QUEBEC AND THE BRITISH CROWN

An address delivered before a meeting of the Rockford Institute
in honor of King George III at the
Château Frontenac in the City of Quebec on September 7, 2009
(Posted December 17, 2012)

John Remington Graham, B. A., LL. B.,
of the Minnesota Bar

        Today I speak as a citizen of the United States.  I make no claim of authenticity other than as a friendly observer and constitutional historian, living with my French Canadian wife and our children upon countryside in Quebec.
         It is generally conceded as a fact of diplomatic history that, during the negotiations leading to settlement of the Seven Years War, certain territorial concessions were owed to the French Crown, these being either Guadeloupe and Martinique, or the vast territory of New France.  Louis XV wanted the sugar-rich plantations in the Caribbean Sea. There is a myth that William Pitt the Elder, prime minister of Great Britain, was wise and shrewd enough to demand Canada, but the truth is something else: British diplomats considered Guadeloupe and Martinique more valuable, because they produced large revenues and were excellent naval bases,[1] and, on the other hand, French diplomats considered it a good bargain to take the warm islands in preference to the forbidding upper stretches of North America which were expensive to defend and maintain. Hence, in the fourth article of the Treaty of Paris concluded on February 10, 1763, the King of France abandoned his children then living in Canada, and the unique civilization by them established under the tutelage of the Roman Catholic Church which had from the beginning considered New France as a missionary project.
         There is, in any event, a French nation in North America, and one of the striking features of this nation is that they are an orphaned people, having been abandoned by their royal father in Europe for the sake of more liquid assets. But as painful as this experience has been for them, they have received the invaluable protection of the British Crown, which laid the foundations of constitutional government otherwise not available to them. And the British Crown protected them against the upheavals of the American Revolution and the French Revolution, either of which would easily have destroyed their unique socio-cultural identity. It remains to be seen whether this precious “bijou” or jewel of civilization will succumb or survive in future years against the assaults of those who want to transform Quebec into a politically correct, secular humanist, multicultural mediocrity. But if Quebec is to survive in her uniqueness, she must retain the constitutional imprint which comes from the British Crown.  
          First and foremost, the Crown is an indispensable element of British parliamentary government which is the soul of fundamental law in Canada.
          As a constitutional principle, the Crown is pre-eminent, perfect, and perpetual. The Crown is thus an untouchable guarantor of the rule of law. While serving as Lord Protector Oliver Cromwell was offered the Crown by a group of lawyers and gentry. “The title of Protector,” said one of them, “is not limited by the rule of law; the title of King is.”[2] The Crown cannot be constitutionally used for any wrongful purpose, and the legal meaning of all acts in the name of the Crown should be construed accordingly. And although this or that prince or princess will inevitably die, the Crown always survives without interregnum as a permanent basis of legal order.  In vain do republicans in Canada and Great Britain struggle to explain how the Crown could be replaced. The American framers, who had no choice, did so only with the greatest difficulty and at the cost of important advantages. 
          The Crown is the source of all title to land, hence the original source from which all temporal powers have been delegated to elaborate institutions of government. Even Parliament, said to be capable of anything in law not naturally impossible, exists by leave of the Crown. As King James I granted the first constitution of Virginia in a charter to Sir Thomas Gates and others on April 10, 1606,[3] so King George III granted, in English and French, the first constitution of Canada by royal proclamation of October 7, 1763.[4] These original constitutions of Virginia and Canada vested powers in governors, legislatures, and courts of justice to rule uprightly in the name of the Crown. 
           With the fall of New France, British soldiers and civilians were obliged to deal with the Catholic Church, which was the only indigenous authority then capable of helping them in maintaining civilized order after the departure of French troops and magistrates. Even if not set forth in a formal concordat, a tacit understanding was reached between the British Crown and the Catholic Church, which in substance was that the church would encourage loyalty to the King in exchange for very significant concessions, including the benefits of British parliamentary government, also acceptance of French language, civil law, and culture, and respect for the religious rights of the people.  It was a fabulously successful understanding.  
          The legal marks of this tacit agreement are found, for instance, in the provision of the royal proclamation of 1763 whereby the King paid his troops with land so they could settle in Quebec and become husbands of the daughters of New France.[5]  And in the fifth section of the Statute of 14 George III, Chapter 83 (1774), it was declared “That his Majesty’s subjects, professing the religion of the Church of Rome of and in the said Province of Quebec, may have, hold, and enjoy the free exercise of religion of the Church of Rome, subject to the King’s supremacy.”[6]  It is, therefore, not surprising that, within a few generations of the conquest, many French-speaking, Catholic families in Quebec had fine old English, Scottish, and Irish names, as has been frequent ever since up to the present day. In our time, Quebec has been rich in political leaders with such names as Claude Ryan and Pierre Marc Johnson.   
         Americans have trouble understanding monarchy because of their historical circumstances.  We have been brought up to think of George III as a tyrant, beloved though he was at home, for England never had a more conscientious King. And we have been indoctrinated to think of taxation without representation, contrary to Magna Carta and the Petition of Right, as the cause of the American Revolution. Yet George III himself brought pressure on the House of Lords to secure repeal of the Stamp Act,[7]  and so was as instrumental in that gesture of reconciliation as was William Pitt the Elder in his famous oration before the House of Commons. British historians, if not their American counterparts, have understood that, when hostilities broke out at Lexington, the only imperial tax levied without consent of colonial legislatures was a trivial three-penny tax on tea,[8] which could not possibly have been the cause of major upheaval.
           There certainly was an operative cause for the secession of the American colonies from the British Empire, and the war for independence which followed, but most historians, whether British or American, have had no comprehension of what it was. Attempts to blame the King, as if things would have been better had he been advised by ministers chosen by the House of Commons,[9] or even the elimination of a French military threat by victory in the Seven Years War,[10] lack cogency and credibility.
           In order to understand the driving force behind the American Revolution, it is necessary to give attention to the overlooked economics of Benjamin Franklin. [11] Legal tender money in the American colonies naturally consisted of gold and silver coin minted according to the sterling standard which had been established in the reign of Edward III.  But these colonies had no natural deposits of gold and silver, and they were obliged by the Navigation Acts to trade almost exclusively with the mother country which was more developed. The inevitable consequences for the colonies were a perennial unfavourable balance of trade, and an acute undersupply of money in circulation.  Today we are concerned with the evils of inflation, but then the problem was the opposite. Nor should it be doubted that, as Franklin pointed out, a severe insufficiency of currency is far worse for an economy than a moderate excess, -- hence colonial experiments with paper currency.
             In New England the only discipline on paper currency was legislative discretion, and, as might be expected, their experiment initially lubricated commerce, but eventually produced unacceptable inflation.  But in Pennsylvania, a public monetary authority was established with an objective of producing an annually calculated optimum supply of currency, which was created and sustained by public spending of legal tender bills of credit, based on dedicated tax revenues to pay for the costs of government, and public loans of legal tender bills of credit to private entrepreneurs, these secured by mortgages of land. Repayment on principal caused necessary reflux of currency which in turn opened the way for new loans, and interest paid became government revenue, thus reducing the need for taxes. The teachings of Murray Rothbard notwithstanding, this system was a grand success,[12] but it was broadly prohibited by the British Parliament in the Currency Act passed in the wake of the Seven Years War. 
          This ill-advised Currency Act in turn induced or prevented recovery from chronic recession throughout the American colonies which lasted over many years. Reforms proposed by Franklin were considered in a committee of the whole in the British House of Commons. His commentary was farsighted and informative, but not acted upon. The chronic recession in the American colonies was fertile ground for agitation by so-called “sons of liberty” or “patriots” who included men disappointed by business failures which had been caused by an inadequate money supply.
            And so taxation without representation was not the cause, but a point of pleading a legal excuse for revolution. And, because he was an easy target for provocateurs, George III became an unlucky scapegoat, while the underlying economic causes, which were a real basis for discontent, have gone unnoticed. The American Revolution was in the end an unhappy necessity, but was fortunately led by George Washington, who rather resembled William of Orange during the Glorious Revolution in England. General Washington defeated, while Thomas Jefferson fled from the British army of Lord Cornwallis.[13]While Washington sat in the chair of the Philadelphia Convention as it re-established the American Union on a sound footing, Jefferson lived abroad in France, and so his visionary thinking did not influence the framing of the United States Constitution.
            In any event, Jefferson’s strident harangue against George III in the Declaration of American Independence was an immense injustice. Nor should it be forgotten that George III personally defied his own Parliament[14] when, in conceding American independence on September 3, 1783, he granted the United States a large landed empire to the west of the Appalachians and to the east of the Mississippi, with his paternal blessing, thus assuring the national survival of his American children. Far from being an enemy of his American subjects,  George III was one of the most munificent of the founding fathers of the United States. 
           It is possible to pull from history books many episodes which illustrate the civilizing benefits of the British Crown for Canada in general and Quebec in particular.  I am tempted to discuss the War of 1812, about which I shall say nothing here except that it was a huge moral error of the United States, based on the warped foreign policy of Thomas Jefferson and James Madison when each in turn served as President, both of them disregarding the timeless admonitions of Washington’s Farewell Address.  I shall for my present purpose draw something from more recent history.
          Most of us know something of the antagonisms which erupted during the last quarter of the 20th century between French-speaking and English-speaking citizens in Canada. Notwithstanding anything René Levesque ever said or felt, these antagonisms grew out of over-centralization of the Dominion, arraying nine provinces of Anglo-Canada against Quebec as the geopolitical bastion of French Canada.  
          A powerful nationalist movement then arose in Quebec which repeatedly elected governments and offered two referendums on independence, in the second of which, on October 30, 1995, the vote on secession from the Union was 49.4% “oui,” and 50.6% “non,” --breathtakingly close. Since it had been expected that the latter referendum would fail by a landslide, the result in the second referendum was a great moral victory for the separatists.
           The federal government in Ottawa reacted by asking the Supreme Court of Canada for an advisory opinion on whether Quebec had a constitutional right to secede from the Union. The procedure, called a reference, or “renvoi” in French, derived from the prerogative of the King to ask his judges for their opinion on any serious question of public law. Important points of fundamental law have thus been resolved in Great Britain and in Canada. The Queen’s judges were expected to hold that there is no constitutional right of any province to secede from the Union, whereupon the prime minister of Canada then in power was to carry out his plan of suppressing all lingering ideas of separatism in Quebec by economic, legal, and political sanctions, and, if necessary, martial law or military invasion. Anybody understanding the reality of the American Civil War, as distinguished from the propaganda of Wall Street to justify the conquest of the Old South, could see that this plan was not going to work. 
           But it is understandable why the prime minister of Canada and his cabinet were so confident of what the decision of the Queen’s judges would be:    
           For the centerpiece of fundamental law in Canada is the original British North America Act of 1867, which was an organic statute of the British Parliament exercising authority over territory of the British Empire in North America, including particularly four provinces: Upper Canada or what is now Ontario, Lower Canada or what is now Quebec, New Brunswick, and Nova Scotia. This imperial Act was passed to reorganize and confederate these four provinces into a self-governing Dominion, and thereby enable them to defend themselves from an anticipated third American invasion of Canada. The “armies of freedom” commanded in Washington D. C. had recently destroyed the Southern States in their war for independence.  And so why should they not also gobble up Canada? This original Act has since been amended by the British Parliament on many occasions to accommodate more provinces and to redistribute authority.  And in the last such legislation of the British Parliament, called the Canada Act of 1982, the British North America Acts from 1867 through 1975 were renamed the Constitution Acts of 1867 through 1975, a new Constitution Act of 1982 was adopted, including a Canadian Charter of Rights and Freedoms, and the power of amending the formal Constitution was vested exclusively in legislative bodies within Canada. 
          Sir John Macdonald was the principal architect of the original British North America Act of 1867. He was a man of simple, blunt ideas. He thought that the American Civil War had been caused by a false belief that a State could secede from the Union. He did not know that even the strongest federalists in the Philadelphia Convention, including Alexander Hamilton,[15] James Wilson,[16] and George Washington,[17] had understood that a State could lawfully secede from the Union. Macdonald did not know that the right of secession under the original United States Constitution was intended to preserve peace in time of grave crisis within the Union, and that the American Civil War had occurred because this right of secession had not been respected. And because he misunderstood what had happened in the United States, Macdonald supposed that Canada should become an indissoluble Union with a potent Parliament hovering over quasi-sovereign provinces. 
         When the question of secession was referred to the Supreme Court of Canada, the federal government in Ottawa believed that the judges would simply follow the vision of Sir John Macdonald, and deny Quebec the right to withdraw from the Union.
         The government of Quebec was then formed by the Parti québécois, -- hard line separatists, French nationalists with bunker mentality. They were in an anti-British frame of mind. Their attitude was reflected in the habit of the first separatist premier to smoke smelly cigarettes in the presence of the Queen. This obtuse gesture had little impact, however, because her Majesty is a tough lady, and she speaks excellent French. And the Parti québécois did not know that, lurking within the Crown, were the means of defending their cherished aspirations. The separatist premier of Quebec, in power at the time of the reference on secession, ordered his attorney general not to appear before the Supreme Court, which was probably just as well, for the attorney general had nothing to say.  Even so, the chief justice of Canada appointed a separatist lawyer of the old school to argue the cause of Quebec, for it was constitutionally unthinkable that her Majesty’s subjects, however dissident, should be without proper defense. 
           The key to the rights of Quebec lay in the language of the preamble and the enacting clause of the original British North America Act of 1867. These provisions read, “Whereas the provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom . . . Be it therefore enacted and declared by the Queen’s most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by authority of the same, as follows:”[18] By operation of these words, the grand monuments of British constitutional law and history were imported into Canada by the express sanction of the  British Crown, without which Canada as we now know it would not today exist in the eyes of the law.[19] Accordingly, Magna Carta, the Petition of Right, the Statute abolishing the Star Chamber, the Habeas Corpus Act of 1679, the Acts of the Convention Parliament of 1689, and the Act of Settlement[20] are all part of the fundamental law of Canada.   
           And the fundamental law of Canada, like the fundamental law of Great Britain, includes a number of organic statutes, but beyond the so-called formal Constitution are constitutional customs and constitutional conventions as in the mother country. 
          Constitutional customs are unwritten organic rules which activate, organize, and empower government.  They are taken as part of the common law, and judicially recognized as such. The attributes and prerogatives of the Crown are defined by constitutional customs, which are legally anterior to organic charters and statutes. 
           Constitutional conventions are unwritten organic rules of political interaction between political leaders, deemed by them as necessary for proper functioning of government. The office, powers, and choice of the prime minister, for example, were not even mentioned in the original British North America Act of 1867, but are defined by constitutional conventions, which, however, are not part of the common law, and are ordinarily not part of judicial business. 
          There is one constitutional custom of particular interest here, on which the Crown of Great Britain and Canada securely rests. This constitutional custom arose from the transfer of the Crown from James II, contrary to the fundamental law of England as settled at the beginning of his reign, in favor of William, prince of Orange, and his wife Mary Stuart. And this custom stands in reserve even today as a precept which allows a revolutionary, but peaceful and lawful transformation of government by orderly parliamentary processes in extraordinary circumstances which are easier to illustrate than define. The accession of William and Mary was the main event of the English Revolution of 1688 and 1689, upon which title to the Crown, hence the legitimacy of all government in Great Britain and Canada has ever since depended.
         Without this principle, George III could not have issued his royal proclamation of 1763, Victoria could not have approved the original British North America Act of 1867, and    Elizabeth II could not have approved the Canada Act of 1982.  Every lawyer in Canada must take an oath to uphold the title of Elizabeth II to the Crown.  This oath is no act of servility, for it affirms on the contrary that there can be a constitutional and honorable revolution, as distinguished from an armed, bloody, treasonable, and disorderly revolution. 
         This underlying idea was formulated by Sir William Blackstone in these memorable words:  “When King James the Second invaded the fundamental constitution of the realm, the Convention declared an abdication, whereby the throne was vacant, which induced a new settlement of the Crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress of public oppression. If, therefore, any future prince should endeavor to subvert the constitution by breaking the original compact between King and people, should violate the fundamental laws, and should withdraw himself from the kingdom, we are now authorized to declare that this juncture of circumstances would amount to an abdication, and the throne would thereby be vacant. But it is not for us to say that any one or two of these ingredients would amount to such a situation, for there our precedent would fail us.  In these, therefore, or other circumstances which a fertile imagination may furnish, since both law and history are silent, it behooves us to be silent too, leaving to future generations, whenever necessity and the safety of the whole require it, the exertion of those inherent but latent powers of society which no climate, no time, no constitution, no contract can ever destroy or diminish.”[21]      
           The Crown gives refuge to all who with just cause seek its protection. The Crown protects even French separatists. And so the separatist lawyer pleaded his case for the right of Quebec to secede from Canada in elegant French before the Supreme Court in Ottawa, but quoted, in the original English, the foregoing language of Blackstone. And the principle, he said, may be adapted to the present, and thus allow a lawful withdrawal by Quebec from the Confederation.   
         The historic judgment in the case is reported in the Reference on certain Questions concerning the Secession of Quebec from Canada, [1998] 2 S. C. R. 217. The Queen’s judges advised that, while the province has no right of secession under the formal Constitution of Canada, as was certainly right in point of law, the people of Quebec nevertheless enjoy a constitutional right to aspire for independence, and a constitutional right to enjoy a free and peaceable referendum on independence at public expense whenever their elected government determines; that, if in such a referendum the people of Quebec vote affirmatively by a clear majority on a clear proposition for independence, the government of Canada will have a constitutional duty to negotiate terms of separation or redress of grievances, nor in this situation may the government of Canada threaten or use force of arms; and that, if negotiations fail, and the government of Quebec unilaterally proceeds to independence which is recognized by other nations of the earth, a new constitutional order will then be established.
             In so holding the high court reformulated in modern language the principle of the Glorious Revolution, and adapted it to a new set of circumstances arising more than three centuries after the accession of William and Mary, as Blackstone had allowed would be possible.
            In the wake of this judgment there was a cacophony of legislative dueling between the Parliament of Canada and the National Assembly of Quebec, but the clamor has since abated in the reality that Quebec now has an adjudicated right, based on constitutional custom, of secession from the Union under certain defined circumstances, and that by constitutional conventions she enjoys the status of a distinct society and a nation within Canada. The antagonisms between Anglo-Canada and Quebec are now healed. Accordingly, Quebec enjoys the watch care and respect of both the current prime minister and the current leader of the opposition in Ottawa. By operation of moral causes, the Canadian Confederation now waxes stronger than ever. The dreams of separatism are not dead, for dreams never die, but they are  now in deep and peaceful repose.
         And this success, as a difficult transition in Canadian history, and as a beacon light for the nations of the earth, was made possible by wisdom inhering in the British Crown. 

 

NOTES

1 - As conceded by Sir Winston Churchill, History of the English-Speaking Peoples, Dodd, Mead & Co., New York, 1957, Vol. 3, pp.161-162. 

2 - Ibid., Vol. 2, pp. 310-311. 

3 - The full text is found in William Hening (ed.), Virginia Statutes at Large, Geo. Cochron, Richmond, 1823, reprinted by the University Press of Virginia 1969, Vol. 1, pp. 57-67.  An abbreviated version is found in Henry Steel Commager (ed.), Documents of American History, Prentice Hall, Inc., Englewood Cliffs, N. J., 9th edition 1973, Vol. 1, pp. 8-10.

4 - Reproduced from the Revised Statutes of Canada 1970: Victor Paul (ed.), The Canadian Constitutions from 1763 to 1982, Les constitutions canadiennes de 1763 à 1982, Vic Publications Reg’d., Victoriaville, Qc., 1982, pp. 170-174.  An abbreviated version is found in op. cit. Commager, Vol. 1, pp. 47-50.   

5 - Op. cit. Paul, pp. 171-172. 

6 - Ibid., p. 162. 

7 - Richard B. Morris, Encyclopedia of American History, Harper & Bros., New York, 1953, Vol. 1, p.75. 

8 - Op. cit. Churchill, Vol. 3, pp. 175-176.  See also J. Rufus Fears (ed.), Selected Writings of Lord Acton, Liberty Fund, Indianapolis, 1985, Vol. 1, p. 193. 

9 - As proposed by George Trevelyan, A Shortened History of England, Penguin Books, Baltimore,1959,  pp.  398-399. 

10 - As proposed by Lord Acton, in op. cit. Fears, Vol. 1, pp. 189 and 198.   

11 - See especially Franklin’s essay entitled “A Modest Enquiry Concerning the Nature and Necessity of  a Paper Currency,” and his rejected proposal before the British Parliament for a uniform system of paper currency, disciplined by mortgages on land, for all colonies of England in North America, as reproduced by Leonard Labaree (ed.), The Papers of Benjamin Franklin, Yale  University Press, New Haven, 1959 and later years, Vol. 1, pp. 139-157, and Vol. 11, pp. 204-207.

12 - See, e. g., Richard A. Lester, Monetary Experiments, Princeton University Press, Princeton, 1939, p. 141, cited by John Kenneth Galbraith, Money: Whence it Came, Where it Went, Houghton Mifflin Co., Boston, 1975, p. 54. 

13 - This downplayed episode in Jefferson’s career is related by Burke Davis in The Campaign That Won America: the Story of Yorktown, Eastern Acorn Press, Durham, N. C., 1970, p. 117. Not only did Jefferson flee from Carlton’s dragoons to avoid capture, as was not dishonorable, but he resigned as governor of Virginia after his  escape, leaving command of the militia to another who then prepared the defense of the State.  It is a wonder that Jefferson ever recovered politically from this unhappy incident.    

14 - The particulars were related by General Charles Cotesworth Pinckney in an address to the South Carolina House of Representatives on January 17, 1788, as recorded by Jonathan Elliot (ed.), Debates on the Federal Constitution, J. B. Lippincott & Co., Philadelphia, 2nd edition 1859, Vol. 4, pp. 277-278. 

15 - As is clear enough from The Federalist, Nos. 9, 16, and 78, Mentor Edition from the New American Library, New York, 1961, pp. 74-75, 118, and 469.  

16 - As recorded in op. cit. Elliot, Vol. 2, p. 421 (Pennsylvania Convention, November 26, 1787).

17 - As recorded in op. cit. Elliot, Vol. 4, p. 624 (Jefferson’s Memoirs, April 6, 1792).

 18 - Op. cit. Paul, p. 42. 

19 - See Henri Brun et Guy Tremblay, Droit Constitutionnel, Éditions Yvon Blais, Cowansville, Qc., 4ème édition 2002, pp. 9-17.

20 - Accordingly, in the Reference on the Provincial Court of Prince Edward Island, [1997] 3 S. C. R. 3, it was held that the provision on judicial compensation in the third section of the Statute of 12 & 13 William III, Chapter 3 (1701) governs the proper construction of Section 92(14) of the Constitution Act of 1867. 

21 - Sir William Blackstone, Commentaries on the Laws of England, Edward Christian, London, 1765, Bk. I,   p. 245
 

© John Remington Graham 2009.  Permission is granted to the Rockford Institute to republish for educational purposes.  Permission is also granted to the Young Sanders Center for the Study of the War Between the States in Louisiana to republish and grant permission to republish for educational purposes. -- J. R. G.