man that would not fall into an agony, if he understood that he was certainly to be deprived of those two bulwarks of his personal security, and his property? Mr. Attorney General Thurlow. Respecting the ill consequences that may flow from enlarging the province of Quebec, in case of being forced by a future war to restore it, I cannot see that in the same light as my learned friend; because I think that the limits and importance of cessions are never dependant upon such arrangements as these, but upon the length of the sword: it is success in war that gives success in peace, and by no means the imaginary lines drawn by a state in its colonies; nor have the limits now drawn any thing to do with old Canada; they take in countries never claimed by France; it is a new scheme, and by no means the restoration of those old limits the French once contested for. so much as let them go hand in hand. For what purpose is the Ilionois and the Ohio to be Roman Catholics? Why is that to be made the established religion of that vast country, in which are very many English settlers? Mr. Serjeant Glynn controverted most of the positions laid down by the Attorney General, particularly relative to the true construction of the Definitive Treaty, his Majesty's proclamation, and the propriety of allowing the conquered to retain their own laws. He observed, that whatever contrary opinion might be maintained, it was his, that all conquests, as soon as made, vested in the King, Lords, and Commons; but that, until the two latter interfered, the King, as actual representative of the whole, was justified in making such regulations as he might think proper, so that they were not actually repugnant to the laws or constitution. The latter not being With regard to the supposed cruelty of the case of the proclamation, he thought not giving the Canadians the same laws in the nation in every respect bound to fulfil every instance as we enjoy in England; every thing promised by that solemn enI am so far from being of the same opinion, gagement. He instanced likewise the that I think you could not act cases of Wales and Ireland, as conquered cruelly to that people, than to change at countries, where our laws had been estaonce their law of property, and give them blished; and enlarged, in a very able manour trial by jury, which is necessarily giv-ner, on the many important and salutary ing our law of actions. I am clear it would so completely confound them, as to be more tyrannical than can be easily imagined. They would not understand the rule of their own actions; they would not know on what principles they stood possessed of their own property. more In a word, you would give them the greatest curse, under the notions of a blessing. There is not a circumstance dearer to a man, nor one which he ought to be more jealous of, than to be tried in all points by laws to which he has been used, and whose principles are known to him. Colonel Barré. I cannot agree that there is any thing in the laws of England, in the trial by jury, and the Habeas Corpus, that the Canadians would not very easily understand; and it is preposterous to suppose, that the superiority of good and just law, and freedom, should not be felt by people, because they had been used to arbitrary power. But why is the religion of France, as well as the law of France, to become the religion of all those people not Canadians, that pass out of one colony into another? By this Act you establish the Roman Catholic religion where it never was established before, and you only permit the practice of your own; you do not [VOL. XVII. ] effects that had arisen from our extending them to those countries, Mr. Solicitor General denied the fact as stated by the learned serjeant; insisted, that it was not till the reign of Henry 8, that they were introduced into Wales, nor until that of James 1, that they obtained in Ireland. He said, that among all the great or powerful nations we had an account of, the Romans and English were the only two who forced their laws on the conquered; that it was a most cruel and barbarous policy, and that the English laws, how much soever we might prize them, would be the greatest curse imaginable to the Canadians. Mr. Charles Fox objected to the Bill, as being contrary to the established usage of parliament. He said a provision was made in it for securing the tythes to the Romish clergy; that this was raising money on the subject, and that consequently its originating in the other House, was not only irregular and informal, but directly repugnant to the custom and law of parliament. Mr. Dempster said, the impropriety of the Bill struck him, for it certainly was a Bill either to take away or impose a tax, and therefore should have originated in [4 S] the Commons, but he should be glad of the Speaker's opinion. Mr. Sawbridge rose, saying, he found the Speaker was unwilling to rise, but that he should not ask his opinion as a favour, but as a part of his duty, and, if the honourable gentleman (Mr. Dempster) was willing, he would make it a question, whether the Speaker should give his opinion, or not? The Speaker rose, seemingly very angry, and said, he was not used to be called on in that manner, and that he did not think it his business to give any opinion on the affair. case into consideration. As to the merit, Sir, of the Bill, which is now coming before us, I must make this general observation, that a Bill which has confessedly taken nine years for administration to consider of effectual means to remedy the evils complained of; such a Bill, Sir, surely will demand more time than a few days for the members of this House, to judge in what manner to give their vote. Information is what we want. I know not what opinion I am to form upon the necessity which can call for such a Bill, and for want of that information which ought now to be before the House. I cannot but condemn mcst sincerely several arrangements in the Bill, which seem destructive of that liberty which ought to be the ground-work of every constitution formed by this House; but I cannot judge what are the causes which call for such measures, while I remain so uninformed as at present. There were reports from the Board of Trade to the King in council, upon the state of the province; there were representations from men in the highest offices in the provinces, upon the proposed constitution to be given to it; there were opinions in writing from the Attorney and Solicitor General, upon the plans proposed: these papers would, if laid before us, give 105 that information which we want, and without which it will be impossible for us to A strong debate ensued, in which Mr. C. Fox, Mr. Dempster, Mr. T. Townshend, Mr. Dunning, serjeant Glynn, and sir G. Savile, strongly contended that the Bill was, to all intents and purposes, either a Bill to impose a tax, or to repeal a part of a tax, and therefore it was against a standing order, concerning the privileges of all money Bills originating in that House. Lord North, and the Attorney and Solicitor Generals, defended the Bill. The question being put, that the Bill be read a second time, the House divided. The Noes went forth. Tellers. YEAS {Sir Arch. Edmonstone Mr. Gascoyne NCES {Mr. Tho. Townshend, jun.29 give any other than blind votes, which will, Charles James So it was resolved in the affirmative. May 31. The House went into a Committee on the Bill. Mr. Baker brought up a Petition from Messrs. Penn, proprietors of Pennsylvania, setting forth, That the new limits given to the province of Quebec, would essentially injure their properties, as a considerable part of the province of Pennsylvania was situated on the north-west side of the river Ohio, which is all taken into that of Quebec. Upon the petition being read, Lord North rose and said, that he should not think of opposing it, as it was never the intention of the Bill to affect the just rights of any proprietors, or of any colonies. Mr. Mackworth. The Petition which I have in my hand, is from the merchants of London trading to Quebec, who finding that a Bill is about to pass this House, which they apprchend will essentially injure them in their commercial transactions with that colony, rely on the justice and the candour of this House to take their from every thing that we can at present see in the Bill, establish a most fatal system of government in that country. Mr. T. Townshend. As this is not the proper time for going into the principle of the Bill, I shall confine myself to the absurdity, to say no more of it, of bringing in a Bill of such magnitude and importance so late in the session, without previously laying upon the table the necessary information; at present we have none; and if the noble lord means that we should know the subject upon which we are to debate, he certainly will not object to giving us that information, without which we cannot proceed with propriety. Let us, in the name of common sense, see what are the complaints of the Canadians against their present government, what are their distresses, what their desires; and let us see the opinions of the great law officers which have been given upon this point. Lord North. I shall oppose the calling for those papers, they will take some time in copying; there have been several reports from the Board of Trade, which are long, and fairly laid before you, it would condemn in the strongest and clearest manner the principles and the provisions of this Bill, all of which it would be found are equally unnecessary and pernicious. and if we wait for addressing the crown to lay them before us, the season will be delayed too late, and for no purpose, as we may have the same information at our bar. The governor of the province I see at the bottom of the House, who may be ordered to attend when you go into the committee; Mr. Hey, who is chief justice, is near Canterbury, and may be ordered up; and Mr. Maseres, who was Attorney General of that province, is also in London; as to the Attorney and Solicitor General, we have them amongst us; therefore I do not see but we may have just as good information in this manner, and much more expeditiously, than by addressing for the papers. Colonel Barré. I think there will be very little difficulty in shewing, that the proposition now made by the noble lord will be very far from answering the purpose of those who wish for full information on this subject. The papers we now call for would give us that information; those papers are drawn up coolly, attentively, and upon long and mature consideration; and they have been drawn up at leisure by men of great character and abilities. Now, Sir, the noble lord will not, he cannot assert with any appearance of justice, that calling those men to your bar, to be questioned in the desultory manner common upon those occasions, and in the midst of the contention between those who patronize the Bill, and others who condemn it-will he tell us that this is such information as we should receive from the papers referred to? It is impossible. As to the two great law officers who are present, I admit that their standing in their places, and reciting the opinions they gave would be satisfactory; but then they ought simply to inform us what those opinions were, and not to enter into the debate on the merit of the Bill at the same time, or by a side wind to warp information concerning a past fact into an opinion of a debate in question. That satisfaction should be made the House on these points nobody can doubt; for to tell us that we cannot have information for want of time to copy papers, is to tell us plainly that we are to proceed in the dark; it is and will be a deed of despotism, and therefore may well be linked with darkness. I wish it to be the deed of a single hand; it is a proper exertion of arbitrary power, in which the less concern parliament has, the better. Intelligence must be kept from us because it will not bear the light; if it was openly Mr. Attorney General. My opinion, and that of my learned colleague, were in writing, and lodged among our state papers; nor have we any right to read them in our places as servants of the crown. No person, without his Majesty's consent, has a right to them. Mr. Edmund Burke. I am very sorry to find from the turn which the debate takes on the other side of the House, that we are to have no satisfaction relative to the information which every man of common sense must think necessary on this occasion: this is a fresh reason for condemning the Bill, since if administration thought their conduct in this Bill would bear the light, they would give you light to view it in, and rejoice in the opportunity of giving such a proof of their abilities and moderation. For what purpose is it that you would precipitate this affair? You have been nine years considering, weighing maturely, and reflecting perpetually upon what government should be given to this province: what harm can arise from a delay of a single year? What prodigious mischief is to result from the government of the province continuing one year more in the present situation? Mr. Mansfield, counsel for the merchants of London, petitioners against the Bill, was called in, who, after a long speech, setting forth the dangerous tendency of the Bill, desired leave to call in Edward Watts. He being accordingly called in, was asked a considerable number of questions by lords Barrington, North, Clare, and Carmarthen, col. Barré, capt. Phipps, Mr. W. Burke, Mr. Mackworth, governor Johnstone, Mr. Hopkins, &c. as to the French and English laws in Canada, and to which the inhabitants gave the preference? He answered, the Eng. lish laws. The Solicitor General desired to know: if the Canadians did not at first object to the court of King's-bench being established in Canada, and for what reasons? He answered, on account of the exorbitant fees paid to counsellors and attornies. After he withdrew, Mr. Samuel Morin was called in, and likewise spoke in favour of the English laws being exercised in Canada; they both mentioned that the Canadians, as well as the English residents there, highly approved of trial by jury, and seemed to think that an annihilation of that right would greatly hurt the colony. The former of the witnesses had been nine years resident in Canada, the latter eleven. A motion was made that an address be presented to his Majesty for a copy of the report made to his Majesty by lieutenant general Carleton, relative to the state of Quebec. But it was carried in the negative, Ayes 46, Noes 85. A motion was afterwards made for another address for copies of papers presented to his Majesty, by his Majesty's advocate general, attorney and solicitor general, relative to Quebec. This was also carried in the negative, upon a division of 85 to 45. June 2. The House being in a committee on the Bill, general Carleton was called in and examined. Mr. Mackworth. What was the proceedings and course of justice in Canada, when you first went there? General Carleton. There is a court of King's-bench and a court of Common Pleas, in which the proceedings are in the English form. Mr. Mackworth. Did the Canadians express a dislike to the distribution of justice in that form? Gen. Carleton. In some things they did, in others they did not. I never heard them express a disapprobation of the criminal law of England; but in relation to the law in civil trials, they have disapproved it greatly. Mr. Mackworth. Did they disapprove the trial by jury? Gen. Carleton. Very much; they have often said to me, that they thought it very extraordinary that English gentlemen should think their property safer in the determination of taylors, shoe-makers, mixed with people in trade, than in that of the judges. Mr. T. Townshend. But if they had juries such as they approved of, would they then object to the English civil law? Gen. Carleton. Their objections to that law are very numerous; they do not know what it is; and they expressed great apprehensions at being governed by a law of which they were ignorant: they also complained of the proceedings of the courts being in a language they did not under stand. Lord North. Did the general hear them complain of the want of the trial by jury in civil causes? Gen. Carleton. Never. Though I have heard the same men praise the English law in points wherein it favoured their own causes, who at other times were much against it. Lord North. Did they express wishes of having an assembly? Gen. Carleton. Very much the contrary. In the conversation I have had with them, they have all said that when they found what disputes the other colonies had with the crown, upon account of assemblies, they would much rather be without them; and when they suppo-ed that an assembly, if they had one, would be chosen from the old British subjects only, they expressed an horror at the idea of one. Lord North. Does the general know the proportion of old subjects to those of new ones in Canada? Gen. Carleton. The Protestants in Canada are under 400; about 360; but the French inhabitants, who are all Catholics, amount to 150,000. Lord North. Are those 360, men of substance? Gen. Carleton. Much the greatest part of them are not. There are some that have purchased seignories, some in trade, and some reduced soldiers: but the ma jority are men of small substance. Mr. Jenkinson. Is there much intercourse or communication between those 360, and the rest of the province? Gen. Carleton. Very little. Lord North. Are those people, upon the whole, proper and eligible for an assembly to be chosen from them? Gen. Carleton. I should apprehend, by no means. Mr. Phipps. What is the extent of the cultivated and populous part of Canada? Gen. Carleton. About 300 miles. Mr. Phipps. Are there any populous settlements detached from that line, at a distance? Gen. Carleton. None of consequence. Mr. Phipps. Is the cultivation of the lands and the trade of the province much increased since the conquest? Gen. Carleton. Very much. Lord North. Does general Carleton attribute that increase to the introducing of the trial by jury and the English law? Gen. Carleton. By no means. Mr. T. Townshend. To what then does the general attribute it? Gen. Carleton. To the change from a state of war to one of peace; the govern plained, that by our law they were punished by a severe imprisonment, which, in the French law, they would have escaped. This made a great impression upon them, and prejudiced them very much against even our criminal law. ment was before extremely military; and military expeditions ever going on to a distance, great numbers of men lost, population hurt, and the people taken from the culture of the earth for those purposes. This change (for they have now enjoyed above ten years peace, with none of the inhabitants taken for the military) has wrought the increase of people. Mr. Turner. Has not the increase of trade and wealth been much owing to the free export of corn? Gen. Carleton. I take it to be owing to the increase of people. Mr. Turner. Was not the increase of cultivation owing to the export? Gen. Carleton. The cultivation I attribute to the increase of people. There must be the people before there could be the cultivation. Lord North. Does the general know any thing of a Mons. Le Brun ? Gen. Carleton. I know him very well. He was a blackguard at Paris, and sent as a lawyer to Canada: there he gained an extreme bad character in many respects; he was taken up and imprisoned for a very filthy crime with children of eight or nine years old; for this he was fined, I think, 201. but being unable to pay it Mr. T. Townshend. I desire the general may withdraw. [He withdrew.] Sir, I know not what use is to be made of this part of the evidence; but sure I am it is a most unprecedented thing, and such an one, as an independent member of parliament, I cannot see and hear without interrupting it: you are criminating a man unheard not before you-and with whom you seem to have nothing to do. Lord North. This M. Le Brun has come over from Canada to make representations that it is the general opinion, desire, and wish of the Canadians to have an assembly: I thought it right to know how likely he was to know the opinion of that country; and what degree of dependence could be placed in his testimony: but I shall ask no more questions concerning him. [The general called in again.] Mr. Phipps. Were there any other objections to the English law than what the general has mentioned? Gen. Carleton. I recollect an instance against the criminal law. Some Canadian and English gentlemen were apprehended for a crime, and laid in gaol;-the whole province supposed them innocent, and the jury found them so; the nobility com 8 Mr. Maseres called in, and examined. Mr. Solicitor General. What form of government have the Canadians expressed themselves most desirous of? Mr. Maseres. They have no clear notions of government, having never been used to any such speculations: They will be content with any you give them, provided it be well administered. Mr. Mackworth. Have they expressed any dissatisfaction at the trial by jury in criminal matters? Mr. Maseres. They like it very well. Mr. T. Townshend. Do you know that they have any objection to the same trial in civil cases? Mr. Maseres. Certainly they have; but they principally consist in the expence and trouble of that attendance. Were they allowed a compensation, I should apprehend they would be well satisfied in all cases; and I think so small a sum as five shillings a man would do for that purpose. Mr. Solicitor General. Does Mr. Maseres think that they would be pleased with the abolition of their old customs by the introduction of our civil law? Mr. Maseres. A total abolition of their customs relative to descents, dower, and the transfer of land, would be highly of fensive to them. In other matters I believe they would be very well satisfied with the English laws. Mr. Mackworth. Would they have any objection to the law of Habeas Corpus? Mr. Maseres. It is impossible that any people should object to that law. Mr. T. Townshend. Did not the Canadians think themselves promised, by the proclamation, the benefit of an assembly, and do they not now desire to have it? Mr. Maseres. As to an assembly, they have a very confused idea of what it is; the generality of the people have no desire to have it, for they know not what it is; but there are a few among them who have considered the matter, and they would prefer an assembly. Mr. Mackworth. Does Mr. Maseres think that the provisions of this Bill for the government of Canada are the freest that could with propriety be granted? |