noblesse and the commercial English element (an hostility which was not one of race), we certainly discover throughout the period no signs of irreconcilable discord and difference of view or interest between the main French and the main English population. It is true that the peculiar attitude of the government towards the English element imposed upon it the necessity of cultivating the body of the people more than otherwise perhaps would have been the case. But taking out the extremists on both sides we would probably find that the average opinions as to the disposition of government and the laws were by no means so wide apart as the makers of the Quebec Act supposed.

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CHAPTER III.

THE PROVINCIAL GOVERNMENT.

A. General Status.

A full presentation of the conditions attendant on government in the province of Quebec throughout our period is essential to any accurate estimate of general policy then or later. It is therefore necessary to discuss some general problems that lay at the basis of authority, and to describe briefly the character and principles of administration previous to the Quebec Act.

2

The government of the province, not only during this period, but also under the Quebec Act down to 1791, may be described as that of a crown colony' without an assembly. As no other such government existed contemporaneously among the older continental colonies, or had existed since the first rude beginnings of government there, we cannot turn to these for illustration. But a clear idea of the exact constitutional status of the province as it appeared to the highest legal authority of the time will be acquired from a study of Lord Mansfield's famous judgment of 1774 in regard to the island of Grenada. Grenada and Quebec (together with East and West Florida), had been on precisely the same footing with regard to the conditions of acquirement and the constitutional documents that had issued concerning them. Both had been long settled French colonies, conquered by England about the same 1 Using the classification of colonial governments into crown, proprietary and popular, according to the method by which the governor was appointed.

3

2 We might perhaps except Georgia, 1751-4, during which time the province was governed directly by the crown. But as there was then also neither governor nor council, and as when in 1754 these were appointed, an assembly came with them into existence, it does not seem worth while to refer more directly to conditions there.

3 Case of Campbell vs. Hall, 1774. Cowper's or Lofft's Reports.

time, and surrendered on conditions of capitulation very nearly the same; they had been ceded permanently by the same treaty under explicit statement of being affected by the same stipulations; and finally they had been grouped together and made subject to precisely the same regulations by the Proclamation of 1763. This proclamation had been followed in the case of each by commissions to governors, couched (so far as the present point is affected), in almost precisely the same terms. The Grenada case turned on the question whether the king, without the concurrence of parliament, had power to make a legislative enactment with regard to the Island subsequent to the date of the above mentioned Proclamation of October 7, 1763, which made known to all concerned, that as regarded the new acquirements therein mentioned, he had "given express power and direction to the governors of our said colonies respectively, that as soon as the state and circumstances of the said colony will admit thereof they shall with the advice and consent of our said Council call and summon general assemblies in such manner and form as is used in the other colonies under our immediate government," and that he had given power to the governors, with the consent of the councils and of the assemblies as so constituted, to legislate for the provinces concerned. This is the material instrument involved, though Lord Mansfield cites also another subordinate proclamation of the same tenor, and the commission to the governor by which he is given the power spoken of; but whatever added force would come from this last would also affect the province of Quebec to precisely the same degree. Lord Mansfield's conclusion is that, while previous to the publication of these documents (i. e., previous to October 7th, 1763), the king alone, through the legislative power over a conquered country given him by the royal prerogative, could make any legislation concerning the recent conquests consistent with the constitution,

1 See Houston, Canadian Documents, p. 64.

he had by the publication of these instruments divested himself of this power, and had voluntarily and irrevocably granted to the new provinces a constitution under which the legislative power over them could be exercised only by a provincial assembly or by the British parliament. In other words, the Proclamation of 1763 was a charter of liberties granted to all who were or might become concerned with the regions in question, granted for the express purpose (as stated in it), of inducing them to become so concerned, and therefore, they having acted upon it, irrevocable without their own consent. The case in question had reference to taxation; but evidently nothing depends on this fact, for the decision of the chief justice is given in general terms; "we are of the opinion that the King . had precluded himself from an exercise of the legislative authority which he had before."

The conclusion from this is that the Proclamation of 1763 must be looked upon as the Constitution of Canada throughout the whole of this period, or up till the date at which the imperial parliament first took legislative action concerning the country;' and the result is therefore reached that government without an assembly (i. e., government as it existed down till the Quebec Act), was constitutionally invalid, all legislation by the governor and council alone being constitutionally void. This position cannot be affected by any quibbling as to the exact terms of the above mentioned instruments. It is true that the words of the Proclamation in regard to the calling of an assembly are, as soon as the state and circumstances of the said colony will admit thereof," the governor and council being apparently left judges as to when that might be; but we do not find that any contention on this point was raised in the Grenada case, or that Lord Mansfield, (who, it will be remembered, was a strong assertor of royal prerogative and

1 The [Quebec Act (14 Geo. III, c. 83, Sec. 4.) practically recognizes this, in beginning with the express abrogation of the Proclamation and the subsequent commissions.

1

colonial subordination, and who therefore would undoubtedly have given full attention to any point which would have enabled him to save the king's authority from this decided check), took anything but a mere passing notice of these words. The words of the proclamation are "power and direction to our governors:" and that no argument can be founded on the substitution, (probably unintentional and in pursuance of official forms), for these in Murray's commission of the phrase "power and authority," is shown by an examination of the case of Nova Scotia some few years previous, an almost parallel case, the study of which will I think strengthen my argument in every point. The position of those settlers who in Nova Scotia claimed the fulfillment of the promise of the full enjoyment of English constitutional forms was, if anything, weaker than in Quebec, for the fundamental proclamation under which settlement had been invited, emanated not from the Kingin-council, but from the Board of Trade. It promised the prospective settlers that a civil government should be established, as soon as possible after their arrival, whereby they will enjoy all the liberties, privileges and immunities enjoyed by His Majesty's subjects in any other of the colonies and plantations in America;" and the commission of the governor, issued two months later, grants to him "full power and authority, with the advice and consent of our said council from time to time as need shall require, to summon and call general assemblies according to

and plantations in

the usage of the rest of our colonies America." In conjunction with such assemblies he and the council were to have full power of legislation, granted in precisely the same terms as are used in the commission given to Murray. And no provision is made, as none is made in Murray's commission, for legislative action without such an assembly. It will be noticed that the phrase

1 The italicising is mine.

2 March 7, 1749. See Houston, Can. Documents, p. 7.