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.1 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.2

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.

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

8 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.

CHAPTER III.

THE QUEBEC ACT OF 1774.

The province of Quebec remained for eleven years under the system of government established by the proclamation of 1763. In 1774, Parliament intervened for the first time in Canadian affairs and made important constitutional changes. The previous constitution had been created by letters-patent under the great seal of Great Britain, in the exercise of an unquestionable and undisputed prerogative of the Crown. The colonial institutions of the old possessions of Great Britain, now known as the United States of America, had their origin in the same way. But in 1774, a system of government was granted to Canada by the express authority of Parliament. This constitution was known as the Quebec

2

1 Report of Committee of Council, 1st May, 1849, app. A., vol. ii. Earl Grey's Colonial Policy.

214 Geo. III., c. 83, "making more effectual provision for the government of the province of Quebec, in North America." The bill, on the motion for its passage, with amendments, in the House of Commons, was carried by 56 yeas to 20 nays. In the House of Lords it had a majority of 19; Contents 26, Non. Con. 7. Cav. Deb. iv., 296.

Act, and greatly extended the boundaries of the province of Quebec, as defined in the proclamation of 1763. On one side, the province extended to the frontiers of New England, Pennsylvania, New York province, the Ohio, and the left bank of the Mississippi; on the other, to the Hudson's Bay Territory. Labrador, and the islands annexed to Newfoundland by the proclamation of 1763, were made part of the province of Quebec.

66

The bill was introduced in the House of Lords on the 2nd of May, 1774, by the Earl of Dartmouth, then colonial secretary of state, and passed that body without opposition. Much discussion, however, followed the bill in its passage through the House of Commons, and on its return to the Lords, the Earl of Chatham opposed it as a most cruel, oppressive, and odious measure, tearing up justice and every good principle by the roots." The opposition in the province was among the British inhabitants, who sent over a petition for its repeal or amendment. Their principal grievance was that it substituted the laws and usages of Canada for English law.' The Act of 1774 was exceedingly unpopular in England and in the English-speaking colonies, then at the commencement of the Revolution.2 Parliament, however, appears to have been influenced by a desire to adjust the

1 Cav. Deb., preface, iii.-vi.

2 The American Congress, in an address to the people of Great Britain, September 5, 1774, declared the act to be "unjust, unconstitutional, and most dangerous and destructive of American rights." (Christie, I., 8-9.) In 1779, Mr. Masères, formerly attorney-general of Quebec, stated that "it had not only offended the inhabitants of the province, but alarmed all the English provinces in America." Cav. Deb., v.

government of the province so as to conciliate the majority of the people.' In the royal speech closing the session, the law was characterized as "founded on the plainest principles of justice and humanity, and would have the best effect in quieting the minds and promoting the happiness of our Canadian subjects.'

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The new constitution came into force in October, 1774. The Act sets forth among the reasons for legislation that the provisions made by the proclamation of 1763 were "inapplicable to the state and circumstances of the said province, the inhabitants whereof amounted at the conquest, to above sixty-five thousand persons professing the religion of the Church of Rome, and enjoying an established form of constitution and system of laws, by which their persons and property had been protected, governed, and ordered for a long series of years, from the first establishment of the province." Consequently, it is provided that Roman Catholics should be no longer obliged to take the test oath, but only the oath of allegiance. The government of the province was entrusted to a governor and a legislative council, appointed by the Crown, inasmuch as it was "inexpedient to call an assembly." This council was to comprise not more than twenty-three, and not less than seventeen

1 Garneau, who represents French Canadian views in his history, acknowledges that "the law of 1774 tended to reconcile the Canadians to British rule." II., 125.

2 Cav. Deb., iv.

Fox contended for a representative assembly, but Lord North expressed his opinion that it was not wise for a Protestant government to delegate its powers to a Catholic assembly. Cav. Deb., 246-8.