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It is beside the purpose
of this work to attempt a constitutional history of the Provinces in
full detail. Nevertheless, in order to link together the names and
active services of Scotsmen in public life, it appears advisable, in
addition to what has already appeared in a previous part of this work,
to give at least the thread of the whole story in a connected way. The
French régime, with its various changes may be disposed of in a
paragraph. During more than a century, the Colony of New France,
although nominally a Gallic possession, was practically in the hands of
commercial monopolies. Such were the establishments in Acadia under De
Monts—"The Associated Merchants," and "The Hundred
Associates," a Company chartered by Cardinal Richelieu. In 1663,
however, Canada was constituted a Sovereign Colony, governed by a
Council consisting of six, then eight, and finally twelve members. Of
these the Governor, the Bishop and the Intendant were the chief, being ex-officio
members. The Governor was the first subject in New France, usually a
noble. He had the power of making war and peace, and of entering into
treaties, standing, in fact, as the representative of the Crown. In like
manner, the Bishop superintended ecclesiastical affairs, and was supreme
within the sphere alloted to him. The Intendant, although he yielded
precedence to the Viceroy and Bishop, was practically a more powerful
ruler. Usually a lawyer, he was often a spy upon the Governor, [Parkman’s
The Old Regime in Canada, chap. xvi.] and conducted
correspondence with Versailles on his own account. He presided at the
Council-board, and had entire control of finance, justice, police and
marine, subject of course, more or less, to the approval of the Council.
As a matter of fact, the Intendant acted much as he pleased. The first
who held the office was Talon, a man of singularly upright and
intelligent character; the last, Bigot, has left an unenviable
reputation as a ruler, grasping, extravagant, thoroughly base and
unscrupulous.
The land was held by
feudal tenure, that system having been definitively established by
Richelieu in the Charter of the Hundred Associates, in the year 1627.
The seignior was the grantee of the Crown, and became its vassal. In
Canada the King and his officers exercised much greater power even than
in France. They had in fact an unbounded right of intervention in the
seignior’s affairs. The censitaire held his land again by an inferior
tenure from the lord, and was bound to pay him an annual amount in money
or produce, or in both, per acre. He was also liable to the lods et
ventes, or mutation fines, to be paid, if he sold his title to the
land, to the extent of one-twelfth of the purchase money. [The Old
Regime, chap. xv.] In some cases, it may be added, the superior
granted land to inferior vassals, and these again made grants to their
vassals, who were habitants, or regular cultivators of the soil. [Ibid.,
p. 245.]The administration of justice was, on the whole, fair and
equitable; yet, as might have been expected, it favoured, in practice,
the superior class. The Council issued decrees, being only controlled by
the royal edicts and the custom of Paris. Subordinate Courts were
constituted in the judicial districts of Quebec, Three Rivers and
Montreal. The seigniors inhabiting the corporate seigniory of Montreal
had also the right to settle disputes, but, in course of time their
jurisdiction was restricted to small causes.
Thus then lived the
Franco-Canadian, for the most part happy and contented. His tastes were
frugal, his habits simple, and his wants singularly moderate. He was
attached to his Church, and seldom found fault with occasional rapacity
of his rulers. The younger spirits who rebelled against the hum-drum
life of the Colony, found a vent to their energies as coureurs de
bois, or in those interminable struggles with the Iroquois which had
been left as a fatal heritage of woe and bloodshed by the folly of the
early leaders and viceroys. All was changed by the conquest which ended
with the capitulations of 1759-60. Up to this time the Government had
been purely despotic, after the true Bourbon fashion. Feudalism was
thoroughly interwoven with the social life of Canada, and freedom in any
sense can hardly be said to have had an existence. The problem which now
presented itself to the Imperial Government was new, and one not easy of
solution. A military period of transition was inevitable under the
circumstances—at all events until the country was formally ceded to
Britain, in 1763. Under General Murray, this "despotism," [History
(Bell’s translation), Lib. xi., ch. I. But see Christie: History,
vol. i. p. 2.] as Garneau somewhat invidiously terms it, the
"new subjects" of the Crown enjoyed an amount of liberty they
had not known before. But they were firmly attached to the old system,
especially in so far as the administration of justice was concerned, and
saw, with dismay, the likelihood that their institutions might be
superseded by the more liberal and enlightened jurisprudence of England.
The British population were few in number, but they had the ear of the
mother country, and clamorously demanded the immediate introduction of
English laws, pure and simple. Being conquerors, they considered it
their right to give laws to the vanquished. Hence a struggle which
lasted eleven years. In 1763 King George III. issued a proclamation in
which he promised that, so soon as circumstances permitted, General
Assemblies of the people should be convened in the same manner as in the
American Provinces; and ordained that in the meantime the laws of
England were to be in force. Thus," says McMullen, [History, p.
192.] "all the laws, customs and judicial forms of a populous and
ancient colony were in one hour overturned, and English laws, even the
penal statutes against Roman Catholics, introduced in their stead."
It may be admitted that this measure was "rash and
ill-advised;" yet it never was harshly construed, and after a brief
struggle the old system, exclusive of criminal and ultimately of
commercial law, was re-established. This welcome concession, made in
1774, was embodied in the celebrated Quebec Act of that year. [14 Geo,
III, cap. 85: "An Act for making more effectual provision for the
Government of the Province of Quebec." See Sir Henry Cavendish: Debates
of the House of Commons, &c. First published from his notes.
London: 1839.] Before entering upon the changes wrought by this measure,
reference may be made to the establishment of the first newspaper issued
in Canada. Messrs William Brown and Thomas Gilmour, or Gilmore, who
were, we believe, Scots, came from Philadelphia in 1764, and established
the Quebec Gazette. The first number was issued on the
twenty-first of June, with a subscription list of one hundred and fifty.
This pioneer journal was, in the strictest sense, a newspaper, no
comments on political affairs being permitted by Government. Indeed, it
was not until 1800 that the Canadian editor ventured to discuss matters
of State. [Lemoine: Quebec, Past and Present, p. 188; McMullen’s
History, p. 192; Morgan Celebrated Canadians, &c., p.
80. The Montreal Gazette was established in 1778, by James Brown.] It
was not, as will be seen hereafter, until 1791 that even the forms of
parliamentary government were conceded to the Canadian subjects of the
Crown.
The Act of 1774 owed its
inception to Sir Guy Carleton, who was impressed with the injustice of
imposing British institutions, laws and language upon the French
Canadians, who formed an overwhelming majority of the population. But
the British settlers—for the most part of the military class—met the
proposed legislation with the most determined opposition. The colonies
to the southward were in the early stage of revolution, because the
Imperial Parliament had thought fit to tax them without the consent of
their representatives. Yet in Canada it was proposed to perpetuate the
same system, without even establishing the General Assembly promised in
the Royal proclamation of 1763. There yet another grievance. Lord North’s
Government proposed to restore to the Catholic clergy the right to
collect tithes from their co-religionists, thus putting the old Church
upon the footing of a quasi establishment. The Corporation of the City
of London, which heartily espoused the cause of the British colonists,
addressed a petition to the King against the Bill in which the
objections to it were concisely set out. [This document will be found in
Christie’s History, vol. i., p. 6, note.] These may be
summarized as follows: 1. That the Bill was subversive of the
fundamental principles of the constitution; 2. That it denied British
subjects there of the advantages of English law, and especially of trial
by jury; 3. That the faith of the Crown had been pledged to those who
settled in Canada; 4. That the Bill established the Roman Catholic
religion, "which is known to be idolatrous and bloody,"
contrary to the express provisions of the Act of Settlement; 5. That the
legislative power was to be wholly vested in appointees of the Crown.
The Act itself now demands attention. It set out that there were 65,000
Roman Catholics in Quebec, enjoying an established form of constitution
and system of laws, and these it restores once more. The exercise of
their religion was to be free, and the clergy of the said Church might
hold, secure and enjoy their accustomed dues and rights with respect to
such persons only as should profess the said religion. [Cavendish, p.
216.] To this Lord North added a proviso for the support in like manner
"of the Protestant religion." By another clause the criminal
law of England was continued in the Province as it had obtained since
1765. The King was also authorized to appoint a Legislative Council of
not less than seventeen, and not more than twenty-three members. This
body had limited power to make "ordinances for the peace, welfare
and good government of the Province, but no power to levy taxes except
for local purposes." In the Commons the Bill was strenuously
opposed by Fox, Burke, Barre, Sergeant Glynn and Dunning, and in the
Lords by the Earl of Chatham, then upon the verge of the grave. The
noble Lord characterized it as "a cruel, oppressive and odious
measure, tearing up justice and every good principle by the
roots." The Opposition, in everything except ability and eloquence,
was weak in both Houses, and the Bill passed by large majorities.
[Watson: Constitutional History, vol. i., pp. 25-30. In the
Commons the final vote stood, Yeas 56, Nays 20: and, in the Lords,
Contents 26, Non-contents 7.] In pursuance of the Act a
Legislative Council of twenty-three members was constituted, of whom
eight were Roman Catholics, and in 1775 the Imperial Government
promulgated a new tariff, superseding the old French duties.
The events of the next
fifteen years may be passed over with the simple remark that under Henry
Hamilton the Habeas Corpus Act was passed in 1786. Meanwhile the
English-speaking population had increased largely by the influx of U. E.
Loyalists from the revolted colonies, and the discontent caused at the
passing of the Quebec Act grew louder. At length in 1789, they employed
an agent named Adam Lymburner, a Quebec merchant, who was despatched to
London to urge a revision of the colonial system on a constitutional
basis. This gentleman who appears to have possessed talents of a high
order, was a native of Kilmarnock in Ayrshire, and died in 1836, aged
90, in London, after having served for some years in the Executive
Council of the Province. [Christie’s History, vol. i., p. 114.]
He succeeded in gaining the ear of the Home Government, and the result
was the transmission to the Governor of a draft Bill providing for the
establishment of representative institutions in Canada. In the spring of
1791, the measure was introduced by Mr. Pitt, and at once excited strong
opposition from the British colonists. The very first proposition was a
division of Canada into two Provinces, and to that Mr. Lymburner and his
clients strenuously objected. Each Province was to have a Legislature
consisting of a Lieut.-Governor, Legislative Council, and House of
Assembly. By the same Act, were established the Clergy Reserves,
destined in the future to be a fruitful source of trouble and
controversy. It was enacted so as to avoid a recurrence of the disputes
which had lost England the thirteen colonies that the British Parliament
should impose no taxes but such as were necessary for the regulation of
trade and commerce, "and to guard against the abuse of this power,
such taxes were to be levied and disposed of by the Legislature of each
division." [Pitt’s speech in Christie, vol. I., pp. 69-71.]
On the 23rd of March, Mr.
Lymburner was heard at the bar of the House of Commons against the Bill.
He read a very able and interesting paper of considerable length; and,
although he failed to influence the Government majority the document is
still worthy of perusa1. [The bulk of it is given by Christie, vol. I.,
pp. 74-114.] He urged the propriety of totally repealing the Quebec Act
on the ground stated in the preamble of Mr. Pitt’s Bill that it was in
many respects inapplicable to the present circumstances of the Province.
As a matter of fact they only repealed one clause of it. What the
British residents wanted was "a new and complete institution,
unclogged and unembarrassed with any laws prior to this period."
Mr. Lymburner strongly protested against the division of the Province as
an act of injustice to the British residents in the lower division; nor
was it more palatable to the people of the other division who would be
cut off from communication with the sea, and dependent altogether on the
merchants of Montreal and Quebec. The result in his opinion would be
dissensions between the Provinces, hostile tariffs and continual
disquiet. The proposal to allow drawbacks upon goods imported for use in
the upper Province he regarded as futile, and likely to prove the
fruitful source of smuggling and fraud. A further objection was found in
the absurd proposal to make the Legislative Council an hereditary body.
Mr. Fox had in vain offered an amendment to make the Council elective;
but although the clause was carried it fell still-born and never came to
anything. Mr. Lymburner’s objections to the Bill were concisely stated
towards the end of his address. He complained of the erection of two
independent Legislatures, of the hereditary Council, unlimited in
number; of the small number of representatives; of making the term of
the Assembly septennial; of the continuance of laws, etc., supposed to
be in force; of the power given to the Lieut.-Governors; and of the
claiming of tithes from the Protestant settlers without settling the
rate. His constituents, as he called them, prayed for the repeal of the
Quebec Act in toto; for a triennial assembly with free admission
to Roman Catholics, for a limited number of Legislative Councillors,
chosen for life by the Crown, for the establishment, as fundamental
laws, of the criminal and commercial laws and customs of England, with
the Habeas Corpus Act and English common law in the Upper Canada
districts. [One extract from this long and able address may be given as
a specimen of the rigourous style; "But sir, if the Province is to
be divided and the old system of laws continued; if it is expected that
either part of the Province, separated as proposed by this Bill, shall,
in the present exhausted and impoverished state, raise the supplies for
supporting the whole expenses of government - it will be reducing the
Provinces to a situation as bad as the children of Israel in Egypt, when
they were required to make bricks without straw. The people will see
that the apparent freedom held out by the new system is delusive, and
the new constitution will complete that ruin which the former pernicious
system had left unfinished."]
As early as 1755, the
question of representative government presented itself in Nova Scotia.
In that year, Chief Justice Belcher was directed by the Lords of Trade
to inquire whether the Governor and Council could enact laws without the
consent of the Legislative Assembly. He decided—and his view was
sustained by the Attorney-General and Solicitor-General in England—that
they had no such power. The Governor was of opinion that there were
insuperable obstacles in the way of calling an Assembly; but his
objections were over-ruled. He found that the influence of the Halifax
merchants would preponderate in the House; but, as was well replied,
that could be no excuse for the exercise of an authority pronounced
illegal by the law officers of the Crown. Petitions flowed in praying
for the convocation of a Legislature; but Governor Lawrence "almost
beseeched" the Lords of Trade not to insist upon it at present.
Their Lordships, however, having apparently lost all patience, made
their instructions peremptory. [The entire correspondence on this
subject will be found in the Nova Scotia Archive. Halifax, 1865, pp.
700-725.] A resolution was, therefore, passed by the Council in May,
1758, calling a House of Representatives, consisting of sixteen members,
for the Province at large, "till the same shall be divided into
counties," four from Halifax township, two from Lunenburg, and two
from each of the other townships so soon as it shall contain fifty
qualified electors. The first Assembly met in the month of October,
1758, and elected Robert Sanderson, Speaker. To his surprise, the
Governor found that the members were not so given to innovation as he
had anticipated, although he took care to complain that some of them
were no better than they should be. Of course a large proportion of the
House was Scottish, and we may be sure that, loyal though they
unquestionably were, it was scarcely likely that they had left their
critical spirit or attachment to freedom behind them. At all events,
matters appear to have gone on smoothly enough in the first Assembly
which ever sat within the limits of the Dominion. Then followed the
French war, and the taking of Louisbourg and Quebec. As stated in
earlier pages, Lord William Campbell filled the post of Governor from
1766 to 1773, when he was transferred to South Carolina. This brings the
history down to the period of the extension of Scottish settlements on
the east coast of Cape Breton and in Prince Edward Island, and is simply
sketched in hasty outline to preserve connection with what is to follow.
It may be added, that after the peace of 1763, Cape Breton and Prince
Edward Island—then called the Island of St. John - were annexed to
Nova Scotia. In 1770, the latter, when it only contained five resident
proprietors, and one hundred and fifty families, was set off as a
distinct Province, with a Legislature of its own.
In 1784, Cape Breton again became a
separate colony, and remained so until 1820. In the previous year, New
Brunswick was also detached from Nova Scotia, and received a Governor,
Legislative Council and Assembly of its own. [The authorities used
throughout regarding the Maritime Provinces are – Haliburton, Murdoch
and Campbell’s Nova Scotia, - Munroe’s New Brunswick,
- Brown’s Cape Breton, - Patterson’s Pictou, - Stewart
and Johnston’s Prince Edward Island. The name of the last
colony was changed from that of St. John, in 1800, in honour of H.R.H.,
the Duke of Kent, Her Majesty’s father.]
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