6-7 EDWARD VII., A. 1907

FINLAY TO NEPEAN.'

QUEBEC 22 October 1784.

SIR, The Advocates for a House of Assembly in this Province take it for granted that the people in general wish to be represented; but that is only a guess, for I will venture to affirm that not a Canadian landholder in fifty ever once thought on the subject and were it to be proposed to him, he would readily declare his incapacity to Judge of the matter. Although the Canadian Peasants are far from being a stupid race, they are at present an ignorant people, from want of instruction-not a man in five hundred among them can read; perhaps it has been the Policy of the Clergy to keep them in the dark, as it is a favourite tenet with the Roman Catholic Priests, that ignorance is the mother of devotion. The Females in this Country have great advantage over the males in point of Education. The Sisters of the Congregation, or grey Sisters as they are called, are settled in the Country Parishes here and there to teach girls to read, write, sew, & knit Stockings: there's only a few of that Sisterhood-they are the most useful of any of the religious orders in Canada.

Before we think of a house of Assembly for this Country, let us lay a foundation for useful knowledge to fit the people to Judge of their Situation, and deliberate for the future well-being of the Province. The first step towards this desireable end, is to have a free School in every Parish--Let the schoolmasters be English if we would make Englishmen of the Canadians; let the Masters be Roman Catholics if it is necessary, for perhaps the people, at the instigation of the Priests, would not put their children under the tuition of a Protestant.

The natural born subjects say, that they settled in Canada under the Kings promise to call a house of Assembly as soon as the circumstances of the Province would permit. The time is now come, say they; they likewise state many priviledges that they hoped to enjoy on the faith of the Royal proclamation, of which they were deprived by the Quebec Act.

It is not yet ascertain'd that the people wish for a house of Assembly Is it not the very essence of representation that the members of the house be chosen by the free and uncontrolled voices of the people in their districts? The Quebec Act gives full power and authority to His Majesty's Legislative Council to make Laws and grant all manner of Priviledges to render His Majestys subjects in Canada free and happy; if they are not actually so, the Legislative Council alone is to blame, not the Quebec Act, for by it the Council may alter even the Criminal Law.

Before any Act passes giving the Canadians a house of Assembly, let us be sure that it will be agreeable to a Majority of the landholders-Let the nature of free representation be set forth, let the duty of a representative be explained, and convey a proper idea of the powers a house will have to frame laws, and lay taxes: this necessary information ought to be drawn up in plain clear terms, and read to the people every

1 Mr. Hugh Finlay, as already indicated (see note 3, p. 486) was Postmaster General and a member of the Council. Evan, afterwards Sir Evan Nepean was appointed the first Permanent Under Secretary of State for the Home Department, in 1782. This office was created in consequence of the readjustment of a number of offices of state. The office of Secretary of State for the Colonies, created in 1768, was abolished along with the Board of Trade and Plantations, in 1782, under the Act of 22nd Geo. III. cap. 82, the preamble to which states "Whereas his Majesty, from his paternal regard to the welfare of his faithfal people, from his desire to discharge the debt on his civil list, without any new burthen to the publick, for preventing the growth of a like debt for the future, as well as for introducing a better order and economy in the civil list establishments, and for the better security of the liberty and independency of parliament, has been pleased to order, that the office commonly called or known by the naine of Third Secretary of State, or Secretary of State for the Colonies; the office or establishment commonly known by the name and description of The Board of Trade and Plantations; the offices of lords of police in Scotland; &c. &c. "shall be, and are hereby utterly suppressed, abolished, and taken away." Statutes at Large, vol 34, p. 143. The former duties of the Board of Trade and Plantations were to be executed by a Committee of the Privy Council. See sec. 15 of the Act. The work of the Colonial Secretary was transferred to the Home Department, formerly the Southern Department, in which there was also a Parliamentary Under Secretary.

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sunday for three months by the curate of each Parish immediately after divine service, that the inhabitants or country people, may turn it in their thoughts, consult among themselves and advise with the most sensible in the Parish, be they French or English, to enable them to come to a determination concerning this matter.

Let those who assert that it is necessary for the wellbeing of the people that the habitans have a share in the Government, do their best endeavours to show them by solid arguments that it will be for their good-At the end of three months, or six if more time is requisite, let the Captains of Militia in presence of the Curate and four of the most notable in the Parish take the voices of the people for House, or no House? If a majority throughout the Province say House, grant their desire-if they say no house the British Parliament will not force that form of Government upon them: the ancient subjects, (a small proportion of the people) ought not unreasonably to insist on that which a majority of their fellow Citizens refuse after mature deliberation.

When the people, by means of education, become more enlightened, they will probably wish for an alteration of the present system-whenever that desire appears let the alteration be made-in the mean time let it always be held up that a house will be called whenever a majority of the people apply for it.

I conceive, that whenever taxation is mentioned, the Peasant will reject the idea of a house, from his narrow way of thinking, and attachment to money. Were a house to be forced on them, and that house lay taxes to defray the expence of Government and a thousand useful purposes which the English Members (if any English there should be chosen) would be continually be projecting, they would deem themselves oppressed and probably wish to join the American confederacy, not possessing knowledge enough to foresee the evil consequences of that Junction. The Enemys of Government (and there never is wanting turbulent people in all Countrys) would make a handle of their discontentment and keep up a spirit which they would hope to turn to account one day or other.

We at this moment enjoy all the benefits arising from the Habeas corpus act.1 The Legislative Council have repeatedly refused to grant Jurys in civil cases. Say the people, there is no Judge on the Bench capable of determining a Commercial point so well as a Jury of Merchants, nay 'tis absolutely impossible that Right can be done to the subject by Judges not bred to the Law, under that anticommercial ill understood System la coutume de Paris, without the intervention of Juries-Jurys are an Englishman's birth right.-Why refuse optional Juries? asks an old subject-because, answer the Judges, they are too burthen some on the people. No replys the Englishman, Jurys are not burthensome where the Courts are properly regulated by terms, but here you have weekly Courts, as inconvenient as injurious since they tend by their frequency to deprive the Subject of trial by Jury, a right which an Englishman never can give up, and which His Majesty was pleased by His 13th Instruction strenuously to recommend, but the Judges who have had most influence with our Governors have found means to prevent our having Jurys in the Civil Courts, as they have been looked on as a perni. cious check on the power of the Bench."

1 In his speech to the Legislative Council at the opening of the session, on March 22nd, 1784, Governor Haldimand stated that he had regretted that the condition of public affairs had not hitherto permitted of his recommending an Ordinance for the better security of the liberty of the subject, now, however, he would present one to them. See Q 23, p. 152. While this ordinance was being considered, Mr. Grant of St. Roc moved that the following clause should be incorporated :-“ And it shall be clearly understood at all times hereafter, that the Common and Statute Law of England in as far as the same is favourable and protective of personal Liberty, Safety and Security is the right of all His Majesty's faithful subjects in this Province; And as such shall be the rule whereby to decide every case and situation not provided for by the present Ordinance." Q23, p. 247. This was defeated by nine to seven. But inasmuch as the preamble to the ordinance recited the 13th article of the Instructions to the Governor, the same minority supported a motion, introduced by Mr. Finlay, to the effect that the ordinance as passed did not fulfil the conditions of the 13th article. The minority consisted of Messrs. Grant, DeLery, Collins, Levesque, Dunn, Finlay and Lt. Gov. Hamilton; and each of these, except Mr. Collins, recorded his dissent from the vote of the majority. See Q 23, p. 255 et seq. The Ordinance introduced by Haldimand and passed was 24 Geo. III., cap. 1. "For securing the Liberty of the Subject, and for the prevention of Imprisonments out of this Province." Ordinances made and passed by the Governor &c., p. 57.

2 Repeated efforts, extending from 1777, had been made to secure an ordinance granting the right of trial by jury in civil cases, but not until the departure of Haldimand, Nov. 16th, 1784, was there any prospect of its being passed. Under Lt. Governor Hamilton's administration, however, in the spring of 1785, this feature was embodied in the now Ordinance for Regulating the Proceedings of the Civil Courts. See below, p. 529.

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It has been remark'd that men never wish for more power than the Law gives them, unless they intend to use it-On trials for Damages, the want of Juries may be severely felt.

May I, Sir, refer you to a sensible man Mr. Grant of S'. Roc, (a Member of the Legislative Council) for ample information concerning our Courts of Justice-he lives at N° 42 Newman street.

It has been represented that poor people cannot afford to attend as Jurors on civil causes-Let them be paid and they will cheerfully serve 'tis but reasonable that the contending partys should pay.

I have taken the liberty to trouble you with this letter at the desire of my friend Governor Skene.

The humble Petition of Your Majesty's Ancient and New Subjects; Inhabitants of the Province of Quebec.

MAY IT PLEASE YOUR MAJESTY.

AFTER the Conquest of the Province of Canada by the Arms of Great Britain, Your Petitioners in compliance with Your Majesty's gracious and royal Proclamation,

1 1 Canadian Archives, Q 24 1, p. 1. Given also in Q 27 1, p. 431. On the 22nd of April, during the session of the Legislative Council, Mr. Grant made the following motion :-"I move that a Committee of this Legislative Council be immediately named to take into Consideration and draw up an humble petition to His Majesty and Parliament praying that an Assembly, or such other Elective Body be called to represent the people of this Province, and in such manner and number, and so composed as to His Majesty in his Wisdom shall seem fit. In which Assembly, or Elective Body, together with His Majesty's Council and Governor, shall be vested the usual Legislative Powers of an English Colonial Government. And I move that the following among other Reasons may be suggested in support of the said petition and this Motion." These reasons may be summarized as follows; 1st. As the Quebec Act prohibits the Council from levying taxes, except to a very limited extent for inhabitants of towns and districts, an elective Assembly is necessary to adequately provide for the needs of the Province. 2nd. For 24 years the Canadian people have been led to expect the establishment of Constitutional Government. 3rd. These expectations probably explain why the power of local taxation has not been called for, with the result that local improvements, such as roads, have either been maintained by the Crown or have fallen into decay. 4th. An Assembly with the power of taxation is the more necessary that the King, by the Act of 18 Geo. III., cap. 12, bas relinquished the right of internal taxation in the colonies, 5th. That the power of raising revenue for the general welfare of the people is as essential to free government and the rights of British subjects as personal liberty and security, 6th. Representative Government is necessary in view of the immigration of the Loyalists, and this is an opportune period to petition for it. 7th. The same petition should pray the King to direct trial by pary in civil cases, where desired by either party, the present system being anemal bus. Sth. The extraordinary powers given to the Legislative Council by the Sth, 19th, 11th, & 14th sections of the Quebec Act, while its members are entirely dependent for their seats on the pleasure of the Crown, nine of them foreng a gorum, and hence tive having the power to conduct the business of the Province. See Q 23 jp 264-276 To discussion on this motion was delayed by the order to have it translated into French In the meantie, St. Luc La Corne moved for an address to the Governor, expressing satisfaction with the Quebec Act and praying for its continuance. This was carred on a division of 12 to 3 As ultimately presente 1, the address with Halinand's reply, was as follows. May it please Your Excellency. We the members of the Legislative Council take the Liberty to represent to Your Excellency our Gratitude for His Majesty's paternal goodness in the gracious probetiền he has granted to the people of this Provine dining the Troubles which have distracted the greatest part of North America. At the same time we take the Opportunity of renewing our Solicitations to Your Fellency that you will be pleased to convey to His Majesty the sense we have of the great advantage which has accruel to the people of this Province, and to the tranquility and safety of it, from

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bearing date the 7th day of October 1763,' Settled and became established, in the New acquired Colony of Quebec; in the full reliance on the faith of the Crown of Great Britain, as expressed in that Proclamation, for the enjoyment of those Laws, that Freedom and Security in Canada, which the Principles of the English Constitution afforded, in every part of the British Dominions in America. YOUR PETITIONERS and the Inhabitan's of the Province, have chearfully on every occasion, obeyed the Controuling power of the Parliament of Great Britain, and with patience have suffered, during a period of Anarchy and War, rather than wound Your Majesty's feelings, or embarrass the Throne with Remonstrances and Petitions, at a time when the safety of the Nation, made sacred every moment of Public deliberation. The Actions and Conduct of Your Petitioners when truly represented, will best express to Your Majesty, the Sincerity of their Loyalty and Attachment to the Crown and Government of Great Britain.

YOUR PETITIONERS look with Concern on the burthen of Great Britain, and with great Pain and Commiseration they see the distresses of Your Majesty's loyal Subjects, who, driven from their Estates, Wealth, and Possessions are daily taking Shelter in this British Colony; though their unsettled and distressed Situation, may for the present hinder them from bringing forward their Petitions and their Claims; Your Majesty will readily perceive that a Government similar or Superior, to that under which they were born, had lived, and were happy, must be considered by those Your Majesty's unfortunate Subjects as an Affectionate proof of Your Majesty's Paternal Care and Regard for them; and the first Comfort which Your Majesty in releif to their Distresses can now grant: And the more so, as it will be a Blessing not merely granted to them, but extended to their Children and Posterity. YOUR PETITIONERS fully persuaded that the Welfare and Happiness of Your Majesty's Subjects, are objects of Your Majesty's serious, and benign Consideration-beg leave to lay their Petition at the foot of the Throne and ardently to request Your Majesty's Interposition for the Repeal of the Quebec Bill; allowing such Priviledges as are already granted to the Roman Catholick Religion; as being inadequate to the Government of this extensive Province; the Cause of much Confusion in our Laws, and fraught with trouble and uneasiness to Your Majesty's loyal Subjects here. And that Your Majesty will be pleased to Concur in establishing your affectionate Subjects of this Province, in the full Enjoyment, of their civil Rights as British Subjects; and in granting them a Free, Elective House of Assembly. In these hopes they humbly presume to Suggest, that Clauses of the following Import, may be inserted in the Act of Parliament, which shall be made to Confirm a free Constitution to this Country.

1 THAT the House of Representatives or Assembly,-be chosen by the Parishes, Towns and Districts of the Province, to be Composed of Your Majesty's Old and New Subjects, in such manner as to Your Majesty's Wisdom may seem most proper, that the Assembly be triennial, and the Members elected every three Years."

24 THAT the Council consist of not less than Thirty Membres and in case of Division on any measure before them, that no Act shall be passed, unless at least Twelve Members agree to carry the Vote. That the appointment of the Members, may be the Act of Parliament which was passed in their favour the 14th year of His Majesty's Reign; the continuation of which Law, the result of that generous and tolerating Spirit which distinguishes the British Nation, will be the means of rendering the people of this Province indissolubly attached to the Mother Country, and happy in the Enjoyment of their Religion, Laws and Liberties. (Signed)

The Governor's Answer

Henry Hamilton President."

Gentlemen. I will transmit your Address to the Secretary of State, to be laid before His Majesty. The Ordinance passed this Session for securing the personal Liberty of the Subject, will contribute to remove the prejudices of the misguided against the Act of Parliament which regulates the Province, and at the same time will be the means to frustrate the Attempts of the malicious and designing to create confusion and dissention within it. (Signed) Fred. Haldimand." Q 23, p.317.

The vigour of this reply was doubtless heightened by the fact that of the five members who voted against the Address, four recorded their reasons of dissent. These were Lt. Gov. Hamilton, Hugh Finlay, F. Levesque, and J. G. C. DeLery. They all considered that the changed conditions resulting from the independence of the late Colonies and the arrival of the Loyalists required changes in the Quebec Act and a more liberal and representative form of government. See Q 23, pp. 287–305.

1 See p.119.

2 For a more detailed plan of the proposed Assembly, drawn up by the Committees of Quebec and Montreal at the same time as this petition, see the document which follows this, p. 510.

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during their residence in the Province, and for Life; yet subject to temporary leave of Absenc, as mentioned in the 11th Article; And that they serve as Councellors, without Fee or Reward.

34 THAT the Criminal Laws of England be continued, as at present established by the Quebec Act.

4th THAT the ancient Laws and Customs of this Country, respecting landed Estates, Marriage Settlements, Inheritances and Dowers, be continued; yet subject to be altered by the Legislature of Quebec; And that Owners may alienate by Will, as provided by the 10th Section of the Quebec Bill.

5th THAT the Commercial Laws of England, be declared to be the Laws of this Province, in all Matters of Trade and Commerce, subject to be Changed by the Legisla ture of Quebec, as in the preceeding Article.

6th THAT the Habeas Corpus Act, the 31st Charles 2a be made part of the Constitution of this Country.

7th THAT Optional Juries be granted, on all Trials in Courts of Original Jurisdiction. That they be regularly Baloted for, and a Pannel formed as in England; either in the Case of an ordinary or a Special Jury, at the option of the Party applying for the same, And that Nine Members out of the Twelve, may in Civil Causes, be sufficient to Return Verdicts, subject to be Modified by the Legislature of Quebec, as in the Article.

8th THAT the Sheriff's be elected by the House of Assembly, and approved and Commissioned by the Governor, at the Annual meeting of the Legislature. That they hold their Appointment during the period elected for, and their good Behaviour; and that they find reasonable Security, for a faithful discharge of their Duty.

9th THAT no Officer of the Civil Government, Judge or Minister of Justice, be suspended by the Governor or Commander in Chief for the time; from the Honours, Duties, Salaries or Emoluments, of his Appointment; but with the advice and Consent of Your Majesty's Council, for the Affaires of the Province; which Suspension shall not Continue, after the Annual Sitting of the Council; unless it be approved by the same. The cause of Complaint if approved, to be thereafter reported to Your Majesty, for Hearing and Judgement thereon.

10th THAT no New Office be Created, by the Governor or Commander in Chief for the time; but with the Advice and Consent of Your Majesty's said Council and be approved at their Annual Meeting, as in the preceeding Article.

11th THAT all Offices of Trust be executed, by the Principal in the Appointment unless by leave of Absence from the Governor, with advice and Consent of his Council; which leave of Ab ence, shall not extend to more than Twelve Months, or be renewed by the Governor, but with the Approbation of the Council, at the Annual Session.

12th THAT Judges be appointed, to preside in the Courts of the Province: to hold their places during Life, or their good Behaviour, and that they be rewarded with Sufficient Salaries, so as to confine them to the functions of administering Justice. That every Cause of Accusation for a Removal, proceeding from the Governor, shall follow the Rule laid down in the 9th Article. And every Cause of Accusation for a Removal, on the Part of the Public, shall proceed from the House of Assembly, and be heard by the Council; which, if well founded, shall operate a Suspension; and in either Case, be decided in Appeal and Report to Your Majesty.

13th THAT Appeals from the Courts of Justice in this Province to the Crown, be made to a Board of Council, or Court of Appeals, composed of the Right Honble The Lord Chancellor and the Judges of the Courts of Westminster Hall.

14th YOUR PETITIONERS beg leave, humbly to Represent to Your Majesty; that from their Proximity to the United States, who from Situation and Climate, have many advantages over them, the Internal Regulations for promoting the Trade, Agriculture and Commerce, of this Province; are now become more intricate and difficult; and will require great Care and Attention, on the part of the Legislature here; to watch over the Interests of this Country. They therefore request, that the Assembly may have the Power, of laying the Taxes and Duties, necessary for defraying the Expences of the