municipal nature to the colony, even if the intention had been to have overturned the customs of Canada."1 A further official indication of the intent of the proclamation is found, nearer the time of issue, in the report of the crown lawyers, April, 1766, on the legal condition of the province. This, after strongly advising that the local usages be left undisturbed, states as one of the main sources of disorder in the province, the alarm taken at the proclamation of 1763, "as if it were the Royal intention, by the judges and officers in that country, at once to abolish all the usages and customs of Canada with the rough hand of a conqueror rather than in the true spirit of a lawful sovereign." 2 Whatever this may imply it certainly refers to the Proclamation, not as introductive of any law or legal principle, but as at the most merely indicating an intention, to be more or less gently and gradually caried out. Finally Attorney-General Thurlow, in the Quebec Act debates 1774, refers to the document as a crude production, which "certainly gave no order whatever with respect to the Constitution of Canada," and asserts that it is an unheard of and absurd tyranny to regard it "as importing English laws into a country already settled and habitually governed by other laws." "This proclamation was not addressed to the Canadians; I would ask from what expression it is, that either the Canadians can discover or English lawyers advance, that the laws of Canada were all absolutely repealed and that a new system of justice, as well as a new system of constitution, was by that instrument introduced." 3

Authoritative legal and official statements therefore support the lay judgment in the opinion that the general and vague expressions of the proclamation could not be taken as adequate to the overturning in whole or part of the

1 Can. Arch., Q. 5-1, p. 344.

2 Smith, History of Canada, II, 27.

Cavendish, Report, pp. 24-37.

ancient system of civil law, and the express introduction of English, either common or statute. The province could not be regarded in the light of a new colony, into which the settlers brought with them a certain part of the common law of the parent state; and hence it would seem that the introduction of common law could not be effected any more easily than that of statute. As to statute law, public promulgation has always been essential to validity; but no publication of any portion of that law was ever expressly made in the province.'

This discussion belongs, however, rather to the realm of legal theory than to that of practical constitutional investigation. For the validity of the legislation in question remained unchallenged either in the province or at home, and no hint of an indemnity for the acts committed thereunder is to be found in any of the discussions connected with the Quebec Act. We have official references now and then to individual ordinances as overstepping the legislative authority, and a few are disallowed by the home government apparently on this ground; but no general objection seems to have been made then or at any time thereafter to the exercise of the legislative power. Nor, stranger still, have modern writers on this period, even those occupying a legal standpoint, taken adequate note of these fundamental considerations; a neglect which must be my excuse for the extent to which I have gone into them.

1 It is to be noticed in this connection that the general supposition among the English in the province in the earlier years, as to the introduction of English law, was based, not on the proclamation alone, but mainly on the ordinance of September 17, 1764; the inference being that this ordinance was considered necessary to the completing or enforcing of the work of the proclamation. Carleton writes to Shelburne, December 24, 1767, that the whole French constitution and system of law and custom "in one hour we overturned by the Ordinance, . . . and laws ill-adapted to the genius of the Can adians . . . unknown and unpublished, were introduced in their stead." It has been shown above, however, that this enactment was necessarily null and void, as an overstepping of the power of the legislator. See Lareau, Hist. Droit. Can., II, 39–53, for discussion of this matter.

B. General Administration.

It is of course not possible here to enter into any investigation of the constitutional functions at this period of colonial administrations in general, or of this one in particular. My object is simply to indicate generally the lines and limits of practical conduct, with special reference to the peculiar conditions of the province. Such a statement must be taken in close conjunction with the investigation of general policy to which the succeeding chapter is devoted, and especially with the analysis of Commissions and Instructions there attempted.

Murray's commission as governor (1764), invested him, apart from the Council, with the following powers and duties:

a. Keeping and using the public seal.

b. Administering required oaths to all other public functionaries.

c. A negative voice in both council and assembly and the power of adjourning, proroguing or dissolving the latter.

d. Appointment of ecclesiastical officers.

e. Pardoning or reprieving of legal offenders, so far as that power was delegated to colonial officials.

f. Certain military powers in time of war.

These seem to be the usual powers, and we need not delay on them, except to notice that the military authority granted Murray was purely a militia one (that is to say, of the extent usually granted), notwithstanding the fact that he represented with some force' the necessity of a different regulation on account of the peculiar position of Quebec. The representation was of avail later, for the supreme military command in the province (i. e., over the regular troops on all occasions, as well as over emergency forces in time of war), was practically joined to the civil in 1766,

1 To Halifax, October 15, 1764. (Can. Arch., Q. 2, p. 206.)

and formally so in 1770. Other changes were made later in the position of the governor, concerning which it is necessary to here make only the general statement that, with the military modification, the result was to place the English governor much more nearly in the place occupied by the old French one.

In regard to the council apart from the governor, and the relation between it and him, I find that during the most of the period, the conditions (defined in the governor's Instructions), were practically identical with the contemporary ones in the older crown colonies.' The phrase used constantly in regard to the relations between the council and the governor in the carrying on of joint duties, requires the governor to act with its "advice and consent." This position of the council is defined by Masères as one of "advice and control;" but how far the element of control really entered depended largely of course on circumstances and individuals. How far it could be eliminated under a strong hard may be conjectured from the fact that the governor was by his commission generally, if not always, invested with an unlimited veto power on all legislation, and that the carrying out of executive measures rested almost entirely with him. He had, moreover, on what he might choose to regard as emergencies, power of suspension from the council; besides being in the province the dispensor of general governmental favours, and in most cases the only effectual medium of access to the home administration. An examination of the council

1 See instructions to Sir H. Moore, governor of New York, issued November 27, 1765. Or for the Province of Georgia, about the same time. The latter province, in its late establishment as a crown colony, and the presence on its borders of far-reaching tribes of Indians, a source at once of danger and of profit, occupied in the southern system of colonies a position analagous to that of Quebec in the northern.

2 How ineffective the "control" of the council practically proved in Quebec is tacitly acknowledged by Masères himself in his later recommendations of such changes in formation and maintenance as would protect it against the governor. In a close exam ination of the council records throughout the period, I have discovered only one instance where the official language (and I am not unmindful of the untrustworthiness in such

records leaves with us the impression on the whole of a body so docile as to present no obstacle to the will of such a man as Carleton. Abridged as the latter's power really was, he was able to rule more autocratically than even Murray. But that this was not the intention of the home authorities may be conjectured from the changes in his in.structions; and we shall see later how after the Quebec Act a more decisive intervention was made in favour of the council.

The council had no stated times or conditions of meeting, the available members being apparently called together as occasion arose. The full list comprised twelve names, and the personnel was subject to constant change, only three of the original dozen remaining in the province at the close of the period. Temporary appointments had to be constantly made, and June 22, 1773, the lieutenant-governor writes that no meetings had been held for the last three months of 1772 for want of a quorum. During the administration of Murray we have no details of the council proceedings. This seems due to neglect on the part of the colonial office in not requiring reports;1 for references elsewhere leave no doubt as to the fact of meetings or the keeping of minutes. The first full report is in 1766, and

connections of official wordings), supports the theory as to the power of the council; and in that instance, if control were really exercised, it can be shown to have been most probably caused by exceptional circumstances. Carleton's attitude toward his council may be judged from his assertion of practical independence soon after his arrival, in regard to an instance where he had expressly convened only a portion of it. And it is to be remarked that his conduct on that occasion was not censured by the home authorities. (See Can. Arch., Q. 3, pp. 259-70.) A few months later he dismissed two of the council on his sole authority. His representation of this matter also proved satisfactory to the home government, which paid no attention to the plea of the aggrieved members, that "the independence of His Majesty's council, not only of Quebec, but in every other province, seems interested in this event." (Can. Arch., Q. 4, p. 40; pp. 198-239, 247.) This is the only instance of the dismissal of councillors met with. Murray's relations with his advisors seem to have been amicable throughout.

1 A neglect which I have frequently noted, and which I shall emphasize elsewhere as steadily marking the home administration with regard to Canada down almost to the Quebec Act.