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The Scot in British North America
Chapter II Colonial Government down to 1791

It is beside the purpose of this work to attempt a constitutional history of the Provinces in full detail. Nevertheless, in order to link together the names and active services of Scotsmen in public life, it appears advisable, in addition to what has already appeared in a previous part of this work, to give at least the thread of the whole story in a connected way. The French régime, with its various changes may be disposed of in a paragraph. During more than a century, the Colony of New France, although nominally a Gallic possession, was practically in the hands of commercial monopolies. Such were the establishments in Acadia under De Monts—"The Associated Merchants," and "The Hundred Associates," a Company chartered by Cardinal Richelieu. In 1663, however, Canada was constituted a Sovereign Colony, governed by a Council consisting of six, then eight, and finally twelve members. Of these the Governor, the Bishop and the Intendant were the chief, being ex-officio members. The Governor was the first subject in New France, usually a noble. He had the power of making war and peace, and of entering into treaties, standing, in fact, as the representative of the Crown. In like manner, the Bishop superintended ecclesiastical affairs, and was supreme within the sphere alloted to him. The Intendant, although he yielded precedence to the Viceroy and Bishop, was practically a more powerful ruler. Usually a lawyer, he was often a spy upon the Governor, [Parkman’s The Old Regime in Canada, chap. xvi.] and conducted correspondence with Versailles on his own account. He presided at the Council-board, and had entire control of finance, justice, police and marine, subject of course, more or less, to the approval of the Council. As a matter of fact, the Intendant acted much as he pleased. The first who held the office was Talon, a man of singularly upright and intelligent character; the last, Bigot, has left an unenviable reputation as a ruler, grasping, extravagant, thoroughly base and unscrupulous.

The land was held by feudal tenure, that system having been definitively established by Richelieu in the Charter of the Hundred Associates, in the year 1627. The seignior was the grantee of the Crown, and became its vassal. In Canada the King and his officers exercised much greater power even than in France. They had in fact an unbounded right of intervention in the seignior’s affairs. The censitaire held his land again by an inferior tenure from the lord, and was bound to pay him an annual amount in money or produce, or in both, per acre. He was also liable to the lods et ventes, or mutation fines, to be paid, if he sold his title to the land, to the extent of one-twelfth of the purchase money. [The Old Regime, chap. xv.] In some cases, it may be added, the superior granted land to inferior vassals, and these again made grants to their vassals, who were habitants, or regular cultivators of the soil. [Ibid., p. 245.]The administration of justice was, on the whole, fair and equitable; yet, as might have been expected, it favoured, in practice, the superior class. The Council issued decrees, being only controlled by the royal edicts and the custom of Paris. Subordinate Courts were constituted in the judicial districts of Quebec, Three Rivers and Montreal. The seigniors inhabiting the corporate seigniory of Montreal had also the right to settle disputes, but, in course of time their jurisdiction was restricted to small causes.

Thus then lived the Franco-Canadian, for the most part happy and contented. His tastes were frugal, his habits simple, and his wants singularly moderate. He was attached to his Church, and seldom found fault with occasional rapacity of his rulers. The younger spirits who rebelled against the hum-drum life of the Colony, found a vent to their energies as coureurs de bois, or in those interminable struggles with the Iroquois which had been left as a fatal heritage of woe and bloodshed by the folly of the early leaders and viceroys. All was changed by the conquest which ended with the capitulations of 1759-60. Up to this time the Government had been purely despotic, after the true Bourbon fashion. Feudalism was thoroughly interwoven with the social life of Canada, and freedom in any sense can hardly be said to have had an existence. The problem which now presented itself to the Imperial Government was new, and one not easy of solution. A military period of transition was inevitable under the circumstances—at all events until the country was formally ceded to Britain, in 1763. Under General Murray, this "despotism," [History (Bell’s translation), Lib. xi., ch. I. But see Christie: History, vol. i. p. 2.] as Garneau somewhat invidiously terms it, the "new subjects" of the Crown enjoyed an amount of liberty they had not known before. But they were firmly attached to the old system, especially in so far as the administration of justice was concerned, and saw, with dismay, the likelihood that their institutions might be superseded by the more liberal and enlightened jurisprudence of England. The British population were few in number, but they had the ear of the mother country, and clamorously demanded the immediate introduction of English laws, pure and simple. Being conquerors, they considered it their right to give laws to the vanquished. Hence a struggle which lasted eleven years. In 1763 King George III. issued a proclamation in which he promised that, so soon as circumstances permitted, General Assemblies of the people should be convened in the same manner as in the American Provinces; and ordained that in the meantime the laws of England were to be in force. Thus," says McMullen, [History, p. 192.] "all the laws, customs and judicial forms of a populous and ancient colony were in one hour overturned, and English laws, even the penal statutes against Roman Catholics, introduced in their stead." It may be admitted that this measure was "rash and ill-advised;" yet it never was harshly construed, and after a brief struggle the old system, exclusive of criminal and ultimately of commercial law, was re-established. This welcome concession, made in 1774, was embodied in the celebrated Quebec Act of that year. [14 Geo, III, cap. 85: "An Act for making more effectual provision for the Government of the Province of Quebec." See Sir Henry Cavendish: Debates of the House of Commons, &c. First published from his notes. London: 1839.] Before entering upon the changes wrought by this measure, reference may be made to the establishment of the first newspaper issued in Canada. Messrs William Brown and Thomas Gilmour, or Gilmore, who were, we believe, Scots, came from Philadelphia in 1764, and established the Quebec Gazette. The first number was issued on the twenty-first of June, with a subscription list of one hundred and fifty. This pioneer journal was, in the strictest sense, a newspaper, no comments on political affairs being permitted by Government. Indeed, it was not until 1800 that the Canadian editor ventured to discuss matters of State. [Lemoine: Quebec, Past and Present, p. 188; McMullen’s History, p. 192; Morgan Celebrated Canadians, &c., p. 80. The Montreal Gazette was established in 1778, by James Brown.] It was not, as will be seen hereafter, until 1791 that even the forms of parliamentary government were conceded to the Canadian subjects of the Crown.

The Act of 1774 owed its inception to Sir Guy Carleton, who was impressed with the injustice of imposing British institutions, laws and language upon the French Canadians, who formed an overwhelming majority of the population. But the British settlers—for the most part of the military class—met the proposed legislation with the most determined opposition. The colonies to the southward were in the early stage of revolution, because the Imperial Parliament had thought fit to tax them without the consent of their representatives. Yet in Canada it was proposed to perpetuate the same system, without even establishing the General Assembly promised in the Royal proclamation of 1763. There yet another grievance. Lord North’s Government proposed to restore to the Catholic clergy the right to collect tithes from their co-religionists, thus putting the old Church upon the footing of a quasi establishment. The Corporation of the City of London, which heartily espoused the cause of the British colonists, addressed a petition to the King against the Bill in which the objections to it were concisely set out. [This document will be found in Christie’s History, vol. i., p. 6, note.] These may be summarized as follows: 1. That the Bill was subversive of the fundamental principles of the constitution; 2. That it denied British subjects there of the advantages of English law, and especially of trial by jury; 3. That the faith of the Crown had been pledged to those who settled in Canada; 4. That the Bill established the Roman Catholic religion, "which is known to be idolatrous and bloody," contrary to the express provisions of the Act of Settlement; 5. That the legislative power was to be wholly vested in appointees of the Crown. The Act itself now demands attention. It set out that there were 65,000 Roman Catholics in Quebec, enjoying an established form of constitution and system of laws, and these it restores once more. The exercise of their religion was to be free, and the clergy of the said Church might hold, secure and enjoy their accustomed dues and rights with respect to such persons only as should profess the said religion. [Cavendish, p. 216.] To this Lord North added a proviso for the support in like manner "of the Protestant religion." By another clause the criminal law of England was continued in the Province as it had obtained since 1765. The King was also authorized to appoint a Legislative Council of not less than seventeen, and not more than twenty-three members. This body had limited power to make "ordinances for the peace, welfare and good government of the Province, but no power to levy taxes except for local purposes." In the Commons the Bill was strenuously opposed by Fox, Burke, Barre, Sergeant Glynn and Dunning, and in the Lords by the Earl of Chatham, then upon the verge of the grave. The noble Lord characterized it as "a cruel, oppressive and odious measure, tearing up justice and every good principle by the roots." The Opposition, in everything except ability and eloquence, was weak in both Houses, and the Bill passed by large majorities. [Watson: Constitutional History, vol. i., pp. 25-30. In the Commons the final vote stood, Yeas 56, Nays 20: and, in the Lords, Contents 26, Non-contents 7.] In pursuance of the Act a Legislative Council of twenty-three members was constituted, of whom eight were Roman Catholics, and in 1775 the Imperial Government promulgated a new tariff, superseding the old French duties.

The events of the next fifteen years may be passed over with the simple remark that under Henry Hamilton the Habeas Corpus Act was passed in 1786. Meanwhile the English-speaking population had increased largely by the influx of U. E. Loyalists from the revolted colonies, and the discontent caused at the passing of the Quebec Act grew louder. At length in 1789, they employed an agent named Adam Lymburner, a Quebec merchant, who was despatched to London to urge a revision of the colonial system on a constitutional basis. This gentleman who appears to have possessed talents of a high order, was a native of Kilmarnock in Ayrshire, and died in 1836, aged 90, in London, after having served for some years in the Executive Council of the Province. [Christie’s History, vol. i., p. 114.] He succeeded in gaining the ear of the Home Government, and the result was the transmission to the Governor of a draft Bill providing for the establishment of representative institutions in Canada. In the spring of 1791, the measure was introduced by Mr. Pitt, and at once excited strong opposition from the British colonists. The very first proposition was a division of Canada into two Provinces, and to that Mr. Lymburner and his clients strenuously objected. Each Province was to have a Legislature consisting of a Lieut.-Governor, Legislative Council, and House of Assembly. By the same Act, were established the Clergy Reserves, destined in the future to be a fruitful source of trouble and controversy. It was enacted so as to avoid a recurrence of the disputes which had lost England the thirteen colonies that the British Parliament should impose no taxes but such as were necessary for the regulation of trade and commerce, "and to guard against the abuse of this power, such taxes were to be levied and disposed of by the Legislature of each division." [Pitt’s speech in Christie, vol. I., pp. 69-71.]

On the 23rd of March, Mr. Lymburner was heard at the bar of the House of Commons against the Bill. He read a very able and interesting paper of considerable length; and, although he failed to influence the Government majority the document is still worthy of perusa1. [The bulk of it is given by Christie, vol. I., pp. 74-114.] He urged the propriety of totally repealing the Quebec Act on the ground stated in the preamble of Mr. Pitt’s Bill that it was in many respects inapplicable to the present circumstances of the Province. As a matter of fact they only repealed one clause of it. What the British residents wanted was "a new and complete institution, unclogged and unembarrassed with any laws prior to this period." Mr. Lymburner strongly protested against the division of the Province as an act of injustice to the British residents in the lower division; nor was it more palatable to the people of the other division who would be cut off from communication with the sea, and dependent altogether on the merchants of Montreal and Quebec. The result in his opinion would be dissensions between the Provinces, hostile tariffs and continual disquiet. The proposal to allow drawbacks upon goods imported for use in the upper Province he regarded as futile, and likely to prove the fruitful source of smuggling and fraud. A further objection was found in the absurd proposal to make the Legislative Council an hereditary body. Mr. Fox had in vain offered an amendment to make the Council elective; but although the clause was carried it fell still-born and never came to anything. Mr. Lymburner’s objections to the Bill were concisely stated towards the end of his address. He complained of the erection of two independent Legislatures, of the hereditary Council, unlimited in number; of the small number of representatives; of making the term of the Assembly septennial; of the continuance of laws, etc., supposed to be in force; of the power given to the Lieut.-Governors; and of the claiming of tithes from the Protestant settlers without settling the rate. His constituents, as he called them, prayed for the repeal of the Quebec Act in toto; for a triennial assembly with free admission to Roman Catholics, for a limited number of Legislative Councillors, chosen for life by the Crown, for the establishment, as fundamental laws, of the criminal and commercial laws and customs of England, with the Habeas Corpus Act and English common law in the Upper Canada districts. [One extract from this long and able address may be given as a specimen of the rigourous style; "But sir, if the Province is to be divided and the old system of laws continued; if it is expected that either part of the Province, separated as proposed by this Bill, shall, in the present exhausted and impoverished state, raise the supplies for supporting the whole expenses of government - it will be reducing the Provinces to a situation as bad as the children of Israel in Egypt, when they were required to make bricks without straw. The people will see that the apparent freedom held out by the new system is delusive, and the new constitution will complete that ruin which the former pernicious system had left unfinished."]

As early as 1755, the question of representative government presented itself in Nova Scotia. In that year, Chief Justice Belcher was directed by the Lords of Trade to inquire whether the Governor and Council could enact laws without the consent of the Legislative Assembly. He decided—and his view was sustained by the Attorney-General and Solicitor-General in England—that they had no such power. The Governor was of opinion that there were insuperable obstacles in the way of calling an Assembly; but his objections were over-ruled. He found that the influence of the Halifax merchants would preponderate in the House; but, as was well replied, that could be no excuse for the exercise of an authority pronounced illegal by the law officers of the Crown. Petitions flowed in praying for the convocation of a Legislature; but Governor Lawrence "almost beseeched" the Lords of Trade not to insist upon it at present. Their Lordships, however, having apparently lost all patience, made their instructions peremptory. [The entire correspondence on this subject will be found in the Nova Scotia Archive. Halifax, 1865, pp. 700-725.] A resolution was, therefore, passed by the Council in May, 1758, calling a House of Representatives, consisting of sixteen members, for the Province at large, "till the same shall be divided into counties," four from Halifax township, two from Lunenburg, and two from each of the other townships so soon as it shall contain fifty qualified electors. The first Assembly met in the month of October, 1758, and elected Robert Sanderson, Speaker. To his surprise, the Governor found that the members were not so given to innovation as he had anticipated, although he took care to complain that some of them were no better than they should be. Of course a large proportion of the House was Scottish, and we may be sure that, loyal though they unquestionably were, it was scarcely likely that they had left their critical spirit or attachment to freedom behind them. At all events, matters appear to have gone on smoothly enough in the first Assembly which ever sat within the limits of the Dominion. Then followed the French war, and the taking of Louisbourg and Quebec. As stated in earlier pages, Lord William Campbell filled the post of Governor from 1766 to 1773, when he was transferred to South Carolina. This brings the history down to the period of the extension of Scottish settlements on the east coast of Cape Breton and in Prince Edward Island, and is simply sketched in hasty outline to preserve connection with what is to follow. It may be added, that after the peace of 1763, Cape Breton and Prince Edward Island—then called the Island of St. John - were annexed to Nova Scotia. In 1770, the latter, when it only contained five resident proprietors, and one hundred and fifty families, was set off as a distinct Province, with a Legislature of its own.

In 1784, Cape Breton again became a separate colony, and remained so until 1820. In the previous year, New Brunswick was also detached from Nova Scotia, and received a Governor, Legislative Council and Assembly of its own. [The authorities used throughout regarding the Maritime Provinces are – Haliburton, Murdoch and Campbell’s Nova Scotia, - Munroe’s New Brunswick, - Brown’s Cape Breton, - Patterson’s Pictou, - Stewart and Johnston’s Prince Edward Island. The name of the last colony was changed from that of St. John, in 1800, in honour of H.R.H., the Duke of Kent, Her Majesty’s father.]

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