words, the Proclamation of 1763 was a charter of liberties granted to all who were or might become con- cerned with the regions in question, granted for the express purpose (as stated in it), of inducing them to become so concerned, and therefore, they having acted upon it, irre- vocable without their own consent. The case in question had reference to taxation; but evidently nothing depends on this fact, for the decision of the chief justice is given in general terms; "we are of the opinion that the King had precluded himself from an exercise of the leg- islative authority which he had before." The conclusion from this is that the Proclamation of 1763 must be looked upon as the Constitution of Canada through- out the whole of this period, or up till the date at which the imperial parliament first took legislative action con- cerning the country;' and the result is therefore reached that government without an assembly (i. e., government as it existed down till the Quebec Act), was constitutionally invalid, ail legislation by the governor and council alone being constitutionally void. This position cannot be affected by any quibbling as to the exact terms of the above mentioned instruments. It is true that the words of the Proclamation in regard to the calling of an assembly are, " as soon as the state and circumstances of the said colony will admit thereof, " the governor and council being apparently left judges as to when that might be; but we do not find that any contention on this point was raised in the Grenada case, or that Lord Mansfield, (who, it will be remembered, was a strong assertorof royal prerogative and iThelQuebec Act (14 Geo. Ill, u. S'.i, Sec. 4.) practically recognizes this, in begin- ning with the Qspress abrogation of the Proclamal ion and the subsequent comraissions. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 329 colonial subordination, and who therefore would undoubt- edly have given full attention to any point which would have enabled him to save the king's authority from this decided check), took anything but a mere passing notice of these words. The words of the proclamation are "power and direction to our governors:" ' and that no argument can be founded on the substitution, (probably unintentional and in pursuance of official forms), for these in Murray's commission of the phrase " power and authority," is shown by an examination of the case of Nova Scotia some few years previous, — an almost parallel case, the study of which will I think strengthen my argument in every point. The position of those settlers who in Nova Scotia claimed the fulfillment of the promise of the full enjoyment of English constitutional forms was, if anything, weaker than in Quebec, for the fundamental proclamation under which settlement had been invited, emanated not from the King- in-council, but from the Board of Trade. ^ It promised the prospective settlers that a civil government should be es- tablished, "as soon as possible after their arrival, whereby they will enjoy all the liberties, privileges and immunities enjoyed by His Majesty's subjects in any other of the colonies and plantations in America;" and the commission of the governor, issued two months later, grants to him " full power and authority, with the advice and consent of our said council from time to time as need shall require, to summon and call general assemblies . . . according to the usage of the rest of our colonies and plantations in America. " In conjunction with such assemblies he and the council were to have full power of legislation, granted in precisely the same terms as are used in the commission given to Murray. And no provision is made, as none is made in Murray's commission, for legislative action with- out such an assembly. It will be noticed that the phrase IThe italicising is miae. 2 March 7, 1749. See Houston, Can. Docmnenls, p. 7. 330 BULLETIN OF THE UNIVERSITY OF WISCONSIN. used in. the proclamation above, " as soon as possible after their arrival, " is fully as indefinite as that quoted from the other documents, and that the determining of the possi- bility is aiDparently left to the governor. In this light he and his successor chose to understand it, and without tak- ing any step towards an assembly proceeded to legislate with the council alone for six years. Finally, in 1755, the attention of the Board of Trade was called to this state of affairs, and it immediately submitted the validity of the laws so enacted to the British crown lawyers, the attorney- general at that time being the William Murray who after- ward as Lord Mansfield delivered the judgment of 1774. The answer was that, " the governor and council alone are not authorized by His Majesty to make laws till there can be an Assembly, " — an opinion which was not supported by any arguments other than a reference to the king's order that government should be in accordance with the commis- sion and instructions.' The Board of Trade immediately proceeded to comjDel the governor (notwithstanding his as- surances that the legislative authority of the governor and council was not questioned in the province, and that very great difficulties would attend the calling of an assembly), to comply with the original promise, enjoining him more- over to see that one of xhe first legislative measures of the assembly should be the passing of an act of indemnity for proceedings taken under the laws previously enforced.^ There is no reason to suppose that the conclusion I have thus drawn from the highest legal opinion of the time is affected by later instructions to the governors. To Murray there was issued what Maseres calls a " private instruc- tion," granting to him and the council, power "to make such rules and regulations as shall appear to be necessary for the peace, order and good government, taking care that nothing be passed or done that shall in any wise tend to 1 Hou^^ton, Can. DocuTnenis, p. 18. = Ib., p. 17. COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 331 affect the life, limb or liberty of the subject, or to the im- posing any duty or taxes." Carletou's commission in 1768 is accompanied by general instructions, of which the tenth article is to the effect that, whereas he has been directed by the commission "that so soon as the situation and cir- cumstances of our said province will admit thereof, you shall, with the advice of our Council, summon and call a General Assembly," he is as soon as possible "to give all possible attention to the carrying of this important object into execution;" but that, "as it may be impossible for the present to form such an establishment, " he is in the mean- time to make with the council alone such rules and regula- tions as shall be necessary, under the same restrictions as were imposed on Murray. These instructions of course emanated only from the executive power, and it is hardly necessary to further contend that as such they were, ac- cording to Lord Mansfield, of no avail against the funda- mental instruments discussed above. So long as the diffl.- culties in the formation of an assembly were not so great as to occasion the entire suspension of civil government, the power of the Home executive to delegate legislative au- thority to the colonial one had no existence, for the sim- ple reason that the former was not itself possessed of any such authority. Difficulties such as existed in Quebec had been pleaded by the government in Nova Scotia thirteen years before in an exactly parallel case; but no attention had been paid to the plea by the Crown lawyers or the Board of Trade. It is manifest, therefore, that the provincial legislation throughout this period was in toto null and void. But this does not quite dispose of the problems involved in the matter; for, apart from the question of the legislative competence of the Provincial government, the most diverse opinions have been entertained with regard to the laws legally subsisting throughout the period. The diffi- culty is with the civil laws only, it being universally 332 BULLETIN OF THE UNIVERSITY OF WISCONSIN, acknowledged that the criminal code accompanied the conqueror without further enactment. But it was also contended learnedly in many quarters, and it was the main article of faith with the English-speaking party in the province, that the fundamental imperial documents by which civil government had been established were adequate to, and had resulted in, the introduction of the English civil law, if not in toto at least in the same degree as that in which these laws were operative in the other colonies.' It may perhaps be (jontended that this was the view, not only of the "old subjects," but also in the early official world, and that the legislation whose validity has been dis- cussed above was mainly intended only to provide adminis- tive machinery or applications for laws already established in bulk. The fundamental acts relied on for such an estab- lishment were the capitulation of Montreal (and of the province), September 8th, 1760, the Treaty of Paris, Feb- ruary, 17G8, and the Imperial Proclamation of October 7, 1763. It is necessary therefore to briefly consider these. - The first of these documents is of a purely negative character, Amherst replying to the demand that the Cana- dians should continue to be governed according to the custom of Paris and the laws and usages of the colony, by the remark that they became subjects of the king. The 1 The prevailing ideas in regard to the position of the colonics generally as to the intro- dnction of English law, are probably expressed in Knox's JuHiice and Policj/ of the Quebec Act, 1774. He states that English colonists take with them such statute law only as, (of date previous to the starting of the colony), is applicable to their circum- stances, or such of later date as expressly mentions the colonies. The result (he con- tinues), is that tlie new colony is in most cases without laws, "and the magistrates usually adopt the usages of the neighbouring colonies, whose circumstances and situa- tion bear a near resemblance to their own; and by the tacit consent of the people to their fitness they acquire the authority of laws ; and things are conducted upon this (though somewhat arbitrary) footing, until a legislature is formed; and then the laws of the other colonies are taken as models; and with such alterations as circumstances render necessary, they are enacted the laws of the new colony." It is interesting to note that Knox adds that this was the procedure in Quebec, the old laws of the colony being adopted till the legislature could make new ones. If he refers to actual use this is prac- tically correct ; but by no means so with regard to tlie actual legislative steps taken in formal enactment. See below, chapter V, with regard to the province of Grenada. ^The pertinent parts are reprinted carefully in Houston, Can. Docttments,vp. .i'Z-H, COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 333 only bearing of the Treaty of Paris on the matter is an in- direct one, Maseres contending that the phrase with regard to the toleration of the Catholic religion, "as far as the laws of Great Britain permit, " shows that it was the British intention that these laws should be the fundamental rule of government in the province. The intentions of the crown are to be considered presently; meanwhile it may be con- cluded that the Treaty of Paris, except with regard to the criminal law, does not affect the legal point; unless indeed it be considered necessary to combat the opinion that con- quest and cession ipso facto make at once legal in the conquered territory all the laws of the conqueror. But it should be enough on this point simply to refer again to the opinion of Lord Mansfield (stated by him as a "maxim," the "justice and antiquity" of which were " incontrovert- able "), that "the laws of a conquered country continue in force till they are altered by the conqueror. " ' The remain- ing question then is this. Assuming as Lord Mansfield does, that the king had up till the publication of the Procla- mation of 1763 possessed general legislative power within the limits of the constitution, were the English civil laws introduced into Canada by that proclamation? The proclamation declares that the king has by letters patent under the great seal (i. e., by the governor's com- mission), " given express power and direction " to the gov- ernor to summon an assembly as soon as possible, in the same manner as in the other royal provinces; that he has granted to the governor, council and assembly, when thus brought together, power, " to make constitute and ordain laws, statutes and ordinances ... as near as may be agreeable to the Laws of England, and under such regula- 1 In Grenada judgment. See also his letter to GrenviUe, December 24, Xliii, Grenville^s Correspondence, III, 476. Also reports of crow:i l:iwyers on Canada, 1766. There seems no need of further discu.ssing this ; the curious are referred further to BlackUone, I, 107 ; Clark, Colonial Law, ip. i\ Bowyer, Universal PitbUc Law, i^.lQ; Burge, Commentaries on Colonial Laws, I, 31; Halleck, International Law, p. 824; Lower Canada Jurist, II, App. 1. For these references I am indebted mainly to Lareau, Hist. Droit. Can. 334 BULLETIN OF THE UNIVERSITT OF WISCONSIN. tions and restrictions as are used in the other colonies;" and that in the meantime " all persons inhabiting in or re- sorting to our said colonies may confide in our Royal Pro- tection for the enjoyment of the benefit of the laws of England." To which end power has been given to the governor and council to establish courts of justice "for the hearing and determining all causes as well criminal as civil, according to law and ecjuity. and as near as may be agreeable to the laws of England." The first part of this gives a power the conditions of the exercise of which were never realized, and which thus has no bearing on the present question; but the second part, which claims to provide for the temporary non-realization of these condi- tions, and which directs the use of the laws of England " as near as may be " while at the same time giving no author- ity to the provincial government directly to enact these laws, would certainly seem to have been considered by its authors at least as in itself sufficient to some extent for their legalization or introduction. But even this would appear not to have been the case. In response to an in- quiry from Carleton concerning the putting into^force in Quebec of some English commercial law, the Earl of Hills- borough, then secretary of state, replies (March 6, 1766), that as one of those who had drawn ujj the Proclamation of 1763,' he could state " that it had never entered into our idea to overturn the laws and customs of Canada in regard to property, but that justice should be administered agree- ably to them, according to the modes of administering justice ... in this Kingdom;" adding on the point in question, that "it is impossible to conceive that it could ever bo His Majesty's intention, signified either by the Proclamation or by the Ordinance for the establishment of Courts of Judicature, to extend laws of that particular and 1 He was then President of the Board of Trade. Horace Walpole refers to bim at an earlier period as "a young man of great Iionour and merit ;" but bis subsequent career sbows that he possessed little judgment or moderation. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 335 municipal nature to the colony, even if the intention had been to have overturned the customs of Canada."' A further official indication of the intent of the proclamation is found, nearer the time of issue, in the report of the crown lawyers, April, 1766, on tlie legal condition of the province. This, after strongly advising that the local usages be left undisturbed, states as one of the main sources of disorder in the province, the alarm taken at the procla- mation of 1763, "as if it were the Royal intention, by the judges and officers in that country, at once to abolish all the usages and customs of Canada with the rough hand of a conqueror rather than in the true spirit of a lawful sovereign. " ' Whatever this may imply it certainly refers to the Proclamation, not as introductive of any law or legal principle, but as at the most merely indicating an in- tention, to be more or less gently aad gradually caried out. Finally Attorney- General Thurlow, in the Quebec Act de- bates 1774, refers to the document as a crude production, which " certainly gave no order whatever with respect to the Constitution of Canada," and asserts that it is an un- heard-oE and absurd tyranny to regard it " as importing English laws into a country already settled and habitually governed by other laws. " " This proclamation . . . was not addressed to the Canadians; ... I would ask from what expression it is, that either the Canadians can discover or English lawyers advance, that the laws of Can- ada were all absolutely repealed and that a new system of justice, as well as a new system of constitution, was by that instrument introduced. " " Authoritative legal and official statements therefore sup- port the lay judgment in the opinion that the general and vague expressions of the proclamation could not be taken as adequate to the overturning in whole or part of the iCan. Arch., Q. 5-1, p. SU. 'Smith, History of Canada, II, 27. 5 Cavendish, Bepori, pp. 24-37. 336 BULLETIN OF THE UNIVERSITT OF WISCONSIN. ancient system of civil law, and the express introduction of English, either common or statute. The province could not be regarded in the light of a new colony, into which the settlers brought with them a certain part of the common law of the parent state; and hence it would seem that the introduction of common law could not be effected any more easily than that of statute. As to statute law, public promulgation has always betn essential to validity; but no publication of any portion of that law was ever ex- pressly made in the province .' This discussion belongs, however, rather to the realm of legal theory than to that of practical constitutional investi- gation. For the validity of the legislation in question re- mained unchallenged either in the province or at home, and no hint of an indemnity for the acts committed thereunder is to be found in any of the discussions connected with the Quebec Act. V/e have officiaA references now and then to individual ordinances as overstepping the legislative au- thority, and a few are disallowed by the home government apparently on this ground; but no general objection seems to have been made then or at any time thereafter to the exercise of the legislative power. Nor, stranger still, have modern writers on this period, even those occupying a legal standpoint, taken adequate note of these funda- mental considerations; a neglect which must be my excuse for the extent to which I have gone into them. 1 It is to be noticed in this connection that the general supposition among the English in the proviuce in the earlier .years, as to the iutrodaction of English law, was based, not on the proclamation alone, but mainl.v on the ordinance of September 17, 1764; the inference being that this ordinance was considered necessary to the completing or en- forcing of the work of the proclamation. Carleton writes to Shelbume, December 24, 1767, that the whole French coustitution and system of law and custom "in one hour wa overturned by the Ordinance, . . and laws ill-adapted to the genius of the Can. adians . . unknown and unpublished, were introduced in their stead." It has been shown above, however, that this enactment was necessarily null and void, as an overstepping of the power of the legislator. See Lareau, IlUt, DroU. Can., II, 39-53, for discussion of this matter. COFFIN THE PROVINCE OP QUEBEC, 1760-76. 337 B. General Administration. It is of course not possible here to enter into any inves- tigation of the constitutional functions at this period of colonial administrations in general, or of this one in par- ticular. My object is simply to indicate generally the lines and limits of practical conduct, with special reference to the x'leculiar conditions of the province. Such a state- ment must be taken in close conjunction with the investi- gation of general policy to which the succeeding chapter is devoted, and especially with the analysis of Commissions and Instructions there attempted. Murray's commission as governor (1761), invested him, apart from the Council, with the following powers and duties : a. Keef)ing and using the public seal. b. Administering required oaths to all other public functionaries. c. A negative voice in both council and assembly and the power of adjourning, proroguing or dissolving the latter. d. Appointment of ecclesiastical officers. e. Pardoning or reprieving of legal offenders, so far as that power was delegated to colonial officials. f. Certain military powers in time of war. These seem to be the usual powers, and we need not delay on them, except to notice that the military authority granted Murray was purely a militia one (that is to say, of the extent usually granted), notwithstanding the fact that he represented with some force ' the necessity of a diiferent regulation on account of the peculiar position of Quebec. The representation was of avail later, for the supreme military command in the province (i. e., over the regular troops on all occasions, as well as over emergency forces in time of war), was practically joined to the civil in 1766, I To Halifax, October 15, 1764. (Can. Arch., Q. 2, p. 206.) 338 BULLETIN OF THE UNIVERSITY OF WISCONSIN. and formally so in 1770. Other changes were made later in the position of the governor, concerning which it is necessary to here make only the general statement that, with the military modification, the result was to place the English governor much more nearly in the place occupied by the old French one. In regard to the council apart from the governor, and the relation between it and him, I find that during the most of the period, the conditions (defined in the gov- ernor's Instructions), were practically identical with the contemporary ones in the older crown colonies.' The phrase used constantly in regard to the relations between the council and the governor in the carrying on of joint duties, requires the governor to act with its "advice and consent." Tbis position of the council is defined by Masires as one of " advice and control;" but how far the element of control really entered depended largely of course on circumstances and individuals. How far it could be eliminated under a strong hand may be conjectured from the fact that the governor was by his commission generally, if not always, invested with an unlimited veto power on all legislation, and that the carrying out of executive measures rested almost entirely with him. He had, more- over, on what he might choose to regard as emergencies, power of suspension from the council; besides being in the province the dispenser of general governmental favours, and in most cases the only effectual medium of access to the home administration.'^ An examination of the council 1 See iuptructions to Sir H. Moore, governor of New York, issued November 27, 1765. Or for the Province of Georgia, about tlie same time. The latter province, in its late establishment as a crown colony, and the presence on its borders of far-reaching tribes of Indians, a source at once of danger and of profit, occupied in the southern system of colonies a position analagous to that of Quebec in the northern. 2 How ineffective the "control" of the council practically proved in Quebec is tacitly acknowledged by Mas^res himself in his later recommendations of such changes ia formation and maintenance as would protect it against the governor. In a close eiam' ination of the council records throughout the period, I have discovered only one instance where the official language {and I am not unmindful of the untrustworthiness in such COFFIN THE PEOVINCE OP QUEBEC, 1760-76. 339 records leaves with us the impression on the whole of a body so docile as to present no obstacle to the will ol such a man as Carleton. Abridged as the latter's power really was, he was able to rule more autocratically than even Mur- ray. But that this was not the intention of the home au- thorities may be conjectured from the changes in his in- structions ; and we shall see later how after the Quebec Act a more decisive intervention was made in favour of the council. The council had no stated times or conditions of meeting, the available members being apparently called together as occasion arose. The full list comprised twelve names, and the personnel was subject to constant change, only three of the original dozen remaining in the province at the close of the period. Temporary appointments had to be con- stantly made, and June 22, 1773, the lieutenant-governor writes that no meetings had been held for the last three months of 1772 for want of a quorum. During the admin- istration of Murray we have no details of the council pro- ceedings. This seems due to neglect on the part of the colonial office in not requiring reports; ' for references else- where leave no doubt as to the fact of meetings or the keeping of minutes. The first full report is in 1766, and connections of official wordings) , supports the theory as to the power of the council ; and in that instance, if control were really exercised, it can be shown to have been most probably caused by exceptional circumstances. Carleton's attitude toward his council may be judged from his assertion of practical independence soon after his arrival, in re- gard to an instance where he had expressly convened only a portion of it. And it is to be remarked that his conduct on that occasion was not censured by the home authorities. (See Can. Arch., Q. 3, pp. 259-70.) A few months later he dismissed two of the council on his sole authority. His representation of this matter also proved satisfactory to the home government, which paid no attention to the plea of the aggrieved members, that "the independence of His Majesty's council, not only of Quebec, but in every other province, seems interested in this event." (Can. Arch., Q. 4, p. 40; pp. 29S-239, 247.) This is the only instance of the dismissal of councillors met with. Murray's relations with his advisors seem to have been amicable throughout. ^ A neglect which I have frequently noted, and which I shall emphasize elsewhere as steadily marking the home administration with regard to Canada down almost to the Quebec Act. 340 BULLETIN OF THE UNIVERSITY OF WISCONSIN. from this time down we have regular accounts of proceed- ings.' In comparing the English council down to the Quebec Act with the council under the French regime, we find at first sight a close resemblance in composition. The French council in the last stage of its development, (i. e., from the beginning of the 18th century), consisted, beside the gov- ernor, intendaut, and bishop, of the same number of ordin- ary councillors (12), appointed, and apparently removable, in the same way. If we regard the English governor as representing the bishop, and the English chief justice and governor as dividing between them most of the functions of the intendant, (not indeed a very accurate supposition), we may look upon the councils as practically identical in composition. But in considering the respective spheres of action, we discover very notable differences; differences which for the general purposes of government made the English council a very much more important body. In re- gard to legislative functions the French council had power only in cases not provided for by the established Coutume de Paris, the royal edicts, or the ordinances of the intendant (the last especially affecting all parts of the life of the peo- ple) ; while in ordinary executive work its powers were again much narrowed by the great range of the same oificial, whose prerogatives were always jealously defended and exercised. On the other hand, in judicial matters the French council seems to have had a much wider sphere than the English, and to have acted within it much more constantly and vigorously. So much so indeed that there can be little doubt that it was intended finally to be restricted, so far as the peculiar circumstances of the colony should render ad. 1 No definite instnictions are found as occasionin,!? this change, and it would seem that none such are to be found contemporaneously in regard to the other colonies. Carleton had doubtless, however, received directions of some kind before entering on the government, and the 80th Article of his Instructions of 1768 require him, "upon all occasions to send unto us ... a particular account of all your proceedings and of the conditions of affairs within your government." This direction does not appear in the instructions of 1775 or 1778, though full minutes continued to be sent. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 341 visable, to much the same sphere of activity as that allowed to the old parliaments of Prance. Within these limits it seems to have been a much more vigorous, though much less harmonious body than the English council, either of Quebec or of the older colonies. It met weekly, worked with dispatch, and made its influence daily felt in every part of the province. It was by no means under the control of the governor, and was always split up into two, and not unfrequently into three, factions; a want of har- mony, however, which does not seem to have seriously affected the satisfactory execution of its main work. In considering the actual legislation of the period we find the more important ordinances to be about forty in number, of which more than one-half were passed under Murray's administration, or in the first two years. The main sub- jects treated are as follows: The judiciary (9 ordinances); the currency (3); regulation of retail trade, including markets (14); relations of debtors and creditors (3) ; police regulations (3); registering of lands, etc. (1); highways (1); protection against fire (3). Measures of an exceptional character provided for the ratifying of the decrees of the courts of justice during the preceding military period, pre- vented anyone leaving the province without a government pass, forbade the selling of liquor to the Indians, made temporary provision for billetting troops in private houses, and imposed a fine for being more than three months ab- sent from public worship. Much of the commercial legis- lation is decidedly paternal in tone. The ordinances of the first part of the period are as might be expected somewhat carelessly drawn. One has an ex post facto clause ; another mixes together in the same enactment two apparently utterly unrelated regulations; a third describes and pro- hibits a serious offence without stating any penalty. In most cases fines are the only punishment, but in three ordinances (which are not noticed as repealed, and were therefore evi- dently considered as law through the whole period), the 5 342 BULLETIN OF THE UNIVERSITY OF WISCONSIN. penalties include imprisonment up to one month, though the instructions debarred provincial legislation from affect- ing the liberty of the subject In three others (two of which were disallowed, apparently on this ground), con- viction could be secured by the oath of an informer, who got half the fine. It is evident, in short, that the ap- prentice work of the council was not guided by any par- ticular directions from home. Such directions were, however, issued to Carleton in 1768, and the legislation we have subsequently is apparently devoid of such objection- able features. The minutes of council show the ordinances to have been framed with very considerable care and delib- eration,' following the lines of English parliamentary practice. In most cases, however, the number of council- lors present is merely a quorum or less than one-half the whole. ^ The ordinances seems from the beginning to have been published in both Blench and English, but it was not till 1768 that the prior submission of the French translation to the inspection of the council was made necessary before publication. As to the occasion and manner of the initia- tion of legislation we have few particulars ; but in one in- stance (February 16, 1768), we find an ordinance called forth by the submission to the council through the chief justice (an ex-offlcio member of it), of a presentment of the grand jury in the supreme court; while in another case (April 24, 1769), it seems to have been occasioned simply by the representation of a Quebec magistrate.^ Petitions were no doubt very frequently the basis of action. The J See (e. g.) the procedure in the case of the ordinance of February 1, 1770, for the re- form of the judiciary. At a council meeting of August 18, 1769, a committee is appointed to report concerning complaints on the subject. The report appears September 14, and on being approved, the attorney general is ordered to prepare an ordinance embodying its recommendations. The draft of tliis is submitted at the next meeting (January 10, 1770), is referred to a committee, and returned by it February 1st, with an amendment. The amended ordinance is ordered to be translated into French, and on the translation being approved of at the next meeting, (February 14), the two versions are ordered to be immediately promulgated. ^ The Quebec Act ordered that legislation should require a majority. ^ See Can. Arch., Q. Minutes of council of above dates. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 343 manner of publishing ordinances was at first by public reading in the towns on beat of drum, followed by printing in the Quebec Gazette. A few months later this was sup- plemented by an order that all cures should read to their congregation after Sunday services all government meas- ures so published. The multifarious forms of the council's executive activity can be as easily imagined as they would be tedious to enumerate. Its main and regular functions were the grant- ing of lands, the establishment and maintenance of means of communication, the regulation of trade and manufactures, the appointment and supervision of judicial and local offi- cials, the examination of public accounts, and the consider- ation of complaints against public officers. It acted in important matters by means of committees and much of its time was expended in the examination of petitions. General measures, aside from ordinances, were known as Proclamations or Advertisements, and seem at times to encroach on the properly legislative sphere; at least it is difficult to see the distinction between matters provided for in some of them and other matters which were clothed with the dignity of an ordinance.' The judicial functions of the governor and council, (regu- lated by the governor's instructions), were the ordinary ones of the supreme colonial court of appeal, and do not require close discussion. I have spoken above of the cor- responding powers of the French council as being very similarly exercised, but, through the greater range of appeal, as much more closely and constantly touching the people, even making allowance for the fact that the English council was not hampered by a parallel jurisdic- tion such as that of the intendant. The instances of judi- cial action on the part of the latter at any part of the 1 None of these instruments appear after 1768. Many of them were simply the re-issue under the colonial seal, of general or special acts of the home executive. 344 BULLETIN or THE UNIVERSITY OF WISCONSIN. period are few in number,' there being none under Murray's administration. Notwithstanding one dubious incident,' the council's judicial activity seems to have been beneficial. Its application of English constitutional principles, and the thoroughly English spirit of its procedure, are illus- trated by a case in 1767 which seems at first sight a direct overstepping of its jurisdiction.^ But that it was not given to vexatious or illegal interference with the courts is shown not only by the rarity of such cases, but also by the record of a couple of instances in which appeals were dis- missed as not cognizable. Nevertheless, a general over- sight seems to have been kept on the judiciary, especially in its lower stages. As a striking illustration we may notice here the action taken on receipt of well founded complaints against many of the justices of the peace of the District of Montreal in 1769, — complaints which a few months later were more fully met by an ordinance greatly curtailing the power of the justices.' In the meantime, and almost immediately on receipt of the complaints, a cir- cular letter was addressed to the offending magistrates, in which the conduct complained of was censured in the strongest terms, and particular directions were given as to the method of amendment. C Judiciary. Civil Service. The commission issued to Gov. Murray in 1763 granted him power, in conjunction with the council, " to erect, 1 This is mainly due of course to the restriction of civil appeals to cases involving a high money value (£300). 2 This was a case of the reversion by the council of a judgment of the court of common pleas. Appealed to the crovm, (the only such appeal of the period) , the Privy Council decided, (after a delay of four years), to uphold the original court. But to the conse- quent order the provincial council seems to have paid slight attention ; for in 1774 we find an apparently well-founded complaint to Dartmouth from the original appellant in the case, to the effect that though the decision of the Privy Council had been transmitted to Quebec, the governor and council had taken advantage of a technical difficulty to refuse all reparation. The case seems from first to last a reversion and denial of justice. (See Can. Arch., Q. 10, pp. 94-104). ' See Can. Arch., Q. 4, p. 230. ■" See full details in Reji. Can. Arch., 1890, p. xvii, and following. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 345 constitute and establish such and so many courts of judi- cature and public justice " as should be found necessary, these courts being declared by the previous proclamation of October, 1763, to be for the " hearing and determining all causes as well criminal as civil according to law and equity, and as near as may be agreeable to the laws of Eng- land. " The institution of the judiciary in accordance with the powers then given was through the provincial ordi- nance of September 17, 1764, which remained for the most part the basis of the administration of justice throughout the whole of the period. Its main provisions were: 1st. Establishment of a superior court, or Court of King's Bench, presided over by a Chief Justice, " with power and authority to hear and determine all criminal and civil causes agreeable to the laws of England and to the Ordi- nances of the Province. " To sit twice a year at Quebec, with the addition of a court of assize and general goal de- livery once a year at Montreal and Three Rivers. Appeal could be made to governor and council. 2nd. Establishment of a Court of Common Pleas, to de- termine all cases concerning property above value of £10, with appeal to King's Bench concerning £20 or upwards, and to council directly for £300 or more. The judges "to determine agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and present situation of things will admit, until such time as proper ordinances for the information of the people can be established by the government and council agreeable to the laws of England:' but "the French laws and customs to be allowed and admitted in all causes where the cause of action arose before October 1, 1764." 3rd. Establishment of justices of the peace in the dif- ferent districts, with power to each in his own district "to hear and finally determine in all causes and matters of property" not exceeding £5, and to any two to do the same 346 BULLETIN OF THE TINIVERSITY OF WISCONSIN. up to £10. Three were to be a quorum, with power of holding quarter sessions and determining up to £30, with appeal to the King s Bench, while two of the body were to sit weekly in rotation in the towns of Quebec and Montreal. I have elsewhere spoken of the marked English charac- ter of this ordinance and of the manner in which it was received in the province.' There are no traces of refer- ence to the old French judiciary, and apparently the only indications that the legislators were aware that the com- munity for which they were legislating was not an English one, are the concessions as to the use of French proced- ure and law in causes begun before October 1, 1764,^ the admission of French Canadians to juries in the King's Bench, (apparently not in the Common Pleas), and the ad- mission of Canadian lawyers to practice in the Common Pleas, (apparently not in the King's Beach). I shall else- where detail the extension of these privileges by instruc- tions from home; instructions which it will be remembered did not come into effect during Murray's administration. The only other judiciary enactment of importance under Murray is an ordinance of March 9, 1765, by which all juries were directed to be in future summoned from the province at large without regard to the vicinage of the action or crime. This remarkable interference with one of the fundamental principles of the jury system seems to have been occasioned by terp.porary circumstances, and was remedied by Carleton very soon after his arrival in the province.' 1 To what a large extent the legislators believod that they were introducing English law by this ordinance is shown by the amending one of November 6 following. For later opinions as to it, see Carleton, December 24, 1767, (Can. Arch., Q. 5-1, p. 316), and Reports of the Board of Trade, 1765, 1766, (Can. Arch., Q. 3, pp. 53, 171.) See also above, p. 336 note. ^ See also ordinance of November 6, 1764, for "quieting people in their possessions." ' Ordinance of January 27, 1766. This ordinance was approved. It should be consid- ered in connection with that interference with the jury system in Massachusetts, which called forth the protest of the Massachusetts assembly July 8, 1769, against measures by which "the inestimable privilege of being tried by a jury from the vicinage . . . will be taken away from the party accused." (4 Amer. Arch., I., 24.) COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 347 The instructions to Carleton of 1768 imply no change with reference to the judiciary, and taken literally would indeed intimate an intention of remaining closely by the English law and procedure. But that this was due simply to the careless following of old official forms is shown by later transactions. For not only was such an idea disregarded by the governor in his general policy, but the first important judiciary ordinance of his administration (February 1, 1770), is a direct abandoning of English institutions and a very considerable step toward the adoption of French. The ordinance was occasioned by that oppressive conduct on the part of justices of the peace in the district of Mont- real which has been already mentioned, and had been pre- pared after an investigation by a committee of the council with the Chief Justice at its head, and an attempt to remedy matters by a letter of censure to the offending justices. There seems no reason to doubt the necessity and justice of the ordinance.' That of 1764 had given to the justices a power of final determination in matters of property far ex- ceeding that ever exercised by similar magistrates in Eng- land (who, as the committee of council pointed out, were of a much more influential and disinterested class) ; and even this large power had been by some constantly over- stepped and exercised in a most wantonly oppressive manner. Accordingly all jurisdiction (either singly or jointly), in matters of private property was now taken away and mainly transferred to the Common Fleas, the sit- tings of which were greatly extended and for which in such cases a definite line of procedure was laid down. The ordinance is also marked (as the old subjects complained), by the discretionary power granted to the judges. This, and the provision that the new jurisdiction given to the common pleas could be exercised by one judge (acting evi- dently in a summary manner), together with the prohibi- tion of imprisonment and sale of lands in cases of debt, 1 See Rep, Can. Arch., 1890, pp. xvii-xx, 1-9. 348 BULLETIN OF THE UNIVERSITY OF WISCONSIN. are distinctly French features, and mark the measure as a considerable step towards the restoration of French pro- cedure in civil matters. That this -was intended is shown by Carleton's explanation when transmitting it home; he says plainly that its aims were the " reducing the justices of the peace to nearly the same power they have in Eng- land, " and the "reviving part of the ancient mode of ad- ministering justice in the Province."' And that it was so regarded by the general public is evident from the vigor- ous and numerously signed memorials against it from the merchants of Quebec and Montreal; representations which cannot be disposed of, as Carleton tries to do, as merely the angry and hungry voice of the dispossessed justices.^ For the objections raised are not against the depriving of these justices of their ill-used power, but against the unusual and inadequate character, (in the opinion of the memorial- ists), of the substituted procedure. The ordinance was approved by the home government without delay and with- out any remark on its inconsistency with the instructions of 1768. It was a fitting prelude to that article of the Quebec Act which enacted that " in all matters of contro- versy relative to property and civil right, resort shall be had to the laws of Canada as the rule for the decision of the same. " ' I have discussed elsewhere the questions connected with the dispute regarding the validity in the province of French 1 Can. Arch. , Q. 7, pp. 7, S9. For ordinance see p. 12, and for British memorials, p. 95. ' It is to be repeated that the English party had protested strongly in 1764 against the great powers now taken from the justices. ^ It should be noted that the only complaints that appear throughout the period on the part of the French Canadians with regard to the administration of justice, (apart from the matter of fees), are those remedied by this Ordinance. And the justices whose acts are complained of had not only been entrusted with powers greater than English law granted in the mother country, but had abused even these. No argument, therefore, can be drawn from the matter to show that the Canadians here displayed hostility to Eng- lish law or judicial methods. But it must of course be conceded that the incident could not have had a favorable effect upon them ; the effect probably was to confirm and con- tinue the avoidance of the courts. The abuse had been fully removed, it should b© clearly noted however, four years before the Quebec Act. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 349 and English law ; and it is well to bring here the considera- tion of the more practical and even more obscure problem as to the laws actually used throughout the period. This is one of the most important of the questions connected with the introduction of English institutions; and it be- comes of even more immediate interest from the standpoint of the policy and effects of the Quebec Act. One of the main bases of both the arguments for and the later oft- expressed approval of that measure, was the belief that the establishment thereby of the French civil law and pro- cedure, as relieving the French Canadians from the griev- ious oppression of a foreign code, would be and was most effective in so inspiring them with gratitude as to keep them loyal to the British connection. We shall see later that they were not loyal; we have now to consider whether the Quebec Act could really be expected to have the effect attributed to it. And so far as the present matter is con- cerned, it will be found that the French Canadians were not suffering from legal oppression in any sense, and that therefore they could not and did not experience with the Quebec Act any sudden or marked relief. Gratitude, or an enlightened view of self-interest in connection with the measure influenced only classes and individuals who did not need the additional reason for preferring the imperial to the revolutionary connection; the mass of the people perceived no such change of conditions as to form an ofl"- set to other very clearly discerned and most unpopular parts of the enactment. That this is a totally different enquiry from the previous one as to legal validity we very soon discover. For a slight investigation shows that neither the governmental nor the popular opinions (at least among the "old subjects"), as to the laws which were strictly valid, very much affected the action of the great body of litigants, and that throughout the period the administration of civil justice was in a state of compromise and (from the legal standpoint), hopeless con- 350 BULLETIN OP THE UNIVERSITY OF WISCONSIN. fusion. Even the governmental opinion and practice on the point were sadly at variance, especially in the latter part of the period. Neither Murray nor his advisers seem to have been troubled with any doubts as to the validity in the province of all English common and much English statute law, or of their own legislative competence, within certain limits as to penalties, to further apply that law to any ex- tent that might seem desirable. Whether they considered themselves, in the various specific ordinances, to be mak- ing English law valid by ex^jress enactment of it, or to be merely regulating the machinery by which the law, already in force through the fundamental documents on which the civil government rested, was to be put in operation, is not a matter of importance; I need only refer again to the language of the ordinance of September 17, 1764, in regard to the legal principles which were to guide the courts.' These provisions remained in force throughout the whole period, legally affected only by the slight compromises shortly to be mentioned; for even the ordinance of 1770, which was intended radically to amend that of 1764, and which was passed by a governor and council fully con- vinced that French civil law was about to be re-established, and fully in sympathy with the movement, makes no at- tempt whatever to anticipate events. And it is also to be noticed that up to 1770 the justices of the peace had authority to exercise the very large civil power which it was the object of that ordinance to take from them, accord- ing to a form of commission unmistakably based on the English law, directing the recipient to act " according to the laws and customs of England, or form of the ordinances and statutes of England, and of our Province of Quebec." '^ Even in these commissions, however, there are indications of that policy of compromise and withdrawal in regard to English law which was one of the guiding principles of iSee above, p. 345. ^ See Mas^res, Covnmissions, pp. 135-8. OOFI'IN — THE PROVINCE OF QUEBEC, 1760-76. 351 Carleton's executive administratioa ; it is further manifest in many ways that Murray had also pursued this policy more or less from the very first. We find in the fundamental judiciary ordinance of 1761 provision made that in the court of Common Pleas the French laws and customs shall be admitted in all causes between French Canadians " where the cause of action arose before October 1, 1764 ; " and in an amending ordinance a few weeks later, entitled " An Ordinance for quieting people in their possessions," it is ordained that until August 10, 1765, the tenures of lands granted before the conquest and all rights of inheritance in the same, should remain as they had been under the French " unless they shall be altered by some declared and positive law." No such law was ever enacted, and thus it will be seen that even for those who maintained the valid- ity of the provincial legislation, the legal side of the posi- tion assumed a very confusing and indefinite aspect.' Cer- tainly the popular opinions as to the bounds of valid law were of the most diverse and clashing forms, and the in- definiteness and perplexity thus created was one of the chief grievances of the period. The confusion of opinion and practice on these points is referred to by Thurlow in the Quebec Act debates as beyond all description ; another speaker asserts that this confusion had never been so great as at that time (1774).' Lord Lyttleton in his "Letter to the Earl of Chatham on the Quebec Bill," (1774), draws a striking picture of the almost anarchical state of things in the province, — a picture which is of interest mainly as showing how matters were presented to the English public' For that it must be a greatly exaggerated one is 1 See Carleton's evidence, 1774, as to the confusion in laws of property. (CaTendish, Report) 2 Wiiich is to be expected from the increasing divergence between the practice an d policy of government and its constitutional and legal bases of action. ' The letter is in defense of the BUL It asserts that in Canada " the French laws pre- vailed alone till 1764, when the English laws got a footing. The governors and officers of justice [were] always doubtful which to take for their guide, sometimes preferring the English, sometimes the French laws, as each seemed applicable to the case before thenu 352 BULLETIN or THE UNIVERSITY OF WISCONSIN. shown by several reflections. It was in the first place the interest of the government party, as upholding the Quebec Act, to give a strong impression of the bad state of things in Canada; the opposition on the other hand denied the state of chaos represented. It will be remembered, more- over, that a state of things which to lawyers in England, acquainted only with the imperfect and contradictory docu- ments on which government had been constituted, and with the complaints of partisans, might seem confused and dangerous to the last degree, in the peculiar state of Canada was not likely to prove so fatal. The condition of things here described would seem certain to paralyse all energy and prevent all progress in the province; but we do not find in fact these results. Industry and enterprise were undoubtedly much hampered; but yet the only de- partment of commerce that did not largely increase was the fur trade, and this was injured and impeded not so much by the confusion of law that prevailed in Quebec as by the want of all law in the regions outside its jurisdiction. How then was the province preserved from the natural consequences of the confusion and uncertainty that cer- tainly did exist? Partly from the fact that on the basis of a compromise system initiated by the government itself, and more than connived at in the courts, litigation con- tinued to be conducted chiefly according to the old laws; mainly perhaps because the mass of the people resorted but slightly to the established courts. I have shown above that during the military period the French law and customs seem to have been closely followed wherever they could be discovered. A close study of the later period leads to the conviction that, in at least all matters affect- ing private property (i. e., in almost all the matters in re- One year a proclamation, another year an instruction to a governor, another year a local ordinance, changed the principle and varied the course of their judiciary proceedings. In this fluctuation no man knew by what right he could take or give, inherit or convey, property ; or by what mode or rule he could bring his right to a triaL" (Pamphlets, Can. Archives, Vol.62.) COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 363 gard to which nine-tenths of the people would be likely to come into contact with the administration of civil justice), these laws and customs continued to be given validity even in the highest courts. Under the fundamental ordinances quoted above, such validity could not be denied in a large number of cases. In all cases, moreover, a large discre- tionary power could be used in the court of Common Pleas through a liberal interpretation of the clauses directing its action; and much scattered evidence could be brought for- ward to show that the law administered in this court was French law wherever the use of English would have seemed to work injustice. In regard to the court of King's Bench, which was supposed to be adhering to English law with special closeness and to be bound to reverse appealed judgments founded on any other, we have the direct evi- dence of Chief Justice Hey before the Commons in 1774, that in all suits respecting property Canadian law and customs had been fully admitted by him, and that juries in the court had alwa3's been in the habit of regarding these customs as fully as juries in England regarded English ones. Further, that in appeal cases, (to which the court was practically confined), he had always determined by the rules on which the case had been originally decided. In what seems without doubt to be his report on the judica- ture in 1769,' after stating the legal changes that had been worked by the supposed introduction of English law in 1764, he adds that " these things have not yet been prac- ticed, " — a statement which would seem to refer to the whole judicial administration. Mas^res testifies in 1774 that no inconvenience has as yet been occasioned in the province by the English laws so far as they had been ex- perienced through the decision of the courts; adding that if these had been enforced in regard to landed property great uneasiness and confusion would doubtless have re- I Anonymous paper in Lower Canada Jurist, VoL 1 354 BULLETIN OP THE UNIVERSITY OF WISCONSIN. suited. This statement is in support of the more explicit assertion in his report of 1769, that in the main with re- gard to landed property the Canadians had universally- adhered to their former laws and customs. There is no re- liable evidence to be set over against these statements, made by men who for years had been intimately connected with the administration of justice, and who had kept up their relations with the province during the whole period; we must conclude therefore that outside of strictly commercial matters even the litigious among the French Canadians were little if at all affected by English law. That law was used of course in all matters confined to the old subjects. With regard to suits between litigants of different nationalities it seems safe to assert that Canadian land law and customs were given full validity, — a course which would commend itself even to the English party after the reversion in 1770 to the French methods of tenure. In commercial matters on the other hand the Eng- lish law seems to have obtained without much demur; but there is no reason to suppose that there was here any such divergence of principle as to introduce many disagreeable changes. But, apart from the courts, it is evident that the question of codes was not a burning one among the people at large, for the reason that the main body had very little to do with the administration of justice, civil or criminal.' Carle- ton writes to Shelbourne December 24, 1767,^ that "The people notwithstanding^ continue to regulate their tran- sactions by the ancient laws, tho' unknown and unauthor- ized in the Supreme Courts, where most of their transactions would be declared invalid. " He adds that he has met only 1 Carleton testified before the House of Commons in 1774 that there were very few trials for offences on the part of the common people. ' Can. Arch., Q. 5-1, p. 316. 3 That is, of the use or establishment of English law in the courts. Carleton is writing at the end of the period during which the Anglo-legal movement had been freshest and strongest, and the last part of the statement is shown above to be incorrect. COFFIN — THE PROTINCE OF QUEBEC, 1760-76. 355 one Canadian "who sees the great revolution [i. e., in law] in its full influence. " This evidently means that the Cana- dians kept clear of the courts, making use of their former laws and customs through the aid of those persons who had in large measure arranged their diificulties during the military period.' Maseres in 1774 says the greater part of the French Canadians remain ignorant of the extent of the changes and have proceeded in regard to their lands on the assumption that the ancient laws and usages were still in force. And as he goes on to say that no litigation has yet arisen to give occasion for decisions which would make them better informed, we must conclude that he means they had not in these matters resorted to the courts. In the Quebec Act debate Attorney-General Thurlow made the statement (uncontradicted), that " if any dispute arose there was no instance of the Canadians resorting to the English Courts of Justice, but they referred it among them- selves."^ These statements are supported by indirect evi- dence and justify us in concluding that the main body of French Canadian litigants had not resorted to the courts, but had used through private instrumentalities their old property laws and customs. The main conclusion I have reached therefore is that, for the various reasons discussed above, the judicial con- ditions existing in Canada up to and at 1774 were not such as to cause the formal re-establishment of the old civil law by the Quebec Act to affect the mass of the people in any considerable degree. But nevertheless the situation was one of such confusion and uncertainty as made imperative some decided act of settlement. It may justly be urged that, even in the absence of material grievances, the very fact that the Canadians kept aloof from the courts showed 1 See here also the evidence before Commons, 1774, to the effect that the noblesse kept ontof the courts from pride, and resorted to arbitration. ' Cavendish, p. 31. Thurlow was speaking from a partizan standpoint, but he had got- ten up Canadian affair thoroughly, having prepared an elaborate report after examina- tion of all the available material 356 BULLETIN OP THE UNIVERSITY OP WISCONSIN. a degree of dissatisfaction or distrust, if not dread, that called for immediate action. Moreover, that much friction and complaint existed cannot be denied. But a close ex- amination of the manifestations of this will show that it was in large degree really political in origin, or that it was inspired not so much by oppression in the every day operation of law as by uncertainty with regard to the future. It is rather the apprehension of the educated and intelligent non-litigant ' than the specific cry of the actu- ally aggrieved. Where it is really the latter it will be found again that it is the expression of dissatisfaction with, not new law, actual or supposed, but new procedure. For there can be no doubt that this latter contrasted very un- favorably with the old in regard to the essential features of expense and expedition. So far as English features were at all responsible it is probable that the peasantry were kept from the English courts by these more evident changes and not by legal differences of which they were •wholly ignorant.- In the letter quoted above, Carleton, after his strong statement as to the ignorance of the peo- ple in regard to the great legal changes and their avoid- ance of the courts, adds, " The present great and universal complaint' arises from the delay and heavy expense of justice," the courts having " introduced all the chicanery of Westminster into this impoverished Province." The judic- iary under the old regime had been the most praiseworthy part of the administration, being effective, easy of access, and marked especially by expedition and inexpensive methods. It had been largely and beneficially inspired by the old French paternal attitude, the judges being always ready to interpose for settlement without the expense of a trial. In 1 Neither noblesse nor clergy went into the courts. ' See especially on this point the evidence of the provincial officers before the Com- mons, 1774. (Cavendish, Beport.) 3 A good instance of the carelessness and exaggeration of the oiEcial language of the time. His own previous statement would show that such complaint must have been confined practically to the upper or educated classes. COFFIN THE PROVINCE OP QUEBEC, 1760-76. 357 all these points the change was decidedly for the worse, and taken in connection with the unfamiliar appearance of even the better parts of the new procedure, make it un- necessary to look further for the full explanation of what- ever specific complaint or general apprehension is to be met with. "With regard to seigneurial jurisdiction, it is not probable that the new regime had made any very notice- able difference. For though Parkman seems to think that the lower forms of that jurisdiction continued to be exer- cised in Canada down to the conquest, Carleton asserts that at that time there were hardly three feudal judges in the whole province.' And at all times there had been an ap- peal from the seigneurial to the royal courts in all matters involving more than one-half a crown. With regard to the reception and use by the Canadians of the most important feature of the changed procedure, — the jury, — we have the most conflicting statements; but Burke's opinion^ that they had expressed no dislike of the new institution, di- rectly or indirectly, seems thoroughly well-grounded. As to the general civil service, I need delay here only on those features which would affect the popular estima- tion of the new regime. The great abuses of the later French administration might be expected to insure a favorable reception even of the very imperfect English one ; but nevertheless we meet with considerable complaint. The main cause of this was the fact that the more import- ant positions, being filled by patent from the home gov- ernment, were practically independent of the provincial administration, and were almost always executed by deputy, the appointees renting them out to the highest bidder. The abuse is succinctly and strongly put by Murray in March, 1765. He writes: "The places of the greatest business in the province have been granted by patent to men of interest in England, who have hired them 1 The statement is supported by strong contemporary evidence. 2 Cavendish, Report 6 358 BULLETIN OF THE DNIVERSITY OF WISCONSIN. to the best bidder, without considering the talents or cir- cumstances of their representatives. One man (e. g.) who cannot read a word of French, holds five such ofBces. " ' And in his defense at the close of his administration he at- tributes the difficulties of government largely to " the im- proper choice and the number of the civil officers sent over from England," not one of whom understood French, and the compensation of whom depended entirely on their fees. Power of supervision and suspension was indeed given to the governor, but that this was not sufficient for the remedying of the evil is shown by Carleton's letter to the treasury, January 12, 1775, just at the close of the old order of things. In this he speaks of the misfortunes hitherto attendant on the Provincial government, in that the inferior officers, " proud of the superior weight and in- fluence of the Boards from whence their Commissions issue, " and relying for protection on their patrons, " al- most lose every idea of that subordination so essential to good order," and are in all measures of the colonial ad- ministration " for the most part cold and at best neutral. " ^ This was written in the belief that the operation of the Quebec Act would remedy the evil; for though no direct mention is made of the matter in that Act or in the in- structions that accomiDanied it, Carleton refers later to the clause in it " which vacated all commissions, " as being " in consequence of complaints;" it being thereby intended "to put a stop to all deputations, and to compell all who had offices here to reside and do their duty in person." It is evident that there was here a very serious abuse, capable of paralyzing the best efforts of government. Inseparably connected with the subject of the patent of- fices is the matter of fees in general. For as Murray said in 1766 the compensation to the deputies at least depended entirely on what could be wrung from the people and the 1 Can. Arch., Q. 2, p. 377. 2 Can. Arch., Q. 11, p. 122. COFFIN — THE PEOVINCE OF QUEBEC, 1760-76. 359 government in this form. It is not necessary to suppose that these fees were upon a scale of unheard of extortion; indeed Carleton, their most determined opponent, expressly states that they were not greater than in the other prov- inces,' and Murray declares that he was ordered by his in- structions to establish them on that scale.' The hardship consisted in the fact that a system which had been adapted to the ability of the most prosperous of the other provinces was suddenly fastened upon one utterly impoverished, and with a people unused to such payments. The heaviness of the burden is apparent in every direction. May 14, 1767, Carleton writes, "Upon my arrival not a Canadian ap- proached me that did not complain of the number of fees demanded, and particularly of the exorbitant expenses that attended the obtaining any redress by law;' adding that the fees on the registering of land alone (a require- ment which ultimately was not enforced, probably from this reason), would have amounted to more than double the current coin of the province. He encloses a copy of the fees as fixed upon by Murray and the Council in 1765; — a document of about twenty closely written pages of large foolscap, the fees ranging all the way from £6 to 3d, and the total number of official acts so to be remunerated being about 350. The tendency of Murray's administration was not to restrain such expenses,'* but Carleton from the first resolutely set his face against them, and one of his earliest acts was to relinquish his own personal fees.* His vigorous statements were not wholly disregarded by the home gov- ernment, but no decided measures of alleviation were adopted at any time within our present view. The heed- less injustice which had ordered the fees to be established on the same scale as in the other colonies seems indeed to have been early repented of, for in the instructions of the 1 To Shelbourne, May 14, 1767. (Can. Aich., Q. 4, p. 173.) = Can. Arch., Cal. Hald. Coll., p. 92. s See Advertisement of the Council, Aug. 12, 1765. (Can. Arch., Q. 5-2, p. 812.) ^See Rep. Can. Arch., 1S90, p. xiii. Also Can. Arch., Q. 5-2, pp. 445-82. 360 BULLETIN OF THE UNIVERSITY OP WISCONSIN. Receiver General early in 1766 it is ordered that the salaries and profits of the inferior officials connected with the Provincial treasury shall be no greater than under the French government. In July, 1768, Hillsborough writes to Carleton in answer to his representations of abases, that the king is determined to stop the evils connected both with the patent offices and with the fees in general; that the subject has been laid before the Board of Trade, and that in the meantime he is to make temporary regulations for the restraining of fees within bounds.' The new in- structions of the same year contain, however, only the in- definite direction "to take especial care to regulate all salaries and fees belonging to places, or paid upon emer- gencies, that they be within the limits of moderation." It is most probably in pursuance of this recommendation that we find an entry in the public accounts for the first half of 1769, of a payment to the Chief Justice of £100 " in lieu of fees, at the rate of £200 per annum." In April, 1770, we hear of a committee which has ' the fees of the public o£B- cers of this province under consideration;" but nothing seems to have been then effected, and for the remaining four years the matter, with all similar ones, awaited the expected radical change in constitution. D. Finances. It remains only to make a brief statement as to the finances of the provincial administration. It is in the con- sideration of the financial condition of Quebec as contrasted with that of the other Crown Provinces that we have brought home to us most vividly its peculiar and dependent position. In all the others, financial affairs were, through the Assemblies, in the hands of the people, and outside of the customs Great Britain had, normally, neither control nor expense. In Quebec on the other hand not only was the revenue (the word is here a misnomer), almost entirely fur- iCan. Arch., Q. 5-2, p. 602. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 361 nished and expended' by the home government directly, but the probability is that but a very small part of it had any connection with the province as a source. We have seen that the Quebec legislative authority was from the first expressly prohibited from "imposing any duty or tax;" and that the Council was more mindful of this in- junction than of other such restraints is shown directly by entries in the Council minutes,^ and by the fact that none of the ordinances disregard it. This restriction was to be in force only till an Assembly should form part of the legislature; but that it was intended even then to keep a large measure of control over the finances, and thus to pre- vent the growth of the obstacles which beset the royal path in the other provinces from this key to the situation hav- ing fallen entirely into colonial hands, is probably shown by the directions concerning legislation embodied in the instructions of 1768.^ It is evident that if my argument as to the legislative power subsequent to the Proclamation of 1763 be correct, revenue could be legally drawn from the province during the period only through the customs, or through such other special rights and prerogatives of the Crown as were at- tached to it under the French regime, and might be con- tended to have passed over unimpaired with the sover- eignty of the country. I say other special rights, for it is clear from Lord Mansfield's judgment that the only cus- toms duties that could be collected were those which had been found in force at the conquest,* and it seems equally certain that there is no radical distinction between these and such other dues as lands (e. g.) had hitherto been sub- ject to. All together would seem to have been simply transferred in the same manner as other public property, ^ At least after 1766. when the Receiver General was appointed. 'Can. Arch., Q. 3, pp. 160-70; Q. 8, p. 126. ' See below for general discussion, chapter V, section C. * See resolution of Imperial Privy Council, Nov. 22, 1765, concerning requiring of old duties. (Can. Arch., Q. 2, p. 472.) See also below for suits against Murray in 1768. 362 BULLETIN OF THE TTNIVERSITT OF WISCONSIN. and it is only on the impossible supposition that all French law and custom had been by the conquest and cession im- mediately abrogated that the right of the crown to them could be disputed. But these principles seem not to have been clear to the authorities at the time. Action in regard to the old land dues was no doubt hindered further by the confusion and uncertainty that prevailed as to the laws in general, and it seems certain that no revenue was derived from this source at any part of the period. The new rents from soccage lands, and the profits from the judiciary, we may also regard as not worth consideration. The fur trade monopoly in the northeast had been a considerable source of profit to the French government, and had passed un- questioned to the English; but it was leased through the whole of this period for £400 per annum. The only remaining source of revenue was the customs, and it is to this quarter that we must look for any appreci- able lightening of the burden of the English taxpayer. Unfortunately, though the references to duties are frequent, and though they received the careful attention of govern- ment from the first, we have no conclusive reports as to the amounts actually collected. On the conquest duties had been imposed by the commanding officer and levied until the establishment of the civil government; the rates required being slightly in excess of the old French ones, and the whole amount thus collected being stated as £11,000 sterling. In 1768 actions for recovery were brought against the governor in the British Court of Common Pleas, on the ground that the military government had no author- ity to impose duties ; but on it being shown that these were substantially the same as those fixed by the French, the plaintiffs agreed to accept a verdict only for the excess. In accordance with this verdict we meet with various entries in the Quebec Council minutes in 1770 of orders for repayments of this excess to various other complainants, the sum repaid amounting in all to £2,000. So that it re- COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 363 suits that the duties levied during the first four years of the occupation (when commerce was of course very much depressed), would yield about £2,000 per annum. This amount we should expect to be largely increased during the later years; but there is no probability that anything was collected under the civil government.' A Provincial proclamation of May, 1765, seems to be intended to apply the Imperial customs Act of the previous year; but as more than a month later Murray reports that he is and will be "entirely at a loss how to carry on the business of gov- ernment without money, " ^ it seems to have effected no change in the situation. In July of the same year the home government took the finances of the province more directly under control by the appointment of a receiver- general, who was to be independent of the provincial ad- ministration, was to receive all moneys and warrant all ex- penditures, and was to report directly to the Treasury. His instructions ' direct him to collect the old French duties, and in doing so, " to strictly conform himself to the ancient customs and usages of the said country before it was conquered by His Majesty. " Of the receipts the sur- plus, after " defraying the expenses of civil officers and contingencies of government in the Province," was to be remitted home. The only result apparently of the new official's efforts were the ineffectual actions against the English traders which have been discussed above.* Prom this consideration of the various possible sources of provincial revenue, we may conclude that the amount derived therefrom was so slight as to make very little dif- ference to the Imperial treasury. As to the total expenses i Murray writes to the Board of Trade, March 3, 1765, that he has long expected in vain "the decision of the rum duties," and does not know "how government is to be carried on here without a shilling. I am little solicitous about my own salary, the amount of which is still unknown to me, but the indigence of the judge and other officers sent from England is equally alarming and hurtful to the public." (Can. Arch., Q. 2, p. 377.) ' Can. Arch., Q. 2, p. 424. 3 See Mas^res, Commissions, pp. 156-9. ' Pp. 313-16. 364 BULLETIN OF THE UNIVERSITY OF WISCONSIN. of the civil establishment we have no definite statements, but from various references it may be concluded that they were about the same as under the last years of the French regime.' Maseres states that the amount drawn yearly on this account from the Imperial treasury was about £10,000. In the "Returns on Public Income and Expenditure," (printed for House of Commons, 1869), Quebec is specially mentioned only for the year 1768, when an item of £6,722 is set down for its civil establishment. The "Annual Reg- ister " and " Parliamentary History, " which apparently aim to give detailed financial statements from year to year, do not afford any further light, no direct mention being made of Quebec, although there are given regularly the esti- mates for the civil establishment, not only of Nova Scotia and Georgia, but also of East and West Florida, which had been granted civil constitutions at the same time and in the same manner as Quebec. The only explanation seems to be that (in accordance with the general neglect and mismanagement of Canadian affairs), owing to the prom- inence of the military service in Quebec, the accounts were included under military heads. The civil list estab- lished in 1775 (see Carleton's instructions), amounted to about £18,000, and of this about £8,000 can be directly at- tributed to additional expenses caused by the enlarged sphere of government under the Quebec Act. This then brings us back to Maseres' estimate. 1 Murray states (Report, 1762), that in 1757 the total civil expenses of the French ad- ministration amounted to £11,158. The reyenue of the same year (apparently drawn mainly from the fur trade), was £13, 961. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 365 CHAPTER IV. THE SPIRIT AND DEVELOPMENT OF ADMINISTRATION. In the previous chapter I have attempted a description of the surface conditions of government in the Province of Quebec throughout our period, — such a description as might have been given by a contemporary, especially a contemporary official. My object in the present chapter is to go behind the scenes, and examine the animating spirit under the official forms, with special reference to develop- ment in the bases of action. In so doing regard will be had mainly and constantly to the Quebec Act as the centre of the inquiry, with the purpose of seeing what light, if any, may thus be thrown on its genesis and intent. A. The Colonial Governors. My investigation here has therefore to do almost en- tirely with the Home or Imperial Administration. But, as the chief of the influences brought to bear on that author- ity, it will be necessary first to consider the general spirit and policy of the heads of the colonial government.' It is evident that a large discretion was necessarily always left to the Provincial Governor; but the normal limits of this discretion were at this time in the case of Quebec much ex- tended from the fact that during the early part of the period the home government had no decided or consistent These were, (a) Gen. James Murray (17257—1794), younger son of a Scotch peer. Brig- adier with Wolfe at capture of Quebec and ]eft in charge of the conquered province during the Military Period, he was Govemor-in-Chief from Aug. 10, 1784, to Oct. 26, 1768, but left the country finally in June, 1766. (b) Col, Guy Carleton (1724-1808), of an Irish famUy, was at the siege of Louisbourg and Quebec, and came to the province as Lieutenant-Governor, September, 1768. He held that position until October, 1768, when he become govemor-in-chief , so continuing till June, 1778, though absent from the province August 1st, 1770-September 18, 1774, Made Baron Dorchester and reappointed to Canadian Government, 1786. 366 BULLETIN OF THE UNIVERSITY OF WISCONSIN. policy, and that in tiie latter part the expectation of a speedy general constitutional settlement joined with other factors in causing a steady neglect of the immediate affairs of the province. It is therefore desirable to see in what ways and to what extent the actions of the Home Administration were based on the representations of the provincial author- ities. Gen. James Murray had been connected with Canada from the first hour of English rule there, and when put at the head of the new civil government had had almost five years' intimate knowledge of the country. If personal characteristics had prevented his fully profiting from his experience, there can be no doubt of his integrity, and of his strong desire to see justice done and the best interests of the country advanced. As has been shown above both he and the other military commanders seem from the first to have made every eifort, consistently with the safety of the new possession, to reconcile the Canadians to the new rule. These same motives were no doubt as strongly present during his control of the civil government. That his success was not commensurate with his efforts, and that the two years of his civil administration were a period of constant turmoil, cannot, however, be denied; nor yet that the explanation must be largely found in his personal character, and in a want of tact and discernment which would have insured failure in a much less difficult situa- tion. He was hasty in judgment and violent in temper, and his military training had prejudiced him in favour of the old Canadian military aristocracy, which he credited with more influence over the people than it had for a long time possessed. The same cause blinded him to the real character and importance of the new English-speaking commercial element. A light is thrown on Murray's character by some observations in his own defence just before the installment of civil government.' After refer- 1 To Board of Trade, April 24, 1764. (Caa. Arch., Q. 2, p. 107.) COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 367 ring to the difficulties that have attended the military rule owing to the character of the various sections of the popu- lation, and of the caution he has exercised in enforcing martial law, "knowing how jealous the people of England are of the military arm, upon all occasions, and how eagerly they would have laid hold of the least shadow of blame, " he proceeds to speak of his mortification in being "too often obliged to substitute reprimands from my own mouth in place of fines and prisons, choosing to risk my own popularity rather than give a handle to the factious. Hence, I find I have been represented in England a man of a most violent, ungov- ernable temper. " Unfortunately for the entire validity of this ingenuous defense, we find that the violent manifestations of temper continued under the civil government; and we cannot but conclude that there was too much ground for the complaint made in the English petitions in 1765 of his " rage and rudeness of language and demeanour.' In gen- eral, however, we find his attitude towards the French Canadians to be one of forbearance and magnanimity,'' and the seigneurs came to look upon him as their spec- ial protector;' but that even they were not always safe from his irritability may be seen in the memorial of the Chevalier de Lery.' It must indeed be conceded that few positions could have been more trying than Murray's at this time." He was left without revenue or clear instructions to carry on government over a people who, rightly or wrongly, he thought had conceived a slighting idea of his position from the fact that he had been deprived of all military command in the province; feeling himself more- over under compulsion to introduce an order of things which he considered in the highest degree injurious and unjust. But making all allowances for his difficulties, we ^Bep. Can. Arch., 1888, p. 15. > See letter to Justices of Montreal, Oct. 9, 1765. (Can. Arch . , Q. 3, p. 90.) 'Rep. Can. Arch., 1888, p. 9. reiudices and ideas of government, and Carle- ton was moreover in a degree bound to even greater con- sideration of the leading French families, from the fact that he was likely to be entrusted with the carrying out of the policy of preserving the institutions of which they were supi^osed to be the main support. This supposition he brought with him from England, and I have already frequently referred to the fundamental error (as to the re- lations between noblesse and people), involved in it. It was an error to which can be traced the main defects and failures of his policy and of its outcome, the Quebec Act. I have above credited Carleton with considerable pene- tration and judicial ability in regard to men and events; but in this matter his prejudices seem to have lulled his judgment to sleep, and he remained contented with an es- timate of the people derived from the small and unprogres- sive body which was nearest him, and which was now every day becoming more and more detached from the real life of the country. He was, moreover, scarcely more just to the English element or more alive to its growing influence over the Canadians than was Murray. His personal stiffness and aristocratic bearing doubtless stood constantly in his way; and as late as 1788, at the begin- ning of his second term of office, Mabane, one of the oldest and most experienced of the ex-councillors, writes con- cerning Carleton s ignorance of men and things in the province, his partiality and his unpopularity.' Hence per- haps it may well be doubted whether, though of much broader views than Murray and infinitely superior to him as an administrator, he was really very much better qual- ified for this particular period of government. His efforts were fatally marred by his misconceptions of the situation. ' Can. Arch., B. 77. Mabane, it should be said, had had personal difficulties with Carleton in the early days of the governorship. COFFIN — THE PEOVINCE OF QUEBEC, 1760-76. 373 Having, like Murray, from the first taken the Canadian noblesse under his protection, one of Carleton's first acts was to follow the example of the French government in providing for them to some extent from the public purse. He lost no time, moreover, in urging on the home govern- ment the advisability as a matter of policy of utilizing the services of the class in all departments of the public em- ploy. The mistake as to their influence over the people he seems to have laboured under during the whole period, and it explains sufficiently, (without charging him with undue class or professional prejudice), the deference he always paid to their views and wishes. The first striking letter of Carleton on general policy that we meet with, is that of November 25, 1767,' in answer apparently to infor- mation as to a late important action of the Privy Council. In this he starts by saying that he takes it for granted "that the natural rights of men,^ the British interests on this continent and the securing the King's dominion over this province must ever be the principal points in view in forming its civil constitution and body of laws;" proceeds to advise the attaching of the seigneurs to British interests, (as above), and finally, after a discussion of military re- quirements, expresses the opinion that all governmental steps should proceed on the assumption that the present predominance of the French-speaking population will not diminish, but increase and strengthen daily; so that, " barring a catastrophe shocking to think of, this country must to the end of time be peopled by the Canadian race, " and any new stock transplanted will be sure to be " totally hid and imperceptible among them. " Specific recommenda- tions as to laws he does not enter into, but it is easy to see whither his premises will lead him. Hence we are not surprised to find him a month later recommending in the most definite and decided manner the almost entire reten- iMep. Can. Arch., 1888, p. 41. ^ The use of this phrase here is rather suggestive. 7 374 BULLETIN OF THE UNIVERSITY OF WISCONSIN. tion of French civil law and custom. In this very im- portant letter (to Shelbourne, December 24, 1767,)' he re- minds the minister that the Canadians " are not a migra- tion of Britons, who brought with them the laws of England, but a populous and long-established colony, " with its own laws and customs, forced to a conditional capitulation. "All this arrangement in one hour we overturned by the Ordinance of the 17th September, 1764, and laws ill-adapted to the genius of the Canadians, to the situation of the province, and to the interests of Great Britain, unknown and unpublished, were introduced in their stead; a sort of severity if I remem- ber right, never before practiced by any conqueror even where the people without capitulation submitted to his will and discretion." Then, after implying that the above Ordi- nance is both contrary to the terms of the capitulation and beyond the provincial legislative power, and declaring that it " cannot long remain in force without a general confu- sion and discontent," he proceeds to advise its repeal and the gradual reinstating of the old Canadian laws almost in their entirety. In accordance with this advice he transmits a draft of an ordinance for doing this in regard to landed property. We see, therefore, that Carleton's mind was fully made up on this subject more than six years before the Quebec Act. His views seem if anything to have be- come only more firmly fixed during the following years. He frequently re-urges the attaching of the noblesse by employment or by other attentions, his confidence as to their influence over the people apparently remaining undis- turbed. But the fact that he was absent from the province for the last four years of the period is to be especially noted; for these years were the most important part of it, being those in which political education would, (through the unavoidable influence of the events in the other colon- ies), be proceeding at the most rapid rate. The conceptions and misconceptions of Carleton I have 1 Can. Arch., Q. 5-1, p. 316. COFFIN— THE PROVINCE OF QUEBEC, 17C0-76. 375 considered especially noteworthy on account of the de- pendence the home administrations placed on him, and his great influence in the moulding of the Quebec Act. We have seen that he had the advantage of Murray in coming to the government en rapport with the home administra- tion; and so far as appears this perfect agreement and confidence was maintained down till the last year of his rule (when personal difiiculties arose between himself and the Secretary of State, Lord Germaine). The following of the course of events leaves with us the conviction that the colonial office depended on Carleton for practically all its instruction on Canadian matters, and that all its steps were guided by his recommendations. There have been more successful officials in English colonial history, but never one more thoroughly trusted. His military services in 1775 were confounded with his civil ones apparently, and he retired from Canada with the reputation of a master in all that concerned it. Accordingly we find that when in 1786 its affairs seemed to be again approaching a crisis which could not be neglected, he was sent out, invested with the new dignity of a peerage, to steer the ship of state through the troubled waters of another change of constitution. B. The Imperial Office. With regard to Imperial policy I shall first notice for a moment the general attitude of the successive home ex- ecutives toward the political parties (or more accurately, the different races), in the province. This is an enquiry that will be resumed later in the attempt to determine how far the Quebec Act was in accordance with previous measures, and how far dictated by the supposed emergencies con- nected with the threatening stand of the other colonies. Just now I confine myself to general expressions of policy, contained in regular and confidential communications with the provincial administration; communications which as of a strictly private nature and made to the officials in the 376 BULLETIN OF THE UNIVERSITY OP WISCONSIN. full confidence of the home government, I can find no reason for taking at anything but their face value. At the outset it may be said that in small matters as in great the correspondence is of a nature to impress us strongly with the justice and humanity, if not with the far-sightedness, of the views entertained and advocated by one and all of the various secretaries in charge of the colonial department. The utmost attention is given to every symptom of discon- tent on the part of the people and the attachment of them by conciliatory and just treatment is constantly urged. Notwithstanding the energy of the English-speaking ele- ment in the colony in making themselves heard both there and at home, the authorities seem never to have lost sight of the fact that Canada was French and likely to remain French.' Early in the period the minister writes that duti- ful behaviour will secure the French Canadians all the ben- efits of British government; and that these were not empty words is shewn by the instructions sent out in regard to the judiciary ordinance of September 17, 1764, as we gather them from the wording of the amending ordinance of July 1st, 1766.^ The preamble of the latter states that his Maj- esty has signified by an additional instruction "that the wel- fare and happiness of his loving subjects in this province do require that the said ordinance should be altered and amended in several provisions of it which tend to restrain his Canadian subjects in the privileges they are entitled to enjoy in common with his natural-born subjects;" and it is accordingly enacted that Canadians shall be admitted equally with British-born on all juries and to the legal profession. In the following year the state of the provincial judiciary was taken up more seriously, and we get very important indications of the way in which the matter was viewed at ' See Carieton to Slielbome, Nov. 25, 1767, Hep. Can. Arch., 1SS8, p. 42 ; also CramaliS toDartmouth, December, 3773. {Can. Arch., Q. 10, p. 22.) See also debate in Commons on Quebec Act, 1774, for position taken by both government and opposition that the French Canadians must be the first consideration. ^ For Ordinances see Can, Arch., Q . 5. COFFIN — THE PEOVINCE OP QUEBEC, 1760-76. 377 home, from the minutes of the Privy Council meeting of August 28, 1767.' It was resolved that the government of- ficials in the province should be instructed to report on the existing defects, and " whether the Canadians in particular are, or think themselves aggrieved according to the present administration of justice, wherein and in what respect, to- gether with their opinions of any alterations, additions, or amendments that they can propose for the general benefit of the said province. " The proceedings here inaugurated were interrupted and delayed by ministerial changes, but the views of policy on which they were founded evidently remained the same. In the spring of the following year, Shelbourne was replaced in the secretaryship by Hills- borough, who retained it up till the eve of the Quebec Act. His first letter to Quebec, dated March 6th, 1768, conveys to Carleton, (who had been strongly advocating the reten- tion of the French laws and customs), His Majesty's ap- proval "of the humanity and tenderness you have shewn with regard to the peculiar circumstances and situation of His Majesty's new subjects;" and recommends him to take measures to reconcile the new subjects to unavoidable de- lays in regard to a general settlement.' In the following July he writes in the same strain, fully approving of all the governor's recommendations (in regard to re-establish- ment of French law), and regretting the unavoidable delay in the giving them force.' January 4, 1769,' he agrees with Carleton's recommendation of the employing in the public service of the French Canadians, but expresses the fear that popular prejudices at home might make it difiScult to follow as regarded the military profession; in the follow- ing July* he says that there can be no doubt of the justice and propriety of admitting Canadians to the Council. Jan- 1 See below, chapter V for fuH report. (CaD Arch., Q. 4, p. 327.) "Can. Arch., Q. 5-1, p. 3«. 'Ibid., Q. 5-2, p. 602. erhaps be supposed that the Government was in- fluenced by some idea of consistency in regard to its own past attitude in the disputes with the French over boundaries in North America. When the great extension of the Quebec Act was under debate the Opposition taunted the administration with the change of base on this point, asking what would be the result should the French ever be in a position to reclaim Canada. 414 BULLETIN OF THE UNIVERSITY OP WISCONSIN. of Canada (a term they use in a restricted but indefinite sense), and the other colonies should not be subject to grants of land or to settlement, the King communicates his approbation of this suggestion, but adds that it would be necessary to put the region under some civil govern- ment, in order that it might not seem to be abandoned or become a refuge for malefactors ; ' and that it would prob- ably be best to attach it to the Government of Quebec. In reply August 5, 1763,- the Board agrees that a government is necessary, but objects to its being that of any one exist- ing province, especially of Quebec, for three reasons: — (1) that if included within the limits of Canada the Indians might thereby conclude that the English title to the coun- try came only from the late French cession, (2) that the annexing of it to any one province would give that prov- ince an undue advantage in the Indian trade, and (3) that as government in that region could probably be carried on only with the aid of the greater part of the military forces in America, its annexation to Quebec would require, to pre- vent constant disputes between the civil and military au- thorities, that the Governor of Canada should be virtually Commander-in-Chief.^ Accordingly the Board suggests in- stead that the region should be governed by the Com- mander-in-Chief under his military commission, and that pending the receipt of information necessary to the draw- ing up of his instructions, a Proclamation should be issued declaring the territory reserved for trade and the Indians. These recommendations were adopted, and with the others noted above formed the basis of the Proclamation of Oct. 7, following. This, so far as it relates to Quebec under this head, begins by clearly defining the limits of the new 1 See last clause of the Proclamation. 2 Can. Arch., Q. 1, p. 110. ^ This last objection should perhaps be especially noted, in considering whether aims hostile to the civil rights of the other colonies were being entertained on the basis of the acquisition of Canada. If so, it could hardly seem objectionable that the Q-ovemor of Canada should be Commander-in-Chief. COFFIN THE PROVINCE OP QUEBEC, 1760-76. 415 " Government of Quebec, " reducing it to a rectangular dis- trict of not more than 100,000 square miles extending along both sides of the middle St. Lawrence from the mouth of the river St. John to the point where the St. Lawrence was intersected by the 45th degree of N. Latitude. As thus fixed the boundaries remained till the Quebec Act, the Province so constituted forming but a small part of the region over which the French Government in Canada had claimed sovereignty. The eastern portion cut off was placed under the Government of Newfoundland. There seems to be no reason for doubting that on this point as on the others the Proclamation is what it appears to be, and that the motives which dictated it are to be fully gathered from the foregoing representations of the Board of Trade. That the measures referring directly to Quebec can scarcely be regarded as unfriendly to the colonies is shown by the fact that they arose partly from a, desire to prevent Quebec from having an undue advan- tage in the Indian fur- trade. It was not regarded as a complete settlement, and was intended to be supplemented by steps which should properly provide for the temporary government of the region. But as it proved, neither time nor energy was available till 1774 for further arrangement, and even the instructions to the Commander-in-Chief, spoken of by the Board of Trade, seem never to have been issued.' On the eve of the passing of the Quebec Act, (long after its main features had been decided upon), Dart- mouth, then Secretary of State, writes to Lt. Gov. Cramahe that " there is no longer any hope of perfecting that plan of policy in respect to the interior country which was in contemplation when the Proclamation of 1763 ^ Knox (Justice d' Policif of tJie Quebec Act, Lond. 1774), states in an authoritative manner that it had been intended to defraj' the expense of the system contemplated by a tax on the Indian trade, and that the plan was abandoned because it was not judged ex- pedient to lay this tax, while the American budget was already sufficiently burdened. See also Franklin, Works, Y. 38. 416 BULLETIN OP THE UNIVERSITY OP WISCONSIN. was issued. " ' The details of the plan, (referred to as drawn ■up by the Board of Trade in 1764), we learn from the instruc- tions to Carleton of 1775,- it being incorporated therein as some guide in his future dealings with the Indian trade. The main feature is the institution of a semi-military government, (i. e. by civil officials relying on the military for constant support), administered in a summary manner by a superintendent and deputies; government having almost for its sole object the regulation of the fur-trade, and no consciousness being shown of the existence in the region of any permanent white settlers. The Superin- tendent was indeed appointed; but being left without suffi- cient power the result was unsatisfactory, and he was superseded by 1768, each province then having authority to- frame regulations for its own traders.'' The fur trade, subject from the want of effective government to a variety of injurious impediments, became every year more and more disorganized and unproductive, and complaints as to the insecurity of life and property throughout the trading grounds increased every day in volume and vehemence. It was soon seen that some more effective measures must be taken for the control of the region. Dartmouth in the letter just quoted, after speaking of the difficulty of carry- ing out the plan of policy at first intended, proceeds: — "Many circumstances with regard to the inhabitancy of parts of that country were then unknown, and there are a. variety of other considerations that do, at least in my judgment, induce a doubt both of the justice and pro- priety of restraining the colony to the narrow limita prescribed in that Proclamation. " ' The main "circum- stance" here spoken of was probably the discovery that white settlers had spread themselves too widely and fixed I Can. Arch., Q. 9, p. 157. "Can. Arch., Instructions, 1763-87. ' Hillsborough to Carleton, June 11, 1768 (Can. .A.rch., Q. 5-1, p. 419). Franklin's letters show the expense of the system as one of the cliief reasons for change. ' See also same to Carleton Dec. 10, 1774. (Can. Arch., Q. 10, p. 125.) COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 417 themselves too firmly throughout the region to make it possible to eject them (as was ordered by the Proclama- tion of 1763), or to prevent their further increase.' Every year only multiplied the evidence that the Western country was fast and irretrievably losing its character as a mere Indian hunting-ground, and that settled civil government could not long be delayed.' As to the dangerous and almost anarchial state of things throughout the West during the whole of this period we have abundant evidence. The official reports are full of complaints of the unsettled and inadequate state of gov- ernment and of the impossibility of carrying on the fur- trade without constant friction and disorder.' I cannot better state"the"situation than by quoting from the well- expressed report of a committee of the Quebec Council, April 24, 1769,' drawn up as the result of an investigation called forth by complaints of the traders." This was after all pretence of control through a general superintendent had been withdrawn and each Province had been given power to frame regulations for its own traders. It begins by representing the great inconvenience and injury of the '' situation and present condition of the places where this trade is carried on, and in which all regulations, whether made by this or any other Province, must of consequence have their operative influence. They are at present, as we understand, the subject of no civil jurisdiction whatever, without any internal principles of government within them- 1 See Murray to Halifax Marcli 9, 1764, where he speaks of these settlements as "cer- tainly noble ones." (Can. Arch., Q. 2, p. 78.) See also Houston, Can. Const. Doc, p. 108, note 2. ^ See petition for such a i^overnment, from inhabitants of the Illinois, June 27, 1773. Cal. Hald. Coll., p. 203. Also Dartmouth to Gage concerning same. Ibid.,i). 232. This was an old French settlement ; it was not to be expected that English settlers would be less forward in opposition to military government. ^ Advocate-General Marriott asserted in 1774 that for want of a good government since the Conquest, the trade was then only one-third of what it had been under the French. Code of Lawn . «Can. Arch., Q. 6, p. 83. ^ For these complains see Minutes of the Quebec Council, Jan. 15 and March 2, 1768. They were directed mainly against the Provincial regulations then in being. 418 BULLETIN OF THE UNIVERSITY OP "WISCONSIN. selves, nor annexed for the purposes of civil government to any Province which has; so that we are at a loss to con- ceive how any province in particular or all the separate juris- dictions in America combined, can form a system. . . . and give it binding effect upon persons casually residing in a country not liable to receive a law from them, or enforce obedience to it when formed. " The inevitable result of the situation here outlined is briefly referred to by Dartmouth in a letter to Gen. Gage, of March 3, 1773, in which the latter is ordered to bring to England every thing required to explain " as well the causes as the effects of those abuses and disorders which in some of your former dispatches you say had prevailed to a great degree of enormity in that country."' The report of the Quebec Council proceeds to , maintain that matters could not be remedied w^thDuLIm.per- / ial action in the annexing of the whole of the trade region to some one of the existing civil governments, and con- tends that no plan of concerted colonial action, (such as New York shortly after proposed), could be satisfactory. There were the usual difficulties of the time in regard to such co-operation; but over and above these, it was made almost impossible by the fact that Quebec, the province most concerned, was in a radically different governmental and industrial position from its neighbors. In 1771 New York proposed a scheme of joint action by Pennsylvania, Quebec, and itself, which Quebec refused to accede to ; Lt. Gov. Gramahe writing home on the subject, Oct. 31, 1771, that " the interest of the two Provinces [Quebec and New York] differ too widely to expect they will ever perfectly agree upon regulations. " - 1 Cal. Hald. Coll., p. 232. 2 Can. Arch., Q. 8, p. 82. This is the occasion of the significant interference of Hills- borough against American Congresses which have I spoken of above (p. 3S9.) Cramah^, though recognizing earlier the peculiar interests of Quebec, seems to have been willing at first, through despair of other remedies, to join in discussing common measures. January, 1772, we find the Quebec Council in receipt of a more definite proposal for joint action from New York, and rejecting the same on the grounds, (1), that the Quebec govern- ment had no authority to take the financial measures inYolved, and (2), that the steps COPPIN — THE PROVINCE OP QUEBEC, 1760-76. 419 It will then be seen that it might well appear to the home administration that no other step was open than the annexing of the territory to some existing civil govern- ment. To have kept it separate would have meant merely the continuance of a military or semi-military control, sure to be productive of even greater friction with the other Provinces and their traders, of increasing damage to the trade, and of more serious discontent on the part of the various small settled communities. And having reached this conclusion it was almost inevitable that the Imperial authorities should choose for this purpose the Province with which the region had been earliest and most closely associated, and to which it was believed by so many to be- long, — that of Quebec' The report of the Quebec Council quoted above, had been transmitted home; its main con- clusion was the setting forth with considerable force the pre-eminent claims of Quebec to this acquisition. What- ever influence the state of aifairs in the other Provinces exerted in this regard, we meet no trace of such influence in the confidential communications between the British and Canadian authorities. We have no reason to suspect the candour of Dartmouth in the letter above quoted, addressed as it was in the regular course of private correspondence proposed would be detrimental to the Provincial trade. We have here mainly no doubt jealousy of the more powerful neighbor and apprehension at the inroads she was making in a branch of trade which had so long been Quebec's chief stay. Apart from the prohi- bition of the Minister, (which it is noteworthy, is not referred to), the Quebec Govern- ment had probably confidence that the old advantages would soon be restored to the Province by Imperial action. No further intercourse with the other colonies appears on the subject before the Quebec Act. How far the bearing on this matter of the pro- visions of the Quebec Act was instrumental in aifecting the Revolutionary attitude of New York and Pennsylvania, as rousing their commercial anger and jealousy, would probably be worth a closer investigation. At least we have here no Inconsiderable ele- ment in the general and profound dislike of the measure among the older Northern colonies. Seethe commercial aspect of the Remonstrance of the N. Y. Legislature, March 25, 1775. (Pari. Hist., XVIII, 660.) 1 To attach it to any one other Province would be objectionable (we may reasonably assunae the authorities to have felt), because of the various conflicting colonial claims in the West, sure to be aroused to the greatest activity by such a measure. Whereas the Government could, consistently with the Treaty, disregard all, and put the matter on another basis by givin it to Quebec. This would be at least a plausible line of argu- ment. 420 BULLETIN OF THE UNIVERSITY OF WISCONSIN. to an official of long standing and known discretion. If other matters had been of weight in the Imperial councils there would seem to have been no reason for the careful concealment, and no possibility of the unintentional neg- lect, of them in this quarter. On the other hand, although it is true that before the actual appearance of the Quebec Act we have no indication that the extension of the Province made by it had any con- nection whatever with the contemporary difficulties of gov- ernment in the other colonies, and although it must be conceded that apart from such reference the Imperial au- thorities seem to have amjjle justification for that exten- sion, yet it is undeniable that the considerations which excited the fears of the Continental Congress were put for- ward by supporters (as well as by opponents), of the meas- ure, both in Parliament and outside. But this was not prominently done, at least at first; so incidentally indeed that in the whole of the spirited debates in both the Com- mons and Lords on the Quebec Bill in May and June, 1774, such references appear in the mouths of only two support- ers of the Bill, and their utterances are apparently not spe- cifically noticed by the opposition. One of these more candid or incautious speakers was Solicitor- General Wed- derbourne, who stated in the Commons that one of the ob- jects of the measure was to deter Englishmen from settling in Canada, and that one of the great advantages of the ex- tension of territory would be that the other inhabitants of North America "will have little temptation to stretch them- selves northwards. " ' He added moreover, " I think this limitation of the boundary (i. e. of the older colonies) will be a better mode than any restriction laid upon govern- 1 Cavendish, Report, p. 58. Wedderbourue was at this time one of the pillars of the Government in the Commons. But he was not responsible for the present Bill, and though in his oiEcial capacity supporting it as a whole, he plainly intimated that it had not his entire approval. The statement had been immediately preceded by the remark that he did not think that any temptation should be held out to natives of England to emigrate. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 421 ment. In the grant of lands we ought to confine the in- habitants to keep them according to the ancient policy of the country along the line of the sea and river. " This statement as I have said seems to have excited no comment from either side of the House ; ' an oversight on the part of the opposition which is the more remarkable from the fact that several of their speakers hint darkly at "the secret designs " of the Bill, and taunt the Ministry with concealing their real motives," — hints and taunts which elicited no reply. Lord North, the leader of the House, upheld the extension as made simply in the interests of the fisheries in the East and of security to life and trade in the West; though it will be seen that the preamble of the Act refers only for the Western territory to the need of civil government for the " several colonies and settle- ments. " The enacting clause pays special attention to the northern and western boundaries of Pennsylvania as " granted by the Charter, " beside making the provision " that nothing herein contained . . . shall in any wise affect the boundaries of any other colony ; " but there is no reference to the Western claims of any of the Provinces. As first introduced the clause read very differently, — " all the said territories, islands and countries, extending southward to the banks of the river Ohio, Westward to the banks of the Mississippi . . . not within the limits of any other British colony, as allowed and confirmed by the Crown. " A petition against this indefiniteness was presented by the Pennsylvania proprietories, and Burke also objected in be- half of New York. Lord North professed every readiness to pay regard to both settled and unsettled boundaries, while declaring that the original intent had been to leave the fix- ing of more precise southern bounds to later local agree- ment; and on Burke's motion, representing that otherwise ^ The chance reporters from whom the Parliamentary History of the period was com piled, seem also not to have heard it or to have not thought it worthwhile noting. ' Cavendish, pp. 1,37, 85, 214 — pagings which refer to the beginnings of the speeches in which the references occur. 10 4 22 BULLETIN OF THE UNIVERSITY OP WISCONSIN. the Colonies would in this matter be left at the mercy of the executive, the established clause was substituted for the above. When with this and other Amendments the bill went back to the Lords it was received by a small but spirited oppo- sition, headed by Chatham. Its principal defender was Lord Lyttleton, who referred to the idea put forward by Chatham that Canada would at a future day be used as a proper instrument to quell British America, with the remark that he was not apprehensive of this, but that if the Amer- icans were determined to persist in their rebellious course he saw no reason why Canada, with the rest of the Empire, should not be so employed; and that in such an event he regarded it as happy that the local situation of the Can- adians was such that they might form some check to the " fierce fanatic spirits ' of the other Provinces.' This how- ever illiberal, does not apparently refer to this situation as one resulting from the provisions of the Quebec Act. Whatever the inference, this and the statement of Wedder- bourne quoted above are the strongest suggestions of hidden motives on this point, that, so far as I have discovered, ap- pear at this time in the mouths of supporters of the Govern- ment. In the close tracing of the preliminary steps through the ten years preceding the Act I have met with no other evi- dence fitted in any degree to support the belief that the exten- sion by it of the boundaries of Quebec was dictated by hos- tility to the growth and liberties of the other colonies other than that which may perhaps be said to mark every part of the colonial system. And whether these statements are fitted to support that belief will appear very doubtful to those who have entered into the spirit of that colonial system. Even if it should be established that they were not merely private and incidental utterances, but were really expressive of definite ideas and motives on the part of the originators of the Quebec Act, it will yet remain to be 1 Farliame'ntary History. Vol. 17, p. 1402 et seq. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 423 shown that they betoken a different standpoint than that occupied by the Board of Trade for some time back. Closely connected with that view of the interests of Great Britain which for a long time had inspired the hostility to colonial manufactures, for example, was a strongly rooted preference of shore to inland colonies; a preference based on the belief that the farther the colonists removed them- selves from the ocean and the mother country, the more in- evitably would they be led to manufacturing enterprises and the less easy would it be for Great Britain to restrain this activity. It was simply another aspect of the trade considerations which led to such emphasis being placed upon the conciliation of the savages; it cannot be shown to imply any new development of anti-colonial policy, or any insidious scheme of building up in the West new com- munities of alien social and governmental constitution, with the aim of being later used as instruments against the growth and liberties of the older colonies. By the ordinary colonial views of the older illiberal school the attitude of Wedderbourne and Lyttelton can I think be sufBclently explained. And not their views alone ; but also such parts of the Im- perial policy in regard to the West as cannot be attributed to real solicitude for the Indian and for the safety of the colonies. For if I have been successful in presenting my point of view in the above, it will be already evident what position I take with regard to continuity of policy throughout this period in respect to the Western lands. I see no reason to agree with Hinsdale even in the more mod- erate assertion that " the Western policy of the British was not steady or consistent, but fitful and capricious;" ' it seems to me that no inconsistency is to be detected between the policy that dictated the Proclamation of 1763,— a policy that was manifest as early at least as 1756,— and that which was expressed in the Quebec Act of 1774. It has been one 1 Old Northwest, p. Ul. 424 BULLETIN OP THE UNIVERSITY OP WISCONSIN. of my objects throughout this investigation to show the long course of weakness, ignorance, and procrastination that stretches between the acquisition of Canada and the final settlement of its constitution. These qualities are not en- tirely absent in the treatment of the matter under discus- sion; but that treatment nevertheless presents more con- sistency and firmness than we find in almost any other part of the dealing with the situation. The frequent changes of Ministry and Secretary seem to have affected the pecu- liar sphere of the Board of Trade less than any other part of the administration ; simply, it is to be contended, because that Board was now acting on long established principles, applied to the new conditions as a matter of course, and only slowly giving way to the inevitable western changes. These are the principles of the old colonial-commercial pol- icy ; and no better expression of them can perhaps be found than in the words of the Board of Trade itself in 1768, in its adverse report with regard to the proposed new settle- ments at Detroit and in the Illinois country.' The signifi- cant part of this is as follows: "The proposition of forming inland colonies in America is, we humbly conceive, entirely new. It adopts principles in respect to American settlements different from what has hitherto been the policy of this kingdom, and leads to a system which, if pursued through all its consequences, is, in the present state of that country, of the greatest import- ance. The great object of colonizing upon the continent of 1 Franklin's answer to Hillsborough, 1772 ( Works, V. 55, Bigelow edition, 1887). For the report itself see its quotation by Hillsborough {Ibid. V. 5-12). For Tery interesting record of the progress of the scheme to which this was the death-blow, see letters of Franklin to his son, Sept. 27, 1766— March 13, 1768 (IbkL, 138-45). This reference I owe to the unpublished monograph on western settlementsjof Mr. G. H. Alden of the University of Wisconsin. It exhibits Shelboume, Secretary of State for the Southern Department when the scheme was first advanced (by Franklin and others), as decidedly favorable to it, together perhaps with some other officials. But Shelbourne was evidently in this as in some other matters, in advance of his time (see Fitzmaurice, Shelbourne, II, 31) ; the Board of Trade seems not to have wavered in its position, and Shelboume's retire- ment in January 1768 in favor of Hillsborough, the chief representative of the opposite view, may perhaps not unreasonably be regarded as helped on by his heterodox liberal- ism. It is apparently the first vigorous shaking of the older policy ; but that policy is still triumphant. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 425 North America has been to improve and extend the com- merce, navigation, and manufactures of this kingdom, upon, which its strength and security depend. 1. By promoting the advantageous fishery carried on upon the northern coast. 2. By encouraging the growth and culture of naval stores and of raw materials, to be transported hither in exchange for perfect manufactures and other merchandise. 3. By securing a supply of lumber, provisions, and other necessaries, for the support of our establishments in the American islands. In order to answer these salutary purposes, it has been the policy of this kingdom to confine her settlements as much as possible to the sea-coast, and not to extend them to places inaccessible to shipping, and consequently more out of the reach of commerce; a plan which at the same time that it secured the attainment of these commercial ob- jects, had the further political advantage of guarding against all interfering of foreign powers, and of enabling this kingdom to keep up a superior naval force in those seas, by the actual possession of such rivers and harbours as were proper stations for fleets in time of war. Such, may it please your Majesty, have been the consid- erations inducing that plan of policy hitherto pursued in the settlement of your Majesty's American colonies, with which the private interest and sagacity of the settlers cooperated from the first establishments formed upon that continent. It was upon these principles, and with these views, that government undertook the settlement of Nova Scotia in 1749; and it was from a view of the advantages represented to arise from it in these different articles that it was so liberally supported by the aid of Parliament. The same motives, though operating in a less degree, and applying to fewer subjects, did as we humbly conceive, in- duce the forming the colonies of Georgia, Bast Florida, and West Florida, to the south, and the making those pro- vincial arrangements in the proclamation of 1763, by which the interior country was left to the possession of the In- dians. " Here we have, it will be seen, not only the constant reference throughout to a policy which is considered as of long standing, but the definite statement that this policy was directly acted upon by the government on an import- ant occasion as early as 1749, and that it was operative in the arrangments of 1763. It is true that Hillsborough, 426 BULLETIN OP THE UNIVERSITY OF WISCONSIN. while quoting this statement with the fullest approbation, has just before spoken of " that principle which was adopted by this Board and approved and confirmed by his Majesty, immediately after the treaty of Paris, viz. : the confining the western extent of settlements to such a dis- tance from the sea-coast as that, etc.;" but it is evident either that this is due to a confusion and heedlessness quite characteristic of the writer, or that it is a mere misuse of language, by the " principle " affirmed there being really meant only the new application of an old principle to con- ditions which had now for the first time fully presented themselves. In Franklin's reply to Hillsborough he accepts without question the definition of policy, and in proceeding to refer to the grant on the Ohio which had been approved in 1748, brings this forward, not to show that that policy was not then in operation, but on the contrary, going on the assumption that it was then in force, to show that the region in question did not come within its operation, be- cause not in fact and not considered " without the reach of the trade and commerce of this kingdom. " ' It is clear that Franklin's argument on this matter is entirely without point unless it proceeds on such a basis. If the Board of Trade were not to be supposed to be animated by the prin- ciple in question as a general one, their action could show nothing with regard to the application of it to the region included within the grant of 1748. But we have, it is said, evidence of inconsistency or dif- ferent policy in the treatment of the more southern portion of the West in 1772 through the approval of the establish- ment of a new colony south of the Ohio, to be known as Vandalia. The inner history of this matter will show, however, that it cannot properly be so regarded. For whether or not this region was, as Franklin contends in the argument noted above, regarded as on a different basis 1 Works, V. 32. COFFIN THE PEOVINCE OF QUEBEC, 1760-76. 427 as early as 1748, it is very clear that it had so established itself by 1772. As early as 1764, Franklin tells us,' gov- ernment contemplated the placing of it in a different posi- tion, as a part of the plan then under consideration for the regulation of the Indian trade ; aiming by its purchase from the Indians to ' establish with their consent, a respectable boundary line, beyond which his Majesty's subjects should not be permitted to settle." The negotiations then entered upon with the Indians were however delayed, and mean- while, between 1765 and 1768 large numbers of settlers came into the region and brought about a critical state of things with the Indians. This hastened the action of the author- ities, and the purchase was finally completed by the treaty of Fort Stanwix in November, 1768. That the home gov- ernment had reconciled itself fully to settlement here and had made the purchase with such settlement in view, is shown (as was pointed out by Franklin),- by the reference in the Board of Trade Report quoted above to " the liberty that the inhabitants of the middle colonies will have (in consequence of the proposed boundary line with the In- dians) of gradually establishing themselves backwards." ' And yet it is this same Report, it will be remembered, which is drawn up for the purpose of making that strong re- statement of general colonial policy which has been quoted from above. So that for the Fort Stanwix region there would seem to be no question that Franklin is cor- rect in stating' that "the true reason for purchasing the lands comprised within that boundary were to avoid an Indian rupture, and give an opportunity to the king's sub- jects quietly and lawfully to settle thereon." Or, as he strongly puts it, that the proclamation which had reserved lands for the use of the Indians had lost its force with re- 1 Works. V. 38. ^Ibid.,\. 55-6. = 2SJd., V. 10. *Tbid., p. 43. 428 BULLETIN OF THE UNIVERSITY OF WISCONSIN. gard to that portion of these lands which the Indians by selling had shown they had no use for.' In 1768 therefore, government, while strongly re-enunci- ating the general Western policy, had just as clearly ac- knowledged that this policy was not to be applied to the region south of the Ohio.^ This latter territory was now definitely deprived of that character which, in the minis- terial mind, still remained attached to the more northern country, viz. : appropriation to the Indian as a hunting ground. Between 1768 and 1772 settlement continued to pour into the Ohio country to such an extent as to show beyond doubt that this character had departed for all time.^ So that in 1772, when the Walpole matter came up for final determination, it was not difficult for Franklin to make a triumphant case against the belated views of Hillsborough. The commercial policy had here yielded finally to the force 1 A hasty reading of this part of Franklin's paper might possibly give the impression that he minimizes or loses sight of the general principles of policy which inspired the Proclamation of 1763, and that he regards it as mainly intended to pacify and protect the Indians. Such a view I should regard either as an error, or as the misleading em- phasis of a partizan brief. But I do not think Franklin is chargeable in either respect; for in a previous part of his paper (V. 32) he plainly declares that the definition of the policy of the Board in 176:^ as laid down by Hillsborough, he will not " presume to con- trovert." And as I have sho^ni above, his later argument is evidently based on the ac- ceptance of the principles of the Report of 1768. In what he says as to the cessation of the force of the Proclamation through purchase from the Indians he has reference of course only to the lands south of the Ohio, — a region to which, he labors throughout to show, the principles of the established policy did not properly extend. Franklin was too good ci debater to prejudice his case by going out of his way unnecessarily. And hence the reference to Mr. G-renville (V. 37) as having, with regard to the Proclamation, " always admitted that the design of it was totally accomplished as soon as the country was purchased from the natives," I can regard as quoted purely with reference to the country that had been purchased in 1768, and as not giving, or purporting to give, Grenville's views with regard to the policy or intent of the Proclamation as a whole. When the "admission" was made does not appear; the language would seem to show that it was subsequent to the purchase. But it will be remembered that the Grenville government had entered into negotiations for such a purchase (with regard only to the region south of the Ohio), as early as 1764. {Franklin, V. 38). 3 It is probable that the unimportance of this latter territory with regard to the far trade was of strong influence in bringing about this attitude. Franklin says that the Indians were willing to sell because they had no use for the lands "either for resi- dence or hunting." (V. 37). 3 Franklin asserted in 1772 that it was certain that at least 30,000 settlers were then there. ( Works, V. 74.] COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 429 of circumstances, and the words in which the grant (Van- dalia) was finally recommended by the Committee of Coun- cil must be loolied upon as intended to show the reasons for this departure from what was still however the estab- lished policy. As stated by Franlilin ' these reasons were as follows: " 1. That the lands in question had been for some time past and were then in an actual state of settling, numbers of families to a very considerable amount removing thither from his said Majesty's other colonies. "2. That the lands in question did not lie beyond all ad- vantageous intercourse with the kingdom of Great Britain. " It is evident therefore that the grant of 1772 is neither a mark of inconsistency nor a sign of the overthrow of the old commercial-colonial policy with regard to the West. If circumstances had forced this step south of the Ohio, the Quebec Act two years later showed that there had been no such change with regard to the rest of the country. Though even this latter it would seem could not be regarded as purely as before as a mere fur region; it has been shown above that the modifying of the first ideas with regard to its disposition was doubtless partly due to the discovery that a degree of settlement had gone on even within it which could not be entirely disregarded.^ It was not dis- regarded, but it was regarded as slightly as possible by the attachment of the whole region to Quebec. A very notable pamphleteer of the year 1774^ forcibly sums up this matter. After stating that the Proclamation of 1763 was intended to be followed up a general plan of regulation for the Indian trade, he afSrms, (as noted above), 1 Works. X. 355. '* The preamble of the Quebec Act speaks of the several French colonies and settle- ments which by the Proclamation were left without civil government ; {a petition for it had been received from at least one of them) . Nothing is said of new settlement ; but Dartmouth's letters show that it must have been known that it had steadily proceeded. ^" The Justice and Policy of the late Act of Parliament for making some effectual provision for the G-ovemraent of the Province of Quebec asserted and proved ; and the conduct of Administration respecting that Province stated and vindicated." By Wm. Knox. Lond. 1774. Though unable to prove it, I believe this to have been inspired. 430 BULLETIN OF THE UNIVERSITY OF "WISCONSIN. that the events of the year following proved fatal to the doing of this, as it was not thought expedient to lay that tax upon the trade by which the expense was to be deferred. "This was the reason that so large a part of the ceded ter- ritory in America was left without government, and that the new province of Quebec contained so small a portion of ancient Canada." The small French settlements in the region, he continues, were left under the military govern- ment of the posts , " as most likely to prevent an increase of inhabitants. " But in the parts contiguous to the old colonies immigrants flocked in and forced the Indians to fall back ; and as these new settlements were without civil jurisdiction and were every day increasing, " the case was judged to be without other remedy than that of following the emigrants with government and erecting a new Prov- ince between the Alleghany mountains and the river Ohio for that purpose. " But to prevent a recurrence of the necessity it was resolved, (and done by the Quebec Act), to put the whole remaining region under the jurisdiction of the Government of Quebec, ' with the avowed purpose of excluding all further settlement therein, and for the establishment of uniform regulation for the Indian trade. " The Province of Quebec was preferred, " because the access by water is much easier from Quebec to such parts of this country as are the most likely to be intruded upon than from any other colony. " Only under one uniform government could the Indian be protected, and thus be prevented " the quarrels and murders which are every day happening and which are the certain consequence of a fraudulent commerce. " There seems no reason to doubt the substantial correctness of these assertions; especially when we find the Government despatching to Carleton with his new commission in 1775, as a guide in his dealings with the Indians and the Western trade, the identical regulations which had been drawn up by the Board of Trade in 1764.' ] Cau. Arch., Instructions to Governors. Appendix to Carleton's Instructions, 1775. OOPriN — THE PROVINCE OP QUEBEC, 1760-76. 431 The writer is evidently speaking from the standpoint of the illiberal commercial -colonial policy; but it will be seen that he is apparently ignorant of any but trade motives for this part of the recent measure, and that he regards it as dictated by precisely the same policy as that which had produced the Proclamation of 1763. And this policy, I repeat in conclusion, was caused neither by the acquisition of Canada nor by the colonial troubles of the seventies. It was only a new application of that principle of commercial monopoly which, as Burke says, runs through twenty-nine Acts "from the year 1660 to the unfortunate period of 1764; " there is no ground whatever for connecting it, in origin or maintenance, with the special troubles in the other colonies, or with any sinister designs against these latter. A con- nection which, I need scarcely again observe, certainly can- not be made if the continuity of policy as between 1763 and 1774 be conceded. But while defending the originators of the Quebec Act from the heavier reproach brought against them on this point, I do not wish to be understood as in the least defend- ing the Western policy of the measure in itself. Disastrous as the Quebec Act proved, no part of it I think was more shortsighted or more disastrous than this treatment of the Western lands. Following up the Proclamation of 1763, it seemed an attempt to indefinitely maintain in the great heart of the continent, when apparently thrown open for Anglo-American expansion, the policy of monopoly and re striction against which the colonies on the coast were chafing so sorely. It was natural that the latter should imagine themselves threatened and impeded more ma- lignly and. seriously than could have proven to be the case; it was on this side, I have little doubt, that the Quebec Act figured most prominently amongst the col- onial grievances. Great Britain might well seem to have become " the most active foe of the English race in Amer- J Roosevelt, Winning of the West, I. 36. Though I have quoted this expression, I by no means agree fully with the way in which it is used by this writer. He attributes to 432 BULLETIN OP THE UNIVERSITY OF WISCONSIN. ica. " ' In this light I am inclined to emphasize strongly the importance of the Act in alarming and embittering the colonists.' They were not likely to stop and reflect that though the policy of the mother country apparently remained the same, that policy had already broken down in one important section of the new territory before the inrush of the pioneers, and that there was no probability that it would be any more permanent with regard to the remaining portions. b. Religion. The second important provision of the Quebec Act was that noted one by which it was enacted that the pro- fessors of the Catholic faith within the Province "may have, hold, and enjoy the free exercise of the religion of the Church of Rome, subject to the King's supremacy, . . . and that the clergy of the established Church may hold, receive, and enjoy their accustomed dues and rights, ' in regard to such professors. At the same time the adherents of that Church were relieved from the oath of Supremacy established by Elizabeth on condition of taking a simple oath of allegi- ance. These are the provisions which move Lecky to de- scribe the Act as marking an " epoch in the history of reli- gious liberty," and which at the time moved the Continen- tal Congress to express its astonishment that a British Parliament " should ever consent to establish in that country a religion that has deluged your island in blood, and dis- persed impiety, bigotry, persecution, murder, and rebellion through every part of the world. " We must examine these provisions in the light of the attitude of the Home and Pro- vincial governments to the church throughout the period; England a too conscious and special hostility, and dates it from the close of the "war. His error seems mainly due to the apparent deficiency in grasp of the subject and consistency of view which is shown in the assertion elsewhere that the interests of Quebec, " did not conflict with those of our people or touch them in any way, and she had little to do with our national history and nothing whatever to do with the history of the West." (1.28.) 1 See in regard to this the Remonstrance of the N. Y. Legislature, Mar. 25, 1775, to the British Parliament on the subject of the Quebec Act. It is taken up almost wholly with this side of the measure. { Pari Hist. XVIII, 650.) COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 433 and we shall find that on the one hand the framers of the Act had no purpose of " establishing " the Roman Catholic Church, and that on the other, the measure is by no means so notable from the standpoint of religious liberty as it has appeared. The prominence of the religious element in Canada, and the position the Roman Catholic Church had so long oc- cupied in secular matters as well, made the treatment of that church, and its future position , one of the most impor- tant and pressing of the problems that confronted the new Government. The conquerors were pledged by the Capit- ulation to full toleration of the Roman Catholic worship; though that instrument, promising to all religious com- munities the continued enjoyment of their property, had distinctly refused to assure the tithes or other dues of the secular clergy. ' The pledge of toleration was incorporated in the IV. Art. of the treaty of Paris in 1763 by the following clause : " His Britannic Majesty on his side agrees to grant the liberty of the Catholic religion to the inhabitants of Canada ; he will consequently give the most precise and ef- fectual orders, that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Roman Catholic Church, as far as the laws of Great Britain permit." This is identically the same stipulation, (in slightly different words), as that in the Treaty of Utrecht fifty years before ; ^ but it will be noticed that strictly in- terpreted it does not seem at first sight to be the same con- cession as that made in the Articles of Capitulation. It is impossible to delay on the questions as to how far the strict interpretation of the then existing laws would have in- terfered with ■■ the liberty of the Catholic religion, " or how far those laws were at that time enforced at home or were 1 Capitulation of Montreal, Art. 27, 34. Houston, Can, Const Documents, pp. 45, 47. ^ See Lecky, History of England in the 18th Century, I, as to the general resemblance of these treaties. See also Marriot, Code of Laws. It is rather curious that, though di- rectly comparing the treaties, Mr. Lecky fails to see that the earlier one contains pre- cisely the proTision which he refers to as marking, fifty years later, an epoch of relig- ious liberty. 434 BULLETIN OF THE UNIVERSITY OF WISCONSIN. valid in America.' Of rigid construction there was no real question in the case of Canada, and it will appear later that there is no evidence of the slightest attempt on the part of the British government throughout the period to interfere with full religious liberty, or with the establishments nec- essary for its effective maintenance. But that the above phrase, "as far as the laws of Great Britain permit," was by no means an unconsidered one, but was intended at least at first to have a very definite significance, is clearly shown by a very important communication from the Earl of Egre- mont, Secretary of State, to Murray, on the occasion of the latter's appointment to the new civil Government in Quebec (Aug. 13th, 1763).- The new governor is instructed in this that information has been received which causes a suspicion that the French have hopes of using the religious liberty promised the Canadians for the retaining through the clergy of their hold upon the people, and that he is therefore to be on his guard against any such attempts. The King, (the Minister continues), has no intention of re- straining the Canadians in the free exercise of their religion, but the condition as Jar as the laws of Great Britain X)ermit must always be remembered; these laws prohibiting abso- lutely ■■ all Popish Hierarchy in any of the dominions be- longing to the Crown of Great Britain. " " This matter was clearly understood in the negotiations of the Definitive Treaty. The French Minister proposed to insert the words comnie ci devant, in order that the Komish religion should continue to be exei'cised in the same manner as under their Government ; and they did not give up the point until they were plainly told that it would only be deceiving them to admit these words, for the King had no power to tolerate 1 It is perhaps worth notinjir that among the list of convicted criminals in Great Britain in 1771 is found the name of one John Baptist Maloney, who was sentenced to perpetual imprisonment for the crime of exercising the office of a Popish priest. He was after- wards pardoned on condition of leaving the country. Calendar of Home Office Papers 1770-2, No. 376. ^Can. Arch., Q.I. p. 117. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 435 that religion in any other manner than as far as the laws of Great Britain permit. These laws must be your guide in any disputes that may arise on the subject. " It is clear from this that the French Government desired the words comme ci devant to be inserted instead of the phrase in question, and that the object of that phrase was merely to deprive the Catholic religion of any legal status or hierarchy in the Province. Taken in this connection it will be seen that the Treaty was really intended to grant all that had been promised in the Capitulation.' And the principles thus clearly stated at the start, we find adhered to throughout the period with more vigor and consistency than can be discovered in any other part of the Canadian policy. In the above letter Egremont goes on to advise Murray to give public notice that no new foreign priests would be allowed to remain in the country without Governmental permission, and also to require all ecclesiastics to take the oath of allegiance. The following October 25, Murray writes as to the general subject of religious policy, on the oc- casion of the transmission home of religious petitions,^ which he reports as due to anxiety on the part of the Cana- dians as to the continuance of the priesthood. If this, he says, be provided for, they would part with the hierarchy without much reluctance; and he suggests a plan for hav- ing priests educated in Provincial seminaries as heretofore, and ordained abroad at the public expense, — a plan which 1 As to the opinion that the laws did not prohibit the free exorcise of the Boman Cath- olic religion, and that it was at the discretion of the crown whether Catholics in the newly accinired colonies should be admitted to office and honors, see Att. -General Yorke's opinion concerning the position in regard to office of the Catholics in Grenada. {Cat, Home Office Papers, 1776-9, No. 403.) This opinion is further of great interest in view of the question as to the formation of an Assembly in Canada, and the admission of Roman Catholics to it. It states clearly that the statute requiring the transubstantiatiou test oath does not apply to the new possessions, and that his Majesty is the only judge in re- gard to the use of such. This should be considered in connection with the opinion of Lecky as to the importance of the Quebec Act in religious history. On the general question as to the position of Catholics see further, opinion of Thurlow and Wedderboume, {Gal, Home Office Papers, 1770-a, Nos. 659, 713) ; Report of Wedderbourne, 1772 (Christie, i7is- iory of Lower Canada, I. c. 2) ; Marriott, Code of Laws. " See above, p. 284. 436 BULLETIN OP THE DNIVEESITY OP WISCONSIN. he thinks " the most feasible means of procuring a national clergy, without continuing a Bishop," and likely to give " universal satisfaction and make the Canadians in time forget their former connexions.'" To these suggestions Halifax (Jan. 14, 1764)- makes the guarded reply that he hopes soon to transmit definite directions on "that very important and difficult matter." We meet nothing further directly on this point, but that Murray's suggestions were not taken is shown by the fact that a Bishop for the pro- vince was allowed to be ordained in France in 1766, (the permission seems to have been given as early as 1764), and to proceed to Quebec in the same year; continuing there at the head of the church for the remainder of the period. There is some mystery about this transaction, and Maseres asserts that the Bishop had only a verbal permission to as- sume authority, and that he was supposed to have prom- ised to confine himself to the necessary and inoffensive duties of the office, (which promise, he adds, was not kept). The English government, according to Maseres, was brought thus to " connive " at this evasion of the laws under the opinion that the step was necessary to secure to the Canadians the enjoyment of their religion without giving loopholes for the creeping in of foreign influences. But that this was regarded as only a temporary step is shown by a Board of Trade report on the state of Quebec, May 16, 1766, in which the " unsettled state of eclesiastical affairs " is designated as the first of the matters requiring attention.' In Oct., 1767, Carleton recommends the appointment of a coadjutor in order to obviate the necessity of having the Bishop consecrated abroad; a recommendation which the Secretary approved (March 6, 1768),'' but which was re- ferred with others to the shortly expected regulations about religious matters in general. In 1772 however, the matter came- iCan.Arch.,Q.l,p. 251. !'Ibid.,Q.2, p. 5. s Ibid., Q. 3, p. 53. < Ibid., Q. 5-1, p. 844. .. ,.. COFFIN THE PROVINCE OF QUEBEC, 17G0-76. 437 up again in the absence of Carleton, and, like the appointment of the Bishop, seems to have been temporarily settled by another connivance, (in this case only of the Provincial gov- ernment), at an evasion of the laws; the Lt. Governor writing (July 25, 1772), that as the Bishop had lately obtained ■' the requisite power for consecrating the coadjutor whom Gov. Carleton had pitched upon, I agreed to his perform- ing the ceremony, but in a private way, because it was not the act of government, and to avoid giving a handle to busy and troublesome people. " ' To which Hillsborough replied, Sept. 2, 1772: "Your having permitted the per- son styling himself Bishop of Quebec to consecrate a coadjutor in consequence of power which you say he had received for that purpose, and which I presume must there- fore mean from some foreign ecclesiastical authority, ap- pears to me to be a matter of the highest importance, and the more so as I do not find upon the fullest examination that any authority whatever has at any time been given by His Majesty for the exercise within the colony of any powers of Episcopacy in matters relative to the religion of the Church of Eome. " ^ Hillsborough was shortly after re- placed by Dartmouth, and the latter writes Dec. 9, 1772 in a similar strain, declining to give any countenance to the late consecration of the coadjutor, and making the matter depend on the deliberations of the Privy Council then pend- ing; though he adds that he will not undertake to say that the exercise of some Episcopal authority may not be nec- essary to the toleration granted.^ During the whole of the period the power of appoint- ment to benefices resided in the Governor alone, having been first granted to Murray, in 1763. The instructions to Carleton in 1768 direct him " not to admit of any ecclesiasti- cal jurisdiction of the See of Rome or any other ecclesias- iCan. Arch., Q. 8, p. 160. ^Ibid., Q. 8, p. 166. 'Ibid., p. 220. 11 438 BULLETIN OF THE UNIVERSITY OP WISCONSIN. tical jurisdiction whatever," — an instruction which would seem to be in direct opposition to the continuance of the functions of a French ordained Bishop. Another article ordered him to provide for the gradual settlement of Prot- estant clergymen; and it was no doubt as a following up of this that in July 1768 a mandate was issued to him to appoint under commission two such to the parishes of Quebec and Three Rivers, to enjoy the same during life, " with all rights, dues, profits and privileges thereunto belonging in as full and ample manner as the ministers of churches in any of our colonies in America. " ' But Carle- ton, viewing this as a " stile of office " due to carelessness, remonstrated against it as extending, in the opinion of the Provincial lawyers, " to dispossess the people of their pri- vate churches and their clergy of their tithes and all pa- rochial dues," and gave the clergymen simply licenses to preach, with a right to such dues only as should arise from Protestants under the laws relating to the Church of England.- This action was apparently approved of by the home Government, the Secretary writing that there had been no intention of authorizing the general demand of tithes,' as had been shown by the attachment of a stipend out of the general revenue. On the verge of the Quebec Act, Dec. 1st, 1773, Dart- mouth writes that the coming settlement will give all sat- isfaction to the new subjects on the head of religion, but on such a basis that all foreign jurisdiction shall be abol- ished and the Province itself made equal to the supplying of all the essentials to free worship in the true spirit of the treaty.* The settlement thus foreshadowed — that of the Quebec Act, — viewed in the light of the policy thus clearly maintained down to its enactment, cannot be said to depart from it, the Article (5th) which provides for " the free 1 Mas^res, Comviissions, p, 148-52. "Can. Arch., Q. 5-2, p, 726-730. =Ibid., Q. 5-2, p, 756. -•Ibid., Q. 9, p., 157. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 439 exercise of the religion of the Church of Rome, " expressly adding, " subject to the King's supremacy declared and established by an Act made in the first year of the reign of Queen Elizabeth. " Nor can it be regarded as " estab- lishing " the Roman Catholic Church in any sense in which the Church of England was not also established. For the only new privilege bestowed on the Roman Catholic clergy is comprised in the phrase, " the clergy of the said Church may hold, receive, and enjoy their accustomed dues and rights in respect to such persons only as shall profess the said religion,"- — a phrase which has always been inter- preted as implying the re-establishment of compulsory tithes; while the next article goes on to make provision for the applying '' of the rest of the said accustomed dues and rights" (i. e. the tithes of Protestants), to the support and encouragement of the Protestant religion. And that the intent of the framers of the Act did not reach even to thus equalizing the two Churches is clearly shown by the ensuing instructions to Carleton 1775. The 20th Article en- joins him to remember " that it is a toleration of the free exercise of the religion of the Church of Rome only to which they [the new subjects] are entitled, but not to the powers and privileges of it as an established Church, which belongs only to the Protestant Church of England." The 21st Article further forbids all appeals to or correspondence with any foreign ecclesiastical jurisdiction, makes govern- ment license essential in every case to the exercise of Episcopal or parochial functions, and conditions the hold- ing of all benefices on good behavior. I cannot here enter fully into the legal question of the peculiar relative posi- tions thus apparently granted the two churches; it must be left with the remark that it is the very evident inten- tion of the Administration, as shown in the Governor's in- structions and elsewhere, to make the Church of England theoretically the Established Church for the whole Province, and effectually so wherever the field was not already in 440 BULLETIN OF THE UNIVEESITT OP WISCONSIN. possession of or could be gradually secured from, the Church of Rome. Thus provision is made that a Protest- ant minister should be appointed to any parish in which the majority of the inhabitants should solicit it, and that the appointee should receive "all tithes payable in such parish; " as also that all rents and profits of vacant bene- fices should be applied to the support of a Protestant clergy.' Any introduction of, or correspondence "with, for- eign ecclesiastical jurisdictions, was strictly prohibited, no Episcopal or Vicarial powers being allowed to be exer- cised by !Roman Catholics except such as were indispens- ably necessary to the free exercise of religion. And even these were to be exercised only by Governmental license " during our will and pleasure, " in correspondence with " the spirit and provisions of the Quebec Act; " such license being made essential to all ordination or holding of benefices. Benefices were to be conferred only on Cana- dians born, and the Governor and Council had power of suspension in case of criminal ofl'enses or of treason. These jjrovisions show in brief that the determination to allow none but strictly religious privileges to the Church of Rome in the Province, which had been insisted upon in the Treaty of Paris, was not less strongly incorporated in the Quebec Act and its accompaniments; and therefore, that instead of that Act being the complete surrender to the Church of Rome it appeared to Protestant contemporaries and has often been represented since, that Church was granted no new privileges beyond the securmg to it of sup- port /ra»i its oivn adherents. It was a change that affected only these adherents, changing for them a voluntary into a compulsory burden; a change the political results of which wiJl be elsewhere discussed.- Briefly it seems prac- 1 It will be seen tliat both of these provisions discriminate in favor of the Church of England against the Church of Rome ; the latter not being allowed under any circum- stances to take tithes from Protestants or to receive anything from vacant benefices, which remained wholly at the disposal of the Protestant executive. = See below,' Chapter VI . A. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 441 tically accurate to put the matter thus: The tithe was by the Act attached to all land as a state exaction, that por- tion of it paid by adherents of the Roman Catholic Church being applied to the support of the Roman Catholic clergy, the remainder, at the discretion of the Govern- ment, to the support of a Protestant clergy. But the en- suing instructions to the Governor, (apparently without authorization in the Act),' further divert to the benefit of the Protestant Church all the profits of vacant benefices, and all the tithes of parishes where the majority of the in- habitants were or should become Protestant. What light do the debates on the Act throw on these arrangements? On the whole they lead to no conclusion opposed to those drawn from the examination of the earlier policy. But they do not increase our estimation of the care or the clear-sightedness of the framers of the bill. As first introduced the religious enactment embraced only the 5th Art. of the final Act, no mention thus being made of the Protestant Church, and no limitation being placed on the clause "subject to the King's supremacy." Considerable battle raged around the question as to whether or no the Roman Catholic Church was really established. Lord North maintained that no more was done than was required by the Treaty with regard to the free exercise of the faith, and that Papal authority in the Province would certainly not be permitted;' the Solicitor General stated that he could see no more in the bill than a toleration, with the clergy made dependent on the State rather than on the people.^ In answer to the charge that nothing had been done for the Protestant Church Lord North brought into the committee the amendment in favor of that Church, which forms Art. VI of the Act, characterizing this as an establishment. Some further debate took place as to the 1 It would seem as If Wsdderboume the Solicitor General was responsible for at least the latter clause. See Cavendish, Report, p. 218. ^ Cavendish, p. 10. sjSid., p. 54. 442 BULLETIN OF THE UNIVERSITY OP "WISCONSIN. royal supremacy ' and at the next sitting the Government brought in the amendment which forms Art. VII, and which apparently goes far to nullify the "supremacy" clause of Art. V. This however was undoubtedly consid- ered as necessary to full toleration and as not diminishing the hold of government over the Church,'' and was agreed to without a division.' It is probable that the conciliatory and hazy attitude of the Government on this part of the bill was due to a consciousness of the strong position of the opposition from a popular standpoint. This aspect of the situation was wittily referred to by Barr6 in a passing reference* to the rumored impending dissolution of Parlia- ment. "People may say " he remarked, "upon its dissolu- tion as they did after the death of King Charles, that by some papers found after its decease, there is great reason to suspect that it died in the profession of the Roman Catholic religion." A privy councillor retorted that the parallel at least held good in the circumstance that the dying Parliament, like the dying Catholic, was attended by a number of troublesome people, disposed to put many troublesome questions. " The above examination will cause it to appear very doubtful if the position of the Church was really much im- proved by the enactment, supposing the latter to be rigidly applied. Apart from the effects with regard to the attitude of the people referred to above, there were new elements indeed of positive disadvantage. The ^ In which occurred one of the most violent attacks on the "secret designs" of the bill that we meet with. The assailant was Barr§, who pointed to the indulgences given the Roman Catholics as confirming his suspicions, and warned the Government that "if you are about to raise a Popish army to serve in the colonies, — from this time all hope of peace in America will be destroyed. ... I smelt out this business from the be- ginning." Thurlow, who followed the irate Colonel, took no notice whatever of the insinuation. Cavendish, p. 228. ^ As shown above by the la tor instructions to the Governor. s Cavendish, pp. 250-1. When the BiU went back to the Lords this last amendment however received the especially hostUe notice of Lord Chatham, who declared it offen- sive as an attack on the Great Charter or the Bill of Rights. Lord Lyttleton replied forcibly that full toleration could not exist without the clause. * Ibid., p. 239. COrPIN — THE PROYINCE OP QUEBEC, 1760-76. 443 clergy were now legally assured of support; but that sup- port, we are frequently told, ' had been, since the conquest, quite as assured by the voluntary contributions of a pious people, over the recalcitrant of whom might still be exer- cised, in the generally hazy state of the ecclesiastical powers, a great share of the many-sided authority so abundantly wielded under the old regime. Now however the Quebec Act had strictly and narrowly defined the real position and power of the Church; it had stripped it of nearly every vestige of its old temporal prestige, and of every right of pretension to any but a strictly religious status. Further, this Act had in all probability actually diminished the rev- enues of the Church; for it had deprived it entirely not only of all right to dues from benefices unfilled, (and the filling of vacancies was in the hands of a Government or- dered to lose no opportunity of securing the advancement of the Protestant religion,^ to whose benefit the receipts from such vacancies were to be appropriated), but also of all right to dues from any parish in which a majority of Protestants might become settled. It must therefore ap- pear that the apprehensions of the Continental Congress as to the establishment of the Popish worship were unfounded; that the position and prospects of the Church through the new legislation, especially when viewed in that connection with the previous policy and the accompanying instruc- tions which shows its intent and the spirit in which it would be administered, were not such as to give evidence of an exceptional liberality which could be explained only by sinister designs against the other colonies.' 1 Expressly and frequently asserted in Quebec Act debate. Tbese statements must be considered very cautiously it is true ; but yet there seems no reason to believe that the Church had not been sufficiently supported through the period. 2 For the intent of the Government on this point see Cavendish^ p. 219. ^ The above examination of the intentions and early measures of the British Govern- ment with regard to the Roman Catholic Church in Canada should be considered in connection with the later position assumed by that Church. This later position has no sufficient support in the Quebec Act, but has been acquired since, in direct opposition to some of its most important provisions, as a very important part of that long course of 444 BULLETIN OF THE UNIVERSITr OF WISCONSIN. Further light will be thrown on this matter by consider- ing the parallel course of the Imperial authorities in the Island of Granada. This, with some neighboring islands, conquered in 1762, had been ceded to Great Britain in 1763 "in full right . . . with the same stipulations in favor of the inhabitants . . . inserted in the IV. Art. for those of Canada. " ' The Royal Proclamation of October, 1763, had named the Government of Granada as the fourth of the new Governments to which that Proclamation was intended to apply; and civil commissions were made out for it similar to those in the case of Quebec. But its later fortunes had diverged markedly from those of the latter Province, in that the Assembly promised by the proclamation and di- rected by the commissions was actually called together and constituted in 1765, at which time " none of the French Roman Catholic inhabitants claimed a right or even ex- pressed a desire of becoming members, either of the Coun- cil or Assembly. " ^ This body, evidently entirely English- speaking in composition, acting on the same assumptions as to the introduction of English law as the same party in Quebec,'' proceeded at once to pass "an Act for regulating revived French development of whicli the Quebec Act was the basis. In other words the assumptions from which that measure proceeded, and the position in which it placed the Province with reference to the new English element, were made by the Church the start- ing-point of a brilliant course of aggrandizement; that Church becoming therein identi- fied with the revived national feelings and forces whose growth bore it in turn triumph- antly forward. A full comment on this is of course impossible ; but it will be instructive to notice the words of the most authoritative of modern French Canadian constitutional writers. "La reserve de la supr(^matie spirituelle du roi d'Angleterre somble avoir 6t6 mise dans le statut de 1774 et les instructions royales qui suivirent pour la forme. EUe resta lettre morte. Les r^presentants du pouvoir comprirent que toute tentative pour I'imposer h la colonie resteraitsans succ^s. L'acte constitutionnell [in 1791], n'en parle pas." (Lareau, Hist, Droit Canadien, II. 140). It was at the period of the war of 1812 that the preponderating position of the Church was finally and firmly secured. By that time it had again in reality taken possession of the once almost emancipated French Canadian, and could make its own terms with the government which seemed so dependent upon his loyalty. 1 Treaty of Paris, Art. IX. "^ Edwards, History of the British Colonies in the West Indies, I, p. 62 {Phila., 1806). ^ See the almost contemporary action of the Grand Jury in Quebec, especially with re- gard to the protest against the privileges granted to Roman Catholics. The " old sub- ject" element in the Provinces is identical in spirit and aims, with the difference COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 445 the elections of the general Assembly of Grenada and the Grenadines, and for the better ascertaining of the electors and elected, " which required all members of the Assembly to subscribe the Declaration against Transubstantiation,' (no such restriction being placed on the franchise evi- dently). On the protest of the French inhabitants,' the Board of Trade intervened against this and other Acts of the same body, by a Report made March 4, 1768, in which they condemn the above Act as tending "to give disgust and dissatisfaction to your Majesty's new subjects," and state that the test there required "is not (as we conceive) ^tended to the colonies by any Act of Parliament, and is a qualification the enforcing of which is entirely left to your Majesty's discretion." This recommendation is evi- dently based on the opinion of Attorney- General Yorke, to whom the case had been referred,' and as the result the following year the Governor of the Island received royal instructions to admit Roman Catholics into both Council and Assembly as well as into the commission of the peace, without the taking of the test oath against transubstanti- ation.' This, through the unbending attitude of the Protest- ant party, gave rise to such bitter political contests that that in Grenada it proved more uncompromising and intolerant. This distinction is doubtless due to the facts, (1) that representative Government had been put in force in Grenada and thereby the direct control of the executive greatly lessened, (2) that in Grenada the British were relatively a much stronger element. In 1771 the white popu- lation of the Island was about 1,600, (theslave'populationbeingnearly 40, 000), of which, ■considering the analogy of Quebec, a very considerable section must in 1775 have been English speaking. {Editmrds, I. 74} . 1 See an anonymous Pamphlet entitled " Observations upon the Report made by the Board of Trade against the Grenada Laws." (W. Flexney, London, 1770). This is ably written, from the standpoint of the British party in the Province, and contains the Board of Trade Report almost in full apparently. I have not been able to find it else- where. ' Cal. Home Office Papers, 1766-9, No. 403. ^ Ibid, It is uncertain from this entry whether the date assigned, (Jan. 12, 1767), is that of the reference or that of the advice . The form of the statement of the case would seem to show that the referrers were decidedly leaning to the opinions maintained in Mr. Yorke's answer. The reference is endorsed, "your opinion on this case is much wanted." See note above on this opinion, p. 4.35. * Edwards, West Indies, I. 62. Southey, TI'"es( Indies, II. 395. 446 BULLETIN OF THE UNIVERSITY OP WISCONSIN. representative government remained practically suspended throughout the rest of the century. Yet the Crown per- sistently refused to revoke the objectionable instructions, notwithstanding the strong constitutional arguments, brought against them.' As to the general treatment of the Roman Catholic Church in Grenada, we find as in Canada, that the treaty engagement of full toleration was liberally carried out; and it would seem moreover that it was not till 1783 that any step was taken to interfere with the es- tablished interests of the Church of Rome or to further those of the Church of England, the act of that date still providing "some allowance . . . for the benefit of the tolerated Romish clergy. " - It is thus evident that the liberal attitude of the Imperial government with regard to the Roman Catholic Church was not peculiar to Quebec, but that it had been initiated earlier and extended further in a non-continental Province, — one which could not be sup- posed as ever likely to be in a position to affect political conditions among the older colonies, — than in that one where the policy was regarded as inspired by deep hostil- ity to those English-American political institutions with which the Protestant church was supposed to be especially identified. The only conclusion we can draw therefore on this point, is the one to which we have been led by our examination of the earlier policy; namely that in the measures of 1774 with regard to the Roman Catholic Church in Canada the home government was influenced mainly or solely by the 1 For these see the pamphlet of 1770 referred to above. There would seem to be no doubt, notwithstanding the opinion of Mr. Yorke, that the action of the Crown in this matter- was, constitutionally, altogether indefensible, and indirectly so declared by the Mans- field judgment of 1774. And it is well to note here what I shall probably refer to again, that the consciousness of this may in all likelihood be discerned behind the refusal to take similiar action, even through Parliament, in the case of Quebec before or at the time of the Quebec Act. It is rather curious that no pertinent reference to the Granada case is found in the Quebec Act debates ; though that the action of the Government was carefully observed in Quebec itself is to be seen from the petition of the English- speaking party there in 1773. 2 Edwards, West Indies,!. Ti. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 447 necessity of maintaining its treaty obligations, and by the desire to protect a conquered and docile people from the intolerance of a political party which it believed to be identified in spirit and aim with the objectionable elements in the older colonies. That this latter was a subsidiary and minor motive, and that, on the other hand, there was no general spirit of religious liberality in action, is shown by, the fact that the general liberal attitude and the partic- ular measures alike, were confined to those provinces with regard to which treaty obligations existed. The " case" submitted to Yorke in 1767 begins with a distinct statement that " in the Leeward Island, Barbadoes and Jamaicas, they do not admit a person to be of the Council, Assembly, or a justice of the Peace" except on subscription to the declaration against transubstantiation ; yet nothing in the way of alleviation was done or hinted at in regard to these cases. I can therefore see no sufficient ground for Lecky's reference to the Quebec Act as marking " an epoch in the history of religious liberty." It is true that by that Act, as in the Grenada instructions, more was given than was called for by the Treaty obligations; but these additional privileges were far more political than religious in their origin and intent. In the case of Quebec, full political privileges were denied expressly on religious grounds. As to the measure of toleration accorded throughout the period to the Roman Catholic worship, there can be no doubt that it was complete. The faithful and even gener- ous observance of the Treaty on this point is frequently acknowledged in the native petitions and calls forth the censure of the Protestant element. Further, whatever may have been the suggestions of individuals, no encroach- ments were made on the property or privileges of the Church during the period. Maseres expressly asserts that the churches and chapels were left entirely in the hands of the Catholics (town Protestants borrowing them on 448 BULLETIN OP THE UNIVERSITY OP WISCONSIN. Sunday for an hour), their priests in possession of the glebe lands and parsonages, and all old ceremonies and even processions continued without molestation.' And though the assertions of the same writer as to the pomp and importance gradually assumed by the Bishop and the use by him of excommunication, etc., seem ^ undoubtedly an exaggeration, it is evident that the confidence of the clergy and j)eople in the good faith of the conquerors and in their liberal interpretation of the privileges promised, stead- ily increased. The genuineness of religious toleration is sufficiently proved by the fact that the only complaints in regard to the matter that we meet with are the protests of the noblesse against their own exclusion from public em- ployments through the oaths required of all officials. The requirement of these subsisted unaltered through the whole period, they being given a prominent place in Carle- ton's instructions of 1768. But considerable latitude must have been allowed with regard to them in the case of minor officials, for we find several of the smaller offices in the possession of French Canadian Catholics. We have also seen above that Catholics were admitted throughout the period on juries and to the practise of the law, — an indul- gence violently condemned by the English grand jurors of 1764, as contrary to the constitution. Outside of these few exceptions however, the religious oaths excluded the French Canadians from all civil and military employments, including the Council and the possible Assembly. The real importance of this exclusion is with regard to its influence (elsewhere discussed), upon the establishment of represen- tative institutions. [ I Carleton distinctly confirms this by saying that the Bishop had of his own willlessened the number. (Can. Arch., Q. 6, p. 54). Some interesting testimony on this matter will be found in the introductory memor to the Life of John Carroll, (Md. Hist. Soc, 1876, pp. 30-34) . It is there asserted that Carroll's mission in 1776 to the Canadian clergy failed because of their entire satisfaction with the treatment of the Church by the British authorities ; a conspicuous instance of the latter's attitude being aiforded by the statement of the Canadian clergy that the "government actually furnished a mili- tary escort to accompany the grand procession on the festival of Corpus Ghristi." , ^ See letter of Carleton just referred to. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 449 Though not of much interest to us now, a prominent part of the problem connected with the treatment of the Church of Rome in the Province had reference to the communities of regular clergy, and especially the Jesuits. These communities however were not an essential part of the religious organization, and had not the hold upon the people which would make their fate a matter of national concern.' Nor was Great Britain's attitute toward the Jesuits different than that of contemporary powers. Cath- olic and Protestant. Their great power under the old regime has been graphically described by Parkman; but it had been declining for some time previous to the conquest, and at this time the vigor and possessions of the Society were much inferior to those of the Sulpitians or RecoUets at Montreal, — an order which was much more favourably looked upon by the government from the first. The 34th Art. of the capitulation of Montreal would seem indeed (unless it is to be construed in connection with the preced- ing one), to promise the possession of their property to all the communities; but, though the Order was not suppressed till 1773, it is evident that the home Government from the first looked upon the possessions of the Jesuits as its own. At the beginning of the civil government Murray was directed to prevent further additions to it or to the other orders, — a direction which was repeated more positively later and strictly followed through the whole period. In the instructions to the Receiver -General in 1766 he is ordered, "whereas the lands of several religious societies in the said Province, particularly those of the Society of Jesus, are, or will become, part of His Majesty's revenue," to endeavour by peaceful agreement to get these into his present charge in order to prevent any losses thereto. In 1767 Shelbourne writes' that the property of the Jesuits, (which has been represented as producing £4,000 per an- num), "must become on their demise a very considerable 1 See Murray's Report, 1762. "To Carleton, November 14. (Can. Arch., Q. 4, p, 298.) 450 BULLETIN OF THE tJNIVEKSITT OP WISCONSIN. revenue to the Province, in case His Majesty should be pleased to cede it for that purpose. " To which Carleton replies ' that the order he is convinced is in reality poor, their lands yielding very little and their total income being given by themselves as 22,658 livres, from which they have 19 persons to support. All the legal opinions of the time supported the view that the property held by the Jesuits had become legally vested in the Crown; and in the instructions to Carleton of 1775 it is declared that the Society is "suppressed and dissolved and no longer con- tinued as a body corporate and politic, and all their rights, possessions and property shall be vested in us for such purposes as we may hereafter think fit to direct and ap- point. " But the remaining members of the order in Canada were to be supported out of this property for the rest of their lives, and it was not till the death of the last one in 1800, that the lands actually came into full use as part of the state revenue. e. Civil Laiv. The third feature of the Quebec Act which requires our consideration is that one which is described in the Declaration of Independence as the "abolishing the free system of English law. " It is expressed in that clause of Art. VIII which directs that " in all matters of contro- versy relative to property and civil rights resort shall be had to the laws [and customs] of Canada as the rule for the decision of the same , . . until they shall be varied or al- tered by any Ordinance that shall from time to time be passed in the said Province. " This provision was modified by Art. IX, directing that all royal land grants, past or future, in free and common soccage, should be exempt from its op- eration, and by the provision of Art. X, that the execu- tion and administration of wills should proceed, at dis- cretion, according to either English or French law A reference to the former discussion as to the adminis- 1 Can. Arch., Q. 5-2, p. 590; Q. 6, p. 109. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 451 tration of justice in the Province throughout the period" will be sufQcient to show the inaccuracy of the word "abol- ishing" in regard to the effect of this clause; further on I shall examine the above modifying provisions in the light of later instructions and enactments, with a view to determining how far English law was now abandoned or excluded. My object at present is to scrut- inize this provision in the light of previous policy, with regard especially to that origin in and reference to the mo- mentary relations with the other colonies so freely asserted by the revolutionary leaders. It is evident that these lead- ers held the same views concerning the intent and legal ef- fect of the Proclamation of 1763 and the accompanying doc- uments as did the English-speaking party in Canada. In the general treatment of the matter above there was quoted that remarkable statement from Hillsborough of the ab- sence of any intention of the overturning of French law oq the part of the framers of these documents. This emphatic testimony is supported from other sources, and must be taken at least to show that, even at the beginning, there was no deliberate, intelligent purpose of suddenly substi- tuting English for French law. The acts of omission or commission from which such an inference was drawn may be much more reasonably explained as evidences only of ignorance, neglect, and indecision. But this state of affairs cannot be held to have continued longer than the first two years of civil government (1764-6). The administration in the province had soon become convinced that any violent assimilation of the laws and customs of Canada to those of the other provinces was radically unjust and impolitic, if not also impossible. This conviction we find expressed in protests to the home government, and in increasingly lib- eral interpretations of the documents by which the Provin- cial officials felt themselves trammelled. Murray writes March 3, 1765, to the Board of Trade concerning the great 1 See above, Chapter III, Section C. 452 BULLETIN OP THE UNIVERSITY OF "WISCONSIN. difficulties which occur " in establishing the English laws in this colony, " and proceeds to a general description of the state of the colony "where the English laws are to be established, " in which he displays a marked sympathy with the French and a strong distaste for the task which he thinks has been laid upon him.' This representation does not seem to have been effectual in eliciting any definite or different explanation of the Proclamation of 1763, or any general statement of policy which would have let the pro- vincial government feel at liberty to change its aims; but it was probably taken into account in the new instruction in the spring of 1766 by which the slight indulgences granted the Canadians in the Judiciary Ordinance of Sept., 1764, were approved and extended. Doubtless also it had a strong influence in stirring up the home authorities to the beginning of the first serious investigation into the problems of civil government in Canada, — an investigation which as I have elsewhere shown came to a definite head in 1767, but which did not bear full fruit till 1774. For the present, however, the provincial government seems to have been still left in the dark, and it is evident indeed that down to the new ad- ministration in September, 1766, there had been received in the Province no definite intimation of any radical change in the views and aims of the home executive.^ But that before this date such a change had to a large ex- tent occurred we learn from other sources. Or rather we should say that the home authorities had before this time, whether by the representations of the Colonial officials, by the introduction of new blood, or by other causes, been awak- ened out of the ignorance and neglect which had allowed the main documents relating to the Province to be couched in the most vague and misleading language, and the mi- 1 Can. Arch., Q. 2, p. 377. ^See Can. Arch., Q. 3, p. 249. Also the Commission of Chief-Justice Hey, Sept., 1766. (Mas^res, Cornmissions, pp. 124-8) . The failure to fully inform the ProTincial Govern- ment is probably to be explained in part by the fact that it had been resolved to recall Murray. COrriN THE PROVINCE OP QUEBEC, 1760-76. 453 nor documents to be made out mainly on the lines of official routine established through dealings with the other colonies. The letter from Murray which I have quoted above is dated March 3, 1765, and on the September 2 follow- ing we find the first indication of attention to the subjects there suggested in the shape of a Board of Trade report to the Privy Council, signed by four names, the first being that of the Lord Dartmouth who as Colonial Secretary engi- neered the Quebec Bill nine years later. Unfortunately we have not any full copy or satisfactory abstract of this, and are obliged to depend for our somewhat vague information as to its recommendations on a supplementary Report of the Crown lawyers (Yorke and De Gray), of April 14, 1766. This latter ' states as one of the main sources of disorder in the Province, the ala.rm taken at the construction put upon the Proclamation of 1763, "as if it were the Royal inten- tion, by the judges and officers in that country, at once to abolish all the usages and customs of Canada with the rough hand of a conqueror rather than in the true spirit of a lawful sovereign, " ^ and refers to the Report of the Board as ably applying itself to the remedying of this grievance. Then, after discussing the subject of the constitution of the courts, they proceed to consider the proposal in the report, "that in all cases where rights or claims are founded on events prior to the conquest of Canada, the several courts shall be governed in their proceedings by the French usages and customs which have hitherto pre- vailed in respect to such property ; " approving of it as far as it goes, but proceeding to maintain that in all matters affect- ing the possession or transfer of real property, "it would be oppressive to disturb, without much and wise delibera- tion, and the aid of laws hereafter to be enacted in the Province, the local customs and usages now prevailing 1 Smith, History of Canada, II., 27-38 (Quebec, 1815) . ^ A reference which it will be noticed does not go so far as to deny that abolition in some de^ee or manner was intended by the Proclamation, or that the terms of it would not admit of such an interpretation. 12 454 BULLETIN OF THE UNIVERSITY OP WISCONSIN. there.' " This it will be seen, is a very decided advance on the Board of Trade's first plan, which, though of a very in- definite scope, manifestly had still lingering behind it the idea which lay at the base of the earlier documents, viz. : that Canada was eventually to become thoroughly an Eng- lish province ruled by English law. That the advance was not unfavorably received by the Board may be inferred from a communication from it to the Privy Council June 24, 1766, transmitting a "draught of particular instructions for the Governor of His Majesty's Province of Quebec, for the establishing of courts of judicature in that Province," which they state to be drawn up according to their previ- ous report, supplemented by the suggestion of the Crown law- yers.'^ These instructions do not immediately appear, nor do we find anything further as to the Quebec judicature or laws till June 20, 1767, when Shelbourne writes to Carleton that the improvement of the Quebec civil constitution " is under the most serious and deliberate consideration," es- pecially of the Privy Council; the main problem being, " how far it is practicable and convenient to blend the Eng- lish with the French laws in order to form such a system as shall at once be equitable and convenient both for His Majesty's old and new subjects, in order to the whole being confirmed and finally established by authority of Parlia- ment. " ' The deliberate character at least of the course taken is fully established by the next document we meet. This is a Privy Council resolution of August 28, 1767, adopting the report of the Committee appointed to consider the draught of instructions submitted by the Board of Trade June 24th, 1766.* The report was to the effect that the doc- 1 It will be remembered that in their use of the term " customs and usages " the Eng- lish lawyers have no doubt in mind in great part wliat occupied a position corresponding to that of the common law of England. The word now should be noticed here also, in connection with the argument above as to the practical maintenance of the French law. This was in 1766, and certainly no disturbance of that law occurredlat«r. "Can. Arch., Q. 3,p. 171. 'Can. Arch., Q. 4, p. 129. 'Can. Arch., Q. 4, p. 327, COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 455 Timent submitted by the Board of Trade was too general and too unsupported by specific proofs of grievances to be approved without further information; especially as no ex- plicit complaint had of late been received from the Colo- nial officials; and that therefore full reports and recom- mendations as to the alleged judicial defects should first be obtained from these officials, " it being unwise and danger- ous to the Province to frame or reform laws in the dark. " In accordance with these proceedings Shelbourne in the following December directed Carleton to institute a specific investigation, and an Under-Secretary was at the same time commissioned to go out and join in the same.' And having thus decently shelved the subject, the Home Government, busy with other matters, awaited with great equanimity the appearance of the reports. But before the news of this step had been received by Carleton, he had with characteristic energy and decis- ion made up his mind as to the solution of the matter, and December 24, 1767 had sent to Shelburne an abridgement of the civil laws of Canada in use at the conquest, with recom- mendation that for the present they should be continued almost entire, to be altered by future Ordinances as might seem fit. As a beginning or model he siibmitted for ap- proval a draft of a proposed Ordinance, for "continuing and confirming the laws and customs that prevailed in the Province in the time of the French Judicature, concerning the tenure, inheritance, and alienation of land. " ^ The an- swer to this was the letter from Hillsborough of March 6, 1768, quoted from above,' which states that the proposed Ordinance has been approved by the King, though it is to be held in reserve pending a general settlement, and which therefore shows conclusively that more than six years be- fore the Quebec Act, the Home Government, uninfluenced, 1 For his instnictions, see Can. Arch., Q 4, p. 331. 2 Can. Arch., Q. 5-1, pp. 316-313. sp. 387. 456 BULLETIN OF THE UNIVERSITY OF WISCONSIN. SO far as we can discover, by anything except the repre- sentations made as to the state of the Province, had re- solved to go at least as far as that Act went. But there were still the reports ordered to wait for,' and meanwhile the stationary condition of affairs ^ is shown in the Instruc- tions of Carleton, August, 1768, which, though going into minute directions as to forms of legislation, make no ref- erence to the all-important question as to how far that legislation should be based on English or on French codes. The investigation ordered was entered upon vigorously by the provincial Government. It is significant to note the anticipation of that government as to the result, (even be- fore the receipt of the letter of March 6th from Hillsbor- ough), as shown by a Minute of Council of March 28, 1768, to the effect that a committee was appointed on that day to take from the old French laws such extracts " as may ap- pear to them necessary to make a part of the future regu- lations of the Province."'' The rejiorts were transmitted in September, 1769, the main one embodying Carleton's views, and minor ones giving the dissenting opinions of the Chief- Justice and Attorney General. Though the original docu- ments are not to be found, we have other means * of arriving pretty accurately at the contents. Carleton recommended that the whole body of the French civil law as it had existed before the Conquest should be restored, to be changed ex- plicitly by fresh Ordinances as might seem necessary; con- sequently that no English civil law should be in force ex- cept such as might later be expressly introduced in this man- ner. Maseres and Hey on the contrary thought that the Cana- 1 Thought the more necessary probably ia order to be able to make a good case for a measure which was likely to be vigorously opposed. 2 Possibly, however, only the old neglect. ' Can. .4rch., Q. 5-1, p. 435. * Evidence before Commons in the Quebec Act Debate; Correspondence of Carleton; writings of Maseres. There is very strong reason for believing that the paper in the JLower Canada Jurist, Vol. I., attributed to Chief-Justice Hey, is his report on this oc- casion. His views are, however, very clearly stated by him in the evidence referred to above. See especially CareHrfis/j, pp 156-7. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 457 dians would be contented and the best interests of the Pro- vince secured, by the continuance or adoption of the Eng- lish law and procedure as a general basis, and the special revival of the French law in regard to landed property and inheritance; the general aim being the gradual assimila- tion of the Province to the other English possessions in America.' The home authorities did not allow themselves to be hur- ried. The next step, almost two years later, is an Order- in-Council of June 14, 1771, transmitting the Provincial reports and all other papers concerning Quebec to the crown lawyers,^ and ordering them to return separate and detailed reports as a basis for legislation. Mean- while, however, as if to palliate the delay of the full set- tlement, there was issued (July 2d, 1771), a new instruction in regard to land grants, by which a very noteworthy step was taken toward the return to French law. The Procla- mation of October, 1763, had conferred on the governor and Council ' full power and authority " to grant lands, " upon such terms . . as have been appointed and settled in other colonies, " and in accordance with such special in- structions as might thereafter be given. These special in- structions were issued to Murray when appointed Governor in 1764, and directed the grants to be made in free and common soccage, according to English forms, to be held by an oath of fealty and a quit-rent of two shillings sterling per 100 acres; the grants to be in restricted quantities and on the usual conditions of cultivation, and a special caution being added against following the example of some of the other colonies in making excessive allotments to individuals unable to fully cultivate. Under these regulations the amount actually granted was very small, not exceeding 14,000 acres 1 Special attention is directed to these recommendations by Maseres and Hey, which win be found in detail in their evidence in 1774 before the Commons. They represent, in my opinion, by far the better settlement. " Attorney-General Thurlow, Solicitor-General Wedderbourne, and Advocate-General Marriott. 458 BULLETIN OF THE UNIVEKSITY OF WISCONSIN. in all, according to the statements of Carleton and Maseres ;' which is apparently accounted for by the fact that the terms were deemed severe and unprofitable, especially in comparison with those of the French grants.- The Min- utes of Council show that the lands which had been awarded on much easier terms to discharged soldiers, had been but little availed of.' The expense of the necessary registration was a considerable obstacle, and in the later years the government seems to have delayed completing grants from the anticipation of new instructions.* Such a change had been urged by Carleton two years before, in a communication in which he had described the old French form of grant, and had strongly presented the advisability of reverting to it thereafter except at the eastern extremity of the province, where he considered it advisable that old subjects only should be encouraged to settle.^ His reasons for this advice are not very clearly given, and would seem to have been largely military (in the advantage of renew- ing in some way the obligation of military service as a condi- tion of tenure), but we are safe in concluding that among them was a conviction that the English forms were not conducive to the settlement of the country. The action is on a line with the constant tendency shown by Carleton to revert wherever possible, to the French forms. Though the proposal was looked upon favorably by the home gov- ernment,' no effective action was taken thereon till July 2d, 1771, on which date the " additional instruction " spoken of above was issued, by which it was ordered that for the future lands should be granted "in fief or seigneurie, as hath been practiced heretofore, antecedent to the Conquest, " according to the old French forms, but with the omission of the judi- 1 The former in official correspondence April 15, 1767 (Can. Arch., Q. 4, p, 152) ; the latter in Quebec CotmnU&ions, p. 182. "See Cramah^ to Hillsborough, Can. Arch., Q. 8, p. 142. ' Ibid., Q. 4, p. 230 ; Q. 8, p. 116. • Minutes of CounoU, AprU 18, 1770. Ibid., Q. 7, p. 129. 5 To Shelbonme, April 12, 1768. Can. Arch., Q. 5-2, p. 477. • Hillsborough to Carleton July 9, 1768; Can. Arch . , Q. 5-2, p. 602. COFFIN THE PROVINCE OP QUEBEC, 1760-76. 459 cial powers thereto anciently belonging. The ground of the change is stated in the preamble to be representations that the former terms " have been found to be inconvenient and inadequate; and that it is more for our advantage and for the benefit of our subjects ... if the ancient mode of granting lands . . . was to be adopted." This radi- cal and deliberate change of policy bears very striking testimony to the genuineness of the decision as to the full restoration in the Province of French law and custom. In this light it was regarded in Quebec, Cramahe informing Hills- borough ' that the French Canadians looked on the change "as a fresh proof of his Majesty's gracious intention to continue to them, so far as it can be done, their ancient usages and customs. " ^ But though such a decisive step had been taken, nothing further was attempted until the reception of the final reports from the Crown lawyers. These need not be con- sidered in detail, their main provisions, following the rec- I May 5, 1772. Can. Arch., Q. 8, p. 142. ^He continues: "His old subjects are no less pleased with this method of granting lands, for upon the terms at first required, they could never have settled them to advan- tage." The effects of the change on land occupation were certainly immediate and striking. Before the end of 1771 we find before the Quebec Council petitions for land under the new forms amounting to an aggregate of 60,000 acres (Can. Arch., Q. 8, p. 116), and in little more than a year from the publication of the new instructions no less than 56 petitions had been received for immense tracts (averaging probably not less than 100 square miles in extent), most of which are expressly asked for en seigneurie and all of which are undoubtedly so meant. Most of the petitioners, it is to be noted, were of the English speaking element. Apart from^ the questions of the intrinsic merit and suit- ability of the English and French tenures it will be seen that two reasons must have ex- isted for this preference of the English investors for the French form. The first was the fact that the aristocracy of the Province was founded on the feudal possession of the land ; the second, that it must have been at this time very clear that, whatever should be the ultimate form of government, the French laws and customs were bound to pre- vail in regard to landed property. It will be seen on the other hand, that this great success of the first step in the return to French institutions must have largely tended to confirm the intentions of the Home Government in that regard. Though it is to be noted that the Quebec Act of 1774 seems to attempt to regain in this matter some of the ground lost in 1771 ; for while the instruction of the latter date make no provision what- ever for the further use of the English form of grant or tenure, the IXth Art. of the Act is especially inserted for the legalization and protection of " free and common soccage." In connection with the later history of this matter of feudal tenures see Houston, Can* Const Docy p. 109, note 12. 460 BULLETIN OF THE UNIVERSITY OP WISCONSIN. ommendations of Carleton, being embodied in the Quebec Act. They were elaborate and able documents, marked by an enlightened spirit of justice and generosity toward the French Canadians. That the Act of which they were the basis was not the best settlement of the question is to be attributed rather to the misleading prejudices and short- sightedness of those to whom the Crown lawyers looked for information than to the integrity and ability of the latter. Having now reached the Act itself, it is necessary to note briefly what light is thrown upon this part of our en- quiry by the circumstances attending its passage. We find on the general point so little discussion that it is evident the opposition felt that the fundamental position of the gov- ernment was too strong to be assailed. But later, after letting the provisions through the Committee with only an incoherent protest, their energies revived on the favorable subject of trial by jury, and an amendment providing for op- tional juries formed the rallying point for the most vigorous eifort of the whole debate. The position of the govern- ment seems on the whole even here the stronger and more consistent; though it is difficult to escape a suspicion, (not upheld however by any specific evidence), that it was ani- mated somewhat by the remembrance of the obstacle the jury system had proved to government in the revenue cases of 1766 and 1769.' It was contended that the system was in- compatible with the French law and custom now granted;^ that the bill as only fixing the laws and customs, did not exclude juries, the whole constitution of the judiciary and the procedure being reserved to His Majesty ; ' and that the 1 See above, p. 396, note 3, for the misconception on this point. ^ To which the fiery and significant retort was made: "In God's name, what can be the views and what the operations of that bill with which juries are incompatible? What can be the purposes and designs to be answered by this bill? 1 have no pleasure in thinking of them ; I have too much decency to name them.' ' ( Cavendish, p. 26. ) 2 In which connection it is very noteworthy that the words as the rule in the clause, ' in all matter of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rule for the decision of the same," are asserted by on© speaker, (Cavendish, p. 282. The statement or the inference from it, was not contro- COFFIN THE PROVINCE OF QUEBEC, 1760-76. 461 present arrangement was intended only as a basis or start- ing point for future Provincial legislation, it being unwi^.e for the Imperial legislature to attempt such particular changes as could properly be made only as they were called for and by those upon the spot. This is evidently a strong position, and if at all upheld by later actions should go far toward freeing the government even from the suspicion I have referred to above. ^ That the profession of an intent of bringing in English law through Provincial enactment was sincere was shown by the action supplementary to the Quebec Act. In the Instructions to Carleton in 1775 for his guidance, especially verted), not to have formed a part of the original bill, but to have been inserted after its presentation to the Commons. This change was characterized by him as a " conces- sion," which, as not binding procedure to the French forms, left the way open for the later institution of the jury system. As a curious and somewhat perplexing offset to this however, it is to be noticed that the original bill is asserted by another opposition speaker, {Cavendish., p. 19), not to have said whether the laws of Canada or of England were to be resorted to. This must mean that the clausf^ in question had been entirely omitted, which would be incompatible with the above statement as to the absence of a part of it. In the lack of the original draft no light can be thrown on this. It will be remembered that the clause in question must have been considered by many what it can reasonably be contended to be, in large degree superfluous, so far as the establishment of the French civil law was concerned. That is, the revoking in the previous clause of all the acts of government by which the English law was contended to have been intro- duced, would alone, under the operation of the Capitulation and Treaty, leave the field in most respects fully in possession of the former code. 1 It seems worth while to note here more fully a rather remarkable incident in the his- tory of the jury system in the Province during the pre\ious period. March 9, 1765, a. Provincial ordinance was passed directing that for the future all juries should be sum- moned from the Province at large without regard to the vicinage of the action or crime. This remarkable abrogation of one of the fundamental principles of the system seems to have been occasioned by temporary circumstances ; and that it was sanctioned by the Home administration is shown by the fact that in the following November a Royal order was issued providing for an exception to it. No later direct reference to it can be found ; but that some instruction must have been sent in connection with the ex- cepting Ordinance is shown by the appearance on Jan. 27, 1766, of a Provincial ordinance repealing that of 1765. This is stated in the Council Minutes to be in accordance with the precedent of the exception taken. The repealing ordinance takes occasion to speak expressly of the general advisability of the facts being ascertained "by the oathes of good and lawful men of the neighborhood of the places where they had happened, according to the ancient and wholesome rules of the common law of England." The dates here should be compared with those of the English administrations and the whole matter considered in connection with the latter more flagrant overriding of the same principle in the case of the other colonies. 462 BULLETIN OP THE UNIVERSITY OF WISCONSIN. in future legislation, he is enjoined by the 12th Art. that while, in accordance with the spirit and intention of the Quebec Act, the Canadians "should have the benefit and use of their own laws, usages, and customs, in all contro- versies respecting titles of land and the tenure, descent, alienation, incumbrance, and settlement of real estate, and the distribution of the personal pro]Derty of persons dying intestate," on the other hand the council should consider, in adopting regulations to this end, "whether the laws of England may not be, if not altogether, at least in part, the rule for the decision in all cases of personal actions grounded upon debts, promises, contracts, and agreements, whether of a mercantile or other nature, and also of wrongs proper to be compensated in damages," especially where old subjects are concerned. Viewed in connection with the 13th Art., which recommends the taking of meas- ures to secure to the Province the benefits of the principle of Habeas Corpus,' this shows that the administration cannot be justly accused of being willing that the Government should revert entirely to the old principles and forms. It is apparently intended rather that only so much of the old law should be retained as could in any way be con- tended for as essentially bound up with the securing to the French Canadians that full enjoyment of their property which had been promised in the Capitulation and Treaty. That this limit was not adhered to was due in part to a necessary development of what was now done; in part to the confirming and extending of the main policy of the Quebec Act during and after the revolutionary war. d. Legislative Assembly. We have now reached the last 1 The address of Congress to the people of England, Sept. 5, 1775, especially complains tliat the English in Canada were "deprived of trial by jury and when imprisoned cannot claim the benefit of the habeas corpus act," The recommendation made by the Home government as to the Habeas Corpus was acted on in 1785 by a Provincial Ordinance modelled on the Act of Charles II. The jury system had been extended to civil cases to some extent by an ordinance of the previous year (Smith, Hut. Can. II, 169, 176), The delay in the case of both was owing probably in main part to the intervening American war. COFFIN THE PROVINCE OP QUEBEC, 1700-76. 463 important feature of the Quebec Act, — that withholding of a representative legislative assembly which was evidently considered by the revolutionary fathers as the main feature of the "arbitrary government" they viewed with such ap- prehension. That such an apprehension on this ground was most natural and reasonable cannot be denied; on the other hand it will appear from our examination that the skirts of the legislators can on this point be even more effectually cleared of guilt than on the others. I have already shown that the fundamental proclamation of 1763 and the later documents by which the civil government was established, promise and presuppose the early institution of a repre- sentative body, no notice being taken of the religious diffi- culties that lay in the way. The whole of the matter at this early stage is one of the strongest proofs of the un- considered and hasty character of the first steps taken with regard to Canada. In considering the latter phases of it our chief interest lies in the gradual development of Eng- lish governmental opinion on the point, and in the tracing of the causes which led to the determination of 1774 against representative institutions. The matter seems to have been first seriously taken up by the Board of Trade in that report of September 2, 1765,' which I have noticed above as recommending a faint degree of return to the old laws. In regard to an assembly we find in it, as is to be expected," a decidedly favorable tone. It states that " the situation and circumstances of the colony have not hitherto been thought to admit of a House of Rep- resentatives." but that the only objection they can find is the difficulty in regard to admitting Catholics as members; a difSculty however which they think might be obviated by such a division of electoral districts as would enable the Catholic electors to choose resident Protestants, there be- iCan. Arch., B. 8, p. 12. ' For it is to be remarked that the more the English system was abandoned and the French reyerted to, the more remote and unfitted would the idea of an Assembly beco m 464 BULLETIN OF THE UNIVERSITY OF WISCONSIN. ing no law denying the franchise to Roman Catholics.' Sxich a settlement they think would " give great satisfac- tion to your Majesty's new, as well as natural-born sub- jects; every object of civil government which the limited powers of the governor and Council cannot extend would be fully answered, and above all that essential and impor- tant one of establishing by an equal taxation a permanent and constitutional revenue. " This does not seem to us a very liberal provision, but probably in the then state of the laws and of public feeling in England and the colonies, it was thought the extreme limit that could be granted. The statement as to revenue brings to our notice a strong and constant ground for the establishment of representa- tive institutions, — the relief that could thereby be most easily afforded to the English taxpayer. The general course of events subsequent to this report I have considered elsewhere, and it would seem that the rec- ommendations concerning an Assembly were regarded as of subordinate interest, no reference whatever being appar- ently made to them. The language of the later instructions to Murray and Carleton, and the narrow legislative power to which the Government and Council continued to be re- stricted, show however that the idea of settled Government without an Assembly had not yet seriously entered the mind of the home authorities. Indeed the careful direc- tions concerning legislation with an Assembly at a time when it was recognized that the future constitution of the Province must be settled soon by Parliamentary enactment would indicate that the calling of an Assembly before that settlement was considered not improbable. The instruc- tions issued to Carleton in 1768 give minute directions for the framing of legislation "when an Assembly shall be summoned and met in such manner as you in your discre- tion shall think most proper, or as shall be hereafter di- ' Note that this is the idea finally adopted by the British party in Canada . COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 465 rected and appointed." They go on however to make more general provisions of such a character as to show that, while there was apparently no thought of withholding an Assembly, the relations with such bodies in the other colonies had inspired the determination to take spe- cial precautions in regard to new establishments. A sig- nificant article directs that in all enactments, -for the levying of money or imposing fines, forfeiture or penalties, express mention be made that the same is granted or re- served to us . . . for the public uses of the Province and the support of the Government thereof , . . . and that a clause be inserted declaring that the money arising by the operation of the said law or Ordinances shall be accounted for unto us in this Kingdom and to our Commission of the Treasury or our High Treasurer for the time being, and audited by our Auditor General. " * The 11th Article puts restrictions on legislation of an unusual nature or affecting British commerce, such laws not to go into operation till approved by the Home Government. The 12th, stated in the preamble to be occasioned by the practices of some of the other Provinces, makes provision against the evading, through temporary laws, etc., of the control of the home authorities. The 14th is concerned with the prevention of the assumption of too great privileges by members of the Assembly or Council, (said also to be occasioned by expe- riences with the other Provinces), and the prevention of self- adjournment of the Assembly, together with a very noticeable clause granting the Council " the like power of framing money bills as the Assembly. " The special import of these provisions will be noticed later. Following up the main inquiry, we find in the Canada Reportof Solicitor-General Wedderburn, December, 1772, the next important reference to the subject, and the one which * It is to be noted that a clause of the same tenor as this though not in quite the same language is in the instructions of 1765 to Sir H. Moore, of New York (Colonial OfBce Records, London). 466 BULLETIN OF THE XINIVERSITY OP WISCONSIN. sets forth most clearly the main ostensible grounds on which the Assembly was finally withheld. His conclusion is that it is at present whollj^ inexpedient to establish the institution in Quebec; for, although admitting that legislation could be proi^erly attended to only by such a body, he considers the difficulties in its formation too great to be overcome. Into such an Assembly the Roman Cath- olic French Canadians, in the capacity both of electors and of members, must or must not be admitted. To admit them as members would be a dangerous and unconstitutional ex- periment, and would lead to inexhaustible dissensions be- tween them and the old subjects;' while to exclude them would cause a feeling of ineciuality, and a fear of being exposed to injustice. On the other hand the question of the franchise was involved in equal difficulties; for the denial of it to the Canadians would leave the Assembly no more representative than a Council, while to extend it to them indiscriminately as landholders would be offensive to the upper class among them, and not beneficial to the lower. ^ 1 It will of course at once occur to the reader that in Granada, seven years before, the esperimeut had been tried. But, as is sliown above (pp. 444-7), the results had not been of a kind to encourage a repetition of it ; for governtaent there had been from that date involved thereby in the greatest difficulties, through just such " inexhaustible dissen- sions " as Wedderbourne must now have had in mind. The conditions further of Canada and Grenada were very different, the diuerence being of a kind to cause even greater diffi- culties to be apprehended in the former. The temper of the English party had already been shown. They were however but a very small factor as compared with the mass of the French Canadians; and the British government had therefore to bear in mind not only inevitable dissensions between the two races, but also the imperilling of the safety of the new Province with a discontented English element and a popular House almost entirely French. In Grenada there could be very little danger, and if trouble did arise it would be coniined to the Island and could scarcely have dangerous connec tions outside. The use of the word unconstilutional by Wedderbourne shows also perhaps that he had in mind the vigorous attacks made, (it is true on somewhat differ- ent grounds), on the Administration for the step in Grenada. ' In this latter sentence we see the weak point of an otherwise cogent statement. But it is to be remembered that Wedderbourne was preparing his report on information fur- nished by Carleton, one of the main features of whose policy was to represent the great importance of attaching the noblesse and maintaining them in their imagined influence over the lower classes. The idea as to the privilege of the' suffrage not benefiting the people was based on representations as to the ignorance and political incapacity of the latter, and the probability that under representative institutions they would only fall into the hands of demagogues or of English creditors. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 467 On these grounds Wedderboiirne advises that instead of an assembly, the legislative power should be granted with important restraints to a Council considerably enlarged and made more independent of the Governor. For these opinions the provincial officials were no doubt mainly responsible. Carleton was strongly set against an Assembly, as not adapted to the province and as not de- sired by the Canadians. Masferes also seems to consider a very liberally framed Council the best plan, (a purely Protestant Assembly being manifestly impossible), for some years to come. The latter's advice on this matter to the British party in Quebec is of much interest. Just be- fore the Quebec Bill was introduced he writes to the representatives of the party, (whose agent he was), that he is not yet sure of the sentiments of the Ministry on the point, but conjectures that they are of opinion that the province is not yet ripe for an assembly and are therefore inclined to establish instead a nominated Council with larger powers; that his own opinion is that such a Council would be better for the Province for several years to come than an assembly into which " Papists ' should be admitted; that the only objection he sees to a Protestant Assembly is the danger of offending the more numerous Catholics; but that if this difficulty be got over by some compromise, (as by granting the suffrage to the French Canadians), he would be very glad to see an assembly granted, " as indeed I suppose it would in that case be. " He proceeds then to advise, as in his opinion likely to be more helpful in the procuring of their object than any other step, that the petitioners should declare that they " conceive the Brit- ish Parliament to have a complete legislative authority over the Province of Quebec, and that such authority will continue after the establishment of an assembly," and that they are willing " that every member of such future assem- blies should be required to recognize the said supreme authority in every article whatsoever both of legislation 468 BULLETIN OF THE UNIVERSITY OF WISCONSIN. and taxation in the plainest and strongest terms before he is permitted to take his seat." Such a declaration he thinks, " would greatly tend to remove the prejudices now subsisting in the minds of many people in England against the erection of new houses of assembly in America, aris- ing from the conduct of the assembly in Boston and in other of the American Provinces in totally denying the supreme authority of Parliament. " ' Maseres it will be re- membered was at this time on the English Exchequer Bench, and probably in a position to know as accurately as any outsider could the attitude of the authorities on a subject in which he was so much interested. His was by all odds the keenest intellect prominently concerned in Canadian affairs at the time, and though occasionally his writings show signs of haste and want of balance as well as some intolerance and narrow legal habits of thought, a close study of the period will I think lead to the conclusion that he possessed a more accurate knowledge of Canadian con- ditions, and clearer and more far-sighted views as to the policy that should be adopted in regard to them, than any of his contemporaries. Though, as we see above, uphold- ing the supreme authority of the British Parliament, (his legal training made any other view almost impossible to him), he belonged in many respects to the more liberal and advanced school of thinkers on colonial Government.^ Cer- tainly his writings prove that he would have been one of the last to have countenanced any plan of aiming to restrict colonial liberty through the instrumentality of a despot- ism in Canada. The advice here given to the Quebec leaders shows indeed that he was of opinion that the Ministry was strongly prejudiced against Colonial legislatures. That this was correct there can be no thought of denying. But it is further shown here, as by many other references, that the Ministry was also of opinion that the unquestioned suprem- 1 Proceeding.^, etc., pp. 3o-S. ^ See his freeholder. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 469 acy of the British Parliament could be secured in the Act of settlement. In this advice Maseres, as the counsel of a political party, is merely recommending the further reas- suring of the Ministry by docile professions. In none of his writings, even in those of much later date than the Quebec Act, is there any reference to the possibility of that Act, (of which he was one of the most determined opponents), being dictated as regarded the withholding of an assembly, by the motives which had been attributed by the colonists. On the very eve of the new settlement we find him of the opinion that the only serious objections to such a body in the mind of the authorities, were on the one hand the danger of allowing full weight to the overwhelming French Catholic majority, and on the other the difficulty of making a Protestant Assembly palatable to that majority. Our most important source of information on this point, however, outside the Ministerial correspondence, is the debate on the Act itself in the House of Commons. And the main impression which its study leaves with us is that the opposition was very careful not to press for an im- mediate Assembly, and that the Ministry was very careful to base the withholding of it purely on the ground, (1) that it would be unjust to exclude the French Roman Catholics from it, and (2) that it would be unsafe to admit them. Att. Gen. Thurlow asserted without contradiction that no one had claimed that it was at present lit to give an As- sembly to Canada; and later in the debate. Fox admitted that he would not explicitly assert that it was expedient at that time to call one. Lord Beauchamp, a Government supporter, affirmed that no member had advocated the ap- pointment of a Council because of the conduct of the popu- lar assemblies in America, or had ventured to say that it would always be inexpedient to give the latter. Almost the last word on the subject was the following from Lord North; " That it is desirable to give the Canadians a con- 13 470 BULLETIN OF THE UNIVERSITY OP WISCONSIN. stitution in every respect like the constitution of Great Britain, I will not say; but I earnestly hope that they will, in the course of time, enjoy as much of our laws and as much of our constitution, as may be beneficial for that country, and safe for this. But that time is not yet come." It is evident on the whole that the opposition could not offer a solution of the difficulties that seemed to lie in the road, and that the Government, whatever secret motives may have influenced it, was quite able to defend its position by jioint- ing to these difficulties. The hints of the opposition as to the Bill giving evidence of secret hostility to liberty, were rather in reference to other features than to the more complicated and less assailable point of the withholding of representative institutions. It would be more correct to say that the Quebec Act deferred than that it denied an Assembly; for the wording used is, "whereas it is at present inexpedient; " as Lord North stated _ it, " That this establishment is not to be considered perpet- ual, is admitted in the bill itself. " There was not at any time any serious question of the permanent refusal to the Canadi- ans of representative institutions ; and the references to the period of tutelage and probation that should elapse before the granting of such institutions seem to presuppose a short one. It is indeed impossible to conceive that any administration could have expected that the country would long be satis- factorily governed by a Legislature which had no money powers whatever, beyond levying and applying of munic- ipal rates, and which was expressly prohibited from mak- ing effective, even for a day, any enactment which imposed a greater punishment than fine or imprisonment for three months. In fact the action taken in this particular must simply be looked upon as the shelving of a difficult sub- ject, — as a continuation of the policy of delay and com- promise which had marked all previous dealings with Can- ada. The Government had the positive assurances of Carleton, to whom it looked mainly for information, that COFFIN THE PROVINCE OF QUEBEC, 1700-76. 471 the Canadians did not want an Assembly, would indeed prefer not to have it; and the small English partj^ was thought as yet to have a weight in the country too small to require much attention. The period during which an Assembly was to be delayed was of course not clear to the mind of anyone; but it is possible that the Ministry wished first to have settled the difficulties to which the Assemblies in the other provinces were giving rise. In so far then it is probably true that the framers of the new constitution were affected as to this point by the general situation of things in America; but there seems to be no ground for going any further. The Ministry was encouraged to delay representative institutions because it had assured itself that the great body of the French Canadian people had no desire for these institutions, and could be safely and perhaps beneficiallj^ left without them for a few years to come; but there is no reason to suppose that this delay was intended as the first step of a system of oppression which was ultimately to extend to the other colonies through the instrumentality of the docile slaves that had been secured in Canada. It is undeniable indeed that as early as 1768 the Imperial authorities, while of the opinion that an Assembly should be constituted as soon as possible, had resolved to take stringent measures for the restricting of the money power of the same, and the keeping of it in unquestioned subordination to the British Parliament. But this is a phase of the subject which does not concern us here. It was simply the application to Canada, in a strictly constitutional way, of the general claims which gave rise to the American Revolution. I am not interested here to enquire whether the Imperial government went as far in Canada as it attempted to go elsewhere ; the question is rather, did it go farther? Did it attempt to take advan- tage of the political ignorance and docility of a long enslaved people for the purpose of upholding, in direct opposition to all the free principles of English govern- 472 BULLETIN OF THE UNIVERSITY OF WISCONSIN. ment, a set of conditions ■which might continue to be or might become, a menace and check to the other colonies? With regard then to the origins of the Quebec Act it need only be added that the above examination must at least show that if that Act were in any important degree due to the causes assigned it by colonial suspicion, the gov- ernment which orignated and pushed it through must have taken unusual pains to keep its reasons and its jourposes hid- den. But why should such concealment have been thought necessary with regard to the whole or any part of the en- actment? This same government had just carried through three Bills' of the most stringent and repressive nature, striking, to the popular view, heavier blows at American freedom and growth than anything contained in the Que- bec Act, and had found itself in these measures backed by a consistent and overwhelming support, both in Parlia- ment and throughout the country. Why should it now have scrupled to say that it was also taking measures of precaution in Canada? The government of that day was not an enlightened one, and would have been content to secure popular sujDport, without looking to the future; it might well have concluded, for example, that the pre- serving of the vast regions of the West from the en- croachments of the rebellious colonies would prove a pop- ular measure. Rather than concealed indeed, we might expeat to see this motive, if occupying a prominent posi- tion in the Government mind, put forward with promi- nence. We might expect to find it used to explain and de- fend the more doubtful parts of the measure, and especi- ally that apparent establishing of the Roman Catholic Church which so aroused the horror of the Continental Congress, and which was almost as unpopular in England as in America. On the other hand, if the secret design hinted at by the opposition and believed in by the colonists • With regard to Massachusetts. COFFIN — THE PROVINCE O? QUEBEC, 1760-76. 473 had existed, it is not to be supposed that it would have been alluded to by such able and prominent members of the party as Wedderbourne and Lyttleton. As to the more de- cided utterances in the Debates for the repeal of the act in 1775, both of the Opposition and of the Government,' they must be regarded as after thoughts. The Opposition was undoubedly inspired by the objections with which the Act had been met in America, and the Government was alarmed and exasperated by the increasing menaces there to Imperial control, and ready to use or threaten to use, any instrument that lay ready to its hand. 0. Application of the Act. In connection with the Act should be noted the instruc- tions that accompanied the new commissions under it, and some later official developments. The new instructions with regard to legislation had now a more definite basis in the elimination of the confusing element of a possible As- sembly, and we find the following changes ; (1) A restric- tion of the legislative period to the months of January, February, March and April; apparently for reasons con- nected with the climate and "the communication with Eng- land. (2) Suspension till royal approval of some classes of ordinances, with a prohibition of any commercial ordi- nance by which the inhabitants should be put on a more advantageous footing than any other of His Majesty's sub- jects, " either of this Kingdom or of the Plantations. " ^ Prohibition of all religious legislation. A clause with regard to the procedure of the new Council ^ had consequences of some interest which lead us a little beyond our period. It was the first part of the 2nd Article of the above instructions, and read: " It is further our will 1 Lord North here openly avowed his intention of arming the Canadians if necessary, for the purpose of reducine the refractory colonies to oh&Hence.—ParUatnentary His- tory, Vol. 18, p. 680. * This is perhaps worth noticing with regard to the question of the hostility of the measure toward the other colonies. 8 This consisted of 23 members, 8 being French Canadians. 474 BULLETIN OF THE UNIVERSITY OF WISCONSIN. and pleasure that any five of the said Council shall consti- tute a board of Council for transacting all business in which their advice and consent may be requisite, Acts of Legis- lation only excepted, (in which case you are not to act without a majority of the whole)." No clear state- ment is made anywhere as to a quorum.' This very indef- inite provision Carleton promptly availed himself of as might have been expected from his action in 1766,- and June 27, 1778, he sends home the Minutes of the Board of CounciP for the preceding eight months. These minutes do not ap- pear in the State Papers, but we have the similar ones from Haldimand, October 24, 1779, for the period from November 1, 1778, to September 25, 1779.* An examination of these latter shows that this "Board of Council " consisted of five members beside the Governor and Lieut. -Governor, all of whom were also members of the Legislative Council; that it refers to itself as a " Board," and holds meetings in 1778 on the 7th, 9th, and 30th November, and in 1779 on the 10th, 11th, and 17th May, the 7th and 12th June, and the 15th July,'' the Governor being present at all but two meetings. We have here evidently a quasi Cabinet, without Par- liamentary responsibility, invested apparently with all the executive powers of the Council though meeting so infrequently as to be but a slight check on the Governor." But though the wording of the instruction under which it 1 In the debate in the Commons the Quebec BUI had been attacked for the absence of any such provision ; which was replied to by Lord North by an assertion [Cavendish, p. 243), that it was intended, as shown by the words " tlie major part," that the quorum should be a majority of the smallest number (17) of which the Council should consist. But this clause had reference only to legislation, and the answer looks like an astute evasion of the point at issue. ^ In regard to his then treatment of the Council, see p. 338, note 2. ^Referred to by the Council Clerk as the "Privy Council." ^ These are referred to simply as the " Minutes of His Majesty's Council," the "Journal of the Legislative Council " for the corresponding session being sent at the same time. ^The corresponding "Journal of the Legislative Council" is for the session llth-16th January, 1779. ^ Who had the choice of the members. It looks as if, under Haldimand at least, this " Board " was used only as a pretense of complying with the constitutional requirements as to the " advice and consent" of the Council. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 475 was instituted would seem fully to admit of this interpreta- tion, (indeed it is difficult to avoid the conclusion that it was so intended, and had been procured to that end by the di- rect efforts of Carleton), it did not go unquestioned in the Col- ony. Early in the spring of 1778 we find Chief Justice Livius, (a somewhat hot-headed personage, who persisted in rais- ing other disagreeable questions and was a couple of months later suspended from his office by Carleton), dis- puting the constitutionality of the new institution, and de- manding, (April 12, 1778), definite written information as to Carleton's order selecting and appointing five members of His Majesty's Council to act as a Council to the exclusion of every other member. " The information desired was refused, as was also permission to read the minutes of the Privy Council. Nothing further on the head appears in the Colonial correspondence ; but that Livius successfully presented his point to the home authorities is shown by an additional and very definite instruction issued to Haldimand, (who had without new instructions succeeded Carleton in the Chief Governorship), on the 29th of the following March. This, after citing the portion of the 2nd Art. of Carleton's instructions above quoted, proceeds as follows : — " And whereas it is highly fitting and expedient that no misrep- resentation of our Royal will and pleasure in this instance should continue or obtain, we do hereby direct and require that this article shall not be understood to delegate author- ity to you our Governor to select or appoint any such persons by name as you shall think fit to make such Quorum, terming the same a Privy Council, or to excuse you from summoning to Council all such thereunto belong- ing as are within a convenient distance. On the contrary that you do take especial care to preserve the constitution of your said Province free from innovation in this respect;" to which end the Governor is to communicate this addi- tional instruction to the said Council. And by a second 476 BULLETIN OF THE TTNIVERSITY OF WISCONSIN. additional direction of the same date, evidently intended to reinforce the effect of the first, he is commanded not to fair in promptly communicating to the Council, "to the end that they may jointly with you . . . carry our inten- tions effectually into execiition," all instructions on subjects concerning which their advice and consent were made requisite. The tone and import of these orders are un- mistakeable; but the inner history is by no means clear, nor can the home administration escape from some suspicion of inconsistency or at least obscurity of policy. The repre- sentation of the original instruction as intended only to give directons concerning a quorum seems a hardly tenable position; as said already the entirely new forms and terms used, taken in connection with previous events, might well lead to the conviction that the new terms and forms were intentional and intended to provide for new things. Though on the other hand it is hardly conceivable that there was a fully formed intention of allowing an institu- tion to become established which would practically have the effect of taking away all executive voice from the Council and reducing it to a purely legislative capacity. Whatever the inner history, the effect is clear; the Coun- cil as a whole was restored to its old executive sphere with effective intimation that that sphere was not to be monopolized (at least oisenly), by the governor. And it must be acknowledged that this final action of the home executive does not support the charge that it was aim- ing to assimilate the Provincial government as much as pos- sible to the old French absolute form. Members of Council had to be residents of the colony, — a provision which seems a distinct intervention in the interests of self-gov- ernment. The same conclusion seems fairly to be drawn from the repetition in the Governor's instruction of 1775 ' A less emphatic injunction to tiie same eifect had always been a part of the instruc- tions, but Haldimand had disregarded it. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 477" Of the 35th Article of those of 1768, ordering that "every orthodox minister within your government be one of the vestry in his respective parish;" a direction which must be construed in connection with a consideration of the contem- poraneous position of vestries in England. The immediate results of the Quebec Act with regard to the official abuses which had been so complained of, were not very gratifying. The vacating of all commissions by it was intended, Carleton says, " to put a stop to all dep- utations, and to compel all who had offices here to reside and do their duty in person;" but August 10th, 1776, he complains that the same abuse had been introduced again in a great measure by royal mandamuses, (one person be- ing thus granted five offices), and that into these "still slide ... a string of terms, authorities, fees, perquisites and all that dirty train. " ' And in regard to the accompany- ing and still greater evil of excessive fees he writes later, (June, 1778), that although " the King had been pleased bountifully to augment the salaries of his servants in this • Province that they might live comfortably in their respec- tive stations without oppressing his people, " yet the mat- ter has become worse than ever, there existing in the Pro- vince " no rule or regulation for fees of offices, but each man for himself as guided by his own desire of gain, which of late has broken out with greater keeness than ever before. " ^ These minor developments are possibly worth more attention than I can here give to them. For they bear strongly on the general conclusion as to the Que- bec Act to which my investigation has led me, viz. : that the return to the old institutions in the degree thus ac- complished, was a step neither warranted by the necessi- ties of the moment nor by any principles of sound policy; but that the French Canadians would have been satisfied with a part of what the Act gave, accompanied with a full iCan. Arch., Q. 12, p. 119. •Ibid., B. 87, p. 192. 478 BULLETIN OF THE UNIVERSITY OF WISCONSIN. remedy of the really pressing evils in the uncertainty of the law and the abuses of its administration. The remedy for these abuses did not depend on the return to the old institutions; on the contrary we have seen that that return was not accompanied by it. Still less do we find it followed by the expected improvement with regard to the confus- ion and uncertainty of the law. The immediate and con- tinued result was in accordance with the mixture of aim and motive. To show this it is necessary only to refer to any respectable history of the period. It was not till 1777 that the civil courts were re-established in Quebec; we are informed by a writer who is almost contemporary, and who had had exceptional means of knowing the exact legal conditions, that an official investigation in 1787 dis- closed " such a scene of anarchy and confusion in the laws and in the administration of them by the courts as no Eng- lish province ever before laboured under; English judges followed English law; French judges followed French law; some of them followed no particular law, but decided according to what appeared to be the equity of the case. "' Christie writes of the year 1790, that it was complained that although the Quebec Act had been sixteen years in force, " the courts had not yet decided whether the whole of the French laws or what part of them composed the custom of Canada, as they sometimes admitted and some- times rejected whole codes of French law. "^ Garneau' groups together the whole period from 1760 to 1786 as marked by the same " exces de tyrannie et de d^sordres, " and states that the investigation into the judiciary by Dor- chester in 1786 showed the utmost uncertainty and confu- sion. More modern writers* accept this condition of affairs 1 Smith, History of Canada, II. 175. ^History of Lower Canada, I, 67. ^ Hist du Canada, III. 57. The statement is apparently endorsed by Lareau, Hist. Droit Canadian, II., 168. * See for example Kingsford and Bourinot. COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 479 without dispute. It is only intended here to point out that the Quebec Act has thus no defence, in at least this first stage of its life, from the standpoint of good government in the Province. This should be kept in mind as we pass to the special consideration of some of its more immediate disastrous effects, and as we reflect more generally upon its remoter results in the history of British North America. 480 BULLETIN OP THE nNIVERSITY OP WISCONSIN. CHAPTER VI. THE QUEBEC ACT AND THE AMEKICAN EEVOLUTION. A. The Revolution in the Province of Quebec. In the frequent extolling by British and Canadian writ- ers of the policy of the Quebec Act, the reference is of course to the supposed effect of that Act in confirming the loyalty of the French Canadians at the revolutionary crisis, and thus in preserving the newly-acquired territories from the grasp of the revolutionary movement. If the conclu- sions of the last chapter be well taken, it will be seen that, whatever the outcome of the measure, the inference as to policy is largely mistaken; that in other words, if the re- sults were as stated, it would seem a rare and hajjpy in- stance of immediate temporal reward for disinterested well-doing. It is not meant to deny that in the generally threatening conditions in America the firm attachment of the new subjects must have appeared to the home govern- ment as a very desirable thing; nor that the conviction of this desirability was probably a considerable factor in con- firming the final conclusions as to their treatment. Such a motive would be of necessity strongly present in the case of such an unknown quantity as the new acquisition of a segment of another nationality; I have simply tried to show that it was not accentuated by the contemporary existence of other colonial problems to the extent of appreciably affecting the policy adopted toward the new subjects. But further, I am obliged to take exception to the posi- tion of the upholders of the Act for other and stronger reasons. The credit for political sagacity assigned to the authors of that measure must be impugned not only on the ground that their work had little if any reference to the circumtances on which the credit is given, but also for the conclusive reason that the immediate results of the Act were COFFIN THE PROVINCE OF QUEBEC, 1760-76. 481 precisely the opposite of what had been anticipated and have ever since been assumed. It is the object of this chapter to show that not only was the Quebec Act not effectual in keeping the mass of the Canadians loyal, but that what effect it did have was in exactly the opposite direction. And before proceeding to this it should be noticed that in anticipating or extolling the results of the new settlement on the French Canadians there is curiously left out of sight by the upholders of the Act, any consid- eration of its effects either on the British in Canada or on the older colonies. Yet it is evident that for the true estimate of its policy, wisdom, or results there must be an accurate balancing. In view of the accompanying measures of the Government of the day in regard to the other colon- ies directly it is not surprising to find any thought of this entirely absent at the time. We however have no excuse for now neglecting it. The question of the influence, direct or indirect, in gen- eral or in particular parts of the country, of the new settle- ment of Quebec affairs on revolutionary development in the other colonies, is one of an interest so great and so closely connected with my work that I can only exjaress my regret at being unable at present to investigate it thoroughly. It must be left with a reference to the gen- eral classing of the Act with those of the same session in regard to Massachusetts Bay,- and to the emphasis so placed upon the measure in the early steps of the Con- tinental Congress. One remarkable bit of private testi- mony in connection therewith might also be mentioned. In the Dartmouth Papers we find a letter from one Joseph Reed to the Earl of Dartmouth, Secretary of State, dated Philadelphia, Sept. 25, 1774, and giving an account of the alarming proceedings of the Congress then sitting there. The writer proceeds: — "But what shall I say to your ' This has been universal among American writers. See Eoosevelt, Winning of the Wesi,l., for amove emphatic and recent position; and in connection the treatment above of Quebec boundaries, Chapter V, section B, a. 482 BULLETIN OP THE TNIVERSITY OF WISCONSIN. Lordship of the appearances in this country; what seemed a little time since to be a spark -which with prudence and ■wisdom might have been extinguished, is now a flame that threatens ruin both to parent and child. The spirit of the people gradually rose when it might have been expected to decline, till the Quebec Act added fuel to the fire; then all those deliberate measures of petitioning previous to any opposition was laid aside as inadequate to the appre- hended danger and mischief, and now the people are gen- erally ripe for the execution of any plan the Congress advises, should it be war itself. " ' Without delaying further on the direct influence in the revolting colonies of the general feeling with rega.rd to the Quebec settlement, it may be pointed out that the attitude of that section of the British party in the Province itself which I have above distinguished as closely in sympathy with what became the revolutionary element, is a fairly correct index to the gen- eral feeling. That element in Quebec had, in the circum- stances of the province, no legitimate or immediate share in the general colonial quarrel ; its grievance was the Que- bec Act purely; yet we find this a grievance of strength sufficient to drive it almost immediately into secret and as soon as possible into open revolt. In noting these consequences of the new settlement with regard to the English-speaking party in Quebec, we have first to observe its efiicacy in openly separating the more advanced and more moderate section.- The first step of 1 Hist. MSS. Commission, Report XI. Appendix, V. p. 362. I am indebted for the reference to the Report for 1890 of the Canadian Archivist, p. XSI. It will be noticed that the writer selects frora the various obnoxious measures of the late Parliamentary session, the Act in regard to Quebec, without any mention apparently of the more di- rectly threatening ones concerning Massachusetts Bay. His thought may probably be more distinctly seen in a later horrified reference to " The idea of bringing down the Canadians and savages upon the English Colonies." Of the writer I know nothing surely ; but he is possibly the same person to whom the Congressional Diary of Rich- ard Smith makes reference March 1, 1776, as the "Secretary to Gen. Washington," and as having his salary then raised by Congress on account of important naval duties. (See Amcr. Hist. Seview, April, 1896, p. 507.) * See above c. 3, for analysis of the English party. COFriN — THE PROVINCE OF QUEBEC, 1760-76. 483 the party was the drawing up of protests against the Act; in which mild proceeding however all apparently did not take part. For Carleton writes Nov. 11, 1774 to Dart- mouth, that the more respectable part of the English at Quebec, "notwithstanding many letters received from home advising them to pursue a different course," had pre- sented a dutiful and submissive address; but that in Mon- treal, "whether the minds of the latter are of a more tur- bulent turn, or that they caught the fire from some colo- nists settled among them, or in reality letters were received from the General Congress, as reported, I know not, cer- tain it is however that shortly after the said Congress had published in all the American papers their approbation of the Suffolk Co. resolves in the Massachusetts, a report was spread at Montreal that letters of importance had been re- ceived from the General Congress," and public meetings were held by the British there for the consideration of griev- ances. Thence the infection had spread to Quebec where the same course was pursued, though ' several discrete persons ' at both places had declined taking part. Since then there had been several "town-meetings as they are pleased to style them ; " though he speaks doubtfully, " as they have taken uncommon pains to keep their whole pro- ceedings from my knowledge." He describes these town- meetings and reports as all " breathing that same spirit, so plentifully gone forth through the neighbouring Prov- inces, " and speaks of the necessity of government guard- ing zealously " against the consequences of an infection, imported daily, warmly recommended, and spread abroad by the Colonists here, and indeed by some from Europe, not less violent than the Americans. " ' The immediate outcome of these proceedings were numer- ously signed petitions against the Act, addressed to the King and to both Houses of Parliament. There can be no 1 Can. Arch., Q. 11, p. 11. 484 BULLETIN OF THE UNIVERSITY OP WISCONSIN. doubt that the leaders here and from this time on were constantly in more or less direct communication with the American Revolutionists and were aiming to keep as closely in touch with their efforts as possible. The letters spoken of above by Carleton undoubtedly did represent some such connection, and a few days later (Nov. 18, 1774) ' Carleton transmits a copy of one which had fallen into his hands, and which probably was the communication referred to. And as it speaks of itself as being "our first public cor- respondence with the town of Quebec, " - it will be worth while to refer more fully to it. It is dated Boston, Oct. 10, 1774, and is a moderate and dignified letter of thanks by one David Jeilries, on behalf of the "Committee of Do- nations ■ of Boston, for a contribution (apparently of wheat)' " to relieve the distressed poor of this oppressed town, " and is addressed to " the Gentlemen of Quebec " through a trading firm named Minot, originally from Massachusetts. It speaks of the necessity of the union of all parts of the continent against oppression, and of the satisfaction afforded by the sympathy of the town of Quebec; refers to the policy of Great Britain in " creating divisions amongst them and using them as engines to beat down and destroy the liberties of each other, that so all may be an easy prey to tyranny and despotic power," — a policy to which "the eyes of the colonists are opened;" and expresses the hope of the continued support of " our friends in Canada, " with whom the writers will think themselves " happy in keeping up a brotherly correspondence. " This letter is anterior to any action of Congress in regard to Canada, and the com- munication now opened was constantly kept up.' The Amer- ican. Arch., q. U, p. 103. 'Ibid., Q. 11, p. 105. This expression does not by any means exclude, (rather in- deed implies) previons correspondence with individuals. ' Sent the previous 6th September. Congress had met for the first time at Philadel- phia the day before. * In the following November we find the Massachusetts Provincial Congress appoint- ing a committee (of which John Hancock and Samuel .4dams are members) , for the de- vising of means of keeping up a correspondence with Montreal and Quebec. John Brown was later appointed the agent of this committee . COFFIN THE PROVINCE OF QUEBEC, 1760-76. 485 lean portion of the party together with a few of European birth, (nearly all apparently at Montreal), undoubtedly from this time became active partizans of the Revolutionary cause, which they publicly embraced on the appearance of the American invading force. January 12, 1775, Carleton writes that the British subjects are " still exerting their utmost endeavors to kindle in the Canadians the spirit that reigns in the Province of the Massachusetts, " ' and the fol- lowing March 13," that some of them " continue suggesting into the minds of the Canadians an abhorrence for the form of government intended by the Act of last session," and that they have translated the letter of Congress and actu- ally imported 200 or 300 copies of it. I need not go into details of the intrigues carried on and of the various methods of communication employed. The point of main interest here is that the final split in the party becomes now very evident. An attempt was made at Montreal to have delegates elected to the Congress of 1775, and notwithstanding Mr. John Brown's explanation of the cause of its failure,* there can be no doubt that the great body of the English were decidedly opposed to the step on general grounds, and that the leading American element found itself at this point finally separated from its former constituency. We find in short that the main body of the " old subjects " remained, in spite of the Quebec Act, heartily loyal to English rule during this crisis; that their attitude was the same as that of the Tories, (the later United Empire Loyalists), in the other Provinces. They were probably willing to go farther in opposition to the government than their brethren in some of the other Prov- J Can. Arch., Q. 11, p. 110. See also anonymous letter from Montreal, Jan. 18, 1775. [4 Amer. Arch., I, 1164]. 2 Can. Arch., Q. 11, p. 129. ^This was to the effect that the English in Quebec could not join the non-importation agreement, as in that case the French would immediately monopolize the Indian fu trade. (John Brown to Boston Com. of Correspondence, March 29, 1775, 4 Amer. Arch., II. 24a) 14 486 BULLETIN OF THE UNIVERSITY OF WISCONSIN. inces, for they were under more irritating conditions ; ' but they were not willing to go to the length of taking up arms.* As to Quebec city we have very decisive evidence. I have above estimated the total male adult British population as hardly 600 in number and it will be a liberal allowance to grant the town of Quebec at this juncture half of these.' But the official returns of the number of the defending force includes, November 16, 1775, " 200 British militia, " * and May 1st, 1776, " 277 British militia. " ^ And that the efforts of these were not luke-warm is abundantly shown by letters of the officers engaged." Carleton himself testifies that their conduct was such as could hardly have been expected from men unused to arms.' It is, on the whole, safe to say that after the Spring of 1776 the British party in Canada was seemingly united in upholding the British cause. Almost the entire American element had departed with their retreating countrymen,* and the remainder of the party had apparently become reconciled to government and had been taken for a time into its full confidence. We find 1 And hence did go to the verge of sedition, and at first probably were somewhat luke- warm in the defense of the Province. 2 Their attitude at Montreal is probably accurately represented by a paper in the Ilald, Coll., (Hep. Can. Arch., 1888, p. 918,} which purports to be a proposal of terms of capitulation to Montgomery, and which is signed by English and French names. Ifc stipulates for the free possession and enjoyment of rights and religion, non-interference of soldiers with the inhabitants, and that they ahould not be obliged to take up arms against the mother country. Accompanying this is another document, unsigned, which protests against the terms of the capitulation as a treaty between two enemies, (whereas it ought to be a fraternal union), and expresses a desire for such a union with the other colonies. There can be no doubt that this latter is the voice of the few revolutionary sympathizers. Carleton writes Oct. 25, 1775, that on the attack on Montreal by the rebels a few of the inhabitants, " mostly colonists," had refused to take part in the defence. From which we are justified in concluding that the most of the English element had taken part. 3 Montreal was the chief trading centre. < Can. Arch., Q. 1, p. 344. »Ibid., Q. 12, p. 2.5. « See of Col. Caldwell in Transaclicrs Lit. and Hist. Soc. of Quebec. New Series, Part 8; and of Col. McLean, in Can. Arch , Q. 12, p. 39. ' Can. Arch., Q. 12, p. 7. To Germaine May 14, 1776. "The list of revolutionists sent home by Carleton May, 1777, contains 27 names and is apparently intended as a full one. Ibid., Q. 13, p. 106. COFFIN THE PROYINOB OF QUEBEC, 1760-76. 487 intrigues it is true carried on througli tlie whole war; but these were conducted in the main through the re-visits of those who had departed with the Americans, and were directed solely toward securing a hold upon the French Canadians. November 20, 1776, Carleton transmits loyal addresses from the British subjects of Quebec, and ex- presses himself as so well satisfied of the sincerity of the signers that there is " reason to hope that this part of His Majesty's Dominions may with proper arrangements be made the firm support of the British interests on this con- tinent. " ' But although they had refused to go the full length desired by their more violent early leaders, the English-speaking party continued unanimously opposed to the Quebec Act, and maintained a more or less vigorous agitation against it down to its partial repeal in 1791. We hear of hostile petitions presented in 1778, and again in 1784, and an examination of the language of these shows that the position of the main body continued to be pretty much as represented by Mas^res. With the introduction of the Loyalist element at the close of the war the party gained immensely in weight, and attention to its representations could no longer be delayed. But my main purpose in this chapter is to enquire into the results of the Quebec Act on the French Canadians. The gen- erally accepted view that they were fully satisfied with the Act and thereby strongly attached to the British connec- tion, is one which, without examination of evidence, pro- ceeds naturally from the belief that the measure was based wholly or mainly upon their expressed desires. I have shown above that this was not the case, for the reason that the self-constituted interpreters of these desires had drawn their conclusions from very narrow and mistaken observa- tion and very one-sided information. It is not surprising therefore to find that the results did not at all correspond with the expectations of the promoters of the measure. 1 Can. Arch., Q. 12, p. 238. 488 BULLETIN OF THE UNIVERSITY OF -WISCONSIN. Overwhelming evidence shows that the French Canadians were not faithful to British rule at this crisis, and that they were least faithful at the time when the Quebec Act might be supposed to have had most influence. Further evidence, equally strong, if not so great in quantity, shows that the effect of the Act on the mass of the people was one of alienation rather than conciliation.' It will be well to enquire first if there is any ground to expect these results, rather than fchose which have been so long assumed with such apparent reason. What do we know or what can we reasonably conclude as to the opinions of the mass of the people on the points which formed the mam subject-matter of the Quebec Act? Of the four main pro- visions which I have discussed above, two, — the extension of the boundaries of the province and the decision against J As to the first of these statements — the hostility to British connection as shown by support of the invading revolutionists,— I do not assume any attitude of discovery. The evidence when really looked at is too overwhelming to have altogether escaped the ob- server. The latest and strongest expression of the truth I find in Kingsford's History of Canada, (V. 439,— published since my investigation was made), who says in regard to Montgomery's appearance : — " It was a rare case when the Canadians showed disfavor to the invaders ; many joined their ranks." As will be seen later Mr. Kingsford how- ever is mistaken in representing this attitude of the Canadians as only temporary. And that some more detailed and circumstantial statement is necessary to affect the general error, is shown by the wide extent of its assertion and its constant repetition. Lecky says in regard to the American invasion : "The Canadians remained loyal to England . . . The contagion of New England republicanism had not penetrated to Canada;" the people "were especially indignant at the invasion." (IV, 215). In a test book of the University of Toronto it is asserted that, "While the American War of Independence was in progress the French Canadian people remained faithful to their allegiance and resisted aU the efforts of the Americans to induce them to revolt against the Eng- lish." (Bourinot, The Const itutional Hi&t. of Canada. The statement is repeated with emphasis in the same writer's Parliamentary Procedure and Practice, Revised ed. 1892, p. 13.) It is needless to say that French Canadian writers have loudly and unan- imously maintained the same position. A good example of the assertions of even the more enlightened and impartial of these is the following from Lareau {Hist Droit Can. II, 148): "Cette concession [i. e. the Quebec Act] de la part de I'Angleterre eut sa re- compense ; pendant que les colonies anglaises brisaient le lien colonial, le Canada, comptant sur la justice du vainqueur resta fiddle au drapeau britannique." It seems therefore the function of such a special study as this to do what the general historian of course cannot, viz., so circumstantially to present the truth as to place it forever be- yond cavil. The second of the above statements,— as to the alienating effect of the Act,— has not I think been heretofore made, much less enforced. COPFIN THE PROVINCE OF QUEBEC, 1760-76. 489 an Assembly,— we may conclude to have been practically matter of indifference to the average habitant. The pre- vious complaints as to the narrowing of the province had sprung from the greed of the trader or the historical pride of the educated; it was expressly testified by the most trustworthy of the witnesses before the Commons in 1774, that the mass of the Canadians neither knew nor cared any- thing about an Assembly, and that the few who did dreaded its establishment as likely to bring the Province into diflB- culties with the mother country. With regard to the third provision, — the reputed establishment of the Roman Cath- olic Church, — there is every ground for believing that the French Canadian would see in it only a dreaded and objectionable feature, — the re-establishment of the compul- sory tithe. As early as 1762 Murray asserts that the people "under sanction of the capitulation every day take an opportunity to dispute the tithes with their cur6s;"' and in the following year (as already pointed out), general petitions support his assertion that the people are not anxious for the continuance of the hierarchy, but will be content with the preservation of the priesthood as a devo- tional and educational body. Every year of British rule, there can be little doubt, increased this attitude of inde- pendence in regard to the once all-powerful church. It will be well in this connection to recall De Tocqueville's remarks in discussing the isolation of the peasant in Old France at this time. He points out^ that the clergy were the only members of the superior classes left in the coun- try, and that the cur6 would thus have become the master of the rural population "s'il n'avait et^ rattache lui-meme d'une facon si 6troite et si visible a la hi^rarchie politique; en possedant plusieurs des privileges de celle-ci il avait in- spire en partie la haine qu'elle faisait naitre;" a position which he emphasizes in a note which points out an ex- ^ Can, Arch., B. 7, p. 1. See aboTe, chapter 2, ^ Ancien JUgivne, B. II, u. 12, with note. 490 BULLETIN OF THE UNIVERSITY OF WISCONSIN. ample from the year 1767 " de la manifere dont les droits pecuniaires de clerg6 lui alienaient les coeurs de ceux que leur isolement aurait du rapprocher de lui." As I have elsewhere pointed out, there is no good reason for regard- ing the Canadian hahitant as so far removed from the state of mind of the peasant in Old France as has been generally- assumed. With regard to the civil code provisions of the Act (in connection with which must be considered the pre- vious reversion to the old forms of land tenure), it must be concluded that at the most the re-establishment of the old French civil law, in view of the fact that the peasant had never discontinued its use,' could have had very little effect on the average French Canadian. And when he con- sidered that the tithe had been made compulsory, and that the seigneurial method of land grant was again in full operation, it would be strange if he should not feel some apprehension with regard to the reappearance of other old oppressive relations connected with the land. I have shown above that there is every reason to believe that the relations between the seigneur and the habitant, even early in the English period, were practically identical with those in old Prance, and that no part of the changed conditions had been so early and fully appreciated by the latter as their release from their former military and judicial sub- jection. In their ignorance of the real scope of the new measure they would naturally be apprehensive of the re- viving of this old burden ; and it is evident that before as after its enactment its English opponents took full advan- tage of their fears and ignorance. Very little direct evidence has been found on this point, and still less that is free from suspicion. The British party, of course, before and after the Act, represented it as undesired and resented by the mass of the people. This contention is not to be regarded as weakened by the fact that a memorial and petition in favor of its main provis- 1 See above, pp. 352-7. COFFIN — THE PROVINCE OP QUEBEC, 1760-76. 491 ions were presented in their name to Parliament ■while deliberating on the measure.' For Masferes' statement that these are not really representative may be easily conceded in view of the fact that of the fifteen signa- tures, most are those of members of the noblesse.^ A movement of more importance and interest has been already referred to in the account of the English pro- ceedings prior to the Act; it culminated in an offer from some French leaders in Quebec to join in the English jpeti- tion for an Assembly provided that this should contain a request for the admission of Catholics to the House. ^ On the rejection by the English of this condition the matter dropped. As indicating the attitude of a section probably larger in number and certainly more nearly in accord with popular feeling than the noblesse, this incident is of great interest; * but it is still of little value in the determi- nation of the question as to the views of the mass of the people on the points at issue. The very contradic- tory evidence given before the Commons in 1774 by the Provincial officials is no more helpful; it being evident that Masferes and Lotbinifere represent a small advanced portion of the traders and professional men, (perhaps also of the noblesse), and that Hey and Carleton speak for the clergy and the bulk of the noblesse. With regard to the first reception of the Act by the people we have equally 1 For these see Mas^res, Account of the Proceedinr/s, pp. 111-31. 2 See on this point, Carleton's evidence before Commons. 1774. Also English petitions for an Assembly, Dec, 1773 (Can. Arch., Q. 10, p. 26). A curious letter in 1776 from one M. Pelissier to the President of Congress describes the signers of the French petition as '* qnelques adulateurs [i. e. of Carleton] et quelqes ignorans fanatiques des anciennes contumes." (4 Anier, Arch. IV., 596.) 3 See Mas^res, Account of the Proceedings, pp. 3-40. < It is noteworthy also as indicative of the rise of a new set of native leaders (distinct from noblesse and clergy). The lawyers and others of the lay educatsd class who bad rapidly acquired some insight into English political ideas are evidently taking the place that had been opened up to them by the substitution for the feudal regime of the freer spirit of the English institutions. The new attitude is probably represented by the evidence of M. LotbiniSre before the Commons in 1774 ; and the desire for forms of Eng- lish self-government was undoubtedly inspired by the hope of thus giving effect to the great numerical preponderance of the French. 492 BULLETIN OF THE TNIVERSITT OP WISCONSIN. conflicting statements. It was not to go into force till May, 1775, and it is doubtful whether it was published in the province during 1774; so that statements as to public opin- ion during the latter year probably can have reference only to the few who beforehand would become "intelligently ac- quainted with its provisions. September 20, 1774, Carleton writes to Gage of the "joy and gratitude and fidelity" of the Canadians in consequence of the late Act,' and three days later he reports to Dartmouth the great satisfaction of all classes of the French Canadians.^ Nov. 11th ' he again speaks of their gratitude and represents their uneasiness at the measures which the old subjects are taking against the Act. But it is noticeable that he here refers to the noblesse and clergy as being apprehensive that some of the Canadians through ignorance and from their trade relations with the English, may be enticed to join the latter in their move- ments; especialy as they are being told that the late Acts will reduce them to a state of slavery and oppression. At the same time he sends addresses, (three, from Montreal, Quebec, and Three Rivers),* expressing the gratitude of French Canadians ;'addresses which beyond much doubt are from precisely the same quarter as the petitions immedi- ately preceding the Act. The one from Quebec speaks apologetically of fellow-countrymen who " par des circon- stances malheureuses " may have been drawn into common action with the English discontents. February 4, 1775,' Carleton writes further to Gage that "all that have spoke or wrote to me upon the subject express the most grateful sense of what has been done for them; " but at the same time uses language in regard to the habitants which seems to show that he is beginning to perceive that the satisfac- tion and gratitude does not extend to them. And the indi- 1 Can. Arch., Q. 10, p. 123. 2 Ibid., Q. 10. p. 120. 3lbid., Q. 11, p. 11. < Ibid., pp. 17-23. 'Ibid., p. 290. COFFIN THE PROTINCE OF QUEBEC, 1760-76. 493 cations of this soon became so unmistakeable that even his obstinate prepossessions could no longer resist. Of the suspicious attitude which in all probability the average French Canadian had maintained in regard to the re-establishment of old oppressive institutions the English discontents had been quick to take advantage, magnifying the provisions which might seem likely to operate for the revival of old burdens. "We find Carleton writing Novem- ber 11th, 1774,' that the people are being told the most ex- travagant stories of the arbitrary power put into the hands of the Governor and noblesse; and the French addresses of thanks of the same month (quoted from above), evidently imply that these representations were already perceived to have had effect. The most emphatic testimony on this matter comes from Maseres.' Though prejudiced, and de- pendent for information on those who were more so, still his assertions here are so amply supported by other evi- dence and by later events that we cannot neglect them. He gives a letter to him from some of the English in the province ' which asserts in the most positive terms that " great numbers throughout the Province have oifered to join us in petitioning for the continuance of English laws, and disavowing their consent and knowledge of the peti- tion which was sent home last year in their names, though signed only by a few persons in the province;" but that they have been prevented from so joining by the interven- tion of their superiors, who told them that if they did so they would be deprived of their religion. More reliable proof of the attitude of the habitant is furnished in the fears entertained by those who best knew them. These are shown in a letter which was circulated among them by the clergy in December, 1774, and January, 1775, attempting to reas- 1 Can. Arch., Q. 11, p. 11. ^ See Additional Papers, 2 For letters of thia tenor and probably from the same source, see Almon's Remembrav,' cer, 11 (1776), pp. 13CHM. 494 BULLETIN OF THE UNIVERSITY OF WISCONSIN. sure them on those provisions of the Act which were sup- posed to have alarmed them.' The new constitution went into force in the Spring of 1775 and the hostility of the people to it seems to have steadily increased. Two curiously roundabout and discon- nected pieces of evidence deserve perhaps esjjecial notice. One is an official intimation from St. John's Island, of Oc- tober 13, 1775, to the effect that private letters have been received there from Quebec with the information that " the Canadians have absolutely refused to join us, assigning for reason that the English law is taken awaj' from them, and that as the King has broken his word, they have a right to do the same. " " The other is a letter of June 20, 1775, from two New Hampshire agents to Revolutionary leaders in that Province, reporting the information as to the disposi- tion of the Canadians that has been gathered by Indian scouts. This is to the effect that the Canadians are wait- ing anxiously for the appearance of the Colonial forces; " they determine not to take their old law again, if we will but joyn with them, they will joyn with us."* In August, 1775 Chief-Justice Hey writes from Quebec to the Lord Chancellor that His Lordship would be astonished to learn " that an Act passed for the express purpose of gratifying the Canadians and which was supposed to comprehend all that they either wished or wanted, is become the first ob- ject of their discontent and dislike;" the general wish be- ing for English laws in peace and English ofScers in war.' Thomas Gamble of the provincial commissariat department writes from Quebec September 6, 1775, to the Deputy Quartermaster General in emphatic language concerning lAnoymous, but said by Mae^res to be supposed to have been written by one of the Quebec Clergy. See Maserey, Account of the Proceedings, pp. 264-75. 2 Gov. Legge to Gen. Howe, Hist. Mas, Comm. llth Report, App. V., p. 388. ' y. H. I'roc. Papers, VII, 525. 'Can. Arch., Q. 12, p. 203. Evidence stronger than this it would be difficult to imagine. For it will be remembered that Hey, who now laments the failure of the Act, had in large measure supported Carleton in the representations on which it was founded . COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 495 the ill-disposition of the people. "In short, the Quebec Bill is of no use; on the contrary the Canadians talk of that damned absurd word liberty. " ' It is only however when we come to the test of Canadian feeling which was afforded by the revolutionary invasion of 1775-76 that we reach firm ground in this matter. Prev- ious to that event we have no definite references to French Canadian opinion in regard to the troubles in the other col- onies. About the quarrel on its merits the average Canadian knew nothing ■' and cared little if anything. On the other hand the revolutionists had from the beginning seen the im- portance of Canada, and begun to guard against danger from that quarter.' I have already narrated the earliest trace that appears of connection between the revolution- ists and the English party in Quebec. A few days later, (October 26, 1774), the first Continental Congress, having drawn up those Addresses to the people of Great Britain and to the individual colonies in which the Quebec Act fig- ured prominently as a grievance, adopted one also " to the inhabitants of the ' Province of Quebec. ' " This is a skill- fully drawn paper, largely occupied with an explanation of those principles of English constitutional liberty of which the Canadians had been defrauded by the Quebec Act; ad- juring them to disregard religious differences, (for " the transcendent nature of freedom elevates above all such low-minded infirmities,")* and by choosing delegates to the ensuing Congress to join in heartily with the other colon- iiAmer.Arch.,U1.9m. * See MasSres' Freeholder, written for their instruction on this assumption. ' I have not found anywhere any connected statement of the early steps of Congress and other revolutionary authorities in regard to Canada, and have therefore at- tempted briefly to supply it. * The address to the people of Great Britain, which had referred to the Roman Catho- lic religion as having "deluged your island in blood, and dispersed impiety, bigotry, persecution, murder, and rebellion throughout every part of the world, " had been adopted five days before. It is probable that the elevating nature of freedom has rarely operated with greater celerity. The good work went on apparently ; for the Instructions of Congress to the Commissioners sent to Canada in 1776 ordered them to assure the clergy of " the full, perfect, and peaceable possession and enjoyment of all their estates." {iAmer. Arch., V, p. 411.) 496 BULLETIN OP THE UNIVERSITY OP WISCONSIN. ies, who had determined to " consider the violation of your rights by the act for altering the government of your Province, as a violation of our own. " ' Of this diplomatic document a translation was ordered to be made, and 2,000 copies to be struck off for distribution in Quebec by means of the delegates from the bordering Provinces. That it had been disseminated in Canada at least as early as March of the following year is shown by Carleton's correspon- dence;' and that a revolutionary agent had already by that time met with much success is shown by the letters of John Brown.' Definite information of the results first appears from the official side in a letter of secret intelli- gence to Carleton from Montreal of May 6, 1775, stating that on May 4th most of the English residents of the town had assembled and been " harangued " by a " New Bng- lander, " the object of the meeting being supposed to be, " to choose two deputies to send to the Congress to be held at Philadelphia on the 10th of next May. " On the following day the same agent reports that the attempt had failed, through the backing out of the most of the English.* August 14, 1775, Carleton writes to Dartmouth of the con- tinued efforts of the Congress to corrupt the Canadians, and encloses a copy of new letters from it and from the New York Legislature. But before this, Congress had resolved to make a mili- tary demonstration against Canada for the double purpose of seizing the important points, and of establishing con- nections between the revolutionary forces and the disaf- fected Canadians. The first movement was one by Arnold by way of Lake Champlain in May, 1775, and on news of it Carleton called on the noblesse for assistance in raising the militia. The result was a sudden and complete shattering 1 Journals of Congress, I, 40-5. 'Can. Arch., Q. 11, p. 129. 'See especially 4 ^mer. Arch., II. 243, where Brown speaks of the peasantry having been worked upon, "chiefly in terrorem;" by which must be meant misrepresentation as to the Quebec Act. See above, p. 485. COFFIN THE PROVINCE OF QUEBEC, 1760-76. ' 497 of the expectations based on ttie Quebec Act. Carleton had wished to see revived the old feudal military condi- tions, and seems to have believed that under the new set- tlement they did again exist; and his attitude, in connection with the consequent efforts of the noblesse, at once con- firmed the fears of the people as to the meditated re-estab- lishment of all the obnoxious powers and privileges of their old masters. This conviction the latter seem to have done their best to foster; for Chief Justice Hey writes to the Lord Chancellor in August, 1775, of the just offense given to the people by the elation of the noblesse over the sup- posed restoration of their old privileges.' After speaking further of the misrepresentations which had been made to the Canadians by the English as to the results of the Act, Hey remarks that as the restraint of the sharp authority by which they had once been controlled was now removed, they break out " in every shape of contempt and detesta- tion of those whom they used to behold with terror, and who gave them, I believe, too many occasions to express it." Nothing is more certain than that the habitants univers- ally resisted from the first every means of influence that the seigneurs brought to bear upon them, maintaining firmly that the latter had no military authority and that all they could demand of their tenantry was the payment of seigneurial dues. In some cases the noblesse did not es- cape physical violence." As early as June 7, Carleton writes to Dartmouth of the utter failure of the noblesse to induce either the Canadians or the Indians to take up arms. The minds of the people he says, are poisoned with lies, > Can. Arch., Q. 12, p. 203. See also Burgoyne to Germaine, May 14, 1777. (Ibid., Q. 13, 107) for opinion that the attitude of the Canadians is largely due to the unpopularity of the seigneurs. We find it further asserted in a private letter of the time from Montreal, that though the people were in general averse to being commanded by the noblesse, they say they will go anywhere under British olEcers. (July 10, 1775. 4 Amer. Arch., II, 1623.) ^ For circumstantial accounts of several of these occurrences see letters from Quebec jn MasSres, AdditionalJPapers, pp. 71-83. Alsoon the general attitude of the Canadians. Xbid., pp. 91-111, 147-52. These letters of course (as well as Mas^res' comments on them) are partisan, and for that reason I have not brought them forward more prominently ; but in view of other evidence, I have no doubt as to their practical truth and accuracy. 498 BULLETIN OF THE UNIVERSITY OP WISCONSIN. and the clergy and noblesse have lost much of their old influence.' The 20th of the following month one of the military officers at Quebec writes to a brother officer that not a single Canadian had yet been raised and that there was no hope of forming a militia.^ August 14 Carleton in- forms Dartmouth that though the militia has been organ- ized in some of the parishes, "the difficulty I have found in proceeding so far convinces me until their minds change, it will be inadvisable to attempt assembling any number of them, except it become absolutely necessary to try that measure for the defence of the Province, and that there is no other resource whatever."' The Americans had now temporarily retired, leaving it fully understood that they would return shortly in greater force; and from this time on Carleton strained every nerve, with the aid of martial law, to organize a defence. His official correspondence furnishes us with the best informa- tion we can look for of the actual conduct of the people in this emergency. And we cannot hesitate to accept this evidence at its full import, when we consider that it is the disappointed confession of a man who had constantly rep- resented that people in another light, and who was mainly responsible for the measures which were now proving so ineffectual. As of precisely the same nature we give with his also the reports of Cramah^, who commanded at Que- bec while Carleton was defending Montreal. September 21, 1775, the former writes from Quebec that " no means have been left untried to bring the Canadian peasantry to a sense of their duty and engage them to take up arms in defence of the Province, but all to no purpose, " though the better classes had done their utmost " to reclaim their infatuated countrymen;' and that Canadians are actually serving with iCan. Arch., Q. 11, p. 164. This is apparently Carloton's first perception or at least confession of the latter fact. It is significant that two days later he proclaimed martial law throughout the Province. 'Rep. Can. Arch., 1885, p. 177. 'Can. Arch., Q. 11, p. 223. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 499 the Americans in every quarter.' On the same day Carle- ton writes from Montreal to the same eilect, adding that "the rebels have been more successful with them [the habitants] and have assembled them in great numbers, . . . and with the assistance of the Canadians have invested the forts. " ^ October 25, 1775, he reports that an attack made on the town by the rebels, of whom two-thirds were Cana- dians, had been repulsed, and that the success had had for a moment a good effect on the minds of the inhabitants of the surrounding country, who on the eve of the assault had resisted the orders to have all ladders in the suburbs brought in. Taking advantage of this effect, he says he had assembled some 900 militia (various other detachments coming in had been attacked and forced to disperse by other parishes, the seigneurs who had raised them being taken prisoners), but that these are now disappearing thirty and forty anight.^ November 5, 1775, he complains that his efforts have been frustrated by " the corruption and I may add by the stupid baseness of the Canadian peasantry, who have not only deserted their duty, but numbers of them have taken arms against the Crown. "'^ A few days later Cramah^ sends news from Quebec, (then invested by Montgomery), of the inadequacy of the defending forces, the militia he has having with difficulty been brought to mount guard; adding that the rebels have on their side the Canadian peasantry." Not long after he says that the enemy without is not so formidable as that within, and that even if the town be kept 20 battalions will be needed to re-capture the country.* On the 22nd November Carleton, (who had returned to Quebec on the fall of Montreal), writes of the " blind perverseness '' and " unprecedented defection" of the people, "without even pretending the least cause of complaint. ' However with the defeat of 1 Can. Arch., Q. 11, p. 219. MayS, 1776. Ibid., p. 1237. COFFIN — THE PROYINCE OF QUEBEC, 1760-76. 519 Schuyler, April 1, 1776.' After making some strong state- ments about the changed attitude of the Canadians, he pro- ceeds to give reasons therefor: "Their clergy have been neglected and sometimes ill-used; .... the peasanty in general have been ill-used; they have in some instances been dragooned, with the point of the bayonet, to furnish wood for the garrison at a lower rate than the current price ; " half of the imperfect certificates given in payment being moreover later dishonored by the Quarter-Master General. Hazen encloses as evidence of his representations a letter from one Captain Goforth of the Continental force, com- manding at Three Rivers, detailing outrages committed by the troops on their march to Quebec- " A priest's house (Goforth writes), has been entered with great violence, and his watch plundered from him. At another house they ran in debt about 20sh. and because the man wanted to be paid, run him through the neck with a bayonet. Women and children have been terrified, and forced, with the point of the bayonet, to furnish horses for private soldiers without any prospect of pay. " That these complaints are accepted as just by Schuyler, or that he had abundant other evidence, is shown by his statement to Washington shortly after, that " The licentiousness of our troops, both in Canada and in this quarter, is not easily to be described; nor have all my efforts been able to put a stop to those scandalous excesses. " ^ He had previously expressed to Congress his apprehension " that the imprudent conduct of our troops would create a disgust to our cause in Canada; it even hurts it in this colony."* These representations are thor- oughly supported by the investigations of the Com- missioners of Congress, whose statements as to the non- 1 4 Araer^ Arch. iV. 869. Reprinted in Lossing's Schuyler, II. 46-7. ' Ibid, v. 871, The letter is undated but cannot be later than March. It will be noticed that from the reference to the march to Quebec, this seems to show a high degree of lawlessness and violence in the troops early in the expedition, when there was little or no excuse through the pressure of want. 'iAmer.Arch.,Y. 1098. (From Fort George, AprU 27, 1776.) * To President, April 12. (.Ilnd., p. 868.) The colony referred to is New York. 520 BULLETIN OF THE UNIVERSITY OP WISCONSIN. fulfillment of pecuniary obligations to the inhabitants have been already referred to. May 8th they write from Montreal that the Canadians " have been provoked by the violences of our military, in exacting provisions and services from them without pay, — a conduct towards a people who suf- fered us to enter their country as friends that the most urgent necessity can scarce excuse, since it has contributed much to the changing their good dispositions toward us into enmity, and makes them wish our departure. " ' Congress did not need this report to be convinced of the truth of the charge, for we find it on April 23 resolving, " That the Commissioners of Congress to Canada be desired to pub- lish an address to the people of Canada, signifying that Congress has been informed of injuries oifered by our peo- ple to some of them, expressing our resentment at such misconduct." Matters, however, evidently did not improve; for May 10, 1776, Gen. Sullivan writes to Washington that " the licentiousness of some of the troops that are gone on has been such that few of the inhabitants have escaped abuse either in their persons or property. . . . Court-martials are vain where officers connive at the depredations of the men. "^ In the following June Washington expresses his conviction that " many of our misfortunes [in Canada] are to be attributed to a want of discipline and a proper re- gard to the conduct of the soldiery. " " A few days later (June 21, 1776), an investigation was ordered by Congress. The report of the investigating committee on the follow- ing July 30, placed as the first of the causes of the failure the short terms of enlistment, which had made the men 1 4 Amer. Arch., V. 1237. ^Ibid., VI, 413. Sullivan writes from Albany on his way tx> Canada, and evidently is inspired by the traces of depredations he has come across. This is in New York there- for; but it may weU be imagined that conduct would not improve in the enemy's coun- try. The statement of Sullivan probably throws light on an entry in the Diary of Richard Smith (Amer. Mist. Rev., April, 1896, pp. 510). Under date March 8, 1776 it is here noted that "Accounts transmitted from Canada by Col. Eazen of the damages done to him by our soldiers who had destroyed or damaged his house at St. Johns and killed his cattle &c. were referred to a committee." = To Sullivan. Ibid., p. 927. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 521 "disorderly and disobedient to their officers," and had pre- cipitated the commanders " into measures which their prudence might have postponed, could they have relied on a longer continuance of their troops in service."' There would seem therefore abundant ground for the conclusion that the colonial forces had conducted them- selves in such a manner as to expose to serious maltreat- ment even the most friendly portion of the Canadian people. The conviction will be strengthened by a glance at some evidence with regard to the general character and conduct of the rank and file of the troops; evidence which shows clearly that the invading force as a whole was, throughout the latter part of the expedition at least, afflicted with a degree of disorganization and disaffection fitted to deprive it of all claim to respect on the part of the Canadians, and to make misconduct inevitable. Very much allowance is of course to be made for the unavoidable defects that attach to a militia, and that were bound to be magnified in troops enlisted and serving under the conditions of the early part of the war. The fatal use of the short enlistment plan was something for which Congress was responsible; the lack of harmony and union as between troops of different colonies was certainly to be looked for.' 1 Journal of Congress, v. 289. I baye thought it necessary for my purpose to detail some of the more striking evidence on this point. But that the conduct in question has not been without recognition even from partial writers, is shown by Bancroft's state- ment that, " The Canadian peasantry had been forced to furnish wood and other arti- cles at less than the market price, or for certiJicates, and felt themselves outraged by the arbitrariness of the mnitary occupation." CIV, 376.) "* An indication of the existence and nature of this difficulty in the matter lam treat- ing is afforded by the following Resolution of the General Assembly of Connecticut, Oct., 1775. (.Col. Records of Conn., XV, 138.) " This Assembly being informed that cer- tain questions and disputes had arose amongst the troops lately raised by this colony . . . . and now employed against the ministerial forces in Canada, which disputes, tin- less prevented, may be attended with unhappy consequences. Therefore it is hereby re solved by this Assembly thatalltheTroops . . . . lately raised by this Colony . . . are and shall be subject to the rules, orders, regulations and discipline of the Congress of the Twelve United Colonies during the time of their inlistment." See also as to Montgom- ery's difficulties, Lossing, Schuyler, I. 426-7. Under data Dec. 18, 1775, a British officer in Quebec writes that news has just been received that " the besiegers were greatly dis- 522 BULLETIN OP THE UNIVERSITY OF WISCONSIN. These features are found in all the early operations of the Continental troops, and the special difllculties and disasters of the Canadian expedition were sure to make them more manifest and injurious. But that in this expedition there was also displayed other and more serious and fund- amental defects in the character and bearing of the men is hardly to be denied. The impartial observer is forced to the conclusion that the word mercenary would not on the whole be an unjust appellation. It will be remembered that the word occurs in the exceedingly strong language used by Washington himself at this time about the force under his command. He writes to Congress in the latter part of 1775 that " Such a dearth of public spirit and such a want of virtue .... I never saw before ; . . . . such a mercenary spirit pervades the whole [force] that I should not be at all surprised at any disaster that may hap- pen. " ' And if this could be said of the troops assembling for defence in the heart of the country, we cannot be sur- prised to discover the same unsatisfactory condition in offensive operations of such magnitude and difficulty as those in Canada. That the spirit in the Canadian expedition was unsatis- factory in the extreme from the beginning is shown clearly in Montgomery's statements. October 31, 1775, he writes: " The New England troops are the worst stuff imaginable for soldiers. They are homesick; their regiments have melted away, and yet not a man dead of any distemper. There is such an equality among them, that the officers have no authority, and there are very few among them in whose spirit I have confidence. The privates are all gen- Batisfied with their General's proceedings, and that their body of men appears bacli- wood in doing the duty required of them." C " Journal of principal occurrences during the seige of Quebec." Edited by Shortt, London, 1821.) Col. Trumbull (as quoted below), in describing the remains of the expedition as he encountered it on the retreat, says that there was "neither order, subordination, or harmony; the officers as well as men of one colony, insulting and quarreUing with those of another." (ReiniiiiscenceSy p. 302.) 1 Sparks, Washington, III, VS. COFFIN THE PROVINCE OF QUEBEC, 1760-76. 523 erals, but not soldiers; and so jealous that it is impossible, though a man risk his person, to escape the imputation of jealousy. " ' The most strenuous efforts were found neces- sary to induce the troops to enter at all upon the enter- prise; it seems most probable that, but for the general belief in the weakness of the enemy and the warm support of the French-Canadians, it would have been found im- possible. The force steadily diminished; on the 20th of November, Schuyler writes to Congress that "The most scandalous inattention to the public stores prevails in every part of the army The only attention that engrosses the minds of the soldiery is how to get home the soonest possible. " ^ With this temper it was to be expected that the force would diminish even more rapidly under dis- aster. On the receipt of the news of the failure of Mont- gomery's attack on Quebec, Gen. Wooster writes to Schuyler from Montreal: "Many of the troops insist upon going home, the times of enlistment being out. Some indeed have run away without a pass or Dismissal, expressly against orders. I have just been informed that a Capt. Pratt of the 2nd Battalion of Yorkers has led off his Com- pany for St. Johns. " ' There is some direct testimony as to the behaviour of the troops at Quebec in the journals of survivors. In that of Henry we have under date December 12 an account of the sacking by the troops of the house of a prominent Canadian near the town, and the evil results on the soldiery. "Though our Company was composed of freeholders, or the sons of such, bred at home under the strictures of re- ITo Schuyler, from St. Johns. See Lossing, Schuyler, I. 427. The justice of these and similar complaints, Lossing says, " impartial history, enlightened by facts, fully con- cedes." * Lossing's Schuyler, I. iQ&. It is but fair to say that a more favourable impressionis given by other statements in this letter, which however in their isolation do not seem on the whole to effect my general conclusion. In the Diary of Richard Smith (Amer, Sist Rev., Jan., 1896, p. 296) we have the following entry of Dec. 18, 1775: "Mont- gomery's soldiers very disobedient and many of them come Home without Leave." 'Jan. 5, 1776. (New Hampshire Prov. Papers, VII. 720.) 524 BULLETIN OF THE UNIVERSITY OP WISCONSIN. ligion and morality, yet when the reins of decorum were loosed, and the honourable feeling weakened, it became impossible to administer restraint. The person of a tory, or his property, became fair game, and this at the denun- ciation of a base domestic villain. " ' This writer indeed takes pains to assert expressly that only Tories were plun- dered, and that the peasantry were especially protected and respected; but the mass of adverse evidence forbids us to consider the statement of weight further than with re- gard to his own company. In Caleb Haskell's Journal' we have a glimpse of the attitude of the time-expired troops. Under date Jan. 30-1, he tells how the writer's Company, " looking upon ourselves as free men, " in that their time of enlistment had expired, were tried and punished by Court- Martial for disobedience to orders, and how, " find- ing that arbitrary rule prevailed," they had finally con- cluded to remain and serve (which they did until the be- ginning of May, decamping then at a critical moment). Some interesting particulars are further found in these journals of the conduct of those who were taken prisoners on the occasion of the assault. Ebenezer Wild tells us un- der date January 3-4, (i. e., on the third and fourth days of captivity), that Carleton having sent for a list of the names of the prisoners, especially of those who were old country- men, "they, [i. e., presumably, the old countrymen; in all probability meaning thereby those born in the British Islands], chiefly enlisted in the King's service. " ^ More par- ticular information is given by Capt. Simeon Thayer* who says that the old countrymen were threatened by Carleton with being sent to England and tried as traitors. In the lists given by Thayer with regard to the American losses in the as- sault on Quebec, we find the following figures for all ranks : — killed, 35; wounded, 33; prisoners, 372; enlisted, 94. 1 Account of the Campaign against Quebec (Albany, 1877), p. 98. = Newburyport, 1881. (Pamphlet.) ^ Proceedings Mass. H'isL Society, April, 1386. * Collections R,I. Hist. Society, VI (Providence, 1867). App. to Journal. COFFIN — THE PROVINCE OF QUEBEC, 1760-76. 525 We see therefore that fully 25 per cent, of the prisoners at Quebec took service with their late enemies, ap- parently without much delay. If these comprised only " old countrymen, " it is an interesting fact with regard to the composition of the troops. But we have little ground for confidence as to the firmness even of the acknowledged colonists. Col. J. Trumbull, (Acting Adjutant General with Gage), writes to his father, Governor Trumbull of Con- necticut, on July 12, 1776,' of encountering the remnants of the Canadian expedition "ruined by sickness, fatigue, and desertion, and void of every idea of discipline or sub- ordination." Of the 10,000 men of the previous spring, 6,000 are left; of the other 4,000, "the enemy has cost us perhaps one, sickness another thousand, and the others God alone knows in what manner they are disposed of. Among the few we have remaining, there is neither order, subordination, or harmony; the officers as well as men of one colony, insulting and quarreling with those of another. " About the same time Lt. Ebenezer, Elmer says of the same troops, "The whole of their conduct at Canada since the death of the gallant Montgomery seems nothing but a scene of confusion, cowardice, negligence and bad conduct. " ^ In an account of the naval operations on Lake George in October, 1776, Trumbull further describes the dangerous in- fluence exerted by Carleton over the prisoners then taken by him. These had all been allowed to return home on condition of not bearing arms again till they were exchanged; when encountered by Trumbull on the homeward march "all (he says) were warm in their acknowledgment of the kindness with which they had been treated and which appeared to me to have made a very dangerous impression. " He therefore "placed the boats containing the prisoners under the guns of a battery and gave orders that no one * Trumbull, Reminiscences^ p. 30:i. (Appendix.). ' Proceedings New Jersey HisU Society, II, 132. This is written at the Mohawk river, in the relief expedition of Gen. Sullivan. It is a significant fact that this very detailed journal is very largely taken up with Court-martial proceedings. 526 BULLETIN OF THE UNIVERSITr OP WISCONSIN. should be permitted to land, and no Intercourse take place with the troops on shore until orders should be received from Gen. Gage. " ' "When the situation had been presented to Gage the latter ordered that the troops should return home immediately without being allowed to land. This seems to show not only the ease with which the prison- ers had been shaken in their patriotism, but also a very great lack of confidence in the main force. A glimpse of the genesis of these forces in the spring of 1776 is to be obtained from a letter of one Capt. James Osgood to the Chairman of the New Hampshire Committee of Safety. He informs him that he has enlisted for Canada about 60 good men'; adding "I have had a great number Deserted after paying them the Bounty and part of advance pay to sup- port their families. " ^ I shall add but little on this general point. An account by an officer of the American force of the final withdrawal from Quebec seems to show that this closing act was by no means creditable; the writer describes it as a "disgraceful retreat," marked by the "utmost precipita- tion;" he himself "meeting the roads full of people, shame- fully flying from an enemy that appeared by no means su- perior to our strength. " ' The commissioners to Canada write to Congress May 17, 1776 : " We want words to de- scribe the confusion which prevails through every de- partment relating to the army, " and point out "the unfeel- ing flight and return at this juncture of all the soldiers and the greater part of the officers who were entitled to be discharged. " ' On May 27, after dwelling on the distressed condition of the army, they tell of the plundering of the baggage "by those whose times were out, and have since left Canada. We are informed by Capt. Allen that the men who, from pretended indisposition, had been exempted from do- ^Reminiscences, p. 34. ^ Neic Hampshire State Papers VIII, 164. 'iArmr. ^rcft., VI. 398.