Note 57 — Chapter II · CAUSES OF THE AMERICAN WAR OF INDEPENDENCE AND THE QUEBEC ACT (continued 2)

The opponents of the Quebec Act maintained that it took away the right of Habeas Corpus. Thus petitions from English residents in Quebec, dated November 12, 1774, complained, in respect to the Quebec Act, ‘That in matters of a Criminal Nature the Habeas Corpus Act is dissolved:’ and again, ‘That to their inexpressible grief they find, by an Act of Parliament entitled an act for making more effectual provision for the government of the province of Quebec in North America, they are deprived of the Habeas Corpus Act and trial by juries:’ and again, ‘an Act of Parliament which deprives His Majesty’s ancient subjects of all their rights and franchises, destroys the Habeas Corpus Act and the inestimable privilege of trial by juries’ (Shortt and Doughty, pp. 414-18). The Government on the other hand contended that before the Quebec Act, the Statute of Habeas Corpus was not in force in Canada, although, both before and after the Act, the Common Law right existed. Thus Wedderburn, the Solicitor-General, before the Quebec Act was drafted but while the subject matter was being considered by the Government, reported, ‘It is recommended by the Governor, the Chief Justice, and the Attorney-General, in their report, to extend the provisions of the Habeas Corpus Act to Canada. The inhabitants will, of course, be entitled to the benefit of the writ of Habeas Corpus at Common Law, but it may be proper to be better assured of their fidelity and attachment, before the provisions of the statute are extended to that country’ (Ib. 300); and in November, 1783, Governor Haldimand reported that he was going to propose an ordinance for introducing the Habeas Corpus Act, ‘which will remove one of the ill-grounded objections to the Quebec Act, for though that law had never been introduced into the province, people were taught to believe that the Quebec Act had deprived the inhabitants of the benefit of it’ (Ib. 499). The point at issue, and it is not free from doubt, was whether the introduction en bloc of the English criminal law into Canada, brought with it ipso facto the introduction of the Habeas Corpus statute. Haldimand passed his ordinance in 1784 under the title of an ‘Act for securing the liberty of the subject and for the prevention of imprisonments out of this province’. The preamble stated that ‘The Legislature could not follow a better example than that which the Common Law of England hath set in the provision made for a writ of Habeas Corpus which is the right of every British subject in that kingdom’.