House in Committee on the Whole of the Bill

Petition from the Inhabitants of Quebec to the King

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The Lord North presented to the House, by his Majesty' s command:

A paper intituled, "Petition from the new Inhabitants of Quebec, to his Majesty."

Ordered, That the said Paper be referred to the consideration of the Committee of the whole House, on the Bill.

General Carleton Called in and Examined

The Order of the Day being read, the House resolved itself into a Committee of Whole, upon the Bill.

General Carleton was called in and examined.

Mr˙ Mackworth. What was the proceedings and course of justice in Canada, when you first went there?

General Carleton. There is a Court of King' s Bench and Court of Common Pleas, in which the proceedings are in the English form.

Mr˙ Mackworth. Did the Canadians express a dislike to the distribution of justice in that form?

General Carleton. In some things they did, in others they did not. I never heard them express a disapprobation of the criminal law of England; but in relation to the law in civil trials, they have disapproved it greatly.

Mr˙ Mackworth. Did they disapprove the trial by Jury?

General Carleton. Very much; they have often said to me, that they thought it very extraordinary that English gentlemen, should think their property safer in the determination of tailors, shoe-makers, mixed with people in trade, than in that of the judges.

Mr˙ T˙ Townshend. But if they had juries such as they approved of, would they then object to the English civil law?

General Carleton. Their objections to that law are very numerous; they do not know what it is; and they expressed great apprehensions at being governed by a law of which they were ignorant: they also complained of the proceedings of the Courts being in a language they did not understand.

Lord North. Did the General hear them complain of the want of the trial by Jury in civil causes?

General Carleton. Never. Though I have heard the same men praise the English law in points wherein it favoured their own causes, who at other times were much against it.

Lord North. Did they express wishes of having an Assembly?

General Carleton. Very much the contrary. In the conversation I have had with them, they have all said that when they found what disputes the other Colonies had with the Crown, upon account of Assemblies, they would much rather be without them; and when they supposed that an Assembly, if they had one, would be chosen from the old British subjects only, expressed an horror at the idea of one.

Lord North. Does the General know the proportion of old subjects to those of new ones in Canada?

General Carleton. The Protestants in Canada are under four hundred; about three hundred and sixty; but the French inhabitants, who are all Catholics, amount to one hundred and fifty thousand.

Lord North. Are those three hundred and sixty, men of substance?

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General Carleton. Much the greatest part of them are not. There are some that have purchased seignories, some in trade, and some reduced soldiers: but the majority are men of small substance.

Mr˙ Jenkinson. Is there much intercourse or communication between those three hundred and sixty and the rest of the Province?

General Carleton. Very little.

Lord North. Are those People, upon the whole, proper and eligible for an Assembly to be chosen from them?

General Carleton. I should apprehend by no means.

Mr˙ Phipps. What is the extent of the cultivated and populous part of Canada?

General Carleton. About three hundred miles.

Mr˙ Phipps. Are there any populous settlements detached from that line, at a distance?

General Carleton. None of consequence.

Mr˙ Phipps. Is the cultivation of the lands and the trade of the Province much increased since the conquest?

General Carleton. Very much.

Lord North. Does General Carleton attribute that increase to the introducing of the trial by Jury, and the English law?

General Carleton. By no means.

Mr˙ T˙ Townshend. To what then does the General attribute it?

General Carleton. To the change from a state of war to one of peace; the Government was before extremely military; and military expeditions ever going on to a distance, great numbers of men lost, population hurt, and the People taken from the culture of the earth for those purposes. This change (for they have now enjoyed above ten years peace, with none of the inhabitants taken for the military) has wrought the increase of People.

Mr˙ Turner. Has not the increase of trade and wealth been much owing to the free export of corn?

General Carleton. I take it to be owing to the increase of People.

Mr˙ Turner. Was not the increase of cultivation owing to the export?

General Carleton. The cultivation I attribute to the increase of People. There must be the People before there could be the cultivation.

Lord North. Does the General know any thing of a Monsieur Le Brun?

General Carleton. I know him very well. He was a blackguard at Paris, and sent as a lawyer to Canada: there he gained an extreme bad character in many respects; he was taken up and imprisoned for a very filthy crime with children of eight or nine years old; for this he was fined, I think, twenty pounds, but being unable to pay it —

The General Withdrawn, Discussion of Le Brun

Mr˙ T˙ Townshend. I desire the General may withdraw. [He withdrew,] Sir, I know not what use is to be made of this part of the evidence; but sure I am, it is a most unprecedented thing, and such an one, as an independent member of Parliament, I cannot see and hear without interrupting it; — you are criminating a man unheard — not before you — and with whom you seem to have nothing to do.

Lord North. This Monsieur Le Brun has come over from Canada to make representations that it is the general opinion, desire, and wish of the Canadians, to have an Assembly: I thought it right to know how likely he was to know the opinion of that country; and what degree of dependance could be placed in his testimony — but I shall ask no more questions concerning him.

The General Called In

[The General called in again.]

Mr˙ Phipps. Were there any other objections to the English law than what the General has mentioned?

General Carleton. I recollect an instance against the criminal law. Some Canadian and English gentlemen were apprehended for a crime, and laid in goal; — the whole Province supposed them innocent, and the Jury found them so; the nobility complained, that by our law they were punished by a severe imprisonment, which, in the French law, they would have escaped. This made a great impression upon them, and prejudiced, them very much against even our criminal law.

Mr. Maseres Called in and Examined

Mr˙ Maseres called in and examined.

Mr˙ Solicitor General. What form of Government have the Canadians expressed themselves most desirous of?

Mr˙ Maseres, They have no clear notions of Government, having never been used to any such speculations. They will be content with any you give them, provided it be well administered.

Mr˙ Mackworth. Have they expressed any dissatisfaction at the trial by Jury in criminal matters?

Mr˙ Maseres. They like it very well.

Mr˙ T˙ Townshend. Do you know that they have any objection to the same trial in civil cases?

Mr˙ Maseres. Certainly they have; but they principally consist in the expense and trouble of that attendance. Were they allowed a compensation, I should apprehend they would be well satisfied in all cases; and I think so small a sum as five shillings a man would do for that purpose.

Mr˙ Solicitor General. Does Mr˙ Maseres think that they would be pleased with the abolition of their old customs by the introduction of our civil law?

Mr˙ Maseres. A total abolition of their customs relative to descents, dower, and the transfer of land, would be highly offensive to them. In other matters I believe they would be very well satisfied with the English laws.

Mr˙ Mackworth. Would they have any objection to the law of habeas corpus?

Mr˙ Maseres. It is impossible that any People should object to that law.

Mr˙ T˙ Townshend. Did not the Canadians think themselves promised, by the Proclamation, the benefit of an Assembly, and do they not now desire to have it?

Mr˙ Maseres. As to an Assembly, they have a very confused idea of what it is; the generality of the People have no desire to have it, for they know not what it is; but there are a few among them who have considered the matter, and they would prefer an Assembly.

Mr˙ Mackworth. Does Mr˙ Maseres think that the provisions of this Bill for the Government of Canada are the freest that could with propriety be granted?

Mr˙ Maseres. Certainly not; I have sufficiently explained to the world how I think there might have been a judicious mixture of a law for the free Government of that Province.

Mr˙ Dunning. Is Mr˙ Maseres acquainted with the laws of Canada?

Mr˙ Maseres. I have some slight knowledge of them.

Mr˙ Dunning. As by this Bill resort is to be had to the laws of Canada, and not the laws of England, in all matters of property and civil rights, I would ask Mr˙ Maseres, whether the Governor of the Province will not have a right by the laws of Canada, if this Bill should pass, to issue a lettre de cachet to imprison any of the King' s subjects in the Province?

Mr˙ Maseres. I believe he would not have a right to imprison persons by lettres de cachet signed by himself; because I have always heard that no lettres de cachet are ever used for that purpose in France, or the French Dominions, but such as are signed by the French King himself. But I have also been told, that blank lettres de cachet, ready signed by the King, are sometimes given to Governors and Intendants of Provinces, to be used by them as occasion shall require.

Mr˙ Dunning. I desire then to know, whether if lettres de cachet, signed by the King, were to be delivered to the Governor of Canada, after this Bill shall be passed into a law, these lettres de cachet might not, in Mr˙ Maseres' opinion, be lawfully made use of by the Governor, to imprison the King' s subjects in that Province?

Mr˙ Maseres. [After some pause.] I think they might.

Mr˙ Solicitor General. I desire to know of Mr˙ Maseres, upon what principle of the French law he supposes the authority of issuing lettres de cachet to be founded?

Mr˙ Maseres. I do not know. It seems probable, that it was at first an usurped authority. But it is now constantly practised, and acquiesced in throughout the French Dominions, and is therefore now understood to be

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the legal prerogative of the Crown of France, whatever might be its origin.

Mr˙ Solicitor General. Mr˙ Maseres does not rightly apprehend my question. I will explain myself. I want to know in what capacity the French King is supposed, by writers upon the French laws and Government, to act, when he issues a lettre de cachet?

Mr˙ Maseres. I do not yet thoroughly comprehend the question.

Mr˙ Solicitor General. I mean to ask whether Mr˙ Maseres does not understand the King of France to act in his legislative capacity, when he issues one of those letters?

Mr˙ Maseres. I have never yet considered the relation between a lettre de cachet and the legislative authority. It may perhaps be on that authority that the right of issuing those letter is grounded, or said to be grounded. I cannot say to the contrary. Yet there seems, at first sight, to be a considerable difference between a law and a lettre de cachet; since a law is generally understood to be a previous declaration of the will of the lawgiver, or lawgivers, whether one or many, upon a particular subject, with penalties annexed to the breach of it, when so previously declared; whereas a lettre de cachet is a sudden exercise of power without such a previous declaration of the will of the legislator.

Mr˙ Solicitor General. Though Mr˙ Maseres has not considered it in that light, yet it is certain, that the French King' s power of issuing lettres de cachet is generally understood by the writers on the French laws and Government to be a part of his legislative authority, by which he provides for the sudden emergencies that occur in Government, as he does by the more formal kind of laws for the usual business of the State. And, consequently, as, the King of Great Britain has not in himself alone the legislative authority over this Kingdom, and the other dominions of the Crown, but this authority belongs to the King and the two Houses of Parliament conjointly, this power of issuing lettres de cachet, in the Province of Quebec, which had formerly belonged to the French King, by reason of his being the sole legislator of that country, cannot, by this revival of the laws of Canada, accrue to the King of Great Britain, who is not the sole legislator of it, but only to the King and the two Houses of Parliament, who are so. I dare say Mr˙ Maseres must now see this matter in the same light that I do, and be convinced, that no lettres de cachet can legally be used in Canada, by virtue of this Act.

Mr˙ Maseres. This reasoning may perhaps be just. It is so new to me that I cannot undertake just at present to form a judgment of it. But though it should be just, and, in consequence of it, the use of lettres de cachet should not be legal, yet I cannot help thinking that, if they were used, the subjects against whom they were employed would be without any legal remedy against them; for if a motion was made on the behalf of a person imprisoned by one of them in the Court of King' s Bench in the Province, for a writ of habeas corpus, or any other relief against such imprisonment, the Judges would probably think themselves bound to declare that, as this was a question concerning personal liberty, which is a civil right, and in all matters of property and civil rights they are directed, by this Act of Parliament, to have resort to the laws of Canada, and not to the laws of England, they could not award the writ of habeas corpus, or any other remedy prescribed by the English law, but could only use such methods for the relief of the prisoner as were used by the French Courts of Justice in the Province during the time of the French Government, for the relief of a person imprisoned by the Intendant or Governor, by a lettre de cachet, signed by the King of France. And such relief would, I imagine, be found to be none at all. Therefore, if it is intended that the King' s subjects in Canada should have the benefit of the Habeas Corpus Act, I apprehend it would be most advisable, in order to remove all doubts and difficulties upon the subject, to insert a short clause for that purpose in this Act.

Lord North. I desire to know of Mr˙ Maseres, whether he does not think it would be criminal in a Governor to make use of any such lettres de cachet, and in a Minister of State to advise the King to sign them; and whether they would not be punishable here in England for doing so?

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Mr˙ Maseres. If the lettres de cachet should not be in themselves illegal, I do not see how the Governor could be punished in the courts of law for making use of them, nor the Ministers of State for advising the King to sign them. The use of legal powers is in general no crime. Indeed if legal powers are employed to bad purposes, there is one method of proceeding against the persons concerned in such abuse of them, and but one, and that is by impeachment by this House, before the House of Lords. But this is an operose way of proceeding, and out of the common course of things. So that if the issuing lettres de cachet should not be absolutely illegal when this Bill shall be passed into an Act (and I am still inclined to think they will not be so,) the poor objects of them may linger a long time in prison, indeed one may say indefinitely, without any legal method of redress; therefore a short clause to establish the Habeas Corpus Act in the Province seems to be highly expedient.

Lord North. I would ask the witness one question more before I sit down. Does he think it probable that, if this Bill should pass into a law, such lettres de cachet would be made use of?

Mr˙ Maseres. I do not think it probable that they would be used.

Mr. Hey, Chief Justice, Called In

Mr˙ Hey, Chief Justice, called in.

Mr˙ Mackworth. Does Mr˙ Hey think that the Canadians are well satisfied with the trial by Jury, in criminal matters?

Mr˙ Hey. They are well satisfied with it.

Mr˙ Mackworth. Would they not be also satisfied with the same trial in civil matters?

Mr˙ Hey. Under certain regulations they might: for instance, if the unanimity required in England was dispensed with, and a majority of two-thirds of a Jury of thirteen or fifteen was sufficient; and if they were allowed some compensation for the expense and trouble of attendance; also if the trial by that mode was optional in the parties; under these regulations, I apprehend, they would be very well satisfied with that mode of trial in civil as well as criminal cases. Half the year in Canada all business is stopped by the climate, which makes them much the busier the other half, and at that season they consequently find the attendance as jurymen a burden.

Mr˙ T˙ Townshend. Would they wish for and approve the other parts of the English law in civil matters?

Mr˙ Hey. They are very little acquainted with the English law, and from their ignorance of it, would be very much against its establishment. They are tenacious of their ancient laws and customs, and would esteem a total change a great injury to them.

Mr˙ Baker. Would they esteem the Habeas Corpus Act an injury?

Mr˙ Hey. I cannot imagine that any People would be so stupid as not to esteem it a benefit.

Mr˙ T˙ Townshend. Would not the Canadians think an Assembly also a great benefit?

Mr˙ Hey. Very far from it; they are too ignorant a People to understand the value of a free Government; they are exceedingly obedient: would obey the King' s commands let it be what it may: if he ordered an Assembly to meet they would go, but they would not know what to do when they came there: the fact is, they are not capable of that Government: they do not expect it: it is contrary to all their ideas, to all their prejudices, to all their maxims: their idea of a House of Assembly is that of a House of riot and confusion, which meets only to impede public business, and to distress the Crown: all which is a system extremely contrary to the ideas and principles of the Canadians.

Mr˙ T˙ Townshend. Did Mr˙ Hey ever hear of a plan or representation of what Government would probably be successful in Canada?

Mr˙ Hey. There was a commission from his Majesty to Governor Carleton, the Attorney General, and myself, to draw up a report of that Government which would be most proper for Canada. In that deliberation I had the misfortune to differ in opinion from Governor Carleton; my ideas were, that the laws of Canada might be blended with those of England, so as to form a system perfectly adapted to the wants of the Canadians, and also to the

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principles of the polity of this country. I would have left the Canadians all their laws that in any degree concerned the transfer, possession, settlement, or mortgage of landed property. I would have secured them their religious toleration and security: but I proposed to give them the criminal law of England, and the civil law as far as it concerned the rights of moveable property, the modes of trial, &c. This was a mixture which I imagined would answer the purposes that were wanting.

Mr˙ Mackworth. Is Mr˙ Hey acquainted with the laws of Canada, by which, in matters of property, he must conduct himself in case this Bill passes.

Mr˙ Hey. Not as a system: only in the cases which have come before me from the Court of Common Pleas.

Mr˙ Baker. If this Bill passes, will there be any legal remedy for a man' s being arbitrarily imprisoned?

Mr˙ Hey. That must depend very much on the constitution which his Majesty may be pleased to give to his Courts of Justice, which he is enabled to erect by this Bill. But if, as a Chief Justice, I knew of a man' s imprisonment, I should be much induced, if I found no law for the purpose, to make one, to have the prisoner brought before me, that the cause of his commitment might be known.

The Committee then reported to the House.

Resolved, That this House will, to-morrow morning, resolve itself into a Committee of the whole House, to consider further of the said Bill.

Ordered, That Major General Carleton, Governor of the Province of Quebec, William Hey, Esquire, Chief Justice of the said Province, Doctor James Marriott, his Majesty' s Advocate General, and M˙ De Lotbiniere, Esquire, do attend the said Committee at the same time.