Mr. Mackworth' s Motion, Debate

Mr. Mackworth' s Motion

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Mr˙ Mackworth moved, that a clause should be added to the Bill, "That in all trials relating to property and civil rights, where the value shall exceed a certain sum, either of the contending parties may demand a trial by Jury, constituted according to the laws of England, and that the issue between the parties shall be determined by the verdict of such Jury, and not otherwise." He recommended the clause as a security for the English, in Quebec, against the French laws.

Lord North

Lord North opposed it. He recapitulated part of the evidence that had been produced at the bar, and said Governor Carleton had informed the House, that the Canadians had a dislike to the English laws in general; and it was his opinion, that giving the Canadians their old system of laws would be the only means of making them a happy People; that Mr˙ Hey, the Chief Justice, had said it was his opinion, that the Canadians, at first, might have been brought to like the English laws, but since they had been so indulged, they expected now nothing less than a repeal of the whole of the laws by which they are governed at present; and that the noblesse of the country thought trial by Jury was humiliating and degrading to them, as it subjected their property to the decision of barbers and tailors; that Mr˙ Maseres, had to be sure, said, that Juries, he believed would be liked under proper regulations, but the People of Canada did not choose to give their time and attendance for nothing; that Mons˙ Lotbiniere, on a question being put to him, whether he did not think the English laws the best for the Canadians in general? Said, "I make no doubt but your laws are good and wise, and make you a happy People, but I do not think they are suited to every climate." His Lordship afterwards entered much upon the subject of Juries, and said, the Canadians could have but a bad opinion of English Juries, when

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a Grand Jury there had presented the Roman Catholics as a nuisance; he said, the Canadians, in their petition to the Throne, had desired to have the whole of their ancient laws restored to them, which the Bill was meant to do; that in his opinion, the trial by Jury was not necessary there; and that, by what he had been informed, the French laws, were sufficient to protect property without it; that People had very industriously circulated a report that he had made a ministerial question of this; he would assure the House, upon his honor he had not; that, after once fixing the Government of Quebec, in the hands of this nation, it was a matter of indifference to him what law or religion was established, so that it made the People happy; that the British merchants saying their property would not be secure without English laws, let gentlemen recollect that British merchants trade to all parts of the world, and think their property secure in Portugal or Spain, where they know the Roman Catholic religion is the religion of the land, and that the number of old or English subjects in Canada were so few in number, that the cries of one hundred and fifty thousand ought to be given way to in preference of three hundred and sixty.

Sergeant Glynn

Sergeant Glynn recapitulated the parts of the evidence which the noble Lord had so ingeniously selected; he said, the noble Lord had laid great stress on the imprudence of the Grand Jury presenting the Roman Catholics as a nuisance, and seemed to think, for that reason, they ought to have the trial by Jury taken away; did the noble Lord never recollect, that the British House of Commons had committed equally flagrant acts of injustice; and that, if the reason for abolishing held good in one point, it ought in the other; yet he sincerely hoped that the House would never be taken away; for, bad and corrupt as it was believed to be by ignorant People, it still remained some safeguard to the nation; he afterwards launched forth into the praise of Juries, and mentioned many particular circumstances where Juries had been found extremely beneficial to the welfare of the public; he afterwards stated the account of the seizing the papers of Mr˙ Wilkes, the general warrants, &c˙, &,c. He said, all State causes would be carried as desired, was it not for Juries: he mentioned the affair of Hampden, concerning ship money, and concluded with saying, that the tenth day of June, 1774, would be handed down to posterity as a day when the members of a British House of Commons preferred Popery and French laws to the established religion and laws of their own country; and, at the same time, that trials by Jury, which their forefathers accounted a blessing, they deemed a curse.

Mr. Attorney General Thurlow

Mr˙ Attorney General Thurlow said, he did not agree with the honorable and learned gentleman, that whoever was against the allowing a trial by Jury in that Bill thought the mode a curse; far from it; he had, himself, in many cases, often thought the trial by Jury a great blessing; yet it would be highly imprudent, unparliamentary, ridiculous, and absurd, to establish a clause at the end of the Bill, (as that must be,) which clause would entirely repeal that clause in the body of the Bill, which allows the Canadians all their ancient laws; for would any body say, that trial by Jury was one of their ancient customs, or assert that it was necessary; that, as for the petitioning Canadians, they only desired to have their ancient laws and customs restored to them; and that he by no means thought an optional Jury any thing like an English Jury; that, by the former, any party that thought he could gain a preference in his trial over the other, would adopt it; and that it must be allowed, that where the option was liked by one, it would displease the other; besides, the evidences at the bar had declared, that the Canadians were averse to the form of an English Jury, especially in that part which obliges them to be unanimous in their verdict; and that, if you took away that part, in his opinion, you destroyed the whole; that he believed the learned gentleman had been wrong in giving praise to a Jury in the case of Mr˙ Hampden, for no Jury was consulted on that case.

Mr. Dunning

Mr˙ Dunning said, that as to the learned gentleman mentioning that he by no means approved of optional Juries, had we not, every term, instances in the Court of Chancery, where it was in the power of the Lord Chancellor to appoint a Jury, if he thought proper? That, as to the

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establishing the French laws in Canada, who had we fit to administer them? Had not the two learned and respectable gentlemen at the bar, Mr˙ Hey and Mr˙ Maseres, informed the House, that they by no means thought themselves capable of learning the French law sufficiently to administer it with justice; and if such learned gentlemen had not abilities sufficient to understand it, sure he was, that no person the Minister could produce was capable of undertaking the task, so as to do justice to the People and honor to himself. He said, the noble Lord had been repeatedly called upon to declare the author of the Bill; let the author now stand forth and clear himself; but he would be bold to say, no man would dare to own a bill which was meant to establish Popery. The noble Lord had said the Canadians had not desired to have a Jury; could the noble Lord say the Canadians had desired not to have a Jury? He then entered fully into the nature of Juries; said they were fit in all cases; that he had known many instances where Juries had found for the Crown, and that he could wish to see Juries established throughout the world, as they were a check upon evil judges, and consequently if they were not so good judges of law, they were judges of fact; he said, as to the People of Canada being negligent of attending to serve on Juries, it was the case here; there was scarce a term passed but jurymen were fined for non-attendance.

Mr. Solicitor General Wedderburn

Mr˙ Solicitor General Wedderburn said, he could not agree with the learned Serjeant, that the supporters of the Bill deserved the appellation of traitors to their country; that he had no objection to a Jury hereafter being established there, but let it be left in the power of the Crown, and if they saw it was necessary, they could at any time adopt it; but this was not the time, when the People were so much enraged against the proceedings of Juries in that country; that as to the Jury which Mr˙ Maseres had formed for that country, in the pamphlet he had published, he by no means thought it like an English Jury, for it was to be formed of an odd number of people, thirteen, fifteen, or seventeen, and a majority of those people to be decisive, and the jurymen to have five shillings per day allowed them for their attendance. He said he never would allow that the Canadians were fit persons to serve upon a Jury; they understood nothing of its form, and therefore were not judges enough how to act upon it; that as to cases of revenue, we had had two instances of their deciding different to an English Jury; that a Jury in England had found for the Crown, they in Canada had twice, on the same trial, found for the defendant; and the witness at the bar, Mr˙ Hey, had informed the House, that he had often been put to trouble, because he never could get the Canadians to give a special verdict.

Mr. Byng

Mr˙ Byng. The noble Lord had given them such of the evidence as he thought proper, and mentioned the equality of the numbers of the two sorts of subjects; that as to the numbers, it was a matter of indifference to him whether they were three hundred and sixty or three hundred and sixty thousand, they had equally a claim to compassion; that he thought it proper, that wherever an English Colony was settled, English laws ought to be established; that he did not approve of the clause now offered, because he thought it not sufficient, yet he would gladly accept of it as part of a good thing, and he made no doubt but the Canadians would, when they became used to the nature of it, love it, and wish to have it in its full extent; that General Carleton had informed them that the Canadians were a docile People; had we any occasion to go to Canada to look for docile creatures? No! There was a sufficient number always to be seen on the opposite side of the House, docile enough to do any thing the noble Lord, their leader, should direct them to do.

Governor Johnstone

Governor Johnstone spoke highly in favour of Juries, and recommended the clause.

Mr. T. Townshend

Mr˙ T˙ Townshend spoke against the whole of the Bill, and much in praise of Juries; and recommended the clause offered in a strenuous manner, setting forth, that the English residents there had not gone to that Colony, had they not been invited by his Majesty' s Royal Proclamation; but those who advise him to break his promise, would advise him to do any thing that was bad.

Mr. Edmund Burke

Mr˙ Edmund Burke, in a long speech, the first part of which was a keen, pointed vein of humour, against the

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ministerial members, who just then came into the House in great numbers, said, he should not then have risen, only he thought he now seized a happy moment when he should carry his point, for the House, had filled, all of a sudden, with members who had not heard any thing that had been said against the Bill, no, not even from its being first agitated in the House; that they had now come with good English dinners in their bellies, which would, he trusted, make them good humoured, and by being thus full of English meat, would undoubtedly be for English laws that could secure to them that meat; that he should have been afraid to attack such a body of power and wisdom as the other side of the House contained, had he not fortunately observed, that the noble Lord, and his two great oracles of wisdom and order, had all differed in their opinions; that finding them thus at variance, he thought the moment would be fortunate to his cause; the one was for a Jury, only now was not the proper time; the other against any Jury at all; and a third that it could not be inserted in the Bill. He then divided the People concerned in the Bill under three heads: first, the English merchants; second, the English subjects; and thirdly, the Canadians; he said they all deserved support; and, though the noble Lord, and his supporters, had so industriously always made use of the number three hundred and sixty, as suitable to their cause, let them only recollect what all the evidence at the bar agreed in, which was, that the English subjects were possessed of upwards of two-thirds of the whole trade: did the noble Lord think then that they were a body of People to he minded? That as to their numbers being small, the noble Lord might recollect that there was an old vulgar saying, "that one Englishman was always worth two Frenchmen," that, in this case, he thought them preferable to fifty Frenchmen; that he would be willing to give a Canadian every indulgence in his power, but not grant that indulgence at the expense of the English; that if these noblesse were the only persons (as they appeared to be by the evidences at the bar,) that were against the English laws, he would sacrifice them and all the noblesse of England and other countries, but he would make the majority of the People happy. But the reason the noblesse did not like the English laws, was on account of the manner in which they had been represented to them; namely, that they were a string of religious and civil persecutors, which would entirely hinder them either from exercising their own religion, or from having any share in the Government of their own country; that, remove those prejudices which the noblesse had imbibed from misrepresentations, and he would be bound to say they would not only admire our laws, but petition to have them; that, as to the noblesse hating Juries, because it trusted their property to their inferiors, it was a principal reason why he would give the Canadians a Jury, in order to protect their property from the arbitrary proceedings of the noblesse, who, in all countries, always wished to have the poor under their controul; that as to the English laws not being esteemed by the French, he could produce mountains of books written by Frenchmen, on the justness and excellency of our laws, where they approved of the trial by Jury as one of the greatest excellencies our Constitution produced; that the noble Lord had invited him, and others, to come and offer their opinions; setting forth, that the Bill was imperfect, and he wished to alter it, yet he had not attended to what had been offered; that, in the Committee, when he meant to propose a clause, the noble Lord told him he might do it with propriety on the Report, and that there would be no other obstacle in his way, than that he would oppose it: he said he was greatly obliged to the noble Lord for his candour, for it had spared him much trouble, having intended to offer several clauses, which he should, with great justice be called obstinate, were he now to attempt it, when he knew there was such a glorious triumvirate of power and wisdom formed against him; that he sincerely believed the French were in awe of us, yet he could not help thinking that they must be astonished that a People, who had such powerful arms, should have such weak heads: he strongly recommended the state of the merchants as an object of the noble Lord' s attention, setting forth, that their property was always in a fluctuating state, and that they run great risks of their whole fortune, to benefit Government as well as themselves.

Motion Rejected

The question was then put, and the House divided:

Yeas 40; Nays, 83.

So it passed in the Negative.