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Louis-Joseph Papineau
Chapter II - A Retrospect

In order to enable the English reader to understand Papineau thoroughly, it is necessary to set before him a rapid outline of certain pages of the history of Lower Canada prior to the appearance on the stage of the famous tribune. The first years following upon the downfall of French rule, constituted for these new subjects of the English king a period of agitation, resembling the death throes of a nation. Exhausted by a long series of wars, ruined by the administration of Bigot, feudal corveeSy exactions of every kind, and the loss of their crops, the Canadians were face to face with masters who bore them little good-will; from the capitulation of Montreal (1760) until 1774, when the Quebec Act shed upon them the first rays of long deferred justice, they were governed as a conquered people, in the face of treaties, articles of capitulation, and laws of nations.

The royal proclamation of 1764 deprived them of their laws, and the test-oath, sought to be imposed upon them, made our unhappy forefathers outlaws in their own country, on the soil they had wrenched at the price of their best blood from the grasp of barbarism. Murray, who ruled at first with a rod of iron, after a time allowed his rigour to relax, and ended by recognizing none the less cordially when listening with bated breath to the rumbling of rebellion in the bosom of the neighbouring colonies, the noble qualities of the Canadians, and claiming for them royal protection and justice. He held that England could best consult her own interests, if she considered the retention of her new colony as an advantage, by treating the Canadians with justice, and he himself, combining practice with precept, allowed the application of French laws in the matter of landed property and the right of succession.

At the inception of English rule, it was laid down as a principle, that the Canadians had no right whatever to the use of their own laws or their own language. Such was the starting-point, and when we contrast their unhappy position at that time with what we ourselves enjoy to-day, we are tempted to conclude that there coursed through the veins of those who won our liberties for us, some strain of the blood of those Norman barons who on the field of Runnymede wrested from the hands of John the great charter of English liberty.

From time to time the question as to the origin of our rights is discussed amongst us. Some maintain that they spring from the capitulation of Montreal and Quebec, while others tell us that they are the free gift of the Crown of England. The question should be examined dispassionately and with a mind free from all foregone conclusions, in the clear light of historical truth. This we propose to do in the following pages, in the hope that our readers will conclude with us that our rights are derived:—(1) From the Treaty of Paris ratifying the articles of capitulation of Quebec and Montreal; (2) From the law of nations, and (3) From our status as British subjects.

Our task will be comparatively easy, for we shall be guided by the opinions of the councillors of George III., and our judgment will rest on their reports, ultimately embodied in the Quebec Act of 1774, which establishes French civil law in Canada, and ratifies the article of the Treaty of Paris (1763) relating to the free exercise of the Catholic religion. This statute is truly the magna charta of the French Canadian people. We shall see with what a breadth of view, with what generosity, these enlightened minds of the eighteenth century viewed our position; and it is but seemly that we who are enjoying the fruits of their policy, should do homage to the noble sentiments which placed them above the narrow prejudices of race and sect.

The urgency of discharging our duty in this respect is the more manifest in that we have by no means found everywhere, even during the closing days of the century so proudly claiming to be the age of enlightenment, that impartiality and sense of equity which prevailed in Europe and especially in England, over one hundred years ago. In fact, if we go buck to past ages, and find among the Romans notions more just and more in harmony with the law of nations than those which form the political stock in trade of many of our contemporaries, it is truly disheartening to reflect how very slowly the human mind progresses!

According to our conception of our rights they flow from three sources: the law of nations has secured to us civil rights and our customs; the capitulations of Quebec and Montreal are our security for the free exercise of our religion; and lastly, we owe our political rights to our status as British subjects. Some there are who imagine that to conquer a country by force of arms gives absolute rights over the vanquished. The idea is quite obsolete and would have been scouted by the contemporaries of Sallust and Cicero. "Our fathers," said the latter, "deprived the enemy of nothing but of the power of injury." Neque victis quidquam,praeter injuriae licentiam eripiebant. Grotius lays down the principle that conquest confers on the victors nothing but the right of sovereignty over the conquered country. With the change of supreme power there results a change of allegiance for the people who still remain in possession of their laws, their property and their customs. The ministers of George III. were well versed in international law, for they frequently quote Grotius in the course of the debates on the claims of the Canadians. The king's councillors, who, after the conquest, were the first to deal 10 with the fate of the Canadians, in order to secure for them better terms and conditions, were Attorney-General Yorke, and Solicitor-General de Grey. Their report (1776) on the condition of the king's new subjects, was to the effect that the French civil law should be restored to the Canadians; and this report was quoted later on in support of their own contention in favour of the same policy, by Messrs. Thurlow and Wedder-burne, the successors of those eminent statesmen, in the cabinet of Lord North. This view prevailed with the councillors of George III., and as a consequence, the bill which became the Quebec Act was presented to parliament The bill was first dealt with by the House of Lords, and reached the Commons on May 26th, 1774. After a debate shared in by Lord North and Messrs. Thurlow, Townsend, Charles Fox, Dunning, Glynn and Wedderburne, the bill became law by a majority of one hundred and five votes to twenty-six.

The attorney-general spoke on behalf of the government. We give the salient points of his speech: "It is expressly stipulated in the capitulations that the Canadians, and especially the religious orders, are to have the full enjoyment of their property, and the free exercise of the Catholic religion." Then coming to the objection by which he had been met, that the royal proclamation of 1764, which, after the Treaty of Paris, established the civil government of Canada, and had introduced the common law of England, he withstood the claims and ridiculed the proclamation, characterizing it as unfair, badly constructed, incoherent and full of absurdities, which must be put an end to.

"Now, sir," he continued, "a proclamation conceived in this general form, and applied to countries the most distant from each other, not in situation only, but in history, character, and constitution, will scarcely, I believe, be considered as a very well studied act of state, but as necessary immediately after the conquest. But, however proper that might be with respect to new parts of such acquisitions not peopled before, yet, if it is to be considered according to that perverse construction of the letter of it; if it is to be considered as creating an English constitution; if it is to be considered as importing English laws into a country already settled, and habitually governed by other laws, I take it to be an act of the grossest and absurdest and cruelest tyranny that a conquering nation ever practised over a conquered country. Look back, sir, to every page of history, and I defy you to produce a single instance, in which a conqueror went to take away from a conquered province, by one rough stroke, the whole of their constitution, the whole of their laws under which they lived, and to impose a new idea of right and wrong, of which they could not discern the means or the end, but would find themselves at a loss, and be at an expense greater than individuals could afford, in order to inform themselves whether they were right or wrong. This was a sort of cruelty, which, I believe, was never yet practised, and never ought to be. . . .

"My notion is, that it is a change of sovereignty. You acquired a new country; you acquired a new people ; but you do not state the right of conquest, as giving you a right to goods and chattels. That would be slavery and extreme misery. In order to make the acquisition either available or secure, this seems to be the line that ought to be followed,— you ought to change those laws only which relate to the French sovereignty, and in their place substitute laws which should relate to the new sovereign; but with respect to all other laws, all other customs and institutions whatever, which are indifferent to the state of subjects and sovereign, humanity, justice, and wisdom equally conspire to advise you to leave them to the people just as they were. Their happiness depends upon it; their allegiance to their new sovereign depends upon it."

Thus the English ministers expressed the opinion that the Canadians were entitled to their own civil laws, because being guaranteed the possession of their properties under the Treaty of Paris, it followed as a natural consequence that they were entitled to the use of the laws governing property, and also because it is an essential principle of the law of nations, that a conquered people can only be compelled to change their allegiance. Nearly four-fifths of the members of parliament of that day took this liberal view of the matter. Would it be impossible to find in the present day people who have not attained to that degree of liberality? In order to render the above demonstration more complete we quote the following extract, in reference to the same question, from the report of Solicitor-General Wedderburne, under date of December 6th, 1772 :—

"Canada is a conquered country. The capitulations secured the temporary enjoyment of certain rights, and the treaty of peace contained no reservation in favour 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 is 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."

Some persons express regret and surprise at the fact that there was no reference, either in the capitulations or in the Treaty of Paris, to the use of the French language. De Vaudreuil and de Levis deemed it an unnecessary precaution. Language is part of the human personality, it is a part of the soul, unassailable within the inner consciousness. To assail the language of a people is a crime for which there is no name, an act of high treason against humanity.

Does it follow that our argument, if well founded, relieves the French Canadian of any debt of gratitude towards England? Such is not our view of the matter. England, it is quite true, only did her duty; but for this alone we are deeply indebted to her, when we see so many governments who neither understand their duty nor accomplish it. The mere fact that, having the power to oppress us, she refrained from doing it, entitles her statesmen to our grateful respect. In contrast with the English ministry and its supporters in parliament, there were then many individuals in Canada who would not have hesitated for a moment to make of our country another Ireland and of our people their "hewers of wood and drawers of water."

The opinion of the law advisers of George III. and of his ministers, bearing on the interpretation of the Treaty of Paris and the law of nations applicable to our circumstances, was embodied after many debates in parliament, in the Quebec Act of 1774. Are we not warranted in considering that act which is the outcome of the claims of our forefathers and of the deliberations of those best authorized to speak for England, as the great charter of our liberties, as precious and as inviolable for us as the charter of King John is for the people of England ? Does it not consecrate the rights essential to our national existence? The liberties since acquired have grown from it; they are, so to speak, a development induced by a national evolution, retarded at times by various obstacles but never quite arrested. When General Amherst said in reply to De Vaudreuil's representations in behalf of the Canadians, "They shall be English subjects," was he not uttering a threat? Some sought to interpret these words as auguring nothing good for the king's new subjects, but from the covert sense of these words the Canadians have realized unexpected results. It was in virtue of that very status as English subjects that they claimed and secured for themselves the privileges of self-government.

The Quebec Act received the royal sanction in 1774, and in less than one year thereafter, the Canadians, constituting nineteen-twentieths of the population, rallying to the flag under which they had been fairly treated, put an end to the American invasion beneath the walls of Quebec. The policy of the English government was not only just, but it was eminently politic and far-seeing. Her statesmen had made an excellent investment of which they soon reaped the result, and a splendid result it was—the preservation of Canada for the British Crown.

The French Canadians have never ceased to make full return for the generosity of the mother-country in their regard: witness their conduct in 1812, when the Americans who had been barely checked in the West, saw their forces wholly defeated in the Province of Lower Canada. Some such facts of our history may be usefully recalled from time to time, for the benefit of certain persons whose prejudices and self-interest make them anxious to throw the veil of oblivion over things redounding to our credit.

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