CHAPTER III

THE DEFINITIVE TREATY OF PARIS

1763

THE NEW CIVIL GOVERNMENT

THE DEFINITIVE TREATY OF PEACE--SECTION RELATING TO CANADA--CATHOLIC DISABILITIES AND THE PHRASE “AS FAR AS THE LAWS OF GREAT BRITAIN PERMIT”--THE TREATY RECEIVED WITH DELIGHT BY THE “OLD” SUBJECTS BUT WITH DISAPPOINTMENT BY THE “NEW”--THE INEVITABLE STRUGGLES BEGIN, TO CULMINATE IN THE QUEBEC ACT OF 1774--OPPOSITION AT MONTREAL, THE HEADQUARTERS OF THE SEIGNEURS--THE NEW CIVIL GOVERNMENT IN ACTION--CIVIL COURTS AND JUSTICES OF THE PEACE ESTABLISHED--MURRAY’S ACTION IN ALLOWING “ALL SUBJECTS OF THE COLONY” TO BE CALLED UPON TO ACT AS JURORS VIOLENTLY OPPOSED BY THE BRITISH PARTY AS UNCONSTITUTIONAL--THE PROTEST OF THE QUEBEC GRAND JURY--SUBSEQUENT MODIFICATIONS IN 1766 TO SUIT ALL PARTIES--GOVERNOR MURRAY’S COMMENT ON MONTREAL, “EVERY INTRIGUE TO OUR DISADVANTAGE WILL BE HATCHED THERE”--MURRAY AND THE MONTREAL MERCHANTS--A TIME OF MISUNDERSTANDING. NOTE: LIST OF SUBSEQUENT GOVERNORS.

Before proceeding further it will be well to set before the reader some special portions of “_The definitive treaty of peace and friendship between His Britannic Majesty, the Most Christian King, and the king of Spain, concluded at Paris the 10th day of February, 1763, to which the king of Portugal acceded on the same day_.”

Section IV relating to Canada was as follows:

“His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadia in all its parts, and guarantees the whole of it and with all its dependencies to the King of Great Britain. Moreover his most Christian Majesty accedes and guarantees to his said Britannic Majesty in full right, Canada with all its dependencies as well as the island of Cape Breton and all the other islands and coasts in the Gulph and river of St. Lawrence and in general everything that depends on the said countries, lands, islands and coasts with the sovereignty, property, possessions and all rights acquired by treaty or otherwise, which the Most Christian King and the crown of France have had till now over the said countries, lands, islands, places, coasts and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King and to the Crown of Great Britain and that in the most ample manner and form, without restriction and without any liberty to depart from the said cession and guarantee under any pretense, or to disturb Great Britain in the possessions above mentioned.

“His Britannic Majesty on his side agrees to grant the liberty of the Catholick religion to the inhabitants of Canada; he will in consequence give the most precise and most effectual orders that his new Roman Catholick subjects may profess the worship of their religion according to the rights of the Romish church as far as the laws of Great Britain permit. His Britannic Majesty further agrees that the French inhabitants or others who have been subjects of the Most Christian King in Canada may retire with all safety and freedom whenever they shall think proper and may sell their estates provided it be to the subjects of His Britannic Majesty, and bring away their effects as well as their persons without being restrained in their emigration under any pretense whatever except that of debts or of criminal prosecutions; the term limited for this emigration shall be fixed to the space of eighteen months to be computed from the day of the exchange of the ratification of the present treaty.”

The definitive treaty of Paris of February 10, 1763, proclaimed by Governor Gage in Montreal on May 17th, was received with delight by the English merchants, for they looked forward eagerly for the civil government to be set up in which they, but a handful, hoped by the right of conquest to assume the high hand. They had long chafed under what they, more than the “Canadians,” chose to call military despotism. They had looked upon the amicable temporary participation of the Canadians in their own government, with eyes of envy. They were of the same metal as the British merchants of Quebec who, relying on their undoubted energy in developing the commercial interests of the country, and in their self-satisfaction, so aggrandized their own importance that they wished to rule solely, so that they early petitioned his Majesty for a representative assembly in this province as in all the other provinces of His Majesty. “There are,” they said, “a sufficient number of loyal and interested Protestants outside the military officers to form a legislative assembly, and the new subjects of His Majesty, if he should believe it proper, could be authorized to elect Protestants without having to take oath against their conscience.” (See constitutional documents, Doughty & Shortt.)

There were only about two hundred Protestants, and these not all educated or upright men, in the whole country at this time--in Quebec 144, in Montreal 56. Yet they desired to represent the whole people and to exclude the “new subjects” from every position of trust under the new civil government. At the time of Murray’s recall in 1766 they had reached the number of 450.

The Canadians were not prepared for the new turn of the tide. In consequence we shall see that between 1763 and 1774 the country was in an unsettled state, owing to the conflict inevitable between the two forces of the old and new régimes striving for recognition.

Under the military law the “new subjects” had been entrusted with a share in the government. The English rulers were officers and gentlemen who respected the claims of the Seigneurs as well as of the simple habitants, and moreover their religion was held in honour. They had been led to believe that this happy state would continue. Gage and Murray in their report to Egremont seem to hint how they were hoodwinked. “Canadians are very ignorant and extremely tenacious of their religion. Nothing can contribute to make them staunch subjects to His Majesty as the new government giving them every reason to imagine no alteration is to be attempted in that point.”

Thus when the “new subjects” came to understand that they were only to “profess the worship of their religion according to the rights of the Romish church _as far as the laws of Great Britain permit_,” and that that permission was to be interpreted along the lines of the Catholic civil disabilities in England, they felt that they were proscribed men who had been ensnared by roseate promises of a wise interpretation of British liberty to be extended to them as new subjects.

The situation was impossible and at once there began the inevitable struggle and the long series of accommodations that were eventually to culminate in the Quebec act of 1774, the Magna Charta of French Canadians. The significance of this act cannot be understood unless the religious proscription in the policy of the new government be understood. Hence the opposition among the Seigneurs in Montreal, their headquarters, was secretly fostered, which later alarmed Carleton so much, as we shall see. The French Canadian clergy and Seigneurs of Montreal looked upon the new change of government as an attempt to Anglicize their religion as well as their laws. And they were not far wrong. In a letter to Governor Murray, the secretary of state, Lord Egremont, wrote from Whitehall on August 13, 1763, acquainting him that the King had been graciously pleased to confer on him the civil government of Canada and making special reference to the qualification, “as far as the laws of Great Britain permit,” which laws, he explains, prohibit absolutely all Popish hierarchy in any of the dominions belonging to the Crown of Great Britain and can only admit of a toleration of the exercise of that religion; this matter was clearly understood in the negotiation of the exercise of that religion; the French ministers proposed to insert the words _comme ci-devant_ in order that the Romish religion should continue to be exercised in the same manner as under their government; and they did not give up their point until they were plainly told that it would be deceiving them to admit those words, for the king had not the power to tolerate 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 this subject.”

The intention was precisely to tolerate for a time the Romish religion and gradually to supplant it. The royal instructions to Governor Murray, given from the court of St. James by King George on the 7th day of December, 1763, leave no doubt on this head. The intention to suppress the natural growth of the Catholic church in Canada by crippling it forever at its fountain head by giving no guarantee of the recognition of the Episcopal power and jurisdiction, had already been foreshadowed in the two clauses submitted by Vaudreuil in the terms of the capitulation of Montreal.

Article XXX: “If by the treaty of peace Canada shall remain in the power of His Britannic Majesty, His Most Christian Majesty shall continue to name the bishop of the colony, who shall always be of the Roman communion and under whose authority the people shall exercise the Roman religion: ‘Refused.’”

Article XXXI: “The bishop shall, in case of need, establish new parishes and provide for the building of his cathedral and his Episcopal palace; and in the meantime he shall have the liberty to dwell in towns or parishes as he shall judge proper. He shall be at liberty to visit his diocese with the ordinary ceremonies and exercise also the jurisdiction which his predecessor exercised under the French dominion, save that an oath of fidelity or a promise to do nothing contrary to His Britannic Majesty’s service, may be required of him: ‘This article is comprised under the foregoing.’”

The reason for this was signalized in the instructions later to Murray, Carleton and Haldimand in the clause beginning:

“And to the end that the ecclesiastical jurisdiction of the lord bishop of London may take place in our province under your government as conveniently as possible,” etc.

Section XXXII reads: “You are not to admit of any ecclesiastical jurisdiction of the See of Rome or of any other foreign jurisdiction whatsoever in the province under your government.”

Section XXXIII: “And to the end that the Church of England may be established both in principle and practice and that the said inhabitants may by degrees be induced to embrace the Protestant religion and their children be brought up in the principles of it, we do hereby declare it to be our intention when the said province shall have been accurately surveyed and divided into townships, districts, precincts or parishes in such manner as shall be hereinafter directed, all possible encouragement shall be given to the erecting of Protestant schools in the same districts, townships and precincts by settling, appointing and allotting proper quantities of land for that purpose and also for a glebe and maintenance for a Protestant minister and Protestant schoolmaster, and you are to consider and report to us by our Commissions for Trade and Plantation by what other means the Protestant religion may be promoted, established and encouraged in our province under your government.”

This instruction to Murray is repeated in those to Governor Carleton, 1768, and to Governor Haldimand, 1778.

Let us see how the civil government worked out. It was proclaimed on April 10, 1764, the delay being caused to allow the French Canadians the eighteen months, stipulated by the treaty of Paris, in which they might leave the country. Murray had been appointed governor-general of the province of Quebec by the commission of November 21, 1763, and the instructions were dated on December 7th. But Murray had not promulgated the new dignity accorded him till on September 17th, 1764, the first great act of the new régime being opened by his ordinance establishing civil courts. It may be briefly stated as follows: there was to be a Superior Court of judicature or King’s Bench, which should be held at Quebec twice a year at the Hilary term commencing on January 1st and at Trinity term on June 21st. Its president should be the chief justice of Canada. This was William Gregory. This man, with the attorney-general, Suckling, were soon removed for incompetency. Later in 1766 a Michaelmas term was added. Montreal and Three Rivers were to have the chief justices’ court of assizes and jail delivery after Hilary once a year.

Strangely enough, though not unnaturally, Murray had inserted a clause in the act which was afterwards violently objected to by the English merchants as going beyond his commission, viz., that _all the subjects of the colony_ could be called upon without distinction to take their place on the jury. Murray had to explain this to the English government and accordingly with the copy of the above act sent, he remarked to the following effect: “As there are only two hundred Protestant subjects in the province, the greater part of which is composed of disbanded soldiers of small fortunes and of little capacity, it is considered unjust to prevent the Roman Catholic new subjects from taking part on juries, for such an exclusion would constitute the said two hundred Protestants perpetual judges of the lives and fortunes not only of the eighty thousand new subjects but of all the military in this province. Moreover, if the Canadians are not admitted to juries many will emigrate.” Murray felt that his position might not carry, for he adds: “This arrangement is nothing else than a temporary expedient to leave affairs in their present state until the pleasure of His Majesty on this critical and difficult point be made known.”

Besides the superior court there should be an inferior court of “Common Pleas” to settle civil cases involving sums of beyond ten _louis_. Beyond twenty _louis_ there was appeal allowed to the superior court. If desired there could be juries called in this court. French advocates and proctors could practice in this court, though not in the superior court. Murray explains the liberty taken by him in allowing this: “Because we have not as yet a single English advocate or proctor understanding the French language.” He also observed that the court of common pleas was established solely for the protection of the French Canadian.

In addition to the other two courts, Justices of the Peace were established at Quebec and Montreal who should hold quarter sessions. These officers of the magistracy, according to Murray’s instructions, had to be Protestants. One justice was to have jurisdiction in disputes to the value of five pounds; two were required for cases to the value of ten pounds. Three justices should form a quorum to hold quarter sessions, to adjudicate in cases from ten pounds to thirty pounds. Two justices were to sit weekly in rotation in Quebec and Montreal.

Finally there should be elected in every parish in the country bailiffs and sub-bailiffs. The elections were to take place every 21st day of June and they were to enter upon their duties on September 29th. “We call them bailiffs,” commenced Murray, “because the new subjects understand the word better than that of constables.” The word constable, will, however, better explain the nature of their multifarious duties.

We now have a view of the change in the law courts in Montreal: a yearly session of the king’s court and of the court of common pleas, quarter sessions held by the justices of the peace, and in the parishes, the bailiffs or constables.

Hardly had the courts erected by the act of September 7th been held, than the grand jury of Quebec protested vehemently at the new courts and especially at the privileges given the new subjects. Their opposition was expected by Murray for his comment, sent with the act, ran: that some of the English merchants residing here of whom only ten or a dozen at most possess any settled property in this province, are very dissatisfied at the privileges granted to the Canadians to act on juries; the reason of this is very evident as their influence is restrained by the measure.

Britishers on the jury who thought the favours to Catholics unconstitutional were only victims of their narrow prejudices formed by the prevailing intolerance then existing in England and its colonies. The toleration to Catholics according to the phrase “as far as the laws of Great Britain allow” was not the wide freedom we see nowadays.

A protest against allowing the latter class to practice in the courts or to serve on juries was made early by the Protestant members of the grand jury of Quebec on October 16, 1764, as follows: “That by the definitive treaty the Roman religion was only tolerated in the province of Quebec as far as the laws of Great Britain had met. It was and is enacted by the third act, January 1st, chapter V, section 8, ‘No Papist or Popish recusant convict shall practice the common law as a counsellor, clerk, attorney or solicitor, nor shall practice the civic law as advocate or proctor, nor practice physick, nor be an apothecary, nor shall be a judge, minister, clerk or steward of or in any court, nor shall bear any office or charge as captain, master, or governor, or bear any office of charge of, or, in any ship, castle or fortress, but be utterly disabled for the same, and every person herein shall forfeit one hundred pounds, half to the king and half to them that shall sue.’ We therefore believe that the admitting of persons of Romish religion, who own the authority, supremacy and jurisdiction of the church of Rome, as jurors is an open violation of our most sacred laws and liberties, tending to the utter subversion of the Protestant religion and His Majesty’s power, authority, right and possession of the province to which we belong.” Later these jurors pretended that they had never meant to exclude Catholic jurors, but only as jurors when Protestants were contestants. The above argument shows their original _intrinsigeance_.

Later, in February, 1766, modifications were introduced; when the contestants were British the jury should be British; when Canadians, Canadians; when the contestants were mixed the jury should also be mixed. These conflicts were inevitable in unsettled times when two peoples were of different mental outlooks, politically, racially and religiously. The melting pot of time will solve such difficulties, when the viewpoints of both parties would be more sympathetically understood. In the meantime the historical situation at the time was painful.

Governor Murray’s letter to the Lords of Trade, written a few days after the presentment of the jury is a fair and statesman-like view of the difficult period.

“Quebec, 29th of October, 1764.

“* * * Little, very little, will content the new subjects, but nothing will satisfy the licentious fanaticks trading here, but the expulsion of the Canadians who are perhaps the bravest and best race upon the globe, a race who, could they be indulged with a few privileges which the laws of England deny to Roman Catholics at home, would soon get the better of every national antipathy to their conquerors and become the most faithful and most useful set of men in this American empire.

“I flatter myself there will be some remedy found out even in the laws for the relief of this people. If so, I am positive the popular clamours in England will not prevent the humane heart of the king from following its own dictates. I am confident, too, my royal master will not blame the unanimous opinion of his council here for the ordinance establishing the courts of justice, as nothing less could be done to prevent great numbers from emigrating directly and certain I am, unless the Canadians are admitted on juries and are allowed judges and lawyers who understand their language, His Majesty will lose the greatest part of this valuable people.”

His letter immediately continues with the following allusion which helps us to place the position of Montreal in the above general constitutional crisis then affecting the colony. “I beg leave further,” says Murray, “to represent to your Lordship that a lieutenant governor at Montreal is absolutely necessary. That town is in the heart of the most populous part of the provinces. It is surrounded by the Indian nations and is 180 miles from the capital. It is there that the most opulent priests live and there are settled the greatest part of the French noblesse. Consequently every intrigue to our disadvantage will be hatched there.”

A postscript to this letter to the Lords of Trade and Plantations, gives Murray’s appreciation of some of the great commercial class: “P.S.--I have been informed that Messrs. William McKenzie, Alexander McKenzie and William Grant have been soliciting their friends in London to prevail upon Your Lordship to get them admitted into his Majesty’s council of this province. I think it my duty to acquaint Your Lordships that the first of these men is a notorious smuggler and a turbulent man, the second a weak man of little character and the third a conceited boy. In short it will be impossible to do business with any of them.”

This postscript indicates the strain and bitter personal relations between Murray and some of the British commercial element in the colony, who finally succeeded in obtaining his recall.

Unfortunately, Murray was not always as discreet or as just in the consideration of his opponents, as his position justified. He was a soldier rather than a peace maker. In addition, others besides the British merchant did not see eye to eye with him in the interpretation of the new Treaty of Paris or in the application of English laws in Canada.

They retorted as did the Quebec traders, that the governor “doth frequently treat them with a rage and rudeness of language and demeanour as dishonourable to the trust he holds of Your Majesty as painful to those who suffer from it.”

In commenting on this period, Prof. F.P. Walton, dean of the faculty of Law at McGill University, has the following criticism (Cf. University Magazine, April, 1908):

He is speaking of the charge against Murray’s interpretation of the new situation of the application of the new civil government.

“It is probable,” he says, “that at no period in the history of Canada were legal questions so much discussed among the mass of the population as in the first ten years of the English _régime_. This is not surprising when we consider that the question whether the English or the French law was in force in the Province was one of no little difficulty. It was contended with much plausibility that Murray’s Ordinances were of no legal validity because, under the King’s proclamation, legislative authority in the Province was to be exercised only by the governor with the consent of a council and assembly, and that no assembly had ever been summoned. This is not the place for a discussion of this subject. I prefer the view of those who maintain that the English law was introduced by the proclamation of 1763. The case of Campbell and Hall is sufficient authority for the proposition, that the King had the power without parliament to alter the law of Quebec. It seems to me that the natural construction of the proclamation itself is, that the King intended to introduce the English law there and then. Murray, as Masères says in his very convincing argument, ‘meant only to erect and constitute courts of judicature to administer a system of laws already in being, to wit, the laws of England.’ The whole affair was to a great extent a misunderstanding. The English government had no intention to force the English laws on an unwilling people. They understood that they were giving ‘Home Rule’ to the Province of Quebec, and expected that the Canadians would abrogate such parts of the English law as they did not consider suitable, and would re-enact the portions of the old French law which they desired to retain. They did not foresee that, owing to the impracticability of calling an assembly, the Province would be left without any authority competent to legislate.”

It was, indeed, a time of great misunderstanding.

NOTE

GOVERNORS UNDER BRITISH RULE

As it may be convenient henceforth to omit mention of the advent of successive governors, this list is appended for the purpose of reference.

* (Gen. Jeffrey Amherst) 1760 * Gen. James Murray 1763 P. Aemilius Irving (President) 1766 * Gen. Sir Guy Carleton (Lieutenant Governor and Acting Governor General) 1766 H.G. Cramahé 1770 * Gen. Sir Guy Carleton 1774 * Gen. Frederick Haldimand 1778 Henry Hamilton (Lieutenant Governor) 1784 Henry Hope (Lieutenant Governor) 1785 * Lord Dorchester (Guy Carleton) 1786

ON THE DIVISION OF THE TWO CANADAS

Alured Clarke 1791 * Lord Dorchester 1793 * Maj.-Gen. Robert Prescott 1796 Sir. R.S. Milnes 1799 Hon. Thomas Dunn 1805 * Sir James H. Craig 1807 Hon. Thomas Dunn 1811 * Sir George Prevost 1811 Sir Gordon Drummond 1815 Gen. John Wilson 1816 * Sir John Sherbrooke 1816 * Duke of Richmond 1818 Sir James Monk 1819 Sir Peregrine Maitland 1820 * Earl of Dalhousie 1820 Sir. F.N. Burton 1824 * Earl of Dalhousie 1825 Sir James Kempt 1828 * Lord Alymer 1830 * Earl of Gosford 1835 * Sir John Colborne 1838 * Earl of Durham 1838 * C. Poulett Thomson (Lord Sydenham) 1839

UNDER THE UNION

* Baron Sydenham (Hon. Charles Poulett Thomson) 1841 R.D. Jackson (Administrator) 1841 * Sir Charles Bagot 1842 * Sir Charles Metcalfe 1843 * Earl Cathcart 1845 * Earl of Elgin 1847 W. Rowan (Administrator) 1853 * Sir Edmund Head 1854 * Lord Viscount Monck 1861

UNDER THE CONFEDERATION

* The Rt. Hon. Viscount Monck, G.C.M.G. 1867 * The Rt. Hon. Lord Lisgar, G.C.M.G. (Sir John Young) 1868 * The Rt. Hon. The Earl of Dufferin, K.P., K.C.B., G.C.M.G. 1872 * The Rt. Hon. The Marquis of Lome, K.T., G.C.M.G., P.C. 1878 * The Rt. Hon. The Marquis of Lansdowne, G.C.M.G. 1883 * The Rt. Hon. Lord Stanley of Preston, G.C.B. 1888 * The Rt. Hon. The Earl of Minto, G.C.M.G. 1898 * The Rt. Hon. The Earl of Aberdeen, K.T., G.C.M.G. 1893 * The Rt. Hon. The Earl Grey, G.C.M.G. 1904 * Field Marshal, H.R.H., The Duke of Connaught, K.C., G.C.M.G. 1911

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Those not marked * acted only as administrators. When a governor had acted as administrator immediately before becoming governor, the earlier date is given. The names of all the ad interim administrators are not given.

LIEUTENANT GOVERNORS OF QUEBEC

(After Confederation)

The Rt. Hon. Sir Narcisse Fortunat Belleau The Rt. Hon. Sir Narcisse Fortunat Belleau (re-appointed) Hon. Rene Edouard Caron Hon. Luc Letellier de St. Just Hon. Theodore Robitaille Hon. Louis François Rodique Masson Hon. Auguste Real Angers Hon. Sir J.A. Chapleau Hon. L.A. Jetté Hon. L.A. Jetté (re-appointed) Hon. Sir Charles A.P. Pelletier Hon. Sir François Langelier