Chapter II: Causes of the American War of Independence and the Quebec Act (3)

But the extension of the boundaries of the province of Quebec on the Atlantic side was after all a small matter, though the most was made of it for party purposes. Nor could exception be taken to the enlargement of the province to the north and north-west, until it reached the territories which had been granted to, or were claimed by, the Hudson’s Bay Company. Far more important and more debatable was the inclusion of the western and south-western regions, which had been left outside the government of Quebec by the Proclamation of 1763.

=Canada under the Quebec Act 1774.= from T. Pownall’s map of the
Middle British Colonies of N. America, London 1775. _to face
page 81_

B. V. Barbishire, Oxford, 1908
]

It will be remembered[49] that these territories had not been included in the province of Quebec for three reasons: that their incorporation with the conquered province might have been held to be an admission that the British title to them only dated from the conquest of Canada, that their annexation to any particular province would have given to that province a preponderating advantage in regard to trade with the Indians, and that the extension to them of the laws and administration of the province of Quebec would have necessitated the establishment of a number of military garrisons throughout the territories. The first of these three objections was, in fact, taken in the debates on the Quebec Bill. ‘The first object of the Bill,’ said Mr. Dunning in the House of Commons on the 26th of May, 1774, ‘is to make out that to be[50] Canada, which it was the struggle of this country to say, was not Canada.’ The second objection was clearly potent in the minds of the partisans of the old British colonies, who opposed the Bill. It would seem that when the Proclamation of 1763 was issued, the British Government had contemplated passing an Act of Parliament, constituting a separate administration for the Western territories, but the plan, whatever it was, never came to the birth;[51] and, as the King had foreseen, ‘great inconvenience’ had arisen ‘from so large a tract of land being left, without being subject to the civil jurisdiction of some governor’.[52] This inconvenience the Quebec Act tried to rectify by bringing these western lands under the government of Canada.

The line now laid down, on the motion of Burke in the House of Commons, was carried from the point where the 45th parallel of latitude intersected the St. Lawrence to Lake Ontario, up Lake Ontario and the Niagara river into Lake Erie, and along the southern or eastern shore of Lake Erie, until it met the alleged frontier of the state of Pennsylvania, or, if that frontier was found not to touch the lake, up to the point nearest to the north-western angle of Pennsylvania. From that angle it skirted the western boundary of Pennsylvania down to the Ohio, which river it followed to the Mississippi.

[Sidenote: Claims of Pennsylvania.]

In the debate in the House of Commons a petition was presented from the Penns, claiming that part of the province of Pennsylvania was situated to the north-west of the Ohio, and Lord North offered no opposition to the petition, on the ground that the Bill was not intended to affect existing rights. On a map of 1776, after the passing of the Act, Pennsylvania was shown as jutting out at an acute angle into Lake Erie, and the boundary line, identical with the western frontier of the state, started from the lake near Presque Isle, and struck the Ohio at Logs Town, west of Fort Duquesne and slightly east of Beaver Creek, leaving to Pennsylvania the whole course of the Alleghany, and Fort Duquesne or Pittsburg. It will be noted that, further east, the line, being drawn along the St. Lawrence and the lakes, excluded from Canada the whole country of the Six Nations, which had been demarcated as Indian Territory by the Agreement of 1768.[53] The net result was to leave the boundary line south of the St. Lawrence, where it had been drawn in 1763, as far as the intersection of the 45th parallel with the river, and thence to follow the waterways up to the point in the southern shore of Lake Erie where the old French route to the Ohio left the lake. From the Atlantic up to this point the present international line between Canada and the United States is not far different at the present day, though more favourable to the United States, especially where, since the Ashburton Treaty of 1842, the state of Maine runs northward into the provinces of Quebec and New Brunswick. But, by carrying the boundary from Lake Erie to the Ohio and down the Ohio to the Mississippi, all the Illinois country and all the western lands, for which English and French had contended, were confirmed to Canada.

[Sidenote: Reasons for the extension of the province.]

There were good reasons for taking this step. Eleven years had passed since the territories in question had been left as an Indian reserve. Events move quickly in a border land, and encroachments grow apace. The time had come for some defined system, some recognized law and government. As far as there were permanent settlers in these regions, they were, it would seem, although the contrary was averred in the House of Commons, French rather than English; and it would be more palatable for colonists of French origin to be incorporated with Canada than to be absorbed by the purely English colonies. The native population would unquestionably be better cared for under the government of Quebec than under the legislatures of Pennsylvania and Virginia. The waterways still, as in old times, made communication easier from Canada than from the southern colonies; and to those colonies, on the brink of war against the mother country, the mother country could hardly be expected to entrust the keeping of the West.

[Sidenote: Arguments urged against it.]

On the other hand there was bitter and intelligible opposition to the annexation to Canada of ‘immense territories, now desert, but which are the best parts of that continent and which run on the back of all your ancient colonies’.[54] The decision which was now taken meant cutting off the existing English colonies from the West; and, in view of the other provisions of the Act, the incorporation of the new territories with Canada placed them under an administration in which there was at the time no element of self-government and which gave formal recognition to the Roman Catholic Church. It was, in short, or seemed to be, an admission that the old claim of Canada to the regions of the Ohio, against which, while Canada was still a French possession, the British Government and the British colonies had alike contended, was after all a valid claim; and it was, or seemed to be, a pronouncement that in years to come the future of the Western lands was to be shaped on Canadian principles and Canadian traditions, rather than on those which had moulded and inspired the ever-growing colonies of the British race.

It has been argued that true statesmanship would, in accordance with the plan which had been at one time contemplated, have constituted the territories beyond the 45th parallel a separate province under the Crown, separate alike from Canada on the one hand, and from Pennsylvania and Virginia on the other. This might possibly have been a preferable course; but, as subsequent experience showed in the case of Upper Canada, an inland colony, whose only outlet is through other provinces, is always in a difficult position; and the multiplication of communities in North America had already borne a crop of difficulties. Moreover, the particular circumstances of the time accounted for the decision which was taken, as they accounted also for the strong antagonism which that decision called forth. In the same session in which the Quebec Act was passed, the British Parliament had already enacted three punitive laws against the recalcitrant colony of Massachusetts; one closing the harbour of Boston; another altering the legislature, and giving to the governor the power of appointing and removing the judges, magistrates, and sheriffs; and a third empowering the trial of persons accused of capital offences in the discharge of their public duties to be held outside the limits of the province. If it was thought necessary thus to limit the liberties of one of the English colonies by Imperial legislation, it would have been hopelessly illogical to enlarge the borders of others among the sister communities; and if the only possible alternative was to keep the Western territories directly under the Crown, it was simpler, and involved less friction and debate, to attach them by a single clause in a Bill to the existing province of Quebec, than to treat them as a separate unit and to provide them with an administration and a legislature by a separate law. Furthermore, their annexation to Canada outwardly, at any rate, strengthened at a critical time the one province in America where the Crown still held undivided sway.

[Sidenote: Sections in the Act which dealt with the religious question.]

The fifth, sixth, and seventh sections of the Act dealt with religion. They provided for the free exercise of the Roman Catholic faith by the members of that Church, subject to the King’s supremacy as established by the Act passed in the reign of Queen Elizabeth; but they substituted a simple oath of allegiance for the oath required by Queen Elizabeth’s statute, and they confirmed to the Roman Catholic clergy ‘their accustomed dues and rights’. Protestants were expressly exempted from these payments; but the Act provided that, from such dues as they would otherwise have paid, provision might be made for the encouragement of the Protestant religion and the maintenance of a Protestant clergy. In other words, freedom of religion was guaranteed, the establishment of the Roman Catholic Church was recognized by law, and the principle of concurrent endowment was introduced.

[Sidenote: Other provisions of the Act.]

The eighth section of the Act restored Canadian law and custom in civil matters, and confirmed existing rights to property, with the exception of the property of the religious orders. The eleventh section continued the law of England in criminal matters. The twelfth, laying down that it was at present inexpedient to call an Assembly, provided for a nominated Legislative Council, consisting of not more than twenty-three and not less than seventeen members, no religious test being imposed. The next section withheld from the council the power of taxation, such additional taxes as were deemed necessary being imposed by a separate Act of the Imperial Parliament.[55]

[Sidenote: The Act embodied a compromise.]

[Sidenote: Opposition to it.]

[Sidenote: Inconsistency of the opponents.]

Such were the principal provisions of the Quebec Act. It embodied a fair and reasonable compromise. In part the Government retraced their steps; they restored Canadian civil law, they postponed indefinitely a representative legislature, but they gave what could under the circumstances be suitably and prudently given, religious toleration, trial by jury in criminal matters, and a council to which the Crown could call representatives of all creeds and interests. The Bill was attacked in the House of Lords, and in the House of Commons; and, even after it had become law, in 1775, Lord Camden in the House of Lords, and Sir George Savile in the House of Commons, presented petitions from the British inhabitants of the province of Quebec against the Act and moved for its repeal. The corporation of London petitioned against it. The American colonists made it the text of the manifesto to the people of Canada, which has already been noticed.[56] In the debates in Parliament various points were taken. Fox argued that, as the Bill gave tithes to the Roman Catholic clergy, it was a money Bill, and should not have originated, as it did originate in the House of Lords. Others criticized the absence of any provision for the rights of Habeas Corpus,[57] and the abolition of trial by jury in civil cases; but the main attack was on the lines that the law gave formal recognition to the Roman Catholic Church, that it withheld popular representation, and that it extended these two unsound principles to new territories whose lot should rather have been cast with the English colonies. Reference was made to the case of the colony of Grenada, in which limited representation in the popular Assembly had been given to Roman Catholics; but the opponents of the Quebec Act had not the courage to declare for a popular Assembly for Canada, without any religious test, for it would have meant an almost exclusively Roman Catholic legislature. They were at one and the same time fighting for the Protestant minority and contending for popular representation, but Protestant claims and popular representation in Canada were hopelessly at variance. This made the case of the opposition weak, and this was the justification of the Act. Lord Chatham denounced it as a most cruel, oppressive, and odious measure. Burke tried to appeal to popular prejudice against the Canadian seigniors. He attacked them, and he pressed the claims of the Protestant minority on the ground of their commercial importance, descending to such clap-trap as that in his opinion, in the case in point, one Englishman was worth fifty Frenchmen. The tone of the opposition was unworthy of the men, but minds had been so embittered and judgements so clouded by years of wrangle and debate on the American question, that the Act for the better government of Canada was viewed by the opponents of the ministry and the partisans of the colonies mainly as a case of French against English, and Papists against Protestants. None the less, the Act was a just and generous measure, and, when Carleton returned to Canada in September, 1774, his reception by the leading French Canadians showed that they appreciated it. Because, when war came, the Canadians as a whole stood aloof in a quarrel which was no concern of theirs, and some of them joined the revolting colonies, it was argued in the English Parliament that the Act had not conciliated them, and therefore stood condemned; but history has proved that this view was not true. No one measure or series of measures can at once obliterate differences of race, language, and creed; but, passed as it was at a time of failures, recrimination, and bitterness, the Quebec Act stood and will to all times stand to the credit of English good sense, in dealing with the actual facts of a difficult position, and the feelings and prejudices of an alien people.

FOOTNOTES:

[16] _Travels into North America_, by Peter Kalm, Eng. Transl.; 1770, vol. i, pp. 264-5.

[17] Montcalm’s letters, however, to which reference is here made, are held to have been forged by a Jesuit or ex-Jesuit named Roubaud. See Mr. Brymner’s _Report on Canadian Archives_ for the year 1885, p. xiii, &c., and Note E, p. cxxxviii. See also Parkman’s _Montcalm and Wolfe_, 1884 ed., vol. ii, pp. 325-6, Note.

[18] _History of England in the Eighteenth Century_, 1882 ed., vol. iii, chap. xii, p. 272.

[19] From the anonymous _Lettre d’un habitant de Louisbourg_, edited and translated by Professor Wrong, Toronto, 1897, p. 58.

[20] As to the authenticity of Montcalm’s letters, see above, note to p. 31.

[21] Sir G. Cornewall Lewis, in the _Essay on the Government of Dependencies_, chap. vi, writes that the North American colonies ‘had not been required at any time since their foundation to contribute anything to the expenses of the Supreme Government, and there is scarcely any habit which it is so difficult for a government to overcome in a people as a habit of not paying’.

[22] _Wealth of Nations_: chapter on the ‘Causes of the Prosperity of New Colonies’.

[23] _Wealth of Nations_: chapters on the ‘Causes of the Prosperity of New Colonies’, and on the ‘Advantages which Europe has derived from the Discovery of America and from that of a Passage to the East Indies by the Cape of Good Hope’.

[24] The Greek colonies will be remembered to the contrary. Some of them speedily outgrew the mother cities in wealth and population, but then they were wholly independent.

[25] _The American Revolution_, 1899 ed., Part I, chap. ii, p. 101.

[26] See above, p. 38.

[27] Chapter on ‘Causes of the Prosperity of New Colonies’.

[28] The above, however, was not Adam Smith’s view. In the chapter ‘Of the Advantages which Europe has derived from the Discovery of America, &c. &c.’ he writes, ‘The late war was altogether a colony quarrel, and the whole expense of it, in whatever part of the world it may have been laid out, whether in Germany or the East Indies, ought justly to be stated to the account of the colonies.’

[29] It is very difficult to state the case quite fairly as between the mother country and the colonies. In the first place a broad distinction must be drawn between the New England colonies and the more southern colonies. The New Englanders, who had the French on their borders, made far more sacrifices in men and money than the southern colonies, some of which, owing to remoteness, took no part in the war. The efforts of Massachusetts, and the military expenditure incurred by that colony, are set out by Mr. Parkman in his _Montcalm and Wolfe_, 1884 ed., vol. ii, chap. xx, pp. 83-6. In the next place, the regular regiments, though the whole expense of them was borne by the mother country, were to a considerable extent recruited in the colonies. The Royal Americans, e.g. were entirely composed of colonists. At the second siege of Louisbourg the English force consisted, according to Parkman, of 11,600 men, of whom only 500 were provincial troops, and according to Kingsford of 12,260, of whom five companies only were Rangers. The expedition against Ticonderoga, excluding bateau men and non-combatants, included, according to Kingsford, 6,405 regulars and 5,960 provincials. Parkman gives 6,367 regulars and 9,034 provincials; this was before the actual advance began, and probably included bateau men, &c. Forbes’ army contained 1,630 regulars out of a total of 5,980 (Kingsford). Wolfe’s force at Quebec, in 1759, numbered 8,535 combatants, out of whom the provincial troops only amounted to about 700 (Kingsford. See also Parkman’s _Montcalm and Wolfe_, Appendix H). Amherst, in the same year, in the campaign on Lakes George and Champlain, commanded 6,537 Imperial troops and 4,839 provincials. [The respective numbers in the different forces are well summed up in the fifth volume of Kingsford’s _History of Canada_, pp. 273-4.]

[30] It is interesting to notice that as early as 1652 a proposal emanated from Barbados that colonial representatives from that island should sit in the Imperial Parliament.

[31] Grenville carried a resolution in the House of Commons in favour of the Stamp Act in 1764. The Act received the Royal Assent in March, 1765, and came into operation on November 1, 1765.

[32] O’Callaghan’s _Documentary History of New York_, vol. ii (1849), MSS. of Sir William Johnson; this was at a public meeting of the Six Nations with Sir William Johnson, July 3, 1755.

[33] Sir W. Johnson to the Rev. Mr. Wheelock, October 16, 1762. _Documentary History of New York_, vol. iv. Paper relating principally to the conversion and civilization of the Six Nations of Indians.

[34] See O’Callaghan’s _Documentary History of New York_, 1849, vol. i, Paper No. 20, pp. 587-91.

[35] General Murray to Lord Shelburne, London, August 20, 1766. See Kingsford’s _History of Canada_, vol. v, p. 188.

[36] See _Documents Relating to the Constitutional History of Canada_, 1759-91 (Shortt and Doughty), pp. 37-72.

[37] The delay was probably due to the provisions of the fourth clause of the Treaty of Paris, by which eighteen months were to be allowed to the subjects of the French king in Canada, who wished to leave the country, to do so. The treaty was signed on February 10, 1763, and was ratified by England on February 21, 1763; the eighteen months were to run from the date of ratification, but civil government in Canada began on August 10, 1764, i.e. eighteen months from the date of the treaty itself.

[38] ‘The Canadians are to a man soldiers, and will naturally conceive that he who commands the troops should govern them.’ Murray to Halifax, October 15, 1764. Shortt and Doughty, p. 153.

[39] The words, ‘under our immediate government,’ did not connote what would now be called Crown colonies as opposed to self-governing colonies, but colonies which held under the Crown and not under proprietors.

[40] The Lords of Trade to Lord Egremont, June 8, 1763. Shortt and Doughty, p. 104.

[41] Part of the 4th Article of the Peace of Paris in 1763 ran as follows: ‘His Britannic Majesty, on his side, agrees to grant the liberty of the Catholic religion to the inhabitants of Canada; he will in consequence give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish Church, as far as the laws of Great Britain permit.’

[42] The letter is printed in full in the fifth volume of Kingsford’s _History of Canada_, pp. 188-90.

[43] For these documents see Shortt and Doughty, pp. 153, &c.

[44] October 29, 1764. See Shortt and Doughty, p. 167.

[45] October, 1766: Shortt and Doughty, pp. 194-5.

[46] For this ordinance see Shortt and Doughty, p. 280. Carleton’s dispatch of March 28, 1770, which enclosed the ordinance, explained the reasons for passing it, and submitted in evidence of the abuses which had sprung up a letter from an ex-captain of Canadian militia, will be found printed in Mr. Brymner’s _Report on Canadian Archives_ for 1890 (published in 1891), Note A.

[47] p. 75

[48] A French Canadian petition to the King, drawn up about the end of 1773, referred in the following terms to the Labrador question: ‘We desire also that His Majesty would be graciously pleased to re-annex to this province the coast of Labrador, which formerly belonged to it, and has been taken from it since the peace. The fishery for seals, which is the only fishery carried on upon this coast, is carried on only in the middle of winter, and sometimes does not last above a fortnight. The nature of this fishery, which none of His Majesty’s subjects but the inhabitants of this province understand; the short time of its continuance; and the extreme severity of the weather, which makes it impossible for ships to continue at that time upon the coasts; are circumstances which all conspire to exclude any fishermen from old England from having any share in the conduct of it.’ (Shortt and Doughty, pp. 358-9.)

[49] See above, p. 6, and Shortt and Doughty, p. 111.

[50] See _Canadian Constitutional Development_, Egerton and Grant, p. 28.

[51] See Shortt and Doughty, p. 381. Paper as to Proposed extension of Provincial Limits: ‘The King’s servants were induced to confine the government of Quebec within the above limits, from an apprehension that there were no settlements of Canadian subjects, or lawful possessions beyond those limits, and from a hope of being able to carry into execution a plan that was then under consideration for putting the whole of the interior country to the westward of our colonies under one general control and regulation by Act of Parliament.... The plan for the regulation of the interior country proved abortive, and in consequence thereof an immense tract of very valuable land, within which there are many possessions and actual colonies existing under the faith of the Treaty of Paris, has become the theatre of disorder and confusion....’

[52] See above, p. 5, and Shortt and Doughty, p. 108.

[53] See above, p. 59.

[54] _Annual Register_ for 1774, p. 77.

[55] The Quebec Act was 14 Geo. III, cap. 83, and its full title was ‘An act for making more effectual provision for the government of the Province of Quebec in North America’. The Quebec Revenue Act was 14 Geo. III, cap. 88, and its full title was ‘An act to establish a fund towards further defraying the charges of the Administration of Justice and support of the Civil Government within the Province of Quebec in America’. Much was heard of this latter Act in the constitutional wrangles of later years in Lower Canada.

[56] See above, p. 60.

[57] The opponents of the Quebec Act maintained that it took away the right of Habeas Corpus. Thus petitions from English residents in Quebec, dated November 12, 1774, complained, in respect to the Quebec Act, ‘That in matters of a Criminal Nature the Habeas Corpus Act is dissolved:’ and again, ‘That to their inexpressible grief they find, by an Act of Parliament entitled an act for making more effectual provision for the government of the province of Quebec in North America, they are deprived of the Habeas Corpus Act and trial by juries:’ and again, ‘an Act of Parliament which deprives His Majesty’s ancient subjects of all their rights and franchises, destroys the Habeas Corpus Act and the inestimable privilege of trial by juries’ (Shortt and Doughty, pp. 414-18). The Government on the other hand contended that before the Quebec Act, the Statute of Habeas Corpus was not in force in Canada, although, both before and after the Act, the Common Law right existed. Thus Wedderburn, the Solicitor-General, before the Quebec Act was drafted but while the subject matter was being considered by the Government, reported, ‘It is recommended by the Governor, the Chief Justice, and the Attorney-General, in their report, to extend the provisions of the Habeas Corpus Act to Canada. The inhabitants will, of course, be entitled to the benefit of the writ of Habeas Corpus at Common Law, but it may be proper to be better assured of their fidelity and attachment, before the provisions of the statute are extended to that country’ (Ib. 300); and in November, 1783, Governor Haldimand reported that he was going to propose an ordinance for introducing the Habeas Corpus Act, ‘which will remove one of the ill-grounded objections to the Quebec Act, for though that law had never been introduced into the province, people were taught to believe that the Quebec Act had deprived the inhabitants of the benefit of it’ (Ib. 499). The point at issue, and it is not free from doubt, was whether the introduction _en bloc_ of the English criminal law into Canada, brought with it _ipso facto_ the introduction of the Habeas Corpus statute. Haldimand passed his ordinance in 1784 under the title of an ‘Act for securing the liberty of the subject and for the prevention of imprisonments out of this province’. The preamble stated that ‘The Legislature could not follow a better example than that which the Common Law of England hath set in the provision made for a writ of Habeas Corpus which is the right of every British subject in that kingdom’.