SESSIONAL PAPER No. 18

Customs, or Usages of England, or any Ordinances of this Province, to the Contrary hereof in any Wise Notwithstanding

Also the said French Laws and Customs hereby Continued and Confirmed shall be deemed and taken to have continued without Interruption from the Time of the Conquest of this Country by the British Arms to the present Time; any former Ordinance, or Ordinances, of this Province to the contrary thereof in any Wise Notwithstanding.

And further this Ordinance shall extend not only to all Lands in this Province held immediately of the Crown by Grants made by the French King before the Conquest of this Country, and to all Lands held under these immediate of the Crown, who are commonly called Seigneurs, by Grants made by the said Seigneurs to inferior Tenants or Vassals, before the said Conquest, but likewise to such Lands as have been granted by the said Seigneurs to the said inferior Tenants since the said Conquest, and likewise to all such Lands as shall be granted hereafter by the said Seigneurs to the said inferior Tenants or Vassals; all which said Grants from the said Seigneurs to the said inferior Tenants, or Vassals, both these that shall hereafter be made, and those that have been made already, shall be subject to the same Rules, Restrictions, and Conditions, as were lawfully in Force Concerning them in the Time of the French Government at, or immediately before, the Time, of the said Conquest of this Province by the British Arms. But this Ordinance shall not extend to, or any Way affect, any new Grants of Land in this Province made by the King's Majesty since the said Conquest, or hereafter to be made by his said Majesty ; but the Laws and Rules relating to such Royal Grants shall be the same as if this Ordinance had not been made.

Given by the Honble Guy Carleton Lt. Governor and Commander in Chief of the Province of Quebec, Brig Genl. of His Majesty's Forces &c &c in Council at the Castle of St. Louis in the City of Quebec on the of His Majesty's Reign and in the Year of our Lord 176

Day of

in the

Year

CARLETON TO SHELBURNE.1

QUEBEC 20th Jan" 1768

My Lord!

In my Letter (No. 20) I have given the Military state of this Province, with a scheme for strengthening it by a Citadel; I shall now add, that, was this already constructed, and I could suppose it impossible for any foreign Enemy to shake the King's Dominion over the Province, still I shall think the Interests of Great Britain but half advanced, unless the Canadians are inspired with a cordial Attachment, and zeal for the King's Government; How far they are removed from that desirable Disposition, may easily be discovered, if brought to the Test, and examined by the general Cause of the Attachments of Men, Self-Interest; if it shall not be found more their Interest to remain as at present, than to return under the Dominion of their former Sovereign, they certainly have not all those Motives, which induce Men of Honor to disregard the general Rule; there remain, 'tis true, an Oath of Allegiance, which may keep some Quiet in Case of a French Expedition, and the Punishments due to Traitors, which will be regarded, as long as Government has Force sufficient to inflict them; it therefore seems to me highly expedient, that, at least, those Causes of Complaint, which affect the Bulk of the People, and come home almost to every Man, should be removed; That they should be maintained in the quiet Possession of their Property, according to their own Customs, which Time immemorial, has been regarded by them and their Ancestors, as Law and Equity; and that the Approach to Justice and Government, for the Redress of Wrongs, be practicable and Convenient, in Place of being ruinous by Delay, and an Expence disproportioned to their Poverty; but this is neither in the Power of Justice or Government here to grant him, while the Supreme Court is obliged to Judge according to the Laws of England, and the different Offices can claim, as their Right, Fees calculated for much wealthier Provinces.

1 Canadian Archives, Q5-1, p. 370.

2 Carleton to Shelburne, Nov. 25th, 1767. See p. 196.

6-7 EDWARD VII., A. 1907

But, Beside these Points of Justice, as long as the Canadians are deprived of all Places of Trust and Profit, they never can forget, they no longer are under the Dominion of their natural Sovereign; tho' this immediately concerns but few, yet it affects the Minds of all, from a national Spirit, which ever interests itself at the general Exclusion of their Countrymen: three or four of their principal Gentlemen, with the Rank of Counsellors, was it little more than Honorary, tho' on many Occasions they might prove useful; a few Companies of Canadian Foot judiciously officered, with three or four trifling. Employments, in the Civil Department, would make very considerable Alterations on the Minds of the People; It would divide the Canadians at least, and secure a Part, in Case of a French War, that would emulate the zeal of the King's National Troops; It would hold up Hopes to the Gentlemen, that their Children, without being bred up in France, or the French Service, might support their Families in the Service of the King their Master, and by their Employments preserve them from sinking into the lower Class of People, by the Division and Subdivision of Lands every GenerationI have found in Canada, what I believe may be found everywhere, the People fond of the Laws and Form of Government they have been educated under, tho' scarcely a Man that Knows one sound Principle of Government, or Law; Three or four of the old Subjects, about a year ago, brought me the rough Draft of a Petition for a general Assembly, and hoped, I had no Objection to their having it signed by all the British, who wished to have one called; I told them, I had many Objections to great numbers signing a Request of any Kind, that it seldom conveyed the sincere Desire of the Subscribers, that it had an Appearance of an Intention to take away the Freedom of granting or refusing the Request; I had no Objection to Assemblies in General, yet such was the peculiar Situation of Canada, tho' I had turned that Matter often in my Thoughts, I could hit off no Plan that was not liable to many Inconveniencies, and some Danger; That perhaps they might be more fortunate, and I should think myself obliged to them, if they would shew me one, that could be of advantage to the Province, and the King's Service, assuring them, such a Plan wanted no Petitions to recommend it to me about a Month after, they asked me, if I had considered of their Request, and I repeated my former Answer; since which I have often urged them, of my own Accord, to let me have their Scheme for an Assembly, and to inform me, who they thought should be the Electors, and who the Representatives, but to no Purpose; so that I imagined, they had laid aside all Thoughts of the Kind, till lately one John McCord, who wants neither Sense nor Honesty, and formerly kept a small Ale House in the poor Suburbs of a little Country Town in the North of Ireland, appearing zealous for the Presbiterian Faith, and having made a little Money, has gained some Credit among People of his Sort; this Person purchased some Spots of Ground, and procured Grants of more, close to the Barracks, where he run up Sheds, and placed poor People to sell his Spirits to the Soldiers, finding that his lucrative Trade has lately been checked, by inclosing the Barracks to prevent the Soldiers getting drunk, all Hours of the Day and Night, He has commenced Patriot, and with the Assistance of the late Attorney General, and three or four more, egged on by Letters from Home, are at work again for an Assembly, and purpose having it signed by all they can influence: On the other Hand the better Sort of Canadians fear nothing more than popular Assemblies, which, they conceive, tend only to render the People refractory and insolent; Enquiring what they thought of them, they said, they understood some of our Colonies had fallen under the King's Displeasure, owing to the Misconduct of their Assemblies, and that they should think themselves unhappy, if a like Misfortune befell them. It may not be improper here to observe, that the British Form of Government, transplanted into this Continent, never will produce the same Fruits as at Home, chiefly, because it is impossible for the Dignity of the Throne, or Peerage to be represented in the American Forests; Besides, the Governor having little or nothing to give away, can have but little Influence; in Place of that, as it is his Duty to retain all in proper Subordination, and to restrain those Officers, who live by Fees, from running them up to Extortion; these Gentlemen, put into Offices, that require Integrity, Knowledge and Abilities, because they bid the highest Rent to the Patentee, finding themselves checked in their Views of Profit, are disposed to look on the Person, who disappoints them, as their Enemy, and without go

SESSIONAL PAPER No. 18

ing so far as to forfeit their Employments, they in general will be shy of granting that Assistance, the King's Service may require, unless they are all equally disinterested or equally Corrupt. It therefore follows, where the executive Power is lodged with a Person of no Influence, but coldly assisted by the rest in Office, and where the two first Branches of the Legislature have neither Influence, nor Dignity, except it be from the extraordinary Characters of the Men, That a popular Assembly, which preserves it's full Vigor, and in a Country where all Men appear nearly upon a Level, must give a strong Bias to Republican Principles; Whether the independent Spirit of a Democracy is well adapted to a subordinate Government of the British Monarchy, or their uncontrolable Notions ought to be encouraged in a Province, so lately Conquered, and Circumstanced as this is, I with great Humility submit to the Superior Wisdom of His Majesty's Councils for my own part, I shall think myself Fortunate, if I have succeeded in rendering clear Objects, not allways distinctly discernable at so great a Distance

I take the Opportunity of writing to you by the first Ship going directly to Quebec, since my Admission into Office, & also to send you Duplicates of my Four former Letters

I come now to the Consideration of your Letters N° 17. 22. & 23., in which your Prudence and Judgment, your Care of the King's Service, and your Benevolence to His Subjects, are equally conspicuous to His Majesty.

I had the Honor to serve His Majesty at the Board of Trade. in the year 1763. when His Ma'ty was pleased to publish His Royal Proclamation relative to the new Colonies, and, whatever the legal sense conveyed by the Words of that Proclamation may be, of which I pretend not to be a Judge, I certainly know what was the Intention of those who drew the Proclamation, having myself been concerned therein; And I can take upon me to averr, that it never entered into Our Idea to overturn the Laws and Customs of Canada, with regard to Property, but that Justice should be administered agreably to them, according to the Modes of administering Justice in the Courts or Judicature in this Kingdom, as is the Case in the County of Kent, and many other

1 Canadian Archives, Q 5-1, p. 344.

Wills, Earl of Hillsborough, and of the Kingdom of Ireland, was appointed the first Secretary of State for the Colonies when that Department was created in 1768. His appointment, as recorded in the Warrant Book, vol. 32, is dated 21st Jan. 1768. From Sept. 9th, 1763, he had been one of the Commissioners for Trade and Plantations. See Calendar of Home Office Papers, 1766-69, p. 422.

In this despatch Hillsborough passes in review the various letters which had been received from Carleton since the former came into office, and as several of these relate to religious and trade matters the review of them is omitted here.

2 Letter No. 17 is that of Nov. 21st, 1767, in which Carleton encloses a petition from British merchants in Canada, stating their objections to the complete enforcement in Canada of the English bankruptcy laws. Agreeing with their position, he has suspended the introduction of such laws for the present. See Q5-1, p. 245.

No. 22, is a letter of Dec. 10th, with enclosures, in response to a request from the Commissioners of the Treasury for information as to the revenue and expenditure of the Province. See Q 5-1, p. 299. No. 23, is the letter of Carleton to Shelburne of Dec. 24th, see p. 201.

6-7 EDWARD VII., A. 1907 parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho' Justice is administered therein according to the Laws of England. It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execution, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal Intention. The Distance of the Colony, the Difficulties arising from many Circumstances, unnecessary for me to enumerate, and the Differences of Opinion occasioned by various Causes, have prevented, as yet, the necessary Measures from being taken, to correct this original and fatal Mistake; But I trust I shall soon be impowered to signify His Majesty's Pleasure, to you, to carry into Execution, such as will not only releive His Majesty's new Subjects from the uncertain, and consequently unhappy Situation, they are now in ; but give them entire Satisfaction for the future, by securing to them their Property upon a stable Foundation, and rendering the Colony more flourishing and happy than it has ever been.

I have, in the mean Time, His Majesty's Commands, to express His Satisfaction in your prudent conduct relative to the Applications mentioned in your Letter N° 17. to have been made to you for a Commission of Bankruptcy, as it is impossible to conceive, that it could ever be His Majesty's Intention signified, either by the Proclamation, or by the Ordinance for the Establishment of Courts of Judicature, to extend Laws of that particular and municipal Nature to the Colony, even if the Intention had been to have overturned the Customs of Canada, and it would be full as reasonable to make a poor Rate under the 434 of Elizabeth, or to execute any other Act of Parliament of England, in Quebec, however intended for any local or particular purpose in this Kingdom.

His Majesty approves of every Sentiment expressed in your Letter N° 23. upon which is founded the Idea of the Ordinance, a Draught of which you transmit with that Letter; The Draught corresponds in almost every part with His Majesty's Opinions; But, as the whole State of the Colony will be immediately taken into Consideration, His Majesty's Pleasure is, that you should, for the present, postpone the enacting of that Ordinance; not doubting but you will, in the mean Time, continue to make use. of every lenient and proper Argument, to convince His Majesty's new Subjects of His tender Concern for their Welfare and Security; and, by representing to them the natural Difficulties that must occur, in Regulations of so important a Nature, to be directed from so great a Distance, for the permanent Settlement of a Province, under Circumstances so uncommon and peculiar ; prevail upon them to suffer patiently those Delays which are unavoidable.

I desire you will do me the Honor to accept my sincerest Congratulations upon your Appointment to the Government of Quebec. I most truly rejoice at It, both on Account of His Majesty's Service, and the Prosperity and Happiness of His Mat'y's Subjects in that important Colony.

Lieutenant Governor of Quebec

I am &c

HILLSBOROUGH

Endorsed :-Dra' to the Lieutenant-Governor of Quebec Whitehall March 6th 1768. CARLETON TO SHELBURNE

My Lord!

QUEBEC 12th April 1768

Again I find myself under a necessity to repeat very near the same apologies, as in my last about the Fees; the Truth is, that while Offices are farmed out to the best bidder, Tenants will make the most of their Leases, and in their Turn hire such Servants,

1 See p. 204.

2 After acting as Lieutenant Governor of Quebec from April 1766 till the beginning of 1768, Carleton was appointed to the full position of ** Captain General and Governor-in-chief of Quebec in America ̈ his appointment being dated Jan. 12th, 1768. See Calendar of Home Office Papers, 1766-69, p. 395. 3 Canadian Archives, Q 5-2, p. 477.

SESSIONAL PAPER No. 18

as work at the cheapest Rate, without much Enquiry, whether the same is well or ill done; The inclosed List of Grants,' Prior to the Conquest of the Country, has been greatly retarded, from the Persons employed therein, not being thoroughly versed in the Languages, at the same Time, it must be fairly acknowledged, the Ancient Records of the Country, are by no Means so clear and accurate as one could wish, However it will in General tolerably well exhibit, on what Terms, the Seigniorial Grants are held, for as to the Terres en Roture held immediately of the King, in the Towns of Quebec or Trois Rivieres, or else where, the same is not yet Compleated, but is in Hand, and shall be transmitted, without Loss of Time, as soon as finished.

Some of the Privileges contained in those Grants appear at first to Convey dangerous Powers into the Hands of the Seigneurs, that upon a more minute Enquiry, are found to be really little else than Ideal; the Haute Moyenne et basse Justice, are Terms of high Import but even under the French Government were so corrected, as to prove of little Signification to the Proprietors, for besides that they could Appoint no Judge without the Approbation of Government, there lay an Appeal from all the Private to the Royal Jurisdictions in every Matter exceeding half a Crown; it could not therefore be productive of Abuse, and as the Keeping of their own Judges became much too Burthensome for the Scanty Incomes of the Canadian Seigneurs, it was grown into so general a Disuse, there were hardly three of them in the whole Province at the Time of the Conquest.

All the Lands here are held of His Majesty's Castle of St. Lewis, and nothing I am persuaded, would be so agreable to the People, or tend more to securing the Allegiance of the new Subjects to His Majesty, as well as ensuring the Payment of those Fines and Dues, which here stand in the Lieu of Quit Rents, than a formal Requisition of all those immediately holding of the King, to pay Faith and Homage to him at his Castle of St. Lewis; The Oath, which the Vassals take upon the Occasion, is very Solemn and Binding, they are obliged to furnish what they here Term their Aveu et Denombrement, which is an exact Account of their Tenants and Revenues, and to discharge whatever they owe their Sovereign, and to appear in Arms for his Defence, in Case His Province is ever attacked; And at the same Time that it would prove a Confirmation to the People of their Estates and Immunities, after which they most ardently sigh, it might be a Means to recall out of the French Service, such as have yet Possessions in this Country, or at least oblige them to dispose of their Effects here, and although it may not be possible, at least for a Time, entirely to prevent that Intercourse, every Measure, that can tend towards putting an End to it, must be Useful.

The Canadian Tenures differ, it is true, from those in the other Parts of His Majesty's American Dominions, but if confirmed, and I cannot see how it well can be avoided, without entirely oversetting the Properties of the People, will ever secure a proper Subordination from this Province to Great Britain; if it's detached Situation be Constantly Rembered, and that on the Canadian Stock we can only depend for an Increase of Population therein, the Policy of Continuing to them their Customs and Usages will be sufficiently Evinced.

For the foregoing Reasons it has occurred to His Majesty's Servants here, that it might prove of Advantage, if, whatever Lands remain Vacant in the Interior Parts of the Province, bordering upon those, where the old Customs prevail, were henceforth granted on the like Conditions, taking care that those at Gaspey and Chaleur Bay, where the King's old Subjects ought chiefly to be encouraged to settle, were granted on such Conditions only, as are required by His Royal Instructions; And, upon this Consideration, have some Grants, in the interior Parts, been deferred Carrying into Execution, untill I could receive the sense of Government thereupon.

Your Lordship may have perceived by some of my former Letters, that long before His Majesty's Order in Council of the 28th August came to my Hands, the Matter therein Recommended had been the Object of my most serious Consideration; the Receipt of that Order has induced me to alter some Part of the Plan I at first Proposed