Remarks on the Quebec Bill: Part One
By the Author of
The Farmer Refuted, &c.
[New York, June 15, 1775]
In compliance with my promise to the public,* and in order to rescue truth from the specious disguise, with which it has been cloathed, I shall now offer a few remarks on the act, intitled, “An Act for making more effectual provision, for the government of the province of Quebec, In North-America” whereby, I trust, it will clearly appear, that arbitrary power, and its great engine the Popish Religion, are, to all intents and purposes, established in that province.
While Canada was under the dominion of France, the French laws and customs were in force there; which are regulated in conformity to the genius and complexion of a despotic constitution; and expose the lives and properties of subjects to continued depredations, from the malice and avarice of those in authority: But when it fell under the dominion of Britain, these laws so unfriendly to the happiness of society gave place, of course, to the milder influence of the English laws; and his Majesty, by proclamation, promised to all those who should settle there, a full enjoyment of the rights of British subjects.
In violation of this promise, the act before us declares, “That the said proclamation, and the commission, under the authority whereof, the government of the said province is at present administered, be, and the same are hereby revoked, annulled and made void, from and after the first day of May, 1775.” This abolition of the privileges stipulated by the proclamation was not inflicted as a penalty for any crime, by which a forfeiture had been incurred, but merely on pretence of the present form of government having “been found, by experience, to be inapplicable to the state and circumstances of the province.” I have never heard any satisfactory account concerning the foundation of this pretence: for it does not appear, that the people of Canada, at large, ever expressed a discontentment with their new establishment, or solicited a restoration to their old. They were doubtless, the most proper judges of the matter, and ought to have been fully consulted, before the alteration was made. If we may credit the general current of intelligence, which we have had respecting the disposition of the Canadians, we must conclude they are averse to the present regulation of the Parliament; and had rather continue under the form of government instituted by the royal proclamation.
However this may be, the French laws are again revived. It is enacted, “that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rule for the decision of the same; and all causes, that shall hereafter be instituted, in any of the courts of justice, shall, with respect to such property and rights, be determined agreeably to the said laws and customs of Canada, until they shall be varied and altered, by any ordinances, that shall, from time to time, be passed in the said province, by the Governor, Lieutenant Governor or commander in chief for the time being by and with the advice and consent of the legislative council of the same.” Thus the ancient laws of Canada are restored, liable to such variations and additions, as shall be deemed necessary, by the Governor and council, and as both the one and the other are to be appointed by the King, during pleasure, they will all be his creatures, and entirely subject to his will; which is thereby rendered the original fountain of law; and the property and civil rights of the Canadians are made altogether dependent upon it; because the power communicated of varying and altering, by new ordinances, is indefinite and unlimited. If this does not make the King absolute, in Canada, I am at a loss for any tolerable idea of absolute authority; which I have ever thought to consist, with respect to a monarch, in the power of governing his people according to the dictates of his own will. In the present case, he has only to inform the governor and council what new laws, he would chuse to have passed, and their situation will ensure their compliance.
It is further provided, “that nothing contained, in the act, shall extend, or be construed to extend to prevent or hinder his Majesty, his heirs and successors, from erecting, constituting and appointing, from time to time, such courts of criminal, civil, and ecclesiastical jurisdiction, within, and for the said province of Quebec; and appointing, from time to time, the judges and officers thereof, as his Majesty, his heirs and successors shall think necessary, for the circumstances of the said province.”
Here a power of a most extraordinary and dangerous nature is conferred. There must be an end of all liberty, where the Prince is possessed of such an exorbitant prerogative, as enables him, at pleasure, to establish the most iniquitous, cruel, and oppressive courts of criminal, civil, and ecclesiastical jurisdiction; and to appoint temporary judges and officers, whom he can displace and change, as often as he pleases. For what can more nearly concern the safety and happiness of subjects, than the wise œconomy and equitable consitiution of these courts, in which, trials for life, liberty, property and religion are to be conducted? Should it ever comport with the designs of an ambitious and wicked minister, we may see an inquisition erected in Canada, and priestly tyranny may hereafter find as propitious a soil, in America as it ever has in Spain or Portugal.
But, in order to varnish over the arbitrary complexion of the act, and to conciliate the minds of the Canadians, it is provided, that “whereas the certainty and lenity of the criminal law of England, and the benefits and advantages resulting, from the use of it, have been sensibly felt by the inhabitants, from an experience of more, than nine years; therefore, the same shall be administered, and shall be observed, as law, in the province of Quebec, to the exclusion of every rule of criminal law, which did, or might prevail, in the said province, before the year 1764.”
As “it is on the goodness of criminal laws, that the liberty of the subject principally depends*,” this would have been an important privilege, had it not been rendered uncertain and alienable, by the latter part of the same clause, which makes them “subject to such alterations and amendments, as the Governor, Lieut. Governor, and Commander in Chief, for the time being, by and with the advice and consent of the legislative council of the same, shall, from time to time, cause to be made therein.” Under the notion of necessary alterations and amendments, the King, through the medium of his creatures, the Governor and Council may intirely new mould the criminal laws of Canada, and make them subservient to the most tyrannical views: So that, in this respect also, the principle of arbitrary power, which is the soul of the act, is uniformly maintained and preserved, in full vigour, without the least real, or effectual diminution.
It has been denied, with the most palpable absurdity, that the right of trials by juries is taken from the Canadians. It is said, that the provincial legislature of Canada may introduce them, as soon as they please; and it is expected, that they will, as “soon as the inhabitants desire them, or the state of the country will admit of them.” A civil right is that, which the laws and the constitution have actually conferred, not that, which may be derived, from the future bounty and beneficence of those in authority. The possibility that the legislature of Canada may hereafter introduce trials, by juries, does not imply a right, in the people, to enjoy them. For, in the same sense, it may be said, that the inhabitants of France or Spain have a right to trials by juries; because it is equally in the power of their legislatures to establish them.
Since therefore it is apparent, that a system of French laws has been re-established, in the province of Quebec, and an indefinite power vested in the King, to vary and alter those laws, as also to constitute such courts of criminal civil and ecclesiastical jurisdiction, and to introduce such a form of criminal law, as he shall judge necessary; I say since all this is deducible, from the express letter of the act; or in other words, since the whole legislative, executive, and judiciary powers are ultimately and effectually, though not immediately, lodged in the King, there can be no room to doubt, that an arbitrary government has been really instituted throughout the extensive region now comprised in the province of Quebec.
[To Be Continued.]
Rivington’s New-York Gazetteer, June 15, 1775.
1. This is a quotation from Montesquieu’s The Spirit of Laws, Vol. I, Book XII (“Of the Laws that form political Liberty as relative to the Subject”), Ch. II (“Of the Liberty of the Subject”), p. 261. See Charles Louis de Secondat, Baron de La Brede et de Montesquieu, The Spirit of Laws, trans. Mr. Nugent, 2 vols. (3d. ed.; London, Printed for J. Nourse and P. Vaillant in the Strand, 1758).