1774]

CORPORATION OF LONDON PETITION.

231

"That although the term of imprisonment of the subject is limited to three months, the power of fining is left indefinite and unrestrained, by which the total ruin of the party may be effected by an enormous and excessive fine.

66

'That the whole legislative power of the province is vested in persons to be wholly appointed by your Majesty, and removable at your pleasure, which we apprehend to be repugnant to the leading principles of this free constitution, by which alone your Majesty now holds, or legally can hold, the imperial crown of these realms.

"That the said bill was brought into parliament, very late in the present session, and after the greater number of the members of the two houses were retired into the country, so that it cannot fairly be presumed to be the sense of those parts of the legislature.

"Your petitioners, therefore, most humbly supplicate your Majesty, as the guardian of the laws, liberty, and religion of your people, and of the great bulwark of the protestant faith, that you will not give your royal assent to the said bill. "And your petitioners, as in duty bound, will ever pray."

CHAPTER VII.

The reports of Thurlow and Wedderburn, the attorney and solicitor-general, had great influence in determining the policy followed in the Quebec act. That of Wedderburn is dated the 6th of December, 1772; that of Thurlow, the 12th of January, 1773. The former is much the abler; while entering into the causes which made some form of established government in Canada absolutely necessary, Wedderburn advocated, with some directness, the remedy which appeared to him feasible. Thurlow's report was more indefinite. and did not reach the length of considering the future, beyond pointing out the embarrassment which he foresaw. Wedderburn dwelt upon the fact that the capitulation only secured the temporary enjoyment of certain rights, and that the treaty of peace contained no reservation in favour of the inhabitants except "a very vague one as to the exercise of religion;" but he contended that no right can be founded upon conquest, "but that of regulating the political and civil government of the country, leaving to individuals the enjoyment of their property, and of all privileges not inconsistent with the security of the acquired territory." It was the key-note of his report. He dwelt upon the difficulties of the establishment of a house of assembly at this date; it was difficult even to define how it should be composed, for to exclude the Canadian subjects would be impossible; he therefore advised the establishment of a council, having with limitations the power of making laws. He entered fully into the consideration of religion, pointing out that the articles both in the capitulation and treaty were really of little effect, but that true policy dictated that the Canadians should be permitted to profess their religion; consequently, that the ministers should be protected and maintenance assured to them. It must be remembered

1773]

THURLOW'S REPORT.

233

that these were not the days of voluntarism. Referring to the religious houses he considered that the monastic orders might, under certain conditions, be tolerated; but the jesuits were aliens to every government; they owed allegiance to none, and had lately been expelled from three great catholic states, France, Spain and Portugal, it would therefore be just to declare their lands vested in his majesty, and gradually to be applied to the education of youth. The convents he excepted from adverse consideration, for they were the honourable retreat of unmarried women, and were not connected with the political constitution. The report entered into the consideration of the code of law; it referred to the opinions given by the governor, the chief-justice, the attorneygeneral, but presented no definite recommendation. It is evident that Wedderburn's leaning was to the creation of a new code. On the subject of the habeas corpus, the report considered, that the inhabitants would be entitled to it by common law; but it might be proper to be better assured of the fidelity and attachment of the people, before the provisions were extended by statute.

Thurlow gave a narrative of the condition of Canada previous to the conquest, and it cannot be quoted for its correctness; likewise of the events which had followed since 1760. He referred at length to the report of Yorke and de Grey. He accepted much that was there recommended, that the Canadians were entitled to their property and their personal liberty he sustained the view that the laws which created, defined and secured property should be maintained, on the ground that confusion would result from any change in the old code. On the other hand, he considered that the conqueror succeeded to the sovereignty by a title as strong, as any that the conquered can set up to their private rights and ancient usages. Accordingly, he would be justified in introducing any modifications essentially necessary to establish his sovereign authority, and assure the obedience of his subjects. He therefore possessed the power, if deemed expedient, to effect changes in the law, but such changes

should not be made without the cogent necessity which real wisdom could not overlook.*

So far as Thurlow's opinions can be summarized, it may be assumed that he advocated a non-interference with the existing civil laws as far as possible, allowing every possible indulgence in respect to the laws bearing upon private rights, minor public affairs, and the prevalent customs and manners, as well as the observance of their inherited religion. †

In his own language he submitted these views as general and abstract propositions, liable to be much altered in the application.

The report of Marryott, the advocate-general, was published in London in 1774, after the passage of the Quebec act. The proposition was laid down, that it must be taken for granted, that the general and sudden change of the political, and relative circumstances of Canada, made a further change in its laws an absolute necessity; not an ideal necessity in the hope of attaining perfection, nor could it be supposed to arise from political expediency. The report enters elaborately into the preceding history of the colony. He contended that criminal

Thurlow's remarks on this point are worthy of reproduction. His view would have had greater weight, had it been stated in simpler language and with more positiveness. It is evident that he considered that the safer policy was to retain the old law with some modifications. "Not that ideal necessity which ingenious speculation may always create by possible supposition, remote influence and forced argument-not the necessity of assimilating a conquered country in the articles of laws and government to the metropolitan state, or to the older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several parts of the empire; unattainable, and, as I think, useless if it could be attained :-not the necessity of stripping from a lawyer's argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws :-not the necessity of gratifying the unprincipled and impracticable expectations of those few among your Majesty's subjects who may accidently resort thither, and expect to find all the different laws of all the different places from which they come, not according to my simple judgment, any species of necessity, which I have heard urged for abolishing the laws and government of Canada."

+ He approvingly quotes Grotius: "Cum enim omne imperium victis eripitur relinqui illis possunt, circa res privatas, et publicas minores suæ leges, suique mores, et magistratus hujus indulgentiæ pars est, avitæ religionis usum victis, nisi persuasis non eripere."-Grot., 3, 15, 10.

1774]

MARRYOTT'S REPORT.

235 law became the law of Canada at the instant of time after the conquest. *

He drew the distinction between civil and criminal law; for a conquered people might be understood to be governed by their ancient laws as long as they remained unchanged. He considered that to call an assembly was inexpedient, and he quoted M. de Lotbinière, who doubted whether four or five persons in any parish could read; consequently, he favoured the establishment of a council. Marryott argued that the last thirteen years had in many respects effected a change of manners; that either the policy must be persevered in or abandoned. As men move forward, laws move with them ; if everything were to be undone, it would restore the colony to its military condition, which in effect was restoring it to France. Marryott thought four bills should be passed: 1, to regulate the courts of judicature; 2, to declare the common law; 3, to regulate the revenue; 4, to admit the profession of the Roman catholic religion. The pleadings in the court to be in French and English. It was a question how far the French process should be followed; if civil law relating to property should be maintained, the extent of its adoption should be left to the knowledge, discretion and experience of the judges. Criminal law, however, should be followed according to English practice. In the matter of religion he considered it would be unjust to deprive the Canadians of their religious faith. While recognizing the expediency of permitting its ceremonies, he doubted the wisdom of recog

Marryott's reasoning on this point is as follows: "because this part of distributive and executive justice is so inherent in dominion, or, in other words, so attached to every crown, and is so much an immediate emanation of every government, that the very instant a people fall under the protection and dominion of any other state, the criminal, or what is called the crown law of that state, must ipso facto and immediately operate: it cannot be otherwise; for were it otherwise there would be no effective sovereignty on one side, and no dependence on the other. The dominant power can exercise and execute no laws but those which it knows, and in its own name, and with which its servants are conversant: and the subjects can obey none but such as arise out of the new relation in which they stand. The French Canadian lawyers have in general, as I have heard from good authority, the same ideas on the subject of criminal law." pp. 28, 29.