CHAP. 1774. May 2. Bill brought House of 12th. 16th. 17th. 26th May to make ordinances for the government of the province, but not to impose taxes; and their edicts were to be considered as absolutely repealed, if disapproved by the King in council. The legislature was also restrained from enacting severe penalties for religious offences, and from meeting at undue seasons of the year, and without sufficient notices. Finally, the King was empowered to erect any courts, criminal, civil, or ecclesiastical, by letters patent under the great seal. Lord Dartmouth presented this bill to the House of Lords. No report is preserved of any debate upon it, nor does it appear from the journals that any amendment was moved upon which a discussion was likely. Papers were presented, shewing different ordinances made by virtue of the King's proclamation, under which the province was governed; but they were of no general importance. In the committee a few alterations were made; but not, as it appears, in consequence of any suggestion from the usual opponents of government. The only attempt at a material alteration was on the third reading, when a motion was made for a proviso, limiting the duration of the law to a period of seven years, which, after a debate, was rejected; and, after some further discussion, the bill passed, and was sent down to the House of Commons. No petition was presented, and no protest appears on the journals*. Probably, this apparent quietude arose from the opposition party not having, at first, contemplated or arranged measures of resistance; for in the lower House a struggle was strenuously maintained through every stage, from the first introduction of the bill. The chief general objections were derived from its tendency to establish a despotic government, contrary to the royal proclamation in 1763, and the indecency of urging a business of so much importance at a late period of the session, when many members had retired into the country. The clause which fixed the limits of the province * Lords' Journals, vol. xxxiv, at the dates in the margin. was censured on two grounds; first, if, in any future war, Canada should be restored to the French, they would, by the avowal of the British Parliament, derive a claim to a territory more ample than they had ceded at the last peace. We were giving up to Canada almost all that which was the subject of dispute, and for which we went to war, calling it the province of Virginia; but now we were telling the French that the assertion was merely a pretence for hostilities, for we then knew, as well as now, that it was part of Canada. Secondly, if we were to retain the province, the enormous addition operated as a grievance on the inhabitants of the planted and chartered colonies. If, in order to live on what they had ever esteemed their direct property, they crossed an imaginary line, they found themselves suddenly deprived of all their own charters, and all the common privileges of Englishmen, and subjected to an arbitrary system of French government: this was decried as a violent, cruel, and odious measure, which tore up justice and all its principles by the root. CHAP. XXII. 1774. To the argument on the restoration of the colony, Answer. Mr. Thurlow answered, that the limits of cession were never dependent on legislative arrangements, but on the length of the sword: success in war would give success in peace, and not imaginary lines drawn by a state for its colonies; nor had the limits now described any reference to old Canada; it was not a restoration of the limits once claimed by France, but a new scheme, including countries for which France had never contended. With respect to the injury to be sustained by the inhabitants of chartered colonies, it was observed, that they must voluntarily place themselves in a situation to receive it; and it would be extremely imprudent, in favour of such a supposition, to leave without government all the chain of posts already established by the French through the whole country included in the bill, and not protected by any law, or defended by any charter. Mr. Fox started an unexpected and ingenious ob CHAP. 1774. May 31. Petition of the Penn family. Opposition on the subject of religion. jection to the reception of the bill. It provided that the clergy of the church of Rome might hold, receive, and enjoy their accustomed dues and rights, with respect to such persons as should profess that religion. As those words included the receiving of tythes, which were, to all intents and purposes, a tax on the people of Canada, it was, he said, contrary to the rules of Parliament, that a money-bill, for such must this be considered, should have its origin elsewhere than in the House of Commons. This point was ably and strenuously argued by Mr. Dunning, Mr. Serjeant Glynn, and some other members; but the difficulty was easily solved by the fact that the rights of Roman Catholic clergy were guaranteed by the definite treaty, and by the irresistible observation that tythe was not a tax; it was a new measuring out of land, due at that moment, the subject of an action at law, the object of exchange or compensation, as was daily evinced in bills for inclosure or other improvements: it had never before been called a tax, and many bills for purposes in which tythe was comprehended had originated with the lords. The decision of the house was adverse to Mr. Fox's opinion; but he continued to maintain it, and repeated it when the third reading of the bill was ordered which fixed the boundaries. Against this part of the bill a petition was presented on behalf of the Penn family, and, as it was alleged that they would, by its operation, be deprived of a portion of their legal estates in Pennsylvania, and the three lower counties of Newcastle, Kent, and Sussex, in the Delaware, the minister admitted its validity, and said, it never was the intention of the measure to affect the just rights of the proprietors or of the colonies. The clause allowing the exercise of the Romish religion was opposed, not so much by direct motions leading to divisions, although some of these occurred, as by angry and intemperate observations. Mr. William Burke described the bill as the worst that ever engaged the attention of a British council; to establish the popish religion, was to establish despotism. CHAP. XXII. 1774. In some instances we had, as far as we were able, established freedom; but to establish Popery, to establish despotism in a conquered province, was what we had never done before. To aid the cause of prejudice, when argument was wanting, Colonel Barré said, the bill was Popish from the beginning to the end. The lords, with whom it originated, were the Romish priests, who were to give his Majesty absolution for breaking the promise made in the proclamation of 1763. On the motion that it should pass, Mr. Howard denounced it as a most abominable and detestable measure, tending to introduce tyranny and arbitrary power in all the colonies; to give a further establishment to Popery; to annul the bill of toleration, and to destroy the act of Habeas Corpus. It was a money-bill, and no treatment too contemptuous could be applied to it. The Speaker ought to throw it over the table, and somebody else should kick it out at the door. On the part of government, it was denied that the Romish religion was established; it was tolerated. Some distinction between toleration and establishment, but nothing of importance, was urged, nor any amendment attempted, except in the form of one of the prescribed oaths. An effort was made to excite popular prejudice, Petition from and the corporation of London, in a petition against the city. the bill, did not forget to remind the King, that the Romish religion was idolatrous and bloody, and that his illustrious family was called to the throne, in consequence of the exclusion of the Roman Catholic ancient branch of the Stuart line, under an express stipulation to profess and maintain the Protestant faith. law. The continuance of the French law, dispensing Opposition on justice without a jury in civil, while the English code the subject of was granted in criminal cases, occasioned numerous and violent debates. The opposition insisted, that by this distinction, a complete despotism was established: the King, by mixing his English with French subjects, and involving both in the same law, obtained over both all the powers of a French king: he might even, if he pleased, imprison by Lettres de Cachet. VOL. II. H CHAP. 1774. Petition of the Canada merchants in London. Evidence. The privation of the trial by jury, in civil cases, and of the Habeas Corpus, was represented as an intolerable hardship. The merchants of London trading to Canada petitioned against this part of the bill, as tending to render their property less secure, and were heard by counsel. Two merchants* were produced as witnesses, who stated, that the people of Canada were highly pleased with the trial in civil causes; and that a discontinuance of it would be of great prejudice. On the other hand, five witnesses were examined, some of whom had been long resident, and filled important stations in the colonyt; from their information it generally resulted, that the Canadians, though highly pleased with the British form of criminal jurisprudence, had an insurmountable disgust to the decision of civil causes by a jury. An at The enormous expense of that mode of trial in a country thinly inhabited; the difficulty of obtaining the attendance of jurors, and the amount of their travelling charges and maintenance, were successfully urged as reasons against the establishment. tempt was made during the progress of the bill to obtain a right for either party in a suit to demand a trial by jury, but without effect. The general arguments relative to tyranny, and the want of the Habeas Corpus, could not, it was observed, be decided on mere suppositions; time would discover, and the legislature of the colony would announce, whether the King did in fact imprison his subjects by Lettres de Cachet, and whether they felt any real grievance from the non-introduction of a new writ, incompatible with the forms of that law by which they preferred to be governed. * Edward Watts and Samuel Morin. They were General Carleton, governor of Canada: Mr. Maseres, cursitorbaron of the exchequer, late attorney-general of the province, and agent to the English inhabitants; Mr. Hey, chief-justice of the province; Mr. Lothbiniere, a French gentleman of considerable property; and Dr. Marriott, the king's advocate-general. Some ill temper was displayed in examining these gentlemen, particularly General Carelton and Dr. Marriott; but they both, Dr. Marriott especially, evinced a dignified calmness and self-possession which frustrated all attempts to expose their evidence to censure, or to extract from them any improper disclosures. |