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DURIE, WILLIAM SMITH – Volume XI (1881-1890)

d. 3 June 1885 at Toronto, Ontario


Responsible Government

Sir John A. Macdonald

From the Red River Settlement to Manitoba (1812–70)

Sir Wilfrid Laurier

Sir George-Étienne Cartier


The Fenians

Women in the DCB/DBC

The Charlottetown and Quebec Conferences of 1864

Introductory Essays of the DCB/DBC

The Acadians

For Educators

The War of 1812 

Canada’s Wartime Prime Ministers

The First World War

The Integration of the Province of Quebec into the British Empire, 1763—91 (cont.)

The fundamental fact to keep in mind when considering the impressive area which came under Quebec’s jurisdiction is that the issue was to find an alternative solution to Lord Halifax’s system. What was being given up, in reality, was not the idea of exercising control, and still less the will to exercise it, but rather the type of strategy that had been tried out since the Royal Proclamation. The objective remained, but the means of achieving it was changing. At the beginning of 1774 it appeared more necessary than ever to hold on to the possessions acquired in 1763. While on the Atlantic coast preparations were being made to punish the disobedient children, it had become urgent “to give force and effect to the Power and Authority of the Crown within the Interior Country,” in the view of William Knox, undersecretary of state for the American Colonies, who was closely associated with the drafting of the legislation for Quebec. Since the Sons of Liberty were largely responsible for the failure of imperial control in the west, what alternative remained but to leave it to the new Canadian subjects – even at the risk of conjuring up the spectre of the former French empire? The good relations they were known to entertain with the Indians would contribute to improving rapport with the latter and reassure them about the fate of their reserves since, unlike the Americans, the Canadians did not covet their lands. It would also be the best means to establish a uniform system of regulations for the fur trade, the British no doubt reasoned.

When King George III gave royal approval to the Quebec Act on 22 June 1774, he declared that it was founded “on the clearest principles of justice and humanity” and would undoubtedly have “the best effects in quieting the minds and promoting the happiness of my Canadian subjects.” Such solicitude for the conquered population was in sharp contrast with the scant attention paid it at the time of the Royal Proclamation. So marked a change of attitude deserves an explanation at this point.

The Royal Proclamation assimilated Quebec to the case of the two Floridas. In anticipation of swift Protestant settlement from the supposed population overflow of several American colonies, it was intended to provide the new provinces with the constitutional model in use in the royal colonies on the Atlantic coast, such as New York or Virginia. The edict proclaimed that the governors would have power and authority, “as soon as the state and circumstances … will admit, … with the Advice and Consent of the Members of our Council, [to] summon and call General Assemblies within the said Governments respectively.” These representatives of the people would be required to legislate and pass decrees “for the Public Peace, Welfare and good Government … as near as may be agreeable to the Laws of England.” While waiting for such representative assemblies to be convoked, the existing inhabitants and new settlers would have the benefit of the protection and enjoyment of the laws of the realm, through the setting up of law-courts “for 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 England.”

Conceived solely in the expectation of a great influx of Protestant settlers whose assimilating wave would obliterate the historical past of New France, the Royal Proclamation took no account of the hopes and expectations that the surrender in 1760 and the military régime had raised and kept alive. In his haste to settle everything at once Lord Halifax had not followed through on the recommendations of Lord Shelburne (made in the Board of Trade’s report of 8 June 1763), who had foreseen “particular Regulations and Provisions to be adapted to the different Circumstances and Situation” of each of the new acquisitions. Gradually becoming aware of the size of the problems and perceiving the damaging results of so improvised a policy, London began to contemplate a more realistic solution – as it had done with the programme for imperial control of the west.

But pending a reappraisal of the 1763 policy, Governor Murray had to suffer its initial troublesome consequences. He might have been able to avoid many tribulations had it not been for this unfortunate royal edict, which helped sow great confusion and dissatisfaction, but worse still stirred up much dissension among various groups. To attribute the main responsibility for these difficulties to the governor himself would be to ignore the constraints of imperial policy and the directives from London, and thus to give the false impression that he could have changed the course of Canadian history on his own authority. Murray was more the victim than the author of the unbearable situation in which he found himself and which forced him to return to London.

The unrealistic assumption that a wave of settlement from an overcrowded Atlantic coast would surge into the country stemmed largely from ignorance of North American geography and of the difficult living conditions in the St Lawrence valley. Americans were attracted by the luxuriance of the west, not the cold of Quebec. Two years after the Royal Proclamation, Murray’s census showed that only a couple of hundred British settlers had answered the call of the north, choosing to live for the most part in the towns of Quebec and Montreal. Of the 136 Protestant subjects in the District of Montreal, about a hundred had come from England, Scotland, and Ireland; some fifteen were from Germany, only a dozen from New England and New York, the rest from elsewhere. Some sixty were declared as merchants, about thirty as innkeepers, and fifteen or so as clerks. Faced with the considerable disproportion between “old and new subjects,” Murray’s successor, Carleton, concluded in November 1767 that barring some unpredictable cataclysm the numerical superiority of the Canadians, far from diminishing, would only increase: “While this severe Climate, and the Poverty of the Country discourages all but the Natives, it’s Healthfulness is such … [that] this Country must, to the end of Time, be peopled by the Canadian Race, who already have taken such firm Root … that any new Stock transplanted will be totally hid … except in the Towns of Quebec and Montreal.”

The limited numbers of British settlers, as opposed to the astonishing population growth of the Canadians, made the assimilation hoped for by Lord Halifax highly problematical. With the institution of civil government in August 1764 it became necessary to find a modus vivendi with the conquered people, and this requirement forced Murray to deviate from his instructions. The English speaking bourgeoisie soon reacted, demanding such strict application of the Royal Proclamation that the representatives of the Roman Catholic majority appealed to the “goodness and justice” of the king against the intolerance shown by the Protestant minority: “What would become of the general prosperity of the Colony, if those who form the principal section thereof, become incapable members of it through the difference of Religion?”

The fundamental question was thus posed. It would force London to revise its policy completely, and to have recourse ultimately to the Quebec Act. At the end of 1764 Lord Chief Justice Mansfield, indignant at learning that Canadians were subjected to the same discrimination as English penal law applied to “papists” at home, pressed the government to investigate the fate reserved for the new Roman Catholic subjects. This question brought up the whole problem of the Canadians’ legal status. The Board of Trade sought the opinion of Attorney General Sir Fletcher Norton and Solicitor General William de Grey; in their report of 10 June 1765 they expressed the opinion that the conquered population was not subject to the “Incapacities, Disabilities and Penalties” imposed upon Roman Catholics in England. In so doing they were tracing the way to the eventual abolition of the oath under the Test Act. For the moment the Board of Trade proposed judicial reforms to allow Canadian lawyers and attorneys access to the courts, at the level not only of the Court of Common Pleas but also of the Superior Court.

These judicial reforms drew comment from the new attorney general, Charles Yorke, who in collaboration with de Grey prepared a report that became famous because it brought into question the advisability and validity of applying English civil law in a “big and old colony” like Quebec, which had had its own code of customary law for a long time. The report recommended particularly that, within the framework of the seigneurial system, the inhabitants be allowed to retain their laws concerning the possession, transmission, and sale of landed property. British settlers would be required when purchasing land to conform to the usages and customs of the country, as was the practice in certain parts of the realm or in other royal colonies. As for English criminal law, it seemed to suit local needs and could be adapted to them as far as possible.

This report of April 1766 was a decisive step in the revision of the Royal Proclamation, even though the implementation of Yorke’s recommendations had to be postponed until they could be embodied in a draft bill. To attribute solely to Lord Chancellor Northington’s stubbornness the delay in regularizing the confused situation created by the royal edict of 1763 would be a simplistic explanation. On the one hand there were too many possible consequences to give effect to the report without an assessment of their full significance, and on the eve of its fall Lord Rockingham’s ministry was certainly in no position to proceed with such an evaluation. On the other hand Yorke’s recommendations could be only a partial remedy for the numerous thorny problems involved. A solution of far greater scope was imperative, and it was necessary not only to map out its bases with a better knowledge of the complex colonial realities but also to have the assistance of a stable administration enjoying the king’s confidence, as would be the case with Lord North’s cabinet, which in 1770 put an end to ten years of chronic ministerial instability.

Although it did not have time to develop a valid solution, Rockingham’s ministry (July 1765–July 1766) paid sufficient attention to the Quebec question to become aware of past errors and to initiate a change in the orientation of the policy of October 1763. It was under this Whig ministry, incidentally, that Canon Jean-Olivier Briand received permission to be consecrated bishop. But no less important were the appointments in 1766 of Guy Carleton as lieutenant governor and William Hey and Francis Maseres* as chief justice and attorney general of the province respectively. Through this trio the government in London was able to obtain all the information needed for preparing an initial plan for a wide-ranging solution to the various problems created by the integration of Quebec into the British empire.

The idea of using parliamentary legislation to clarify the confused situation created by the Royal Proclamation began to be given careful attention in London during 1767. In June Lord Shelburne, then secretary of state for the Southern Department, advised Carleton that the Privy Council was giving serious consideration to providing the province with a civil constitution to be established by the authority of parliament. And as it seemed to him to be extremely important to form such “a System as shall at once be Equitable & convenient, both for His Majesty’s Old and New Subjects,” Shelburne asked the lieutenant governor to supply any information that might enlighten the ministry.

Carleton, who had been administering the colony for nearly a year when he received this request, had already made up his mind about the most suitable type of social and political organization. In the late autumn and early winter of 1767–68 he expounded his ideas to Shelburne in three long dispatches, tracing the main lines of a plan inspired more by a conceptual model borrowed from Europe’s feudal period than founded upon the seigneurial system as it actually existed in New France. Two fundamental concerns – corresponding to his dual role as commander-in-chief and civil administrator – determined his choice of this plan: the “security” of the colony and its “dependence” with regard to the British crown. “Securing the Kings Dominions over this Province” was of the utmost importance and any schemes that did not take this basic factor into account would “be little better than meer Castles in the Air.”

Maintenance of the seigneurial system and restoration of former usages and customs would not only guarantee the retention of the colony through the Canadians’ “firm attachment” to the crown but would assure peace and tranquillity in the province through the “Subordination” of all subjects, “from the first to the lowest,” and their “Obedience to the Supreme Seat of Government.” The security of the colony would likewise be assured by the ease with which a fair-sized Canadian militia could be recruited through the services of the seigneurs, who enjoyed prestige and influence and would willingly be a party to enlisting their censitaires. Their participation required that they be reinstated as militia officers and given honours and privileges, including membership in the Legislative Council and some offices in the administration of the province.

As to the form of government, Carleton made no secret of his prejudices against representative institutions. In the troubled circumstances prevailing in the Thirteen Colonies it seemed dangerous to him to set up an elective house: “The British Form of Government, transplanted in this Continent, never will produce the same Fruits as at Home, chiefly, because it is impossible for the Dignity of the Throne, or Peerage to be represented in the American Forests ... [Here] All Men appear nearly upon a Level....” The main deficiencies were the governor’s want of authority to “retain all in proper Subordination” and the absence of a legislative body of the nobility to enhance the prestige of the council and counterbalance the spirit of democratic independence and the republican tendencies of the colonial assemblies. “The better Sort of Canadians,” he claimed, “fear nothing more than popular Assemblies, which, they conceive, tend to render the People refractory and insolent.” Again, Carleton did not take seriously the demands of the English speaking bourgeoisie, which he considered excessive. The Protestant minority constituted too tiny a group to be representative of the whole population.

Carleton’s long dispatches reached London when the first secretary of state for the American Colonies, Lord Hillsborough, had just entered upon his duties. He was so strongly impressed that he led the governor to hope for immediate measures that would “not only releive His Majesty’s new Subjects from the uncertain, and consequently unhappy Situation, they are now in; but give them entire Satisfaction for the future.” And with unbelievable inconsequence the minister went on to condemn Murray’s administration for having put the Royal Proclamation into effect “in the most absurd Manner, oppressive and cruel to the last Degree … and entirely contrary to the Royal Intention.” Even though he had collaborated in drafting this unfortunate edict as president of the Board of Trade, he dared claim that it had never entered the authors’ minds “to overturn the Laws and Customs of Canada, with regard to Property.” At the very least this attack must be considered a mean and unfair way of defending himself, given Lord Halifax’s designs for assimilation and the justifications that Murray was obliged to furnish for the few concessions he had made to the Canadians, contrary to his instructions as governor. It must be said in the minister’s defence, however, that Carleton had deliberately painted a black picture of the Canadians’ situation, with the obvious aim of more readily obtaining endorsement of his feudal plan.

Once he had resumed his commission as governor in 1768, Carleton showed himself more confident and more determined than ever to have his political views accepted. In March 1769 he presented Hillsborough with a list of 12 Canadian seigneurs, selected from the largest landowners in the colony, who in his view deserved to be members of his council. Ten of them were former militia officers, and nine had been awarded the cross of Saint‑Louis. Heading the list were six men who would later become members of the Legislative Council under the Quebec Act: Gaspard-Joseph Chaussegros de Léry, Pierre‑Roch de Saint‑Ours Deschaillons, Charles‑François Tarieu de La Naudière, Luc de La Corne, Claude‑Pierre Pécaudy de Contrecœur, and François‑Marie Picoté de Belestre. Only Jean‑Baptiste‑Marie Blaise Des Bergères de Rigauville, who would occupy the remaining seat to which the Canadians were entitled, was not on the list. Carleton’s choice was well calculated. In case of danger, as, for instance, during the American invasion of Canada in 1775–76, these knights of Saint-Louis would indeed set the example and respond to the governor’s orders despite their advanced age and the risk to their lives. Through family connections created generation after generation within the seigneurial class, the administration of the colony was expected to hold in subordination all those who cherished the hope of obtaining through family influence royal favours for offices or positions, however minor these might be. What better guarantee of permanent support for the crown’s authority!

In London, Lord Hillsborough, who wanted to reach a satisfactory arrangement as quickly as possible, had the Board of Trade prepare a draft constitution that he passed on to Carleton, recommending to him the “greatest Confidence.” Some historians have discerned in the draft bill of July 1769 “an instrument of political freedom” contrasting with the governor’s feudal plan. Closer examination of the two reveals more similarity than difference. To end the prevailing confusion in Quebec it was proposed to institute a legislature enjoying “a complete legislative power” through the establishment of a legislative council and a house of assembly. The council would be composed of 15 members appointed by the crown, five of whom, in keeping with Carleton’s wishes, would be chosen from among the Canadian seigneurs. The assembly would consist of 27 members: the 14 Protestants who were to be the sole representatives of the towns of Quebec, Montreal, and Trois‑Riviéres would constitute the majority; the remaining 13 seats would be filled by representatives of the seigneurial class, who alone would be entitled to stand in the rural counties. Thus the more than 80 per cent of Canadians who lived in the country would be restricted to choosing from a group of landowners who constituted less than one three-hundredths of the rural population. Like Carleton’s feudal plan, Hillsborough’s aimed precisely at restricting to the Canadian nobility participation in the power to legislate.

The many pressures exerted by the British merchants to obtain a legislative assembly failed to counterbalance the attraction for the authorities in London of Carleton’s feudal plan. Even though, ten years after the conquest, this dynamic minority could claim to be the principal agent of economic development in the colony (by 1770 controlling three-quarters of the trade there, it has been said), the Canadians constituted more than 95 per cent of the population and included the great majority of landholders. This basic fact alone, quite apart from any crisis in the North American colonies, made the setting up of representative institutions virtually impossible, since the British government was obviously not ready to hand legislative authority over to the conquered people. The problem was how to limit the representation of those possessing land in Quebec without going against the creed dearest to the hearts of the governing elite in England, who came from the landed classes and believed all political power had to rest upon ownership of land. The British constitution was seen as a bulwark for landed property, which formed the foundation of the social, political, and economic organization of English society in the 18th century. This dilemma explains why the prime minister, Lord North, declared at the time of the parliamentary debates on the Quebec Bill that it would be “oppressive” to institute a legislative assembly while restricting the participation in it of those who owned nearly all the land in Canada and who should naturally constitute the great majority of its membership. It was preferable to put off its creation.

However commendable Hillsborough’s intention to reconcile the interests of the Protestant minority with those of the Catholic majority, his constitutional draft contained too many major drawbacks for the government in London to risk trying it out. It had, moreover, been prepared in haste: important documents in the Quebec file were still missing, in particular the results of an inquiry into the administration of justice, which were not known in London until the autumn of 1769. This inquiry, initiated by the Privy Council, would not only supply full information on the organization of justice but would also specify its deficiencies and suggest reforms. It was conducted by Carleton in concert with his two chief assistants in the administration of the colony, Hey and Maseres.

In a report submitted in September 1769 and signed jointly with Hey the governor described in detail how the administration of justice functioned under the French régime, emphasizing the advantages of the social order established through the seigneurial system. He did not blunt his criticisms of the judicial organization that had followed the setting up of civil government. The ordinance of September 1764, he wrote, “had in it’s Operation a Manifest tendency to disjoint and break in pieces, if not totally annihilate, the whole Frame and System of the ancient Laws.” Not only had the Canadians suffered “plentifull streams of disquiet and vexation” because of it; worse still, “feeling themselves loosened from those restraints, which formerly held them, [they] are every day wearing off those Habits of modesty and obedience, by which they were formerly distinguished.” Their principal complaints came from “the uncertainty of the Law,” “the dilatoriness [and] the severity of the proceedings,” and “the expence of the Suit.”

The rest of the governor’s report was virtually an indictment of the introduction of English civil law, which he had already denounced as “ill adapted to the Genius of the Canadians, to the Situation of the Province, and to the Interests of Great Britain.” To try to impose “the whole body of the English Law” would be unworthy of a civilized nation and reminiscent of the period of the barbarian invasions rather than that of William the Conqueror. Not only would it be going against every principle “either of sound Policy or Humanity,” but it might carry the risk of provoking an uprising and would surely alienate the population of the province forever. It was therefore important to restore to the whole province all French laws and customs in everything pertaining to civil law. On the other hand, he observed, since the Canadians seemed to be “very well satisfied” with English criminal law, he saw no objection to continuing with its introduction. He also favoured instituting the rights of habeas corpus and trial by jury, in both criminal cases and legal actions for damages. As for the methods of administering justice, he recommended the adoption of a procedure similar to that used in the French régime. Finally he recommended re-establishing the division into three judicial districts, reinstating militia captains in their former duties and making them agents of the government’s orders at the parish level, and also limiting the powers given to justices of the peace; on this final point he adopted the views of Pierre Du Calvet, who in a memoir to Hillsborough had denounced the abuses to which justices of the peace were prone in the performance of their duties.

Hey did not endorse all of the governor’s proposals and made his disagreement known in a separate document. He objected principally to the all but complete restoration of French laws and customs desired by Carleton. Seeing it as a backward step detrimental to Great Britain’s real interests on the North American continent, he asserted that it “would operate not only as an exclusive Bar to any Union or Resemblance with the other Colonies, but tend to preserve in the Minds of the Canadians Principles inconsistent with the Idea of British Subjects in General.” Consequently he favoured measures likely to facilitate the progressive assimilation of the Canadians and to give Quebec “the Form and Figure of a British Colony.” Hey nonetheless recognized the necessity of making generous concessions to the Canadians, because of their numbers, wealth in land, and influence and for reasons of “Justice, Humanity, or Policy.” While favouring the predominance of the English legal system, he recommended retaining for the new subjects the parts of customary law to which they were most attached, such as those involving “the Descent, Alienation, and Incumbrance of their real Property, their Mode of Devising Assigning and conveying their Personal, their Marriage Contracts and all those Dispositions which tend to regulate their domestic Aeconomy”; these should be “Administered with Integrity, Expedition and Moderation in Point of Expence.”

Hey was to play a decisive role when the Quebec Bill was being prepared. His presence in London from 1773 to the spring of 1775 enabled him to follow its development closely, and through his advice to counterbalance Governor Carleton’s influence. His intervention was particularly obvious at the moment when the bill began to take shape after passing through the first stage in the drafting process. One has only to compare the second and third drafts to appreciate the effect not only of his judicious advice but especially of the ideas he defended. Specifically, the text of what archivists Adam Shortt* and Arthur George Doughty* classify as the second draft reads: “That His Majesty’s Subjects … in the … Province of Quebec … [and those] of all the Territories [which may be annexed] … may … hold and enjoy their Property, Laws, Customs, and Usages, in as large, ample and beneficial manner, as if the [Royal] Proclamation, Commissions [and] Ordonnances … had not been made.…” Its author, Solicitor General Alexander Wedderburn, consulted Hey, who raised a fundamental objection: “What is to be the condition of the English Canadian? Is he or is he not included in the description of His Majesty’s Subjects …?” The chief justice went on to observe that it would be far better to define clearly what rights were to be restored to the Canadians and to specify their limits. Wedderburn considered these observations “so weighty” that after submitting them to the secretary of state, Lord Dartmouth, he prepared a third draft stating this time that Canadians might “hold, and enjoy their Property & Possessions together with all Customs & Usages relative thereto,” and all their other civil rights. But in addition any person, whether Canadian or British, would be free to dispose of his property or possessions by testament or during his lifetime “in such manner as he or she shall think fit, any Law, Usage or Custom; heretofore; or now prevailing in the Province, to the contrary hereof in any wise notwithstanding.” Furthermore, as the draft finally approved by parliament would stipulate, any land granted in free and common soccage according to the English system of holding would not be subject to the legal dispositions provided for seigneurial tenure. This provision kept the way open to developing British settlement in the St Lawrence valley. Hey would have the same concern when the time came for the secretary of state for the American Colonies to prepare the text of the royal instructions to the colony’s governor for implementing the Quebec Act: the specific result would be article 12, which provided for the introduction of English laws through Legislative Council ordinances, “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.”

Hey was better at pleading the cause of the English speaking bourgeoisie than was Maseres, notwithstanding the goodwill and ready availability of the former attorney general. After giving up his office to return to London in the autumn of 1769, Maseres continued to take an interest in Canadian affairs. Unfortunately he had inherited from his Huguenot ancestors religious prejudices against Catholics so strong that he constantly carried them over to the political arena, to the point of becoming out of phase with the London authorities’ changed viewpoint on the Quebec question. Thus when the 1774 bill was being prepared, he persisted in bringing forward the British merchants’ demands for a house of assembly composed exclusively of Protestants or, failing that, a legislative council from which Canadians would be excluded. In reality he did more harm than good to the cause of those who had relied on him to convince the minister of the legitimacy of their requests. Their hopes dashed, they lost their illusions about the jurist advocate who had attracted them with his Whig training and his zeal for furthering “English liberties.” A theoretician with a versatile mind, he enjoyed thinking up “plans and systems” (as François-Joseph Cugnet aptly remarked) more than formulating realistic solutions. Even before coming to Quebec in the autumn of 1766 he had advanced the hypothesis that the Canadians would be assimilated “in one or two generations” if proper measures were taken. When the moment came to produce a report on the laws and the administration of justice, he proposed four solutions, and rather than taking a stand he outlined the advantages and disadvantages of each, leaving the choice to “the wisdom of your Majesty’s counsels.” Upon going through this report a member of the commission of inquiry, Maurice Morgann*, found it so “improper” that he had been unable to extract “a single idea.” Maseres had, however, a preferred solution that he revealed in his criticism of the Carleton–Hey report: a legal code for the province. The governor did not leave him time to commence it, considering it better for his majesty’s service to find him a post other than that of attorney general of a former French and Catholic colony.

Determined to push his feudal plan, Carleton had informed Hillsborough in the spring of 1769 of his desire to go to London. The governor had to wait for more than a year before receiving permission to depart in August 1770, leaving the administration in the hands of the faithful Cramahé. Less than a year after his arrival in London Carleton had the satisfaction of seeing the grant of crown lands “in Fief and Seigneurie” authorized by the Privy Council, through the additional royal instructions of June 1771. For all practical purposes the authorities in London were endorsing the central element of the governor’s plan. The decision to retain the seigneurial system, confirmed by parliament three years later, constituted a fundamental revision of the policy laid down in the Royal Proclamation and had important consequences for the Canadians’ future. Although the Privy Council committee maintained that such a measure would contribute to the welfare and prosperity of the province, the real intention, according to the undersecretary of state William Knox, was to give the crown “great power over the Seigneurs.” Henceforth they would recognize in King George III their “Sovereign Seigneur.”

In January 1771 the impatient Hillsborough, still seeking at least a temporary solution, had informed Cramahé that the ministry was preparing to submit to parliament a bill aimed at granting the governor and council, for a limited period, legislative powers that would afford the possibility of dealing with the unsettled situation in the colony. Another hope dashed. Five months later at the end of the parliamentary session the secretary of state had to confess to Cramahé that “Every proposition that hath been yet suggested, has been attended with so many difficulties as to prevent any final decision.” Despite everything he did not despair of reaching before long an “arrangement” that would give the Canadians satisfaction yet keep the colony under the crown’s authority. At the end of the year he returned to the subject, to deplore the “great delay” in finding a solution but to justify it on grounds of the “Delicacy and Importance” of the decisions to be taken, bearing in mind the necessity of consulting almost every department of the government.

It was Lord Dartmouth, his successor, who with the assent of the king and the prime minister, North, would sponsor the solution so ardently desired by Hillsborough. In contrast to his nervous and impetuous predecessor, the calm and thoughtful Dartmouth was not one to make sudden decisions. Before taking action – which he put off until the autumn of 1773 – he waited for reports by the law officers of the crown, the attorney general Edward Thurlow and the solicitor general Alexander Wedderburn. These two “pillars of the law and state,” as historian Edward Gibbon called them, had been asked to examine the Quebec file and make recommendations. Wedderburn produced his report in December 1772, and Thurlow submitted his in January 1773.

A great protector of law and order as well as the uncompromising defender of the crown’s sovereignty over the colonies, Thurlow is said to have once declared on the subject of the Quebec Act that what was at issue was “the only sort of Constitution fit for a Colony.” His report was inspired by his profound respect for traditional values and his faith in the heritage of the past. Like Carleton he unhesitatingly gave highest praise to the system of laws and government that had existed in New France, asserting that the experience of the French régime had demonstrated their merits. Consequently it was on this basis that a “flourishing colony” had to be built, as the principles of humanity and reasons of state in any case suggested. Great Britain’s true interests dictated as few transformations as possible. No change in the form of government should be made until it was deemed “essentially necessary” to the maintenance of the conqueror’s sovereign authority and the preservation of a spirit of obedience in his subjects. The best means to attain these two objectives was precisely to leave the conquered people “in the utmost degree of private tranquillity and personal security” where their former laws and customs were concerned.

Distrusting the dangerous innovations of novelty-seeking theoreticians, Thurlow seized the opportunity to denounce the report of Advocate General James Marriott, which was later published in London, in 1774, as Plan for a code of laws for the province of Quebec. Marriott had to resort to this means of gaining public attention because, not being a member of cabinet or parliament, he was unable to influence the crown as Thurlow and Wedderburn could. Thurlow attacked the “speculations” of Marriott, whose proposals were diametrically opposed to his own. Far from praising the French régime, Marriott saw in it a system of military government instituted primarily to make war against the British colonies in America. As this system had been harmful to the spirit of commercial enterprise, effort should be made not only to abolish it but also to erase even its memory from the minds of the Canadians by gradually assimilating them. The best way of making Canada useful to Great Britain would be to encourage British settlement, which would promote economic development.

On the eve of the Quebec Act, when the future of such settlement in Canada seemed sufficiently hypothetical to be the object of “speculations,” the actuality of 80,000 new subjects was of more importance to the authorities in London. Thus Solicitor General Wedderburn reported that more attention should be paid to the Canadians than to the English speaking settlers, not only because of their substantial numerical superiority but also because depopulation for the benefit of her colonies was not in Britain’s interest. In his view the strength and greatness of a nation lay in the size of its population, as public opinion held. This preoccupation on the part of the empire’s rulers was even more legitimate in that the population of England was about three and a half times less than that of her rival, France, which at roughly 25 million was the most populous country in Europe. It is understandable, therefore, that in 1774 Lord Dartmouth found the departure of several hundred British settlers for Nova Scotia “a circumstance of very alarming consequence.”

To give stronger legal warrant to the concessions to the Canadian people that the situation necessitated, Wedderburn based his reasoning upon the principle that a civilized conqueror could not conduct himself barbarously and deprive the conquered of “the enjoyment of their property, and of all the privileges not inconsistent with the security of the conquest.” He also took up the argument advanced in the Yorke and de Grey report of April 1766: since Quebec had been settled for a long time, its inhabitants had to be left the customary law to which they were so strongly attached. As to the form of government, Wedderburn objected to the setting up of an assembly, which to him implied a double risk: on the one hand it was a “dangerous experiment” with new subjects in whom principles of submission and obedience had to be inculcated, and on the other it constituted “an inexhaustible source of dissension” between British and Canadian inhabitants. He considered such a creation “totally inexpedient.” But in contrast to Carleton, whose views in the end prevailed, Wedderburn believed it necessary to effect a separation of powers between the governor and his future legislative council, to prevent the members of council from being completely subordinate to the king’s representative. To keep the council from abusing its legislative powers, he envisaged the imposition of certain restrictions, particularly in all matters related to the subjects’ lives and possessions as well as in taxation. In these instances no ordinance could have the force of law without prior authorization from London. Finally, he recommended that this government be set up for only a limited period.

His ideas were to take form in the first draft of a bill he was asked to prepare in anticipation of a temporary settlement. It dealt simply with the organization of a civil government, placed under the direction of a legislative council that was destined to play the central role. The arrangement was to last for 14 years, unless the decision was taken to create a legislative assembly at an earlier date. This initial bill, probably devised in the autumn of 1773, did not touch upon any of three other fundamental aspects which the final bill would include: religion, the administration of justice, and the extension of the frontiers. It must therefore be assumed that no decision had yet been taken on these essential points. In fact, nothing was really settled before the beginning of the spring of 1774.

On 1 Dec. 1773 Dartmouth informed Lieutenant Governor Cramahé that “the Affairs of Canada” were receiving the ministry’s attention and that there was reason to hope they would be settled shortly. The tone of this letter indicated, however, that nothing had yet been decided and that important questions were still not settled. Dartmouth had obviously not foreseen the events that took place a fortnight later in Boston and that made the carrying out of London’s good intentions impracticable. Everything was then left in abeyance, in order to deal with the case of the province of Massachusetts, which was considered much more urgent and serious.

The crisis brought about by the Boston Tea Party marked a turning point in relations between London and her colonies in America: it ended the imperial government’s policy of hesitation and compromise. Thus, when the Bostonians’ insult became known in London – their not only having destroyed a large shipment of tea but especially having opposed the sale of the product on the colonial market by a crown company – Lord North’s ministry, with the king’s backing, demonstrated its determination to act with speed and resolution. Late in January 1774 the cabinet resolved unanimously to take the necessary measures “to secure the Dependance of the Colonies on the Mother Country.” There ensued, from March to June, the series of so-called coercive acts which parliament endorsed by a large majority. The Massachusetts Government Act (20 May) received royal assent a month before the Quebec Act (22 June). For the first time in the history of the American colonies the British parliament was intervening to alter a colony’s charter. The changes made in it were partly intended to render the governor’s executive action more effective by giving him extended discretionary powers. This increase in the governor’s power was an important precedent that influenced the choice of civil government to be set up in Quebec and favoured the creation there, under Guy Carleton and Frederick Haldimand, of “the system of the generals.”

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