6-7 EDWARD VII., A. 1907 so considerable a number of Your submissive and faithful Children from participation in the favours of the best of Kings, of the tenderest of fathers? No Sire, prejudice has never reached Your Throne you love equally and without distinction all your faithful subjects. Your Canadians will always have for your august person the most perfect love, the greatest submission. It is from these claims Sire, that they expect from Your Majesty the same benevolence the same protection which you grant to all your subjects. Having been already informed, Sire by general Guy Carleton the governor of your Province of Your favourable intentions with regard to us, it is to this worthy representative of Your Majesty, who perfectly comprehends the Condition of this Colony and the customs of the people, that we confide our most humble supplications to be conveyed to the foot of Your Throne. The Report Sire, that the generous, wise and disinterested Governor will make to you, both of our hardships, which he has softened as much as lay in his power, and of our submission and affectionate conduct towards the government will we dare to hope, finish what your Royal and paternal heart has already begun. Restored to our customs and usages administered according to the forms with which we are familiar every individual will know the extent of his rights & the way to defend himself without being obliged to spend more than the value of his property to maintain himself in his possessions. Thus rendered able to serve our King and our country in every situation we shall no longer groan under this state of humiliation, which, so to speak, makes life unbearable to us, and seems to have made of us a reprobate nation. Overwhelmed, Sire, with your gifts and your favours, penetrated with love and gratitude, we will make known to our children the benefits for which we are indebted to your Majesty, and they will join with us in imploring the benedictions of Heaven on your sacred person, on your august family and for the prosperity & increase of your dominions. ADDITIONAL INSTRUCTIONS TO CARLETON 1771.1 George R. [L.S.] Additional Instruction to Our Trusty and Wellbeloved Guy 1 Canadian Archives, M. 230 pp. 114, 115. Carleton was at this time in London, (see note 2 p. 423) and it was apparently in response to his representations in favour of restoring the feudal power of the Crown in Canada that these and other alterations in the colonial system were adopted. See Carleton to Shelburne, p. 288, and Draught of Ordinance, p. 292. SESSIONAL PAPER No. 18 Given at Our Court at St James's the 2a Day of July 1771. Whereas it hath been represented unto Us, that the Terms and Conditions, under which you are by our Royal Instructions to you, authorized and directed to make Grants of Lands within our Province of Quebec under your Government, have been found to be inconvenient and inadequate; and that it would be more for our advantage, & for the benefit of Our Subjects inhabiting in, and restoring to our said Province, if the ancient Mode of granting Lands which prevailed under the French Government before the Conquest and Cession of the said Province, was to be adopted; We therefore taking the same into Our Royal Consideration, and being desirous to promote as far as in Us lies, the Welfare and Prosperity of Our said Province, have thought fit to revoke & do hereby revoke and annul all such parts of our said Instructions to you; & every Clause, Matter and Thing therein, which contain any Powers or Directions in respect to the granting of Lands within Our said Province; And it is Our Will and Pleasure & you are hereby authorized and empowered to grant, with the Advice of the Council of Our said Province, the Lands which remain subject to Our disposal, in Fief or Seigneurie, as hath been practised heretofore antecedent to the Conquest thereof; omitting however in such Grants, so to be made by you, the reservation of the exercise of such judicial Powers, as hath been long disused within Our said Province. And it is Our further Will and Pleasure that all Grants in Fief and Seigneurie, so to be passed by you, as aforesaid, be made subject to Our Royal Ratification, and also be registered within Our said Province, in like manner as was Practised in regard to Grants held in Fief and Seigneurie under the French Government.1 HILLSBOROUGH TO CRAMAHÉ.2 G.R. WHITEHALL 3rd July 1771 Lieut. Gov' CRAMAHÉ SIR, The King having been graciously pleased to appoint you Lieutenant Governor of the Province of Quebec, your Commission has been The extent to which these instructions reversed the existing system of land grants and land tenures, may be gathered from a reference to that portion of the previous Instructions to Governor Carleton dealing with land grants. See sections 40-58, pp. 313-319. In a letter of Carleton to Hillsborough, March 15th, 1769, he requests that he be permitted to return to Britain for a few months, in order to place his views directly before the Government. "By being upon the spot with the King's Servants, I might clear up to them many Points, and remove many Difficulties, which, at this Distance, can neither be so thoroughly discussed, or perfectly understood, as is necessary for the King's Service, whose Interests, in Regard to the Province, I really believe, I could more effectually promote and advance by a Residence of a few Months in London, than of so many years in this Country, and which I am the sooner induced, to propose, that the Government thereof, in my absence, would remain in the Hands of Mr. Cramahé, the eldest Councillor, from whose Sense, Moderation, and Disinterestedness, as well as knowledge of all public Business, concerning it, I am persuaded, the Interests of the Crown could not suffer." Q 6, p. 38. On Dec. 1st, Hillsborough reported that leave of absence had been granted. Carleton left Canada early in August 1770, and on the 9th a Proclamation was issued by Cramahé declaring that the command had temporarily devolved upon him. Carleton's stay in London being prolonged by the development of events in America and the relation of Canada to the situation there. Čramahé was raised to the rank of Lieutenant Governor, in July 1771. 6-7 EDWARD VII., A. 1907 delivered to General Carleton, and I beg you will accept my Congratulations upon this Mark of His Majesty's Attention to, and Approbation of your Merit & Services. The Affairs of Quebec have, since my last Letter to you, been under the Consideration of the Privy Council, and Orders have been given for such preparatory Steps to be taken, as will I trust lead to the final Settlement of those Arrangements which are so much wished for by His Majesty's faithful Subjects there; in the mean time His Majesty relies upon your prudence and discretion for such a representation of His gracious Intentions towards them, as shall have the effect to fix them in those Sentiments of Duty and Loyalty which they have so zealously expressed on all Occasions. I am &c REPORT OF SOLICITOR GENERAL ALEX. WEDDERBURN. I have taken the same2 into consideration, and in the course of my reflections upon the subject, I have found myself led into a discussion of the form of government, and of the religion of the Province, which must necessarily have great influence upon the plan of civil and criminal law proper to be adopted there. I have, therefore, presumed to form some idea upon both those heads as necessarily connected with the more immediate object of reference, and humbly to submit the result of my observations upon so important and so difficult a subject, under the following heads:First-The Government of the Province. Secondly-The Religion of the Inhabitants. Fourthly-The Judicatures necessary to carry those laws into exe cution. 1 By orders of the Court, of June 14th, 1771, and July 31st, 1772, Solicitor General Wedderburn and Attorney General Thurlow were directed "to take into consideration several reports and papers relative to the laws and courts of judicature of Quebec, and to the present defective mode of government in that Province, and to prepare a plan of civil and criminal law, for the said Province, and to make their several reports thereon.' The required reports were made, but hitherto it has been impossible to discover the originals among the documents in the Public Record Office, or elsewhere, though copies were apparently brought to Canada. As already observed, (see note 1, p. 377) the greatest secrecy was maintained with reference to all the reports and other important papers relating to Canada, after 1769. Copies of some of these were preserved and printed by their authors, as in the case of the Reports of Maseres and Marriott; others have been found among the papers of the Earl of Dartmouth, Colonial Secretary at the time of the passing of the Quebec Act, and a few of lesser importance have been found among the Haldimand Papers. Though the most essential of these Reports were called for, as means of information when the Quebec bill was before the House of Commons, they were entirely refused by the Ministry. A specific motion for Carleton's Report was brought to a vote and negatived by 85 to 46; another motion for Wedderburn's, Thurlow's and Marriott's Reports was negatived by 85 to 45. (See Cavendish's Debates on the Quebec Bill, pp. 94-95). The only form in which the Reports of Wedderburn and Thurlow have as yet been found, is in the shape of extracts published in "A History of the Late Province of Lower Canada, Parliamentary and Political, By Robert Christie." Wedderburn's Report was dated Dec. 6th, 1772. The extracts here given are copied from Christie's History, Vol. I, p. 27. Alexander Wedderburn was appointed Solicitor General in 1771, and Attorney General in 1778. In 1780 he was made Chief Justice of the Court of Common Pleas and raised to the peerage as Baron Loughborough. He held the office of Lord Chancellor from 1793 to 1801, and on retiring was created Earl of Rosslyn. 2 The matters referred to him. SESSIONAL PAPER No. 18 Canada is a conquered country. The capitulations secured the temporary enjoyment of certain rights, and the treaty of peace contained no reservation in favor of the inhabitants, except a very vague one as to the exercise of religion. Can it therefore be said that, by right of conquest, the conqueror may impose such laws as he pleases? This proposition has been maintained by some lawyers who have not distinguished between force and right. It is certainly in the power of a conqueror to dispose of those he has subdued, at discretion, and when the captivity of the vanquished was the consequence of victory the proposition might be true; but in more civilized times, when the object of war is dominion, when subjects and not slaves are the fruits of victory, no other right can be founded on conquest but that of regulating the political and civil government of the country, leaving to the individuals the enjoyment of their property, and of all privileges not inconsistent with the security of the conquest. The political government of Canada, before the conquest, was very simple; for, whatever appearance of regularity of controul and limitation the Arrêts and Commission present, all power, in fact, resided in the Governor and the Intendant. The Superior Council was generally at their devotion. They had the command of all the troops, of all the revenues, and of all the trade of the country. They had also the power of granting land; and in conjunction with the bishop, they had so superior an interest at the Court of France, that no complaint against their conduct was dangerous to their authority. This was the state of Canada till the treaty of peace. Upon the reduction of the province, a military government took place, and the change was not very sensible to the inhabitants. After the treaty of peace, a government succeeded which was neither military or civil, and it is not surprising that the Canadians should have often expressed a desire to return to a pure military government, which they had found to be less oppressive. Such a government, however, is not formed for duration, and in a settlement which is to become British, could not be endured beyond the limits of a garrison. The first consideration, in forming the political constitution of a country is, in what manner the power of making laws shall be exercised. If it were possible to provide every necessary regulation for a distant province, by orders from England, it might, perhaps, be the most eligible measure to reserve that authority entirely to the British legislature. But there must be many local interests of police, of commerce, and of political economy, which require the interposition of a legislative power, acquainted with the affairs, and immediately interested in the prosperity of a colony. In all the British colonies, that legislative power has been entrusted to an Assembly, in analogy to the constitution of the mother country. The most obvious method would then be, to pursue the same idea in Canada ; but the situation of that country is peculiar. The Assembly must either be composed of british subjects, or of british and Canadians. 6-7 EDWARD VII., A. 1907 In the first case, the native Canadian would feel the inequality of his situation, and think (perhaps truly) that he should be exposed to the oppression of his fellow-subjects. To admit the Canadian to a place in that Assembly (a right, which, from the nature of a conquest he has no absolute title to expect,) would be a dangerous experiment with new subjects, who should be taught to obey as well as to love this country, and, if possible, to cherish their dependence upon it. Besides, it would be an inexhaustible source of dissension and opposition between them, and the British subjects. It would be no less difficult to define the persons who should have a right to elect the Assembly.To exclude the Canadian subject would be impossible, for an Assembly chosen only by the British inhabitants, could no more be called a representative body of that colony, than a council of state is. To admit every Canadian proprietor of land would be disgusting and injurious to all the men of condition in the Province, who are accustomed to feel a very considerable difference between the seignior and the censier, though both are alike proprietors of land. Nor would it be beneficial to men of inferior rank; for every mode of raising them to the level of their superiors, except by the efforts of their own industry, is pernicious. It seems, therefore, totally inexpedient at present to form an Assembly in Canada. The power to make laws could not with safety be entrusted to the Governor alone; it must, therefore, be vested in a Council consisting of a certain number of persons, not totally dependent upon the Governor. The Chief Justice, the Attorney General, the Judge of the Vice Admiralty, the Collector of the revenue, and the Receiver General, (if these officers were obliged, as they ought, to reside there,) should hold a seat by virtue of their office; the other members to be nominated by your Majesty, and to be removed only by your royal orders. As power lodged in a few hands is sometimes liable to be abused, and always subject to suspicion, some controul to this authority is necessary. The first is, the establishment of a general system of laws for the colony. The second is, that in matters of taxation, in those which affect life, and in those which import an alteration of the established laws, no ordinance of the Council should have effect till it is confirmed in Great Britain. The third is, that it should not be in their power at all times to act as a legislative body; but that, their session should be confined to the period of six weeks previous to the opening of the navigation to Britain, and at no other time should they be assembled in that capacity, except upon some urgent occasion. Under these restraints, it seems reasonable that the power of making laws should be entrusted, for a limited number of years, to this Council, who will be enabled, from their knowledge of local circumstances, to form the necessary detail for executing the plan of laws to be transmitted to them, the regulations for the police of the country, for the administration of justice, for the collection of the revenue, and the improvement of trade and agriculture; and being bound down by certain rules upon the great |