THE WISDOM OF THE BRITISH CONCILIATORY APPROACH
As reflected by the Quebec Act of 1774
Introduction
According to Reginald Coupland, “It has always been the tendency of autocratic Governments to make [uniformity of language, law, and legal procedure] their aim and to secure it, if need be, by rigorous coercion. ” Knowing that the British Crown had done so in its other possessions, why did it choose to take a more conciliatory approach with the Quebec Act of 1774 and to what extent did such a decision prove to be in its long-term best interests?
The decision of the British, by such legislation, to permit its French Canadian subjects to freely practice Roman Catholicism and to retain French law in private matters was taken to seek their loyalty in the
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face of a growing independence movement in its other North American colonies. This conciliatory approach was remarkable considering that under existing British law, Roman Catholics were prohibited from filling any office, civil or military, sitting in any legislative body, or becoming lawyers or judges unless they took an oath renouncing certain basic tenets of their religion. Taken despite opposition, this decision proved to be in the long term best interests not only of the British Crown but of its subjects. Attempts by the thirteen colonies to induce French Canadians to join their independence struggles failed, thus ensuring continued British rule in Canada. Further, the conciliatory nature of the Quebec Act of 1774 inspired a similar approach by those who succeeded in creating Canada as we know it today. The British Dilemma By the British conquest in 1759-1760 and the signing of the Treaty of Paris on February 10th 1763, New France fell under British rule . By 1774, the entire population of Quebec was French and Roman Catholic, other than British military and administrative personnel and a few merchants. From 1763 to 1775, although about 20,000 British immigrants a year arrived in North America, “scarcely any of these went to Canada” and this despite British intentions to populate its new colony with its own people . For years to come, the British would have to contend with ruling over a populace they had little in common with. The French language, the French system of law, and the Roman Catholic religion were the three main elements of French-Canadian nationality at the time. While the Treaty of Paris of 1763 provided that French Canadians “may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit” , such “laws”, including the Test Acts, effectively prohibited the participation of Roman Catholics in any substantive political, judicial, professional and administrative functions in England and its possessions . By the Treaty of Paris of 1763 and the Royal Proclamation later the same year, the British had also abolished the “system of law (of French Canadians) on which their rights of property were based” known as the “Coutume de Paris”, including the seigniorial system of land ownership. The growing threat of American independence would have led the British Crown, influenced by the first two Governors of Quebec, James Murray and Guy Carleton, to reverse its position. It, in fact, did so despite the strong bias against Roman Catholics in England and the thirteen colonies and among English merchants in Quebec . The Quebec Act of 1774 The Quebec Act of 1774 notably provided the following : 1. The revocation of the Royal Proclamation of 1763 (article IV); 2. The confirmation of the right to freely practice Roman Catholicism (article V); 3. The dispensation of the test oath requiring adherence to Protestant tenets, thus allowing Roman Catholics to hold public office and to practice law (article VII); 4. The restoration of French law in private matters (“property and civil rights”); 5. The application of British common law in criminal matters. This Act would prove to be as wise as it would be far reaching in consequence. Objections to the Quebec Act The objections against true religious freedom were based on the concern that Roman Catholics were answerable to the Pope and would therefore be disloyal to the Crown . The objections to the adoption of French civil law in Quebec arose from the concern, not only that it was unfamiliar to the English, but that it would lead to results contrary to those expected under British common law, especially in matters of contract law . Both these concerns proved to be unfounded. As to the second concern, those who objected should have known that the civil law regime in Quebec was the offspring of the oldest and most dominant legal system in the world . It finds its roots in Roman law, “as codified in the Corpus Iuris Civilis of Justinian” . It developed in various forms throughout Continental Europe and beyond and, despite important differences, “there are certain features […] which bind them together and sets them apart from those who practice under different systems” . The main feature of civil law systems is that they are codified. These codes contain rules pertaining to all aspects of a citizen’s life. As these rules tend to be general in nature, it is the court’s role to interpret these rules and apply them to the case at hand. While respectful of the decisions of higher courts, the lower courts are not strictly bound by them. On the other hand, British common law, later adopted by most British possessions including the thirteen colonies, developed from the time of the Norman Conquest in 1066 on the basis of judicial precedents established by the highest courts which the lower courts were obliged to follow, a principle known as stare decisis . Another difference of note and of possible concern at the time was the important differences in court procedure between the two systems. A judge in a civil law system acted in a more inquisitional role while a common law judge only intervened to ensure that both parties before him “played by the rules”. Because of this difference in approach, British lawyers would have been less inclined to learn an entire new set of court procedures. In fact, although civil law was adopted in private matters, the courts established by the British followed the common procedural approach. Most importantly, and despite these differences, it was the similar results arrived at by these two systems of law that eventually demonstrated the wisdom in introducing a bi-juridical system in Quebec. As one author put it: “The fact that common law and civil law, despite the use of different means, arrive at the same or similar solutions is not surprising, as the subject-matter of the legal regulation and the basic values in both legal systems are more or less the same.” The primary objection to the Quebec Act proved to be unfounded as it achieved the purpose for which it was enacted: French Canada rejected the advances of the thirteen colonies and remained loyal to the British Crown. The Wisdom of the Conciliatory Approach One need only look at the continuous turmoil in Ireland during the period from 1774 to 1867 (and subsequently) to see the troubling results that could have ensued had the British chosen the same oppressive policies based on the Test Acts in Quebec.
Instead, French-Canadians were treated to a “very liberal measure, a reasonable compromise, generous to the majority of conquered Canadians and fair to the small minority of immigrant English.” We can only imagine what sort of North America would exist today without the Quebec Act of 1774. Given the chance, as they were during the American occupation of Montreal and other parts of Quebec, French-Canadians would most likely have taken arms against their oppressive rulers and joined in the independence movement of the thirteen colonies.
The spirit of compromise and conciliation shown by the Quebec Act of 1774 would guide generations to come in the shaping of Canada. This legacy of equality and respect would resurface in men like Lafontaine and Baldwin (with their “responsible government”) and in the adoption of the British North America Act. The enduring loyalty it secured from its French-Canadian citizens would help keep the nation whole even through difficult
times. This same spirit of respect for the rights of Quebec was most recently exemplified by the decision of the Supreme Court of Canada in the Nadon case where it declared unconstitutional the attempt by the Harper government to fill one of the three Quebec seats on that court by a person not meeting the literal requirements of the law. The Supreme Court held that the strict requirements were needed to ensure not only that it retains the requisite expertise in the province’s civil code, but “that Quebec’s distinct legal and social values are represented in the court, thereby enhancing the confidence of the people of Quebec in the Supreme Court” and, for that matter, in the Canadian federal system. It can fairly be said that the Court’s reasoning is a reflection of the same spirit which gave rise to the Quebec Act of 1774. Conclusion It has been the purpose of this paper to illustrate the wisdom of the Quebec Act of 1774 in the face of the dilemma faced by the British at that time, as well to show the enduring consequences of its adoption. The examination of early British rule in the Province of Quebec reveals a policy of conciliation as well as the intricacies that made governing the province so difficult. Not only did the English Protestant Crown have to contend with a predominantly French and Roman Catholic population, it had to do so at a time of uncertainty and rebellion, a time when the threat of American independence and invasion was very real. By restoring French law for private matters and by allowing Roman Catholics to freely practice their religion and to occupy military, political, judicial and administrative positions and professions, the British succeeded in obtaining the allegiance of French-Canadian elites, including the Roman Catholic Church and the seigneurs, and this at very little cost in terms of judicial uncertainty. Finally, the spirit of conciliation and compromise inherent to the Quebec Act of 1774 served as a positive influence on Canadian policy makers to the present time.
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Bélanger, Claude. "The Official Languages Act of Canada - Studies on the Canadian Constitution and Canadian Federalism - Quebec History." .Marianopolis College, Nov. 2005. Web. 02 Apr. 2014.
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