HISTORICAL REVIEW WITH PRE-CONFEDERATION STATUTES AND DOCUMENTS THE CAPITULATIONS AND THE Canada became a colonial possession of Great Britain by the capitulations of Quebec (September 18, 1759) and of Montreal (September 8, 1760). (1) By these proclamations, the inhabitants of the colony were given certain restricted privileges, amongst others, the free exercise of their religion and were submitted to a tolerant military regime. The Governor, whenever possible to do so, did not fail, to rule according to the laws and customs of the inhabitants. It is unnecessary to transcribe in this book the articles of the Capitulations except the following: Article 6 of the Capitulation of Quebec. De Ramsay, the King's Lieutenant had demanded: The demand was granted in the following terms: "The free exercise of the Roman religion is granted; likewise safeguards to all religious persons, as well as to the Bishop, who shall be at liberty to come and exercise, freely and with decency, the functions of his office, whenever he shall think proper, until the possession of Canada shall have been decided between their Britannic and Most Christian Majesties." In the Capitulation of Montreal. Article 27, as proposed and as accepted read as follows:(a) AS PROPOSED "27. The free exercise of the Catholic, Apostolic and Roman religion shall subsist entire, in such manner that all the states and the people of the towns and countries, places and distant posts, (1) "French colonial possessions on the North American continent only gradually passed under the British flag and the introduction of British institutions was equally gradual. (Nova Scotia in 1713, Cape Breton in 1758, Citadel and district of Quebec in 1759, the remaining French possessions in 1760)", W. P. M. Kennedy. The Constitution of Canada, 1534-1937, p. 25. shall continue to assemble in the churches and to frequent the sacrements as heretofore, without being molested in any manner, directly or indirectly. These people shall be obliged by the English government to pay their priests the tithes and all the taxes they were used to pay under the government of His Most Christian Majesty." (b) AS GRANTED "Granted as to the free exercise of their religion; the obligation of paying the tithes to the priests will depend on the King's pleasure." Article 28 was granted as proposed, viz. "28. The Chapter, priests, curates and Missionaries shall continue, with an entire liberty, their exercise and functions of cures in the parishes of the towns and countries." "All the communities, and all the priests, shall preserve their moveables, the property and revenues of the Seignories and other estates which they possess in the colony of what nature soever they be; and the same estates shall be preserved in their privileges, rights, honours and exemptions." Article 37 (which was granted as to property of companies and private persons, but subject so that if the French Sovereign "has any share in it, that must become the property of the King" of Great Britain), was as follows: "37. The Lords of Manors, the Military and Civil Officers, the Canadians as well in the towns as in the country, the French, settled or trading in the whole extent of the colony of Canada, and all other persons whatsoever, shall preserve the entire peaceable property and possession of the goods, noble and ignoble, moveable and immoveable, merchandises, furs, and other effects, even their ships; they shall not be touched, nor the least damage done to them, on any pretence whatever. They shall have liberty to keep, let or sell them, as well to the French as to the British; to take away the produce of them in bills of exchange, furs, specie or other returns, whenever they shall judge proper to go to France, paying their freights, as in the twenty-sixth Article" (viz. 'on the same footing as the British would pay it'). "They shall also have the furs which are in the posts above, and which belong to them, and may be on the way to Montreal; and for this purpose they shall have leave to send, this year or the next, canoes fitted out to fetch such of the said furs as shall have remained in those posts." Article 41, was proposed as follows: "41. The French, Canadians and Acadians, of what state and condition soever, who shall remain in the colony, shall not be forced to take arms against his Most Christian Majesty or his allies, directly or indirectly, on any occasion whatsoever; the British Government shall only require of them an exact neutrality." The proposal was answered as follows: "They become subjects of the King." Article 42, was proposed as follows: "42. The French and Canadians shall continue to be governed according to the custom of Paris and the laws and usages established for this country, and they shall not be subject to any imposts than those which were established under the French Dominions." The proposal was answered as follows: "Answered by the preceding articles, and particularly by the last." (The answers to 'the preceding articles' are these-To Article 38 "The King is to dispose of his ancient subjects'; (the Acadians) 'in the meantime they shall enjoy the same privileges as the Canadians,' and Article 41-"They become the subjects of the King.' In the result, therefore, the future legal system of Canada was left where by English law it was,-in the hands of the conquering sovereign of England, to leave it as he found it or to change it at his will, but so that at least with relation to matters as between subject and subject, the ancient laws of the colony continued to apply to the King's new British subjects until the King's will with respect to them should be expressed.) Article 46 was proposed and granted as follows: "46. The inhabitants and merchants shall enjoy all the privileges of trade, under the same favours and conditions granted to the subjects of His Britannic Majesty, as well in the countries above as the interior of the colony." THE TREATY OF PARIS (February 10th, 1763) By the Peace Treaty which was signed at the conclusion of the Seven Years' War the French possessions of North America were formally ceded to Great Britain. The Treaty which was concluded between His Britannic Majesty, the King of France and the King of Spain confirmed in Article 4 the liberty of the Catholic religion and the rights of the inhabitants as to their property. "4. His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadie in all its parts and guaranties the whole to it, and with all its dependencies, to the King of Great Britain: Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies, as well as the Island of Cape Breton and all the other islands and coasts in the gulph and river of St. Lawrence, and, in general, everything that depends on the said countries, lands, islands and coasts, with the sovereignty, property, possession and all rights acquired by treaty or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, lands, islands, places, coasts and their inhabitants. . . . His Britannick Majesty on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will in consequence give the most precise and most effectual orders that his new Roman Catholick 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. His Britannick Majesty farther agrees, that the French inhabitants or other who had been subjects of the Most Christian King in Canada, may retire with all safety and Freedom whenever they shall think proper, and may sell their estates, provided it be to the subjects of his Britannick Majesty, and bring away their effects as well as their persons without being restrained in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions. The term limited |