“The bill against Major Disney being returned on a Monday, I appointed Wednesday for his trial, his Jury, after some few challenges on both sides, was composed of very reputable English merchants residing at Montreal, of very fair characters & as unprejudiced as men could be who had heard so much of so interesting a story.“The only evidence that affected Major Disney was that of Mr. & Mrs. Walker & Magovock, the substance of which I will take the liberty to state to yr. Lordship as shortly & as truly as my notes & my memory will enable me to do, all the other witnesses speaking to the fact as committed by somebody without any particular knowledge of Major Disney.“The narrative will perhaps be less perplexed—The house opens with two doors, one a strong one next the street, (within that a sashed one), into the hall where the Family were at supper when the affair began; short on the right hand at the entrance from the street are folding doors which lead into a Parlour, at the further end of which Fronting the Folding doors is ye door of the bed chamber where Mr. Walker keeps his fire arms of which he has great numbers ready loaded. In the hall almost fronting the street doors, are 2 which lead into a kitchen & a back yeard, through which Mrs. Walker & the rest of the family separately made their escape very soon after the entrance of the Ruffians.“The account which Mr. Walker gave to the Jury upon the trial was that on the 6th of Decr. 1764 at ½ past 8 in the evening Mrs. Walker looked at her watch and said it was time to go to supper—that the cloth was laid in the hall but that he not having been very well that day she was persuading him to stay & eat his supper in the Parlour—that they staid about 10 or 15 minutes in this and other conversation & then went into the hall to supper—that he sat with his back to, & very near the street door—that he had been but a very little time at supper when he heard a rattling of the latch of the door as of Persons wanting to come in in a hurry—that Mrs. Walker said Entre, upon which the outward door was thrown open & thro’ the sash of the inward one he saw a great number of People disguised in various ways, some with little round hats others with their faces blacked, and others with crapes over their faces—that he had time to take so much notice of them as to distinguish 2 Persons whose faces tho’ blacked he was sure he should know again if he saw them—that they burst the inward door & several of them got round to the doors leading to the Parlour as designing to cut off his retreat into that room—that upon turning his head towards that room he received from behind a blow which he believes was given with a broad sword,—that he passed thro’ them into the Parlour receiving many wounds in the passagegot to the further end of the room near the chamber door before which stood 2 men who had got before him & prevented his entrance into it—that these 2 with others who had followed him striking and wounding all the way, sett upon him & forced him from the door into window, the curtains of which entangled itself round him and he believes prevented their dashing his brains out against the wall, that he received in the whole no less than 52 contusions besides many cuts with sharp instruments—that he believes during the struggle in the window he was for some little time deprived of his senses, sunk in stupefaction or stunned by some blow, till he heard a voice from the opposite corner of the room say ‘Let me come at him I will dispatch the Villian with my sword’ that this roused him and determined him to sell his life as dear as he could—that ’till this time tho’ he had apprehended & experienced a great deal of violence, he did not think they intended to take away his life because he had seen Major Disney in the outer room & knowing he had done nothing to disoblige him, he did not believe that he would have been amongst them if they had intended to murther him—that he broke from the persons who held him in the window & advanced towards the Part of the room from whence the voice came where 2 persons were standing with their swords in a position ready for making a thrust at him, but does not know whether they actually made a Pass at him or not, that he put by one of their swords with his left hand upon which they both retreated into the corner—that his Eyes at this time being full of blood, he was not capable of distinguishing the features of a face with great accuracy, but from the size & figure & gesture of the person whose sword he parried & from whom he believes the words came, he thought it to be Major Disney—that several of them then seized him at once (one of them in particular taking him up under the right thigh) and carried him towards the fire place with the intention as he believed to throw him upon the fire—that the marks of his bloody fingers were upon the jamb of the chimney—that he turned himself from the fire with great violence & in turning received a blow on his head which the surgeons say must have been given with a Tomahawk—which felled him to the ground & after that a blow upon his Loins which he feels to this day—that then one of them sat or kneeled by him (he lying at his length upon the floor) andeavouring as he imagined to cut his throat—that he resisted it by inclining his head upon his shoulders & putting his hand to the place, a finger of which was cut to the bone—that it was a fortnight before he knew that he had lost his ear, his opinion all along having been that in that operation they intended to cut his throat & believed they had done it—that one of them said the Villian is dead, another Damn him we have done for him, and a third uttered some words but his senses then failed him & he does not recollect what they were.“This was the whole of the Evidence given by him in Court in the cross-examination great stress was laid upon his positive manner of swearing to Major Disney in disguise upon the transient view which by his own account he had of him, and under the circumstances of terrour and confusion which such an appearance must have occasioned; to which he answered that he had time in the hall before any blow was given to take a distinct view of him, and that he actually did do it, and tho’ it was true he had a crape over his face, yet it was tied so close that he discerned the features and Lineaments of it very perfectly and that he was positive it was Mr. Disney, of his dress other than the crape upon his face he could give no account, and then he was questioned if he had not often declared that he knewnobody but upon slight surprise he said that he remembered Mr. Disney perfectly the next morning, but that he mentioned him to nobody but Mrs. Walker, charging her at the same time to conceal it, because he thought he had suffered by her in discretion in mentioning the name of another Person whose influence with People in Power had prejudiced the inquiry which was then making into the affair.“Mrs. Walker confirmed all the circumstances of their manner of coming in & swore as directly to Major Disney, that Lieut. Hamilton (as she did for some time believe but has since had occasion to think she was mistaken) was the first that entered that she saw Major Disney among a Groupe of figures very distinctly with a crape over his face and dressed in a Canadian Cotton Night Gown.“Magovock went thro’ his story as contained in his affidavit a copy of which has been transmitted to your Lordship, not without a manifest confusion of his countenance & a trembling in his voice common to those who have a consciousness that they are telling untruly, & a fear of being detected—his cross examination took a great deal of time in the course of which he contradicted all the other witnesses & himself in circumstances so material that I am persuaded he was not himself present at the transaction.“Major Disney proved by several witnesses, Dr. Robertson, Madam Landrief, Madam Campbell & Mrs. Howard that he spent that afternoon from 5 till ½ past 9 when he was sent for by Genl. Burton (he being town Major, upon the uproar that this affair had occasioned) at the house of Dr. Robertson—it was a particular festival with the French of whom the company was mostly composed, that he danced ’till supper time with Madam Landrief in the midst of which Genl. Burton’s servant came & called him out—they spoke all very positively to his being present the whole time & the impossibility that he could be absent for 5 minutes without their knowing it.“Upon this evidence the Jury went out of Court and in about an hour returned with their Verdict Not Guilty—In justice to them and to Major Disney I must declare that I am perfectly satisfied with the Verdict.“Mr. Walker’s violence of temper and an inclination to find People of rank in the Army concerned in this affair, has made him a Dupe to the artifices of a Villian whose story could not have gained credit but in a mind that came too much prejudiced to receive it, the unhappy consequence of it I fear will be that by mistaking the real objects of his Resentments the public will be disappointed in the satisfaction of seeing them brought to justice.“I should inform Your Lordship that the G. Jury inflamed with Mr. Walker’s charge against them are preparing to bring in several actions for words and have presented both him and Mrs. Walker for Perjury—I have endeavoured to put a stop to both and I hope I shall succeed.“I have the honour to be“My Lord“Yr. Lordship’s most obedt & humble servant,“W. Hey.”
“The bill against Major Disney being returned on a Monday, I appointed Wednesday for his trial, his Jury, after some few challenges on both sides, was composed of very reputable English merchants residing at Montreal, of very fair characters & as unprejudiced as men could be who had heard so much of so interesting a story.
“The only evidence that affected Major Disney was that of Mr. & Mrs. Walker & Magovock, the substance of which I will take the liberty to state to yr. Lordship as shortly & as truly as my notes & my memory will enable me to do, all the other witnesses speaking to the fact as committed by somebody without any particular knowledge of Major Disney.
“The narrative will perhaps be less perplexed—The house opens with two doors, one a strong one next the street, (within that a sashed one), into the hall where the Family were at supper when the affair began; short on the right hand at the entrance from the street are folding doors which lead into a Parlour, at the further end of which Fronting the Folding doors is ye door of the bed chamber where Mr. Walker keeps his fire arms of which he has great numbers ready loaded. In the hall almost fronting the street doors, are 2 which lead into a kitchen & a back yeard, through which Mrs. Walker & the rest of the family separately made their escape very soon after the entrance of the Ruffians.
“The account which Mr. Walker gave to the Jury upon the trial was that on the 6th of Decr. 1764 at ½ past 8 in the evening Mrs. Walker looked at her watch and said it was time to go to supper—that the cloth was laid in the hall but that he not having been very well that day she was persuading him to stay & eat his supper in the Parlour—that they staid about 10 or 15 minutes in this and other conversation & then went into the hall to supper—that he sat with his back to, & very near the street door—that he had been but a very little time at supper when he heard a rattling of the latch of the door as of Persons wanting to come in in a hurry—that Mrs. Walker said Entre, upon which the outward door was thrown open & thro’ the sash of the inward one he saw a great number of People disguised in various ways, some with little round hats others with their faces blacked, and others with crapes over their faces—that he had time to take so much notice of them as to distinguish 2 Persons whose faces tho’ blacked he was sure he should know again if he saw them—that they burst the inward door & several of them got round to the doors leading to the Parlour as designing to cut off his retreat into that room—that upon turning his head towards that room he received from behind a blow which he believes was given with a broad sword,—that he passed thro’ them into the Parlour receiving many wounds in the passagegot to the further end of the room near the chamber door before which stood 2 men who had got before him & prevented his entrance into it—that these 2 with others who had followed him striking and wounding all the way, sett upon him & forced him from the door into window, the curtains of which entangled itself round him and he believes prevented their dashing his brains out against the wall, that he received in the whole no less than 52 contusions besides many cuts with sharp instruments—that he believes during the struggle in the window he was for some little time deprived of his senses, sunk in stupefaction or stunned by some blow, till he heard a voice from the opposite corner of the room say ‘Let me come at him I will dispatch the Villian with my sword’ that this roused him and determined him to sell his life as dear as he could—that ’till this time tho’ he had apprehended & experienced a great deal of violence, he did not think they intended to take away his life because he had seen Major Disney in the outer room & knowing he had done nothing to disoblige him, he did not believe that he would have been amongst them if they had intended to murther him—that he broke from the persons who held him in the window & advanced towards the Part of the room from whence the voice came where 2 persons were standing with their swords in a position ready for making a thrust at him, but does not know whether they actually made a Pass at him or not, that he put by one of their swords with his left hand upon which they both retreated into the corner—that his Eyes at this time being full of blood, he was not capable of distinguishing the features of a face with great accuracy, but from the size & figure & gesture of the person whose sword he parried & from whom he believes the words came, he thought it to be Major Disney—that several of them then seized him at once (one of them in particular taking him up under the right thigh) and carried him towards the fire place with the intention as he believed to throw him upon the fire—that the marks of his bloody fingers were upon the jamb of the chimney—that he turned himself from the fire with great violence & in turning received a blow on his head which the surgeons say must have been given with a Tomahawk—which felled him to the ground & after that a blow upon his Loins which he feels to this day—that then one of them sat or kneeled by him (he lying at his length upon the floor) andeavouring as he imagined to cut his throat—that he resisted it by inclining his head upon his shoulders & putting his hand to the place, a finger of which was cut to the bone—that it was a fortnight before he knew that he had lost his ear, his opinion all along having been that in that operation they intended to cut his throat & believed they had done it—that one of them said the Villian is dead, another Damn him we have done for him, and a third uttered some words but his senses then failed him & he does not recollect what they were.
“This was the whole of the Evidence given by him in Court in the cross-examination great stress was laid upon his positive manner of swearing to Major Disney in disguise upon the transient view which by his own account he had of him, and under the circumstances of terrour and confusion which such an appearance must have occasioned; to which he answered that he had time in the hall before any blow was given to take a distinct view of him, and that he actually did do it, and tho’ it was true he had a crape over his face, yet it was tied so close that he discerned the features and Lineaments of it very perfectly and that he was positive it was Mr. Disney, of his dress other than the crape upon his face he could give no account, and then he was questioned if he had not often declared that he knewnobody but upon slight surprise he said that he remembered Mr. Disney perfectly the next morning, but that he mentioned him to nobody but Mrs. Walker, charging her at the same time to conceal it, because he thought he had suffered by her in discretion in mentioning the name of another Person whose influence with People in Power had prejudiced the inquiry which was then making into the affair.
“Mrs. Walker confirmed all the circumstances of their manner of coming in & swore as directly to Major Disney, that Lieut. Hamilton (as she did for some time believe but has since had occasion to think she was mistaken) was the first that entered that she saw Major Disney among a Groupe of figures very distinctly with a crape over his face and dressed in a Canadian Cotton Night Gown.
“Magovock went thro’ his story as contained in his affidavit a copy of which has been transmitted to your Lordship, not without a manifest confusion of his countenance & a trembling in his voice common to those who have a consciousness that they are telling untruly, & a fear of being detected—his cross examination took a great deal of time in the course of which he contradicted all the other witnesses & himself in circumstances so material that I am persuaded he was not himself present at the transaction.
“Major Disney proved by several witnesses, Dr. Robertson, Madam Landrief, Madam Campbell & Mrs. Howard that he spent that afternoon from 5 till ½ past 9 when he was sent for by Genl. Burton (he being town Major, upon the uproar that this affair had occasioned) at the house of Dr. Robertson—it was a particular festival with the French of whom the company was mostly composed, that he danced ’till supper time with Madam Landrief in the midst of which Genl. Burton’s servant came & called him out—they spoke all very positively to his being present the whole time & the impossibility that he could be absent for 5 minutes without their knowing it.
“Upon this evidence the Jury went out of Court and in about an hour returned with their Verdict Not Guilty—In justice to them and to Major Disney I must declare that I am perfectly satisfied with the Verdict.
“Mr. Walker’s violence of temper and an inclination to find People of rank in the Army concerned in this affair, has made him a Dupe to the artifices of a Villian whose story could not have gained credit but in a mind that came too much prejudiced to receive it, the unhappy consequence of it I fear will be that by mistaking the real objects of his Resentments the public will be disappointed in the satisfaction of seeing them brought to justice.
“I should inform Your Lordship that the G. Jury inflamed with Mr. Walker’s charge against them are preparing to bring in several actions for words and have presented both him and Mrs. Walker for Perjury—I have endeavoured to put a stop to both and I hope I shall succeed.
“I have the honour to be
“My Lord
“Yr. Lordship’s most obedt & humble servant,
“W. Hey.”
The report of the trial was printed by Brown and Gilmour at Quebec, it being the second book that appeared in Canada. The first book published is generally believed to be “Catechisme du Diocese de Sens Imprimé a Quebec chez, (Brown and Gilmour).” Brown and Gilmour were the printers of the first journal“The Quebec Gazette” published on June 21, 1764. It was printed with columns of English and French and was issued weekly.
Walker was afterward removed on the consideration of the Council from the commission of the peace at Montreal because of his seditionary tendencies and of the frequent accusations of his insolent and overbearing temper which made it impossible for his brother magistrates to associate with him. General Murray reluctantly consented if for no other reasons than his enemies would otherwise see vindictiveness in his actions.
On the 27th of March, 1766, Walker, who had powerful friends in England, was ordered by His Majesty to be restored to the magistracy. On the same day an order from the privy council was issued by the governor of Michillimackinac and Detroit to give him effectual assistance in his business pursuits. At the same time stringent orders were given for the discovery of the perpetrators of the outrage on him. The government offered a reward of two hundred pounds, and of a free pardon and a discharge from the army to any person informing. Montreal inhabitants offered another three hundred pounds. But there was nothing done.
Between the actual outrage and the final acquittal of Captain Disney, Walker had been a thorn in the flesh to Murray. His dismissal from the bench made him no friend of the Governor and he boasted afterwards that he had influenced Murray’s recall.
The first news of this likely recall came in 1765; on February 3d Murray wrote lamenting that Mr. Walker should have known it before himself.
Murray’s position was an unenviable one; his sympathy with the French Canadians was the basis of the anger of the little knot of powerful merchants against him; he was made the scape-goat for the difficulties arising from the bad working of the unfavorable new civil government. In addition he had troubles with the commandants of Montreal and Three Rivers who as military commanders had much independent authority, over which Murray had no control, much to his chagrin. The constitutional documents of this period contain the petitions signed by twenty-one of the merchants for his recall, and that of the seigneurs for his maintenance. Their description of those allied against Murray runs thus: “A cabal of people who have come in the train of the army as well as clerks and agents for the London merchants.” Their testimony to Murray is his justification. “We were suited in the government of Mr. Murray. We knew his character, we were fully satisfied with his probity and his feelings of humanity; he was fitted to bring your new subjects to a regard for the yoke of your kindly domination by his care to make it light.”
On April 1, 1766, Conway, secretary of the colonies, wrote to Murray requesting his immediate return. He left Quebec on June 28th, leaving the government in the hands of the senior councillor, Lieut.-Col. Aemilius Irving; on the same day there arrived the new bishop, M. Briand to fill the vacancy left by Pontbriand, who died in Montreal before the capitulation.
The result of the Walker outbreak was that Murray’s frequent representations that barracks should be built were listened to and in 1765 they were erected, but hardly so, when in February, 1766, they were burned down with all the stores placed there. A public meeting was called to appeal for shelter for the soldiers, who were again billeted upon the inhabitants, but with the promise that by May 1, houses should be hired for them. On his return to LondonMurray in his report to Shelburne on August 20, 1766, had his revenge on the New England settlers whom he calls broadly the most immoral collection of men he had ever known, and says:
“Magistrates were made and juries composed from four hundred and fifty contemptible sutters and traders. The judge pitched upon to conciliate the minds of seventy-five thousand foreigners to the laws and government of Great Britain was taken from a jail, entirely ignorant of law and of the language of the people.
“* * *On the other hand the Canadians, accustomed to an arbitrary and a sort of military government, are a frugal, industrious and moral race of men who from the just and mild treatment they met with from His Majesty’s military officers that ruled the country for four years past until the establishment of the civil government had greatly got the better of the natural antipathy they had of their conquerers. They consist of the noblesse who are numerous and who pride themselves much upon the antiquity of their families, their own military glory and that of their ancestors. These noblesse are Seigneurs of the whole country and though not rich are in a situation, in that plentiful part of the world where money is scarce and luxury still unknown, to support their dignity. The inhabitants, their tenanciers, who pay only annual quit rent of about a dollar for one hundred acres, are at their ease and comfortable. They have been accustomed to respect and obey the noblesse; their tenure being military they have shared with them the dangers of the field and natural affection has been increased in proportion to the calamities which have been common to both in the country. So they have been taught to respect their Seigneurs and not get intoxicated with the abuse of liberty; they are shocked at the insults which their noblesse and the king’s officers have received from the English traders and lawyers since the civil government took place.”
He adds: “The Canadian noblesse were hated because their birth and behaviour entitled them to respect and the peasants were abhorred because they were saved from the oppression they were threatend with.”
The letter concludes: “I glory in having been accused of war with unfairness in protecting the king’s Canadian subjects and of doing the utmost in my power to gain to my royal master the affections of that great, hardy people whose emigration, if ever it should happen, will be an irreparable loss to this country.”
Though Murray was recalled it must not be assumed that his policy of colonial government was disapproved of by the ministers for it was not until April, 1768, that he relinquished the office of governor in chief. After a time the opposition between the military and the magistrates died down, but the latter now became a fertile source of oppression to the civil population.
Let us then turn our attention to the Montreal justices of the peace. In 1769, reports had reached the Council at Quebec as to the oppresive practices of some of the magistrates of the Montreal district, and in consequence the council addressed to many of them on July 10, 1769, a letter of remonstrance applicable to “those magistrates only who had given occasion for the complaint.”
The circular prepared by a committee of the Council was addressed “To the Justices of the Peace active in and for the district of Montreal.” It opened with a charge that“it appears from facts too notorious to be dispelled that His Majesty’s subjects in general, but more particularly his Canadian subjects, are daily injured and abused to a degree they are no longer able to support nor public justice endure.” The chief charges were of extorting excessive fees from litigants applying freely to the court and that in addition a low class of bailiffs, many of them French Canadians, who provoked and instituted lawsuits among the inhabitants were going about with blank forms signed with the justices’ names ready to be filled up at any moment. Thus abuses were numerous.
In August a committee of the Council sat to consider further the state of the administration of Justice under the justices of peace. A report was prepared and was read on August 29th and September 11th. It was agreed to in the Castle of St. Louis by the council on September 14th, and Acting Attorney General Kneller was instructed to prepare an ordinance on the point.
The report after stating that although the original powers in matters of property given to justices of the peace by the ordinance of September 14, 1764, were exceedingly grievous and oppressive to the subjects, yet even so “the authority given to the Justices hath been both too largely and too confidently entrusted and requires to be retrenched if not wholly taken away.” It then notices “The Justices of Montreal have in one instance, and probably in many others which have passed without notice, assumed to themselves powers of a nature not fit to be exercised by any Summary Jurisdiction, whatsoever, in consequence of which Titles to Land have been determined and possessions disturbed in a way unknown to the laws of England and inconsistent with the solemnity and deliberation which is due to matters of so high and important a nature. And we are not without information, that even where personal property only has been in dispute, one magistrate in particular under pretense that it was at the desire and request of both the contending parties has by himself exercised a jurisdiction considerably beyond what the ordinance has allowed even to three Justices in full court at their Quarter Sessions.
“From an omission of a similar nature and for want of ascertaining the manner in which their judgments were to be inforced, we find the Magistrates to have assumed another very high and dangerous Authority in the exercise of which Gaols are constantly filled with numbers of unhappy objects and whole families reduced to beggery and ruin.”
Later the report refers to evils “which will probably always be the case when the office of a Justice of Peace is considered as a lucrative one and must infallibly be so when it is his principal, if not, only dependence.”
One consequence of the report was the appointment in the ordinance of a Court of Common Pleas to be held before judges constantly residing in the town of Montreal. This court was now to be independent of, and with the same powers as, that at Quebec. Hitherto the latter had held adjourned meetings on different days at Montreal. The object was to give inexpensive, speedy and expert hearing to Montrealers.
The ordinance passed in the council on February 3, 1770, was translated and soon appears in English and French in the “Gazette.” When it appeared in Montreal it roused strong indignation among the magistrates whose powers were now curtailed. A memorial signed by fifty signatures only was presented on the part of “merchants and others of the city of Montreal” with twenty objections to the Ordinance. Pierre du Calvet, a French Huguenot magistrate, was one of the indignant protestors and his usual high-flown style characterizes his memorial.According to Sir Guy Carleton’s statement to the deputation they had issued handbills calling a meeting of the people to discuss grievances, they had importuned and even insulted several French Canadians because they would not join them. Carleton who had now succeeded Murray in the Government of Canada warned them that they were acting against their own interests, that the firm refusal of the Canadians as well as of most of their countrymen plainly showed the opinion the generality of the public entertained. In his letter to Lord Hillsborough of the 25th of April, 1770, Carleton, however, after pointing out the evils caused by the law as administered by the justices says: “Though I have great reason to be dissatisfied with the conduct of some of the justices there are worthy men in the commission of the peace in both districts and particularly in this of Quebec.” (See Brymner’s Canadian Archives Report, 1890, whose abstract is here used.)
To the credit of the better class of Montreal merchants of this period we must clearly dissociate the names of men who like James McGill and others have deserved the city’s most grateful remembrance, from the inferior “grafters,” to use a modern term, then exploiting the people. These were disapproved of by many of their own race. Carleton’s report of them to Lord Hillsborough dated Quebec, 28th of March, 1770, clearly designates the “rascals” of the day. “Your Lordship has already been informed that the Protestants who have settled, or rather sojourned here since the conquest, are composed only of Traders, disbanded soldiers and officers, the latter, one or two excepted, below the Rank of Captains, of those in the Commission of the Peace such as prospered in business could not give up their time to sit as Judges, and when several from accidents and ill-judged undertakings became Bankrupts they naturally sought to repair their broken fortunes at the expense of the people; hence a variety of schemes to increase their business and their own emoluments. Bailiffs of their own creation, mostly French soldiers either disbanded or Deserters, dispersed through the parishes with blank citations, catching at every little feud or dissension among the people, exciting them on to their Ruin and in a manner forcing them to litigate what, if left to themselves, might have been easily accommodated, putting them to extravagant Costs for the Recovery of very small sums; their Lands, at a time there is the greatest scarcity of money and consequently but few Purchasers, exposed to hasty sales for the Payment of the most trifling debts, and the money arising from these sales consumed in exorbitant Fees, while the Creditors reaped little benefit from the Destruction of their unfortunate Debtors. This, My Lords, is but a very faint sketch of the Distresses of the Canadians and the cause of much Reproach to our National Justice and the King’s Government.” (Report Canadian Archives for 1890.)
FOOTNOTES:
1For their action in this case Carleton removed their names from the council.
1For their action in this case Carleton removed their names from the council.
2List of the grand jury of the district of Montreal before which bills were laid against the prisoners charged with the assault on Thomas Walker:Samuel McKay, Esq. (Foreman).M. St. Ours (K. of St. Louis).Isaac Todd.Francis de Bellestre (K. of St. Louis).Louis Mattorell.Mons. Contrecoeur (K. of St. L.).Mons. Niverville (K. of St. L.).Thomas Lynch.Mons. La Bruiere.John Livingston.Jacob Jordan.Mons. Niverville de Trois Rivières.Mons. Normanville.Moses Hazen.Dailbout de Cuisy.Jas. Porteous.Jno. Dumas.Wm. Grant.Samuel Mather.Augustus Bailie.John Jennison.In a P.S. from Sir Guy Carleton to Lord Shelburne it is stated:“The attorney general at the desire of Mr. Walker objected to the Knights of St. Lewis being of the grand jury as not having taken the oath of allegiance, which objection they immediately removed by cheerfully taking them.”
2List of the grand jury of the district of Montreal before which bills were laid against the prisoners charged with the assault on Thomas Walker:
In a P.S. from Sir Guy Carleton to Lord Shelburne it is stated:“The attorney general at the desire of Mr. Walker objected to the Knights of St. Lewis being of the grand jury as not having taken the oath of allegiance, which objection they immediately removed by cheerfully taking them.”
THE PRELIMINARY STRUGGLE FOR AN ASSEMBLY
THE BRITISH MERCHANTS OF MONTREAL
“VERY RESPECTABLE MERCHANTS”—A LEGISLATIVE ASSEMBLY ON BRITISH LINES PROMOTED BY THEM—INOPPORTUNE—VARIOUS MEMORIALS TO GOVERNMENT—THE MEETINGS AT MILES PRENTIES’ HOUSE—CRAMAHE—MASERES—COUNTER PETITIONS.
Trade passed over almost bodily to the English. The records of theChambre de Milice de Montrealat present at Quebec reveal even in the civil disputes during the Interregnum of 1760-63 a boom in trade in Montreal such as those of the past never portrayed.
The early traders have been whipped unmercifully by Murray and Carleton but there were certainly some who were recognized as “very respectable merchants.” The British merchants were first at Quebec at its fall, and soon they also followed to Montreal at the Capitulation. Many were weeded out by failure and the climate, but the residue that remained of the class of the canny mercantile adventurers who always adorn the hour of advancing civilization, with the addition of more solid representatives of the large English houses, was the foundation of the enterprising merchant class of Quebec and Montreal, but especially of the latter centre, which quickly seized the control of the wholesale business, particularly the fur trade, the traffic with the Indians and the foreign commerce. Despite the narrowness of their vision and the jealous grasping after power due to them, they considered, as the conquering body, this small group of men by their superior activity, wealth and political skill came to wield great influence in the city and on the country on the whole well and wisely.
Hitherto, we have had to point out some of the weaknesses of those of the less honourable and unsuccessful merchant class, even of those who became magistrates. It remains now to chronicle the action of a well meaning body of the substantial business men at Montreal toward consolidating the constitutional system of the country and developing it along British colonial lines. Their political foresight was ahead of their time. Yet from the earliest days of British rule the English merchants of Montreal, together with those of Quebec, certainly kept before themselves and the Home Government the need of a representative assembly as promised to them, such as they had been familiar with in other British colonies in America. Unfortunately the desire to have this manned by Protestants only was made too evident from the outset and alienated the sympathy of those of the French Canadians otherwise becoming well disposed. Theirnarrow inherited spirit of intolerance, their conception of British rights, for they came “bearing all the laws of England on their backs,” their belief in their own capabilities, their evident business success and the large capital they invested in Canada,1the strong conviction of the ultimate needs of such an institution, if ever the country was to be reduced to the same uniformity as the other colonies where British institutions flourished, blinded them to the inopportuneness of the hour for the establishment of such an assembly. They forgot, imbued as so many of them were with democratic and republican tendencies, that the New British Province was not an infant colony, but one which had been long in existence and impregnated with French feudalism.
Again the upper classes were against the assembly, and the lower not prepared by education2or desire, to take their share in popular government; much less were they inclined to be permitted to vote for a class who desired openly and not very discreetly to ignore the political existence of their race.
Still the merchants persisted. An opportunity was given by the departure of Carleton, who had asked leave of absence for a few months to place his views directly before the government, but it was not till 1774 that he returned. During that time his delayed presence in London was valuable for consultation in the preparation of the “Quebec Act.” Carleton left behind his first counsellor, a Swiss Protestant, Hector Theophile Cramahé, to act for him. Carleton departed early in August and on the 9th Cramahé issued a proclamation declaring that the command had temporarily devolved upon him. In 1771, on July 21st, Cramahé was appointed Lieutenant Governor. Shortly after Carleton’s departure Cramahé sent two petitions to him to be presented to the King’s Most Excellent Majesty.
The first was that of the Quebec and Montreal British free-holders, merchants and traders on behalf of themselves and others. His Majesty is reminded of his direction to governors in his Royal proclamation of the 7th of October in the third year of his reign, that general assemblies should be called as soon as the state and circumstances thereof would admit, in such manner as is used in the provinces of America under His Majesty’s immediate government. The arguments adduced are, that such an assembly would strengthen the hands of government, give encouragement and protection to agriculture and commerce, increase the public revenue and in time would be a happy means of uniting the new subjects in a due conformity to the British laws and customs.
The memorialists represented: “That Your Majesty’s British subjects residing in this province have set examples and given every encouragement in their power to promote industry, are the principal importers of British manufactures, carry on three-fourths of the trade of this country, annually return a considerable revenue into Your Majesty’s exchequer in Great Britain; and though the great advantages this country is naturally capable of, are many and obvious, for promoting the trade and manufactures of the mother country, yet for some time past both the landed and commercial interests have been declining and if a General Assembly is not soon ordered by Your Majesty to make and enforce due obedienceto laws for encouraging agriculture, regulating the trade, discouraging such importations from the other colonies as impoverish the Province, your petitioners have the greatest reason to apprehend their own ruin as well as that of the province in general.
“That there is now a sufficient number of Your Majesty’s subjects residing in and possessed of real property in this province and who are otherwise qualified to be members of a General Assembly.”
This petition is signed by thirty-one of the principal merchants. It will be noticed that there are only two of these names that appeared on the petition of 1765 for the assembly and the recall of Murray. The whole document is more dignified. The memorialists are men of great weight. Their claim as the developers of commerce is undoubted. The only weakness lay in the concluding clause which is merely the outcome of the traditional intolerance then in vogue but which was to be the chief cause of the delay of their efforts till the act of 1791 at last crowned their efforts. Among the Montreal signatures in the above memorial are those of Alexander Henry, John Porteous, James McGill, Alexander Paterson, Richard Dobie, J. Fraser and Isaac Todd.
The above memorial was set off by that of fifty-nine “Canadian” leaders who appealed for the restoration of their customs and usages according to the laws, customs and regulations under which they were born and which served as the basis and foundations of their possessions. They also ask not to be excluded from offices in the service of the king. The petition is to be presented by Sir Guy Carleton. “It is to this worthy representative of Your Majesty who perfectly comprehends the ambitions of this colony and the customs of this people that we confide our most humble supplications to be conveyed to the foot of your throne.”
The year 1773 saw great activity in the duel; the case of the old and new subjects was being argued in London. The most eminent statesmen and lawyers, state officials, were studying the numerous documents in view of the proposed Quebec act of settlement. The merchants of Montreal and Quebec determined to make a great effort. In the winter of 1772 Thomas Walker, of Montreal, and Zachary Macaulay, of Quebec, had already conferred in London with Masères about the prospect of an Assembly. Mazères, though now a cursitor baron of the exchequer, still kept his interest in Canadian affairs as when attorney general at Quebec. There is no name more prominent among those who contributed to the elucidation of the difficulties of this time than this able man. His Huguenot upbringing, however, somewhat warped his otherwise calm judgment in surveying the French Canadian position, yet his was a warning of the opportunist. “I told them,” wrote Masères to Dartmouth on January 4, 1774, “that I thought a legislative council, consisting of only Protestants and much more numerous than the present, and made perfectly independent of the Governor so as to be neither removable nor suspendible by him on any pretense but only removable by the King in council, would be a better instrument for that province than an assembly for seven or eight years to come, and until the Protestant religion and English manners, laws and affections shall have made a little more progress there and especially an assembly unto which any Catholics shall be admitted.”
The two representatives, however, seemed to have been resolved to push for an Assembly for they were both found to be on the committee organized forthat purpose on October 30, 1773, in Quebec at Miles Prenties’ Inn. The meeting was called by John McCord. The circumstances are related by Cramahé’s letter to Dartmouth of December 13th when he inclosed the final petitions sent to him by the merchants. “About six weeks or two months ago a Mr. McCord from the north of Ireland, who settled here soon after the conquest, where he picked up a very comfortable livelihood by the retailing business in which he is a considerable dealer, the article of spiritous liquors especially, summoned the principal inhabitants of this town that are Protestants to meet at a tavern where he proposed to them, applying for a house of assembly.”
The transactions, of the meeting called by McCord and of the subsequent ones, were recorded and sent to Masères by Quebec and Montreal citizens. He was thought to be the right person to approach as their agent, to have their case ventilated in London. They wrote to him on November 8, 1773, “The British inhabitants of whom we are appointed a committee are of very moderate principles. They wish for an assembly as they know that to be the only sure means of conciliating the new subjects, etc.” How the assembly is to be composed is a matter of the most serious consideration; “They would submit that to the wisdom of His Majesty’s council.”
They had evidently become less exacting in their demands that it should be reserved for Protestants. What they really wanted was the Assembly.
The meeting at Miles Prenties’ in the Upper Town held on October 30th resulted in a committee of eleven being formed to draw up a petition for an assembly. The following were the eleven: William Grant, John Wells, Charles Grant, Anthony Vialars, Peter Fargues, Jenkin Williams, John Lees, Zachary Macaulay, Thomas Walker (of Montreal), Malcolm Fraser (secretary), John McCord (chairman). It was resolved that a copy of the minutes be sent to the gentlemen of Montreal. At the second meeting at Prenties’, November 2d (Tuesday), it was resolved to translate the petition into French and that the principal French inhabitants be invited to meet them at Prenties’ on Thursday, November 4th. It was further resolved to send a copy of the minutes and a draft of the petition by next post to Montreal addressed to Mr. Gray, to be communicated to the inhabitants of Montreal. On Thursday, November 4th, of the fifteen invitations sent out only eight French gentlemen appeared. The translation of the petition was read, and the clause on the composition of the assembly according to His Majesty’s wisdom, doubtless noted. After discussion M. Decheneaux and M. Perras undertook to convene a meeting of their fellow French citizens at 2 o’clock on Saturday next, to interest them in furthering the petition.
On Monday, November 8th, the English committee met at Prenties’. Being anxious to know what measures had been taken by the French on Saturday, Malcolm Fraser sent a note by a bearer to M. Perras, M. Decheneaux being out of town. A brief reply was sent back dated Quebec, 8-10th November, saying that the hasty departure of the vessels for Europe had not permitted him to reply according to his desire; “However I have seen some of my fellow citizens who do not appear to me to be disposed to assemble as some of us could wish. ‘Le grand nombre l’emporte et le petit reduit a prendre patience.’”
The next meeting of the committee was to be called at the discretion of the secretary as“the business will depend on the letters to be received from Montreal.”
Cramahé, explaining to Dartmouth, who had succeeded Hillsborough as Colonial Secretary, the want of cooperation by the French, says: “The Canadians, suspecting their only view was to push them forward to ask, without really intending their participation of the privilege, declined joining them here or at Montreal.” Had the petition asked for the abolition of the religious test and the inclusion of Catholics in the assembly the Canadians would have doubtless cooperated. The petition was presented on December 4, 1773; the Quebec (fifty-two) and Montreal (thirty-nine) signatures are both dated November 29th. It was presented to Cramahé as the Lieutenant Governor and he was prayed in accordance with the powers given the Governor by the Royal proclamation of 1763: “To summon and call a general assembly of the freeholders and planters within your government in such a manner as you in your jurisdiction shall judge most proper.” As the words stand it may be argued that the merchants were ready to forego their Protestantism in favour of a mixed assembly, but evidently the acting Governor had his doubts. Cramahé therefore answered cautiously, as was expected, “That the petition was altogether of too much importance for His Majesty’s Council here to advise at a time when the affairs of the province were likely to become an object of public regulation. The petition and his answer would be transmitted to His Majesty’s Secretary of State.”
The second petition already arranged for, and containing the answer of Cramahé, was prepared and sent to the King’s Most Excellent Majesty, praying him “to direct Your Majesty’s Governor or Commander in Chief to call a general assembly in such manner and of such constitution and form as to Your Majesty, in your Royal wisdom, shall seem best adapted to secure its peace, welfare and good government.” Besides the copy sent through Cramahé to Dartmouth, the committee sent another to Masères to enable him to present their case and to communicate its purport to their mercantile associates in London. The signatures of the Quebec subscribers, dated December 31, 1773, numbered sixty-one, those of Montreal dated January 10, 1774, reached eighty-one.
Cramahé’s comment on these signatures in his letter to Dartmouth reads: “It may not be amiss to observe that there are not above five among the signers to the two petitions who can be properly styled freeholders and the value of four of these freeholds is very inconsiderable. The number of those possessing houses in the towns of Quebec and Montreal, or farms in the country held of the king for some private seigneur upon paying a yearly acknowledgment, is under thirty.”
As an offset, the memorial to the petition sent by the seigneurs and principal Catholics about February, 1774, and made in opposition to an assembly, urges the granting of their request “because we possess more than ten out of twelve of all the seigneuries of the province and almost all the lands of the other tenures or which are holden by rent service.”
In addition to the petition to the king signed by the “ancient and loyal subjects” of Quebec and Montreal, two memorials to Lord Dartmouth were separately sent by the promoting committees at either place. These seemed to have been presented through Masères since they are not indorsed, as were the petitions to the king, as received through Cramahé.
The Montreal memorial urging the furtherance of their petition is dated Montreal, January 15, 1774, and signed by a committee appointed at a generalmeeting of the inhabitants of Edw. W. Gray, R. Huntley, Lawrence Ermatinger, Will Haywood, James McGill, James Finlay, Edward Chinn.
The memorial included a new element, viz., “Your Lordship’s memorialists further see with regret the great danger that children born of Protestant parents are in of being utterly neglected for want of a sufficient number of Protestant pastors and thereby exposed to the usual and known assiduity of the Roman Catholic clergy of different orders who are very numerous and who for their own friends have lately established a Seminary for the education of youths in this province, which is the more alarming as it excludes all Protestant teachers of any science whatever.” The name of James McGill, the founder afterwards of McGill University, is significant, therefore, on this petition.
The counter petition and the memorial accompanying it, signed by sixty-five of the noblesse, followed in February, 1774. Thus the duel went on. We delay recounting its outcome till the case for the Seigneurs is more fully disclosed in the next chapter.
FOOTNOTES:
1Witness the appeal for Murray’s recall. Thomas Walker is said to have brought ten thousand pounds into the province.
1Witness the appeal for Murray’s recall. Thomas Walker is said to have brought ten thousand pounds into the province.
2M. Lothbiniere, the representative of the noblesse in London said that he doubted whether more than four or five persons in a parish could read.
2M. Lothbiniere, the representative of the noblesse in London said that he doubted whether more than four or five persons in a parish could read.
THE QUEBEC ACT OF 1774
THE NOBLESSE OF THE DISTRICT OF MONTREAL
THE GRIEVANCES OF THE SEIGNEURS—MONTREAL THE HEADQUARTERS—“EVERY INTRIGUE TO OUR DISADVANTAGE WILL BE HATCHED THERE”—PETITIONS—CARLETON’S FEAR OF A FRENCH INVASION—A SECRET MEETING—PROTESTS OF MAGISTRATES TODD AND BRASHAY—PROTESTS OF CITIZENS—CARLETON’S CORRESPONDENCE FOR AN AMENDED CONSTITUTION IN FAVOUR OF THE NOBLESSE—THE QUEBEC ACT—ANGLICIZATION ABANDONED.
TheNoblesseof the district of Montreal are now to play a great part in the making of the constitutional history of Canada. They had appreciated the government of Murray and had petitioned for his continuance but in vain. At the same time while thanking the king for the appointment of the Bishop Briand which was a great concession, they asked for two favours: first, the suppression of the Land Register, the expense of which exhausted the colony without its drawing any profit therefrom; second, that all the subjects of this province without any distinction of religion should be admitted to all offices without any other qualifications but those of talent and personal merit; for to be excluded by the state from having any participation in it is not to be a member of the state. This petition was signed by Chevalier D’Ailleboust and thirty-nine other seigneurs and was endorsed as received on February 3, 1767.
The grievance of the seigneurs in the latter request was briefly this: that though the French Canadians were not obliged by the Royal Instructions of 1763 to take the oath of the test of allegiance, supremacy and religious abjuration, yet these oaths were obligatory on all who would hold an appointment under government such as members of the proposed assembly, civil and military officials, etc. Hence the constant effort of the noblesse to remove this odious civil disability continued until in 1774 the act of Quebec made it disappear and saw a formula substituted which was acceptable to all honest and conscientious “new subjects.” The following oath, afterwards taken almost textually by Bishop Briand, in the light of today will be seen to be quite adequate:
“Je, A.B. promets et jure sincèrement que Je serai fidèle et porterai vraie allégeance à Sa Majesté le roi George, que Je le défendrai de tout mon pouvoir contre toutes conspirations perfides et tous attentats quelconques, dirigés contre sa personne, sa couronne et sa dignité; et que Je ferai tous mes efforts pour découvrir et faire connaitre à Sa Majesté, ses heretiers et successeurs, toutes trahisons et conspirations perfides et tous attentats que Jesaurai dirigés contre lui ou chacun d’eux; et tout cela, Je le jure sans aucune équivoque subterfuge mental ou restriction secrète, renoncant pour m’en relever, à tous pardons et dispenses de personne ou pouvoir quelconques.“Ainsi que Dieu me soit en aide,”
“Je, A.B. promets et jure sincèrement que Je serai fidèle et porterai vraie allégeance à Sa Majesté le roi George, que Je le défendrai de tout mon pouvoir contre toutes conspirations perfides et tous attentats quelconques, dirigés contre sa personne, sa couronne et sa dignité; et que Je ferai tous mes efforts pour découvrir et faire connaitre à Sa Majesté, ses heretiers et successeurs, toutes trahisons et conspirations perfides et tous attentats que Jesaurai dirigés contre lui ou chacun d’eux; et tout cela, Je le jure sans aucune équivoque subterfuge mental ou restriction secrète, renoncant pour m’en relever, à tous pardons et dispenses de personne ou pouvoir quelconques.
“Ainsi que Dieu me soit en aide,”
The same form taken from the English was as follows: