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Фредерик Марриет
Diary in America, Series Two

“I have, in despatches of a later date than that to which I have had occasion so frequently to refer, called the attention of the Home Government to the growth of this alarming state of feeling among the English population. The course of the late troubles, and the assistance which the French insurgents derived from some citizens of the United States, have caused a most intense exasperation among the Canadian loyalists against the American government and people. Their papers have teemed with the most unmeasured denunciations of the good faith of the authorities, of the character and morality of the people, and of the political institutions of the United States. Yet, under this surface of hostility, it is easy to detect a strong under-current of an exactly contrary feeling. As the general opinion of the American people became more and more apparent during the course of the last year, the English of Lower Canada were surprised to find how strong, in spite of the first burst of sympathy, with a people supposed to be struggling for independence, was the real sympathy of their republican neighbours with the great objects of the minority. Without abandoning their attachment to their mother country, they have begun, as men in a state of uncertainty are apt to do, to calculate the probable consequences of a separation, if it should unfortunately occur, and be followed by an incorporation with the United States. In spite of the shock which it would occasion their feelings, they undoubtedly think that they should find some compensation in the promotion of their interests; they believe that the influx of American emigration would speedily place the English race in a majority; they talk frequently and loudly of what has occurred in Louisiana, where, by means which they utterly misrepresent, the end nevertheless of securing an English predominance over a French population has undoubtedly been attained; they assert very confidently, that the Americans would make a very speedy and decisive settlement of the pretensions of the French; and they believe that, after the first shock of an entirely new political state had been got over, they and their posterity would share in that amazing progress, and that great material prosperity, which every day’s experience shows them is the lot of the people of the United States. I do not believe that such a feeling has yet sapped their strong allegiance to the British empire; but their allegiance is founded on their deep-rooted attachment to British, as distinguished from French institutions. And if they find that that authority which they have maintained against its recent assailants, is to be exerted in such a manner as to subject them to what they call a French dominion, I feel perfectly confident that they would attempt to avert the result, by courting, on any terms, an union with an Anglo-Saxon people.”

Here I do not agree with his lordship. That such was the feeling previous to the insurrection I believe, and notwithstanding the defeat of the insurgents, would have remained so, had it not been for the piratical attacks of the Americans, which their own government could not control. This was a lesson to the Upper Canadians. They perceived that there was no security for life or property—no law to check outrage—and they felt severely the consequences of this state of things in the destruction of their property and the attempts upon their lives by a nation professing to be in amity with them. Fraternise with the Americans the Upper Canadians will not. They may be subdued by them if they throw off the allegiance and protection of the mother-country, as they would be hemmed in between two hostile parties, and find it almost impossible, with their present population, to withstand their united efforts. But should a conflict of this kind take place, and the Upper Canadians be allowed but a short period of repose, or could they hold the Americans in check for a time, they would sweep the whole race of the Lower Canadians from the face of the earth. Their feelings towards the Lower Canadians are well explained in Lord Durham’s Report:—

“In the despatch above referred to I also described the state of feeling among the English population, nor can I encourage a hope that that portion of the community is at all more inclined to any settlement of the present quarrel that would leave any share of power to the hostile race. Circumstances having thrown the English into the ranks of the government, and the folly of their opponents having placed them, on the other hand, in a state of permanent collision with it, the former possess the advantage of having the force of government, and the authority of the laws on their side in the present state of the contest. Their exertions during the recent troubles have contributed to maintain the supremacy of the law, and the continuance of the connexion with Great Britain; but it would, in my opinion, be dangerous to rely on the continuance of such a state of feeling, as now prevails among them, in the event of a different policy being adopted by the Imperial government. Indeed the prevalent sentiment among them is one of any thing but satisfaction with the course which has been long pursued, with reference td Lower Canada, by the British legislature and executive. The calmer view, which distant spectators are enabled to take of the conduct of the two parties, and the disposition which is evinced to make a fair adjustment of the contending claims, appear iniquitous and injurious in the eyes of men who think that they alone have any claim to the favour of that government, by which they alone have stood fast. They complain loudly and bitterly of the whole course pursued by the Imperial Government, with respect to the quarrel of the two races, as having been rounded on an utter ignorance of, or disregard to the real question at issue, as having fostered the mischievous pretensions of French nationality, and as having, by the vacillation and inconsistency which marked it, discouraged loyalty and fomented rebellion. Every measure of clemency, or even justice, towards their opponents, they regard with jealousy, as indicating a disposition towards that conciliatory policy which is the subject of their angry recollection; for they feel that being a minority, any return to the due course of constitutional government would again subject them to a French majority: and to this I am persuaded they would never peaceably submit. They do not hesitate to say that they will not tolerate much longer the being made the sport of parties at home, and that if the mother country forgets what is due to the loyal and enterprising men of her own race, they must protect themselves. In the significant language of one of their own ablest advocates, they assert that ‘Lower Canada must be English, at the expense, if necessary, of not being British.’”

The third party, which is the American, is the only one at present inclined to move, and in all probability they will commence as soon as the winter sets in; for however opposed to this shameful violation of the laws of nations the President, officers, and respectable portion of the American Union may be, it is certain that the majority are represented by these marauders, and the removal of our troops would be a signal for immediate aggression.

The Americans will tell you that the sympathy, as they term it, only exists on the borders of the lakes; that it extends no further, and that they are all opposed to it, etcetera. Such is not the case. The greatest excitement which was shown any where was perhaps at Albany, the capital of the State of New York, on the Hudson river, and two hundred miles at least from the boundary; but not only there, but even on the Mississippi the feeling was the same; in fact, it was the feeling of the majority. In a letter I received the other day from a friend in New York, there is the following remark:—

“Bill Johnson (the pirate on lake Ontario) held his levées here during the winter. They were thronged with all the best people of the city.”

Now, the quarter from whence I received this intelligence is to be relied upon; and that it was the case I have no doubt. And why should they feel such interest about a pirate like Bill Johnson? Simply because he had assailed the English. This may appear a trifle; but a straw thrown up shows in what direction the wind blows.

At present there is no want of troops to defend the Canadas against a foreign attack, and little inclination to rebel in the provinces themselves. That now required is, that the legislature should be improved so as to do justice to all parties, and such an encouragement given to enterprise and industry as to induce a more extended emigration.

Lord Durham has very correctly observed, that it is not now a conflict of principles between the English and French, but a conflict of the two races. He says:—

“I expected to find a contest between a government and a people: I found two nations warring in the bosom of a single state: I found a struggle, not of principles, but of races; and I perceived that it would be idle to attempt any amelioration of laws or institutions until we could first succeed in terminating a deadly animosity that now separates the inhabitants of Lower Canada into the hostile divisions of French and English.”

But why should this conflict between the two races have taken place? Firstly, because the French, by the injudicious generosity of our Government in allowing them to retain their language in public affairs, with all their customs and usages, were allowed to remain a French colony, instead of amalgamating them with the English, as might have been done. Subsequently, because the interests of the English colonists have been sacrificed to the French, who, nevertheless, became disaffected, and would have thrown off the English dominion. Lord Durham very correctly adds:—

“Such is the lamentable and hazardous state of things produced by the conflict of races which has so long divided the province of Lower Canada, and which has assumed the formidable and irreconcilable character which I have depicted. In describing the nature of this conflict, I have specified the causes in which it originated; and though I have mentioned the conduct and constitution of the colonial government, as modifying the character of the struggle, I have not attributed to political causes a state of things which would, I believe, tinder any political institutions have resulted from the very composition of society. A jealousy between two races, so long habituated to regard each other with hereditary enmity, and so differing in habits, in language, and in laws, would have been inevitable under any form of government. That liberal institutions and prudent policy might have changed the character of the struggle, I have no doubt; but they could not have prevented it; they could only have softened its character, and brought it more speedily to a more decisive and peaceful conclusion. Unhappily, however, the system of government pursued in Lower Canada has been based on the policy of perpetuating that very separation of the races, and encouraging these very notions of conflicting nationalities which it ought to have been the first and chief care of Government to check and extinguish. From the period of the conquest to the present time, the conduct has aggravated the evil, and the origin of the present extreme disorder may be found in the institutions by which the character of the colony was determined.”

We have, therefore, to legislate between the two parties, and let us, previous to entering upon the question, examine into their respective merits. On the one hand we have a French population who, after having received every favour which could be granted with a due regard to freedom, have insisted upon, and have obtained much more, and who in return for all the kindness heaped upon them, excited by envy and jealousy of an energy and enterprise of which they were incapable, have risen in rebellion, with the hopes of making themselves an independent nation.

On the other hand we have a generous, high-spirited race of our own blood, and migrating from our own soil, who having been unfairly treated, and having just grounds of complaint against the mother-country, have nevertheless forgotten their own wrongs, and, to a mail, flown to arms, willing to shed their blood in defence of the mother-country.

Add to this, we have the French inhabiting a comparatively sterile country, without activity or enterprise; the English, in a country fertile to excess, possessing most of the capital, and the only portion of the colonists to whom we can safely confide the defence of that which I trust I have proved to the reader to be the most important outpost in the English dominions. Bearing all this in mind, and also remembering that if the emigration to Upper Canada again revive, that this latter population will in a few years be an immense majority, and will ultimately wholly swallow up all the former, we may now proceed to consider what should be the policy of the mother-country.

Volume Three—Chapter Five

The Canadas, continued

In the last chapter I pointed out that in our future legislation for these provinces, we had to decide between the English and French inhabitants; up to the present the French have been in power, and have been invariably favoured by the Government, much to the injury of the English population. Before I offer any opinion on this question, let us inquire what has been the conduct of the French in their exercise of their rights as a Legislative Assembly, and what security they offer us, to incline us again to put confidence in them. In examining into this question, I prefer, as a basis, the Report of Lord Durham, made to the English Parliament. His lordship, adverting to the state of hostility between the representative and executive powers in our colonies, prefaces with a remark relative to our own country, which I think late events do not fully bear out; he says:—

“However partial the monarch might be to particular ministers, or however he might have personally committed himself to their policy, he has been invariably constrained to abandon both, as soon as the opinion of the people has been irrevocably pronounced against them, through the medium of the House of Commons.”

This he repeats in an after part of the Report:—

“When a ministry ceases to command a majority in Parliament on great questions of policy, its doom is immediately sealed; and it would appear to us as strange to attempt, for any time, to carry on a Government by means of ministers perpetually in a minority, as it would be to pass laws with a majority of votes against them.”

If such be an essential part of our constitution, as his lordship asserts, surely we have suffered an inroad into it lately.

That the system of Colonial Government is defective, I grant, but it is not so much from the check which the Legislative Council puts upon the Representative Assembly, as from the secrecy of the acts and decisions of that council. This, indeed, his lordship admits in some cases, and I think that I can fully establish that, without this salutary check, the Legislative Assembly of Lower Canada would have soon voted themselves Free and Independent States. Lord Durham observes:—

“I am far from concurring in the censure which the Assembly and its advocates have attempted to cast on the acts of the Legislative Council. I have no hesitation in saying that many of the bills which it is most severely blamed for rejecting, were bills which it could not have passed without a dereliction of its duty to the constitution, the connexion with Great Britain, and the whole English population of the colony. If there is any censure to be passed on its general conduct, it is for having confined itself to the merely negative and defensive duties of a legislative body; for having too frequently contented itself with merely defeating objectionable methods of obtaining desirable ends, without completing its duty by proposing measures, which would have achieved the good in view without the mixture of evil. The national animosities which pervaded the legislation of the Assembly, and its thorough want of legislative skill or respect for constitutional principles, rendered almost all its bills obnoxious to the objections made by the Legislative Council; and the serious evil which their enactment would have occasioned, convinces me that the colony has reason to congratulate itself on the existence of an institution which possessed and used the power of stopping a course of legislation that, if successful, would have sacrificed every British interest, and overthrown every guarantee of order and national liberty.”

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.