Canada became a possession of Great Britain by the terms of capitulation signed on the 8th of September, 1760.

By these terms Great Britain bound herself to allow the French-Canadians the free exercise of their religion2; and certain specified fraternities, and all communities of religieuses were guaranteed the possession of their goods, constitutions and privileges, but a similar favour was denied to the Jesuits, Franciscans or Recollets and Sulpicians, until the King should be consulted on the subject. The same reservation was made with respect to the parochial clergy's tithes. These terms were all included in the Treaty of Paris, signed on the 10th of February, 1763, by which France ceded to Great Britain, Canada, and all the Laurentian isles, except -

70.

1 Atty.-Gen. Thurlow; Christie's Hist., I., p. 48. Garneau, II.,

2 The words "as far as the laws of Great Britain permit," appear in art. IV. of the Treaty of Paris. Doutre et Lareau, I., 329. They are also found in the Instructions given in 1763 to Governor Murray. Ib. 560.

St. Pierre and Miquelon, insignificant islands off the southern coast of Newfoundland, which were required for the prosecution of the French fisheries. In this treaty, Great Britain bound herself to allow the Canadians the free exercise of their religion, but no reference was made in the document to the laws that were to prevail throughout the conquered country.'

2

For three years after the conquest, the government of Canada was entrusted to military chiefs, stationed at Quebec, Montreal and Three Rivers, the headquarters of the three departments into which General Amherst divided the country. Military councils were established to administer law, though, as a rule, the people did not resort to such tribunals, but settled their difficulties among themselves. In 1763, the King, George III., issued a proclamation establishing four new governments, of which Quebec was one. Labrador, from St John's River to Hudson's Bay, Anticosti, and the Magdalen Islands, were placed under the jurisdiction of " Newfoundland, and the islands of St. John (or Prince Edward Island, as it was afterwards called), and Cape Breton (Ile Royale), with the smaller islands adjacent thereto, were added to the government of Nova Scotia.

1 Atty.-Gen. Thurlow; Christie, I., p. 48. Miles, History of Canada under French Régime, app. xvi. See also note 2, p. 7. 2 These three divisions corresponded to the old ones under the French régime. General Murray was stationed at Quebec; General Gage at Montreal; Colonel Burton at Three Rivers. Garneau, II., 82.

The others were East Florida, West Florida, and Grenada. The boundaries of the several governments are set forth in the proclamation.

Express power was given to the governors, in the let ters-patent by which these governments were constituted, to summon general assemblies, with the advice and consent of His Majesty's Council, "in such manner and form as was usual in those colonies and provinces which were under the King's immediate government." Authority was also given to the governors, with the consent of the councils, and the representatives of the people, to make laws, statutes and ordinances for the peace, welfare and good government of the colonies in question. The governors were also empowered to establish, with the consent of the councils, courts of judicature and public justice, for the hearing of civil and criminal causes, according to law and equity, and, as near as may be, agree able to the laws of England, with the right of appeal in all civil cases to the Privy Council.1 General Murray,' who was appointed governor of Quebec on the 21st No. vember, 1763, was commanded to execute his office according to his commission and accompanying instructions, or such other instructions as he should receive under His Majesty's signet and sign manual, or by His

1 Proclamation of 7th October, 1763. Atty.-Gen. Thurlow's Report; Christie, I., pp. 49-50. In the debates on the Quebec, Bill, the vagueness of this proclamation was sharply criticised, and no one appears to have been willing to assume the responsibility of having framed it for the King. Atty.-Gen. Thurlow acknowledged that "it certainly gave no order whatever with respect to the constitution of Canada; it certainly was not a finished composition, etc." Cavendish's Debates, p. 29.

2 Sir Jeffery Amherst was in reality the first, and Gen. Murray the second, governor-general of Canada. Garneau, II., 87; supra p. 8.

Majesty's Order-in-Council, and according to laws made with the advice and consent of the council and assembly -the latter to be summoned as soon as the situation and circumstances of the province should admit. The persons duly elected by the majority of the freeholders of the respective parishes and places were required, before taking their seats in the proposed assemblies, to take the oaths of allegiance and supremacy, and the declaration against transubstantiation. All laws, in conformity with the letters-patent, were to be transmitted in three months to the King for disallowance or approval. The governor was to have a negative voice, and the power of adjourning, proroguing and dissolving all general assemblies."

3

No assembly, however, ever met, as the French-Canadian population were unwilling to take the test oath,3 and the government of the province was carried on solely by the governor-general, with the assistance of an executive council, composed in the first instance of the two lieutenant-governors of Montreal and Three Rivers, the chief justice, the surveyor general of customs, and

The oaths of allegiance, supremacy, ana abjuration were formerly required to be taken by every member in the English Commons under various statutes. By 29 and 30 Vict., c. 19, and 31 and 32 Vict., c. 72, a single oath was prescribed for members of all religious denominations; May, 205. 30 Car. II., st. 2, c. 1, required members of both houses to subscribe a declaration against transubstantiation, the adoration of the Virgin, and the sacrifice of the mass. Taswell-Langmead, Const.

Hist., 447, 632.

2 Atty.-Gen. Thurlow, in Christie, I., pp. 50-1.

9 It was convoked pro forma, but never assembled. Garneau, II., 92, 108.

"

eight others chosen from the leading residents in the colony. From 1763 to 1774 the province remained in a very unsettled state, chiefly on account of the uncertainty that prevailed as to the laws actually in force. The new subjects," or French Canadians, contended that justice, so far as they were concerned, should be administered in accordance with their ancient customs and usages, by which for a long series of years their civil rights and property had been regulated, and which they also maintained were secured to them by the terms of the capitulation and the subsequent treaty. On the other hand, "the old," or English subjects, argued from the proclamation of 1763 that it was His Majesty's intention at once to abolish the old established jurisprudence of the country, and to establish English law in its place, even with respect to the titles of lands, and the modes of descent, alienation and settlement.2

1 Garneau II., 87-8. Only one native French-Canadian was admitted into this council.

2 Atty.-Gen. Thurlow, in Christie, I., pp. 51-63; also, Report of Atty.-Gen. Yorke, and Sol.-Gen. De Grey, 14th April, 1766, quoted by Thurlow, 55. The latter able lawyer expressed himself very forcibly as to the rights of the French Canadians: "They seem to have been strictly entitled by the jus gentium to their property, as they possessed it upon the capitulation and treaty of peace, together with all its qualities and incidents by tenure or otherwise, and also to their personal liberty. * * * It seems a necessary consequence that all those laws by which that property was created, defined, and secured, must be continued to them. To introduce any other, as Mr. Yorke and Mr. DeGrey emphatically expressed it, tends to confound and subvert rights, instead of supporting them." Ib. 59.

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