one Canadian "who sees the great revolution [i. e., in law] in its full influence." This evidently means that the Canadians kept clear of the courts, making use of their former laws and customs through the aid of those persons who had in large measure arranged their difficulties during the military period.' Masères in 1774 says the greater part of the French Canadians remain ignorant of the extent of the changes and have proceeded in regard to their lands on the assumption that the ancient laws and usages were still in force. And as he goes on to say that no litigation has yet arisen to give occasion for decisions which would make them better informed, we must conclude that he means they had not in these matters resorted to the courts. In the Quebec Act debate Attorney-General Thurlow made the statement (uncontradicted), that "if any dispute arose there was no instance of the Canadians resorting to the English Courts of Justice, but they referred it among themselves." These statements are supported by indirect evidence and justify us in concluding that the main body of French Canadian litigants had not resorted to the courts, but had used through private instrumentalities their old property laws and customs. The main conclusion I have reached therefore is that, for the various reasons discussed above, the judicial conditions existing in Canada up to and at 1774 were not such as to cause the formal re-establishment of the old civil law by the Quebec Act to affect the mass of the people in any considerable degree. But nevertheless the situation was one of such confusion and uncertainty as made imperative some decided act of settlement. It may justly be urged that, even in the absence of material grievances, the very fact that the Canadians kept aloof from the courts showed 1 See here also the evidence before Commons, 1774, to the effect that the noblesse kept out of the courts from pride, and resorted to arbitration. Cavendish, p. 31. Thurlow was speaking from a partizan standpoint, but he had gotten up Canadian affair thoroughly, having prepared an elaborate report after examination of all the available material. a degree of dissatisfaction or distrust, if not dread, that called for immediate action. Moreover, that much friction and complaint existed cannot be denied. But a close examination of the manifestations of this will show that it was in large degree really political in origin, or that it was inspired not so much by oppression in the every day operation of law as by uncertainty with regard to the future. It is rather the apprehension of the educated and intelligent non-litigant' than the specific cry of the actually aggrieved. Where it is really the latter it will be found again that it is the expression of dissatisfaction with, not new law, actual or supposed, but new procedure. For there can be no doubt that this latter contrasted very unfavorably with the old in regard to the essential features of expense and expedition. So far as English features were at all responsible it is probable that the peasantry were kept from the English courts by these more evident changes and not by legal differences of which they were wholly ignorant. In the letter quoted above, Carleton, after his strong statement as to the ignorance of the people in regard to the great legal changes and their avoidance of the courts, adds, "The present great and universal complaint arises from the delay and heavy expense of justice," the courts having "introduced all the chicanery of Westminster into this impoverished Province." The judiciary under the old régime had been the most praiseworthy part of the administration, being effective, easy of access, and marked especially by expedition and inexpensive methods. It had been largely and beneficially inspired by the old French paternal attitude, the judges being always ready to interpose for settlement without the expense of a trial. In 1 Neither noblesse nor clergy went into the courts. See especially on this point the evidence of the provincial officers before the Commons, 1774. (Cavendish, Report.) A good instance of the carelessness and exaggeration of the official language of the time. His own previous statement would show that such complaint must have been confined practically to the upper or educated classes. all these points the change was decidedly for the worse, and taken in connection with the unfamiliar appearance of even the better parts of the new procedure, make it unnecessary to look further for the full explanation of whatever specific complaint or general apprehension is to be met with. With regard to seigneurial jurisdiction, it is not probable that the new régime had made any very noticeable difference. For though Parkman seems to think that the lower forms of that jurisdiction continued to be exercised in Canada down to the conquest, Carleton asserts that at that time there were hardly three feudal judges in the whole province.' And at all times there had been an appeal from the seigneurial to the royal courts in all matters involving more than one-half a crown. With regard to the reception and use by the Canadians of the most important feature of the changed procedure,- the jury,- we have the most conflicting statements; but Burke's opinion that they had expressed no dislike of the new institution, directly or indirectly, seems thoroughly well-grounded. As to the general civil service, I need delay here only on those features which would affect the popular estimation of the new régime. The great abuses of the later French administration might be expected to insure a favorable reception even of the very imperfect English one; but nevertheless we meet with considerable complaint. The main cause of this was the fact that the more important positions, being filled by patent from the home government, were practically independent of the provincial administration, and and were almost always executed by deputy, the appointees renting them out to the highest bidder. The abuse is succinctly and strongly put by Murray in March, 1765. He writes: greatest business in the He writes: "The places of the province have been granted by patent to men of interest in England, who have hired them ¡ The statement is supported by strong contemporary evidence. 2 Cavendish, Report. to the best bidder, without considering the talents or circumstances of their representatives. One man (e. g.) who cannot read a word of French, holds five such offices."1 And in his defense at the close of his administration he attributes the difficulties of government largely to "the improper choice and the number of the civil officers sent over from England," not one of whom understood French, and the compensation of whom depended entirely on their fees. Power of supervision and suspension was indeed given to the governor, but that this was not sufficient for the remedying of the evil is shown by Carleton's letter to the treasury, January 12, 1775, just at the close of the old order of things. In this he speaks of the misfortunes hitherto attendant on the Provincial government, in that the inferior officers, "proud of the superior weight and influence of the Boards from whence their Commissions issue," and relying for protection on their patrons, “almost lose every idea of that subordination so essential to good order," and are in all measures of the colonial administration "for the most part cold and at best neutral." * This was written in the belief that the operation of the Quebec Act would remedy the evil; for though no direct mention is made of the matter in that Act or in the instructions that accompanied it, Carleton refers later to the clause in it "which vacated all commissions," as being "in consequence of complaints;" it being thereby intended "to put a stop to all deputations, and to compell all who had offices here to reside and do their duty in person." It is evident that there was here a very serious abuse, capable of paralyzing the best efforts of government. Inseparably connected with the subject of the patent offices is the matter of fees in general. For as Murray said in 1766 the compensation to the deputies at least depended entirely on what could be wrung from the people and the 1 Can. Arch., Q. 2, p. 377. government in this form. It is not necessary to suppose that these fees were upon a scale of unheard of extortion; indeed Carleton, their most determined opponent, expressly states that they were not greater than in the other provinces,' and Murray declares that he was ordered by his instructions to establish them on that scale. The hardship consisted in the fact that a system which had been adapted to the ability of the most prosperous of the other provinces was suddenly fastened upon one utterly impoverished, and with a people unused to such payments. The heaviness of the burden is apparent in every direction. May 14, 1767, Carleton writes, "Upon my arrival not a Canadian approached me that did not complain of the number of fees demanded, and particularly of the exorbitant expenses that attended the obtaining any redress by law;" adding that the fees on the registering of land alone (a requirement which ultimately was not enforced, probably from this reason), would have amounted to more than double the current coin of the province. He encloses a copy of the fees as fixed upon by Murray and the Council in 1765; - a document of about twenty closely written pages of large foolscap, the fees ranging all the way from £6 to 3d, and the total number of official acts so to be remunerated being about 350. The tendency of Murray's administration was not to restrain such expenses, but Carleton from the first resolutely set his face against them, and one of his earliest acts was to relinquish his own personal fees. His vigorous statements were not wholly disregarded by the home government, but no decided measures of alleviation were adopted at any time within our present view. The heedless injustice which had ordered the fees to be established on the same scale as in the other colonies seems indeed to have been early repented of, for in the instructions of the 3 1 To Shelbourne, May 14, 1767. (Can. Arch., Q. 4, p. 173.) See Advertisement of the Council, Aug. 12, 1765. (Can. Arch., Q. 5-2, p. 812.) |