Diary in America, Series Two

Again:—

“One glaring attempt which was made directly and openly to subvert the constitution of the country, was, by passing a bill for the formal repeal of those parts of the 31 Geo. 3, c. 31, commonly called the Constitutional Act, by which the constitution and powers of the Legislative Council were established. It can hardly be supposed that the framers of this bill were unaware, or hoped to make any concealment of the obvious illegality of a measure, which, commencing as all Canadian Acts do, by a recital of the 31 Geo. 3, as the foundation of the legislative authority of the Assembly, proceeded immediately to infringe some of the most important provisions of that very statute; nor can it be supposed that the Assembly hoped really to carry into effect, this extraordinary assumption of power, inasmuch as the bill could derive no legal effect from passing the Lower House, unless it should subsequently receive the assent of the very body which it purported to annihilate.”

Take again the following observations of his lordship:—

“But the evils resulting from such open attempts to dispense with the constitution were small, in comparison with the disturbance of the regular course of legislation by systematic abuse of constitutional forms, for the purpose of depriving the other branches of the legislature of all real legislative authority.

“It remained, however, for the Assembly of Lower Canada to reduce the practice to a regular system, in order that it might have the most important institutions of the province periodically at its mercy, and use the necessities of the government and the community for the purpose of extorting the concession of whatever demands it might choose to make. Objectionable in itself, on account of the uncertainty and continual changes which it tended to introduce into legislation, this system of temporary laws derived its worst character from the facilities which it afforded to the practice of ‘tacking’ together various legislative measures.

“A singular instance of this occurred in 1836, with respect to the renewal of the jury law, to which the Assembly attached great importance, and to which the Legislative Council felt a strong repugnance, on account of its having in effect placed the juries entirely in the hands of the French portion of the population. In order to secure the renewal of this law, the Assembly coupled it in the same bill by which it renewed the tolls of the Lachine Canal, calculating on the Council not venturing to defeat a measure of so much importance to the revenue as the latter by resisting the former. The council, however, rejected the bill; and thus the canal remained toll-free for a whole season, because the two Houses differed about a jury law.”

So much for their attempts to subvert the constitution. Now let us inquire how far these patriots were disinterested in their enactments. First, as to grants for local improvements, how were they applied? His lordship observes:—

The great business of the Assemblies is, literally, parish business; the making parish roads and parish bridges. There are in none of these provinces any local bodies possessing authority to impose local assessments, for the management of local affairs. To do these things is the business of the Assembly; and to induce the Assembly to attend to the particular interests of each county, is the especial business of its county member. The surplus revenue of the province is swelled to as large an amount as possible, by cutting down the payment of public services to as low a scale as possible; and the real duties of government are, sometimes, insufficiently provided for, in order that more may be left to be divided among the constituent bodies. ‘When we want a bridge, we take a judge to build it,’ was the quaint and forcible way in which a member of a provincial legislature described the tendency to retrench, in the most necessary departments of the public service, in order to satisfy the demands for local works. This fund is voted by the Assembly on the motion of its members; the necessity of obtaining the previous consent of the Crown to money votes never having been adopted by the Colonial Legislatures from the practice of the British House of Commons. There is a perfect scramble among the whole body to get as much as possible of this fund for their respective constituents; cabals are formed, by which the different members mutually play into each other’s hands; general politics are made to bear on private business, and private business on general politics; and at the close of the Parliament, the member who has succeeded in securing the largest portion of the prize for his constituents, renders an easy account of his stewardship, with confident assurance of his re-election.

“Not only did the leaders of the Lower Canadian Assembly avail themselves of the patronage thus afforded, by the large surplus revenue of the province, but they turned this system to much greater account, by using it to obtain influence over the constituencies.

“The majority of the Assembly of Lower Canada is accused by its opponents of having, in the most systematic and persevering manner, employed this means of corrupting the electoral bodies. The adherents of M. Papineau are said to have been lavish in their promises of the benefits which they could obtain from the Assembly for the county, whose suffrages they solicited. By such representations, the return of members of opposition politics is asserted, in many instances, to have been secured; and obstinate counties are alleged to have been sometimes starved into submission, by an entire withdrawal of grants, until they returned members favourable to the majority. Some of the English members who voted with M. Papineau, excused themselves to their countrymen by alleging that they were compelled to do so, in order to get a road or a bridge, which their constituents desired. Whether it be true or false, that the abuse was ever carried to such a pitch, it is obviously one, which might have been easily and safely perpetrated by a person possessing M. Papineau’s influence in the Assembly.”

Next for the grants for public education.

“But the most bold and extensive attempt for erecting a system of patronage, wholly independent of the Government, was that which was, for some time, carried into effect by the grants for education made by the Assembly, and regulated by the Act, which the Legislative Council has been most bitterly reproached with refusing to renew. It has been stated, as a proof of the deliberate intention of the Legislative Council to crush every attempt to civilise and elevate the great mass of the people, that it thus stopped at once the working of about 1,000 schools, and deprived of education no less than 40,000 scholars, who were actually profiting by the means of instruction thus placed within their reach. But the reasons which induced, or rather compelled, the Legislative Council to stop this system, are clearly stated in the Report of that body, which contains the most unanswerable justification of the course which it pursued. By that it appears, that the whole superintendence and patronage of these schools had, by the expired law, been vested in the hands of the county members; and they had been allowed to manage the funds, without even the semblance of sufficient accountability. The Members of the Assembly had thus a patronage, in this single department, of about 25,000 pounds per annum, an amount equal to half of the whole ordinary civil expenditure of the Province. They were not slow in profiting by the occasion thus placed in their hands; and as there existed in the Province no sufficient supply of competent schoolmasters and mistresses, they nevertheless immediately filled up the appointments with persons who were utterly and obviously incompetent. A great proportion of the teachers could neither read nor write. The gentleman whom I directed to inquire into the state of education in the Province, showed me a petition from certain schoolmasters, which had come into his hands; and the majority of the signatures were those of marks-men. These ignorant teachers could convey no useful instruction to their pupils; the utmost amount which they taught them was to say the Catechism by rote. Even within seven miles of Montreal, there was a schoolmistress thus unqualified. These appointments were, as might have been expected, jobbed by the members among the political partisans; nor were the funds very honestly managed. In many cases the members were suspected, or accused, of misapplying them to their own use; and in the case of Beauharnois, where the seigneur, Mr Ellice, has, in the same spirit of judicious liberality by which his whole management of that extensive property has been marked, contributed most largely towards the education of his tenants, the school funds were proved to have been misappropriated by the county member. The whole system was a gross political abuse; and, however laudable we must hold the exertions of those who really laboured to relieve their country from the reproach of being the least furnished with the means of education of any on the North American continent, the more severely must we condemn those who sacrificed this noble end, and perverted ample means to serve the purposes of party.”

We will now claim the support of his lordship upon another question, which is, how far is it likely that the law will be duly administered if the power is to remain in the hands of the French Canadian population? Speaking of the Commissioners of Small Causes, his lordship observes:—

“I shall only add, that some time previous to my leaving the Province, I was very warmly and forcibly urged, by the highest legal authorities in the country, to abolish all these tribunals at once, on the ground that a great many of them, being composed entirely of disaffected French Canadians, were busily occupied in harassing loyal subjects, by entertaining actions against them on account of the part they had taken in the late insurrection. There is no appeal from their decision; and it was stated that they had in the most barefaced manner given damages against loyal persons for acts done in the discharge of their duty, and judgments by default against persons who were absent, as volunteers in the service of the Queen, and enforced their judgment by levying distresses on their property.”

Relative to the greatest prerogative of an Englishman, the trial by jury, his lordship observes:—

“But the most serious mischief in the administration of criminal justice, arises from the entire perversion of the institution of juries, by the political and national prejudices of the people. The trial by jury was introduced with the rest of the English criminal law. For a long time the composition of both grand and petit juries was settled by the governor, and they were at first taken from the cities, which were the chefs lieux of the district. Complaints were made that this gave an undue preponderance to the British in those cities; though, from the proportions of the population, it is not very obvious how they could thereby obtain more than an equal share. In consequence, however, of these complaints, an order was issued under the government of Sir James Kempt, directing the sheriffs to take the juries not only from the cities, but from the adjacent country, for fifteen leagues in every direction. An Act was subsequently passed, commonly called ‘Mr Viger’s Jury Act,’ extending these limits to those of the district. The principle of taking the jury from the whole district to which the jurisdiction of the court extended, is, undoubtedly, in conformity with the principles of English law; and Mr Viger’s Act, adopting the other regulations of the English jury law, provided a fair selection of juries. But if we consider the hostility and proportions of the two races, the practical effect of this law was to give the French an entire preponderance in the juries. This Act was one of the temporary Acts of the Assembly, and, having expired in 1836, the Legislative Council refused to renew it. Since that period, there has been no jury law whatever. The composition of the juries has been altogether in the hands of the Government: private instructions, however, have been given to the sheriff to act in conformity with Sir James Kempt’s ordinance; but though he has always done so, the public have had no security for any fairness in the selection of the juries. There was no visible check on the sheriff; the public knew that he could pack a jury whenever he pleased, and supposed, as a matter of course, that an officer, holding a lucrative appointment at the pleasure of Government, would be ready to carry into effect those unfair designs which they were always ready to attribute to the Government. When I arrived in the Province, the public were expecting the trials of the persons accused of participation in the late insurrection. I was, on the one hand, informed by the law officers of the Crown, and the highest judicial authorities, that not the slightest chance existed, under any fair system of getting a jury, that would convict any of these men, however clear the evidence of their guilt might be; and, on the other side, I was given to understand, that the prisoners and their friends supposed that, as a matter of course, they would be tried by packed juries, and that even the most clearly innocent of them would be convicted.

“It is, indeed, a lamentable fact which must not be concealed, that there does not exist in the minds of the people of this Province the slightest confidence in the administration of criminal justice; nor were the complaints, or the apparent grounds for them, confined to one party.

“The trial by jury is, therefore, at the present moment, not only productive in Lower Canada of no confidence in the honest administration of the laws, but also provides impunity for every political offence.”

I have made these long quotations from Lord Durham’s Report as his lordship’s authority, he having been sent out as Lord High Commissioner to the Province, to make the necessary inquiries, must carry more weight with the public than any observations of mine. All I can do is to assert that his lordship is very accurate; and, having made this assertion, I ask, what chance, therefore, is there of good government, if the power, or any portion of the power, be left in the hands of those who have in every way proved themselves so adverse to good government, and who have wound up such conduct by open rebellion.

The position of the Executive in Canada has, for a long while, been just what our position in this country would be if the House of Commons were composed of Chartist leaders. Every act brought forward by them would tend to revolution, and be an infringement of the Constitution, and all that the House of Lords would have to do, would be firmly to reject every bill carried to the Upper House. If our House of Commons were filled with rebels and traitors, the Government must stand still, and such has been for these ten years the situation of the Canadian government; and, fortunate it is, that the outbreak has now put us in a position that will enable us to retrieve our error, and re-model the constitution of these Provinces. The questions which must therefore be settled previous to any fresh attempts at legislation for these Canadians, are,—are, or are not, the French population to have any share in it? Can they be trusted? Are they in any way deserving of it? In few words, are the Canadas to be hereafter considered as a French or an English colony?

When we legislate, unless we intend to change, we must look to futurity. The question, then, is not, who are the majority of to-day, but who will hereafter be the majority in the Canadian Provinces; for all agree upon one point, which is, that we must legislate for the majority. At present, the population is nearly equal, but every year increases the preponderance of the English; and it is to be trusted that, by good management, and the encouragement of emigration, in half a century the French population will be so swallowed up by the English, as to be remembered but on record. If, again, we put the claims of British loyalty against the treason of the French—the English energy, activity, and capital, in opposition to the supineness, ignorance, and incapacity of the French population,—it is evident, that not only in justice and gratitude, but with a due regard to our own interests, the French Canadians must now be wholly deprived of any share of that power which they have abused, and that confidence of which they have proved themselves so unworthy. I am much pleased to find that Lord Durham has expressed the same opinion, in the following remarks; and I trust their importance will excuse to the reader the length of the quotation.

“The English have already in their hands the majority of the larger masses of property in the country; they have the decided superiority of intelligence on their side; they have the certainty that colonisation must swell their numbers to a majority; and they belong to the race which wields the Imperial Government, and predominates on the American continent. If we now leave them in a minority, they will never abandon the assurance of being a majority hereafter, and never cease to continue the present contest with all the fierceness with which it now rages. In such a contest, they will rely on the sympathy of their countrymen at home; and if that is denied them, they feel very confident of being able to awaken the sympathy of their neighbours of kindred origin. They feel that if the British Government intends to maintain its hold of the Canadas, it can rely on the English population alone; that if it abandons its colonial possessions, they must become a portion of that great Union which will speedily send forth its swarms of settlers, and, by force of numbers and activity, quickly master every other race. The French Canadians, on the other hand, are but the remains of an ancient colonisation, and are and ever must be isolated in the midst of an Anglo-Saxon world. Whatever may happen, whatever government shall be established over them, British or American, they can see no hope for their nationality. They can only sever themselves from the British empire by waiting till some general cause of dissatisfaction alienates them, together with the surrounding colonies, and leaves them part of an English confederacy; or, if they are able, by effecting a separation singly, and so either merging in the American Union, or keeping up for a few years a wretched semblance of feeble independence, which would expose them more than ever to the intrusion of the surrounding population. I am far from wishing to encourage, indiscriminately, these pretensions to superiority on the part of any particular race; but while the greater part of every portion of the American continent is still uncleared and unoccupied, and while the English exhibit such constant and marked activity in colonisation, so long will it be idle to imagine that there is any portion of that continent into which that race will not penetrate, or in which, when it has penetrated, it will not predominate. It is but a question of time and mode; it is but to determine whether the small number of French who now inhabit Lower Canada shall be made English, under a government which can protect them, or whether the process shall be delayed until a much larger number shall have to undergo, at the rude hands of its uncontrolled rivals, the extinction of a nationality strengthened and embittered by continuance.

“And is this French Canadian nationality one which, for the good merely of that people, we ought to strive to perpetuate, even if it were possible? I know of no national distinctions marking and continuing a more hopeless inferiority. The language, the laws, the character of the North American Continent are English; and every race but the English (I apply this to all who speak the English language) appears there in a condition of inferiority. It is to elevate them from that inferiority that I desire to give to the Canadians our English character. I desire it for the sake of the educated classes, whom the distinction of language and manners keeps apart from the great empire to which they belong. At the best, the fate of the educated and aspiring colonist is, at present, one of little hope, and little activity; but the French Canadian is cast still further into the shade, by a language and habits foreign to those of the Imperial Government. A spirit of exclusion has closed the higher professions on the educated classes of the French Canadians, more, perhaps, than was absolutely necessary; but it is impossible for the utmost liberality on the part of the British Government to give an equal position in the general competition of its vast population to those who speak a foreign language. I desire the amalgamation still more for the sake of the humbler classes. Their present state of rude and equal plenty is fast deteriorating under the pressure of population in the narrow limits to which they are confined. If they attempt to better their condition, by extending themselves over the neighbouring country, they will necessarily get more and more mingled with an English population; if they prefer remaining stationary, the greater part of them must be labourers in the employ of English capitalists. In either case it would appear, that the great mass of the French Canadians are doomed, in some measure, to occupy an inferior position, and to be dependent on the English for employment. The evils of poverty and dependence would merely be aggravated in a ten-fold degree, by a spirit of jealous and resentful nationality, which should separate the working class of the community from the possessors of wealth and employers of labour.

“I will not here enter into the question of the effect of the mode of life and division of property among the French Canadians, on the happiness of the people. I will admit, for the moment, that it is as productive of well-being as its admirers assert. But, be it good or bad, the period in which it is practicable, is past; for there is not enough unoccupied land left in that portion of the country in which English are not already settled, to admit of the present French population possessing farms sufficient to supply them with their present means of comfort, under their present system of husbandry. No population has increased by mere births so rapidly as that of the French Canadians has since the conquest. At that period their number was estimated at 60,000: it is now supposed to amount to more than seven times as many. There has been no proportional increase of cultivation, or of produce from the land already under cultivation; and the increased population has been in a great measure provided for by mere continued subdivision of estates. In a Report from a Committee of the Assembly in 1826, of which Mr Andrew Steuart was chairman, it is stated, that since 1784 the population of the seignories had quadrupled, while the number of cattle had only doubled, and the quantity of land in cultivation had only increased one-third. Complaints of distress are constant, and the deterioration of the condition of a great part of the population admitted on all hands. A people so circumstanced must alter their mode of life. If they wish to maintain the same kind of rude, but well-provided agricultural existence, it must be by removing into those parts of the country in which the English are settled; or if they cling to their present residence, they can only obtain a livelihood by deserting their present employment, and working for wages on farms, or on commercial occupations under English capitalists. But their present proprietary and inactive condition is one which no political arrangements can perpetuate. Were the French Canadians to be guarded from the influx of any other population, their condition in a few years would be similar to that of the poorest of the Irish peasantry.

“There can hardly be conceived a nationality more destitute of all that can invigorate and elevate a people, than that which is exhibited by the descendants of the French in Lower Canada, owing to their retaining their peculiar language and manners. They are a people with no history, and no literature. The literature of England is written in a language which is not theirs; and the only literature which their language renders familiar to them, is that of a nation from which they have been separated by eighty years of a foreign rule, and still more by those changes which the Revolution and its consequences have wrought in the whole political, moral, and social state of France. Yet it is on a people whom recent history, manners, and modes of thought, so entirely separate from them, that the French Canadians are wholly dependent for almost all the instruction and amusement derived from books: it is on this essentially foreign literature, which is conversant about events, opinions and habits of life, perfectly strange and unintelligible to them, that they are compelled to be dependent. Their newspapers are mostly written by natives of France, who have either come to try their fortunes in the province, or been brought into it by the party leaders, in order to supply the dearth of literary talent available for the political press. In the same way their nationality operates to deprive them of the enjoyments and civilising influence of the arts. Though descended from the people in the world that most generally love, and have most successfully cultivated the drama—though living on a continent, in which almost every town, great or small, has an English theatre, the French population of Lower Canada, cut off from every people that speak its own language, can support no national stage.