The Moral Liberal, Classics Library
Alexander Hamilton: The Works of Alexander Hamilton, Volume 1, 1774: Remarks on the Quebec Bill I and II, 1775.
In compliance with my promise to the public,2 and in order to rescue truth from the specious disguise with which it has been clothed, I shall now offer a few remarks on the act entitled “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 continual depredation from the malice and avarice of those in authority. But when it fell under the dominion of Great 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, one thousand seven hundred and seventy-five.” 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 discontent with their new establishment, or solicited a restoration of 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 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 hereafter shall 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 be all 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 choose to have passed, and their situation will insure 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 economy, and equitable constitution of those 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 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 said province before the year one thousand seven hundred and sixty-four.”
As “it is in the goodness of criminal laws that the liberty of the subject principally depends,”1 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, Lieutenant 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 entirely new would 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 vigor, without the least real or effectual diminution.
It has been denied, with the most palpable absurdity, that the right of trial 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 rights 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 Frances, or Spain, have a right to trial 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 established in the province of Quebec, and an indefinite power vested in the king, to vary and alter these 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.
Having considered the nature of this bill with regard to civil government, I am next to examine it with relation to religion, and to endeavor to show 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, etc., and that the clergy of the said Church may hold, receive, and enjoy their accustomed dues and rights,” etc.
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 italicized. 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 parishioners 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 withhold 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 correlative 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 Roman 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 of 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 uncontrollable 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 ever so much 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 consists 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, etc.) 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 Roman 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 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 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 and remainder of them is to be applied toward the encouragement of the Protestant religion; but when they have had their wonted dues, I fancy it will puzzle the administration, by any effort of political chemistry, to produce the rest, or remainder. Suppose, for instance, A made an actual settlement of a hundred pounds on B; and, by a subsequent act, should declare that B should 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 shown, is nothing. So that the seeming provision in favor of the Protestant religion is entirely 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 entirely 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 favorable impressions of British justice and honor,”—if these reasons be admitted as true, and allowed their greatest weight, they only prove that it might be just and politic 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 silenced.
This act develops the dark designs of the ministry more fully than any thing they have done, and shows 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 the administration; and by means of the dominion they possessed over the minds of the laity, together with the appearance of good-will toward 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 afterward that of Great Britain itself. It was necessary to throw out some such lure to reconcile them to the exactions of that power which has been communicated to the king, and which the emergency of the times may require in a very extensive degree.
The future policy of it demands particular attention. The nature of its 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 settlers, of whatever 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 innumerable hosts of neighbors, disaffected to them, both because of difference in religion and government. How dangerous their situation would be, let every man of commonsense judge.
What can speak in plainer language the corruption of the British Parliament than this 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 a 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 those who countenance and favor their religion, will be the voluntary instruments of ambition, and will be ready, at all times, to second the oppressive designs of the 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 behooves 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 Scylla; and by that means, be led blindfold into a real and destructive Charybdis.
An Act to Regulate the Government of Quebec. Passed by Parliament in 1774.
Hamilton wrote for Holt’s Journal for some time before he published his answers to the Farmer. His first article was on the destruction of the tea at Boston, and he continued to write in the newspapers during the year. After the appearance of the “Farmer” pamphlets he became locally famous, and his “promise” probably refers to some pledge made by him in the Journal. The Quebec Bill was odious to the colonists on account of its liberty toward the Catholic population of Canada, and it was to this feeling that Hamilton appealed, in these remarks, in order to still further arouse hostility to England. The bill also formed a bad precedent by its arbitrary method of handling colonial affairs.
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. The copyright for the original of this document is held in the Public Domain. Font, formatting, spelling modernizations, typo/transcription corrections, and explanatory footnotes for this version of ”The Works of Alexander Hamilton” Copyright © 2011 Steve Farrell and The Moral Liberal.