6-7 EDWARD VII., A. 1907 There is one more observation which is to be made, before I dismiss the subject of landed inheritance, that both by the subtilities of the English and of the French laws, the commutation of landed property is rendered liable to much delay, difficulty and litigations on titles, and prevents its being brought into commerce so much as it might; which is a matter of the utmost importance in any commercial country, particularly in a new colony, where credit wants every sort of supply and foundation. The rêtrait lignager and feodal makes a part of the French law, whereby the lord or next heir must be parties consenting to the sale of every estate, and to have a right of lods and ventes of resuming and pre-emption within a year, which right is a twelfth part of the purchase-money, and cannot be taken away without injury to the proprietor, the lord having taken a small rent (originally from his under-tenant) with a view to these fines of alienation to a stranger, which are the great profit of all seignories. So that if the lord had not this power of resuming, he might be defrauded by a sale for a less pretended sum than was actually paid. These subtilities introduced however into the forms, often defeat the lord and the heirs; because the decisions of the courts of France, adapting their interpretation of the ancient existing laws to the wants and manners of the times, endeavour to sap all these obstacles, and to introduce by degrees, and by construction of law, an easy commutation of landed property, necessary in an age of commerce. If, therefore, the mode of tenure is to be changed, as it is proposed, some compensation ought to be given to the lord and heir, as in the case of extinguishing the heretable jurisdictions in Scotland. The leaving it in the power of a seigneur, at the age of majority, now made twenty-one by an ordinance, to change his tenure into common soccage, and descendible by the English or by some more convenient mode of inheritance adapted to the nature and cultivation of the lands in allotment, is an option to which no Canadian can have any objection. Third Article. A bill is proposed for the better raising and collecting his Majesty's revenue. On this subject it may be proper that cases touching the King's revenue, whether inward or outward, shall not be tried by juries. The facilities, the certainty and cheapness of collecting, and settling appeals concerning the land-tax in England, are an admirable example, how easily men may be reconciled to public burthens, if they are but complimented with the business of levying and judging of them themselves. As the supporting the province with all the necessary and executive parts of government depends upon raising an adequate revenue*; and as interested juries will always suffer to escape the persons of those who defraud it; a British parliament, so used as it is to the modes of the revenue laws in England, may easily be brought to introduce into Canada, some of the same modes of taxation as in England. If a certain number of the ultérieure de terreins les feroit rentrer dans leur premier néant. En Europe, un citoyen obscur qui n'a que quelques arpens de terre, tire souvent un meilleur parti de ce petit fonds, qu'un homme opulent des domaines immenses que le hazard de la naissance ou de la fortune a mis entre ses mains. En Amerique, la nature des denrées qui sont d'un grand prix, l'incertitude des récoltes peu variées dans leur espece, la quantité d'esclaves, de bestiaux, d'utensiles nécessaires pour une habitation: tout cela suppose des richesses considerables qu'on n'a pas dans quelques colonies, et que bientôt on n'aura plus dans aucune si le partage des successions continue à morceler, diviser de plus en plus les terres. Celui Q'un pere en mourant laisse une succession de trente mille livres de rente. Sa succession se partageegalement entre trois enfans. Il seront tous ruinés si l'on fait trois habitations: l'un parcequ'on lui aura fait payer cher les bâtimens, et qu'à proportion il aura moins de negres et de terres; les deux autres parcequ'ils ne pourront pas exploiter leur heritage sans faire bâtir. Ils seront encore tous ruines, si l'habitation entiere reste à l'un des trois. Dans un pais où la condition du créancier est la plus mauvaise de toutes les conditions, les biens se sont élevés à une valeur immodérée. qui restera possesseur de tout sera bien heureux, s'il n'est obligé de donner en intérêts que le revenu net de l'habitation. Or comme la premiere loi est celle de vivre, il commencera par vivre et ne pas payer. Ses dettes s'accumuleront. Bientôt il sera insolvable; et du désordre qui nâitra de cette situation, on verra sortir la ruine de tous les cohéritiers. L'abolition de l'egalité des partages est la seul remede à ce désordre. Histoire Politique, tom. vi. p. 155, 156, 157. The author goes on to prove that the great load of debts due both within the French colonies, as well as to the mother country, which ruins all their establishments, is occasioned by the law of partition and subdivision of lands ad infinitum in successions. * L'administration des finances ne percevoit au Canada que quelques foibles lods et ventes. Une legere contribution des habitans de Quebec et Montreal pour l'entretien des fortifications de ces places, des droits, mais trop forts, sur l'entrée, sur la sortie des denrées et des marchandises; tous ces objets ne produisoient au fix en 1747 qu'un revenu de deux cens soixante mille deux cens livres. Histoire Politique, tom. vi. p. 143. SESSIONAL PAPER No. 18 S principal land-holders of the Canadian seigneurs were to be appointed, together with hi Majesty's governor and judges, to be commissioners, with the title of tres illustres, or righ honourable, to hear and determine finally all matters and causes touching the receipt and collection of all taxes and inland duties raised, or to be raised, fines of seigniories, and other dues of his Majesty's seignioral rights (concerning which difficulties have been made) and revenue of what nature or kind soever, it would, together with a competent salary, be a flattering circumstance to the Canadian landed gentry who should have these commissions, and would serve effectually to prevent evasions of the revenue laws of any sort, now or hereafter, on the part of the commercial inhabitants, chiefly English, and who are the people most tempted to evade them. But this regulation should by no means extend to take away from the admiralty court its jurisdiction concerning duties and forfeitures, under the acts of trade; but that the officers of the crown may sue there as usual, and as they shall judge proper: but with a special clause, that in all cases where, by the acts of trade, his Majesty is intitled to any part of the forfeiture, all such causes shall be carried on, both in the first and second instance, in the name of his Majesty's advocate-general, in order to prevent collusive desertion of the cause, or appeal, on one side, or unjust harrassing of the subject on the other. This will be agreeable to the practice in England, where all such causes are carried on in the court of Exchequer, in the name of his Majesty's attorney-general, by act of parliament. Under the articles of revenue, the proposition of colonel Carlton, Appendix, No. 12. seems very proper to be established. That all vessels coming up the river shall be obliged to enter at Quebec, and shall not break bulk at any place before they arrive there. The proposed duty upon rum will also deserve the consideration of government; and it is understood, that there is already some bill prepared upon this head, and now under consideration of the board of treasury. There are very able informations on the subject of duties in this province, in a private paper of Mr. attorney-general Mazeres. : As it appears that your Majesty's governors have omitted to require the oaths of fealty and homage, legal doubts have been started, whether the fines to the crown, upon the alienation of lands, and other seignioral rights, are due till such fealty and homage have been done it should therefore make a part of the bill touching the revenue, that all dues heretofore paid to the French king, whether arising out of lands, or under any other denomination whatsoever, are payable and to be paid to your Majesty, your heirs, and successors, unless your Majesty shall, of your royal grace and favour, remit the same for the greater encouragement of your new subjects. The seigneur-paramount has what is called the quint. To the seigneurs, the fines are a twelfth part of the real purchase-money bona fide paid; and if the vendor pays it immediately, two thirds of a twelfth only are taken, which are equivalent to an eighteenth of the whole purchase-money. The fluctuation of property has been so great since the conquest, that the fines of alienation have been very beneficial to the lords, and consequently there must be considerable sums due to your Majesty on the same account. Fourth article. A bill is proposed for giving leave to your Majesty's Roman catholic subjects in the said colony, to profess the worship of their religion, according to the rites of the Romish church, as far as the laws of Great Britain permit, which are already in force, and antecedent to the definitive treaty of peace, concluded at Paris, 10th February 1763, and for the better maintenance of the clergy of the church of England already established in the said colony. The treaty gives the superiority to the laws of England: it understands them all to be introduced into the colony ipso facto. The treaty stipulates clearly that the laws shall not be changed in this article with your Majesty's assent, and by the national legislation, but shall stand as they did stand, as the law of the realm in being at the instant of the contracting. It is then the question, how far the laws of England affect the case of the Romish religion? In England very much if executed; in the colonies settled by ourselves, no notice has been taken of it: so some penal laws, in other cases of trading property and revenue, have been very lightly enforced there formerly, even when the colonies have been 6-7 EDWARD VII., A. 1907 expressedly mentioned. But if the penalties of the laws are not felt by the professors of the Romish religion in England, it is by connivance from humanity or policy, not to weaken or depopulate, that the laws are suspended but not abrogated. The first thing that strikes upon this head, is an opinion, that the penal statute laws of England, in relation to religion, do not extend to the other British colonies, and so it seems to be agreed by many; and that the Roman catholic worship and profession of it therefore, sub modo, and in a certain way, may be permitted, or rather connived at in them, without breach of the fundamental laws of England, under restrictions. If the exercise of the power of the papal see cannot be permitted in the ancient colonies of the crown by existing law, it is clear that it cannot be permitted in a new acquired colony, when the ceded colony is put by the treaty on the same footing with the ancient colonies, by leaving it to the laws of the realm. With regard to Canada, in the fourth article of the treaty it is declared, that his Britannic Majesty shall give the 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. I state the article in the French language, for the greater clearness and precision in arguing upon it. Sa Majesté Britannique convient d'accorder aux habitants de Canada la liberté de la religion catholique, en consequence elle donera les ordres les plus precis et les plus effectifs pour que ses nouveaux sujets catholiques puissent professer le culte de leur religion selon le rit de l'Eglise Romaine, en tant que le permettent les loix de la Grande Bretagne. By these terms it appears, that not the profession of the doctrines, but the profession of the exercise of external ceremonies is only stipulated for: and the article is very equivocal, whether that profession is to be public or private; for the word profession may be insisted upon either way: and as for the degree, the article is en tant que, as far as, and in such degree, as the laws of Great Britain permit at the instant of contracting. Les loix de la Grande Bretagne is a general term, and these words being in the plural number, and the verb permettent in the present tense, must mean consistently with the general system of laws of Great Britain, now existing in their totality; any of which, tacit or written, may operate with regard to this subject. The treaty considers the toleration as limitable in the degree and manner of it accordingly. The makers of the treaty of Versailles, seem to have had in their eye the eleventh article of the treaty of Utrecht, respecting the cession of Minorca to the crown of Great Britain. In the capitulation of Minorca, there was no article respecting laws or religion; because general Stanhope took possession in the name of the archduke, as King of Spain. Spondet insuper regia sua Majestas Magna Britannia sese facturum ut incolæ omnes insula praefata tam ecclesiastici quam seculares bonis suis universis et honoribus tuto pacatèque fruantur atque religionis Romance catholicæ liber usus iis permittatur, utque etiam ejusmodi rationes ineantur ad tuendam religionem praedictam in eadem insulâ, quæ à gubernatione civili atque a legibus Magna Britanniæ paenitus abhorrere non videantur. Moreover, her Britannic Majesty engages, that all the inhabi tants of the said island, as well ecclesiastics as laity, shall enjoy, in quiet and safety, their properties and honours, and that the free use of the Roman catholic religion shall be allowed them; so that measures of such sort shall be entered upon for the protecting the said religion in the said island, which measures shall not appear to be absolutely incon· sistent with the civil government, and the constitution of England. Here the use clearly relates to the use of ceremonies. The fact is, the inhabitants of Minorca enjoy their religion, and their church government, which is something more, as effectually as if they remained under the crown of Spain; and the course of appeal lies, from the bishop of Majorca, who has the ecclesiastical jurisdiction as bishop of Minorca, although a subject of Spain, to the Pope himself. This suspense of the law of England, with respect to the people of Minorca, however does not alter it. Now I conceive that the laws and constitution of this kingdom permit perfect freedom of the exercise of any religious worship in the colonies, but not all sorts of doctrines, nor the maintenance of any foreign authority, civil or ecclesiastical, which doctrines and authority may affect the supremacy of the crown, or safety of your SESSIONAL PAPER No. 18 Majesty and the realm: for a very great and necessary distinction, as it appears to me, must be taken between the profession of the worship of the Romish religion, according to the rites of it, and its principles of church government. To use the French word, the culte, or forms of worship or rituals, are totally distinct from some of its doctrines; the first can, may, and ought, in my humble opinion, in good policy and justice to be tolerated; the second cannot be tolerated. 1 The twenty-seventh article of the capitulation for the surrender of Montreal, and the whole province of Canada, which is on the demanding part of the Canadians, best explains their own meaning and that of the treaty; the words are, Demanded, that the free exercise of the Roman catholic religion shall subsist entire, in such manner, that all the people shall continue to assemble in churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly. And so far (taking this to be the true sense of the treaty demonstrated by those who are to have the benefit of it, agreeably to their petition) I think a British act of parliament may go in terms for the toleration of the form of worship, in manner and degree, without breach of the fundamental laws of the constitution; and it is a sufficient answer to all the world, to say, the contracting parties have the stipulation executed in the manner exactly as demanded, and no other. But in a question of this kind, before it can be said that the whole system of the church of Rome, not, only of its ceremonies, but of its doctrines, can be tolerated by the laws of England, antecedent to the conquest and treaty, which refers back to them, it must be considered what the system of the Romish church actually is; not only as controuled in France by the sovereign and civil power, but as the great political system of the court of Rome with all its pretensions. With respect to the ritual, it is calculated for the eyes and the ears of an ignorant multitude, and not for the head or the heart, while it is in an unknown tongue. Yet such as it is, there is no great political consequential evil can follow from this culte, or mode of worship, being suffered to remain among such a people. It is innocent enough; and it would be cruel as well as unjust, to deprive them of the pleasure and comfort of religious rites in their accustomed way. The exercise of the Romish worship being therefore politically fit to be tolerated in Canada, the question is, is it equally fit to tolerate all the doctrines of the Romish church, or the ecclesiastical establishments, and powers for the support of the doctrines? To this I answer no: and for this plain reason, because the Romish religion itself (of which the conduct of France in many instances in history, with respect to conquered places, affords sufficient example) will neither tolerate nor be tolerated. In some of the articles of its system, on the presumption of its being the dominant system among the several states of Europe professing Christianity, it will give no quarter, and therefore it cannot take it without the destruction of the giver. In order to judge politically of the expediency of suffering the Romish religion to remain an established religion of the state in any part of your Majesty's dominions, the Romish religion (I mean its doctrines, not its ceremonies) ought to be perfectly understood.2 * * * * * * * * 1 See Articles of Capitulation, Montreal, p. 14 & 25. 2 The remainder of this report, as explained in note 1, p. 310, is omitted. 18-3-22 6-7 EDWARD VI A. 1907 CRAMAHÉ TO DARTMOUTH.1 QUEBEC 22 June 1773. MY LORD! Your Lordship is pleased to mention in your Dispatch No. 4., that the Civil Constitution and other necessary Arrangements for this Province were under the Consideration of His Majesty's Privy Council; I most sincerely wish for the Good of the King's Service, and the Happiness of the People, that Matter may be soon brought to a final Conclusion It has ever been my Opinion, I own, that the only sure and effectual Method, of gaining the affections of His Majesty's Canadian Subjects to His Royal Person and Government, was, to grant them all possible Freedom and Indulgence in the Exercise of their Religion, to which they are exceedingly attached, and that any Restraint laid upon them in Regard to this, would only retard, instead of advancing, a Change of their Ideas respecting religious Matters; by Degrees the old Priests drop off, and a few years will furnish the Province with a Clergy entirely Canadian; this could not be effected without some Person here exercising Episcopal Functions, and the Allowance of a Coadjutor will prevent the Bishop's being obliged to cross the Seas for Consecration and holding Personal Communication with those, who may not possess the most friendly Dispositions for the British Interests I am happy in the Approbation my Conduct in regard to the Franciscan Friar has received, and the manner, in which Your Lordship is pleased to express yourself on the Occasion, calls for my very sincere and hearty Thanks I have the Honor to be with the greatest Respect Earl of Dartmouth My Lord! Your Lordship's Most Obedient and H. T. CRAMAHÉ One of His Majesty's Principal Secretaries of State. LIEUT-GOVR. CRAMAHÉ, SIR, DARTMOUTH TO CRAMAHÉ.1 WHITEHALL December 1st 1773. Your Dispatches numbered from 4 to 10 inclusive have been receiv'd and laid before The King, and I have the Satisfaction to Acquaint you that the Affairs of Canada & the arrangements necessary for the adjustment of whatever regards the Civil Govern ment of the Colony are now actually under the immediate Consideration of His Majesty's Servants, and will probably be settled in a very short Time. 1 Canadian Archives, Q9, p.51. William Earl of Dartmouth succeeded Lord Hillsborough as Secretary of State for the Colonies in August 1772. According to the official entry, "The Earl of Hillsborough Resigned the Seals on the 13th Augt: 1772 and the Earl of Dartmouth Received the Seals the following Day." Q12 A,p.105. He retained the office till the beginning of 1776. This was the Lord Dartmouth who formed the famous collection of Mss. known as "The Dartmouth Papers," in which many important documents relating to the American colonies, including Canada, are preserved, and from which several important papers in the present volume are copied. 2 Referring to Dartmouth's despatch of Dec. 9th, 1772. See Canadian Archives, Q 8, p.220. 3 Referring to Cramahe's action in the case of an Irish Franciscan friar who came to Quebec from the island of St. Johns (Prince Edward Island) seeking employment which Cramahé refused; but paid bis passage to Europe. See Cramahé to Dartmouth, Nov. 11th, 1772; Q 9,p.4. Also Dartmouth's approval, Q 9, p.7. Canadian Archives, Q 9,p.157. |