for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty."(2)

THE ROYAL PROCLAMATION

(7th October, 1763)

This Proclamation which abolished French law in Canada "gave Quebec its first civil government under British rule". (3) It established four new distinct and separate Governments of which only one was in Canada, that of Quebec. (4) The proclamation further refers to an administrative outline as follows:

"And whereas it will greatly contribute to the speedy settling our said new Governments, that our loving subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; and We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of the People, so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and restrictions as are used in other Colonies; and in the mean time, and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under

(2) By Article 20 of the same treaty the King of France cedes and guarantees in full right to his Britannic Majesty "Florida with Fort St. Augustin, and the Bay of Pensacola, as well as all that Spain possesses on the continent of North America to the East or to the South East of the River Mississippi". His Britannic Majesty agrees, on his side, in precisely the same terms as those of Article 4, to grant to the inhabitants of the countries so ceded the liberty of the Catholic religion and precisely the same rights as to their property and as to their removal.

(3) Kennedy, The Constitution of Canada, p. 33.

(4) The proclamation recites the fact of the annexation of the Islands of St.-John's and Cape Breton (or Isle Royale) to the Government of Nova Scotia.

the usual Limitations and Restrictions, to Us in our Privy Council."(5)

The doctrine recognized and admitted at that period is better summarized by an eminent constitutional authority (6) who writes:

"As the conqueror was not bound in international law even to spare the lives of those who were overcome by him, so he need not accord them any civil rights whatever, and what he did accord was his to grant and to take away. Thence followed the doctrine that the Crown has uncontrolled legislative authority over the conquered or ceded Colony."

The application of the above principles had caused the Proclamation not only to substitute the common law of England to the Coutume de Paris, which had been in force in the Colony but also to create courts where English was to be the only official language. The Royal Instructions to Governor Murray which followed two months later instructed him to nominate and establish a Council which was to meet when deemed necessary and expedient and on the advice of the Council to summon and call a General Assembly.

As the members of the Council and assembly had to subscribe the Declaration in the "Act for preventing Dangers which may happen from Popish Recusants" no Assembly was called during that period. This however had been expected and explained the following contradictions in the Instructions.

"11. And whereas it is directed, by Our Commission to You under Our Great Seal, that so soon as the Situation and Circumstances of Our said Province will admit thereof, you shall with the Advice of Our Council, summon and call a General Assembly of the Freeholders in Our said Province; You are therefore, as soon as the more pressing Affairs of Government will allow to give all possible attention to the carrying this important Object into Execution: But, as it may be impracticable for the present to form such an Establishment, You are in the mean time to make such Rules and Regulations, by the Advice of Our said Council, as shall appear to be necessary for the Peace, Order and good Government of Our said Province."

"28. And whereas We have stipulated, by the late Definitive Treaty of Peace concluded at Paris the 10th Day of February, 1763, to grant the Liberty of the Catholick Religion to the Inhabitants of Canada, and that We will consequently give the most precise and most effectual Orders, that Our new Roman Catholick Subjects in that Province may profess the Worship of their Religion, according to the Rites of the Romish Church, as far as the Laws of Great Britain permit; It is therefore Our will and Pleasure, that you do, in all things regarding the said Inhabitants, conform with great Exactness to the Stipulations of the said Treaty in this respect."

"29. You are, as soon as possible, to summon the Inhabitants to meet together, at such Time or Times, Place or Places, as you

(5) It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execution, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal Intention. (The Earl of Hillsborough, Secretary of State for the Colonies,

(6) Keith, Responsible Government in the Dominions, Vol. 1, p. 2.

shall find most convenient, in order to take the Oath of Allegiance, and make and subscribe the Declaration of Abjuration mentioned in the aforesaid Act passed in the first Year of the Reign of King George the First, for the further Security of His Majesty's Person and Government, and the Succession of the Crown in the Heirs of the Late Princess Sophia, being Protestants, and for extinguishing the Hopes of the Pretended Prince of Wales, and his open and secret Abettors; which Oath shall be administered to them by such Person or Persons as you shall commissionate for such Purpose; and in case any of the said French Inhabitants shall refuse to take the said Oath, and make and subscribe the Declaration of Abjuration, as aforesaid, You are to cause them forthwith to depart out of Our said Government."(7) The civil government instituted by the Royal Proclamation of 1763 and confirmed by Murray's instructions in the same year was not very satisfactory. As stated eleven years later when the Quebec Act was passed by the Imperial House of Commons: "If the proclamation is to be considered as importing English laws into a country already settled, I take it to be an act of the grossest and absurdest and cruellest tyranny that a conquering nation ever practised over a conquered country. Look back to every page of history, and I defy you to produce a single instance in which a conqueror attempted to take away from a conquered province, by one rough stroke, the whole of their constitution."

The Law Officers of the Crown in England had been of the same opinion in 1766 when they reported that it seemed an absurdity to attempt the administration of justice in Canada in an unknown tongue and without the aid of Canadians and "at once to abolish all the usages and customs of Canada with the rough hand of the conqueror".

We have explained why no General assembly, as recommended by the Instructions to Governor Murray, was ever summoned during the period preceding the Quebec Act of 1774, which also explains the chaotic conditions in existence during the same period. The position was to be entirely changed by the adoption of the Quebec Act 1774.

(7) In 1766 the Lords of the Committee of Council for Plantation Affairs secured the joint advice of the Attorney-General and the Solicitor General concerning the Civil Government of Quebec. It was evident, the latter reported, that there were two principal sources of disorder. One was the attempt to administer justice without the aid of the Canadians in an unknown tongue, with neither Canadian advocates nor Canadian jurors, even in causes between Canadians only, nor judges conversant with the French language. The second source of disorder was:

"the alarm taken at the construction put upon His Majesty's Proclamation of October 7th, 1763. As if it were His Royal Intentions by His Judges and Officers in that country at once to abolish all the usages and customs of Canada, with the rough hand of the conqueror rather than with the true spirit of a lawful Sovereign, and not so much as to extend the protection and Benefit of His English Laws to his new subjects, by securing their Lives, Liberty and Properties with more certainty than in former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Descent, Alienation, and Settlement, which tend to confound and subvert rights instead of supporting them." (W. F. O'Connor-Report to the Speaker of the Senate of the Parliament Counsel, etc., pages 10 and 11 of Annex 4.)

THE QUEBEC ACT, 1774

(EXTRACTS)

And whereas the Provisions, made by the said Proclamation, in respect to the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province, by the Grants and Commissions issued in consequence thereof, have been found, upon Experience to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof amounted, at the Conquest, to above Sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their Persons and Property have been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada; be it therefore further enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the First Day of May, One thousand seven hundred and seventy-five.(8)

And, for the more perfect Security and Ease of the Minds of the Inhabitants of the said Province, it is hereby declared, That His Majesty's Subjects, professing the Religion of the Church of Rome, of and in the said Province of Quebec, may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the King's Supremacy, declared and established by an Act, made in the First Year of the Reign of Queen Elizabeth, over all the Dominions and Countries which then did, or thereafter should, belong to the Imperial Crown of this Realm; and that the Clergy of the said Church may hold, receive, and enjoy, their accustomed Dues and Rights, with respect to such Persons only as shall profess the said Religion. (9)

Provided always, and be it enacted, That no Person, professing the Religion of the Church of Rome, and residing in the said Province, shall be obliged to take the Oath required by the said Statute.(10)

And be it further enacted by the Authority aforesaid, That all His Majesty's Canadian Subjects, within the Province of Quebec, the religious Orders and Communities only excepted, may also hold and enjoy their Property and Possessions, together with all Customs and Usages relative thereto, and all other their Civil Rights, in as large, ample, and beneficial Manner, as if the said Proclamation, Commissions, Ordinances, and other Acts and Instruments had not been made, and as may consist with their Allegiance to His Majesty, and Subjection to the Crown and Parliament of Great Britain; and that in all Matters of Contro

(8) This section had the effect of rendering null and void the former provisions of the civil laws of England which had been imposed by the proclamations of 1763 in violation of the terms of the capitulations.

(9) This section authorized the inhabitants of Quebec to practise the Catholic religion subject to the King's supremacy and sanctioned the right of the Roman Catholic Clergy to impose and collect tithes.

(10) This provision substituted for Roman Catholics a new form of Oath for the Test Oath previously imposed upon them.

versy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, as the Rule for the Decision of the same.(11)

And whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the use of it, have been sensibly felt by the Inhabitants, from an Experience of more than Nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.(12)

And whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the Occasions of which cannot now be foreseen, nor, without much Delay and Inconvenience, be provided for, without intrusting that Authority, for a certain Time, and under proper Restrictions, to Persons resident there: And whereas it is at present inexpedient to call an Assembly; be it therefore enacted by the Authority aforesaid, That it shall and may be lawful for His Majesty, His Heirs and Successors, by Warrant under His or Their Signet or Sign Manual, and with the Advice of the Privy Council to constitute and appoint a Council for the Affairs of the Province of Quebec, to consist of such Persons resident there, not exceeding Twenty-three, nor less than Seventeen, as His Majesty, His Heirs and Successors, shall be pleased to appoint.(13)

The Quebec Act, although it did not institute responsible or even representative government was considered by Canadians. as the first charter of their liberties and for their liberties and for this reason, as stated by Governor Haldimand, its passing prevented Canada from becoming a thirteenth state of the Union after the breaking out of hostilities between England and the American Colonies. (14)

We have seen, in the Extracts quoted above, the main provisions of the Act. These of course, although satisfactory on the whole to French-Canadians did not satisfy the United Empire Loyalists who were already clamouring for representative institutions.

Another effect of the Quebec Act was to extend the territory of the provinces to the frontiers of New-England, to Pennsylvania, to the province of New-York, then to the Ohio and to the left bank of the Mississippi and then to the territory of the Hudson Bay.

THE CONSTITUTIONAL ACT, 1791

The Act repeals so much of the Quebec Act, 1774

"As in any manner relates to the appointment of a council for the affairs of the said province of Quebec, or to the power

(11) This section confirmed His Majesty's Canadian Subjects in the enjoyment of their possessions and continued in existence the Canadian laws as to property.

(12) Provides that the criminal law system shall be that of England. (13) Creates a Crown nominated Legislative Council with authority to make ordinances for the peace, order and welfare of the province.

(14) See Problems of Canadian Sovereignty by Maurice Ollivier, at p. 13 et seq. (With permission of Canada Law Book Co. Toronto.)