The design was considered impracticable from the difficulties it presented. In order for a satisfactory result to be attained, the knowledge and continued attention of some of the ablest lawyers in France had to be appealed to, and then it was questionable if the work would be properly executed. Such a codification, however, would have the effect of removing from the minds of the French Canadians their belief in the superiority of French law, and the wisdom of the government from which it had emanated. So long as the law remained uncodified, recourse must continually be had to the French text books and edicts, and reverence would be felt for the parliament of Paris, whence the edicts had sprung; a feeling of respect which would naturally be extended to the general government. Nevertheless, if French law was to be established, the shortest and easiest method was to accept it in its entirety.

2. The introduction of the whole French law was submitted, retaining those English laws favourable to the liberty of the subject; to do away with the use "of question and torture"* in criminal prosecutions, and to abolish the punishment of breaking upon the wheel; to introduce the habeas corpus. Such an ordinance would redeem the promise of obtaining the benefit of the laws of England.

3. To make English law the law of the province, with the exception of such ancient laws and customs, the observance of which could be permitted.

4. Making English law the law of the province, specially enumerating what French customs and law were permitted to exist.

The establishment of English law as the basis of jurisprudence, with the admission of certain sections of Canadian law and custom, would have been plain and free from difficulty, and such a code would have been acceptable to the English speaking population. The French Canadians might, however, have objected to this partial incorporation, on the ground The use of torture of any one under examination, to extort confession of a

crime.

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that all their law ought to be retained, and it was dangerous to disintegrate the system. If the English law had been introduced, it is plain that it should have been clearly and specifically set forth by ordinance; but even with the incorporation of French law, the code would undoubtedly have only imperfectly satisfied the French Canadians, who desired that their own laws should be accepted without modification. The effort of men in prominence among them had been turned in this direction; while the arrogant pretension of the new comers to exclude them from all share in the government made it a matter of feeling and sentiment with the French. Canadian to cling to his language and customs. The firmness and justice of the British government, however, were not to prove mere words; and although hesitation and doubt were felt in the imperial counsels, and five years were to elapse. before any decision was arrived at, the dominant sentiment remained unchanged; that the constitution to be established in Canada must be based on the principle enforced by justice, honesty, and true statesmanship. The difficulty felt was the form by which this result could be attained. *

* Shelburne wrote to Carleton on this subject, 20th June, 1767 [Can. Arch., Q., 4, p. 130], “As the right administration of Government in Quebec is a matter of the greatest importance to that Province, the improvement of its civil constitution is under the most serious and deliberate consideration. Every light which can be procured on this subject will be material, as well as every Information which can tend to elucidate how far it is practicable and expedient to blend the English with the French laws, in order to form such a system as shall at once be equitable and convenient both for his Majesty's old and new subjects, in order to the whole being confirmed, and finally established by authority of Parliament."

CHAPTER VI.

Masères' report was delivered to Carleton on the 27th of February, 1769. I have thought it necessary to relate its recommendations, for it was not without its influence on subsequent events, and it is valuable from the light it throws upon the unsettled feeling of that period. It was not approved of by the governor, for in many respects it ran counter to the theories he had formed. Carleton had determined to recommend the revival of the whole body of French law unmodified in any way, and to introduce English criminal law. Masères dissented from this view and gave in a second report. He objected to the admission of the entire code of French law, as a deviation from the plan observed since the conquest, for evidently the design had been to assimilate the new acquisition to the other British provinces. The acceptance of French law would throw the administration of the law into the hands of the French Canadians, owing to the absence of previous study of the French law by the new population, and would consequently keep up a sentimental remembrance of the former government, possibly investing it with many excellencies which it did not really possess. This sentiment, encouraged by the deeply seated attachment to the forms and ceremonies of the Roman catholic religion, would exercise a powerful influence with the people, and would give rise to an unfriendly, if not a disaffected feeling to the British government. Masères distinctly placed on record his convictions, that the majority of the French Canadians were not distressed or discontented at the introduction of English law. They objected to the expense and dilatoriness which accompanied its administration. He recommended the immediate preparation of a code reviving the French law relating to the tenure, alienation, dower and inheritance of landed property and the

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distribution of the effects of persons who died intestate. He was sustained in this view by the chief-justice. Neither thought it wise nor politic to revive the whole body of the French civil law, and two additional reports were made by them, shewing the ground of dissent from Carleton's views. As early as 1768, Carleton wrote a remarkable letter to Hillsborough, then secretary of state. The latter had written. that from the intelligence received, there was a movement in Canada to shake off British rule. Carleton replied that he had no doubt that the feeling of attachment to France was secretly entertained, and it was to be expected that it would continue, so long as French Canadians were excluded from all employment under the British government, for they must feel that the repossession of the country by France meant their reinstatement in their former rank; and he proceeded to say that not to mention "the fees of office and the vexations of the law, we have done nothing to gain one man in the province, by making it his private interest to remain the king's subject," although many of the gentry had applied to be admitted to the king's service, with promise of their zeal and gratitude for any mark of favour. Carleton dwelt upon the expediency of appealing to the interests of the Canadians to remain the king's subjects. Hillsborough acknowledged in his reply† "both the propriety and necessity of extending to that brave and faithful people a reasonable participation in those establishments which are to form the basis of the future government of Quebec," but from the law of the kingdom and from general prejudice, it was not possible to open to them a position in the army. ‡

+ Whitehall, 6th January, 1769. Can. Arch, 26, p. 3.

+

There is a passage in Carleton's letter, written ten years previous to the active interference of France in the American war, which shews how justly he estimated the form which the dispute would take, and the aid which France would furnish to the injury of Great Britain. He writes: “I can have no doubt that France, as soon as determined to begin a war, will attempt to regain Canada, should it be intended only to make a diversion, while it may be undertaken with little hazard should it fail, and when so much may be gained should it succeed. But should France begin a war in hopes the British Colonies will push matters to

P

While these enquiries were being prosecuted in Canada, Mr. Morgan whose mission has previously been mentioned,* arrived at Quebec on the 22nd of August, 1768. The information available for his enquiry was placed at his disposal. He remained in Canada until the end of September, 1769, when he returned to England, carrying with him the reports which had been prepared. He arrived in London in the middle of January, 1770, with the papers entrusted to him.

A few days after Morgan's departure, Masères sailed for England. Carleton temporarily appointed Kneller to succeed him. Masères on his arrival was kindly received by Hillsborough, who wrote to Carleton that Masères' ability and integrity made his departure from the colony an event much to be lamented. Although Masères had returned to England, he continued to retain his interest in Canadian affairs: during the succeeding later years he published several volumes. relating to Canada, which, while shewing his own feeling with regard to the province, are of value from the explanation they furnish of much which happened.

We have a report by Carleton of the manufactures carried on in the province in 1769. Much flax was grown; it was generally worked into coarse linens for family use, and only a small quantity was brought into the market. There were not many sheep kept; the wool obtained was knit into stockings by the females of the home. Some wool was mixed with thread, which made a kind of linsey-wolsey for the clothing of the men. The caps worn were generally of English manufacture. With this exception, it was roughly estimated that one-third of the population wore clothes of home manufacture. A coarse description of earthenware was

extremities, and she adopts the project of supporting them in their independent notions, Canada, probably, will then become the principal scene, where the fate of America may be determined. Affairs in this situation, Canada in the hands of France would no longer present itself as an enemy to the British Colonies, but as an ally, a friend and a protector of their Independence." Quebec, 20th November, 1768. Can. Arch. Report, 1888, p. 49: Q., 5.2, p. 890.

# Ante, p. 202.

+ Can. Arch., Q., 7, p. 1.