Remarks on the Quebec Bill
By Alexander Hamilton
Remarks on the Quebec Bill: Part One
By the Author of The Farmer Refuted, &c.
[New York, June 15, 1775]
In compliance with my promise to the public, and in order to rescue truth from the specious disguise, with which it has been cloathed, I shall now offer a few remarks on the act, intitled, “An Act for making more effectual provision, for the government of the province of Quebec, In North-America” whereby, I trust, it will clearly appear, that arbitrary power, and its great engine the Popish Religion, are, to all intents and purposes, established in that province.
While Canada was under the dominion of France, the French laws and customs were in force there; which are regulated in conformity to the genius and complexion of a despotic constitution; and expose the lives and properties of subjects to continued depredations, from the malice and avarice of those in authority: But when it fell under the dominion of Britain, these laws so unfriendly to the happiness of society gave place, of course, to the milder influence of the English laws; and his Majesty, by proclamation, promised to all those who should settle there, a full enjoyment of the rights of British subjects.
In violation of this promise, the act before us declares, “That the said proclamation, and the commission, under the authority whereof, the government of the said province is at present administered, be, and the same are hereby revoked, annulled and made void, from and after the first day of May, 1775.” This abolition of the privileges stipulated by the proclamation was not inflicted as a penalty for any crime, by which a forfeiture had been incurred, but merely on pretence of the present form of government having “been found, by experience, to be inapplicable to the state and circumstances of the province.” I have never heard any satisfactory account concerning the foundation of this pretence: for it does not appear, that the people of Canada, at large, ever expressed a discontentment with their new establishment, or solicited a restoration to their old. They were doubtless, the most proper judges of the matter, and ought to have been fully consulted, before the alteration was made. If we may credit the general current of intelligence, which we have had respecting the disposition of the Canadians, we must conclude they are averse to the present regulation of the Parliament; and had rather continue under the form of government instituted by the royal proclamation.
However this may be, the French laws are again revived. It is enacted, “that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rule for the decision of the same; and all causes, that shall hereafter be instituted, in any of the courts of justice, shall, with respect to such property and rights, be determined agreeably to the said laws and customs of Canada, until they shall be varied and altered, by any ordinances, that shall, from time to time, be passed in the said province, by the Governor, Lieutenant Governor or commander in chief for the time being by and with the advice and consent of the legislative council of the same.” Thus the ancient laws of Canada are restored, liable to such variations and additions, as shall be deemed necessary, by the Governor and council, and as both the one and the other are to be appointed by the King, during pleasure, they will all be his creatures, and entirely subject to his will; which is thereby rendered the original fountain of law; and the property and civil rights of the Canadians are made altogether dependent upon it; because the power communicated of varying and altering, by new ordinances, is indefinite and unlimited. If this does not make the King absolute, in Canada, I am at a loss for any tolerable idea of absolute authority; which I have ever thought to consist, with respect to a monarch, in the power of governing his people according to the dictates of his own will. In the present case, he has only to inform the governor and council what new laws, he would chuse to have passed, and their situation will ensure their compliance.
It is further provided, “that nothing contained, in the act, shall extend, or be construed to extend to prevent or hinder his Majesty, his heirs and successors, from erecting, constituting and appointing, from time to time, such courts of criminal, civil, and ecclesiastical jurisdiction, within, and for the said province of Quebec; and appointing, from time to time, the judges and officers thereof, as his Majesty, his heirs and successors shall think necessary, for the circumstances of the said province.”
Here a power of a most extraordinary and dangerous nature is conferred. There must be an end of all liberty, where the Prince is possessed of such an exorbitant prerogative, as enables him, at pleasure, to establish the most iniquitous, cruel, and oppressive courts of criminal, civil, and ecclesiastical jurisdiction; and to appoint temporary judges and officers, whom he can displace and change, as often as he pleases. For what can more nearly concern the safety and happiness of subjects, than the wise œconomy and equitable consitiution of these courts, in which, trials for life, liberty, property and religion are to be conducted? Should it ever comport with the designs of an ambitious and wicked minister, we may see an inquisition erected in Canada, and priestly tyranny may hereafter find as propitious a soil, in America as it ever has in Spain or Portugal.
But, in order to varnish over the arbitrary complexion of the act, and to conciliate the minds of the Canadians, it is provided, that “whereas the certainty and lenity of the criminal law of England, and the benefits and advantages resulting, from the use of it, have been sensibly felt by the inhabitants, from an experience of more, than nine years; therefore, the same shall be administered, and shall be observed, as law, in the province of Quebec, to the exclusion of every rule of criminal law, which did, or might prevail, in the said province, before the year 1764.”
As “it is on the goodness of criminal laws, that the liberty of the subject principally depends,” this would have been an important privilege, had it not been rendered uncertain and alienable, by the latter part of the same clause, which makes them “subject to such alterations and amendments, as the Governor, Lieut. Governor, and Commander in Chief, for the time being, by and with the advice and consent of the legislative council of the same, shall, from time to time, cause to be made therein.” Under the notion of necessary alterations and amendments, the King, through the medium of his creatures, the Governor and Council may intirely new mould the criminal laws of Canada, and make them subservient to the most tyrannical views: So that, in this respect also, the principle of arbitrary power, which is the soul of the act, is uniformly maintained and preserved, in full vigour, without the least real, or effectual diminution.
It has been denied, with the most palpable absurdity, that the right of trials by juries is taken from the Canadians. It is said, that the provincial legislature of Canada may introduce them, as soon as they please; and it is expected, that they will, as “soon as the inhabitants desire them, or the state of the country will admit of them.” A civil right is that, which the laws and the constitution have actually conferred, not that, which may be derived, from the future bounty and beneficence of those in authority. The possibility that the legislature of Canada may hereafter introduce trials, by juries, does not imply a right, in the people, to enjoy them. For, in the same sense, it may be said, that the inhabitants of France or Spain have a right to trials by juries; because it is equally in the power of their legislatures to establish them.
Since therefore it is apparent, that a system of French laws has been re-established, in the province of Quebec, and an indefinite power vested in the King, to vary and alter those laws, as also to constitute such courts of criminal civil and ecclesiastical jurisdiction, and to introduce such a form of criminal law, as he shall judge necessary; I say since all this is deducible, from the express letter of the act; or in other words, since the whole legislative, executive, and judiciary powers are ultimately and effectually, though not immediately, lodged in the King, there can be no room to doubt, that an arbitrary government has been really instituted throughout the extensive region now comprised in the province of Quebec.
Remarks on the Quebec Bill: Part Two
By the Author of The Farmer Refuted, &c.
[New York, June 22, 1775]
Having considered the nature of this bill, with regard to civil government, I am next to examine it with relation to religion, and to endeavour to shew, that the Church of Rome has now the sanction of a legal establishment, in the province of Quebec. In order to do this the more satisfactorily, I beg leave to adopt the definition given of an established religion, by a certain writer, who has taken great pains to evince the contrary. “An established religion,” says he, “is a religion, which the civil authority engages, not only to protect, but to support.” This act makes effectual provision not only for the protection, but for the permanent support of Popery, as is evident from the following clause, “And for the more perfect security and ease of the minds of the inhabitants of the said province, it is hereby declared, that his Majesty’s subjects professing the religion of the church of Rome in the said province, may have, hold, and enjoy, the free exercise of the religion of the church of Rome, subject to the King’s supremacy, &c. and that the clergy of the said church may hold, receive and enjoy their accustomed dues and rights, &c.”
This is represented as a bare permission to the clergy, to enjoy the usual emoluments of their functions; and not as a legal provision for their support. Much stress seems to be laid on the word may which is commonly italickised. But though the phraseology be artful, yet it is easy to perceive, that it operates to the same effect, as if it had been more positive and emphatical. The clergy may hold, receive and enjoy their accustomed dues and rights. They may, if they please: It is at their option, and must depend upon their will; and consequently there must be a correspondent obligation upon their parishoners, to comply with that will and to pay those dues, when required. What the law gives us an unconditional permission to enjoy, no person can legally withold from us. It becomes our property, and we can enforce our right to it. If the legislature of this colony were to decree, that the clergy of the different denominations may hold, receive and enjoy tithes of their respective congregations, we should soon find, that it would have the same efficacy, as if it were decreed, that the several congregations should pay tithes to their respective clergy. For otherwise the legislature might confer a right, which had no co-relative obligation, and which must therefore be void and inefficacious. But this is contradictory and impossible.
“Tithes in Canada (it is said) are the property of the Romish Church; and permitting a tolerated church to enjoy its own property, is far short of the idea of an establishment.” But I should be glad to know, in the first place, how tithes can be the property of any but an established church; and, in the next, how they came to be the property of the Romish Church, in Canada, during the intermediate space between the surrender of that province to the English and the passing of this act. Nothing can be deemed my property, to which, I have not a perfect and uncontrolable right by the laws. If a church have not a similar right to tithes, it can have no property in them; and if it have, it is plain the laws must have made provision for its support, or in other words must have established it.
Previous to the surrender of Canada, the Catholic religion was established there, by the laws of France; and tithes were on that account the legal property of the church of Rome; and could not be withheld by the laity, though eversomuch disposed to it. But, after the surrender, this circumstance took a different turn. The French laws being no longer in force, the establishment of the Romish church ceased of course, and, with it, the property which it before had in tithes. It is true, the clergy may have continued to receive and enjoy their customary dues; tithes and other perquisites; but they were not, for all that, the property of the church, because it had lost its legal right to them; and it was at the discretion of the laity to withhold them, if they had thought proper, or to abridge them, and place them upon a more moderate footing. Their voluntary concurrence was necessary, to give their priests a right to demand them, as before. But by the late act, this matter is again put into its former situation. Tithes are now become the property of the church as formerly; because it again has a legal claim to them, and the conditional consent of the people is set aside. Thus we see, that this act does not in fact, permit “a tolerated church to enjoy its own property;” but gives it a real and legal property in that, which it before held, from the bounty and liberality of its professors; and which they might withhold or diminish at pleasure. And this, in the most proper sense, converts it into an establishment.
The characteristic difference between a tolerated and established religion consist in this—With respect to the support of the former, the law is passive and improvident; leaving it to those, who profess it, to make as much, or as little provision, as they shall judge expedient; and to vary and alter that provision, as their circumstances may require. In this manner, the Presbyterians and other sects are tolerated in England. They are allowed to exercise their religion without molestation; and to maintain their clergy as they think proper. These are wholly dependent upon their congregations, and can exact no more than they stipulate and are satisfied to contribute. But with respect to the support of the latter, the law is active and provident. Certain precise dues (tithes, &c.) are legally annexed to the clerical office, independent on the liberal contributions of the people; which is exactly the case with the Canadian priests, and therefore no reasonable impartial man will doubt, that the religion of the church of Rome is established in Canada. While tithes were the free, though customary, gift of the people, as was the case before the passing of the act in question, the Romish church was only in a state of toleration. But when the law came to take cognizance of them; and, by determining their permanent existence, destroyed the free agency of the people; it then resumed the nature of an establishment, which it had been divested of, at the time of the capitulation.
As to the Protestant religion, it is often asserted, that ample provision has often been made, by the act, for its future establishment; to prove which, the writer before mentioned, has quoted a clause, in the following mutilated manner, “It is provided (says he) that his Majesty, his heirs, or successors, may make such provision out of the accustomed dues or rights, for the encouragement of the Protestant religion, and for the maintenance of a Protestant clergy, within the said province, as he, or they shall, from time to time, think necessary and expedient.”
It must excite a mixture of anger and disdain, to observe the wretched arts, to which a designing administration and its abettors are driven, in order to conceal the enormity of their measures. This whole clause, in its true and original construction, is destitute of meaning; and was evidently inserted for no other end, than to deceive, by the appearance of a provident regard for the Protestant religion. The act first declares, “That his Majesty’s subjects professing the religion of the Church of Rome may have, hold and enjoy the free exercise of their religion; and that the clergy of the said church may hold, receive and enjoy their accustomed dues and rights.” Then follows this clause:
“Provided nevertheless, that it shall be lawful for his Majesty, his heirs and successors, to make such provision out of the rest of the said accustomed dues and rights, for the encouragement of the Protestant religion, for the maintenance and support of a Protestant clergy, within the said province, as he, or they shall, from time to time, think necessary and expedient.” Thus we see, the Romish clergy are to have, hold and enjoy their accustomed dues and rights, and the rest, or remainder of them is to be applied towards the encouragement of the Protestant religion, but when they have had their wonted dues, I fancy it will puzzle administration, by any effort of political chymistry, to produce the rest or remainder. Suppose for instance, A had made an actual settlement of an hundred pounds upon B and, by a subsequent act, should declare that B should still continue to hold and enjoy his accustomed and annual bounty, and that the rest of the said bounty should be given to C, it is evident, that C would have nothing, because there would be no rest whatever. Exactly parallel and analogous is the case in hand. The Romish Priests are to have their accustomed dues and rights; and the rest of the said dues and rights is to be dedicated to the encouragement of the Protestant religion.
In the above recited quotation, there is a chasm, the words the rest of being artfully omitted, to give the passage some meaning, which it has not in itself. With this amendment, the sense must be, that his Majesty might appropriate what portion of the customary revenues of the Romish clergy, he should think proper, to the support and maintenance of protestant churches: But according to the real words of the act, he can only devote the rest, or remainder of such revenues to that purpose, which, as I have already shewn, is nothing: So that the seeming provision in favour of the protestant religion is intirely verbal and delusory. Excellent must be the encouragement, it will derive from this source!
But this is not all: Had there been really provision made, to be applied at the discretion of his Majesty, I should still consider this act as an atrocious infraction on the rights of Englishmen, in a point of the most delicate and momentous concern. No protestant Englishman would consent to let the free exercise of his religion depend upon the mere pleasure of any man, however great or exalted. The privilege of worshipping the deity in the manner his conscience dictates, which is one of the dearest he enjoys, must in that case be rendered insecure and precarious. Yet this is the unhappy situation, to which the protestant inhabitants of Canada are now reduced. The will of the King must give law to their consciences. It is in his power to keep them for ever dispossessed of all religious immunities; and there is too much reason to apprehend, that the same motives which instigated the act, would induce him to give them as little future encouragement as possible.
I imagine, it will clearly appear from what has been offered, that “the Roman catholic religion instead of being tolerated as stipulated by the treaty of peace, is established” by the late act; and that the protestant religion has been left intirely destitute and unbefriended in Canada. But if there should be any, who think, that the indulgence granted does not extend to a perfect establishment, and that it may be justified by the terms of the treaty and the subsequent conduct of the Canadians; and if they should also be at a loss to perceive the dangerous nature of the act with respect to the other colonies, I would beg their further attention to the following considerations.
However justifiable this act may be in relation to the province of Quebec with its ancient limits, it cannot be defended by the least plausible pretext, when it is considered as annexing such a boundless extent of new territory to the old. If a free form of government had “been found by experience, to be inapplicable to the state and circumstances of the province”; and if “a toleration less generous, although it might have fulfilled the letter of the articles of the treaty, would not have answered the expectations of the Canadians, nor have left upon their minds favourable impressions of British justice and honour:” if these reasons be admitted as true, and allowed their greatest weight, they only proved, that it might be just and polite to place the province of Quebec alone, with its former boundaries, in the circumstances of civil and religious government, which are established by this act. But when it is demanded why it has also added the immense tract of country that surrounds all these colonies, to that province, and has placed the whole under the same exceptionable institutions, both civil and religious, the advocates for administration must be confounded and silent.
This act develops the dark designs of the ministry more fully than any thing they have done; and shews, that they have formed a systematic project of absolute power. The present policy of it is evidently this. By giving a legal sanction to the accustomed dues of the priests, it was intended to interest them in behalf of administration; and by means of the dominion they possess over the minds of the laity, together with the appearance of good will towards their religion, to prevent any dissatisfaction, which might arise from the loss of their civil rights, and to propitiate them to the great purposes in contemplation; first the subjugation of the colonies and afterwards that of Britain itself. It was necessary to throw out some such lure, to reconcile them to the exertions of that power, which has been communicated to the King, and which the emergencies of the times may require in a very extensive degree.
The future policy of it demands particular attention. The nature of civil government will hereafter put a stop to emigrations from other parts of the British dominions thither, and from all other free countries. The preeminent advantages secured to the Roman catholic religion will discourage all protestant soldiers of whatsoever nation: And on these accounts the province will be settled and inhabited by none, but papists. If lenity and moderation are observed in administering the laws, the natural advantages of this fertile infant country, united to the indulgence given to their religion, will attract droves of emigrants, from all the Roman catholic states in Europe; and these colonies, in time, will find themselves encompassed with innumerous hosts of neighbours, disaffected to them, both because of difference in religion and government. How dangerous their situation would be, let every man of common sense judge.
What can speak in plainer language, the corruption of the British Parliament, than its act; which invests the King with absolute power over a little world, (if I may be allowed the expression) and makes such ample provision for the popish religion, and leaves the protestant, in such dependent disadvantageous situation that he is like to have no other subjects, in this part of his domain, than Roman catholics; who, by reason of their implicit devotion to their priests, and the superlative reverence they bear to those, who countenance and favour their religion, will be the voluntary instruments of ambition; and will be ready, at all times, to second the oppressive designs of administration against the other parts of the empire.
Hence while our ears are stunned with the dismal sounds of New-England’s republicanism, bigotry, and intolerance, it behoves us to be upon our guard against the deceitful wiles of those, who would persuade us, that we have nothing to fear from the operation of the Quebec act. We should consider it as being replete with danger, to ourselves, and as threatening ruin to our posterity. Let us not therefore suffer ourselves to be terrified at the prospect of an imaginary and fictitious Sylla, and, by that means, be led blindfold into a real and destructive Charybdis.
Part I Source: https://founders.archives.gov/?q=Project%3A%22Hamilton%20Papers%22%20Author%3A%22Hamilton%2C%20Alexander%22&s=1511311111&r=37
Part II Source: https://founders.archives.gov/?q=%20Author%3A%22Hamilton%2C%20Alexander%22%20quebec&s=1111311111&r=4
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