« SebelumnyaLanjutkan »
avoided? Was it agreeable to general political expediency? The most desirable circumstance was that the French and English inhabitants of Canada should unite and coälesce, as if it were in one body, and that the different origin of the people might be obliterated for
If this had been the object in view, the English laws might soon have prevailed universally throughout Canada, not from force but from choice and conviction of their superiority. He had no doubt that on a fair trial they would be found free from all objection. The inhabitants of Canada had not the laws of France. The commercial code was never established there ; they stood upon the exceedingly inconvenient Custom of Paris. He wished the people of that country to adopt the English laws from choice and not from force ; and he did not think the division of the province the most likely means to bring about this desirable end.'
The reply of Mr Pitt is all-important, even at this distance of time. We transcribe it therefore almost literally from the Parliamentary History.*
He agreed with the right honorable gentleman, in thinking it extremely desirable that the inhabitants of Canada should be united, and led universally to prefer the English constitution and the English laws. A division of the province, he considered to be the most likely means to effect this purpose, since by so doing the French subjects would be sensible, that the British government had no intention of forcing the English laws upon them, and therefore they would, with more facility, look at the operation and effect of their own laws, and probably in time be induced to adopt those of England from conviction. This he thought was more likely to be the case, than if the British government were, all at once, to subject the entire population to the constitution and laws of this country [England.] Experience would teach them, that the English laws were best ; and he admitted that they ought to be governed to their satisfaction. If the province had not been divided, there would have been but one assembly ; and there being two parties, if those parties had been equal, or nearly equal, in the assembly, it would have been the source of perpetual faction. If one of the parties had been much stronger than the other, that other might justly have complained that they were oppressed.
We now proceed to give a summary account of the second publication mentioned at the head of our article. It is a free exposition of the different interests and claims that have been successively brought before the provincial parliament, and have
* Vol. xxix. p. 113. VOL. XXVII.-NO. 60.
not yet been decided or settled to the satisfaction of the colonists.
The assembly have, from the year 1807 down to the present time, made several attempts to obtain the right of appointing an agent to reside in London and watch over the interests of the province, as circumstances might require, and the provincial government might direct. But until the year 1825, the council refused their assent to the bills, intended to give effect to this measure. All the other colonies have, it seems, similar confidential agents in the mother country. The house of assembly, or at least the party in whose name the writer of the pamphlet presumes to speak, thought that the union of the two Canadas would never have been seriously proposed, had the ministers been enabled to confer on that subject with a deputy of Lower Canada. Though the measure has not as yet been carried into execution, the mere rumor of its probable adoption, has excited apprehension and uneasiness. Thus also the British parliament has inadvertently (the author says) passed one or two acts, which more properly belonged to the jurisdiction of the provincial legislature.
The next complaint is, that the powers of the council as a court of justice, are yet uncertain, and consequently that the officers of the government cannot be effectually subjected to the control of the legislature, by means of impeachment.
Again, the representation in the house of assembly is thought inadequate to the population, and unequal. In some counties, fifteen hundred land proprietors send as many representatives as six thousand elsewhere. Thirty thousand inhabitants, living in townships, have no delegates at all
. The lands formerly belonging to the Jesuits, and indeed, the entire property taken from that society, which, whilst it existed, was useful in disseminating elementary knowledge, and in supporting the college of Quebec, are now claimed, in order to be appropriated to the same object. These estates had been granted to lord Amherst, after the conquest ; but from the dubious nature of the title, he preferred accepting an annual pension ; and at the decease of the last Jesuit that remained in Canada, they were taken possession of in the name of the king, and continue to be administered on his account, without any provision having been made for the object (public instruction), to which their income was originally consecrated. A bill for the establishment of parochial schools, liberal in its
provisions towards all religious sects, repeatedly passed the lower house, from 1817 to 1823, but was constantly rejected by the council. Each school was to receive annually eight hundred dollars. In 1824, the bill underwent some amendments in the other branch of the legislature. The house concurred, and by this act, instead of a general admission, Catholics alone were to be educated in the parochial schools ; and these schools instead of pecuniary assistance, were to receive from the respective parishes, lots of land for buildings, and to be maintained by voluntary contributions to a certain amount.
A board for the direction of public schools was created in 1820, in conformity to an act passed in 1801. The members were twenty-four in number, and with the exception of three or four, were Episcopalians; and to that communion belonged also the principal officers of the body, although there are ninetynine Catholics in the province for one of the latter persuasion. The author seems well inclined to put all the religious sects on the same footing, in regard to the enjoyment of public instruction.
A bill has also been proposed for the exclusion from the legislature of every member who should accept an office under the government, though with the right of being afterwards reelected.
The judicial organization of the country is the next point to which the author refers.
· During the last sixty-five years, says he, this province has had four different judicial systems. During the first five years, it was under martial law. During the next ten years we had the laws of England, courts organized upon the British system, and rules and forms of proceeding borrowed from that country. Afterwards, for
period of eight years, we had a mixture of British, French, and provincial legislation, motley courts, and rules of pleading partly according to both the English and French system, and in part agreeably to provincial ordinances. For thirty-two years we continued to have a mixed code, and courts of judicature existing under an act of the provincial parliament and the several amendments successively added to it. During that whole period (of sixty-five years) the benefits of the administration of justice, civil as well as criminal, have been almost entirely withheld from the agricultural districts, where the mass of the inhabitants reside.'
In 1824, the house of assembly impeached the judges, on account of irregularities in the mode of proceeding; and in the following year, both branches of the legislature passed resolutions, importing that the judicial organization, was inadequate to its purposes, and an address to the prince regent was voted. Several fruitless attempts have since been made to reörganize the courts. In 1825, a bill passed the house, providing for the administration of justice in the rural districts. The number of judges was to be increased to twelve. Amendments were made in the council, but at last the parliament adjourned, without having come to any definite result. The judges complain of the weight of business, of the insufficiency of the court of appeals (which is composed of the council and the judges of Quebec and Montreal, excluding those who have presided in the courts below), and of a want of uniformity in the judicial decisions. Lawyers and parties complain of a loss of time and of excessive expense.
The author proceeds to inculcate the necessity of an independent judiciary. In Lower Canada, the judges hold their offices during pleasure, as in England before the revolution of 1688. Yet the influence of the executive government over them seems to be checked, by some provisions which the author does not specify. But as the judges exercise executive, legislative, and judicial powers, there is the more reason, that their commissions should be quamdiu se bene gesserint.
Lord Grenville, who was then secretary of the foreign department, said in the House of Lords, in the course of the debate on the 30th of May, 1791, in answer to an objection stated to the bill for the settlement of the government of the two Canadas, on account of the judges not being made independent, that
• This was certainly a circumstance of great importance, and a most desirable object; but from the present uncertain state of the law in Canada, he thought that the appointing judges in the way in which they were appointed in Great Britain, would be attended with much more evil than good. In this country [England), no danger could possibly be apprehended from appointing a judge for life,
because the laws were so well known, and the bar so enlightened, that if an improper act were to be committed by any judge, it was sure to be detected, exposed, and punished. Although the judges in Canada were not made independent by this bill, as it was at present conceived improper to appoint them but during their good behavior, yet he conceived the time was very near when this could be done, so as to be productive of the greatest good. Before it could be done, there must be a general system of
known laws, and such salaries settled on judges, as would induce men of real abilities to undertake the office."
The author of the pamphlet makes several suggestions relative to the fees of the principal officers of the courts, and the execution of the precepts directed to them; the qualification of justices of the peace; the prison of Montreal; the improvement of the navigation upon the St Lawrence; the extension of the commerce with the United States, f and the suppression of the smuggling trade; a bankrupt law, together with the subject of the rate of damages on protested bills of exchange ; and the promotion of agriculture and internal improvement.
It appears, from another part of the pamphlet, that the assembly had passed a bill, giving to the subjects the right of commencing suits against the crown ; but the council refused to concur in it.
It is stated, at the conclusion, that the annual subsidy voted to the government, including the salary of the lieutenant governor (in the absence of lord Dalhousie), amounted to £64,000 and the permanent militia pensions to about £47,000.
The province is free from all public debt, notwithstanding the expenses for the construction of the Canal de la Chine.
We have omitted to mention at the head of the present review, a Report of the committee of the house of assembly on the decision of the courts of justice, upon the question as to the use of the French or English language in the original process; and we have also in our possession, a pamphlet on the same subject, entitled, Letter to the Honorable Judge Bowen, one of the Judges of the King's Bench for the District of Quebec. (Montreal, James Lane, 1825.)'. A good deal of sensibility is shown in regard to what is considered as a decisive step towards the proscription of the French language in official proceedings.
But it is time to bring these remarks, for the present, to a close. At some future period we hope to follow up the discussions, of which we have given a brief sketch in the preceding pages, to an epoch more recent, and to enable our readers to form a proper opinion, respecting the present relations of Great
* Parl. Hist. vol. xxix. p. 658. | A committee of the house of assembly made a report on the 11th of March, 1825, recommending the further encouragement of that commerce ; but it was not considered for want of time.