Bijuralism as an Assimilation Tool: Lord Durham s Assessment of the Louisiana Legal System

Author:Roger K. Ward

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The author wishes to thank Professor Alain Levasseur for his mentoring and friendship. The author further wishes to extend his appreciation to Dr. Carolyn J. Taylor for all her constructive criticism, encouragement, and unwavering support. Finally, the author wishes to thank Dr. Ruth B. Antosh for introducing him to Lord Durham.

I Introduction

On June 20, 1837, eighteen-year old Princess Alexandrina Victoria of Kent ascended to the throne of the United Kingdom of Great Britain and Ireland following the death of her uncle, King William IV.1 The British public knew little about their new queen because Victoria's overbearing and politically out-of-favor mother had effectively cloistered the young princess behind the impenetrable walls of Kensington Palace throughout much of Victoria's childhood and adolescence. Yet, despite the lack of familiarity with their sovereign, the British welcomed Victoria's accession to the throne and saw her as a harbinger of a gilded age for the United Kingdom and its vast empire.2

Indeed, the people of United Kingdom seemed to have every reason to exude self-confidence in 1837. The British nation was an undisputed world power; its empire encircled the globe, and its people found themselves the fortunate benefactors of a mercantile prosperity unparalleled in the annals of modern history. Britannia not only ruled the waves, as the song goes; it ruled the world.3 The feelings of pride and optimism that the British possessed for their nation and empire carried over in the form of widespread popular support for the young queen.

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Yet, not everyone in the vast British empire celebrated Victoria's coming to the throne.4 As history teaches, imperial Britain was forged in part through military conquest and treachery. Consequently, many people who found themselves subject to the British crown had no cultural, historic, linguistic, religious, political, or legal commonality with the United Kingdom or its monarch.

Some of these people saw the transfer of sovereignty from a man widely regarded as a bibulous dolt to an inexperienced teenager as an opportune time to express dissatisfaction with imperial rule.5Therefore, in 1837, just as Victoria was garnering the reins of empire, long festering resentment and contempt for British rule erupted into open rebellion when the French-speaking population of the province of Lower Canada [present day QuÈbec] took up arms against British authorities.6

The rebellions in Lower Canada rattled the Queen and her ministers. Their concern over events in Lower Canada was heightened as news of similar uprisings against British rule in the adjacent province of Upper Canada [present day Ontario] reached the imperial government in London.7 It was clear both to the neophyte Queen and her ministers that swift, decisive action was necessary if the flames of revolution spreading throughout the Canadian provinces were to be extinguished with minimal damage to the imperial framework. Indeed, in light of the painful lessons that Victoria's grandfather George III learned as a result of his experiences with the insurgent American colonies, the Queen and her government understood only too well the gravity of the situation.8 Mindful of Page 1129 America, both the Queen and her ministers were savvy enough to appreciate the dual importance of crushing the rebellions and stamping out the root causes of discontent that triggered the explosive situation in the first place.

British troops garrisoned in Upper and Lower Canada were quickly and easily able to suppress the rebellions in the provinces, putting an almost immediate end to what had become the first imperial crisis to face the fledgling Queen's government. However, understanding the subcutaneous causes of the unrest in the Canadian provinces would not be as expeditious.

The apparent disloyalty of her Canadian colonies bore heavily on Queen Victoria.9 After consulting with her Prime Minister, Lord Melbourne, the Queen concluded that a thorough assessment of the Canadian provinces was warranted.10 The challenge of analyzing the causes of strife in the Canadian provinces, as well as the responsibility of formulating recommendations to the Crown on how to best avoid future malaise between the people and the provincial governments in Upper and Lower Canada, was offered to Lord Melbourne's political rival, John George Lambton, Lord Durham.11

Initially, Lord Durham declined the appointment. However, after receiving a personal plea from the Queen and being granted near dictatorial powers, Lord Durham accepted the mission and subsequently was appointed Governor-General and High Commissioner of British North America.12

After a minor delay, Lord Durham arrived in Canada on May 27, 1838, and immediately began the painstaking process of restoring the absolute authority of the British Crown in both Upper and Lower Canada.13 Many of Lord Durham's actions proved controversial and he soon found himself alienated from the imperial government in London. Because of this lack of support and poor health, Lord Durham resigned his position as Governor-General after spending only about six months in the Canadian provinces.14 However, whereas Lord Durham had spent much of his time in Canada engaged in the study of the political, economic, cultural, and social composition of the colonies, he believed that he had gained significant insight into the Page 1130 root causes of unrest in Canada. He also concluded that he had developed a firm understanding of what steps needed to be taken to ensure that Upper and Lower Canada remained under the ironclad control of the British Crown.15

Lord Durham's findings, as well as his recommendations, were presented to the Crown on February 11, 1839, in the form of the Report on the Affairs of British North America, commonly referred to as The Durham Report.16 The crux of his findings are found in the famous passage: "I expected to find a contest between a government and a people: I found two nations warring in the bosom of a single state: I found a struggle, not of principles, but of races; and I perceived that it would be idle to attempt any amelioration of laws or institutions until we could first succeed in terminating the deadly animosity that now separates the inhabitants of Lower Canada into the hostile divisions of French and English."17

Writing in an unarguably racist and arrogant manner, Lord Durham derided the French in Lower Canada for clinging to French institutions: "They remain an old and stationary society, in a new and progressive order...They [cling] to ancient prejudices, ancient customs and ancient laws, not from any strong sense of their beneficial effects, but with the unreasoning tenacity of an uneducated and unprogressive people."18Moreover, emphasizing the superiority of British law, commerce, culture, and society, Durham concluded that the North American continent was not big enough for both French and English institutions. If North America were ever to realize its fullest potential, "Lower Canada must be English, at the expense, if necessary, of not being British."19 After all, according to Durham, Lower Canada, as well as the whole of British North America, was "the rightful patrimony of the English people."20

In short, Lord Durham advocated the need for the "inferior" French population of Lower Canada to assimilate:

I entertain no doubts as to the national character which must be given to Lower Canada; it must be that of the British Empire.

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The language, the laws, the character of the North American Continent are English; and every race but the English (I apply this to all who speak the English language) appears there in a condition of inferiority. It is to elevate them from that inferiority that I desire to give to the Canadians our English character.21

To effectuate the assimilation of French-Canadians as quickly as possible, Lord Durham advocated that the imperial parliament pass a bill uniting Upper and Lower Canada under a single parliament. The supposition was that the French-speaking population of Lower Canada would forever abandon their "vain endeavor to preserve a French Canadian nationality," once they were subject to the "vigorous rule of an English majority."22 In 1840, acting on Lord Durham's recommendation, the British Parliament passed the Union Act uniting the Canadian provinces, thus creating an English- speaking majority in the united provinces, thereafter known as Canada East and Canada West.23

Lord Durham's Report on the Affairs of British North America is to French-Canadians what Adolf Hitler's Mein Kampf is to Jews. Its glaring racism, chauvinism, arrogance, and prejudicial views of French institutions and laws, and apparent advocacy for the eradication of the French in Lower Canada have earned Lord Durham undying infamy among French-speaking Canadians.

Although Lord Durham and Adolf Hitler are often compared to one another, the former often portrayed as a nineteenth century version of the latter, they are, in fact, quite different.24 Adolf Hitler advocated the annihilation of Jewish institutions and people from the earth and found his Final Solution in theretofore obscure places such as Auschwitz, Treblinka, and Dachau. In contrast, Lord Durham called for co-existence of French and English people and institutions in Canada. By giving equal footing to both French and English institutions, Lord Durham believed that French-Canadians eventually would comprehend the "hopeless inferiority" of French institutions, particularly French legal institutions, and, consequently, would become Anglicized in an almost imperceptible manner. This Page 1132 benevolent assimilation would result in the extermination of the French language and legal institutions from the North American Continent.

Lord Durham's Final Solution was not found in Canada, or...

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