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6-7 EDWARD VII. SESSIONAL PAPER Mo. 18 ” A. 1907
CLA.ISr.AiDlA.Nr A E C H I V E ^
DOCUMENTS
RELATING TO
THE CONSTITUTIONAL HISTORY OF CANADA
1 7 5 9 – 1 7 9 1
SELECTED AND EDITED WITH NOTES BY
ADAM SHORTT
Professor of Political Science Queen’s University
AND
ARTHUR G. DOUGHTY
Dominion Archivist.
PRINTED BY ORDER OF PARLIAMENT
OTTAWA
PRINTED BY S. E. DAWSON, PRINTER TO THE KING’S MOST
EXCELLENT MAJESTY
1 9 0 7
[Fo. 181907.]
KC203
C25
S
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6-7 EDWARD Vil. SESSIONAL PAPER No 18 A 1907
TABLE OF CONTENTS.
P A G F
INTKOBUCTIOIN ^
Articles of Capitulation, Quebec, Sept 18, 1759, F rench Text 3
n H H English T ranslation 6
Articles of Capitulation, Mont real, Sept 8, 1760, F re nc h Te xt 8
i H English T ranslation 21
Commission as J u d g e to Jacque s Allioi, J a n u a r y 6, 1760, Fre nc h Te xt 29
i i English T ranslation 30
Placa r d from Hi s Excellency, Gen Amhe rst, Sept 22 1760, F r e n c h Text 31
i M English T ranslation 32
P roclamation of Governor M u r ra y, Establishing Milita ry Courts, Oct 31, 1760, F re nc h Text 33
, , H English T ranslation 35
General Mu r ray ‘ s Re p o rt on t he State of t he Gove rnment of Quebec, J u n e 5, 1762 37
Col Bu rton ‘s Repo rt on t he State of Gove rnment of Th ree Rivers, Ap ril, 1762 61
Gene ral Gage’s R e p o rt on t he State of Gove rnment of Mont real, M a r c h 20, 1762 69
T reat y of Pa ri s, F e b 10, 1763, F re nc h Text 73
English T ranslation 84
Pape r s relating to the Establishment of Civil Gove rnment m t he Te r rito ries ceded to B ritain by
the T reat y of 1763
Eg remont to Lo rds of T rade, Ma y 5, 1763 93
Lo rds of T ra de to Eg remont, with Repo rt, J u n e 8, 17b3 97
E g rem o nt to L o r d s of T rade, J ul y 14, 1763 108
Lo rds of T r a d e to Eg remont, with Rep resentation, A u g 5, 1763 110
Hali fax to Lo rds of T rade, Sept 19, 1763 112
Lo rds of T ra de to Halifax, Oct 4, 1763 114
Proceedings in P ri v y Council, Oct 5, 1763 115
Rep o rt on Commissions for Governors, Oct 6, 1763 116
Hali fax to Lo rds of T rade, Oct 8, 1763 119
P roclamation of Oct 7th , 1763 119
E a rl of E g rem o nt to Governor M u r ra y, A u g 13, 1763 123
Passing Governors’ Commissions, Oct 7, 1763 124
Additional clauses m new Commissions, Nov 4, 1763 124
Commission appointing J am e s M u r r a y, Captain Gene ral and Governor m Chief of the P rovince
of Quebec, Nov 21, 1763 126
Inst ructions to Governor Mu r ray, Dec 7, 1763 132
Ordinance of Sept 17, 1764, establishing Civil Courts 149
Governor M u r r a y to E a rl of Halifax, Oct 15, 1764 152
P resentments of t he G ra n d J u r y of Quebec, Oct 16, 1764 153
Stateme nt by F re nc h J u r o r s m reference to the foregoing Pre sentment s, Oct 26,1764, F re nc h Text 156
H H H English T ranslation 159
Add ress of F rench Citizens to t he Ki n g rega rding t he Legal System, J a n 7, 1765, F rench Text 161
i i i English T ranslation 164
Ordinance of Nov 6, 1764 166
Governor M u r ra y to Lo rds of T rade, Oct 29,1764 167
Petition of t he Quebec T rade rs to t he Ki n g 168
Petition of t he London Me rchant s to t he Ki n g 170
Rep o rt of Atto rney and Solicitor Gene ral re Stat u s of R oma n Catholic Subjects, J u n e 10,1765 171
Representation of the Boa rd of T ra de to t he Ki ng, Sept 2, 1765 171
Ordinance of J ul y 1, 1766, to Alte r and Amend Ordinance of Sept 17, 1764 172
Ordinance of J ul y 26, 1766, m addition to Ordinance of Sept 17, 1764 174
Repo rt of Att o r ne y and Solicitor Gene ral (Yo rke and DeGroy) rega rding the Civil Gove rnment
of Quebec, Ap ril 4, 1766 174
Considerations on t he Expediency of P rocu ring an A ct of Pa rliame nt for t he Settlement of the
P rovince of Quebec, by F ranci s Maseres, 1766 179
v CANADIAN ARCHIVES
6-7 EDWARD V t l , A. 190?
PAGE
Irv mg to the Lords of Tiade, Aug 20, 1766 187
Petition of Stigneurs of Montreal to the King, Feb 3 17t>7, French Text 188
, H English Translation 189
Commission of Chief Justice William Hey, Sept 25, 1766 190
Lieut Governor Carleton to Earl of Shelburne, Oct 25, 1766 192
Remonstrance of Members of Council to Lieut Gov Carleton, Oct 13, 1766 193
Lieut Gov Carleton’s reply to remonstrance of Members of Council 194
Lieut Gov Carleton to Generil Gage, Feb 15, 1767 195
Earl of Shelburne to Lieut Gov Carleton, June 20, 1767 196
Lieut Gov Carleton to Earl of Shelburne, Nov 25, 1767 196
Resolution of Privy Council as to Information Required Concerning the Province of Quebec,
Aug 27, 1767 199
Earl of Shelburne to Lieut Gov Carleton, Dec 17, 1767 2ul
Lieut Gov Carleton to Earl of Shelburne, Dec 24,1767 201
Draught of an Ordinance Relating to French Land Tenures 204
Lieut Gov Cirleton to Eail of Shelburne, Jan 20,1768 ¿05
Earl of Hillsborough to Lieut Gov Carleton, March 6,1768 207
Lieut Gov Oaileton to Earl of Shelburne, April 12, 1768 208
Instructions to Governor Carleton 1768 210
Earl of Hillsborough to Governor Carleton, Oct 12, 1768 ¿27
Governor Carleton to Earl of Hillsborough, ISov 20, 1768 227
A Draught of an Intended Report of the Honourable the Governor in Chief ind the Council of
the Province of Quebec to the King concerning the State of the Laws and the Administra
tion of Justice in that Province, by Francis Maseres 228
Attornev General Maseres’ Criticism of Governor Carleton s Report on the Laws of the Province,
1769 258
Report of Lords Commissioners for Trade and Plantations Relative to the State of the Province
of Quebec, June 10, 1769 263
Appendix to Report of Lords Commissioners for Trade and Plantations 274
Report of Committee of the Council on Administration of Law by Justices of the Peace, Sept
11, 1769 276
An Ordinance for the more Effectual Administration of Justice and for Regulating the Courts
of Law m the Province, Feb 1, 1770 280
Petition for a General Assembly 291
Petition for the Restoration of French Law and Custom, French Text 292
English Translation 293
Additional Instruction to Governor Carleton, J 771 295
Earl of Hillsborough to Lieut Gov Cramahe, July 3, 1771 275
Report of Solicitor General Alex Wedderburn, Dee 6, 1772 296
Abstract of such Regulations in Solicitor General’s Report as may be established by Act of Par
liament, Dec 6, 1772 302
Report of Attorney General Edward Thurlow, Jan 22, 1773 305
Plan of a Code of Laws for the Province of Quebec, Reported by the Advocate General, James
Marriott, 1774 310
Lieut Gov Cramahe to Earl of Dartmouth, June 22, 1773 338
Earl of Dartmouth to Lieut Gov Cramahe, Dee 1, 1773 338
Francis Maseres to Earl of Dartmouth, Tan 4, 1774, with Proceedings of Quebec Committee 340
Letter of Committee of English Inhabitants to Maseres 343
Lieut Gov Cramahe to Earl of Dartmouth, Dec 13, 1773 343
Petition to Lieut Gov Cramahe for an Assembly, Nov 29, 1773 345
Lt Governor’s Reply, Dec 11, 1773 346
Petition to the King, for an Assembly, Dec 31, 1773 347
Memorial from Quebec to Earl of Dartmouth, Dec 31, 1773 349
Memorial from Montreal to Earl of Dartmouth, Jan 15, 1774 351
Earl of Dartmouth to Lieut Gov Cramahe, May 4, 1″74 352
Lieut Gov Cramahe to Earl of Dirtmouth, July 15, 1774 353
Petition of French Subjects to the King, French Text, Dec , 1773 354
i English Translation 355
Memorial of French Subjects m support of their Petition French Text 357
i , English Translation 358
TABLE OF CONTEXTS v
SESSIONAL PAPER No. 18
P A G E
Case of the B ritish Me rchant s T ra di n g to Quebec, May, 1774 359
L oi d Mansfield s J u d gm e nt m Campbell vs Hall, 1774 366
Mase ru! to t he Lo rd Chancellor, Ap ril 30, 1774 373
Memo randa and D ra u g ht s of Bills Relating t o the Subject of the Quebec Act, 1774
Memo randum on Gove rnment of Quebec 374
Fi r st D ra u g ht of the Quebec Bill 376
Second M 377
Pioposed Extension of Provincial Limits 381
Thi rd Di a u g ht of the Quebec Bill 382
Notes, on T hi r d D r a u g ht of Quebec Bill 385
The Clause Concerning Religion m t he T hi r d D ra u g ht 386
Lo rd Hillsborough’s Objections to T hi r d D ra u g ht Quebec Bill , 388
E a rl of Da rtm o ut h ‘ s Reply to Lo rd Hillsborough 390
The Quebec Bill, as Ret u r ne d from t he Commons 390
Things which must of necessity be Considered a n d Definitely Settled if the Bill is passed,
F re nc h Text 395
Things which m u st of necessity be Considered and Definitely Settled if t he Bill is passed,
English T ranslation 397
Queries re G-overnment of Quebec 400
The Quebec Act, 14, Geo I I I cap 83 401
Quebec Revenue Act, 14, Geo I I I , cap 88 406
A n Act for amending and explaining an Act to establish a fund towa rds further defraying t h e
charges of t he Administ ration of Justice, and suppo rt of the Civil Gove rnment within t he
Province of Quebec 409
Governor Carleton t o E a rl of Da rtm o ut h, Sept 23, 1774 410
General Gage t o Governor Carleton, Se pt 4, 1774 , 410
Governor Carleton s to Gene ral Gage, Sept 20, 1774 411
E ail of D a rtm o ut h to Governor Carleton, Dee 10 1774 411
Governor Carleton to E a rl of Da rtm o ut h, N o v 11, 1774 412
Petition for t he repeal of t he Quebec Act, Nov 12, 1774
To the Ki n g » 414
T o t he L o r d s 417
To the Commons 417
Inst ructions to Governor Carleton, 1775 419
Plan for t he future management of I n dia n Affairs, referred to in t he 32nd a rticle of t he
foregoing Inst ructions 433
Inst ructions relating to T ra de a n d Navigation 438
Additional Inst ructions, Ma rc h 13, 1775 450
Additional Inst ructions, N o v 14,1775 450
Governor Carleton t o Gene ral Gage, F e b 4, 1775 450
Ea rl of Da rtm o ut h to Governor Caileton, J u n e 7, 1775 452
Governor Carleton to E a rl of Da rtm o ut h, J u n e 7, 1775 453
Lieut Gov C ramahe to E a rl of Da rtm o ut h, Sept 21, 1775 455
Chief Justice H e y to the L o r d Chancellor, A u g 28, 1775 456
Governor Carleton to Lo rd Germain, Sept 28,1776 459
.. , „ Ma y 9, 1777 460
Pla n for the establishment of a Chambe r of Commerce for t he City a n d Dist rict of Quebec,
April 3, 1777 462
Ordinances passed m the Session of t he Legislative Council of Quebec, held m Ja n ua r y, Feb rua ry,
Maich and Ap ril, 1777 463
A n Ordinance for establishing Courts of Civil J u dicat u re m t he P rovince of Quebec, F e b 25,
1777 464
A n Ordinance to regulate t he proceedings m the Courts of Civil J u dicat u re m the P rovince of
Quebec, F e b 25, 1777 4
*>6
A n Ordinance for establishing Courts of C riminal Ju risdiction in t he P rovince of Quebec, Ma rc h
4, 1777 i 471
Petition of Me rchant s for Repeal of Quebec Act, Ap ril 2, 1778 473
‘i CANADIAN ARCHIVES
6-7 EDWARD VI! , A 1907
P A G E .
Inst ructions to Governor Hal dima n d, A p ril 15,1778 474
Additional Inst ruction, Ma rch 29, 1779 476
Additional Inst ruction Ma rch 29, 1779 477
Additional Inst ruction, J ul y 16, 1779 477
Opinions of Membe rs of Council on executing t he Inst ructions of 16th J ul y, 1779 479
Governor Hal dima n d to L o r d Ge rmain, Oct 25, 1780 482
Ordinance re Proceedings of Courts, F e b 5, 1783 490
T reat y of P a n s , 1783 491
Additional Inst ructions to Hal dima n d, J ul y 16, 1783 494
Additional Inst ruction, Ma y 26, 1785 t
495
Additional Inst ruction, J ul y 25, 1785 496
Governor Hal dima n d t o L o r d No rth, Oct 24, 1783 497
N o v 6, 1783 499
H u g h Fml a y to Sir E va n Nepean, Oct 22, 1784 500
Petition for Hou se of Assembly, Nov 24, 1784 502
Pl a n for a House of Assembly, N o v 1784 510
Objections to Petition of Novembe r 1784French Te xt 511
i ii English T ranslation 514
Add ress of “Roman Catholic citizens to t he Ki n gF re nc h Te xt 517
H i H English Translation 518
A D r a u g ht of a proposed A ct of Pa rliame nt for t h e bette r securing t h e libeities of Hi s Majesty’s
subjects m the P rovince of Quebec, Ap ril, 1786 520
Petition of Sir J o h n Johnson and Loyalists, Ap ril 11, 1785 524
Lieut Governor Hamilton to L o r d Sydney, A p ril 20, 1785 527
Ordinance establishing T rial by J u r y, Ap ril 21, 1785 529
Lieutenant Gov ernor H o pe t o Lo rd Sydney, N o v 2, 1785 538
Memo rial of B ritish Me rchants t ra di n g t o Quebec, F e b 8, 1786 541
Lette r from Me rchants of Mont real, N o v 2, 1785 544
„ Quebec, Nov 9, 1785 545
L o r d Sydney to Lieut Gov H o pe, A p ril 6, 1786 547
Lo rd Sydney to Col Joseph B rant, enclosed m foregoing 549
Lo rd Sydney to Lieut Gov Hope, A p ril 6, 1786 550
Memo randa for Inst ructions, J ul y, 28, 1786 551
Inst ructions to L o r d Dorchester, A u g 23, 1786 552
Additional Inst ruction, Ma rc h 21, 1787 567
4_dditional Inst ruction, A u g 25, 1787 568
Chief J u stice Smith to Sir E v a n Nepean, J a n 2, 1787 569
H u g h Fml a y to Sir E v a n Nepean, F e b 13, 1787 571
Ma rch 15, 1787 572
D ra u g ht of an Ordinance framed by Chief Ju stice Smith, Marc h 12, 1787 574
E xt r a ct from Proceedings of Council, Ma rch 26, 1787 579
O rdinance re Proceedings of Civil Courts, Ap ril 30, 1787 582
Ordinance re C riminal Courts, Ap ril 30, 1787 585
L o r d S y d ne y to L o r d Dorchester, Sept 20, 1787 586
Lo rd Dorchester to L o r d Sydney, J u n e 13, 1787 587
Minutes of Council upon State Business from t he 24th of October, 1786 to the 2nd of J u n e, 1787 590
Memo rial of T he J u d ge s, M a y 1, 1787 593
Rep o rt of the Committee of t he Council Relating to t he Courts of Ju stice 594
Mem o ra n d um of t he Council 602
Li st of J u r o r s 606
A P a p e r b y J u d g e Pa netF re nc h Text 607
H , English T ranslation 609
A n ot he r Pa pe r by J u d g e Pa netF re nc h Text i>08
H M English T ranslation 611
Re p o rt of t he Committee of Council Relating to Commerce a n d Police, 1787 612
R e p o rt of t h e Me rchant s of Quebec by thei r Committee 614
Copy of a Petition to L o r d Do rcheste r from New Subjects at QuebecFrench Text 619
„ ,, „ English T ranslation 621
Lette r from t h e Committee of Council on Commerce a n d Police to t h e Me rc ha nt s of M o nt real 622
TABLE OF CONTENTS vu
SESSIONAL PAPER No. 18
4nswe r to foregoing L ett e r 623
Rep o rt of the Me rchants of Mont real b y thei r Committee 624
Copy of a Lette r accompanying the abo% e Re p o rt 627
Copy of A n Add ress to Lo rd Dorchester from New Subjects at Mont realF rench Text 628
H H English T ranslation 629
Lette r addressed to thf Magist rates of Quebec, from the Committee of Council 630
Lette r from t he Magist rates of Quebec to the Committee of Council in answer to t he
Fo regoing Lette r 631
Lette r to t h e Me rchant s at Th ree Riveis, from the Committee of Council 633
A n Answe r t o t he Foregoing Lette r 633
Rep resentation of New Subjects at Th ree Rive rs to the Governor and Council
F re nc h Te xt 634
English T ranslation 637
Repo rt of the Committee of the Council upon Population, Ag ricultu re and t he Settlement of
the Crown La n d s, 1787 639
Lette r from the Magist rates at Cata ra qm to Sir J o h n J o hn s o n 642
Lette r from t he Magist rates at New Oswegatchee to Sir J o h n Johnson 645
Lo rd Dorchester to L o r d Sydney, J u n e 13, 1787 646
Petition of the We ste r n Loyalists A p ril 16, 1787 647
Memorial of Me rchant s T ra di n g t o Quebec F e b 4,5788 649
P at e nt C reating N e w Dist ricts, J u l y 24, 1788 650
Lo rd Sydney to L o r d Dorchester, Sept 3, 1788 651
Lo rd Dorchester to L o r d Sydney, N o v 8, 1788 654
Hugh Fml a y to Sir E v a n Nepean, F e b 9, 1789 656
Ordinance of 1789 re Proceedings m the Courts of Civil J u dicat u re 658
Lo rd Grenville to Lo rd Dorchester, Oct 20, 1789 662
Oct 20, 1789 663
Fi rst D ra u g ht of Constitutional Bill, 1789 667
Lord Dorchester to L o r d Grenville, F e b 8, 1790 674
Second D ra u g ht of Constitutional Bill, 1790 677
Boundary between Quebec a n d N ew B runswick 684
Chief Ju stice Smith to Lo rd Dorchester, F e b 5, 1790 685.
Proposed Additions to t he New Canada Bill for a General Gove rnment, F e b 8, 1790 687
Clause Be T rial of Criminal Offences, F e b 8, 1790 688
Lo rd Grenville to L o r d Dorchester, J u n e 5, 1790 690
Lord Dundas to Lo rd Dorchester, Sept 16, 1791 692-
The Constitutional A ct of 1791 694
Index 709
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6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
INTRODUCTION.
Already the accumulation of materials relating to Canadian history secured by the
•Canadian Archives is very voluminous, and of such range and value that it will henceforth be impossible to make any considerable contribution to Canadian history without
drawing upon these resources.
Now that these collections are adequately housed in a separate building, it is
passible for all who wish t i consult them to do so with facility and comfort. However,
in a country of such vast extent as Canada, it requires both time and means for more
than a very limited number to avail themselves of these valuable accumulations at first
hand. Hitherto, also, the pressing demands of the more immediate needs of life leave,
for most, little leisure for the cultivation of those studies connected with the origin
and significance of our national institutionSj the right comprehension of which may
have an important bearing on the future stability of national life.
In order that the character of the records accumulated by the Archives department
may be made known to the ^public, and that the advantages to be derived from an
•acquaintance with these materials may be equally shared by teachers, students and
citizens of Canada generally, in all parts of the country, it has been considered advisable
to select and publish in a connected form, a number of the more important and representative documents relating to specific features of Canadian national development. The
present volume is the first of a short series which will embody the leiding documents
relating to Canadian constitutional history. The collection is intended to furnish, in
the shape of authentic copies of original documents, a survey of the gradual development of the Canadian system of government and of the various forces which, in co-operation or conflict, had much to do with determining the lines along which our destiny as a
nation was to be unfolded. It has been sought to make the series of documents sufficiently full and representative of all the constituent elements and interests of the country,
to furnish a basis for an intelligent and independent judgment on the part of those
making a careful study of them ; while the notes and references will enable the reader
to follow the natural connections of the documents with each other and with a still
wider range of first hand materials, most of which will also be found in the collections of the Canadian Archives.
This first volume contains only documents relating to the central portion of Canada
known at the time as the Province of Quebec, between the period of the Cession and the
passing of the Constitutional Act in 1791. I n order to present a natural historical development of the constitution, the documents are arranged as nearly as possible’ in
chronological order. They consist of both primary and secondary materials. The
primary documents are preceded and followed by a number of closely related papers,
such as petitions, reports, letters and proceedings indicative of the forces which prepared the way for the more formal expressions of the general policy or system of government. These in tu rn are followed by other secondary documents showing the practical
consequences of the adoption of this or that policy or system of government.
x CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
The documents and papers may be classified as follows, the first two sectionscovering the central or pivotal documents.
I. Terms of Capitulation and Treaties, determining the limits of the colony and
the conditions under which it was ceded or held.
I I. Royal Proclamations, or British Statutes determining the basis and character
of the government to be established and maintained in the colony.
I I I . Commissions and Instructions issued to the various Governors, giving in
further detail the system of government and administration to be established in t h e
colony, and the general policy to be followed.
IV. Such ordinances or laws passed by the local legislative body as prescribe,
under the authority of Royal Proclamations or British Statutes and Instructio is to the
Governors, the courts of law and the general system of justice to be administered in t he
colony.
V. Special reports, of a more or less official nature, from various Boards, or servantsof the Crown in Britain or Canada, setting forth the actual conditions of the country,,
from a constitutional point of view, and proposing lines of policy or necessary changes
in the constitution of the country.
V I. A body of miscellaneous papers, furnishing the connecting links and general
constitutional atmosphere of the central documents of tne foregoing classes. These
consist of
(a) Petitions and counter-petitions expressing the wishes and aspirations of
the inhabitants of the country, or of those in Britain having special interests in
Canada, as to the form of government, the system of laws, and the general administration of justice.
(5) Minor reports from the Governors and other officials in the colony, Memorials and Proceedings setting forth the political condition of the country, Minutes
of Council and Reports of Committees of Council relating to the system of government or administration.
(c) Correspondence, officia1
, semi-official, or private, between the Canadian
Governors and the British Secretaries of State, and between these and others
occupying official or at least influential positions in Canada or Britain, discussing,
shaping, or advising as to the policy of government, or the condition and wishes
of the people.
I n considering the documents presented under these various classes, the question of
most interest to those wishing to make use of the volume will relate to the principle
or principles upon which the documents here give i were selected from the general mass
of materials bearing upon the constitutional development of Canada during the period
covered. I n answering this question we may take up the sections in order.
The documents which fall within the first three classes leave very little room foxchoice, as they are limited in number and definite in character. The first section in
eludes the Capitulations of Quebec and Montreal, and the two Treaties of Paris of
1763 and 1783. Section I I includes the Proclamation of 1763, the Quebec Act and the
Constitutional Act. Section I I I includes the Commissions and Instructions to Governors,
&c. I n order to economize space, since the Commissions cover, though only in a partial
degree, much the same ground as the Instructions, samples only are given to indicate
their nature. Special features, such as Dorchester’s Commission in 1786 to be Governor
I8TB0DUCTI0X xi
SESSIONAL PAPER No. 18
•and Commander in Chief in all the British North American Colonies, are fully indicated
in the correspondence and notes. Where the Instructions to one Governor are continued
for his successor with little or no alteration, they are not repeated in full, only the
alterations or additions being given. However, where important changes in policy were
being discussed or had taken place, as in 1768, 1775, and 1786, the Instructions are
given in full, even though considerable sections of them remain unchanged, it being
important at such periods to see the relation of the old to the new elements. This section includes also various additional or special Instructions which were issued to the
Governors during their periods of Office.
Section IV. covers the series of Provincial Ordinances from 1764 to 1789, establishing the Provincial Courts and prescribing, subject to the British Statutes and Instructions, the system of law and procedure to be observed therein.
I n Section V. there is more choice of materials, though there is little difficulty in
determining which are the most essential documents, as that is largely indicated by the
importance attached to them alike at the time and afterwards, as evidenced by the
repeated references to them in the other documents and correspondence of the period.
The only difficulty here has been in procuring authentic copies of all the documents of
this description referred to. Though the great majority of these reports have been
discovered among the State Papers, or in other authentic form, a few of them have not
as yet been secured. The Beports of Carleton and Hey in 1769 have not yet been found,
though the substance of the former is fairly well indicated in the criticism of it made
by Mr. Maseres, (see p. 258). This indicates that the Governor had simply recapitulated in the Report his views as frequently expressed to the Home Government in his
correspondence with the Secretaries of State, Lords Shelburne and Hillsborough. I t has
also been impossible up to the present to trace among the State Papers the reports on the
Government of Quebec made by Solicitor-General Wedderburn and Attorney-General
Thurlow, in 1772 and 1773, though a supplement to the Solicitor-General’s report containing its essential features has been found among the Dartmouth Papers. We have
therefore been constrained to take these papers in their incomplete form from Christie’s
History of Lower Canada, Vol. I. The Beport of the Board of Trade of September
2nd, 1765, cited in another report of the same date, given at p. 171 and referred to in
note 3 on the same page, as not having been discovered, has since come to light in a
volume lately received at the Archives but as yet uncalendared. I t will be found in
Volume Q18A, p. 131. These are practically the only cases in which we have failed
to trace the more essential documents of this class.
The reports in this Section, beginning with that of Murray in 1762 and ending with
the series of Reports of 1787, where they are of a ” general nature, naturally contain
much material which has but little direct bearing on constitutional questions. However, where the report is homogeneous and not too voluminous, as in the case of Murray s, it has been produced in full, lhat the reader may be enabled to obtain a general
survey of the conditions of the Colony. I n other cases, where the report is very extensive and is the product of a series of committees dealing with different sections of the
colonial interests, as in the case 6*f the Report of 1787, only those sections are given
which have a more direct bearing on the constitutional problems of the country. At
the same time the general character of the whole report is sufficiently indicated, and
xii CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
references are given which will enable any one who may be i iterested in them to follow
up the portions omitted.
It is among the documents classified under Section “VI. that there is the largest
and most miscellaneous mass of materials from which to make choice, and here the
principle of selection is naturally a matter of considerable importance, for much necessarily depends upon the judgment of the editor. Inasmuch as feeling ran high at
various stages during this period, and questions of racial and national institutions, feudal
privileges and vested interests, commercial enterprise and immigration, military versus
civil power, and autocratic versus democratic government were deeply involved ; and
inasmuch as many of the questions then raised for the first time have persisted as matters
of vital interest in Canadian politics, and British colonial policy, it is highly necessary
that the principles on which the selection cf the supplementary documents has¿.
been made should be fully understood. Obviously, whatever the final judgment on any
of these issues, it is quite indispensable in a “volume of this description that all the
representative interests in the Colony, all the essential claims made and policies advocated, should be fairly and adequately presented in their own terms, as far as the documents are available. The first process was to sift out from the general documents of
the period and set apart for further consideration all those having either a direct or an
indirect bearing upon the constitutional issues of the period. Then from these wereselected for publication (a) Those which were specially referred to in the primary documents, or were used in shaping them ; (b) Thofe petitions a ni memorials which were
most frequently referred to either by friends or opponents as representing the wishes of
the various sections of the people interested in the Constitution of Canada ; (c) Those
despatches and letters passing between Canada and Britain which originated ideas and
policies afterwards followed up, or which mcst fully discussed the issues then before the
country, and which were most frequently referred to afterwards as expressing theviews of the persons or groups vitally interested in the measures proposed or adopted ;
(d) Such minor documents as were intimately connected with or obviously throw light
upon the more important ones, and contribute to a better understanding of them.
By following these principles of selection it was found that the documents arranged
themselves in a natural and connected order of development, and furnished
in great measure their own standards for selection. As a consequence of thisarrangement, we have been able to include the great majority of the papers
referred to in the primary and secondary documents, including the petitions, memorials
and official correspondence. Hence, with the assistance of the notes and supplementary
references, if the documents are “read consecutively, they will be found to gradually
unfold a closely connected and intelligible stoty of the leading constitutional issues and
of the factors, personal and corporate, determining the constitutional development of
Canada during a very critical and highly controversial period in our national history.
It has been regarded as beyond the scope of a volume of this description to take
notice of the voluminous discussion in periodicals, pamphlets, and historical treatises
dealing with the issues here presented whether from a partisan or impartial point of
view. However valuable much of this material may be, it is plainly to be treated as supplementary reading. The object of this volume is simply to furnish the more centrai
INTRODUCTION xiii
SESSIONAL PAPER No. 18
and essential documentary bases, alike for original and independent judgment and for
an intelligent estimate of all other judgments, whether contemporary or subsequent.
The most essential portion of the supplementary reading consists of the Debates in
the British Parliament connected with the passing of the Quebec Act and the Constitutional Act. These are naturally too voluminous to be included in their entirety. To
make selections from them, and especially from the Debates on the Quebec Act, which
would be satisfactory to all parties would prove a very difficult if not impossible undertaking. References to the Debates are given in the notes, and as they are available in
every fairly equipped library, they may be consulted in their complete form by practically all who care to make a serious study of these matters.
The notes throughout the volume are entirely devoted to furnishing necessary
concrete information as to the documents themselves, the connecting links between
them, or the supplementary documents which throw additional light on the questions
in hand. No attempt however has been made to pass judgment upon the issues
involved, or to give an interpretation of the documents themselves. The functions of the
notes may thus be classified as follows : (a) To furnish the necessary references to the
sources of the documents which are reproduced ; (b) To furnish references, either within or
without the present volume, to all other papers referred to in the documents here
reproduced ; (c) To provide references to other first-hand materials, and to give quotations from them, where not too extensive, as to the essential links connecting or explaining the documents which have been selected and reproduced ; (d) To indicate the official
positions held by the leading parties between whom the correspondeifbe which is given
had taken place.
A number of the central and more formal documents, such as Capitulations,.
Treaties, and Instructions have already appeared in various forms, though not always
in authentic versions. Others have appeared in volumes which are now very difficult
to obtain and are rarely to be met with in Canada outside of a few of the best equipped
libraries. A large pa rt of the volume, however, consists of important documents which
have not hitherto been published, and the very existence of a number of which was
hardly suspected. These throw much new light on some of the most essential features
of Canadian constitutional history.
I n every possible case documents are taken from the most authentic sources available, and are reproduced exactly as they are found, without any attempt to correct ‘even
the most obvious errors of spelling, punctuation or grammatical form. It is evident
that any uncertainty due to slips and errors in the original documents would only be
increased were it understood that attempts had been made to amend them.
The majority of the papers here reproduced are contained in the Canadian
Archives, and consist of copies from the originals in the Public Record Office in London.
I n some cases, however, the papers in the Public Record Office are themselves duplicates which were furnished at the time of framing the originals. I n almost every case
these documents have been again carefully compared ..with the originals before being
reproduced in this volume, and the proof has been read by Mr. R. Laidlaw and Miss
M. Robertson.
xiv CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
It will be observed that the papers are drawn mainly from three series, which are
designated by the letters Q, B and M. This method of classification was originally
adopted by the Canadian Archives as an arbitrary though convenient mode of reference,
otherwise these letters have no special significance. The index to the volume was
prepared by Miss M. Robertson of the Archives Branch.
ADAM SHOETT
ARTHUR G. DOUGHTY.
«
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
D OC UM E N T S
RELATING”1
TO
THE CONSTITUTIONAL HISTORY OF CANADA
i
1831

6-7 EDWARD Vil. SESSIONAL PAPER No. 18 A. 1907
DOCUMENTS RELATING TOTHE CONSTITUTIONAL HISTORY OF CANADA
1759-1701
ART ICLES OF CAP ITULAT ION, QUEBEC.
La Capitulation demandée
d’autre part a été accordée
par Son Excellence General
Townshend Brigadier des armées de sa Majesté Britanique en Amérique de la Maniere & aux conditions exprimées cy dessous
Articles de Capitulation demandés Par Mr
de Ramzay Lieutenant Pour Le Roy Commandant Le”s hautes et Basse Ville de Quebec Ch”1
de L’ordre Royal & Militaire de S’
Louis à Son Excellence Monsieur Le General
des troupes de Sa Majesté Britannique.
1
The Articles of Capitulation of Quebec as here given are ta ke n from a photographic reproduction
of the original document, signed by Admi ral Charles Saunders, Brigadier Gene ral George Townshend and
M._ de Ramesay, which was enclosed in Townshend’s despatch to Pitt of the 20th Sept., 1759,
giving the official aocount of the captu re of Quebec. The despatch and t he enclosed Articles of Capitulation
are preserved in t he Public Record Office. London, in Vol. 88 of t he papers relating to ‘Ame rica and the
West Indies. ‘ I n his despatch General Townshend thus alludes to the Capitulation :’ T he 17t h at noon
before we had a n y Batte ry erected or could have had any for 2 or 3 days’. A Flagg of T ruce came out with proposals of Capitulation, which I sent back again to Town allowing t hem four H o u r s to capitulate or no
farther Treaty. * * The F rench Officer retu rned at night with Te rms of Capitulation which with
the Admi ral were consider’d, agreed to, and signed, at 8 in ye
mo rning ye
18t h instant. The Te rms
you find we g ranted will I flatter myself be approved of by his Majesty considering ye
E nem y assembling in our Rear, & what is far mo re formidable T he very “Whet & Cold Season which threatened our
Troops with Sickness & t he fleet with some Accident. I t had made our Road so bad we could not b ring
up a Gun for some time, add to this ye
advantage of ent ring y8
Town with t he walls in a Defensible
State, and yB
being able to put a Garrison the re st rong enough to p revent all Surprise. These I hope will
be deem’d a sufficient Consideration for g ranting y° them. Te rms I have t he Honou r to propose to you.’
Admi ral Saunders, in a letrer to Pitt at the same time, also states, ‘ I enclose you a Copy of t he
Articles of Capitulation. ‘ Negotiations for t he capitulation appear to have commenced immediately after
trie battle of the Plains on the.13th of September, as Montcalm addressed a lette r to Townnhend on t h at
day, in which he acknowledged t hat he was compelled to surrender. On the 14th, M. de Ramesay received
a communication from the B ritish Commande r referring to t he a r rangements for carrying out the truce ;
but the death of Montcalm which occurred on t he same day seems to have inte r rupted the proceedings.
I here are several variations in the wording alike of the F rench text and of t he English translation, or
version of the Articles of Capitulation, as given by different authorities. Some of these are from F re nc h
sources, others from English. As indicative of the variations in B ritish official sources we ma y ta ke t he
following versions of the int roducto ry clauses of the Capitulation :
Articles de Capitulation demandées pa r Mr
de Ramzay Lieutenant pour le H3y, Commandant les
Jaautes et Basses^VUles de Québec, Chevalier de l’Ordre Royal et Militai re de S ‘L o ui s, à Son Excellence
Monsieur le Général des,Troupes de Sa Majesté B rita nni q ue: La Capitulation demandée d ‘aut re P a î t a
ete accordée par Son Excellence General Townshend, Brigadier des Armes de Sa Majesté B ritannique
e U ,5e r’Qu e> de la Manie re et aux Conditions exprimées cy-dessous :
(Papers relative to the P rovince of Quebec, ordered to be printed 21st Ap ril 1791. Copied in Canadian
Archives, Q. 62 A, Pt. 1, p. 103.)
A R T I C L E S D E C A P I T U L A T I O N
Oh P I
e m f
n
^
e
Par M. de Ramsay, Lie ute na nt pour le Roi, commandant les H a ut e et Basse-villes de Québec,
” T n ^Vr (^
r e
.
n
úlitai re de St. Louis, à sonExçellence le Général des Troupes des sa Majesté B ritannique.
_, La Capitulation demandée de l’aut re part, a été accordée p a r s o n Excellence 1Ami ral Saunders, et son
¡7-fn<: e ' e Général Townshend, &c. &e. &c. de la manière et condition exprimée ci-dessous." . 'Capitulations and Ext racts of T reaties Relating to Canada ; with Hi s Majesty's P roclamation of 1765, establishing the Government of Quebec, p. 3. P ri nt e d b y Willian Vondenvelden, L aw P ri nte r to t h e -&-mg s Most Excellent Majesty. 1797.) 1 8 - 3 - 1 $ CANADIAN ARCHIVES La garnison de la ville Composée des troupes de terre de marinne et matelots sortiront de la ville avec armes et Bagages Tambour Battant meche allumée avec deux pieces de Canon de france Et douze Coups atirer pour chaque piece Et sera Embarqué le plus Commodément possible pour être mise en france au premier port. Accordé armes Bas en mettant les 3. accordé— accordé— accordé— 6. libre Exercice de la Religion Romaine, sauves gardes accordées a toutes personnes Religieuses ainsi qua Mr Leveque qui pourra venir Exercer Librement et avec Décence Les fonctions de son Etat lorsqu'il le Jugera a propos jusqu a ce que la possession du Canada ayt été Décidée entre Sa Majesté B. et S. M. T. C. 6-7 EDWARD VII., A. 1907 ARTICLE PREMIER M r de Ramzay demande Les honneurs de la guerre Pour sa Garnison & qu'EUe soit ramenée à L'armée E n sûreté par Le Chemin Le plus Court, avec armes, bagages, six pieces de Canon de fonte, Et deux mortiers ou obusiers et Douse coups à tirer par piece ART. 2. Que Les habitans soient Conservés dans La possession de leurs maisons, biens, effets et privileges. ART. 3. Que Les dits habitans ne pourront être recherchés pour avoir porté Les armes à la deffense de la ville, attendu qu'ils y ont été forcés & que les habitans des Colonies des deux couronnes y servent Egalement comme Milices. ART. L Qu'il ne sera pas touché aux effets des officiers & habitans absens ART. 5. Que les dits habitans ne seront point transféré5 *, ni tenus de quitter Leurs maisons Jusqu'à ce qu'un traité définitif entre S. M T. C. & S. M. B. aye reglé leur état. ART. 6. Que L'Exercice de Larelligion Catholique apostolique & romaine sera conservé, que L'on Donnera des sauve gardes aux maisons des Ecclésiastiques, relligieux & relligieuses particulièrement à Mgr L'Evêque de Quebec qui, rempli de zèle pour La relligion Et de Charité pour le peuple de f-on Diocese desire y rester Constamment, Exercer Librement & avec La Decense que son Etat et les sacrés mystères de la relligion Catholique Apostolique & Romaine, Exigent, son Authorité Episcopale dans La ville de Quebec Lorsqu'il Jugera à propos,Jusqu'à ce que la possession Du Canada ait Eté décidée par vn traité Entre S. M. T. C. & S. M. B. CONSTITUTIONAL DOCUMENTS 5 SESSIONAL PAPER No. 18 accordéaccordé9. accordó10. accordé 11. accordé ART. 7. . Que L'artillerie & les Munitions de guerre seront remises de bonne foy et Qu'il en sera Dressé un Inventaire. AET. 8. Qu'il En sera un pour Les Malades, blessés, Commissaire, Aumôniers,-Médecins, Chirurgiens, Apoticaires & autres personnes Employés au service des hôpitaux Conformément au traité d'échange du 6. février 1759. Convenu Ent re Leurs M. T. C. & B. ART. 9. Qu'avant de livrer La porte & l'entrée de La ville aux troupes Angloises, leur general voudra bien remettre quelques soldats pour Et re mis en sauve gardes Aux Eglises, couvents & principales habitations. AET. 10. Qu'il sera Permis au Lieutenant de Roy commandant dans La ville de Quebec d'Envoyer Informer Mr Le Marquis de Vaudreuil Gouverneur General de La reddition de La place, Comm'aussi que Ce General pourra Ecrire au Ministre de france pour L'en Informer. ART. 11. Que La presente Capitulation sera Exécutée suivant sa forme & teneur sans qu'elle puisse Et re sujette à Inexécution sous pretexte de représailles ou D'vne Inexécution de Quelque Capitulation precedente. Le present traité a été fait et arrêté Double entre Nous au Camp devant Quebec le 18e Septembre 1759 . CHA : SAUNDERS. GEO : TOWJSTSHEND. ' D E R A M E S A Y 6 CANADIAN ARCttIVES 6-7 EDWARD VII., A. 1907 (Translation.) 1 ART ICLES OF CAP ITULAT ION Demanded by Mr. de Ramsay, the King's Lieutenant, commanding the high and low Towns of Quebec, Chief of the military order of St. Lewis, to His Excellency the General of the troops of His Britannic M ajesty. " The Capitulation demanded " on the part of the enemy, and granted by their Excellencies Admiral Saunders " a n d General Townshend, &. &c. &c. is in manner and form hereafter expressed." I. Mr. de Ramsay demands the honours of war for his Garrison, and that it shall be sent back to the army in safety, and by the shortest route, with arms, bagage, six pieces of brass cannon, two mortars or howitzers, and twelve rounds for each of them.*" The " Garrison of the town, composed of Land forces, marines and sailors, shall march out " with their arms and bagage, drums beating, matches lighted, with two pieces of french " cannon, and twelve rounds for each piece ; and shall be embarked as conveniently aa " possible, to be sent to the first port in France." I I. That the inhabitants shall be preserved in the possession of their houses, goods, effects, and privileges." Granted, upon their laying down their arms." I I I . That the inhabitants shall not be accountable for having carried arms in the defence of the town, for as much as they were compelled to it, and that the inhabitants of the colonies, of both crowns, equally serve as militia." Granted." IV.** That the effects of the absent officers and citizens shall not be touched." Granted." V. That the inhabitants shall not be removed, nor obliged to quit their houses, until their condition shall be settled by their Britannic, and most Christian Majesties " Granted." V I. That the exercise of the Catholic, Apostolic and Roman religion shall be maintained ; and that safe guards shall be granted to the houses of the clergy, and to the monasteries, particularly to his Lordship the Bishop of Quebec, who, animated with zeal for religion, and charity for the people of his diocese, desires to reside in it constantly, to exercise, freely and with that decency which- his character and the sacred offices of the Roman religion require, his episcopal authority in the town of Quebec, whenever he shall think proper, until the possession of Canada shall be decided by a treaty between their most Christian and Britannic Majesties." The free exercise of the roman religion is granted, " likewise safe-guards to all religious persons, as well as to the Bishop, who shall be at " liberty to come and exercise, freely and with decency, the functions of his office, when- " ever he shall think proper, until the possession of Canada shall have been decided " between their Britannic and most Christian Majesties." 1 The French text of the Articles of Capitulation being the official one, there is no authoritative English version. The English text here given follows that contained in "Capitulations and Extracts of Treaties Relating to Canada," already^ cited, and which corresponds to the French text there given. This version, as regards the British concessions, is practically identical with that contained in Knox's " Historical Journal of the Campaigns in North America." Vol. I I, p. 87, as also in the " Annual Register " for 1759, p. 247. The version contained in " Papers Relative to the Province of Quebec, " of 1791, differs slightly from these. CONSTITUTIONAL DOCUMENTS. 7 SESSIONAL PAPER No. 18 V I I. That the artillery and "warlike stores shall be faithfully given up, and that an inventory of them shall be made out," Granted." V I I I . » That the sick and wounded, the commissaries, Chaplains, Physicians, Surgeons, Apothecaries, and other people employed in the service of the hospitals, shall be treated conformably to the cartel of the 6th of February, 1759, settled between their most Christian and Britannic Majesties." Granted." IX. That before delivering up the gate and the entrance of the town to the English troops, their General will be pleased to send some soldiers to be posted as safe-guards upon the churches, convents, and principal habitations.•" Granted," X. That the King's Lieutenant, commanding in Quebec, shall be permitted to send information to the marquis de Vaudreuil, Governor General, of the reduction of the place, as also that the General may send advice thereof to the french Ministry. " Granted." X I . That the present capitulation shall be executed according to its form and tenour, without being subject, to non execution under pretence of reprisals, or for the nonexecution of any preceding capitulations.• " Granted." Duplicates hereof taken and executed by, and between us, at the camp before Quebec, this 18th Day of September, 1759. CHARLE S SAUNDER S, GEORGE TOWNSHEND, DE RAMSAY. 8 ' ' CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 ART ICLES OP CAP ITULAT ION, MONTREAL. * COPIE : Articles de Capitulation Ent re Son Excellence Le General Amherst Commandant en Chef Les Troupes & Forces de Sa Majesté Britanique En L'Amérique Septentrionale, Et Son Excellence Le Mia de Vaudreiiil, Grand Croix de L'Ordre Royal, et Militaire de S' Louis, Gouverneur et Lieutenant Gêné-. rai pour Le Roy en Canada. ART : 1er Vingt quatre heures après La Signature de la présente Capitulation, Le Général Anglois fera prendre par Les Troupes de Sa Majesté Britanique, possession des portes de La Ville de Montreal et La Garnison Angloise ne poura y Entrer qu'après L'Evacuation des Troupes Francoises. A E T : 2. Les Troupes et les Milices qui seront en Garnison dans La Ville de Montreal, En Sortiront par la porte de avec 1 The Articles of Capitulation of Montreal as here given, are taken from the copy enclosed in the despatch of General Amherst to Pitt, dated "Camp of Montreal.'' 8th Sept., 1760, as contained in Vol. 93 of the papers relating to " America and the West Indies," in the Public Record Office. Another text is given in the " Capitulations and Extracts of Treaties Relating to Canada. " 1797. In his despatch to Pitt, Gen. Amherst thus alludes to the circumstances of the capitulation :"7t h in the morning two Officers came to an advanced Post with a Letter from the Marquis de Vaudreuil, referring me to what one of them, Le Colonel Bouguinville, had to say. ' (Proposing a truce for a month.) " The conversation ended with a Cessation of Arms' till twelve o'clock, at which time the Proposals came. I returned mine, and wrote to the Marquis de Vaudreuil, this was followed by another letter from the Governour, I sent my Answer ; I then received a Letter from Monsieur de Levis which I answered. _ The Troops !ay on their Arms at Night, and soon after day I had a Letter from the Marquis de Vaudreuil, which I answered, and sent Major. Aberorombie into Town, to bring me the Articles of Capitulation, signed by the Marquis de Vaudreuil, of which I have sent him a duplicate, signed by me, and Colonel Haldimand with the Grenadiers and Light Infantry of the Army has taken possession of a Port and will proceed tomorrow in fulfilling the Articles of Capitulation. * * * I enclose to you, Sir, a Copy of the Articles of Capitulation with Copys of all the Letters that have passed for your full information of the whole Transaction." An account of the proceedings connected with the Capitulation of Montreal, from the French side, is given in a document entitled "Suite de la Campagne en Canada"; 1760, in the "Collection de Documents Relatifs à l'Histoire de la Nouvelle-France." Quebec, 1885, vol. IV., pp. 304 6. From this, among other French documents relative to this event, we learn that on the evening of Sept% 6th, the Marquis de Vaudreuil summoned the leading officers of the land and marine forces to meet at his quarters to discuss the general situation and consider terms of capitulation which had been drawn up and which were read by the Intendant Bigot. The impossibility of any longer maintaining a successful resistance was generally acknowledged, and M. de Bougainville was commissioned to propose to General Amherst, on the morning of the 7th, a general cessation of hostilities, awaiting possible news of a peace between the two countries. But, should Amherst not agree, he was authorized to propose the terms of capitulation which had been read before the council of war. The 7th was occupied with these negotiations, the submission of the French terms, and the reception of General Amherst's reply. During the evening of that day_ there took place a vigorous interchange of views verbal and written, between the Chevalier de Levis and his chief officers, on the one hand, and the Marquis de Vaudreuil, on the other, in which the officers strenuously objected to the conditions imposed by Amherst and advocated a desperate resistance in the hope of securing better terms for the army. Vaudreuil, however, refused to sacrifice the general welfare of the colony in a futile support •oí the professional pride of the officers. Hence, notwithstanding his vigorous protests, Levis was ordered to submit to the terms prescribed by Amherst. Although Vaudreuil appears to have acted for the best, his course was severely criticized by the French Court-at the time. Toute la Garnison deMontreal doit mettre bas les Armes, et ne Servira point pendant la presente G u e r r e ; immédiatement après la Signature de la presente, les Troupes du Roy prendront possession d e s Portes, et posteront les Gardes nécessaires pour maintenir le bon Ordre dans La Ville. CONSTITUTIONAL DOCUMENTS 9 SESSIONAL PAFER No. 18 Toutes ces Troupes ne doivent point servir pendant la presente Guerre, et mettront pareillement les Armes bas ; le Reste est Accordé. Accordé. Ces Troupes d o i v e n t comme les Autres, mettre bas les Armes. Refusé. 'C'est tout ce qu'on peut demander sur Cette Article. tous les honeurs de la Guerre, Six pieces de Canon, et U n Mortier, qui seront Chargés dans Le Vaisseau où Le Marquis de Vaudreùil Embarquera, avec dix Coups à tirer par piece. Il En sera Usé de même pour la Garnison des trois Rivieres pour les honeurs de la Guerre. A R T : 3. Les Troupes et Milices qui seront en Garnison dans le Port de .Jacques Cartier, Et dans L'Isle Ste Hélène, à Autres Ports, seront traittée, de même Et auront les mêmes honeurs?; Et ces Troupes Se rendront à Montreal, où aux 3 Rivières, ou à Quebec, pour y Estre toutes Embarquées pour le premier port de Mer en France, par le plus Court Chemin. Les Troupes qui sont dans nos postes Situés sur Nos Frontières, du Costé de L'Accadie, au Détroit, Michilimakinac, et Autres postes, jouiront des mêmes honeurs et seront Traittées de même. ART : 4. Les Milices, après Estre Sorties des Villes et des Ports et Postes Cydessus, retourneront Chez Elles, sans pouvoir Estre Inquiettées, Sous quelque prétexte que ce soit, pour avoir porté Les Armes. ART : 5. Les Troupes qui Tiennent la Campagne Lèveront leur Camp, Marcheront, Tambour battant, Armes, bagages et avec leur Artillerie, pour Se joindre à La Garnison de Montreal, Et auront en tout le même Traitement. ART : 6. Les Sujets de Sa Majesté Britanique Et de Sa Majesté Très Chrétienne, Soldats, Miliciens, ou Matelots, qui auront Désertés, où Laissé Le Service de leur Souverain, et porté Les Armes dans L'Amérique Septentrionale Seront de part et d'autre pardonés de leur Crime ; Us seront respectivement rendus à leur patrie ; Sinon Ils resteront chacun ou Ils sont, sans qu'ils puissent Estre recherchés ni Inquiettés. A R T : 7. Les Magazins, L'Artillerie, Fusils, Sabres, Munitions de Guerre et généralement tout ce qui apartient à S. M. T. C. Tant dans les Villes de Montreal et 3 Rivieres, que dans 10 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Les Malades et Blessés seront Traité de même que Nos propres Gens. Le premier Refusé Il n'y a point eu des Cruautés Commises par les Sauvages de Nôtre Armée : Et le bon Ordre sera maintenu. Kepondu par L'Article precedent. Le Marquis de Vaudreuil, Et tous ces Messieurs seront Maitres de leurs Maisons, et s'Embarqueront dès que les Vaisseaux du Roy seront prêts à faire Voile pour l'Europe : Et on leur accordera toutes les Commodités qu'on pourra. Accordé ; Excepté les Archives qui pouront Et re neles Forts et Postes Mentionés en L'Article 3, Seront Livrés par des Inventaires Exacts, aux Comissaires qui seront préposés pour les recevoir au Nom de S. M. B.Il sera remis au MIS de Vaudreuil des Expeditions en bonne forme des d : I nventaire. AR T : 8. Les Officiers, Soldats, Miliciens, Matelots, et Même Les Sauvages détenus pour Cause de leurs Blessures, ou Maladie, tant dans les hôpitaux que dans les Maisons particulières, Jouiront des privilèges du Cartel, et Traittés Conséquament. AR T : 9. Le Général Anglois S'Engagera de renvoyer chez Eux Les Sauvages Indiens, Et Moraigans qui font Nombre de Ses Armées, d'abord après La Signature de La presente Capitulation, Et Cependant pour provenir tous désordres de la part de Ceux qui ne Seroient pas partis, Il sera donné par le Général des Sauve-Gardes aux personnes qui En demanderont, tant En Ville que dans les Campagnes. A B T : 10. Le Général de Sa Majesté Britanique garentira tous desordres de la part de Ses Troupes ; Les assujettira à payer les domages qu'Eues pouroient faire, tant dans les Villes que dans les Campagnes. AR T : 11. Le Général Anglois ne poura obliger Le Mls de Vaudreuil de Sortir de la Ville de Montreal avant le Et on ne poura Loger personne dans Son hôtel Jusques à Son départ M. Le' Cher Levis Comandant Les Troupes de Terre ; Les Officiers principaux, Et Majors des Troupes de Terre et de la Colonie, Les Ingénieurs, Officiers d'Artillerie, et Comissaire des Guerres, resteront pareillement à Montreal jusqu'au d. Jour, Et y Conserveront leurs Logemens. Il E n Sera Usé de même à L'Egard de M. Bigot Intendant, des Comissaires de La Marine, Et Officiers de plume dont mon d : S. Bigot aura besoin : Et on ne poura Egalement Loger personne à L'Intendance avant Le départ de Cet Intendant AR T : 12. Il sera destiné pour le passage en droiture au premier port de Mer en france, du M1 * de CONSTITUTIONAL DOCUMENTS 11 SESSIONAL PAPER No. 18 cessaires pour le Gouvernement du pais. Ce que Le Roy pouroit avoir fait à ce Sujet, sera Obéi. Accordé : Excepté que M. Le Mls de Vaudreuil, et tous les Officiers de quelque Rang qu'ils puissent être Nous remettrons de bonne foy toutes les Cartes et plans du Païs. Accordé ; avec la même reserve que par l'Article precedent. Accordé. Vaudreiiil, Le Vaisseau Le plus Comode qui Se trouvera : Il y sera pratiqué Les Logemens Nécessaires pour Lui, MadB La Marquise de Vaudreuil, M. de Rigaud, Gouverneur de Montreal, Et La Suitte de ce Général. Ce ^ aisseau sera pourvu de Subsistances Convenables aux dépens de Sa Mté Britanique, Et Le Mls de Vaudreuil Emportera avec Lui Ses papiers, Sans qu'ils puissent Estre Visités, Et II Embarquera- Ses Equipages, Vaisselle, bagages, Et Ceux de Sa Suitte. A E T : 13. Si avant où après L'Embarquement du Mls de Vaudreiiil, La Nouvelle de la paix arrivoit, Et que par Le Traitté Le Canada resta à Sa Mté T. C. Le Mls de Vaudreuil reviendrait à Quebec, ou à Montreal :• Toutes Choses rentreroient dans leur premier Estât sous la domination de Sa Mté T. C. Et La présente Capitulation deviendroit Nulle et sans Effet quelconques. A E T : 14 Il sera destiné deux Vaisseaux pour le passage en France de M. Le Cher de Levis, des Officiers principaux, Et Estât Major Général des Troupes de Terre ; Ingénieurs, Officiers d'Artillerie, Et Gens qui sont à leur Suitte. Ces Vaisseaux seront Egalement pourvus de Subsistances ; Il y sera pratiqué Les Logemens necesaires. Ces Officiers pouront Emporter leurs papiers, qui ne Seront point Visités ; Leurs Equipages et Bagages. Ceux de Ces Officiers qui Seront Mariés auront La Liberté d'Emmener avec Eux leurs Femmes et Enfans, Et la Subsistance leur Sera fournie. A E T : 15. Il En Sera de même destiné Un pour Le passage de Mr Bigot Intendant et de Sa Suitte, dans lequel Vaisseau, Il sera fait les aménagemens Convenables, pour lui, Et les personnes qu'il Emmènera. Il y Embarquera Egalement Ses papiers, qui ne Seront point Visités, Ses Equipages, Vaisselle, et bagages, et Ceux de Sa Suitte. Ce Vaisseau Sera pourvu de Subsistances Comme II est dit Cy devant. A E T : 16. Le Général Anglois fera aussi fournir pour M. de Longueüü Gouverneur des 3. Rivieres, pour les Estats Majors de La Colonie, Et Les Comissaires de La Marine, Les Vaisseaux CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Accordé. Accordé. Accordé. Accordé. nécessaires pour se rendre En france, Et le plus Comodement qu'il Sera possible ; Ils pouront y Embarquer Leurs Familles Domestiques, bagages, et Equipages ; Et la Subsistance leur Sera fournie pendant la Traversée sur un pied Convenable, aux dépens de Sa Mw Britanique. A E T : 17. "Les Officiers "et Poldats, Tant des Troupes de Terre, que de La Colonie, ainsi que les Officiers Marins et Matelots, qui se trouveront dans la Colonie, seront aussi Embarqués pour France, dans les Vaisseaux qui leur Seront Destinés, En Nombre Sufisant, et Le plus Comodement que faire se pou ra... Les Officiers de Troupes et Marins, qui seront mariés pouront Emmener avec Eux leurs Familles ; Et tous auront La Liberté d'Embarquer leurs Domestiques et Bagages, Quant aux Soldats et Matelots, Ceux qui Seront Mariés pouront Emmener avec Eux Leurs Femmes et Enfans, Et tous Embarqueront leurs havre Sacs et Bagages.Il Sera Embarqué dans ces Vaisseaux Les Subsistances Convenables et sufisantes aux dépens de Sa M w Britanique. A B T : 18. Les Officiers, Soldats, et tous Ceux qui sont à la Suitte des Troupes, qui auront leurs Bagages dans les Campagnes, pouront les Envoyer Chercher avant leur départ, Sans qu'il leur Soit fait aucun Tort, ni Empeschement. A R T : 19. Il Sera fourni par le Général Anglois un Bâtiment d'hôpital pour Ceux des Officiers, Soldats & Matelots, blessés ou Malades, qui | seront En Estât d'Estre transportés E n fran- / ce, Et la Subsistance Leur Sera Egalement ! fournie aux dépens de Sa M*8 Britanique : Il E n Sera Usé de même à L'Egard des I Autres Officiers, Soldats, et Matelots, blessés, ou Malades, aussitost qu'ils Seront rétablis. Les Uns et les Autres pouront Emmener Leurs Femmes, Enfans, Domestiques, et Bagages ; Et les d : Soldats et Matelots ne pouront Et re Sollicités, ni forcés à prendre parti dans Le Service de Sa Mw Britanique. A R T : 20. Il Sera Laissé un Comissaire, et un Ecrivain de Roy pour avoir Soin des hôpitaux, et Veiller à tout ce qui aura raport au Service de Sa MtB Très Chrétienne. CONSTITUTIONAL DOCUMENTS 13 SESSIONAL PAPER No. 18 Accordé, mais s'ils ont des papiers qui concernent le Gouvernement du païs, Us doivent IsTous les remettre. Tous Ceux dont les Affaires particulières exigent qu'ils restent dans le pais, et qui en ont la permission de M. Vaudreüil, seront permis de rester Jusqu'à ce que leurs Affaires soient terminées. Accordé. Tout ce qui se trouve dans les Magazins destmés à L'Usage des Troupes, doit être délivré au Commissaire Anglois pour les Troupes du Roy. Accordé. A R T : 21. Le General Anglois fera Egalement fournir des Vaisseaux pour Le passage en france des Officiers du Conseil Supérieur, de Justice, police, de L'Amirauté, et tous Autres Officiers ayant Comissions où Brevets de Sa M'8 Tres Chrétienne, pour Eux, leurs Familles, Domestiques, et Equipages, Comme pour les Autres Officiers : Et La Subsistance leur Sera fournie de même aux dépens de Sa Mté Britanique.Il leur • Sera Cependant Libre de rester dans la Colonie, S'ils le Jugent apropos, pour y arranger Leurs Affaires, ou de Se retirer En france, quand bon Leur Semblera. A R T : 22. S'il y a des Officiers Militaires dont les Affaires Exigeât leur présence dans la Colo nie Jusqu'à L'Année prochaine, Ils pouront y rester, après En avoir eu La permission du M ls de Vaudreüil, Et sans qu'ils puissent Estre réputés Prisoniers de Guerre. ART : 23. Il sera permis au Munitionaire des Vivres du Roy, de demeurer en Canada Jusqu'à L'Année prochaine pour Estre En Estât de faire face aux dettes qu'il a Contractées dans la Colonie, relativement à Ses fournitures ; Si néantmoins 11 préfère de passer En france cette Année II sera obligé de Laisser Jusque-) à L'Année prochaine Une personne pour faire Ses Affaires. Ce particulier Conservera et poura Emporter tous Ses papiers, Sans Estre Visités... Ses Comis auront La Liberté de rester dans La Colonie, ou de passer en Prance, Et dans ce dernier Cas, Le passage et la Subsistance leur Seront Accordés Sur les Vaisseaux de Sa Mté Britanique, pour Eux, Leurs familles, et leurs bagages. ART : 24. Les Vivres et Autres aprivisionement qui se trouveront E n Natu re dans les Magasins du Munitionaire, Tant dans les Villes de Montreal, et des 3. Rivieres, que dans les Campagnes, Lui Seront Conservés, Les d : Vivres Lui apartenant et Non au Roy, Et II lui Sera Loisible de les Vendre aux françois ou aux Anglois. • ART : 25. Le passage E n france Sera Egalement accordé sur les Vaisseaux de Sa M*6 Britanique, ainsi que la Subsistance, à Ceux des Officiers 14 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Accordé pour ce qui peut appartenir à la Compagnie ou aux particuliers, mais Si Sa Majesté Très Chrétienne y a aucune part, Elle doit être au profit du Roy Accordé, pour le Libre Exercise de leur Religion. L'Obligation de payer la Dixme aux Prêtres, dépendra de la Volonté du Roy. Accordé Accordé, Excepté ce qui regarde l'Article Suivant. de la Compagnie des Indes qui Voudront y passer, Et Ils Emmèneront leurs familles domestiques et bagages... Sera permis à L'Agent principal de la d6 : Compagnie, Suposé qu'il Voulut passer en france de Laisser telle personne qu'il Jugera apropos Jusques à L'Année prochaine, pour terminer les Affaires de la de . Compie : et faire le recouvrement des Sommes qui lui sont diie^. L'Agent principal Conservera tous les Papiers de la de Compagnie, Et Ils ne pouront Estre Visités. A R T : 26. Cette Compagnie Sera maintenue dans la propriété des Ecarlatines et Castors qu'Eue peut Avoir dans La Ville de Montreal ; Il n'y Sera point touché, Sous quelque prétexte que ce Soit, Et II Sera donné à L'Agent principal les facilités Nécessaires pour faire passer Cette Année En france Ses Castors •Sur les Vaisseaux de Sa Mté Britanique, En payant le fret sur le pied, que les Anglois le payeraient. A R T : 27. Le Libre Exercice de la Religion Catolique, Apostolique et Romaine Subsistera En Son Entier ; En Sorte que tous Les Estats et les peuples des Villes et des Campagnes, Lieux et postes Eloignés pouront Continuer de S'assembler dans les Eglises, et de frequenter les Sacremens, Comme Cy devant, Sans Estre Inquiétés, En Aucune Maniere directement, ni Indirectement. Ces peuples seront Obligés par le Gouvernement Anglois à payer aux prestres qui en prendront Soin, Les Dixmes, et tous les droits qu'ils avoient Coutume de payer sous le Gouvernement de Sa Mte tres Chrétienne. A R T : 28. Le Chapitre, Les Prestres, Curés et Missionaires, Continueront avec Entière Liberté leurs Exercises et fonctions Curiales dans les paroisses des Villes et des Campagnes. A R T : 29. Les Grands Vicaires E ornés par le Chapitre pour administrer le Dioceze pendant la Vacance du Siege Epi&copal, pouront demeurer dans les Villes où paroisses des Campagnes, Suivant qu'ils le Jugeront à propos. Ils pouront En tout Temps Visiter les différentes paroisses du Dioceze, avec les Cérémonies Ordinaires, Et Exercer toute La Jurisdiction qu'ils Exerçoient sous la domi- CONSTITUTIONAL DOCUMENTS IS SESSIONAL PAPER No. 18 Refusé. - C'est Article est compris sous le precedent. Accordé. Refusé Jusqu'à ce que I3 plaisir du Roy soit Connu. Accordé. nation françoise.Ils Jouiront des mêmes droits En Cas de Mort du futur Evesque, dont II sera parlé à L'Article Suivant. AR T : 30. Si par Le Traitté de paix, Le Canada restoit au pouvoir de Sa MtB Britanique, Sa Mté Tres Chretieñe Continueroit à Nomer L'Evesque de La Colonie, qui Seroit toujours de la Comunión Romaine, et Sous L'Autorité duquel les peuples Exerceraient La Religion Romaine. AR T : 31. Boura Le Seigneur Evesque Etablir dans le besoin de Nouvelles paroisses, Et pourvoir au rétablissement de Sa Cathedi*ale et de Son Palais Episcopal ; Et II Aura En Attendant la Liberté de demeurer dans les Villes, ou paroisses, Comme II le Jugera apropos.Il poura Visiter son Dioceze avec les Ceremonies Ordinaire, Et Exercer toute La Jurisdiction que son prédécesseur Exerçoit sous la domination françoise ; sauf a Exiger de Lui Le Serment de fidélité, où promesse de ne rien faire, ni rien dire Contre Le Service de Sa Mté Britanique. A r t : 32. Les Comunautés de filles Seront Conser vées dans leurs Constitutions et privileges Elles Continueront d'Observer leur s règles Elles seront Exemptes du Logement de Gens de Guerre, Et II Sera fait dt ffenses de Les Troubler dans Les Exercices de pieté qu'Elles pratiguent, ni d'Entrer chez Elles ; On leur donnera même des Sauves Gardes, Si Elles E n demandent. A R T : 33. Le precedent Article Sera pareillement Exécuté à L'Egard des Comunautés des J e suites et Recolets, et de la Maison des prestres de S' Sulpice à Montreal ; Ces derniers et Les Jésuites Conserveront Le droit qu'ils ont de ISTomer à Certaines Cures et Missions, Comme Cy devant* A R T : 34. Toutes les Comunautés, Et tous les prestres Conserveront Leurs Meubles, La propriété, Et L'Usufruit des Seigneuries, Et Autres biens que les Uns et les Auires possèdent dans la Colonie de quelque Nature qu'ils Soient, Et Les d : biens seront Conservés dans leurs privilèges, droits, honeurs, et Exemptions. 16 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Ils seront les maîtres de disposer de leurs biens, et d'en passer le produit, ainsi que leurs personnes, et tout ce qui leur appartient, E n france. Accordé. Accordé comme par L'Article 26. A R T : 35. Si Les Chanoines, Prestres, Missionaires, Les Prestres du Séminaire des Missions Etrangères Et de S* Sulpice, <|insi que les Jésuites et Les Recolets, Veulent passer En frauce, Le passage leur sera Accordé sur les Vaisseaux de Sa Majesté Britanique ; Et Tous auront la Liberté de Vendre, E n total ou partie, Les biensfonds, Et Mobiliers qu'ils possèdent dans la Colonie, soit aux francois, ou aux Anglois, sans que le Gouvernement Britanique puisse y mettre le moindre Empeschement ni Obstacle. Ils pouront Emporter avec Eux, ou faire passer En france Le produit de quelque Tíature qu'il soit, des dB biens Vendus, en payant Le fret, Comme II est dit à L'Article 26. Et Ceux d'Entre Ces Prestres qui Voudront passer Cette Année, Seront Nouris pendant La Traversée aux dépens *de Sa M té Britanique, Et pouront Emporter avec Eux leurs bagages. ART : 36. Si par Le Traitté de Paix, Le Canada reste à Sa Mt0 Britanique, Tous Les François, Canadiens, Accadiens, Comerçant, et Autres personnes qui Voudront se retirer En france, Eft Auront la permission du Général Anglois qui leur procurera le passage.Et Néantmoins Si d'icy à Cette décision II Se trouvoit des comerçans francois où Canadiens, ou Autres personnes qui Voulussent passer E n france, Le Général Anglois Leur En donneroit Egalement la permi-sion Les Uns et les Autres Emmèneront avec Eux leurs familles domestiques et bagages. A R T : 37. Les Seigneurs de Terres, Les Officiers Mi litaires et de Justice, Les Canadiens, Tant des Villes que des Campagnes, Les francois Etablis ou Comerçant dans toute l'Etendue de La Colonie de Canada, Et Toutes Autres personnes que ce puisse Estre, rConserveront L'Entière paisible propriété et possession de leurs biens, Seigneuriaux et Roturiers Meubles et 'Immeubles, Marchandises, Pelleteries, et Autres Effets, même de Leurs batimens de Mer ; Il n'y Sera point touché ni fait le moindre domage, sous quelque prétexte que ce Soit :Il leur Sera Libre de les Conserver, Louer, Vendre, Soit aux François, ou aux Anglois, d'En Emporter Le } roduit E n Lettres de Change, pelleteries Es- CONSTITUTIONAL DOCUMENTS 17 SESSIONAL PAPER No. 18 C'est au Roy à disposer de Ses Anciens Sujets : en attendant Ils Jouiront des mêmes privileges que les Canadiens. A c c o r d é , Excepté l'égard des Acadiens. Accordé, à la reserve du dernier Article qui a déjà été refusé. Ils deviennent Sujets du Ï832 peces Sonantes, ou autres retours, Lorsqu'ils Jugeront à propos de passer en france, En payant le fret, Comme à L'Article 26. Ils Jouiront aussi des pelleteries qui sont dans les postes d'En haut, & qui leur apartiennent, Et qui peuvent même estre En Chemin de se rendre à Montreal. Et à cet Effet, Il leur Sera permis d'Envoyer dès cette Année, ou la prochaine, des Canots Equipés pour Chercher Celles de ces pelleteries qui auront restées dans ces postes. A R T : 38. Tous Les peuples Sortis de L'Accadie qui se trouveront en Canada, y Compris les frontières du Canada du Costé de L'Accadie, auront Le même Traitement que Les Canadiens, et Jouiront des mêmes privileges qu'Eux. A R T : 39. Aucuns Canadiens, Accadiens, ni Francois, de Ceux qui sont présentement en Canada, et sur les frontières de La Colonie du Costé de L'Accadie du Détroit, Michilimakinac, et Autres Lieux et Postes des pays d'Enhaut, ni les Soldats Mariés et non Mariés restant en Canada, ne pouront Estre portos, ni Transmigres dans les Colonies Angloises, ni en L'Ancienne Angleterre, Et Ils ne pouront Estre recherchés pour avoir pris Les Armes. ART : 40. Les Sauvages oñ Indiens Alliés de Sa Mté tres Chrétienne Seront maintenus dans Les Terres qu'ils habitent, S'ils Veulent y rester ; Ils ne pouront Estre Inquiétés Sous quelque prétexte que ce puisse Estre, pour avoir pris les Armes et Servi Sa Maté très Chrétienne. Ils auront Comme les François, la Liberté de Religion et Conserveront leurs Missionaires.Il sera permis aux Vicaires généraux Actuels Et à L'Eveque, lorsque Le Siege Episcopal Sera rempli, de let/r Envoyer de Nouveaux Missionaires Lorsqu'ils Le Ju - geront Nécessaire. AR T : 41. Les francois, Canadiens, E t Accadiens, qui resteront dans La Colonie, de quelque Estât et Condition qu'ils Soient, ne Seront, ni ne pouront Estre forcés a prendre les Armes Contre Sa Mté très Chrétienne, ni Ses Alliés, directement, ni Indirectement, dans quelque R16 CANADIAN ARCHIVES Répondu par les Articles précédents, et particulièrement par le dernier. Accordé avec la reserve déjà faite. Il en est de même de cet Article. Accordé.- Accordé.- Accordé, Excepté Ceux qui auront étés faits Prisonniers. 6-7 EDWARD VII., A. 1907 Occasion que ce Soit. Le Gouvernement Britanique ne poura Exiger d'Eux qu'Une Exacte Neutralité. ART : 42. Les francois et Canadiens Continueront d'Estre Gouvernés Suivant La Coutume de Paris et les Loix et Usages Etablis pour ce pays; Et Ils ne pouront P'stre Assujettis à d'Autres Impots qu'a Ceux qui Estoient Eta - blis sous la domination françoise. A R T : 43. Les papiers du Gouvernement resteront sans Exception au pouvoir du Mls de Vaudreûil, Et passeront en france avec lui. Ces papiers ne pouront Estre Visites sous quelque prétexte que ce Soit. ART : 44. Les papiers de L'Intendance, des Bureaux du Controle de La Marine, des Trésoriers Ancien et Nouveau, des Magazins du Roy, du Bureau du Domaine et des forges S' Maurice, resteront au pouvoir de M. Bigot, Intendant, Et Ils Seront Embarqués pou r france dans le Vaisseau ou II passera. Ces papiers ne Seront point Visités. ART : 45. Les Registres et Autres papiers dû Conseil Supérieur de Quebec, de la Prevosté Et Amirauté de la même Ville, Ceux des Jurisdictions Royales des trois Rivieres et de Montreal ; Ceux des Jurisdictions Seigneuriales de la Colonje ; Les Minutes des Actes des Notaires des Villes et des Campagnes, Et généralement Les Actes & Autres papiers qui peuvent Servir à Justifier L'Estat et la fortune des Citoyens, resteront dans La Colonie 'dans les Greffes des Jurisdictions dont Ces papiers dépendent. AR T : 46. Les Habitans et Négocians Jqiiiront déferas les privilèges du Comerce aux mêmes faveurs Et Conditions accordées aux Sujets de Sa Majesté Britanique, tant dans les pays d'Enhaut que dans L'Intérieur de La Colonie. ART : 47. Les Nègres et panis des deux Sexes, resteront En leur qualité d'Esclaves, en la possession des francois et Canadiens à qui Ils apar- CONSTITUTIONAL DOCUMENTS 19 SESSIONAL PAPER No. 18 Accordé Accordé. - Accordé. - P. On Aura Soin que les Sauvages, n'insulte aucun des Sujets de Sa Majesté Très Chrétienne. 1832J tiennent ; Il leur Sera libre de les garder à leur Service dans la Colonie, ou de les Vendre, Et Ils pouront aussi Continuer à les faire Elever dans la Religion Romaine. A R T : 48. Il Sera permis au Mis de Vaudreiiil, aux Officiers généraux et Supérieurs des Troupes de Terre ; Aux Gouverneurs et Etats Majors des différentes places de La Colonie; Aux Officiers Militaires et de Justice, Et à toutes Autres personnes qui Sortiront de la Colonie, ou qui sont deja absents, de Nommer et Etablir des procureurs pour Agir pour Eux Et en leur Nom, dans l'administration de leurs biens Meubles et Immeubles, Jusqu'à ce que la paix Soit faite. Et si par le Traitté des deux Courones Le Canada ne rentre point Sous La domination françoise, Ces Officiers, ou Autres personnes, ou procureurs pour Eux, auront L'agrément de Vendre leurs Seigneuries, Maisons, et Autres biensfonds, Leurs Meubles et Effets, &ca, d'En Emporter, ou faire passer Le pïbduit en france, Soit E n Lettres de Change, Espèces Sonantes, pelleteries, ou Autres Retours, Comme II Est dit à L'Article 37. ART : 49. Les habitans et Autres personnes qui auront Soufert quelque domage En leurs biens, Meubles ou Immeubles restés à Quebec Sous la foy de la Capitulation de Cette Ville, pouront faire leurs representations au Gouvernement Britanique qui leur rendra La Justice, qui leur Sera due Contre qui II apartiendra. AR T : 50 E T DERNIER. La presente Capitulation Sera Inviolablement Exécutée En tous Ses Articles, de pa rt et d'autre et de bonne foy, Non obstant toute Infraction et tout autre prétexte par Raport aux précédentes Capitulations, et Sans pouvoir Servir de représailles. S. ART. 51. Le Général Anglois S'Engagera, En Cas qu'il reste des Sauvages, après La Redition de Cette Ville, à Empêcher qu'ils n'Ent rent dans Les Villes et qu'ils n'Insultent en Aucune Maniere, Les Sujets de Sa Mté Très Chrétienne. CANADIAN ARCHIVES Repondu par L'Article 11e Accordé.. % Accordé., Accordé à la reserve de ce qui regarde les Acadiens. Fait au Camp devant Montreal ce 8e Septembre 1760 6-7 EDWARD VI!., A. 1907 A R T : 52. Les Troupes et Autres Sujets de Sa Mté Très Chrétienne, qui doivent passer En franee, Seront Embarquées Quinze Jours au plus tard, après La Signature de la présente Capitulation. * A R T : 53. Les Troupes et Autres Sujets de Sa Mté très Chrétienne, qui devront passer E n france, resteront Logées, ou Campées dans la Ville de Montreal, Et Autres postes qu'Elles occupent présentement Jusqu'au moment OÏL Elles seront Embarquées pour le départ.Il sera néantmoins Accordé des passeports à Ceux qui En auront besoin, pour Les differens Lieux de la Colonie pour Aller Vaquer à leurs Affaires, A R T : 54. Tous les Officiers et Soldats des Troupes au Service de France qui Sont prisonniers à la Nouvelle Angleterre, et faits E n Canada, Seront renvoyés Le plustost qu'il Sera possible En france, oîi II Sera Traitté de leur Rançon, ou Echange, Suivant Le Cartel ; Et Si quelques Uns de Ces Officiers avoient des Affaires E n Canada, Il leur Sera permis d'y Venir. A R T : 55. Quant aux Officiers de Milices aux Miliciens, et aux Accadiens qui sont prisoniers à la Nouvelle Angleterre, Ils Seront renvoyés Sur leurs Terres. fait a Montreal le 8 Sep6 1760 V A U DRE Ü IL. J E F F : AMHERST, endorsed : Copy Articles of Capitulation Granted to the Marquis de Vaudreüil. 8 th Sepr 1760. CONSTITUTIONAL DOCUMENTS 21 SESSIONAL PArER No. 18 (Translation. )^ ART ICLES OF CAP ITULAT ION. Between their Excellencies Major G E N ER A L AMHERST, Commander in Chief of his Britannic Majesty's troops and forces in North-America, on the one part, and the Marquis de Vaudreuil, &c. Governor and Lieutenant-General for the King in Canada, on the other. ARTICLE 1ST. Twenty-four hours after the signing of the present capitulation, the British General shall cause the troops of his Britannic Majesty to take possession of the Gates of the town of Montreal : and the British Garrison shall not enter the place till after the French troops shall have evacuated it." The whole Garrison of Montreal must lay " down their arms, and shall not serve during the present war Immediately after the " signing of the present capitulation, the King's troops shall take possession of the " gates, and shall post the Guards necessary to preserve good order' in the town." ARTICLE I I D . The troops and the militia, who are in Garrison in the town of Montreal, shall go out by the gate of Quebec, with all the honours of war, six pieces of cannon and one mortar, which shall be put on board the vessel where the Marquis de Vaudreuil shall embark, with ten rounds for each piece ; and the same shall be granted to the Garrison of the Three Rivers, as to the honours of war." Referred to the next article." ARTICLE I I I D . The troops and militia, who are in Garrison in the Fort of Jacques Cartier, and in the Island of St. Helen, and other forts, shall be treated in the same manner, and shall have the same honours ; and these troops shall go to Montreal, or the Three Rivers or Quebec ; to be there embarked for the first sea port in Prance, by the shortest way. The troops, who are in our posts, situated on our frontiers, on the side of Acadia, at -Detroit, Michilimaquinac, and other posts, shall enjoy the same honours, and be treated in the same manner." All these troops are not to serve during the present war, and ' shall likewise lay down their arms, the rest is granted." ARTICLE I V T H . , _ The Militia after evacuating the above towns, forts and posts, shall return to their habitations, without being molested on any pretence whatever, on account of their having carried arms." Granted." ARTICLE VTH. The troops, who keep the field, shall raise their camp, drums beating, with their arms,, bagage and artillery, to join the garrison of Montreal, and shall be treated in e v e r y respect the same."These troops, as well as the others, must lay down their arms." Pn.nit'V.t?1 t l l e c a s e o £ t n e Articles of Capitulation of Quebec, the English version of the Articles of Oanad "î^o? Montre^> here given, follows that in ” Capitulations and Extracts of Treaties Relating to
49i i>T«-r> ° t n e r versions with slight variations are to be found in Knox’s ” J o u r nal ” Vol. I I., p.
m*k?« .
D o c u ments Relative to the Colonial History of the State of New York,” Vol. X., p. 1107, and
u
™w Annual Register ” for 1760, p. 222.
22 a AS ADÍAS ARCHIVES
6-7 EDWARD VII., A. 1907
ARTICLE V I T H .
The Subjects of his Britanic Majesty, and of his most Christian Majesty, Soldiers,
Militia or Seamen, who shall have deserted or left the service of their Sovereign, and
carried arms in North-America, shall be, on both sides pardoned for their crime ; “they
shall be respectively returned to their country ; if not, each shall remain where he is
without being sought after or molested.” Refused.”
ARTICLE V I I .
The Magazines, the artillery, firelocks, sabres, ammunition of war, and, in general
every thing that belongs to his most Christian Majesty, as well in the towns of Montreal and Three Rivers, as in the forts and post mentioned in the Third article shall be
delivered up, according to exact Inventories, to the commissaries who shall be appointed
to receive the same in the name of his Britannic Majesty. Duplicates of the said
Inventories shall be given to the Marquis de Vaudreuil.” This is every thing that can
” be asked on this article.”
ARTICLE V I I I ,
The Officers, Soldiers, Militia, Seamen and even the Indians, detained on account
of their wounds or sickness, as well as in the hospital, as in private houses, shall enjoy
the privileges of the cartel, and be treated accordingly.” The sick and wounded shall
” be treated the same as our own people.”
ARTICLE IX.
The British General shall engage to send back, to their own homes, the Indians,
and Moraignans, who make part of his armies, immediately after the signing of the
present capitulation, and, in the mean time, the better to prevent all disorders on the
part of those who may not be gone away, the said Generals shall give safe-guards to
such persons as shall desire them, as well in the town as in the country. ” The first part
” refused.”” There never have been any cruelties committed by the Indians of our
‘<-army : and good order shall be preserved." ARTICLE X. His Britannic Majesty's General shall be answerable for all disorders on the part of his troops, and shall oblige them to pay the Damages they may do, as well in the towns as in the country." Answered by the preceding article." ARTICLE X I . The British General shall not oblige the Marquis de Vaudreuil to leave the town of Montreal before and no person shall be quartered in his house till he is gone. The Chevalier de Levis, Commander of the land forces and colony troops, the Engineers, Officers of the Artillery, and Commissary of war, shall also remain at Montreal till the said day, and shall keep their lodgings. The same shall be observed with regard to M. Bigot, Intendant, the Commissaries of Marines and writers, whom the said M. Bigot shall have occasion for, and no person shall be lodged at the Intendant s house before he shall take his departure." The Marquis de Vaudreuil, and " all these gentlemen, shall be masters of their houses, and shall embark, when the " King's ship shall be ready to sail for Europe ; and all possible conveniences shall be " granted them." ARTICLE X I I . The most convenient vessel that can be found shall be appointed to carry the Marquis de Vaudreuil, M. de Rigaud, the Governor of Montreal, and the suite of this General, by the straitest passage to the first sea port in France ; and every necessary CONSTITUTIONAL DOCUMENTS 23 SESSIONAL PAPER No. 18 accommodation shall be made for them. This vessel shall be properly victualled at the «xpence of his Britannic Majesty : and the Marquis de Vaudreuil shall take -with him his papers, without their being examined, and his, equipages, plate, baggage, and also those of his retinue." Granted, except the archives -which shall be necessary for the " Government of the country." ARTICLE X I I I . If before, or after, the embarkation of the Marquis de Vaudreuil, news of Peace should arrive, and, that by treaty, Canada should remain to his most Christian Majesty, the Marquis de Vaudreuil shall return to Quebec or Montreal ; every thing shall return to its former state under the Dominion of his most Christian Majesty, and the present capitulation shall become null and of no effect.•" Whatever the King may have done, " on this subject, shall be obeyed." ART ICLE X I V . Two ships will be appointed to carry to Prance, le Chevalier de Levis, the principal officers, and the staff of the Land forces, the Engineers, officers of Artillery, and their domestics. These vessels shall likewise be victualled, and the necessary accomodation provided in them. The said officers shall take with them their papers, without being examined, and also, their equipages and bagage. Such of the said officers as shall be married, shall have liberty to take with them their wives and children, who shall also be victualled.Granted, " except that the Marquis de Vaudreuil and all the officers, of " whatever rank they may be, shall faithfully deliver to us all the charts and plans of " the country." ARTICLE XV. A vessel shall also be appointed for the passage of Mr. Bigot, the Intendant, with his suite ; in which vessel the proper accomodation shall be made for him, and the persons he shall take with him : he shall likewise embark with him his papers, which shall not be examined : his equipages, plate, baggage and those of his suite : this vessel shall be victualled as before mentioned." Granted, with the same reserve, as in the preceding "article." ARTICLE X V I . The British General shall also order the necessary and most convenient vessels to carry to Prance M. de Longueuil, Governor of Trois Rivieres, the staff of the colony, and the Commissary of the Marine ; they shall embark therein their families, servants, baggage and equipages, and they shall be properly victualled, during the passage, at the expence of his Britannic Majesty." Granted." ARTICLE X V I I . The officers and soldiers, as well as of the Land-forces, as of the colony, and also the Marine Officers, and Seamen, who are in the colony, shall be likewise embarked for Prance, and sufficient and convenient vessels shall'be appointed for them. The Land and sea officers, -who shall be married, shall take with them their families, and all of them shall have liberty to embark their servants and baggage. As to the soldiers and seamen, those who are married shall take with them their wives and children, and all of them shall embark their haversacks and baggage; these vessels shall be properly and sufficiently victualled at the expence of his Britannic Majesty." Granted." ARTICLE X V I I I . The Officers, Soldiers and the followers of the troops, who shall have their baggage m the fields, may send for it before they depart, without any hindrance or molestation. " Granted." 24 CANADIAN ARCHIVES 6-7 EDWARD Vil., A. 1907 ARTICLE X I X . An hospital ship shall be provided by the British General, for such of the wounded and sick officers, soldiers and seamen as shall be in a condition to be carried to France, and shall likewise be victualled at the expence of his Britannic Majesty. It shall be the same with regard to the other wounded and sick officers, soldiers and sailors, as soon as they shall be recovered. They shall have liberty to carry with them their wives, children, servants and baggage ; and the said soldiers and sailors shall not be solicited nor forced to enter into the service of his Britannic Majesty." Granted." ARTICLE XX. A Commissary and one of the King's Writers, shall be left to take care of the hospitals, and whatever may relate to the service of his most Christian Majesty.• "G ranted." • , • ARTICLE X X I . The British General shall also provide ships for carrying to France the officers of the supreme council, of justice, police, admiralty, and all other officers, having commissions or brevets from his most Christian Majesty, for them, their families, servants and equipages, as well as for the other officers : and they shall likewise be victualled at the expence of his Britannic Majesty. They shall, however, be at liberty to stay in the colony, if they think proper to settle their affairs, or to withdraw to France whenever they think fit.»" Granted, but if they have papers relating to the Government of the " country, they are to be delivered up to us." ARTICLE X X I I . If there are any Military officers, whose affairs should require their presence in the colony till the next year, they shall have liberty to stay in it, after having obtained the permission of the Marquis de Vaudreuil for that purpose, and without being reputed prisoners of war." All those whose private affairs shall require their stay in the coun- " try, and who shall have the Marquis de Yaudreuil's leave for so doing, shall be allowed " to remain till their affairs are settled." ARTICLE X X I I I . The Commissary for the King's provisions shall be at liberty to stay in Canada till next year, in order to be enabled to answer the debts he has contracted in the colony, on account of what he has furnished ; but, if he should prefer to go to France this year, he shall be obliged to leave, till next year, a person to transact his business. This private person shall preserve, and have liberty to carry off, all his papers, without being inspected. His Clerks shall have leave to stay in the colony or go to France ; and in this last case, a passage and subsistence, shall be allowed them on board the ships of his Britannic Majesty, for them, their families, and their ba,ggage." Granted." ARTICLE X X I V . The provisions and other kind of stores, which shall be found in the Magazines of the commissary, as well in the towns of Montreal, and of the Three-Rivers, as in the country, shall be preserved to him, the said provisions belonging to him, and. not to the King ; and he shall be at liberty to sell them to the French and English." Every " thing that is actually in the magazines, destined for the use of the troops, is to be " delivered to the British commissary, for the King's forces." ARTICLE X X V. A passage to France shall likewise be granted, on board of his Britannic Majesty's ships, as well as victuals to such officers of the India company as shall be willing to go thither, and they shall take with them their families, servants and baggage. The Chief CONSTITUTIONAL DOCUMENTS 25 SESSIONAL PAPER No. 18 agent of the said Company, in case he should chuse to go to France, shall be allowed to leave such person as he shall think proper till next year, to settle the affairs of the said Company, and to recover such sums as are- due to them. The said chief agent shall keep possession of all the papers belonging to the said company, and they shall not be liable to inspection." Granted." ARTICLE X X V I . The said company shall be maintained in the property of the Ecarlatines, and Castors, which they may have in the town of Montreal ; they shall not be touched under any pretence whatever, and the necessary Licences shall be given to the Chief Agent, to send this year his Castors to France, on board his Britannic Majesty's ships, paying the freight on the same footing as the British would pay it." Granted, with regard to " what may belong to the company, or to private persons ; but if his Most Christian " Majesty has any share in it, that must become the property of the King." • ARTICLE X X V I I . The free exercise of the Catholic, Apostolic, and Roman Religion, shall subsist entire, in such manner that all the states and the people of the Towns and countries, places and distant posts, shall continue to assemble in the churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly. These people shall be obhVed, by the English Government, to pay their Priests the tithes, and all the taxes they were used to pay under the Government of his most Christian Majesty." Granted, as to the free exercise of their religion, the obligation of pay- " ing the tithes to the Priests will depend on the King's pleasure." ARTICLE X X V I I I . The Chapter, Priests, Curates and Missionaries shall continue, with an entire liberty, their exercise and functions of cures, in the parishes of the towns and countries. " Granted." « AETICLB X X I X . The Grand Vicars, named by the Chapter to administer to the diocese during the vacancy of the Episcopal see, shall have liberty to dwell in the towns or country parishes, as they shall think proper. They shall at all times be free to visit the different parishes or the Diocese with the ordinary ceremonies, and exercise all the jurisdiction they exercised under the French Dominion. They shall enjoy the same rights in case of the death of the future Bishop, of which mention will be made in the following article. " Granted, except what regards the following article." ABTICLE X X X . . •" by the treaty of peace, Canada should remain in the power of his Britannic Majesty, his most Christian Majesty shall continue to name the Bishop of the colony, •^ho shall alwaysvbe of the Roman communion, and under whose authority the people shall exercise the Roman Religion." Refused." ARTICLE X X X I . , ., ,7 Bishop shall, in case of need, establish new parishes, and provide for the rebuilding of his Cathedral and his Episcopal palace ; and, in the mean time, he shall have toe liberty to dwell in the towns or parishes, as he shall judge proper. H e shall be at jT^y t ° v isit his Diocese with the ordinary ceremonies, and exercise all the jurisdiction "which his predecessor exercised under the French Dominion, save that an oath of fidelity, °t f.Pr o m * s e to do nothing contrary to his Britannic Majesty's service, may be required or rum"This article is comprised under the foregoing •\ 26 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 ARTICLE X X X I I . The communities of Nuns shall be preserved in their constitutions and privileges ; they shall continue to observe their rules, they shall be exempted from lodging any military ; and it shall be forbid to molest them in their religious exercises, or to enter their monasteries : safe-guards shall even be given them, if they desire them."Granted." ARTICLE X X X I I I . The preceeding article shall likewise be executed, with regard to the communities of Jesuits and Recollects and of the house of the priests of St. Sulpice at Montreal ; these last, and the Jesuits, shall preserve their right to nominate to certain curacies and missions, as heretofore." Refused till the King's pleasure be known." ARTICLE X X X I V . All the communities, and all the priests, shall preserve their moveables, the property and revenues of the Seignories and other estates, which" they possess in the colony, of what nature soever they be ; and the same estates shall be preserved in their privileges, rights, honours, and exemptions" Granted." ARTICLE X X X V . If the Canons, Priests, Missionaries, the Priests of the seminary of the foreign Missions, and of St. Sulpice, as well as the Jesuits, and the Recollects, chuse to go to Prance, a passage shall be granted them in his Britannic Majesty's ships, and they shall have leave to sell, in whole, or in part, the estates and moveables which they possess in the colonies, either to the French or to the English, without the least hindrance or obstacle from the British Government.They may take with them, or send to France, the produce of what nature soever it be, of the said goods sold, paying the freight, as mentioned in the X X V It h. article ; and such of the said Priests, who chuse to go this year,, shall be victualled during the passage, at the expence of his Britannic Majesty ; and they shall take with them their baggage." They shall be masters to dispose of their " estates and to send the produce thereof, as well as their persons, and all that belongs "t o them to France." ARTICLE X X X V I . If by the treaty of Peace, Canada remains to his Britannic Majesty, all the French, Canadians, Acadians, Merchants and other persons who chuse to retire to France, shall have leave to do so from the British General, who shall procure them a passage : and nevertheless, if, from this time to that decision, any French, or Canadian Merchants or other persons, shall desire to go to France ; they shall likewise have leave from the British General. Both the one and the other shall take with them their families, servants, and baggage." Granted." ARTICLE X X X V I I . The Lords of Manors, the Military and Civil officers, the Canadians as well in the Towns as in the country, the French settled, or trading, in the whole extent of the colony of Canada, and all other persons whatsoever, shall preserve the entire peaceable property and possession of the goods, noble and ignoble, moveable and immoveable, merchandizes, furs and other effects, even their ships ; they shall not be touched, nor the least damage done to them, on any pretence whatever. They shall have liberty to keep, let or sell them, as well to the French as. to the British ; to take away the produce of them in Bills of exchange, furs, specie or other returns, whenever they shall judge proper to go to France, paying their freight, as in the X X V I t h Article. They shall also have the furs which are in the posts above, and which belong to them, and may be on the way to Montreal ; and, for this purpose, they shall have leave to send, this year, or the next, # CONSTITUTIONAL DOCUMENTS 27 SESSIONAL PAPER No. 18 canoes fitted out, to fetch such of the said furs as shall have remained in those posts. "Granted as in the X X V I t h article." ARTICLE X X X Y I I I . All the people who have left Acadia, and who shall be found in Canada, including the frontiers of Canada on the side of Acadia, shall have the same treatment as the Canadians, and shall enjoy the same privileges." The King is to dispose of his ancient " Subjects : in the mean time, they shall enjoy the same privileges as the Canadians." ARTICLE X X X I X . None of the Canadians, Acadians or French, who are now in Canada, and on the frontiers of the colony, on the side of Acadia, Detroit, Michillimaquinac, and other places and posts of the countries above, the married and unmarried soldiers, remaining in Canada, shall be carried or transported into the British colonies, or to Great-Britain, and they shall not be troubled for having carried a rms" Granted, except with regard " to the Acadians." ARTICLE XL. The Savages or Indian allies of his most Christian Majesty, 'shall be maintained in the Lands they inhabit ; if they chuse to remain there ; they shall not be molested on any pretence whatsoever, for having carried arms, and served his most Christian Majesty ; they shall have, as well as the French, liberty of religion, and shall keep their missionaries. The actual Yicars General, and the Bishop, when the Episcopal see shall be filled, shall have leave to send to them new Missionaries " when they shall judge it .necessary." Granted except the last article, which has been already refused." ARTICLE XL I. The French, Canadians, and Acadians of what state and condition soever, who shall remain in the colony, shall not be forced to take arms against his most Christian Majesty, or his Allies, directly or indirectly, on any occasion whatsoever ; the British Government shall only require of them an exact neutrality. " They become Subjects "of the King." ARTICLE X L I I . The French and Canadians shall continue to be governed according to the custom of Paris, and the Laws and usages established for this country, and they shall not be subject to any other imposts than those which were established under the French Dominions." Answered by the preceding articles, and particularly by the last." ARTICLE X L I I I . The Papers of the Government shall remain without exception, in the power of the Marquis de Vaudreuil and shall go to France with him. These papers shall not be examined on any pretence whatsoever." Granted, with the reserve already made." ARTICLE XL IV. _ The papers of the Intendancy, of the offices of Comptroller of the Marine, of the ancient and new treasurers, of the Kings magazines, of the offices of the Revenues and forges of St. Maurice, shall remain in the power of M. Bigot, the Intendant ; and they shall be embarked for France in the same vessel with him ; these papers shall not be examined." The same as in this article." 28 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 ARTICLE XLV. V The Registers, and other papers of the Supreme Council of Quebec, of the Pré voté, and Admiralty of the said city ; those of the Royal Jurisdictions of Trois Rivieres and of Montreal ; those of the Seignorial Jurisdictions of the colony ; the minutes of 4;he Acts of the Notaries of the towns and of the countries ; and in general, the acts, and other papers, that may serve to prove the estates and fortunes of the Citizens, shall remain in the colony, in the rolls of the jurisdictions on which these paper depend. "G ranted." ARTICLE X L V I . The inhabitants and Merchants shall enjoy all the privileges of trade, under the same favours and conditions granted to the subjects of his Britannic Majesty, as well as in the countries above, as the interior of the colony." Granted." ART ICLE X L V I I . The Negroes and panis of both sexes shall remain, in their quality of slaves, in the possession of the French and Canadians to whom they belong ; they shall be at liberty to keep them in their service in the colony or to sell them ; and they may also continue to bring them up in the Roman Religion" Granted, except those who shall have been made prisoners." ARTICLE X L V I I I . The Marquis de Vaudreuil, the General and Staff Officers of the land-forces, the Governors and Staff officers of the different places of the colony, the Military and Civil officers, and all other persons who shall leave the colony, or who are already absent,. shall have leave to name and appoint Attornies to act for them, and in their name in the administration of their effects, moveable and immoveable, until the peace ; and, if, by the treaty between the two crowns, Canada does not return under tile French dominions, these officers, or other persons, or attornies for them, shall have leave to sell their manors, houses, and other estates, their moveables and effects, ce que personne
n’en prétendent cause d’ignorance, et ayt a s’y conformer. Interdisons toutes autres
Cours et Juridictions, qui auroient put être établies tant dans la ville, que dans les
fauxbourgs et Campagnes.
Fait et donné sous notre scel et le contreseing de Notre Secretaire, a Quebec le 31
8
bre1760.
” J A . MURRAY.
” Par Son Excellence,
” H. T. CRAMAHB.”
(Translation. )
By His Excellency Mr. James Murray, Governor of Quebec, etc.
Our chief object having been, in the government which it has pleased His Majesty
to entrust to us, to ensure the administration of Justice to his new subjects, Canadian
as well as French, settled in the town and neighbourhood of this Government, we have
likewise thought it necessary to establish the form of procedure ; to fix the day for our
audiences, as well as those of our military council, which we have established in this
town : to the end that every one may conform to it, in the causes that they may require
to have judged at our courts, or such as we may think necessary to send to the said
Council. For this reason, we have ruled and ordered hy the present regulations as
follows :
1
st Article.
All complaints, or matters of civil or criminal interest shall be, brought before us
by petitions, or requests, addressed to us, which shall, however, be delivered to Mr
H.
Oramahé, our secretary, who shall return them, so that the summons may then be
delivered to the defendants by the first bailiff, so that they may appear to defend themselves in our Court, at the time appointed, regard being paid to the distance of the places.
2
s
Article.
The Court days shall be Tuesday in each week, from ten in the morning till noon,
and they shall be held at olir residence, beginning with next Tuesday, the 4th of
November.
3
r d Article.
The petitions, or requests which shall have been returned by our secretary, in the
manner explained in the first article, having been served on the defendants, and the
term allowed in the summons having expired, shall be re-delivered to our secretary, on
the day before the hearing, that is to say, on the Monday, for the hearing of Tuesday :
railing this, they shall not be judged, but shall be postponed till the next sitting.
4
th Article.
, . -*-ne defendants, who shall have any papers or writings available for the defence of
,,
e i^
c a u se, shall likewise be obliged to deliver them to our secretary, on the day before
hearing, otherwise judgment will be given on the demand of the plaintiff.
1833J
36 CANADIAN ARCHIVES
t
6-7 EDWARD Vil., A. 1907 . *
5
th Article. ;
If the parties summoned have no writing to produce they shall be obliged to appear
at our Court, on the day fixed, either in person or through an attorney, otherwise no
plea will be allowed them for default, and in like manner judgment will be given, on the
single summons which shall have been served on them, in order to avoid long lawsuits,
and the increase of costs.
6
th Article.
If the excessive amount of business does not allow the judging of all cases at a
single sitting, they shall be postponed till the next one, and the parties shall be obliged
to appear, without other summons.
7
th Article.
Judgments which shall be delivered at our Residence at the Court, shall be executed
without appeal, and the parties shall be compelled to give satisfaction according to what
shall be decreed, with the exception of such cases as we may think fit to send to the
Military. Council to be tried ; which shall be delivered to one of the Councillors whom
we shall name, who will make his report to the Council, so that judgment may be
given on the same for him to whom it shall belong.
8
th Article.
The Council of Wa r shall assemble on the “Wednesdays and Saturdays of each week,
and shall be held in the house of M. de Beau jeu, rue St. Louis.
9
th Article.
Judgments given in our Courts, as well as the military decrees, shall be inscribed on
the register, by the registrar whom -we have appointed for this purpose, and copies
delivered by him to the parties.
1 0a
Article.
All the above shall be executed, as well for the town as for the country ; with the
exception however of disputes that the habitants of the district may have amongst
themselves, with respect to enclosures, damages, or other provisional cases, of which we
authorize the commandant of the troops to take cognizance in each locality and t ry
summarily, reserving appeals to the Military Council, if the case pertains thereto, and
there is reason for it.
And the present regulation shall be read, published and posted in the usual places
and precincts of this town, as well as in every part of this government, that no one
may urge the plea of ignorance, and that all shall be compelled to conform to it ; and
we interdict all other courts and jurisdictions which may have been established as well
in the town, as in the suburbs and country.
Executed and given under our seal, and countersigned by our secretary, at Quebec,
the 31st October, 1760.
(Signed) J A . MURRAY.
By His Excellency,
(Signed) H. T. CRAMAHÉ.
CONSTITUTIONAL DOCUMENTS 37
SESSIONAL PAPER No. 18
GENERAL MURRAY’S REPORT OF T H E STATE OF T H E GOVERNMENT
OP QUEBEC I N CANADA J U N E 5TH, 1762.1
M Y LORD,—In obedience to His Majesty’s Commands signified in Your Lordship’s
dispatch to Sr. Jeffery Amherst of the 12th December last I have the honor to transmit
the following account of His Majesty’s Government of Quebec and dependancies thereof ;
however deficient it may prove Your Lordship may be assured it has been my earnest
desire, as it is my constant study to fulfil my Royal Masters intentions.
The better to effect the same, and in order to state the several interesting matters
of this Report in the clearest light, I shall divide the whole under the following heads.
1st—Return of His Majesty’s Forces in His Government’of ‘Quebec and dependancies thereof.
2d—State of the Fortifications
3rd—State of the Government under the French Administration
•ith—The Revenues and Expenses.
5th—Church Government.
6th—Indian Nations • *
7th—Nature of the Soil and its produce
8th—Population.
9th—Trade
10th—Character of the People
I shall subjoin some remarks pointing out the Errors of the Ancient System, and
wherein by my own observations and the best information I have been able to procure,
there is room for alterations or amendments.
QUEBEC.
GENERAL AND STAFF OFFICERS.
The Honorable James Murray Esqr. Governor.
The Honorable Lieut* Colo1
Maitland D:A:G: Governor Murrays leave to the Southern Colonies.
Lieut’ Colo1
Irving, Deputy Quarter Master General.
Hector Theop8
Cramartie, [Cramahé] Secretary to the Governor.
Lieut* Mills, Town Adjutant
Captain Malone, Barrack Master.
Captain Cosnan, Town Major. Governor Murrays leave to England for the
recovery of his Health.
Zachariah Thompson, Captain of the Ports.
ENGINEERS.
Captain Lieut* Spry l , , , , , . , ,
Lieut’ Montresor } ^ t e b h s h e d
Captain Holland Assistant.
OFFICERS OF H I S MAJESTY’S HOSPITAL.
Mr. Francis Russell Chief Surgeon
Mr. Field 1 w ,
Mr. M a b a n e j M a t e s
–
N-Bs
Mr._ Zachariah Plitner Provost Martial
Benjamin Gable Hangman.
t h e despatch of Lord Egremont to Sir Jeffery Amherst of 12th Dec, 1761, in which the King
approves of the system of military government established in the districts of Quebec, Three Rivers, and
J&ontreal, he instructs him to send, for His Majesty’s information, a full account of the newly acquired
countries. In response to this command, communicated to Murray, Burton, and Gage, we have this and
we two following Reports, which were transmitted to the Government by Sir Jeffery Amherst. These
reports were among the documents submitted to the Board of Trade for their information in preparing a
Fian or government for the territories ceded to Britain by the Treaty of Paris of 1763. See p. 96.
38 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
2. STATE OP T H E FORTIFICATIONS.—Quebec. The natural situation of the ground
•which the present front o’f the fortification is built upon towards the land, is very disadvantageous. Cape Diamond is nearest the River S’ Laurence, and is likewise the
highest ground, from whence there is a continued slope, sometimes very quick, toward
the River S* Charles, in consequence of which the walls not .being built upon a level,
but humouring the nature of the ground, the flanks of the Bastions cannot defend their
opposite faces in a proper manner, for the flanks of the higher Bastions, must fire below
the horizontal line, as the flanks of the lower ones must throw theirs above it. To
remedy this defect, the French built two Counter guards or Fausse-brays with Casemated flanks, before the right face and flanks of Laglaciere Bastion, and the left face
and flank of Bastion S’ Louis ; this however introduced another inconvenience, of
which they appear’d sensible when Monsr
de Levis besieged the Town in 1760, as He
directed his fire to this place, which had such an effect, the rubbish of the Wall filling
the Counter guard, and that from the lower the ditch, that an easy ascent might have
been very soon made to the breach.
The high grounds before Cape Diamond and La glacière Bastions command all the
lower fortifications toward the River S’ Charles, and batteries for battering in breach
may be erected at any distance, as the walls are high and seen in many places to the
bottom of the Ditch, there being no covered way or outworks and even the counterscarp wall not well finished, neither can a covered way be constructed, but at a great
expense, on account of the scarcity of Earth and irregularity of the ground, besides that
it must be crowded with traverses to prevent its being enfiladed.
To make up in some measure the want of outworks, in the Winter 1759, I erected
a line of Blockhouses within musquet shot of the capital wall to secure the body of the
place against surprises, such outworks are proof against Musquetry only.
The Walls are built of an irregular unwrought stone and in many places the work
is very badly executed as was sufficiently visible from the effect of the fire from the
French batteries in 1760.
The Gates are ill placed and not defended. S’ Louis Gate is so near the right face
o£ the Bastion of the same name, that it is beneath its fire, and the opposite flank can
have but very little fire on it, that of S’ Johns has the same fault, being too near the
left flank of S’ Johns Bastion.
The Palace gate is not much better constructed, and in general this whole front of
the place, which indeed is the only fortified one, is enfiladed from the other side of the
River S’ Charles.
The Wall from Bastion Lapotasse to Palace gate, is pierced with loop holes, and is
good in its kind. The Barracks which are built against it being also provided with
loop holes serve as a second fire. This Wall is continued to K and is built upon a
Rock.
From K to L is a very bad stockade on the top of an accessible rock, with one
small stockaded place of arms. This is the part of the Town most exposed to a coup de
main.
From L to T there is a high Wall with a wooden gallery behind it, to serve as a
banquette, and beneath it is a sally port to communicate with the lower Town.
From T to the saut au Matelot is a wall begun but carried no higher than Man is
able to step upon it, there are some plat-forms for Cannon and Mortars. From M to
M (sic) is the Royal Battery commanding the River S’ Laurence and built upon an
inaccessible rock adjoining to the Bishop’s palace, part of which was taken in during
the late siege to defend the communication from the lower to the higher Town, which
was also defended by some Cannon planted at 0.
From O to P takes in Fort S* Louis and a nine gun battery ; it is by nature
inaccessible except two small paths shewn in the plan. Fort S’ Louis is of no defense
being the remains of the earliest fortifications erected there.
From P to Q the Citadel or Redoubt of Cape Diamond, is a quick or rather steep
ascent, defended by a stockade only. Betwixt this Redoubt and the Bastions of La
Glacière and Cape Diamond is a commanding grownd overlooking the whole Town and
Fortifications. This grownd I judge very proper for the construction of a Citadel.
CONSTITUTIONAL DOCUMENTS – 39
SESSIONAL PAPER No. 18
Prom Q to R the same sort of stockade is continued, and from R to Cape Diamond
there is a Wall with loop-holes, defended by two small flanks with Cannon. ‘ The rocky
hill under these parts is very high, but accessible and in many places cover’d with brush,
by the help of which small parties m%ht advance to the very stockades.
The lower Town is only cover’d by a Stockade and some batteries ; The Batteries
marked q are to defend the road and annoy the shipping in passing the Town. The
Batteries t, are for the same purpose. They serve likewise to flank the lower Town
and the other Batteries.
From the above report and annexed Plan1
it appears that the Enceinte of Quebec is
very large and would require a very strong Garrison to defend it tho properly fortified
That at present it is open on two sides, has no out works not even a cover’d way
nor hardly a ditch, for the foot of rotten walls is to be seen from most of the Environs
at the distance of 500 Yards. That the whole Rampart is enfiladed from the other side
of the River Sc
Charles, and that in its present situation, with a Garrison of 3000 Men
it is not proof against a well conducted Coup de Main. Any temporary works that can
be added, would be of little signification, as matters now stand ; and to fortify the place
upon the old plans is by no means adviseable, the situation never can be render’d strong,
and the attempt must cost an immense sum – – I therefore am
of opinion that if His Majesty shall think proper to be at the expense of strengthening
Quebec, the most effectual method will be to erect upon the rising ground of Cape Diamond, a Citadel which will answer every purpose of the Towns being strongly fortified,
may be defended 4 months at least by a small garrison, awe the Inhabitants, whose
fidelity in case of an attack we cannot for some Years rely on, and secure our Magazines.
The Ground I propose for this Citadel commands the whole Town and is commanded
no where from the Country ; in short it possesses every advantages to be wished for, and
at a small expense may be fortified, as the Inhabitants of the Country and the Troops
in the time of peace may contribute their labor towards it gratis ; to this the former can
have no objection as they were on all occasions formerly liable to Military services and
were all allow’d only provisions.
I order’d Captain Holland to take an accurate survey of the ground and have the
honor herewith to transmit the several plans he has drawn in consequence.
I cannot slip the opportunity of recommending this Gentleman to Your Lordship’s
notice.—He came to this Country in 1756, and ever since the siege of Louisbourg 1
have been myself a witness of his unwearied endeavors for the King’s service, in a word,
He is an industrious brave Officer, and an intelligent Engineer, in which capacity he
would be desirous, and deservedly merits to be advanced.
Jacques Cartier.
This is a small facine fortification upon Cape Sauté, begun by the Prench during
the Campaign in 1759, but not completed ’till the retreat of their Army after the action
of the 13tt September.—This post served them as a frontier all that ensuing winter,
commands the River Jacques Cartier, towards which from the situation of the Ground,
it is extremely strong, but it is not capable of the least resistance, if attacked on the other
side—It is of no use to us at present, as it no where commands ye
main River.
^ Deschambeaux.
About four leagues* above the Jacques Cartier, is the point Des Chambeaux—This
place may be fortified to very good advantage, and in my opinion, is the strongest and
most important post in the Country. I t naturally divides the whole into two parts, is
the only road or avenue from lower to upper Canada, on this side of the S’ Laurence,
and commands the rapids of Richlieu ; by erecting batteries on the small island of that
name, and some fortifications on the South shore the passes by Land and by Water
may be rendered equally difficult, which is better explained by the survey and plan of
the fortifications hereto annexed.
Ran not given.
40 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
3.—STATE OP THE GOVERNMENT UNDER THE FRENCH ADMINISTRATION.
The Governor General was Chief in all Military, and the Intendant in all Civil,
affairs ; The latter superintended the justice, police and finances of the Government, he
heard anol judged difinitively in all trifling causes ; appeals from the inspector of Highways were referred to his decision ; he issued regulations for the police of Town and
Country, and emitted his ordonnances, fixing a price upon all kinds of provisions at his
will and pleasure.
For the easier administration of justice, He commissioned three sub-delegates,
residing at Quebec, Montreal, and Three Rivers, who took cognizance of such matters
as were not very intricate, but from their judgements the parties might appeal to the
Intendant.
The Prévôté of Quebec was a Court of Justice, composed of a Lieu’ General, a
Lieutenant particulier, a procureur du Roy or Kings Attorney ; they judged all matters
Civil in the first instance, and all appeals from their sentence were brought before the
Counseil Supérieur, the Prévôté likewise took cognizance of appeals from the private
jurisdictions, which could be carried again from this Court before the Conseil Supérieur.
I n capital crimes, or such as deserved severe penalties, the Lieu* General called
into his assistance two of the most eminent Lawyers, but still their sentence could not
be carried into execution, untill the same was confirmed by the Conseil, at which seven
of the members at least must be present
Attending this Court were six Notaries public a Clerk and six Huissiers, of which
one was Cryer.
The Governments of Trois Rivieres and Montreal had each their Lieu’ General, a
Kings Attorney, Clerk Notaries and Huissiers.
From these several Courts, appeals were brought before the Conseil Supérieur,
established at Quebec, composed of a first Counsellor who generally presided, and eleven
others, of which one or two were priests, these never were present in Criminal matters ;
The other Officers attending this Court were an Attorney General, a Chief Clerk, and
a premier Huissier.
At Quebec was also a Court of Admiralty, consisting of a Lieu’ General, Commission’d by the high Admiml of France, a King’s Attorney, a Clerk and Huissier, this
Court took cognizance of Maritime affairs, and appeals from thence were carried before
the Conseil Supérieur.
There was also an Inspector of the High Roads or Grand Voyer, who had the
regulation of all matters relative to them, difficulties which arose from this Officers
regulations were decided by the Intendant.
The only Laws were the Kings Edicts or the Arrets of his Council of State,
register’d at the Council Supérieur, and the Intendants ordonnances—In matters of
property they follow’d the customs of Paris, but in marriage settlements they were at
liberty to follow the Custom of any other province in that Kingdom.
The age of Majority was fixed at 25, but at 18 or upon marriage, the Council
granted them Letters of emancipation, which intitled them to enter immediately into
the enjoyment of the moveable and incomes of their estates—Guardians were chosen by
an assembly of seven of the nearest relations of the minors, and for want of these, of so
many of their friends.—A public act is drawn out, of this transaction, which is registef’d
and the person elected is sworn to administer faithfully.
Fiefs.—Is
‘ The tenure of Lands here is of two sorts The fief or seigneuries—
These lands are deemed noble, on the demise of the possessor, his eldest son inherits
one half, and shares with the other Children in the remainder, if any of these die
without posterity, the Brothers share the portion of the deceased, exclusive of their
sisters ; The purchasers of these fiefs enter into all the privileges and immunities of the
same, but pay a fifth of the purchase money to the Sovereign who is Lord of the Soil.
By Law the Seigneur is restricted from selling any part of his Lands that is not clear’d,
and is likewise obliged, (reserving a sufficiency for his own domain) to concede the
remainder to such of the Inhabitants as require the same at an annual rent not exceed-
CONSTITUTIONAL DOCUMENTS 41
SESSIONAL PAPER No. 18
ing one sol, or one half penny sterling for each Arpent (a) in superficies. The Seigneurs
have had the right of Haut, Moyenne et basse justice on their several fiefs, but this was
attended with so many abuses and inconveniences that the inferior jurisdictions were
mostly disused.
Terre en Roture.—2d
The Lands conceded by the Seigneurs is the second sort of
tenure, and these are called terres en roture.—The property is entirely in the possessors,
and the rent they pay can never be raised upon them. They can sell it as they please,
but the purchaser is obliged to pay a twelfth part of the purchase money to the Seigneur.
The Children of both sexes share equally in those Lands, but if upon a division the
several parts are found unequal to the subsistence of a family they are obliged to sell to
one another : By Law no man can build upon a piece of Land of less extent than one
Arpent and a half in front, upon a depth of 30 or 40. This was donc with a view to promote cultivation, and to oblige the_ Inhabitants to spread, Edicts have been published
from time to time, to reunite to the Crown such Lands, as were not settled within a term
of years prescribed, the last of these was published in 1732, a copy of which is annexed.
(No 1.)
The Canadians are formed into a Militia for the better regulation of which, each
parish in proportion to its extent and nuinher of inhabitants, is divided into one, two,
or more Companies, who have their proper Officers, Captains, Lieutenants, Ensigns,
Majors, Aide Majors, Sergeants etc, and all orders or public regulations are addressed to
the Captains or Commanding Officers, who are to see the same put in execution. From
these companies detachments are formed, and sent to any distance and in 1759 and
1760 the whole were in arms for the defence of their Country.
Observations.—The Intendants fixing a price upon provisions at his own will and
pleasure, was liable to much abuse, for tho’ the Country was abounding with all kind of
grain, yet under pretence that a large quantity was wanted for the Kings service, repeated levies were made upon the inhabitants, through every part of the province,
proportionably to what it was supposed they could spare, the Intendant paying such
price as he pleased to set upon it, great part of which grain was afterwards exported by
his emissaries to the French Islands, and when a scarcity was apprehended, they sold
the remainder to the public at an advanced price.
Under the pretence of a scarcity of black Cattle, and before the British Troops had
made any impression upon the Colony, Horses were killed and served to the Troops,
probably to excuse the exorbitant charge for all kind of provisions purchased on the
Kings account, for notwithstanding the waste made by two contending Armies, and that
the French Troops lived entirely upon the Country for near two Years, we have the
strongest occular proof, there was no occasion to have recourse to this expedient, if the
Kings officers had not meant it as a Cloak for their Knavery.
“2^—The members of the Courts of Justice were mostly natives of old France, and
minded more their own affairs than the administration of justice. Their decisions
were therefore not much respected ; and indeed for success the parties generally depended
more upon the favour of the protection of the great, than upon the goodness and justice
of their cause.
3
a—Tho’ the Governor General, the Bishop and the Intendant, were by their several
Offices, Presidents of the Council, and that heretofore they used to be present at their
deliberations, in latter times they never honor’d it with their presence, a circumstance
that contributed much to the general disesteem, into which this part of the judicature
had fallen.
4—-The Office of Grand Yoyer or Inspector of the High roads, under proper
regulations and restrictions seems to be highly necessary for the care and benefit of the
interior Commerce.
5—The Canadians mostly of a Norman Race ; are, in general, of a litigious disposition ; The many formalities in their procedures and the multiplicity of Instruments
to be drawn up upon every occasion, seems to encourage this disposition—A short and
“well digested Code, by laying aside many of these, may in a great measure serve to
(°) An Arpent consista of ten perches each 18 feet French measure.
42 CANADIAN AR0EI7ES
6-7 EDWARD VII., A. 1907
6
a—Fixing the age of Majority as in other parts of his Majestys dominions, is an
innovation that could not fail of being agreeable to the Youth, as the freedom of building
where they see convenient, and upon such extent of ground, as they think proper, would
be acceptable to all people in general and promote new establishments, especially the
Fisheries in the lower parts of the River and Gulph of 8′ Laurence.
4. REVENUES AND EXPENCE OF THE GOVERNMENT UNDER THE FRENCH ADMINISTRATION.
Tho’ I should properly give a state of the Revenues and expense of the Govern
ment of Quebec only, yet the whole under the French administration was so blended
together it does not appear practicable to separate the same, and have therefore
collected here all that has come to my knowledge on this head, without distinction of
Governments. 1st—Five ports, (a) part of the Kings domaine which were under the
immediate management of the director General ‘of it ; He furnished them at the
Kings expense with the Merchandize and effects proper for the Indian Trade or
Fisheries which were carried on at these feveral ports and received from thence likewise on the Kings account the Furs, Oil, Fish or other produce of the same.
They had been farmed but the Lease expired in 1756, they were advertised and
no one bidding for them on account of the War, the Intendant lest the Indians should
quit their usual haunts, ordered them under the foregoing management, which continued untill our arrival, tho’ the expense far exceeded the produce,
sterling about I here set them down at the highest rent paid for
them when farm’d, under the French Govern-
£ 2 9 1 : 1 3 : 4 ment 7,000
2
d
Duty on Liquors imported
£ ..0 ,. 0 „ 10 Wine by the Hogshead , 12
£ :-0 ii 1 H 8 Rum by the Hogshead 24
1 Veldt or measure of 2 Gallons of Brandy 1 u 4
\ Ordinary wine bottled pr
Bottle 1
1¿ Bottled sweet wine p Bottle 3
5 Eau de Vie de Liqueur p: Gallon 10
£8018 M 2 ,i 3. These several duties produced in 1757 192434 „ 14 „ 0.
3
d
Lots and Ventes. This arises from the sale of
Houses and Lands en roture, upon those in the
King’s possession. The purchaser paying him
a twelfth as his immediate Lord.
£921 „ 13 „ HJ.This produced in 1757. 22,120 „ 15 „ 2.
4
t h
. . . . Cent et Rentes, or Ground Rents of Houses built
on the King’s Lands in the City and Suburbs
‘ of Quebec.
These are very trifling as they let to the indivi-
¿, f, 1 J, 2 | . duals for no more than six derniers, one Sol six
derniers, trois sols six derniers or 5 Sols per
annum
These were collected in 1759 for 29 Years together
£93 II 2 H 9. and produced only 2235 n 6 n 2.
5th Dutv (6) on dry goods imported
£3363 ,, 18 „ 3J This” produced in 1757 80,733 „ 18 „ 4.
a Tariff was ” fixed regulating what each
species of goods was to pay, those that were
trifling were valued, and paid 3 pr
Cent of
their Valuation.
(a) rive ports—Tadousao, Ohicotini, Mal baye, Islet de Feremie, Sept Isle
(6) No 2.
CONSTITUTIONAL DOCUMENTS 43
SESSIONAL PAPER No. 18
N.B*.—Cordage of all sorts, Salt and the produce of
the Fisheries, and other Trade in the River S’
Laurence were exempted from this duty.
6
th Duty on dry goods exported (a)
£1601 H 15 M 0£ This produced in 1757 . . . . . .
There was a Tariff (b) likewise for these in which
all kinds of Furs were included as the East India
Company had the exclusive privilege of buying
and exporting all the Beaver of the Country
paying the owner 4 Livres a pound for the green
or winter Beaver, and one livre 10 sols for
Parchment or Summer Beaver, the Company
paid the King a duty of 3 pr
Cent for the quantity exported according to the above rate.
38,422
£56 n 3
sa
Duty on the exportation of Moose Deerskins—
This duty was of two Livres p* Skin, and- was the
first established in the Colony. The exportation
of this Article, has been considerable, but was of
late Years much diminished
In 1757 it produced £ 1348 n 0 n 0
. . I n 1749, a Tax was laid upon every House
within the City and Suburbs of Quebec for repairing the Barracks and keeping the same in order.
The reparation was made by the Officers of Justice
and a deputy from the Trade approved by the
Governor General and the Intendant.
mounted to 13,491 : 3 : 9 .
to 13,351
to 13,881
to 13,351
to 13,701
to 13,666
to 13,891 : 10
to 13,713 : 10
to 13,741 .. .
to 13,528 .. .
I t is pretty remarkable that notwithstanding
the Tax was levied from the Year 1749, inclusive,
the King’s Edict ordering the same to be raised
from the ensuing January is dated only in June
1763.
Besides the foregoing there were certain casual
duties, such as—
V’ Droit d’Aubaine—a Foreigner dying intestate and without Children the King succeeded to
his Estate.
thfi T?- A
‘^-S>rt;s °f provisions of the growth of Canada, Goods for the Indian Trade in the lower parts of
this D t™’ r s e s’ Shipping Country built, Timber of all kinds, and Salt Herrings were exempted from
{b)$’o, 2.
562 , 2 .8}In 1749
552 , 2 6. ” 1750
578 7 6. ” 1751
552 2 6 ” 1752
570 17 6 ” 1753
569 8 4 ” 1754
578 16 3 ” 1755
571 7 1. ” 1756
572 11 6. ” 1757
bM 13 4. ” 1758
44 CANADIAN ARCHIVES
£8018 2 3.
921 13 1U
3368 18 3*
1601 15 0*
56 3 4
£13,961 : 12 : 10J
6-7 EDWARD VII., A. 1907
2
nd Droit de Déshérences. Likewise to Estates
which fall to persons under monastic vows, and
therefore incapable of inheriting, or to persons
illegitimate’ who dye without posterity and intestate.
3
d
Droit d’Epaves—Where Whales or wrecks
are drove ashore above the high water mark, all
expences first deducted, the King had one third,
the High Admiral another and the person who
saved it the remainder. ‘
The Receipts in 1757 stood thus.
To raised on Liquors imported 192,434 : 14 : 0.
” ” on the Lots and Vents 22,120 : 15 : 2.
” ” on dry goods imported 80,733 : 18 : 4.
” ” on D° exported 38,442 : 1 : 5.
” on Moose Deer Skins exported 1,348 : 0 : 0.
Total , 335,079: 8 : 1 1 .
EXPENOE OF GOVERNMENT 1757.
By duties paid on Liquors imported for the Kings
523 : 10 : 0 account 12,564 : 0 : 0
2719 : 3 : 9. By sundry Contingent expenses 65,260 : 0 : 0
3242 : 13
3
d
653 : ,5 :
9 77,824 :
The particulars of this sum were
Expences of Criminal Suits, apprehending and
guarding criminals, Expences of Evidence etc
26004:13:2. This article of expence varied every
Year more or less, it seldom exceeded the above
and has been as low as 10,000
Maintenance of Poundlings and Bastards Children
of the Three Governments at the rate of 10 Liv:
p
r
Month 18511:6:8. This likewise varied, one
Year it amounted to 24,000
Public Works and High Roads 9494:15. This also
varied. I t has often exceeded 12,000.
Expence of Public Prisons and subsistence of
Prisoners 11249 : 15 : 2. This article exceeded
the usual expence on account of the English
Prisoners
By the Cantine of the Troops in the Three Garrisons 15,678 :
This was a Douceur allow’d the Staff of each Garrison. The Town Major made out rolls of the
Soldiers of each Garrison and these were certified
by the Comptroller of the Marine. I t was supposed three half pints of Wine pr
day were imported for their allowance the duty on the amount of
which was returned by the receiver General.
This perquisite was shared among the Governors
who had one half of it the Staff divided the other
half.
0 : 0.
H
CONSTITUTIONAL DOCUMENTS 45
SESSIONAL PAPER No, 18
Proportion of the several.Governments in 1757.
Quebec 8063 : 3 : 7
Montreal 6122 : 0 : 0
Trois Rivières 1493 : 3 : 7.
By allowed the Attorney General for making
out a State of the Kings Rents 10,00 . 0 . 0.
By Duties paid on goods imported for the Kings
account , 21,160 : 6 : 3.
By Salaries of Officers and other expences attending the receipt of the Kings Revenues. -… 36,961 : 17 : 1
41 13 4.
923 6 11
1540 1 «i
£6401 0 10. 153,625
This last article comprehends,
1
st (a) The Salaries of Clerks, Landwaiters and
other Revenue Officers 27,792 : 11 : 6.
2
d
Usual (6) gratifications 1270.
3
a
By sundry other expences, trifling Repairs
of Office 200
House rent of D° „ 4,000
Fuel for D° 1450
Repair of Canoes 400
Stationary 999
Salary of the Clerk of the Treasurer General of
the Marine 600
To a Gauger 250
The foregoing expences were not always the
same and were paid upon the Intendants
orders, and by his directions in which they
differed from the following which was called
Etat du Roy du Domaine, and was the Establishment paid by a Yearly order from the
King signified by his Warrant signed in Council and which generally amounted to 114,000
Livres or there abouts.
0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
E T A T DU R O Y DU D O M A I N E .
125
157
20
75
50
33
By expences of Ports and Garrisons Governor
General as Governor of the Town and Castle
0 of Quebec 3000 : 0 : 0.
8J Pay(c)andProvisionsof theGarrkon 3770 : 0 : 0.
0 Fuel of D° 480 : 0 : 0
0 Lieut* du Roy 1800 : 0 : 0.
0 Town Major , 1200 : 0 : 0
8 ^ Captain of the Gates 800 : 0 : 0.
460 : 8 : 4J- 11850 : 0 : 0.
(a) A. list o£ these for 1758, is annexed JSP* 3. That for 1757 did not come into our hands.
V>) This article of gratification was to reimburse the Governor and other Officers, what it was supposed ^ey paid for duties Tne Governor’ General received ofthïs..” ~.”.. 7.. r.7~600
ine Intendant 450.
governors Secretary 75.
intendants D» 145
25
18
3
6
0 : 0
15 : 0
2 : 6
10 : 0
1270 53 : 7 : 6
(«) As no Garrison was kept either at Quebec, Montreal or Trois Kivières the above were perquisites
to the several Governors.
46 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
125
54
83
50
125
54
75
50
0
3 ,
6 : 8
0 : 0
0
4
0 :0
3 :4
0 : 0
0 : 0
1077 :
112 : 10 :
333 : 6 :
83 : 6 :
316 : 13
554 : 3
50 : 0
62 : 10
312 10
83 10
Montreal
Governor (a)
Pay of the Garrison
Lieut’ (b) du Boy
Town Major
Trois Rivieres
Governor
Pay of the Garrison
Lieut’ du Roy
Town Major (c)
3000
1300
2000
1200
3000
1300
1800
1200
7500 : 0 : 0
7300 : 0 : 0
1 : 8 . _ 25,850 :
By paid to Religious uses
0 To the Clergy (d) and in aid of building Churches 2700
8 To the Chapter of Quebec 8000
8. To the support (d) of superanuated Priests or
Missionaries , 2000
4 As a supplement (d) to Cures of Poor Parishes… 7600
4 To the Jesuits for their Missions and a Professor
of Hydrography 13,300
0 To the Recollets of Quebec 1200
0 To the Convent of TJrsulines 1500
0 To the Convent of the Hôtel Dieu 7500
0. To the Convent of the Hospital General 2000 45,800
0 : 0
0 : 0
83 10 0 ‘
125 0 0 ‘
20 16 8
187 10 0
62 10 0
29 3 4
4 3 4
3498 5 0.
29 3 4
25 0 0
12 10 0
4 3 4
At Montreal
To the Hospitalières , . . . . 2000
To the Pilles de la Congregation 3000
By the Salaries of Officers of Justice
To the first Conseiler of the Conseil Supérieur (e). 500
To 10 others at 450 each ( / ) 4500
To the Attorney General 1500
To the Greffier 700
To the Huissier 100 12,300 : 0 : 0
83,950 : 0 : 0
Salaries of the Officers of Prévôté of Quebec.
Lieut’ Gen1
Civil and Criminal (g) 700
Lieutenant Particulier . . . 600
Proceurer du Roy 300
Greffier 100 1 7 , 0 0 : 0 : 0
(a) This Officer had by way of gratuity from the Marine Che3t 1000 Livres and § p
r
Cent from the
Bast India Company on the Beavor they exported amounting’ to about 1500 more.
(i) The Lieutenants du Roy had each 1800 Livres, the Senior of these had a gratuity of 200 besides,
the Lieut* of Montreal was the senior in 1757.
(c) The Town Major had a perquisite of 2 Barrels of Powder each for the use of their Garrisons, but as
they did not exist, they received each «in lieu thereof from the Storekeeper 250 Livres. Each Gov’ also
paid his Town Major 100 Livres for signing the Rolls.
(d) (d) (d) These were distributed by the Bishops.
(e) Of late Years he had a Gratuity of 450Ib from the Marine
(/) There was a vacancy of one this Tear. The Salary of Three Eldest had of late Years been augmented with a gratuity to each of 150 Livres also from the Marine
(a) This officer had of late Years obtained an addition of 300 Livres out of the Marine fund. ,
CONSTITUTIONAL DOCUMENTS 47
SESSIONAL PAPER No. Ï8
Montreal.
18 : 5 : 0 Lieutenant Gen1
Civil 450
1 0 : 8 : 4 Proceurer du Roy 250 7 0 0 : 0 : 0
Trois Rivieres
18 : 5 : 0 Lieutenant Gen1
Civil 450
1 0 : 8 : 4 Proceurer du Roy 250 7 0 0 : 0 : 0
Salaries of the Officers of Police
2 5 : 0 : 0 To the Grand Yoyer (a) 600
20 : 16 : 8 To the Prévost des Maréchaux de France (b)r
500
1 2 : 1 0 : 0 To an exempt under Him 300
2 9 : 3 : 4 To 4 Archers (o) 175 Livres each . 700
13 : 15 : 0 To a Hangman 330 2 4 3 0 : 0 : 0
3728 : 6 : 8 . ” 89,480 : 0 : 0
By expenses of the Hospital at Quebec.
50 : 0 : 0 Salary to a Pysician.. .* 1200
50 : 0 i 0 First Surgeon 1200
3 3 : 6 : 8. Second Surgeon , . . 800
2 5 : 0 : 0 Midwife , 600 3 8 0 0 : 0 : 0
By Sundry extraordinary expenees
41 : 13 : 4 Publication of the decrees pf Council 1,000
4 : 3 : 4 Expenees of Fuel (d) in ye
Council room. . . . . . . . 100
8 : 6 : 8 Travelling Charges of the Archers 200
20 : 16 : 8. Allow’d the Bishop in lieu of Duties paid by him 500 1 8 0 0 : 0 : 0
By paid to the Establishment of Louisberg, a
Pension to the Count of Gacé son to the
Marquis of Matignon in lieu of some land
50 : 0 : 0 taken into the Kings hands 6000
333 : 6 : 8 D° to the’Religious Brothers of la Charité 8000 ‘
62 : 10 : 0 D° to the Nuns of La Congregation 1500
50 : 0 : 0 D” to 4 Councilors at 300 each 1200
16 : 13 : 0 D° to the Proceureur General All at same place. 400 17,100 : 0 : 0
83 : 6 : 8 By a pension to a Botanist at Louisiana ,. 2000 : 0 : 0
4757 : 10 : 0 Total of the Etat du Roy 114180 : 0 : 0
THE SALAR? AND PERQUISITES OF THE GOVERNOR GENERAL.
£500 : 0 : 0 From the Marine Funds appointments 12000
125 : 0 : 0 From D° allowance for freight of necessaries from
France 3000
I-‘5 : 0 : 0 From the Domaine as private Govr
of Quebec 3000
157 : 1 ; 8. From D° Pay of the Garrison 3770
25 : 0 : 0 From D° in lieu of what he paid for duties 600
ih + *S
*-*®9er h3
^ likewise an allowance of 10Ib pr
diem extraordinary when upon his duty. If the
aoitants applied to him to make out roads for their own private advantage they were at all the expenees
snding the same.
(o) This Officer likewise had an allowance of 7lb 10s
pr
diem travelling charges when out upon the
îukon of his office.
n. These were severally allowed 3lb pr
diem when sent in pursuit of Deserters or other Criminals.
>h -HT T w a s a Perquisite to the Lieutenant General and as the firing would have cost three times as
-n, the Intendants supplied the same out of the King’s Yard.
48 OANADIAN ARCHIVES
58 6 8
41 3 4
25 0 0
233 15 0
6-7 EDWARD VII., A. 190?
Prom the Marine a Company of Guards Call’d the Carabineers to attend him They had usually two or three,
and public or state days they found people enough to
complete the number.—They consisted of
A Captain at 1400
Lieutenant 1000
Ensign 600
17 Private at 27lb pr
Month 5610
Prom the E : India Compy
a present of 2 pr
C* on all the
Beaver exported by them, valuing the whole* upon an
-average of 2ll> pr
pound. This varied every Year but
upon a medium may be set down 6000
His share of the Cantine as set down above.
167 : 19 : 2 This likewise varied in 1757 it produced 4031
For Belts of Wampum presented by the Savages to the
Governor at the several Conferences he had with the
different tribes which Belts he sent to the Kings
stores to be worked up into another Form, and for
which the King paid him 2000
41011
250 : 0 : 0
83 : 6 : 8 .
1792 : 2 : 6
500
125
18
187
50
50
10
0
0
T H E SALAEY AND PERQUISITES OF THE INTENDANT.
0 From the Marine appointments , 12000
0 From D° allowance for Freight of necessaries from France , 3000
0. From the Domaine in lieu of duties he paid 450
From the E : India Comp7
a present of
one and a half per C on all the Beaver
0 exported by them at a medium 4500
0 From the Marine allowance for a Secretary 1200
0 From D° for a Gardiner 1200
930 : 15 : 0
From the foregoing it appears that the
Country duties raised in 1757 together
with the other Revenues belonging to .the
13,961 : 12 : 10J King produced that Year the sum of . . . .
From which deducting the Etat du Roy
amounting to 114,180.
And the expences ordered on this side by
1 1 , 1 5 8 : 1 0 : 5£ the Intendant 153,624 : 10 : 6
22,350
335,079 : 8 : 11
267,804 : 10 : 6
2,803: 2 : 5J Remained a surplus of.. “. 6 7 , 2 7 4 : 1 8 : 5
Which surplus when there was any, was paid by the Receiver General of the Kings
domaine, into the hands of the Commis of the Treasurer General of the Marine as an
addition to that Fund, out of which all the general expences were paid. Such as the
Subsistence and provision of the eight Battalions, Forty Companies of Marines and
Detachment of Royal Artillery serving in Canada, the officer of the naval Yard of Quebec,
and in short all the ordinary and extraordinary expences attending the Military and Civil
Government of Canada the officers of the Court of Admiralty only excepted, who were
paid by the High Admiral of France.
The expence of Government in this Country was formerly very moderate, for a
series of Years to that of 1726, it never exceeded 360,000 Livres; the two ensuing ones
it was advanced to aboub half a Million, on account of the Colonies being at War at
that time, with the Indian nation of Renards. From this period it gradually increased
OOXSTTTUTIONAL DOCUMENTS 49
SESSIONAL PAPER No. 18
to a Million, and from the breaking out of the war with Great Britain in 1744, till peace
was concluded with her in 174:8, the annual expence amounted to about 2 Millions.
In the month of August in that very Year the late Intendant Mr
Bigoe came over,
the expences have ever encreased and to 1753 inclusive did not amount to less than
three, four, or five Millions every Year.
In 1754 Bills were drawn on France for 6000,000
1755 5,500,000
1756 8,000,000
1757 12,000,000
1758 24,000,000
1759 . 30,000,000
1760 The Intendant was directed not to exceed two
Million four hundred thousand Livres and
drew only for 1,300,000
To the above is to be added the Paper Money »
remaining in the Country, and for which no
Letters of Exchange have been d r a w n . . . . . . 22,000,000
4,533,333, 6 : 8 108,800,000
Of the whole upon the most moderate computa3,333,333 : 6 : 8 tion, at least 80 Millions are still owing
The manner of transacting the business is thus. The Intendant for every expence
emitted the ordonnances, which passed current with his bare signature only, one of
which, (No 4.) is annexed to shew the nature of it ; in August notice was given to the
proprietors, to bring into the Treasury within the Month of September, and untill the
10″1
of October, the Ordonnances in their possession, for which they took the Treasurers
receipt, and commenced drawing the Letters of Exchange, which continued fifteen or
twenty days, or till the navigation was shut up.
From the Year 1740, to t’^at of 1746 Letters of Exchange were drawn only for
three fourts of the value brought into the Treasury ; these indeed payable in 6, 7, 8,
or 9 months, when they were duly discharged, the remaining fourth was reimbursed the
proprietors, by a Card Money, of which there is to the amount of near a Million still
existing in the Colony.
From 1746, to 1752, Letters of Exchange were drawn for the full sum brought into
the Treasury and were all made payable sometime within the ensuing Year.
But the expences having encreased considerably orders were given to divide those
of the Year into three equal parts payable in 1, 2, or 3 Years this was put in execution
m 1753, but the very Year following another arrangement took place ; only one fourth
part was made payable in the course of the ensuing Year, one half ty> o Years after that
and the remaining fourth in three ; and this Method was ever after observed ’till
the Year 1760. By this means a great number of those drawn in the preceding Years,
were not come in course of payment, when the Kings Arret of October 1759 suspended
payment entirely
NB° the Clerks of the Marine and other Officers employ’d in that department,
having left the Country it has not been possible to procure certain accounts of the
expences of that branch.
Throughout these calculations and in every other part of this Report, The French
Livre to avoid Fractions is esteemed at ten pence Sterlg
Observations
I
s
‘ I had the Honor to inform the Lords of the Treasury very fully of the state
of the Kings ports, in a Letter to M Martin their Secretary, of the Tb
November
last, at the same time that I transmitted all accounts relative .thereto by Mr
Ainslie
whom I intrusted with the management of them untill I could receive instructions from
home, I am thoroughly persuaded the proposal I therein made to their Lordships of selling
18—3—4 E—16
50 CANADIAN ARCHIVES
* 6-7 EDWARD VII., A. 1907
them to the highest bidder, for a Term of Years, is the surest expedient to make them
profitable to His Majesty.
2—The duty on Liquids will ever bring in a considerable sum, for tho’ the
Canadians in general are not much given to drunkenness, Yet Men, Women and
Children are used to drink a certain quantity of strong Liquors, the severity of the
Climate having probably introduced this practice. By the great improvement likely to
be made in the Fisheries the consumption of these will considerably increase.
3—As the Canadians seem thoroughly reconciled to the use of British made Corn
spirits, the consumption thereof could suffer no diminution, from a moderate duty upon
the same of 6a
pr
Gallon, and that of Rum or JSTew England Spirits might be raised to a
Shilling, this would check the importation of the latter and favor that of the former,
that the Revenue may not suffer by this measure, it will be necessary to prevent any
attempts which may be made of smuggling by the Lakes while they are navigable as
well as when they are to be travelled over with carriages.—The like precaution will be
necessary to be taken for the lower part of this River, which abounds with little bays,
Creeks, and Rivers favorable for such practices, as detrimental to the fair Trader as to
the state itself.
4’11—As there have been few or no purchases made since we have been in possession of Canada, the people having no money and being uncertain of their fate, the Lots
et Vents, have produced nothing considerable ; when a settlement takes place this
branch of the Revenue will probably receive a large encrease.
5—The tax upon Horses in the City and Suburbs of Quebec for the support of the
Barracks, could not be levied upon the Inhabitants since the Town has been in our
possession, as great part of it was in ruins, and many of these who were fomerly
wealthy have been reduced to great distress thereby, besides that it might prove a
disencouragement to the rebuilding it
6—As probably it may be thought right, not to receive the duties on dry goods, a
Tax upon Horses might be introduced in lieu thereof, it would serve also ‘to restrain a
piece of luxury the people of this Country are too apt to run into, in that respect, and
prove a means to encourage the breed of horned Cattle of which at present by the
unavoidable waste of “War, they are very short, besides, as Cattle must be housed here
for a long time during the Winter, the Horn’d kind are fodder’d with more ease, less
cost, and afford a double utility.
7
th—The small salaries given by the French Government to the Civil Officers in
general made them neglect their duty and wreck their invention to cheat and trick
both King and People ; This was carried to such a length that many instances may be
cited of clerks and men in petty Offices with Yearly Salaries of only Six or Eight
Hundred Livres, raising to themselves in the compass of three or four Years Fortunes
of three or four hundred thousand.
8.—Before I close this article I must add that the duty on Wine may be easily
revived without distressing the people or lessening the consumption, as there is no
doubt that an additional one may be raised hereafter upon spirits. But it must be
observed, that the lighter the burthens are laid at present upon the people, the more it
will ingratiate their new Masters, the more it will enable them to repair their past losses
and the sooner they will be in a condition to contribute a proper portion to the public
expences.
5
th
CHURCH GOVERNMENT
The Bishop. »
When the Bishoprick of Quebec was first established in 1764, the See was
endowed by Louis the 14th with the Revenues of two Abbacies, those of Benevent and
L’Estrees ; about 30 Years ago the Bishop then finding it difficult, considering the
distance, to recover the revenues of them by consent of Louis the 15lli resigned the
same to the Clergy of France, to be united to a particular revenue of theirs stiled the
CONSTITUTIONAL DOCUMENTS ‘” 51
SESSIONAL PAPER No. 18
^Economats applied to the augmentation of small livings. In consideration of which the
Bishop of this See has ever since received 8,000 Livres out of the said Revenues. A few
Years before the late Bishops death, the Clergy of Prance granted him for his life only
* a further pension of 2000 Livres. The Bishop had no estate whatsoever, except his
palace in Quebec destroyed by our Artillery, a Garden and the Ground rent of two or
three Houses adjoining it and built upon some part of the land.
The Chapter of Quebec.
The Chapter consists of a Dean and twelve Canons ; Their revenue consisted of an
Abbacy in France which brought them in about 4000 Livres and a pension from the
King of Eight Thousand paid out of the Domaine, The whole was divided into fourteen
shares of which the Dean had two.
There is one vacancy in the Chapter, the present Dean- the Abbé de la Corne, a
Canadian and five of the Canons are in France.
Parish of Quebec.
The Town and Suburbs form but one parish which is very extensive and is served
by a Curé and two Vicars under him. The Church is Parochial as well as Cathedral,
no part of it is left standing but the bare walls ; a Chapel of ease in the lower Town
was likewise burnt during the Siege. The people at present perform their devotions in
the Chapels of the several religious communities. Some part of the Lordship of Quebec
is the property of the Cathedral or parish Church, stiled here La fabrique and is appropriated to the repairs of it : a dispute subsists between the Chapter and the seminary
about the nomination of the Curé, the affair was to have been judged by the King but
was still undetermined.
The Jésuites
They possess a large commodious House, a handsome Chapel and a spacious Garden
within the upper Town, the House and Chappel suffer’d a good deal from our artillery,
but might be easily repaired ; no other place in the Town being so proper, it has and is
still made use of as a Magazine of Provisions. For this reason it was necessary to dislodge the Fathers the first Winter, less their turbulent and intriguing genius should
prompt them to play some Trick which might have proved fatal in the critical situation
oí affairs and which they could perhaps have easily compassed had they been suffer’d to
reside in the House. After the capitulation of Montreal they were readmitted and conveniently lodged in one wing of it and have freely consented to’His Majesty making
use of the remainder.
Their particular province is the instruction of Youth and the Missions of the
Savages, the King allow’d them on account of the latter, 13,300 Livres.
They have a very large estate in the Country and hold some lands in the Town en
-Koture, but are Lords of very large tracts in this Government, and of very considerable
ones in the other two. They possess in that of Quebec the best part of the large and
rich parish of Charlebourg, that of Lorette and most of S* Foix. By the best accounts
their revenues carmot be short of 30,000 Livres pr
annum and most probably exceed it ;
of which in this Government about Eleven Thousand. They have only two Missions
+ T? o n e *° *^e
Hurons at Jeune Lorette near Quebec, the other 4o the Montaignais
at Tadousac and Chieoutimi. The whole number in Quebec Governmt the two Missionaries included is 9. The Supérieur is nominated in France and holds the Office generally
six Years.
The Retollets
This is an order of Mendicant Friars who possess nothing of their own but a House
and Garden in the upper Town. They had a piece of ground in the suburb of S* Rock
°n which they had formerly a house and church, which has been abandoned for some
xears. A small part of the Intendants buildings is erected upon a piece of this Land,
18—3—4J
52 – CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
in consideration of which under the French Government they were paid fifty Louis a
Year from the Marine by way of charity as they can receive no rents. They acted as
Chaplains to the Army, and at the several Forts or posts and failure of regular Clergy_
served the vacant Cures.
They have a provincial Commissary resident here, who superintends the whole order
in Canada, sent from France and changed every three Years. The present one has discharged it twice, on account of the War. They have in this Government
Fathers 10
As Servants or B re t hre n. . .. 9 19
Seminary Quebec.
These are Secular Clergy : Their institution is to educate the Youth and fit them
for the priesthood. They have a large House and Chapel in the City of Quebec, both
in a ruinous condition ever since the siege of 1759. It is a dépendance upon the seminary for Foreign Missions at Paris, who nominate the superiors and directors of that of
Quebec, but their estates are not entirely distinct ; besides the Island of Jesus in the
Government of Montreal, they possess part of the Lordship of Quebec & the whole extent
•of the country from the Saut de Montmorenci to the Riviere du Goufre in the Bay of
S* Pauls inclusively and the Island of Coudres. This immense tract does not bring them
i n very considerably, their great Revenues in these parts arising from the two large
Farms in the Parish of S’ Joachim, where before the breaking out of the war, they had
between three and four hundred head of Cattle ; on their estate in the Bay of S’ Pauls
they discover’d some Years ago a Lead mine, the Veins which have been tried are slight,
“but two Germans who were brought over to the Country, on account of the like discoveries
in the upper Country, examined this and thought it worth working ; the War has prevented making further Essais upon it. The income of their estate in this Government
may be estimated at about 9,000 Livres pr
Annum They consist at present of only the
Superior and four directors.
Convent of the Hotel Dieu of Quebec
This is a community of women, particularly instituted foi\ the care of the Sick ;
They had been in good circumstances but their House having been entirely consumed
by Fire, a few Years ago, they are considerably indebted for the rebuilding of it.
This house has two distinct estates and Purses, the one belonging to the community,
the other to the Poor—The former owes about 108,000 to different Artificers, and for
sums borrowed towards rebuilding the Convent.
They have a Rent charge upon the Hotel de Ville at
Paris which brings them in 1330 Livres
A Seigneurie in Charlebourg with estates & gardens in
this Town ‘. . 3500
For its share of the 7500 pa
by the King 3000 7830
They keep some pretty large Farms in their hands Cultivated by their domesticks,
out of the produce whereof they are at present chiefly subsisted.
Number of Nuns 36
The Poor have a charge on the Hotel de Ville at Paris
Foundation of a Dutchess D’Aiguillon 646 : 12 : 0
The Lorflship of S’ Augustine 1200 : 0 : 0
Their other estates in the suburb of Quebec including
a small one in the Island of Orleans produce
about f 5 0 0 : 0 : 0
Their part of the Kings bounty was 4,000 : 0 : 0
6,346 : 12 : 0.
They are not at present in circumstances to take in any.
CONSTITUTIONAL DOCUMENTS’ 53
SESSIONAL PAPER No. 16
Convent of the Ursulines at Quebec.
This is likewise a community of Women, their institution is for the education of
Young Girls.
They have a Rent charge on Hotel de Ville at Paris.. 1400 : 0 : 0
A Farm in Normandy , 950 : 0 : 0
The Lordship of Portneuf in this Country and S’ Croix,
about 7 7 2 : 0 : 0
Their other estates in and about T o w n . . . . about 960
Nuns 38. 4082 : 0 : 0
The chief estate of this community consists in their Boarders, and a number of
little ingenious works, for which there is a great demand, by means of which they are
enabled.to live very decently and comfortably.
The General Hospital near Quebec.
This is a community oï Women, they have a Foundation for taking care of Thirty
Invalids, Idiots or Incurables, which they are at present in no condition to fulfil, their
revenues being no way equal to the expence, and as a large sum is owing them by the
King of France for the sick of his army. In the time of the French they were allowed
rations for as many of the above as they took in and a pension of 2,000 Livres. The
Ladies of this community are of the best Families in Canada and by the presents they
were continually receiving from them they were chiefly enabled to subsist ; That revenue
is now at an end, as the Gentry in general are at present in the most distressed circumstances.
They owe a very large debt contracted in a good measure for the support of the
sick Officers and Soldiers of the French Army. The French King owes them a large
sum, sufficient to discharge it, but they must be reduced to the utmost beggary and
distress if he does not ; The sale of all their houses and Lands will scarce be sufficient to
satisfy their Creditors.
Their whole estate in this Country does not bring them
in at the most above 5000 Livres.
A rent on the Hotel de Ville at Paris 1800 6,800-
Their Number Nuns 33
Invalids 33— 66.
Les Filles de la Congregation
This was an institution for teaching Young Girls to read and write ; they take the
vows but are not cloister’d and go abroad about their affairs. They are poor. However
besides what they possess in the other two Governments they had a House in the lower
-Town destroy’d by our Artillery, one at Point au Tremble and one with a small Farm
at S< Famille in the Island of Orleans. Their number at present in this Government 4. This Government is divided into 50 Parishes some of which are small, and not thoroughly inhabited as Yet : For want of regular Clergy, several of the Reeollets serve taures, a n d in some places one Curé serves two, the whole is under the inspection of a Vicar General at present, during the vacancy of the See. Observations. 1 st rrjhe Canadians are very ignorant and extremely tenacious of their Religion, nothing can contribute so much to make them staunch subjects to his Majesty as the ? eif Government giving them every reason to imagine no alteration is to be attempted m that point. 5i CANADIAN. ARCHIVES 6-7 EDWARD VII., A. 1907 2. . .Care was taken under the former Government to keep up a great part of the Clergy French, especially the dignified part : To prevent the further importation of these, it would be necessary to encourage the natives to engage in the profession, which cannot be so well done, except the See is filled up, as without a Bishop there can be no ordination ; some difficulty will attend this, as it is unendow'd tho! hereafter means may be found of making up this deficiency. 3 a . . .A like difficulty occurs in relation to the Chapter, their number indeed might be reduced by letting the vacancies lye dormant, if some provision cannot be made for them as will hereafter be proposed. 4 th . . .An expedient to assist the people in rebuilding their great Church, would much ingratiate their new Masters with them. 5'\ . .The Jésuites are neither loved nor esteemed in general, and this order may be easily removed whenever the Government shall think proper without giving offence, out of part of their Estate provision might be made for the Bishoprick, and Chapter which would ease the Crown of further expences on that head. 6 th The Recollets is an order of Mendicants, as they depend upon charity for subsistence, they are careful not to give offence ; probably should they find the Inhabitants upon the present change, cool towards their Order, they will of themselves seek a better living somewhere else. 7 th The Seminary educates the Youth, and fits them for Orders, it will be necessary to preserve and encourage this House on that account, and it is to be observed, this was the only Religious House or order, that heretofore did not participate of the French Kings Bounty. 8 th As to the communities of Women they are much esteemed and respected by the People, the narrowness of their circumstances will probably prevent their being filled up so easily as in former times ; when the Canadians become a little more reconciled to British customs and Government, it may not be amiss under colour of serving those communities in their distressed situation, to restrict the admission of any under a certain sum ; this regulation with another fixing a certain age, under which no vows to be taken, would probably soon reform the worst abuses of such institutions. 9 th. . .There are some few French Protestants in this Country who no doubt will be willing to remain, it would be a great comfort to these, if a Church was granted for their use, and some French Clergyman of sound sense and good Character, with, a tolerable salary, was invited to settle among them, such an establishment may be attended with the further good consequences of enticing many of their Brethren in France, to come and enjoy that religious liberty, after which they so ardently sigh, amidst a people sprung fiom the same origin, speaking the same language, and following the same Customs. I t may likewise be conducive towards bringing about a Reformation, by slow degrees and must at least prove to the Canadians there is nothing in our Holy Religion repugnant to Virtue or Morality. 6 u i INDIAN NATIONS RESIDING WITHIN THE GOVERNMENT I n order to discuss this point more clearly I shall first take notice of the Savages on the North shore of the River ¡3' Laurence from the Ocean upwards, and then of such as inhabit the South side of the same River, as far as the present limits'of the Government extend on either side of it. 1 st - The Savages on the North shore.. The first to be met with on this side are the Esquimaux, these are the wildest and most untamable of any, and are emphatically stilled by the other Nations, Savages. They never dress their food but eat fish rotted in the Sun and drink the oil it produces. Travellers represent them hardy, active and expert navigators : In the summer they come with their whole Families in Chaloups to fish in the streights of Belisle, these they leave in the Bays, and go out themselves to a considerable distance in Canoes made of skins wherein they sew themselves up. Their CONSTITUTIONAL DOCUMENT® 55 SESSIONAL PAPER"No. 18 clothes and sails of their Vessels are made of the skins of wild beasts ; They are reckoned treacherous, and have had many encounters with the French and Canadians employ'd on the fisheries in those parts. Their Language is not understood but a few words they make use of nearly resemble the dialect of some of the most northern European Nations. A few here have trafficked with them and made a considerable advantage by it, but they never agreed well together ; any trade with the Esquimaux however must be precarious ; The Coast is rocky and difficult of access, the season for navigation short, and the risks too great to entice adventurers ; they have never been known' to come on this side of La Forteau. 2 d—The Montagnais or Monsonies inhabit a vast tract of Country from Labrador to the Saguénay ; they are again distinguished into those who live in the inland parts call'd ISTascapies, and the inhabitants of the water side, for this reason stilled Chuehouxlapishouets. They take as many different names as they have Villages but are all the same people, and speak the same language. As in the interior parts of the Country there are many Lakes and Rivers which communicate with Hudson's bay, the former ^ often trade on that side, which the latter also would have been obliged to do, if the interruption caused by the War, had continued for any time, tho' from the more convenient situation, they would have ever reverted to those who were Masters of the River S' Laurence, those are the mildest and most tractable of all Savages and never enter into War. Tho their country is extensive their number is inconsiderable ; From Labrador to Mingan the Traders do not reckon more than from Eighty to one Hundred Families, and of those who resort to the King's Posts, there may be about 220 Families in all, but as their habitations are easily moved they are ever changing and shifting from one place to another. A Jesuit Missionary meets them at Tadousac when they come there for the trade and he resides in the neighbourhood all the Year. 3 d . , , . The most civilized of all the Indians in this part of the World are the Hurons settled at a little, Village called Jeune Lorette about 3 leagues from Quebec. These are called Roman Cathohcks and are a decent well behaved people, it is now many Years since they were removed there from their ancient habitations about Lake Huron or Erie, are settled upon lands belonging to the Jésuites, and live in much the same manner as the Canadians. They have excellent good Houses, Cultivate their own lands and live upon the produce : In the Hunting season they go into the woods and hunt themselves or traffic with the more remote Indians for their Pelletries. Some of the Elders have been so tenacious of their Mother tongue, they hardly speak a word of French, but most of the Younger ones speak it tolerably well ; indeed it has ever been the policy of the French Government to make them retain that and as much of their ancient customs as possible, that they might prove of greater use to them in case of war with other nations, at the same time they endeavour'd to attach them to their Interest by every tie. A Missionary resides among them, they have a neat Chapel, where divine service is constantly performed at which all the Savages assist with a punctuality and decorum worthy of imitation by more enlightened people ; They seem to be well satisfied with the change of Masters, and were so particularly pleased at their Village having been spared during the Winter 1759, tho' forced by the French to abandon it, that they never could prevail on them to act with any degree of vigor against us. They have at present hut 32 Warriors and the whole Village, Men, Women and Children are short T -ii^' ^ e i r n u m » e r is decreased at least one half within these forty Years, and the Iribe would_by this time have been almost extinguished but for the supplies they got by captures in War, and the sale of unhappy infants whose Parents chose to conceal their own shame at the expence of such iniquitous bargains. Savages upon the South Shore. These have wandered about the Country so very much and have been so unflh b y t l l e c o n t i n u e ( i Wars and frequent revolutions that have happen'd in this part t t l e Continent, it is hard to give any tolerable account of them at this time. By the 56 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 best informations we have been able to collect, the Miamies were settled, and some are still, about the Bay des Chaleurs, and upon the Coast and Bays in the Gulph, they are not at present numerous. In 1759 about one hundred of them joined the French. The Kanibas and Malecites, inhabit about the Rivers S' John and Pentagouest ; their Language and that of the Abenalries is pretty nearly alike, and the three Nations are a good deal intermixed. The latter were settled about Narantsauc and Panaouanské, now wander about the South shore, and range the woods as they find it best answer their purpose, with those of the same tribe at S' François and Beaconcouru in the Government of Trois Rivieres, it is computed they may amount to twelve or fifteen hundred families and in 1759 about 600 fighting Men of these Nations joined the French army near Quebec. Under the French these were the only Indians who resorted to this place, where they received from the Government presents of Powder, Shot, Vermillion and other » trifles ; in time of War Clothing and Provisions. Montreal was the chief seat of the Fur-trade and the greatest concourse of remote and back Indians or of those who traded with them, was there. There the Governor General used to me t and confer with their Chiefs and all business relative to them was mostly transacted. From the Governor of Montreal therefore Your Lordship will certainly get fuller and better accounts on this head than I can possibly give. («) I have and ever shall be attentive, that due justice as far as in my power shall be done to them ; few Complaints have as yet been made, when there have been any they have met with instant redress. 17 th NATURE OP THE SOIL AND ITS PRODUCE. With a very slight cultivation all sorts of grain are here easily produced, and in great abundance, the inhabitants are inclinable enough to be lazy, and not much skilled in Husbandry, the great dependancies they have hitherto h-ed on the Gun and fishing rod, made them neglect tillage beyond the requisites of their own consumption and the few purchases they needed, the Monopolies that were carried on here in every branch, made them careless of acquiring beyond the present use, and their being often sent on distant parties and detachments, to serve the particular purposes of greedy and avaricious Men without the least view to public utility, were circumstances under which no country could thrive ; As they will not be subject to such inconveniences under a British Government, and being necessarily deprived of arms they must of course apply more closely to the culture of their Lands. The mines already discover'd, and the mineral and sulphurous waters in many parts of this Country leave no room to doubt, nature has been bountiful to it in this respect, and that further discoveries and improvements are likely to be made with regard to these, whenever it becomes more populous. Notwithstanding the waste of war, which they have much more severely felt from their pretended friends, than from their declared foes, the Country will abound in three or four Years with all kind of provisions, sufficient not only to answer their home consumption, but even to export if a Market can be procured Observations l s f. . . . They grow both Hemp and Flax in some parts of the Country, and many of the Lands are well cultivated for this Production. I t will be right to turn the thoughts of the people towards the cultivation of this article, so essential to Great Britain and for which she annually pays great sums to Foreigners, a few premiums properly disposd of, some Germans and Russians skilled in raising and preparing the same and encouraged for that purpose to become settlers here may in a short time greatly improve this most useful branch of Agriculture.. (a) No 5. Extract of a Letter giving some account of the Trade of the upper Country. CONSTITUTIONAL DOCUMENTS , 57 SESSIONAL PAPER No. 18 2 a .. This will be one means of employing the Women and Children during the long winters in breaking and preparing the flax and Hemp for exportation, will divert them from manufacturing coarse things for their own use, as it will enable them to purchase those of a better sort manufactured and imported from Great Britain. POPULATION The present state of population may be easily seen by the annexed (a) Account of the number of people in this Government taken about a twelve month ago There is great reason to believe this Colony has been upon the decrease in this respect for near twenty Years past, the Wars which they have been almost constantly carrying on, the strictness with which Marriages within a certain degree of consanguinity were forbidden except by dispensation, the obliging Strangers inclined to engage in that state, previously to prove their not being married before, and the prohibition of intermarriages between protestants and Koman Catholicks were so many bars to the propagation of the Species, these difficulties are now in a good measure removed ; the men are an active, strong, and healthy race, the Women are extremely prolifick and in all human probability the next twenty Years will produce a vast increase of People. TRADE. The French bent their whole attention in this part of the World to the Fur Trade, they never enter'd heartily or with any spirit into the fisheries : most of what was done in this way was by adventurers from the ports of France ; some Fish indeed Lumber and provisions were exported to the French islands. Had this trade been opened and agriculture promoted here with any degree of warmth, this branch of Commerce must have become both valuable and extensive, but it was monopolized into the hands of a few, by the connivance and management of the Chiefs, the sole view of these being to enrich themselves by every means. The interest of the State could not fail to be sacrificed upon all occasions. By the best accounts we can procure, the value of Furs exported in the Year 1754 and 1755 taken from the Duties paid thereon stood thus lb. s d £64,495 : 4 : 7£ (6) in 1754 1,547,885 : 11 : 0 5 2 , 7 3 5 : 8 : 4 (c) in 1755 1,265,650: 0": 0 But the most intelligent Traders here estimate the exportation of this one article to have amounted one Year with another to near £140,000 Sterling pr annum The exportation of these two Years apparently falls very short of this estimation, but it is probable a considerable quantity was run, for the value of imports amounted £ 2 1 6 , 7 6 9 : 4 : 9 1 (d) in 1754 to 5 , 2 0 2 , 4 6 1 : 1 5 : 0 75,560 : 8 : 9 ¿ . . . .The Exports of the same Year to 1,813,450 : 11 : 0 £141,208 : 16 : O^Ballance against the Colony would consequently appear 3 , 3 8 9 , 0 1 1 : 4 : 0 which carries with it no degree of probability but a strong presumption, that in this as indeed in every other branch the publick was ill served ; such of their custom house r°°~Ls a s u a v e come into my hands, are so confused and irregular, that even the late M-[ Farrant sent by the Lords of the Treasury to enquire into the commercial state of tliis Country tho' sensible and skill'd in transactions of the like nature, could collect •little information from them. The French East India Company had the sole privilege of exporting Beaver, for f 1 !_PJiiT^eJlieJ3ojnpany had an agent at each Government as Director and a Compel f° 6 - P- 61. (6) No 7. shewing the species of Fur and Quebec price ; (o) N° 7 : D° p. 61. W AN 8. Imports and Exports of 1754, p. 61. 58 CANADIAN ARCHIVES 6-7 EDWARD Vil., A. 1907 troller, a stated price was paid for it (a) four Livres a pound for the green or winter Beaver and one livre ten sols for the Parchement or summer one. The Companies officers gave their receipt for the quantities brought into their Storehouses these became current in the Colony as cash, and in October the Agents drew Bills of Exchange on the Company for the amount of receipts brought into their Office which were ever held * in more esteem than those drawn on the Royal Treasury. The provinces of New York and Philadelphia now share with Canada a great part of the Fur Trade formerly in the hands of the French, but that proportion of it, which the Quebec government enjoy'd must remain here unalterably. • The foregoing is an attempt to sketch the trade of Canada, while subject to French I Government, but under the full enjoyment of His Majestys mild and gentle administra- I tion, its commerce must flourish to a far greater extent. I 1 st A Most immense and extensive Cod Fishery can be established in the River and Gulph of S* Laurence, and may in time prove an inexhaustible source of wealth and power to Great Britain ; Settlements may be formed in the neighbourhood of the best fishing places to wliich the industrious and intelligent in that branch may be invited and encouraged to repair ; a rich tract of country on the South side of the Gulph will in consequence be settled and improved, a Port or Ports established and furnished with every material requisite to repair Ships, that have suffer'd by stress of weather or the difficulties attending navigation in such narrow seas, a point much wanted which will lessen the risks, and considerably increase the profits of the Commerce of this Colony. I t is further to be observed that the Fish caught upon these coasts and in the bays, |j far exceed the bank Cod and fetch an advanced price in foreign markets ; The fisher- | men being on the spot will commence fishing the very instant the season permits and will continue to the very last of it wherby at least two Months will be gained to the trade, which are just now a heavy expence to it, without producing the least profit to it. 2 d Next to the Cod in importance is the Whale fishery which can be carried on to the greatest advantage in the River S' Laurence with less risk and expence than in any other seas, where the animals resort ; Under this head may be placed the seal and seaCow fisheries of which there is a prodigious abundance, and an immense (sic) of oil and Whale-bone may be annually exported to Great Britain. 3 d - - There are several small rivers on the Coast of Labrador abounding with vast quantities of salmon ; this if followed with spirit and industry, might very soon become a considerable object to the British Trader. 4*11 . . His Majestys Yards may by the best accounts be supplied with masts from Chamblie, at a much cheaper and easier rate than from New England. By the latter a tedious Land carriage of several miles and the immense falls of a most rapid river over which they must be rafted and where many are lost must greatly enhance the value of this useful and necessary branch of Naval Stores ; whereas by the former with little or no risk at a proper season there is an easy water carriage for them toll the way to Quebec, the port for shipping them to Europe. 5 th—. —Tho' as has been before observed, this province must now share the Fur Trade, which she formerly possessed under the French Government, with the neighbouring Colonies, Yet that which was carried on with the' different nations inhabiting the northern Coast of Canada, must still remain with her; she may likewise hereafter regain a great part of that with the upper Country, on account of the more easy conveyance. I t is likewise probable that this very branch may be much farther extended, than ever it was under the French, by reason of the superior diligence and application of the British Traders. I t must be allowed the French were laudable in restraining the vent of Spiritous Liquors to the Savages beyond a certain quantity : by this means many broils were (a) The Company deducted 5 pr Cent on the above price from the Seller CONSTITUTIONAL DOCUMENTS 59 SESSIONAL PAPER No. 18 avoided, for they are fond- to excess of everything strong and are all mad in their intoxication. 6 t k.. Raising hemp and flax for which the lands are in many .places extremely proper must be an object of the most serious consideration, And I must repeat here, how useful this must prove to the end of promoting agriculture, of employing the Women and Children during the tedious winter months, and of procuring in a short time a vast exportation of that useful commodity for which the returns will be made in British Manufactures. 7 til .. As the Country abounds every where with oak, Ash, Hickory, Walnut, Birch, Beech, Maple and other hard woods, which by experience are known to Yield the most Salts, the article of Pot-ash so much demanded in our Manufactures, may be easily produced and soon become an object of consequence ; The essais for this purpose which have been made in our other Colonies and have miscarried, ought not to discourage an attempt1 in this. The high price of Labor ; the Woods being in many parts remote from Water carriage, and the greater encouragement for growing and exporting provisions to the West Indies, have been so many obstacles to the making of Pot-ash in our Colonies, whereas provisions here must be very cheap in a few Years, for the navigation being closed six months out of the twelve this Country can never vie with our Southern Provinces in trie West India trade ; besides the country being settled close to the Hiver side, the conveyance of the Commodity to the Port where it is to be shipped, will be both cheap and easy it will likewise be a means to employ the men all Winter in the business of Felling and drawing of AYood which time they chieñy dedicate to idleness and smoking 10Ul CHARACTER OF THE PEOPLE The Canadians may be ranked under four different classes 1 at The Gentry or what they call Kobilitv 2 d The Clergy 3 a The Merchants or trading part 4 ül The Peasantry or what is here stilled, Habitant. 1 J The Gentry. These are descended from the Military and Civil officers, who have settled in the Country at different times and were usually provided for in the Colony Troop| ; These consisted formerly of 28 afterwards 30 and had been lately augmented to 40 Companys. They are in general poor except such as have had commands in distant posts where they usually made a fortune in three or four Years. The * Croix de S' Louis quite completed their happiness. They are extremely vain and have an utter contempt for the trading part of the Colony, tho' they made no scruple to engage in it, pretty deeply too, whenever a convenient opportunity served ; They were great Tyrants to their Vassals who seldom met with redress, let their grievances be ever so just. This class will not relish the British Government from which they can neither expect the same employments or the same douceurs, they enjoyed under the French. 2 a The Clergy. Most of the dignified among thehi are French, the rest Canadians, and are in general of the lower class of People, the former no doubt will have great difficulty to reconcile themselves to us, but must drop off by degrees. Few of the latter are very clever, however the Ecclesiastical state was once composed' entirely of natives, they would soon become easy and satisfied, their influence over the people was and is still very great, but tho' we have been so short a time in the Country, a difference is to be perceived, they do not submit so tamely to the Yoke, and under sanction of the capitulation they every day take an opportunity to dispute the tythes with their Curés. These were moved from their respective parishes at the Bishops pleasure, who thereby always kept them in awe, it may not be perhaps improper to adopt the same Method, m case His Majesty should think right, for the sake of keeping them in proper subjectwn, to nominate them himself or by those who act under his authority. 60 CANADIAN AROEIYES 6-7 EDWARD VII., A. 1907 I t is not improbable that the Jésuites warned by their late disgraces in the dominions of these Potentates who seemed to favor them the most, and apprehending the like or worse treatment from those they stiled Heretics will chuse to dispose of their Estates and retire, as they may possibly find some difficulties to get purchasers the Government might buy their Lands at an easy rate and dispose of the same to many good purposes. 3 d The Traders of this Colony under the French were either dealers in gross or retailers, the former were mostly French and the latter in general natives of this Country all of whom are deeply concerned in the letters of Exchange many are already gone to solicit payment and few of those who have any fund of any consequence in France will remain here. 4 t h . . . . The ith Order is that of the the Peasantry, these are a strong healthy race, plain in their dress, virtuous in their morals and temperate in their living : They are in general extremely ignorant, for the former government would never suffer a printing press in the Country, few can read o». write, and all receive implicitly for truth the many arrant falsehoods and atrocious lies, industriously handed among them by those who were in power. They took particular pains to persuade them, the English were worse than brutes, and that if they prevailed, the Canadians would be ruled with a rod of Iron, and be exposed to every outrage, this most certainly did not a little contribute, to make them so obstinate in their defence, However ever since the Conquest, I can with the greatest truth assert, that the Troops have lived with the Inhabitants in a harmony unexampled even at home, I must here, in justice to those under my command in this Government, observe to Your Lordship, that in the Winter which immediately followed the reduction of this Province, when from the Calamities of War, and a bad harvest, the inhabitants of these lower parts were exposed to all the horrors of a famine, the Officers of every rank, even in the lowest generously contributed towards alleviating the distresses of the unfortunate Canadians by a large subscription, the British Merchants and Traders readily and cheerfully assisted in .this good work, even the poor Soldiers threw in their mite, and gave a days provisions, or a days pay in the month, towards the fund, by this means a quantity of provisions was purchased and distributed with great care and assiduity to numbers of poor Families, who, without this charitable support, must have inevitably perished ; such an instance of uncommon generosity towards the conquered did the highest honor to Cheir conquerors and convinced these poor deluded people, how grosly they had been imposed upon ; the daily instances of lenity, the m*partial justice .which has been administer'd, so far beyond what they had formerly experienced, have so alter'd their opinion with regard to us, I may safely venture to affirm for this most useful Order of the state, that far from having the least design to emigrate from their present habitations into any other of the French Colonies, their greatest dread is lest they should meet with the fate of the Accadians and be torn from their native Country. Convinced that this is not to be their case and that the free exercise of their religion will be continued to them once Canada is irrecoverably ceded by a Peace the people will soon become faithful and good subjects to His Majesty, and the Country they inhabit with in a short time prove a rich and most useful Colony to Great Britain. Before this report is closed it will not be improper to observe to Your Lordship how impossible it is to ascertain exactly what part of ÍTorth America, the French stiled Canada, no Chart or Map whatever having fallen into our hands or public record of any kind to shew what they understood by it. However it is to be hoped, the limits on this side at least will need no canvassing nor admit of any dispute Should I be able to procure farther lights relative either to those limits or the several other matters contained in this Report worthy of notice, You may be assured CONSTITUTIONAL DOCUMENT® 61 SESSIONAL PAPER No. 18 they shall be forthwith transmitted to Your Lordships, happy if my labors can any way conduce to His Majestys Service, or the good of my Country. I have the Honor to be with great truth and regard My Lord,—Your Lordships, most obedient and most faithful humble Servant J A : M U R R A Y Quebec 6th June 1762. Papers refend to in this lleport1 N° 1 King Arret of the 15th March 17,32 directing the letting of the Lands granted already within a certain time limitted on pain of forfeiture. 2 Tariff of Duties on Imports and Exports 3 List of Revenue Officers in Canada the Year 1758 with their Salaries 4 Ordonnance current for llb : 10s or about 7 \ Sterling. 5 Extract of a Letter to Governor M urray giving some account of the India trade in the Upper Country 6 Number of souls in the Government of Quebec 1761. 7 th Quantity of Furs exported in 1754 with the Quebec prices of the several species 8 Imports and Exports in 1754 Seven Plans Project for Building a Citadel. COL. BURTON'S REPORT OF T H E STATE OF T H E GOVERNMENT OF T H R E E RIVERS. 2 The Government of Trois Rivieres lyes upon the River S' Lawrence, between the two Governments of Quebec, and Montreal, LENGTH It Extends about Eighty Miles along the Shore of the River, which in its Course Divides it into two Departments, the North beginning a little above a place Called Les Grondines, which Divides it from the Government of Quebec, & goes up as far as the River Chicot, where it Ends ; and the South Department beginning between S* Jean, & S' Pierre les Bequets, Ending with the upper part of Yamasca Bay. BREADTH It Runs to the Southward as far as Nova Scotia, Newhampshire, & the Massachusetts, to which Countries Several Rivers of this Government Afford a short passage, especially those of Nic >lette, & Biencour, which run up within five or six miles of the
source of Kennebeck River, and that of S* François, navigable for Canoes to the Portage,
which is six miles over, You then Enter a branch of the Connecticut River. To the
-Northward, this Government stretches thro’ an Immense Tract of Country, as far as
Hudson’s Bay ; and the same Nations that trade with the Company settled there, used
formerly to bring their Furs into this Government thro’ the Rivers of S’ Maurice à
Batiscan.
Notwithstanding the Factory settled at Hudson’s Bay, and the Posts at Tadousac,
Chicoutimi up the Saguenay, the easy Navigation of those Rivers especially that
-Batiscan, Induces several of the Indians, Called Têtes de BouUe to Come down even
now to this Government every spring.
¡> 5 Pa
Pers here mentioned do not accompany the Report as preserved in the Public Secord Office,
bee note p. 37.
62 CANADIAN ARGEIYES
6-7 EDWARD VII., A. 1907
STATE OP THE COUNTRY.
All the Lands in this Government, as well as thro’ all Canada, are Divided into
Seigneuries, & mannors, granted by the Crown of France to different people, upon certain conditions, such as settling them within a limitted time, paying Hommage at Every
Change of Seigneur, and part of the purchase in case of Sale, as also Reserving to the
Crown the right of cutting timber for building of Ships, or Erecting Fortifications. The
Seigneurs are likewise obliged by the said Grants to Report to the Governor Whatever
mines may be Discovered in their respective Seigneuries, as all mines found in Canada
are the King’s Property. In general these Seigneuries run Four or six Miles in front ;
and six or nine deep from the Banks of the River S* Lawrence so that many Lands are
yet in the hands of the Crown, on the back of those that are Granted.
The Seigneurs had by their Original Grants the power of naming Judges & Administering Justice, even in Capital Cases, thro’ their Districts ; but Custom has Abolished
those too great privileges, tho’ the Powers for it are yet extant, in the hands of the
Seigneurs : However all suits are now Carried before the proper Tribunals named &
established by the Crown.
The Habitations are for the most part settled along the banks of the River S*
Lawrence, or up the Rivers & Rivulets that fall into it, and are seldom Carried up
higher than five or six Miles. There are in this Government Eighteen Parishes, viz*
North Shore South Shore— *
S* Anne, S’ Pierre Bequets
S
l
Marie, Gentilly
Riv” Batiscan Biencour
Côte Batiscan Nicolette
Champlain Bay S* Antoine
Cape Magdalaine Sl
Francois
Trois Rivieres Yamasca.
Point du Lac
Machiche,
Rivr
du Lup.
Maskinonge
These seven last Parishes, viz*. Du Lac, Machiche Rivre du Loup, and Maskinonge
on the North Shore ; Nicolette; Bay S* Antoine, S’ François, & Yamasca on the
South, are settled round Lake S’ Pierre, which is formed by the Spreading of the
Water of the River S* Lawrence, the Bottom muddy, the Water Shallow, one à
Twenty miles inr’Length, and about ten in Breadth ; the Channel is not above thirteen
feet deep, but the bottom of so soft a mud, that a Yessell drawing Fourteen feet may
plough through it, it Abounds with many sorts of Excellent Fish.
The Town of Trois Rivieres which is the Capital lays in the Centre of this Government, as also at an Equal Distance from Quebec, & Montreal ; it -is built upon the
North Shore of the River S’ Lawrence, and Consists of about One Hundred Houses a
Parochial church, a Convent of Ursuline Nuns, & Another of Recollet Priests.
STATE OF THE FORTIFICATIONS
There was no other Fortification in this Town, than the Governors House, which
is Stockaded round, and Commands by its Situation the Town & Country about it,
Untill the siege of Quebec in 1759. When they Erected Batteries in several Parts of
the Town, made an Irregular Intrenchment on that side of it which looks towards the
River S’ Lawrence ; and threw up Lines flanked with two Redoubts, in the Common
that lyes to the Westward towards Montreal.
STATE OF DEFENCE.
This place is at present in no state of Defence, the French having Neglected from
their Imaginary Security to pay the least Attention to Fortifying it, & suffered the
CONSTITUTIONAL DOCUMENTS’ 63
SESSIONAL PAPER No. 18
Inhabitants to build their Houses upon the low Ground near the Common, which is
liable to be overflowed Every Spring, rather than take advantage of the high Situation
upon which part of the Town is built, whereas they might have secured to themselves
at a very little Expence, Safe & convenient Magazines for Stores & Provisions, which
the equal Distance from Quebec & Montreal, & the proximity to the Iron Mines &
Forges that lay behind this Town seem to have pointed out.
PRODUCTS OF THE SOIL.
The Laziness of the people, & the alluring & momentary Advantages they reaped
from their Traffick with the Indians in the Upper Countrys, & the Counterband
Trade they Carried on with the English Colonies, have hitherto prevented the progress
of Husbandry, so that out of very near One Hundred Thousand of Acres of Land,
granted by the Seigneurs of the different Parishes, there are not sixteen Thousand
under Cultivation, whereof hardly Five Thousand have been Employed for sowing of
Wheat, which for many years past have not been sufficient for supplying the Inhabitants of this Government with Bread ; and has obliged them to procure Yearly from
the Governments of Montreal, or Quebec, several Thousand Bushells of Wheat, in
Exchange for Pish, Oats, & Tobacco. The Soil tho’ light & sandy in some Parishes
produces in general, good Crops of Wheat, Oats, Pease, & all sorts of Vegetables. Tho’
the Lands are not near so well Cultivated as they might be, Fruit trees such as Apples,
Pears, & Plumbs, have been often planted in this Government, but don’t thrive—The
Inhabitants attribute it to a Stratum of marie that lyes within a foot, or fourteen inches
from the surface, which”Occasions the Tree to Decay, as soon as the Root touches it.
In the sandy Parts of this Government, musk & water melons are produced in great
abundance, good of their kind, and with very little trouble. The difficulty for some •
years past for procuring Tobacco, from the English Colonies, has encouraged the Inhabitants of this Government to Cultivate it, by which means many of their Corn Fields
have been turned to that use, and those Lands greatly Impoverished.
STATE OP THE REVENUE OF THIS GOVERNMENT.
This Government has hitherto brought nothing into the French King’s Coffers.
There was formerly a Regular Office for buying of Beaver Settled at Trois Rivieres, in
the same manner, and with the same priviledges & Restrictions as those of Montreal,
and Quebec. But the Advantage which the Inhabitants found in Carrying their Packs
to either of the above mentioned Towns, where they could supply themselves with what
broods they wanted, encouraged them to Venture, disobeying the orders given to the
Contrary, and of Course rendered the produce of that office, so triffling that after some
Years it was joined to that of Quebec.
The only Branch of the Revenue remaining in this Government, is the Kings
Dues & Rights, Amounting to a twelfth part of the Price in Case of Sale or Exchange
ot such Lands, or Houses, as lye upon his Demesnes ; as also a fifth Part of the Price
of kale, or Exchange of all Seigneuries
§
43
S
¡3
02
.1
DO
a
ai
a
=8
‘ST
xn
32
1
1a
Q
Kfíective
Rank
& File
Trois Rivieres
Masquinonge & Mas’ Anne & Chains ‘ François ‘
44’h J
46th
46th
46th*-
Captain Treby
Captain Legge
Captain Arnot
1
1
1
2
2
1
1
1
1
1
1
1
1
2
^ 2
2
3
3
1
2
1
2
2
73
69
60
59
59
Trois Rivieres
Masquinonge & Mas’ Anne & Chains ‘ François ‘
44’h J
46th
46th
46th*-
Total..
2
2
1
1
1
1
1
1
1
1
2
^ 2
2
3
3
1
2
1
2
2
44’h J
46th
46th
46th*-
Total.. 3 7 5 12 8 320
44th Regiment—Captain William Hervey Major of Brigade ; one Serjeant recom» i
mended ; one Serj’ one Drummer on Party. j
46. Regiment—Captain Alexander Johnstone at Quebec, with leave of General
Amherst, one Serjeant on Party.
R. BURTON
Colonel—
CONSTITUTIONAL DOCUMENTS 67
SESSIONAL PAPER No. 18
RETURN of the Canadian Inhabitants settled in the Town & Government of TroisRivieres in April 1762—
Names of Parishes Hous»
Keepers
Married
women
.
&
widows
Males
unmarried &
Females
unmarried &
Male
SerFemale
SerMen
able to
Bear
Arms
136
Total
of the Hous»
Keepers
Married
women
.
&
widows Children
148
Children
168
vants
59
vants
53
Men
able to
Bear
Arms
136
People.
Les Trois Rivieres 114 130
Children
148
Children
168
vants
59
vants
53
Men
able to
Bear
Arms
136 672
46 44 ’66 73 2 1 53 232
106 110 176 164 9 2 153 567
Biviere du Loup 104 97 152 141 22 4 88 500
65 62 112 94 2 3 62 338.
110 117 161 153 20 12 149 573.
57 52 90 111 16 14 70 340
Baye S’ Antoine 57 51 94 67 5 5 * 67 279.
Nicolette 95 84 122 123 12 10 111 446
63
27
60
30
65
44
84
44
1
1
6
2
66
35
279
Jentilly
63
27
60
30
65
44
84
44
1
1
6
2
66
35 148.
33 33 70 69 14 0 53 219
S’°Anne 58 44 110 85 17 12 60 326
58 49 80 85 3 8 64 283
Riviere Batiseant 98 95 153 154 6 7 65 513
Batiscant 35
48
35
49
60
72
79
71
6
30
8
18
54
65
223.
Champlain
35
48
35
49
60
72
79
71
6
30
8
18
54
65 288
Gape Magdaleine 32 29 45 35 15 18 40 174
1 orges S* Maurice 11 11 18 28 3 1 0 72
Total 1217 1182 1838 1948 243 184 1391 6.472
N.B. There are besides in this Government Three Indian Villages, one at Béeancour ; Another at S’ François both of Abenakis ; and the last at Pointe du Lac of
Algonquins, Containing about 500 Men Women & Children—Besides Forty Five
Families of Acadians, amounting to very near Two Hundred people hutted in different
places of this Government.—
From the Registers of the Secretary’s Office at Trois Rivieres, the 5th of April
J. B R U Y E R E . Sec1
*
1 8 – 3 – 5 J
N ° 3 . ,
RETUEST of the Lands granted by the Seigneurs, those under Cultivation, their Natural property, & the Number of Cattle
throughout the Town & Government of Trois Rivieres, in April 1762—
upon them,
Names of Parishes
La Trois Rivieres.
Pointe dn Lac. .
Machiche
Riviere du Loup. Maskinongé
Yamasca
S’ François
Baye S* Antoine.
Nicolette
Bécancour
Jentilly
S1Pierre
S’8 Anne
S’« Marie
Riviere Batiscant
Batiscant
Champlain
Cap
Acres
of Land
Granted
Acres
under
Cultivation
5830 1339
2780 280
9800 1800
6200 1200
4250 550
9300 1300
2600 1100
6000 1000
9200 1200
3400 400
5800 200
3900 400
3850 850
4637 1100
3500 500
4033 1482
5H60 1400
2100 600
92840 16701
Property of the same
All sorts of grains
Wheat & Oats
Wheat
Wheat & Oats
Wheat Oats & Pease…
All sorts
Wheat & Indian Corn.
Wheat & Pease
All sorts
All sorts
All sorts ,
Wheat & Oats
Wheat & Oats
Wheat & Oats
Wheat Oats & Tobacco.
Wheat Tobacco
Wheat Oats & Tobacco.
Oats & Tobacco
Horses
80
20
90
90
50
120
60
50
60
40
24
35
64
66
107
46
80
41
1128
Horned
Cattle
From the Registers of the Secretary’s Office at Trois Rivieres April 5th 1762
210
50
250
160
150
380
180
200
210
200
60
120
110
142
240
127
175
142
3108
Sheep.
50
12.
70
20
25
150
40
80
80
20
7
30- 75
133
25
38
10
19
884
N.B. There is in this Government great plenty of Hogs, Poultry, Wild Fowl, espe- cially wood Pidgeons: Abundance of Fish in take S* Pierre And such an amazing quantity of small fish Crouding up the River S* Maurice about Christmas, that it
is sufficient to maintain several poor families, during great part of the Winter—They even feed their Hogs with ¿hem.
J. B R U Y E R E .
Sec’y
m
o
>
33
O
2
•a
O
tu
i
¡32
O
“si
CONSTITUTIONAL DOCUMENTS 69
SESSIONAL PAPER No. 18
W 4
RETURN of the Number of Christenings, Marriages, & Burials in the Govern-
. ment of Trois Rivieres from September 1760, to April 1762
Names of Parishes
CHRISTENINGS Marriages
BüEIALS
Male JTemale
Marriages Male I Female
38
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
38 34
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
5
13
5
3
Bay S’AnÇoine
NicoUette
Béeaucour
38
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
20
17
8
7
4
S’Pierre
S’6
Anne
Batiseant et Riviere Batiscant
38
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
5
21
12
Champlam et Jentilly
Cap Magdaleine
38
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
14
3
38
8
35
19
11
24
21
13
16
18
18
38
38
16
8
36
10
30
23
13
32
20
16
19
14
8
33
32
18
3
19.
4
12
18
11
26
7
14
19
21
8
19
21
12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
Total %
. . . 321 307 215 182 171
Thus the Number of Births in this Government have during the above mentioned
time, Exceeded that of Burials by 275—
From the Registers of the Secretary’s Office at Trois Rivieres—April the 6 a
1762—
J. B R U Y E R E . Secty
Endorsed :-Colonel Burton
Report
of the State of the Government of Trois
Rivieres in Canada
April. 1762 :
in Sr
J. Amherst’s of June 15 : 1762.
No 20.
GENERAL GAGE’S REPORT OF T H E STATE OF T H E GOVERNMENT OF
MONTREAL.
MONTREAL March 20th
, 1762.
SIR, T have already Acknowledged the Receipt of a Copy of the Earl of Egremont’s Letter to you of the 12th Decr
, and I take this opportunity to return you my
Answers thereto, Assuring you, that I have lost no Time in collecting the best Information of Every thing Contained in that Letter that I could possibly procure.
I feel the highest Satisfaction, that I am able to inform you, That during my Command in this Government, I have made it my Constant Care #nd Attention, that the
Canadians should be treated agreeable to His Majesty’s kind & humane Intentions.
£fo Invasion on their Propertys, or Insult on their Persons have gone unpunished, All
Reproaches on their Subjection by the Fate of Arms, Revilings on their Customs or
Country, and all Reflexions on their Religion have been discountenanced and forbid.
No Distinction has been made betwixt the Briton & Canadian but equaly regarded
as Subjects of the same Prince. The Soldiers live peaceably with the Inhabitants, & they
reciprocaly acquire, an affection for each other. I have notwithstanding, made known,
Jiis Majesty’s Pleasure on these Particulars to the Several Commanders of Corps, that
^ery Individual may be acquainted therewith, which will, no Doubt, Add the greatest
eight to the Orders & Directions which have been already given. And you may be
ssured that Troops who have ever shewn the most Ardent desires, to Advance the
Merest of their Sovereign, and paid the most exact Obedience to his Commands, will
IT”6
vr • e a c l 1 o t l l e r i n urotherîy L ° v e and Affection to the Canadians, over whom,
IT* ,~.
a
J
esty has extended his Royal Favor, & Protection. The Indians have been
rearad, on the Same principles of Humanity, They have had immediate Justice for all
70 CANADIAN AEOEI7WS
6-7 EDWARD VII., A. 1907
their Wrongs, and no Tricks or Artifices have hitherto been attempted, to defraud
Them in their Trade.
I send herewith a Return, (N° 1) of the present State of the Troops & Artillery
in this Government, As to the Fortifications, except Fort Wm
Augustus, which may at
present be in a good state of Defence, the rest having only been calculated to repel sudden
Invasions of Indians, are of Course, of small consideration. The City of Montreal is
surrounded by a high Wall ramparted and flanked ; the Parapet about Three feet thick
-a natural Defence from the River S’ Lawrence on one side, on the other, a Ditch mostly
faced. Upon a Height within the City, is a small square work of wood, compleated
since the Capitulation, provided with a few pieces of Artillery, & capable of containing
Seventy or Eighty Men. The Fort of Chamblé, is an Antient Stone Castle, flanked
with Tours, in which are Port-Holes, for small pieces of Ordnance, no Ditch or Outwork.
You will also receive herewith, a General Return, (N° 2,) of the State of this Government, for the year 1761, Comprehending the Number of its Inhabitants, Cattle &ca.
The State of Population, Quantity of Acres Cultivated and Quantity of -Grain sown,
for the particulars of all which, I referr you to the Return.
The Soil produces all sorts of Summer grain, in some parts of its Government, the
Wheat is sown in Autumn. Every kind of pulse & other vegetables ; to which I may
add, some Fruits, viz’ Apples Pears Plumbs Melons, &ca. Cyder is made here, but as
yet in Small quantitys, In general, every Fruit tree, hardy enough to withstand the
severity of the Winter, will produce in the summer, which affords sufficient Heat, to
bring most kinds of Fruit to Maturity.
The Profits, which the French King drew from the Government of Montreal, unconnected with the other two Governments, of Trois Rivieres & Quebec, proceeded from the
Sale of certain Trading Posts in the Indian Country, From, the Money paid for permits, to
trade at others, which were called Free Posts, from the King’s own Trade, at those
called the King’s Posts. And from, the Droit de Quint, & Droit d’Échange. In
Return (N° 3) you will find these several posts particularly ascertained, with the annual
Profits which might have accrued from the two first. I t is impossible to ascertain, what
were the Profits & Losses upon the French King’s own Trade; No Doubt, that Trade well
managed, would have produced considerable gains ; but from the Number of Commissaries & Factors employed, who have made very large Fortunes for themselves ; and the
immense profusion of Presents, made to the Indians ; I must conclude, His Majesty
gained very little from the Commerce.
The Lands have all been granted, on Feudal Tenures, from thence ; The King’s
Droit de Quint, & Droit d’Échange. The first is a Fif oh, of all Monies that shall be
received, on the sale of Seigneuries, or Lordships. The Latter, a Fifth of the value of all
Lordships exchanged, & a Twelfth of the value of all Copyhold. Estates, that shall be
exchanged. The Right of Exchange however, did not belong to the French King, either
in the City or Island of Montreal ; It having been granted to the priests of the Seminary
of S’ Sulpice, who are Temporal Lords of that Island. And enjoy the privilege of the
Exchange, as well the City as the rest of the Island. The French King generally
remitted a Third of his Dues on these tales & Exchanges, whose Revenues
from hence, might amount, Communibus Annis, to about Three Thousand Livres.
I have Supported His Majesty’s Right to these fines of Alienation remitting the Third,
according to old Custom. This Year by an Accident, They have amounted to Nine
Thousand Livres.
Immediately after we became Masters of this Country, all Monoplys were abolished,
and all Incumbrances upon Trade were removed. The Traders chose their posts,
without the obligation of purchasing them, and I can by no means think, The French
Management, in giving exclusive grants of trade, at particular posts, for the sake of the
sale thereof ; or the sale of permits to trade at the free posts, worthy our Imitations.
The Indians of course paid dearer for their goods, & the Trade in General, must have
been injured by Monoplys. The Traders were alone at the posts they had purchased,
where no person in Authority had the Inspection of their Conduct ; & committed many
abuses, for which the Indians could get no Redress ; And it has happened, that the
Indians had murdered the Traders & plundered their Effects ; by which the French
have been drawn into wars at a very great Distance, and at a great Expense. The
CONSTITUTIONAL DOCUMENTS TL
SESSIONAL PAPER No. 18
French also found a very great Inconvenience in this kind of Traffick, from the Loss of
men to the Colony.
Nothing was more Common, than for the Servants, whom the Merchants hired to
work their Boats, & assist in their Trade, thro’ a long Habit of Indian Manners & Customs, at length to adopt their way of Life, to intermarry with them, & turn Savages.
Several Edicts have been published to prevent this but notwithstanding, there are
now some Hundreds amongst the distant Indians, who I do not suppose will ever return
to their Country. Tho’ the Trading Posts were by this means multiplied, and from
thence appears to have increased the Trade, in reality, unless in a few Instances, these
Monopolizers brought no Addition of Commerce into Canada, as they for the most part
traded with Indians, who would otherwise have carried their Furrs to the great Marts
of Michillimakinac and Detroit, so that in Effect, they were only Forestallers of the
Market. Besides the Inconveniences which I have mentioned, to have attended the
sale of Posts & Permits, I conceive this matter to be so liable to abuse, thro -Receivers,
Jobbs, & Perquisites, that it would bring but little into His Majesty’s Cofiers.And that
the surest & easiest way to encrease His Majesty’s Revenue from the Pelletry will be the
laying such Dutys only on its Importation, as shall be thought Advisable.
To remedy the Inconveniencies & abuses, which both the English & French have
suffered,- thro’ the management of the Indian Trade ; I know no better method, than to
assign a certain Number of Posts in the distant Country, to which only, the Traders
should be allowed to traffick, and to abolish all the little Posts.
And-I am of opinion the Five Posts hereafter mentioned, will enable His Majesty’s
subjects to trade with almost every Nation of Indians, that has yet been discovered, and
that have been accustomed to Trade with the French, viz’ Kanamistigoua on Lake Huron, Miohillimakinac Baye des Puants in Lake Michigan The Detroit, and Houilliatanon, on the Ouabache.
A small Detachment of Troops with proper Officers should be in each of these Posts,
And the officers Authorized, either solely by themselves, or assisted by such other persons
as may be found in the posts, to exercise a Judicial power—The Vast distance some
of the above Posts are from the Inhabited Country, would alone make this circumstance
highly necessary, and the advantages that would arise from it, are very apparent, The
Insolence of the Indians will be checked, by the Presence of the Troops. The Tricks
& Artifices of the Traders to defraud the Indians will meet with Instant Punishment,
•which cannot fail to make the Indians conceive, the highest Opinion of Our Integrity &
His Majesty’s good inclination towards them, and by these means, all Disputes and
Masts, & generaly all kinds of Naval Stores.
J-he people in general seem well enough disposed their new Masters. The only
auses of Dislike which I can discover, proceed from the fear of losing their paper
•aioney, and the Difference of Religion, I understand Canada to be on the same
72 CANADIAN ARCHIVES
–
6-7 EDWARD VII., A. 1907
Footing in Respect of this money, as all the French Colonys ; and if France pays any
of them, I dont see how she can avoid paying the Bills of Exchange drawn from
Ganada, in the same proportion as she pays the rest. It is the Canadians only who
would be sufferers by an exception, as Canadian Bills, to a very large amount are in
the possession of French Merchants, and the rest may be sent to France, & no body
be able to distinguish which is French, or which Canadian Property. The people
having enjoyed a free & undisturbed Exercise of their Religion, ever since the
Capitulation of the Country ; Their fears in that particular are much abated, but there
still remains a Jealousy. I t is to be hoped, that in time this Jealousy will wear off :
and certainly in this, much will depend upon the Clergy, Perhaps Methods may be
found hereafter, to Supply the Cures of this Country with Priests well affected, But
whilst Canada is stocked as she now is, with Corps of Priests detached from Seminarys
in France, on whom they depend, and to whom they pay obedience I t is natural to
conceive, That neither the Priests, or those they can influence, will ever bear that Love
and Affection to a British Government, which His Majesty’s Auspicious Reign would
otherwise engage from the Canadians, as well as from his other Subjects.
No Persons have left this Government to go to France, except Those, who held
Military and Civil Employments under the French King. Nor do I apprehend any
Emigration at the Peace being perswadedthat the present Inhabitants, will remain
under the British Dominion. I perceive none preparing to leave the Government, or
that seem inclined to do it ; unless it is a few Ladys whose Husbands are already in
France, and they propose to leave the Country when Peace is made, if their Husbands
should not rather choose to return to Canada.
As I cannot discover that the Limits betwixt Louisiana & Canada were distinctly described, so as to be Publickly known, I can only inform you, what were
generally believed here, to have been the Boundaries of Canada &. give you my own
Opinion, which is drawn from the Trade that has been Constantly carried on, by the
Canadians, under the Authority, and permission of their several Governors. From
hence I judge, not only the Lakes, which are Indisputable, but the whole Course of the
Mississippi from its Heads to it’s Junction with the Illinois, to have been comprehended
by the French, in the Government of Canada,
The People of Louisiana carry their Trade up the Missouri River, and I can’t find
that the Traders from that Province, ever went higher up the Mississipi, than the
mouth of the Illinois River, on the Contrary, the Traders from Canada, did constantly
trade above the Illinois, from their Posts on Lake Michigan, even up to the River Sl
Croix, and the Falls of S* Anthony, And it was the Trade alone of the Mississipi
Indians, which made the Post of the Baye des Puants, so very advantageous. The
Illinois River, tho’ formerly in the District of Canada, was, after some Disputes betwixt the Governor, annexed to Louisiana. A South Easterly Line, drawn from the
portage, betwixt the Illinois River and the waters which run into Lake Michigan will
bring you to the post of Houilliatanon upon the Ouabaches fourscore Leagues down
that River ; Computing from that part, where the Boats are Launched, after crossing
the Portage of the Miamis. This was the last Trading Post belonging to Canada
on that side, & was certainly the Boundary of Canada on that side. About sixty
Leagues below this Post, is the Post of Vincennes, which was served by the Traders of
Louisiana, and of Coursé, was the Boundary of that Province. This is the best information I can procure you concerning the Limits, and what I have described to you, are
thought to be the real Boundaries betwixt the two Provinces.
As I have answered the several Particulars of Lord Egremont’s Letter, after
having made the best Enquiry I shall think myself happy if the Acco* I send you,
shall in any Shape contribute to Your transmitting to His Majesty the exact State of
his Province of Canada. I am with great Regard & Esteem.
Sir, your most obedient most humble servant,
His Excellency THOB
. GAGE.
S
r
Jeffery Amherst.
Endorsed : Major General Gage
20*” March 1762
in Sr
. J. Amherst’s of May 12th 1762.
No 38.
GONST:TUTWNAL DOCUMENTS 73
SESSIONAL PAPER No. 18
TREATY OF P A R I S 1763.*
F. 0. State Papers.
Treaties
February 10th 1763.-
DEFINITIVB Treaty of Peace and Alliance between Great Britain France and Spain,
concluded at Paris, with the Seperate Articles thereunto belonging.
A u Nom de la Très Sainte & Indivisible Trinité, Père, Fils, & Saint Esprit. Ainsi
soit il.
Soit notoire à Tous Ceux, qu’il appartiendra ou peut appartenir, en Maniere quelconque.
Il a plû au Tout Puissant de répandre l’Esprit d’Union a n d with all its dependencies, to the King of Great Britain : Moreover,
r’o4ií n Cristian Majesty cedes and guaranties to his said Britannick Majesty, in full
tlf ,
. 5 ‘ a n a c ‘
a
!
w
ith all its dependencies, as well as the island of Cape Breton, and all
e
other islands and coasts in the gulph and river of St. Lawrence, and in general,
jy thing that depends on the said countries, lands, islands, and coasts, with the
th ^ 1
^ ” ^ ‘ Property, possession, and all rights acquired by treaty, or otherwise, which
cou i °
S t 0 h r i s t i a n K i n S
a n d the Crown of France have had till now over the said
Kin1
A l a n d s ‘
islaQds’, places, coasts, and their inhabitants, so that the Most Christian
Brirg-°
a n d m a k
e s o v e r the whole to the said King, and to the Crown of Great.
ain, and that in the most ample manner and form, without restriction, and without
86 CANADIAN AB0EITM8
6-7 EDWARD VI!., A. 1907
any liberty to depart from the said cession and guaranty under any pretence, or to
disturb Great Britain in the possessions above mentioned. His Britannick Majesty, on
‘his side, agrees to grant the liberty of the Catholick religion to the inhabitants of
Canada : he will, in consequence, give the most precise and most effectual orders, that
his new Roman Catholick subjects may profess the worship of their religion accord ng
to the rites of the Romish church, as far as the laws of Great Britain permit. His
Britannick Majesty farther agrees, that the French inhabitants, or others who had been
subjects of the Most Christian King in Canada, may retire with all safety and freedom
wherever they shall think proper, and may sell their estates, provided it be to the
subjects of his Britannick Majesty, and bring away their effects as well as their persons,
without being restrained in their emigration, under any pretence whatsoever, except
that of debts or of criminal prosecutions : The term limited for this emigration shall be
fixed to the space of eighteen months, to be computed from the day of the exchange of
the ratification of the present treaty.
V. The subjects of France shall have the liberty of fishing and drying on a part of
the coasts of the island of Newfoundland, such as it is srecified in the X l l l t h article
of the treaty of Utrecht; which article is renewed and confirmed by the present treaty,
(except what relates to the island of Cape Breton, as well as to the” other islands and
coasts in the mouth and in the gulph of St. Lawrence 🙂 And his Britannick Majesty
consents to leave to the subjects of the Most Christian King the liberty of fishing in
the gulph of St. Lawrence, on condition that the subjects of France do not exercise the
said fishery but at the distance of three leagues from all the coasts belonging to Great
Britain, as well those of the continent as those of the islands situated in the said gulph
of St. Lawrence. And as to what relates to the fishery on the coasts of the island of
Cape Breton, out of the said gulph, the subjects of the Most Christian King shall not
be permitted to exercise the said fishery but at the distance of fifteen leagues from the
coasts of the island of Cape Breton ; and the fishery on the coasts of Nova Scotia or
Acadia, and every where else out of the said gulph, shall remain on the foot of former
treaties.
VI. The King of Great Britain cedes the islands of St. Pierre and Macquelon, in
full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen ;
and his said Most Christian Majesty engages not to fortify the said islands ; to erect
no buildings upon them but merely for the conveniency of the fishery ; and to keep
upon them a guard of fifty men only for the poîice.
V I L In order to re-establish peace on solid and durable foundations, and to remove
for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America ; it is agreed, that, for the future, the confines be
tween the dominions of his Britannick Majesty and those of his M ost Christian Majesty,
in that part of the world, shall be fixed irrevocably by a line drawn along the middle
of the River Mississippi, from its source to the river Iberville, ‘and from thence, by a
line drawn along the middle of this river, and the lakes Maurepas and Potchartrain to
the sea ; and for this purpose, the Most Christian King cedes in full right, and guaranties to his Britannick Majesty the river and port of the Mobile, and every thing which
he possesses, or ought to possess, on the left side of the river Mississippi, except the
town of New Orleans and the island in which it is situated, which shall remain to
France, provided that -the navigation of the river Mississippi shall be equally free, as
well to the subjects of Great Britain as to those of France, in its whole breadth and
length, from its source to the sea, and expressly that part which is between the said
island of New Orleans and the right bank of that river, as well as the passage both in
and out of its mouth : It is farther stipulated, that the vessels belonging to the subjects
of either nation shall not be stopped, visited, or subjected to the payment of any duty
whatsoever. The stipulations inserted in the IVth artiaje, in favour of the inhabitants
of Canada shall also take place with regard to the inhabitants of the countries ceded by
this article.
V I I I . The King of Great Britain shall restore to France the islands of Guadaloupe, of Mariegalante, of Desirade, of Martinico, and of Belleisle ; and the fortresses
of these slands shall be restored in the same condition they were in when they were
CONSTITUTIONAL D00ÜMB.NT8 87
SESSIONAL PAPER No. 18
conquered by the British arms, provided that his Britannick Majesty’s subjects, who
shall have settled in the said islands, or those who shall have any commercial affairs to
settle there or in other places restored to Prance by the present treaty, shall have
liberty to sell their lands and their estates, to settle their affairs, to recover their debts,
and to bring away their effects as well as their persons, on board vessels, which they •
shall be permitted to send to the said islands and other places restored as above, and
which shall serve for this use only, without being restrained on account of their religion,
or under any other pretence whatsoever, except that of debts or of criminal prosecutions : and for this purpose, the term of eighteen months is allowed to his Britannick
Majesty’s subjects, to be computed from the day of the exchange of the ratifications of
the present treaty ; but, as the liberty granted to his Britannick Majesty’s subjects, to
bring away their persons and their effects, in vessels of their nation, may be liable to
abuses if precautions were not taken to prevent them ; it has been expressly agreed
between his Britannick Majesty and his Most Christian Majesty, that the number of
English vessels which have leave to go to the said islands and places restored to France,
shall be limited, as well as the number of tons of each one ; that they shall go in ballast ;
shall set sail at a fixed time ; and shall make one voyage only ; all the effects belonging
to the English being to be embarked at the same time. I t has been farther agreed,
that his Most Christian Majesty shall cause the necessary passports to be given to the
said vessels ; that, for the greater security, it shall be allowed to place two French
clerks or guards in each of the said vessels, whieh shall be visited in the linding places
and ports of the said islands and places restored to France, and that the merchandize
which shall be found therein shall be confiscated.
IX. The Most Christian King cedes and guaranties to his Britannick Majesty, in
full right, the islands of Grenada, and the Grenadines, with the same stipulations in
favour of the inhabitants of this colony, inserted in the IYth article for those of Canada : And the partition of the islands called neutral, is agreed and fixed, so that those
of St. Vincent, Dominico, and Tobago, shall remain in full right to Great Britain, and
that of St. Lucia shall be delivered to France, to enjoy the same likewise in full right,
and the high contracting parties guaranty the partition so stipulated.
X. His Britannick Majesty shall restore to France the island of Goree in the condition it was in when conquered : and his Most Christian Maiesty cedes, in full right,
and guaranties to the King of Great Britain the river Senegal, with the forts and factories of St. Lewis, Podor, and Galam, and with all the rights and dependencies of the
said river Senegal.
XI. In the East Indies Great Britain shall restore to France, in the condition they
are now in, the different factories which that Crown possessed, as well as on the coast
of Coromandel and Orixa as on that of Malabar, as also in Bengal, at the beginning
°f the year 1749. And his Most Christian Majesty renounces all pretension to the
acquisitions which he has made on the coast of Coromandel and Orixa since the said
‘ beginning of the year 1749. His Most Christian Majesty shall restore, on his side, all
that he may have conquered from Great Britain in the East Indies during the present
•*« ; and will expressly cause Nattai and Tapanoully, in the island of Sumatra, to be
restored ; he engages farther, not to erect fortifications, or to keep troops in any part of
the dominions of the Subah of Bengal. And in order to preserve future peace on the
Tn8
* °f (-‘ o r o m a l l (iel v and Orixa, the English and French shall acknowledge Mahomet
Ally Khan for lawful Nabob of the Carnatick, and Salabat Jing for lawful Subah of
the Decan ; and both parties shall renounce all demands and pretensions of satisfaction
with which they might charge each other, or their Indian allies, for the depredations or
pillage committed on the one side or on the other during the war.
XII. The island of Minorca shall be restored to his Britannick Majesty, as well as
ort St. Philip, in the same condition they were in when conquered by the arms of the
«Lost Christian King ; and with the artillery which was there when the said island and
wie said fort were taken. , ‘
XIII. The town and port of Dunkirk shall be put into the state fixed by the last
featy of Aix la Chapelle, and by former treaties. The Cunette shall be destroyed
immediately after the exchange of the ratifications of the present treaty, as well as the
88 045VADÍAN ARCEIVES
6-7 EDWARD VII., A. 1907
forts and batteries which defend the entrance on the side of the sea ; and provision
shall be made at the same time for the wholesomeness of the air, and for the health of
the inhabitants, by some other means, to the satisfaction of the King of Great Britain.
XIV. Prance shall restore all the countries belonging to the Electorate of Hanover,
to the Landgrave of Hesse, to the Duke of Brunswick, and to the Count of La Lippe
Buckebourg, which are or shall be occupied by his Most Christian Majesty’s arms : the
fortresses of these different countries shall be restored in the same condition they were
in when conquered by the French arms ; and the pieces of artillery, which shall have
been carried elsewhere, shall be replaced by the same number, of the same bore, weight
and metal.
XV. In case the stipulations contained in the X l l l t h article of, the preliminaries
should not be compleated at the time of the signature of the present treaty, as well with
regard to the evacuations to be made by the armies of France of the fortresses of Cleves,
Wezel, Guelders, and of all the countries belonging to the King of Prussia, as with
regard to the evacuations to be made by the British and French armies of the countries
which they occupy in Westphalia, Lower Saxony, on the Lower Rhine, the Upper
Rhine, and in all the empire ; and to the retreat of the troops into the dominions” of
their respective Sovereigns : their Britannick and Most Christian Majesties promise to
proceed, bona fide, with all the dispatch the case will permit of to the said evacuations,
the entire completion whereof they stipulate before the 15th of March next, or sooner
if it can be done ; and their Britannick and Most Christian Majesties farther engage
and promise to each other, not to furnish any succours of any kind to their respective
allies who shall continue engaged in the war in Germany.
X V I . The decision of the prizes made in time of peace by the subjects of Great
Britain, on the Spaniards, shall be referred to the Courts of Justice of the Admiralty
of Great Britain, conformably to the rules established among all nations, so that the
validity of the said prizes, between the British and Spanish nations, shall be decided
and judged, according to the law of nations, and according to treaties, in the Courts of
Justice of the nation who shall have made the capture.
X V I I . His Britannick Majesty shall cause to be demolished all the fortifications
which his subjects shall have erected in the bay of Honduras, and other places of the
territory of Spain in that part of the world, four months after the ratification of the
present treaty: and his Catholick Majesty shall not permit his Britannick Majesty’s
subjects, or their workmen, to be disturbed or molested under any pretence whatsoever
in the said places, in their occupation of cutting, loading, and carrying away log-wood ;
and “for this purpose, they may build, without hindrance, and occupy, without interruption, the houses and magazines necessary for them, for their families, and for their
effects: and his Catholick Majesty assures to them, by this article, the full enjoyment of
those advantages and powers on the Spanish coasts and territories, as above stipulated,
immediately after the ratification of the present treaty.
X V I I I . His Catholick Majesty desists, as well for himself as for his successors, •
from all pretension which he may have formed in favour of the Guipuscoans, and other
his subjects, to the right of fishing in the neighbourhood of the island of Newfoundland.
X I X . The King o£ Great Britain shall restore to Spain all the territory which he
has conquered in the island of Cuba, with the fortress of the Havannah ; and this for-.
tress, as well as all the other fortresses of the said island, shall be restored in the same
condition they were in when conquered by his Britannick Majesty’s arms, provided that
his Britannick Majesty’s subjects who shall have settled in the said island, restored to
Spian by the present treaty, or those who shall have any commercial affairs to settle
there, shall have liberty to sell their lands and’ their estates, to settle their affairs, recover their debts, and to bring away their effects, as well as their persons, on board vessels which they shall be permitted to send to the said island restored as above, and
which shall serve for that use only, without being restrained on account of their religion,
or under any other pretence whatsoever, except that of debts or of criminal prosecutions: And for this purpose, the term of eighteen months is allowed to his Britannick
Majesty’s subjects, to be computed from the day of the exchange of the ratifications of
the present treaty: but as the liberty granted to his Britannick Majesty’s subjects, to
CONSTITUTIONAL DOCUMENTS 89
SESSIONAL PAPER No. 18
bring away their persons and their effects, in vessels of their nation, may be liable to
abuses if precautions were not taken to prevent them ; it has been expressly agreed between his Britannick Majesty and his Catholick Majesty, that the number of English
vessels which shall have leave to go to the said island restored to Spain shall be limited,
as well as the number of tons of each one ; that they shall go in ballast ; shall set sail
at a fixed time; and shall make one voyage only ; all the effects belonging to the English being to be embarked at the same time : it has been farther agreed, that his Catholick Majesty shall cause the necessary passports to be given to the said vessels ; that
for the greater security, it shall be allowed to place two Spanish clerks or guards in
each of the said vessels, which shall be visited in the landing places and ports of the
said island restored to Spain, and that the merchandize which shall be found therein
shall be confiscated.
XX. In consequence of the restitution stipulated in the preceding article, his
Catholick Majesty cedes and- guaranties, in full right, to his Britannick Majesty,
Florida, with Fort St. Augustin, and the Bay of Pensacola, as well as all that Spain
possesses on the continent of North America, to the East or to the South East of the
river Mississippi. And, in general, every thing that depends on the said countries and
lands, with the sovereignty, property, possession, and all rights, acquired by treaties or
otherwise, which the Catholick King and the Crown of Spain have had till now over the
said countries, lands, places, and their inhabitants ; so that the Catholick King cedes
and makes over the whole to the said King and to the Crown of Great Britain, and
that in the most ample manner and form. His Britannick Majesty agrees, on his side,
to grant to the inhabitants of the countries above ceded, the liberty of the Catholick
religion : he will, consequently, give the most express and the most effectual orders that
his new Roman Catholic subjects may profess the worship of*their religion according to
the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the Spanish inhabitants, or others who had been subjects of the Catholick King in the said countries, may retire, with all safety and freedom,
wherever they think proper ; and may sell their estates, provided it be to his Britannick Majesty’s subjects, and bring away their effects, as well as their persons, without
being restrained in their emigration, under any pretence whatsoever, except that of
debts, or of criminal prosecutions : the term limited for this emigration being fixed to
the space of eighteen months, to be computed from the day of the exchange of the
ratifications of the present treaty. I t is moreover stipulated, that his Catholick Majesty
shall have power to cause all the effects that may belong to him, to be brought away,
whether it be artillery or other things.
XXI. The French and Spanish troops shall evacuate all the territories, lands,
towns, places, and castles, of his Most faithful Majesty,in Europe, without any reserve,
which shall have been conquered by the armies of France and Spain, and shall restore
tnem m the same condition they were in when conquered, with the same artillery and
ammunition which were found there : And with regard to the Portuguese Colonies in
America, Africa, or in the East Indies, if any change shall .have happened there, all
lungs shall be restored on the same^ footing they were in, and conformably to the preceding treaties which subsisted between the Courts of France, Spain, and Portugal,
before the present war.
XXII. All the papers, letters, documents, and archives, which were found in the
countries, territories, towns and places that are restored, and those belonging to the
countries ceded, shall be, respectively and bond fide, delivered, or furnished at the same
ofTi ^ P°.SSÍDle, that possession is taken, or, at latest, four months after the exchange
the ratifications of the present treaty, in whatever places the said papers or documente may be found.
, XXIII, All the countries and territories, which may have been conquered, in
fùatsoever part of the world, by the arms of their Britannick and Most Faithful
^ajesties, as well as by those of their Most Christian and Catholick Majesties, which
tití n
°f i n c l u <* e d i n t n e present treaty, either under the title of cessions, or under the e ot restitutions, shall be restored without difficulty, and without requiring any compensations. 90 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 X X I V . As it is necessary to assign a fixed epoch for the restitutions and the «vacuations, to be made by each of the high contracting parties, it is agreed, that the British and French troops shall compleat, before the 15th of March next, all that shall remain to be executed of the X l l t h and X l l l t h articles of the preliminaries, signed the 3d day of November last, with regard to the evacuation to be made in the Empire, or elsewhere. The island of Belleisle shall be evacuated six weeks after the exchange of the ratifications of the present treaty, or sooner if it can be done. Guadaloupe, Desirade, Mariegalante Martinico, and Sb. Lucia, three months after the exchange of the ratifications of the present treaty, or sooner if it can be done. Great Britain shall likewise, at the end of three months after the exchange of the ratifications of the present treaty, or sooner if it can be done, enter into possession of the river and port of the Mobile, and of all that is to form the limits of the territory of Great Britain, on the side of the river Mississippi, as they are specified in the V l l t h article. The island of -Goree shall be evacuated by Great Britain, three months after the exchange of the ratifications of the present treaty ; and the island of Minorca by Prance, at the same epoch, or sooner if it can be done : And according to the conditions of the VTth article, France shall likewise enter into possession of the islands of St. Peter, and of Miquelon, at the end of three months after the exchange of the ratifications of the present treaty. The Factories in the East Indies shall t e restored six months after the exchange of the ratifications of the present treaty, or sooner if it can be done. The fortress of the Havannah, with all that has been conquered in the island of Cuba, shall be restored three months after the exchange of the ratifications of the present treaty, or sooner if it can be done : And, at the same time, Gre^t Britain shall enter into possession of the country ceded by Spain according to the X X t h article. All the places and countries of his most Faithful Majesty, in Europe, shall be restored immediately after the exchange of the ratification of the present treaty : And the Portuguese colonies, which may have been conquered, shall be restored in the space of three months in the West Indies, and of six months in the East Indies, after the exchange of the ratifications of the present treaty, or sooner if it can be done. All the fortresses, the restitution whereof is stipulated above, shall be restored with the artillery and ammunition, which were found there at the time of the conquest. In consequence whereof, the necessary orders shall be sent by each of the high contracting parties with reciprocal passports for the ships that shall carry them, immediately after the exchange of the ratifications of the present treaty. XXV. His Britannick Majesty, as Elector of Brunswick Lunenbourg, as well for himself as for his heirs and successors, and all the dominions and possessions of his said Majesty in Germany, are included and guarantied by the present treaty of peace. - X X V I . Their sacred Britannick, Most Christian, Catholick, and Most Faithful Majesties, promise to observe sincerely and oovd fide, all the articles contained and settled in the present treaty ; and they will not suffer the same to be infringed, directly or indirectly, by their respective subjects ; and the said high contracting parties, generally and reciprocally, guaranty to each other all the stipulations of the present treatyX X V I I . The solemn ratifications of the present treaty, expedited in good and due form, shall be exchanged in this city of Paris, between the high contracting parties, in the space of a month, or sooner if possible, to be computed from the day of the signature of the present treaty. In witness whereof, we the underwritten their Ambassadors Extraordinary, and Ministers Plenipotentiary, have signed with our hand, in their name, and in virtue of our full powers, have signed the present definitive treaty, and have caused the seal of our arms to be put thereto. Done at Paris the tenth day of February, 1763. Bedford, C.P.S. Choiseul, Duc de Praslin. El Marq. de Orirnaldi. (L.S.) (L.S.) (L.S.) SEPARATE ARTICLES. I. Some of the titles made use of by the contracting powers, either in the full powers, and other acts, during the course of the négociation, or in the preamble of the present treaty, not being generally acknowledged ; it has been agreed, that no prejudice shall ever re- CONSTITUTIONAL 'DOCUMENTS 91 SESSIONAL PAPER Mo. 18 suit therefrom to any of the said contracting parties, and that the titles, taken or omitted on either side, on occasion of the said négociation, and of the present treaty, •shall not be cited or quoted as a precedent. II. I t has been agreed and determined, that the French language made use of in all the copies, of the present treaty, shall not become an example which may be alledged, or made a precedent of, or prejudice, in any manner, any of the contracting powers ; and that they shall conform themselves, for the future, to what has been observed, and ought to be observed, with regard to, and on the part of powers, who are used, and have a right, to give and to receive copies of like treaties in another language than French; the present treaty having still the same force and effect, as if the aforesaid custom had been therein observed. III. Though the King of Portugal has not signed the present definitive treaty, their Britannick, Most Christian, and Catholick Majesties, acknowledge, nevertheless, that his Most Faithful Majesty is formally included therein as a contracting party, and as if he had expressly signed the said treaty : Consequently, their Britannick, Most Christian, and Catholick Majesties, respectively and conjointly, promise to his Most Faithful Majesty, in the most express and most binding manner, the execution of all and every the clauses, contained in the said treaty, on his act of accession. The present Separate Articles shall have the same force as if they were inserted in the treaty. In witness whereof, We the under-written Ambassadors Extraordinary, andMinisters Plenipotentiary of their Britannick, Most Christian and Catholick Majesties, have signed the present separate Articles, and have caused the seal of our arms to be put thereto. Done at Paris, the 10th of February, 1763. Bedford, C.P.S. Choiseul, Duo El Marq. de (L.S.) de Praslin. Grimaldi, (L.S.) (L.S.) His Britannick Majesty's full Power. GEORGE R. GEOHGE the Third, by the grace of God, King of Great Britain, France and Ireland, Defender of the Faith, Duke of Brunswick and Lunenbonrg, Arch-Treasurer, and Prince Elector of the Holy Roman Empire, &c. To all and singular to whom these presents shall come, greeting. Whereas, in order to perfect the peace between Us and our good Brother the Most Faithful King, on the one part, and our good Brothers the •Most Christian and Catholick Kings, on the other, which has been happily begun by the preliminary Articles already signed at Fontainebleau the third of this month ; and to bring the same to the desired end, We have thought proper to invest some fit person with full authority, on our part ; Know ye, that We, having most entire confidence in the fidelity, judgment, skill, and ability in managing affairs of the greatest consequence, of our right trusty, and right entirely beloved Cousin and Counsellor, John Duke and Jiarl of Bedford, Marquis of Tavistock, Baron Russel of Cheneys, Baron Russel of Thornnaugh,^ and Baron Howland of Streatham, Lieutenant-general of our forces, Keeper of our Privy Seal, Lieutenant and Custos Rotulorum of the counties of Bedford and Devon, r-mght of our most noble order of the Garter, and our Ambassador Extraordinary and Plenipotentiary to our good Brother the Most Christian King, have nominated, made, •constituted and appointed, as by these presents, we do nominate, make, constitute, and appoint him, our true, certain, and undoubted Minister, Commissary, Deputy, Procuraor and Plenipotentiary, giving to him all and all manner of power, faculty and authory> as well as our general and special command (yet so as that the general do not derogate from the special, or on the contrary) for Us and in our name, to meet and confer, as
ell singly and separately, as jointly, and in a body, with the Ambassadors, CommisJf^’ £*e
puties, and Plenipotentiaries of the Princes, whom it may concern, vested with
• tneient power aud authority for that purpose, and with them to* agree upon, treat,
nsult and conclude, concerning the re-establishing, as soon as may be, a firm and lasting
92 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
pea e, and sincere friendship and concord ; and whatever shall be so agreed and concluded, for Us and in our name, to sign, and to.make a treaty or treaties, on what shall
have been so agreed and concluded, and to transact every thing else that may belong to
the happy completion of the aforesaid work, in as ample a manner and form, and with
the same force and effect, as We ourselves, if ,we were present, could do and perform ;
engaging and promising, on our royal word, that We will approve, ratify and accept,
in the best manner, whatever shall happen to be transacted and concluded by our said
Plenipotentiary, and that We will never suffer any person to infringe or act contrary to
the same, either in the whole or in part. In witness and confirmation whereof We
have caused our great Seal of Great Britain to be affixed to these presents, signed with
our royal hand. Given at our Palace at St. James’s, the 12th day of November, 1762,
in the third year of our reign.
His Most Christian Majesty’s Full Power.
LEWIS, by the grace of God, King of France and Navarre, To all who shall see these
presents, Greeting. Whereas the Preliminaries, signed at Fontainbleau the third of
November of the last year;
laid the foundation of the peace re-established between us
and our most dear and most beloved good Brother and Cousin the King of Spain, on
the one part, and our most dew and most beloved good Brother the King of Great
Britain, and our most dear and most beloved ood Bro.her and Cousin the King of
Portugal on the other, We have had nothing more at heart since that happy epoch,
than to consolidate and strengthen in the most lasting manner, so salutary and so
important a work, by a solemn and definitive treaty between Us and the said powers.
For these causes, and other good considerations, Us thereunto moving, We, trusting
entirely in the capacity and experience, zeal and fidelity for our service, of our most
dear and well-beloved Cousin, Csesar Gabriel de Choiseul, Duke of Praslin, Peer of
France, Knight of our Orders, Lieutenant General of our Forces and of the province of
Britany, Counsellor in all our Couneils, Minister and Secretary of State, and of our
Commands and Finances, We have named, appointed, and deputed him, and by these
presents, signed with our hand, do name, appoint, and depute him our Minister Plenipotentiary, giving him full and absolute power to act in that quality, and to confer,
negociate, treat and agree jointly with the Minister Plenipotentiary of our most dear
and most beloved good Brother the King of Great Britain, the Minister Plenipotentiary
of our most dear and most beloved good Brother and Cousin the King of Spain and the
Minister Plenipotentiary of our most dear and most beloved good Brother and Cousin
the King of Portugal, vested with full powers, in good form, to agree, conclude and sign
such articles, conditions, conventions, declarations, definitive treaty, accessions, and
other acts whatsoever, that he shall judge proper for securing and strengthening the
great work of peace, the whole with the same latitude and authority that We ourselves
might do, if We were there in person, even though there should be something which
might require a more special order than what is contained in these presents, promising
on the faith and word of a King, to approve, keep firm and stable for ever, to fulfil
and execute punctually, all that our said Cousin, the Duke of Praslin, shall have
stipulated, promised and signed, in virtue of the present full power, without ever”acting
contrary thereto, or permitting any thing contrary thereto, for any cause, or under any
pretence whatsoever, as also to cause our letters of ratification to be expedited in good
form, and to cause them to be delivered, in order to be exchanged within the time that
shall be agreed upon. For such is our pleasure. In witness whereof, we have caused
our Seal to be put to these presents. Given at Versailles the 7th day of the month of
February, in the year of Grace 1763, and of our reign the forty-eighth. Signed Lewis,
and on the” fold, by the King, the Duke of Choiseul. Sealed with the great Seal of yellow Wax.
His Catholick Majesty’s full Power.
DON CÁELOS, by the grace of God, King of Castille, of Leon, of Arragon, of the two
Sicilies, of Jerusalem, of Navarre, of Granada, of Toledo,- of Valencia, of Galicia, of
t
CONSTITUTIONAL DOCUMENTS 93
SESSIONAL PAPER No. 18
Majorca, of Seville, of Sardinia, of Cordova, of Corsica, of Murcia, of Jaen, of the Algarves, of Algecira, of Gibraltar, of the Canary Islands, of the East and West Indies,
Islands and Continent, of the Ocean, Arch Duke of Austria, Duke of Burgundy, of
Brabant and Milan, Count of Hapsburg, of Flanders, of Tirol and Barcelona, Lord of
Biscay and of Molino, &c. Whereas preliminaries of a solid and lasting peace between
this Crown, and that of France on the one part, and that of England and Portugal on
the other, were concluded and signed in the Royal Residence of Fontainbleau, the 3d of
November of the present year, and the respective ratifications thereof exchanged on the
2’2d of the same month, by Ministers authorised for that purpose, wherein it is promised,
that a definitive treaty should be forthwith entered upon, having established and regulated the chief points upon which it is to turn : and whereas in the same manner as I
granted to you, Don Jerome Grimaldi, Marquis de Grimaldi, Knight of the Order of the
Holy Ghost, Gentleman of my Bed-chamber with employment, and my Ambassador
Extraordinary to the Most Christian King, my full power to treat, adjust, and sign the
before-mentioned preliminaries, it is necessary to grant the same to you, or to-some
other, to treat, adjust, and sign the promised definitive treaty of peace as aforesaid :
therefore, as you the said Don Jerome Grimaldi, Marquis de Grimaldi, are at the convenient place, and as I have every day fresh motives, from your approved fidelity and
zeal, capacity and prudence, to entrust to you this, and other-like concerns of my Crown,
I have appointed you my Minister Plenipotentiary, and granted to you my full power,
to the end, that, in my name, and representing my person, you may treat, regulate,
settle, and sign the said definitive treaty of peace between my Crown and that of France
on the one part, that of England and that of Portugal on the other, with the Ministers
who shall be equally and specially authorised by their respective Sovereigns for the
same purpose ; “acknowledging, as I do from this time acknowledge, as accepted and
ratified, whatever you shall so treat, conclude, and sign ; promising, on my Royal Word,
that I will observe and fulfil the same, will cause it to be observed and fulfilled, as if it
had been treated, concluded, and signed by myself. In witness whereof, I have caused
these presents to be dispatched, signed “by my hand, sealed with my privy seal, and
countersigned by my under-written Counsellor of State, and first Secretary for the
department of State and of War. Buen Retiro, the 10th of December, 1762.
(Signed) I T H E KING.
(And lower) Richard Wall.
PAPERS RELATING TO T H E ESTABLISHMENT OF CIVIL GOVERNMENT IN T H E TERRITORIES CEDED TO B R I T A I N BY T H E TREATY
OF 1763.1
(Egremont to Lords of Trade.)
WHITEHALL May 5″1
1763.
Lords of Trade
M Y LOEDS • ,.
His Majesty having brought the Negotiation with France & Spain to a
happy Conclusion, and having given the necessary Orders for carrying
into Execution the several Stipulations of the late Treaty, is now pleased
to fix His Royal Attention’upon the next important Object of securing
to His Subjects, and extending the Enjoyment of the Advantages, which
Peace has procured.
proviH ^U
^ ‘ ^ e
following papers contain an account of the steps taken by the British Government to
terrSn . a s?
l t a 1 : ,le constitution and policy of administration for Canada and the other recently acquired
the PnSf8
–
ln
–
N o r t n America. They furnish the basis for the Proclamation of Oct. 7th, 1763, as also for
Provín ™ iS1?? a u < i the Instructions of the same date, given to GeneralJames Murray as Governor of the exempt i. < i u e o e °- The rapers are copied from the originals in the Public Record Office, and are, p t wnere noted, from the series " America and the West Indies." -The first is from vol. 268, p. 93. 94 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 His Majesty therefore, upon the same Principle of Sollicitude for the Interests of His Colonies, which engaged him in a just & necessary War, in support of their Rights, and obliged him to insist on such Terras of Peace as he thought peculiarly calculated for the future S euiity of that important Object, directs me to transmit to Your Lordships herewith the Definitive Treaty of Peace ; and I am commanded to signify to Your Lordships His Majesty's Pleasure, that You do, without Loss of Time, take into Your most serious Consideration, those Articles which relate to the Cessions made by their Most Christian ifc? of the cwhole
Southern Coast of the Gulphc«qf -S’ Laurence, from the Streights, of
Canceau to Cape Roziere, at the,,Mouth of the River, appears tc p s ^ o
have been the cheif Encroachment made by the French in Violation of> the
Stipulations in the Treaty of Utrecht ;» Bí¿fcs
tlie MoijapQly.oithe, Fighery
which they endeavoured to establish upon. *hts E^crpacjhasenif^^s greatly
strengthned by other Circumstances. By suffering the whole of Nova
Scotia (the Fort of Annapolis excepted) to remain entirely in the 1 ossession
of French Inhabitants from the Treaty of Utrecht to the Year 1749, ‘Your
Majesty’s Subjects were discouraged and prevented from availing themselves of the advantageous and abundant Fishery which might have been
carried on upon that part of the Coast of Nova Scotia expressly and
exclusively reserved to them in the Treaty of Utrecht, for the french
constantly excited the Indians to disturb the Fishermen that resorted
thither ; And by their Possession of the whole Coast of Labrador, they not
only carried on an extensive Trade with the Esquimeaux Indians in Oyl,
Furs &ca (in which they allowed Your Majesty’s Subjects no Share) but
by the Vicinity of- the Eastern Part of that Coast, to that part of Newfoundland, (where a permissive Right of drying their Fish, only during the
Fishery Season was granted by the Treaty of Utrecht) They assumed in
some Measure an Exclusive Right to the Navigation in the Streights of
Bellisle.
These several Encroachments, will, We apprehend, entirely cease, on the
one Hand, by the compleat Settlement of Your Majesty’s Colony of Nova
Scotia, according to it’s true and ancient Boundaries, and on the other by
the Annexation of the Labrador Coast to the Government of Newfoundland,
and by the faithfull Execution of those Instructions, which Your Majesty has
been pleased to give to Your Governor of that Island. With respect to the
Islands of S* Pierre and Miquelon, We do not «apprehend that any great
Advantages can result to the French Fishery, or great Inconvenience to that
of Your Majesty’s Subjects by the Possession of them according to the Terms
of the Treaty ; We do not imagine they are fitted to restore or revive that
Branch which the French call La Peche Sédentaire, and of •« hich they have
been deprived by the Cessions, not only as these Islands are without Wood,
either for Firing or for any sort of Naval Construction, but as they are utterly
incapable of producing Provision sufficient for the Consumption of any considerable Number of Inhabitants. And as to any Conveniences of Drying
and Curing such Fish upon those Islands, as may be caught, upon the Banks
of Newfoundland during the Banking Season, It appears, by what Information We have had, that the best Fish so caught may be earlier and more
conveniently dryed upon that part of Newfoundland, where a permissive
Right for so doing during the Season was granted as well by the Treaty of
Utrecht, as by the late Treaty. It seems, therefore, only to remain, that
proper Precautions be taken against any Contraband Trade, which may be
carried on from those Islands by any of the Ships of Your Majesty’s Subjects trading thither or otherwise. To prevent which Your Majesty’s Governor of Newfoundland should be instructed to employ the utmost Vigilance
with regard to all such Trade during his Continuance upon the Station, and
to give express Directions to the Officers of the Garrisons and the Magistrates in their several Departments that in his Absence they should have
the utmost Attention to this Object, and to put the Laws against contraband Trade into strict Execution, for which purpose it will be necessary to
establish in that Government a Court of Vice Admiralty or some other
Jurisdiction competent to the Cognizance and Punishment of Breaches of
the Acts of Trade.
The next obvious Benefit acquired by the Cessions made to your Majesty
is the Fur & Skin Trade of all the Indians in North America. The first
Ï 8 – 3 – 7 J
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
“t>f ‘these Articles* «before the present Cession, was enjoyed by the French
* almost entirely ; Thé only part left in the Hands of Your Majesty’s Subjects, being that carried on by the Exclusive Company of Hudson’s Bay,
and a very inconsiderable Quantity through the Provint e of New York.
•This Trade.was aeqfuited in virtue of the Possession which they had taken
AeeÁijrwrj^W» thfe Stipulations of the Treaty of Utrecht) of all the Lakes in
North America, communicating with the River S’ Laurence, tho’ the circumjacent Territory avowedly belonged to the six Nations of Indians,
Acknowledged by the French to be Your Majesty’s Subjects in that Treaty,
and by virtue of the Claim which they afterwards set up and were suffered
to maintain for a long time of forcibly excluding Your-Majesty’s Subjects
from any Navigation in those Lakes. But this Trade which the French
with the utmost Industry had carried to the greatest Extent, by means of
numerous well chosen Posts and Forts sufficient, as well to overawe as to
supply all the Indians upon that immense Continent, is now fallen intirely
and exclusively into the Hands of Your Majesty’s Subjects and may be
secured and communicated to all Your Majestys Colonies according to the
Industry of each, by means of those Posts and Forts with proper Regulations for the Trade with the Indians, under the Protection of such a Military Force as may preserve their Tranquility, not only against Indian Incursions but be ready for their Defence against any European Attack.—The
Skin Trade was Chiefly in the Hands of Your Majesty’s Subjects in the
Southern Colonies even previous to the Cessions, but was often disturbed
and interrupted by the frequent Incursions of Indians incited by the
French—As these Circumstances no longer exist, a great Extension and
Improvement of that Article may likewise be expected.
Another obvious Advantage of the Cession, will be the supplying of all
the Indian Tribes upon the Continent of North America with European
Commodities immediately through the Hands of English Traders.—This
Article, if not wholly engrossed by the French, was possessed by them in
the greatest Degree, and was of so much Importance that the Traders of
New York chose rather to supply the Inhabitants of Canada with English
Goods and Manufactures fit for the Indian Trade, than to risque the Loss of
what they esteemed so valuable a Branch, by attempting a direct Trade
with the Indians themselves. And this strange Principle was adopted by
many of the Merchants of London, as appeared upon a Hearing on that
Subject before Your Majesty’s Board of Trade in 1721.
Another Advantage attending the late Treaty is the secure settling of
the whole Coast of North America, as it’s produce may invite, or Convenience for Settlement may offer, from the Mouth of the Missisippi to the
Boundaries of the Hudson’s Bay Settlements, with the whole Variety of
Produce which is capable of being raised in that immense Tract of Sea
Coast, either by the Industry of Emigrants from Europe, or from the Overflowing of Your Majesty’s ancient Colonies—previous to the làte War?
Nothing is more certain than that many of Your Majesty’s ancient Colonies
appeared to be overstock’d with Inhabitants, occasioned partly from an
extremely increasing Population in some of those Colonies, whose Boundaries had become too narrow for their Numbers, but chiefly by the Monopoly of Lands in the Hands of Land Jobbers from the extravagant and
injudicious Grants made by some of Your Majesty’s Governors, whereby a
great many of Your Majesty’s industrious Subjects were either forced into
Manufactures, being excluded from planting by the high Price of Land (A
Situation which they otherwise would have preferr’d) or forced to emigrate
to the other Side of the Mountains, where they were exposed to the Irruptions of the Indians as well as the Hostilities of the French. And though,
on the one Hand, Your Majesty’s Province of Nova Scotia according to
it’s true and just Boundaries, and on the other, that of Georgia, would
CONSTITUTIONAL DOCUMENTS 101
SESSIONAL PAPER No. 18
have contained many more of Your Majesty’s Subjects than were in this
disagreable Situation, and more advantageously for the Trade and Interest
of Your Kingdoms, Yet the Hostilities which the French contrived to
excite at first, by the Indians in their Alliance, and at last by regular
Troops in Nova Scotia, and a Dread of the like Calamities on the Side of
Georgia from the Indians and Spaniards, have hitherto prevented the salutary progress of these new Settlements, and the happy Consequences which
otherwise might have been expected from them.
We have already mentioned the great Scope and Boom which there is
for beneficial Settlements in the Article of Fishery in Nova Scotia, another
great Advantage however of the late Treaty, producing Strength to Your
Kingdom and Riches to Your Subjects, is the future Supply which the
new Acquisitions will afíbrd of Naval Stores, more particularly that of
masting for the Royal Navy, and of that Species of Timber and Wood
commonly called Lumber, so essential to the Commerce and Cultivation of
the Sugar Colonies, both which Articles are to be found in great Quantities,
and with peculiar Advantage and Convenience in the Province of Canada,
upon Lake Champlain, and in those Parts of Nova Scotia, the exclusive
Possession of which is now confirmed to Your Majesty, and this Benefit
arising from the Treaty is of the greatest Consideration, as the Supply of
Masting and Stones for the Royal Navy from America had been almost
entirely stop’d by bad Management and Waste committed in Your Majesty’s Woods in New England and New York and the Price of Lumber had
been greatly enhanced from the Necessity of procuring it at a greater Distance from the Ocean, and from convenient Ports of Shipping.
In the Province of Georgia and the Neighbouring Florida Commercial
Advantages of a still more valuable Nature will probably follow the secure
Extension of Settlement, which will be attained by the Cession of Florida,
and the End which will be thereby put to Interruptions from the Indians.
For there can be no Doubt, that Indigo, Silk, Cotton, and many of the
Commodities now found in the West Indies only, may be raised in these
Climates. An Object which will prove a strong Temptation to the Settlement of those Territories.
A capital Advantage highly deserving Your Majesty’s Attention is the
Increase of the Trade of Sugar, Coffee, Cotton and other Indian Products
by the speedy Settlement and Culture of the new acquired Islands.—T+ is a
known Truth, that the Produce of our West India Islands has hitherto
been but barely sufficient to answer our growing Consumption in the first
of these valuable Articles, and that as these Islands were all, excepting
Jamaica, intirely cultivated, additional Territory was therefore become
absolutely necessary to this Branch of Trade, which may be extended to a
very great Degree if those new Islands are speedily settled.
The last advantageous Consequence arising from the Cessions which We
«hall now lay before Your Majesty is that of securing the whole Gum Trade
on the Coast of Africa from a Monopoly in the Hands of the French by
means of the River Senegal as well as the Acquisition of a considerable
Share of the Slave Trade formerly in their hands, with a Variety of other
Articles which there is great reason to believe may be obtained by the
prosecution of further Discoveries on that River.
Having thus stated the most obvious Advantages resulting from the Cession made to Your Majesty by the late definitive Treaty, We submit to
Your Majesty, as Our humble Opinion, that they can only be secured and
improved by an immediate Establishment of regular Governments, in all
such Places, where planting and Settlement, as well as Trade and Commerce are the immediate Objects. For in order to invite new Settlers to
risque their persons and Property in taking up new Lands, as well as to
secure the old Inhabitants in the Enjoyment of those Rights and Priviledges
102 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
reserved to them by the Treaty, such regular Government appears, both
from Reason and Experience, of absolute Necessity. And it. seems likewise
necessary for the same reasons, as well as to secure Your Majesty’s Sovereignty and the Publick Tranquillity, that à large Military force should be
kept up in each Government, ’till by the increase of Inhabitants, each Colony shall be enabled to maintain their own Governments by their own internal Force. But as no such regular civil Government is either necessary or indeed can be established, where no perpetual Residence or planting is intended ; I t will there be sufficient to provide for the free Trade of all Tour Majesty’s Subjects under such Regulations, and such Administration of Justice
as is best suited to that End. Such We apprehend to be the case of Newfoundland, where a temporary Fishery is the only Object, and this We suppose has been the reason, which induced Your Majesty to annex the Coast
of Labrador to that Government : Such is the case of Senegal and the Principle upon which we suppose Your Majesty thought proper to put that River and Country under the Administration of the African Committee. And
such we apprehend will be the Case of that Territory in North ‘ America
which in Your Majesty’s Justice and Humanity as well as sound Policy is
proposed to be left, under Your Majesty’s immediate Protection, to the Indian Tribes for their hunting Grounds ; where no Settlement by planting is
intended, immediately at least, to be attempted»; and consequently where no
particular form of Civil Government can be established. In such Territory
we should propose, that a free Trade with the Indian Tribes should be granted to all Your Majesty’s Colonies and Subjects under such Regulations as
shall be judged most proper for that End, and under the protection of such
Military Force, to be kept up in the different Posts & Forts in the Indian
Country as may be judged necessary, as well for the Protection of Trade
and the good Treatment of the Indians as the Maintenance of Your Majesty’s Sovereignty and the general defence of North America.
We shall defer at present entering into any particulars, as to the number
of Troops which it may be necessary to maintain for this purpose, The
Number and Situation of the Posts and Forts, and the Regulations
proper to be established for a free Trade from all Your Majesty’s Colonies
into the Indian .Country ; ’till by further Information from Your Majesty’s
Commander in Chief of America, and from Your Majesty’s Agents for Indian
Affairs, We shall be enabled to make a more full and particular Report
upon so interesting and important a Subject. And We apprehend that no
such Delay can be attended with very material Inconvenience, since, if Your
Majesty shall be pleased to adopt the general proposition of leaving a large
Tract of Country round the great Lakes as an Indian Country, open to
Trade, but not to Grants and Settlements, the Limits of such Territory will
be sufficiently ascertained by the Bounds to be given to the Governors of
Canada and Florida on the North and South, and the Mississippi on the
West ; and by the strict Directions to be given to Your Majesty’s several
Governors of Your ancient Colonies for preventing their making any new
Grants of Lands beyond certain fixed Limits to be laid down in the Instructions for that purpose. And We apprehend that in the mean time the
Security of this Trade will be sufficiently provided for by the Forts already
erected, and such Garrisons as Your Commander in Chief may, at his
Discretion, think proper to keep in them.
But that no time may be lost in finally settling this important point of
the Indian Country, it will be absolutely necessary that immediate Orders
be sent as well to Your Majesty’s Commander in Chief of America as to
Your Agents for Tndian Affairs, that without delay they furnish every
Information in their power on this Subject, and that they be directed to
correspond directly with Your Majesty’s Board of Trade for this purpose.
CONSTITUTIONAL DOCUMENTS 103
SESSIONAL PAPER No. 18
Ganada, Florida and the new acquired Islands in the West Indies appear
to Us to be the Places where Planting, perpetual Settlement and Cultivation ought to be encouraged and consequently where regular Forms of
Government must immediately be established.
Canada as possessed and claimed by the French consisted of an immense”
Tract of Country including as well the whole Lands to the westward indefinitely which was the Subject of their Indian Trade, as all that Country
from the Southern Bank of the River S’ Lawrence where they carried on
their Encroachments.
I t is needless to state with any degree of precision the Bounds and Limits
of this extensive Country, for We should humbly propose to Your Majesty
that the new Government of Canada should bè restricted, so as to leave on
the one hand, all the Lands lying about the great Lakes and beyond the
Sources of the Rivers which fall into the River S* Lawrence from the
North, to be thrown into the Indian Country, and on the other hand, all
» the Lands from Cape Roziere to Lake Champlain, along the Heights where
the Sources of the Rivers rise, which fall into the Bay of Fundy and Atlantic Ocean, to be annexed to Nova Scotia and New England in such a manner as upon any future directions after particular Surveys have been made
shall appear most proper, If this general Idea shall be approved the future
Bounds of the new Colony of Canada will be as follows,
On the South East it will be bounded by the high Lands which range
across the Continent from Cape Roziere in the Gulph of S’ Laurence to
that point of Lake Champlain above S* Johns which is in Latitude 45
Degrees North ; which high Lands separate the heads of the Rivers which
fall into the great River S* Lawrence from the heads of those which fall
into the Atlantick Ocean or Bay of Fundy. On the North West I t will be
bounded by a Line drawn South from the River S* Johns in Labrador by
the heads of those Rivers which fall into the River S’ Lawrence as far as
the East end of Lake Nipissin upon the Ottowa River, and on the South
West by a Line drawn due West to the River S* Lawrence from that point
on Lake Champlain which is directly ^opposite to where the South Line falls
in and so cross the said River S’ Lawrence and pursuing a North West
Course along the Heights where the Rivers rise, that fall into the Ottowa
River, to be continued to the East end of Nipissin Lake where the North
Line terminates.
In order however that Your Majesty may judge with the greater precision of the Limits of Canada as above described and also of those We shall
propose for Florida, and of the Country/we think right to be left as Indian
Territory,- We humbly beg leave to refer to the annex’d Chart 1
in which
those Limits are particularly delineated, and of which Your Majesty will
have a clearer Conception than can be conveyed by descriptive Words alone.
The Advantage resulting from this restriction of the Colony of Canada
will be that of preventing by proper and natural Boundaries, as well the
Ancient French Inhabitants as others from removing & settling in remote
Places, where they neither could be so conveniently made ameanable to the
Jurisdiction of any Colony nor made subservient to the Interest of the
Trade & Commerce of this Kingdom by an easy Communication with tfc
Vicinity to the great River S* Lawrence. And this Division by the
heights of Land to the South of the River S* Lawrence will on the one
hand leave all Your Majesty’s new French Subjects under such Government, as Your Majesty shall think proper to continue to them in regard to
the Rights & Usages already secured or that may be granted to them. On
the other hand, the reannexing to Nova Scotia all that Tract of Land from
_______^^ Cape Roziere along the Gulph of S* Lawrence with the whole Coast of the
His Mai ? 6 p o r t w&s accompanied by a printed map of North America by Eman. Bowen, G-eographer to
jesty, and engraved by John Gibson, on which the boundaries were marked.
104 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Bay of Fundy to the River Penobscot, or to the River S1, Croix will be
attended with this peculiar Advantage, of leaving so extensive a Line of
Sea Coast to be settled by British Subjects ; and all the new Settlers upon
this Tract of Land will with greater facility be made amenable to the
Jurisdiction of Nova Scotia than to that of Canada ; and upon the same
Principle, I t will likewise be necessary to reannex the Islands of Cape
Breton and S’ John’s to the Government of Nova Scotia.1
And^here, We cannot help offering it as Our humble Opinion that the
utmost Attention should immediately be given to the Speedy Settlement
of this Tract of Country and that Instructions be prepared for Your Majesty’s Governor for that purpose, with particular regard to such Officers &
Soldiers who have served so faithfully & bravely during the late War and
who may now be willing to undertake such new Settlements under proper
Conditions.
I t is obvious that the new Government of Canada, thus bounded, will,
according to the Reports of Generals Gage, Murray and Burton, contain
within it a very great number of French Inhabitants and Settlements, and
that the Number of such Inhabitants must greatly exceed, for a very long
period of time, that of Your Majesty’s British and other Subjects who may
attempt Settlements, even supposing the utmost Efforts of Industry on
their part either in making new Settlements, by clearing of Lands, or purchasing old ones from the ancient Inhabitants, From which Circumstances,
it appears to Us that the Chief Objects of any new Form of Government
to be erected in that Country ought to be to secure the ancient Inhabitants
in all the Titles, Rights and Privileges granted to them by Treaty, and to
increase as much as possible the Number of British and other new Protestant Settlers, which Objects We apprehend will be best obtain’d by the
Appointment of a Governor and Council under Your Majesty’s immediate
Commission & Instructions. But the particular Regulations and Provisions to be adapted to the different Circumstances and Situation of this as
well as Your Majesty’s other new Acquisitions, will more properly and
distinctly come under Your Majesty’s Consideration in the Draught of the
Commission and Instructions to be prepared for each Governor, than in
this first general Report.
I t will however be necessary that a large military Force be kept up ’till
the number of British Inhabitants and new Settlers be very considerably
increased, as well to secure the Obedience and Fidelity of the ancient
French Inhabitants as to give full Protection & Security to the new British
Settlers.
Canada was, under the French, divided into the three Governments of
Quebec, Montreal and Trois Rivieres, but the Residence of the chief Governor was at Quebec, and the two other Governments had each a Lieutenant Governor only, subordinate to the Governor in Chief, and we should
humbly propose that the same Method be continued under the new Governm* ; not only as by this means the Administration of Justice and of
Commerce will be less embarrass’d, but that a less proportion of military
Force will be requisite to be maintained and be more easily applicable
against all external or internal Disturbances.
Florida and that part of Louisiana to the eastward of the Missisippi,
both which Tracts are ceded to Your Majesty by the late Treaty, may be
compared to Canada, in respect to Extent of Territory, and the number of
Indian Tribes, with which they have immediate Communication, but in
other respects, they seem entirely different. The number of settled
Inhabitants, either French or Spaniards, we apprehend, has never been
1
It will be _ observed that Nova Scotia, or Acadia, still included the territory afterwards erected into
the separate Province of New Brunswick. The island of St. Johns, here mentioned, is now Prince Edwaid
Island.
CONSTITUTIONAL DOCUMENTS 105
SESSIONAL PAPER No. 18
considerable, and there is little probability, from the Facility of their
Removal, that any of them will remain, after the Cessions are compleated,
tho’ we ar.e of Opinion, as well from this Circumstance of their Paucity, as
with a view to the immediate Settlement of the Country, that every
Expedient should be used, to induce as many to remain as can be prevailed
upon.—
The Produce of Canada, with its Trade, the Navigation of the River S*
Lawrence, with its Communication to the great Lakes of North America,
are, from authentick Information, in many particulars tolerably well
understood ; but we are sorry it is not in our power, either from any
materials in our Office, or from any other to be depended upon, to give
Your Majesty that certain Information we could wish either with regard
to the Coast, Harbours and Rivers of Florida, or as to the Variety of
Produce which there is the greatest probability may be raised in that
extended Country. Ws shall therefore content ourselves with suggesting
at present, that whenever a Government is established in this Country,
Instructions should be given for surveying with all possible Accuracy, as
well the Sea Coast and places fit for Harbours as the internal Country and
Rivers, particularly of that part which lies between the great Mountains
and the Missisippi, of which there are not extant any Charts or Accounts
on which we can depend, for which purpose it will be necessary that a
proper number of able and skilfull Surveyors be appointed.
The great Tract of Sea Coast from S* Augustine, round Cape Florida,
along the Gulph of Mexico, to the Mouth of the Missisippi makes it, we
apprehend, indispenseably necessary that this Country should be divided
into two distinct Governments, and, for the present, the Chief Residence of
the Governor of the one should be at S* Augustine, with orders to give
particular Attention to Cape Florida, (as that Cape commands the whole
Navigation from the Bay of Mexico) the Residence of the other at Pensicola, with particular Instructions regarding the Missisippi, the free Navigation of which ought, we apprehend, to be most accurately understood, not
only in respect of that River being the future Boundary betwixt Your
Majesty’s Dominions, and those of the French, but as this River by its
Communication with the Ohio, the Illinoris
And We submit to your Majesty whether any Inconveniencies would arise, from such
Commission, which would not equally arise from a like Commission to a Governor of any
of Your Majesty’s particular Colonies —
But as the Instructions to such Governour, if Your Majesty should approve of this
Proposition, would require a great Yariety of Information, both with respect to the
Management of the Indian Tribes and Trade, which can only be had from Your Majesty’s
Commander in Chief, and Your Agents for Indian Affairs, We would further submit,
whether the issuing such Commission and Instructions, may not be delayed ; ’till by the
receipt of such Information, which Your Majesty has been graciously pleased to direct,
We are enabled to make a full and particular Report on that very important subject.—
And we flatter Ourselves, that no such delay will produce any bad Consequences, either
m Kespect to this Country’s being considered as direlect, while Your Majesty’s Troops
fre in the actual possession of every Post and Fort formerly enjoyed by the French, or
in respect of Criminals and Fugitives, taking refuge in this Country with Impunity, as
this may be easily prevented by an Instruction to the present Commander in Chief, empowering and directing him to send back all such Persons to their respective Colonies—
In the mean time We humbly propose that a Proclamation be immediately issued
D
y Your Majesty as well on Account of the late Complaints of the Indians, and the
actual Disturbances in Consequence, as of Your Majesty’s fixed Determination to permit
no grant of Lands nor any settlements to be made within certain fixed Bounds, under
P
r<^ence of Purchase or any other Pretext whatever, leaving all that Territory within it tree for the hunting Grounds of those Indian Nations Subjects of Your Majesty, and or the free trade of ail your Subjects, to prohibit strictly all Infringements or Settlements «> be made on such Grounds, and at the same time to declare Your Majesty’s Intentions
Y
e n c o u r a g e all such Persons who shall be inclined to commence new Settlements from
x our old Colonies, together with all foreign Protestants, coming by themselves or with
JchUndertakers, in Your new Colonies of East and West Florida or your old Col ny
JVova Scotia with particular regard to be shewn to those Officers and Soldiers, more
Penally those residing in America, who have so faithfully and bravely distinguished
K u 8™ f S
‘
d u r i n g
t h e Wan by allowing ; Five thousand Acres lying together to every
leid Officer ; Three thousand Acres to every Captain, Two thousand five hundred
ores to every Subaltern or Staff Officer ; One hundred Acres to every non-commission
conrTK a n d K f f c y ^otea>
to e v e l 7 private Man ; in such parts as they shall ohuse, on
aaition, that they shall personally apply for and reside upon them subject to such
112 CANADIAN AB0HI7SS
6-7 EDWARD VII., A. 1907
terms of Cultivation, as your Majesty shall think proper to impose on all Persons undertaking such Settlements, which Encouragements may be also extended to reformed
Commission Officers in Your Majesty s Navy in Case Your Majesty shall judge it reasonable and expedient.
All which is most humbly.submitted
S H E L B U R N E
ED. E H O T
GEO : RICE
ORWELL
BAMBER GASCOYNE
WHITEHALL
Aug’ 5th 1763
Endorsed. Aug1
5th 1763. .
R 6 a
Lords of Trade
Report concerning the Lands to be reserved for the Indians—Proposing that a
Commission under the Great Seal be given to the Commander in Chief, for the Government of that Country—with objections to the annexing them to any Province—and
Proposing a,n immediate Proclamation concerning Indian Lands—
Inclosure in N° 10.
Lords of Trade.
Halifax to the Lords of Trade.1
S* JAMES’S Sept1
19th 1763.
M Y LORDS,—Having laid before the King Your Lordships, Representation of the 5th of August last, transmitted to the late Earl of Egremont in
your Letter of the same Date, I am commanded to acquaint Your Lordships that His Majesty, upon Consideration of the Reasons therein set
forth, is pleased to lay aside the Idea of including within the Government
of Canada, or of any established Colony, the Lands which are to be reserved,
for the present, for the Use of the Indians. And His Majesty thinks
proper to direct that the Extent of the Commission, which Your Lordships
are to prepare for the HonWe James Murray, shall be exactly such as is
marked out in your first Report of the 8th of June last, and in the Map
thereto annexed, under the Denomination of Canada. That such Government be described in the Commission, as comprehending all such Part of
Canada on the North Side of the River S’ Lawrence, and all such Parts of
His Majesty’s antient Colonies of Nova Scotia, New England, and New
York, on the South Side of the said River, as lie within the Limits above
mentioned, and that I t be called the Province of Quebec.
His Majesty approves Your Lordships’ Proposition of issuing immediately a Proclamation, to prohibit for the present, any Grant or Settlement
within the Bounds of the Countries intended to be reserved for the Use of
the Indians ; and to declare the Encouragement, which His Majesty, in his
Royal Bounty, is graciously, pleased to give to reduced Officers, and
Soldiers, who served in North America, during the late War, and are
desirous of settling in the Colonies. But His Majesty is of opinion, that
several other Objects, of much Importance to his Service, might, with great
Propriety, be provided for-at the same time : ‘And that the speedy Settlement of the new Colonies, might be promoted ; the Friendship of the
Indians more speedily and effectually reconciliated, and Provision be made
for preventing Inconveniences, which might otherwise arise from the Want
1
A. and “W”. I., vol. 268, p. 217
CONSTITUTIONAL DOCUMENTS 113
SESSIONAL PAPER No. 18
of Civil Jurisdiction in the interior, and reserved Countries, by extending
such Proclamation to the following Purposes, viz*
To make known the Establishment and Limits of the four new Colonies,
and the Additions made to the Governments of Newfoundland, Nova
Scotia, and Georgia.
To declare the Constitution of the new Governments, as established for
the present, & intended in future, and the general Powers which the
Governors will have of granting Lands within Them.
To prohibit private Purchases of Lands from Indians.
To declare a free Trade for all His Majesty’s Subjects with all the
Indians, under Licence, Security, and proper Regulations.—And
To impower all Military Officers and Agents for Indian Affairs, within
the reserved Lands, to seize such Criminals, and Fugitives, as may take
Refuge in that Country, and to send them to be tried in any of the old
Colonies (if That can legally be done) or else to that Government, from
which They respectively fled.
I t is therefore His Majesty’s Pleasure, that Your Lordships do immediately prepare, and transmit to me the Draught of such a Proclamation as
may extend to the several Points abovementioned.—But, with respect to
One of Them, namely the Encouragements to be offered to reduced Officers,
and Soldiers, I am to acquaint Your Lordships, that His Majesty’s Intentions are, To grant to such reduced Officers only, as have served in North
America during the late War, and to such private Soldiers only, as have
been, or shall be, disbanded in America, and are actually residing there, the
following Quantities of Land, in any of the Colonies on the Continent, upon
the usual Reservation of Quit-Rents, after the Expiration of ten Years, and
upon sure Terms of immediate Settlement, & Cultivation ; viz’
To every Person having the Rank of a Field
Officer 5000 Acres
To every Captain 3000
To every Subaltern or Staff’Officer 2000
To every non-commissioned Officer 200
To every private Man , 50.
His Majesty is also graciously pleased to offer the like Quantities of
Land, upon the same Terms, to such reduced Officers of his Navy, of like
Rank, as served on board his Ships of War in North America, at the time
of the Reduction of Louisbourg, and Quebec in the late War.
I am farther to acquaint Your Lordships, that, as it is of the greatest
Importance, that the General Plan, upon which His Majesty’s Subjects are
to carry on a free Trade with all the Indians of North America, should be
established as soon as possible, His Majesty expects that Your Lordships
will avail Yourselves of every Information in Your Power, and lay before
Him, with all possible Dispatch, a System of Regulations for that purpose.
As to the Commission proposed in Your Lordships,’ Report of the 5th of
August to be given to the Commander in Chief of His Majesty’s Forces, for
the government of the interior Country, if upon Experience, & future
Information, it shall still’ appear to Your Lordships to be expedient, &
practicable, You will be pleased to prepare, and lay i t before His Majesty.
I am &c
D U N K H A L I F A X . 1
endorsed : Sept1
19th 1763.
Dra*
DprvoJ^601^?^1
*™*’ E a r l of Halifax, succeeded Hon. George Grenville as Secretary of State (Northern
oiwtment) Oct. 14th, 1762. On Aug. 21st, 1763, the Earl of Egremont died suddenly from apoplexy and
the «¿Tii? U a J
l f a x temporarily took over the duties of the department, being formally transferred to
°f SandwFeh’ e p a r t o e n t a b o u t SePt- 9 t h
–
H e w a s succeeded in the Northern Department by the Earl
18—3—8
114 CANADIAN AECEITE8
6-7 EDWARD VII., A. 1907
To the Lords of Trade
Letter of Reference concerning the extent of the new Provinces—The
Lands to be reserved for the use of the Indians by Proclamation—A
free Trade with the Indians under proper Licences & Regulation—
The Lands to be granted to Reduced Officers and Soldiers—And a
Commission proposed to be given to the- Commander in Chief for the
Government of the Interior Country.
Lords of Trade to Halifax.1
WHITEHALL October 4th 1763.
M Y LOED,—In obedience to His Majesty’s Commands, signified to us
by Your Lordship’s Letter of the 19th of last Month, we have prepared,
and herewith transmit to your Lordship, the Draught of a Proclamation,
conformable to the Directions contained in your Lordship’s Letter ; And
having laid the said Draught before His Majesty’s Attorney General, He
has reported to us, That, the same is agreeable to Law, and to the usual
Form of Proclamations.
We have only to observe to your Lordship, that, in order to save time,
we have fixed the Limits of East Florida according to Our Letter to your
Lordship of the 28th of last Month, presuming that our Opinion, mentioned
therein, will be approved of by His Majesty.
We beg leave further to add, That as it appears to us, upon a Revision
of the Report of this Board of the 8th of June last, That, it will be expedient for His Majesty’s Service, and give Confidence and Encouragement to
such Persons as, are inclined to become Settlers in the new Colonies, That
an immediate and public Declaration should be made of the intended
permanent Constitution and that the power of calling Assemblies should
be inserted in the first Commissions, We have therefore drawn the Proclamation agreeable to this Opinion, and have prepared the Commissions accordingly ; and we humbly hope Our Conduct herein will meet with His
Majesty’s approbation, as we conceive, that any temporary Power of
making Ordinances and Regulations, which must of necessity be allowed
to the Governors and Councils before Assemblies can be called, as well as
the mode of exercising that Power, will be better inserted in the Instructions, which we are now preparing.-—
We are
My Lords
Your Lordship’s
most obedient and
most humble Servants
HILLSBOROUGH
E
d
BACON
JOHN YOEKE.
ORWELL
R* Honble Earl of Halifax
endorsed : October 4. 1763
Board of Trade
R 4th
.
Inclosing the Proclamation relative to America, and Observing that it
will be better to insert, in the Instructions preparing for the Governors o£
the New Provinces, any temporary Power of making Ordinances & Regulations w.hich may be allowed to the Governors & Councils, than in the first
Commissions. 20th An Inclosure.
B. N° 5.
i A. & W. I., Vol. 268, p. 227.
CONSTITUTIONAL DOCUMENTS 115
SESSIONAL PAPEn No. 18
PROCEEDINGS I N T H E P R I V Y COUNCIL. *
i
A T THE CODBT AT S’ JAMES’S
the 5th day of October 1763.
Present
T H E KING’S MOST EXCELLENT MAJESTY
&o. &c.
Proclamation Whereas there was this day read at the Board a Draught of a
relative to the settling Proclamation prepared by the Lords Commissioners for Trade and
mente in America- P l a n t a t i o n s relative to the erecting within the Countries and Islands
Approved. ” * ceded and confirmed to His Majesty by the late Definitive Treaty,
four distinct and separate Governments by the Names of Quebec,
East Florida, West Florida Gienada, and declaratory of the Constitution of the said New Colonys, of the encouragements to be given
to reduced Officers and Soldiers and the Regulations to be observed
in respect to the Indian Commerce and Country—His Majesty taking the said Draught of a Proclamation into His Royal Consideration, was pleased with the advice of His Privy Council to approve
Proclamation— thereof, and to Order, as it is hereby Ordered that the Right HonourmaTon wll signed b a b l e t h e E a r l ° f H a l i f a x>
0 n e o f H i s Majestys Principal Secretarys
His Maj’y and dated °^ State do cause the said Draught of a Proclamation (which is herethe 7th Ins*. unto annexed) to be prepared for His Majesty’s Royal Signature.—
Whereas there was this day read at the Board a Representation
^
als from the Lords Commissionners for Trade and Plantations, setting
pàredg
forEast”ande
” ^ o r t n t n a t His Majesty having been graciously pleased to approve a
WestMorida, Que- Plan for the erecting and establishing four Civil Governments in the
dis—Ud t h e G r e n a ‘ Islands and Territories in America, ceded to His Majesty by the late
Definitive Treaty, and it appearing to be necessary and expedient
that a Publick Seal should be prepared for Sealing all publick Instruments in each of those Governments agreeable to the Method
practiced and established in all other His Majesty’s Colonies in
America ; The said Lords Commissioners therefore propose that
Directions may be given to prepare with all possible Dispatch a
Draught of a Seal for each.of the said Governments conformable to
the following Descriptions Viz*—
For the Province of Quebec
On the One side His Majestys Effigies, pointing to a Chart of that
Part of America through which the River of 8* Lawrence flows, including the Gulph and with this Legend or Motto underneath, Extensas
gaudent agnoscere Metse ; and this Inscription around the Circumference, Sigillum Provincia nostra? Quebecensis in America ; and on the
^ Reverse His Majesty’s Arms, Crown, Garter, Supporters and Motto
with this Inscription round the circumference, Geo. I I I . Dei Gratia Magnse Britannise, Francise et Hïberniaa Rex, Fidei Defensor
Brunsvici et Luneburgi Dux, Sacri Romani Imperii, Archi Thesausarius et Elector.
Upon reading this day at the Board a Representation* from the
Drafts of Cornicons Lords Commissioners for Trade and Plantations dated the 4t t of
Queb ^pvrS of • kh¿3 Instant together with Draughts of Commissions prepared by
da, West Florida’& * n e m for the Honourable James Murray, Esqr
to be Governor of
a n d GrTeraxoZnn ~~ ‘ ‘
* This Representation is quoted in the Report of the Lords of the Committee upon
the Drafts of Commissions for the Governors of Quebec, &c, 6th October, 1763,
1
? 5 ” y
„
C o u n o i l ‘ Re
g
i s t e r ; Geo. III., p. 100, lo-—d—g^.
116 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Quebec, James Grant Esq’ to be Governor of East Florida, George
Johnstone Esq1
to be Governor of West Plorida, and Robert Melvill
a Commee ^ s
^
r
^° ^ e
Governor of Granada, Dominico, S* Vincent and Tobago—
I t is Ordered by His Majesty in Council that the said Representation and Draughts of Commissions Be, and they are hereby referred
to the Right Honourable the Lords of the Committee of Council
for Plantation Affairs to consider the same and Report their Opinion
thereupon to His Majesty at this Board.—
REPORT ON COMMISSIONS FOR GOVERNORS. 1
N° 9. A.
AT T H E COUNCIL CHAMBER W H I T E H A L L
the 6ft day of October 1763—
By the Right Honourable the Lords of the Committee of Council
for Plantation Affairs &ca
Present
Earl of Sandwich Earl of Hillsborough 3
Goiniçons Report of Earl of Halifax
the Lords of the Your Majesty having been pleased by Your Order in Council of the
Drafsof Co’mmis- 6
^ a
°^ *n
*
8
Instant to referr unto this Committee a Representation
sions for the GOT» from the Lords Commissioners for Trade and Plantations, setting forth,
,of Quebec Bast Flo- « t n a t i j n Obedience to Your Majesty’s Commands signified to them in
and’the Granades— ”
a
Letter from the late Earl of Egremont dated the 14th July, last,
” they have prepared Draughts of Commissions for the Honourable
” James Murray Esqr
to be Governor of Quebec, James Grant Esq1
to
” be Governor of East Plorida, George Johnston Esq1
to be Governor
” of West Plorida, and Robert Melvil Esq1
to be Governor of Grenada,
” Dominico and Tobago—That in the Description of the Governments
” of Quebec, East Plorida, and West Plorida they have conformed
” to the Limits and Bounds which your Majesty has been pleased to
” direct and approve, and as they conceived it to be Your Majesty’s
” Royal Intention, that the Form and Constitution of Government in
” these new Colonies, should be as near as may be similar to what has
” been established in those Colonies, which are under Your Majesty’s
” immediate Government, they have therefore prepared these Coinmis-
” sions accordingly, by which the Governors are impower’d and
” directed so soon as the Circumstances of the Colonies will admit
” thereof, to summon and call General Assemblys of the Preeholders
” in their respective Governments in such Manner as is practised in
” Your Majesty’s other Colonies ; That they have omitted in these
” Commissions any Power that it may be necessary to grant to the
” Governors and Councils of Your Majestys said new Colonies to
” make Temporary Regulations until Assemblys can be called, because
” they were of Opinion that an immediate and publick Declaration of
” the intended permanent Constitution, and an Insertion in the first
” Commissions of the Power of calling Assemblys so soon as the Cir-
” cumstances will admit, is expedient for Your Majesty’s Service, and
” will give Confidence and Encouragement to such of Your Majesty’s
” Subjects, as shall incline to settle in your said new Colonies, and
” because such Power of making temporary Regulations may be given
1
Privy Council Register, Geo. III., p. 112.
2
Wills, “Earl of Hillsborough, kuceeeded the Earl of Shelburne as President of the Board of Trade,
Sept. 9th, 1763.
CONSTITUTIONAL DOCUMENTS 117
SESSIONAL PAPER No. 18
” in the General Instructions which they shall prepare and lay before
” Tour Majesty with all possible Dispatch.—That there are in the
” Commissions to the Governors of Tour Majesty’s other Colonies
” some Clauses respecting the Power of suspending and comptrolling
” the Council, but as they conceive these Matters may be more pro-
” perly and regularly provided for in the Instructions under those
” Articles which direct the Nomination of the Council, ascertain their
” Authority and point out their Duty and Methods of Proceedings,
” they have therefore omitted these Clauses in the present Draughts
” in order to insert them in the Instructions—”
The Lords of the Committee in Obedience to Tour Majestys said
Order of Reference this day took the said Representation and
Draughts of Commissions into their Consideration, and are of opinion,
that in order to make the said Commissions agreeable to the Instructions to be given to the said Governors the following Addition, should
be made to each of the said Commissions at the End of that Article
whereby the said Governors are empowered to make Grants of Land—
. . Viz*
” Provided the same be made conformable to the Instructions-here-
” with delivered to you, or to such other Instructions as may hereafter
” be sent to You under Our Signet and Sign Manual, or by Our Order
” in Our Privy Council.—”And the Lords of the Committee having
accordingly caused the said Addition to be made in each of the said
Draughts do agree humbly to lay the same so amended before Tour
Majesty for Your Royal Approbation
Tour Majesty having been pleased by Tour Order in Council of the
5
th of this Instant to referr unto this Committee a Representation
from the Lords Commissioners for Trade and Plantations setting forth,
“that in Obedience to Tour Majesty’s Commands signified to them by
a Letter from the Earl of Halifax, dated the 27th of last Month they
have prepared, and humbly lay before Tour Majesty, the Draught of
* a Commission appointing Montagu Wilmot Esqr
Governor of Nova
Scotia, in which Draught they have so described the Northern and
Eastern Limits of this Province, as, to make it conformable to what
has been already approved in respect to the Southern boundary of the
Province of Quebec, and to comprehend the Islands of Cape Breton
and S* Johns, 1
that they have also made the River S’ Croix the
Boundary to the Westward, for, although it be true that the ancient
Limits of this Province, as it was possessed by Prance under the
Treaties of Breda and Ryswick and ceded to Great Britain by the
Gommitt R Treaty of Utrecht under the Name of Acadia, did extend as far West
upontheDraught’of a 8 t n e River Pentagoet or Penobscob, yet as it appears to have been
aComieonfor determined iii the Tear 1732, upon a full examination of the Claims
^touEl^ o f t h e P r i n c e of the Massachusets Bay, as well by the Attorney
and Sollicitor General, as by this Board, and finally by His Majesty
in Council, that the said Province had a right of Jurisdiction and
1
property under the Limitation of the Charter, to the Country between
, the Rivers Sagadehock and S* Croix, and as in consequence of this
Examination, the Instructions given to Colonel Dunbar, and to the
Governor of Nova Scotia to make Settlements within that Tract were
revoked, and it was Ordered that the Province should not be disturbed in the possession they claim to have of this Country it does not
appear to them that this question is for the present open to a New
Discussion : But as they conceive there are many material circumstances in favour of Tour Majesty’s Right to the Country as far West1 N °w Prinee Edward Island.
118 , J CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
Ward as the River Penobscot which were not stated in the Case laid
before the Attorney and Sollicitor General in 1732, upon which Case
their Opinion and the Dicision of the Council were founded, they do
not think it adviseable that this Restriction of the Western Bounds
of Nova Scotia to the River 8* Croix should pass without some reservation of Your Majesty’s Right to the Country between that River
and Penobscot, being entered upon the Council Books ; And they rather
humbly proposed this to Your Majesty, as it may be a means of hereafter removing any Objection which may be taken on the part of the
Province of Massachusets Bay to the Southern Line of Quebec, as far
as it concerns their Northern Limits, for if such Objection should be
made, and it should appear upon examination they have any just
ground of Complaint, it will be in Your Majesty’s power to make them
a reasonable Compensation, by allowing their Jurisdiction to extend
as far Eastward as the River S* Croix, between which and the River
Penobscot they have lately made some considerable Settlements”.
The Lords of the Committee in Obedience to Your Majestys said
Order of Reference this day took the said Representation and Draught
of a Commission into their Consideration, and being of Opinion that
Your Majesty’s Right to the Country between the River S* Croix, and
the River Penobscot (the ancient Limits of the said Province) ought
to be reserved in a more publick manner than by an Entry in the
Council Books, do therefore propose that the following alteration
should be made in the said Draught of a Commission for that purpose.
Viz’ After the Appointment of Montagu Wilmot to be Captain General and Governor in Chief in and over the Province of Nova Scotia,
the description of the Boundarys of the said Province to be left out,
and the following words inserted in lieu thereof. ” Which we have
” thought proper to restrain and comprize within the following limits—
” Viz* : to the Northward, Our said Province shall be bounded
” by the Southern Boundary of Our Province of Quebec as far
” as the Western extremity of the Bay des Chaleurs ; To the EastS e l L n ^ T s t h o l e a r e ‘ ‘ w a r d b
y
t h e s a i d B aY
a Q d t h e G u l P
h o f
.
S
‘ Laurence, to the
described in Montagu ” Cape or Promontory called Cape Breton in the Island of that
Wilmot’s Com» dated « Name including that Island, the Island of S* Johns, and all other
o v ‘ ‘ ” Islands within Six Leagues of the Coast ; To the Southward by the
” Atlantick Ocean from the said Cape* to Cape Sable, including the
” Island of that Name, and all other Islands within forty Leagues of
” the Coast, with all the Rights, Members and Appurtenances what-
” soever thereunto belonging ; And to the Westward altho’ Our said
•’ Province hath anciently extended, and doth of Right extend as far
” as the River Pentagouet or Penobscot,it shall be bounded by a Line
” drawn from Cape Sable across the Entrance of the Bay of Fundy,
” To the mouth of the River S*. Croix, by the said River to its source,
” and by a Line drawn due North from thence to the Southern Bound-
” ary of Our Colony of Quebec.” And their Lordships are further of
Opinion that it will be proper to make the following Addition at the
end of the Article empowering the said Governor to make Grants of
Lands “Viz1
” Provided the same be made conformable to the Instruc-
” rions herewith delivered to you, or to such other Instructions as
” may hereafter be sent to you under Our Signet and Sign Manual,
” or by Our Order in Our Privy Council.”
The Lords of the Committee have therefore caused the said alter
ation and Addition to be made in the said Draught of a Commission
accordingly, and do agree humbly to lay the same before Your
Majesty for Your Royal Approbation—
CONSTITUTIONAL DOCUMENTS 119
SESSIONAL PAPER No. 18
Halifax to Lords Commissioners for Trade and Plantations.
B. N° 5.—
S’ JAMES’S Oct. 8. 1763.
Lords Commissre for Trade & Plantations—
Vol. 268 M Y LORDS,—Having laid before the King your Lordships Letter of the
P-261 6th instant with the Dra* of a Proclamation therein inclosed, and His
Qot 8 Majesty having been pleased to approve the said Draught, & to order it to
be printed, & passd under the great Seal, in the usual Form, I send your
Lordships herewith a number of printed Copies of the said Proclamation &
am to signify to your Lordships His Majesty’s Pleasure that you should
transmit them to the Governors of His Majesty’s several Colonies & Plantations, in America ast Florida, West Florida and Grenada, and limited and bounded as follows, viz.
PvM- ^ ^ e n from the (text as contained in the “Papers Relative to the Province of Quebec,” 1791, in the
™>ue Keeord office. Copied in the Canadian Archives Q 62 A, pt. I., p. 114.
immi e
Latitude °i the Home Government at this time, on the subject of immigration, the kind of
o M t t i 8
–
t 0
–
favOTi
r
ed, and even the need of an outlet for surplus population on the part of some of the
îwor^i ï 1 1 ?
m A m e r i ca. may be gathered from a report of the Lords of Trade, Nov. 5,1761, upon the
S a t M «< "J501* a n u m i e r o f Germans to the American Colonies after the peace. They point out room in reS a™s colonies possessed before the war, the increase of population is such 'as scarce to leave lated ÎS T í 1 6 i m f o r a n y m o r e inhabitants.' The encouragement and advantages of the less popun d S -fTn o o l o m e s a re such as to induce sufficient migration without burdening the public. _ Our own îoreioïr U o P a n d soldiers would be more proper objects of national bounty, and better colonists, than diso^i™ ^™8 6 ignorance of the English language, laws, j,nd constitution cannot fail to increase those has 3™ AU f Í , a t eonfusion in our Government, which the too great migration of people from Germany ofifcT» - y î„ y i n t r o < i u o e and
them to grant to any such Person or Persons upon such Terms, and under such moderate
Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our
other Colonies, and under such other Conditions as shall appear to us to be necessary
and expedient for the Advantage of the Grantees, and the Improvement and settlement
of our said Colonies.
And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and
Approbation of the Conduct and bravery of the Officers and Soldiers of our Armies,
and to reward the same, We do hereby command and impower our Governors of our
said Three new Colonies, and all other our Governors of our several Provinces on the
Continent of North America, to grant without Fee or Reward, to such reduced Officers
as have served in North America during the late War, and to such Private Soldiers as
have been or shall be disbanded in America, and are actually residing there, and shall
personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the
Province within which they are granted, as also subject to the same Conditions of
Cultivation and Improvement ; viz.
To every Person having the Rank of a Field Officer…. 5,000 Acres.
To every Captain 3,000 Acres.
To every Subaltern or Staff Officer 2,000 Acres.
To every Non-Commission Officer 200 Acres.
To every Private Man 50 Acres.
We do likewise authorize and require the Governors and Commanders in Chief of
all our said Colonies upon the Continent of North America to grant the like Quantities of
Land, and upon the same conditions, to such reduced Officers of our’Navy of like Rank
as served on board our Ships of War in North America at the times of the Reduction of
Louisbourg and Quebec in the late War, and who shall personally apply to our respective
Governors for such Grants.1
_ And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are
connected, and who live under our Protection, should not be molested or disturbed in the
Possession of such Parts of our Dominions and Territories as, not having been ceded to
or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.—
We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will
and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, d<5 presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions ; as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for tne present, and until our further Pleasure be known, to grant Warrants ofSurvey, or whirf,?? O0 '-,131*. 1763, the Earl of Halifax wrote to the Attorney General, inquiring "as to the mean» it Z ? ? te U8ed t 0 nullify the doubtfulness of a paragraph in H. M's proclamation which makes ]and^r i, a l? n l . y t h o 8 e o f f i e e r a which served both at Louisbourg and Quebec are entitled to grants ot ' 8uoil n o t bemg His Majesty's intention." Calendar of Some Office Papers, 1760-1765, no. 103b. 122 CANADIAN ARCHIVES 6-7 EDWARD VI!., A. 1907 pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present •as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use •of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as -aforesaid : And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects.from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained. And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries •above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians ; In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement ; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting •or Assembly of the said Indians, to be held for that Purpose by th,e Governor or Commander in Chief of our Colony respectively within which they shall lie ; and in case they •shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose ; And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of Our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to he appointed for this Purpose, to direct and appoint for the Benefit of the said Trade : And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid. And we do further expressly enjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from J ustice and take Refuge in the said Territory, and to send them under a proper guard to the Colony where the CONSTITUTIONAL DOCUMENTS 123 SESSIONAL PAPER No. 18 Crime was committed of which they stand accused, in order to take their Trial for the same.1 Given at our Court at St. James's the 7th Day of October 1763. in the Third Year of our Reign. GOD SAVE T H E K I N G EGREMONT TO GOVERNOR MURRAY. 2 WHITEHALL, Aug' 13th 1763. Gov1 " MURRAY. SIR, I take great Satisfaction in acquainting you, that His Majesty has been graciously* pleased to confer on you the Government of Canada, over which Country you have already presided so long with such Applause, that The King is persuaded this appointment will be received by His new subjects as a singular mark of His Majesty's Royal attention to their Welfare & Happiness. The necessary Commission & Instructions for you, on this occasion, which are preparing by the Board of Trade with all Dispatch, will be forwarded to you as soon as possible, and as they will contain very full Directions, not only with regard to the Form of Government to be established in Canada, but to your Conduct in every particular ; I have no new Orders to transmit to you at present ; But His Majesty thinks it very material, that you should be apprized, that He has received Intelligence, which gives some reason to suspect, that the French may be disposed to avail Themselves of the Liberty of the Catholick Religion granted to the Inhabitants of Canada, in order to keep up their Connection with France, and, by means of the Priests, to preserve such an Influence over the Canadians, as may induce them to join, whenever Opportunity should offer, in any attempts to recover that Country ; It therefore becomes of the utmost Consequence to watch the Priests very narrowly, and to remove, as soon as possible, any of them, who shall attempt to go out of their sphere, and who shall busy themselves in any civil matters : For tho' The King has, in the 4th Article of the Definitive Treaty, agreed to grant the Liberty of the Catholick Religion to the Inhabitants of Canada ; and tho' His Majesty is far from entertaining the most distant thought of restraining His new Roman Catholick Subjects from professing the Worship of their Religion according to the Rites of the Romish Church : Yet the Condition, expressed in the same Article, must always be remembered, viz* : As far as the Laws of Great Britain permit, which Laws prohibit absolutely all Popish Hierarchy in any of the Dominions belonging to the Crown of Great Britain, and can only admit of a Toleration of the •exercise of that Religion ; This matter was clearly understood in the Negotiation of the Definitive Treaty ; The French Ministers proposed to insert the WT ords, comme ci- 1764 quoting
that revoked the
River Alatamaha is
mentioned as the
Southern boundary
Addition to the
Clause relative to
Granting Lands.
Kef11 to a Commee
SESSIONAL PAPER No. 18
The Com” to Wright to be Governor t i the Province of Georgia bfaiing date the 4th day
revoking that dated 0 f M a y 1761, which doth any way relate to or concern the Limits a n d
January 1764 & 6 Bounds of the said Province, and appointing new* Bounds ai d Limits
to the said Province whereby the Southern Boundary Line is extended
to the most Southern Stream of a certain River called S’ M a r y —
H i s Majesty taking the same into Consideration, is pleased with
t h e Advice of H i s P r i v y Council to approve of the said D r a u g h t of
a n I n s t r u m e n t (which is hereunto annexed) a n d to Order, as i t is
hereby Ordered, tha,t the R i g h t Honourable the Earl of Halifax One
of H i s Majestys Principal Secretarys of S t a t e do cause a W a r r a n t to
be prepared for H i s Majesty’s Royal Signature in order to pass t h e
said I n s t r u m e n t under the Great Seal of Great Britain.—
U p o n reading this day a t the Board a L e t t e r from Mr
A t t o r n e y
General to t h e R i g h t Honourable t h e E a r l of Halifax, one of H i s
Majestys Principal Secretaries of State, praying t h a t an Addition
should be made to t h e Clause in the Commissions for the Governors
of Quebec, Grenada, E a s t Florida, a n d W e s t Florida relative to t h e
granting L a n d s — I t is Ordered b y H i s Majesty in Council t h a t t h e
said L e t t e r a n d addition (which are h e r e u n t o annexed), Be, a n d t h e y
are hereby Referred to the R i g h t Honourable the Lords of the Committee of Council for P l a n t a t i o n Affairs to consider the same a n d
R e p o r t their Opinion thereupon to H i s Majesty a t this Board
A t the Council Chamber Whitehall t h e l l ” 1
day of November 1 7 6 3 –
By the Right Honourable the Lords of t h e Committee of Council
for P l a n t a t i o n Affairs—
T o u r Majesty having been pleased by Y o u r Order in Council of
t h e 4th I n s t a n t to referr u n t o this Committee a L e t t e r from Mr
Attorney General to t h e R i g h t Honourable t h e Earl of Halifax one
tion to tne^clauseTn0
^ Y o u r Majestys Principal Secretarys of State proposing t h a t the
the Coimnicons for following Addition m a y be m a d e to t h e Clause in t h e Commissions
Scotfa? Quebfc? Bast ( a
P P r o v e d by Y o u r Majesty in Council on t h e 7th of last M o n t h ) for
Florida,West Florida the Governors of Quebec, Grenada, E a s t Florida, W e s t Florida, a n d
relative toth^r*’8 Novíí S c o t i a r e l a t i v e t o t n e G r a n t i n g Lands—Viz*
ing Lands— S n t” ” Which Instructions, or any Articles contained therein, or any
-” such Order made in Our P r i v y Council, so far as t h e same shall
” relate to the Granting of Lands, as aforesaid, shall “from time to
” time, be published in t h e Province, a n d entered of Record, in like
” manner as t h e said G r a n t s themselves are hereby directed to be
” Entered.”—
The Lords of t h e Committee in Obedience to Y o u r Majestys said
Order of Reference this day took t h e said L e t t e r a n d addition into
their Consideration, a n d being of Opinion t h a t the same is proper a n d
, necessary, do therefore agree humbly to Report, t h a t i t may be adviseable for Y o u r Majesty to cause t h e said Addition to be inserted in
all t h e aforementioned Commissions accordingly.
Commissions
Committee Report
for making an Addi11t h Nov. 1 7 6 3 —
ï™trucons , The Lords of t h e Committee, in Obedience to Y o u r Majestys said
“PonDrS f8porfc Order of Reference, this day took t h e said Representation a n d
InrtruconsfoíS
the D r a u g h t s of Instructions in their Consideration, a n d finding t h a t t h e
§ ^ K
°
E
Quebec, East said D r a u g h t s of General Instructions contain all those Articles
andlhe Se n
t
ada”r i d a u a u a % S i v e n t o t h e Governors of Y o u r Majesty’s American polonies
and Islands respectively, which are necessary for, and applicable to
these N e w Governments, together with such others as appear to t e n d
_________^ to promote t h e Settlement and I m p r o v e m e n t of them, A n d t h a t the
6
^ n d a r i e s here described agree with those given in Wright’s Commission of 24 Jan? 1764.
126 CANADIAN ARCHIVES
6-7 EDWARD V I I , A. 1907
Draughts of Instructions for the observance of the Acts of Parliament
for the encouragement and Regulation of Trade and Navigation are
exactly comformable to the Instructions given to the Governors of
Your Majestys other American Colonies and Plantations.—Their
Lordships do therefore agree humbly to lay the said Draughts of
Instructions before Your Majesty for Your Royal Approbation.
AT T H E COURT AT ST. JAMES’S
the 14* day of Novemr 1763
Present
The King’s most Excellent Majesty &c &c.
Upon reading at the Board a Report from the Right Honourable
the Lords of the Committee of Council for Plantation Affairs
dated the 11th of this Instant upon considering a Letter from Si’
Attorney General to the Right Honourable the Earl of Halifax One
of His Majesty’s Principal Secretaries of State proposing that the
following Addition may be made to the Clause in the Commissions
Commissions (approved by His Majesty in Council on the 7th of last Month) for
Order for making an the Governors of Quebec, Grenada, East Florida, West Florida and
Addition to the Nova Scotia relative to the granting Lands—Viz*
Gov» Commicons ” Which Instructions, or any Articles &c—”
relative to the Grant- And the Lords of the Committee being of opinion that the said
T
s
dn d s Addition is proper and necessary to be made in the said Commissions,
His Majesty this day took the same into Consideration, and was
pleased with the Advice of His Privy Council to approve thereof end
to order as it is hereby Ordered, that the Right Honourable the Earl
of Halifax one of His Majesty’s Principal Secretarys of State, do
cause the said Additionto be inserted in all the aforementioned Commissions accordingly-—
COMMISSION OF CAPTAIN-GENERAL & GOVERNOR I N C H I E F OF
T H E PROVINCE OF QUEBEC. 1
GBOBGB THE THIRD by the grace of God of Great Britain France
and Ireland King Defended of the Faitñ and so forth ; To our
Trusty and well beloved James Murray Esquire, Greeting.
Oorcmission to be ~We, reposing especial trust and Confidence in the prudence, Courage
Governor iTcSefof a n d loyalty of you the said James Murray, of our especial grace,
the Province Certain Knowledge and meer motion, have thought fit to Constitute
and appoint, and by these presents, do Constitute and appoint yo»!
the said James Murray to be our Captain General and Governor in
Chief in and over our Province of Quebec in America.
Boundaries of the Bounded on the Labrador Coast by the River Saint John, ana
Province from thence by a line drawn from the head of that River through the
lake Saint John to the south end of Lake Nepissin, from whence the
said line Crossing the River Saint Lawrence and the lake Champla”1
The Governor is to ^n
I”orty five Degrees of Northern Latitude, passes along the high
act according to the lands which Divide the Rivers that empty themselves into the said
o?7hkOommSlon& R Í V e r S a i n t L a w r e I l c e f r o m t h o s e w l u c n f a l 1 i n t o t h e s e a>
a n d aIS°
according to the along the north Coast of the Bay des Chaleurs and the Coast of tbe
Kings Instructions Gulfts of Saint Laurence to Cape Rosières, and from thence, Crossing
J Copied from the Register of Commissions in the office of the Secretary of State, Canada.
CONSTITUTIONAL DOCUMENTS 127
SESSIONAL PAPER No. 18
the mouth of the River Saint Lawrence by the west end of the Island
of Anticosty terminates at the aforesaid River Saint John.
Together with all the Rights members, and appurtenances whatsoever thereunto belonging.
And we, do hereby require and Command you to do and execute
all things in due manner that shall belong to your said Command and
the Trust we have repoa
ed in you, according to the several powers
and Directions granted or appointed You by this present Commission
and the instructions and authorities herewith given unto you, Or by
such other powers instructions or authorities as shall at any time
hereafter be granted or appointed under our Signet and Sign Manual,
or by our Order in our Privy Council, and according to such reasonable laws and statutes as shall hereafter be made and agreed upon
by you with the advice and Consent of the Council and Assembly of
our said Province under your Government, in such manner and form
as is herein after expressed.
And our will and pleasure is that You the said James Murray doOaths to be taken by after the publication of these our Letters patent, and after the
the Governor appointment of our Council for our said province in such manner and
form as prescribed in the instructions which you will herewith receive,
in the first place take the oaths appointed to be taken by an act
passed in the first Year of the Reign of King George the Pirst
Those appointed by Intitled (an act for the further security of His Majesty’s Person and
1. Geo. 1. Government, and the succession of the Crown, in the Heirs of the
late Princess Sophia, being protestants, and for extinguishing the
hopes of the pretended Prince of Wales, and his open and secret
abettors) as also that you make and subscribe the Declaration menDeclaration against tioned in a n a ° t of Parliament made in the twenty fifth Year of the
popery Stat 25 Oar : Reign of King Charles the Second Intitled (an act for preventing
Damages which may happen from Popish rescuants) and likewise that
you take the oath usually taken by our Governors in other Colonies
for the due execution of the Office & Trust of our Captain General
and Governor in Chief in and over our said province, and for the
due & impartial administration of justice ; and further that you take
Oath of Office the oath required to be taken by Governors of the Plantations to dotheir utmost that the several laws relating to Trade and Plantations
lawîrelati3861^
11^
b e ^ u l y observed : which said oaths and Declarations our Council of
and Plantations.ra e ° u r s a id Province, or any-three of the members thereof, have hereby
full power and authority, and are hereby required to tender and
administer to You.—
All which being duly performed you shall yourself administer to
Oaths to be taken by each of- the members of our said Council, and to the Lieutenant
Seut°°r1Sellors * Governors of Montreal & Trois Rivieres the said Oaths, mentioned
of MontreaT*?8 i n t n e sai<* -^-ct Intitled (an act for the further Security of His Trois Rivieres Majesty's person & Government and the succession of the Crown in the Heirs of the late Princess Sophia, being protestants, and for extinguishing the hopes of the pretended Prince of "Wales, and his open and secret abettors) and also Cause them to make and subscribe the aforementioned Declaration, and also shall administer unto them the usual Oaths, for the due execution of their places and trust. And We do further give and grant unto you the said James orto**t 51 ad . millister Murray full power and authority from time to time, and at any time toadSni5Se to t ínrSllereafter hJ Yourself, or by any other to be authorized by you in this grsonintheProvinee behalf, to administer and give the Oaths mentioned in the said act b / s t a u i g , p o ; i l t e d (f o r the further security of His Majesty's Person and Government 60 :1- and the succession of the Crown in the Heirs of the late Princess Sophia being Protestants, and for extinguishing the hopes of the 128 CANADIAX ARCHI7E8 Power to keep & use the publick seal Power to call an assembly of the Freeholders The Members of such assembly shall take the Oaths appointed by Stat : 1 Geo : I ; and the declaration against popery power to make Laws not* repugnant to the Laws of G-reatBritain The Laws so made to be transmitted to England within three . months If disallowed by the King they shall thenceforth become void 6-7 EDWARD VII., A. 1907 pretended Prince of Wales and his open and secret abettors) to all and every such person and persons as you shall think fit, who shall at any time or times pass into our said Px-ovince or shall be resident or abiding there. And we do hereby authorize and Impower you to keep and use the Pttblick seal, which will herewith be delivered to you, or shall be hereafter sent to you, for sealing all things whatsoever that shall pass the Great seal of our said Province. And we, do hereby give and grant unto you the said James Murray full power and authority with the advice and Consent of our said Council to be appointed as aforesaid, so soon as the Situation and circumstances of our said Province under your Government will admit thereof, and when & as often as need shall require, to summon and call General Assemblies of the Freeholders and Planters within, your Government, in such manner as you in your Direction shall judge most proper, or according to such further powers, Instructions, and authorities as shall be at any time hereafter granted or appointed you under our Signet and Sign Manual, or by our Order in Our Privy Council. And our will and pleasure is, That the persons thereupon duly Elected by the Major Part of the Freeholders of the respective parishes, or precincts, and so returned, shall before their sitting take the oath mentioned in the said act intitled (an act for the Further security of his Majesty's person & Government and the succession of the Crown in the Heirs of the late princess Sophia being protestants, and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors) as also make and subscribe the forementioned declaration : Which oaths & declaration you shall Commissionate fit persons under the publick seal of that our province, to tender and administer unto them and untill the same shall be so taken and subscribed, no person shall be Capable of sitting though Elected. And we do hereby declare that the persons so Elected & Qualified shall be called the Assembly of that our province of Quebec ; and that you the said James Murray, by & with the advice and Consent of our said Council and Assembly, or the major part of them, shall have full power & authority, to make, Constitute or Ordain, Laws Statutes & ordinances for the publick peace, Welfare, .& good Government of our said province, and of the people and Inhabitants thereof, and such others as shall resort thereunto and for'the benefit of us our heirs & successors : which said Laws Statutes and ' Ordinances are not to be repugnant, but as near as may be agreeable, to the laws & Statutes of this our Kingdom of Great Britain. Provided that all such Laws Statutes and Ordinances of what nature or Duration soever they shall be within three months or sooner after the making thereof, Transmitted to us, under our seal of our said province for our approbation or disallowance of the same, as also duplicates thereof by the next Conveyance.'— And in Case any, or all of the said Laws Statutes and Ordinances not before Confirmed by us, shall at any time be disallowed and not approved, -and so signified • by us, our Heirs, and Successors, under our, or their Signet and |sign Manual, or by order of our, or their privy Council, unto you the said James Murray or to the Commander in Chief of our said Province for the time being ; Then such and so many of the said Laws, Statutes, and Ordinances, as shall be so disallowed, and not approved, shnll from thence forth cease determine CONSTITUTIONAL DOCUMENTS 129 SESSIONAL PAPER No. 18 and become utterly void and of no effect, anything to the contrary thereof notwithstanding The Governor shall ^ n d to the end that nothing may be passed or done by our said agamsVboth Coimcif Council or Assembly, to the prejudice of us, our Heirs and Successors, and Assembly We will and ordain that you the said James Murray, shall have, and enjoy a Negative Yoice in the making and passing all laws, Statutes and ordinances as aforesaid ; and that you shall and may likewise from time to time, as you shall judge necessary, adjourn, prorogue or dissolve all General assemblies as aforesaid And We, do by these presents give and grant unto you, the said SrfTh^CounSl11" J a m e s Mu* rray> M 1 P o w e r and authority, with the advice & Consent
to Erect Courts of of our said Council, to Erect, Constitute and Establish, such and so
Judicature many Courts of Judicature and publick Justice within our said
province under your Government as you & they shall think fit and
necessary, for the hearing & determining of all causes as well
Criminal as Civil according to Law and Equity and for awarding
execution thereupon, with all reasonable & necessary powers,
, „ . . authorities, Fees, and priviledges belonging thereunto : as also to
power to Commission- . , ‘, ‘ . . *\ », &
. ° , ? , . „ ate fit persons to ad- appoint and cominissionate fat persons m the several parts of your
minister the Oaths ap- Government to administer the oaths mentioned in the aforesaid act
(ïeoff&thededa- I l l t i t l e d ( a n a c t f o r t h e further security of His Majesty’s person &
ration ag»popery to Government, and the succession of the Crown in the Heirs of the late
persons belonging to Princess Sophia being protestants and for extinguishing the hopes of
ourts ^ e pr e t e l i e [ e (j p r
i n c e 0f Wales, and his open and secret abettors) as
also to Tender & administer the aforesaid declaration to such persons
belonging to the said Courts as shall be obliged to take the same.
And We do hereby grant unto you full power and authority to
Power to appoint constitute and appoint judges, and in Cases requisite Commissioners
OÍOVS&’T™1
–
8818 o f 0 y e r & T e r i n i l l e r> Justices of the peace, Sherriffs and other
Justices, of the peace necessary Officers and ministers in our said Province for the better
Sherriffs & other ‘ administration of Justice, and putting the Laws in Execution ; and
eers of Justice— t 0 administer or cause to be administered unto them such oath or
Oaths as are usually given for the due Execution and performance of
Offices & places and for clearing the truth in Judicial Causes.
And We do hereby give and grant unto you full power and authority, when you shall see cause, or shall Judge any Offender or
Power to pardon Offenders in Criminal matters, or for any Fines or Forfeitures due unto
Crime us, fit Objects of our Mercy, to pardon all such offenders and remit
all such offences, Fines and Forfeitures ; Treason and Willful murder
only excepted ; In which cases you shall likewise have power upon
Exterordinary Occasions to Grant Reprives to the offenders untill and
to the intent our Royal pleasure may be Known therein.
And We do by these presents Give and Grant unto you full power
power of Coll t’ t an(^ authority to Collate any person or persons to any Churches,
ScdesiasticalVeni-° Chappels, or other Ecclesiastical Benefices within our said province,
8
as often as any of them shall happen to be void.
^ And We do hereby give and grant unti you, the said James Murray,
Power t 1 T ky
yourself, or by your Captains and Commanders by you to be autha-nd Emp%^hemK
‘
PS o r i z e d> full power & Authority to Levy, Arm, Muster Command,
«¡gamut Enemies and Employ all persons whatsoever, residing within our said province,
P l r a t e s k Rebels. and a s occasion shall serve them to march Embark, or Transport
from one place to another for the resisting and withstanding of all
enemies, pirates, & Rebels both at land and sea : and to Transport
such Forces to any of our Plantations in America, if necessity shall
require for Defence of the same against the invasion or attempts of
any of our Enemies ; and such Enemies, pirates & Rebels, if there
should be occasion, to pursue and prosecute in or out of the limits of
130 CANADIAN ARCHIVES
6-7 EDWARD VII., ‘A. 1907
And to execute Mar- our said province ; a n d if it shall so please God, them to vanquish,
wlr””™’ m t l m e °£
apprehend a n d t a k e ; a n d being taken, according to law to p u t t o
death, or K e e p and preserve alive, a t your discretion : a nd to execute
M a r t i a l L a w in time of Invasion, W a r , or other times, when by L a w
it m a y be executed a n d to do a n d execute all and every other t h i n g
a n d things which to our Captain General & Governor in Chief doth,
or of right ought to belong.
A n d “We do hereby give and g r a n t u n t o you full power a n d authpower with the Con- o r r t y , b y a n d with t h e advice a n d Consent of our said Council, t o
sent ot the Council, -^ J
; -Á • t i – i – i – -T • i n T-, ,
to build Forts & Jirect, Raise, a n d build m our said province, such and so m a n y Üorfcs,
Castles Platforms, Castles, Cities, Burroughs, Towns, and Fortifications, as
And to Fortify & yo u »
D
y * n e advice aforesaid, shall judge necessary-: and the same or
Furnish them with any of them, to Fortify and F u r n i s h with Ordnance, ammunition, and
Arms &o., and to a n sorts of arms, fit and necessary for the security & defence of our
tíetííem.—r I s m a n ” g a i¿[ province : A n d b y the advice aforesaid, the same again or any of
them, to Demolish or Dismantle as may be most Convenient,—
A n d for as much as divers Mutinies & Disorders may happen by
. . fW persons Shipped and Employed a t sea during the time of W a r : A n d
to appoint Captains ‘ *° * n
e end, t h a t such as shall be shipped a n d Employed a t sea d u r i n g
and other Officers of t h e time of W a r m a y be better governed and ordered : W e hereby
them’o »? ? a £ÍYe a n ( ^ gr a n>
;
u n t o you the said J a m e s Murray, full power a n d authto execute the Law ority to Constitute a n d appoint Captains, Lieutenants, Masters of
Martial according to Ships, a n d other Commanders • n i e
by the Admiralty, upon t h e H i g h sea, or within any ot t h e havens, Rivers, or Creeks ot
when they Commit our said province, u n d e r Y o u r Government, by any Captain, Comffi^ie^orinathemancler, Lieutenant, Master, Officer, Seaman, Soldier, or person
River, Creek or Whatsoever, who shall be in actual service a n d pay, in or on board any
Haven. 0 f our ships of W a r , or other vessels, acting by immedia te Commission
or W a r r a n t from our Commissioners for executing t h e office of H i g h
A d m i r a l of Great Britain, or from our high A d m i r a l of Gr eat Britain
for t h e time being ; under t h e seal of our Admiralty. B u t t h a t such.
Captain, Commander, Lieutenant, Master, Officer, Seaman, or Soldier,
or other person, so offending shall be left to be proceeded against and
Tried, as their offences shall require, either by Commission under our
Great seal of this Kingdom, as t h e S t a t u t e of the T we n t y eight of
But these persons H e n r y t h e E i g h t directs, or by Commission from our said Commisshall be tried either ¡doners for Executing the Office of H i g h A d m i r a l of Great Britain,
under’the’Sreat seal o r from our H i g h Admiral of Great Britain for t h e time being accordof Great Britain, ing to t h e aforementioned A c t I n t i t l e d (an act for amending, exaccordmg to the Stat, plaining and reducing into one act of parliament, t h e Laws relating
Commission from the *° *he Government of H i s Majesty’s Ships, Vessels, a n d Forces b y
admiralty according Sea) a n d not otherwise.—•
to the Stat 22 Geo. 2 ‘
CONSTITUTIONAL DOCUMENTS 131
SESSIONAL PAPER No. 18
Provided Nevertheless that all disorders and misdemeanors ComBut for offences Com- mitted on shore by any Captain, Commander, Lieutenant, Master,
mitted on Shore, Officer, Seaman, Soldier, or other persons whatsoever belonging to any
trie8
! ^punished 6
°^ o u r Ships of War, or other Vessels acting by immediate Commission
according to the laws or “Warrant from our Commissioners for executing the Office of High
offenceP
ihTll\h
e
e
come A d m i r a l o f G r e a t Britain, or from our High admiral of Great Britain
mitted. ‘ f° r
the time -being ; under the seal of our admiralty, may be Tried
and punished, according to the laws of the place where any such disorders, offences, and misdemeanors shall be Committed on shore, notwithstanding such offender be in our actual service, and Born in our
pay on board any such our ships of war, or other vessels acting by
immediate Commission or Warrant from our Commissioners for
Executing the Office of High Admiral of Great Britain, or from our
Admiral of Great Britain for the time being as aforesaid ; so as
he shall not receive any protection for the avoiding of Justice for such
offence Committed on shore from any pretence of his being employed
in our service at sea.
And our Further will & pleasure is that all publick monies raised,
power with the Con- or which shall be raised, by any act hereafter to be made within our
disc te ‘f6 CTr1
k
1
* ° s a *
d
province, be issued out by Warrants from you, by and with the
money for the sup- advice & Consent of our Council as aforesaid for the support of the
port of the Govern- Government & not otherwise.— m e n ‘ And We likewise give and grant unto you full power and authority,
by and with the advice & Consent of our said Council to settle and
sentof the Council11”
a
g
r e e w ith the inhabitants of our„ said province for such lands, Teneto grant lands. ments and Hereditaments as now are or hereafter shall be in our
power to dispose of, and them to grant to any person or persons upon
such terms, and under such moderate Quit Rents, services, and acknowledgements to be thereupon reserved unto us, as you with the advice
aforesaid shall think fit : which said grants are to pass and be sealed
by our publick seal of our said province ; and being entered upon
radelTheP^vfk R e c o r d by s u c n officer or Officers as shall be appointed thereunto,
seal, and to be regis- shall be good and effectual in the Law against us, our Heirs and
tered- Successors.—
Provided the same be conformable to the Instructions herewith
These grants must delivered to you, or to such other instructions as may hereafter be
be «jade conformably sent to you under our Signet & Sign Manual, or by our order in our
Instruction!8
Privy Council, Which instructions, or any articles Contained therein,
or any such order made in our Privy Council, so far as the same shall
And these Instruc- relate to the Granting of Lands as aforesaid, shall from time to time be
grTV’elatif
g
*° t h e Pu
bhshed in the province and Entered of record, in like manner as
shall Sg
published S t h e S a i d Grants themselves are hereby Directed to be entered.
And We do hereby give you the said James Murray full power &
power with the authority to order Fairs, Marts, & Markets, and also such and so
Council* to t h e • m a n
y P ° r t s
, Harbours, Bays, Havens, and other places for the convefairs &’markets™’ niency and Security of shipping, and for the better loading & unloadharbours & wharfs. ;
ing of goods & Merchandizes, in such and so many places as, by and
with the advice and Consent of our said Council, shall be thought fit
and necessary.—
All officers Civil & ^-n
d
w
e do hereby require & Command all Officers and Ministers
mhi
v7′ a n d a11 o t h e r C i v i l & Mihtary, and all other inhabitants of our said Province, to
Provineeftref
to bè b e o b e d i e a t> aiding, and assisting unto you, the said James Murray in
aiding aid assisting the Execution of this our Commission, and of the powers & Autho-
*e*¿8 G?-V8m
t n a t all Writs be issued in Our Name throughout the
province under your Government.
138 s
CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
24. Whereas there are several Offices in Our Plantations granted under the Great
Seal of Great Britain, and Our Service may be very much prejudiced by reason of the
Absence of the Patentees, and by their appointing Deputies not fit to officiate in their
Stead ; You are therefore to inspect such of the said Offices as are in the Province under
your Government, and to enquire into the Capacity and Behaviour of the Persons exercising them, and to report thereupon, to Our Commissioners for Trade and Planta
tions, what you think fit to be done or altered in relation thereunto ; and you are, upon
the Misbehaviour of any of the said Patentees or their Deputies, to suspend them from
the Execution of their Office, till you shall have represented the whole Matter unto Us,
and received Our Directions therein ; And in case of the Death of any such Deputy,
it is Our express “Will and Pleasure, that You take Care that the Person appointed to
execute the Place, until the Patentee can be informed thereof and appoint another
Deputy, do give sufficient Security to the Patentee, or, in case of Suspension, to the
Person suspended, to be answerable to him for the Profits accruing during such Interval by Death, or during such Suspension, in case We shall think fit to restore the
Person suspended to his Place again. I t is nevertheless Our Will and Pleasure, that
the Person executing the Place during such Interval by Death or Suspension, shall,
for his Encouragement, receive the same Profits as the Person dead, or suspended did
receive ; And it is Our further Will and Pleasure, that, in case of a Suspension of a
Patentee, the Person appointed by you to exercise the Office during such Suspension,
shall receive a Moiety of the Profits which would otherwise become due to such Patentee, giving Security to such Patentee to be answerable to him for the other Moiety,
in case We shall think fit to restore him to his Office again ; And it is Our further Will
and Pleasure, that you do countenance and give all due Encouragement to all Our
Patent Officers in the Enjoyment of their legal and accustomed Pees, Rights, Privileges
and Emoluments, according to the true Intent and Meaning of their Patents.
25. You shall not, by Colour of any Power or Authority hereby or otherwise
granted, or mentioned to be granted unto you, take upon you to give, grant or dispose
of any Office or Place within Our said Province, which now is or shall be granted under
the Great Seal of this Kingdom, or to which any Person is or shall be appointed by
Warrant under Oar Signet and Sign Manual, any further than that you may, upon the
Vacancy of any such Office or Place, or upon the Suspension of any such Officer by
You, as aforesaid, put in any fit Person to officiate in the Interval, till you shall have
represented the Matter unto Our Commissioners for Trade and Plantations, in order
to be laid before TTs, as aforesaid, (which You are to do by the first Opportunity,)
and till the said Office or Place be disposed of by Us, Our Heirs or Successors, under
the Great Seal of this Kingdom, or until some Person shall be appointed thereto by
Warrant under Our Signet and Sign Manual, or Our further Directions be given
therein.
26. And whereas several Complaints have been made by the Surveyor General, and
other Officers of Our Customs in Our Plantations in America, that they have frequently been obliged to serve as Jurors, and personally to appear in Arms whenever
the Militia is drawn out, and thereby are much hindered in the Execution of their Employments ; Our Will and Pleasure is, that You take effectual Care, and give the necessary Directions, that the several Officers of Our Customs be excused and exempted
from serving on any Juries, or personally appearing in Arms in the Militia, unless in
case of absolute Necessity, or serving any parochial Offices, which may hinder them m
the Execution of their Duty.
27. And whereas the Surveyor General of Our Customs in the Plantations are
impowered, in case of the Vacancy of any of Our Offices of the Customs by Death,
Removal, or otherwise, to appoint other Persons to execute such Offices, until they
receive Directions from Our Commissioners of the Treasury, or Our High Treasurer,
or Commissioners of Our Customs, for the time being ; but in regard the Districts of
Our said Surveyors General are very extensive, and that they are required at proper
times to visit the Officers in the several Governments under their Inspection ; and that
it might happen that some of the Officers of Our Customs in the Province under your
Government may die, at the Time when the Surveyor General is absent in some distan*
CONSTITUTIONAL DOCUMENTS 139
SESSIONAL PAPER No. 18
Part of his District, so that he cannot receive Advice of such Officer’s Death within
a reasonable Time, and thereby make Provision for carrying on the Service, by
appointing some other Person in the room of such Officer who may happen to die ;
therefore, that there be no Delay given on such Occasion to the Masters of Ships or
Merchants in their Dispatches, it is Our further “Will and Pleasure, in case of such
Absence of the Surveyor G-enei al, or if he should happen to die, and in such Cases
only, that, upon the Death of any Collector of Our Customs within Our said Province,
You, or, in your Absence, our Lieutenant Governor or Commander in Chief, shall
make Choice of a Person of known Loyalty, Experience, Diligence and Fidelity, to be
Employed in such Collector’s room, for the Purposes aforesaid, until the Surveyor
General of Our Customs shall be advised thereof, and appoint another to succeed in
such Place, and that further Directions shall be given therein by Our Commissioners
of Our Treasury, or Our High Treasurer, or by the Commissioners of Our Customs,
for the time being, which shall be first signified ; taking care that You do not, under
any Pretence of this Instruction, interfere with the Powers and Authorities given by
the Commissioners of Our Customs to the said Surveyors General, when they are able to
put the same in Execution.
28. And whereas We have stipulated, by the late Definitive Treaty of Peace concluded at Paris the iOth Day of February 1763, to grant the Liberty of the Catholick
Religion to the Inhabitants of Canada, and that We will consequently give the most
precise and most effectual Orders, that. Our new Roman Catholick Subjects in that
Province may profess the Worship of their Religion, according to the Rites of the
Romish Church, as far as the Laws of Great Britain permit ; It is therefore Our Will
and Pleasure, that you do, in all things regarding the said Inhabitants, conform with
great Exactness to the Stipulations of the said Treaty in this respect.
29. You are, as soon as possible, to summon the Inhabitants to meet together, at
such Time or Times, Place or Places, as you shall find most convenient, in order to take
the Oath of Allegiance, and make and subscribe the Declaration of Abjuration mentioned in the aforesaid Act passed in the first Year of the Reign of King George the
-birst, for the further Security of His Majesty’s Person and Government, and the Succession of the Crown in the Heirs of the late Princess Sophia, being Protestants, and for
extinguishing the Hopes of the pretended Prince of Wales, and his open and secret
Abettors ; which Oath shall be administered to them by such Person or Persons as you
shall commissionate for such Purpose ; and in case any of the said French Inhabitants
shall refuse to take the said Oath, and make and subscribe the Declaration of Abjuration, as aforesaid, You are to cause them forthwith to depart out of Our said Government.
30. And it is Our further Will and Pleasure, that all such Inhabitants, professing
the Religion of the Romish Church, do, at all such Meetings, or at such other Time or
limes as You shall think proper, and in the Manner you shall think least alarming and
inconvénient to the said Inhabitants, deliver in upon Oath an exact Account of all Arms
and Ammunition, of every Sort in their actual Possession, and so, from time to time, of
what they shall receive into their Possession, as aforesaid. »
31. You are as soon as possible to transmit to Us, by Our Commissioners for Trade
and Plantations, an exact and particular Account of the Nature and Constitution of the
m
^T^- Religious Communities of the Romish Church, their Rights, Claims, Privileges
and Property, and also the Number, Situation and Revenue of the several Churches
eretofore established in Our said Province, together with the Number of Priests or
^urates officiating in such Churches.
32. You are not to admit of any Ecclesiastical Jurisdiction of the See of Rome,
r any other foreign Ecclesiastical Jurisdiction whatsoever in the Province under your
Government.
cinl 3 3 ‘
A n d t o t h e B a d t l i a t t l i e C n u r o h o f England may be established both in PrinPtes and Practice, and that the said Inhabitants may by Degrees be induced to
.«Drace the Protestant Religion, and their Children be brought up in the Principles of
j » We do hereby declare it to be Our Intention, when the said Province shall have
Sum ^fC U r a t e ly surveyed, and divided into Townships, Districts, Precincts or Parishes,
TOcn m a n n e r as shall be hereinafter directed, all possible Encouragement shall be
140 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
given to the erecting Protestant Schools in the said Districts, Townships and Precincts,
by settling, appointing and allotting proper Quantities of Land for that Purpose, and
also for a Glebe and Maintenance for a Protestant Minister and Protestant SchoolMasters ; and you are to consider and report to Us, by Our Commissioners for Trade
and Plantations, by what other Means the Protestant Religion may be promoted, established and encouraged in Our Province under your Government.
34. And You are to take especial Care, that God Almighty be devoutly and duly
served throughout your Government, the Book of Common Prayer, as by Law established, read each Sunday and Holyday, and the blessed Sacrament administered according
to the Rites of the Church of England.
35. You are not to prefer any Protestant Minister to any Ecclesiastical Benefice in
the Province under your Government, without a Certificate from the Right Revet end
Eather in God the Lord Bishop of London, of his being conformable to the Doctrine
and Discipline of the Church of England, and of a good Life’and Conversation; And if
any Person hereafter preferred to a Benefice shall appear to you to give Scandal, either
by his Doctrine or Manners, you are to use the best Means for his Removal.
36. You are to give Orders forthwith, that every Orthodox Minister within your
Government be one of the Vestry in his respective Parish ; and that no Vestry be held
without him, except in case of Sickness, or, after “Notice of a Vestry summoned, he
omit to come.
37. And to the End that the Ecclesiastical Jurisdiction of the Lord Bishop of
London may take place in Our Province under your Government, as far as conveniently
may be, We do think fit, that You give all Countenance and Encouragement to the
Exercise of the same, excepting only the collating to Benefices, granting Licences for
Marriage, and Probates of Wills, which We have reserved to You, Our Governor, and
to the Commander in Chief’of Our said Province for the Time being.
38. And We do further direct, that no Schoolmaster, who shall arrive in Our said
(
Province from this Kingdom, be henceforward permitted to keep School, without the
Licence of the said Lord Bishop of London ; and that no other Person now there, or
that shall come from other Parts, shall be admitted to keep School in your Government,
without your Licence first obtained.
39. And You are to take especial Care, that a Table of Marriages, established by
the Canons of the Church of England, be hung up in all Places of pùblick Worship,
according to the Rites «f the Church of England.
40. And it is Our further Will and Pleasure, that, in order to suppress, as much
as in you lies, every Species of Vice and Immorality, You forthwith, do cause all Laws
already made against Blasphemy, Profaneness, Adultery, Fornication, Polygamy, Incest,
Profanation of the Lord’s Day, Swearing and Drunkenness, to be vigorously put in
Execution in every part of your Government ; And that you take due Care for the
Punishment of these, and every other Vice and Immorality, by Presentment upon Oath
to be made to the Temporal Courts, by the Church Wardens of the several Parishes, at
proper Times of the year to be appointed for that Purpose ; and, for the further Discouragement of Vice, and Encouragement of Virtue and good living, (that by such
Examples the Infidels may be invited and persuaded to embrace the Christian Religion,)
You are not to admit any Persons to publick Trusts and Employments in the Province
under your Government, whose Ill-Fame and Conversation may occasion Scandal.
41. And whereas it is stipulated by the aforesaid Treaty concluded at Paris the
K P Day of February 1763, that the French Inhabitants, or Others, who have been
Subjects of the Most Christian King in Canada, may retire with all Freedom and Safety
wherever they shall think proper, and may sell their Estates, provided it be to Our
Subjects, and bring away their Effects, as well as their Persons, without being restrained
in their Emigration under any Pretence whatsoever, except that of Debts, or criminal
Prosecution, and that the Time limited for the Emigration shall be fixed to the Space of
Eighteen Months, to be computed from the Day of the Exchange of the Ratifications oí
the Treaty ; You are therefore in all things to conform yourself to this Stipulation, and
to take care, that such of the French Inhabitants as intend to remove within the Time
limited, be not obstructed or impeded, provided they do not sell their Estates to Others
CONSTITUTIONAL DOCUMENTS 141
SESSIONAL PAPER No. 18
than His Majesty’s Subjects, and that, so long as they remain under your Government,
they do in all things conform theieto in like manner as Our other Subjects.
42. And it is Our further Will and Pleasure, that all and every the French Inhabitants in Our said Province, who are now possessed of Lands within the said Province, in Virtue of Grants or Concessions made before the signing of the Preliminary
Articles of Peace on the third Day of November 1763 ; do, within such limited Time
as you in your Discretion shall think fit, register the several Grants, or other Deeds or
Titles, by which they hold or claim such Lands, in the Secretary’s Office ; which said
Grants, Deeds or other Titles, shall be entered at large in the said Office, so that the
particular Quantity of Land, it’s Site and Extent, the Conditions upon which it is
granted, either as to Rents, Services, or Cultivation, may appear fully and at length.
43. And in case it shall appear, upon a strict and accurate Examination of the
said Grants and Title Deeds, to be taken in such manner as You shall think proper, that
any of the Grantees, or Persons claiming Lands under such Grants and Title Deeds,
aie in Possession of more Land than is contained within such Grants or other Concessions ; or that the Terms and Conditions, upon which the Lands were granted, hare
not been complied with, agteeable to what is stipulated in such Grants or Coneesssions ;
It is Our Will and Pleasure, that you forthwith represent the same to Us, by Our
Commissioners for Trade and Plantations, to the End that you may receive such Directions thereupon, as the Nature and Circumstances of the Case shall appear to require.
44. And whereas it is necessary, in order to the advantageous and effectual Settlement of Our said Province, that the true State of it should be fully known ; You are
therefore, as soon as conveniently may be, to cause an accurate Survey to be made of
the said Province by such able and skilful Person as is or shall be appointed for that
Service, who is to report to you in writing, for your Judgment in the Measures which
you may in general pursue for the making of Settlements, not only the Nature and
Quality of the Soil and Climate, the Rivers, Bays and Harbours, and every other Circumstance attending the natural State of it ; but also his opinion, in what manner it
may be most conveniently laid out into Counties, and to annex to his Report a Map
or such Survey, with the several Divisions proposed marked upon it : But as the Making
such Survey will be a Work of great Length, You are in the meantime to carry on
Settlements upon that Plan, which shall appear to you to be most expedient from the
best Information You can collect.
45.^ And whereas it has been found by Experience, that the settling Planters in
¿ownships hath very much redounded to their Advantage, not only with respect to the
Assistance they have been able to afford Each other in their civil Concerns, but likewise with regard to the Security they have thereby acquired against the Insults and
Incursions of neighbouring Indians, or other Enemies ; You are therefore to lay out
– r ^ s h i p s of a convenient Size and Extent in such Places, as you, in your Discretion,
shall judge most proper. And it is Our Will and Pleasure, that each Township do
consist 0f about Twenty Thousand Acres, having, as far as may be, natural Boundaries
extending up into the Country, and comprehending a necessary Part of the River of
Lawrence, where it can be conveniently had.
46.^ You are also to cause a proper Place in the most convenient Part of each
i°^,nsnip> to be marked out for building a Town sufficient to contain such a Number
•families as you vshall judge proper to sectle there, with Town and pasture Lots cons e n t to each Tenement, taking Care, that the said Town be laid out upon, or, as
ear as conveniently may be, to some navigable River, or the Sea Coast ; And you are
«so to reserve to Us proper Quantities of Land in each Township for the following
ma>0SeS’
r i z J Por erecting Portiflcat’ons, and Barracks, where necessary, or .for other
W- y L o r n a T a I Services, and more particularly for the Growth and Production of
a l «mber, if there’are any Wood-Lands fit for that Purpose.
a&ch T>’ A n d ** i s 0 u r f u r t h e r W l 1 1 a n d Pleasure, that a particular Spot, in, or as near
adía 7a 8 S Possibie> be set apart for the building a Church, and four Hundred Acres
jacent thereto allotted for the Maintenance of a Minister, and two Hundred for a
^hoolmastei-
142 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
48. And you are to give strict Orders to the Surveyors, whom you shall employ to
mark out the said Townships and Towns, to make Returns to you of their Surveys as
soon as possible, ‘with a particular Description of each Township, and the Nature of
the Soil within the same.
49. And You are to oblige all such Persons as shall be appointed to be Surveyors
of the said Lands in each Township, to take an Oath for the due Performance of their
Offices, and for obliging them to make exact Surveys of all Lands required to be set
out.
50. And whereas nothing can more effectually tend to the speedy settling Our said
Colony, the Security of the Property of Our Subjects, and the Advancement of Our
Revenue, than the disposing of such Lands as are Our Property upon reasonable
Terms, and the establishing a regular and proper Method of proceeding with respect
to the passing of Grants of such Land ; It is therefore Our Will and Pleasure, that all
and every Person and Persons, who shall apply to You for any Grant or Grants of
Land, shall, previous to their obtaining the same, make it appear before you in Council,
that they are in a Condition to cultivate and improve £he same, by settling thereon,
in Proportion to the Quantity of A«res desired, a sufficient Number of White Persons
and Negroes ; And in case you shall, upon a Consideration of the Circumstances of the
Person or Persons applying for such Grants, think it adviseable to pass the same, in
such Case You are to cause a Warrant to be drawn up, directed to the Surveyor General,
or other proper Officers, impowering him or them to make a faithful and exact Survey
of the Lands so petitioned for, and to return the said Warrant within six Months at
furthest from the Date thereof, with a Plot or Description of the Lands so surveyed
thereunto annexed ; Provided that you do take Care, that before any such Warrant is
issued, as aforesaid, a Docquet thereof be entered in the Auditor’s and Register’s Office :
And when the Warrant shall be returned by the said Surveyor, or other proper Officer,
the Grant shall be made out in due Form, and the Terms and Conditions required by
these Our Instructions be particularly and expressly mentioned in the respective
Grants. And it is Our Will and Pleasure, that the said Grants shall be registered
within six Months from the Date thereof in the Register’s Office there, and a Docquet
thereof be also entered in Our Auditor’s Office there, in Case such Establishment shall
take Place in Our said Province, or that, in Default thereof, such Grant shall be void ;
Copies of all which Entries shall be returned regularly, by the proper Officer, to Our
Commissioners of Our Treasury and to Our Commissioners for Trade and Plantations,
within six Months from the Date thereof.
51. And whereas great Inconveniences have arisen in many of Our Colonies in
America from the granting excessive Quantities of Land to particular Persons, who
have never cultivated or settled it, and have thereby prevented Others more industrious
from improving the same ; in order therefore to prevent the like Inconveniences for the
future, You are to take especial Care, that in all Grants to be made by you, by and
with the Advice and Consent of Our Council, to Persons applying for the same, the
Quantity be in Proportion to their Ability to cultivate ; And you are hereby directed
to observe the following Directions and Regulations in all Grants to be made by you ;
Viz*
That one hundred Acres of Land be granted to every Person being Master or
Mistress of a Family, for himself or herself, and fifty Acres for every white or black
Man, Woman or Child, of which such Person’s Family shall consist, at the actual
Time of making the Grant ; and in case any Person applying to you for Grants of
Land shall be desirous of taking up a larger Quantity than the actual Number of
Persons in his or her Family would intitle such Persons to take up ; it is Our Will and
Pleasure, and you are hereby allowed and permitted, to grant unto every such Person
or Persons, such further Quantity of Land as they may desire, not exceeding oçe
Thousand Acres over and above what they are intitled to by the Number of Persons m
their respective Families ;—Provided it shall appear to you, that they are in a Condition
and Intention to cultivate the same ; and provided also, that they do pay to tb©
Receiver of Our Quit Rents, or to such other Officer as shall be appointed to receive
the same, the Sum of five Shillings only for every fifty Acres, so granted, on the Da
y
of the Date of the Grant ;—
CONSTITUTIONAL DOCUMENTS US
SESSIONAL PAPER No. 18
That all Grantees be subject to the payment of two Shillings Sterling for every
Hundred Acres, to commence at the Expiration of two years from the Date of such
Grant, and to be paid yearly and every Year, or in Default of such payment, the Grant
is to be void ;—
That every Grantee, upon giving Proof that he or she has fulfilled the Terms and
Conditions of his or her Grant, shall be entitled to another Grant, in the Proportion
and upon the conditions abovementioned ;—
That for every Fifty Acres of Land accounted plantable, each Patentee shall be
obliged, within three years after the Date of his Patent, to clear and work three Acres
at the least, in that part of his Tract which he shall judge most convenient and advantageous ; or else ‘to clear and drain three Acres of swampy or sunken Grounds, or drain
three Acres of Mar&h, if any such be within l.he Bounds of his Grant ;—
That for every Fifty Acres of Land accounted barren, every Patentee shall be
obliged to put and keep on his Land, within three years after the Date of his Grant,
three neat Cattle ; which Number lie shall be obliged to continue on his Land, until
three Acres for every Fifty be fully cleared and improved ;—
That if any Person shall take up a Tract of Land, wherein there shall be no Part
fit for present Cultivation without manuring and improving the same, every such
Grantee shall be obliged, within three years from the Date of his Grant, to erect on
some part of his Land one good Dwelling-House, to contain at least twenty Feet in
Length, and sixteen Feet in Breadth ; and also to put on his Land the like Number
of three neat Cattle for every fifty Acres ;—
That if any Person, who shall take up any stony or rocky Grounds not fit for
planting or pasture, shall, within three years alter the passing of his Grant, begin to
employ thereon, and so continue to work, for three years then next ensuing, in digging
any Stone Quarry or other Mine, one good and able Hand for every hundred Acres of
such Tract, it shall be accounted a sufficient Cultivation and Improvement ;—
That every three Acres, which shall be cleared and worked, as aforesaid, and every
three^ Acres, which shall be cleared and drained, as aforesaid, shall be accounted a
sufficient Seating, Planting, Cultivation and Improvement, to save for ever from Forfeiture Fifty Acres of Land in any Part of the Tract contained within the same
Patent ; and the Patentee shall be at Liberty to withdraw his Stock, or to forbear
worKing in any Quarry or Mine, in Proportion to such Cultivation and Improvement,
as shall be made upon the plantable Lands, or upon the Swamps, sunken Grounds and
Marshes, which shall be included in the same Patent ;—
That when any Person, who shaH hereafter take up and patent any Lands, shall
.
a v e seated, planted and cultivated, or improved the said Land, or any part of it, accordm
g to the Directions and Conditions abovementioned, such Patentee may make Proof
th ^ k 8 e a*
i n g) Planting, Cultivation and Improvement in the general Court, or in
6
, £ u r t o f t f le County, District or Precinct, where such Lands shall lie, and have
s u i * Proof certified to the Register’s Office, and there entered with the Record of the
«aid Patent, a Copy of which shall be admitted, on any Trial, to prove the seating and
Planting of such Land ; –
4
n d lastly, in order to ascertain the true Quantity of plantable and barren Land
nfcained in e a c h G r a n t hereafter to be made within Our said Province, you are to
Ke especial Care, that, in all Surveys hereafter to be made, every Surveyor be
f S n ^ a n d enJoyned to take particular Notice, according to the best of his Judgment
of ‘t •. f^^nding, how much of the Land so surveyed is plantable, and how much
Plotf- îf .
r e n a n d u n n t for Cultivation ; and accordingly to insert in the Survey and
of La, I h Í m t 0 b e r e t u r n e d i n t o t n e Register’s Office, the true Quantity of each kind
a»deCK “v1
”
1 ifc Í S 0 u r f u r f c h e r W i U a n d Pleasure, that in all Grants of Land to be
that v. n 1
‘
M a f o r e s a i d i regard be had to the profitable and unprofitable Acres, sa
H k e w i l i ! m n t e e m a y have a proportionable Number of one Sort and the other ; asoí tliR T* t h e B r e a d t b – of each Tract of Land, to be hereafter granted, be one Third
fte Bs. v
g t h o f s u c h T r a o t > a n d t n a t t h e Len
g
fch of each Tract do not extend along
a k s o f any River, but into the main Land, that thereby the said Grantees may
144 CANADIAN ARCHIVES
6-7 EDWARD V I I , A. 1907
have each a convenient Share of what Accommodation the said River may afford for
Navigation or otherwise.
53. And whereas it hath been represented to TJs, that many Parts of the Province
under your Government are particularly adapted to the Growth and Culture of Hemp
and Flax ; I t is therefore Our, Will and Pleasure, that, in all Surveys of Land for
Settlement, the Surveyor be directed to report, whether there is any, or what Quantity
of Lands contained within such Survey, fit for the Production of Hemp and Flax ;
And You are to take particular Care to insert a Clause in every Grant of Land, where
any part thereof is fit for such Production, obliging the Grantee annually to sow a
proportionable Part of his Giant with Hemp or Flax Seed.
54. And whereas it hath been further represented to Us, that a great part of the
Country in the Neighbourhood of Lake Champlain, and between that Lake and the
River S’ Lawrence, abounds with Woods producing Trees fit for Masting for Our
Royal Navy, and other useful and necessary Timber for Naval Construction ; You are
therefore expressly directed and required to cause such Parts of the said Country, or
any other within your Government, that shall appear upon a Survey to abound with
such Trees, and shall lye convenient for Water Carriage, to be reserved to TJs, and to
use your utmost Endeavour to prevent any Waste being committed upon the said
Tracts, by punishing in due Course of Law any Persons who shall cut down or destroy
any Trees growing thereon ; and you are to consider and advise with Our Council,
whether some Regulation that shall prevent any Saw Mills whatever from being
erected within your Government, without a Licence from you, or the Commander in
Chief of Our said Province for the Time being, may not be a Means of preventing all
Waste and Destruction in such Tracts of Land as shall be reserved to TJs for the Purposes aforesaid.
55. And whereas it appears from the Representations of Our Governor of the
District of Trois Rivieres, that the Iron Works at S’ Maurice in that District are of
great Consequence to Our Service ; It is therefore Our further Will and Pleasure, that
no part of the Lands, upon which the said Iron Works were carried on, or from which
the Ore used in such Works was procured, or which shall appear to be necessary and
convenient for that Establishment, either ¿n respect to a free Passage to the River
S* Lawrence, or for producing a necessary Supply of Wood, Corn and Hay, or for
Pasture for Cattle, be granted to any private Person whatever ; and also that as large
a District of Land as conveniently may be, adjacent to and lying round the said Iron
Works, over and above what may be necessary for the above Purposes, be reserved for
Our Use, to be disposed of in such manner as We shall hereafter direct and appoint.
56. And whereas it is necessary, that all Persons who may be desirous of settling
in Our said Province, should be fully informed of the Terms and Conditions, upon
which Lands will be granted in Our said Province ; You are therefore, as soon as
possible, to cause a Publication to be made, by Proclamation or otherwise, as you in
your Discretion shall think most adviseable, of all and every the foregoing Terms, Conditions and Regulations of every kind, respecting the Grants of Lands ; in which Proclamation it may be expedient to add some short Description of the natural Advantages of the Soil, and Climate, and it’s peculiar Conveniences for Trade and Navigation ; and you are to take such Steps as you shall think proper for the publishing such
Proclamation in all the Colonies in North America.
57. And it is Our further Will and Pleasure, that all the foregoing Instructions
to you, as well as any which You may hereafter receive, relative to the Form and
Method of passing Grants of Lands, and the Terms and Conditions to be annexed to
such Grants, be entered upon Record, with the Grants themselves, for the Information
and Satisfaction of all Parties whatever, that may be concerned therein.
58. And it is Our further Will and Pleasure, that you do consider of a proper and
effectual Method of collecting, receiving and accounting for Our Quit Rents, whereby
all Frauds, Concealment, Irregularity or Neglect therein may be prevented, and
whereby the Receipt thereof may be effectually checked and controlled ; And if it shall
appear necessary to pass an Act for the more effectually ascertaining, and the mow
speedily and regularly collecting Our Quit Rents, you are to prepare the Heads of such
CONSTITUTIONAL D00ÜM3NTS 145
SESSIONAL PAPER No. 18
a Bill, as you shall think may most effectually conduce to the procuring the good Ends
proposed, and to transmit the same to Our Commissioners for Trade and Plantations,
in order to be laid before Us for Our further Directions therein.
59. And it is Our further Will and Pleasure, that the Surveyor General, or such
other Person or Persons as you shall think proper to appoint, do, once in every year or
oftener as Occasion shall require, inspect the State of all Grants of Lands made by you,
and make report thereof to you in Writing, specifying whether the Conditions therein
contained have or have not been complied with, or what Progress has been made towards fulfilling the same- ; and you are annually to transmit Copies of such Reports to
Our Commissioners for Trade and Plantations.
60. And whereas Our Province of Quebec is in part inhabited and possessed by
several Nations and Tribes of Indians, with whom it is both necessary and expedient
to cultivate and maintain a strict Friendship and good Correspondence, so that they
may be induced by Degrees, not only to be good Neighbours to Our Subjects, but
likewise themselves to become good Subjects to TJs ; You are therefore, as soon as you
conveniently can, to appoint a proper Person or Persons to assemble, and treat with the
said Indians, promising and assuring them of Protection and Friendship on Our part,
and delivering them such Presents, as shall be sent to you for that purpose.
61. And you. are to inform yourself with the greatest Exactness of the Number.
Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of
their Lives, and the Rules and Constitutions, by which they are governed or regulated.
And You are upon no Account to molest or disturb them in the Possession of such
Parts of the said Province, as they at present occupy or possess ; but to use the best
means You can for conciliating their AffectioSs, and uniting them to Our Government,
reporting to Us, by Our Commissioners for Trade and Plantations, whatever Information
you can collect with respect to these People, and the whole of your Proceedings with
them.
62. Whereas We have, by Our Proclamation dated the seventh day of October in
the Third year of Our Reign, strictly forbid, on pain of Our Displeasure, all Our Subjects
from making any Purchases or Settlements whatever, or taking Possession of any of the
Lands reserved to the several Nations of Indians, with whom We are connected, and
who live under Our Protection, without Our especial Leave for that Purpose first
obtained ; It is Our express Will and Pleasure, that you take the most effectual Care
that Our Royal Directions herein be punctually complied with, and that the Trade with
such of the said Indians as depend upon your Government be carried on in the Manner,
and under the Regulations prescribed in Our said Proclamation.
63. You are to use your best Endeavours in improving the Trade of those Parts,
by settling such Orders and Regulations therein, with the Advice of Our said Council,
as may be most acceptable to the Generality of the Inhabitants. And it is Our express
Will and Pleasure, that vou do not, upon any Pretence whatever, upon pain of Our
highest Displeasure, give your Assent to any Law or Laws for setting up any Manufactures and carrying on any Trades, which are hurtful anxî prejudicial to this Kingdom ;
and that You do use your utmost Endeavours to discourage, discountenance and restrain
any Attempts which may be made to set up such Manufactures, or establish any such
Trades.
64. Whereas by the 5th and 6th Articles of the Treaty of Peace and Neutrality
l”fiSfi’merica’
X c o n o l u d 6 d between England and France the 6t]1-16 Day of November
i 00b the Subjects and Inhabitants of each Kingdom are prohibited to trade and fish
M. all Places possessed, or which shall be possessed by the other in America ; and if any
nips shall be found trading contrary to the said Treaty, upon due Proof the said
nips shall be confiscated : but in case the subjects of either King shall be forced by
«y'”988 °^ ^ e a * ^ e r i Enemies, or other Necessity into the Ports of the other in America,
“V’i* ^ ^ 6
Seated with Humanity and Kindness, and may provide themselves with
ictuals, and other Things necessary for their Sustenance, and the Reparation of their
îpe, at reasonable Rates ; provided they do not break bulk, nor carry any Goods
gÍT«n in J 8
I7′?e a t y °f London, had reference only to the dominions of the two Crowns in America. It is
TS 9 Oollection de Documents Relatifs à L’Histoire de la Nouvelle-France. Vol. I, p. 372.
146 ~ CANADIAN ARQEITES
6-7 EDWARD VII., A. 1907
out of their Ships, exposing them to Sale, nor receive any Merchandize on board, under
Penalty of Confiscation of Ship and Goods ; I t is therefore Our Will and Pleasure, thab
You signify to Our Subjects under your Government the Purport aud Intent of the
abovesaid two Articles ; and that you take particular Care, that none of the French
Subjects be allowed to trade from their said Settlements to the Province under your
Government, or to fish upon the Coast thereof.
65. And it is Our Will and Pleasure, that You do not dispose of any Forfeitures
or Escheats to any Person, until the Sheriff, or other proper Officer, have made Enquiry,
by a Jury upon their Oaths, into the true Value thereof, nor until you have transmitted
to Our Commissioners of Our Treasury, and to Our Commissioners for Trade and
Plantations, a particular Account of such Forfeitures and Escheats, and the Value
thereof. And you are to take Care, that the Produce of such Forfeitures and Escheats,
in case We shall think proper to give You Directions to dispose of the same, be duly
paid to Our Treasurer or Receiver General of Our said Province, and a full Account
transmitted to Our Commissioners of Our Treasury, or Our High Treasurer for the Time
being, and to Our Commissioners for Trade and Plantations, with the Names of the
Persons to whom disposed.
66. And whereas Commissions have been granted unto several Persons in Our
respective Plantations in America for the trying of Pirates in those Parts, pursuant to
the Acts for the more effectual Suppression of Piracy ; and by a Commission already
sent to Our Province of New York, Our Governor there is impowered, together with
Others therein mentioned, to proceed accordingly in Reference to Our said Province ;
Our Will and Pleasure is, that you do use your best Endeavours to apprehend all Persons whatever who may have been gully of Piracy within your Government, or who
having committed such Crimes at other Places, may come within your Jurisdiction ;
and until We shall think proper to direct the like Commission to be established for
Our Government of Quebec, You are to send such Pirates, with what Proofs of their
Guilt You can procure or collect, to Our Governor of New York to be tried and punished
under the Authority of the Commission established for those Parts.
67. And whereas you will receive from Our Commissioners for executing the Office
of High Admiral of Great Britain and of Our Plantations, a Commission constituting
you Vice Admiral of Our said Province ; You are hereby required and directed carefully
to put into Execution the several Powers thereby granted to you.
68. Whereas great Inconveniences have happened heretofore by Merchant Ships
and other Vessels in the Plantations wearing the Colours borne by Our Ships of War,
under Pretence of Commissions granted to them by the Governors of the said Plantations, and, by trading under those Colours, not only amongst Our own Subjects^ but
also those of other Princes and States, and committing divers Irregularitys, they may
very much dishonor Our Service ; For preventing thereof You are to oblige the Commanders of all such Ships, to which you shall grant Commissions, to wear no other
Colours than such as are described in an Order of Council of the seventh of January
1730, in relation to Colours to be worn by all Ships and Vessels, except Our Ships of
War.
69. And whereas there have been great Irregularitys in the manner of granting
Commissions in the Plantations to private Ships of War, You are to govern yourself,
whenever there shall be Occasion, according to the Commissions and Instructions
granted in this Kingdom : But you are not to grant Commissions of Marque or Reprizal
against any Prince or State, or their Subjects, in Amity with TJs, to any Person
whatsoever, without Our special Command.
70. Whereas We have been informed that, during the time of War, Our Enemies
have frequently got Intelligence of the State of Our Plantations by Letters from
private Persons to their Correspondents in Great Britain, taken on board Ships coming from the Plantations, which has been of dangerous Consequence ; Our Will and
Pleasure therefore is, that you signify to all Merchants, Planters and Others, that they
be very cautious, in time of War, whenever that shall happen, in giving any Accounts
by Letters of the public State and Condition of Our Province under your Government ;
And you are further to give Directions to all Masters of Ships, or other Persons to
whom you may entrust your Letters, that they put such Letters into a Bag, with a
CONSTITUTIOWAL DOCUMENTS W
SESSIONAL PAPER No. 18
sufficient weight to- suit the same immediately in Case of imminent danger from the
Enemy ; And you are also to let the Merchants and Planters know, how greatly it is
for their Interest that their Letters should not fall into the Hands of the Enemy, and
therefore that they should give like Orders to Masters of Ships in relation to their
Letters ; And you are further to advise all Masters of Ships, that they do sink all
Letters, in case of Danger, in the Manner before mentioned.
71. And whereas, in Time of War, the Merchants and Planters in Our Plantations in America did correspond and trade with Our Enemies, and carry Intelligence
to them, to the great Prejudice and Hazard of Our said Plantations ; You are therefore by all possible Methods to endeavour to hinder such Trade and Correspondence in
Time of War.
72. And You are to report to Us, by Our Commissioners for Trade and Plantations,—
What is the Nature of the Soil and Climate of the Province under your Government. If it differs in these Circumstances from Our other Northern Colonies, in what
that Difference consists % And what beneficial Articles of Commerce the different
Parts of it are capable of producing 1
What Rivers there are, and of what Extent and Convenience to the Planters 1
What are the principal Harbours ; how situated, of what Extent ; and what is
the Depth of Water, and Nature of the Anchorage in each of them 1
What Quantity of Land is now under actual Improvement and Settlement? What
are the chief Articles of Produce and Culture ; the annual Amount of the Quantity
of each; and upon what Terms and Conditions the Inhabitants hold their Lands,
either of Cultivation, Rent, or Personal Service 1
What is the Quantity, Nature and Property of the Land uncultivated ; how much
of it is capable of Culture ; and what part thereof is private Property ?
What is the Number of Inhabitants, Whites and Blacks, distinguishing each ?
What Number of the Former is capable of bearing Arms, and what Number of the
Latter is annually necessary to be supply’d’in proportion to the Land cultivated 1
What was the Nature, Form and Constitution of the Civil Government; what
Judicatures were there established, and under what Regulations did the French Inhabitants carry on their Commerce1
!
73. You are from time to time to send unto Us, by Our Commissioners for Trade
and Plantations, as aforesaid, an Account of the Increase and Decrease of the Inhabitants, Whites and Blacks, and also an Account of all Persons born, christened and
buried.
74. Whereas it is absolutely necessary, that We be exactly informed of the State
of Defence of all Our Plantations in America, as well in relation to the Stores of War
that are in each Plantation, as to the Forts and Fortifications there ; and what more
fflay be necessary to be built for the Defence and Security of the same ; You are as
soon as possible to prepare an Account thereof with relation to Our said Province
ia the most particular manner ; And You are therein to express the present State of
phe Arms, Ammunition and other Stores of War, belonging to the said Province, either
ia public Magazines, or in the Hands of private Persons; together with the State of
ail Places, either already fortified, or that you judge necessary to be fortified for the
Security of Our said Province ; And you are to transmit the said Accounts to Our
Commissioners for Trade and Plantations, as also a Duplicate thereof to Our Master
general or principal Officers of Our Ordnance ; Which Accounts are to” express the
particulars of Ordnance, Carriages, Balls, Powder, and other Sorts of Arms and
Ammunition in Our public Stores, and so from time to time of what shall be s«nt
you, or bought with the public Money, and to specify the Time of the Disposal, and the
occasion thereof: And You are half yearly to transmit a general Account of the
State of the Fortifications and Warlike Stores, specify’d in the manner above mentioned. – ‘
75. You are from time to time to give an Account, what Strength your Neighbours
nave by Sea and Land, and of the Condition of their Plantations, and what Correspondence You keep with them.
18-3—10J
148 CANADIA.1! ARCHIVES
6-7 COWARD V I I , A. 1907
76. And in case of any Distress of any other of Our Plantations, You shall, upon
Application of the respective Governors thereof unto you, assist them with what Aid
the Condition and Safety of Our Province under Your Government can spare.
77. If anything shall happen, which may be of Advantage or Security to Our
Province under your Government, which is not herein, or by your Commission provided for, We do hereby allow unto you, with the Advice and Consent of Our Council,
to take Order for the present therein, giving unto 0«r Commissioners for Trade and
Plantations speedy Notice thereof, in order to be laid before Us, that you may receive
Our Ratification, if We shall approve the same r—provided always, that you do not,
by Colour of any Power or Authority hereby given you, commence or declare War
without Our Kno ^ ledge and particular Commands therein.
78. And whereas We have, by the second Article of these Our Instructions to
you, directed and appointed that your chief Residence shall be at Quebec ; you are
nevertheless frequently to visit the other parts of your Government, in order to inspect
the Management of all public Affairs, and thereby the better to take Care, that the
Government be so administered, that no disorderly Practices may grow up contrary to
Our Service and the Welfare of Our Subjects.
79. And whereas great Prejudice may happen to Our Service, and the Security
of the Province, by your Absence from those Parts, You are not, upon any Pretence
whatsoever, to come into Europe, without having first obtained Leave for so doing from
Us under Our Sign Manual and Signet, or by Our Order in Our Privy Council ; Yet
nevertheless in case of Sickness, You may go to South Carolina, or any other of Our
Southern Plantations, and there stay for such Space as the Recovery of your Health
may absolutely require.
80. And whereas We have thought fit by Our Commission to direct, that in case
of your Death or Absence, and the Death or Absence of Our Lieutenant Governors
of Montreal and Trois Rivieres, and in Case there be at that time no Person within
Our said Province, commissionated or appointed by Us to be Commander in Chief, that
the Eldest Councillor, who shall be at t”he time of your Death or Absence, or at
the Death or Absence of Our Lieutenant Governors, as aforesaid, residing within Our
said Province under your Government, shall take upon him the Administration of
Government, and execute Our said Commission and Instructions, and the several
Powers and Authorities therein directed; I t is nevertheless Our express Will and
Pleasure, that in such Case the said President shall forbear to pass any Act or Acts,
but what are immediately necessary for the. Peace and Welfare of the said Province,
without Our particular Order for that purpose; And that he shall not remove or
suspend any of the Members of Our Council, nor any Judges, Justices of the Peace,
or other Officers Civil or Military, without the Advice and Consent of at least Seven
of the Members of Our said Council, nor even then without good and sufficient Reasons
for the same, which the said President is to transmit, signed by himself and the rest
of Our said Council, to Our Commissioners for Trade and Plantations, by the first
Opportunity in order to be laid before Us.
81. And whereas We are willing in the best manner to provide for the Support of
the Government of Our Province aforesaid, of which You are Governor, by setting
apart sufficient Allowances to such as shall be Our Governor or Commander in Chief,
residing for the time being within the same; Our Will and Pleasure is, that when it
shall happen that you are absent from Our said Province, One full Moiety of the
Salary, and all Perquisites and Emoluments whatsoever, which would otherwise become
due unto You, shall, during the time of your Absence, be paid and satisfied unto Our
Commander in Chief, who shall be resident within Our ¡said Province for the Time
being ; which We do hereby order and allot unto him for his Maintenance, and for the
better Support of the Dignity of that Our Government.
8.’. And You are upon all Occasions to send unto Our Commissioners for Trade
and Plantations only, a particular Account of all your Proceedings, and of the Condition of Affairs within your Government, in order to be laid before Us : provided
nevertheless, whenever any Occurrences shall happen within your Government of such
a Nature and Importance as may require Our more immediate Directions by One of
CONSTITUTIONAL DOCUMENTS 149
SESSIONAL PAPER No. 18
Our Principal Secretaries of State, and also upon all Occasions and in all Affairs
wherein you may receive Our Orders by One of Our Principal Secretaries of State,
you shall in all such Cases transmit to Our Secretary of State only an Account of all
such Occurrences, and of your Proceedings relative to such Orders :—
G. R.
ORDINANCE ESTABLISHING CIVIL COURTS.1
An ORDINANCE, for regulating and establishing the Courts of Judicature, Justices
‘ of the Peace, Quarter-Sessions, Bailiffs, and other Matters relative to the
Distribution ,of Justice in this Province.2
Whereas it is highly expedient and necessary, for the well governing of His
Majssty’s good Subjects of the Province of Quebec, and for the speedy and impartial
Distribution of Juetice among the same, that proper Courts of Judicature, with proper
Powers and Authorities, and under proper Regulations, should be established and
appointed :
His Excellency the Governor, by and with the Advice, Consent and Assistance of
of His Majesty’s Council, and by Virtue of the Power and Authority to him given by
His Majesty’s Letters.Patent, under the Great Seal of Great-Britain, hath thought fit
to Ordain and Declare ; and his said Excellency, by and with the Advice, Cogent and
Assistance aforesaid, Doth hereby Ordain and Declare,
That a Superior Court of Judicature, or Court of King’s Bench, be established in
this Province, to sit and hold Terms in the Town of Quebec, twice in every Year, via.
One to begin on the Twenty-first Day of January, called Hillary Term, the other on the
Twenty-first Day of June, called Trinity Term.
In this Court His Majesty’s Chief-Justice3
presides, with Power and Authority to
hear and determine all criminal and civil Causes, agreeable to the Laws of England,
and to the Ordinances of this Province ; and from this Court an Appeal lies to the
Governor and Council, where the Matter in Contest is above the Value of Three Hundred Pounds Sterling ; and from the Governor and Council an Appeal lies to the King
and Council, where the Matter in Contest is of the Value of Five Hundred Pounds
Sterling or upwards, »
In all Tryals in this Court, all His Majesty’s Subjects in this Colony to be admitted
on Juries without Distinction.4
And His Majesty’s Chief-Justice, once in every Year, to hold a Court of Assize,
and General Goal-Delivery, soon after Hillary Term, at the Towns of Montrealr
‘ and
Trois-Rivières, for the more easy and convenient Distribution of Justice to His
Majesty’s Subjects in those distant Parts of the Province. •__
x
The text of this ordinance is taken from, “Ordinances, Made for the Province of Quebec, by the
I Í – K T6
? ” * and Council of the said Province, since the Establishment of the Civil Government. Quebec,
WW. This has been compared with the copy in the Canadian Archives, vol. Q 62 A, pt. 2, p. SOU.
n *2Q
TL
his a n d t h e o t h e r ordinances of the period were passed under the authority of the Proclamation of
uet. 8th, 1763, together with the Commission and Instructions given to Governor Murray. Civil Government was not formally established in Canada until Aug. 10th, 1764. This was due to the terms of the
T £ \ ° X P a r ! s>
o £ 1 0 t h “Feb., 1763, which specified that eighteen months were to be allowed for those
•Eïencn-Canadians who cared to leave the country to do so.
The first Chief Justice of Canada was William Gregory, appointed in 1764.
„,
i
Accompanying the copy of this ordinance sent to the Home Government, were certain explanatory
oDBervations, in which Governor Murray states his reasons for introducing various features. On this
raause his observation is as follows:—”As there are but Two Hundred Protestant Subjects m the
ft™ S ? ‘ the greatest part of which are disbanded Soldiers of little Property and mean Capacity, it is
“rougbt unjust to exclude the new Roman Catholic Subjects to sit upon Juries, as such exclusion would
? W t u í f u
t h e s a i d Two hundred Protestants’ perpetual Judges of the Lives and Property of not only
¿MgMy Thousand of the new Subjects, but likewise of all the Military in the Province; besides if the
R a d i a n s are not to be admitted on Juries, many will Emigrate ; This Establishment is therefore no
more than a temporary Expedient to keep Things as they are until His Majesty’s Pleasure is known on
M”» critical and difficult Point.” Q 62 A, pt. 2, p. 500.
A „;„ G o T e l » o r Murray’s observation :— ” W e find, which was not at first apprehended, that the Court of
C ^ t p r 0 S ° s e d t 0 b e h e l d a t Montreal Twice every year, will be attended with too much Expense to the
”
a n d therefore that Establishment shall be corrected.” Ibid. p. 502.
150 CANADIAN ARGBIVES
6-7 EDWARD Vil., A. 19Q7
And whereas an inferior Court of Judicature, or Court of Common-Pleas,1
is also
thought necessary and convenient, It is further Ordained and Declared, by the Authority
aforesaid, That an inferior Court of Judicature, or Court of Common-Pleas, is hereby established, with Power and Authority, to determine all Property above the
Value of Ten Pounds, with a Liberty of Appeal to either Party, to the Superior Court,
or Court of King’a-Bench, where the Matter in Contest is of the Value of Tiventy
Pounds and upwards. ,
All Tryals in this Court to be by Juries,2
if demanded by either Party ; and this
Court to sit and hold two Terms in every Year at the Town of Quebec, at the same
Time with the Superior Court, or Court of King’s-Beneh. Where the Matter in Contest
in this Court is above the Value of Three Hundred Pounds Sterling, either Party may
(if they shall think proper) appeal to the Governor and Council immediately, and from
the Governor and Council an Appeal lies to the King and Council, where the Matter
in Contest is of the Value of Five Hundred Pounds Sterling or upwards.
The Judges in this Court are to determine agreeable to Equity, having Regard
nevertheless to the Laws of England, as far as the Circumstances and present Situation
of Things will admit, until such Time as proper Ordinances for the Information of the
People can be established by the Governor an 1 Council, agreeable to the Laws of
England.
The French Laws and Customs to be allowed and admitted in all Causes in this
Court, between the Natives of this Province, where the Cause of Action arose before
the first Day of October, One Thousand Seven Hundred and Sixty four.
The first Process of this Court to be an Attachment against the Body.
An Execution to go against the Body, Lands or Goods of the Defendant.
^Canadian Advocats, Proctors, &c. may practise in this Court.
And whereas it is thought highly necessary for the Ease, Convenience and Happiness of all His Majesty’s loving Subjects, That Justices of the Peace should be appointed
for the respective Districts of this Province, with Power of determining Property of
small Value in a summary Way, It is therefore further Ordained and Declared, by
the Authority aforesaid, and full Powqr is hereby Given and Granted to any one of
His Majesty’s Justices of the Peace, within their respective Districts, to hear and
finally determine in all Causes or Matters of Property, not exceeding the Sum of Five
Pounds current Money of Quebec, and to any two Justices of the Peace, within their
respective Districts, to hear and finally determine in all Causes or Matters of Property,
not exceeding the Sum of Ten Pounds said Currency, which Decisions being within, and
not exceeding the aforesaid Limitation, shall not be liable to an Appeal ; and also full
Power is, by the Authority aforesaid, Given and Granted, to any three of said Justices of
the Peace to be a Quorum, with Power of holding Quarter-Sessions in their respective
Districts every three Months, and also to hear and determine all Causes and Matters of
Property which shall be above the Sum of Ten Pounds, and not exceeding Thirty Pounds
current Money of Quebec, with Liberty of Appeal to either Party to the Superior Court,
or Court of King’s-Bench : And it is hereby Ordered, That the aforesaid Justices of the
Peace do issue their Warrants, directed to the Captains and other Officers of the Militia
in this Province, to be by them executed, until the Provost-Marshal, legally authorised
\ Governor Murray’s observation :—” The Court of Common Pleas is only for the Canadians ; not to
admit of such a Court until they can be supposed to know something of our Laws and Methods of procuring
Justice in our Courts, would be like sending a ship to sea without a Compass ; indeed it would be more
cruel—the ship might escape, Chance might drive her into some hospitable Harbour, but the poor
Canadians could never shun the Attempts of designing Men, and the Voracity of hungry Practitioners in
the Law ; they must be undone during the First Months of their Ignorance ; if any escaped, their Affections
must be alienated and disgusted with our Government and Laws ” Tbid. p. 502.
2
Governor Murray’s observation :- ” It is necessary to Observe that the few British Traders living
here, of which not above Ten or Twelve have any fixed Property in this Province, are much dissatisfied
because we have admitted the Canadians on Juries ; the Reason is evident, their own Consequence^ is
thereby bounded. But the Practitioners in the English Law have probably put them out of Humour with
the Court of Common Pleas (which they are pleased to call unconstitutional 🙂 Ibid. p. 503. 8
Governor Murray’s observation :—” We thought it reasonable and necessary to allow Canadian
Advocates and Proctors to practice in this Court of Common Pleas only (for they are not admitted in the
. other Courts) because we have not yet got one English Barrister or Attorney who understands the French
Language.” Ibid. p. 504. See also, in connection with this and the previous note, Murray’s letter to the
Lords of Trade, Oct. 29th, 1764, p. 167 and the petition of the Quebec Traders to the King, p. 168
CONSTITUTIONAL DOCUMENTS 151
SESSIONAL PAPER No. 18
by His Majesty, shall arrive, and other inferior Officers be appointed for that Purpose ;
all Officers, Civil and Military, or other His Majesty’s loving Subjects, are hereby commanded and required to be aiding and assisting to the said Justices and Officers of
Militia in the due Execution of their Duty. And it is further Ordered and Directed,
by the Authority aforesaid, That two of the said Justices of the Peace do sit weefely in
Rotation, for the better Regulation of the Police, and other Matters and Things in the
Towns of Quebec and Montreal, and that the Names of the Justices who are to sit in
each Week, be posted up on the Door of the Session-House by the Clerk of the Peace,
two Days before their respective Days of Sitting, that all Persons may know to whom
to apply for Redress.
And whereas there are not at present a sufficient Number of Protestant Subjects,
resident in the intended District of Trois-Rivieres, qualified to be Justices of the Peace,
and to hold Quarter-Sessions, It is therefore further Ordained and Declared, by the
Authority aforesaid, That from henceforth this Province shall be divided into two
Districts, to be known and called by the Names of Quebec and Montreal, for the Time
being, and until there may be a competent Number of Persons settled at or near TroisRivieres, duly qualified to execute the Office of Justices of the Peace, and the Power of
holding such Quarter-Sessions above-mentioned, or until His Majesty’s Pleasure be
known in that Behalf ; and that the said two Districts be divided and bounded by the
River Godfrey on the South, and by the River St. Maurice on the North Side.
And whereas it is thought very expedient and necessary, for the speedy and due
Execution of the Laws, and for the Ease and Safety of His Majesty’s Subjects, That a
sufficient Number of inferior Officers should be appointed in every Parish throughout
this Province ; It is therefore Ordered, by the Authority aforesaid, That the Majority
of the Householders, in each and every Parish, do, on the Twenty-fourth Day of June,
in every Year, elect and return to the Deputy-Secretary, within fourteen Days after
such Election, six good and sufficient Men to serve as Bailiffs1
and Sub-Bailiffs in each
Parish, out of which Number the King’s Governor, or Commander in Chief for the
Time being, with the Consent of the Council, is to nominate and appoint the Persons
who are to act as Bailiffs and Sub-Bailiffs in each Parish ; and such Nomination or
Appointment is tp be notified by the Deputy-Secretary to the respective Parishes, and
also published in the QUEBEC-GAZETTE, some Time in the last Week in August in every
Year ; and the said Bailiffs and Sub-Bailiffs, so nominated as aforesaid, are to enter
upon, and begin to execute their respective Offices on the Twenty-ninth Day of
September in every Year.
No Person to be elected a second Time to the same Office, except the whole Parish
has served round, or that those who have not, are laid aside for some material Objection,
“which must be supported by Proof : But that there may never be an entire Set of new
Officers at one Time, but that those who remain may be able to instruct those who
enter into Office, one of those Persons who served as Sub-Bailiffs in each Parish, to be
elected and nominated Bailiffs of said Parish the ensuing Year.
If a Bailiff dies in his Office, the Governor, or Commander in Chief, will nominate
one of those returned by said Parish to serve as Sub-Bailiffs for the Remainder of the
Year ; and when a Sub-Bailiff happens to die in Office, the Bailiffs shall assemble the
Parish upon the next publick Feast Day insuing his Decease, who shall proceed to elect
«ad return, as aforesaid, another Sub-Bailiff.
The Election” of Bailiffs and Sub-Bailiffs for this present Year, to be on the
¿twentieth Day of October; their Names to be returned immediately after the Election:
«leir Nomination will be notified and published by the Deputy-Secretary as soon as
5J»y. be. and they shall enter upon, and begin to execute their respective Offices, on the
« r a t Day of December, but all Elections, ve mentioned and appointed for that Purpose.
V
T h e Bailiffs are to oversee the King’s High-ways and the publick Bridges, and see
« a t the same aré kept in good ânôî sufficient Bepair ; to arrest and apprehend all
^ ^ t t a l s ^ a g a i n s t whom they shall have Writs or Warrants, and to guard and conduct
‘ fe? tlJ^K™”^ M
«rray’s observation :—” We called them Bailiffs, because the Word is better understood
J- sae JNew Subjects than that of Constable.” Ibid. p. 510.
152 OAWADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
them through their respective Parishes, and convey them to such Prisons or Places as
the Writ or Warrant shall direct : They are also to examine all Bodies that are exposed,
and on whom any Marks of Violence appear, in Presence of five reputable Householders
of the same Parish, whom he is hereby impowered to summons to inspect* the same, and
report in Writing the State and Circumstances thereof to the next Magistrate, that a
further Examination may be made therein if necessary ; but this to be done only where
the Coroner cannot by any Possibility attend, which in this extensive Province may
frequently happen.
Where any Disputes happen concerning the Breaking or Repairing of Fences, upon
Complaint made to the Bailiff, he shall summons the Defendant, who is to choose three
indifferent Persons, and the Plaintiff three more, and these six, the Bailiff presiding, to
decide the Dispute ; from their Sentence either Party may appeal to the QuarterSessions ; the Person found in Fault to pay One Shilling and no more, to the Person
who shall draw up the Decision.
These Bailiffs to be sworn into their Office by the next Justice of the Peace, as soon
as may be after their Nomination as aforesaid, and the said Oath to be returned to the
next Quarter-Sessions by such Jubtice.
GIVEN by His /excellency the Honorable JAMBS MURRAY, Esq ; CaptainGeneral ana Governor in Chief of the Province of QUEBEC, and Territories thereon
depending in America, Vice Admiral of the same, Governor of the Town of Quebec,
Colonel-Commandant of the Second Battalion of the Royal American Regiment, &c. &c.
In Council, at Quebec, the 17th of September, Anno, Domini, 1764, and in the Fourth
Year of the Reign of our Sovereign Lord GEORGE the ITT, by the Grace &f GOD of
Great-Britain, France, and Ireland, KING, Defender of the Faith, -^et
•
A
–
rtiole n e n o u s a Pai* été participé et nous jugeons qu’il n’a été proposé que
defi^M1
”
1 6âfc d i t d a n s cebfce ordonnance,1
que les Avocats Canadiens, nouveaux Sujets
• M. pourroient exercer, cette ordonnance nous paroit d’autant plus equitable qu’il
4 * t t f ri61 P °- U r l e S n o u v e a u x Sujets Canadiens de se servir de Personnes qu’ils enten-
« ^ ? d e qui Ils Sont entendus, avec d’autant plus de Raisons qu’il n’y a pas un Avocat
gZfr”?[1m
sçache la langue françoise, et avec lequel il ne falut un Interprette, qui ne
^ ^ ^ P r e s q u e jamais le vrai Sens de la Chose, d’ailleurs en quelques frais exorbitans
1
ï t e ordinance of Sept. 17, 1764. See p. 149.
158 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
ne se verraient pas constitué les Parties sans cette sage ordonnance qui fait la Tranquillité des familles.
*13. Nous avons une parfaite Oonnoissance des Articles qui en compose une Partie,
comme la Proposition d’établir des Reglemens pour la Mesure du Bois, pour le Chare-
-tiers et Voiturages de toutes espaces, le moyen d’entretenir les Rues nettes, les Places
publiques, et le quais, pour le Rammouage des Chemines à fin de prevenir les Accidents
du feu, c’est à ces seuls Articles auxquels vous avons déféré notre consentement, et notre
situation presente ne nous a pas permis d’étendre nos soins plus loins.
14. Il n’a été question de parler des Maisons de Jeu que dans une conversation
vague, et nous n’avons pas cru que l’on parla assez sérieusement pour que cela méritât
de délibérer, si on proposeroit de les dénoncer comme Maisons suspectes, et particulièrement celle du Nommé Roy, à qui aucuns de nous ne peut faire de crime de la Protection
que lui accordent ceux qu’il a le Talent de bien Servir ; au reste nous fûmes dans le cas
de dire dans la conversation qui si l’on jouoit à des Heures indues, et a des Jeux proscrits par la Police, que cette Article pourroit être representé comme pernicieux à la
jeunesse, et au Commerce, mais nous n’avons absolument eu aucune Oonnoissance que
cet Article fut dans la deliberation que nous avons signée.
15. Nous n’avons point entendu cet Article dans le Sens ou il est exposé, il s’en
faut bien nous n’ignorions point que c’etoit à la demande et a la Sollicitation de la Ville,
et pour la Sûreté d’icelle que l’ordre de porter les Lanternes avoit été obtenu, et nous
croyons qu’il est encore de la seureté de la Ville, et du bon ordre de sen servir, nous
avons même repondu dans ce Gout en francois à une lettre du Gouverneur de cette
Province, ce dernier Jour de notre Seance, sur ce qu’il proposoit d’établir des Lanternes
publiques, si le Coût n’en eut point été considerable, plusieurs de nos Confreres l’ont lu
quoique en francois et nous ont dits qu’ils repondoient dans le même sens de leur Côté
en Anglois.
Nous concevons aisément qu’à fin d’éviter la Cacafone a l’avenir, que les Jurés
Canadiens ne doivent donner leurs Sentiments qu’après la Traduction en langue francoise des Objets sur lesquels on le leur demandera.
Par la oonnoissance que nous les Ga
Jurés Canadiens nouveaux Sujets de S. M*°
avons lu en langue francoise de la Representation que nos Confreres les Anciens Sujets
grand Jurés, ait faits à la Cour de? Seance, & deux Signée, aux fins de nous exclure de
l’avantage de servir nous et les Nôtres, notre Patrie, et notre Roy ; se faisant une
Conscience de nous Croire inhabilles a Posséder aucun employ, n’y même a repousser et
combattre les Ennemies de S. Mte nous représentons la Dessus.
Que S. Mte étant instruite que tous les Sujets qui composent cette Province etoient
Catholiques les a crûs habilles en la d.’qualité a prêter le Serment de Fidélité, et capable
par cette Raison de pouvoir êtres admis a être utilles à leur Patrie de la façon dont on
les y croiroit propres, ce seroit mal penser de croire que les Canadiens Nouveaux Sujets
ne peuvent servir leur Roy, ni comme Sergent, ni comme Officiers ; ce seroit un Motif
bien humiliant, et bien décourageant pour des Sujets libres et assoissiés aux Avantages
de la Nation, et au Prerogative, ainsy que s’en est expliqué S. M. nous avons depuis
plus de six Mois des Officiers Canadiens Catholiques dans le pais d’Enhauts, et Nombre
de Volontaires pour y aides a repousser les Ennemis de la Nation1
et celui qui s’expose
librement a verser son Sang au Service de son Roy et de la Nation, ne peut il pas être
admis dans les charges ou il peut également servir la Nation et le Publique comme Jure,
des qu’il est Sujet, le 3e
de Jacques premier Chap. 5. Sec. 8 ne Regarde que les Catholiques qui pourroient veni dans le Royaume, et il n’y eut jamais de loix dans aucun
Royaume sans exception, * avoit preuve dans le tems que l’Angleterre assorieroit aux
prerogatives de la Nation une Colonie de Catholiques, si nombreuse ou si en l’avort
prévu, la loix vouloit elle en faire des esclaves, nous pensons differemenfc que nos Confreres ; et si nous étions dans l’opinion ou ils sont, nous aurions ‘assez de Confiance dans
* Some line must have been omitted here, for as it is, it is not Sense.
1
Referring to the French-Canadian troops which Governor Murray was# partially successful in raionw
under the volunteer system, for the purpose of assisting in the suppression of the Indian uprising »
Michillimakinak and elsewhere, under Pontiae. See Canadian Archives ; Bouquet Papers ; Haldiffl8,11
Papers, vols. B 2, B 6, B 9 ; also Q 2.
CONSTITUTIONAL DOCUMENTS 159
SESSIONAL PAPER No. 18
la Bonté du Roy pour croire qu’il accorderoit à tout le Nombreux peuple de cette
Colonie le délai suffisant, pour en sacrifiant- tous leurs biens, aller, Grater la Terre, dans
desespoir, ou en les regardant comme Sujets, ils pourraient mettre leur Vie, et celle de
leur Enfants à la Crie de l’injustice, ce qu’ils ne pourraient faire en restant icy, privés
des Employs, ou charges en qualités de Jurés.
La Douceur d’un Gouvernement actuel nous a fait oublier nos pertes, et nous a
attaché à S. M. et au Gouvernement* nos Confreres nous font envisager notre Etat
comme celui d’Esclaves ; les véritables et fidèles Sujets du Roy peuvent ils le devinir.
Ce qui nous fait conclure aux Protestations que nous faisons contre nos Signatures
de la deliberation du Seize du Courant, en tout ce qu’elles pourroient nous prejudicier.
fait a Quebec le 26e
Octo* 1764.
BONNEAU, PERRAULT
TAOHET, CHAEBST, AMIOT PENEY D AMONT. *
(Translation)
Charrest, Amiot, Tachet, Boisseaux, Poney, Dumont & Perrault new Subjects, Grand
Jurors in the districts of Quebec, having demanded from His Excellency in Council,the
Translation into French of two Presentments written in English in the House of the Three
Canons, all the Jurors being assembled, one of which presentments of the 16th of the
present month of October, was signed by the petitioners along with the other jurors,
and the other was signed by the jurors who were ancient subjects understanding English
alone, and having obtained the same, they consider themselves bound to declare the
part which they had taken in the articles which compose’ the first Presentment.
They begin by saying that before the Signature of this Presentment, there had
been many sessions, where’the question had been discussed by making Several Drafts of
Presentment on loose sheets, and of these the petitioners had knowledge of only a part
while many of those, with the contents of which they were acquainted, had been
modified or rejected by the Petitioners ; that a Summary certainly had been made of
all the papers, and that after it was made, it was offered to us for Signature, without
being interpreted, but was read in English only, that when it was requested by some of
us, that it should be read to us, the answer was that this summary was only a Resume
of the Drafts of the Articles which had been proposed and accepted during the late
Sessions, that time pressed for their presentation and that it was very unnecessary.
They intend therefore to set forth the part which they have had in the different Articles which compose this Presentment.
1 Article. Not only bad we no knowledge of this Article, -but we should certainly
have opposed this proposition with all our might, as being contrary to the interests of
-tus Majesty’s New Subjects in the Colony, and as being opposed to the wise ordinance of
the Governor and Council, who, seeing the necessity of establishing a Court of Justice where
toe New Subjects should be able to find a Sanctuary in which they might be judged as
frenchmen by Frenchmen, according to Ancient Customs, and in their own Tongue, has
fincebeen requested in a Petition to name the Judge of this Jurisdiction and which
9
Petitioners themselves have signed as Citizens ; for besides the convenience that it
*OTdd be to them to be judged in this Jurisdiction, they would save more than half the
2. 3. 4. Art68. We did not understand these Articles if they we>-e interpreted to
™i fnd as we are ignorant of what is going on in the different Colonies, we have
°
m
^ ^ in Propping a n y particular alterations in these Articles.
6
: V e
understand that wooden Houses and Stalls in the Market are contrary to
* ^ Policy, and are sometimes the Causes of Pires.
o. We have suggested with regard to the Quays and Dockyards that they should
allotted for the use and convenience of Trade. As to the Batteries we do not con-
«ow that they appertain to our Department.
fen ^ h a v e ke a r ( 1 t n i s Article in part, and only in connection with Sunday obser-
«ttep- But the Proposal of having a Minister to preach the Gospel in both languages
^ c e r t a i n l y not been explained to us.
160 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
8. We have no Knowledge that this matter has ever been brought up for Consideration.
9 & 10. These two Articles have not been explained to us, and we are not sufficiently far-seeing to pay attention to Measures which at present appear to us very
remote, owing to the hope which we entertain that no question of Taxation for this
Colony will arise.
11. We have not understood this whole Article as it is explained. We have even
demonstrated how prejudicial to the Colony, was the Proposition to diminish the Court
of Appeals, in that it would open a wide road to new lawsuits, that past cases had been
settled according to the circumstances of the Time, and that Proofs which might have
been valid for judgments then, could no longer be in existence, which would completely
change the aspect of Things ; however, accepting what we were told, that this Article
was subject to the Will of the Governor and His Council, we subscribed to it and the
S. Tachet made a note of the resorption on a loose sheet, which was left at the office,
as a Minute. Moreover we had not heard that a request for such a large reduction on
the Appeals was asked for, it having only been a question of asking for an Amendment.
12. This Article has never been communicated to us, and we imagine it was only
proposed, because it is stated in that ordinance, that Canadian Lawyers, New Subjects
of H. M. might practise. The ordinance appears to us the more equitable, in that it is
only right that the new Canadian Subjects should employ Persons whom they understand, and by whom They are understood, all the more because there is not one English
Lawyer who knows the French Language, and with whom it would not be necessary to
employ an Interpreter who would scarcely ever give the exact mganing of the Matter
in hand. And further, without this wise regulation which ensures the Tranquility of
domestic affairs would not the opposing Parties find themselves involved in exorbitant
expense ?
13. We are thoroughly familiar with the Items which form a Part of this Article,
such as the Proposal to establish Regulations for the Measuring of Wood, for Carters
and Yehicles of every description, for the best method of keeping the Streets, public
Squares, and Docks clean, and for the Sweeping of Chimneys to prevent Accidents by
fire. We have given our consent solely to these Items, and our present situation does
not allow us ,to extend our care in other directions.
14. There has been no question of discussing Gaming Houses except in desultory
conversation, and we did not suppose it had been spoken of seriously enough to mske it
worth while to consider, if it was proposed to denounce them as suspicious Houses,
especially that of the said King, to whom none of us can attribute as a crime the Protection which is grantedhim by those whom he has the Faculty of Servingso well. Besides
this we did happen to say in conversation that if they were playing at unseasonable
Hours, and at Games proscribed by the Police, then this Article might represent it as
dangerous to youth and to Trade, but we have absolutely no knowledge that this
Article was in the Presentment which we have signed.
15. We did not understand this Article in the Sense in which it is explained. 0£
course we were aware that it was at the request and Solicitation of the Town, and fot
the Safety of the same, that the order to carry Lanterns had been obtained, and we
b -lieve that it certainly would ‘conduce to the security of the Town and to good order
to carry it out. We have replied to this Efifect in French to a letter from the Governor
of this Province, on the last Day of our Session, at which time he proposed to establish
public lamps, if the Cost was not excessive. Although written in French, many of
our Fellow-members read it, and have told us that they on their side replied to the same
effect in English.
We quite realize that in order to avoid Confusion in the future, Canadian
Jurors should give their Opinions only after the Subjects on which it is asked have
been translated into the French Language.
In view of the knowledge that we, the Gd
Jurors, Canadian new Subjects of H. Mhave,—having read it in the French tongue,—of the Presentment which our confreres,
the Ancient Subjects, Grand Jurors, have made at the Court of Session, and of the t*°
Subscriptions, with the intention of excluding us from the privilege of serving ourselves
CONSTITUTIONAL DOCUMENTS 161
SESSIONAL PAPER No. 18
and Our associates, our Country and our King, pretending that they conscientiously
believe us to be incapable of holding any office or even of repulsing and fighting the
Enemies of H. Mty We make the following statement.
That H. Mty being informed that all the Subjects forming this Province were
Catholics still believed them capable as such of taking the Oath of Loyalty, and
therefore fit to be admitted to the service of their Country, in such a way as they shall
be thought qualified for. It would be shameful to believe that the Canadians, New
Subjects, cannot serve their King either as Serjeant, or Officers, it would be a most
humiliating thought, and very discouraging to free Subjects who have been admitted to
the Privileges of the Nation, and their Rights, as explained by H. M. Por more than
six Months we have had Catholic Canadian Officers in the Upper Country, and a
Number of Volunteers aiding to repulse the Enemies of the Nation ; and cannot a man
who exposes himself freely to shed his blood in the Service of his King and of the
Nation be admitted to positions where he can serve the Nation and the Public as a
Juror,” since he is a subject? The 3ra of James I. Chap. 5. Sec. 8. only refers to
Catholics who may enter the Kingdom, and as there has never been any law in any
Kingdom without some exception* was a proof that in time/England would admit
to the National rights so numerous a Colony of Catholics, or if this had been foreseen, that the Law would seek to make them slaves. We think differently from our
confreres, and even if we were of their opinion, we should have enough Confidence in
the King’s Goodness to -believe that he would grant all the Numerous people of this
Colony sufficient respite to depart, though at the sacrifice of all their possessions, and in
desperation cultivate the Ground, in some place, where being considered as Subjects,
they and their Children might lead their Lives sheltered from Injustice. This they
could never do here were they deprived of all Offices, or positions as Jurors.
The Leniency of the existing Government has made us forget our losses, and has
attached us to H. M. and to the Government; our fellow citizens make us feel oui\Condition to be that of Slaves. Can the faithful and loyal Subjects of the King be reduced
to this?
This ends the Protest that we make against the use of our Signatures on the Presentment of the Sixteenth instant, in every point in which they might be prejudicial tons. Done at Quebec the 26th October 1764.
P E R R A U L T , B O N N E A U ,
TACHET, CHAREST,
AMIOT, PENBY,
DAMONT.
ADDRESS OP F R E N C H CITIZENS TO T H E K I N G REGARDING THE
LEGAL SYSTEM.1
Au Roí.
La véritable gloire d’un Roy conquérant est de procurer aux vaincus le même bon”
neur et la même tranquilité dans leur Religion et dans la Possession de leurs biens, dont
ï~ joûissoient avant leur daffaite : Nous avons joui de cette Tranquilité pendant la
¿tterre même, elle a augmentée depuis la Paix faitte. Hé voilà comme elle nous a
^ ? ™ ^ Attachés à notre Religion, nous avons juré au pied du Sanctuaire une
délité inviolable^ Votre Majesté, nous ne nous en sommes jamais écartés, et nous
lirons d e nouveau de ne nous en jamais écarter, fussions nous par la suitte aussy mal-
«ureux que nous avons été heureux ; mais comment pourrions nous ne pas l’être, après
r * l e moignages de bonté paternelle dont Votre Majesté nous a fait assurer, que nous
«wions jamais troublés dans l’exercise de notre Religion.
u n °us a paru de même par la façon dont la Justice nous a été rendue jusqu’à préTr™*q U e intention de Sa Majesté étoit, que les Coutumes de nos Peres fussent suivies,
***•’ <» qui étoit fait avant la Conquête du Canada, et qu'on les suivit à l'avenir, autant 2!*_2^iieaeroit point contraire aux Loix d'Angleterre et au bien général. * 57^1 i- —' •—— • • •—'—" *• £ • must have been omitted here, for as it is, it is not sense. 18^3Ü] f eB ; B 8' P-121 - 162 y CANADIAN ARCHIVES ' 6-7 EDWARD VII., A. 1907 Monsieur Murray, nommé Gouverneur de la Province de Quebec à la satisfaction de tous les Habitans, nous a rendu jusques à present à la Tête d'un Conseil militaire toute la Justice que nous aurions pu attendre des personnes de Loi les plus éclairés ; cela ne pouvoit être autrement ; le Désintéressement et l'Equité faisoient la Baze de leurs Jugements. Depuis quatre ans nous jouissons de la plus grande Tranquilité , Quel bouleversement vient donc nous l'enlever 1 de la part de quatre ou Cinq Persones de Loy, dont nous respectons le Caractère, mais qui n'entendent point notre Langue, et qui voudroient qu'aussitôt qu'elles ont parlé, nous puissions comprendre des Constitutions qu'elles ne nous ont point encore expliquées et aux quelles nous serons toujours prêts de nous soumettre, lorsqu'elles nous seront connues ; mais comment les Connoître, si elles ne nous sont point rendues en notre Langue ? De là, nous avons vu avec peine nos Compatriotes emprisonnés sans être entendus, et ce, à des fraix considérables, ruineux tant pour le débiteur que pour le Créancier ; nous avons vu toutes les Affaires de Famille, qui se décidoient cy-devant a peu de frais, arrêtées par des Personnes qui veulent se les attribuer, et qui ne savent ny notre Langue ni nos Coutumes et à qui on ne peut parler qu'avec des Guiñees à la Main. Nous espérons prouver à Votre Majesté avec la plus parfaite Soumission ce que nous avons lhonneur de luy avancer. Notre Gouverneur à la Tête de son Conseil a rendu un Arrêt 1 pour lEtablissement de la Justice, par lequel nous avons vu avec plaisir, que pour nous soutenir dans la Décision de nos affaire» de famille et autres, il seroit établi une Justice inférieure, où toutes les Affaires de François à François y seroient décidées ; Nous avons Vu que par un autre Arrêt,2 pour éviter les Procès, les affaires cy-devant décidées seroient sans appel, à moins qu'elles ne soient de la Valeur de trois Cents Livres. Avec la même Satisfaction que nous avons vu ces ''ages Règlements avec la même peine avons nous vu que quinze Jurés Anglois contre Sept Jurés nouveaux Sujets, leur ont fait souscrire des Griefs en une Langue quils n'entendoient point contre ces mêmes Règlements ; ce qui se prouve par leurs Protestations et par leurs Signatures qu'ils avoient données la veille sur une Requête pour demander fortement au Gouverneur et Conseil la Séance de leur Juge, attendu que leurs Affaires en souffroient. Nous avons vu dans toute l'amertume de nos Cœuis, qu'après toutes les Preuves de la Tendresse Paternelle de Votre Majesté pour ses nouveaux Sujets ces mêmes quinze Jurés soutenus par les Gens de Loy nous proscrire comme incapables d'aucunes fonctions dans notre Patrie par la difference de Religion; puisque jusqu'aux Chirurgiens et Apothicaires (fonctions libres en tout Pays) en sont du nombre. Qui sont ceux qui veulent nous faire proscrire ï Environ trente Marchands anglois, dont quinze au plus sont domiciliés, qui sont les Proscrits ? Dix mille Chefs de famille, qui ne respirent, que la soumission aux Ordres de Votre Majesté, ou de ceux qui la représentent, qui ne connoissent point cette pi étendue Liberté que l'on veut leur inspirer, de s'opposer à tous les Règlement", qui peuvent leur être avantageux, et qui ont assez d'intelligence pour Connoître que leur Intérêt particulier les conduit plus que le Bien public— En Effet que deviendroit le Bien Général de la Colon», si ceux, qui en composent le Corps principal, en devenoient des Membres inutiles par la différence de la Religion? Que deviendroit la Justice si ceux qui n'entendent point notre Langue, ny nos Coutumes, _en devenoient les Juges par le Ministère des Interprètes 1 Quelle Confusion ? Quels Frais mercenaires n'en résulteroient-ils point ? de Sujets protégés par Votre Majesté, nous deviendrons de véritables Esclaves ; une Vingtaine de Personnes, que nous n'entendons point, deviendroient les Maitres de nos Biens et de nos Intérêts, plus de Ressources pour nous dans les Personnes de Probité, aux quelles nous avions recours pour l'arrangement de nos Affaires de famille, et qui en nous abandonnant, nous forceroientnous mêmes à préférer la Terre la plus ingrate à cette fertile que nous possédons. Ce n'est point que nous ne soyons prêts de nous soumettre avec la plus respectueuse obéissance à tous les Règlements qui seront faits pour le bien et avantage de la>
i The ordinance of Sept. 17th, 1764. See p. 149.
2
The ordinance of Sept. 20th, 1764. See ” Ordinances, made for the Province of Quebec, &c.” 17W-
CONSTITUTIONAL DOCUMENTS 163
SESSIONAL PAPER No. 18
Colonie ; mais la Grace, que nous demandons, c’est que nous puissions les entendre :
Notre Gouverneur et son Conseil’nous ont fait part de ceux qui ont été rendus, ils sont
pour le Bien de la Colonie, nous en avons témoigné notre reconnoissance ; et on fait
souscrire à ceux qui nous représentent, comme un Mal, ce que nous avons trouvé pour
un Bien !
Pour ne point abuser des Moments précieux de Votre Majesté, nous finissons par
l’assurer, que sans avoir connu les Constitutions Angloises, nous avons depuis quatre
Ans goûté la douceur du Gouvernement, la goûterions encore, si Messrs les Jurés anglois
avoient autant de soumission pour les décisions sages du Gouverneur et de son Conseil,
que nous en avons ; si par des Constitutions nouvelles, qu’ils veulent introduire pour
nous rendre leurs Esclaves, ils ne cherchoient point à changer tout de suite l’ordre de la
Justice et son Administration, s’ils ne vouloient pas nous faire discuter nos Droits de
famille en Langues étrangères, et par là, nous priver des Personnes éclairées dans nos
Coutumes, qui peuvent nous entendre, nous accommoder et rendre Justice à peu de frais
•en faisant leurs Efforts pour les empêcher même de conseiller leurs Patriotes pour la
différence de Religion, ce que nous ne pouvons regarder que comme un Intérêt particulier et sordide de ceux qui ont suggéré de pareils principes.
Nous supplions Sa Majesté avec la plus sincère et la plus respectueuse soumission
de confirmer la Justice, qui a été établie pour délibération du Gouverneur et Conseil
pour les François, ainsy que les Jurés et tous autres de diverses Professions, de conserver les Notaires et Avocats dans leurs Fonctions, de nous permettre de rédiger nos
Affaires de famille en notre Langue, et de suivre nos Coutumes, tant qu’elles ne seront
point Contraires au Bien général de la Colonie, et que nous ayons en notre Langue une
Loy promulguée et dés Ordres de Votre Majesté, dont nous nous déclarons, avec le plus
inviolable Respect,x
Les plus fidèles Sujets
Amiot—Juré J. Labroix (or Lauroix)
Boreau— Juré
Perrault Che
reg1
Tachet—Juré
Charest—Juré
Perrault—Juré
Boiret P’re Supérieur du Se
minaire
Dumond, Juré
Isel Bêcher. Curé de Quebec. Bertrán (or rem)
Estesanne fils aynó Gauvereau
Gueyraud
Voyer (or Voyez)
F. Valin
Bellefaye (or Bellefincke)
Rey
Marchand
J. Lemoyne
Jean Amiot
Conefroy.
Robins
LeFebure
t u p i r á n
Rousseau
Petrimouly
Larocque
Launiere
AIxre Picard
Carpentier (or Charpeniser)
Coocherar (or eer)
Vallet
Duttock
Meux ‘Vrosseaux
H. Parent
Ferrant
Boireux
Dusseil (or Dufiel) ”
Lorrande Du Perrin
Duperrin).
Laurain
Chrétien.
P. Goyney.
Voyer (or Voyez)
Le Maitre Lamorille
Franc Ruilly
Jean Baptiste Dufour
Portneuf (or Borneuf)
L. D. Dinnire (or ere)
Thomas Lee. (or Lee)
Soulard
Parroix
Riverin
Liard fils—
F
a
Dambourgès
Messuegué
L. Dumas
Robins Fil
Redout
(or
an additional instruction* to Murray was
exact date is not given. As contained in the f™^. A P P ^ ^ t l y in consequence of these representations,
™medandsentm the latter part of 1764, although the ex
Dartmouth Papers, it appears as follows :— , ^ , „ . „
Ubi. Instructions to Murray. That the misconstruction of the proclamation of 7th October, libó,
sWn °7″d*1
”
1
that m making provision for the due and impartial administration of justice that there
«Mju extend to all ” subjects in general the protection and benefit of the British laws and constitution m
„ *u cases where their Lives and Liberties are concerned. But shall not operate to take away from
” ah M t i
v e h a b i t a n t s the Benefit of their own Laws and Customs in Oases where Titles to Land, and
” Si t h 1
A ? °-f D 8 , œ i l t ‘ Alienation and Settlement are in Question, nor to preclude them from that share
*• «i*? uAdmmistration of Judicature, which both in Reason and Justice thi
„ ! £ T J r e r e i *
o £ o u r subjects.'” — • ‘
notions a* finalb
18-3—11 J”
n*fam„u ” i v ” ” =””jt*>«>- “The “proMsed”‘*instriictions”with notes of alterations suggested. The
“””•ructionsas finally sent are in the Colonial Office. Canadian Archives, Dartmouth Papers, M. áüó, p.
iev are intitled to in Common
J. • -•–* ™he
50.
164 . . CANADIAN ARCHIVES
Ginnie
Boileau
Delerenni
Liard (or Lard)
(Dubarois or)
Dubaril, Chirurg11
Ohartier de Lotbiniere
Asime
F. Duval
Hec. Keez
Huquet
Sehindler
La Haurriong
Lerise
Panet
Endorsed. Quebec
Copy of the Adr?ss of the principal Inhabitants of Ganada to the King)
relative to the Establishment of Courts of Justice, and the Presentment of
the Grand Jury
Original sent to His Majesty.
Read Janr
r 7. 1765
(Translation.)
To THE KING.
fhe true Glory of a Yictorious King consists in assuring to the vanquished the
same happiness and the same tranquillity in their Religion and in the possession of
their property that they enjoyed before their defeat. We have enjoyed this Tranquillity even during the War, and it has increased since the establishment of Peace.
Vould that thus it had been secured to us ! Deeply attached to our religion, we
nave sworn at the foot of the altar, unalterable fidelity to Your Majesty. From it we
have never swerved and we swear anew that we never will swerve therefrom,
although we should be in the future as unfortunate as we have been Happy : but how
could we even be unhappy, after those tokens of paternal affection by which Your
Majesty has given us the assurance that we shall never be disturbed in the Practice of
our Religion.
I t has seemed to us indeed from the manner in which Justice has been administered
among us up to the present time, that it was His Majesty’s Intention that the Customs
of our Fathers should be adhered to, so that what was done before the Conquest of
Canada should be adhered to in the future in so far as it was not opposed to the Laws
of England, and to the public good.
Mr. Murray, who was appointed Governor of the Province of Quebec to the satisfaction of all its inhabitants, has up to the present time, at the head of a Military
Council administered to us all the justice that we could have expected from the most
enlightened jurists. This” could hardly have been otherwise, Disinterestedness and
. Equity being the basis of their decisions.
For four years we enjoyed the greatest tranquillity. By what sudden stroke has
it been taken away through the action of four or five jurists, whose” character we
respect, but who do not understand our language, and who expect us, as soon as they
have spoken, to comprehend legal constructions which they have not yet explained,
but to which we should always be ready to submit, as soon as we become acquainted
with them, but how can we know them, if they are not delivered to us in our own tongue 1
I t follows, that we have seen with grief our fellow citizens imprisoned without
being heard, and this at considerable expense ruinous alike to debtor and creditor ; we
have seen all the family affairs, which before were settled at slight expense, obstructed
by individuals wishing to mako them profitable to themselves, who know neither our
language nor our customs and to whom it is only possible to speak, with guineas in one’s
band.
H. Loret
Berthelot (or elole)
Arnoux.
Neuveux
Laroche
Th. Caroux
Guichass
Jacques Hervieux neg* de
Montreal
Guy de Montreal
J. Ferroux
S J* Meignot
6-7 EDWARD VII., A. 1907
Fromont
Fl. Cuynet
Gigon
Dennbefrire
Paul Marchand
Duvonuray
Sanguineer
Au. Bederd
Le C :t8 Dupré l’aisne
S. George Dupré
G
1
des Milice de Montreal
CONSTITUTIONS, tOCVMENTS 165
SESSIONAL PAPER No. 18
We hope to prove to your Majesty with all due submission the statements which
we have the honour to lay before him.
Our Governor, at the Head of his Council, has issued an ordinance for the Establishment of Courts, by which we were rejoiced to see, that to assist us in the settlement of
family and other matters, a Lower Court of Justice was to be established where all
cases between Frenchman and Frenchman could be decided. We have seen that by
another ordinance, to avoid lawsuits, cases decided by this court should be without
appeal, unless they were of the value of thiee Hundred Pounds.
In proportion to the greatness of our Joy on seeing these wise regulations, was the
distress with which we discovered that fifteen English Jurors as opposed to seven
Jurors from the new Subjects had induced the latter to subscribe to Remonstrances in
a language which they did not understand against these sime Regulations. This is
proved by their Remonstrances and Signatures of the evening before, in a Petition in
w’hich they urgently beg the Governor and his Council that their Judge may hold a
sitting as their affairs were suffering for want of it.
With deep bitterness in our hearts we have seen, that after all the proofs of Your
Majesty’s Paternal Affection for your new Subjects, these same fifteen Jurors, with the
assistance of the Lawyers have proscribed us as unfit, from differences of Religion, for
any office m our country ; even Surgeons and Apothecaries (whose professions are free
m all countries) being among the number.
Who are those who wish to have us proscribed 1 About thirty English merchants,
of whom fifteen at the most, are settled here. Who are the Proscribed 1 Ten thousand
Heads of Families who feel nothing but submission to the orders of Your Majesty, and
of those who represent you, who do not recognize as such this socalled Liberty with
which the other party desire to incite them to opposition to all the Regulations which
might be to their advantage, and who have enough intelligence to see, that these persons are guided by their own Interest rather than the public good.
And in fact what would become of the general prosperity of the Colony, if those
who form the principal section thereof, become incapable members of it through difference
of Religion 1 How would Justice be administered if those who understand neither our
Language nor our Customs should become our Judges, through the Medium of Interpreters. What confusion, what Expenditure of Mo ley would not result therefrom 1
Instead of the favoured Subjects of Your Majesty, we should become veritable Slaves ;
a Score of Persons whom we do not know would become the Masters of our Property and
of our Interests ; We should have no further Redress from those equitable Men, to
whom we have been accustomed to apply for the settlement of our Family Affairs, and
who if they abandoned us, would cause us to prefer the most barren country to the
fertile land we now possess.
‘ It is not that we are not ready to submit with the most respectful obedience to all the
Regulations which may be made for the Wellbeing and Prosperity of the Colony, but
the favour which we ask is that we may be allowed to understand them. Our Governor
and his Council have instructed us concerning those which have been already issued.
They are for the good of the Colony, we have shown our Gratitude for the same, and
yet now we are made to represent as a hardship by those who are speaking in our name,
what we have found to be a benefit.
That we may not further encroach upon Your Majesty’s Precious Time, we con-
^ elude by assuring You, that without knowing the English Constitution we have during
* the past four years, enjoyed the Beneficence of the Government, and we should still
enjoy it, if Messrs the English Jurors were as submissive to the wise decisions of the
vrovernor and his Council, as we are ; if they were not seeking by new regulations, by
the introduction of which they hope to make us their slaves, to change at once the
order and administration of Justice, if they were not desirous of making us argue our
family Rights in a foreign tongue, and thereby depriving us of those Persons, who from
their knowledge of our Customs, can understand us, settle our differences, and admin- ”
Mter Justice at slight expense ; using every effort, on the plea of the difference of
Religion, to prevent them even from acting as Counsel for their fellow countrymen,
-this we can only regard as due to the base anxiety for their own interests of those who
* w e suggested such Principles.
166 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
We entreat Your Majesty with the deepest and most respectful submission to confirm the system of Justice which has been established for the French, by the deliberations of the Governor and Council, as also the Jurors and all others of different professions, to maintain the Notaries and advocates in the exercise of their functions, to permit us to transact our Family Affairs in our own tongue, to follow our customs, in so
far as they are not opposed to the general Wellbeing of the Colony, and ^o grant that
a Law may be published in our Language, together with the Orders of Your Majesty,
whose most faithful Subjects, we do, with the most unalterable Respect, hereby declare
Ourselves,
The most faithful Subjects
ORDINANCE OF NOY. 6
Ul 1764,1
An ORDINANCE, For quieting People in their Possessions, and fixing the Age
of Maturity.
WHEREAS it appears right and necessary, to quiet the Minds of the People, in
Hegard to their Possessions, and to remove every Doubt respecting the same, which
may any Ways tend to excite and encourage vexatious Law-Suits ; and until a Matter
of so serious and complicated a Nature, fraught with many and great Difficulties, can
be seriously considered, and such Measures therein taken, as may appear the most
likely to promote the Well-fare and Prosperity of the Province in genera], His Excellency, by and with, the Advice and Consent of His Majesty’s Council, Doth hereby
Ordain and Declare, That until the tenth Day of August next, the Tenures of Lands, in
Respect to such Grants as are prior to the Cession thereof, by the definitive Treaty of
Peace, signed at Paris the tenth Day of February, One Thousand Seven Hundred and
} Sixty-three, and the Rights of Inheritance, as practised before that Period, in such
Lands or Effects, of any Nature whatsoever, according to the Custom of this Country,
, shall remain to all Intents and Purposes the same, unless they shall be altered by some
declared and positive Law ; for which Purpose the present Ordinance shall serve as a
Guide and Direction in all such Matters, to every Court of Record in this Province :
, Provided that nothing in this Ordinance contained shall extend, or be construed to
extend to the Prejudice of the Rights of the Crown, or to debar His Majesty, His Heirs
‘ or Successors from obtaining, by due Course of Law, in any of His Courts of Record in
this Province, according “to the Laws of Great-Britain, any Lands or Tenements, which
at any Time hereafter may be found to be vested in His Majesty, his Heirs or Successors, and in the Possession of any Grantee or Grantees, his, her, or their Assigns, or
such as claim under them, by Yirtue of any such Grants as aforesaid, or under Pretence
thereof, or which hereafter may be found to have become forfeited to His Majesty, by
Breach of all or any of the Conditions in such Grants respectively mentioned and con-
tained.
And be it Ordained and Declared, by the Authority aforesaid, That from and after
the first Day of January, One Thousand Seven Hundred and Sixty-five, every Person
arrived at the Age of Twenty-one compleat Years, shall be deemed for the future of
full Age and Maturity agreeable to the Laws of England, and shall be entituled to take
i full Possession from that Time of every Estate or Right to him belonging; in Consequence thereof to sue for the same, or bring to Account the Guardians, or other Persons
.’ who may have been entrusted therewith.
GIVEN by His Excellency the Honorable JAMES MURRAY, Esq; CaptainÇeneral and Governor in Chief of the Province of QUEBEC, and Territories thereon dépending in America, Vice Admiral of the same, Governor of the Town of Quebec, Colonel-
Commandant of the Second Battalion of the Royal American Regiment, ° e s i r e tl to appoint an agent in London, Mr. Cramahé was nominated for the position, in
lie¿e¿ in’A , appointment, however, was apparently not made. When civil government was estab-
»T™f. Aug-1-764, Mr. Cramahé became a member of the first Council of the Province.
Person*] KV* ter a n d t h e following petitions incidentally reveal the very strained relations, extending to
« i m » «wi ^ 1 3 8 8 ‘ which existed between Governor Murray and the British commercial element m tne
* ^ h ? j i 1 1 *
] e d to t h e Governor’s recall,
-“-ne ordinance of Sept. 17th, 1764. See p. 149.
168 ‘ CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
Duty to acquaint your Lordships that the first of these Men is a notorious smugler and
a Turbulent Man, the second a weak Man of Little character and the third a conceited
Boy. In short it will be impossible to do Business with any of them
(signed) J A : M U R R A Y
The Lords of Trade & Plantations
PETITION OF T H E QUEBEC TRADERS. 1
To the King’s Most Excellent Majesty
The Humble Petition of Your Majesty’s most faithful and loyal Subjects, British
Merchants and Traders in behalf of themselves and their fellow Subjects, Inhabitants
of your Majesty’s Province of Quebec
M A Y I T P L E A S E Y O D E M A J E S T Y . ^
Confident of Your Majesty’s Paternal Care and Protection extended even to the
meanest and most distant of your Subjects, We humbly crave your Majesty’s Gracious
Attention to our present Grievances and Distresses
We presume to hope that your Majesty will be pleased to attribute our approaching
your Royal Throne with disagreeable Complaints, to the Zeal and Attachment we have
to your Majesty’s Person and Government, and for the Liberties & Priviledges with
which your Majesty has indulged all your Dutifull Subjects.
Our Settlement in this Country with respect to the greatest part of us ; takes it’s
date from the Surrender of the Colony to your Majestys Arms ; Since that Time we
have much contributed to the advantage of our Mother Country, by causing an addi-
tional Increase to her Manufactures, and by a considerable Importation of them,
diligently applied ourselves to Investigate and promote the Commercial Interests of this
Province and render it flourishing
To Military Government, however oppressive and severely felt, we submitted
without murmur, hoping Time with a Civil Establishment would remedy this Evil
With Peace we trusted to enjoy the Blessings of British Liberty, and happily reap
the fruits of our Industry : but we should now despair of ever attaining those desirable
ends, had we not Your Majesty’s experienced Goodness to apply to.
The Ancient Inhabitants of the Country impoverished by the War, had little left
wherewith to purchase their common necessaries but a Paper Currency2
of very doubtfull
Value : The Indian War8
has suspended our Inland Trade for two years past, and both
these Causes united have greatly injured our Commerce.
For the redress of which we repose wholly on your Majesty, not doubting but the
Wisdom of your Majesty’s Councils will in due time put the Paper Currency into »
Course of certain and regular Payment, and the Vigour of Your Majesty’s Arms ter-
minate that War by a peace advantageous and durable.
We no less rely on your Majesty for the Redress of those Grievances we suffer from
the Measures of Government practised in this your Majesty’s Province, which are
The Dep’rivation of the open Trade declared by your Majesty’s most gracious Pro-
clamation, by the Appropriation of some of the most commodious Posts4
of the Resort oí
the Savages, under the Pretext of their being your Majesty’s private Domain.
The Enacting Ordinances Vexatious, Oppressive, unconstitutional, injurious to civil
Liberty and the Protestant Cause.
Suppressing dutifull and becoming Remonstrances of your Majesty’s Subjects
against these Ordinances in Silence and Contempt.
, . . _ . • ~ 1
Canadian Archives ; vol. B 8, p. 6. _ . 2
This papei currency was issued by the Intendants under the French Regime, and especially by ™*
last o£ them, the notorious Bigot. Its redemption by the French Government was at this time the subjec*
of special negotiations. 3
Pontiac’s Rebellion.
i
For the previous condition of these posts, see Murray’s Report of 1762, p. 42.
CONSTITUTIONAL DOCUMENTS 169
SESSIONAL PAPER No. 18
The Governor instead of acting agreeable to that confidence reposed in him by your
Majesty, in giving a favorable Reception to those of your Majesty’s Subjects, who
petition and apply to him on such important Occasions as require it, doth frequently
treat them with a Rage and Rudeness of Language and Demeanor, as dishonorable to
the Trust hë holds of your Majesty as painful to those who suffer from it.
His further adding to this by most flagrant Partialities, by fomenting Parties and
taking measures to keep your Majesty’s old and new Subjects divided from one another,
by encouraging the latter to apply for Judges of their own National Language.
His endeavouring to quash the Indictment against Claude Panet (his Agent in
this Attempt who laboured to inflame the Minds of the People against your Majesty’s
British Subjects) found by a very Worthy Grand Inquest, and causing their other judicious and honest Presentments to be answered from the Bench with a Contemptuous
Ridicule.
This discountenancing the Protestant Religion by almost a Total Neglect of
Attendance upon the Service of the Church, leaving the Protestants to this Day destitute of a place of Worship appropriated to themselves.
The Burthen of these Grievances from Government is so much the more severely
felt, because of the natural Poverty of the Country ; the Products of it been extremely
unequal to support its Consumption of Imports.
Hence our Trade is miserably confined and distressed, so that we lye under the
utmost Necessity of the Aids and Succours of Government, as well from Our Mother
Country as that of the Province, in the Place of having to contend against Oppression,
and Restraint.
We could enumerate many more Sufferings which render the Lives of your Majesty’s Subjects, especially your Majesty’s loyal British Subjects, in the Province so very
unhappy that we must be under the Necessity of removing from it, unless timely prevented by a Removal of the present Governor.
Your Petitioners therefore most humbly pray your Majesty to take the Premises
into your gracious Consideration, and to appoint a Governor over us, acquainted with
other maxims of Government than Military only ; And for the better Security of your
Majesty’s dutiful and loyal Subjects, in the Possession and Continuance of their Rights
and Liberties, we beg leave also most humbly to petition that it may please your
Majesty, to order a House of Representatives to be chosen in this as in other your
Majesty’s Provinces ; there being a number more than Sufficient of Loyal and well
affected Protestants, exclusive of military Officers, to form a competent and respectable
House of Assembly; and your Majesty’s new Subjects, if your Majesty shall think fit,
may be allowed to elect Protestants without burdening them with such Oaths as in
their present mode of thinking they cannot conscientiously take.
_ We doubt not but the good Effects of these measures will soon appear, by the Produce becoming flourishing and your Majesty’s People in it happy. And for Your
Majesty and your Royal House your Petitioners as in Duty bound shall ever pray &ca.
Sam1
Sills John Danser.
Edwa
Harrison Ja” Jeffry.
Eleazr
Levy Ja” Johnston.
Jas
Shepherd Tho” Story.
John Watmough. Dan1
Bayne.
John Ord. John Purss.
Geo. Allsoopp. Alex1
McKenzie
Wm
Mackenzie. Geo Measam
B Comte. J n
A. Gastineau
Peter Paneuil. Ph. Payn.
Geo Pulton.
170 CANADIAN ARGUIVES
6-7 EDWARD VII., A. 1907
PETITION OP T H E LONDON MERCHANTS. 1
To the Kings most excellent Majesty.—
i
The humble Petition of your Majesty’s most dutiful Subjects, the Merchants and
others now residing in London Interested in and trading unto the Province of Canada
in North America, on behalf of themselves and others trading to and Interested in the
said Colonys by way of Supplement to the Petition hereunto annexed Intitled the
humble Petition of your Majesty’s most faithful and Loyal Subjects British Merchants
and Traders in behalf of themselves and their fellow Subjects Inhabiting your Majesty’s
Province of Quebec
M A T IT PLEASE YOUR MAJESTY,
We whose names are hereunto subscribed do most humbly certify to your Majesty
that Several of us have in our possession a Variety of Original Letters from divers of
our Friends anl correspondents now residing in Canada and whose names are not subscribed to the Address annexed which confirm the truth of the several Allegations contained in the said Address. We do verily believe the said Allegations to be true and
doubt not but in due time shall be enabled to prove the same when your Majesty in
your great wisdom shall think proper to direct.
And from the said Original Letters in our possession we do likewise believe that
the said Address would have been signed by almost all your Majesty’s British as well
as French subjects in Canada but for fear of incurring the displeasure and resentment
of such of your Majesty’s Officers and Servants as may deem themselves reflected upon
thereby.
We therefore most humbly join with our fellow Subjects of Canada in their Petition
to your Majesty and further most humbly pray.
– That the Government of tho^é your Majesty’s Dominions may be at least put upon
the same footing with the, rest of your Majesty’s American Colonies or upon any other
footing that may be thought Essential for the preservation of the Lives Liberties and
Properties of all your Majesty’s most faithfull Subjects as well as for the increase and
support of the Infant Commerce to and from that Part of the World.
And Your Petitioners as in duty bound shall ever pray. &c. &c. &c.
Capel & Osgood Hanbury, James Bond,
John Buchanan, Mildred & Roberts
David Barclay & Sons Barnards & Harrison,
Anthony Merry. Nash Eddowes & Pétrie,
Lane & Booth Webb & Sampson,
Bissons & Metcalfes, Brindleys Wright & Co
J
11 Masfen, Jn° Liotard & Giles Godin,
Crafton & Colson Gregory Olive
Walr
Jenkins & C, Neate & Pigon,
Poolev & Fletcher, Richd
Neave & Son
Wakefield Willett & Pratt. John Strettell
John Cartwright, Isidore Lynch & Co.
Mauduit Wright & C°
1
Canadian Archives ; \ol. B 8, p. 10.
CONSTITUTIONAL DOCUMENTS 171
SESSIONAL PAPER No. 18
REPORT OP ATTY. AND SOL. GEN. RE STATUS OP ROMAN CATHOLIC
SUBJECTS. 1
To the Right Honourable the Lords Commissioners for Trade and Plantations.
MAY IT PLEASE TOUR LORDSHIPS,
In Obedience to* your Lordships Commands Signifyed to me by Mr
Pownall’s Letter
of the 7 Instant, directing us to consider, and Report to your Lordships our Opinion,
whether His Majesty’s Subjects, being Roman Catholicks, and residing in the Countries,
ceded to His Majesty, in America, by the Definitive Treaty of Paris, are, or are not
subject, in those Colonies, to the incapacities, disabilities, and Penalties, to which
Roman Catholicks in this Kingdom, are subject by the Laws thereof ;
We have taken Mr
Pownall’s Letterinto our Consideration, and are humbly of Opinion,
that His Majesty’s Roman Catholick Subjects residing in the Countries, ceded to His
Majesty in America, by the Definitive Treaty of Paris, are not subject, in those
Colonies, to the Incapacities, disabilities, and Penalties, to which Roman Catholicks in
this Kingdom are subject by the Laws thereof.
All which is humbly submitted to Your Lordships Consideration
FLr
NORTON
Wm
DE GREY
Lincolns Inn “Í
10* June 1765/
Endorsed :—Copy of the Attorney and Sollicitor Generals Report
REPRESENTATION OP T H E BOARD OF TRADE, TO T H E
KING’S MOST EXCELLENT MAJESTY. 2
MAY IT PLEASE YOUR MAJESTY,
Our Predecessors in Office having in a Report to the Lords of the
Committee of Your Majesty’s most Honorable Privy Council of the 30th
of May last, submitted to their Lordships consideration, a Plan for the
Regulation of Ecclesiastical affairs in Quebec, and we having in a like
Report3
to their Lordships of this Day’s Date 8
submitted Our Opinion and
Propositions in respect to the Constitutions of Judicature, and other Civil
Establishments in that Province,3
it appears to us that their Lordships have
now before them, for their Consideration and decision, all those matters
regarding the Constitution and form of Government, both Ecclesiastical
“judicial in B. a n d Civil, *which are of the greatest Importance in the present State of that
N° i s C a n a d a Colony, and upon which the Welfare of Government and the Happiness of
Your Majesty’s Subjects there depend.
Two great and important Considerations do yet however remain to be
submitted to Your Majesty ; Viz*
First,—The Propriety of calling a General Assembly, consisting of the
Governor, the Council, and a House of Representatives, of which third
Estate the situation and Circumstances of the Colony have not hitherto
been thought to admit.
* â ^ – a n Arol>iveg, Dartmouth Papers ; M 383, p. 69. <*ft!iîariKÏ?lari A r c l"ves ; B 8, p. 12. The marginal notes refer to variations in the text in other copies V i f e ^ , i n t h e Putt1 " Record Office. 8λS*ft«« n *". r eP ° r t here referred to does not accompany this document, nor has it yet been found atioBs iTrt. character may be gathered from the recapitulation and discussion of its chief recommend- — • m the report of Yorke and De Grey. See p. 174 172 CANADIAN ARCEIYBS 6-7 EDWARD VII,, A. 1907 Secondly,—The repeated Complaints made by many of Your Majesty's * Subjects there, and hy the Principal Merchants trading to that Colony here, of Oppression and Misconduct in Your Majesty's Governor. Upon the first of these Propositions, the only Objection to which, as we conceive, must arise out of the Present State óf the Province, the Bulk of the Inhabitants of which being Rom m Catholicks cannot, under the *Resulationin-^e S u ^ a ^ ons* °^ your Majesty's Commission, be admitted as Representatives B. T. 15. in such an Assembly ; We beg leave to represent, that if the whole Province was to be divided into three Districts or Counties, of which the Cities of Quebec and Montreal, and the Town of Tro^s Rivieres were to be the Capitals, We apprehend there would be found a sufficient number of Persons in each County qualified to serve as Representatives, and in the Choice of whom- all the Inhabitants of such County might join ; seeing that we know of no Law by which Roman Catholicks, as such, are disqualified from being Electors. Such a Measure would, we submit give great Satisfaction to your Majesty's New as well as the Natural-Born Subjects ; every Object of Civil *Power in Government, to which the limited Powers* of the Governor and Council B. T. 15. cannot extend, would be fully answered ; and above all, that essential and important one, of establishing by an equal Taxation a permanent and Con- *Estatein stitutional Revenue, answering to all the exigencies of the State,* upon such Haldim an Estimate as your Majesty, shall, with the Advice of your Servants, direct °opy- to be laid before them. As to what regards the Complaints exhibited against Your Majesty's Governor, they relate to such a Variety of Circumstances and Facts, of *to in which we neither have, nor can have sufficient Information here, and do* Haldimand refer themselves so much to the General State of Publick Measures there, coPy- that we are humbly of Opinion, that it will be most advisable, as well in regard to the Publick Interest, as in Justice to all Parties, that the said Complaints should be transmitted to Your Majesty's Governor, with Directions to return to this Kingdom, in order to give Your Majesty an Account of the State of the Colony j 1 and that in the mean time a proper person should be authorized to administer Government there, under the Character and with the appointment of Lieutenant Governor Which is most humbly submitted. DARTMOUTH SOAME J E N Y N S Whitehall 2nd Sep" 1765. Signed J O H N Y O R K E J. DYSON An ORDINANCE, To alter and amend an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, passed the Seventeenth Day qf September 1764.2 Whereas by an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, made and passed the Seventeenth Day of September, 1764, Intitled, An Ordinance for regulating and establishing the Courts of Judicature in this Province ; His Majesty's has most graciously been pleaded to signify His Royal Will 1 On Oct. 24th, 1765, General H. S. Conway, who had succeeded the Earl of Halifax as Secretary of State for the Southern Department, July 12th, 1765, wrote to Murray that, in consequence of representations of disorders in the colony, he was to prepare to return to give an account of the Province. On April 1st of the following year he was formally recalled. He departed from Canada on the 28th of June, 1766, leaving Col. P. Aemilius Irving, President of the Council, as acting Governor until thearrhal-of Col. Guy Carleton. See Canadian Archives, Q 2, p. 464, and Q 3, pp. 14 & 173. 2 " Ordinances, made for the Province of Quebec, by the Governor and Council of the said Province, ate." Quebec, 1767. p. 72. Given also in Canadian Archives, Q 62 A 2, p. 515. CONSTITUTIONAL DOCUMENTS 173 SESSIONAL PAPER No. 18 •and Pleasure therein, by an additional Instruction1 to His said Excellency the Governor, " That the Welfare and Happiness«of His loving Subjects in this Province, " which will ever be Objects of His Royal Oare and Attention, do require that the said " Ordinance should be altered and amended in several Provisions of it, which tend to '• restrain His Canadian Subjects in those Privileges they are intituled to enjoy in com- " mon with his natural born Subjects :" And therefore it is His further Royal Will and Pleasure, That it should be declared, And by His Honour the President of His Majesty's Council, by and with the Advice, Consent and Assistance of His Majesty's Council of this Province, and by the Authority of the same, It is hereby Ordained and Declared, That all His Majesty's Subjects in the said Province of Quebec, without Distinction, are intituled to be impannelled, and to sit and act as Jurors, in all C rases civil and criminal cognizable by any of the Courts or Judicatures within the said Province. ' And for the m'ore equal and impartial Distribution of Justice, Be it further Ordained and Declared, by the Authority aforesaid, That in all civil Causes or Actions between British born Subjects and British born Subjects, the Juries in such Causes •or Actions are to be composed of British born Subjects only : And that in all Causes or Actions between Canadians and Canadians, the Juries are to be composed of Canadians only ; and that in all Causes or Actions between British born Subjects and Canadians, the Juries are to be composed of an equal Number of each, if it be required by either of the Parties in any of the abovementioned Instances. And be it further Ordained and Declared, by the Authority aforesaid, That His Majesty's Canadian Subjects shall and are hereby permitted and allowed, to practice as Barristers, Advocates, Attornies and Proctors, in all or any of the Courts within the said Province, under such Regulations as shall be prescribed by the said Courts respectively for Persons in general under those Descriptions. And be it further Ordained and Declared, by the Authority aforesaid, That this Ordinance shall continue in Force until His Majesty's Pleasure be further known herein ; and that so much of the said Ordinance of the said Seventeenth of September, 1764, as is not hereby altered and changed, shall and is hereby declared to be temporary only. GIVEN by the Honorable PATJLUS .J3MILIUS IRVING, Esq; President of His Majesty's Council, Commander in Chief of this Province, and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of QUEBEC, this 1st Day of July, in the Sixth Year of His Majesty's Reign, and in the Tear of Our Lord One Thousand Seven Hundred and Sixty-six. P : ^ M T s . IRVING. By Order of the Commander in Chief of the Province, J A . POTTS, D.C.C. 1 The additional instruction here referred to runs as follows :—" Additional Instructions toOur. trusty and well beloved the Honorable James Murray Esquire, Our Captain General & Governor m Chief in and over Our Province of Quebec and the Territories depending thereon m America. Given at Our Court at St. James's the Day of , ,, " We having taken into Our Eoyal Consideration the Ordinance enacted & published by you, on the 17t tdayof Septr 1764 for Establishing Courts of Judicature in Our Province of Quebec; & it appearing to Us that the "Welfare and Happiness of Our loving Subjects there, which will ever be Objects pi our Oare & Attention, do require, that the said Ordinance should be altered & amended m several Provisions ot it, which tend to restrain Our Canadian Subjects in those Privileges they are entitled to enjoy m common with our Natural born Subjects ; It is therefore Our Royal Will & Pleasure, & you are hereby directed 3c required, forthwith upon the Receipt of this, our Instruction, to Enact and Publish an Ordinance, declaring that all Our Subjects m our said Province of Quebec, without Distinction, &c" The remainder• MI men m the ordinance. This instruction was approved in Council, 17th Feb., 1766. See Canadian Archives, Dartmouth Papers, M. 383. p. 152. 174 CANADIAN ARCHIYE8 6-7 EDWARD VII., A. 1907 An ORDINANCE, In Addition to an Ordinance of His EXCELLENCY the Go'-ernor and Council of this Province, of the Seventeenth of September, 1764, intituled, " An " Ordinance for regulating and establishing the Coiffrts of Judicature in this Province."1 WHEREAS it has been often complained of, That there being no more than two Terms in the Year, appointed for holding His Majesty's, Supreme-Court of Judicature, and Courts of Common Pleas within this Province, is a Delay in obtaining Justice, and a great Prejudice to publicfc Credit ; for Remedy whereof, Be it Ordained and Declared, by His Honour the President and Commander in Chief of this Province, by and with the Advice, Consent and Assistance of His Majesty's Council, and by Authority of the same. It is hereby Ordained and Declared, That a new Term is by Virtue of this Ordinance established and addtd to the two former Terms, called Hillary and Trinity Terms, which said new Term shall be called Michaelmas Term, and shall commence and be held yearly, for the Dispatch of publick Business in the said Supreme Courts and Courts of Common-Pleas respectively, on every Fifteenth Day of October, with the same Number of Return Days therein as is practised in the said two other Terms, called Hillary and Trinity Terms, ^ i t h the same Liberty of appealing from the Judgments therein to be given, and all other Rights and Privileges as is and are established by an Ordinance of His Excellency the Governor and Council of this Province, of the Seventeenth of September, 1764, Intituled, " An Ordinance for regulating and estab- " lishing the Courts of Judicature in this Province," or by any other Ordinance in Addition to or in Amendment or Explanation thereof : And all Writs and Process whatsoever hereafter to be lawfully and regularly sued out of any of the said Courts, and made returnable the first or any other Return-Day of the said Term, called Michaelmas, by this Ordinance established, are hereby declared to be good and valid. GIVEN by the Honorable PAULTJS ^EMILITJS I R V I N G , Esq ; President of His Majesty's Council, Commander in Chief of this Province, and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of QUEBEC, this 26th Day of July, in the Sixth Year of His Majesty's Reign, and in the Tear of Our Lord One Thousand Seven Hundred and Sixty-six. P : MMIs, IR VIN G. By Order of the Commander in Chief of the Province, J A . POTTS, D.C.C. REPORT OF ATTORNEY *AND SOLICITOR G E N E R A L REGARDING T H E CIVIL GOVERNMENT OF QUEBEC.3 To The Right hoñble the Lords of the Committee of Council for Plantation affairs. M Y LORDS,—In humble obedience to your Order of the 19th of Novem' last wherein it is recited, that his Majestj having been pleased, to refer to your Lordships several memorials and Petitions from His Majesty's Subjects in Canada as well British as French, complaining of several of the Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature, and other Civil Constitutions ; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report3 made thereupon by the Lords Commrs for Trade and plantations dated the 2a Sept1 last and finding that the said Lords Commrs had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, That the said Memorials Petitions, and Reports (which were thereunto annèxd) should be ref err'd to Us, to consider and Report Our Opinion, and observations thereon, together with such alterations to be made in what is proposed in the said Report of the Lords Commrs for Trade and plantations, 1 " Ordinances, made for the Province of Quebec, &c." 1767. p. 79. Given also in Canadian Archives, Q. 62 A pt. 2, p. 518. 2 Canadian Archives, Dartmouth Papers, M 383, p. 170. 3 See note 3, p. 171. , ' CONSTITUTIONAL DOCUMENTS 175 SESSIONAL PAPER No. 18 and such other regulations & propositions, as we should think fitt to suggest for the forming a proper plan of Civil Government for the said province of Quebeck ; and to that end we were directed to take into our Consideration such parts of the annex't report of Governor Murray,1 upon the state of the said province as relate to the Civil Government thereof whilst the same was Annex'd to the Crown of France, And were also required to send for Lewis Cramahé2 Esq' Secretary to Governor Murray and Fowler Walker Esqr Ag nt for the said Province of Quebec, who were Order'd to attend us from time to time, to give us such further Lights and information as might be requisite for the purpose aforementioned. We have perused the several papers referr'd to us, together with the said two Reports and have also been attended by the Gentlemen named in your Order ; and upon the whole matter, beg leave humbly to submit to your Lordships such Reflections as have occurred to us in the Course of that imperfect consideration, which we have been Able at this Busy Season of the year to give to the Great subject of the Civil Government of Quebec and the propositions made by the Lords Commrs of Trade and plantations. My Lords, it is evident that Two very principal sources of the Disorders in the province have been. 1st The attempt to carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Canadian Advocates or Sollicitors to Conduct their Causes, nor Canadian jurors to give Yerdicts, even in Causes between Canadians only, Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgement ; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them. The second and great source of disorders was the Alarm taken at the Construction pat upon his Majesty's Proclamation of Oct. 7th 1763. As if it were his Royal Intentions by his Judges and Officers in that Country, at once to abolish all the usages and Customs of Canada, with the rough hand of a Conqueror rather than with the true Spirit of a Lawful Sovereign, and not so much to extend the protection and Benefit of his English Laws to His new subjects, by securing their Lives, Liberty's and prqpertys with more certainty than in former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Descent, Alienation and Settlement, which tend to confound and subvert rights, instead of supporting them. I s ' To the first of these Evils the Order made by your Lordships on the 15th of Nov1 last founded on the Report of the Lords Commrs of Trades and plantations, requiring the Govr & Commander in Chief of the province (by an additional Instruction) to Publish an Ordinance for admitting Canadian Jurors, in the several Cases therein express'd, and for permitting Canadian, Advocates, Attorneys, and Proctors, under proper regulations, provides an adequate Remedy.3 2 d To the Second Evil the Lords Commrs of Trade and plantations by their Report, have apply'd themselves with great Care, ability and Judgement, to suggest Remedys, by pointing out the defects in the late Ordinance of Septr 1764 and reforming the Constitution of Justice ; We concur with their Lordsps in the objections made to the Ordinance ; And upon the several articles of the Plan laid Down in that report, the following observations Occur to IJs, both for the Confirmation and Improvement of them. 1 st The first Article proposes a Court of Chancery consisting of the Govr a n d Council, who shall also be a Co .rt of Appeals, from whom an appeal will he to the King in Council ; By this Article the Lords of Trade very rightly mean to Invest the Gov' and Council with Two different Jurisdictions; The One as a Court of Equity, to give relief originally in that Capacity the other as a Court of Errors, to review m the second Instance the Judgements of the Court of Common Law, mentioned m the next Article. 1 See p. 40. 2 See note 2, p. 167. 3 See'Ordinance of July 1st., 1766; p. 172. 176 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 2 d The Second Article proposes a Superior Court of Ordinary Jurisdiction, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Justice should preside, Assisted by three puisne Judges ; These are required to be conversant in the French Language, and that one of them particularly should be knowing in the French usages. This proposition appears to us well conceive'd ; and we submit to your Lordships, whether it may not be adviseable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learning, Integrity and Conduct, who may prove of the greatest assistance to English Judge*. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethren. The new Judge of Vice Admiralty for America has appointments of £800 per Annum. gd rpkg 27w'rc¿ Article relates toTerms for the sitting of the Superior Court at Quebec, either according to the Terms appointed at Westminster, or as may be more convenient. This matter must be accomodated to the Seasons, Climate and convenience of the people in their Tillage and other General employments, therefore it seems proper to be left to the future Judgement of the Govr Chief Justice, and Principal servants of the Crown, entrusted with the Government of the province and ought to be fix'd by Ordinance. 4 th The Fourth Article proposes four Sessions of Assize, Oyer and Terminer, and Goal Delivery a"t Quebec, with like special Commissions, once or oftener in the year at Trois Rivieres and Montréal. We submit to your Lordships, that it may be unnecessary to lay down any particular Rules for holding/owr Sessions in the manner mentioned at Quebec ; because all Civil and Criminal Causes arising in that District may be tried at Bar in Term time, or (as the legal Expression is) in Bank By Order of the Judges, or under the General powers of the supreme Court, As to the Circuit Courts to be held once, or perhaps twice in the year (which seems better) at Trois Bivieres and Montreal, We think, that it may be proper to require that the Judges shall continue in each of those places, at the least, for a Certain Number of Days to give time and opportunity for the resort of partys and the convenient Dispatch of Business, in like manner as was done by Henry the 8th in establishing the Courts of Great Sessions for Wales, and by the Parliament in his late MajtB Reign, when the Circuit Courts were settled for Scotland. 5 a The Fifth Article recommends the Distribution of the province into three Countys or Districts, of which, Quebec; Montreal, andZVens Bivieres shall be the three Capital Towns, and that an Annual sheriff shall be named for each. We are humbly of opinion that this Distribution of the province is more natural and convenient than the plan lately followed by the Governor and Council, and it will be more agreeable to the People, as it is conformable to their Antient Division of the Country. But considering the difficulty of procuring English and protestant sheriffs, «specially at Trois Bivieres (where at present only Two persons who are half pay Officers reside thus qualified) it may deserve consideration whether such Sheriff should not serve longer than one year, till such time as the gradual increase of Inhabitants may facilitate an Annual Rotation ; or whether the Annual Sheriff of Québec may not also serve that office for Trois Bivieres This will oblige him, to appoint two Deputys or under Sheriffs, that is one for each District, And if this method be taken, the Sheriff may be made an Annual Officer, because Quebec can afford sufficient number of proper persons to supply the Rotation, and Montreal, (it is agreed) Can do the like. ga rpne gfafo Article proposes to give the Justices of Peace in the three several Districts, at their General Quarter Sessions, Power to determine finally all causes not exceeding the value of Ten pounds (the Title to Lands not being in Question) with a Jury where it exceeds Five pounds an 1 without one where it falls under that sum, it gives also to Two Justices in Petty Sessions, similar Authority in similar cases, where the value of the matter in dispute is not more than Forty Shillings. The latter Authority appears to us well proposed ; but we submit, whether it may not be better to reserve the Jurisdiction in matters exceeding that value as far as Ten pounds to be determined in Quebec, By proceeding in nature of the Civil Bill in Ireland before the CONSTITUTIONAL DOCUMENTS 177 SESSIONAL PAPER No. 18 Judges of the superior Court, or by proceeding in Nature of the summary Bench ; Actions at Barbadoes, and in like manner in the Circuit Courts at Trois Rivieres and Montreal twice in the year ; The value of Ten pounds is considerable in such a Colony and the reputation of the Justices of Peace is, as yet scarce enough establish'd for such a Jurisdiction ; Under this Article We beg leave to suggest that in the Commission of the Peace for each District it may be useful and popular and endear his Majesty's Government to his new Subjects ; if one or Two Canadians should be appointed Justices, with the others who are British, particularly if Protestants can be found fit for that Office. 7 th The seventh and last point mentioned in the Report of the Lords of Trade, on which we shall observe, is that Article, wherein they propose, that in all Cases where Bights and Claims are founded on events prior to the Conquest of Canada the several^ Courts shall be Govern'd in their proceedings, by the French usages and Customs which have heretofore prevailed in respect to such property. This proposition is undoubtedly right, as far as it goes, in respect of Cases which happen'd, antecedent to the Conquest ; but we beg leave to take Occasion from hence, to enlarge a little on this subject of the Rule of Judgement to be observed in the Courts of Quebec as it is of the greatest moment to the honor and Justice of the Crown, and to the Peace and prosperity of the Province. There is not a Maxim of the Common Law more certain than that a Conquer'd people retain their antient Customs till the Conqueror shall declare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence ; and therefore wise Conquerors having provided for the security of their Dominion, proceed gently and indulge their Conquer'd subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained the force of Laws, It is the more material that this policy be persued in Canada ; because it is a great and antient Colony long settled and much Cultivated, by French Subjects, who now inhabit it to the number of Eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by his Majesty in this province will answer all the ends of their trust, both as to the King and to the people, if their conduct in Judicature be modell'd by the following General Rules. 1 st First in all personal actions grounded upon Debts, promises, Contracts and Agreements, whether of a Mercantile or other nature, and upon wrongs proper to be compensated in damages, to reflect that the substantial maxims of Law and Justice are every where the same. The modes of proceeding and Trial, and perhaps in some degree also the strict Rules of Evidence may vary, but the Judges in the province of Quebec «annot materially err, either against the Laws of England, or the antient Customs of Canada ; if in such Cases they look to those substantial maxims. 2 d Secondly in all suits or Actions relating to Titles of Land, the Descent, Alienation, Settlements and incumberances of Seal property, We are humbly of opinion, that it would be oppressive to disturb without much and wise deliberation and the Aid of Laws hereafter to be enacted in the province the local Customs and Usages now prevailing there ; to introduce at one Stroke the English Law of Real Estates, with English modes of Conveyancing Rules of Descent and Construction of Deeds, must occasion infinite confusion and Injustice. British Subjects who purchase Lands there, may and ought to conform to the fix'd local Rules of Property in Canada, as they do in particular parts of the Realm, or in the other Dominions of the Crown. The English Judges sent from hence may so&n instruct themselves by the assistance of Canadian Lawyers and intelligent Persons in such Rules, and may Judge by the Customs of Canada, as your Lordbhips do in Causes from Jersey by the Oubtom of Normandy ; I t seems reasonable also, that the rules for the Distribution of personal property m Cases of Intestacy and the modes of assigning and Conveying. I t should be adhered too for the present. 3* Thirdly in all suits entertained before the Gov' and Council, as a Court of Chancery or Equity, it is obvious, that the General Rules of Law and Justice must be the same as in the other Courts, according to the subject matter of the suit with this , 18—3—12 178 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 difference only, t h a t t h e relief is more compleat a n d specific a n d adapted to supply t h e Defects, or allay the Rigor of those Rules. 4 t h Fourthly in Criminal Cases, whether they be Capital Offences or misdemeanors, it is highly fitting (as far as may be) t h a t t h e Laws of England be adapted in t h e Discription a n d Quality of t h e offence itself, in the manner of proceeding to charge t h e p a r t y to Bail or detain him. The Certainty, t h e Lenity of the English A d m i n i s t r a t i o n of J u s t i c e and the Benefits of this Constitution will be more peculiarly and essentially felt by his Majesty's Canadian Subjects, in matters of Crown Law, which touch t h e Life, Liberty and P r op e r t y of the Subject, t h a n in the conformity of his Courts to t h e English Rules of Real and Personal Estates. This Certainty and this L e n i t y are t h e Benefits intended by his Majesty's R o y a l proclamation, so far as concerns J u d i c a t u r e . These are Irrevocably G r a n t e d and o u g h t to be secured to his Canadian subjects, according to his Royal W o r d . For this purpose it may not be improper upon t h e appointment of a new Gov' with a new Commission revised and Consider'd b y your Lordships, to direct t h a t Governor to publish a n e x : planatory proclamation in t h e Province, to quiet the minds of t h e People as to t h e t r u e meaning of t h e Royal proclamation of Oct 1 1763 in Respect to their local Customs a n d usages, more especially in Titles of L a n d and Cases of Re a l property. ( 5*11 Fifthly in Rules of process a n d t h e Practice of the Courts. W e beg leave to suggest, t h a t it m a y be expedient to order t h e new Chief Justice, 1 with t h e assistance of the other Judges, to be appointed and t h e A t t o r n e y General 2 of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, a n d the convenience of t h e Suitors. The Forms of proceeding out to be simple easy and as summary a n d expeditious as may consist with t h e advancement of right and t h e protection of Innocen' e. useful hints may be t a k e n not only from t h e supreme Courts of Westminster, b u t from the practice of t h e Courts in Wales, and from m a n y of t h e Colony s. Some time will be necessary, before such a p i a n can be framed and experience alone can perfect it. A s soon as they shall have prepared it, t h e Governor and Council m a y enact it by an Ordinance and transmit; t h e same in t h e accustomed manner, to b e laid before his Majesty for his Royal approbation. ' All which is humbly submitted &c° C. Y O R K E W m D E G R E Y A p r i l 14"1 1766 Endorsed : — R e p o r t of t h e A t t o r n e y and Sollicitor General, relative to the Civil Government of the province of Quebec. 13a 1 M a y 1766. R e a d at t h e Committee and the Board of Trade Order'd to prepare a d r a u g h t of a n additional Instruction thereupon &c. N ° 9. 1 On Feb. Sth, 1766, an official notice from the Secretary of State was sent to Chief Justice Gregory, stating that in consequence of his conduct His Majesty had no further occasion for his services and that Mr. Wm. Hey was appointed to succeed him. On the 17th of the same month, an official notice was sent to the Governor of Quebec that Hey had been appointed to succeed Gregory as Ohref Justice^ and directing that he should be invested with the office. See Q 3, pp. 1 & 2. For Hey's Commission as Chief Justice, see p. 190. 2 On March 6th, official notice from the Secretary of State was sent to Geo. Suckling that there being no further occasion for his services as Attorney General, Mr. Francis Maseres is appointed to succeed him. On March 18th official notice was also sent to the Governor of Quebec, of the appointment of Maseres in the place of Suckling. See Q 3, pp. 3 & 4. .Of Gregory and Sucklmg Murray reported, that "our chief Judge and Attorney General are both entirely ignorant of the Language of the Natives, are needy in their Circumstances and tho' perhaps good Lawyers and Men of integrity, are ignorant of the World, consequently readier to Puzzle and create Difficultys then remove them. " Q 2, p. 378. V CONSTITUTIONAL DOCUMENTS 179 SESSIONAL PAPER No. 18 CONSIDERATIONS ON T H E E X P E D I E N C Y OP PROCURING AN ACT OP P A R L I A M E N T FOR T H E SETTLEMENT OF T H E PROVINCE OF QUEBEC (BY BARON MASERES) LONDON P R I N T E D I N T H E Y E A R MDCCLXVI. 1 The Difficulties that have arisen in the government of the province of Quebec, and which are likely still to occur in it, notwithstanding the best intentions of those who are intrusted by His Majesty with the administration of affairs there, are so many and so great that the Officers, whom His , Majesty has been pleased of late to nominate to the principal departments in that government, cannot look upon them without the greatest uneasiness and apprehension, and despair of being able to overcome them without the assistance of an act of Parliament to ground and justify their proceedings. Two nations are to be kept in peace and harmony, and moulded, as it were, into one, that are at present of opposite religions, ignorant of each others language, and inclined in their affections to different systems of laws. The bulk of the inhabitants are hitherto either French from old France, or native Canadians, that speak only the French language, being, as it is thought, about ninety thousand souls, or as the French represent it in their Memorial, ten thousand heads of families. The rest of the inhabitants are natives of Great Britain or Ireland, or of the British dominions in NorthAmerica, and are at present only about six hundred souls ; but, if the province is governed in such a manner as to give satisfaction to the inhabitants, will probably every day increase in number by the accession of new settlers for the sake of trade and planting, so that in time they may equal or exceed the number of the French. The French are almost uniformly Roman Catholics : there were only three Protestant families among them at the time of the conquest of the province ; and probably that number is not much increased among them, as no endeavours have been used for their conversion. But, what is more to be lamented, is that they are violently bigotted to the Popish religion, and look upon all Protestants with an eye ' of detestation. This unhappy circumstance has been, and is, still likely to be, a ground of enmity and disunion between the Old and new inhabitants. The French insist, not only upon a toleration of the public worship, but on a share in the administration of Justice, as jury-men and justices of the peace, and the like, and on a right, in common with the English, of being appointed to all the offices of the government. The English, on the contrary, affirm, that the laws of England made against the Papists ought to be in force there, and consequently that the native Canadians, unless they think proper to turn Protestants, ought to be excluded from all those offices and various branches of power, and in some degree they seem to be supported in this opinion by a paro of the governor's commission ; I mean that part which enables him to call and constitute a general assembly of the freeholders and planters of the province : for it is there expressly provided, that no person elected to serve in such an assembly, shall sit and vote there till he has subscribed the declaration against Popery prescribed by the statute 25. Car. 2 which would effectually exclude all the Canadians. Toleration of The grounds upon which the French demand a toleration of the Catholic Oath^r"8 " r e n g i o n J a r e partly the reasonableness of the thing itself, they being almost Religion. universally of that religion, and partly the stipulation made on that behalf 1 Francis Ma seres was appointed Attorney General of the Province of Quebec early in March 1766, though his Commission, as issued at Quebec under the authority of Governor Carieton, is dated kept. 25th, 1766. These " Considerations " were written by Maseres before he went to Quebec, and are of interest not only for the points with which they deal, but in comparison with other important papers afterWards published by him and relating to the question of the government and laws of the Province of Quebec. Representative examples of his later proposals and discussions are included m this volume. 18—3—12 J 180 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 in the fourth article of the definitive treaty of peace, and which is expressed in these words : " His Britannic Majesty on his side agrees fco grant the " liberty of the Catholic religion to the inhabitants of Canada ; he will " consequently give the most effectual orders that his new. Roman Catho- " lie subjects may profess the worship of their religion, according to the " rites of the Romish church, as far as the laws of Great Britain permit." These last words, " as far as the laws of Great Britain permit," render the whole stipulation in favour of this toleration very doubtful ; for it may reasonably be contended, that the laws of England do not at all permit the exercise of the Catholic religion. For in the first place, these words seem to refer to some degree of toleration of the Catholic religion, already actually subsisting in some part of the British dominions, and by virtue of the laws of Great Britain ; and if so, they convey no right to any toleration at all, because no degree of toleration is already actually allowed by the laws of Great Britain in any part of the British dominions. 2 dlJ , Supposing these words not to refer to any toleration of the Catholic religion now actually subsisting by virtue of the laws of Great Britain, but to mean only such a degree of toleration as (though it does not actually subsist in any of the British dominions by virtue of the laws of Great Britain, yet) may subsist without a breach of the laws of Great Britain, yet still there will be great reason to think that the laws of Great Britain do not permit this toleration in any degree. For in the first place, the stat. of 1 Eliz. cap. i. for restoring the supremacy in ecclesiastical matters to the Crown, expressly extends to all the Queen's future dominions, as well as to those belonging to the Crown at the time of making the act. The words of the 16tlL section are as follows : '• Be it enacted, &" that no foreign " prince, person, prelate, &? spiritual or temporal, shall at any time here- " after use or exercise any manner of power or jurisdiction, spiritual or " ecclesiastical, within this realm, or within any other your Majesty's " dominions, or countries, that now be, or hereafter shall be, bub shall be " clearly abolished out of this realm, and all other your highness's domi- " nions for ever." And in the next section, all this ecclesiastical jurisdiction or supremacy, is united and annexed for ever to the Crown. It is clear therefore that the King is, by the laws of Great Britain, supreme head of the church in the province of Quebec, as well as in England itself. Now it is the very essence of Popery, that the Pope, and not the King, is supreme in all spiritual matters. Consequently this essential article of Popery cannot, by virtue of the stipulation in the definitive treaty, be tolerated;, but all appeals to the Pope, all exercises of ecclesiastical authority in Quebec, by the Pope, or his legates, or any other person commissioned by him, all nominations to benefices, or to the bishoprick of the province, (which is a power the Pope has hitherto exercised, at least so far as to approve the bishop before he entered upon the functions of his office) must now be illegal and void. But this act goes a great deal further ; for it requires all ecclesiastical persons whatsoever,
pp. 124-151, but are given in a printed version published in 1809.
CANADIAN AROEIVMS
‘ 6-7 EDWARD VII., A. 1907
tish nation ; that consequently by the will of the conqueror is to be understood the will of the British nation, which in all matters relating to legislation is Expressed by the King and Parliament, as in all matters relating to the
executive power it is expressed by the King alone ; that therefore the
Parliament only have a power to make laws for the province of Quebec, or
to introduce any part of the laws of Great Britain there, or to delegate
such a power of making or introducing laws to any other hands, notwithstanding it may happen that in fact such a power may inadvertently have
been delegated to the governor and council of the province by a private
instruction of the King alone. For if the contrary doctrine were true, that
the King alone had the whole legislative power in the province of Quebec,
it would follow, that not only all the conquered Canadians, but all the new
English settlers there, would become slaves or subjects to an absolute and
arbitrary government, the moment they set their foot there. The King
might introduce the severest laws, and most cruel punishments, the inquisition, the rack, and the wheel, and might make all his subjects there, both
old and new, tenants at will of their lands and other property, and tax
them in any degree whensoever he thought fit. He might keep a standing
army there, without consent of Parliament, and raise money to pay them
by his own authority, and with such an army, a prince of James IPs. disposition, might oppress the liberties of the other adjoining colonies,or even
of Great Britain itself. These are dreadful consequences, but follow clearly
from such a doctrine ; for which reason the doctrine itself ought not to be
maintained. The other opinion, that the conquered people, when once
ceded to the Crown of Great Britain, are thereby admitted to be British
Subjects, and immediately intitled to participate of the liberties of other
British Subjects, and are therefore to be governed according to the rules of
the limited monarchy of Great Britain, by which the executive power is
vested solely in the King, but the power of making laws and raising taxes
in the King and Parliament, is a much safer and more reasonable opinion.
It is therefore to be wished, that an Act of Parliament might be
obtained that at once declared what laws should take place in the province
of Quebec, whether the laws of the conquered, or the laws of Great Britain,
or some of the laws of the conquered, and some of the laws of Great
Britain ; Or whether any other laws should be introduced there, more
peculiarly fitted to the circumstances of the province ; and if any, then
what laws should be so introduced : Or, if this detail be thought too
troublesome for the Parliament to enter upon, and their informations concerning the state of the province should be deemed to be as yet too imperfect to enable them to go through such a business with propriety, then it
is to be wished that an act of Parliament may be obtained, by which such
a legislative power of making laws and ordinances for the good government of the province might be delegated to the governor and council, as
has been already exercised by them by virtue of an instruction from the
King alone. By such a delegated parliamentary authority, they may
enquire into the state of the Canadian laws and customs already in force
there, and may revise them and reduce them into writing, and enact such
of them as shall be found beneficial to the province, and fit to be continued ; and may introduce such parts of the laws of England, as they shall
think to be for the advantage of the province ; and likewise as occasion
offers, make such other new laws and regulations as shall be necessary for
the good government of it : And in so doing they will have a due regard
to the heads of advice suggested by Mr. Attorney Yorke, and to such other
intimations and instructions as the government shall think proper to com
munieate to them. And lest this legislative power should be abused or
injudiciously executed by the governor and council, there might be a clause
in the act of Parliament directing them to transmit these several laws
*
CONSTITUTIONAL DOCUMENTS 183
SESSIONAL PAPER No. 18
and ordinances to the King and Privy Council in England, to be by His
Majesty in council allowed or disallowed, as his Majesty shall see cause.
Only they should be in force till disallowed, and, if not disallowed within
a certain time, as for instance two years, they should then be in force for
ever, unless repealed by act of Parliament. Laws and ordinances founded
on such a parliamentary authority will easily find obedience from the
people, which it is to be feared no others will ; and the judges of the province will carry them into execution with ten times as much spirit and
confidence as if they were doubtful of their legal validity.
Suppose a Criminal in Canada to be guilty of an offence that is capital
by the laws of England, but is not so by the laws of Canada that have
hitherto been received, (a supposition that is no way dificultas the criminal,
law of England abounds with capital offences) in what manner shall
‘ such a man be punished, unless there is a parliamentary declaration determining the punishment that shall attend his crime? Could any lesser
authority warrant the infliction of death for such a crime ? Or would any
judge chuse, though he should be sure of never being called to account for
it, to pass such a sentence without the highest authority ? But if the
punishments of crimes be settled by authority of Parliament, whether
immediately by the Parliament itself, or mediately by ordinances made by
the governor and council of the province, by virtue of a legislative authority
communicated to them by act of parliament, the judges will be under no
other difficulty what punishments to inflict upon the several criminals,
that come before them, than they are in Great Britain itself.
Some persons are of opinion, that the laws of Great Britain do at once
take place in a conquered province, without any authoritative introduction
of them, either by the King, or Parliament. But this opinion seems destitute of foundation, and is sufficiently refuted by the advice of the learned
M
r
Yorke,1
His Majesty’s attorney-general, who has advised that the Canadians should be permitted to retain their own laws, relating to inheritances
and the alienation of their real estates, which would be impossible without an
act of Parliament for that purpose, if the whole System of the laws of England did ipso facto become the law of the province upon its being conquered,
or ceded to the Crown. Indeed, the whole system of the laws of England,
taken in the gross, and without a selection, would be by no means a blessing
to the Canadians. The game-laws, the poor-laws, the fictions and subtleties
in various sorts of actions and conveyances, the niceties arising from the
doctrine of uses, and the tedious and operóse instruments founded on them,
would really be a great misfortune to them ; and from their novelty and
strangeness, would be thought to be a much greater. This doctrine therefore of the instant validity of the whole mass of the laws of England
throughout the conquered Province cannot be true. And if the whole system of those laws is not valid there, then certainly no part of them can be
so. For if they are, then who shall distinguish which of them are valid
there and which are not 1
I t may therefore be concluded, as at first, that none of the laws of England are valid in the conquered province ipso facto by virtue of the conquest, or cession, without a positive introduction there by a sufficient authority : and this sufficient authority seems, for the reasons already mentioned,
Settlement of t o b e o n lV
t a e Parliament of Great Britain.
the Revenue. The next great difficulty that calls loudly for the interposition of Parliament, is the low state of the revenue of the province of Quebec. Under
the French government this revenue amounted to about thirteen thousand
pounds per annum, but is now sunk to less than three thousand. The
cause of this is the change in the course of trade, by which means it falls
1
See Report of Yorke and de Grey on the Civil Government of Quebec, p. 174.
CANADIAN ABCHIVE8
6-7 EDWARD VU-, A. 1907
out, that those taxes which produced the principal part of the revenue, now,
though still in force, produce nothing at all. The principal of those taxes
was a duty upon French wines, which were imported there from old France
in great quantities. This single duty produced 80001. a year ; now it produces nothing, because no wines are allowed to be imported there from old
France. Nor would it be replaced by an increase of the consumption of
Spanish or Portuguese wines, supposing the tax might be construed to
extend to those wines ; for the Canadians do not like them, and will not
drink them. From a like cause, another duty which formerly made a considerable part of the public revenue, which was a duty upon French brandies
imported from old France, and French rums imported from the French
West-India Islands, now produces nothing at all. From these causes the
revenue is sunk so low that it is insufficient to defray the expence of the
civil government, though the establishment of it is so very moderate. It is
therefore become necessary, either for the treasury of England to issue a
sufficient annual Sum to make good the salaries of the several officers of the
government, or that some new tax should be imposed upon the inhabitants,
in aid of those which by reason of these accidents have failed, sufficient for
all the purposes of the government. If this latter method should be adopted,
it is presumed that the authority of Parliament will be the proper power to
have recourse to, that there maybe no colour or pretence for contesting the
legality of the taxes so imposed. This power also the Parliament may exercise, either immediately itself by imposing a tax upon the province of Quebec this very session, Before the Parliament rises, or it may delegate to the
governor and council a power to impose such taxes as they shall find necessary for the support of the government, subject, as above, to the disallowance of the King and Privy Council, in order to prevent abuses, and with
proper clauses of restriction and appropriation of the money so raised, in
order to prevent a misapplication of it, either by the Officers of the province, or at home.
If the Parliament should think proper itself to lay a tax upon the Province, information has been received’from persons well acquainted with the
state and trade of the province, that British spirits would be the commodity
that could best bear a duty, and would produce the best revenue ; that there
are annually imported into the province about 250,000 gallons of these
spirits, and that they might bear a duty of three-pence a gallon without
hurting the trade, but not more ; and this would produce about30001. a year.
The malicious and desperate enemies of an upright and popular Administration, may perhaps traduce such a measure as inconsistent with their
late indulgent conduct with respect to the other American colonies in the late
repeal of the stamp-act. But the difference of the cases is too striking to
make such a calumny in the least degree formidable. The other American
colonies have internal legislatures of their own, who have been permitted,
ever since their first establishment, to be the assessors of all their internal
taxes ; and, as they had not abused this privilege with which they
had been so long indulged, and further, as their exercising this
privilege spemed to be no way prejudicial to the mother-country,
it seemed to have been a harsh and ungracious measure in the
Parliament, by the advice of the late ministry, to revive and exert
a dormant and inherent right of taxing them ; which however the
whole Parliament, excepting a very few members of both houses, have
highly declared themselves to be pjssessed of. But the Canadians have no
such internal legislature, no such usage of taxing themselves by representatives of their own chusing. Unless therefore they have the singular
privilege of not being liable to be taxed at all, they must be liable to be
taxed either by the King alone, or by the King and Parliament ; and the
milder of these two opinions is, that they are taxable by the King and
CONSTITUTIONAL DOCUMENTS 185
SESSIONAL PAPER No. 18
Parliament. Those therefore who should promote the taxing t h e m byauthority of Parliament, would act like t h e truest friends to civil liberty,
a n d w i t h t h e same spirit of mildness a n d moderation t h a t conducted them
in t h e repeal of the stamp-act.
If it should be said, t h a t the province of Quebec ought to have an
assembly in the same manner as the other American colonies, a n d t h a t t h e
taxes ought to be imposed by t h e consent of such a n assembly, it will b e
sufficient for t h e present purpose, a n d to support t h e measure here suggested of taxing them by authority of Parliament, to answer, t h a t as y e t
no such assembly has been constituted ; a n d till an assembly is erected,
whether t h a t time be short or long, t h e safest and mildest method of imposing taxes is to do it by authority of Parliament.
Of an A s to the erecting a n assembly in t h a t province, it is a measure which
Assembly probably will not for some years to come be found expedient. If a n
assembly were now to be constituted, a n d the directions in the governor’s
commission, above alluded to, were to be observed, by which none of t h e
members elected there are to be permitted to sit and vote in the assembly
till they have subscribed t h e declaration against Popery, it would amount
to an exclusion of all t h e Canadians, t h a t is, of t h e bulk of t h e settled
inhabitants of the province—x
A n assembly so constituted, might pretend t o
be a representative of t h e people there, b u t in t r u t h it would be a representative of only the 600 new English settlers, and an i ns t r u m e n t in t h e i r
hands of domineering over t h e 90,000 French. Can such an assembly be
t h o u g h t just or expedient, or likely to produce harmony and friendship
between the two nations ? Surely i t m u s t have a contra ry effect.
On the other hand, i t m i g h t be dangerous in these early days of t h e i r
submission, to admit t h e Canadians themselves to so gre at a degree of
power. .Bigotted, as t h e y are, to the Popish religion, unacquainted with,
and hitherto prejudiced against t h e laws a n d customs of England, they
would be very unlikely for some years to come, to promote such measures, a s
should gradually introduce t h e P r o t e s t a n t religion, t h e use of t h e E n g l i s h
language, of the spirit of t h e British laws. I t is more probable t h e y would
check all such endeavours, a n d quarrel with t h e governor a n d council, or
w i t h the English members of t h e assembly, for promoting them. A d d t o
1
This question arose in a very practical form in the island of Grenada, which, together with Canada,
was transferred from France to England by the Treaty of 1763. It was referred to Attorney General
Yorke for his opinion, in 1766. The case and opinion are summarised as follows :—” Case submitted to
the Hon. O. Yorke’with regard to Grenada, where the Prench residents have taken the oaths of allegiance,
supremacy, and abjuration, but cannot make the declaration against transubstantiation. Of the 24 members composing the Assembly, they desire to have six chosen out of their own people ; and of the 12 members in Council, they desire two ; and one justice of the peace in each quarter, of which there are four ;
and they are now applying to the Administration to be indulged in these respects, In the Leeward
Islands, Barbadoes, and Jamaica, they do not admit a person to be of the Council, Assembly, or a justice
of the peace, but such as not only take the oaths of allegiance, supremacy, and abjuration (which all the
Prench at Grenada have done), but also subscribe the^ declaration against transubstantiation ; and m
Grenada they follow the same rule. The questions submitted are—
” I . ‘Can or ought the Act directing the test, made so long before the conquest of these countries,
inhabited by Roman Catholics only, to be considered as a prohibitory law, excluding every Roman Catholic from any civil office in his own country ? Or ought it to be considered as a law of Great Eritam not
extending” to conquests ? ‘
” I I . ‘ Is it in the power of the King, on any good consideration, to dispense with the test_ against
transubstantiation in his new subjects in these conquered countries, either for ever or for any certain time ‘!
Or can this test be dispensed with by Act of Parliament only ? ‘
” Mr. Yorke’s reply is written on the blank pages of the ‘ case’ submitted to him, apparently by hU
own hand. He says that in the new conquests, ceded by the late treaty, it is matter of political judgment
whether His Majesty will require it to be taken by all persons who may become members of the Assembly
or Council, or be appointed justices of the peace ; but that the statute does not extend to them. The
treaty of peace stipulates only the free exercise and toleration of the Roman Catholic religion in the countries ceded by Prance. His Majesty is still the judge, whether he will demand the test from persons
employed in offices of trust, or in any function relating to Government, so as to exclude his new subjects
from any share in it. Prench Papists will readily enough renounce the supremacy of the Pope, and disclaim a foreign ecclesiastical jurisdiction ; but the test relates to a tenet of their religi on and worship and
thesefore cannot in conscience be taken by them. – . , , , . , „™ „„,
” It is mentioned that Canada was inhabited by 80,000 Prench Roman Catholics, and 200 or 300
English only.” Calendar of Home Office Papers ; 1766-1769, No. 403.
186 CANADIAN AM0HIYE8
6-7 EDWARD VI!., A. 1907
this, that they are almost universally ignorant of the English language, so
as to be absolutely incapable of debating in it, and consequently must, if such
an assembly were erected, carry on the business of it in the French language, which would tend to perpetuate that language, and with it their
prejudices and affections to their former masters, and postpone to a very
distant time, perhaps for ever, that coalition of the two nations, or the
melting down the French nation into the English in point of language,
affections, religion, and laws, which is so much to be wished for, and which
otherwise a generation or two may perhaps effect, if proper measures are
taken for that purpose. And further it may be observed, that the Canadians themselves do not desire an assembly, but are contented to be protected in the enjoyment of their religion, liberties, and properties, under the
administration of his Majesty’s governor and council. If, to give a proper
stability to this mode of government, it is carried on by authority of
Parliament, and is properly superintended, as no doubt it will be, by the
wisdom of his Majesty’s Privy-Council, they will think themselves extremely happy under it. The persons who most desire the immediate constitution of an assembly, are some of the six hundred English adventurers, who
probably are ambitious of displaying their parts and eloquence in the
characters of leading Assemblymen.
But if an assembly is to be constituted, even this too had better be
‘done by act of Parliament than by the King’s single authority, as it is no
less than severing from the general body of his Majesty’s dominions a particular part of them, with respect to the purposes of making laws and
imposing taxes. Could the King, if he thought proper, and a particular
county of England was to desire it of him, sever that county from the rest
of England, and no longer summon any of its members to Parliament, but
instead thereof constitute a little Parliament in that County itself, that
should make laws and lay taxes for the inhabitants of that single county ?
I t is presumed that he could not : and the erecting an assembly in a conquered province is an act of much the same nature. I t is true indeed, that
some of the American charters and assemblies owe their rise to this authority :
but this was in the reign of the Stuarts, who were fond of extending their
prerogative ; and, on account of the inconsiderableness of the colonies
at that time, these things were then unnoticed ; so that they do not prove
the strict legality of the practice. Since that time these charters have been
put in practice by the colonies, and acquiesced in by the mother-country,
and in some measure recognized in Parliament ; and this usage, acquiescence and recognition, are in truth their best support.
But if an assembly is to be constituted, in which the Catholics or Canadians are to be admitted, (as in justice and reason they ought to be, if any
assembly at all is to be erected) the authority of Parliament seems to be
still more necessary to give validity to such a measure.
For the reasons that have been just now mentioned, it seems evident,
that the measure of erecting an assembly in the province of Quebec is somewhat premature. How soon it will become expedient and proper, experience only can shew. But in the mean time, however short that time may
be, it seems necessary to have recourse to the authority of Parliament for
settling the government of the province, and removing the difficulties that
obstruct the settlement in the three great articles of Religion, Law, and
Revenue. I t is therefore the humble request of all the gentlemen who
have lately been appointed to the principal offices in the government of
Quebec, to his Majesty’s Ministers of State, that they would use their
influence and endeavours to procure such an act of Parliament as they shall
upon the whole matter think to be necessary, to remove the difficulties that
have been stated, and to enable the said gentlemen to administer the
government of that province in their several departments, with security to
themselves, and advantage to the province.
CONSTITUTIONAL DOCUMENTS 187
SESSIONAL PAPER No. 18 ‘ •
ACTING GOVERNOR I R V I N G TO T H E LORDS OF TRADE. 1
Copy. QUEBEC 20th August 1766.
M Y LOBDS,
As the Courts of Justice are now sitting, I have an opportunity to observe the
good Effects of the Additional Instruction,2
which, by assuring to the Canadians
the Priviledge of being Jurors, and of having Lawyers that can speak their own
Language, has contributed very much to quiet their minds, not a little alarmed by
the long Delay which the matters that Captain Cramahé was charged with, met with in
London. All that to me seems wanting at present, is a permanency to the inferior
•Court, and an Augmentation of the Terms of its sitting. The Slowness of the Proceedings of the Superior Court, has rendered the inferior one of great Utility to the Publick,
and the “small Fees taken in it, have prevented the people from becoming the Prey of
attornies. The Chief Difficulty that has occurred is what happens in appeals from it to
the Superior Court ; as the Proceedings are threatened to be reversed on Account of
deviation from the English Form, without entering into the merits of the Cause, or the
Reasons upon which the Judgment was founded : The Canadian Advocates must have
been inspired to have been able in so short a time to comply with Forms to which they
were all Strangers, especially as the Ordinance directing the Nature of Proceedings in
that Court has never been published, on Account of the uncertainty the Council was
in, whether His Majesty would approve of what had already been done in these Matters
or notGovernor Murray had the Honor last Summer to transmit to your Lordships a
Plan given by the Attorney General for the Administration of Justice, and agréable to
that of Halifax. It appear’d to the Council rational and Simple. I t is to be hoped
the new Chief Justice will bring over full Instructions relative to these Matters.
As there are no Protestants residing in the distant parts of the Province, who are
in any respect fit to be made Justices of the Peace, it would be very usefull, if a Latitude
could be given to increase a little the Power of the Bailliffs in these places.
Some more certain Authority to the Judges of the Inferior Court to adhere to the
Coutume de Paris in their Decisions would render the present System of administ’ring
Justice easy to the people, and a certain, though moderate, method to introduce our
Laws, as far as they are favorable to Liberty, into the Province. The Government
here, tho’ they wish to secure the People’s Possessions, and the Peace of their Families
by adhering to their Customs and Usages, relative to the tenure of their Lands, and
their manner of Succession, are far from intending that the-Judges should have the
same arbitrary power of proceeding as the French Judges had ; a Power, which is
always dangerous, and which I am certain the Judges, named by Governor Murray for
the inferior Court, are very far from aspiring after.
In order tô expedite Business, as well as forward the levying the Duties ordered
by His Majesty in Council, to be continued in this Province, an Additional Term has
been found necessary, as you will see by an Ordinance,3
which I have the honor to
Enclose to your Lordships, as well as one proposed for regulating pilotage in the River
Saint Lawrence; this last has not been published, as before next Season there will be
sufficient time for your Lordships to signify either your Approbation or disapprobation
of it ; a Circumstance, that I could wish would attend every Ordinance, as appeals are
always attended with Inconvenience.
1
Canadian Archives Q 3, p. 249. 2
See Ordinance of July 1st, 1766, and note to same, p. 172. 3
See Ordinance of July 26th, 1766, p. 174.
188 CANADIAN ARCHIVES
• 6-7 EDWARD VII., A. 1907
I send you a Copy of the,Attorney General’s Report, relative to the Difficulties
attending the levying the Duties1
ordered by His Majesty in Council, to be continued
in this Province.
I have the honor to be with much Respect,
My Lords,
Your Lordships most obedient humble Servant.
P. MM!’ IRVING.
To the Right Honorable the Lords Commissioners for Trade and Plantations.
PETITION OF SEIGNEURS OP MONTREAL. 2
Au ROY.’
Les Seigneurs des terres et propriétaires des fiefs du district de Montréal en la province de Quebec, au pied du throne de Votre Majesté penetres de la plus vive Reconnoissance, de toutes les marques de Bonté, dont il a plût à Votre Majesté, de les favoriser
depuis qu’ils sont sous Votre Domination, Ozent prendre la Liberté, de lui présenter icy
leurs très humbles actions de Grace en leurs Noms et Celuy de leurs tenanciers.
Le Soin vraiment paternel, que Votre Majesté n’a cessé d’apporter pour leurs
Intérêts temporels, La Grace Signallée de posséder un Eveque, a excité dans le Cœur
de tous les Nouveaux sujets les plus vifs sentiments de recconnoissance, D’amour et de
fidélité envers Votre Majesté.
Ils Ne Sont pas moins sensibles à la dernière preuve de Votre tendresse, dont ils
ont ressenty les gracieux effets dans la revoccation de L’acte des timbres.3
Ils Supplient Votre Gracieuse Majesté, qu’il leur soit Permis, de la remercier de
leur avoir Donné pour Gouverneur L’honnorable Jacques Muray.. ils ozent espérer
qu’elle voudra Bien leur Conserver, ce Digne Gouverneur, ses lumières son Equitté sa
prudence luy fournissent toujours des moyens efficaces pour maintenir les peuples dans
la tranquillité et l’obéissance.
Les Marques de la Bonté d’un Roy, souvent réitérées en font toujours espérer
de Nouvelles ; c’est sur cela Qu’ils ozent luy Demander Deux graces, elles mettroient le
Comble aux faveurs de Votre Majesté, et à leur Reconnoissance, & leur attachement.
‘ L A PREMIÈRE, est la supression du Régisterre, dont les frais épuisent la Colonie
sans quelle, en reçoive Le moindre avantage.
L A SECONDE est que tous les Sujets en cette province sans aucune Distinction de
Religion soient admis à toutes les Charges sans autre Choix, que les talents et le meritte
personnel, être exclus par Etat d’y participer, n’est pas Etre membre de Testât, s’ils en
ressent l’humiliation, ils ne connoissent pas moins le prix d’une grace aussy Distinguée,
pour laquelle Ils ne peuvent offrir que des Cœurs pleins d’Amour et de Recconnoissance,
Leur Zèle, leur attachement et leur fidélité en seront les preuves marquées dans tous les
tems a venir
PERPÉTUELLEMENT, leurs discours, etleurs exemples tendront à maintenir leurs tenanciers dans les sentiments de la fidélité et soumission Qu’ils vous doivent, ils offriront
sans cesse leurs prières et leurs vœux pour la Gloire et la Conservation de Votre Majesté
et de votre auguste famille.
Le Chvr
D’ailleboust Dailleboust De Caisy
D’Chambault St. Ours
Lacorne Montizambert
Ninerville Blanau
Rouville daudeguee
1
This report is given in Canadian Archives, Q 3, p. 254. In the same volume will be found several
other papers on this subject.
2
Canadian Archives, Q 4, p. 31.
3
“Referring to Grenville’s Stamp Act, passed in 1765 and which applied to Canada as well as to th
other American colonies. I t was repealed in March 1766.
CONSTITUTIONAL DOCUMENTS 189
SESSIONAL PAPER No. 18
Neveu Lavalterie
lefebvre Boucherville ‘
Montenon J. de Muy
Normand Ohev. Hertel *
Linctot Pierre Lesieu (r) MS torn
Hertel And. Barril
Duchesny Godfroy
Duchesne Normanvi (lie) MS torn
Le Che1
Ninerville God. Tonnancou (r) MS torn
Crosse le febvre
J. Courval Desisles
La Grenier (f renier 1) Beaulae
Crevier L. Descheneaux.
St. françois J. Descheneaux.
poisson ‘ Gentilly.
Endorsed :—Petition to The King from the Principal People of Montreal R/ 3d
Febry 1767.
« _ (Translation.)
To THE KING.
The Seigneurs of the lands and proprietors of the fiefs of the district of Montreal,
in the province of Quebec, at the foot of Your Majesty’s throne, filled with the deepest
Gratitude for all the marks of Favour with which it has pleased Your Majesty to
honour them, since they have been under Your Government, Dare to take the Liberty
of here presenting to You their most humble supplications in their own Names and
those of their tenants.
The truly paternal Care which your Majesty has never ceased to bestow on their
temporal Interests, and the signal Favour of possessing a Bishop have roused in the
hearts of all the New subjects the liveliest sentiments of gratitude, of love, and of
fidelity toward Your Majesty.
They are no less sensible of the last proof of Your affection, of which they have
experienced the beneficial effects, in the revocation of the stamp act.
They beg Your Gracious Majesty that they may be permitted to thank You for
having given them as Governor, the honourable James Murray, they dare to hope that
You will graciously continue to them this Worthy Governor whose clearsightedness,
Equity and wisdom continually afford him efficacious means for maintaining the people
in tranquillity and obedience.
* The frequently repeated Marks of a King’s Goodness, always give ground for the
hope of fresh ones, and it is on this ground that they dare plead for two privileges.
These would fill up the measure of your Majesty’s favours, & of their gratitude & devotion.
The first is the supression of the Register, the expenses of which exhaust the
Colony, without its receiving from it the least advantage.
The second is that all the subjects in this province without any Distinction of
Religion may be admitted to any Office, the only basis of selection being that of capacity and personal merit. To be excluded by the State from participating in it, is not
to be a member of the state. – If they feel such a humiliation they would appreciate all
the more the value of a favour equally marked, for which they can only offer their
hearts full of love and gratitude. Their Zeal, their affection and their devotion shall
be the signal proofs of it for all time to come.
Their precepts and their examples shall perpetually tend to maintain their tenants
in the sentiments of fidelity and submission which they owe you, They will offer
without ceasing their vows and their prayers for the Glory and Preservation of Your
Majesty and your august family.
190 / CANADIAN ARCHIVES
6-7 EDWARD VII., A. 190?
C O M M I S S I O N O F T H E C H I E F J U S T I C E . 1
Quebec ss. G E Q R G E T H E T H I R D by t h e Grace of God, of Great Britain, F r a n c e ,
and Ireland, K I N G , Defender of the Faith, and so forth ; To our T r u s t y
and well beloved W I L L I A M H E Y , Esquire, G B E E T I N G .
K N O W YE, t h a t we having t a k e n into our Royal Consideration, Y o u r
Loyalty, Integrity, a n d ability, Have, assigned. Constituted, and appointed,
Commission A N D “WE, do hereby assign, Constitute, and appoint, you, the said W I L L I A M ”
to be Chief^ H E Y , ¿ur Chief Ju¡?tice of, and in our Province of Quebec in America ; To
province^ E n q u i r e by the Oaths-of honest and lawful men of the province aforesaid,
Quebec and by other lawful ways, Methods, a n d means, by which you can or m a y
the b etter Know, as well within liberties as without, of whatsoever Treasons,
• misprisions of Treason, Insurrections, Rebellions, Murders, Felonies,.
Homicides, Killings, Burglaries, Rapes of Women, Unlawful Congregations
& Assemblies, words spoken, Misprisions, Confederacies, False Allegations,
Trespasses, Riots, Routs, Escapes, Contempts, Falsities, Negligencies, Coninquire of all cealments, Maintenances, Oppressions, Champorties, Deceits, and other
treasons, felo- Misdoings, Offence?, and Injuries whatsoever, as also of the accessaries
mes, andotherthereto within t h e province aforesaid, as well within liberties as without,.
‘ by whomsoever and howsoever had, done, perpetrated, or Committed, or
which hereafter m a y happen to be done, perpetrated, or Committed, and by
whom, to whom, when, where, and how, and of all other articles andCircumstances, the premises, or any of them, a n y wise Concerning : A n d
and the same t h e said treasons and other t h e premises to hear and determine, accordingdetermineac- t o * ^ e
•’ a w a n c^ Custom of t h a t p a r t of our K i n g d o m of Great B r i t a i n
cording to the Called England, and of our said province of Quebec, hereafter to be made..
laws of Ens- T H E R E F O B E WE Command that, a t such certain days a n d places as you shall’
ordinances of a p p o i n t , Y o u make diligent inquiry of the premises; a n d all and singular
the province the premises you hear and determine ; and the same do and fulfil in form
hereafter to aforesaid, doing therein t h a t which to J u s t i c e d o t h belong or appertain,
according to t h e Law a n d Custom of t h a t p a r t of our Kingdom of Great
Britain Called England, and of our said province of Quebec hereafter to be1
Canadian Archives, Register of Commissions, from Department of Secretary of State.
The mandate to the Governor to appoint Wm. Hey as Chief Justice is dated Feb. 3rd and is as follows :—
” The King’s Mandate to the Governor or Commander in Chief of the Province of Quebec, requiring
Him to appoint William Hey, Esquire, Chief Justice of the sd
Province.
George R.
Trusty and well beloved, We greet you well, Whereas We have taken into our royal consideration the
loyalty, integrity, and ability of our trusty and well beloved William Hey, Esquire, We h»ve thought fit,
hereby, to authorize and require you forthwith to cause letters patent to be passed under the seal of our
province of Quebec in America, constituting and appointing him the said William Hey, our Chief Justice
of, and in our said province ; to have, hold exercise and enjoy the said office unto him the said William
Hey, for and during our pleasure, and his residence within our said province, together with all and singular the rishts, profits, privileges and emoluments unto the said place belonging in the most full and amplemanner with full power and authority to hold the supreme courts of judiciture, at such places, and at such
times as the same may and ought to be held within our said province. And for so doing, this shall be
your warrant. And so we bid you farewell.
Given at our Court at St. James’ the 3d
day of February 1766 in the sixth year of our Reign. •
By His Majesty’s command
/ (signed) H. S. CONWAY
To our trusty and well beloved James Murray, Esquire, our Captain General and Governor in Chief’
in and over our Province of Quebec in America ; and in his absence to the Commander in Chief of our said
Province for the time being. ”
From copy in the Public Record Office. See also note p. 178.
CONSTITUTIONAL DOCUMENTS 191
SESSIONAL PAPER No. 18
made : Saving to us our Amerciaments and other things thereby to us belonging ; for we will Command all and every our Sheriffs or provost Marshal’s
of our province aforesaid ; That at such certain days, and places as you our
Chief Justice shall make known to him, them, or any of them, they cause to
come then and there before you such and so many honest and lawful men
of our said province as well within liberties as without, by whom the Truth
of the matter may be the better Known and inquired of.
Power to deli- AÎTO FDETHEE, KNOW VE That we have assigned, Constituted, and appointed,
ver goals of and by these presents, do assign, Constitute and appoint you, the said WlLthereuTeon- L I AM H E Y ‘
our G o a l o f o u r Province aforesaid, of the prisoners therein herefined, after to be to deliver. AND, therefore we Command you that, at such Certain days & places as you shall appoint, you come to our Court-House of
our said Province the Goal in our said province of the prisoners hereafter
therein to be to deliver, doing therein what to justice doth, or may, belong
or appertain, according to the Law & Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec
hereafter to be made; saving to us our amer iaments and other things
thereby to us belonging : For we will Command all and every our Sheriffs
and provost Marshals of our said Province of Quebec that, at such Certain
days and places as you our Said Chief Justice shall make known to him,
them, or any of them, they Cause to Come then and there before you our
said Chief Justice all the prisoners of the same Goal and their attachments.
Power to hear AND FDETHBE KNOW YE That we have assigned, Constituted and appointed,
and determine and by these presents, do assign, Constitute and appoint, You, the said
andTctions^ WILLIAM HEY, Our Chief Justice of Our Supreme Court of Judicature of our
whether real, said province of Quebec, to inquire by the oaths of honest and lawful men
personal, or 0f £n e province aforesaid, and by other lawful ways,, methods and means,
between the by which you can or may the better Know, as well within Liberties as
King and a without, of all civil pleas, actions, and suits, as well real and personal, as
subject, or mixed, between us and any of our Subjects, or between party and party,
ject and sub- by whomsoever had, brought, sued and Commenced, and of all other
ject. articles and circumstances the premises, or any of them, any wise Concerning : and the said pleas, actions, and suits, and every of them, to hear
and determine in manner and form aforesaid, doing therein that which to
Justice doth belong and appertain according to the Laws and Customs of
that part of our Kingdom of Great Britain Called England, and the Laws,
Ordinances, Rules, and Regulations of our said province of Quebec, hereafter in that behalf to be Ordained and made. THEREFORE WE Command you
that, at such Certain Days and places, as you shall appoint, you make
diligent inquiry of the premises ; and all and singular the premises to
hear and determine in manner and form aforesaid, doing therein that
which to justice doth belong or appertain according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and
the Laws, Ordinances, Rules, and Regulations, of our said province of
Quebec hereafter in that behalf to be made : FOE WE will Command all
and every Our Sheriffs or provost Marshal of our province aforesaid that
at such Days and places, as you our Said Chief Justice shall make Known
to him, them, or any of them, they Cause to Come then and there before
you, such and so many honest and lawful men of our said province, as well
within liberties as without, by Whom the truth of the matter may be the
better Known.
This Office to To HAVE, HOLD, AND EXERCISE the said Office of our chief Justice of and in
th aTC dur™g
our Said province of Quebec, for and during our Royal Will & pleasure and
pleasureg
and your Residence within our Said province ; Together with all and Singular the
the Chief Jus- Rights, profits, free priviledges, and Emoluments to the said Office belonging,
tice’sresi- i n a g f u l l a n d a m p i e ” manner as any other Chief Justice of any of our proprovince vinces of America H A T H heretoforeheld and Enjoyed, or of right ought to
192 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
have, hold, or Enjoy, the same, with full power and authority to hold the
^ Supreme Courts of Judicature at such places and times as the same may or
ought to be held within our said province.
I N TESTIMONY whereof we have Caused these our Letters to be made
patent and the Great seal of our said province of Quebec, to be hereunto
Affixed, and to be entered on record in one of the Books of patents in our
Registers Office of Inrollments of the said province WITNESS Our Trusty
and well beloved. The Honble Guy Carleton Esquire, OUR Lieutenant
Governor and Commander in Chief in and over our said province of
Quebec and the Territories thereon depending in America, at our Castle of
Saint Lewis in our said City of Quebec, The Twenty-fifth Day of September
in the Year of our Lord one Thousand seven hundred & Sixtysix, and in
\ he Sixth Year of our Reign.
(LS) (Signed) GUY CARLETOIST
By the Lieutenant
Governor’s Command.
(Signed) J GOLDERAP
D. Setf
F I A T of the above Commission
Recorded in the Registers Office at Quebec the 25th Day of September
1766
(Signed) J. GOLDERAP,
D Reg1
CARLETOIST TO SHELBTJRNE.1
QUEBEC 25th Octr
1766.
My Lord !
I have the Honor of receiving your Lordship’s Letter of the 9th of August, with
the Order of Council of the 8″1
, which shall be punctually obeyed—2
The Subject of the inclosed Remonstrance is another Matter I have to mention.
Your Lordship will see by my Letter to the Lords of Trade, by the Minutes of Council,
and by the Minutes of the Committee, that nothing has been done that required a
Council, my ealling a few Counoellors, was meerly from prudential Reasons, and for
1
Canadian Archives, Q 3, p. 261. Though Governor Murray had been recalled to England, April
1st, 1760, he was not for some time deprived of his office as Governor of Quebec. Hence Gen. Guy Carle-
» ton who succeeded him was at first appointed as Lieutenant Governor, under the following Commission :—
” George the Third, by the Grace of God, King of Great Britain, Prance, and Ireland, Defender of the
Faith, and so forth ; To our trusty and well-beloved Guy Caileton, Esquire, Greeting :
” We, reposing especial trust and confidence in your loyalty, integrity, and ability, do, by these presents, constitute and appoint you to be our Lieutenant Governour of our province of Quebec, in America ;
to have, hold, exercise, and enjoy the said place and office during our pleasure, with all rights, privileges,
profits, perquisites, and advantages to the same belonging or appertaining.
” And further, in case of the death, or during the absence, of our captain general^ and governour in
chief of our said province of Quebec, now, and for the time being, we do hereby authorize and require you
to exercise and perform all and singular the powers and directions contained in our commission to our
captain general and governour in chief, according to such instructions as he has already received from us,
and such further orders and instructions as he, or you, shall hereafter receive from us.
” And we do hereby commend all and singular our officers, ministers, and loving subjects in our said
province, and all others whom it may concern, to take due notice hereof, and to give their ready obedience
accordingly. _ _ *
” Given at our court at St. James.’s, the seventh of April 1766, in the sixth year of our reign.
” By his Majesty’s command.
(Signed) H . S. CONWAY.
” G u y Carleton, Esquire, Lieutenant Governor of Quebec.” A Collection of several Commissions and
other Public Instruments, &e. by Francis Maseres. London : 1772. _ p. 122.
As this commission indicates, Carleton acted under the instructions given to Murray until his own
appointment as Governor in Chief in 1768, when he received new instructions. I n the meantime, however,
several additions were made to the Council of Quebec, under the King’s mandamus „
William E a r l of Shelburne became Secretary of State for the Southern Department, J u l y 13, 1766.
2
A portion of this despatch, dealing with local troubles over trading privileges & c , is omitted.
CONSTITUTIONAL DOCUMENTS 193
SESSIONAL PAPER No. 18
private Information. As to the Members of Council, they themselves could have no
Doubt who should have the Precedence, as the Case of Mr
Stuart doth prove ; Hitherto
I have been silent on that Subject, not that I doubt of the King’s Intentions, but as I
understand these Gentlemen are searching an Excuse to resign their Seats, and make
a Noise ; I shall give them Time to cool and Reflect, till Matter occurs that may require
a Council. The great Leader of the intended Opposition is Mr
M abane,1
who followed
the Army, as Surgeon’s Mate into this Country ; He hoping and believing this Government unsettled, is determined to make some considerable Agitation ; I trust he will
not succeed : Captain Cuthbert threatens me much with his Friends, says he was forced
into the Council by Governor Murray on his Departure, much against his will ; but now
he i * n , he will shew the World who has Friends, and who shall be turned out. I laugh
and make no Answer. Mr
Walter Murray who has acted as a strolling Player in other
Colonies, here as a Councellor ; Mr
Mounier, an honest quiet Trader, who knows very
‘ little of our Language or Manners, like most of the Canadians, will sign, without
Examination whatever their Acquaintance urge them to, and Lieutenant Colonel
Irving who professes he signed this, and the Order of Council mentioned above, because
his Friends desired him—
All these little Workings I look on as the natural Consequence of the late Tempest,
which after a few Months settled Calm must insensibly subside and die away, in General
His Majesty’s Subjects here seem rather to want Instruction, than Reproof. To know
clearly the King’s Will, and to see it steadily pursued here, will, or I am much mistaken,
soon occasion a quiet and dutiful Obedience, in Spite of the Opposition of a few self
Interested Individuals,’
I am with much Respect and Esteem
Your Lordships
Most Obedient Humble Servant
GUY CARLETOJST
Right Honorable Earl of Shelburne
One of His Majesty’s principal Secretaries of State.
REMONSTRANCE OF MEMBERS OF COUNCIL.
QUEBEC Octor
13th 1766.
To the HonMe Biigr
Gen1
Guy Carleton Lie’ Govr
of the Province of Quebec, &
Brig1
‘ Gen1
of His Majestys Forces &c.
We the underwritten Members of His Majesty’s Council for the Province of
Quebec, think it our indispensible duty to communicate to you our sense of the method
lately adopted of calling together only a part of the Council : The bad consequences
which may arise from Practice are manyfold ; But as you are pleased to signifye to Us
by Coll. Irving that it was accident, & not Intention, it is needless for us to enumerate
them
We would be wanting to ourselves, & Others in the same Circumstances if we did
not remonstrate against an opinion lately insinuated, as if Mandamus’s from Brittain
suspended Appointments to the Council made by Gov1
Murray. We apprehend his
Commission & Instructions, by which he was authorized to constitute a Council & to
make choiee of the Persons”, to be to all Intents, & purposes, a Mandamus to each of
Us, provided His Majesty did not disapprove of Us, when reported to Him by the
Governour : The many Difficulties which for Two Years we had to encounter in. a new
Establishment for a Province under very peculiar circumstances, perhaps entitle us to
some Reguard : At any Rate tho’ His Majesty may have an undoubted Right to
encrease the number of his Council by granting Mandamus’s to whom He pleases, it is
to be presumed that by so doing there is no Intention to deprive Us either of our Right
i Adam Mabane was a member of the first Council appointed by Governor Murray in 1764 ; the
other members were Chief Justice Gregory, P. .«munis Irving, H. T. Cramahe, Walter Murray, bamue
Holland, Thos. Dunn and Francois Mounier.
18—3—13
194 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
to Precedence, or to a Seat in Council : A late event on the D e p a r t u r e of Govr
M u r r a y
is a proof of t h e contrary.
If by t h e Constitution o’r Custom of t h e Colonys the numb e r of t h e Council is
restricted, Mandamus’s are in t h a t Case to be regarded only as a n Order for t h e A d –
mission of t h e Persons named therein, Provided there is a Vacancy.
If the Deference which we feel for every Manifestation of the W i l l of our Sovereign has prevented u s from objecting to any person possessed of a M a n d a m u s from being
sworn into t h e Council, W e apprehend t h a t if the Council is a t present, or hereafter
may be restricted, The Councillor last admitted is to be considered as t h e Supernumerary.
W e have the honr
to be w*11 t h e greatest respect #
S
r
y
r
most obed* hWe Servts
.
(Signed) P . MMIS
I B V I N G
W A ‘ M U E E A Y
A D A M M A B A N E
E B S
M O U N I E B
J A M E S C U T H B E E T .
Endorsed : Copy •]• Remonstrance of L* Col1
I r v i n g and other Members of H i s
Majesty’s Council a t Quebec 13*11 Oct1
1766.
I n Lieu* Gov1
C’arleton’s, of the 25th Octr
1766.
GOVERNOR CARLETON’S REPLY.
To Lieut* Colonel I r v i n g Major to the 15t h Regiment. M1
W a l t e r Murray, Mc
A d a m M abane Surgeon, Mr
Erancis Mounier Merchant, Captain J a m e s
C u t h b e r t —
G E N T L E M E N
A s L i e u t e n a n t Colonel I r v i n g has signified to you, t h a t t h e P a r t of m y Conduct, you t h i u k worthy your Reprehension, happened by Accident, let him explain
to you his Reasons for so doing, H e h a d no authority from me
B u t t h a t there may be no further Doubt, I hereby make known to you, t h a t I both
have a n d will, on all Matters which do not require the Consent of Council, call together
such Councellors as I shall t h i n k best qualified to give me Information : and further,
t h a t I will ask the Advice a n d Opinion of such Persons, tho’ not of the Council as 1
shall find M e n of good Sense, Truth, Candor, and I m p a r t i a l Justice ; persons who prefer
their Duty to t h e K i n g and the Tranquility of H i s Subjects to unjustifiable A t t a c h –
ments, P a r t y Zeal, a n d to all selfish mercenary views : Aft er I have obtained such
Advice, I will still direct as to me shall seem best for H i s Majesty’s Service, a n d the
Good of H i s Province committed to my C a r e —
I further make K n o w n to you, and for the first time I give an Opinion, t h a t for
t h e present H i s Majesty’s Council consists of twelve Members ; those named a n d
appointed immediately by t h e K i n g 1
have t h e Preference, next follow those appointed
b y Governor M u r r a y till t h e Seats are all full :
1
In the Instructions given to Governor Murray, in addition to certain ex-officio members, such as
the Chief Justice and the Surveyor General of Customs, he was authorised to select and appoint eight
other members to constitute the Council of the Province. In the Instructions given to Governor Carleton,
however, the members of the Council were specifically named as appointed by the King. See p. 211. The
following is a list of the members of Council at the end of 1766 with the dates of their admission :—
1764.
“August 13th Paul JSSmi’ Irving— Again swore in 24th Sept1
1766 by mandamus
Hector Theophilus Cramaché dated 21st June 1766, swore in again 24th September 1766.
Samuel Hollandt.
Walter Murray, Again swore in 24th Sept* 1766.
Adam Mabane— Ditto Ditto
Thomas Dunn— ditto ditto
Francia Mounier
CONSTITUTIONAL DOCUMENTS 195
SESSIONAL PAPER No. 18
You will be pleased to recollect, Gentlemen, that Mr
Stewart, tho’ sworn into
Council after Mr
Mounier, has by Virtue of the King’s immediate Appointment constantly taken Place and Precedence of you all.
I must also remind you, that His Majesty’s Service requires Tranquility and Peace
in His Province of Quebec, and that it is the indispensable Duty of every good Subject,
and of every honest Man, to promote so desirable an End.
(Signed). G U Y CARLETON.
Endorsed : Answer to Lieu* Col. Irving, Mr
Walter Murray &c, Oct1
1766.
CARLETON” TO GAGE.1
Copy of a Letter from Major General Carleton to His Excellency General Gage, dated
at Quebec 15th Pebry 1767—
Sir
The Ports of Crown Point, Ticonderoga, and’Port George are in a very declining
Condition, of which, I believe, Your Excellency is well informed ; should you approve
of keeping up these Posts, it will be best to repair them as soon as possible. As you
have been pleased to desire my Opinion of this Measure, I must freely say, that the
more I consider the State of Affairs on this Continent,
2
more and stronger Reasons
present themselves, and I am the more convinced, it is not only expedient, but indispensably necessary for the Interest of Great Britain, and His Majesty’s Service, not
only to keep these in good Repair, but to erect a proper Place of Arms near the Town
of New York, and a Citadel in or near the Town of Quebec. These with temporary
Works thrown up occasionally at the other Places of Landing and Embarking, will
secure the Communication with the Mother Country, and will link these two Provinces
so strongly together, as will add great security to both ; they will facilitate the Transport of ten or fifteen thousand Men in the Beginning of a War, from the one t o t h e
other, as the Circumstances require—
The natural and political Situation of the Provinces of Quebec and New York is
such, as must for ever give them great Influence and Weight in the American System,
therefore no Pains, Address, nor Expence too great to root out Paction or Party ; to
establish Tranquility, and a firm Attachment to His Majesty’s Government, at the
same time it is equally essential to establish that security and Strength as can properly
curb and overawe, should such ever arise, who by the Ties of loyal Subjects and honest
Men, are not thoroughly bound to their Duty.
This Communication so established, will give Security to the King’s Magazines, till
then precarious, and doubtfull who may avail themselves of them ; will separate the
Northern from the Southern Colonies, will afford an easy and advantagious Opportunity
of transporting His Porces into any part of this Continent, and may prevent the greatest of all Inconveniencies, Delay and Loss of Time in the Beginning of j^War.
Oct* 10th James Goldfrap, by mandamus, dated 20th July 1761 again swore in [24th September 1766.
ditto 31st Beniamin Price
1765.
June 20ai
4 Charles Stewart, S. G. by mandamus
1766.
June 14th James Cuthbert.
ditto 30th Thomas Mills, R. G.—by mandamus.
Sep» 25th William Hey C. J— * by mandamus
The above is a true List of the members of His Majesty’s Council of the Province of Quebec with the
Times of their being sworn in, taken from the Council Book Kept in my office.
* in the room of William Gregory, Esq1
late Chief Justice, and struck out of the Council
(Signed) J a : POTTS, D.C.C.
Endorsed—Copy of the List of Council of Quebec 1766
1
Canadian Archives, Q 4, p. 100.
2
Referring to the troubles which were developing in the American colonies.
. 18—3—13¿
196 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
The Walls of this Place have not been repaired since the Siege, which left many
Holes in the Masonry, that will precipitate their Ruin if not soon repaired ; I have not
one Engineer in the Province to form an Estimate of the Repairs, or make any Alteration that may be immediately necessary.
(a true Copy)
H. T. CRAMAHE
Endorsed : Copy of a Letter from General Carleton to His Excellency General Gage,
dated at-Quebec, 25th Feby, 1767. In Lieut.-Governor Cramahé’s Letter of the
9
th Nov1
S H E L B U R N E TO CARLETON. 1
WHITEHALL 20th June 1767.
LIEUT. GOVERNOR CARLETON.
SIB,
Since my Letter of 26″1
May,2
I have received your’s of 28th Mareh,3
which I
have had the Honor to lay before the King, & I .have the Pleasure of confirming to you,
His Majesty’s gracious Approbation of your Conduct. The Rectitude of those Principles
by which you have governed yourself, & your firm tho’ dispassionate manner of Proceeding, if persevered in, cannot fail of giving due weight to your Administration, of allaying any remains of Paction which may not yet have subsided, & of putting an End to
those impediments which too often arise from private Views & personal Jealousies.
* * * * * * * *
As the right Administration of Government in Quebec is a matter of the greatest
Importance to that Province, the Improvement of its Civil Constitution is under the
most serious & deliberate consideration of His Majesty’s Servants & principally of His
Majesty’s Privy Council. Every light which can be procured on this Subject,-will be
material as well as every Information which can tend to elucidate how far it is practicable and Expedient to blend the English with the french Laws in order to form such a
System as shall at once be Equitable same as if this Ordinance had not been made.
Given by the HonWe Guy Carleton Lt. Governor and Commander in Chief of the
Province of Quebec, Brigr
Geni, of His Majesty’s Forces &c &c in Council at the Castle
of St. Louis in the City of,, Quebec on the Day of in the Year
of His Majesty’s Reign and in the Year of our Lord 176
CARLETON TO SHELBURNE. 1
QUEBEC 20th Jan1
* 1768
My Lord !
. In my Letter3
(No. 20) I have given the Military state of this Province, with a
scheme for strengthening it by a Citadel ; I shall now add, that, was this already constructed, and I could suppose it impossible for any foreign Enemy to shake the King’s
Dominion over the Province,’ still I shall think the Interests of Great Britain but half
advanced, unless the Canadians are inspired with a cordial Attachment,, and zeal for
the King’s Government ; How far they are removed from that desirable Disposition,
may easily be discovered, if brought to the Test, and examined by the general Cause of
the Attachments of Men, Self-interest ; if it shall not be found more their Interest to
remain as at present, than to return under the Dominion of their former Sovereign,
they certainly have not’all those Motives, which induce Men of Honor to disregard the
general Rule ; there remain, ’tis true, an Oath of Allegiance, which may keep some
Quiet in Case of a French Expedition, and the Punishments due to Traitors, which will
be regarded; as long as Government has Force sufficient to inflict them ; it therefore
seems to me highly expedient, that, at least, those Causes of Complaint, which affect the
Bulk of the People, and come home almost to every Man, should be removed ; That
they should be maintained in the quiet Possession of their Property, according to their
own Customs, which Time immemorial, has been regarded by them and their Ancestors,
as Law and Equity ; and that the Approach to Justice and Government, for the Redress
of Wrongs, be practicable and Convenient, in Place of being ruinous by Delay, and an
Expence disproportioned to their Poverty; but this is neither m the Power of Justice
or Government here to grant him, while the Supreme Court is obliged to Judge according to the Laws of England, and the different Offices can claim, as their Right, Fees
calculated for much wealthier Provinces. _
1
Canadian Archives, Q 6-1, p. 370.
2
Carleton to Shelburne, Nov. 25th, 1767. See p. 19b.
206 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
But, Beside these Points of Justice, as long as the Canadians are deprived of all
Places of Trust and Profit, they never can forget, they no longer are under the Dominion
of their natural Sovereign ; tho’ this immediately concerns but few, yet it affects the
Minds of all, from a national Spirit, which ever interests itself at the general Exclusion
of their Countrymen : three or four of their principal Gentlemen, with the Rank of
Counsellors, was it little more than Honorary, tho’ on many Occasions they might prove
useful ; a few Companies of Canadian Foot judiciously officered, with three or four
trifling Employments, in the Civil Department, would make very considerable Alterations on the Minds of the People ; I t would divide the Canadians at least, and secure a
Part, in Case of a French War, that would emulate the zeal of the King’^s National
Troops ; I t would hold up Hopes to the Gentlemen, that their Children, without being
bred up in France, or the French Service, might support their Families in the Service
of the King their Master, and by their Employments preserve them from sinking into
the lower Class of People, by the Division and Subdivision of Lands every GenerationI have found in Canada, what I believe may be found everywhere, the People fond
of the Laws and Form of Government they have been educated under, tho’ scarcely
a Man that Knows one sound Principle of Government, or Law ; Three or four of the
old Subjects, about a year ago, brought me the rough Draft of a Petition for a general
Assembly, and hoped, I had no Objection to their having it signed by all the British,
who wished to have one called ; I told them, I had many Objections to great numbers
signing a Request of any Kind, that it seldom conveyed the sincere Desire of the Subscribers, that it had an Appearance of an Intention to take away the Freedom of granting or refusing the Request ; I had no Objection to Assemblies in General, yet such
was the peculiar Situation of Canada, tho’ I had turned that Matter often in my
Thoughts, I could hit off no Plan that was not liable to many Inconveniencies, and
some Danger; That perhaps they might be more fortunate, and I should think myself
obliged to them, if they would shew me one, that could be of advantage to the Province,
and the King’s Service, assuring them, such a Plan wanted no Petitions to recommend
it to -me : about a Month, after, they asked me, if 1 had considered of their Request, and
I repeated my former Answer ; since which I have often urged them, of my own Accord, to let me have their Scheme for an Assembly, and to inform me, who they thought
should be the Electors, and who the Representatives, but to no Purpose ; so that I imagined, they had laid aside all Thoughts of the Kind, till lately one John McCord, who
wants neither Sense nor Honesty, and formerly kept a small Ale House in the poor
Suburbs of a little Country Town in the North of Ireland, appearing zealous for the
Presbiterian Faith, and having made a little Money, has gained some Credit among
People of his Sort ; this Person purchased some Spots of Ground, and procured Grants
of more, close to the Barracks, where he run up Sheds, and placed poor People to sell
his Spirits to the Soldiers, finding that his lucrative Trade has lately been checked, by
inclosing the Barracks to prevent the Soldiers getting drunk all Hours of the Day and
Night, He has commenced Patriot, and with the Assistance of the late Attorney General, and three or four more, egged on by Letters from Home, are at work again for an
Assembly, and purpose having it signed by alJ they can influence : On the other Hand
the better Sort of Canadians fear nothing more than popular Assemblies, which, they
conceive, tend only to render the People refractory and insolent ; Enquiring what they
thought of them, they said, they understood some of our Colonies had fallen under the
King’s Displeasure, owing to the Misconduct of their Assemblies, and that they should
think themselves unhappy, if a like Misfortune befell them. I t may not be improper
here to observe, that the British Form of Government, transplanted into this Continent,
never will produce the same Fruits as at Home, chiefly, because it is impossible for the
Dignity of the Throne, or Peerage to be represented in the American Forests ; Besides,
the Governor having little or nothing to give away, can have but little Influence ; in
Place of that, as it is his Duty to retain all in proper Subordination, and to restrain
those Officers, who live by Fees, from running them up to Extortion ; these Gentlemen,
put into Offices, that require Integrity, Knowledge and Abilities, because they bid the
highest Rent to the Patentee, finding themselves checked in their Views of Profit, are
disposed to look on the. Person, who disappoints them, as their Enemy, and without go-
CONSTITUTIONAL DOCUMENTS 207
SESSIONAL PAPER No. 18
ing so far as to forfeit their Employments, they in general will be shy of granting t h a t
Assistance, t h e King’s Service may require, unless they are all equally disinterested or
equally Corrupt. I t therefore follows, where the executive Power is lodged with a Person of no Influence, b u t coldly assisted by the rest in Office, a n d where t h e two first
Branches of t h e Legislature have neither Influence, nor Dignity, except i t be from t h e
extraordinary Characters of t h e Men, T h a t a popular Assembly, which preserves it’s full
Vigor, a n d in a Country where all Men appear nearly upon a Level, must give a strong
Bias to Republican Principles ; W h e t h e r the independent Spirit of a Democracy is well
adapted to a subordinate Government of t h e British Monarchy, or their uncontrolable
Notions ought to be encouraged in a Province, so lately Conquered, and Circumstanced
as this is, I with great H u m i l i t y submit to the Superior Wisdom of H i s Majesty’s Councils : for m y own part, I shall t h i n k myself F o r t u n a t e , if I have succeeded in rendering
clear Objects, not allways distinctly discernable a t so great a Distance
I am w i t h much Respect and Esteem.
• Y o u r Lordship’s Most Obedient H u m b l e Servant
G U Y CARLETOJST
The E a r l of Shelburne One of H i s Majesty’s
Principal Secretaries of State.
Endorsed :—Quebec 20Hl J a n ^ 1768 GoYI Carleton.
H I L L S B O R O U G H TO C A R L E T O N . 1
» , W H I T E H A L L , March the 6t t 1768.
SlE,
I t a k e the Opportunity of writing to you by the first Ship going directly toQuebec, since m y Admission into Office, & also to send you Duplicates of m y P o u r former L e t t e r s —
* * * * *
*
I come now to the Consideration of your Letters N° 17. 22. ifc 23., 2
in which y o u r
Prudence and J u d g m e n t , your Care of t h e King’s Service, and your Benevolence to H i s
Subjects, are equally conspicuous to H i s Majesty.
I had the H o n o r to serve H i s Majesty at the Board of Trade, in t h e year 1763.
when His Ma ‘t y was pleased to publish H i s Royal Proclamation relative to t h e new
Colonies, and, whatever the legal sense conveyed by t h e W o r d s of t h a t Proclamation
may be, of which I pretend not to be a Judge, I certainly know what was the I n t e n t i o n
of those who drew the Proclamation, having myself been concerned therein ; A n d I can
take upon me to averr, t h a t it never entered into Our I d e a to overturn the Laws and
Customs of Canada, with regard to Property, b u t t h a t Justice should be administered
agreably to them, according to t h e Modes of administering Justice in t h e Courts or
J u d i c a t u r e in *his Kingdom, as is the Case in the County of K e n t , a n d m a n y other
1
Canadian Archives, Q 5-1, p. 344.
Wills, Earl of Hillsboiough, and of the Kingdom of Ireland, was appointed the first Secretary of State
for the Colonies when that Department was created in 1768. His appointment, as recorded in the Warrant
Book, vol. 32, is dated 21st Jan. 1768. From Sept. 9th, 1763, he had been one of the Commissioners for
Trade and Plantations. See Calendar of Home Office Papers, 1766-69, p. 422.
In this despatch Hillsborough passes in review the various letters which had been received from
Carleton since the former came into office, and as several of these relate to religious and trade matters the
review of them is omitted here. . . 2
Letter No. 17 is that of Nov. 21st, 1767, in which Carleton encloses a petition from British merchants in Canada, stating their objections to the complete enforcement in Canada of the English bankruptcy laws. Agreeing with their position, he has suspended the introduction of such laws for the present.
See Q 6-1, p. 245.
No. 22, ‘is a letter of Dec. 10th, with enclosures, in response to a request from the Commissioners of
the Treasury for information as to the revenue and expenditure of the Province. See Q 5-1, p. 299.
No. 23, is the letter of Carleton to Shelburne of Dec. 24th, see p. 201.
208 CANAD TAN ARO HIT ES
6-7 EDWARD Vil., A. 190?
parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho’ Justice is administered therein according to the Laws of England.
I t was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execution, who expounded it
in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and
entirely contrary to the Royal Intention. The Distance of the Colony, the Difficulties
arising from many Circumstances, unnecessary for me to enumerate, and the Differences
of Opinion occasioned by various Causes, have prevented, as yet, the necessary Measures
from being taken, to correct this original and fatal Mistake ; But I trust I shall soon
be impowered to signify His Majesty’s Pleasure, to you, to carry into Execution, such
as will not only releive His Majesty’s new Subjectstfrom the uncertain, and consequently unhappy Situation, they are now in ; but give them entire Satisfaction for the future,
by securing to them their Property upon a stable Eoundation, and rendering the Colony
more flourishing and happy than it has ever been.
I have, in the mean Time, His Majesty’s Commands, to express His Satisfaction in
your prudent conduct relative to the Applications mentioned in your Letter N° 17.
to have been made to you for* a Commission of Bankruptcy, as it is impossible to conceive, that it could ever be His Majesty’s Intention signified, either by the Proclamation,
or by the Ordinance for the Establishment of Courts of Judicature, to extend Laws of
that particular and municipal Nature to the Colony, even if the Intention had been to
have overturned the Customs of Canada, and it would be full as reasonable to make a
poor Rate under the 43a
of Elizabeth, or to execute any other Act of Parliament of
England, in Quebec, however intended for any local or particular purpose in this Kingdom.
* * * * # – *
His Majesty approves of every Sentiment expressed in your Letter N° 23. upon
which js founded the Idea of the Ordinance, a Draught of which you transmit with that
Letter * ; The Draught corresponds in almost every .part with His Majesty’s Opinions ;
But, as the whole State of the Colony will be immediately taken into Consideration,
His Majesty’s Pleasure is, that you should, for the present, postpone the enacting of
that Ordinance ; not doubting but you will, in the mean Time, continue to make use. of
every lenient and proper Argument, to convince His Majesty’s new Subjects of His
tender Concern for their Welfare and Security ; and, by representing to them the
natural Difficulties that must occur, in Regulations of so important a Nature, to be
directed from so great a Distance, for the permanent Settlement of a Province, under
Circumstances so uncommon and peculiar ; prevail upon them to suffer patiently those
Delays which are unavoidable.
I desire you will do me the Honor to accept my sincerest Congratulations upon
your Appointment to the Government of Quebec.2
I most truly rejoice at It, both on
Account of His Majesty’s Service, and the Prosperity and Happiness of His Mat’y’s
Subjects in that important Colony.
I am &c
HILLSBOROUGH
Lieutenant Governor of Quebec
Endorsed :—Dra* to the Lieutenant-Governor of Quebec Whitehall March 6th 1768.
CARLETON TO SHELBURNE. 3
QUEBEC 12th April 1768
My Lord !
Again I find myself under a necessity to repeat very near the same apologies, as in
my last about the Fees ; the Truth is, that while. Offices are farmed out to the best
bidder, Tenants will make the most of their Leases, and in their Turn hire such Servants,
i See p. 204. 2
After acting as Lieutenant Governor of Quebec from April 1766 till the beginning of 1768, Oarleton
was appointed to the full position of ” Captain General and Governor-in-ehief of Quebec in America” —
his appointment being dated Jan. 12th, 1768. See Calendar of Home Office Papers, 1766-69, p. 395. 3
Canadian Archives, Q 5-2, p. 477.
CONSTITUTIONAL DOCUMENTS 209
SESSIONAL PAPER No. 18
as work at the cheapest Rate, without much Enquiry, whether the same is well or ill
done ; The inclosed List of Grants,1
Prior to the Conquest of the Country, has been
greatly retarded, from the Persons employed therein, not being thoroughly versed in the
Languages, at the same Time, it must be fairly acknowledged, the Ancient Records of
the Country, are by no Means so clear and accurate as one could wish, However it will
in General tolerably well exhibit, on what Terms, the Seigniorial Grants are held, for as
to the Terres en Roture held immediately of the King, in the Towns of Quebec or Trois
Rivieres, or else where, the same is not yet Compleated, but is in Hand, and shall be
transmitted, without Loss of Time, as soon as finished.
Some of the Privileges contained in those Grants appear at first to Convey dangerous Powers into the Hands of the Seigneurs, that upon a more minute Enquiry, are
found to be really little else than Ideal ; the Haute Moyenne et basse Justice, are Terms
of high Import but even under the French Government were so corrected, as to prove of
little Signification to the Proprietors, for besides that they could Appoint no Judge
without the Approbation of Government, there lay an Appeal from all the Private to
the Royal Jurisdictions in every Matter exceeding half a Crown ; it could not therefore
be productive of Abuse, and as the Keeping of their own Judges became much too Burthensome for the Scanty Incomes of the Canadian Seigneurs, it was grown into so general a Disuse, there were hardly three of them in the whole Province at the Time of the
Conquest.
All the Lands here are held of His Majesty’s Castle of St. Lewis, and nothing I am
persuaded, would be so agréable to the People, or tend more to securing the Allegiance
of the new Subjects to His Majesty, as well as ensuring the Payment of those Fines
and Dues, which here stand in the Lieu of Quit Rents, than a formal Requisition of all
those immediately holding of the King, to pay Faith and Homage to him at his Castle
of St. Lewis ; The Oath, which the Vassals take upon the Occasion, is very Solemn and
Binding, they are obliged to furnish what they here Term their Aveu et Dénombrement, which is an exact Account of their Tenants and Revenues, and to discharge whatever they owe their Sovereign, and to appear in Arms for his Defence, in Case His
Province is ever attacked ; And at the same Time that it would prove a Confirmation
to the People of their Estates and Immunities, after which they most ardently sigh, it
might be a Means to recall out of the French .Service, such as have yet Possessions in
this Country, or at least oblige them to dispose of their Effects here, and although it
may not be possible, at least for a Time, entirely to prevent that Intercourse, every
Measure, that can tend towards putting an End to it, must be Useful.
The Canadian Tenures differ, it is true, from those in the other Parts of His
Majesty’s American Dominions, but if confirmed, and I cannot see how it well can be
avoided, without entirely oversetting the Properties of the People, will ever secure a
proper Subordination from this Province to Great Britain ; if it’s detached Situation
be Constantly Rembered, and that on the Canadian Stock we can only depend for an
Increase of Population therein, the Policy of Continuing to them their Customs and
Usages will be sufficiently Evinced.
For the foregoing Reasons it has occurred to His Majesty’s Servants here, that it
might prove of Advantage, if, whatever Lands remain Vacant in the Interior Parts of
the Province, bordering upon those, where the old Customs prevail, were henceforth
granted on the like Conditions, taking care that those at Gaspey and Chaleur Bay,
where the King’s old Subjects ought chiefly to be encouraged to settle, were granted on
such Conditions only, as are required by His Royal Instructions ; And, upon this Consideration, have some Grants, in the interior Parts, been deferred Carrying into Execution, untill I could receive the sense of Government thereupon.
Your Lordship may have perceived by some of my former Letters, that long before
His Majesty’s Order in Council of the 28a1 August2
came to my Hands, the Matter
therein Recommended had been the Object of my most serious Consideration ; the
Receipt of that Order has induced me to alter some Part of the Plan I at first Proposed
1
See Canadian Archives, Q 6-2, pp. 560-587.
2
See p. 199.
18—3—14
210 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to myself, and have accordingly directed the Abridgment mentioned to Your Lordship
in my Letter of 24a
December (No. 23)1
and undertaken by some of the ablest Men in
the Province to be further extended, and rendered more full and Copious, and to Comprise all the Laws in Force at the Conquest ; in the mean Time, to give Your Lordship,
and His Majesty’s other Servants, some Tdea of the .Nature of them, I herewith transmit to Your Lordship a shqrt Sketch, exhibiting only the Heads of those Laws%
; the
several Matters Recommended by that Order to the King’s Servants here, shall be prepared with all the Dispatch, that the Importance, as well as Extent of the Subject, can
possibly admit of.
I am with much Respect and Esteem
Your Lordship’s Most Obedient Humble Servant
GUY CARLETON
The Earl of Shelburne One of His Majesty’s
Principal Secretaries of State, &c.
INSTRUCTIONS TO GOVERNOR CARLETON 17683
INSTRUCTIONS to Our Trusty and Well beloved Guy Carleton Esquire, Our
Captain General and Governor in Chief in and over Our Province
of Quebec in America and of all Our Territories Dependent thereupon Given
First—With these Instructions You will receive Our Commission under Our
Great Seal of Great Britain, constituting You Our Captain General and Governor in
Chief in and Over Our Province of Quebec in America, bounded on the Labrador
Coast by the River S* John, and from thence by a Line drawn from the Head of that
River through the lake S* John to the South End of the Lake Nipisson ; from whence
the said Line crossing the River S’ Lawrence and the Lake Champlain in forty-five
Pegrees of North Latitude, passes along the Highlands which divide the Rivers that
Empty themselves into the said River S* Lawrence from those which fall into the Sea,
and also along the North Coast of the Bay des Chaleurs and the Coast of the Gulph
of S’ Lawrence to Cape Rosières and from thence .crossing the Mouth of the River
S’ Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid
River S* John- You are therefore to take upon you the Execution of the Office and
Trust We have reposed in You, and the Administration of Government, and to do and
Execute all things in due manner that shall belong to Your Command according to the
several powers and Authorities of Our said Commission under Our Great Seal of Great
Britain and these Our Instructions to You, or according to such further powers and
Instruction as shall at any time hereafter be Granted or appointed You under Our
Signet and Sign Manual or by Our Orders in Our privy Council, and you are to call
i See p. 201.
2
The summary of French laws, here mentioned, follows this despatch under the title, ” Coutumes
et usages anciens De La Province de Quebec.” and will be found in Q 5-2 pp. 482-559. The more complete compilation of the Trench law and constitution, represented as in force in Canada before the Conquest, was prepared, chiefly under the supervi&ion of F. J. Cugnet, and sent to Britain in Sept. 1769. In
1772 several compilations of the French Canadian laws &c. were published ; the most important beinç :—
” An Abstract of those parts of the Custom of the Viscounty and Provostship of Paris which were Received
and Practised in the Province of Quebec in the time of the Frpneb Government. Drawn up by a select
Committee of Canadian Gentlemen well skilled in the laws of France and of that Province by the desire of
the Hon. Guy Carleton Esq. Governor in Chief of the said Province, London 1772.”
” An Abstract of the Several Royal Edicts & Declarations and Provincial regulations and ordinances,
that were in force in the Province of Quebec in the time of the French Government ; and of the Commissions of the several Governors General and Intendants of the same Province during the same period. By
Francis Joseph Cugnet Esq Secretary to the Governor and Council of the said Province for the French
Language. By direction of Guy Carleton 1772.”
3
Canadian Archives, M. 230. p. 61.
CONSTITUTIONAL DOCUMENTS 211
SESSIONAL PAPER,No. 18
together at Quebec, which We do appoint to be the place of Your residence, and the
* principal Seat of Government the following persons whom We do hereby appoint to
be Our Council for Our said Province of Quebec, viz*. William Hey, Our Chief Justice
of Our said Province, Hector Theophilus Cramahé, James Goldirap, Hugh Finlay,
Thomas Mills, Thomas Dunn, Walter Murray, Samuel Holland, Francis Mounier,
Benjamin Price, and Colin Drumond Esquires—It is nevertheless Our Will and
Pleasure, that Our Chief Justice or Chief Justice for the time being shall not be
capable of taking upon him the Administration of the Government upon your Death
or Absence, or the Death or Absence of the Commander in Chief for our said province
for the cime being—
2. And You are with all due and usual Solemnity to cause Our said Commission
to be read and published at the said meeting of Our Council which being done, You
shall then take and also administer to each of the members of Our said Council, the
Oaths mentioned in an Act passed in the first year of the Reign of His Majesty King
George the first, inti tied ” An Act for the further Security of His Majestys person
” and Government, and the Succession of the Crown, in the Heirs of the late Princess
” Sophia being Protestants, and for extinguishing the hopes of the pretended Prince
” of Wales and his Open and secret abettors,” And in an Act passed in the sixth Year
of Our Reign, intitled, ” An Act for altering the Oath of Abjuration and the Assur-
” anee, and for amending so much of An Act of the seventh year of Her late Majesty
” Queen Anne, Intituled, An Act for the Improvement of the Union of the two King-
” doms, as, after the time therein Limitted requires the Delivery of certain Lists and
” Copies therein mentioned to persons Indicted of High Treason or Misprison of
” Treason ;” as also make and Subscribe, and cause them to make and Subscribe, the
Declaration mentioned in an Act of Parliament made in the 25th year of the Reign
of King Charles the second intituled ” An Act for preventing Dangers which may
” happen from Popish Recusants”—And You and every one of them are likewise to take
an Oàth for the due Execution of Your and their places and Trusts, with regard to
Your and their equal and impartial Administration of Justice ; And You are also to
take the Oath required by An Act passed in the seventh and eighth Years of the Reign
of King William the third to be taken by Governors of Plantations to do their Utmost
that the Laws relating to the plantations be observed.
3. And that We may be always Informed of the Names and Characters of persons
fit to Supply the Vacancies which shall happen in Our said Council, You are to transmit
to Us by One of Our principal Secretaries of State the Names and Characters of three
persons Inhabitants of Our said province who You shall esteem the best Qualified for
that Trust and You are also to Transmit a Duplicate of the said Account to Our Commissioners for Trade and plantations for their Information.
4. And if it shall at any time happen, that by the Death, Departure out of Our
said province, suspension of any of Our said Councellors, or otherwise, there shall be
a Vacancy in Our said Council, Our Will and Pleasure is that You signify the same to
Us, by One of Our principal Secretaries of State, by the first Opportunity, that We
may under Our Sign Manual, constitute and appoint others in their Stead ; to which
end You are whenever such Vacancy happens, to transmit unto Us .by One of Our
principal Secretaries of State, the Names of three or more persons, Inhabitants of Our
said provinèe whom you shall esteem best Qualified, for such Trust, and you are also
to Transmit duplicates of such Accounts to Our Commissioners for Trade and
plantations for their Information.
5. But that Our Affairs may not Suffer for want of a due number of Councillors ;
if ever it shall happen that there be less than Seven residing in Our said province,
We do hereby give and grant unto You the said Guy Carleton full power and Authority
to chuse as many persons out of the principal Inhabitants of our said province, as
will make up the full number of the Council to be seven and no more, which persons
so chosen and appointed by You, shall be to all Intents and purposes, Councillors in
Our said Province ’till either they shall be confirmed by Us, or, by the Nomination of
others by Us under Our sign Manual and Signet, Our said Council shall have seven, or
more persons in it.
1 8 – 3 – ^ 1 4 ^
212 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
6. And it is Our Will and Pleasure, that You do, and You are hereby Authorized
and Impowered to Suspend and amove any of the Members of Our said Council, from «
Sitting, Voting, and Assisting therein, if You shall find just Cause for so doing, and to
appoint others in their Stead until Our pleasure shall be known, I t is nevertheless
Our Will and Pleasure, that You do not Suspend or Remove any of the Members of
Our Council when they shall have been Confirmed by Us as aforesaid, without good
and sufficient cause, nor without the Consent of the Majority of the said Council,
signified in Council, after due Examination of the Charge against such Councillor,
and his Answer thereunto ; and in Case o£ suspension of any of them, You are to
cause Your Reasons for so doing, together with the Charges and proofs against such
person, and his Answer thereto be duly entered upon the Council-Books, And forthwith to transmit Copies thereof to Us, by one of Our principal Secretaries of State,
and also Duplicates to Our Commissions for Trade and Plantations for their Information nevertheless if it should happen that You should have Reasons for Suspending any
of the said Persons, not fit to be communicated to the Council, You may in that Case
suspend such person without the Consent of Our said Council ; but You are thereupon
immediately to send to Us by One of Our principal Secretaries of State An Account
of Your proceedings therein, together with Your Reasons at large for such suspension
as also your Reasons at large for not communicating the same to the Council and
Duplicates thereof by the tirst opportunity and you are also to transmit a Duplicate
of such Account to Our Commissioners for Trade and plantations for their Information.
7. Whereas We are Sensible that Effectual Care ought to be taken to oblige the
Members of Our Council to a due attendance therein, in order to prevent the many
Inconveniences that may “happen for the want of a Quorum of the Council to transact
business as occasion may require ; I t is Our Will and Pleasure that if any of the
Members of Our said Council shall hereafter absent themselves from the said Province
and Continue absent above the Space of Mix Months together, without leave from you,
or from Our Commander in Chief of Our said Province for the time being first
obtained, under your or his Hand and Seal, or shall remain absent for the Space of
One Year without Our Leave given them under Our Royal Signet and Sign Manual
their place or places in the said Council shall immediately thereupon become Void : and
that if any of the members of Our said Council, then residing in the province under
Your government shall hereafter wilfully absent themselves when duly summoned,
without a just and lawful Cause and shall persist therein after admonition, you suspend
the said Councillors so absenting themselves ’till Our further pleasure be known giving
Us timely Notice thereof ; And We do hereby Will and Require You that this Our
Royal Pleasure be Signified to the several Members of Our Council aforesaid, and
entered in the Council-Books of the province under Your Government as a Standing
rule—
8. You are forthwith to communicate such and so many of these Our Instructions
to Our said Council, wherein their Advice and Consent are mentioned to be requisite,
as likewise all such others, from time to time, as You shall find Convenient for Our
Service to be Imparted to them—
9. You are to permit the Members of Our said Council to have and Enjoy freedom
of Debate and Vote in all Affairs of publick concern that may be debated in
Council—
10. And Whereas it is directed by Our Commission to You under Our Great Seal,
that as soon as the Situation and Circumstances of Our said Province will admit thereof
You shall with the Advice of Our Council, Summon and call a general Assembly of the
Freeholders of Our said province, You are therefore as soon as the more pressing
Affairs of Government will allow, to give all possible attention to the carrying this
Important Object into Execution, but as it may be Impracticable for the present to
form such an Establishment You are in the mean time to make such Rules and
Regulations by the Advice of our said Council as shall appear to be necessary for the
peace Order and good government of our said province ; taking Care that nothing* be
done or passed that shall any way tend to affect the Life Limb or Liberty of the
CONSTITUTIONAL DOCUMENTS 213
SESSIONAL PAPER No. 18
Subject, or to the Imposing any Duties or Taxes ; and that all such rules and Regulations be transmitted to Us by the first Opportunity after they are passed and made
for our Approbation or Disallowance. And it is Our Will and Pleasure that when An
Assembly shall have been Summoned and met in such manner as you in Your discretion shall think most proper, or as shall be hereafter directed and appointed, the following Regulations be carefully observed in the framing and passing all such Laws
Statutes and Ordinances, as are to be passed by You with the Advice and Consent of
Our said Council and Assembly Viz’. That the Stile of Enacting the said Laws,
Statutes and Ordinances be by the Governor, Council and Assembly and no other—
That each different matter be provided for by a different Law without including in
one and the same Act, such things as have no proper relation to each other ;—That no
Clause be inserted in any Act or Ordinance which shall be foreign to what the title
of it Imports and that no perpetual Clause be part of any temporary Law ; —That no
Law or Ordinance whatever be suspended, altered Continued, revived or repealed by
general Words ; but that the title and Date of such Law or Ordinance be particularly
mentioned in the Enacting part ;—That no Law or Ordinance respecting private property be passed without a Clause suspending it’s Execution, until Our Royal Will and
pleasure is known, nor without a Saving of the Right of Us, Our Heirs and Successors, and of all Bodies Politick and Corporate, and of all other persons except such as
are mentioned in the said Law or Ordinance, and those claiming by, from, or under
them, and before such Law or Ordinance is passed, proof must be made before You in
Council and Entered in the Council-Books, that publick Notification was made of the
partys Intention to apply for such Act in the several parish Churches, where the Lands
in Question lye for three Sundays at least successively before any such Law or Ordinance”
shall be proposed ; and you are to transmit and Annex to the said Law or Ordinance
a Certificate under your Hand that the same passed through all the Forms above
mentioned; That in all Laws or Ordinances for the Levying Money, or Imposing
Fines, forfeitures or penalties, express mention be made, that the same is granted or
reserved to Us Our Heirs and Successors for the publick Uses of the said province,
and the Support of-the Government thereof, as by the said Law t>r Ordinance shall be
directed ; and that a clause be Inserted, declaring that the Money arising by the Operation of the said Law or Ordinance shall be accounted for unto Us in this Kingdom,
and to Our Commissioners of the Treasury or Our High Treasurer for the Time being
and audited by Our Auditor General of our Plantations or his Deputy—That all such
Laws, Statutes and Ordinances be transmitted by You within three Months after their
passing or sooner if opportunity offers, to Us, by One of Our principal Secretaries
of State and Duplicates thereof to Our Commissioners for Trade and plantations for
their Information—That they be fairly abstracted in the Margents and accompanied
with very full and particular observations upon each of them (that is to say) whether
the same is Introductive of a new Law, Declaratory of a former Law, or does repeal a
Law then in being And you are also to transmit in the fullest manner the Reasons
and Occasion for Enacting such Laws or Ordinances together with fair Copies of the
Journals of the proceedings of the Council and Assembly which You are to require
from the Clerks of the said Council and Assembly
11. And to the End that nothing may be passed or done to the prejudice of the
true Interests of this Our Kingdom the Just Rights of Us Our Heirs and Successors’
or the property of Our Subjects I t is Our Express Will and pleasure, That no Law
whatsoever which shall in any wise tend to Affect the Commerce or Shipping of this
Kingdom, or which shall any ways relate to the Rights and prerogative of Our Crown
or the property of Our Subjects or which shall be of an Unusual or Extraordinary
Nature be finally ratified or Assented to by You, until You shall have first transmitted
unto Us by one of Our principal Secretaries of State, and to Our Commissioners for
Trade and plantations for their Information a Draught of such Law, and shall have
received Our Directions thereupon Unless You take Care that a Clause be Inserted
therein, suspending and Deferring the Execution thereof until Our pleasure is known
concerning the same.—
214 : • ‘ CANADIAW ARCHIVES
6-7 EDWARD VII., A. 1907
12 And Whereas Laws have formerly been Enacted in several of Our Plantations
in America fpr so short a time that Our Royal Assent or Refusal thereof could not
be had before the time for which such Laws were Enacted did expire, You shall not
give Your Assent to any Law that shall be Enacted for a less time than two Years,
except in Cases of imminent Necessity, or imminent temporary expediency and You
shall not re-enact any Law to which Our Assent shall have been once refused, without
Express leave for that purpose first obtained from Us upon a full representation by
You to be made to Us by One of Our principal Secretaries, and to Our Commissioners
for Trade and Plantations for their Information, of the Reasons and necessity for
passing such Law ; nor give Your Assent to any Law for repealing any other Law,
which shall have passed in Your Government, and shall have received Our Royal
Approbation unless You fake Care that there be a Clause inserted therein Suspending
and Deferring the Execution thereof until Our pleasure shall be known concerning
the same—
13 And We do particularly require you to take care, that fair Books of Accounts of all Receipts and Payments of all publick Money be duly kept, and the truth
thereof attested upon Oath and that all such Accounts be audited and attested by Our
Auditor General of our plantations or his Deputy, who is to Transmit Copies thereof
to Our Commissioners of Our Treasury, or to Our High Treasurer for the time being
And that You do every half Year or oftener, send another Copy thereof, Attested by
Yourself to Our Commissioners for Trade and plantations, and duplicates thereof by
the next Conveyance ; in which Books shall be specified, every particular Sum raised,
or Disposed of together with the Names of the persons to whom any payment shall be
made, to the End We may be satisfied of the Right and due application of the
Revenue or Our said province with the probability of the Increase or diminution of it
under every head and Article thereof
14 And Wbereas the JVI embers of several Assemblies in the plantations have
frequently Assumed to themselves privileges no ways belonging to them especially of
being protected from Suits at Law during the Term they remain of the Assembly to
the great prejudice-of their Creditors and the Obstruction of Justice ; and some
Assemblies have presumed to adjourn themselves at pleasure without leave from Our
Governor first obtained ; and others have taken upon themselves the sole framing of
Money Bills, refusing to let the Council Alter or amend the same ; all which practices
are very detrimental to Our Prerogative. If therefore you find that the Members of
Our Province of Quebec Insist upon any of the. said Privileges, You are to signify to
them that it is Our Express Will and Pleasure, that You do not allow any protection
to any member of the Council or Assembly further than in their persons, and that
only during the sitting of the- Assembly, and that You do not allow them to adjourn
themselves otherwise than de diem, except Sundays and Holidays, without Leave from
you or the Commander in Chief for the time being first obtained : It is also Our
further pleasure that the Council have the like power of framing Money Bills as the
Assembly.—
15 And Whereas by Our aforesaid Commission under Our Great Seal of Great
Britain, You are authorized and impowered with the Advice and Consent of Our
Council to Constitute and appoint Courts of Judicature and Justice ; I t is therefore
‘Our Will and Pleasure, that You do as soon as possible apply Your attention to these
great and Important Objects and that in forming the necessary Establishments for
this purpose, You do consider what has been Established in t’his respect in Our other
Colonies in America more particularly in Our Colony of Nova Scotia—
16 Our Will and Pleasure is, that You or the Commander in Chief for the time
being do in all civil Causes, on application being made to You or the Commander in
Chief for the time being for that purpose, permit and allow appeals from any of the
Courts of Common Law in Our said Province until You or the Commander in Chief,
and the Council of the said Province, and You are for that purpose to Issue a Writ
in the manner which has been usually accustomed, returnable before Yourself and the
Council of the said province, who are to proceed to hear and Determine such Appeal,
wherein such of the said Council, as shall be at that Time Judges of the Court from
CONSTITUTIONAL DOCUMENTS 215
SESSIONAL PAPER No. 1’8
whence such appeal shall be so made to You Our Captain General, or to the Commander in Chief for the time being and to Our said Council as aforesaid shall not be
admitted to Vote upon the said Appeal, but they may nevertheless be present at the
hearing thereof, to give the Reasons of the Judgment given by them, in the Causes
wherein such Appeal shall be made provided nevertheless that in all such appeals
the Sum or Value appealed for do exceed the sum of three hundred pounds Sterling,
and that Security be first duly given by the Appellant to Answer such Charges as shall
be awarded in Case the first Sentence be affirmed ; and if either party shall not rest
satisfied with the Judgment of You or the Commander in Chief for the time being and
Council as aforesaid, Our Will and Pleasure is that they may then appeal unto Us
in Our privy Council ; Provided the Sum or Value so appealed for unto Us do exceed
five hundred pounds Sterling, and that suoh appeal be made within fourteen Days after
Sentence and good security given by the Appellant, that he will Effectually prosecute
the same and answer the Condemnatioli as also pay such Costs and Damages as shall
be awarded by Us in Case the sentence of You or the Commander in Chief for the
time being and Council be affirmed ; provided nevertheless where the matter in Question relates to the taking or Demanding any Duty payable to Us or to any Fee of
Office, or annual Rents or other such like matter or thing where the Rights in future
may be bound in all such Cases You are to admit An Appeal to Us in Our privy
Council, though the Immediate Sum or Value appealed for be of less Value ; And it
is Our further Will and Pleasure, that in all places where, by Your Instructions you
are to admit Appeals unto Us in Our privy Council, execution be suspended until
the final Determination of such Appeal, unless good and sufficient Security be given
by the Appellee to make ample Restitution of all that the Appellants shall have lost
by means of such Decree or Judgment in Case upon the Determination of such Appeal
such Decree or Judgment should be reversed and restitution awarded to the Appellant.
17. You are also to admit Appeals unto Us in Our privy Council in all Oases of
Pines Imposed for Misdemeanours provided the Fines so Impo^ed, Amount to or
Exceed One hundred pounds Sterling ; the Appellant first giving good Security, that
he will Effectually prosecute the same, and answer the Condemnation If the Sentence
by which such fine was Imposed in Quebec shall be Confirmed.
18. You are, with the Advice and Consent of Our Council in the Province under
Your government to take Especial care to regulate all Sallaries and fees belonging to
places, or paid upon. Emergencies, that they be within the bounds of Moderation, and
that no Exaction be made on any Occasion whatsoever ; as also that Tables of all Fees
be publickly hung up in all places where such Fees are to be paid and You are to
transmit Copies of all such Tables of Fees unto Us by One of Our principal Secretaries
of State and duplicates thereof to Our Commissioners for Trade and Plantations
for their Information—
19. I t is. Our Express Will and Pleasure that You do by the first Opportunity and
with all convenient Speed transmit unto Us by One of Our principal Secretaries of
State and duplicates thereof to Our Commissioners for trade and plantation for
their Information Authentick Copies of all Acts Orders Grants Commissions or other
powers by Virtue of which any Courts Offices, Jurisdictions, pleas, Authorities, Fees
and privileges, have been Settled or Established, for our Confirmation or Disallowance ; and in case all or any of them shall at any time or times be disallowed and not
approved tnen such and so many as shall be disallowed and not approved, and so
Signified by Us shall cease determine and be no longer continued or put in practice.—
20 You shall not appoint any person to be a judge or Justice of the peace, without
the advice and Consent of the Majority of the Members of Our Council, present in,
nor shall You Execute yourself or by Deputy and of the said Offices ; and it is Our
further Will and Pleasure that all Commissions to be Granted by You to any person
or persons to be Judges or Justices of the peace, or other necessary officers, be granted
during pleasure only—
21. You shall not displace any of the Judges Justices of the peace or other Officers
or Ministers without good and sufficient Cause, which You shall Signify in the fullest
and most Distinct manner to Us by one of our principal Secretaries of State and to
Our Commissioners £or Trade and Plantations for their Information—
216 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
22. And Whereas frequent Complaints have heretofore been made of Great Delays
and undue proceedings in the Courts of Justice in several of Our plantations, whereby
‘ many of Our Good Subjects have very much Suffered, And it being of the greatest
Importance to Our Service and to the Welfare of Our Plantations that Justice be
every where speedily and Duly administered, and that all Disorders Delays and other
undue practices, in the administration thereof be Effectually prevented ; We do particularly require You to take Especial Care, that in all Courts, where you are Authorized to preside, Justice be Impartially administered, and that in all other Courts,
established within Our said Province all Judges and other persons therein concerned
do likewise perform their several Duties without any Delay or partiality.
23. You are to take Care, that all Writs be issued in Our Name throughout the
Province under Your Government.
24. Whereas there are several Offices in Our plantations Granted under the Great
Seal of Great Britain, and Our Service may be very much prejudiced by reason of the
absence of the Patentees, and by their appointing Deputies not fit to officiate in their
Stead, You are therefore to Inspect such of the said Offices as are in the province
under Your Government, and to Enquire into the Capacity and behaviour of the persons exercising them, and to report thereupon to Us by One of Our principal Secretaries of State and to Our Commissioners for Trade and Plantations what You think
fit to be done or Altered in Relation thereunto ; and You are upon the misbehaviour
of any of the said Patentees or their Deputies to Suspend them from the Execution of
their Office ’till You shall have represented the whole matter unto Us as aforesaid
and received our Directions therein And in Case of the Death of any such Deputy,
I t is Our Express Will and pleasure, that you take Care, that the person appointed
‘ to Execute the place until the patentee can be Informed thereof and appoint another
Deputy, do give sufficient Security to the patentee, or, in Case of Suspension to the
person Suspended to be answerable to him for the profits accruing during such Interval
by death or during Suspension, in Case We shall think fit to restore the person Suspended to his place again—It is nevertheless Our Will and pleasure that the person
Executing the place during such Interval, by Death or Suspension shall for his Encouragement receive the same Profits as the person suspended or dead did receive ;
And it is Our further Will and Pleasure, that, in Case of a Suspension of a patentee,
the person appointed by You to Execute the office during such Suspension shall receive
a Moiety of the profits which would otherwise become due to such patentee, giving
Security to such patentee to be answerable to him for the’other Moiety, in Case We
shall think fit to restore him to his Office again, And it is Our further Will and
pleasure, that You do countenance and give all due Encouragement to all Our Patent
i Officers in the Enjoyment of their legal and Accustomed Fees, Rights privileges and
Emoluments according to the true Intent and meaning of their patents— 1
25. You shall not by Colour of any power or Authority hereby or otherwise
Granted or mentioned to be Granted unto You, take upon You to give, grant or
Dispose of any office or place within Our said Province which now is or shall be
Granted under the Great Seal of this Kingdom, or to which any person is or shall be
appointed by Warrant under Our Signet and Sign Manual, any further than that
You may, upon the Yacancy of any such Office or place, or upon the Suspension of any
such Officer by you, as aforesaid put in any fit person to Officiate in the Interval ’till
You shall have represented the matter unto Us by one of our principal Secretaries of
State ; and to Our Commissioners for Trade and Plantations, for their Information
as aforesaid, which Ycra are to do by the first Opportunity, and ’till the said Office
or place be disposed of by Us Our Heirs or Successors under the Great Seal of this
Kingdom, or until some person shall be appointed thereto by Warrant under Our
Signet and Sign Manual or Our further Directions be given therein—
26. And Whereas several Complaints have been made by the Officers of Our
Customs in Our plantations in America, that they have frequently been obliged to
serve as Jurors, and personally to Appear in Arms whenever the Militia is drawn Out
and thereby are much hindred in the Execution of their Employments, Our Will and
Pleasure is that- You take Effectual Care and give the necessary Directions that the
CONSTITUTIONAL DOCUMENTS 217
SESSIONAL PAPER No. 18
several officers of Our Customs be Excused and exempted from serving on any Juries,
or personally appearing in Arms in the Militia, unless in Cases of absolute Necessity
or serving any parochial Offices which may hinder them in the Execution of their Duty—
27. And Whereas We have Stipulated by the late Definitive Treaty of Peace concluded at Paris the 10th Day of February 1763 to Grant the Liberty of the Catholick
Religion to the Inhabitants of Canada, and that We will consequently giVe the most
precise, and most Effectual Orders, that Our New Roman Catholick Subjects in that
Province may profess the Worship of their Religion according to the Rites of the
Romish Church, as far as the Laws of Great Britain permit ; It is therefore Our Will
and Pleasure that You do in all things regarding the said Inhabitants Conform with
Great Exactness to the Stipulations of the said Treaty in this respect—
28. You are as soon as possible to Summon the Inhabitants to meet together at
such time or times, place or places, as You shall find Convenient in Order to take
the Oath of Allegiance, and make and Subscribe the Declaration of Abjuration mentioned in the aforesaid Act passed in the first Year of the Reign of King George the
1
st for the furthei Security of His Majestys person and Government, and the Sucession of the Crown in the Heirs of the late Princess Sophia, being Protestants, and for
Extinguishing the Hopes of the pretended Prince of Wales and his Open and Secret;
Abettors, and in the aforesaid Act passed in the Sixth Year of Our Reign for Altering the Oath of Abjuration and the Assurance and for amending so much of An Act
of the seventh Year of her late Majesty Queen Anne In titled An Act for the Improvement of the Union of the two Kingdoms as after the time therein Limitted requires
the Delivery of certain Lists and Copies therein mentioned to persons Indicted of High
Treason, or Misprison of Treason ; which Oath shall be Administered to them by such
person or persons as You shall Commissionate for that purpose, and in Case any of
the said French Inhabitants shall refuse to take the said Oath and make and Subscribe
the Declaration of Abjuration as aforesaid, You are to cause them forthwith to Depart
out of Our said Government—
29. And it is Our further Will and Pleasure that all such Inhabitants professing
the Religion of the Romish Church, do at all meetings, or at such other time or times
You shall think proper and in the manner you shall think least alarming and Incon
venient to the said Inhabitants Deliver in upon Oath an Exact Account of all Arms
and Ammunition of every sort in their Actual possession, and so from time to time, of
what they shall receive into their Possession as aforesaid—
30. You are as soon as possible to Transmit to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and plantations for their Information, an Exact and particular Account of the Nature and Constitution of the several
Religious Communities of the Romish Church, their Rights Claims privileges and
property, and also the Number Situation and Revenues of the several Churches heretofore established in Our said province together with the Number of Priests or Curates
Officiating in such Churches—
31. You are not to Admit of any Ecclesiastical Jurisdiction of the See of Rome,
or any other foreign Ecclesiastical Jurisdiction whatever in the province under Your
Government—
32. And to the End that the Church of England may be Established both in principles and practice, and that the said Inhabitants may by Degrees be Induced to Embrace the Protestant Religion, and that their Children be brought up in the principles
of it We do hereby declare it to be Our Intention, when the said Province shall have
been accurately Surveyed and Divided in Townships, Districts precincts or parishes in
such manner as shall be herein after directed, all possible Encouragement shall be
given to the Erecting protestant Schools in the said Districts Townships and precincts by Settling appointing and Allotting proper Quantities of Land for ‘that purpose ; and also for a Glebe and maintenance for a Protestant Minister and protestant
School Masters ; and You are to Consider and to Report to Us by one of Our principal Secretaries of State and to Our Commissioners for Trade and Plantations for
their Information, by what other means the Protestant Religion may be promoted,
established, and Encouraged in Our said province under Your Government.
218 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
33. And You are to take especial Care that God Almighty be devoutly and duly
served throughout Your Government ; the Bo >k of Common Prayer as by Law Established read each Sunday and Holiday ; and the blessed Sacrament administered
according to the Rites of the Church of England—
34. You are not to prefer any Protestant Minister to any Ecclesiastical Benefice
in the Province under your Government without a Certificate from the Right Reverend
Father in God the Lord Bishop of London, of his being Conformable to the Doctrine
and Discipline of the Church of England, and of good Life and Conversation—And
if any person hereafter preferred to a Benefice shall appear to You to give Scandal
either by his Doctrine and manners You are to use the best means for his Removal.—
35. You are to give Orders forthwith that every Orthodox Minister within Your
Government be one of the Vestry in his respective parish, and that no Vestry be held
without him, except in Case of Sickness or after Notice of a Vestry Summoned he
omit to come—
36. And to the End that the Ecclesiastical Jurisdiction of the Lord Bishop of
London may take place in Our Province under your Government as far as conveniently
may be, We do think fit that You give all Countenance and Encouragement to the
Exercise of the same, excepting only the collating to Benefices, granting Licences for
Marriage and probates of Wills which We have reserved to You our Governor and to
the Commander in Chief o’f Our said province for the time being—
37. And We do further Direct that no Schoolmaster who shall arrive in Our said
Province from this Kingdom, be henceforward permitted to keep School, without the
Licence of the said Lord Bishop of London, and that no other person now there or
that shall come from other parts shall be admitted to keep School in Your Government
without Your Licence first obtained.
38. And You are to take, Especial Care, that a Table of Marriages, established
by the Cannons of the Church of England be hung up in all places of Publick Worship
according to the Rites of the Church of England.
39. And it is Our further Will and Pleasure, that in Order to Suppress as much
as in You lies, every Species of Vice and Immorality, You forthwith do cause all Laws
already made against Blasphemy, Prophaneness, Adultry, Fornication, Polygamy,
Incest, profanation of the Lords Day, Swearing and Drunkenness to be rigorously
put in Execution in every part of Your Government, and that You take due care forthe punishment of these, and every other Vice and Immorality by presentment upon
Oath, to be made to the Temporal Courts by the Church Wardens of the several
parishes, at proper times of the Year to be appointed for that Purpose ; and for the
further Discouragement of Vice, and Encouragement of Virtue and good living (that
by such Examples the Infidels may be Invited and persuaded to Embrace the Christian
Religion,) You are not to admit any persons to publick Trusts and Employments in the
Province under Your Government whose ill Fame and Conversation may Occasion
Scandal—
40. And it is Our further Will and Pleasure, that all and every the French Inhabitants in Our said Province who are now possessed of Lands within the said Province
in Virtue of Grants or Concessions made before the Signing of the preliminary Articles
of Peace on the 3ra Day of Nov1
, 1762, within such Limitted time as You in Your
Discretion shall think fit, Register the several Grants or other Deeds, or Titles, by
which they hold or Claim such Lands, in the Secretarys Office which said Grants,
Deeds or other Titles, shall be Entered at large in the said Office, so that the particular
Quantity of Land, it’s Scite and Extent, the Conditions upon which it is Granted,
either as to Rents, Services, or Cultivation, may appear fully and at length—
41. And in Case it shall Appear, upon a Strict and Accurate Examination of the
said Grants and Title Deeds, to be taken in such manner as You shall think proper, that
a,ny of the Grantees or Persons claiming Lands under such Grants and Title Deeds, are
in Possession of more Land than is contained within such Grants or other Concessions,
or that the Terms and Conditions upon which the Lands were Granted have not been
complied with agréable to what is Stipulated in such G rants or Concessions, I t is Our
Will and Pleasure, that You forthwith represent the same to Us, by One of Our prin-
CONSTITUTIONAL DOCUMENTS 219
SESSIONAL PAPER No. 18
cipal Secretaries of State to the End You may receive such Directions thereupon as
the nature and circumstances of the Case shall appear to require, and You are to
send a Duplicate of such Representation to Our Commissioners for Trade and plantations for their Information—
42. And Whereas it is necessary in Order to the advantageous and Effectual
Settlement of Our said Province, that the true State of it should be fully known ;
You are therefore as soon as conveniently may be, to cause an Accurate Survey to be
made of the said Province, by such Able and Skilful person as is or shall be appointed
for that Service, who is to Report to You in Writing for Your Judgment in the
measures which You may in General pursue for the making of Settlements, not only
the Nature and Quality of the Soil and Climate, the Rivers Bays and Harbours,
and every other Circumstance attending the Natural State of it ; but also his opinion
in-what manner it may be most conveniently laid out into Counties, and to annex
to his Report a Map of such Survey, with the several Divisions proposed marked upon
it, But as the making such Survey, with the several Divisions proposed will be a Work
of Great Length, You are in the mean time to carry on Settlements upon that plan,
which shall appear to you to be most Expedient from the best Information You can
collect—
43. And Whereas it has been found by Experience, that the Settling Planters in
Townships hath very much redounded to their Advantage, not only with respect to the
Assistance they have been able to Afford each other in their Civil Concerns, but likewise with regard to the Security they have thereby acquired against the Insults and
Incursions of neighbouring Indians or other Enemies ; You are therefore to lay out
Townships of a Convenient Size and Extent in such places as You in Your Discretion shall Judge most proper ; And it is Our Will and Pleasure that each Township
do consist of about twenty thousand Acres, having as far as may be natural Boundaries,
extending up into the Country, and comprehending a necessary part of the River S*
Lawrence where it can be conveniently had—
44. You are also to cause a proper place in the most convenient part of each
Township to be marked out for building a Fort sufficient to contain such a Number
of Families as You shall judge proper to Settle there, with Town and Pasture Lots
convenient to each Tenement, taking Care that the said Town be laid out upon, or as
near as conveniently may be to some Navigable River or the Sea Coast, and You are
also to reserve to TJs proper Quantities of Land in each Township for the following
purposes, Viz* For Erecting Fortifications and Barracks where necessary or for other
Military or Naval Services, and more particularly for the Growth and Produce of
Naval Timber, if there are any Wood Lands fit for that purpose—
45. And it is Our further Will and Pleasure that a particular Spot in or as near
each Town as possible be set apart for the Building a Church, and four hundred
Acres adjacent thereto, allotted for the Maintenance of a Minister and two hundred
Acres for a Schoolmaster.
46. And You are to give Strict Orders to the Surveyors whom You shall Employ
to mark out the said Townships and Towns, to make returns to you of their Surveys
as soon as possible with a particular Description of each Township, and the Nature
of the Soil within the same.
47. And You are to oblige all such persons, as shall be appointed to be Surveyors
of the said Lands in each Township, to take an Oath for the due performance of their
Offices and for obliging them to make exact Surveys of all Lands required to be set out—
48 And Whereas nothing can more effectually tend to the Speedy settling our
said Colony, the Security of the property of Our Subjects and the advancement of
Our Revenue than the disposing of such Lands as are our property upon Reasonable
Terms, and the establishing a regular and proper method of proceeding with respect
to the passing of Grants of such Land ; I t is therefore Our Will and Pleasure that all
and every person and persons who shall apply to you for any Grant or Grants of Land
shall previous to their obtaining the same make it appear before You in Council, that
they are in a Condition to Cultivate and Improve the same by settling thereon in
proportion to the Quantity of Acres desired, a sufficient Number of white persons and
220 CANADIAN ARCHIVES
6-7 EDWARD Vil., Á. 1907
Negroes ; and in Case You shall upon a Consideration of the Circumstances of the
person or persons applying for such Grants, think it adviseable to pass the same, in
such Case You are to cause a Warrant to be drawn up, directed to the Surveyor
General or other proper Officers, empowering him or them to make a faithful and
Exact Survey of the Lands so petitioned for, and to return the said Warrant within
six Months at furthest from the Date thereof, with a plot or Description of the
Lands so Surveyed thereunto annexed, provided that You do take Care, that before any
such Warrant is Issued as aforesaid, a Docquet thereof be entered in the Auditors
and Registers Office, and when the Warrant shall be returned by the said Surveyor or
other proper Officer, the Grant shall be made out in due form, and the Terms and
Conditions required by these Our Instructions be particularly and Expressly mentioned
in the respective Grants : And it is Our Will and pleasure, that the said Grants
shall be registered within Six Months from the Date thereof in the Registers Office
there, and Docquet thereof be also entred in Our Auditors Office there, in case
such Establishment shall take place* in Our said Province, or that in Default thereof
such Grant shall be Void, Copies of all which Entries shall be returned regularly by
the proper Officer to Our Commissioners of Our Treasury and to Our Commissioners
for Trade and plantations within six Months from Date thereof.
49. And Whereas great Inconveniences have arisen in many of Our Colonys in
America from the granting excessive Quantities of Land to particular persons who
have never cultivated or Settled it, and have thereby Prevented others more Industrious
from Improving the same ; in Order therefore to prevent the like Inconveniences for
the future, You are to take especial Care, that in all Grants to be made by You, by and
with the Advice and Consent of Our Council, to persons applying for the same, the
Quantity be in proportion to their Ability to Cultivate : And You are hereby directed
to observe the following Disections and Regulations in all Grants to be made by You
Viz :
That One hundred Acres of Land be granted to every person being Master or
Mistress of a Family for himself or herself and fifty Acres for every White or Black
Man Woman or Child of which such persons Family shall consist, at the Actual
time of making the Grant, and in Case any Person applying to You for Grants of
Land shall be desirous of taking up a larger Quantity than the Actual Number of
Persons in his or her Family would Intitle such persons to take up, It is Our Will
and Pleasure and You are hereby allowed and permitted to grant unto every such
person or persons such further Quantity of Land as they may desire, not exceeding
one thousand Acres over and above what they are entitled to, by the number of persons
in their respective Families, provided it shall appear to you that they are in a Condition
and Intention to Cultivate the same ; and provided also that they do pay to the
Receiver of Our Quit rents or to such other Officer as shall be appointed to receive the
same the Sum of five Shillings only for every fifty Acres so Granted on the Day of the
Date of the Grant.—
That all Grantees be Subject to the payment of two Shillings Sterling for every
hundred Acres to commence at the expiration of two Years from the Date of such
Grant and to be paid Yearly and every Year, or in Default of such payment the
Grant to be void—
That every Grantee upon giving proof that he or she has fulfilled the Terms and
Conditions of his or her Grant, shall be Entitled to another Grant in the proportion
and upon the Conditions above mentioned.—
That for every fifty Acres of Land accounted plantable each patentee shall be
Obliged within three Years after the Date of his patent to clear and Work three Acres
at the least in that part of his Tract which he shall Judge most Convenient and
Advantageous, or else to clear- and drain three Acres of Swampy or sunken Grounds or
drain three Acres of Marsh if any such be within the Bounds of His Grant—
That for every fifty Acres of Land accounted Barren every patentee shall be obliged
to put and keep on his Land within three years after the Date of his Grant three neat
Cattle which number shall be obliged to continue on bis Land until three Acres for
every fifty be fully cleared and Improved
CONSTITUTIONAL DOCUMENTS 221
SESSIONAL PAPER No. 18 I
That if any person shall take up a tract of Land -wherein there shall be no part
fit for present Cultivation without manuring and improving the same every such
Grantee shall be obliged within three years from the Date of his- Grant, to Erect on
some part of his Land one Good Dwelling House to contain at least twenty feet
in length and Sixteen Feet in Breadth and also to put on his Land the like Number
of three neat Cattle for every fifty Acres— ‘
That if any person who shall take up any Stony or Rocky Grounds not for
planting or pasture shall, within three years after the passing of his G rant begin to
Employ thereon, and so continue to work for three years then next ensuing in Digging
any Stone Quarry or other Mine one good able Hand for every hundred Acres of such
Tract, it shall be accounted a sufficient Cultivation and Improvement.
That every three Acres which shall be Cleared and “Worked as aforesaid, and
every three’ Acres which shall be Cleared and Drained as aforesaid, shall be accounted
a sufficient Seating^ plantation, Cultivation and Improvement to save for ever from
Forfeiture fifty Acres of Land in any part of the Tract contained within the same
patent ; and the patentee shall be at Liberty to withdraw his Stock, or to forbear working in any Quarry or mine, in proportion to such Cultivation and Improvement, as shall
be made upon the Swamps, sunken Grounds and Marshes whieh shall be Included in
the same patent—
That when any person who shall hereafter take up and patent any Lands, shall
have seated planted and Cultivated, or Improved the said Land or any part of it
according to the Directions and Conditions above mentioned such patentee may make
proof of such Seating planting Cultivation and Improvement in the General Court, or
in the Court of the County, District or precinct where such Lands shall lie, and have
such proof certified to the Registers Office and there entered with the Record of the
said patent, a Copy of which shall be admitted on any Trial to prove the Seating and
planting of such Land.
And Lastly to ascertain the true Quantity of Plantable and Barren Land contained
in each Grant hereafter to be made within Our said province You are to take especial
Care that in all Surveys hereafter to be made every Surveyor be required isnd enjoyned
to take particular Notice according to the best of his Judgment and understanding how
much of the Land so Surveyed is plantable and how much of it is Barren and unfit for
Cultivation, and according to Insert in the Survey and plot to him to be returned into
the Registers Office the true Quantity of each kind of Land.
50. And Whereas it hath been represented to Us that the Governors of several of
Our Colonies in America have Granted Lands away close to the Forts belonging to
Us by which means the Garrisons of such Forts have been obliged to pay the proprietors of those Lands extravagant prices for Wood cut for a necessary supply of
Fuel, and thereby a great and Unreasonable Expense has been brought upon the
Military Contingencies I t is Our Express Will and Pleasure that You do take
Especial Care, that in all Warrants for Surveying of Lands adjacent or Contiguous
to a Fort or Fortification, whether such Warrant be Granted upon an Original Petition to you in Council, or upon Our Order in Our privy Council there be an Express
Direction to the Surveyor that he do reserve to Us Our Heirs and Successors for the
Use of the Fort, near to which the Lands shall lye such a part of the Land petitioned
for (being Woodland) and in such a situation as the Commander in Chief of the
said Fort (with whom he is to be required to Consult and Advise in all such Cases)
shall Judge Convenient and sufficient for a permanent and Certain Supply of Fuel
for such a Garrison as the said Fort may be able to Contain. And it is Our further
pleasure, that a regular plot of such reserved Land, describing the Bounds, expressing
the Quantity of Acres, and properly signed and attested by such Surveyor, be delivered
to the Commanding Officer of each Fort, to be there publickly hung up and a Duplicate
thereof also Recorded in the Secretary’s Office* or other proper Office of Record in Our
province under Your Government ; and as we judge the due Execution of this Our
Order to be essential to Our Service, You are hereby required to take Care, that the
Regulations above prescribed be duly entered upon the Council Books of Our said
Province, as a standing Order to all persons, who may be Intrusted with the powers to
which they referr—
222 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
51. And it is Our further Will and Pleasure that in all Grants of Lands to be
made by You as aforesaid, regard be had to the profitable and unprofitable Acres so
that each Grantee may have a proportionable Number of One Sort and the other ; as
likewise that the Breadth of each Tract of Land to be hereafter Granted be one third
of the Length of such Tract, and that the Length of each Tract do not Extend along
the Banks of any River but into the Main Land that thereby the said Grantees
may have each a Convenient Share of what accommodation the said River may Afford
for Navigation or otherwise—
52. And Whereas it hath been represented to Us, that many Parts of the Province under your Government are particularly adapted to the Growth and Culture of
Hemp and Flax, I t is therefore Our Will and pleasure that in all Surveys of Land for
Settlement, the Surveyor be directed to Report whether there is any or what Quantity
of Lands contained within such Survey, fit for the production of Hemp and Flax and
you are to take particular Care to insert a Clause in every Grant*of Land where any
part thereof is fit for such production, obliging the Grantee annually to sow a proportionable part of his Grant with Hemp or Flax Seed—
53. And Whereas it hath been further represented to Us that a great part of the
Country in the Neighourhood of Lake Champlain, and between that Lake and the
River S’ Lawrence, abounds with Woods, producing Trees fit for masting for Our
Royal Navy, and other Useful and necessary Timber for naval Construction ; You
are therefore expressly directed and required to cause such parts of the said Country
or any other within Your Government, that shall appear upon a Survey to abound
with such Trees and shall lye convenient for Water Carriage, to be reserved to Us, and
to Use Your best Endeavour to prevent any Waste being Committed upon the said
Tracts by punishing in due Course of Law any persons who shall Cut Down or Destroy
any Trees growing thereon, and You are to Consider and advise with Our Council,
whether some Regulation that shall prevent any Saw Mills whatever from being
Erected within your Government withouf*a Licence from you or the Commander in
Chief of Our said Province for the time being, may not be a means of preventing all
Waste and Destruction in such Tracts of Land as shall be reserved to Us for the purposes aforesaid—
54. And Whereas it appears from the Representations of Our late Governor of
the District of Trois Rivieres that the Iron Workb at S’ Maurice in that District are
of great Consequence to Our Service ; It is therefore Our Will and Pleasure that no
part of the Lands, upon which the said Iron Works were carried on, or from which
the Ore Used in such Works was procured, which shall appear to be necessary and
Convenient for that Establishment, either in respect to a free passage to the River S”
Lawrence, or for producing a necessary Supply of Wood, Corn and Hay, or for pasture
for Cattle, be Granted to any private person whatever, and also that as large a District
of Land, as conveniently may be adjacent to and lying round the said Iron Works, over
and above what may be necessary for the above purposes be reserved for Our Use to be
disposed of i n such manner as We shall hereafter direct and appoint—
55. And Whereas it is necessary that all Persons who may be desirous of Settling
in Our said province, should be fully Informed of the Terms and Conditions upon
which Lands will be granted in Our said province, You are therefore as soon, as possible
to cause a publication to be made by proclamation or otherwise as you in Your Discretion shall think most ad viseable of all and every the aforegoing Terms, Conditionsand Regulations of every kind respecting the Grants of Lands, in which proclamation
it may be Expedient to add some short Description of the natural Advantages of the
Soil and Climate, and its peculiar Advantages for Trade and Navigation ; and you are
to take such Steps as You shall think proper for the publishing such proclamation in
all the Colonies in North America—
56. And it is Our further Will and Pleasure that all the foregoing Instructions
to’ You as well as any which You may hereafter receive relative to the form and
method of passing Grants of Lands, and the Terms and Conditions to be annexed to
such Grants be entered upon Record with the Grants themselves for the Information
and Satisfaction of all parties whatever that may be concerned therein. ‘
CONSTITUTION AL DOCUMENTS 223
SESSIONAL PAPER No. 18
57. And it is Our further Will and Pleasure that You do consider of a proper
and Effectual Method of Collecting receiving and accounting for Our Quit Rents
whereby all Frauds Concealment Irregularity or Neglect therein may be prevented
and whereby the Receipt thereof may be Effectually chequed and Controlled, and if
it shall appear necessary to pass An Act for the more effectually ascertaining and the
more speedily and regularly collecting Our Quit Rents, You are to prepare the Heads
of such a Bill, as you shall think may most Effectually conduce to the procuring the
good Ends proposed, and to Tiansmit the same to Us by one of Our principal Secretaries of State, for Our further Directions therein, and You are also to Transmit a
Duplicate thereof to Our Commissioners for Trade and plantations for their Information—
58. And it is Our further Will and Pleasure that the Surveyor General or such
other person or persons as you shall think proper to Appoint^ do, once in every Year
or oftener, as Occasion shall require, inspect the State of all Grants of Land made
by you, and make Report thereof to You in Writing, Specifying whether the Conditions therein contained have or have not been complied with, or what Progress has
been made towards fulfilling the same ; and you are annually to transmit Copies of
such Reports to Us by One of Our principal Secretaries of State, and Duplicates
thereof to Our Commissioners for Trade and Plantations for their Information—
59. And Whereas Our Province of Quebec is in part Inhabited and Possessed by
several Nations and Tribes of Indians, with whom it is both necessary and Expedient
to cultivate and maintain a Strict Friendship and good Correspondence, so that they
may be Induced by Degrees not only to be good Neighbours to Our Subjects, but
likewise to be good Subjects to Us, You are therefore as soon as You conveniently
can, to appoint a proper person or persons to Assemble and treat with the said Indians,
promising and Assuring them of Protection and Friendship on our part and delivering
them such presents as shall be sent to You for that purpose—
60. And You are to Inform yourself with the greatest Exactness of the Number,
Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of
their Lives, and the Rules and Constitutions by which they are governed and regulated,
and You are upon no Account to molest or disturb them in the possession of the said
province as they at present Occupy, or Possess, but to Use the best means You can
for Conciliating their Affections and Uniting them to Our Government, reporting
to Us, by One of Our principal Secretaries of State, and to Our Commissioners for
Trade and Plantations whatever Information You can collect with respect to these
people, and the whole of Your proceedings with them.—
61. Whereas We have by Our proclamation dated the 7th Day of” October in the
3
a
Year of Our Reign, strictly forbid, on pain of Displeasure, all our Subjects from
making any purchases or Settlements whatever, or taking possession of any of the
Lands reserved to the several Nations of Indians, with whom we are connected, and
who live under our protection without our especial leave for that purpose first
obtained I t is Our Express Will and Pleasure that you take the most Effectual Care,
that Our Royal Directions herein be punctually complied with, and that the Trade
with such of the said Indians as depend upon Your Government be carried on in the
manner and under the Regulations prescribed in Our said proclamation—
62. You are to use Your best Endeavours in Improving the Trade of those parts
by settling such Orders and Regulations therein, with the Advice of our said Council
as may be most acceptable to the Generality of the Inhabitants. And it is Our Express
Will and Pleasure, that You do not upon any pretence Whatever, upon pain of Our
Highest Displeasure, give Your Assent to any Law or Laws for setting up any Manufactures and carrying on any Trades which are hurtful and prejudicial to this Kingdom, and that You do Use Your Utmost Endeavours to discourage, discountenance
and restrain any Attempts which may be made to set up such Manufactures or establish any such Trades—
63. And it is Our Will and Pleasure, that You do not dispose of any Forfeitures
or Escheats to any Person, until the Sheriff or other proper Officer have made Enquiry
by a Jury upon their Oaths, into the true Value thereof, nor until You have transmitted
224 CANADIAN ARCHITES
6-7 EDWARD VII., A. 1907
to Our Commissioners of Our Treasury a particular Account of such Forfeitures and
Escheats, and the Value thereof. And You are also to take Care that the produce of
such Forfeitures and Escheats, in Case We think proper to give You Directions to
dispose of the same, be duly paid to Our Treasurer or Receiver General of Our said
province, and a full Account transmitted to Our Commissioners of Our Treasury,
or Our High High Treasurer for the Time being with the Names of the persons to
whom disposed.
64. And Whereas Commissions have been Granted unto several persons in Our
Respective Plantations in America for the Trying of pirates in those parts pursuant
to the Acts for the more Effectual Suppression of Piracy. And by a Commission
already sent to Our province of New York Our Governor there is Impowered together
with others therein mentioned to proceed accordingly in Referrence to Our said
Province ; Our Will and pleasure is that you do Use Your best Endeavours to apprehend all persons whatever who may have been guilty of Piracy within Your Government or who having Committed such Crimes at other places may come within your
Jurisdiction; and until we shall think proper to direct the like Commission to be
Established for Our Government of Quebec, You are to send such pirates with what
proofs of their Guilt You can procure or Collect, to Our Governor of New York to be
tryed and punished under the Authority of the Commission established for those
parts—
65. And Whereas You will Receive from our Commissioners for Executing the
Office of High Admiral of Great Britain, and of Our Plantations, a Commission
constituting You” Vice Admiral of Our said Province, You are hereby required and
Directed Carefully to put in Execution the several powers thereby Granted you—
66. Whereas great Inconveniences have happened heretofore by Merchant Ships
and other Vessels in the Plantations, wearing the Colours born by Our Ships of War
under pretence of Commissions granted to them by the Governors of the said plantations, and by trading under those Colours not only amongst Our Own Subjects, but
also those of other princes and States, and committing divers Irregularities, they
may very much dishonor Our Service ; For preventing thereof You are to oblige
the Commanders of all such Ships, to which You shall grant Commissions, to wear
no other Colours than such as are described in an Order of Council of the 7th of
January 1730 in relation to Colours to be Worne by all Ships and Vessels, Except Our
Ships of War.
67. And Whereas there have been some great Irregularities in the manner of
Granting Commissions in the plantations to private Ships of War, You are to govern
yourself, whenever there shall be Occasion according to the Commission and Instructions granted in this Kingdom but You are not to grant Commissions of Marque or
Reprisal against any prince or State or their Subjects in Amity with TJs to any
person whatsoever without Our Especial Command.
68. Whereas We have been Informed that during the time of War Our Enemys
have frequently got Intelligence of the State of our plantations by Letters from
private persons to their Correspondence in Great Britain, taken on Board * Ships
coming from the plantations, which has been of Dangerous Consequence ; Our Will and
Pleasure therefore is, that You signify to all Merchants, Planters and others, that
they be very Cautious in time of War whenever that shall happen in giving any
Account by the Letters of the publick State and Condition of Our province under
your Government ; And You are further to give directions to all masters of Ships or
other persons to whom you may Entrust Your Letters, that they put such Letters
into a Bag, with a Sufficient Weight to sink the same Immediately in case of Imminent Danger from the Enemy, and You are also to let the Merchants and Planters
know, how greatly it is for their Interest that their Letters should not fall into the
Hands of the Enemy ; and therefore that they should give like Orders to Masters of
Ships in Relation to their Letters ; and You are further to advise all Masters of Ships
that they do sink all Letters in Case of Danger in the manner before mentioned—
69.—And Whereas the Merchants and Planters in Our plantations in America
have, in time of War, Corresponded and traded with” our Enemies, and carried
CONSTITUTIONAL DOCUMENTS 225
SESSIONAL PAPER No. 18
Intelligence to them, to the great Prejudice and Hazard of Our said plantations ; You
are therefore by all possible Methods, to endeavour to hinder such Trade and Correspondence in time of War—
70. And You are to Report to Us, by one of Our principal Secretaries of State ;
What is the Nature of the Soil and Climate of the province under your Government,
if it differs in those Circumstances from Our other Northern Colonies, in what that
Difference consists, and what beneficial Articles of Commerce the different parts of it
are capable of producing ?—
What Rivers there are, and of what extent and convenience to the planters 1
What are the principal Harbours, how situated, of what extent, and what is the
Depth of Water and Nature of the Anchorage in each of them 1
What Quantity of Land is now under actual Improvement and Settlement 1 what
are the chief Articles of produce and Culture, the annual amount of the Quantity of
each, and upon what Terms and Conditions the Inhabitants hold their Lands, either of
Cultivation Rent, or personal Service ?—
What is the Quantity, Nature and property of the Land uncultivated, how much
•of it is capable of Culture, and what part thereof is private property 1—
What is the number of Inhabitants, Whites and Blacks distinguishing each ; what
number of the former is capable of bearing Arms, and what number of the latter is
annually necessary to be supplied in proportion to the Land Cultivated.
What was the nature, form and Constitution of the Civil Government ; what
Judicatures were there Established, and under the Regulations did the french
Inhabitants carry on their Commerce ; and You are to transmit a Duplicate of such
Account to Our Commissioners for Trade and plantations for their Information.
71. You are from time to time to send unto Us by One of Our principal Secretaries
of State as aforesaid ; An ‘account of the Increase and Decrease of the Inhabitants,
W hites and Blacks ; And also an Account of all persons, Born, Christened and Buried
and You are to Transmit duplicates of such Accounts to Our Commissioners for
Trade and plantations for their Information.
72.—Whereas it is absolutely necessary that We be exactly Informed of the State
of Defence of all our plantations in America, as well in Relation to the Stores of
War that are in each plantation, as to the Ferts and Fortifications there, and what
more may be necessary to be built for the Defence and Security of the same, You are
as soon as possible to prepare an Account thereof with Relation to Our said province
in the most particular manner, and You are therein to Express the present State of the
Arms, Ammunition, and other Stores of War, belonging to the said Province, either
in publick Magazines, or in the Hands of private persons ; together with the State of
all places, either already forfeited or that you Judge Necessary to be forfeited
for the Security of Our said province ; and You: are to transmit the said
Accounts to Us by One of Our Principal Secretaries of State, and also Duplicates
thereof to Our Commissioners for Trade and Plantations, for their Information, and
also a Duplicate thereof to Our Master General or Principal Officers of Our Ordnance ;
which Accounts are to Express the particulars of Ordnance, Carriages, Balls, Powder,
and other Sorts of Arms, and Ammunition in Our publick Stores, and so from time to
time of what shall be sent to you, or bought with the publick Money, and to Specify
the time of ^the disposal and the Occasion thereof ; and You are half yearly to transmit
a General Account of the State of the Fortifications and Warlike Stores, specified in
the manner above mentioned—
73. You are from time to cime to give an Account what Strength your Neighbours
have by Sea and Land, and of the Condition of their plantations, and what Correspondence You keep with them—
74. And in Case of any Distress of any other of Our plantations, You shall, upon
application of the respective Governors thereof unto you, assist them with what aid the
Condition and Safety of Our province under Your Government can spare.
75. If any thing shall happen which may be of advantage or Security to Our
province under Your Government, which is not herein, or by Your Commission provided for, We do hereby allow unto You with the Advice and Consent of Our Council,
18—3—15
226 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to take Order for the present therein, giving unto Us by One of Our principal Secretaries of State Speedy Notice thereof, that You, may receive Our Ratification, if We
shall approve the same ; Provided always that You do not, by Colour of any power or
Authority hereby given You, Commence or Declare War without Our Knowledge
and particular Commands therein ; and you are also to Transmit duplicate of such
Notice, as aforesaid, to Our Commissioners for Trade and plantations for their Information—
76. And Whereas We have by the first Article of these Our Instructions to You
directed and Appointed, that Your Chief Residence shall be at Quebec, You are nevertheless frequently to Visit the other parts of Your Government, in Order to Inspect
the Management of all publick Affairs and thereby the better to take care, that the
Government be so administered, that no disorderly practice may grow up contrary to
Our Service and the welfare of Our Subjects—
77.—And Whereas great Prejudice may happen to Our service, and the security of
the Province by Your absence from those parts, You are not upon any pretence
whatsoever to come into Europe, without having first obtained leave for so doing from
Us under Our Sign Manual and Signet or by Our Order in Our privy Council; Yet
nevertheless in Case of Sickness, You may go to South Carolina, or any other of Our
Southern plantations, and there Stay for such Space as the Recovery of Your Health
may absolutely require—
78. And Whereas We have thought fit by Our Commission to direct, that in Case of
Your Death or absence from Our said province, and in Case there be at that time no
person within Our said province Oommissionated or Appointed by Us to be Our
Lieutenant Governor or CoiSander in Chief that the Eldest Councillor, who shall be
at the time of Your Death or absence residing within Our said Province under Your
Government, shall take upon him the Administration of Government, and execute
our said Commission and Instructions, and the several powers and Authorities therein
directed—It is nevertheless Our Will and Pleasure that in sudh Case the said President shall forbear to pass any Act or Acts but what are immediately necessary for
the peace and Welfare of the said Province, without our particular Orders for that
purpose, and that he shall not remove or Suspend any of the Members of Our Council,
nor any Judges, Justices of the peace, or other Officers Civil or Military, without the
advice and consent of at least Seven of the Members of Our said Council, nor even
then without good and sufficient Reasons for the same which the said President is by
the first Opportunity to transmit Signed by himself and the rest of Our said Council,
to Us by One of Our principal Secretaries of State, and he is also to transmit a
Duplicate of such Reasons to Our Commissioners for Trade and plantations for their
Information— ,
79 And Whereas We are willing in the best manner to provide for the Support
of the Government of Our Province aforesaid, of which You are Governor, by setting
apart sufficient allowances to such as shall be Our Governor or Commander in Chief
residing for the time being within the same, Our Will and Pleasure is, that when it
shall happen, that You shall be Absent from Our said Province, One full Moiety of the
Salary and all perquisites and Emoluments whatsoever, which would otherwise become
due unto you, shall during the time of Your absence, be paid and satisfied unto Our
Commander in Chief, who shall be resident within our said province for the time
being, which we do hereby Order and allot to him for his Maintenance and for the
better Support of the Dignity of that Our Government.
80. And You are upon all Occasions to send unto Us by One of Our principal
Secretaries of State a particular Account of all Your proceedings, and of the Condition of
for Affairs within Your Government, and also a Duplicate thereof to Our CofSissioners
Trade and plantations, for their Information, except in eases of a Secret Nature—
MEMORANDUM—The Instructions relative to the Acts of Trade and Navigation
for Gov’ Carleton are the same with those given to Gov1
Shirley for the Bahama
Islands—
Plantation Book, 1767-1771 Privy C O . »
Quebec. General Instructions, Gov. Carleton, approved by His Majesty in Council
the day of 1768.
CONSTITUTIONAL DOCUMENTS , 227
SESSIONAL PAPER No. 18
HILLSBOROUGH TO CARLETON.1
WHITEHALL 12th Oct1
1768.
Gov1
CARLETON.
SIR,
* * * * * *
The proper support and enjouragement to be given to the Church of England as
well as the necessary toleration to be allowed to His Majesty’s new subjects in the
exercise of the Roman Catholic Religion, will be matters of serious attention in the
consideration of the general regulations for the Colony of Quebec, which important
business is, I trust, now drawing near to some conclusion.
In the mean time His Majesty does not doubt that you will give all necessary protection to the new subjects in the exercise of their religion ; and is pleased to recommend it to you particularly to countenance the established Church, and to take care
that the Offices of it are administered with a decency corresponding to the purity of its
principles.
* * * * * *
I am &c.
HILLSBOROUGH
CARLETON TO HILLSBOROUGH. 2
Secret Correspondence QUEBEC Nov1
20th 1768.
M Y LORD Since my arrival in this province, I have not been able to make any
discovery, that induces me to give credit to the paper of intelligence inclosed in your
Lordships letter of the 14′” of May last3
; nor do I think it probable the Chiefs of their
own free motion in time of peace, dare assemble in numbers, consult, and resolve on a
revolt ; or that an assembly of military men should be so ignorant, as to fancy they
could defend themselves by a few fireships only, against any future attack from GreatBritain, after their experience in fifty nine. Notwithstanding this, and their decent
and respectful obedience to the Kings government hitherto, I have not the least doubt
of their secret attachments to franco, and think this will continue as long as they are
excluded from all employments under the Brittish Government, and are certain of being
reinstated, at least in their former Commissions under that of france, by which chiefly
they supported themselves, and families.
When I reflect, that france naturally, has the affections of all the people ; that, to
make no mention of fees of Office & the vexations of the Law, we have done nothing to
Gain one man in the province, by making it his private interest to remain the King s
Subject; and that the interests of many would be greatly promoted by a revolution; I
own, mv not having discovered a treasonable correspondence, never was proof sufficient
to convince me, it did not exist in some degree, but I am inclined to think, if such a
message has been sent very few were entrusted with the secret : perhaps the Court ot
france, informed a year past by Monsr
de Chatelefc, that the King purposed raisign a
Regiment of His new subjects, csused this piece of intelligence to be communicated, to
create a jealousy of the Canadians, and prevent a measure that might fix their attachments to the Brittish government, and probably, of those Savages who have always
acted with them : however that be, on receiving this news from france last Spring, most
of the Gentlemen in the province applied to me, and begged to be admitted into the
M W i i a n Archives Q 5-2, p. r i e T ^ ñ ^ r t i ^ O T i t t e c l refer to the appointment of two ministers
of the Church of England to the parishes of Quebec and Three Rivers, and the objections of Oarleton to
W e of them, formerly a French Jesuit.
2
Canadian Archives, Q 5-2, p. 890. . , , , – , j – A I,;™„
3 This letter does not appear among the State Papers m the Canadian Archives.
18—3–15A
228 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
King’h Service, assuring me they would take every opportunity to testify their zeal, and
gratitude for so great a mark of favour & tenderness, extended, not only to them, but
to their posterity.
When I consider further ; that the Kings dominion here is maintained here but
by a few troops, necessarily dispersed, without a place of security for their magazines,
for their Arms, or for themselves ; amidst a numerous military people, the Gentlemen
all Officers of experience, poor, without hopes that they or their descendants will be
admitted into the service of their present Sovereign, I can have no doubt that france,
as soon as determined to begin a war will attempt to regain Canada, should it be
intended only to make a diversion, while it may reasonably be undertaken with little
hazard, should it fail, and where so much may be gained, should it succeed. But should
france begin a War in hopes the Brittish-colonies will push matters to extremities, and
she adopts the project of supporting them in their independent notions, Canada,
probably, will then become the Principal scene, where the fate of America may be
determined. Affairs in this situation, Canada in the hands of france would no longer
present itself as an enemy to the Brittish colonies, but as an ally, a friend, and a protector of their Independency. Your Lordship must immediately perceive the many
disadvantages Great Britain would labour under in a war of this nature ; and on the
other hand, h JW greatly Canada might for eVer Support the Brittish interests on this
Continent, for it is not united in any common principle, interest, or wish with the other
Provinces, in opposition to the Supreme-seat^ of Government, was the King’s dominion
over it only strengthened by a Cittadel, which a few national troops might secure, and
the natives attached, by making it their interest to remain His Subjects.
My letters to the Ear] of Shelburne JSTo— 20, 23, 24, 25, & 26,1
contain more fully
my humble opinion of the measures necessary to obtain this desirable End, convinced,
that the affections of the Canadians, or a great force, is necessary to secure this province in time of War, or, at least, till the marine of france is thoroughly subdued : to
those letters I refer your Lordship for further particulars, and am, with great regard,
and esteem,
Your Lordships most Obedient & most humble Serv’
GUY CARLETON
To the Earl of Hillsborough
A DRAUGHT of An Intended Report of the Honourable the Governor in
Chief and the Council of the Province of Quebec to the King’s most
Excellent Majesty in his Privy Council ; concerning The State of the
Laws and the Administration of Justice in that Province. ~
May it please your Majesty,
In humble obedience to your Majesty’s order in council, of the 28th day
of August 1767,3
wherein your Majesty is please i to order that we should
report to your Majesty,
First. Whether any, and whaf
, defects are now subsisting in the present
state of Judicature in this your Majesty’s province of Quebec :
And Secondly. Whether the Canadians are, or think themselves, aggrieved
according to the present administration of justice : wherein, and in what
respects ; together with our opinions of any alterations or amendments that
we can propose for the general benefit of the said province ; and that such
alterations and amendments, for the clearer apprehension thereof, be trans1
For Nos. 20, 23 & 26, see pp. 196, 201, 205. No. 24 is ‘ Carleton to Shelburne ‘ Jan. 18th, 1768, enclosing
Minutes of Council from Oct. 1st to Dec. 31st, 1767. See Q 5-1, p. 351. No. 25 is ‘ Carleton to Shelburne,’ Jan. 19th, 1768, enclosing petition of merchants with reference to bankruptcy law. See Q 5-1, p.
s
From A Collection of Several Commissions, and other Public Instruments, Proceeding from his
Majesty’s Boyal Authority, Relating to the Province of Québec. Collected by Francis Maseres, Attorney
General of the Province. London : 1772, p. 1. Given also in Canadian Archives, Q 56-2.
8
See p. 199.
CONSTITUTIONAL DOCUMENTS 229
The laws of
England are
generally
The commission of the
chief justice
SESSIONAL PAPER No. 18
mitted to your Majesty in the form of ordinances, b u t not passed as such ;
and t h a t such report be returned, signed by your Majesty’s governor, or his
locum tenens, the chief justice, a n d attorney general of t h e said province ;
b u t that, if they should not concur, t h e person or persons differing in
opinion should be required to report the difference of his opinions, together
with his reasons for such difference of opinion, fully and a t large :
W e lay before your Majesty the following view of the laws and customs
which a t present prevail in this province, and of the rules of decision
observed b y your Majesty’s courts of judicature in the administration of
justice, together with such observations on these heads as the experience
we have had in our respective offices since we have had t h e honour to serve
Your Majesty in this province has enabled us to make.
I n the first place, we beg leave to observe to your Majesty, t h a t the laws
of England are generally supposed to be in force in this province. All
thoughttobe criminal proceedings have been carried on according to these laws : and in
in force in this civil matters no other laws are cited, or appealed to, or allowed to be of
province. a n y w € ¿ght; in the courts of justice ; though in one or two causes certain
customs t h a t prevailed here in the time of the French government have
been admitted as t h e grounds of t h e decisions, because the causes of action
in those litigations had arisen either in t h e time of the French government,
or during your Majesty’s government of this province by your military
commanders, during which period the ancient laws and usages of the country
were supposed to be in force. B u t since the establishment of civil governm e n t your Majesty’s chief justice of the province has acted by virtue of a
commission1
t h a t commands him to decide all matters t h a t come before
refers to them. h j m according to the laws and customs of that part of your Majesty’s kingdom of Great Britain called England, and the laws, ordinances, rules, and
regulations of your Majesty’s province of Québec hereafter in that behalf to
be ordained and made : so t h a t he is not a t liberty to allow of any other
laws or customs b u t those of England, unless they are expressly introduced
or revived by some of the ordinances of the province made since the establishment of the civil government. A n d further, besides this commission,
there is an express ordinance of the province which obliges both your
Majesty’s chief justice and the other judges of the province to follow t h e
same rule of judgment. This is t h e ordinance of t h e l 7 t h o f September
1764,2
passed by the governor and council of the province upon t h e introduction of t h e civil government, to erect and constitute t h e courts of justice
by which t h e said civil government was to be carried on. This ordinance
erects, in t h e first place, one superior court of judicature, called t h e King’s
Bench, in which it directs t h a t your Majesty’s chief justice of t h e province
shall preside, with power and authority to hear and determine all criminal
and civil causes, agreeable to the laws of England and to the ordinances of
this province : and, in t h e second place, a n inferior court of judicature,
called the Court of Common Pleas, with power and authority to determine
all property above the value of ten pounds, w i t h a liberty to either p a r t y
to appeal to the superior court, or court of King’s Bench, where the m a t t e r
in contest is of the value of t w e n t y pounds, or upwards ; and directs t h a t
t h e judges in this court shall determine t h e matters before them agreeable
to equity, having regard nevertheless to the laws of England as far as the
circumstances and situation of things will permit, until such time as proper
ordinances for the information of the people can be established by the governour and council, agreeable to the laws of England ; and i t farther directs.
that the French laws and customs shall be allowed and admitted in all causes
in this court between the natives of this province, where the cause of action
arose before the 1st day of October 1764. I t then, in the t h i r d place, gives
So does the
ordinance of
the 17th of
September
1764.
Purport of
this ordin1
See Commission of Chief Justice Hey ; p.
2
See p. 149.
190.
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
powers to justices of the peace to determine matters of property of small
value in a summary way, either singly, if the matter in dispute does not
exceed the value of five pounds, or in conjunction with each other in weekly
and quarterly sessions, where the matter in contest is of a greater value.
The words of this ordinance, by which these things are ordained, are of the
tenor following :
” Whereas it is highly expedient and necessary for the well governing of
” his Majesty’s good subjects of the province of Quebec, and for the speedy
” and impartial distribution of justice among the same, that proper courts of
” judicature, with proper powers and authorities, and under proper regula-
” tions, should be established and appointed ; his excellency the governor, by
” and with the advice, consent, and assistance of his Majesty’s council, and
” by virtue of the power and authority to him given by his Majesty’s letters
” patent under the great seal of Great Britain, hath thought fit to ordain
” and declare, and his said excellency, by and with the advice, consent, and
” assistance aforesaid, doth hereby ordain and declare ;
” That a superior court of judicature, or court of King’s Bench, be estab-
” lished in this province to sit and hold terms in the town of Quebec twice
” in every year, viz. one to begin on the 21st day of January, called Hilary
” term, the other on the 21st day of June, called Trinity term.
” In this court his Majesty’s chief justice presides, with power and
” authority to hear and determine all criminal and civil causes, agreeable
” to the laws of England and.to the ordinances of this province; and from
•” this court an appeal lies to the governor and council, where the matter
” in contest is above the value of three hundred pounds Sterling ; and from the
” governor and council an appeal lies to the King and council, where the
” matter in contest is of the value of five hundred pounds Sterling, or
” upwards.
” I n f i l l trials in this court all his Majesty’s subjects in this colony are to
” be admitted on juries without distinction.
” And his Majesty’s chief justice once in every year to hold a court of
” assize and general gaol delivery, soon after Hilary term, at the towns of
” Montreal and Trois-Rivieres, for the more easy and convenient distribu-
” tion of justice to his Majesty’s subjects in those distant parts of the pro-
” vince.
” And whereas an inferior court of judicature, or court of Common Pleas,
” is also thought necessary and convenient, it is further ordained and
” declared, by the authority aforesaid, that an inferior court of judicature,
” or court of Common Pleas, is hereby established, with power and authority
” to determine all property above the value of ten pounds, with a liberty
” of appeal to either party to the superior court, or court of King’s Bench,
” where the matter in contest is of the value of twenty pounds, and
” upwards.
” All trials in this court to be by juries, if demanded by either party;
” and this court to sit and hold two terms in every year at the town of
” Quebec, at the same time with the superior court, or court of King’s
” Bench. Where the matter in contest in this court is above the value of
” three hundred pounds Sterling, either party may (if they shall think
” proper) appeal to the governor and council immediately, and from the
” governor and council an appeal lies to the King and council, where the
” matter in contest is above the value of five hundred pounds Sterling, or
” upwards.
” The judges in this court are to determine agreeable to equity, having
” regard nevertheless to the laws of England, as far as the circumstances and
” present situation of things will admit, until such time as proper ordinances
” for the information of the people can be established by the governor and
‘ council, agreeable to the laws of England.
CONSTITUTIONAL DOCUMENTS 231
SESSIONAL PAPER No. 1S
” The French laws and customs to be allowed and admitted in all causes
” in this court between the natives of the province, where the cause- of
” action arose before the first day of October one thousand seven hundred
” and sixty-four.
” The first process in this court to be an attachment against the body.
” An execution to go against the body, lands, or goods of the defendant.
” Canadian advocates, proctors, &c. may practise in this court.
” And whereas it is thought highly necessary for the ease, convenience,
” and happiness of all his Majesty’s loving subjects, that justices of the
” peace should be appointed for the respective districts of this province,
” with power of determining property of small value in a summary way, it
” is therefore further ordained and declared, by the authority aforesaid, and
” full power is hereby given and granted to any one of his Majesty’s justices
” of the peace, within their respective districts, to hear and finally deter-
” mine in all causes or matters of property not exceeding the sum of five
” pounds current money of Quebec ; and to any two justices of the peace,
” within their respective districts, to hear and finally determine in all
” causes or matters of property not exceeding the sum of ten pounds said
” currency ; which decisions being, within, and not exceeding the aforesaid
” limitation, shall not be liable to an appeal ; and also full power is, by the
” authority aforesaid, given and granted to any three of said justices of
” the peace to be a quorum, with power of holding quarter sessions in their
” respective districts every three months, and also to hear and determine
” all causes and matters of property which shall be above the sum of ten
” pounds, and not exceeding thirty pounds current money of Quebec, with
” liberty of appeal to either party to the superior court, or court of King’s
” Bench. And it is hereby ordered, that the aforesaid justices of the peace
” do issue their warrants directed to the captains and other officers of the
” militia in this province, to be by them executed, until the provost-
” marshal, legally authorized by his Majesty, shall arive, and other inferior
” officers be appointed for that purpose > all officers, civil and military, or
” other his Majesty’s loving subjects, are hereby commanded and required
” to be aiding and assisting to the said justices and officers of militia in the
” due execution of their duty. And it is further ordered and directed, by
” the authority aforesaid, that two of the said justices of’ the peace do sit
” weekly in rotation, for the better regulation of the police and other
” matters and things in the towns of Quebec and Montreal, and that the
” names of the justices who are to sit in each week be posted up on the
” door of the Session-house by the clerk of the peace, two days before their
” respective days of sitting, that all persons may know to whom to apply
” for redress.”
The ordinance .”Further, by another ordinance of your Majesty’s governour and council,
of the 6th of dated the 6th day of November 1764, ‘ it is ordained, that until the 10th day
jig] e m b 6 r of August next, that is, of August 1765, the tenures of lands, with respect
to such grants as are prior to the cession of Canada to the Crown of Great
.Britain by the definitive treaty of peace of February 1763, and the rights
of inheritance, as practised before thai period, in such lands, shall remain
to all intents and purposes the same, unless they shall be altered by some
declared and positive law. The words of this ordinance relating to this
subject are of the tenor following :
The words of ” Whereas it appears right and necessary to quiet the minds of the people
this ordinance « i n r e g a r d to their possessions, and to remove every doubt respecting the
” satne^ which mar any ways tend to excite and encourage vexatious law-
” suits’; and until a matter of so serious and complicated a nature, fraught
” with many and great difficulties, can be seriously considered, and such
‘ ” measures therein taken as may appear the most likely to promote the wel1
Hee p. 16f>.
232 CANADIAN AU0HI7MS
6-7 EDWARD Vil., A. 1907
” fare and prosperity of the province in general, his excellency, by and
” with the advice and consent of his Majesty’s council, doth hereby ordain
” and declare that, until the 10th day of August next, the tenures of lands,
” in respect to such grants as are prior to the cession thereof by the defini-
” tive treaty of peace signed at Paris the 10th day of February one
” thousand seven hundred and sixty-three, and the rights of inheritance, as
” practised before that period, in such lands or effects, of any nature
” whatsoever, according to the custom of this country, shall remain to all
” intents and purposes the same, unless they shall be altered by some
1
” declared and positive law ; for which purpose the present ordinance shall
” serve as a guide and direction in all such matters to every court of record
” in this province. Provided that nothing in this ordinance contained shall
” extend, or be construed .to extend, to the prejudice of the rights of-the
” Crown, or to debar his Majesty, his heirs or successors, from obtaining by
” due course of law in any of his courts of record in this province, accord-
” ing to the laws of Great Britain, any lands or tenements, which at any
” time hereafter may be found to be vested in his Majesty, his heirs or suc-
” cessors, and in the possession of any grantee or grantees, his, her, or their
” assigns, or such as claim under them by virtue of any such grants as
” aforesaid, or under pretence thereof, or which hereafter may be found -to
” have become forfeited to his Majesty by breach of all or any of the con-
” ditions in such grants respectively mentioned and contained.”
Conclusion By this latter ordinance we conceive that all the lands in this province,
necessarily w n o s e o-ç^^g n a v e died since the 10th day of August 1765, are meant to
this ordinance be subjected to the English law of inheritance, and to the English custom
in favour of 0f dower, and to the English rules of forfeiture to your Majesty for high
tton,
ofr
theUC” treason, or escheat to your Majesty, or to such other lord of whom they are
laws of holden, for felony or defect of heirs, and to all the other rules of the English
England. i a w relating to land-property, even though the said lands had been originally granted before the signing of the definitive treaty of peace ; and that
all lands granted since the said peace were already, at the time of making
the said ordinance, subject to the said English rules and customs, and were
so to continue.
By these two ordinances, which have been transmitted to your Majesty
and never disallowed, and are therefore supposed to have received the sanction of your Majesty’s royal approbation, the Canadian laws and customs
have been generally supposed to be abolished, and the English laws and customs to have been introduced in their stead, and the judges of your Majesty’s courts of judicature in this province have conceived themselves to be in
conscience bound to administer justice according to the laws of England.
Other public Besides these two ordinances there are several other public instruments
instruments and acts of government by which the laws of England are supposed to have
tended topro- been introduced into this province. Some of these instruments are acts of
duce the same parliament, which introduce those particular parts of the laws of England,
effect. to which they relate, into this province ; and others of them are instruments of a high and important nature, that bear the sanction of your Majesty’s royal authority, by which it is generally understood to have been
your royal pleasure to abolish the former laws and customs of this province,
and for the sake of governing your new Canadian subjects in a milder and
more indulgent manner than they had heretofore been used to, and associating and connecting them with the greater part of your ancient and natu-
, ral-born subjects of Great Britain by the strong tie of an union and communion of laws, to introduce the laws of England in their stead. These
acts of parliament and other instruments of government are as follows ;
Acts of Par- The acts of parliament that relate to this province are of two kinds ;
liament. some of them are prior to the conquest of this province by your Majesty’s
arms in the year 1760, but extend to your Majesty’s future American
CONSTITUTIONAL DOCUMENTS 233
SESSIONAL PAPER No. 18
dominions, as well as those which belonged to the Crown of Great-Britain
at the times of passing them, either by express words for that purpose, or
by some general words that have been deemed by your Majesty’s ministers
and law-officers, by just construction in law, to comprehend them ; and
others of the said acts have been passed by your Majesty’s self, by the
advice and with the consent of your parliament, since the conquest and
cession of this province by the last definitive treaty of peace.
Stat. I. Bliz. The most ancient act of parliament of the first kind that we have met
cap. T. with is that of the 1st of Queen Elizabeth, chap. I, by which the pretended
authority of the bishop of Rome was abolished throughout all the dominions of the crown of England. The 16th section of this statute is of the
following tenor : ” And to the intent that all usurped and foreign power
” and authority, spiritual and temporal, may forever be clearly extinguished,
” and never to be used or obeyed within this realm, or any other your
” Majesty’s dominions or countries, may it please your Highness that it
” may be further enacted, by the authority aforesaid, that no foreign prince,
” person, prelate, state, or potentate, spiritual or temporal, shall, at any
” time after the last day of this session of parliament, use, enjoy, or exer-
” cise any manner of power, jurisdiction, superiority, authority, pre-hemi-
” nence, or privilege, spiritual or ecclesiastical, within this realm, or within
” any other your Majesty’s dominions and countries that now be, or here-
” after shall be ; but from thenceforth the same shall be clearly abolished
” out of this realm and all other your Majesty’s dominions for ever ; any
” statute, ordinance, custom, constitutions, or any other matter or cause
” whatsoever to the contrary in any wise notwithstanding.”
By this section of that statute, and the express words, any other your
Majesty’s dominions and countries that now, be, or hereafter shall be, we
humbly apprehend that all exercise of the pope’s authority, or of any ecclesiastical authority derived from him, is prohibited in this province as much
as it is in England itself.
The next section of this act of parliament annexes all ecclesiastical jurisdiction to the crown of England.
The 19th section requires all bishops and other ecclesiastical persons, and
all ecclesiastical officers and ministers, and all temporal judges, justices,
mayors, and other lay or temporal officers and ministers, and every other
person having the Queen’s fee or wages, within the realm of England, or
any other her Highness s dominions, to take the oath of supremacy.
The 24th section enacts, that every temporal person doing homage for his
lands to the Queen, her heirs or successors, or that shall be received into
the service of the Queen, her heirs or successors, shall take the same oath.
And the 27th section enacts, that if any person of any degree whatsoever,
dwelling within the realm of England, or in any other the Queen’s realms
or dominions, shall by writing, teaching, or preaching, maintain or defend
the authority, spiritual or ecclesiastical, of any foreign prince, prelate, person, state, or potentate whatsoever, heretofore claimed, used, or usurped
within the realm of England, or any dominion or country^ being within or
v
under the power, dominion, or obeysanoe of the Queen’s highness, he shall
forfeit all his goods and chattels for the first offence.
We submit it to your Majesty that this statute seems, from the whole
complexion of it, as well as from the positive words, your Majesty’s dominions that hereafter shall be, to have been considered by the legislature
that passed it as an indispensable part of the general policy of the English
government, and to have been intended to take place in every country that
either then made or should thereafter make a part of the dominions of the
crown of England.
The next statute that we have met with of this comprehensive nature is
the statute of the 15th of Charles the Second, chap. 7, intitled, ” A n Act
234 ‘ CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Stat 15 « for the Encouragement of Trade “. In the 7th section of this statute it is
^ar. . cap. e n a c ^ e ( ] j that after the 25th day of March 1664, no commodity of the growth
or manufacture of Europe shall be imported into any land, island, plantation, colony, territory, or place to his Majesty belonging, or which shall
hereafter belong unto, or be in the possession of, his Majesty, his heirs
and successors, in Asia, Africa, or America (Tangier only excepted) but
what shall be laden and shipped in England, Wales, or the town of Berwick
upon Tweed, and in English-built shipping.
Stat. 7 and 8 Another statute of the same kind is the stat. 7 and 8 Will. I I I . chap.
«TO 22 ^> intitled, ” An Act for preventing Frauds, and regulating Abuses, in the
” Plantation Trade ;” by which it is enacted and ordained, that after the
25th day of March, in the year 1 698, no goods or merchandizes whatsoever
shall be imported into, or exported out of, any colony or plantation to his
Majesty in Asia, Africa, or America belonging, or in his possession, or
which may hereafter belong unto, or be in the possession of, his Majesty,
his heirs or successors, in any ship or bottom but what is or shall be of the
built of England, or of the built of Ireland, or of the built of the said colonies or plantations.
And the other acts of parliament relating to the trade of your Majesty’s
American colonies, though they have not such strong positive words’ in
them as the three statutes above-mentioned, yet are generally understood
to extend to this province as well as to your Majesty’s more ancient American dominions ; and, agreeably to this opinion, your Majesty has caused a
clause to be inserted in ydur commission to your governour of this province,1
directing him to take the oath required to be taken by governours of the
plantations to do their utmost that the several laws relating to trade and
plantations be duly observed ; and this oath he hath accordingly taken.
And your Majesty’s commissioners of the customs have appointed a collector and comptroller of the customs, and other officers necessary _,for the
collection of them, for this part of Quebec, in order to carry all these acts
of parliament into execution.
Stat. 2, Another statute that we understand to be in force in this province,
12 Ann. though made before the conquest of it, and not extended by express words
cap. 18. t o t j l e f u t u r e dominions of the crown of Great Britain, is stat. 2, 12th
Ann. chap. 18, intitled, “An Act for preserving all such Ships and Goods
“thereof which shall happen to be forced on Shore, or stranded, upon the
“coasts of this kingdom, or any other of her Majesty’s dominions.” This
statute, ancl another of the 4th of Geo. I. chap. 12, for enforcing and making the former perpetual, have been declared by your Majesty’s attorney
and solliciter general, in the month of June 1767, in an opinion given by
them to your Majesty’s lords commissioners of trade and plantations, upon
a case stated to them by those lords, to extend to your Majesty’s plantations
in America : and no exception is made in their opinion of those of your
Majesty’s dominions in America which have been acquired since the passing of those statutes. And your Majesty’s ministers have transmitted the
said case and opinion to your Majesty’s governour of this province, upon a
supposition, as we apprehend, that it extends to this province as well as to
all the others.
These are the acts Of parliament passed before the conquest and cession
of Canada that we conceive to be in force in this province by their own
import and operation, and without needing any further act of government
to introduce them.
Some of the acts of parliament passed by your Majesty’s self since the conquest and cession of Canada relating to this province are these that follow :
G** III ^ e ^ r s t °^ * n e s e statutes is that of the 4th year of your Majesty’s
cap. 11. ‘ reign, chap. II, which, amongst other things, enacts, that so much of an
Se’f Instructions tu tío\prnor Murray, Tatter part of sec. 3, p. 133.
CONSTITUTIONAL DOCUMENTS 235
SESSIONAL PAPER No. 18
act made in the 8th year of King George the First, intitled, “An Act for
“giving further Encouragement to the Importation of Naval Stores, and
“for other purposes therein mentioned,” as relates to the importation, of
wood and timber, and of the goods commonly calle 1 Lumber, therein particularly enumerated, from any of your Majesty’s British plantations or
colonies in America, free from all customs and impositions whatsoever,
shall be continued, beyond the times appointed in former acts, to the 29th
of September in the year 1771.
In this statute the words British plantations are generally understood
to relate to this province as well as to your Majesty’s other colonies in
America ; and a copy of this statute has accordingly been transmitted by
the commissioners of your Majesty’s customs in London to your Majesty’s
collector of the customs in this port.
Stat. 4 The next act of parliament of this kind is of the same 4th year of your
Geo. III. Majesty’s reign, chap. 19. This statute expressly relates to this province
o a p ‘ • by name, being intitled, ” An Act for importing Salt from Europe into the
” Province of Quebec in America for a limited Time.” I t enacts, ” that it
” shall be lawful for any of his Majesty’s subjects to carry and import salt
” from any part of Europe into the said province of Quebec in America in
” British ships and vessels manned and navigated according to the act of
_ ” navigation ; any law, statute, usage, or custom to the contrary in any wise
” notwithstanding.”
By these last words it seems to be supposed that all the former laws and
statutes of Great Britain relating to this subject of the importation and
exportation of goods and merchandize, made before the conquest of this
province, are of force in this province as well as in the other British provinces in America.
Stat. 4 Another act of parliament passed by your Majesty, and expressly relating
^
e
° ‘ Í P ‘ to this province, is the statute of the same 4th year of your Majesty’s reign,
Cap’ ‘ chap. 15, intitled, ” An Act for granting certain duties in the British colo-
” nies and plantations in America, and for other purposes.” By this statute
it is enacted, that certain rates and duties therein mentioned shall be paid
upon several species of foreign goods therein enumerated that shall, after
the 29th day of September 1764, be imported or brought into any colony or
plantation in America, which now is, or hereafter may be, under the dominion of your Majesty, your heirs and successors ; and these duties are
accordingly levied and paid in this province.
These are the acts of parliament, or at least some of them (for possibly
there may be others which have escaped our notice) which by their own
import and operation extend, as we conceive, to this province, without the
help of any other instrument or act of government to introduce them : and
therefore such parts of the laws of England as are contained in these statutes are certainly in force in this.province, being introduced into it by the
highest authority, that of your Majesty, or your royal predecessors, in conjunction with both houses of parliament. The remaining parts of the laws
, of England have been introduced, or are generally understood to have been
introduced, by a series of public instruments, or acts of government, founded
on your Majesty’s royal authority alone, without the concurrence of your
parliament. These public instruments and acts of government are as
follows :
Article* of The first of these public instruments is the capitulation granted by your
¿ r a S t o t h Majesty’s general, Sir Jeffrey Amherst, to the inhabitants of Canada at the
Canadians by” general surrender of the whole country to your Majesty’s arms in the year
«Ten^Amlierst, 1760.1
In the 42d article of this capitulation it is desired by the French
“vrtiolp 42d commander, on the behalf of the French and Canadian inhabitants of this
1
S P P Capitulation of Montreal, p. 8.
236 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
province, that they shall continue to be governed according to the custom
of Paris and the laws and usages established in this country ; to which it is
answered by your Majesty’s general, that they become subjects to the King :
by which it should seem, that these your Majesty’s new subjects in this
province were put upon the same footing as your Majesty’s other subjects
in other parts of your Majesty’s British dominions with respect to the laws
by which they were to be governed, and the power of legislation that was
to be exercised over them for the time to come ; and that the continuance
or abolition of their former laws and customs was to depend entirely upon
the future counsels which’your Majesty, in your royal wisdom, should find
it expedient to pursue.
Article 27th The 27th article of this capitulation demands, that the free exercise of
the Roman Catholic religion shall subsist intire, in such manner that all the
people shall continue to assemble in the churches and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly ; and then it goes on and demands, in the second place, that the
people shall be obliged by the English government to pay the priests the
tithes and all the taxes they were used to pay under the government of the
Erench king. The general’s answer to this article is as follows : ” Granted,
” as to the free exercise of their religion. The obligation of paying tithes
” to the priests will depend on the King’s pleasure.” By this answer it is
evident that a bare toleration, or permission to exercise freely the Roman
Catholic religion, without being molested for so doing by the execution of
the penal laws of England upon that subject, is granted to the Canadians,
together with a reasonable use of their churches for that purpose, though
not, as we conceive, to the intire exclusion of your Majesty’s Protestant
subjects from making use of the same churches likewise : but a legal establishment of that religion, with a right to exact their tithes from the people as
legal dues and not as voluntary contributions, is refused them, until your
Majesty’s pleasure shall otherwise direct, which your Majesty has not yet
judged expedient to do. By this refusal all those parts of the Canadian
, laws and usages relating to the payment of tithes and other church dues
are either abolished or suspended.
Article 31st ‘ The 31st article of the same capitulation is as follows : “The bishop shall,
” in case of need, establish new parishes, and provide for the re-building of
“his cathedral and his episcopal palace ; and, in the mean time, he shall
” have the liberty to dwell in the town or parishes, as he shall judge proper.
” He shall be at liberty to visit his diocese with the ordinary ceremonies,
” and exercise all the jurisdiction which his predecessor exercised under the
” Erench government, save that an oath of fidelity, or a promise to do
” nothing contrary to his Britannic Majesty’s service, may be required of
” him. ” To this article your Majesty’s general made the following answer :
” This article is comprised under the foregoing.” Now the foregoing, or
30th, article is directly refused ; therefore this article must be deemed to
be refused likewise : and consequently by this refusal all those parts of the
Canadian laws and customs that give a right to the bishop of Quebec to
establish new parishes, and to provide for the re-building of his cathedral
and his episcopal palace, and to visit his diocese with the ordinary ceremonies, and to exercise the jurisdiction which had been exercised by his
predecessors under the Erench government, are abolished ; and your
Majesty’s ecclesiastical supremacy is vindicated and supported in a manner
agreeable to that important and universal statute of the 1st of Queen Elizabeth above cited.
„, , „ . The next public instrument relating to the condition of this province is the
tive treaty definitive treaty of peace concluded at Paris on the 10th day of February
of peace. 1763.1
I n the fourth article of this treaty it is declared, that your Majesty
1
See Treaty of Paris, 1763, p. 73.
CONSTITUTIONAL DOCUMENTS 237
SESSIONAL PAPER No. 18
will give the most effectual orders that your new Roman Catholic subjects
may profess the worship of their religion according to the rites of the
Romish church, as far as the laws of Great Britain permit. By this reference to the laws of Great Britain it should seem to have been your Majesty’s
intention that those laws should be the fundamental rule of government in
this province.
The King’s The next public instrument relating to this subject, and upon which great
m o S ” 1 1 s t r e s !
h a s b e e n l a i d h
y
a11 y ° u r M a J
e f ! ty’s British subjects that have resorted
1763. to this province, is your Majesty’s royal proclamation of the 7th of October
1763,1
which seems to have had principally in view the profit and advantages that might accrue to your Majesty’s British subjects by resorting to,
or settling in, the countries that had lately been ceded to your Majesty by
the definitive treaty of peace. By this very solemn and important instrument, passed under your Majesty’s great seal of Great Britain, it is declared,
that ” your Majesty, being desirous that all your Majesty’s loving subjects,
” as well of your kingdoms as your colonies in America, may avail them-
” selves, with all convenient speed, of the great benefits and advantages
” that must accrue from the great and valuable acquisitions lately ceded to
” your Majesty in America, to their commerce, manufactures, and navi11 gation, has thought fit, with the advice of your privy council, to erect
” four new governments to be stiled and called by the names of Quebec,
” Bast Florida, West Florida, and Grenada; and that, as it will greatly
” contribute to the speedy settling the said new governments that your
” Majesty’s loving subjects should be informed of your Majesty’s paternal
” care for the security of the liberty and properties of those who are or
* ” shall become inhabitants thereof; your Majesty hath thought fit to publish
% ” and declare, by that your Majesty’s proclamation, that your Majesty has,
” in the letters patent under the great seal of Great Britain by which the
” said governments are constituted, given express power and directions
” to your governours in the said new colonies, that, so soon as the state
” and circumstances of the said colonies will admit thereof, they shall, with
•’ the advice and consent of the members of your Majesty’s councils,
” summon and call general assemblies within the said governments, ih such
” manner and form as is used and directed in those colonies and provinces
” in America which are under your Majesty’s immediate government ; and
” that your Majesty has also given powers to the said governours, with
” the consent of your Majesty’s said councils, and the representatives so to
” be summoned as aforesaid, to make, constitute, and ordain laws, statutes,
” and ordinances for the public peace, welfare, and good government of your
” Majesty’s said colonies and of the people and inhabitants thereof, as near
” as may be to the laws of England, and under such regulations and restric-
” tions as are u.sed in other colonies.” And then it is further declared in
your Majesty’s said proclamation, ” that in the mean time, and until such
” assemblies can be called as aforesaid, all persons inhabiting in or resort-
” ing to your Majesty’s said colonies may confide in your Majesty’s royal
^ protection for the enjoyment of the benefit of the laws of your realm of
” England; and that for that purpose your Majesty had given power under
” the great seal to the governours of your Majesty’s said new colonies to
” erect and constitute, with the advice of your Majesty’s said councils
” respectively, courts of judicature and public justice within the said
” colonies for the hearing and determining all causes, as well criminal as
” civil, according to law and equity, and, as near as may be, agreeably to
” the laws of England, with liberty to all persons who may think them-
” selves aggrieved by the sentence of such courts, in all civil cases, to
1
See Proclamation of 1763, p 119
238 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
” appeal, under the usual limitations and restrictions, to your Majesty in
” your privy council.” 1
The sense in These are the words of your Majesty’s said proclamation, and by them
which this t
your Majesty’s British subjects in this province declare that they have
E
roefcmatl0n a l
w a v s understood tbat^the laws of England have been introduced into this
derstood by province, and that it was your Majesty’s intention to assimilate the laws
the British and civil government of it to those of the other American colonies and
inhabitants of provinces which are under your Majesty’s immediate government, and not
‘ lo continue the municipal laws and customs by which the conquered people
had heretofore been governed. And through a confidence in this proclamation, understood in this sense, they say they have quitted their native
country to come and settle in this province, expecting to change only their
climate by such a removal in pursuit of commercial advantages, and not to
become subject to the laws of the conquered people, with which they are
wholly unacquainted, and against which (though perhaps without reason)
they entertain strong prejudices,
and by his And in this sense was this proclamation understood also by your
Majesty’s late Majesty’s late governour of this province and his council, who did not, in
councü°-Ur a racing t n e important ordinance above mentioned, of the ] 7th of September
1764, conceive themselves to be overturning all the ancient laws and
customs of this country, and introducing the laws of England in their
stead, but meant only to erect and constitute courts of judicature to
administer a system of laws, already in being, to wit, the laws of’ England,
which they conceived to have been already introduced there by the words
of your Majesty’s proclamation. And in this sense likewise your Majesty’s
and the lords lords commissioners for trade and plantations, in the month of September
commissioners 1765,2
understood these words in your Majesty’s proclamation : for i n the
for trade and 7 ^ ^ j a a ^ a rtiole of a report made by the said lords commissioners, upon plantations m . . . -, K,. „ , , . , , , . , :.
r
September, certain memorials and petitions from your Majesty s subjects m this pro1765. vince, complaining of the ordinances and proceedings of the governour and
council of this province, and of the then present establishment of courts of
* judicature and other civil constitutions, to the lords of the committee of
” your Majesty’s privy council for plantation affairs, dated on the 2d day of
September in the said year, the said lords commissioners of trade propose,
that in all cases where rights or claims are founded on events prior to the
conquest of Ganada, the several courts shall be governed in their proceedings
by the French usages and customs which have heretofore prevailed in respect
to such property ; from which words it appears plainly that their lordships
understood that in all cases, where rights and claims are founded on events
posterior to the said conquest, the several courts of justice were to be
governed by the English laws, and that their lordships were sollicitous to
make an express provision, that this general rule of deciding cases according to the English laws should not be applied to such causes as were
founded on events that were prior to the said conquest, in which cases it
would be manifestly unjust.
The more con- We know at the same time that your Majesty’s attorney and soliieitor
tmed sense m genev&\í
{n the following month of April 1766,3
understood the words of
understood by your Majesty’s royal proclamation in a more confined sense, as being introhis Majesty’s ductive of only some select parts of the laws of England that were more
sollieftor gen- particularly beneficial to your Majesty’s English subjects, and not of the
eral, in April whole body of those laws. This they took to be the true import of these
1766. words in your Majesty’s proclamation above-mentioned, the enjoyment of
1
On comparing the passages within quotation marks with the Proclamation itself, it will be found
that though the sense is preserved the letter is very considerably altered ; the address is changed from the
first to the second person, and certain formal clauses are either omitted or abridged. 2
The Report of 2nd Sept. 1765, referred to in note, p. 171; discussed also in Report of Yorke and de
Grey, p. 174. 3
See Report of Yorke and de Grey, p. 174.
CONSTITUTIONAL DOCUMENTS 239
SESSIONAL PAPER No. 18
the benefit of the laws of England ; and they were of opinion that the
criminal laws of England were almost the only laws that came under that
description ; and that the laws of England relating to the descent, alienation, settlements, and incumbrances of real estates, and to the distribution
of personal property in case of intestacy, were certainly not comprehended
under it. Whether this or the former way of interpreting this part of
your Majesty’s proclamation is the true one, belongs only to your Majesty
to determine, according to the ancient rule of law laid down by the celebrated lawyer Bracton, that ” cujus est condere, ejus est interpretan.” All
that we presume to do on this occasion is to lay before your Majesty a full
and plain historical account of the several public instruments and acts of
government by which the laws of England have either been introduced, or
imagined to be introduced, into this province in lieu of those laws and
customs which were observed in it heretofore.
The commis- The next public instrument of this kind is your Majesty’s commission to
Gen.SMurray General Murray in the year 1764. to be vice-admiral, commissary, and
in 1764 to be deputy in the office of vice-admiralty in the province of Quebec.1
This is a
™¡e admiral judicial commission, by which the said General was impowered to enquire,
ce of Quebec, by t n e oaths of honest and lawful men of the said province, of all and singular matters and things which of right, and by the statutes, laws, ordinances, and customs, anciently observed, were wont and ought to be
enquired after ; and of wreck of the sea ; and of goods of felons of themselves ; and likewise of goods waived, flotson, jetson, ligan, deodands, derelicts, and other casualties upon the sea, or sea coast, or fresh-water rivers,
as far as the tide flows ; and also of anchorage, lastage, ballast, and fish
royal anciently by right or custom belonging to your Majesty ; and to
arrest or cause to be arrested, according to the civil and maritime laws and
ancient customs of your Majesty’s court of admiralty, all ships, persons,
• and merchandizes for causes arising within the maritime jurisdiction, and
to hear and determine the said causes, with ‘all the matters incident thereunto, according to the laws and customs aforesaid ; and to fine, chastise,
and imprison within any of the gaols of the province the parties that shall
be found guilty, according to the rights, statutes, laws, ordinances, and
customs anciently observed.
By this commission it is evident your Majesty has introduced into this
province all the laws of your Majesty’s English court of admiralty, in lieu
of the French laws and customs by which maritime causes were decided in
the time of the French government.
The commis- The next public instrument relating to this subject is your Majesty’s
non
°
f S
v
e
f” c o m m i
s s i ° n t o General Murray in the year 1764 to be captain general and
oi tHÍpro goverriour in chief in and over this your Majesty’s province of Quebec.
•pince given to This commission, and the instructions that accompanied it,1
seem every
âTrë3
^Tndy
where to pre-suppose that the laws of England were in force in this prothe instruc- vince, being full of allusions and references to those laws on a variety of
tions that ac- different subjects, and do not contain the least intimation of a saving of
eompanied it. feny ^arfc o f t h e j a w g a n ( j o u s t 0m s that prevailed here in the-time of the
French government.
A probable in- I t seems as if your Majesty had been of opinion, that by the refusal of
the6
sti!ef
and General Amherst to grant to the Canadians the continuance of their ancient
purport of the laws and usages, and by the reference made in the fourth article of the definisaid commis- t
ive treaty of peace to the laws of Great Britain, as the measure of the instructions11″ dulgence intended to be shewn them with respect to the exercise of their
religion, sufficient notice had been given to the conquered inhabitants of
this province, that it was your Majesty’s pleasure that they should be
governed for the future according to the laws of England, and that they,
1
See Maseres’ Collection of Several Commissions, ác, p. 113.
2
See Murray’s Commission, p. 126, and Instructions, p. 132.
240 CANADIAN ARCHIVES
6-7 ÜDWARD Vil., A. 1907
after being thus apprised of your Majesty’s intention, had consented to be
so governed, and had testified their said consent by continuing to reside in
the country and taking the oath of allegiance to your .Majesty, when they
might have withdrawn themselves from the province, with all their effects
and the produce of the sale of their estates, within the eighteen months
allowed by your Majesty for that purpose.
These are the public instruments’by which it is generally supposed, by
those who have perused them, that the laws of England have been introduced into this province. But as your Majesty’s royal proclamation abovementioned, and your commission to General Murray to be governour in
chief of this province, have never been published here in the French language, and as the provincial ordinances above-mentioned of the 17th of
September and the 6th of November 1764, which have been published here
in the French language, have mentioned this change in the laws in very
t
concise and general terms, without specifying or describing any of the laws
of England that were thereby introduced, the greatest part of your Majesty’s new subjects remain ignorant of the extent of the change to this hour,
and imagine that their ancient laws and usages are in many points still in
Some of the force. They still divide their lands upon an inheritance in the same manancient laws ner as before the conquest ; their widows are admitted to the same shares
and usages are 0£ t n e m a s before, without any regard to the English fute of dower, which
Still ODSG-fVGQ. .
by the differs widely from that of the French law ; and the personal estates of
Canadians. persons who die intestate are distributed at their decease according to the
•rules of the French law, which are somewhat different (though not very
greatly, as we are informed) from those of the English statute of distributions ; and the distributions of their personal estates have likewise been
made for the most part by persons authorized thtereunto in the manner that
was usual under the French government, and not by receiving letters of
administration from your Majesty’s governour of the province in the manner directed by your Majesty’s instructions. Fortunately for the peace of
the province no litigations have yet arisen in any of your Majesty’s courts
of justice to give occasion to decisions that; would make them acquainted
with the change of the laws in these particulars, which would probably
create a great deal of uneasiness.
A diversity in Yet upon the decease of your Majesty’s British subjects in this province,
theltoKrC
h
0f t n e ‘
r
relations have taken out letters of administration from the governour
and Canadian of the province, agreeably to your Majesty’s instruction for that purpose,
inhabitants of and, as we believe, have followed the English rule of distribution ; and
witlfrespect’ s o m e ^ew’ but v
ery few, of your Majesty’s new subjects have likewise taken
to letters of out letters of administration in the same manner, but have followed, as we
administra- believe, the rules of the French law, with respect to tBe distribution of the
attribution e
ffe°ts- We humbly apprehend that this diversity in the practice of your
of the effects Majesty’s subjects in this province may hereafter be the occasion of some
of persons who confusion, though happily no bad consequences have hitherto followed
from it.
Another di- There has likewise been a diversity in the practice of your Majesty’s old
theÙMM-iTtice anc^
n e w subjects with respect to the manner of conveying and mortgaging
with respect landed property. Your Majesty’s British subjects have bought and sold
to the manner lands and houses by instruments drawn up by English lawyers according to
and°mortgaf- *^e
English modes of conveyancing ; and your Majesty’s Canadian subjects
ing landed have employed Canadian notaries, or scriveners, for the same purposes, who
property. have followed the French forms of conveyancing made use of before the conquest. And it has often happened that the same lands and houses have
been sold and bought and mortgaged by both French and English conveyances, as they have passed into the hands of Canadian or British proprietors. This also, we conceive, may hereafter be productive of some
confusion.
CONSTITUTIONAL DOCUMENTS 241
SESSIONAL PAPER No. 18
steneeTtíie leases n a v e likewise been made of lands near Quebec for twenty-one
Canadians6
y
e a r s hJ
t h e society of Jesuits in this province, though by the French law
have followed_they can only be made for nine years. This has been done upon a supposiBngland°f
~
t i o n t h a f c t h e r e s t r a m t â u P
o n t n e power of leasing lands imposed upon the
owners of them by the custom of Paris, of which this is one, have no longer
any legal existence. Upon the same principle many owners of seigniories,
Canadians as Well as’Englishmen, have made grants of uncleared land upon
their seigniories for higher quit-rents than they were allowed to take in the
time of the French government, without regard to a rule or custom that
was in force at the time of the conquest, that restrains them in this particular. And as the seigniors transgress the French laws in this respect,
upon a supposition that they are abolished or superseded by the laws of
England, so the freeholders, or peasants, of the province trangress them in
other instances upon the same supposition. For example, there was a law
made by the French king concerning the lands of this province,1
ordaining,
that no man should build a new dwelling-house in the country (that is, out
of the towns and villages) without having sixty French arpents, or about
fifty English acres, of land adjoining to it, and that, if, upon the death of a
freeholder and the partition of his lands amongst his sons, the share of each
son came to less than the said sixty arpents of land, the whole was to be
sold, and the money produced by the sale divided amongst the children.
This was intended to prevent the children from settling themselves in a
supine and indolent manner upon their little portions of land, which were
not sufficient to maintain them, and to oblige them to set about clearing
new lands (of which they had a right to demand of the seigniors sufficient
quantities at very easy quit-rents) by which means they would provide
better for their own maintenance, and become more useful to the public.
But now this law is intirely disregarded ; and the children of the freeholders all over the province settle upon their little portions of their father’s
land, of thirty, or twenty, and sometimes only ten acres, and build little
huts upon them, as if no such law had ever been known here : and when
they are reminded of it by their seigniors, and exhorted to take and clear
new tracts of land, they reply that they understand that by the English
law every man may build a house upon his own land whenever he pleases,
let the size of it be ever so small. This is an unc
ortunate practice, and
contributes very much to the great increase of idleness, drunkenness, and
beggary, which is too visible in this province.
Farther, many persons who have purchased seigniories in this province,
and” amongst them some Canadians, have hitherto declined paying to your
Majesty’s receiver-general the mutation-fine, or fifth part of the purchase
money, due to your Majesty upon the admission of every new seignior by
the custom of Paris. The English purchasers say that this, being part of
the custom of Paris, is now abolished by the introduction of the laws of
England ; and the Canadian seigniors say that it is not due to your Majesty
till they have been regularly, invested with, or put in possession of, their
seigniories, with all the rights and jurisdictions thereunto belonging, by your
Majesty”s officers of government, and have been admitted to take the oath
of fealty and perform the ceremony of homage to your Majesty for the said
lands ; which has not hitherto been done.
Thus it appears that in many respects the Canadians apprehend the laws
of England to be in force in this province, and that they endeavour to apply
them and put them in practice whenever they take them to be for their
This refers to the ordinance of Louis XV, of 28th April, 1745 :—” Ordonnance du Hoi, portant
«ntr’autres choses defenses aux habitans de bâtir sur les terres, â moms qu elles ne soient dun arpent et
«emi de front sur trente à quarante de profondeur.” See Edits, Ordonnances Royaux, Declarations et
Arrets du Conseil d’Etal du Roi Concernant Le Canada. Quebec, 1854, p. 585.
18—3—16
242 CANADIAN ARCHIVES
Criminal
proceedings.
Civil proceed
ings in the
court of
King’s Bench
Civil proceed
ings in the
court of Com
mon Pleas. •
Anests of the
body for debt_
Remarks on
some of the
foregoing
instruments.
6-7 EDWARD”VII., A. 1907
advantage ; though in other points, and particularly in those of inheritance
and dower, and the distribution of the effects of persons who die intestate,
they have universally adhered to their former laws and usages.
In criminal proceedings the Canadians as well as English universally suppose the laws of England to be in force. No others are ever mentioned or
thought of ; and the Canadians seem to be very well hatisfied with them.
And in all civil proceedings carried on in the superiour court, or court of
King’s Bench, the forms of all actions, the stile of the pleadings used in
them, the method of trial, and the rules of evidence are those which are
prescribed by the English law, and are universally known by the Canadians
to be so.
In the court of Common Pleas the proceedings are drawn up in any form
and stile that the parties, or their advocates, think proper, and sometimes
in the French and sometimes in the English language, *as the attornies who
prepare them happen to be Canadians or Englishmen ; and for this reason
they are oftenest in the Freneh language, most of the business in this court
being managed by Canadian attornies.
Arrests of the body for debt are used in the first instance both
upon suits in the court of King’s Bench and suits in che court of
Common Pleas, and even upon suits instituted before justices of the
peace. This is a part of the English law that a good deal surprized
and alarmed the Canadians upon its first introduction, as it .carried an
appearance of much greater severity than was practised under their own
laws,which allowed of imprisonment only in criminal proceedings and in some
few civil suits grounded on bills of exchange, or other instruments of a
commercial nature, and then only in execution of a judgment of the court,
and not in the beginning of the suit ; but now they are grown accustomed
to this way of proceeding, and frequently put it in practice against each
other : and many persons of good sense and character, of both nations, are
of opinion that, considering the great credit that has been given by persons
in trade in this province, anjd the knavish and trickish disposition that has
appeared in many of those to whom it has been given, there is no other
method of proceeding by which the creditors can hope to obtain payment of
their debts. This is more especially the opinion of your Majesty’s British
subjects that are concerned in trade in this province, many of whom
objected some time since to the execution of even a part of the English law
itself, to wit, that part of it which relates to commissions of bankruptcy,
upon a supposition of it’s being too indulgent to debtors to be useful in this
province ; yet other persons are of a different opinion, and think arrests of
the body in the first instance an unnecessary piece of harshness in civil
suits, and wish that it were restrained1
; and to this opinion we humbly
submit it to your Majesty that we are ourselves inclined.
This is, as we conceive, a faithful representation of the present state of
the laws in this province, and of the public instruments and acts of government upon which it is founded. We now beg leave to lay before your
Majesty certain doubts that have arisen, and may arise, concerning the
validity of those instruments, and the extent of their legal operation.
We shall say nothing concerning the validity of your Majesty’s proclamation of the 7th of October 1763, and the high legislative authority which
your Majesty has therein thought proper to exercise with respect to your
Majesty’s new colonies, though there are persons who think that this branch
of your Majesty’s royal prerogative ought rather to have been exercised in
conjunction with both houses of parliament : but we should suppose that
1
These objections were presented to Lt. Governor Carleton in a memorial from a number of merchants of Quebec, dated Nov. 17th, 1767. See Q 5-1, p. 248. In Jan. 1768, certain Quebec and Montreal
merchants, in another petition to the Lt. Governor, represented the advantages to the credit of the colony
of having the English laws relating to bankruptcy in force. See Q 5-1, p. 367.
CONSTITUTIONAL DOCUMENTS 243
SESSIONAL PAPER No. 18 . . . ‘
what your Majesty has thought fit to do in this respect by the advice of
your Majesty’s privy council must be legal, and consequently that the
operation of the words above cited from your Majesty’s said proclamation
is complete and incontestable so far as the true meaning of them can be
ascertained. But if your Majesty in your royal wisdom should interpret
them in a different sense from that in which they have been generally
understood, and should declare that they were not meant to introduce the
whole body of the laws of England that were not in their nature local, but
only to introduce some particular parts of them that were more immediately
beneficial to your Majesty’s subjects, agreeably to the sense in which they
were understood by your Majesty’s attorney and solliciter general in April
1766 f or, if your Majesty should declare that they were not meant to introduce immediately any part of the laws of England into those provinces,
but only to promise and assure your Majesty’s British subjects that your
Majesty would, in due time and place, and by particular and express
promulgations, introduce some select parts of the laws of England that
were more immediately conducive to their welfare and satisfaction ; in
either of these cases we beg leave to submit it to your Majesty’s consideration, whether the ordinances above-mentioned, of the 17th of September and
the 6th of November, can be deemed of sufficient validity to introduce any
part of the laws of England that were not already established by your
Majesty’s said proclamation. Our reasons for doubting this are as follows :
By the King’s Your Majesty by your commission to General Murray, dated the 21st
commission to day of November in the 4th year of your Majesty’s reign, to- be governour
a certain™”*”‘ *** °^e
^ °f *his
province, was pleased to delegate unto him a certain limited
gree of legisla-legislative authority, to be exercised by him by and with the advice and
tive authority consent of your Majesty’s council of the province, and of the general
teóTto him ‘To assembly of the freeholders and planters in the same therein directed
be exercised by your Majesty to be summoned, to wit, an authority to make, constitute,
with the ad- a n ( j o n } a i n l a w S j statutes, and ordinances for the public peace, welfare, and
sent of the good government of the said province, not repugnant, but, as near as may
oounoil and be, agreeable to the laws and statutes of your Majesty’s kingdom of Great
assembly ; Britain. But your Majesty did not in any part of the said commission
delegate either this or any other legislative power to your said governour
but none to be (¡0 be exercised by him with the advice and consent of the council only,
without the without the concurrence of an assembly. Now no assembly of the freeconsent of an holders and planters has hitherto been summoned ; consequently all the
assembly. ordinances that have hitherto been made, so far as they have a legislative
tendency, have been made without any warrant or authority from your
Majesty’s commission to your governour, and perhaps may, upon that
account, be justly contended to be null and void.
If this be so, the words in the ordinance of the 17th of September 1764,
which direct the court of King’s Bench to determine all civil and criminal
causes agreeably to the laws of England, and the other words of that ordinance, and of the ordinance of the 6th of November following, which purport
” to introduce the laws of England into this province, can have no legal
operation to change the laws which were^ then subsisting in the country;
and the ordinance of the 17th of September must be considered only as an
executive act of government, erecting and constituting courts of judicature
in the province for the administration of the laws in being, whatever those
laws might be ; and in this view it is certainly a legal and valid ordinance,
because your Majesty had, by an express clause in your commission aforesaid, given your said governour full power to erect such courts with the
advice and consent of the council only.
I t is true indeed that your Majesty did give a private instruction to your
late governour, purporting to communicate to him a certain degree of legis1
Referring to the report of Yorke and de Grey. See p. 174.
18—3—161-
244 CANlDIAy ARCHIVES
6-7 rDV/ARD VII., A. 1907
A very limit- lative authority to be exercised by him, by and with the consent of the
authority i™ c o u r l o u ov^7> without any assembly ; to wit, an authority to make such
given to the rules and regulations as shall appear to be necessary for the peace, order,
governom- by anc¡ g00d government of the said province, taking care that nothing be
structfon to P&sse<ï or done that shall any 'ways tend to affect the life, limb, or liberty of be exercised the subject, or to the imposing any duties or taxes. But we submit it to by the advice v o u r Majesty's consideration, whether a power of this kind can be comÍ3Y1Q. COHSPUt o r the council munioated by any other instrument than letters patent under your Majesty's only. great seal of Great Britain, publicly read and notified to the people, to the à. doubt con- e n c j (_na(. ^ e a c t g ¿oae Dy y¡r tue of them may have a just claim to their legality of this obedience ; for otherwise they may alledge that they are faithful and loyal method of subjects to your Majesty, and ready to pay obedience to every thing t h i t ingTlegiSÎ- your Mijesty's self shall ordain, and likewise to every thing that shall be tive author- ordained by your Majesty's governour by virtue of powers properly comxty- munioated to him by your Majesty ; that consequently they will obey him in every thing he shall do by virtue of the powers conveyed to him in your Majesty's commission which has been publicly read to them ; but that in the things not warranted by the said commission, but said to be done in ) - " pursuance of certam private instructions that have not been made known to them, and which they are therefore uncertain whether he has received or not, they cannot presume that he acts by your Majesty's authority, and therefore are not bound to obey him. For this reason we humbly apprehend, that the private instruction before mentioned cannot have legally conveyed to your Majesty's governour and council the legislative authority mentioned in it, small and narrow as it is. But secondly, if a private instruction should be deemed to be a legal tive authority method of communicating a legislative authority, yet the power conveyed mentioned in to the governo jr and council of this province by the instruction above-menthis instrue- tioned is much too confined an authority to warrant the general introducsmall to war- ^ion of the English laws ; particularly of the criminal laws, which all affeot rant the intro-either life, or limb, or liberty; and the process of arrests of the body in í ' w s f E e- °*v '^ s u ^ s f° r debt and trespass; and the power of committing persons to land. prison for contempts of court committed in the presence of your Majesty's judges; and that of granting attachments of the body for disobedience or resistance to the orders of your Majesty's superiour courts of judicature, when such acts of disobedience or resistance are «ommitted out of court ; which all immediately affect the personal liberty of your Majesty's subjects in this province. These are the reasons upon which, we conceive, the legality of the introduction of the' laws of England into this province by the provincial ordinances above-mentioned may be called in question. But these reasons have no relation to the other high instruments of government by which these laws may be supposed to have been introduced here, namely, the articles of capitulation in 1760, the 4th article of the definitive treaty of peace, and your Majesty's royal proclamation of the 7th of October 1763. If these instruments have introduced the laws of England, they may have a legal existence in this province, notwithstanding the want of legal authority ill the two provincial ordinances above-mentioned. But if your Majesty should determine that these instruments have not introduced the laws of England into this province, then, as we conceive, it v will follow, that the whole body of those laws has not yet been legally introduced into it, but that those parts only of the laws of England have a legal existence in this province which are contained in the acts of parliament above-mentioned, which by their own import and operation, and without needing any new instrument of government to introduce them, extend to all your Majesty's dominions in America. CONSTITUTIONAL DOCUMENTS 245 SESSIONAL PAPER No. 18 Inconvenient e s arising from the present state of the laws and administration of justice, The uncertainty of the laws. Other ineonvenieneies attending the present state o£ judicature in this province. The expences of law proceedings. l We will now proceed to lay Lefore your Majesty the principal inconve-. niencies under which the Canadians labour from the present state of the laws and methods of administering justice in this proyince. The first and greatest inconvenience arising from the present state of the laws in this province is the uncertainty of them, and the doubts that are entertained concerning the legal continuance of the ancient laws and customs that were observed here in the time of the French government. This is a cause of great uneasiness and anxiety to persons of both nations in many of the ordinary transactions of life ; insomuch that it would be a great improvement of the condition of the province if either the English laws, or the old laws and customs of the country, were established by some new act of government, conceived in the most clear and positive words that can be made use of, with an express exclusion or abolition of the other lawp, which may be imagined to have hitherto been in force. For by this declaration in favour of either of the systems, your Majesty's subjects would know what they had to expect for .themselves and their families with.respect to their inheritances, purchases, mortgages, contracts, and other civil rights and privileges from the operation of the laws ; and would in consequence thereof proceed to make such regulations of their affaii.s by particular agreements and settlements, and by their last wills and testaments, as would protect them against the inconvenîencies which they might apprehend themselves to be exposed to. from such parts of the established system of laws as they did not approve. We do not mean by this to insinuate, that such an immediate establishment of one of these systems of law, to the intire and express abolition and exclusion of the other, would be the best remedy that could be applied to this evil ; but only to represent to your Majesty our idea of the greatness of this inconvenience, since even such a cure would be desireable. What is the best remedy that can be applied to this evil is, as we conceive, a point of the greatest difficulty, and fit only to be determined by the wisdom of your Majesty's councils ; though in obedience to your Majesty's commands, we shall "humbly suggest to your Majesty, in the subsequent part of this report, some of the different methods that, as we apprehend, may be taken for this purpose, with the advantages and disadvantages with which they will be respectively attended. But before we proceed to consider this arduous subject, we beg leave to lay before your Majesty some other and much smaller inconveniencies arising from the present state of the courts in this province, together with a plan for the administration of justice for the time to come, which we humbly conceive to be likely in a great measure to remove them. These inconveniencies are the expensiveness of law proceedings, which is considerably greater than in the time of the French government, the tediousness of them, and the severity of the present method of proceeding in civil suits by arresting and imprisoning the defendant's body. The expences attending law-suits arise evidently from two different sources, the fees of the officers of the courts of justice, and those of the attornies and advocates whom the parties employ in the management of their causes.1 The former are capable of being properly regulated, as the 1 A complete return of the fees exacted by the various officers in the different departments of t h e King's service in Quebec Province, was prepared", under an order of the Lt. Governor, and is given m Canadian Archives, Q 5-2, pp. 445-466. - » When this return, together with Carleton's observations upon the system of fees, had been transmitted to Colonial Secretary Hillsborough, he made the following r e p l y : — " I t is His Majesty s firm Purpose that every proper Measure shall be taken to remedy those Evils, and to remove that Scandal and Reproach brought upon His Majesty's Government, and the consequential unfavourable Impressions made upon the Minds of His Majesty's New Subjects, which are the Effects of the little Attention given by the Patentees in this Kingdom to Ability and Integrity in the-Appointment of their Deputies; and of the shamefull Frauds and Exactions of exorbitant Fees which are practised, and of which you so justly complain. To this E n d I have received His Majesty's Commands to lay your Letters upon this Subject before the Lords of Trade for their Consideration, and to recommend such Remedies as their Lordships shall 246 CANADIAN ABOBITES 6-7 EDWARD VI!., A. 1907 persons to whom they are due are all servants to your Majesty, and under the immediate controul of your Majesty's governour and council j and measures have been already taken to ease your Majesty's subjects in this province of some part of these fees : your Majesty's chief justice and clerk of the crown have remitted those that used to be taken by them in the supreme court ; and those of the attorney-general for the conduct of criminal prosecutions have always been charged to your Majesty : and if those which are taken by the clerk of the supreme court for the civil business that is transacted there, and by the provost-marshal, or she.riff, and his bailiffs, for their summonses, arrests, and other ministerial business done by them in the course of the proceedings, and those which are taken in the court of Common Pleas, or the quarterly and weekly courts of the justices of peace, by the several officers of those courts, are found to be unreasonable, ic will be easy to reduce them to a more moderate standard by a provincial ordinance for that purpose," if your Majesty will condescend to make such a reasonable addition to the salaries of these several officers as shall be a compensation for such diminution of their fees. The other cause of the expensiveness of law-suits is the rate of the fees of the attornies and advocates. These fees, it is evident, are not capable of a like reduction with the former, but must always be such as the parties and their lawyers shall agree upon ; since it is the natural right of every man to set what price he pleases upon his labour. All that can be done to keep those fees from growing exorbitant is to prevent a monopoly of law business in the hands of a few lawyers, who might thereby be enabled to exact unreasonable rewards from their clients by the necessity the people would be under of either employing them upon the terms they thought proper to demand, or letting their business remain undone : and this has been already done by your Majesty's wisdom and indulgence in permitting Canadian notaries, attornies, and advocates to practise their respective professions notwithstanding their continuance in the profession of the Romish religion.1 Yet when every thing is done that can be done to diminish the expence of law proceedings, it is probable they will still be more expensive than in the time of the French government ; which ought not to be a matter of « surprize, since the prices of corn and provisions, and of all sorts of labour, are almost double of what they were at that time. - The next inconvenience arising from the present establishment of the courts of judicature complained of by the Canadians is the tedious length of law-suits. This is owing to the unfrequency of the terms or sessions of the supreme court of judicature, and of the court of Common Pleas, which sit establishment, only three times a year at Quebec and twice at Montreal. In the time of the French government there were three royal courts in the three several districts of Quebec, Three Rivers, and Montreal, vested with full power to determine all matters both criminal and civil : in each of these courts a judge appointed by the French king administered justice, and a king's attorney prosecuted' on behalf of the crown : and they used for that purpose to hold two courts in every week throughout the year, except about six weeks in the months of September and October, and a fortnight at Easter : and besides these courts held regularly every week, they would sit on other days of the week, if the business before them made it necessary. From , these courts there lay an appeal to the highest court of the province, which was called the superiour council ; and this high court also sat every week : so that the difference between the expeditious methods of obtaining justice in the time of the French government, and the slowness of the proceedings judge best adapted to redress these Grievances ; and in the mean Time His Majesty trusts you will make some temporary Regulation to restrain the-B'ees of Office within some settled and certain Bounds, so far as Eight and the Nature of the Case will admit, and also for punishing with Rigour those who shall be guilty of Exaction, or other mal-practice in their Offices." Q 5-2, p. 602. 1 See Ordinance of Sept. 17th, 1764, and notes thereon ; p. 149. 'The slowness with which they are conducted upon the present CONSTITUTIONAL DOCUMENTS 247 SESSIONAL PAPER No. 18 upon the present establishment, is very striking in the eyes of the Canadians, and is esteemed a very considerable inconvenience. Besides^ the usual ill consequences arising from the want of dispatch in law-proceedings, this unfrequency of the sessions of the superiour courts of judicature has been a principal ' cause of the increase of the fees of the Canadian attornies and advocates : for, as their opportunities of pleading causes happen so much seldomer than formerly, they endeavour to make up, by the valué of the fees they now receive in the three sessions of the court pf Common Pleis, the advantages they formerly derived from the number of them in the time that the French king's courts sat every week. There is indeed in the present establishment a court of justice in each district of the province that sits every week for the dispatch of business. These are the courts of the justices of peace. This was a very judicious institution, and well suited to the circumstances and disposition of the people. Yet it is liable to some objections. For, in the first place, the justices of the peace, who are the judges of these courts, are not much skilled in judicial proceedings ; and, secondly, the same justices not attending constantly at these sessions, it is often necessary, where a matter cannot be decided at one session, but is adjourned to the next, to repeat all the proofs and arguments before the justices at the second session, which had been produced at the former session before the other justices who happened not to be now upon the bench, which occasions an increase of expence and trouble : and, lastly, their jurisdiction extends only to such disputes as * relate to sums of money that do not exceed ten pounds. In all contests for greater sums the parties are obliged to have recourse either to the quarterly courts of the justices of the peace, or to the courts of King's Bench and Common Pleas, where the sessions are held but three times a year. Imprisonment The next inconvenience is the severity of the present method of proceeding in civil actions, by arresting and imprisoning the defendant's body. This, by filling the gaols with unhappy debtors, increases the number of the poor and helpless, and makes the families of the debtors, as well as the debtorí themselves, become oftentimes a burden to the publick ; and it is generally thought by the Canadians to be an unnecessary degree of harshness. To remedy these several inconveniencies we bf>g leave to recommend to
your Majesty the following plan for the administration of justice in this
province for the time to come ; which we have formed in imitation of that
which was in use in the time of the French government.
A plan for That this province should be again divided into the three districts of
the adminis- Quebec, Three Rivers, and Montreal, as in the time of the French governjustiee i?
n
m e n t : which might be called the Shires of Quebec, Three Rivers, and Montais pro- treal ; and each of these three districts should have separate officers of jusvmce – tice : that a Royal court of judicature should be established in each of the
three towns of Quebec, Three Rivers, and Montreal, which are the capital,
or rather only, towns of those several shires or districts : and that each of
these courts shall consist of one able English judge, appointed by your
Three royal ‘Majesty, and invested with full powers to hear and determine all matters,
t
Udge>; °i?e b o t h c r i m i l l a l and civil, arising within his jurisdiction, just as your Majesty’s
o?SstriS
et of c h i e f justice of the province is impowered to do upon the present establishthe province, ment throughout the whole province.
These judges These English judges should be barristers at law, of at least five years
to be English standing at the bar ; and they should be such as, besides their skill and
atlawe
of knowledge of the law, had a competent knowledge of the French language,
five years And further, to enable these English judges inore readily to understand
standing at the testimonies of the French witnesses, that would so often be examined
6 a r’ before them, and likewise to comprehend the nature and extent of such of
•248 CANADIAN ARCHIVES
Each English judge
should have
a Canadian
lawyer for
his assessor,
or assistant ;
but the sole
power of
deciding
the causes
should be
vested in
the English
judges.
The judges
should hold
courts once
a week, with
a very few
exceptions.
Method of ‘
proceeding in
these courts.
6-7 EDWARD VII., A. 1907
the antient laws and customs of the country as your Majesty shall think
fit to be either continued or revived, we conceive, that it would be convenient to give each’of them a Canadian lawyer for an .assessor, or assistant
to them in the decision of causes : but the Canadian assessors should hav&
no vote or authority to decide the causes in conjunction with the English
judges ; but should only assist them with their opinion and advice, the
whole power of finally deciding them being vested solely in the EDglish
judges. This employment of the Canadian lawyers, even in this subordinat&
capacity of assistants and advisers, would be thought a very • gracious indulgence in your Majesty by all your Majesty’s new subjects ; and many of
them, to whom it has been mentioned, have expressed an entire approbation of it. If they had an equal degree of authority with the English
judges in the final decision of causes, they would be much more likely than
the English judges to abuse it, by reason of their connections in the country,,
and the enmities and partialities that these connections would give birth
to. And besides, there are other reasons, which would make it inexpedient
to trust your new Roman eatholick subjects, so lately brought under your
Majesty’s allegiance, with so great a degree of power. These judges and
their assistants should hold their courts eve? y week throughout the year,
excepting one month at Christmas, one week at Easter, and another at
Whitsunday, which ire the three great seasons for holidays observed by
Christians. And they should sit on the Tuesday or Wednesday of every –
week, that the contending parties and their witnesses might not be under a
necessity of travelling on Sundays to attend them. If the use of grand
juries should be thought fit by your Majesty to be continued in criminal
prosecutions, these judges should take cognizance of criminal matters (that
is, of such parts of the criminal proceedings as required the attendance of
grand juries) only once a month, that the inhabitants might not be too much
diverted from the care of their private affairs by their attendance in the
courts as grand jurymen. But the other steps of all criminal proceedings
that do not require the presence of grand jurymen, and, if the use of grand’
juries was laid aside, the whole of those proceedings should be carried on in
the weekly sessions, as well as all the civil business of the district.
The method of proceeding in these courts in civil actions might be asfollows. The plaintiff might bring a declaration or plaint, in writing, into
court, which might be either in the French or English language, as he
thought proper, praying the process of the court to cause the defendant to
be summoned to answer it ; but not to be arrested by his body. This
plaint should be read to the judge in open court, in, order that he should
determine whether or no it contained a good cause of action ; and, till he
appro\ ed it, no summons should be issued upon it. If he approved it, he should
order it to be filed amongst the records of the court by the clerk or register
of the cour t, and should^,ward a summons to be sent to the defendant to comeand answer the plaintiffs demand, at such a time as he, the judge, should
therein appoint. If he neglected to come at the time appointed by the
summons, without any good reason for his neglect, he should be condemned
to pay the plaintiff a moderate sum of money, to be ascertained by thejudge, as a compensation to him for his expence and trouble in attending
the court, at the time appointed by the summons, to no purpose ; and he
should be summoned to come and answer the plaintiff’s demand on
another day. If he then also refused to come, judgment should go
against him by default. When the defendant appeared, he should
make his answer to the plaint of the plaintiff in writing, and either in
the French or English language, as he thought proper : and this answer
should be filed amongst the records of the court. The judge should then
himself interrogate the parties concerning the facts, in their account of
CONSTITUTIONAL DOCUMENTS 249
SESSIONAL PAPER No. 18
Juries to be
summoned, if
the parties
desired it.
They should
be paid for
their attendManner of
chusing them
A majority
of the jury
should carry
the verdict.
which the parties seemed to differ, and which appeared to him to be
material to the decision of the cause : and these interrogatories and the
answers of the parties should be reduced to writing by the judge, or by
the clerk of the court from the words dictated to him by the judge. When
the judge had thus found out in what facts material to the decision of the
cause the parties differed, he should himself state these facts in writing,
and declare that it was «necessary for him to be informed, by proper testimony, whether they were true or false ; and should ask the parties whether
both, or either of them, desired that he should inquire into the truth of
these facts by means’of a jury, or by examining witnesses, or other proofs
himself. If both, or either of the parties, desired to have a jury, a jury
should be summoned to attend, at such following session as the judge
should appoint. This jury should be paid for their attendance by the party
that desired to have a jury ; and if both desired it, then equally by both
parties. They should receive five shillings sterling a man. For at present
it is a subject of complaint among the Canadians that they are taken from
their necessary occupations to attend upon juries (which is by no means an
agreeable employment to them) without any consideration, for it : and
this, if it happened every week without any compensation, would be
thought, and perhaps justly, a very heavy burden. But for a reward of
five shillings they will serve with great alacrity. These juries should be
appointed in nearly the same manner as special juries are in England ;
that is, the ministerial officer, that executed the process of the court,
should return to the court a list of four times as many persons qualified to
be jurymen as ivere necessary to constitute a jury; that is, if a jury was to
consist of twelve men, a list of forty-eight persons so qualified ; and then
each party should strike out twelve of the names contained in this list :
and then the names of the remaining jurymen contained in it should be
set down in a new list in an alternate order ; that is, first one at the nomination of the plaintiff ; then one at the nomination of the defendant ; then
another at the nomination of the plaintiff ; and then another at that of
the defendant ; and so on : and these persons (whose names were thus set
down in this new list, and who would be enough in number to constitute
two juries) should all be summoned to attend the court on the day
appointed for the trial of the cause, and should be called over in the court
in the order in which their names were set down in the new list ; and the
first twelve, or other number sufficient to make a jury, that appeared in
the court should be the jury to try the cause. By this method of chusing
a jury the disagreeable and captious practice of challenging jurymen
would be avoided, which is apt to give rise to animosities between the
persons challenged and the parties who object to them.
Of the jury so chosen a majority should have a right to determine the
verdict : the present rule, of requiring an absolute unanimity amongst all
the jurymen, being evidently absurd and unnatural, and, amongst other
inconveniencies, productive of one of a very important nature, which is the
perjury of some of the jurymen in’every third or fourth cause : for it happens at least so often that there is a real difference of opinion amongst the
jurymen, and that some of them go over to the opinion of the rest, in opposition to their own sentiments, and contrary to the oath they have taken
to give a true verdict according to the evidence ; which means, as we presume, according to their judgment of it. And it has sometimes happened,
that a great majority of the jurymen has gone over to a small but resolute
minority. This therefore calls loudly for a reformation ; and more especially in a country where the natural and ordinary differences of opinion, that
must frequently happen amongst jurymen, are likely to be greatly heightened by national and religious prejudices. If the agreement of twelve men
250 CANADIAN ARCHIVES
The juries
should
always give
special
verdicts.
Examination
of witnesses.
6-7 EDWARD VI!., A. 1907
should be t h o u g h t necessary to establish t h e t r u t h of a fact, it would be
necessary-to impannel twenty-three jurors. B u t perhaps a b are majority
of twelve men may be sufficient to answer all the purposes of justice in
civil matters.
– I n criminal matters i t might be proper to m a k e the agreement of twothirds of the jury necessary to the conviction of the accused person.
A n d as the issues, or points of fapt, t h a t were to be proposed to the
consideration of t h e jury, were to be d r a w n up in a m i n u t e and particular
manner in words dictated by t h e judges of the courts, so the verdicts of
the juries should be always special verdicts, stating t h e facts, as t h e jury
findthem’to have happened, with great exactness and particularity. This
would prevent juries from encroaching upon the province of t h e judges, and
determining points of law by means of the short and general issues^of ” Guilty
or Rot Guilty,” ” He did or did not undertake,” ” He does or does not owe
the sum demanded” and the like, t h a t oftentimes involve points of law
mixed with matters of fact, and thereby give juries an opportunity of committing these irregularities. W h e n e v e r these things happen (whether it be
from t h e ignorance or w a n t of discernment in t h e jurymen, or from their
wilfulness or partiality) it is certain t h a t a real injury is done to t h e losing
party, whose right it is, according to t h e laws of England, to have t h e
points of law, upon which his cause depends, determined by the learned
and able judges whom your Majesty has appointed to fill your courts of
justice, as much as it is to have t h e matters of fact in the cause determined
by a jury of honest freeholders in t h e neighbourhood.
The witnesses examined in the trial of a cause should be examined vivâ
voce in open court, i n t h e presence of both parties, or their attornies a n d
advocates ; and cross-examined, if t h e adverse party t h o u g h t proper : a n d
should not be allowed to deliver their testimony -by written depositions or
affidavits t a k e n in private ; not even in those trials which were carried on
without a jury ; unless by the consent of both the parties, or by t h e particular direction of t h e judge, upon very strong reasons for so doing, moved
a n d debated in open court.
W h e n judgment was given for t h e plaintiff in a civil action, a w r i t of
execution should go against the goods and lands of the defendant, b u t not
against his person ; directing the ministerial officer t h a t executed t h e process of the court, to levy the sum of money awarded to the plaintiff by t h e
judgment, upon t h e defendant’s moveable goods and chattels ; and, in case
they are not sufficient for the purpose, then, b u t not otherwise, to sell p a r t
Upon proper * of his lands, to produce t h e remainder of the sum. A n d if the executive
grounds the officer could not find a sufficient quantity of either moveable or immoveable
might be re- property belonging to the defendant to raise the sum awarded, and the
quired to judge was of opinion, upon affidavits made before him to t h a t purpose, t h a t
deliver in to £ n e r e w a s reasonable grounds to suspect t h a t the defendant h a d secreted or
exact schedule concealed some of his effects, he might require him to deliver in to t h e
of his estate court, upon oath, a n exact schedule of all his estates and effects of every
kind ; and if he refused so to do, might commit him to prison till he complied. A n d if he omitted any p a r t of his effects to the amount of t w e n t y
pounds sterling, in t h e schedule so delivered in to t h e court, he should be
liable t o t h e penalties of perjury.
The judge should have a power of awarding reasonable costs to either
party, according to his discretion.
I t would be. convenient to h a v e a separate ministerial, or executive,
officer, to each of the three districts of Quebec, Three Rivers, a n d Montreal, to be called a Sheriff, which is the common name for such a n officer in
England, instead of one Provost-marshal for the whole province.
King’s at- A n d it would be necessary for your Majesty to have a n attorney in each
toriiiGS m &3,cn
of the three of these courts, to prosecute for your Majesty in all criminal cases, a n d in
courts.
Execution
against the
•defendant’s
goods and
lands.
and effects
upon oath.
Costs.
Sheriffs to
the three
several shires,
or districts.
CONSTITUTIONAL DOCUMENTS 251
SESSIONAL PAPER No. 18
suits concerning your Majesty’s revenue, and in all other suits in which
your Majesty’s interest is concerned. If your Majesty should not think
proper to appoint an officer expressly for this purpose, the power of carrying
on these prosecutions for your Majesty might be vested in the -clerk, or
register, of the court; just as in your Majesty’s court of King’s Bench in
England, the clerk of the crown, (whose principal duty is, to register, or
enter, the pleas of the crown in the records of the court) is likewise attorney of your Majesty in that court, and prosecutes in your Majesty’s behalf.
But wè submit it to your Majesty, that it would be convenient, and more
suitable to the honour of your Majesty and the dignity of the court, to have
a separate officer for this purpose, to be called your Majesty’s Attorney for
that district, as there was in the time of the French government.
Appeals From these courts there should lie an appeal to the governour and council
from these 0f t n e province, and from thence to your Majesty in your privy council.
governour and O 0 e gr e at use of the” appeal to the governour and council would be to precouncil, and serve an uniformity in the law throughout the whole province, which othertoth K ” C 6 ‘ w
*
s e migh* gradually become different in the three different shires or discouneil. tricts of it, by the difference of the decisions that might be given in these
several courts of justice, if they were intirely indépendant of each other,
and subject to no common superiour council that might correct the errors
of their proceedings.
And for the same reason the decisions of these courts should not be deemed
to form precedents of sufficient authority .to determine any subsequent
disputes ; but this authority should be ascribed only to those cases which
„ had been decided by the governour and council of the province upon the
appeals brought before them from these shire-courts, or by your Majesty’s
self in your privy council.
And in order that your Majesty’s governour and council might not be
destitute of the advice of persons skilled in the laws to assist them in the
determination of the appeals that should be brought before them, it might
be expedient that your Majesty’s judges of these three courts, and perhaps
also your Majesty’s three attornies in them, should be made members of
‘ your Majesty’s council of the province ; by which means all the best law
abilities in the province would be employed in making these important
decisions that were to carry with them the force of law : and with this view
– it might be proper to require your Majesty’s judges and attornies of the
courts at Three Rivers and Montreal to attend the governour at Quebec for
one month about Christmas time, in order to assist at the decision of these
appeals, which should therefore be reserved to this season of the year.
The nature of These appeals should be only, as they now are, of the nature of writs of
these appeals, error in England, to correct the errors in law committed in the courts of
these shires or districts, and not to re-consider the facts in the cause, unless
they had been settled by the judge alone without the assistance of a jury.
Where this was the case, the parties might, if they thought fit, cause the
evidence itself to be taken down in writing by the clerk of the court, and
signed by the witnesses and judge, that it might make a part of the record,
as it does upon a trial by a general court martial in England : and, upon
the removal of this record before the governour and council, they might reconsider the whole matter, the facts as well as the law, and give such
judgment upon it as thev thought just ; but they should not admit any new
. evidence relating to it. ” Where the cause had been tried by a jury, the
bv7d™d
bíe
mI losing party might, if he thought proper, have it tried over again by a
jury. second jury, consisting of twice as many jurymen as the first jury ; and the
verdict’ of this second jury should be final with respect to the matters of
fact determined by it. . .i-ti.
When Gaspey shall be settled, a fourth judge might be sent thither,
whose jurisdiction should extend over a district lying round about it, to be
252 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
taken out of the district of Quebec, which is now immoderately large. Such
an establishment would be of great convenience to the inhabitants of that
part of the province.
These are the outlines of the plan which we humbly beg leave to recommend to your Majesty for the administration of justice, and which, we are
confident, would be of great advantage, and give very great satisfaction to
your Majesty’s Canadian subjects, and effectually remove many of the
inconveniencies of which they now complain.
lb remains that we consider the first and greatest inconvenience abovementioned, which arises from the uncertainty of the law in the present
condition of the province, and that we set»before your Majesty the different
methods by which, as we conceive, this inconvenience may be removed, and
the laws of the province may be settled for the future upon a solid and permanent foundation.
Four different Four methods of doing this have occurred to us. The first is, to compose
methods that a C0(Je 0f i a w s for this pro’s ince, that shall contain all the laws by which it
tosettle the” *s
^° ^ e
governed for the time to come, to the entire exclusion or abolition
laws of this of every part both of the laws of England and the French laws that shall
province. n o t be set down in the code itself.
The secord is, to revive or re-establish the whole French law at once, to
the exclusion of all the English laws, excepting those few which have been
introduced by act of parliament, as above-mentioned, and a few more of the
laws of England which are most eminently beneficial and favourable to the
liberty of the subject, and to introduce these beneficial laws by a particular
ordinance or proclamation, published in the province, in order to make them
” fully known to the Canadians. Such might be an ordinance to take away
the use of the question, or torture, in criminal prosecutions, to change the
cruel punisl ment of breaking on the wheel into hanging or beheading ; and
to introduce the substance of the English law relating to the writ of habeas
corpus, by declaring that no person in the province should be committed to
prison, or detained in prison, by the order of any magistrate without a warrant m writing under the hand of the magistrate, expressing particularly
the cause of his commitment or detention ; and that every man so detained
in prison should, if he desired it, be brought before one of your Majesty’s
judges in the province, and either set at liberty, bailed, or remanded to
prison, as the cause of his imprisonment, expressed in the warrant by which
he is detained in prison, should require. Such an ordinance might be
thought to fulfil], in a great measure, the promise given to your Majesty’s
British subjects by those words in your Majesty’s proclamation above-mentioned, of the enjoyment of the benefit of the laws of England, supposing
that your Majesty should think proper to determine that those words contain only a promise.
The third method of settling the laws of this country, so as to continue ,
to the Canadians the use of several of their ancient customs, is to make the
law of England the general law of the province, with an exception of those
particular subjects concerning which your Majesty shall please to permit
the former customs of the country to subsist, and with respect to those subjects to let the ancient laws of the country subsist in the manner they did
at the time of the conquest, and without attempting to reduce them to
writing, and enact them anew by particular ordinances, expressly setting
them forth in all the extent in which your Majesty thought proper to let
them continue.
And the fourth method of doing this would be to make (as in the third
method) the law of England become the general law of the province, with
an exception of those particular subjects, or heads of law, concerning which
your Majesty shall please to permit the former customs of the country to
continue ; and with respect to those subjects, to enumerate and set forth a t
CONSTITUTIONAL DOCUMENTS 253
SESSIONAL PAPER No. 18
length, in an ordinance or proclamation to be made for that purpose, the
particular customs which ycmr Majesty should think fit to be continued, to
the exclusion and abolition of all other customs that should not be contained in the said ordinance or proclamation.
Advantages The first of these methods of settling the laws of this province, namely,
teges wfth t h a t o f m a k i n g
a o o d e o f all the laws by which it shall be governed for the
which the first future, to the exclusion of all the laws both of England and France that
™ttr0d th J a r e n 0 t 0 0 n t a i n e c l i n it;> “would certainly be the most troublesome in the
laws’wfll be e x e c u t i o n to your Majesty’s ministers and servants, both in England and
attended. in this province. And further, we conceive that it would be objected to
by some of the Canadians, who are the most difficult to please, as a rash
and dangerous experiment, to which the persons your Majesty should think
proper to employ in the compiling this code would be by no means equal.
They would frame their objection to such a project in some such manner as
this : ‘That to reduce the whole law anew into writing, with a rejection
‘ of a great part of it as useless in the opinion of the compilers, is a task of
1
such extraordinary difficulty, that not only no person in this province is
‘ fit to undertake it, but even the ablest lawyers in the parliament of
‘ Paris, if they were to devote their whole time and attention to it, would
1
hardly be able to execute it properly ; that if any thing of this kind is
1
attempted here, many important things will most certainly be omitted,
‘ and others be too concisely, imperfectly, or obscurely expressed ; that in
‘ such a code no part of the ancient laws of this province ought to be
‘ omitted, notwithstanding some of them may never have been put in
‘ execution here ; for that those laws are not less a part of the law of this
‘ country than those which have been often put in practice ; and that the
‘ only reason why they have not yet been executed is, because the objects
‘ of them, that is, the cases to which they relate, have not yet arisen ; and
‘ that when these cases shall arise, here is a wise law already provided be-
‘ forehand to decide them ; and that therefore no part of the custom of
‘ Paris, which was truly and properly the law of this province, ought to be
‘ left out of any code that shall be made for the government of it : and
‘ further, that there is a strong mutual connection between the different
‘ parts of this system of law, that make*? it very difficult to change or
‘ abrogate any part of it, under a notion of its being useless, without
‘ weakening or rendering ineffectual other parts of it which the compilers
‘ may esteem useful ; and that therefore the only safe way is to let it stand
‘ as it is ; and that, in this view of permitting the whole of it to continue,
‘ there is” no need of a code to express it over again in new words ; that it
1
is already expressed in writing in the best manner possible in the text of
‘ the custom of Paris itself and in the learned treatises of Monsieur Ferr
riere1
and other writers upon it, and in the decisions of the parliament of
‘ Paris and of the superiour council of this province, upon the cases that
‘ have been contested before them ; that indeed such a new code might be
‘ of some convenience to an English judge to save him the trouble of
1
studying or consulting the French law-books, but that it would be a most
1
dangerous and pernicious attempt to the rights and liberties of your
1
Majesty’s Canadian subjects.’
These aa-e the objections which will certainly be made by some of your
Majesty’s Canadian subjects to the measure of compiling a new code of laws
for this province, which we have stated to your Majesty at great length,
that they may have all the weight with your Majesty which they may deserve. At the same time we beg leave to inform your Majesty, that we believe that these objections will be made only by a few persons in this pro-
, T
1 The referenced doubtless to the work entitled : ” A comparison between the Code Digest, and
Novels, and the French Law & Custom of Paris, by Monsieur Fernere, Professor of Law at Paris ; m Six
Volumes in Quarto.”
CANADIAN ARCHIYES ‘
6-7 EDWARD VII., A. 1907
vince, and that the bulk of your Majesty’s new Canadian subjects will be
very well satisfied with such a cocte, and this even though it should in a
great measure be taken from the laws of England, provided only that -a few
of the most important of their ancient laws and customs, and that most
nearly affect their property and the future situation of their wives and children, be contained in it. • “”
On the other hand, the advantages that would arise from this measure of
compiling such a code of laws for this province would, as we conceive, be
these that follow.
In the first place, the English judges, who will, as we.presume, always
be employed to administer justice in this province, would have a short and
plain rule to go by, which they would easily be able to make themselves
masters of, and would not be liable to be puzzled and misled by artful
French lawyers, partially citing and misrepresenting and misapplying the
doctrines and cases contained in the French law books.
And in the second place, the English inhabitants in .general would have
the satisfaction of knowing easily and certainly what the laws of the province were, upon what conditions they purchased lands or houses, what
rights of alienating or devising them they thereby acquired, what duties to
your Majesty, their lords or their tenants, they were bound to, and in what
manner their wives and children would enjoy their possessions after their
decease.
These would be no inconsiderable advantages resulting from the composition of such a code, even though done in a very imperfect manner. But
there is another and greater advantage with which, as we conceive, this
measure would be attended, which is the removing from the minds of the
Canadians all idea of the excellency of the French laws and, government,
and of the superiour skill and ability of French lawyers and judges, bred in
the parliament of Paris, and consequently of the happiness of having their
law-suits decided by them. For we-apprehend that, as long as the French
laws and customs subsist at large without being reduced into a code, so that
the several French law-books, books of reports, and edicts of the French
king are the books of authority upon the subject, to which recourse must
be had continually in the decision of points of law, so long will the people
of this province retain a reverence for those edicts, reports, and other lawbooks, and for the authority of the French king who made the edicts, and
for the parliament of Paris that has made the decisions reported in the
books of reports, and the other learned French authors who have composed
the other treatises on this subject ; and this reverence* will be accompanied
with a continuance of their liking for that government from which these
good laws and edicts and law-books proceeded, and under which they might
be most ably-administered, and consequently with a secret wish to return
to that government, that is, to return to their subjection to the French
king ; whereas, if they continue to enjoy the most important of their ancient laws and customs under a new name, and expressed in a stile and
phrase somewhat different from the former, and carrying with it the stamp
of your Majesty’s authority, the idea of their former sovereign, and of the
parliament of Paris, and of the wise lawyers that compose it, would by degrees wear out of their minds, and they would think ^of nothing upon these
occasions but the king of Great Britain and his code, and the great favour
he had shewn them in permitting their principal laws and customs to continue, and giving them the express sanction of his royal authority. This
we take to be a very capital advantage attending this measure of compiling
a code of laws.
As to the inconvenience that might arise from the omissions or imperfections of this code (for we readily- admit that it would be very imperfect) it
CONSTITUTIONAL DOCUMENTS 255
SESSIONAL PAPER No. 18
must be observed, that they might be continually lessened and remedied by
fresh ordinances, from time to time re-enacting those parts of the former
laws and customs of this province which appeared to have been forgotten
in the code, and which the governour and council thought worthy to be
re-established : and in the mean time the code itself (imperfect as we suppose it to be) would still be sufficiently exact to determine all the common
cases that occur in the ordinary course of human affairs, such as the rules
of inheritance in the direct line, the rules of dower, and of the husband’s
rights arising from the matrimonial contract, the usual rules about quitrents, alienation-fines, and other profits due to your Majesty and to other
lords, the usual methods of investiture of lands by performing fealty and
^homage, and the like, which would be sufficient to prevent the country from
falling into general confusion.
This code we suppose to contain the whole of the law by which the province is to be governed, criminal as well as civil, to the exclusion of the
whole of the English law, as well as the French, except what was contained
in the code itself, and the acts of parliament relating to the custom-house
duties, and those few other statutes that expressly relate to this colony by
name or sufficient words of description since the conquest of it, or which,
though made before the conquest of it, yet extend to it by virtue of the
general description of all his Majesty’s dominions now belonging to the
> crown of Oreat Britain, or that shall hereafter belong unto the same.
These are the advantages and disadvantages with which, as we conceive,
this first method of settling the laws of this province, by composing a code
of laws for that purpose, would be attended.
Advantages The second method of settling the laws of this province, by reviving at
and disadvan- o n c e t n e whole French law, and introducing by an ordinance only a few of
second the laws of England that are most eminently beneficial to the subject, is
method. evidently the shortest and easiest method that can be taken for this purpose ; but it would be attended with the following inconveniencies.
I n the first place it Would have a tendency to keep up in the minds of
the Canadians that respect for the laws of France, and the wisdom of the
parliament of Paris, and the excellence of the French government, which
has been above -described, and which it would be one of the principal
advantages resulting from the former measure, of compiling a code of laws,
to extinguish.
In the second place it would give disgust to the English inhabitants of
this province, who are fond of the laws of England and desirous of having •*
the greatest part of them continued, and think they have a right to the
enjoyment of them upon two distinct grounds.
In the first place, they think that every country that becomes subject to
the crown of Great Britain (whether by conquest, exchange, or otherwise)
” becomes immediately subject to the laws of England, and that the laws< by which it was formerly governed become immediately and ipso facto void and of no effect, being superseded by the laws of England without the aid of any act of parliament or royal proclamation for that purpose. In this we presume they are mistaken ; since both the express declarations of the law-books, and those of your Majesty's attorney and solliciter general in their report concerning this province, made in the year 1766,1 and the dictates of natural reason inculcate a quite contrary doctrine, to wit, that the laws of the conquered people subsist in their full vigour till the will of the conquerour shall expressly change them. However this opinion, though not well grounded, is pretty general among the English inhabitants of this province. 1 The Report of Yorke and de Grey ; see p. 174. 256 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 And in the second place, they say, that, supposing that the laws of England were not of course introduced into this province by the vjry conquest itself and the subjection of the country to the crown of Great Britain, yet that they have been expressly introduced by your Majesty's proclamation of the 7th of October 1763, in the words that have been me itioned in the for.ner part of this report ; in which your Majesty assures t'iem, that they may confide inyaur Majesty's royal protection for the enjoyment of the benefit of the laws of England. Advantages The third method of settling the laws of this province, by making the laws tages oTthe™ °^ England the general basis of them, and permitting the Canadian cuscoms third method, to continue with respect only to some particular excepted subjects, and this by a general reference to the French law-books in which those customs are contained, without attempting to enumerate and express them ainew, would also be a very short and easy one to your Majesty's ministers and servants both in England and in this province ; and will be very agreeable and satisfactory to your Majesty's British subjects in this province. Yet it will be attended with the following inconveniencies. By preserving a considerable part of the French law in the lump, or by a general reference to the French law-books that contain it, it will in some degree keep up in the minds of the Canadians that reverence for the laws and lawyers of Paris, and thit consequential opinion of the happiness of being subject to the French government (as being that under which those laws may be most ably administered) which all persons that are zealously attached to your Majesty's government would naturally wish to see extinguished. But this objection will take place in a much less degree against this method, than against the last-meritioned, or second method, by which almost the whole body of the French laws would be revived. Further, if this third method of settling the laws is pursued, some of the Canadians will probably make the two following objections to it. They will say, in the first place, that the whole body of their laws ought to have been left intire, as there is a strong and well contrived connexion between all its parts, which makes it dangerous and detrimental to the welfare of the province to alter any of it. And, secondly, they will say, that, if any of the laws of England must be introduced here, they ought not to be introduced by general words, but by special ordinances, enumerating them, and setting them forth at full length, and in the French language, so that the Canadians may know and observe them. But these are objections which we believe ), will be made only by a few persons, and not by the generality of your Majesty's Canadian subjects. Advantages The fourth method of settling the laws of this province, by making the tases of tí™" ^a w °^ England become the general law of it, with an exception of some fourth particular subjects, or heads of law ; and concerning those subjects to method. revive the ancient customs of the country by an ordinance or proclamation ' that should particularly set them forth and describe them in all the extent in which your Majesty should think fit to let them continue, without any reference to the law-books in which they were formerly contained, would be preferable to the third method in this respect, that by enumerating and describing, or reciting particu'arly, thé several French laws and customs i that were intended to be continued, it would cut off all connection, in the minds of the Canadians, with the French laws, lawyers, and judges, and the government under which they were maintained. The parliament of Paris, and the custom of Paris, and the French king's edicts would be no longer heard of, as being no longer of any authority ; but the laws that were permitted to subsist must be cited in the words made use of by your Majesty to express them in the ordinance or proclamation which permitted their continuance. This would be a considerable advantage which this fourth CONSTITUTIONAL DQCUMENT8 257 SESSIONAL PAPER No. 18 method of settling the laws of this province would have over the third method ; but it would be certainly somewhat more troublesome to your Majesty's ministers than that third method, and it would likewise be liable to many imperfections from the inaccurate manner in which the French laws and customs that were intended to be continued would probably be set forth ; and it would be further liable to the two latter objections which might be made to the third measure, to "wit, that it would give but an imperfect degree of satisfaction to some of the Oanadians, by leaving them only a part of their ancient laws and customs, and that it would further cause them to complain of the general manner of introducing the laws of England without informing them exactly and particularly what those laws were, that they might know how to obey them. But these are objections which, as we before observed, would probably be made by a few persons only, and not by the generality of your Majesty's new subjects. Conclusion Thus we have set forth to your Majesty at considerable length (but not greater, we hope, than the importance of the subject required) the different methods by which your Majesty's gracious.intention of settling the laws of this province upon a solid and permanent foundation for the time to come, and of leaving to your Majesty's new Canadian subjects the enjoyment of - some of their ancient laws and customs that are most necessary to their tranquillity and satisfaction,may be carried into execution, together with the several advantages and disadvantages with which we apprehend that each of them will be attended. To weigh these advantages and disadvantages against each other, and draw a final balance in favour of one of these methods in preference to the rest, or to And a new method preferable to them all, is a task to which we find ourselves'unequal, and which we apprehend can be successfully performed only by the wisdom of your Majesty's counsels. By residing in the province we may have been able perhaps, by our observation of the state of things here, to furnish your Majesty with necessary information and materials for forming a decisive judgement upon the subject ; and that, in obedience to your Majesty's commands, we have endeavoured to do faithfully and fully, and to the best of our abilties, in this repopt. That our endeavours may be acceptable to your Majesty, and may be esteemed rather according to the zeal and integrity by which they have been directed, than according to the degree in which they may be found to answer the high purposes to which they were intended to be subservient,_is the earnest wish of, Your Majesty's Most loyal and devoted SUBJECTS AND SERVANTS. N.B. The foregoing draught of a report, which was prepared by Francis Maseres, Esquire, his Majesty's attorney general of the province of Quebec, by order of Guy Oarleton, Esquire, the governour of the said province, was delivered in to the said governour on the 27th day of February 1769,' but had not the good fortune to be approved by his excellency. Another report1 was thereupon drawn up by other hands agreeable to the gbvernour's sentiments, in which his excellency has omitted the consideration of all the public acts and instruments whereby the English k w has been introduced, or attempted to be introduced, into that province, together with some other matters contained in the foregoing report ; and instead of mentioning several different methods of settling the laws of that province for the future, with the several advantages and disadvantages that would probably attend each of the proposed methods, and leaving it wholly to his Majesty's wisdom to chuse one of the methods in preference to the others, as is done in the foregoing report, his excellency has thought fit to mention only one method of settling the laws of the province, which îTjplo the present, this Report has not bien discovered among the State Papers. 18—3—17 258 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 he strongly recommends to his Majesty, as the only way of doing justice and giving satisfaction to the Canadians, which is, to continue the laws of England with respect to criminal matters, but to revive the whole body of the French laws that were in use there before the conquest with respect to civil matters. The chief justice, William Hey, Esquire, and attorney general of the province, not thinking it either necessary or expedient to revive the whole body of the French laws in civil matters, but only those parts of them (which indeed are very considerable) which related to the tenure, alienation, dower, and inheritance of landed property, and the distribution of the effects of persons who die intestate, delivered in to the governour two additional papers, or lesser reports, containing their reasons for not wholly agreeing to the report made by his excellency. And these" three reports were delivered to Maurice Morgan, Esquire, about the 12th of September 1769, to be by him carried to England, and delivered to his Majesty's secretary of state for America.1 The additional paper, or lesser report, of the attorney general was intitled his opinion concerning the governour's report, and was as follows. ATTORNEY GEN E RAL MASERES' CRITICISM OF GOVERNOR CARLETON'S REPORT ON T H E LAWS OF T H E PROVINCE. 2 The Opinion of «the Attorney General of the Province of Quebec concerning the Report made by his Excellency Brigadier-General Carleton, the Governour in Chief of the said Province, to his Majesty in Council, concerning The State of the Laws and the Administration of' Justice in the said Province ; with The Reasons of his Dissent from some of the Matters contained in the said Report. Tour Majesty's attorney general of this province approves that part of the foregoing report which gives an account of the constitution of the government of this province during it's subjection to the French king, and believes the said account to be true in most particulars ; but he cannot assent to th^t part of the said report which suggests to your Majesty the expediency of reviving the whole of the French laws in civil matters, for the following reasons. In the first place, he thinks it will be a deviation from that plan of conduct which your Majesty has hitherto thought fit to pursue with respect to this province ever since the conquest of it by your Majesty's arms in 1760, which he conceives to have been,' to endeavour to introduce the English laws and the English manner of government into it, and thereby to assimilate and associate this province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jaffery Amherst, to whom 1 The three reports delivered to Morgan were those of Governor Carleton, Chief Justice Hey and Attorney General Maseres. I n a communication from J o h n Pownall, Under Secretary of State for the Colonies, to the Clerk of the Council in Waiting, he states that, by Lord Hillsborough's orders, he has transmitted to the Council certain papers sent to His Lordship by $ie Governor of Quebec,»18th September 1769, pursuant to t h e Order in Council of Aug. 28th, 1767. These papers were :— " R e p o r t upon t h e State of the Laws and Courts of Judicature in the Province of Quebec." ' ' Appendix to sai d Report. " " A t t o r n e y General Maseres'Opinion concerning said Report." Hillsborough, writing to Carleton on J a n . 18th 1770, reports that Morgan has arrived and delivered the papers which will pave the way for a speedy decision on the state of Quebec. The reports however are not found in connection with any of these despatches. That of Maseres, which follows, is given by himself in his volume of "Commissions " &e, 2 Maseres, " A Collection of several Commissions and other Public Instruments, &c." p. 50. Objections to the proposal of reviving the whole body of the French laws relating to civri matters. Inconsistency of such a measure with his Majesty's former plan of conduct with respect to the province of Quebec. CONSTITUTIONAL DOCUMENTS 259 SESSIONAL PAPER No. 18 Other inconveniencies would follow from such a measure. First inconvenience. Second-ineonvenienee. this province was surrendered, to keep up, from the first moment of the conquest, all the courts of justice that were at that time in being in the colony, and even the several officers that composed tham, upon the same footing on which they then subsisted. But as your Majesty's said general did immediately suppress all the former jurisdictions, and erect military councils in their stead, and in the articles of capitulation refused to promise the inhabitants of this province the co?itinuance of the custom of Paris, and the other ancient laws and usagres by which they had been governed, though requested in that behalf by the French general ;—and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new Canadian subjects even in the delicate and important article of the free exercise of their religion, only so far as the laws of England will permit;—and as your Majesty, by your royal proclamation of the 7th of November1 1763, did encourage your British and other ancient subjects to go and settle in this and the other new-erected governments, and did promise them, as an excitement thereunto, the immediate enjoyment of the benefit of the laws of England ;—and as your Majesty did afterwards, by your commission of vice admiral of this province granted to General Murray,2 expressly introduce all the laws of the 'English courts of admiralty into this province ; and by your commission to the same gentleman to be captain general and governour in chief of this province, did direct him to summon an assembly of the freeholders and planters in this province, and in conjunction with them to-make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws of England were already introduced there ; and did in other parts of the said commission allude to divers of the laws of England as being already in force here, as particularly the laws relating to the oaths of abjuration and supremacy, and the declaration against transubstantiation— From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney general of this province humbly collects it to have been your Majesty's gracious intention tp assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America ; he . therefore conceives that the immediate revival of all the French laws relating to civil suits in this province, in the manner suggested in the foregoing report, will have at least the appearance of a deviation from the plan of conduct which your Majesty has hitherto adopted, and of a step towards a preference of the contrary system of keeping this province distinct from, and unconnected with, all your Majesty's other colonies in North America8 : and this appearance he humbly conceives to be itself a considerable inconvenience, and very fit to be avoided, unless very strong' reasons of justice or policy made such a measure 'necessary, which he does not conceive to be the case ; for, on the contrary, he apprehends that the said total revival of the custom of Paris, and all the other French laws relating to civil suits, will be attended with the following additional incon- 'veniencies. In the first place, it will make it difficult for any of your Majesty's English subjects to administer justice in this province, as it will require much labour and study, and a more than ordinary acquaintance with the French language to attain a thorough knowledge of those laws. In the next place, it will keep up in the minds of- your Majesty's new Canadian subjects the remembrance of their former government, which will probably be accompanied with a desire to return to it. When they hear the custom of Paris, and the parliament of'Paris, and its wise deci1 October, not November. _ , / - • • „ • „ «,„ » „ l i s 2 Given in Maseres, " A Collection of several Commissions &c. p. lid. 3 See Carleton's letters to Gage and Shelburne, pp. 1»5, Dt>.
18—3—17|
260 CANADIAN ARCHIVES
Third inconvenience.
The expensiveness and
dilatoriness
of the English law proceedings are
the principal
subjects of
the complaints of the
Canadians.
To erect three
royal courts
of genera]
jurisdiction
to hold their
sittings
weekly.
To make a
code of laws
for the use of
the province.
To revive the
old French
laws relating
to landed property and the
distribution
of the effects
of intestates.
6-7 EDWARD VII., A. 190?
sions, continually appealed to as the measure of justice in this country,
fchey will be inclined to think that government to be best, under which
those wise laws could most ably be administered, which is that of the
French king ; which, together with the continuance of their attachment to
the Popish religion, will keep them ever in a state of disaffection to your
Majesty’s government, and in a disposition to shake it off on the first
opportunity that shall happen to be afforded them by any attempt of the
French king to recover this country by force of arms.
And in the third place, it will discourage your Majesty’s British subjects from coming to settle here when they see the country governed by a
set of laws, of which they have no knowledge, and against which they
entertain (though perhaps unjustly) strong prejudices.
Your Majesty’s attorney general of this province is further of opinion,
that the body of your Majesty’s new Canadian subjects are by no means
either so distressed or so discontented by the introduction of the English
laws into this province as they are represented in the foregoing report : at
least he has seen no proofs of either such great distress or high discontent.
What he has principally observed to be the subject of their complaints has
been, either the expence or the dilatoriness of our law-proceedings ; which
he therefore conceives stand in need of reformation : and he is of opinion,
that to establish three courts of general jurisdiction in all matter’s criminal
as well as .civil in the province, to sit every week in the ye ir (with a very
few exceptions) in the towns of Quebec, Three Rivers, and Montreal,
would be the most adequate remedy for these complaints.
And as to the substance of -the laws which are to be henceforwards
admitted in this province, he conceives that the best way of all to settle
these would be to make a code of them, that should contain all the laws of
every kind, criminal as well as civil, that were intended to be of force
here, to the exclusion of all other laws, both French and English, that
were not inserted in the said code ; by which means all pretence would be
taken away both from the French and British inhabitants of this province
for complaining that they are governed by unknown laws. This he
conceives to be a work of difficulty indeed, but by no means
impracticable; and he apprehends that it would, be a work of very great
utility to the province, even, though it should be very imperfectly executed,
and many important articles should happen to be omitted in it ; provided
only that those things that were inserted in it were useful and reasonable,
and set forth in a clear and proper manner : because he apprehends that
the rules so inserted wduld be sufficient to govern at least all the common
cases that would happen in the ordinary course of human affairs, such as
descents in the right line, the right of representation in grand-children
whose parents are dead, the dower of widows, the rents and services due to
seigniors, the obligations and duties due from them to their tenants, the
seignior’s right to the common mutation-fines, his right of pre-emption of his
tenant’s land when the tenant is disposed to sell it, the rules of evidence in
courts of justice, the solemnities necessary to be observed to give validity
to a deed or will, and the like obvious and important matters ; which
would be sufficient to prevent the province from falling into confusion.
And as to the nicer cases which might be omitted in such a cede, they
might afterwards be supplied by particular ordinances passed from time to
time for that purpose. •
But if this measure of making such a code of laws should not be thought
adviseable, your Majesty’s attorney general of this province is humbly of
opinion that it would be most expedient to let the English law continue to
subsist in this province as the general law of the province, and to pass an
ordinance to revive those of the former French laws which relate to the
tenure, inheritance, dower, alienation, and incumbrance of landed property,
CONSTITUTIONAL DOCUMENTS 261
SESSIONAL PAPER No. 18
and to the distribution of the effects of persons who die intestate. His
reasons for thinking that the French laws upon these heads ought to be
revived, are as follows.
These heads of law are three in number : First, those relating to the
tenures of land in this province, or the mutual obligations subsisting
between landlords and tenants with respect to them. Secondly, the laws
relating to the power and manner of aliening, mortgaging, and otherwise
incumbring landed property. And Thirdly, the laws relating to dower, inheritance and the distribution of the effects of persons who die intestate.
And these several heads of law ought, as he humbly apprehends, to be
revived in this province upon separate and distinct grounds.
Laws of The laws of tenure, he conceives, ought to be considered as having been
tenure. already granted by your Majesty to your new Canadian subjects by that
article in the capitulation of 1760, by which your Majesty’s general granted
them the enjoyment of all their estates, both noble and ignoble,1
and by the
permission given them by your Majesty in the definitive treaty of peace in
1763, to continue in the possession of them- ; these laws being essentially
necessary to such possession and enjoyment. Such are the laws relating to
the quit-rents due by the freeholders, who hold by rent-service,-to the seigniors, the mutation-fines, the right of pre-emption, and the rights of escheat
in certain cases ; all which constitute the principal part of the property of
the seigniors.
Laws relating ‘ But the laws relating to the power and manner of aliening, mortgaging,
to the manner and otherwise incumbring, landed property, are not, as he apprehends,
of aliening absolutely necessary to the enjoyment of the lands themselves, and therering landed fore ought not to be reckoned quite so sacred and unchangeable as the laws
property. 0f tenure themselves. Yet he conceives them to be very nearly connected
with those laws, and almost dependant upon them, so that they could not
be changed in any considerable degree without diminishing the value of the
lands themselves, by means of the practical difficulties that would occur in
making use of the new modes of conveying land that would be established
in their stead ; and therefore he thinks that they ought to be continued.
And further, he conceives it will be the more necessary to revive or continue the French laws upon this subject, in order to prevent the introducThe practice tion of the English laws upon the same subject, namely, the doctrine of
l a * 6 B n g l i s l 1 estates-tail, the statute -de donis, the method of defeating that statute by
thlTsubject common recoveries, the doctrine of fines, the statute of uses, and the docwould be trine of uses in general, and other nice doctrines relating to real estates, which
venknt toThe a r e f u ] 1 o f s o m u c h ™btlety, intricacy, and variety, that, if they were to be
province. introduced into this province, they would throw all the inhabitants of it,
without excepting even the English lawyers, into an inextricable maze of
confusion. For these reasons he apprehends that the English laws upon
this subject ought never to be introduced here ; and that the former laws
of the province relating to it ought for the present to be revived.
Lastly, as to the French laws concerning dower and the inheritance of
Laws of in- l a n d g a n d t h e distribution of the goods of intestates, with respect to such
ao^-er°Tnd marriages as have been contracted, and such deaths as have happened, since
the distribu- the establishment of the civil government m this province, your Majesty s
effeew6
attorney general of this province is humbly of opinion, that those laws
intestates. ought not to be considered as necessary appendages to the property of your
Majesty’s Canadian subjects in this province, and as having therefore been
«ranted to them by implication in the articles of capitulation and the definitive treaty of peace ; because they do not affect the property, or the rights,
of the Canadians then in being, to whom alone those grants were made, but
1
See Capitulation of Montreal, article 37,j>. 16, a ^ P – ^ ‘
2
See Treaty of Paris, especially the 4th article, p. 74, and p. So.
262 CANADIAN AROMIVES
6-7 EDWARD VII., A. 1907
only guide and determine the course and devolution of that property after
their deaths among persons that were then unborn. This, therefore, he
conceives to be a matter upon which the authority of a legislator may
properly be exercised. And he further apprehends, that in some time hence
a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highly beneficial
to this province, the present excessive subdivision of the lands, by repeated
partitions of them amongst numerous families, being productive of considerable inconveniencies. But this, he apprehends, need not be done at
present ; and he conceives, that, if ever it should be thought adviseable to
do it, it ought to be done by a full and express declaration beforehand of
the time at which the proposed changes should take place, with a power
given to such persons as disliked them to prevent their taking place in
their respective families by express provisions and agreements to the contrary, and should be accompanied with such temperaments and modifications as should make the adopting them be in a manner the voluntary act
of the persons who were affected by them. But for the present he conceives it might be better to postpone those important changes, and to revive
the ancient laws of this province concerning inheritance and dower, and
the distribution of intestates estates, as well as those relating to the
tenures of land, and the power and manner of aliening and mortgaging and
otherwise incumbring it. And this one ordinance, reviving the said ancient
laws relating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the
tranquillity of the province, and to give satisfaction to the bulk of the Canadians : at least, he apprehends it would be enough to begin with : and if,
upon trial, it should be found necessary to revive some other of the French
laws that formerly subsisted in this province, it might be done by another
ordinance or two, that might be passed for that purpose, when the necessity of them should become apparent. By such an ordinance as is abovementioned passed at present, and by the establishment of an easy and cheap
method of administering justice in this province with sufficient expedition,
he conceives that the far greater part of your Majesty’s Canadian subjects
woujd be contented. This therefore is what he humbly presumes to recommend tô your Majesty as the best method which he can suggest for the
settlement of the laws of this province, after the fullest consideration of
this difficult and important subject1
FRANCIS MASERES,
Attorney General.
Quebec, September 11th 1769.
CONSTITUTIONAL DOCUMENTS 263
SESSIONAL PAPER No. 18
R E P O R T OF LORDS COMMISSIONERS POR TRADE AND PLANTATIONS
R E L A T I V E TO T H E STATE OF T H E PROVINCE OF QUEBEC.1
QUEBEC.
1769.
July 10″»
To the Right Honorable the Lords of the Committee of His Majesty’s Most Honorable Privy Council for Plantation Affairs.
My Lords,
Your Lordships having been pleased by your Order of the 28″1
of September 1768,
to refer unto us two Letters to the Earl of Hillsborough, one of His Majesty’s principal
Secretaries of State, from sundry Merchants of London trading to, and deeply interested
in the Province of Quebec, humbly recommending, that a full Legislature may be speedily granted for that Province ; and that a number of His Majesty’s Roman Catholic
Subjects there may be admitted into the Council and House of Representatives2
; and
your Lordships having also further thought fit to refer unto us a Report made by His
Majesty’s Advocate, Attorney and Solicitor General, upon the heads of a Plan for establishing Ecclesiastical Affairs in that Province,3
and to direct us to consider the said •
Papers, together with the present State of the said Province, in respect to the Administration of Justice, religious Establishments, and Revenue ; and to report to your
Lordships our Opinion, whether it may be advisable for His Majesty to direct an
Assembly to be convened, and, if so, under what regulations and limitations such
Assembly should be constituted, and what may be proper to recommend to their Consideration for the Welfare and interest of the Province in the several points above mentioned ; We have, in pursuance of your Lordships said Order, taken the subject matter
thereof into our Consideration, and beg leave to report to your Lordships.
That the Objects of examination and discussion, pointed out in your Lordships
Order of reference, and upon which we are directed to report our opinion, appear to us
to be of the greatest importance to the present and future Welfare of that Colony; and
therefore, though the unsettled State of it’s Government, the Jealousies and apprehensions on all hands represented to exist in the minds of the new Subjects on this Account,
and the obstruction and embarrassment arising therefrom to the administration of
public Affairs there, were circumstances, that did all concur to evince the necessity of
some speedy reform ; yet on the other hand, when we viewed the proposition of the
1
Canadian Archives Q. 18 B., p. 7. «
“When this report was drawn up in 1769 a policy of great secrecy with reference to the future govern
ment of Quebec had just been adopted, with the result that between this time and the passing of the
Quebec Act in 1774, few of the reports dealing with the policy of that measure are to be found among the
State Papers. This report was prepared for the information of the Lords of Council and a copy of it
was sent in ” a secret and confidential” despatch from Hillsborough to Carleton, Dee. 1st, 1769, to
secure his opinion of the proposals. The general character and purpose of the Report is thus expressed :—
” This Paper will not only fully inform you what Regulations and,Reform are proposed in respect to the
future Government of this important Colony, but will also point out to you the^ Arguments and Reasoning
by which it is endeavoured to support the several Propositions.” Its secrecy is indicated thusj:—” This
Report is1
sent to you in the greatest Confidence, and therefore you should be careful not only that no part
of it is communicated to any other person, but that in conversing upon the subject of any Difficulties or
Doubts that may arise, you do avoid the Appearance of their being other than the Result of your own
Reflections ; and I am particularly to desire that you will bring back the Copy of the Report with you,
without suffering^ to fall into any other hands whatever.” Q. 6, pp. 129-30.
2
These letters have not been found, but they probably reflect a movement at the time inthe Province
of Quebec as indicated in a letter from Carleton to Shelburne, Jan. 20th, 1768, (see p. 206), as also m
his letter of Aug 4th 1768. In the latter he states that a few persons, who had been endeavouring to get
up a petition for an Assembly, having failed, had apparently dropped the project.
3
This paper is contained in a Report of the Board of Trade to the Privy Oouncil,_ dated May 30th,
1765, and is entitled, “Heads of a Plan for the Establishmentlof Ecclesiastical-Affairs ir,tthe Province of
Quebec.” This is referred to in the representation of the Board of Trade of bept. 2nd, 1765, see p. 171. It
is given in full in the recently received but uncalendared volume Q18 A, p. 88. See also Appendix No. 4
to this Report, p. 274.
264 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Merchants in it’s full extent, and saw the difficulties, that in the present peculiar State
of this Colony would attend the making such a reform in it’s civil constitution, as would
give full satisfaction to the new Subjects, without violating those principles, upon which
the British Government is fundamentally established ; we did not think ourselves justified in making any report to your Lordships, or giving any opinion upon a matter, that
His Majesty’s former Councils had not thought fit in their great wisdom, even upon the
fullest consideration, to take any resolution upon, without proceeding with the’greatest
circumspection, nor without the fullest information, that could be collected, as well
from the correspondence of His Majesty’s Servants there, as from the examination of
persons here, who have been resident in, and are well acquainted with the affairs of
Quebec.
The time, that has elapsed since the date of your Lordships order, has made it
necessary for us to say thus much¡ lest your Lordships should impute to us a delay,
which, if unnecessarily created, would not fail to subject us to your censure, in the case
of an important part of His Majesty’s Dominions suffering every inconveniencet
and
disadvantage, that can arise out of a very imperfect, inadequate and defective Constitution, where the Inhabitants of it, consisting of above eighty thousand brave and loyal
Subjects, do, by the nature and form of such Constitution, and the most unwarrantable
Doctrines and Opinion founded thereon, Stand prescribed from every privilege, and
denied every right, the possession of which can alone ensure their affection, and fix their
attachment to the British Government.
How this comes to be the case in Quebec “will be more fully seen-by the following
narrative of what has been established in respect to the Civil Concerns of that Colony,
since it passed under His Majesty’s Dominion ; and from thence your Lordships will be
enabled the better to judge of the propositions we shall submit to you, as the ground
for such a reform in the Constitution of this Colony, as may consist with Justice and
Equity, and we hope, be the means of for ever securing the possession of it to the Crown
of Great Britain.
On the eighth of September 1760, Canada with it’s dependencies was surrendered
to His Majesty by Capitulation,1
in which it is Stipulated, that the Inhabitants both
Laiety and Ecclesiastics shall become subjects of the crown of Great Britain, reserving
the free exercise of their Religion, and the entire possession of their property under all
descriptions.
On the tenth of February 1763 the definitive Treaty of Peace was signed at
Paris2
; by the fourth Article of which, Canada with all its dependencies is ceded to the
crown of Great Britain, and His Majesty agref s to grant the liberty of the Catholic
Religion to the Inhabitants of Canada, and that he will consequently give the most
precise and most effectual orders, that His New Roman Catholic Subjects may pçofess
the worship of their Religion according to the Rites of the Romish Church, as far as the
Laws of Great Britain permit.
In October 1763 His Majesty was pleased by Letters Patent under the Great Seal
to appoint the honorable James Murray Esquire to be Governor of this-Colony,3
the
limits of which are thereby fixed and ascertained, and it’s former name of Canada
changed into that of Quebec.
By these Letters Patent, and by the Instructions4
from His Majesty, which accompanied them, the Governor is authorised and impowered,
First. To appoint a Council to assist him in the administration of Government,
consisting (according to the usage and constitution of other Colonies) of twelve persons,
eight of which to be chosen from amongst the most considerable of the Inhabitants and
Persons of property in the said Province, and the remainder to be composed of the
principal Officers of Government.
Secondly, To Summon and call, with the advice and consent of the said Council,
as soon as the situation and circumstances of the Province shall admit, a general
1
Capitulation of Montreal ; see p. 8. 2
Treaty; of Paris ; see p. 73. 3
Commission to Governor Murray ; see p. 126. 4
Instructions to Governor Murray ; see p. 132.
CONSTITUTIONAL DOCUMENTS 265
SESSIONAL PAPER No. 18
Assembly of the Freeholders and Planters, in such manner, as he shall judge most
proper, or according to such further directions or authorities, as shall be given to him
under His Majesty’s Signet or sign Manual, or by Order in Council.
Thirdly, To take himself, and also administer to each of the members of the said
Council and Assembly the Oaths mentioned in the Act of Parliament of the first of
George the First, and to subscribe himself and to cause them to subscribe the Declaration against Transsubstantiation, mentioned in the Statute of the twenty fifth of Charles
the second ; and it is ordered, that, until the said Oath and Declaration shall have been
so taken, and subscribed, no person, though elected, shall be capable of sitting in the
Assembly.
Fourthly, To make, constitute and ordain, with the advice and consent of the said
Council and Assembly^ Laws, Statutes and Ordinances for the public peace, welfare and
good Government of the said Province ; which Laws, Statutes and Ordinances are not
to be repugnant to, but, as near as may be agréable to the Laws and Statutes of this
Kingdom ; and until the Situation of the Province should admit of calling an Assembly,
he is, with the Advice of the Council, to make from time to time such rules and regulations, as shall appear to be necessary for the peace, order and good Government of the
Province; taking care, that such rules and regulations shall not extend to affect the life,
limb, or liberty of the Subject, or to the imposing any Duties, or Taxes.
Fifthly. To establish such and so many courts of Judicature and public Justice, as
shall appear to be necessary, and to constitute and appoint Judges, Commissioners of
Oyer and Terminer, Justices of the Peace, and other necessary Officers and Ministers.
These are all the directions and authorities, which seem necessary for the present
purpose to be recited ; the rest of the powers contained in the Commission are the same,
as are usually given to the Governors of other Colonies ; but as it is material to observe,
that the Letters Patent direct, that he shall execute his command according to the
powers and directions contained therein, and in the Instructions which accompanied
them, or ” according to such further Powers or Instructions, as may be hereafter given
” to him under His Majesty’s Signet or sign Manual, or by Order in Council, and con-
” formable to such reasonable Laws and Statutes, as shall be made and agreed upon by
” him with the advice and consent of the said Council and Assembly.”1
On the seventh of October Í763 His Majesty’s Proclamation
2
was published, declaring the limits and extent of the four new Governments of Quebec, East Florida, West
Florida, and Grenada, reciting the powers, given to the Governors by their Commissions under the Great Seal, of Summoning Assemblies, and of passing Laws with the
advice and consent of the said Uouncils and Assemblies; and containing His Majesty’s
Royal Assurance, that, in the mean time, and until such Assemblies could be called, all
persons inhabiting in, or resorting to the said colonies might confide in His Majesty’s
Royal Protection for the enjoyment of the benefit of the Laws of England.
By these Constitutions the form of Government established in this Colony by the
Crown of France, and adopted with some Variations after the conquest of it, though
not entirely abolished, as some persons have contended, was yet, in many parts of it,
materially altered, and made to correspond with that form of Government, which has
been established in His Majesty’s other American Colonies. The having a complete
Legislature-competent to those regulations, which a Colony under such Circumstances
must necessarily require, aDpears to have been one of the first Objects; and there can be
no doubt, but that His Majesty’s Commission and Proclamation, m the provision they
make for this purpose, had in view to extend to His Majesty’s new Subjects those
Privileges, which exist in the principles of a British Constitution. But the exercise and
operation of this Legislative-Power having been rendered impracticable by inserting m
the Commission, without sufficiently adverting to the state of the Colony the restriction,3
that no person should sit in the Assembly, who had not subscribed the Test, required
in this Kingdom by the Act of the twenty fifth of Charles the second, the powers of
Government became confined to the Governor and Council, whose authority not extend1
See p. 133. 2
See p. 119. 3
See p. 128.
266 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
ing to cases, which might affect either the life, limb, or liberty of the Subject, or to the
imposing Duties and Taxes, was incompetent to those regulations, which the situation
of the Colony required ; and consequently no provision has been made for establishing
such a reasonable Revenue, as may be adequate to the necessary expences of Government, the whole of which is now a burthen upon His Majesty’s Treasury here. The
Roman Catholic Religion, though barely tolerated by the Treaty, remains without any
regulation, reform, or control whatever, and that of the Mother Country without any
provision or support.
Besides these capital objects, there are many other constitutional establishments,
and necessary services, for which no provision either has been, or can be made in the
present state of the Colony ; and it has even been found necessary to disallow several
Ordinances of the Governor and Council, in Matters merely oflocal regulation, and
internal œconomy, from a consideration of the Want of a due authority to enact them.
These wants and defects are of themselves sufficient to evince the necessity of having a complete legislative power, for the establishment of which it is humbly conceived
the Faith of the Crown stands fully pledged, both by the Commission under the Great
Seal, and by the Proclamation ; but the state of the Colony, in respect to the Administration of Justice in civil cases, is a circumstance, that • does above all others mark the
necessity of some form of Government more perfect and effectual.
On the seventeenth of September 1764 the Governor and* Council promulged an
Ordinance1
for establishing and regulating Courts of Justice, by which the plan of Judicature is made to consist of a Superior Court, having the Jurisdiction of the Court of
King’s Bench ; an inferior Court, having the Jurisdictions of the Court of Common
Pleas, and Courts of Oyer and Terminer, Assize, and Goal Delivery ; and it is declared
by this Ordinance, that all matters, Civil and Criminal, shall be heard and determined
in these Courts agréable to the Laws of England.
According to the construction put upon this Ordinance by those who framed it, it
was to be understood, that not only the proceedings in these Courts were to be carried
on according to the modes and forms established’in the Courts in Westminster Hall,
but also all the principles of the Law of England, relative to Descents, Tenure, &c,
which totally, or in part differed from the Antient customs of Canada, and also all
those local and Municipal Laws, which have from local convenience and consideration
obtained in this Kingdom, were thereby introduced into Canada, and become Laws
there. In consequence of these opinions and constructions, the customs of Canada,
which before governed in all suits concerning property, were laid aside ; and a further
ill effect of the ordinance was, that, instead of that Summary and easy process, which
had before been used in the adjudication of questions of this nature, it had the effect to
introduce all that delay, perplexity and expence, which accompanies the lowest and
most disgraceful practice in this Kingdom ; and the new Subjects, who were precluded
from serving on Juries,2
or pleading their own Causes,8
were compelled to entrust the
prosecution of them to men unacquainted with their language and Customs, and who to
the greatest ignorance added the grossest rapacity.
I t is not to be wondered, that establishments, so inconsistent with the civil rights
of the Canadians, and so oppressive in their operation, should have given that disgust,
so strongly, and yet so respectfully expressed in their humble Address to His Majesty
on this occasion f more especially, when, in a Presentment of a Grand Jury
5
impanelled
at a Quarter Sessions, they found their Religion presented, as illegal ; themselves not
only proscribed, as incapable of the common offices of Society, but also subjected to all
the Pains and Penalties inflicted upon Popish Recusants in this Kingdom ; and a right
claimed by such grand Jury of being the only representative body of the Colony, and
of being consulted upon all Measures of Government.
i See p. 149.
2
See, however, Murray’s comment on this feature of the ordinance, as given in note 4, p, 149, and
note 2, p. 150.
s See note 3, p. 150. 4
See Address to the King, 1764, p. 161. 5
See presentment of Grand Jury, p. 153, and Reply of French jurors, p. 156.
CONSTITUTIONAL DOCUMENTS 267
SESSIONAL PAPER No. 18
I t is true indeed, that His Majesty has been graciously pleased to disapprove of
such unwarrantable claims and proceedings, and to direct, that the Canadians shall be
admitted to serve on Juries, and to plead as Advocates, in the Courts/ but the same
erroneous opinion, with regard to the extension of the Laws of England, still prevails ;
the Laws and customs of Canada, in respect to property, have not gained admittance
into the Courts ; And His Majesty’s new subjects, though they have a full Confidence
and reliance on His Majesty’s Equity, and His paternal Regard for their interest, do
yet express great uneasiness, and wait with impatience His Majesty’s Determination on
those points, which so materially affect their Properties, Quiet, and Happiness.
The representations of this matter made by His Majesty’s Governor in his Letters
to the Secretary of State, copies of which are hereunto annexed/ are so full and explicit,
and do so clearly and distinctly point out the danger, to which the Colony stands
exposed, and the necessity of some speedy measures being taken to give satisfaction to
che new Subjects in the several points we have considered, as to make it unnecessary
for us to add any further observations of our own.
From these Letters, and from what has been said, it is evident, That the Colony of
Quebec is in the greatest disorder and confusion, and that the authority of the Governor
and Council, as limited by the Commission and Instructions, is in no respect competent
to those regulations, which either the present state of it does, or the future progress of
it may require ; and as it appears • to us, that there is no Method of curing these disorders, and giving effect and Stability to Government, but by establishing a competent,
legislative Authority, conformable to the Royal Assurances contained in the Commission and Proclamation ; we are therefore of opinion, that it is necessary in the present
State of Quebec, that a complete Legislature should be established ; and that it would
be advisable for the present to adopt not only the measure recommended by the
Merchants3
of admitting, under proper regulations and restrictions, a number of His
Majesty’s new Subjects into the Council and House of Representatives, but also into
the Courts of Judicature, and other Offices of Government, by exempting them from the
obligation of Subscribing the Declaration against Transubstantiation declared in the
Statute of twenty fifth of Charles the second, conformable to what has been done in
the like case in the ceded Islands, and has been found, both upon Antient precedent
and late opinions of.Law, to be a Matter entirely in His Majesty’s Discretion i
Having thus fully answered the first and most material part of your Lordships
Order, by which we are directed to report our opinion, whether it may be adviseable
for His Majesty to direct an Assembly to be convened, according to what the merchants
propose ; we shall proceed in the next place to consider, under what regulations and
limitations such Assembly should be constituted.
And first, with regard to the Council, which will, under it’s present form and
constitution, as established by His Majesty’s Commission, become a branch of the
Legislature, whenever a House of Representatives is convened, it only remains for us
to advise, That, in order to admit into it a reasonable proportion of His Majesty’s New
Subjects, the number of the said Council, which is now fixed to twelve persons, should
be enlarged to fifteen ; That a number of His Majesty’s New Roman Catholic Subjects,
not exceeding five, should be appointed members thereof, at such times as His Majesty
shall think proper; and that they should be exempted from the obligation of subscribing
the Declaration against Transubstantiation, which is by His Majesty’s Commission and
Instructions required to be taken and subscribed by the members of the Council in
With regard to the House of Representatives, which (though declared by His Majesty’s Royal Commission and Instructions to be a part of the Constitution,) has never yet,
for the reasons already mentioned, taken place, it will, wep-esume, be neither practicable
nor expedient, in the present state of that Colony, to give it such a shape and form, as
1
See ordinance of July 1st, 1766, and instructions for passing it, p. 172, and note 1, p. 173.
2
See appendix to this report, Nos. 1, 3 and ë, pp. 271, ¿75.
3
Referring to the letters mentioned m the first paragraph of this Report.
* See Report oi[Norton and de Grey, p. 171 ; also the opinion of Attorney General Yorke re the status
of French Catholics in the island of Grenada, given m note 1, p. 185.
268 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
shall be considered to be fixed and permanent under all circumstances; every establishment
of this nature must be considered merely in the light of experiment, so far at least as
depends upon the form in which it shall be first convened ; open in all cases that regard
the places which are to elect Representatives, the number to be elected, and the form of
their qualifications, and proceedings, to such alterations, as a Variation in the state and
circumstances of the Colony shall from time to time require.
For the present, as this Province is already divided into three districts, and, as we
observe, that the Courts of Justice and other Civil Establishments are formed with a view
of this division of it, we presume your Lordship’s1
will be of opinion, that the establishment
of a House of Representatives should likewise correspond therewith ; and therefore we
take leave to propose, that it should consist of twenty seven Members, to be elected in
Manner following, that is to say,
For the City of Quebec 7.
For the District of Quebec 6.
For the City of Montreal , . . 4.
For the District of Montreal , 4.
For the Town of Trois Rivieres 3.
For the District of Trois Rivieres , 3
27.
That the Members, chosen for the several Districts, shall not be obliged to take any
other Oaths, than those of Allegiance, Supremacy and Abjuration ; But care must be
taken, that the Privilege, hereby meant to be given to the New Subjects, of being
eligible for the Districts, is confined to them only, and to such of them as were actual
Inhabitants of Canada, and possessors of Lands and Tenements therein at the time of
the Treaty of Paris ; That the Members elected for the Cities of Quebec, and Montreal,
and Town of Trois Rivieres, shall, besides the Oaths of Allegiance, Supremacy and
Abjuration, subscribe the Test against Transubstantiation required by the Act of twenty
fifth of Charles the second Chap : Second .
That the mode and form of convening the first Assembly shall be prescribed by an
Ordinance to be passed for that purpose ; in which it shall be declared, that no person
shall be capable of being chosen a Representative, or shall vote in the choice of a Representative, that has not attained the age of twenty-one years, and is not actually and
bona fide, a proprietor or • occupier of Lands, or a Tenement within the Province ; but
that the qualifications of both electors and elected, and the forms of proceedings in
respect to elections be more particularly provided for by a Law to be passed in the first
Assembly that shall meet ; and that it be recommended, that no person, be capable of
being elected for a District, that is not possessed, either in his own right, or in right of
his Wife, of a Seigneurie within the Province.
That the person elected speaker of the Assembly shall take the Oaths of Allegiance, Supremacy, and Abjuration, and also subscribe the Test required by the Act of the
twenty fifth of Charles the second, Chap : Second.
By the foregoing regulations your Lordships will observe, that it is probable, that the
House of Representatives will consist nearly of an equal number of Protestant & Roman
Catholic Subjects ; and that, as those to be elected for the Cities of Quebec and Montreal,
and for the Town of Trois Rivieres, must of necessity be Protestants, so it will be most likely, though not of necessity, that those for the Districts will be persons professing the
Roman Catholic Religion ; and we trust, that, when your Lordships consider the state of
this Colony, in respect to the very great Superiority in number and property of the new
Subjects, you will not think the rule of proportion between one description and the other
to be more favorable to the new Subjects than Justice and equity require.
As to the proper times for the meeting of the Assembly, the nature and form of the
Writ for election, and the Various other minute regulations incident to such an institution, they are matters, which must be left to the discretion of His Majesty’s
Governor, who will doubtless regulate his conduct herein, by what has been approved
CONSTITUTIONAL DOCUMENTS 269
SESSIONAL PAPER No. 18
and found most beneficial in other Colonies, so far as such precedents conform to the
peculiar Situation and circumstances of Quebec.
We are now come, my Lords, to that part of your Lordships Order, by which we
are directed to consider of the present state of the Colony of Quebec in regard to the
Administration of Justice, religious Establishments, and Revenue ; and what may be
proper to be recommended to the consideration of the Legislature there, for the welfare
and interest of the Colony in these several points.
The general observations, which we have before sabmitted to your Lordships upon
the state of the Colony of Quebec, in respect to these essential parts of it’s interests, together with the remarks contained in the Governor’s Letters already referred to, make
it unnecessary for us to enlarge further upon the necessity there is for some speedy reform and regulation in these matters; and although the forming a precise and just
opinion of what that reform and regulation should be, may at first’ sight seem to be
accompanied with the greatest difficulty ; yet as all these great objects have already
been fully considered, and the Subject matter discussed .at the proper Boards, and by
His Majesty’s Law Servants ;x
and as we have every other • information, that could be
collected from the correspondence of His Majesty’s Governors, and from the examination of persons best acquainted wi’h the state of the Colony, we shall not hesitate, with
the assistance of these lights and informations, to suggest to your Lordships such regulations, as we are humbly of opinion may serve, as the Ground Work of Instructions to
His Majesty’s Governor, and remove all colour for any further delay, in matters of so
great moment, and upon which the welfare, nay the very existence of the Colony depends.
With regard to the form and constitution of the Courts of Justice proper for this
Colony, and the regulations necessary in Ecclesiastical matters, your Lordships have
already before you not only the fullest Reports of this Board, but also the opinion of
His Majesty’s Law Servants given upon those Reports after the most mature deliberation f And as we do not see any reason from any information received since the date
of those Reports, to entertain the least doubt of what has been proposed in respect to
Courts of Judicature, except only as to the establishment of Circuit Courts, and to the
nature of Juries to be impanelled in Special criminal Cases, we submit, whether any thing
further is necessary as to this institution, than to send over to the Governor the Report
of this Board on the second of September 1765; and the Report thereupon of His
Majesty’s Attorney and Solicitor General on the twenty fourth of April 1767/ together
with the draught of additional Instructions,4
which was prepared in consequence ¿hereof ;
with directions to recommend to the Legislature there a proper Law or Laws for establishing Courts of Judicature, and for regulating their proceedings upon the plan and
principles laid down in the said Reports, and draught of additional Instructions ;”‘ excepting only, that, instead of the Circuit Courts of Assize, Nisi Prius, Oyer and Terminer,
and Goal delivery therein recommended, they should follow the model of the circuit
Courts of grand Session held for the Principality of Wales, as being a shorter and more
comprehensive mode of proceeding ; And instead of the exception in the sixth Article
of that draught of Instructions, which follows immediately after the direction for the
impanelling Canadian Subjects on Juries indiscriminately with the natural-born Subjects,”
such their admission should be allowed with a proviso, that all criminal Offences should be
tried by Juries1
de Medietate, composed equally of natural born Subjects and Canadians,
excepting only in Cases where a natural born subject or a Canadian stands charged
with the Wilful Murder of one of the same description, in which cases the Jury to be
of the same description with the person to be tried for such Offence
The regulations and reform necessary in respect to Ecclesiastical Affairs is a consideration, that requires to be m o r e ^ t i c ^ r l y d i s c u s s e d : for, although the Report of
” Î S s ^ l S ^ Ï & ^ l o f Tr.de of 2nd Sept., 1765, and the Report of Torke and de
G r e ? S ^ a n S
e f r o P
r% f t l r r e ^ t i s dated 14th April, 1766. See p. 178.
4
See p. 178 and note 1, p. 173.
6
See ordinance of July 1st, 1766, p. 172.
11 As^enacted in the ordinance of July 1st, 1/66. bee p. ii¿.
270 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
the Board of Trade upon this Subject in 1765,1
is very full and explicit, as to the
measures which ought in justice and good policy to be adopted for such a reform of the
Religion of the Church of Rome, as may leave the exercise of it upon the ground of
that toleration meant by the Treaty of Paris ; yet, as it does not point out, in what
manner the different propositions are to be carried into execution it certainly leaves
room for the observation of His Majesty’s Advocate, Attorney and Solicitor General in
their Report upon it, that many of the propositions have reference to Matters of
Property, and to Rights, which cannot be altered or reformed by the sole authority
of the Crown.
As this opinion of the learned Gentlemen confirms us in those ideas we have at all
times entertained on this Subject, we shall beg leave to recite the several propositions,
distinguishing such, a$ will, we conceive, require to be established by legislative
authority, from those that may be carried into execution by Instructions from His
Majesty to His Governor ; and making such additions to, and alterations in the
several Articles contained in the afore-mentioned Report of this Board, as more mature
consideration and further information have pointed out to us.
The propositions in the Report of this Board,2which appear to require the interposition
of the legislative authority, are principally those, that recommend either the immediate
abolition, or gradual reform of the several Religious Communities, which not being, as
we conceive, in general necessary to a free exercise of the Religion of the Church of
Rome, as meant to be tolerated by the Treaty of Paris, are institutions of such a nature
and tendency, as ought not to be allowed in a British Colony,
It is true indeed, that by the terms of the Capitulation, on which Canada
surrendered to His Majesty’s Arms, several of the Religious Communities were to be
preserved entire ; but we beg leave to observe, that this Capitulation can be considered in no other light, than as a temporary agreement between Officer^ on the one
side and the other, submitted to the final decision of the Sovereigns of the contracting
parties, who have, by Solemn Treaty, finally fixed, what shall be the condition, in
respect to matters of Religion, of those Inhabitants of Canada, who by this Treaty
became British Subjects ; and therefore the Capitulation is now, we apprehend, out of
the question, and the whole depends upon the fourth Article of the Treaty of Paris,
which contains nothing more in respect to the Religion of the Church of Rome, than
barely a free exercise of it by the new Subjects, so far as the Laws of England permit.
Under these circumstances we are of Opinion, that it ought to be recommended to
the Legislature of Quebec to pass a proper Law or Laws for the reform of the several
Religious Communities in the following manner, That is to say,
First, That the Community of the Jesuits be entirely abolished ; and all their
Lands and Property of every kind, personal Property only excepted, vested in His
Majesty, His Heirs.arid Successors, to be applied to such public uses, as shall from time
to time be thought best for the interest and advantage of the Colony, reserving to the
present members of that community respectively during their Lives such pension, as
shall be equal to the share each personally now receives of that Revenue.
Secondly, That the Chapter of Quebec, consisting of a Dean and twelve Canons,
be also abolished.
Thirdly, That the office of Provincial Commissary of the Recollects be also abolished ; and that Community not allowed to admit any new Fathers, or Brethren ; and that
their Revenues be vested in His Majesty, His Heirs and Successors, for the public uses
of the Colony, in such sort, that it shall be applicable by the Crown to such uses, in
proportion as the present members die, or are presented to Vacant Cures ; so that, when
the whole community shall by such events be dissolved, their Lands and Tenements
will become a Fund in the hands of the Crown for the purposes aforesaid.
Fourthly, That the Seminaries of Quebec and Montreal be consolidated at Quebec
under one Superior, in order to provide a succession of Pastors to the several Parishes ;
but that the members, admitted in order to become Priests, be limited to a certain
1
Referring to the ” Heads of a Plan, &c,” as indicated in note 3, p. 263. 2
Referring to the ” Heads of a Plan for the Establishment of Ecclesiastical Affairs in the Province of
Quebec,” various clauses of which are passed in review.
CONSTITUTIONAL DOCUMENTS 271
SESSIONAL PAPER No. 18
number ; and that the Revenues be vested in His Majesty, His Heirs and successors,
to be applied as the Crown shall think fit for the support of such Seminary, and for
other public uses within the Colony.
Fif thy, That no new Professions, Engagements, or Admissions be allowed in the
convents or Religious Communities of Women ; and that their Revenues, as they
decrease in number, be in like manner vested in His Majesty, His Heirs and Successors,
for the public uses of the Colony.
This, My Lordb, is, we humbly conceive, the only reform in respect to Ecclesiastical
Establishments in the Colony of Quebec, necessary to be provided for, and carried into
execution by Legislative Authority, as affecting rights and property, which, as His
Majesty’s Law-Servants justly observe, are not subject to the controul of the single
Authority of the Crown.
As to His Majesty’s Supremacy in Ecclesiastical Cases, in absolute exclusion of all
foreign power or jurisdiction whatever, it is, we humbly apprehend, a Right, and
Prerogative, which, by the principles of this Government, as by Law declared, is inherent
in, and inseparable from the Crown in all parts of the British Dominions ; and therefore is already a part of the Constitution of this Colony : it m a y not however be improper, in order to remove all doubts or mistakes in a matter of so much importance, to
refer to it as such in the preamble of the Law, that shall be passed for the reform abovementioned ; which will, we apprehend, be a very sufficient, and not an improper
promulgation to His Majesty’s New subjects of this fundamental part of the constitution
of that Government, to which they are now become subject, and will be a full and
sufficient warning to them of the illegality and inadmissibility as well of any appeals to
any foreign Church, Tribunal, or Jurisdiction, as of any order or regulation whatever in Ecclesiastical Matters, other than such as proceed immediately from His Majesty4
or from those acting under His Royal Authority.
We shall, My Lords, proceed in the next place to state to your Lordships such
propositions, respecting the toleration of the Religion of the Church of Rome in Quebec,
in consequence of the fourth Article of the Treaty of Paris, as appear to us essential to
the execution of that Treaty, conformable to. its just sense and spirit.
Upon this occasion we have the satisfaction to find it declared in the Report of
His Majesty’s Law servants, annexed to your Lordships order of reference, that, as the
several Acts of Parliament which impose disabilities and penalties upon the public
exercise of the Roman Catholic Religion, do not extend to Canada,1
His Majesty is bound
by no ties or constitutional necessity to prohibit the profession of this Worship there ;
and that as His Majesty is not bound to prohibit, He is at liberty to tolerate such
Worship, so far, and in such form ag not to impeach or violate His Royal Supremacy.
Upon the ground of this opnion, and upon what is further set forth in their,
Report upon the plan for regulating Ecclesiastical Affairs in the Colony of Quebec
Submitted by this Board in 1765,2
we do not hesitate to propose to your Lordships,
First, That, as being necessary to the due execution of the Treaty of Paris, a
proper person be licensed by His Majesty, during Pleasure, to Superintend the affairs of
the Romish Church ; but it will be essential to the legality of such appointment, that
the powers should be so limited and circumscribed, as that it may not violate or impeach
His Majesty’s Supremacy in all causes, as well Ecclesiastical as Civil, which, as we have
before observed, is inseparably inherent in the Crown ; or have the effect in any manner
whatever to obstruct His Majesty’s Service, or the due course of Law.
Secondly, That to this end the conduct of the Superintendant m the execution of
this Office should be governed by the following limitations and restrictions, to be prescribed by Instruction to the Governor, that is to say,
Thirdly That such Superintendant shall not take upon him any outward Pomp or
Parade incident to the dignity of Episcopacy in Roman Catholic Countries ; nor take
upon himself, nor appoint others to take cognizance of any matters of a civil criminal,
or ecclesiastical nature, except in such cases, as respect the conduct of the inferior
Clergy in religious Matters ; and in those cases, not to exercise any authority or Juns1
See Report of Norton and de Grey, p. 171. .
2
Referring to the ” Heads of a Plan, Sea.,” already cited.
272 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
diction without the consent and approbation of the Governor ; nor is the said Superintendant to use any other powers than such as the Governor and Council shall think
absolutely necessary to the exercise of the Roman Catholic Religion by His Majesty’s
new Subjects.
Fourthly, That the said Superintendant shall not make any new Regulations in
respect to Ecclesiastical Affairs, other than such as shall be necessary “for the purposes
aforesaid ; nor shall any regulations whatever be made or established with respect to
the Romish Church, or any persons appointed to Ecclesiastical Benefices in the Romish
Church within the said Province of Quebec, without the consent and license of the
Governor or commander in Chief ; nor shall he allow of any public processions, or other
ceremonies of Pomp or Parade ; but shall take care, that the Rites of the Church of
Rome be in all cases observed with such moderation and simplicity, as to avoid all
occasion of offence or dispute between His Majesty’s Protestant and Roman Catholic
Subjects.
Fifthly, That the said person, so licenced, as aforesaid, to superintend the affairs
of the Romish Church, shall, before he enters upon the exercise of any of the functions
incjdent to his Superintendancy, take an Oath of Allegiance and Fidelity to His Majesty ;
which Oath shall be taken before the Governor sitting in Council, and entered upon
Record in the Council Books.
Sixthly,” That if the said person, so licenced to superintend the affairs of the
Romish Church, shall in any respect act contrary to the forego’ng regulations and
restrictions, or shall otherwise misbehave himself, to the danger, Scandal or reproach of
His Majesty’s Government, the Governor or Commander in Chief shall have power to
suspend him from the exercise of his said Superintendancy, transmitting his reasons for
so doing to His Majesty by’one of His Majesty’s principal Secretaries of State.
As to the provision necessary.to be made for the support and maintenance of the
person, so licenced, as aforesaid, to superintend the affairs of the Romish Church, it is
proposed, that he be admitted Superiour of the Seminary of Quebec, to be tolerated in
mannei hereinbefore mentioned, and have such Stipend or appointment, as His Majesty
shall think proper out of the Revenues of that Seminary.
These propositions, together with what are before suggested in respect to the Reliligious Communities, contain every thing we have to submit respecting Ecclesiastical
Affairs in Quebec; And your Lordships will observe, that they have for their objects,
First, Such a reform of the several Religious Communities, as can be made without prejudice to that free exercise of the Religion of the Church of Rome, Stipulated
by the Treaty of Paris.
Secondly, By vesting the Estates and Property#of those Communities in the Crown,
to establish a Fund, out of which the Crown will be enabled to make a’better provision
for the support of a Protestant Ministry; and
Thirdly, To give such toleration to the free exercise of the Roman Catholic Religion by a Parochial Clergy under the Superintendancy of a person licenced for that
purpose by the Crown, as consists with the Spirit and intention of the Treaty of Psris.
We are sensible, My Lords, that the regulations we have suggested, when compared
with these objects, may be found in the execution to require some further addition; but
we shall think we have not altogether failed in our wishes to comply with your Lordships direction, if what we have suggested shall lay the foundation of such Measures, as
your Lordships superior Wisdom and experience shall enable you to recommend in a
Matter, which we again beg leave to repeat is of the greatest importance, and which
will not in our opinion safely admit of any longer delay.1
* * * * * *
I t would, My Lords, have been a great Satisfaction to us, in making our Report to
your Lordships upon the several matters contained in your Order of Reference, to have
been able to have reduced, what we had to offer into a narrower compass ; but although
we have, with this view, taken the liberty to refer your Lordships to former Reports
1
Here follows the section of the Report dealing with the problem of the provincial revenue and its
administration. As this has but little bearing on the constitutional development of the Province, it is
omitted.
CONSTITUTIONAL DOCUMENTS 273
SESSIONAL PAPER No. 18
upon the affairs of Quebec, in cases where we saw no reason to deviate from the Opinion or Propositions contained therein, yet the necessity of being explicit, on every particular point, not as yet discussed, and to which your Lordships Order refers, has made
it impossible for us to avoid taking up more of your Lordship’s Time, than we otherwise
wished to have done ; and when your Lordships reflect upon the importance of the subject, and consider how much depends upon a speedy Determination on the measures we
have now proposed, we trust we shall stand justified in our endeavors to state our opinion in the fullest manner, and to lay before you every circumstance necessary for your
information ; and if from what we have offered it shall appear to your Lordships, as it
does to us, that the form of Government, if it can be so called, at present existing in
Quebec, does not correspond with what was intended in the Establishment of it, and is
in no respect competent to it’s wants and necessities, but on the contrary productive of
the greatest Inconveniences ; That the ‘doubts and apprehensions entertained by His
Majesty’s new subjects ought to be removed, and that it is neither just nor reasonable,
that the expence of the Establishments in Quebec should any. longer continue a Burthen
on this country, we trust your Lordships will agree with us in opinion, that it is
high time some steps were taken towards a necessary reform, in a case of so great
Importance, as to affect not only the security of this Colony, but with it, that of all
His Majesty’s other Dominions in America.
Whether what we have suggested proposes such remedy as is adequate to the Evil,
must be submitted to your Lordships ; but we should not do justice to our own Sentiments, if we did not observe, that they are founded on the fullest Information ; guided
in those parts, that include great constitutional Questions, by the opinions of the
ablest Lawyers in this Kingdom, and concurred in, not only by those, whose Offices and
Residence in the Colony have afforded them the means of being fully acquainted with
it’s true Interest and condition, but as also of such respectable Persons both in the
Church and in the Revenue Department in this Kingdom, who are by their Offices
Members of this Board, and who have assisted us with their advice on this occasion.
A t the same Time that we state this to your Lordships, in order to shew that no
information necessary in this important consideration is wanting ; and that the subject
matter has undergone the most mature examination, it is our Duty to lay before your
Lordships a Letter to the Secretary of State from His Majesty’s Governor of Quebec,1
received pending the consideration of this Business.
From the Copy of this Letter hereunto annexed your Lordships will observe, that
the Governor States, that some Progress has been made towards a Report upon the Laws,
and Administration of Justice, pursuant to His Majesty’s Order in Council of the 28th
of August 1767 ; That he considers this as the ground work of every other Regulation,
and therefore waves giving his Ideas upon the Subject of Religion, and other matters,
until that is entirely settled, which he says will be soon, and desires His Majesty’s
permission to return to England, as well upon his private Affairs, as in order to explain
many points relative to that Colony ; and represents, that by being upon the spot he
should be able to clear up many things, and remove many difficulties, which at that
distance can neither be so thoroughly discussed, or perfectly understood, as is necessary
for the King’s Service. . •
What influence this Letter is to have in your Lordships determination with regard
to what is submitted to you in this Report must depend upon your Lordships wisdom
1
See armendix No 18 This letter is dated March 15th, 1769, and is given in Canadian Archives, Q
6, p. 34 T^e portion referred to is as follows :-.” There would be much to say m Regard to the Affairs of
Rdigion in this Province but that being a delicate and tender Point, I do not design troubling Your
W s h f p wittmy^dlas thereupon until that of the Laws and Administrations of Justice, which I ™ d e r
»o «,„ r< j y i i i i U i i o ia on+irelv settled, m which we have made some Progress m Obedience fir,,vu i \ eBT,y° "raer ™ ^"ï""" ÍH. J to Your Lordship without Loss of Time. settíe some private Affairs, I wash to ¡ ^ X s ^ v a n Ï Ï I " * c l e a r up to them many Points, and remove rnanv T$m *"$ u P ° n J £ ^ f h ^ D k t e M ^ M neither be so thoroughly cliscussed, or perfectly understood, 2 ? , ^ S i n g ' s ^ S e r S e w S / e Interests, in Regard to the Province, I «ally believe, I could wore effeXJly promote fnd advance by a Residence of a few Months m London, than of so many years m this Country, * * * " Q 6, pp. 37-38. 1 8 — 3 — 1 8 274 OÂNADIAX ARCBIVMS 6-7 EDWARD VII., A. 1907 weighing all circumstances; but in the light in which we view the state of this Colony, exposed, as we conceive, to great danger, and suffering many Inconveniencies for want of some more perfect Settlement, we cannot but be of opinion, that however satisfactory it might be to receive Governor Carleton's Sentiments upon many points, relative to the propositions in question ; yet the danger and disadvantage of any further delay is too obvious to allow us to consider his Letter, as a justification for our not recommending to your Lordship's to take some immediate Steps towards that reform which the state of the Colony requires ; and therefore we humbly offer it as our opinion, that your Lordships, if you approve of the propositions we have suggested, should advise His Majesty to give the necessary Instructions for carrying them into execution ; but we would recommend, that a discretionary power should be given to the Governor to defer any part of them, the execution of which he and the rest of His Majesty's Servants there shall think ought to be deferred, for such further examination, as may be necessary upon any Representation they may have to make ; and we beg leave further to observe, that it is with a view to the exercise of this discretionary Power, and upon a Consideration of the Governor's Letter, that we have stated our propositions more at large, than we should otherwise have done, and have avoided any detail, that might have embarrassed the execution, in cases where he might wish to be left to the Guidance of his own Judgement. We are, . ' My Lords, Your Lordship's Most obedient and Most humble Servants, HILLSBOROUGH-, SOAMB JENYNS, J O H N ROBERTS, ED. ELIOT, W m FITZHERBERT, THOMAS ROBINSON, LISBURNE. Ex4 . QUEBEC. 1769. June 10th . A P P E N D I X . N° 1. Extract of a Letter from Guy Carleton Esquire, Lieu'. Gov1 , of Quebec to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated November 2 5 a 1767 i N° 2. General State of the Canadian Noblesse actually resident in the Province of Quebec or in the French Service, and where resident in November 1767.2 N° 3. Copy of a Letter from Guy Carleton Esquire, Lieutenant Governor of Quebec, to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated December 24th 1767.8 N° 4. Plan of An Ordinance for continuing and confirming the Laws and .Customs, that prevailed in this Province in the Time of the Erench Government concerning the Tenure, Inheritance and Alienation of Lands. * 1 See Carleton to Shelburne, p. 196. 2 Canadian Archives, Q 5-1, p. 269. This is printed in full in Report on Canadian Archives for 1888, p. 44, á See Carleton to Shelburne, p. 201. 4 See Draught of Ordinance re French Land Tenures, p. 204. Whitehall ) July 1(P 1769. j CONSTITUTIONAL DOCUMENTS 275 SESSIONAL PAPER No.- 18 !KH 5. Extract of a Letter from Guy Carleton Esquire, Lieutenant Governor of Quebec, to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated January 20l " 1768.1 Î T 6. Copy of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated May 30th 1765, inclosing. Heads of a Plan for the establishment of Ecclesiastical Affairs in the Province of Quebec.2 N° 7. Extract of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated September 2d 1765.3 N 0 8. Copy of a Report of His Majesty's Attorney and Solicitor General to the Lords of the Committee of Council for Plantation Affairs, dated April 14th 1766.4 N° 9. Copy of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated June 24th 1766, inclosing, Draught of Additional Instructions to the Governor of Quebec, relative to the establishment of Courts of Judicature in that Province.5 JST° 10. Copy of a Report of His Majesty's Advocate, Attorney and Solicitor General, to the Lords of the Committee of Council for Plantation Affairs, dated January 18th 1768.6 ISP 11. Copy of a Letter from Guy Carleton Esquire Lieutenant Governor of Quebec, to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated December 10a , 1767.7 Ï T 12. Copy of a Letter from Lieutenant Governor Carleton to Grey Cooper Esquire, Secretary to the Lords Commissioners of His Majesty's Treasury, dated December 10th, 1767.8 N° 13. Officers proposed for the collection of the Provincial Duties at Quebec, and Salaries.9 N° 14. Provincial Duties for the Province of Quebec on Imports.1 " N° 15. Copy of an Account of the Civil Establishment of the Province of Quebec for one Year.11 N° 16. Copy of an Estimate of the contingent and incidental charges of the Civil Establishment for the Province of Quebec for one Year.12 1ST0 17. Copy of an Abstract of the Imports at the Port of Quebec* of certain Articles, on which Duties are proposed to be raised, for the years 1765, 1766 and 1767— And Estimate of the annual Revenue calculated from the said Importation.13 E"° 18. Copy of a Letter from Guy Carleton Esquire Governor of the Province of Quebec, to the Earl of Hillsborough, one of His Majesty's principal Secretaries of State, dated March 15th 1769.1 * Exd . 1 See Carleton to Shelburne, p. 205. 2 Canadian Archives, Q IS A, p. 88. 3 Canadian Archives, Q 18 A, p. 131. * See Report of Yorke and de Grey, p.' 174. 6 This represents the final presentation of the draught of Instructions given in note 1, p. 173. See also Q 18 A, p. 208. 6 This document has not as yet been discovered. 7 This and the following documents, except the last, are connected with questions of revenue, and relate to that portion of the Report which is omitted. This particular letter will be found in Canadian Archives, Q fr-1, p. 299. 8 Canadian Archives, Q 5-1, p. 300. 9 Canadian Archives, Q 5-1, p. 310. 10 Canadian Archive's, Q 5-1, p. 306. 11 Canadian Archives, Q 5-1, p. 308. % 12 Canadian Archives, Q 5-1, p. 311. 13 Canadian Archives, Q 5-1, p. 312. « Canadian Archives, Q 6, p. 34. The parts referred to in the Report are given in note p. 273. 1 8 — 3 — 1 8 | 276 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 R E P O R T O F C O M M I T T E E O P C O U N C I L O N A D M I N I S T R A T I O N O F L A W B Y J U S T I C E S O F T H E P E A C E . 1 The Report of theCommittee on the Administration of Justice by the Justices of Peace ; Read at the Board. Approved and the Attorney (General •directed to prepare an Ordinance in Consequence thereof : The Report Viz* A t t h e Council Chamber in t h e Castle of Saint Louis in t h e City of Quebec on Thursday t h e fourteenth day of September 1769. P R E S E N T . H i s Excellency Guy Oarleton, Governor The Hofible William H e y . C.J H . T. Cramahé ' Thomas D u n n W a l t e r M u r r a y Colin D r u m m o n d Esquires. R e a d the R e p o r t of the Committee dated t h e 29t h A u g u s t a n d llt ] 1 instant, Appointed t h e 1 8 a of A u g u s t last to t a k e into Consideration t h e present State of t h e Administration of Justice b y t h e Justices of t h e Peace within this Province Approved and Ordered to be E n t e r e d in this Book, and t h a t t h e A t t o r n e y General 2 be directed to prepare an Ordinance in consequence of t h e N e w Regulations proposed to be m a d e by t h e said Report. " Q U E B E C 2 9 a A u g u s t & " 1 1 t h September 1769. " A t a Committee Appointed to t a k e into Consideration t h e State of t h e Administration of Justice under t h e Justices of Peace in this Province. " P R E S E N T " The Hofible William H e y , President " H . T. Cramahé 1 " Thomas D u n n >• Esquires.
” Colin D r u m m o n d )
” W h o agreed upon t h e following R e p o r t
” I n obedience to a n order of Council bearing date the 18
t h day of
A u g u s t last. W e have taken into our consideration the several M a t t e r s
therein referred, in consequence of which we beg leave to represent to Y o u r
Excellency a n d t h e Council, t h a t t h e several Authorities & powers of the
Justices of Peace i n M a t t e r s of property as contained in t h e Ordinance of
September 1 7 6 4 3
Appear to us to have been very injudicious in their
Original Institution, a n d in t h e exercise of them, more particularly within
t h e District of Montreal exceedingly grievous and oppressive to the Subject.
I t is well known t h a t in England, where t h e Justices of Peace are for t h e
most p a r t M e n of large Fortunes, who have a Considerable interest in Com1
Canadian Archives, Q6, p. 146. Owing to complaints which had reached the Council as to the
practices of some of the Magistrates of the District of Montreal, the Council took up the matter and
addressed to all the Magistrates of that District a letter of remonstrance and advice. This was^ dated
July 10th 1769, and is given in Q 6, p. 134. The present report covers the same ground and upon it was
based the Ordinance of February 1st, 1770, which follows this report.
2
At this time Francis Maseres, being desirous of returning to Britain, was granted, by Governor
Oarleton, a year’s leave jf absence. The Governor explained the circumstances in a letter to Hillsborough,
of Oct. 3rd, 1769, and in which the lack of harmony between Oarleton and Maseres is fully evidenced. At
the close of the letter Oarleton states that Henry Kneller had been appointed to act as Attorney General
in the interim ; hence upon Kneller fell the duty of draughting the new ordinance.
3
The Ordinance of September 17ch, 1764. See p. 149.
CONSTITUTIONAL DOCUMENTS 277
SESSIONAL PAPER No. 18
mon with the people over whom their Authority is exercised, no such power
is entrusted to them either by the Commission itself, or any of the Various
Acts of Parliament which relate to their Ornee : And tho the ill Advised
construction of the great Courts established here for the determination of
property in the year 1764 Confined Originally in their Session to two Terms
in the year and only now enlarged to three, might have made it necessary to
Create Smaller Jurisdictions in order to conform in some Measure to the
Ancient practice of the Colony, and to give a freer and quicker Circulation
to the Course of Justice, y«t we apprehend that even under those circumstances, the Authority given to ttip Justices hath been both too largely and
too confidently entrusted, and requires to be retrenched, if not wholly taken
away in almost every Instance.
But that is not all ; what is still more unfortunate ; we find even
those powers large as they are, to have been in some instances extended,
and a Jurisdiction usurped to the great prejudice of the parties whose
property has been the Subject of it, without any right (as we conceive) to
interpose in such Matters, as derived from that Ordinance, or any other
Authority that has yet come to our knowledge : for, by the ill penning of
that Ordinance, and for want of a Clause which should have expressly forbid them to intermeddle in those Matters, the Justices of Montreal have to
our knowledge in one Instance, and probably in many others which have
passed without notice, assumed to themselves powers of a Nature not fit to
be exercised by any Summary Jurisdiction whatsoever in consequence of
which Titles to Land have been determined & possessions disturbed in a way
unknown to the Law>s of England and, inconsistent with the Solemnity and
Deliberation which is due to Matters of so high and important a Nature. And
we are not without Information, that even in cases where personal property
only has been in dispute, One Magistrate in particular under pretence that
it was at the desire & request of both the contending parties, has by himself
exercised a Jurisdiction Considerably beyond what the Ordinance has
allowed even to three Justices in full Court at their Quarter Sessions.
From an Omission of a Similar nature and for want of ascertaining the
manner in which their Judgements were to be enforced, we find the Magistrates to have assumed another very high and dangerous Authority, in the
exercise of which the Goals are constantly filled with numbers of unhappy
Objects, and whole families reduced to beggary and ruin. I t being a Common practice and the usual Method of their process to take Lands in Execution and order them to be sold for the payment of ever so small a debt, or
in case there are no Lands to satisfy the debt to commit the party to prison
the sad Consequences whereof, and wretched Servitude to which a people are
Sic. reduced whose persons and property are thus exposed, we believe we * not
enlarge upon further, then to observe that the rapid Sale of Estates under
Judgements out of the Common Pleas, or even the Supreme Court itself
seems to be within the same Mischief and to require some effectual tho’ perhaps a different remedy.
If any thing could yet be wanting to Compleat the Misery of such a
People it would be the consideration that those powers Originally calculated
for the ease of the Suitor and to facilitate the course of Justice should
become the very Instrument of his Oppression and ruin, and instead of
affording a Cheap and expeditious remedy for the recovery of small Debts
should either direct or Connive at such a Complicated and expensive Mode
of Process, as (if we may collect from one instance where the Expence of
suing for à debt of Eleven Livres Amounted to Eighty four) must either 4eter
the Creditor from pursuing a Just tho small debt, or, ruin himself or his
adversary and perhaps both in the pursuit of it, which will propably always
be the case where the Office of a Justice of Peace is considered as a Lucrative
CANADIAN ARCHIVES
6-7 EDWARD VII:, A. 1907
one and must infallibly be so where it is his principal if not only dependence.
In Justice however to the Magistrates of this District -we ought to
Declare that these Observations are not designed to extend to them.
For these and many other reasons which we are tender of enlarging
upon, we conceive it to be high time to put a Stop to this unequal, Wasteful and Oppressive mode of administering Justice. And to Substitute some
other in its place, more conformable to the System which formerly prevailed
here, and less liable to the Objections which so manifestly Accompany this
both in its Institution & Practice.
And for that purpose we recommend it to Your Excellency in the first
place to appoint an other Judge for the Court of Common Pleas at Montreal
and as a Compensation for the Extraordinary duty which will be required
that their Salaries may be made £200 p. anm
And 2aly that an Ordinance should be immediately prepared which
after setting forth in a Preamble some or alPof the Grievances here mentioned, And the good Disposition in Government to attend to and redress
the Injuries Complained of by the Subject as soon as they are made known
to them, should abrogate and annull all that part of the Ordinance of 1764
which gives Authority to the Justices of Peace to determine Matters of
Civil property in any shape or manner whatsoever, and expressly define
their power to be barely such as the Commission itself Warrants and the
Ordinances of this Province (except that of September 1764) has entrusted to
them.
It should then after reciting the reasons, namely to prevent a failure of
Justice And to supply a Quick and Competent Jurisdiction in Matters of
small Value not at present Cognizable in either of the great Courts, give the
Court of Common Pleas a Jurisdiction, which at present it has not, to hold
plea in all Matters however trifling the demand may be and direct that both/
Courts should sit in Quebec and Montreal once in every week.. (seed and
Harvest time and a fortnight at Easter & Christmas excepted) thro’out the
year. But that for all Matters under the sum of Ten pounds, one Judge
only need be present.
In the latter case their Process should be by summons, And in all
Executions where the debt and Costs does not Amount to Ten pounds
Halifax Currency no Capias ad satisfaciendum to Arrest or detain the body
should issue but a fieri facias against the Goods and Chattels only (with an
Express exception to Beasts of the Plow) unless the Party chuses that his
Land should be sold, in which case he should sign upon the back of the
Process his Consent and request for that purpose. I t might not be amiss too
to give the Judges a power to levy the debt where it was under Ten pounds
by instalments, for it often happens that a Debtor is exceedingly distressed
to pay tho’ but a Moderate Sum and upon the instant of demand which
yet by his Industry or by some event near taking place but which he Cannot anticipate, he might pay with ease to himself it given times.-1
-Upon an
Affidavit of this Sort We think they be allowed to mark upon the Writ
to be levied by Instalments 20 Shs
on such a day. 20. at such other And the
remainder at such other.
But these times ought to have some Limitation and perhaps should not
exceed 3 Months for the last payment.
If the Judge has reason to suspect that the party secretes his Effects or
has disposed of them after the Commencement of the suit in order to avoid
their being taken in Execution, he should be at Liberty to issue Process
against the Lands immediately, and for want of them to commit to prison
till the Debt is satisfied.—The truth of which should be examjned upon
Affidavits. In all other matters, where the debt or Demand is above the
Value of 10 pounds they should proceed as usual except that where Lands
CONSTITUTIONAL DOCUMENTS 279
SESSIONAL PAPER No. 18
are taken in Execution, they should be made subject to the debt or demand
immediately from the day of the date of the Writ, and avoid all Subsequent
Sales and Mortgages or any other disposition or Incumbrance of them, but
not absolutely sold for six Months, after Several Publications in the Gazette, and Notice affixed at the Church door of the Parish in which the
Lands lye and other Neighbouring Parishes.—nor should the sale even then
be good ’till a Eeport was made to one of the Judges of the Court of the
quantity and produce and Condition of the Lands with the Amount of
the Purchase Money and the Sale Confirmed by him.—
I t is difficult if not impossible exactly to ascertain the Quantum of
Expence in recovering these small Debts, “but we recommend it to the
Gentlemen who preside in these Courts to reduce it as much as possible,
and we have no doubt but they will give a proper attention to a matter
so interesting to the Honour of the Crown and the Convenience and ease
of the Subject.—
The Administration of Justice in causes of small Consequenoe we apprehend will be tolerably well provided for in the Towns of Quebec and Montreal upon this Establishment more especially if there be added (as perhaps
may be necessary at least Convenient,) One Officer of Justice in each, who
might decide in all Causes to the value of Fifty Shillings Current Money
and enforce his decision by distress and Sale of the Defend*” goods only.
These Officers to be Appointed by your Excellency, by Special Commission indépendant of the General Commission of the Peace (tho’ it would
be adviseable for them to have both, in the Nature of the Intendants Subdelequis they may perhaps be well appointed by Virtue of the Powers
given to Your Excellency in your Commission, but we rather recommend it
to be done by an Ordinance.
And You should be iinpowered to Appoint more of these Officers in
different parts of the Province as the Circumstances and Situation of things
may require, and as in your discretion, they may appear to be necessary
whose Jurisdiction might be at least equal to what was given to a single
Magistrate under the Ordinance of Septem* 1764.
These are the observations that have Occured to us upon this Subject :
We believe the regulations here proposed will be found to be Salutary, and
meet the Grievances at present so loudly and so Justly complained of, And
we Accordingly recommend them to be immediately Carried into Execution.
One observation however has escaped us, which we beg leave to add,
with Regard to the Assize of Bread which by an Ordinance of this Province
bearing date the 3d
of September 1764,1
is directed to be regulated by 3
Justices of the Peace ; And tho this Jurisdiction will still be preserved to
the Justices, yet we are apprehensive that they will be indisposed to exercise it, if they should resent the Deminution of their Authority which
the Regulations we have proposed are designed to make.—That Authority
therefore very usefull and necessary to the publick should be transferred
in case of their neglect to the two Judges of the Common Pleas, ‘ and the
Justice who has a Commission in small Matters in the way that we have
recommended,
(signed) ” W . Hey. P ”
1
“An Ordinance, Relating to the Assize of Bread, and for ascertaining the Standard of Weight
and MefsuresintTe Province of Quebec.” Sept. 3rd, 1764. See “Ordinances made for the Province o
Quebec, &e.” Que. 1767.
280 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
A N ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRATION OF JUSTICE, AND FOR REGULATING’ T H E COURTS
OF LAW IN THIS PROVINCE. 1
Preamble.
Authority of
the Justices
in Matters of
Private Property taken
away ;
except from
Such as have
a Special
Commission
for that Purpose.
Whereas it has been found by Experience, that the several Provisions
contained in an Ordinance, bearing Date the Seventeenth Day of September
One thousand, seven hundred and Sixty four, and intituled, amongst other
Things, ” An Ordinance for regulating and establishing the Courts o”f
” -Judicature,” by virtue of which certain Powers and Authorities are given
to the Justices of the Peace for this Province, as well separately as collectively, to hear and determine in matters of private Property between Party
and Party, instead of answering the good purposes for which they were
ordained, have become an intolerable Burthen to the Subject, and proved
the means of great Disquiet, Vexation, and Oppression.
I t is therefore Ordained and declared, by His Excellency the Captain
General, and Governor in Chief of this Province, by and with the Advice
and Consent of the Council of the same, That from and after the day of
the Date of the Publication of this Ordinance, all Jurisdiction, Power*
and Authority in Matters of Private Property, belonging to or exercised
by any Justice or Justices of the Peace for this Province, or any District,
Part, or Member of the same, except Such as have already procured, .or
hereatfer may procure a Special Commission for that Purpose, under the
Hand and Seal of the Governor, or Commander in Chief for the Time being,
shall be clearly annulled, taken away, and determined ; and that from and
after the day of the Date of the Publication, aforesaid no Justice or Justices of the Peace, except as before excepted, shall have any Power or Authority to hear, examine or determine any Matter of Private Property between Party and Party, or to make, pronounce, or deliver any Judgment,
Sentence, Order, and Decree, or to do any Judicial Act whatsoever touching the same.
Clauses in the And it is further Ordained and declared by the Authority aforesaid,
Ordinance of That from and after the Day of the Date of the Publication aforesaid, the
1784e e i \ following Clauses or Parts of an Ordinance, bearing Date the Seventeenth
ed ; ‘ day of September One thousand, seven hundred and sixty-four, and intituled, amongst other Things, ” An Ordinance for regulating and establish-
” ing the Courts of Judicature ” shall be repealed, and the same are
hereby repealed and absolutely revoked and made void ; that is to say,
” And Whereas it is thought highly necessary for the Ease, Convenience,
” and Happiness of all His Majesty’s loving Subjects, that Justices of the
” Peace should be appointed for the respective Districts of this Province,
” with Power of determining Property of small Value in a summary way ;
” it is therefore further ordained and declared by the Authority aforesaid,
” and full Power is hereby given and granted to any one of His Majesty’s
” Justices of the Peace within their respective Districts, to hear and finally
” determine in all Causes or Matters of Property, not exceeding the Sum of
1
Canadian Archives, Q 62, p. 528. As indicated above (note 2 p. 276) acting Attorney General
Kneller was required to draught an Ordinance based upon the Report of the Council on the subject of the
administration of Law by the Justices of the Peace. This draught was read in Council, Jan. 10th, 1770,
and referred to a committee consisting of H. T. Cramahé, Thos. Dunn, and Colin Drummond. On the
1st of February the committee reported the draught, with certain amendments, and the ordinance as
amended was approved and adopted, and ordered to be translated into French. On February 14th the
translation was read, and the ordinance and translation were ordered to be published in the Gazette.
The ordinance when published gave great offense to the Magistrates in the District of Montreal, who,
under the leadership of Charles Grant, a member of one of the leading British mercantile houses engaged
in the Canadian trade, prepared a memorial in remonstrance. See Q 7, p. 95. This, Carleton in forwarding, attempts to answer. See Q 7, p. 89. Among other protests entered was one by a French Magistrate,.
Pierre de Calvet, under the title, ” Observations sur L’Ordonnance du lre février dernier.” See Q 7, p. 274.
Il
CONSTITUTIONAL DOCUMENTS 281
SESSIONAL PAPER No. 18
” Five Pounds Current Money of Quebec ; and to any Two Justices of the
” Peace within their respective Districts, to hear and finally determine, in
” all Causes or Matters of Property not exceeding the Sum of Ten Pounds
” said Currency ; which Decisions being within, and not exceeding the
” aforesaid Limitation, shall not be liable to an Appeal : And also full
” Power is by the Authority aforesaid given and granted to any Three of
” the said Justices of the Peace- to be a Quorum, with Power of holding
and all others ” Quarter Sessions in their respective Districts every Three Months, and also
that give Ail- ” to hear and determine all Causes and Matter of Property which shall be
JuSi’cesto ‘above the sum of Ten Pounds, and not exceeding Thirty Pounds, Curdetermine ” rent Money of Quebec, with Liberty of Appeal to either Party to the
Matters of ” Superior Court, or Court of King’s Bench ; ” and all and every other
perty.6
“‘ Ordinance or Ordinances, and all and every Article, Clause or Sentence, in
them and every of them, by which any Juiisdiction, Power, or Authority,
to hear and determine in Matters of Private Property between Party and
Party, is given, limited and Appointed to any Justice or Justices of the
Peace, for so much as concerneth the same, shall also be repealed, and the
same are hereby repealed, and absolutely revoked and made void.
Penalty upon And it is further ordained and Declared by the Authority aforesaid,
for D)U
sobeœ T h a t f r o m a n d a f t e r t h e D a
y
o f t h e D a t e o f t h e P l i c a t i o n aforesaid, if
dienee. any Justice or Justices of the Peace, or any other Person whatsoever, shall
offend or do anything contrary to the Purport, true Intent, and Meaning
of this Ordinance, he or they so offending, besides being liable to answer
the same in a Criminal way, Shall also forfeit and lose, unto the Party
grieved by any Thing so done, his, her, or their treble Damages, which he,
She, or they shall sustain and be put unto by means or Occasion of any
Thing so done as aforesaid ; the same to be recovered in any of the Courts
of Record in this Province, by Action of Debt, or in any other way, and
Manner, according to the known and Established Practice of the Court in
which such Action shall be brought.
Proviso not Provided always, That nothing contained in this Ordinance shall extend,
to extend to o r ke COnstrued to extend, to take away, determine, or abridge any of the
wCTs^the Powers given and granted to any Justice or Justices of the Peace for this
Commission of Province, by Virtue of His Majesty’s Commission of the Peace to them
the Peace ; directed, or to restrain or hinder them in the exercise of any other Powers
to them limited and appointed by any other Ordinance or Ordinances,
save and except such as relate to the Administration of Justice in Matters of private Property, between Party and Party only : but such Justice or
Justices of the Peace is and are hereby further authorized and required to
do and execute all and every matter or Thing to him or them enjoined by
Virtue of the said Commission of the Peace, and also to hear and determine
all Penalties and Forfeitures arising from the Breach of any Ordinance or
Ordinances, and to proceed therein in the same Manner as he or they
would have done if this Ordinance had not been made.
j±n¿ provided also, That nothing herein contained shall extend, or be
Judgmental- construed to extend to reverse, alter, or suspend any Judgment or Judgready pro- m e n t s already pronounced or given by any Justice or Justices of the Peace,
not executed • upon which no execution has yet been Awarded ; or to supersede, vacate,
nor to any ‘ alter, or suspend any Writ or Writs of Execution already awarded, and
Writ of Exe- nQ^ ‘ t r e t u rned ; but the said Justice or Justices of the Peace is and are
Ssueda
Índadyhereb? further authorized and required to award Execution upon such
not returned, Judgments already pronounced and given, and the Provost Marshal is
hereby authorized and required to enforce the same, and also to proceed
to b f p e X 6
upon such Writs of execution as are already awarded and not yet returned,
ted aslf this and to levy the Debt and Costs and make such Return to the Justice or
Ordinance J u stices awarding the same, as he would have done before the Publication
had not been „ ‘ , . ,. ,.
made. of this Ordinance.
282 CANADIAN ARCHIVES
6-7 EDWARD V I I , A. 1907
Preamble to And whereas the providing an Easy, plain, and summary Method of
erecting íníw Proceeding for the Recovery of small Debts, with a due Regard at the
Jurisdiction, same Time to a certain Degree of Solemnity and Deliberation, which ought
ever to accompany the Administration of Public Justice, very much contributes to promote Industry, and to support and Encourage useful Credit :
All Disputes I* *s
therefore ordained and declared by the Authority aforesaid, That
for Sums not from and after the Day of the Date of the Publication aforesaid, all Manexceeamg £12 n e r 0f DiSpUtes and Differences between Party and Party for anv Sum
before the n
ot exceeding Twelve Pounds Currency of this Province, except as is hereJudges of the inafter excepted, shall be heard, trie^d, and adjudged before the Judges
Common °^ *^e Courts of Common Pleas i or the Time being only, who are hereby
Pleas only, authorized and required to take Cognizance thereof, and the same to hear,
except as after adjUclge and finally determine as to them shall seem just in Law and Equiexcep e . ^ a n ^ Ordinance or Ordinances, or any Clause, Matter or Thing in them
or any of them contained, to the contrary hereof in any wise notwithstanding. »
Preamble to And whereas some Inconveniences have arisen from the present Practice
the Clause for 0f adjourning the Court of Common Pleas from Quebec to Montreal, and
Court of Com- from the want of a fixed, settled, and Established Court for the hearing and
mon Pleas at determining all matters arising within the District of Montreal, before
Montreal. Judges specially appointed for that District, and constantly residing
within the same ;
Court of Com- I* is further Ordained and Declared, by the Authority aforesaid, That
mon Pleas at from and after the Day of the Date of the Publication of this Ordinance, the
t’tuted C
ï
n
‘- Court of Common Pleas, heretofore held by Adjournment at different Days
dependant and Times in the Town of Montreal, and considered and taken to be a Part
Court, with or Member of the Court of Common Pleas established at Quebec, shall be,
dichón 1 S”
a n d it is hereby constituted a Court of Record, with Original Jurisdiction
of its own, independent of, and no wise connected with the Court of Common Pleas established at Quebec, which Court of Common Pleas for the
District of Montreal shall, for the future, be held before Judges constantly
residing within the said Town of Montreal, who shall have the same Power
and Authority, and the same is hereby given and granted to them to hear
‘ all Matters anc^ determine within the District of Montreal, and to award Execution, and
arising within to do and execute all and every Matter or Thing touching the Administrathe District tion of Justice, in as full and ample a manner as is now or has at any Time
o on rea , ^een use^ practised, or done by the Court of Common Pleas established at
in the same Quebec, in and for the District of Quebec : And that from and after the
manner as the Day of the Date of the Publication aforesaid the said Court of Common
Courtof Com- Pleas in the Town of Quebec, and the said Court of Common Pleas in the
Quebec, in all Town (jf Montreal, shall be taken and adjudged to have each their separate
matters aris- Jurisdictions, independent of and unconnected with each other, that is to
Ï?? jyjtbin the say, the said Court of Common Pleas at Quebec, in and over all matters and
Quebec. Things arising within the District of Quebec, and the Court of Common
Pleas at Montreal in and over all matters and Things arising within the
District of Montreal.
Proviso, that Provided always, and it is hereby further Ordained and Declared by the
shall °h°aTetSa
A u f c n o r i t y aforesaid, that from and after the Day of the Date of the Publieoncurrent cation aforesaid, where any Person or Persons, against whom Judgment shall
Jurisdiction be obtained, in either of the said Courts of Common Pleas, shall not have
Writiof Exe- a n y Lands, Goods, or Effects, wherewith to satisfy the said Judgment within
cution. the Jurisdiction of that Court wherein such Judgment shall have been
Where the De-obtained, but such Person or Persons shall have Lands, Goods, or Effects,
fendant has within the Jurisdiction of the other Court of Common Pleas, that then and
Goodswithin *n
*^la* ^ a s e ** shall and may be lawful for the Judge or Judges of the Court
the District of the District in which such Judgment shall have been obtained to award
where the Execution to the Provost Marshal of the District in which such Lands,
CONSTITUTIONAL DOCUMENTS 283
SESSIONAL PAPER No. 18
Cause waB
tried,
but it need
not be made
in Person.
The Provost
Marshal executing the
Writ, only
•answerable
before the
Goods, or Effects shall be found, who shall, before he proceeds to do anything
therein, carry the said Writ of Execution to one of the Judges of the Court
Execution o f t h e District in which such Lands, Goods, or Effects shall be found, who
maybeaward-is hereby authorized and required to endorse the same; which Writ of Exeo&SDtetriet- c u t i o n>
b e i n S
s 0 indorsed as aforesaid, the said Provost Marshal of the
‘ District in which such Lands, Goods, or Effects shall be found, shall proceed
Andthe He- t o l e v
y
t n e
–
D e b t an<* c °sts, and make Return thereof, under his Hand and turn must be Seal, to the Judge or Judges of the Court from whence such Writ of Exemade by the cution was originally awarded ; and such Writ of Execution, together with .¡h^r^the the - ^etuvn thereof, u n d e r the Hand and Seal of the Provost Marshal sub- ' Court from scribing the same, shall be by him conveyed, so soon after the making and whence it was signing thereof, as conveniently may be, to the Provost Marshal of the awardedy - District from whence such Writ was originally awarded, who is hereby authorized and required to deliver the same into the Court of Common Pleas from whence such Writ was originally awarded, on the First Court Day next after the coming of the said Writ and Return into his Hands ; and the Judge or Judges of the said Court of Common Pleas, by whom such Writ of Execution was originally awarded, are hereby authorized and required to receive the same ; and the same shall be as valid and effectual, to all Intents and Purposes, as if the Provost Marshall making and subscribing the same had himself been present, and delivered the same into the Court with his own Hands. Provided nevertheless, That the Provost Marshall executing the said Writ, and5 making-Return thereof as aforesaid, only shall be answerable as well for the Truth of the said Return, as for any Misbehaviour, Omission, or Neglect in the manner of executing the said Writ, or making Return thereof before the Judge or Judges of the Court from whence such Writ of Court of the gxec^on was originally awarded, and not before the Judge or Judges of awarded the the Court of the District to which he belongs :—And in case any Person or Persons against whom such Judgment as aforesaid shall be obtained, not having "any Lands, Goods, or Effects within the Province, wherewith to satisfy the said Judgment, shall usually reside without the Jurisdiction The same in of the Court in which such Judgment shall be obtained, or being, at the Writs of 0a- Time of obtaining the said Judgment, resident within the same, shall alter faciendumtlS" nis o r t h e i r P l a c e o f Residence, and withdraw his, or their Person, or Persons from the Jurisdiction of the Court m which such Judgment shall have been obtained, it shall and may be lawful for the Judge or Judges of the said Court in which such Judgment shall have been obtained, in all cases where such Writ may legally issue, to award a- Writ- or Writs of Capias ad Satisfaciendum to the Provost Marshal of the District in which such Person or Persons shall reside or be found, which Writ or Writs, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Person or Persons shall reside or be found, shall proceed to execute the same, and to arrest the Body or Bodies of such Person or Persons, and him or them to convey to the Common Gaol of the District in which such Person or Persons shall be arrested, there to remain till the Debt and Costs .are paid, or he or they be otherwise delivered by due Course of Law. . - ^c,„luJO «, And in order to avoid the Delays and Inconveniences occasioned by the the"cîause"for present practice of holding the said Courts of Common Pleas at certain keeping the fixed T i m e s a n ( j Periods, according to the Directions of the aforesaid Ordinance of September One thousand, seven hundred and sixty-four, and to the Intent that the Judges of the said Courts may be enabled to give more speedy and effectual Relief in all Cases, as well where the matter or Thing in Demand shall exceed the Sum of Twelve Pounds, and where it falls short of or is equal to it ; it is further Ordained and Declared by the Authority aforesaid—That from and after the Day of the Date of the •Same. •and the Defendant to be •conveyed to the Gaol of the District in which he is arrested. Preamble to Courts open throughout *he year. Courts to sit all the Year, 284 • CANADIAN ARCHIVES - 6-7 EDWARD VI'... A. 1907 Publication of this Ordinance, the said Courts of Common Pleas, as well at Quebec, as at Montreal, shall be constantly open to the Suitor, and they except Sun- a r e hereby required to be kept open at all times throughout the Year, days, and except on Sundays, and at Seed time, a Month at Harvest, and a Fortother times night at Christmas and Eahter, and except during such Vacation as shall ' be from Time to Time appointed by the Judges for making their respective Wth t R Circuits throughout the Province, Twice in every Year : and the Judges of gard to Terms, the said Courts are hereby authorized and required to issue their Process, as appointed and to do and execute all and every other Matter or Thing touching the nanœ^f Sept Administration of Justice, without Regard to Terms or any stated Periods ember 1764. of Time, as Limited and appointed by the Ordinance of September, one or any other thousand seven hundred and sixty-four, or any other Ordinance, custom or all which as u s a g e whatsoever, all and every of which Ordinance, or Ordinances, so far far as they as they relate to the Sitting of the said Courts, or prescribe any Limitan t e to the {¡ions of Time for that Purpose, are hereby annulled, revoked, and made Said Courts, Void, in as full and ample a manner as if they were herein particularly are repealed, enumerated and set forth. Provided always, and it is further Ordained and Declared by the AuthoThe .Judges r ity aforesaid, That the Judges of the said Courts of Common Pleas, as m everyweekwe^ i*1 Quebec as in Montreal, shall appoint One Day in every week at their Dis- (except Sunday, or in such Vacation as aforesaid) at their Discretion for cretion for (¡ n e h e a r i n g a n
CONSTITUTIONAL DOCUMENTS 297
SESSIONAL PAPER No. 18
present, all power, in fact, resided in the Governor and the Intendant. The Superior
Council was generally at their devotion. They had the command of all the troops, of
all the revenues, and of all the trade of the country. They had also the power of granting land ; and in conjunction with the bishop, they had so superior an interest at the
Court of France, that no complaint against their conduct was dangerous to their
authority. This was the state of Canada till the treaty of peace. Upon the reduction
of the province, a military government took place, and the change was not very sensible
to the inhabitants.
After the treaty of peace, a government succeeded -which was neither military or
civil, and it is not surprising that the Canadians should have often expressed a desire
to return to a pure military government, which they had found to be less oppressive.
Such a government, however, is not formed for duration, and in a settlement which is to
become British, could not be endured beyond the limits of a garrison.
The first consideration, in forming the political constitution of a country is, in what
manner the power of making laws shall be exercised. If it were possible to provide
every necessary regulation for a distant province, by orders from England, it might,
perhaps, be the most eligible measure to reserve that authority entirely to the British
legislature. But thete must be many local interests of police, of commerce, and of political economy, which require the interposition of a legislative power, acquainted with the
affairs, and immediately interested in the prosperity of a colony. In aJl the British
colonies, that legislative power has been entrusted to an Assembly, in analogy to the
constitution of the mother country. The most obvious method would then be, to pursue
the same idea in Canada ; but the situation of that country is peculiar. The Assembly
must either be composed of british subjects, or of british and Canadians.
Tn the first case, the native Canadian would feel the inequality of his situation,
and think (perhaps truly) that he should be exposed to the oppression of his fellowsubjects.
To admit the Canadian to a place in that Assembly (a right, which, from the nature
of a’ conquest he has no absolute title to expect,) would be a dangerous experiment with
new subjects, who should be taugjit to obey as well as to love this councry, and, if
possible, to cherish their dependence upon it. Besides, it would be an inexhaustible
source of dissension and opposition between them, and the British subjects. I t would
be no less difficult to define the persons who should have a right to elect the Assembly.
To exclude the Canadian subject would be impossible, for an Assembly chosen only by
the British inhabitants, could no more be called a representative body of that colony,
than a council of state is. To admit every Canadian proprietor of land would be disgusting and injurious to all the men of condition in the Province, who are accustomed
to feel a very considerable difference between the seignior and the censier, though both
are alike proprietors of land. .Nor would it be beneficial to men of inferior rank ; for
every mode of raising them to the level of their superiors, except by the efforts of their own
industry, is pernicious. I t seems, therefore, totally inexpedient at present to form an
Assembly in Canada. The power to make laws could not with safety be entrusted to
the Governor alone ; it must, therefore, be vested in a Council consisting of a certain
number of persons, not totally dependent upon the Governor.
The Chief Justice, the Attorney General, .the Judge of the Vice Admiralty, the
Collector of the revenue, and the Receiver General, (if these officers were obliged, as
they orighti to reside there,) should hold a seat by virtue of their office ; the other members to be nominated by your Majesty, and to be removed only by your royal orders.
As power lodged in few hands is sometimes liable to be abused, and always subject
to suspicion, some controul to this authority is necessary. The first is, the establishment
of a general system of laws for the colony. The second is, that in matters of taxation,
in those which affect life, and in those which import an alteration of the established
laws, no ordinance of the Council should have effect till it is confirmed in Great Britain.
The third is, that it should not be in their power at all times to act a s a legislative
body ; but that, their session should be confined to the period of six weeks previous to
the opening of the navigation to Britain, and at no other time should they be assembled
in that capacity, except upon spine urgent occasion.
298 CANADIAN ABOMITES
6-7 EDWARD VII., A. 1907
Under these restraints, it seems reasonable that the power of making laws should
be entrusted, for a limited number of years, to this Council, who will be enabled, from
their knowledge of local circumstances, to form the necessary detail for executing the
plan of laws to be transmitted to them, the regulations for the police of the country,
for the administration of justice, for the collection of the revenue, and the improvement of trade and agriculture ; and being bound down by certain rules upon the great
objects of legislation, and subject to the constant inspection of government, they will
be sufficiently restrained from abusing the power committed to’ them.
As the immediate power of taxation is not intrusted to this Council, it is necessary
that a revenue should be provided under the authority of an Act of Parliament, for
which no better plan can be formed than that which has already been proposed to the
Commissioners of your Majesty’s Treasury, for raising a fund to defray the expenses of
government in the Province of Quebec, by a tax upon spirituous liquors.1
The religion of Canada is a very important part of its political constitution. The
4th article of the treaty of Paris, grants the liberty of the Catholic religion to the
inhabitants of Canada, and provides that His Britannic Majesty should give orders
that the catholic subjects may profess the worship of their religion according to the
rites of the Romish church, as far’as the laws of England will permit. This, qualification renders the article of so little effect, from the severity with which (though seldom
exerted) the laws of England are armed against the exercise of the Romish religion,
that the Canadian must depend more upon the benignity and the wisdom of Your
Majesty’s government for the protection of his religious rights than upon the provisions
of the treaty, and it may be considered as an open question, what degree of indulgence
true policy will permit to the catholic subject.
The safety of the state can be the only just’ motive for imposing any restraint
upon men on account of their religious tenets. The principle is just, but it has seldom
been justly applied ; for experience demonstrates that the public safety has been often
endangered by those restraints, and there is no instance of any state that has been
overturned by toleration.. True policy dictates then that the inhabitants of Canada
should be permitted freely to profess the worship of their religion ; and it follows of
course, that the ministers of that worship should be protected and a maintenance
secured for them.
Beyond this the people of Canada have no claim in regard to their religion, either
upon the justice or the humanity of the crown ; and every part of the .temporal establishment of the church in Canada, inconsistent with the sovereignty of the king, or
the political government established in the province may justly be abolished.
The exercise of any ecclesiastical jurisdiction under powers derived from the see of
Rome, is not only contrary to the positive laws of England, but is contrary to the
principles of government, for it is an invasion of the sovereignty of the king, whose
supremacy must extend over all his dominions, nor can his Majesty by any act divest
himself of it.
The establishment of the Jesuits and of the other religious orders, as corporations
holding property and jurisdiction, is also repugnant to thé political constitution, which
Canada must receive as a part of the British dominions.
‘ The point then, to which all regulations on the head of religion ought to be directed
is, to secure the people the exercise of their worship, and to the crown a due oontroul
over the clergy.
The first requires that there should be a declaration that all the subjects in Canada
may freely profess their religion without being disturbed in the exercise of the same, or
subject to any penalties on account thereof, and also that; there should be a proper
establishment of parochial clergymen to perform the offices of religion.
The present situation of the clergy in Canada, is very fortunate for establishing the
power of the crown over the church. I t is stated in the reports from your Majesty’s
officers in Canada,2
that very few have a fixed right in their benefices, but that they are
1
See Carleton’s Report to the Treasury, with proposed duties, &e., Deo. 10th, 1767. Q 5-1, pp.
300 & 306. 2
Referring to the Reports of Oarleton Hey. and Maseres. See note 1, p. 258.
CONSTITUTIONAL DOCUMENTS 299
SESSIONAL PAPER No. 18
generally kept in a state of dependence which they dislike, upon the person who takes
upon him to act as bishop, who, to preserve his own authority, only appoints temporary
Vicars to officiate in the several benefices.
It would be proper, therefore, to give the parochial clergy a legal right to their
benefices. All presentations either belonging to lay pastors or to the crown, and the
right in both ought to be immediately exercised with due regard to the inclinations
of the parishioners in the appointment of a priest. The governor’s license should in
every ease be the title to the benefice, and the judgment of the temporal courts the only
mode of taking it away. This regulation would, in the present moment, attach the
parochial clergy to the interests of government, exclude those of foreign priests, who are
now preferred to the Canadians, and retain the clergy in a proper dependence on the
crown. I t is necessary, in order to keep up a succession of priests, that there should be
some person appointed whose religious character enables him to confer orders, and also
to give dispensations for marriages ; but this function should not extend to the exercise
of a jurisdiction over the people or the clergy; and it might be no difficult matter to
make up to him for the loss of his authority, by emoluments held at the pleasure of the
government.
The maintenance of the clergy of Canada was provided for by the payment of one
thirteenth part of the fruits of the earth in the name of tythe, and this payment was
enforced by the Spiritual Court. I t is just that the same provision should continue, and
that a remedy for the recovery of it should be given in the temporal courts ; but the
case may happen that the land-owner is a protestant, and it may be doubted whether
it would be fit to oblige him to pay tythes to a catholic priest.
I t has been proposed that all tythes should be collected by the Receiver General
of the Province, and appropriated as a fund to be distributed by government for the
stipends of the clergy, out of which a certain proportion may be reserved for the support
of protestant preachers. This measure, I humbly conceive to be liable to two objections,—First—tythe even to’the clergy is paid with reluctance, and the government, by
undertaking the collection of it, would lose more in the affections of its subjects than
it would gain by the additional dependence of the clergy,—Secondly—-b^ thus being
brought into one fund, the catholic subject will be made to contribute to the support
of the protestant clergy, which he may think a grievance.
There is less objection, however , to require the protestant inhabitant to pay his
tythe to the receiver general, allowing him, at the same time, to compound for less than
the full sum ; though I should not deem it expedient to reduce the rate by any positive
law.
The increase of that fund will be a proof of the increase of the protestant inhabitants, and it will afford the means of providing for the protestant clergy, whose functions
will then become necessary. In the mean time, it may be sufficient to appoint that a
Protestant clergyman shall be nominated to any parish in which a majority of the
inhabitants require it. ‘ . .
In regard to the monastic orders, it will be fit to secularise them entirely, but so
great a change ought not to be made at once. I t is proper to see how many of them
may take benefices, from which they are not excluded by the foregoing provisions.
The Jesuits, however, and the religious houses in France which have estates m
Canada, are upon a different footing from the others. The establishment of the first l s
not only incompatible with the constitution of an English province, but with every other
possible form of civil society. By the rule of their order the Jesuits are aliens m every
government. Other monastic orders may be tolerated, because, though they are not
useful subjects, still they are subjects, and make a part of the community ill employed.
The Jesuits form no part of the community. They, according to their institution neither
allow allegiance nor obedience to the prince, but to a foreign power They are not
owners of their estates, but trustees for purposes dependent upon the pleasure of a
foreigner, the general of their order. Three great catholic states have upon grounds
of policy, expelled them. I t would be singular, if the first protestant state m Europe
should protect an establishment that ere now must have ceased m Canada, had the
French government continued.
300 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Uncertain of their tenure in Canada, the Jesuits have hitherto remained very quiet,
but should the establishment be tolerated there, they would soon take the ascendant
of all the other priests ; the education of the Canadians would be entirely in their hands,
and averse as they may be at present to France, it exceeds any measure of credulity to
suppose that they would ever become truly and systematically friends to Britain.
I t is therefore equally just and expedient in this instance, to assert the sovereignty
of the king, and to declare that the lands of the Jesuits are vested in his Majesty, allowing, at the same time, to the Jesuits now residing in Canada, liberal pensions out of the
incomes of their estates.
The information to be collected from the papers transmitted with the reference, is
not particular enough to be the ground of an immediate law as to the property claimed
by religious societies in .France. The principle is clear, that every trust for their use, is
void and devolves to the crown. But in applying that principle, the circumstances
of each case must be considered, and, in general, it seems expedient to confirm all the
titles of persons occupying lands under their grants ; to make the terms of payment to
the crown easier than to the former proprietors, and to apply the produce for the purposes of educating the youth of Canada, which deserves particular attention. But this
subject is more fit for gradual regulations, pursuant to the instructions that may be given
to your Majesty’s governor, than to form an article in a general plan of laws to be immediately carried into execution.
The convents in Canada do not fall under the same rule as the monasteries. They
are not much connected with the political constitution. They may, for a time, be
necessary for the convenience and honor of families—perhaps it may be expedient
always to retain some such communities there, for the honorable retreat of unmarried
women. Certainly it would be inexpedient and cruel to dissolve them by any immediate
law. No such change is essential to the political constitution, and whenever it becomes
so, the remedy is easy, and the subjects will then receive it as a favor from the crown.
The political and religious constitution of the province of Quebec being established,
the next matter of inquiry is, what plan of civil and criminal law is best adapted to the
circumstances of the province ? and this is not altogether an open question ; for, Canada
is not in the condition of a new settled country, where the invention of a legislator may
exercise itself in forming systems. I t has been long inhabited by men attached to their
own customs, which are become a part of their nature. I t has, of late, acquired some
inhabitants superior in power, but much inferior in number, to its ancient inhabitants,
equally attached to different usages. The prejudices of neither of these classes
of men can be entirely disregarded; in policy, however, more attention is due to
the native Canadian than the British emigrant, not only because that class is the most
numerous ; but because it is not the interest of Britain that many of her natives should
settle there. The Canadian also has a claim in justice to the enjoyment of as much of
his ancient laws regarding private rights, as is not inconsistent with the principles
of the new government ; for, as his property is secured to him, the laws which define,
create, and modify it, must also be retained, otherwise his property is reduced to the
mere possession of what he can personally enjoy.
* * * * * * * j ^ ghouls a i s o be provided that any Canadian subject
of the age of twenty five, who is unmarried and without children, holding land
immediately of the crown, may convert his tenure into a soccage holding, by which he
shall have the power of devising the whole, and that the purchaser of land held of the
king, may convert the tenure into soccage at his pleasure, and it shall then be held and
enjoyed as by the law of England.
* * * * * * * fpne criminal law of England, superior as it is to all others,
is not, however, without imperfections ; nor is it, in the whole extent of its provisions,
adapted to the situation of Canada. I t would be improper to transfer to that country
all the statutes creating new offences on temporary or local circumstances.
* * * * I t 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 intitled 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 attacKment, before the provisions of the statute are extended to that country.
CONSTITUTIONAL DOCUMENTS 301
SESSIONAL PAPER No. 18
The form of civil government for the province, as it now consists in the distribution of judicial authority, is the most difficult and the most important part of the plan,
for, without an easy and exact execution, laws are of very little use to society.
The several opinions reported to your Majesty, by the governor, the chief justice
and the attorney general, concur in the causes of the complaints upon this head, and differ
little in the remedies proposed.
I t is their opinion that the expense and delay of proceeding are at present very
grievous, and they seem to think that the division of the province into three districts,
and the establishment of courts of justice in each, as in the time of the French government, would afford some remedy to this evil.
To diminish the expense of law suits, too great already for the poverty of the
c juntry, by adding to the number of persons who* are to be maintained by the law, is at
least a doubtful proposition.
I t is necessary, therefore, to consider whether other causes besides the want of
proper judicatures, may have concurred to produce the grievance of which the Canadians
complain, and whether other expedients, besides an increase of places and expense, may
not, in part, remove it. The uncertainty of the law of the province must have been one
principal cause of the expense of suits. That evil will, in time, be removed.
The change of property, together with the alteration of the course of commerce
•consequential upon the conquest, producing new contracts in new forms, created a great
deal of business for which there would be no established fees, and the ignorant execution
of that business opened a new source of litigation. The same thing has happened in the
other settlements, where, for a certain time, the gains of those who took upon themselves
to act as lawyers, and of course the expense to the other inhabitants, of law proceedings,
has been very great. But this evil is also temporary. Without disputing the reality of
the grievance, one may suppose that it is a little exaggerated, for all the French lawyers
who remained in Canada, were interested to magnify it. They partook of the profits
arising from its continuance, and their profits were increased by exciting the complaints.
I cannot conceive that this grievance would be removed by adopting the French
judicature, for if one can trust the accounts given by themselves, the expense and the
delay of law suits, are in France a most intolerable evil.
* * * * * * ipke Canadians, it is said, complain, and not without reason, of
the arrest and imprisonment in civil cases. There could be no objection to confine that
severe proceeding to the cases in which they are accustomed to it. These are stated to
he actions upon bills of exchange, debts of a commercial nature, and other liquidated
demands, by which probably is to be understood actions upon bond and other instruments, where the sum demanded is certain.. In other cases, the arrest upon mesne process, which is only used to compel appearance or answer, may be abolished, and in lieu
of it the plaintiff might be allowed, after due summons, to enter an appearance for the
defendant, and if more was required than a mere appearance, the constitution of the
court is very well calculated to adopt the process of sequestration, which has already
prevailed under the French government.
The execution against the person of the debtor, after judgment, may also be laid
aside, and, indeed, in an increasing colony it is very impolitic, and a very cruel proceeding. An effectual and speedy process against the goods and estate would, in most cases,
answer the ends of justice much better.
* * * * * * _^s
the affairs of the colony require a very particular attention,
and some regard must there be had to political considerations, it might be proper to
attribute the cognizance of all questions concerning the rights of the clergy, the profits
of benefices, and the presentation to them, to the council, with an appeal to England ;
and all the most material questions of police might, perhaps, be also subjected to their
jurisdiction.
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6-7 EDWARD VII., A. 1907
2ÑP 1
ABSTEACT of such of the Regulations proposed in Mr
Solicitor Gen? Report as it may
be expedient to establish by Act of Parliament—Inclosed in Mr
Sol. Gen? Report
of 6th Decr
1772.1
That it shall and may be lawful for the Govenor or Commander in Chief of the
Province of Quebec, by and with the advice & Consent of such Persons as shall be
appointed from time to time by His Majesty &c. to be a Council for assisting the said
Governor in the Administration of the Province, not exceeding Twenty, nor less than
Twelve, to make and ordain Ordinances for the public Peace, Welfare and good Government of the said Province in all Cases whatsoever.
Provided always, that no such Ordinance shall be made when less than a Majority
of the said Councillors shall be present, nor at any Meeting of the Council, except those
which shall be specially called for that purpose between the day of and the
day of unless upon some extraordinary and urgent Occasion, in which Case
every Member of the Council resi lent at Quebec or within Miles of the same shall
be personally summoned by the Governor to attent the same.
Provided also that no Ordinance by which the Life or Limb of the Subject may
be affected, or by which any Duties or Taxes shall be imposed, or by which the Laws of
England hereby declared and enacted to be of Force and Validity in the said Province,
or the Customs used in Canada, by this Act directed to be observed, may be altered or
varied shall be of any Force or Effect until approved by His Majesty and such approbation signified by His Majesty in Council.
That Copies of all Ordinances, so to be framed and ordained, shall, within months
from the passing thereof (or sooner if Opportunity offers) be transmitted duly authenticated under the Seal of the Province by the Governor or Commander in Chief to the
Commissioners for Trade and Plantations, and that the said Ordinances be laid by the
said Commissioners for Trade and Plantations, before both Houses of Parliament as soon
as may be after the same shall have been received by them from the said Province.
That it shall and may be lawful for all His Majesty’s Subjects of the Province of
Quebec freely to profess their Religion in the said Province, without being subject to
any Penalties or Prosecutions for the Exercise of the same, provided -that they attempt
nothing by Deed or Writing to the Prejudice of His Majesty’s Supremacy in all matters
Causes and Things ecclesiastical and civil.
That it shall and may be lawful to and for any Person or Persons who shall be
licensed by the Governor of the Province to ordain Priests or Deacons, and also to grant
Licenses for Marriages as has been formerly used, but not to exercise any other ecclesiastical Jurisdiction or Authority.
That all Crimes and Misdemeanors, commited in the Province of Quebec shall be
tried and determined according to the Laws* of England.
Provided always that no Person shall suffer the Pains of Death upon Conviction
for any Theft, or felonious taking without Force, where the Value of the thing taken
shall be less than five Pounds, nor for any Felony where the Benefit of the Clergy hath
been taken away from the Offender by any Statute enacted since the 23d
year of the
Reign of King Charles the Second.
Provided also that in lieu of the Judgement to be given upon any Conviction for
Felony, where the Offender is entitled to the benefit of Clergy, the Offender shall only
be fined or imprisoned, or bound to his good Behaviour.
Provided also that no Judgement upon any criminal Charge shall, after the Verdict
given, be arrested upon any Objection of Informality in the Indictment or of any
Discontinuance in the Record.
1
Canadian Archives, Dartmouth Papers, M 383, p. 240. These two papers give the chief features o
Solicitor General Wedderburn’s Report, in the shape of clauses of a bill, and may be compared with the
Report of the Lords Commissioners for Trade and Plantations relative to the State of the Province of
Quebec, p. 263, as also with the Quebec Act and the various draughts of bills for the settlement of the
Government of Quebec which precede it.
CONSTITUTIONAL DOCUMENTS 303
SESSIONAL PAPER No. 18 *
That the Laws & Usages touching the Tenure, Descent & Alienation of Land or
real Property, and the ‘Distribution of the Goods of such of His Majesty’s Canadian
Subjects as shall die intestate, which were in force on the 13t t of Septr
1759, shall be
observed and maintained in all Questions that shall arise concerning the same in any of
the Court of Justice in the Province of Quebec, except in such cases as are hereafter
declared.
Provided always that nothing in this Clause contained shall be construed to extend
toany Lands that have been granted by His Majesty, or shall hereafter be granted by
His Majesty, His Heirs & Successors, to beholden in free & common Soccage : Provided
also that it shall and may be lawful to and for any of His Majesty’s Subjects at his age
of 25 years to change the Tenure of an Estate held of His Majesty &c into free &
common Soccage by any Deed executed in the Presence oí two Witnesses and presented
to the Chief Justice of the Province who shall summon a Jury to assess the Sum to be
paid to His Majesty in lieu of the Profits of the Seigniory, and upon payment thereof
shall direct the Deed to be enrolled, and the same being enrolled the Land shall from
thenceforth be held as Lands in free & common Soccage are by the Laws of England.
That all Wills & Testaments executed according to the Forms used in the Province
of Quebec before the 15th of Septr
1759, shall be deemed equally valid & effectual as a
Will executed by the Testator in the Presence of three Witnesses, pursuant to the
Statute of Frauds and Perjuries.
That in all Marriages heretofore contracted by and between any of His Majesty’s
Subjects of the Province of Quebec ; the Rights of the Husband and Wife and of the
Issue, in respect of their personal Property shall be adjudged according to the Laws and
Usages which obtained there before the 15th of Septr
1759 ; But that in all Marriages
celebrated after the day of where there are no Articles of Settlement the
Parties shall be deemed in respect to their personal Property to have contracted under
the Law of England.
N°. 2
ABSTRACT of such of the Regulations as the provincial Legislature of Quebec may carry
into Execution.
Inclosed in Mr
Sol. Gen? Report of the 6″1
Decr
1772.
That in all Benefices which now are or hereafter shall become vacant the Patronage
whereof belongs to any of His Majesty’s Subjects of Canada, the Patron shall nominate
the Ecclesiastic to His Majesty’s Governor, who shall issue a Licence to the Person so
nominated, and where there is no Lay Patron, or where no Person shall be nominated
within Six Months, the Governor shall nominate and licence some Person, being a Priest
born in Canada or the British Dominions, or resident in Canada..for the space of five years.
That every Priest so licensed as aforesaid shall hold his Benefice with all the usual
Emoluments and Dues thereto belonging during his natural Life, unless he shall be
licensed to another Benefice, or upon Complaint made by any Proprietor of Land in
the Parish to His Majesty’s Governor & Council ; and that in such Suits for the Recovery of his Dues the Production of the Licence shall be sufiicient to prove him the
Incumbent. Provided always that no Inhabitant or Occupier of any Estate professing
the Protestant Religion and having taken the Oaths of Supremacy and subscribed the
Declaration against Popery, shall be obliged to Pay Tithes or other Dues to any Popish
Incumbent of any Living; But that every such Inhabitant or Occupier of Land shall
be obliged to register his ÎTame in a Book to be kept for that purpose by the Clerk of
the Council, and that it shall and may be lawful for the Receiver General of the
Province to ask, sue for, & recover, by Action or Bill, the Tithes of the Protestant
Inhabitants or Occupiers of Land to be applied for the Maintenance of Protestant
Divines, in such manner & Proportions, as His Majesty’s Governor, with the Advice of
the Council, shall appoint. , „», , j * a ¿ u
That all Seigniories, Lands and Estates, which, on the fifteenth day of September,
One thousand seven hundred and fifty-nine, belonged to certain Persons assuming to
themselves & commonly called the Society of Jesus, shall be vested m His Majesty His
304 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Heirs and Successors freed & discharged from all Gifts, Grants, Leases and other alienations made thereof, or of any part thereof, since the said fifteenth day of September,
one thousand, seven hundred and fifty nine, but charged & chargeable with the Payment of the Sum of Forty Pounds to every Person of the said Society resident in the
Province of Quebec upon the said fifteenth day of September, one thousand seven
hundred and fifty nine, or who has since been resident there for the Space of five Years,
for and during his natural Life. In Lieu of the Homage done by the Tenant to the
Lord of whom the Land is holden, every Tenant, when and as often as the said Homage
should have been done, shall deliver to the Lord at the Manor-Place’a Declaration in
writing, expressing the Tenure of the Land, and the Title of the Tenant, whether by
Purchase or Descent, to which Act the Tiord shall, within two Days, declare his Assent
in writing upon the same Instrument, and the same shall then be entered in a Register
to be appointed for that purpose at*bhe Chief Town of the District.
That no Sale of Land honafide made shall, after the Purchase Money paid for the
same, be rescinded by the Lord of whom the Pee is holden, or by the nearest Relation
of the Lineage of the Vender claiming a Right of Pre-emption therein by virtue of
any former Custom.
That the Governor or Commander in Chief shall issue a Commission or Commissions
under the Seal of the Province to any three Persons, being Subjects of His Majesty, to
hear & determine in a summary manner all Causes not exceeding the Sum of Thirty
Pounds, taking to their assistance a Person chosen by themselves of the Profession of
the Law, licensed by the Governor, and also one other Person nominated by the Attorney General, which Person shall act as their Clerk, but neither of the said Persons
shall have any Vote.
Provided always, that where the Sentence shall amount to more than the Sum of
Twelve Pounds, the whole Proceeding and the Evidence which shall have been given,
shall at the desire of either Party, be transmitted to the Chief Justice of the Province
within the Space of fourteen days from the Judgement, who shall within fourteen days
return the same to the Clerk of the said Commission with his Affirmance, Reversal, or
Variation thereof, and the sam° shall be executed as if the Sentence had been originally
pronounced by the Commissioners. That these Commissioners shall be Conservators of
the Peace, and have Power to punish all Misdemeanors upon a summary Complaint by
Fine and Imprisonment, not exceeding twenty four Livres and three Months. That it
shall be lawful for any one of them to commit for a Breach of the Peace for forty eight
Hours ; but the Person so committed shall not be longer detained, unless it shall seem
proper to two of the Commissioners to detain him for a longer Space ; and in that Case
the Cause of the Commitment with the Information shall be immediately transmitted
to the Chief Justice.
That the Superior Court of the Province shall be held at Quebec on the first day
and shall meet and adjourn itself from time to time, and shall consist of
the Chief Justice and two other Judges, who shall have full Power and Authority to
determine all Matters & Things in which any real or personal Right, or th$ quiet Enjoyment thereof is demanded ; by any Action real personal possessory or mixt, and also
by any Bill in Equity according to the Laws of England, the Customs of Canada, and
the general Principles of Justice and Equity ; And that their Judgements shall be
final nrall Cases, where the Value of the Thing in question does not exceed three
hundred Pounds ; and, in all casss of superior Value, the Party aggrieved by the Sentence may, upon Payment of the Sum decreed (Security being given to the Satisfaction
of the Court by the Party receiving it to refund the same in Case of a Reversal of the
Judgement) bí at Liberty to appeal to His Majesty in Council, which appeal shall be
allowed.
That the Chief Justice of the Province shal hold four Sessions for the Trial of all
criminal Offences in every Year : two at Quebec, one at Montreal, and one at Trois
Rivieres. But in case of any reasonable Excuse approved by the Governor, it shall be
lawful for him to appoint the Attorney General, or any other Person, with the Approbation of the Governor, to hold the Sessions in his Place, who shall be appointed by a
Special Commission issued under the Seal of the Province a Copy of which with the
CONSTITUTIONAL DOCUMENTS 305
SESSIONAL PAPER No. 18
Cause of issuing the same shall, as soon as conveniently may, be transmitted by the
Governor to the Commissioners for Trade and Plantations.
That in case of any Offence committed, by which the Peace and good Government
of the Province may be effected, it shall be lawful for the Attorney General to apply to
the Council for an Order to remove the Offender to be tried at Quebec, or to apply for a
Special Commission for the Trial of the Offence in the Place where it has been committed.
REPORT OF ATTORNEY GENERAL, ED WD. THURLOW. 1
Canada had been holden by the French king, in the form of a province, upwards
of two hundred years ; and considerably peopled near one hundred and fifty years, by
the establishment of a trading company, with great privileges and extensive jurisdictions, seconded by the zeal of the age, to propagate the gospel in foreign parts.—Parishes,
convents of men and women, seminaries, and even a bishoprick were established there.
The supreme power, however, remained with the king, and was exercised by his governor
and lieutenant-general with the assistance of a council. About one hundred years ago,
Louis, the fourteenth resumed the country, and gave it the constitution which was found
at the conquest.
He gave them a body of laws, namely, those of the Prévôté, and Vicompté de
Paris. The sovereign power remained with the king. But because the immense distance
made it impossible to provide them with local regulations so speedily as the occasion
might demand, he gave them a council, with authority to order the expenditure of public
money, trade with the savages, and all the affairs of police, to appoint courts and judges
at Quebec, Trois Rivières and Montreal, and to be judges themselves in the last resort.
This council consisted of the governor, representing the king’s person ; and. the
bishop and five notable inhabitants, named by the two first. To this establishment in
a few years’ were added two more councillors, all sevan named by the king ; and an
intendant of justice, police and revenue, who held the third place in council, and acted
as president, collecting voices, &c, and who had, by a separate commission, very large
power, particularly in police, wherein he could, if he thought fit, make laws without the
council ; and in the ordering of the revenue, in which he was absolute ; and judge without appeal, of all causes relative to it, as he was, indeed, in all criminal cases.
* * * * * Office, rank and authority were annexed to land, and otherwise
divided among the gentry, with due degrees of subordinatio.n ; so that all orders of men
habitually and perfectly knew their respective places, «and were contented and happy in
them. The gentry, in particular, were drawn into a still closer attachment to the
governments of their posts, in the provincial and royal troops which were kept up there.
This system, a very respectable and judicious officer, your Majesty’s chief justice
of Quebec,2
justly extols, as being admirably calculated to preserve internal tranquility
and due reverence and obedience to government, and endeared to the natives by long
usage, and perfect conformity to their manners, habits and sentiments.
The natives, at the conquest, were one hundred and twenty thousand, whereof about
one hundred and twenty-six were noble: And their laws were, such parts of the laws
of Paris, as had been found necessary and applicable to their situation, reformed,
supplied, changed and enlarged by the king’s ordinances and those of the provincial
legislature. These have been very judiciously collected, and are among the papers which
your Majesty commanded me to consider.3
“””””^Attorney General Thurlow’s Report was dated Jan. 22nd 1773. ^
0
^ ^ J l ^ % h u Z ^ l Z
ar e derived from Christie’s History of Lower Canada vol. I, p. 46. (See note 1, p. 236. ) Edward Thurlow was
appo nted Solicitor General in March, 1770, and Attorney General m June 1771. fJ™%fi’$ç£e
^
appointed Lord Chancellor, a position which he held, except for a short interval m 1783, until 17ifii. un
his resignation he was created Lord Thurlow of Thurlow, m buttolk. «Wnments suhmitted
.
2
Evidently referrinjto the Report of Chief Justice Hey, which was one of the documents submitted
tor consideration but which cannot now be found. See note 1. p. ¿oS.
3
See note 2, p. 210. ^
18—3—20
306 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
On the eighth of September, 1760, the country capitulated in terms which gave to
your Majesty all that which belonged to the French king ; and preserved all their
property, real and personal, in the fullest extent, not -only to private individuals, but to
the corporation of the West India company, and to the missionaries, priests, canons,
convents, &J , with liberty to dispose of it by sale if they should want to leave the
country. The free exercise of their religion by the laity, and of their function by their
clergy, was also reserved.1
The whole of these terms were stipulated on the 10th of February 1763, in the
definitive treaty of peace.2
By your Majesty’s proclamation3
of the 7th October, in
the third year of your reign, (1763) your Majesty was pleased to declare that four new
governments were erected, of which Quebec was one, containing a large portion of that
country which had been included in the French government of Canada, some parts of
which were settled in such manner as hath been mentioned before, but great districts
of which still remained rude and barbarous.
And considering that it would greatly contribute to the speedy settling of the new
governments, that your Majesty’s loving subjects should be informed of your paternal
care of the security of the liberty and properties of those who are or shall become
inhabitants thereof, your Majesty thought fit to declare that your Majesty had, in the
constitution of these governments, given express power and direction to the governors
of the said colonies respectively, that so soon as the state and circumstances of the said
colonies would admit thereof, they shall, with the advice and consent of your Majesty’s
council, summon and call general assemblies within the said governments respectively,
in such manner and form as is used and directed in those colonies and provinces in
America, which are under your Majesty’s immediate government. And that your
Majesty had given power to the said governors, with the consent of your Majesty’s said
council and the representatives of the people, so to be summoned as aforesaid, to make,
constitute and ordain laws, statutes and ordinances for the public peace, welfare, and
good government of your Majesty’s said colonies, and of the people and inhabitants
thereof, as near as may be, agreeable to the laws of England, and under such regulations
and restrictions as are used in other colonies ; and that in the mean time, and until
such assemblies can be called as aforesaid, all persons inhabiting in or resorting to your
Majesty’s said colonies, might confide in your royal protection for the enjoyment of the
benefit of the laws of England, for which purpose your Majesty declared that your
Majesty had given power under the great seal to the governors of your Majesty’s said
colonies respectively for the erection of courts of judicature and public justice within
the said colonies, for the hearing and determining all causes, as well criminal as civil,
according to law and equity, and as near as may be, agreeable to the laws of England,
with liberty to all persons who may think themselves aggrieved by the sentence of such
courts, in all civil cases, to appeal under the usual limitations and restrictions, to your
Majesty in your privy council.4
* * * * On the 21st of November 1763, your Majesty appointed Mr. Murray,
to be governor of Quebec, commanding him to execute that office according to his commission, and instructions5
accompanying it, and such other instructions as he should
receive under your Majesty’s signet and sign manual, or by your Majesty’s order in
council, and according to laws made with the advice and consent of the council and
assembly. * * * * * He is further authorised, with the consent of the council, as
soon as the situation and circumstances of the province will admit of it, to call general
assemblies of the freeholders and planters, in such manner as in his discretion he should
think fit, or according to such other further instructions as he should receive under
your Majesty’s signet or sign manual, or by your Majesty’s order in council. The
persons duly elected by the major part of the freeholders of the respective parishes and
places, before their sitting, -are to take the oaths of allegiance, and supremacy, and the
declaration against transubstantiation.
” * ” ‘
1
See Articles of Capitulation of Montreal, p. 8. 2
See Treaty of Paris, 1763, p. 7-1 ; especially article 4, p. 74. 3
See Proclamation of 1763, p. 119.
i
From Proclamation of 1763, p. 119. 6
See Governor Murray’s Commission, p. 126 ; and Instructions, p. 132.
CONSTITUTIONAL DOCUMENTS 307
SESSIONAL PAPER No. 18
The said governor/council and assembly are to make laws for the public peace,
welfare and good government of the said province, and for the benefit of your Majesty,
not repugnant, but as near as may be to the laws of Great Britain, such laws to be
transmitted in three months to your Majesty, for’disallowance or approbation, and if
disapproved, to cease thenceforward.
The governor is to have a negative voice, and the power of adjourning, proroguing
and dissolving all general assemblies.
* * * * * * * g o m e criminal laws must be put into immediate and constant execution, to preserve the peace of the country. The English were so. They act most
strikingly upon the “minds of .the people, and must be administered without any equitable
qualifications. These are said to be universally received. . In truth, they could neither
be refused nor avoided. > >
* * * T h r e e very different opinions have been entertained. There are those
who think that the law of England, in all its branches, is actually established, and in force
in Quebec. They argue that your Majesty, upon the conquest, had undoubted authority
to establish whatever laws should seem fittest in your royal wisdom : that your Majesty’s
proclamation dated the seventh day of October, 1763, was a repeal of the existing laws,
and an establishment of the English laws in their place, in all parts of the new subjected
countries : that the several commissions to hear and determine.by the laws of England,
were an actual and authoritative execution of those laws ; and that the law, as it prevails
in the province of New York and the other colonies, took its commencement in the same
way, and now stands on the same authority.
If your Majesty should be pleased to adopt this opinion, it seems to afford a full
answer to the whole reference, by exhibiting not only a general plan, but a perfect system
of civil and criminal justice, as perfect as that which prevails in the rest of your
Majesty’s dominions, or at least it leads’ off to questions widely different, touching the
expediency of a general change in the established laws of a colony, and touching the
authority by which it ought to be made.
Others are of opinio» that the Canadian laws remain unrepealed. They argue that
according to the notion of the english law, upon the conquest of a civilized country, the
laws remain in force till the conqueror shall have expressly ordained the contrary.
They understand the right acquired by conquest, to be merely the right of empire, but
not to extend beyond that, to the liberty “and property of individuals, from which they
draw this consequence, that no change ought to be made in the former laws beyond what
shall be fairly thought necessary to establish and secure the sovereignty of the conqueror. This idea they think confirmed by the practice of nations, and _ the most
approved opinions. ” Gum enim omne imperium victis eripitur relinq.m_ tills possunt,
circa res privatœs, et publicas minores sum leges, suique mores, et magistrate hujus
indulgentice pars est, avitce religionis usum metis, nisi persuasis non eripere. Grot.
3. 15.’ 10. ; and if this general title to such moderationisould be doubted, they look upon
it to be a necessary consequence of the capitulation and treaty alluded to before, by
which a large grant was made them of their property and personal liberty, which seem
to draw after them the laws by which they were created, defined and protected, a,nd
which contain all the idea they have of either. This moderated right of war, flowing
from the law of nations and treaties, they think may have some influence upon the
interpretation of the public acts above mentioned. . , .
Though the proclamation of 7th October, 1763, is conceived in very large terms
generally enough to comprehend the settled countries together with the unsettled, yet
the purview of it seems to apply chiefly if not altogether to the unsettled, where the
laws of England obtain a course till otherwise ordered; for it seems to assume and
proceed upon it, as manifest that the laws of England are already m force which could
not be true of any settled country reduced by conquest. I t also recites for its object
that it will greatly contribute to the speedy settling our said new government; and at
any rate, they think it too harsh a conclusion tobe admitted that such an instrument m
the state thereof, not addressed to the Canadians, nor solemnly published among them,
nor taking any notice of their laws, much less repealing them should be h d d e n i t o
abrogate all their former customs and institutions, and establish the english laws m every
18—3—204
sos CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
extent and to every purpose, as it may be thought to do in unsettled countries, which
conclusion, however, they know not how to avoid, but by confining it to those countries
•where no settled form of justice existed before.
If it be true that the laws of England were not introduced into Canada by this
proclamation, they consider the several commissions above mentioned, to hear and determine according to those laws, to be of as little effect as a commission to New York to
hear and determine according to the laws of Canada.
* * * * * * Others, again, have thought that the effect of the above mentioned proclamation, and the acts which followed upon it, was to introduce the criminal
laws of England, and to confirm the civil law of Canada. In this number were two
persons of great authority and esteem ;—Mr. Yorke and Mr. De Grey, then Attorney
and Solicitor General, as I collect from their report of the 14th April, 1766.1
One great
gource, they represent, of the disorder supposed to prevail in Canada, was the claim
taken at the construction put upon your Majesty’s proclamation of 1763, as if it were
your Majesty’s intention, by your Majesty’s judges and officers of that country at once
to abolish all the usages and customs of Canada, with the rough hand of a conqueror,
rather than in the true spirit of a lawful sovereign, and not so much to extend the
protection and benefit of your Majesty’s english laws to your new subjects, by securing
their lives, liberties and «properties, with more certainty than in former times, as to
impose new, unnecessary and arbitrary rules, especially in the titles to lands, and in
the modes of descent, alienation and settlement, which tend to confound and subvert
rights instead of supporting them.
There is not, they observe, a maxim of the common taw more certain, than that a
conquered people retain their ancient customs till the conqueror shall declare new laws.
To change at once, the laws and manners of a settled country, must be attended with
hardships and violence. And, therefore, wise conquerors having provided for the
security of their dominions proceed gently, and indulge their conquered subjects in all
local customs which are in their nature indifferent, and which have been received as
rules of property or have obtained the force of laws. I t is the more material that this
policy should be pursued in Canada, because it is a great and ancient colony, long settled
and much cultivated by french subjects who now inhabit it, to the number of eighty or
one hundred thousand.
* * * * * * j n criminal cases, whether they be capital offences or mis
demeanors, it is highly fitting so far as may be, that the laws of England should be
adopted, in the description and quality of the offence itself ; in the manner of proceed*
ing to charge the party, to bail or detain him, to arraign, try, convict, or condemn him.
The certainty and lenity of the English administration of justice, and the benefits of
this constitution, will be more peculiarly and essentially felt by his Majesty’s Canadian
subjects, in matters of crown law which touch the life, liberty and property of the subjects, than in the conformity of your Majesty’s courts to the english rules in matters of
tenure, or the succession and alienation of real and personal estate. This certainty and
this leniency are the benefits intended by your Majesty’s royal proclamation, so far as
concerns judicature. These are irrevocably granted and ought to be secured to your
Majesty’s Canadian subjects according to your royal word.
I have rather presumed to trouble your Majesty with a copy of their expressions
than any abstract of their opinion ; because, though I subscribe absolutely to the truth
and good sense of their positions, I freely confess myself at a loss to comprehend the
distinction whereby they find the criminal law of England introduced, and the civil
laws of Canada continued, by instruments which seem to establish all the laws of
England, both civil and criminal at the same time, in the same sentence, and by the
same form of words, if they are understood to establish any, or to relate to Quebec.
They seem to proceed much upon the supposed superiority which they justly impute
to the criminal laws of England. I t is very unfit that I should speak of them to your
Majesty without the utmost reverence. But I can conceive that a Canadian, blinded,
¡perhaps, by the prejudices of different habits, may think of them in a different manner,
and even set but small value on that excellent institution the trial by jury ; whereby
1
See Report of Yorke and de Grey, p. 174.
CONSTITUTIONAL DOGUMENTS 309
SESSIONAL PAPER No. 18
the natural equality among men is so admirably preserved, and the lowest subjects of the
state admitted to more than an equal share of the supreme judicial authority. I have
been actually informed that a Canadian gentleman would think himself degraded, and
more hardly used by being submitted for life or limb to the judgment of his tradesmen,
than if he were put to the question and tortured by the king’s authority.
If the difficulties were liquidated and the way more open, I humbly submit to your
Majesty, that some other points should be previously settled, before the forms of mere civil
and criminal justice can be legally conceived. What form of civil government is fittest
to be adopted in that country is doubtless a question of policy and state ; notwithstanding which, it seems no less manifest, that any given form of civil government will take
effect and influence in a thousand ways, upon any scheme to be designated, of civil and
criminal justice.
Religion also, so far as it affects the state and becomes an object of establishment
or toleration, seems to be a matter of policy and state ; and yet it is sufficiently obvious
what a multitude of laws must follow upon any given establishment or< toleration, more or less according to the degrees in which the religion is incorporated with the state. What public revenue is to be established in a new province is, perhap*, a question merely political ; but when decided, it generally draws after it a system of laws peculiar to itself and an appropriated tribunal. The same observation holds, in a certain degree, of the police of a country. Being totally uninformed of your Majesty's royal pleasure touching these important articles, I feel it extremely difficult to state any certain scheme of civil and criminal laws, or any which must not receive deep and material alterations for that which your Majesty shall be pleased to determine on those heads. There are, at the same time, certain principles which seem, in my humble opinion, to claim your Majesty's gracious attention, as the basis of any new laws to be made in Quebec. The Canadians seem to have been strictly entitled by the jus gentiufn, to their property, as they possessed it upon the capitulation and treaty of peace, together with all its qualities and incidents, by tenure or otherwise, and also to their personal liberty ; for both which they were to expect your Majesty's gracious protection. I t seems a necessary consequence that all those laws by which that property was created, defined, and secured must be continued to them. To introduce any other, as Mr. Yorke, and Mr. De Grey emphatically expressed it, tend to confound and subvert rights instead of supporting them. When certain forms of civil justice have long been established, people have had frequent occasions to feel themselves and observe in others the actual coercion of the law in matters of debt and other engagements and dealings, and also in the recompense for all sorts of wrongs. The force of these examples goes still further and stamps an impression on the current opinion of men and puts an actual check on their dealings ; and those who never heard of the examples or the laws which produced them, yet acquire a kind of traditional knowledge of the legal effects and consequences of their transactions, sufficient and withal absolutely necessary for the common affairs of private life. It is easy to imagine what infinite disturbance it would create to introduce new and unknown measures of justice ; doubt and uncertainty in the transaction ; disappointment and loss in consequence. The same kind of observation applies with still greater force against a change of the criminal law, in proportion as the examples are more striking, and the consequences more important. The general consternation which must follow upon the circumstance of being suddenly subjected to a new system of criminal law, cannot soon be appeased oy the looseness or mildness of the code. Prom these observations, I draw it as a consequence that new subjects, acquired by conquest, have a right to expect from the benignity and justice of their conqueror the continuance of all these old laws, and they seem to have no less reason to expect i t from his wisdom. I t must, I think, be the interest of the conqueror to leave his new subjects in the utmost degree of private tranquillity and personal security ; and, m the 310 , CANADIAN ARCHIVES t 6-7 EDWARD VII., A. 1907 fullest persuasion of their reality, without introducing needless occasion of complaint and displeasure, and disrespect for their own" sovereign. He seems, also, to provide better for the public peace and order, by leaving them in the habit of obedience to their accustomed laws than by undertaking the harsher task of compelling a new obedience to laws unheard of before. And if the old system happens to be more perfect than any thing which invention can hope to substitute on the sudden, the scale sinks quite down in its favor. I t should be remembered that the scheme of government and laws for Canada, was conceived by a wise court in a cool moment, untainted with private passion or public prejudice. The principles of humanity and the views of state combined to suggest that plan which might serve to build a flourishing colony upon. The plan was improved, from time to time, by the wisdom and experience of succeeding times, and not left to become obsolete and unfit for the progressive state of the province. Although the foregoing observations should be thought just, as a general idea, yet circumstances may be supposed, under which it would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and strong, as the conquered can set up to their private rights and ancient usages. Hence would follow every change in the form of government which the conqueror should think essentially necessary to establish his sovereign authority and assure the obedience of his subjects. This might possibly produce some alteration in the laws, especially those which .relate to crimes against the state, religion, revenue and other articles of police, and in the form of magistracy. But it would also follow, that such a change should not be made without some such actual and cogent necessity, which real wisdom could not overlook or neglect;—not that ideal necessity which ingenious speculation may always create by possible supposition, remote inference and forced argument—not the necessity of assimilating a conquered country in the article of laws and government to the metropolitan state, or to the-older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several partis of the empire ; unattainable, and, as I think, useless if it could be attained :—not the necessity of stripping from a lawyer's argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws :—not the necessity of gratifying the unprincipled and impracticable expectations of those few among your Majesty's subjects who may accidentally resort thither, and expect to find all the different laws of all the different places from which they come, nor according to my simple judgment, any species of necessity, which I have heard urged for abolishing the laws and government of Canada. The foregoing-thoughts are humbly submitted to your Majesty, as general and abstract propositions, liable to be much altered in the application, by what your Majesty may think fit to resolve upon the matters of policy and state which have appeared to me in some degree previous considerations to any plan for the administration of civil and criminal justice, and upon which I have not presumed to offer any opinion. All which is humbly submitted to your Majesty's royal wisdom. PLAN OF A CODE OP LAWS FOR T H E PROVINCE OP Q U E B E C ; REPORTED BY T H E ADVOCATE-GENERAL, JAMES MARRIOTT, LONDON, MDCCLXXIV. 1 To THE KING'S MOST EXCELLENT MAJESTY. May it please your Majesty, WHEREAS your Majesty was pleased, by your order in council of the 14th of June, 1771, to direct that several reports and papers relative to the laws and courts of judicature of Quebec, and the present defective mode of government in that province, should be referred to your Majesty's advocate, attorney, and solicitor-general to consider the same ; to \ The Report of Advocate^ General James Marriott, though not found among the State Papers, was published in 1774, under the title here given. The latter part of the report, pp. 129-246, is chiefly eon- CONSTITUTIONAL DOCUMENTS 311 SESSIONAL PAPER No. 18 take to our assistance other persons, as we shall think fit, for the purpose of giving informations, and to prepare a general plan of civil and criminal law for the said province :l and by a farther order, dated 31st July, 1772, reciting the former order, your Majesty was pleased to direct, that the advocate, attorney, and solicitor-general should make a separate report thereupon to your Majesty in council, with all convenient speed. In most humble and dutiful obedience to your Majesty's commands, I have the honour to report, that I have perused and considered attentively the papers referred, and have obtained several very useful informations. I t is with the utmost diffidence I now venture to lay before your Majesty in council the result of the reflections which have arisen in my mind upon this subject : perplexed as it is, and so very extensive, both in its matter and in its consequences, to your Majesty, and your government, it would be full of danger to lay down any opinions (not only of what the law is, at large, but what the law ought to be ; which is the great question referred) too positively, in relation to a country so remote from homeland to a people, their laws, and customs, with which your Majesty's subjects here are so little acquainted ; I cannot, therefore, offer these thoughts otherwise than merely problematically, and as in deliberation, with submission to superior wisdom ; and I shall readily accede to any better reasonings which may be set forth in any other report of the law servants of your Majesty, and in which we might unite. I t is observable, that-the several reports hitherto made and referred to us, do not agree in opinion ; but so far as they do not oppose each other in matter of fact, so far we may venture to try tq frame some sort of opinion on the ground of those facts which are laid before us. Notwithstanding that there ever has been, among men of reflection, a great variety of sentiments upon the subject of general legislation, and that such subjects require the life of a Plato or a Montesquieu to discuss, and the experience of ages to confirm them, it seems to be nearly certain, upon the ordinary experience of mankind (an observation very necessary and applicable to the progressive state of Canada) that wants make manners, and that manners make laws, interpret and controul them in every age and in every government : on the other hand, that laws, in a certain degree, can change the manners of a people, is not to be doubted ; because their manners alter with the increase and circulation of property, on which the laws have a visible influence : thatjn a. state of society, where the numbers are few, the wants simple, and the property free from the intricacies of commerce, the laws of that society also are few and simple. The government of a people in such a state represents the government of a private family. It is therefore impossible to form a general code of civil and criminal law for any people, without its being subject to change in the progress of civil society; nor can it be effective without its being adapted to the immediate wants ®f the people, and not inconsistent with the tone of their manners.: but it is clearly the interest of the governing power, for its own preservation, to watch every change of circumstances, to follow expediencies as they arise, and to model its laws according to the position of the subject, and the views of that leading policy which is the wisdom of states, and the spirit of legislation. Father Charlevoix,* in speaking of the administration of justice in Canada, in 1663, bewails the time when arbitrations were no longer decisive, dictated by good sense and the laws of nature ; that it was a singular reflection, and humbhng for mankind, that the precautions which a wise and great prince thought proper to take to banish fraud, and establish justice, by a new code for the colony, were the encrease of the one and the weakening of the other. The truth is, the colony was changed, and the laws followed. « ^ e d ^ i t h religious questions, which are only of incidental significance for the constitutional ^ t o r y of the Province, and is therefore ¿mitted. The foot-notes designated by the signs ^ t ^ , & c are contained m thereport ; those added by the editor are designated bynumerals as us ™L ^ may b « ^ ¿ e r e d from the report, Marriott, had little sympathy with the policy which eventually dom mated the QuebecAct andhis examination before the House of Commons during the debate on that bill w an mter^ting bit of legal fence to avoid revealing his opinions of the measure. See "Cavendish Rebates on the Quebec Bill pp 163-169 and 172-176. James (afterwards Sir James) Marriott was Advocate General frAn 1764 to 1,78, when he was appointed Judge of the High Court of Admiralty, a position which he held till 1798. *Iiib. viii. p. 370, 371. 1 See note 1, p. 296. 312 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 In forming the preliminary propositions, in deliberation, to serve as a basis of a code of laws for the province of Canada, it must be taken for granted, as a first and clear position, that, the great and sudden change of the political and relative circumstances of the country of Canada makes a farther change of its laws absolutely necessary. I t is not an ideal neoessity which I mean, not the hope of attaining any perfection which may exist in speculation only, but it is a necessity in fact. The laws and people of Canada are already changed ; nor can a previous question! be supposed of the* political expediency. After the representations of the board of trade in the strongest terms, the reports of the governor, chief justice, attorney-general1 of the province, and correspondence with the secretary of state, annexed in the papers referred ; and after your Majesty's order in council hath declared the necessity of a new system, by setting forth, that the present mode of government in the province is defective, and commanding your Majesty's law servants to prepare a general code of law for the same, and to call upon all persons we may think fit for information ; such an ample reference precludes all brevity and reserve, and lays your Majesty's law servants, in my conception, under an indispensible obligation, however painful, to enter into every possible consideration upon a large scale, and to bring the whole subject in one prospect before your Majesty, that your Majesty, in your great wisdom, may weigh upon the most extensive informations the grounds of some probable system. This latitude is the more necessary, because, if hasty and ill digested regulations should be adopted, upon any mistaken notions of men and things, the evils already felt by your Majesty's government will increase beyond the power of a remedy. * The, relative positon of the colony in its actual and possible views, being well considered, and all facts being well stated and established, the reasonings will easily follow. To know what Canada wants, it is very proper to consider the relation in which it once stood to France, and the relation in which it now stands with respect to Great Britain. This colony was settled with views of policy and commerce, by a mission of Jesuits only, upon pretence of religion, and supported in opposition to the early claims of the British crown, as it was natural to a military government, upon military principles. On a view of the civil establishment of this colony in its infancy and progress, which appears from a perusal of the French commissions J, nothing can be more simple, or formed with greater latitude than the general and indefinite powers granted to the French officers, to whom it was entrusted. The whole government, in its original state seems to have been left to the influence which military force** has over the bodies, and, which a system Of religion, dazzling in its ceremonies, and operating forcibly on the imagination, has naturally over the minds of men *, whose employments and wants leave little time for reflection. The common law or custom of Paris, was tq be their rule, by the edicb of Lewis XIV. To this general system have been added a number of royal edicts, regulations of the superior council, ordinances of intendants, &c. which form the law peculiar to the province*** ; and although it appears upon the authority of Canadian lawyers, that many parts of the law of the custom of Paris have not at any time been executed in the colony ; yet the state of the colony has been the only reason of it ; and that no cases have yet arisen as objects of those parts of the law of the custom of Paris which have not been executed. fReport of the attorney-general. % Vide Creation du conseil souverain de Quebec, 1663. ** Histoire philosophique et politique des etablissemens et du commerce des Européens dans les deux Indes, torn. vi. p. 142. Tous les colons y dévoient sans exception une obéissance aveugle à une autorité purement militaire. * Ibid. p. 157. La nécessité rendit soldats tous les Canadiens. *** La coutume de Paris modifiée par des combinaisons locales forma le code de ses loix. Ibid. 146. 1 See note 1, 258.. "For Report of Attorney General, see p. 25?. CONSTITUTIONAL DOCUMENTS 313 SESSIONAL PAPER No. 18 In the condición described, the colony of Canada at the peace of Versailles1 [|, was ceded to the crown of Great Britain, absolutely, with no restriction bub such as regarded the preservation of private property, or had a view to certain mode's of religious worship, or rituals, in case they were permitted by the laws of the country, which now became sovereign. One hundred thousand subjects in this ample manner (to use the words of the treaty) transferred from one sort of government to another, totally different in manners, languages, laws, and religion, must necessarily suffer a violent alteration. I t is very observable, that in the XLIId article of the capitulation for Montreal and Canada,2 the demand was, that the Canadiins shall be governed according to the custom of Paris, and the laws and usages established for that country. This is neither granted nor refused, but reserved. The answer is, " they become your Majesty's subjects. The consequence is their laws are liable to be changed. But until the system of laws of the ancient inhabitants should be repealed by the authority of the new sovereign power, their old system was understood by many to be in full force upon them. This is laid down, as a most certain maxim of the common law, by Mr. Yorke and Mr. De Grey, in their report3 ; by which I suppose they meant the law of nations. That doctrine is laid down as the common law by Lord Coke, in Calvin's case. But the common law of England has nothing to do with the question ; it is a matter of the jus gentium, and it depends upon the silence and presumed indulgence of a new sovereign power, as well as upon any acts whereby the sovereign's pleasure is made publicly known. There is no occasion to cite passages of Grotius §, or Puffendorff, or any other German or Dutch writers, to shew their opinion of what is possible for the sovereign power to permit by not abrogating. But much more difficulty occurred (and it was increased by the steps taken by the British government) upon the question, whether the laws, civil and criminal, of the ancient inhabitants, became binding upon the persons and properties of British subjects who came over to settle in Canada after the conquest ? who have been thought to carry out with them, as it has been expressed*by somebody, all the laws of England upon their backs ; and who, in a more particular manner, claimed the benefit of your Majesty's proclamation, so far as it was understood to be binding, as declarative of the general laws of England, and of your Majesty's right in consequence, with the advice of your Majesty's privy-council, to majie laws for any conquered country ceded to the crown, exercised by your Majesty in this instance, in the same analogy as in royal grants or charters, heretofore of any unsettled lands and territories belonging to the crown, acquired by occupancy of the subject ; the conditions of which grants have been the result of the royal pleasure, having regard to the fundamental laws of England. The fact appears to be, that a proclamation has been issued by your Majesty, with t i e advice of your privy-council, so lonj ago as the 7th of October 1763* ; setting forth, that in the interim, until a provincial assembly could be called, all persons inhabiting the said colony may confide in your Majesty's royal protection for the enjoyment of the benefit of the laws of the realm of England ; and for that purpose your Majesty had given power to the governors of the said colony, to erect, with the advice of their councils, courts of judicature and public justice. As the com nission* of the governor of Quebec5 , is almost in every article a direct copy of the commission of the governor of New York in 1754, and of the commissions of the governors of the rest of your Majesty's colonies, modelled doubtless upon those granted upon their first settlement ; so it should seem as if this proclamation had been copied inadvertently, and in the hurry of office, from some former proclamation relative II Article IV. Sa M. tres chrétienne cede et transporte le tout au dit roi, et à la couronne de la Grand6 Bretagne, et cela de la manière et dans la forme la plus ample, sans restriction. § Report of the attorney-general. *Vide printed Collection, p. 93,102, 239, 250. 1 See the Treaty of Paris, 1763, p. 73. 3 See Articles of Capitulation of Montreal, p. 8. 3 See Report of Yorke and de Grey, p. 174. 4 See Proclamation of Oct. 7th, 1763, p. 119. 5 Se e Commission of Governor Murray, p. 126. 314 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 to Nova Scotia, or some other unsettled British colony, inviting persons to emigrate thither from the mother-country ; and that the reflection never entered the thoughts of the drawers up of this proclamation, that Canada was a conquered province, full of inhabitants, and already in the possession of a legal establishment.1 In consequence of this proclamation and commission, courts of judicature were set up, and the judges were directed to follow the laws and customs of England.2 In a reportf made April 1766, by the then attorney and solicitor-general, Mr. Yorke and Mr. De Grey,s it was laboured, that this proclamation was only meant to be unproductive of select parts of the laws of England, and not of the whole body of laivs ; and that the criminal laws of England, and of personal wrongs, were almost the only laws that came under the description of the words enjoyment of the benefit of the laws of England ; and that the laws of England relative to descent, alienation, settlement, and incumbrances of lands, and the distribution of personal property in cases of intestacy, and all the beneficial incidents to real estate, in possession or expectancy, were not comprehended under the proclamation. The proclamation issued upon the 7th of October 176-3. The .commission of the governor was subsequent to the proclamatiQn ; the bill not being signed by the attorneygeneral for the commission by letters patent till 22d of October ; and on the 14th November 1763, the privy-council made an order for interlineations of some necessary words.4 Indeed I am disposed to think, that the proclamation, singjy considered, and of itself, without other acts of government which followed it, did not introduce absolutely the law of England, in the whole of its system, by general words ; because it might possibly bear some sort of distinction, as taken above, between cases civil and criminal : and it might also bear the distinction of new, and the^ old subjects, who were the emigrants from home ; the former, as governable by their own ancient usages ; the latter, as bearing the privileges of Englishmen-upon their backs. I t might be said, the proclamation was meant for the new settlers, and for the new grantees, and related to the yet unoccupied lands of the province, and extended no farther. But these distinctions were under a farther difficulty from other acts of government : the actual establishment of the courts of justice, of the king's bench, and common-pleas, with commissions and titles similar to those of the judges and courts of Westminster Hall, and with express instructions to follow the English laws and customs, did of necessity, and ipso facto, introduce all the modes of judicial proceeding according to the laws of England ; although with this modification, so far as they could be put in practice under such circumstances ; and did also strongly tend to introduce gradually the whole system of English laws, and did occasion a strong presumption in the minds of all men, that it was then actually introduced, or meant to be introduced as soon as possible. The two ordinances of the 17thof September 176a5 , and of 6th of November 17 64,6 transmitted home to the king in council, and never disallowed, are very strong in favour of this idea, although the first contains some saving clauses, viz. that the judges in the court of common-pleas are to determine agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and present situation of things will admit, until such time as proper ordinances for the information of the people can be eitablished by the governor and council, agreeable to the laxvs of England. That tenures in respect to grants prior to the cession by treaty, and the rights of inheritance as practised before that period, shall remain the same till the \Qth August 1765, unless altered by some declared and positive law, with a salvo of his majesty's rights. The consequence after the f Vide Inelosure, p. 166. " "• That this is a mistaken supposition with .reference to the conditions which lea up to the Proclamation of 1763, will be evident from a consideration of the "Papers Relating to the Establishment of Civil Government in the Territories* ceded to Britain by the Treaty of 1763." See pp. 93-119, 2 Referring to the Ordinance of Sept. 17th, 1764 ; see p. 149. á See Report of Yorke and de Grey, p. 174. 4 See pp. 125 & 126. 5 See p. 149. 6 See p. 166. OOTÜSTITVTÍOÑAL DOCUMENTS 315 SESSIONAL PAPER No. 18 expiration of this date is obvious, that the rights of inheritance and tenures would be changed to the laws of England, so far as this ordinance and declaration could legally change them. With respect to the chief justice, as a judge of appeal, the difficulty put upon him by his commission,1 to decide by the laws of England, was very great; and it could only be avoided by his considering himself as a judge in the second instance, to examine the decisions of the inferior court, by the same rules as they formed their judgments ; agreeably to the latitude expressed. It is to be observed, that the chief justice of the king's bench has nô authority in his commission to act as a judge of appeal, but he derives it only from the ordinance of the governor, of the 17th September 1764. I t is observable, that the governor is limited to the instructions annexed to his commission, and to such as shall be hereafter given him under your Majesty's signet and sign manual, orhy order of council, and conformable to such reasonable laws and statutes as shall be made and agreed upon by him, with the advice and consent of the said Qouncil and assembly. The form of French government (say the lords commissioners of trade, in their report to the committee of council, July 10th, 1769*),- though not entirely abolished by those royal declarations, was thus in many parts materially altered, and made to correspond with that form of government which has been established in your Majesty's other American dominions. The restrictions in the commission arising from the test act oj the ¡85th Charles lid, prevented the measure of an assembly being executed in a colony where all the principal old inhabitants were of the Romish religion. Many constitutional services were unprovidqjl for in the commission and instructions ; and what is worst of all, it has since been found necessary that several ordinances, in matters of local regulations, and internal oeconomy, made by the governor and council, should be disallowed by your Majesty ; upon this consideration (as the board of trade state it), that they were made without a due authority to enact them. The effect which the taking of this ground of a want of due authority, must have upon the opinion of the inhabitants, and their respect for government, and the question of legality, with respect to every other ordinance of the same sort, is but too obvious. A grand jury in Quebec,3 with more zeal in the object, than judgment in pursuing the means, present the incapacitation of the Romish religion ; to prevent jurors of that religion being impanelled in cases of life and death ; and to controul the measures taken by the governor, general Murray, in consequence of the legislative powers lodged together in a military person and his council, and which produced the dissatisfactory ordinance of 17th September 1763 ; great part of which has been repealed by another ordinance,4 as well as many other local regulations which have been disallowed by your Majesty in council. The confusion which existed under these circumstances does exist to this moment. But the whole confusion results not only from the new legal arrangements, but it seems to be originally existing as the natural effects of a conquest—The confusion is complained of more easily than it can be remedied. Every new mode is considered as a hardship by the old inhabitants, and so might they equally complain of the conquest. Their minds naturally revert to their ancient usages, and their wishes return to their ancient government. It is no reproach to them ; they must feel as men : and to men every political change which brings an uncertainty of rights, and of the mode of pursuing them, is of necessity painful. I t is stated, that in the courts of common-plea?, the proceedings are drawn up m any form o r style that the parties think proper ; in French or in English, as the attorneys happen to be Canadian or English born subjects ; and commonly m the French language, as the practises are chiefly Canadians; that the old inhabitants'distribute effects of persons deceased in case of intestacy, viz. the share of widow and children, * Vide Inelos.ure, p. 9. 1 See Commission of Chief Justice Hey, p. 190. , * See Report from the Lords Commissioners for Trade & Plantations f ^ T ^ h o f t h e P r ° - vinee of Quebec, p. 263. The portion here quoted will be found on p. 265, last paragraph. s See " Presentments of the Grand Jury of Quebec," p. 153. 4 See Ordinance of July 1st, 1766, p. 172. 316 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 and divide their lands, according to their former French law; that .the new English settlers follow the English rules of the statute law in cases of distribution ; that the old inhabitants contract, convey, and mortgage their landed property, according to their old mode of conveyancing, notwithstanding the ordinance of the 17th September 1764, which makes the French laws, regarding lands, expire after a limited period ; that the new English settlers use the English mode, and the same estates have sometimes passed through the two different modes of transfer. I t is to be conceived in the -latter case, that no great harm can arise if they are but conveyed bona fide. But as the English shall intermarry more and more with the Canadians, some difficulties may arise as to the distribution of the effects of intestates, and the manner of dividing immoveable inheritances, and taking by descent in right of primogeniture, because the laws of France and England differ exceedingly in these particulars-; and the English blood may claim the protection of the laws of England, against the laws of France. But this difficulty may possibly be obviated by the method hereafter proposed. I t is stated by Mr. attorney-general Mazeres, that in the civil proceedings carried on in the new superior court of king's bench, the forms of all actions, the style of the proceedings, the method of trial, the rules of taking evidence, are such as are prescribed by the English law, and are universally known by the Canadians to be so. In the courts of common-pleas, there is much more of the face and language of the French law, for the pleadings are drawn up in any form and style which the parties or their advocates think proper, sometimes in the French, and sometimes in the English language, as the attornies who prepare them happen to be Canadians or Englishmen ; but they are most frequently in the Frenclj language, the business of these courts of common-pleas being chiefly managed by the Canadian procurators or actornies. Justices of peace are not very respectable in the eyes of the Canadians ; sheriffs and bailiffs are also officers very unlike to the military conservators of the peace, and to the executive powers to which the Canadians have been accustomed. The arrest of body in the first instance in civil suits was held at first by the Canadians to be an unnecessary hardship and restraint, and to be inconsistent with their notions of honour, and disgraceful to the person arrested ; the event of the suit in his favour was not thought a sufficient reparation for the insult ; but the French notion's of honour have, it seems, now given way to convenience, and the inhabitants are said to be very ready at using arrests against each other. On the other hand, so much indulgence to the persons of creditors, as is allowed by the English iaws of bankruptcy, is thought by many of the British merchants and others to be ill adapted -to promote and preserve credit in the tender state of the commerce of the province ; and that it is an encouragement of frauds there, (as no doubt it is in England). On the contrary, the English laws of bankruptcy are well received by many of the ancient Canadians, as being agreeable to the spirit of the French laws in cases of déconfiture or insolvency. It is agreed on all hands, in criminal proceedings, that the Canadians do as well as English universally understand the criminal laws of England to be in full /orce ; that no other are ever mentioned or thought of ; and that the Canadians seem to be very well satisfied with them.1 This representation of Mr. attorney-general Mazeres is confirmed by the appendix to the report of the 15th September 1769, made by the governor and chief justice. I t is very full on this head : that in all criminal cases, whether capital offences or misdemeanors, the laws of England have already been adopted, both in the description and quality of the offence, and in' the manner of proceeding, to charge, commit, arraign, try, convict, and condemn the offender. And the certainty and lenity of those laws, and the benefits of this part of the English constitution, are generally known to the Canadians, and high in their estimation. But wbatever the criminal law of England is in the great lines of treason, felony, &c. I conceive it must of course have taken place in the colony of Canada4 ; and that no other system of criminal laws could exist there at any instant of time after the conquest : because this part of distributive and executive justice is so inherent in dominion, or, in other-words, so attached to every crown, and is so much an immediate emanation See JIaseres' Report, more particularly pp. 240-242. CONSTITUTIONAL DOCUMENTS 317 SESSIONAL PAPER No. 18 of every government, that the very instant a people fall under-the protection and dominion of any other state, the criminal, or what is called the crown law of that state, must ipso facto and immediately operate : it cannot be otherwise ; for were it otherwise there ^would be no effective sovereignty on one side, and no dependence on the other. The dominant power can exercise and execute no laws but those which it knows, and in its own name, and with which its servants are conversant : and the subjects can obey none but such as arise out of the new relation in which they stand. The French Canadian lawyers have in general, as I have heard from good authority, the same ideas upon this subject of the criminal law. With respect to the civil laws, there may be a distinction ; because a conquered people may be understood to be governed by their ancient laws touching their civil property, so long as they remain unchanged by any declaration to the contrary of the new sovereign power ; the silence of which may be construed to be a tacit confirmation. And these civil laws may be binding upon such British subjects who adopt them, by going to them of their own free will, and by acquiring property under them ; as if they went to Jersey, Guernsey, Minorca, Scotland, or elsewhere in your Majesty's dominions. But with respect to the criminal laws, I cannot conceive that any native subjects of your Majesty can be tried for life or limb, in any of your Majesty's dominions, by any other laws than the laws of England, either in matter or manner ; or suffer the punishments annexed to such crimes by the laws of Prance, such as the torture to exact confession upon circumstantial evidence, the breaking upon the wheel, the forms of trial by written evidence, personal interrogatories, monitories for voluntary witnesses to appear against the prisoners, and the like. Till there is an absolute surrender, military law must prevail in every country and supersede the common law ; but the moment the new sovereign is in peaceable possession, the merum imperium, or power of the sword, or the haute-justice, as the French civilians call it, to be exercised according to common law, takes place ; and this power must extend to all crimes that concern the peace and dignity of the crown. These are mala in se, crimes in themselves, and universally known in every nation. Those crimes which arise from prohibitions are not known, and therefore they are not governed by penal statutes antecedent to the conquest. The mixturo imperium, of personal wrongs and civil property, must be promulged before the ancient laws are understood to be altered. In these views, your Majesty^ proclamation, declarative of the enjoyment of the laws of England, seems to have been justifiable, and to be rightly understood in regard to all your Majesty's subjects in Canada, without distinction of the places of their birth, so far as it relates to the criminal crown law in the greater crimes, such as treason and felony ; because there the proclamation was meant to convey an actual benefit to the Canadians, by putting an end to both, the military law as well as the French criminal law. With respect to a general assembly, if it had been called agreeably to the proclamation, which recites the discretionary power given to the governor by his commission to call one (as soon as the circumstances of the colony will permit, as in the other British colonies), this measure would have served to have pointed out the spirit and dispositions of the people : but the fact is, an assembly, though summoned and chose for all the parishes but Quebec,1 by governor Murray, has never sat. And it is now agreed, by governor Carlton, the chief justice, and Mr. attorney-general Mazeres himself, (who had formed a plan of an assembly or legislative council, as a suecedaneum instead of an assembly) that the measure of calling an assembly in the present circumstances is by no means necessary ; that it would be premature, and attended with many great public inconveniencies ; as the people in Canada are in general extremely illiterate, and not yet ripe for so great and sudden a share of liberty and legislative power. Monsieur Lotbiniere * says, that he doubts whether there are more than four or five persons m a parish, in general, who can read. I t is apprehended, therefore, that the calling an assembly would not have remedied or regulated all the causes of complaint, or might 1 MarriottTmust have been either mistaken or misinformed on this point, as there is no evidence of an. assembly having- been elected or called under Murray. 318 CANADIAN AR0HIYE8 6-7 EDWARD VII., A. 1907 even have created new ones. But that it may be the source of factions which have been much experienced in the other colonies, I think is no good general objection, because all assemblies of men naturally fall into disagreements : it is the necessary result of opposite interests, or ideas. Different -perceptions make men appear like different animals one towards another. I conceive that no laws in" the detail can be well formed for any country but by a legislative body upon the spot ; because such a body best knows its own wants, and how to find the means, and how to apply them. The colonies of Georgia and Nova Scotia were long drooping under a military government. The extraordinary improvements of them, from the moment they have been permitted to make laws for themselves, is a conclusive argument of the necessity of some, legislative powers to.be given to a body representative of the whole colony, with limitations : but it is by no means intended to speak decisively for or against the measure of calling an assembly : it may be extremely proper to establish some legislative body, with a reasonable degree of independency, after the outlines of legislation shall have been first drawn by your Majesty, either in your privy council, or in your great council in parliament ; an assembly of some sort may then be useful to carry into execution the details, and to build on the foundations, which shall have been laid out by a superior policy. A legislative and elective council might possibly be the most useful with a power of negative in the governor, provided that the laws,* which are to be passed in such council, should be only provisional, although they should happen to pass without the governor interposing his negative voice ; but not to operate till they have had your Majesty's express confirmation, and even afterwards to be always subject to revocation at your Majesty's pleasure. And I am the more inclined to a legislative council, because it seems to be consistent -with reasons of policy, to preserve the great difference which-already subsists between the people of this country and the rest of your Majesty's colonies : yet, at the same time, it is necessary to make the Canadians forget that they were Frenchmen, and to approximate them more as British Canadians, to a British government by a système mitoyen, or middle system, so as to effect, what the chief justice calls, the happy temperament of new and old laws, to reconcile the engagements of the crown with respect to both sorts of subjects,, and to answer the views of political government ; not in that sort of absolute uniformity of laws, or religion, which exists no where but among the small savage tribes of men, and which is not found even in the most despotic states ; because a perfect uniformity cannot exist without extirpation of the subjects, which in the end must weaken or destroy the sovereign power itself. The great lines of union of Canada to the realm of Great Britain is drawn at present by virtue of the conquest. The assimilation to the government of the latter, in its tribunals, is actually effected ; an assimilation of manners will follow slowly ; but it must necessarily follow as a natural consequence of the conquest. The military spirit of the inhabitants, carried to an excess in the late war, has begun to cease : it is very important for England that it should cease. The cultivation of lands, and attention to commerce (unknown before) are encreasing every day. The back settlements extend themselves ; and the inhabitants of New York and Canada are approaching nearer to each other : some French families who disliked the English proceedings, and many of the first English settlers at Quebec, who were several of them, upon speculation, adventurers from England, Scotland, and Ireland, or factors for considerable merchants in Loudon and elsewhere, have retired from the colony ; .not finding that the advantages of the opening of trade there answered the sanguine expectations of the' earliest comers, who overstocked it, or who found a military government in too great a degree of vigour, for the advantage a*nd security of commerce ; and their place is daily supplied by another sort of men, such as English officers of the army and navy, and actual merchants. A great* * Histoire philosophique, torn. 6. p. 152. Une veine plus sûre encore s'offroit à l'industrie. O'étoit l'exploitation des mines de fer si communes dans ces contrées. La seule qui ait jamais fixé l'attention des Européens est près des Trois-Rivieres. On l'a découverte* à la superficie de la terre. Il n'en est nulle part de plus abondantes, & les meilleures de l'Espagne ne sont pas si douces. TJn maître de forge, arrivé d Europe en 1739, augmenta, perfectionna les travaux dé cette mine jusqu'alors,foibles & mal dirigés. La colonie ne connut plus d'autre fer : on en exporta même quelques essais ; mais la Eranee ne voulut pas voir que ce fer étoit le plus propre à la fabrique de ses armes à feu, le seul qu'il lui fut même avantageux d'employer. Une politique si sage s'accordoit merveilleusement avec le dessein qu'on avoit pris, après bien d'incertitude des former un établissement de Marine en Canada. CONSTITUTIONAL DOCUMENTS 319 SESSIONAL PAPER No. 18 iron foundery has been established1 ; warehouses are built; one house for distilling only has cost five thousand pounds ; and such great purchases of landed property have been made of the native Canadians by Englishmen, that some of the principal seigniories at this day are in the actual possession of the latter. There are about two or three thousand British bom settlers besides the troops. Every year, with the accession of commerce, in the nature of things, must encrease their numbers and consequence, if the laws are well fixed and administered, and a military government, if possible, is avoided or controuled. Por notwithstanding the natural indolence and ignorance of the people and their present poverty, notwithstanding the circumstances of the pretended difficulties attending the navigation of the river Saint Laurence, at all times, from its rocks and shoals, magnified by the inexperience* or policy of the French, and the long time it is frozen, for full six monthsf : yet when we consider the prodigious encrease of population, the exceeding fertility of Montreal, the healthiness of the air, and the vast woods of Canada; capable of supplying naval stores and lumber for the West Indies and for the mother-country. The produce of horned cattle, sheep, horses, hogs, wool, corn, hemp, flax, furs, pot-ash, iron, &c, and the situation of the river St. Laurence, so adapted for the fishery, J and encrease of seamen, objects little pursued by the French government, totally taken up with military operations, it is reasonable to think that all these circumstances will, in course of time, conspire to make Quebec the Petersburgh§ of North America. It appears from very good authority, that the imports from Great Britain in one year, .into this colony, have amounted to two hundred and forty thousand pounds sterling, exclusive of the imports from Scotland, Ireland, the West India islands, and the other American colonies ; and this too, soon aftsr the conquest ; when the complaints and confusion of a military government were at their highest pitch ; a magistrate and merchant, who brought ten thousands into the province, mutilated by the soldiery ; and who burnt their barracks in defiance of an act of parliament, by which they were erected for the relief of the people ; and notwithstanding many other embarrassments arising to trade, from the condition of a people, among whom the laws were administered in a summary way, and by persons without legal ideas. From all the facts stated as above, upon the evidence of informations, of too high authority to be doubted, follow two consequences ; that after certain new regulations have been submitted to with patience by his Majesty's new Canadian subjects, for a space of thirteen years, though with some such complaining as is natural upon a change of masters, the foundation which has been laid for an approximation to the manners and government of the new sovereign country must either continue to be built upon, or otherwise the whole that has been done must be thrown down, and the Canadians must be restored in integrum to all their, ancient laws and usages ; a-manner of proceeding as inconsistent with the progressive state of human affairs, as with the policy of any possible civil government, which cannot revert, but must necessarily take up things, and go on the state of existing circumstances at the time it intervenes ; for it can as little stand still at any given point, as it can decide that the flood of times shall go no further. As men move forward; the laws must move with them, and every constitution of government upon earth, like the shores of the sea from the agitation of the element, is daily losing or gaining something on one side or the other. ^ "~~*The t i d e ^ 7 u ^ s l ¡ ^ ^ o ^ T ^ i e 7 e s T ^ n d frigates of war have gone up as high as Montreal, to the great astonishment of the French, who considered the river above Quebec as only navigable by oared VGSSGIS t ï h e time it is quite free is stated by general Carleton to be in May. . î Pêcherie du loup marine, p. 144. ibid. La pêche de la baleme pouvoit donner une singuhere activité aux colons, & former un nouvel œsaim des navigateurs. Le plan de pêcher de la morue sur les deux rives du fleuve S. Laurent, p. 155. ibid. § Ibid. p. 152, 153. L'extraction de bois des chênes d'une hauteur prodigieuse, & des pins rouges de toutes les grandeurs est facile par le fleuve S. Laurent. & les mnombrables rivieres qu'il reçoit. Ce pays avec quelques soins & du travail pouvoit fournir la France entière des voiles, des cordages, du bray, du gaudron. i Referring to the St. Maurice Forges, near Three Rivers which hadi been / s ' ^ | j * 5 \ ™ / | g - f will be observed that Marriott makes frequent, reference to the 1 ^ t í y ™ u $ J ™ S n < ? i m les deux "Histoire philosophique et politique des établissments et du commerce des Européens dans les deux Indes. ' Paris 1770. m CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 From all which propositions there seem to follow plainly these political consequences ; that after your Majesty's proclamation, commissions, and instructions, and the establishments of courts of justice, and several ordinances which have been issued by. virtue of that proclamation, it would lessen, not only in the minds of the Canadians, but of all Europe, the ideas of the dignity, wisdom, and authority, of your Majesty's government, to undo every thing that has been done : that to restore the colony to its military principles and spirit, would be in consequence to restore it to France. The views of the French cabinet are evident, by the accounts transmitted by governor Carlton of the Canadian born officers who served in the last war, who are in a particular manner cantoned in Touraine *, and supported by the French government, with an increase of pay and all arrears.1 With respect to a military system, nothing can more effectually suppress a rising spirit of commerce, which alone can make the acquisition of Canada of any utility to Great Britain. Commerce grows only to perfection in an open soil, and in an £tir that is free ; it will scarce bear to be regulated : it is like the sensitive plant ; if touched, it shrinks ; but if pressed, it perishes. I chuse rather to speak in this figurative manner, than to enter into the detail of the consequences and instances of military powers, exercised in'this colony at a certain period. It never can be the interest of any government, however despotic, to oppress commerce ; it would be like the wild Indian, who cutí down the tree, to gather the fruit. Hitherto the province f of Canada has been an establishment only expensive and burthensome to the French government. The fur trade was but a small object of attention, in proportion to the political views. The great use of the colony was offensively : as a place of arms, to form the head of a chain of forts, and to harass the British colonies, and, by its position and communication with the lakes quite down to the Mississippi, to command the commerce and force of the whole interior of the vast American continent. A circumstance which varies the political considerations and consequences with respect to the arrangements of Canada very greatly from the case of Minorca, to which it has been improperly compared, as a rule for the government of it : the relative positions are totally different : it might as well be compared to the rock of Gibraltar, or the fort of an African garrison. If Canada should be recovered by France in a future period, by the mere want of wisdom in a British government, and if France or any other power should obtain but a near equality of force at sea, the consequence must prove the conquest of all our American colonies, or perhaps the establishment of a new independent empire, upon a general revolt of all the colonies, of which Canada, by its position, would form the head. But now under proper regulations this country may be productive of the greatest commercial advantages to Great Britain. The West India islands, and the Bast Indies are the graves of its best seamen ; the northern American navigation and its fisheries are the nurseries of them ; and Canada may become the source of an infinite supply to this v nation both of men and of naval stores. I t is an object of great consideration to your Majesty's government, that the returns to Great Britain are all made in raw materials to be manufactured' here ; and that a considerable duty arises on the exports. The views therefore of the British government in respect to the political uses to which it means to make Canada subservient, must direct the spirit of any code of laws, of which it may be judged necessary to form the outlines upon the grounds of probability. The additions must be left to time, to experiment, and expediencies, as they shall arise, and to that Providence which holds the scale of empires. *Vide Col. Carlton's letter to the Marl of Shelburn. Dated Nov. 25, 1767. Inclosure, Appendix, No. 1. p. 67, 68. f Histoire Philosophique, ibid. p. 148. Tous les objets ne produisoient au fix en 1747, qu'un revenue de deux cens soixante mille deux cens livres. Ibid. p. 149. Les despenses annuelles du gouvernment pour le Canada après l'époque de 1749, n'eurent plus de bornes. Les huit premiers mois de l'an 1760 coûtèrent treize millions cinque cens mille livres. Des ces sommes prodigieuses il étoit du à la paix quatre vingt millions. i See Carleton to Shelburne, Nov. 25th, 1767 p. 196. CONSTITUTIONAL DOCUMENTS 321 SESSIONAL PAPER No. 18 But the great question occurs : By what authority shall the laws, necessary for the government of this colony, be established 11t is stated, that doubts have arisen, especially after certain decisions, concerning the legality of the ordinances issued by the governor, with the advice of his council, and without any assembly, as exceeding his commission\\ If the ordinances are not legal, then all that has been done by virtue of them must be a nullity. Some of them have already been disallowed for exceeding the bounds of the commission, which restrains the power of the governor and council in matters touch- . ing life and limb, and imposing duties ; consequently very few allowable ordinances can be made under those terms at any time ; because few ordinances can be enforced without restraints upon the person, or without affecting property by public burthens. If it could be supposed for a moment, that the crown has not a right at all times to make such ordinances in the person of the governor and council, without an assem bly, (as I conceive it has a right, in a conquered country so circumstanced, and at a certain time to make them) yet I should be inclined to think that all the ordinances hitherto made, and not disallowed, are legal ; or that such ordinances might have had, at least pro tempore, a validity within the province, until there shall be an alteration made by some act of the whole united legislature of Great Britain, or at least by order of your Majesty in council, disallowing them. Until such act or order, the case may be conceived to be the same (the governor being the representative of your Majesty by virtue of his commission) as if your Majesty, at the head of your army in the field, were granting capitulations, or giving orders how to dispose of the new subjects de bene esse, for the preservation of their persons and properties, for the good of the state, which is now interested in them, and for maintaining the peace and permanency of the acquisition : all which I conceive to be powers necessarily inherent in your Majesty's crown. The mode of making laws for the colony of Quebec, and carrying them into execution, is a subject upon which many persons may differ. The highest wisdom only can determine whether it is necessary to have the sanction of parliament for a code of laws, which your Majesty of right may give to this colony in some other way. But I humbly apprehend, that an act of parliament may possibly serve the most effectually to justify your Majesty's servants, and to fill the minds of the Canadians with greater confidence : it may declare the powers which are inherent in the crown ; and by so doing, it may support instead of diminishing them. There is a point which deserves the consideration of your Majesty's servants most versed in the common law of the realm, whether if your Majesty has by your proclamation, commissions and instructions, and the several acts done in consequence thereof, given to this conquered country any part of the law of England ; that law, once so introduced, be it more or less, can be repealed by your Majesty's authority alone and without the concurrence of parliament, upon the civil law maxim, cujus est condere ejus est abrogare ? I t is also to be observed, that general Murray is said, upon good authority, to have actually executed his commission with respect to convening an assembly ; that the members were actually chose, except at Quebec.2 So that the expectations of the Canadians have been raised, and, in their ideas, the honour of government pledged to them for a legislative body of their own. In case an assembly shall be hereafter called,* in consequence of an act of parliament, it will effectually take away from a Canadian assembly all ground for that pretence, set up by some assemblies m other colonies, of being independent of a British parliament. If assemblies should be adopted, I cannot omit taking notice of an error in the report and propositions of the board of trade of the 10th July, 1769, page 17.3 They propose to admit a number of the new subjects into the council. They would enlarge it from twelve members to fifteen ; five to be Boman catholic subjects, to be exempted Í Thtretoencef torito Maseru "Collection of Several Commission,, and other Public Instruments, &c."pif 2 5 1 96? The first reference is to Maseres'" Draught of an Intended Keport &c. See p. 243. The second is "to Governor Murray's Commission. See above p. 128. " l e t Rerort from the Lords Commissioners "for Trade and Plantations relative to the State of the Provece of Quebec ; July 10th, 1769, p. 267. •18—3—21 322 CANADIAN ABOBIYES 6-7 EDWARD VII., A. 1907 from subscribing the declaration against transubstantiation, as now required by the commission and instructions. But it seems to be forgot, that the oaths against the power of the pope, and in support of your Majesty's supremacy, required by the statutes, will exclude the Roman catholics. Also the manner of wording the plan of an as>
sembly, p. 18 and 19, meant, as it is said there, to correspond with the plan of the council, makes the twenty-seven members all liable to the oaths of allegiance, supremacy,
and abjuration, by proposing that they shall not be obliged to take any other. The consequence follows, they are then to take these oaths ; and fourteen are afterwards re- ,
quired to subscribe the test. Now can a Roman catholic, agreeably to the statute of i
– George I. chap. 13, take the oaths which are required to be taken, agreeably to the
commission, by the governor and members of the council, assembly, &c. viz. That no
foreign prelate or person hath, or ought to have, any jurisdiction, power, superiority, preeminence, or authority, ecclesiastical or spiritual, within this realm ? So that this
proposition of the board of trade, plainly appears to be inconsistent with its own views
in p. 20, that the assembly should consist of twenty seven, all indiscriminately to take the
oaths of allegiance, supremacy, and abjuration ; that fourteen will be protestants, viz. who
shall take the test act : and the thirteen who take the oaths of allegiance, supremacy, and
abjuration, to be probably, as the plan supposes, Soman catholics. But the oath of
supremacy renders the latter, in my opinion, impossible. The pope can hardly dispense
with the test of the sacrament ; but he cannot in common sense dispense with oaths,
and declarations, and subscriptions, against his own supremacy, as claiming to be sovereign pontiff of the whole Christian world, and, in the power of the triple crown, to
bind and absolve all persons and things in heaven above, on the earth beneath, and in
the state of the dead below:
As it is “stated by the board of trade p. 10. The test is to be subscribed by all persons having places of trust, and so required by your Majesty’s commission to the governor,”1
By the test act the sacrament is to be taken by them within the realm of England.
Although Canada is united to the crown of Great Britain, and consequently to the
realm, by the terms of cession, yet I understand that the salvo among the Canadians
for the oath’ of supremacy is, within this realm ? Canada is not this realm, in the view
of the statute. ,
After all, if it should not be thought proper for your Majesty to give fresh instructions, from time to time, to your governor of the province of Quebec, to publish fresh
ordinances, with the advice and consent of his council ; nor to convene any legislative
council, or provincial assembly, for the purpose of revising or repealing the ordinances
already made, and of making new laws ; but if it should be thought the wisest measure
to lay the state of the province before parliament, then I should conceive that it will be
necessary to propose several bills.
First, viz. A bill for the better regulation of the courts of judicature in the province
of Quebec.
Second, A bill for declaring the common law already in actual use in the said
province
Third, A bill Jor better raising and collecting the public revenue.
“Fourth, A bill for giving leave to his Majesty’s new Soman catholic subjects in the
said colony, to pro-Jess the worship of their religion according to the rites of the Romish
church, as far as the laws of Great Britain permit ; which were in force antecedent to the
definitive treaty of peace, concluded at Paris 10th February 1763; and for the better
maintenance of the clergy of the church of England already established in the said
colony.
With respect to the first, a bill for the better regulation of the courts of judicature
in the province of Quebec, I conceive,^ that the complaint of delays in proceedings of the
courts of justice is now in great measure removed ; for by the last regulation of the
courts of common-pleas, by the ordinance of February*#770, 2
(which repeals a part of
the great ordinance of 17th September 1764) it is directed, that the courts of common-
* This ordinance, which was not in the papers referred, makes the propositions of the solicitor-general
on this head in great measure unnecessary.
1
See p. 265.
2
See Ordinance of Feb. 1st, 1770, p. 280.
CONSTITUTIONAL DOCUMENTS 323
SESSIONAL PAPER No. 18
pleas established with independent jurisdictions at Quebec and Montreal, shall be open
to the suitors throughout the year, excepting three weeks at seed-time, a month at harvest,
and a fortnight at Christmas, -and Easter, and except during such vacation as shall be
from time to time’appointed by the judges for making their respective circuits throughout
the province, twice in every year ; and the judges are authorised and directed to issue their
process, and to execute every other thing touching the administration of justice, without
regard to terms or any stated periods of time, as limited and appointed by the ordinance
of September J764; which, with respect thereto, is annulled. The judges to appoint one
day in a week, at their discretion, to hear all matters where the cause of action shall exceed
the sum of twelve pounds, which day should be declared at the rising of the court, or the
next day preceding ; and no adjournment shall be made for any longer time than one week,
upon any pretence or ground whatsoever. Every Friday to be a fixed court-day for matters not exceeding twelve pounds, in which case one judge to be sufficient, the other judge
having reasonable cause of absence. The rest of the ordinance contains the forms and
modes of proceeding, also a clause, empowering persons, specially commissioned by the
governor, to hear causes where the matter in question shall not exceed three pounds ; provided that titles to lands shall not be drawn into question by their proceedings, and that
they observe the same forms of proceeding, and that they do not sit upon a Friday, but
on some other day in every week. I t would be very material to see what sort of commissions the judges of the common-pleas have, for they do not appear in any papers
referred. I understand them to have been created by governor Murray, by virtue of
his discretionary power, upon his own ideas. If they are thought proper to be continued, certain regulations must be adopted, in regard to limiting their jurisdiction to
cases not beyond a certain value.
The expence of the fees of the new courts is easy to be regulated by a table to be
settled by the judges; and if they are now larger than heretofore, it is no more than
that the fees of justice keep pace with the price of other matters, as corn and ali other
things, are more dearly purchased now than they were in the province before the conquest, because there is more commerce, and consequently more specie circulating in it,
which is the representative, or rather the new measure of values ; so that more or less
specie must be put into the opposite scale against ali property in the other, just as it
happens, that more or less specie, real, or nominal, or credited, is introduced into intercourse and commutation. The case must be the same in Canada as it is in every other
country ; and the uncertainty of the laws, and of the judicial proceedings, has had no
small share in increasing the expence of them.
In the report* of the attorney and solicitor-general Yorke,and De Grey,1
theyrecommend that matters exceeding forty shillings, as far as ten pounds, should be determined
by proceeding (in the nature of civil bill in Ireland) before the chief justice of Quebec,
or by proceeding in nature of the summary bench actions at Barbadoes. How far the
ease and cheapness of going to law encourage rather than check litigiousness, is pretty
obvious ; however, the local value of money will deserve consideration at all times, in
respect to the augmentation of established fees. As a check to litigiousness, and for
the promoting quick justice, some method might be found, so as to oblige parties in cases
of debt under a certain value, and in all cases of custom of merchants, and of mercantile accounts, to name arbitrators, and those arbitrators to name a third if they do not
agree ; ana that the award should be certified into the superior court, and made a rule
of it upon record, and so carried into execution by it, in the same manner as if the matter had had the most solemn hearing : for which I cannot refer to a better precedent,
than to the act of 9 and 10 William I I I . c. 15. except that the reference is there left to
the will of the parties, and of course that act is seldom made use of, nor is it very natural
that the practisers should recommend it ; and therefore I propose, that parties, in cases
of certain value, should be obliged to name arbitrators.
As the English judges may not happen to be expert in the Jrench language and
law terms, it may be adviseabletogive to laymen, persons of good character and under
* Art. vi. No. 8. of the Appendix to the report of the lords commissioners of trade and plantations
relative to the state and eonditon of the province.
‘ See p. 174.
18—3—2H
324 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
standing among the ancient inhabitants of Canada, commissions to be assessors, but not
to have voices.
Whether grand juries, or petty juries, shall be laid aside ; or whether in criminal ;
or civil causes only ; or whether verdicts shall be an open majority, 6r whether all verdicts shall be special in civil cases, (as the latter is proposed in the plan in the printed
collection of Mr. attorney-general Mazeres) are questions of which I am not able to
form a perfect judgment, as being partly out of the line of my profession ; but it merits
a particular consideration, how far it may be adviseable and safe for your Majesty’s
ministers to propose any thing to parliament that greatly deviates from the general fundamental parts of the constitution at home, and which, for a long time, have already
taken place in the colony,- in consequence of your Majesty’s royal word and authority.
The justification of your Majesty’s judges, the removing them from every suspicion of
partiality, and from the danger of personal revenge, is also a matter of the highest
consequence towards themselves, their country, your Majesty, and before God. The
peril of discretionary powers, is sufficiently pointed out by that great judge lord Hale,
in his History of the Pleas of the Crown, page. 160, 161, 211, and it merits the greatest
attention from those persons who are called upon to propose a legislative system.
After the evidence of the governor, chief justice, and attorney-general of the
province, that juries in criminal causes are agreeable to all the Canadians, any imaginations formed to the contrary, with respect to the Canadian lords of manors or noblesse,
cannot be admitted. The state of the noblesse in the province will be more particularly
explained, when I come to speak of the convents, under the head of religion ; I will only
observe, in the case of trial of a seigneur, that other Canadian seigneurs would probably
be some of the jurors, and that if any of his tradesmen were of the jury, they would
have an interest in preserving the life of the criminal ; as mercantile interests have often
supported the worst members in a factious state, both in ancient and modern history, to
avoid a probability of losing their debts. But the seigneurs or noblesse by virtue of
their fiefs, and the officers and nobles by patent, who have served in the French troops,
are, the one too inconsequential, and the other too miserable, in point of property, to
merit any distinction by trials, or in the nature of the punishment : to compare them to
British peers would be to form an argument of ridicule and not of reason.
As it appears that the Canadians have had so great an objection to arrests being
dishonourable, and as arrests create so much misery in a whole family, who become a burthen
upon the public, as they prevent every exertion of industry, and render the morals of the
prisoner much worse, by confining him in company with the most abandoned criminals, it
seems to me that in a commercial state it may be proper to take away arrests of body in
the first instance, in civil causes under ten pounds; unless there is an oath of two sufficient
witnesses, that the defendant is likely to withdraw himself out of the colony. To arrest
an industrious man, when personal labour is of such value to the community, is a public
loss, as well as a private one to the person who arrests : it is putting fetters upon that
industry, the exertion of which only could discharge the debt.
If arrests should be allowed, it seems highly necessary that imprisonments should
be regulated. I t would be happy if they were so in every part of your Majesty’s dominions. The security and reformation of prisoners should be the objects of the legislature in depriving a subject for any time of his liberty : his life, and health, and moráis
are of public consequence. The police in Holland, where every prisoner has a separate
cell or apartment, is deserving of imitation; neither their minds nor bodies become
there liable to the worst contagions ; and a released prisoner returns back to society a
better and more useful subject than when he entered his celt
The terms of the ordinancs of the 1st February, 1770, appear to me insufficient, in
not directing that the sale of all estates in land taken in execution shall be made by
public auction ; nor does it regulate the other conditions of sale, nor the place where
the auction shall be : all which being left to the discretion of the provost-marshal, as I
conceive it, may be extremely injurious to the proprietor ; and furnish persons with
means of procuring the estates at a price greatly inferior to their true value. The
ordinance only settles the manner of giving notice, the time of sale, and the fees for the
publication.
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SESSIONAL PAPER No. 18
I t may be proper to allow all pleadings to be in French or English in all the courts
at the option of the parties indiscriminately. I t should be known in such a country,
that parties may plead for themselves : it would be proper to confirm expressedly so
much of the process verbal, or rules of practice, in the French courts of the colony of
the 7th November, 1668, article 6, as relates to this point ; because this public confirmation will obviate the complaint among the Canadians, of the expence of suits, and it will
please the inhabitants, without hurting the practitioners ; for if the parties can find an
abler hand, or can pay him, certainly they will pay him to plead for them : if they cannot, it is but justice they should be permitted to tell their own story, and in their own
way.-
I am professionally convinced of the absurdity and confusion which is ever occasioned when the style and forms of one system of law, or even of one court in the same
system, is applied to the practice of another : the measure of proceedings being inconsistent with the nature of the principles, or the business in question, is in many instances
so unequal, that to judge of the law of one country by the rules of process of another i^,
besides doing injustice under an appearance of doing better, a thing as full of absurdity
and ridiculousness, as if a taylor were to take a measure of a man’s coat by a ship’s
quadrant. The forms and style of English writs and pleadings ill agree with the language of the French civil law : it deserves to be considered, how far it may be necessary
to follow many other parts of the French process, if the French law in civil property is
to remain as the common law of the province. I conceive this must be left to the
knowledge, discretion, and experience of the judges ; who will have the aid of the bar
and the Canadian practitioners : and it may be enacted that no judgment* shall be
arrested merely for want of form in civil suits. The fact, the demand, and the defence
are easily reducible to simple propositions. • But in criminal oases, as all the law of
England on that head actually now is introduced, the forms of indictment, in my opinion,
must be continued, and ought to be as strict as in England ; upon this ground, because
the laws of England being dipt in blood, the advantages given to criminals, by the lenity
of the process, and the power of pardon in the crown, are the only ballance of the peculiar severity which is manifest in the inequality of crimes and punishments. The
English laws in their institution seem to have been made for the terror of a daring
people ; the execution of them, for a generous and compassionate one. I concur in
thinking that there should however be a mitigation of the law of felonies by statute.
That no person in the province should be capitally convicted for theft or robbery under
five pounds, although that is equal to ten in England; and that in all felonies intitled to
clergy, no persons shall be burnt in the hand, or their goods confiscated, bub the punisnment to be a fine or imprisonment, at the discretion of the court.
As the province derives the less advantages from the superior court, although the
most important, and most ably supplied, for want of more frequent sittings, it should be
regulated : and the court of King’s Bench should be held of tner, and in terms as shall
be judged most for the convenience of the inhabitants, besides the circuits. For it is
stated that the court of King’s Bench has sessions only three times a year at Quebec,
and twice at Montreal : whereas in the time of the French government there were three
royal courts, one in each district of Quebec, Trois-Rivieres, and Montreal, vested with
full power civil and criminal : each court had its judge, and a king’s attorney-general
for crown prosecutions. They held two courts in every week, except six weeks vacation
in September and October, and a fortnight at Easter, and the=e courts would even sit on
other days in the week if extraordinary business required it. From these courts there
lay an appeal to the supreme council of the province which sab every week. The expedition and reasonableness of such arrangement for the distribution of justice is infinitely striking. And it appears not to have been without cause that the Canadians have
felt and complained of the difference. To make the sittings of the supreme court of King s
Bench more regular, it cannot be better than to adopt the ordinance for that purpose,
which was recommended by the chief justice himself from the bench to the grand jury
of the province, but which did not pass, because some of the English merchants of that
jury, desirous to delay causes of actions for debt in the then low state of commerciaj
* Vide sollicitor-general’s .Report.
326 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
credit in the province at that time, did not approve so much expedition of judgment ;
and therefore the English part of the jury never acquainted the Canadian part, all of
whom are now sensible of the utility of the ordinance proposed, and regret the loss of it.
Mr. attorney-general Mazeres has printed it, Collection, page 71.1
In the cases of appeals the legal value of money deserves great consideration. If
the plan of three courts, and an appeal to the governor and council, with two of the
judges and King’s attornies of the other courts, is not adopted, then the appeal, in cases
of four hundred pounds value, might be made directly to your Majesty, without any
other intermediate appeal.
I t may be also proper to erect, as proposed in the report of the governor and chief
justice, a court at Detroit, because the settlers there, amounting to about seven thousand
persons, are populating very fast, and extending themselves, as the people of ISTew York
are, towards each other. An objection may be taken to this, that it is not policy to
encourage back settlements : but the question seems to be, not whether the population
of the interior North America should be encouraged in policy ; but the fact is, that
there is, and will be population there ; and that where population is, the dominant
power must regulate the settlers, or they will regulate themselves probably to its prejudice. The interior settlements certainly are a material supply and support, both
of men and provision, to the exterior on that coast, and serve equally to take off the
produce of the mother-country, and to make returns by the medium of the sea-ports ;
but there can be no real distinction as to political good between the inhabitants of the
maritime line and those of the back settlements, for they are much’ connected in view
of national strength and benefit ; as the radii of a circle all meet in the same common
center, and all touch the same extreme boundary.
The great distances of Montreal, one hundred and eighty miles from Quebec, also
of Trois-Rivieres, and Detroit, deserve attention ; and it is an argument sufficient for
forming three courts of King’s Bench, to save to your Majesty’s subjects the great
expence of employing for every person, not only his attorney on the spot, but his agent
at Quebec, besides the fatigue and expence of travelling himself, and bringing up his
witnesses from the extreme boundaries of the province, in a very severe climate. I
approve, however, that it should be in the discretionary * power of your Majesty’s principal attorney-general, to remove any party for safety for a quick and more convenient
trial to Quebec ; but this should be restrained to cases of treason only.
I t is a fact which deserves attention, that for want of a good government since the
conquest, the trade of furs has been but one third of what it was under the French, as
appears by the exports.
To look into the map, the situation of Detroit sufficiently speaks the propriety of
some regulation of justice” there ; and more especially as it is the mart and entrepot of
the fur-trade and the Indian commodities, such a regulation is necessary for the trade,
and for preserving peace and friendship with the Indian nations resorting thither.
When Gaspey shall be settled, a jurisdiction should also be established there ; but
I should apprehend, from observing the situation and form of it in the map, that it
might be very proper to unite it to the province of Nova Scotia.
I should imagine it would be very useful if the judges were to have a power, in
cases were it might be thought necessary, by themselves, to appoint commissioners in
distant parts, with power to summon juries, before whom examinations may be taken,
with proper solemnities, upon the spot, and a verdict transmitted to the supreme court
under seal, whenever a matter of fact, such as concerning boundaries, waste, dilapidations, execution of contracts, damages done, &c. is in dispute.
The taking evidence in private upon affidavits should be disallowed, unless the
parties should consent, or the court should direct them to be taken upon a special cause,
or proper grounds shewed upon motion by council. The injustice of parties being
evidence upon their own cause, and the practice of causes being determined entirely
upon affidavits, is too full of evil not to deserve a peculiar attention, especially if the
party who makes the first affidavit, has not a liberty of a reply to the affidavit in
* Vide solicitor-general’s report.
1
The reference is to Maseres’ Collection of several Commissions, &c. 1772, p. 71.
CONSTITUTIONAL DOCUMENTS 327
SESSIONAL PAPER No. 18
answer ; in the usual practice, as I conceive it to be, equivocation and perjury must
reign in full force.
I t is proposed, by Mr. Mazeres, that in cases of debt to a certain amount (which
ought to be very considerable), an allegation, or plea of faculties or effects, being
delivered by the plaintiff, the defendant should answer upon oath, giving in an exact
schedule of his estate and effects.1
This proposition may be thought peculiarly hard in
many cases : but I conceive the state of the country must determine the propriety or
impropriety of the proposal, and that such schedule and account ought not to be called
for without very special cause, to be determined in the discretion of the judges.
In a country in which there is very little money, but corn and other perishable
effects make the greatest part of the property of the inhabitants, it may be right, in
cases of suits for some special property, of the perishable nature of which a proof is
made, that the whole at the request of any one of the parties should be liable, by an
order of the court, to be sold to the best bidder, by persons to be named and commissioned to sell by both parties ; and that the amount shall be placed in the hands of
the judge and his register, in imitation of the civil law methods in usumjus habentium,
or for the account of the party who shall finally prevail in his suit ; and the amount to
be paid by them into the hands of the receiver of his Majesty’s revenue, for his Majesty’s
use ; and that bills be issued to the said judge and register by such receiver for
the repayment of the said sums, at the interest of three per cent. A measure which
I should conceive would be very useful to create a dependence upon, and strengthen the
hands of government in many views, as well as it would be equitable and advantageous to the respective parties.
I t may be right, that the judges of the several courts in the province, should be
allowed a discretionary power in granting of full costs, and taxing bills.
Instead of one provost-marshal for the whole province, it is proposed, that there
should be a sheriff for each district, with some title or mark of honour to the person
who should bear it.
The two courts of common-pleas, established by general Murray’s ordinance of
17th September 1764, at that time with military men for judges, and priests assessors,
and now having almost all the affairs of the colony brought before them, evidently tend
at all times to lessen the utility and consequence of the supreme court.
Mr. Mazeres recommends2
that the province be divided according to its three
ancient districts of Quebec, Montreal, and Trois-Rivieres ; that there should be three
royal courts, or courts of King’s Bench, in each ; that the judges should have been
barristers’at law, who have been exercent three years at the English bar, a,t least, and
who have a competent knowledge of the Trench language, and three King’s attornies,
and no other courts. These courts to be limited to their respective district ; co-ordinate”
indeed, but not concurrent, as not of equal authority every where, nor as liable to be
controuled by each other : and this measure Mr. Mazeres recommends on a ground
which appears to be very conclusive, that this division is best adapted to the situation of
the several parts of the province, and that the Canadians have been used to it, and
that it is therefore most agreeable as well as convenient*. If this establishment of three
courts were to take place, then it is proposed, in the same plan, that there should
be an appeal to the governor and council of the province, confined to a certain value,
and from thence to your Majesty in your privy council. The reason laid down is, that
the appeal to the governor and council would preserve a uniformity of law throughout
the whole province, and would obviate a difference of decision, which might gradually
grow out of precedents in the three different districts, if the three royal courts, or of
King’s Bench, were to be left perfectly independent, and not to unite in a third superior
court in the province. , . ,
I t is also very well proposed, that the three King’s judges, and three attornies
should be members of the council ex officio, so as to aid the govern» and council up,,
appeals; whereby the best law abilities in the province would be employed in forming
«Printed Colketion, p. 38.
1
See Maseru»’ Draught of Eeport, p. 250.
a Ibid. p. 247.
328 CANADÍAN ARCHIVES
6-7 EDWARD VII., A. 1907
decisions in the last resort, which would be in fact checking any arbitrary proceedings
of a governor, and forming the law of the province. That they should attend the
governor at certain times of the year, most convenient for hearing appeals, which is
thought to be one month at Christmas. To this I must add, in my humble opinion, a
necessary limitation, that the judge from whom the appeal lies, and the King’s attorney
in his court, shall not sit at the hearing of the cause appealed. I t might possibly not
be improper to add the judge of the vice-admiralty, and the advocate-general, to the
number of the members of the council, as before proposed.
That no appeal should lie to the King and council under five hundred pounds, is
thought by some persons a hardship, and that it leaves no check upon the governor and
council in less sums of great value in so poor a colony.
It is proposed by Mr. Mazeresf ,* that no new examinations shall be taken upon
appeals in any causes, but only any error of the proceedings be corrected, and a new
trial of any fact, if good cause is shewn, shall be granted ; and a trial, by a double number of jurymen, if the losing party requires it. That the method of proceeding in the
first instance in civil actions* in the common law court, should be as follows ; the plaint
is to be read to the judge in open court ; . if he determines that there is good cause of
action, summons to issue, but not till then. If the plaint is admitted, it is to be filed
as a record ; if non-appearance of the party, or good cause shown of non-appearance,
then the party summoned to pay costs, at the judgment of the court, upon circumstances, for the delay of suit ; and fresh summons to appear again shall issue ; if neglect
to obey the second summons, judgment to go by default. Answer to the plaint to be
either in French or English, and to be filed. That the judge may interrogate the
parties himself, in order to determine whether farther testimony is necessary. If
either of the parties, on the judge determining that farther testimony and trial is neces-
. sary, chuse to have a jury, the party praying it shall pay the expence of the jury’s
attendance • if both pray to have a jury, both shall pay, If the contest is between a
native born subject and a Canadian, the jury to be de medietate, if either party shall
require it : the jurymen to receive five shillings per man. For at present the Canadians,
as it is stated upon good authority, complain of the attendance upon juries, in civil suits,
as a heavy burthen and interruption of their occupations : though they like well enough
to be tried by juries, they do not like to be the triersj, without some compensation.
That any governor should have it in his power to suspend, supersede, or otherwise
controul, the counsellors or practitioners at the bar, is evidently liable to many objections. In my humble opinion, therefore, it seems necessary to enact, that for the
better regulating all the public courts of justice of the province, the chief justice
shall have the sole power of admitting and licensing all advocates , counsellors, and
pleaders, procurators, attornies, and solicitors, in the several courts of justice in this
province ; with power to make rules for the proper serving or education of such persons,
and to examine them before admission, and to reject them if he shall see cause ; also
to suspend or deprive them of the exercise of their offices, for any neglect, contempt,
delay, or malversation, fraud, or undue proceeding, in his or any other court, when he
shall see cause ; and the governor of the said province shall not interfere in the same in
his public capacity.
It is also a point that merits great attention from government, that the notaries,
who are a very useful and very respectable sort of men, should be continued with their
usual privileges, and have some advantages granted them, and should be allowed to
practise as solicitors and advocates, and even to be assessors.
It would be right that the law officers of the crown should have honourable establishments, so as to raise them high in respect from the inhabitants, and to make them
less dependent upon private business. The salaries, as stated in the Inclosure Appendix,
No. 15, are very mean and unworthy of men of education, abilities, and honour. Those
clients who pay best for time and labour, will certainly be best served. An encrease of
t Printed Collection, p. 38, 39.
* Printed Collection, p. 33.
% Printed Inclosure, p. 38.
1
See Maseres Draught of Report, p. 251.
CONSTITUTIONAL DOCUMENTS 329
SESSIONAL PAPER No. 18
salaries will create an expence : but there may be a false œconomy ; and there is no
doubt of the truth of this proposition, that a small body of men of abilities in the law,
s»nt out and maintained.by the crown in a manner adequate to their rank, and made
independent of every private connection, will answer the views of government, and preserve the peace of the colonies more effectually than ten regiments. What has been the
consequence in the colonies, and elsewhere, of independent men of great abilities in the
law, dissatisfied, with reason or without, and who have gratified their own resentment,
or the views of a party, at the expence of the whole kingdom, I need not to observe,
and shall only refer to that part of the report upon the civil government of the colony
made by Mr. Yorke and Mr. De Grey, which is very strong indeed upon this pointf ; of
the meaness of the law establishment, which has too long remained a dishonour and a
prejudice to your Majesty’s service.
The second head proposed is a bill for declaring the common law of the province.
The Canadian lawyers are, it seems, not entirely agreed how much of the French
system of the custom of Paris§ has actually enured in the province of Canada. The
capitulation for Montreal and the province, article thirty-six, which engages to preserve
to the inhabitants their property, seems to me to stipulate the manner in which that
property is to be held ; of consequence the tenures are to be preserved, and all the laws
relative to that property. For it is not only the thing which we hold, but the manner in
which we hold beneficially, that constitutes our property ; therefore I conceive that
all the lands in Canada, the property of native Canadians, or which have since passed by
descent or by will, are, in virtue of the capitulation, still governed by the law of France,
as to the tenures or modes of holding ; although by the forty-second article of the capitulation granted for Montreal, and the rest of the province of Canada, and by the ninth
article of the treaty of Versailles, the inhabitants become subjects of your Majesty. How
far ydur Majesty’s proclamation, and the commissions and instructions have or have not
superseded this idea, arising out of the terms of the capitulation and treaty, and how far
the case of the new settlers, emigrants from Great Britain, and acquirers of lands by
new titles, as by mortgage, grant or purchase, is capable of a distinction, has been
already observed upon.
I think there is a great distinction between the treaty and capitulation ; for the
treaty, which makes the inhabitants subjects of your Majesty’s crown, confirms to them
their property in no other mode than in a permission to retire, and to sell their estates,
and those restrained to be sold to British subjects.1
So that if they stay and claim under
the treatv only, they stay under condition of becoming, by their own free act, British
subjects ; “and as such subject to British laws. But the treaty made with the sovereign
power of France, which, without taking notice of the capitulation, transfers its subjects
pleno jure, does not supersede the capitulation made with the inhabitants; because I
consider capitulations, in the eye of the law of nations, to be not only as national, but
personal compacts, and made with the inhabitants themselves, for the consideration of
their ceasing their resistance. I t is consistent with the honour and interests of this
kingdom, that they should be religiously observed, and that the condition of the
grantees should be rendered substantially better, rather than worse, so far as any person
or persons are capable of taking benefit of the grant.
At the same time I must observe, that I do not conceive that your Majesty is so
bound in your legislative capacity, that you cannot in parliament change the laws of
succession or heritage, or prevent the keeping up any corporate body ecclesiatical, by
preventing a perpetual renewal by new members, or that’ your Majesty cannot regulate
any other general matter of dividing property real or personal, after the death of the
possessor, in the same manner as your Majesty, in parliament, may change the laws
respecting yoar other British subjects; so that the law be not made to the prejudice
of any particular private person while he lives. Inasmuch, as no man naturally hath
property after death, the community to which it reverts has a right to fix the law of
partition after death, as it shall judge most for the benefit of all its members. The right
+ Vide p. 156, Inolosure of the Board of Trade, Art. 2.
§ Printed Collection.
i See Treaty of Paris, 1763, art. 4, p. 7o.
330 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to dispose by will, or to make a private law for a family, is a privilege granted by the
community ; and restrainable, as the law of Prance restrains it more than that of England,
by excepting the legitime and limiting devises of land in certain degrees, except by deed
by and among parties living.
I t would probably answer every just and reasonable purpose, and would tend perfectly to quiet the minds of your Majesty’s Canadian subjects, if a bill were to pass in
parliament to the following effect. That in all cases of wills, tenures, ancient rents, quitrents, services not being military, divisions of lands, and transfers, hypothecations, or
charges and pledges, or incumbrances of property, moveable and immoveable, and
of hereditary descent, or partition of dower, or distribution in case of intestacy, the legitime, or portion of children and widows, and of all deeds, leases, end contracts, the
ancient laws, customs, and usages of Canada shall be valid ; unless the said customs and
usages shall have been deviated from by any consent of parties by express convention,
or in which the modes of the English law, as in cases of transfer between a Canadian
and English born subject, shall have been followed ; that in all cases where such custom
and usages of Canada are relied upon, either by the party complaining, or the respondent,
such custom and usage shall be specially pleaded. And in order the better to erase
from the minds of the Canadian subjects, their ideas of veneration for the edicts of
their late sovereign, and for the arrets of the tribunals of France, and as much as possible
to make them sensible of their union with, and dependence upon the British government,
it should be enacted, that the French law, known under the denomination of the custom of the viscounty and provostship of Paris, and so much thereof only as hath actually
been practised in the province, shall be pleaded under the title of the oommon law, and
the custom of Canada, as by act of parliament established, and under no other title
whatsoever ; and the abstract of the said custom, as hath been drawn up by a committee
of Canadian gentlemen of the law,1
shall be annexed to the bill to be referred to, as the
sole rule ; observing only the alteration in the articles 99 and 101, as in the advertisement or preamble of the said abstract is set forth ; that lands already granted, or to be
granted by your Majesty, your heirs, or successors, shall be holden in free and common
soccage tenure, and shall pass according to the laws of England : power always reserved
to your Majesty to make grants of lands in airy other mode of tenure, if to your Majesty
it shall seem meet.
The mode of doing fealty and homage for the Canadian seigniories already
established is extremely simple, as appears in the principal extracts of the French laws,
c i. tit. Foi et homage. If it is proper to change it at all, it will be better to form a
record of the title of the tenure in a more solemn manner, by registering the homage.
I t may be proper that the laws of the police hitherto established and» practised,
should be observed and carried into execution by the justices and other peace officers,
and that his Majesty’s governor may, with the consent and advice of his council, at any
time, on the presentment of any two or more house or land-holders, or any one of his
Majesty’s justices of the peace, or law officers, issue such fresh orders of police as he shall
judge necessary, from time to time, for ‘the better maintaining the highways, streets,
biidges, paving, public edifices, wharfs, navigations, for preventing fire, and removing
of annoyances to health, or to the free passage, in places where passage hath been usual ;
provided that such orders be subject to an appeal in cases of property, above the value
of ten pounds, to the chief justice of the said province.
The Canadian inhabitants readily enough embrace the protection of the laws of
England when they find they make for them. There is something very whimsical in the
case of M. St. Ange, which I have seen as stated, upon great authority, and it shows
the motly mixture of French and English laws in the province, and the confusion resulting from the uncertainty of them, and the want of a regular settlement.^ Mr. Grant
purchased the estate of a minor, Mr. St, Ange ; the former a British settler, the latter a
1
The reference is to the abstract of Prench law entitled “An Abstract of those parts of the Custom
of the Viscounty and Provostship of Paris which was Received and Practised in the Province of
Quebec in the time of the French Government. Drawn up by a select Committee of Canadian Gentlemen
well skilled in the laws of Prance and of that Province by the desire of the Hon. Guy Carleton Esq’
Governor in Chief of the said Province, London 1772.” See also note 2 p. 210.
CONSTITUTIONAL DOCUMENTS 331
SESSIONAL PAPER No. 18
Canadian. Mr. Grant never having seen the estate, paid a part of the purchase money,
which was very considerable : upon a view of the estate he found it inferior in value to
his expectations by one half. He was sued for the remainder of the money ; he pleaded
the civil law of France, and insisted that he was intitled to a restitution in integrum,
on proving the true value of the estate to be only one half. The Canadian insisted upon
the laws of England, and a special performance of contracts, on the ground of the rule
of the law vigilantibus non dormientibus sucourrit lex. This cause will probably find
its way to the council at home.
The description given by general Carlton, in his letter to the earl of Shelburne, No.
3. p. 90. 24th December 1767,1
of the confusion of the courts of justice, and the consequence of their proceeding by different rules is very striking : the governor and council,
as a court of equity, reversing the decrees of the supreme court of King’s Bench, which
reverses that of the Common Pleas.
There are a number of edicts, declarations, rules, ordinances and provisions, which
have hitherto been the written law of the colony, and in actual use ; which appear from
the extracts to be so wise and well fitted to the nature of the colony, that although
they cannot now operate by the authority of the French King, yet they seem many
of them very proper to be adopted in the new system of law to be given to the Canadians ;
and therefore it may be right that the substance of those extracts which are proper
should be declared to be a part of the common law of the province of Quebec ; and to be
recited accordingly in this act of parliament, and to be pleaded under it, and not under
any other title than as the act o/ his present Majesty for declaring the common law of the
province?
This article cannot be concluded without taking notice of the act of habeas corpus,
the benefit of which, if extended to this province, may in policy be limited, on account
of the peculiar circumstances of the province, and the natural views of the court of
France in case of a future war. The governor and council may have a power to suspend
the effect of the said act, during the time of any hostilities or declared war, rebellion,
insurrection in arms, or invasion of the province, or any other of the dominions of Great
Britain.
The proposition made by Mr. attorney-general Mazeres, in his printed draught of a
bill for parliament for settling the laws of the province/ deserves a very particular consideration, whether it may be useful (if it is thought proper to deviate at all from the
French laws of Canada respecting civil property) to introduce the mode of distribution, so
equitably settled by the famous act of Charles I I ; the English law of dower; of wills
of personal and real estate (in which latter case, the French by their own law are under
some restraint) ; inheritance in descent, and of coheirs ; with some alterations in the
French and English law more consonant to natural equity with respect to parents in the
right’ time ascending inheriting the lands of children, in default of heirs in the descending line, or of brothers and sisters in the collateral, and less consonant to the feudal
principle ; which restrains that ascent, and which gives, according to the law of England,
the preference to the uncle to inherit the lands of his nephew before the father of that
nephew.
In the preface to the abstract of the laws of police, drawn up by the Canadian
lawyers, great complaint is made of the not observing the arret of the council of state
of 28th April, 1745,4
which forbids the building any house or outhouses with stone or
timber, unless the owners have annexed a French acre and a half in breadth, by thirty
or forty in depth, on pain of a hundred livres as fine, and demolition ; except granaries,
hay lofts and storehouses. I t is represented that the present inhabitants -avail themselves of the laws of England, and croud together, as it is natural; in consequence of
3~See Carleton to Shelburne, Dee. 24th, 1767, p. 201.
2 In Arroendix No I II to Marriott’s report, a list of these is given, «nth the introduction, ” I n
addition to the act proposed, under the head of the Law of the Province, it may be right to consider the
following ordinances made by the governor and council.
3
Referring to Maseres’ “Draught of an Act of Parliament for settling the Laws of the Province of
Quebec.” published 1772.
4
The reference for this ordinance is given in the note on p. 241.
332 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
which many of them live very miserably and idle ; and the lands which are more remote
remain uninhabited and without cultivation. To endeavour to enforce the substance of
this arret, by any act of the British legislature, would be deemed a hardship unnatural
to the freedom of our government, nor would such an act be carried into force : and
therefore, like all other acts unexecuted, which are found to be mere swords in the
scabbard, it would only serve to weaken the high idea the people yet have of the
sovereign authority.
The present allotments of lands are thought, being parcelled out in contiguous
columns of a certain breadth and depth running up from the river St. Laurence, to be
the best calculated partitions possible for the maintenance of each separate family and
for mutual aid and defence ; and therefore the preserving of the indivisibility of these
allotments is an object which is thought to merit the attention of legislature : with this
view Mr. Mazeres proposes, in a printed draught of an act of parliament,1
an alteration
of the laws of inheritance, to take effect at a distant period, so as to hurt no persons now
living, who therefore cannot complain ; which alteration might answer the purpose :
besides, that by the power of making wills or deeds, every man has it in his power to
form another law for himself, and his family, descendants, or devisees, so as to render any
fixed law of inheritance of no effect, if it does not fall in with his own ideas ; by these
means, agreeably to the spirit of human pride, which carries its views beyond’ the grave,
he may unite all the lands he possesses, in one hand, and in a certain line, the first point
of which the testator is delighted to form, and to extend himself into an ideal perpetuity by
succession. The Trench law restrains at present the power of devising by will, byitsalloting
portions called the legitime; the Canadians may defeat the new law of inheritance as proposed, attheir own pleasure, if it were to take place by their wills or marriage contracts. The
modification of introducing thelawofprimogenitureto take placeata certain distant period,
strikes me as very prudent ; because I am fearful that nothing would tend more certainly
to give disgust to a people, however disposed to submission, than an immediate alteration of ancient laws of inheritance, well known among them, and settled by usage
into a kind of holy reverence.
A change of the law of dower, and of all that article of the French law concerning
property between husband and wife in communauté might be rendered useless, if the
proposed change on this head were carried into execution : for altho’ the French law
has its subtilities, and might be amended and simplified by the introduction of the
English law of dower ; yet the fact is, the law of dower is rendered ineffectual in
England, by the creation of trusts, and frequency of marriage settlements : the French
are particularly accustomed to make formal marriage contracts, even when a very small
property is the object of those conventions, and among the lowest people.
I n respect to wills, I approve the amending the English statute of frauds, and
extending the same formalities to personal estates as to land. The proposed article,
that no will shall be valid, which is not executed seven days before the death of the
testator, with several amendments of the statute, will be of very great service, yet not
sufficient, in my opinion, to prevent fraud, which the solemnities of the very forms,
required by the above statute in the case of lands, have rather furnished with tools to
intrench itself instead of defeating it. Nothing can effectually destroy fraud but the
attestation of public persons ; the lodging an authentic copy sealed with a magistrate,
by the testator himself, and the revocation as formal as the making of a will : all which
I think is admirably well answered by confirming the French law, as in the printed
extract, Tit. XIV. Art. I. If the distance of seven days between making the will and
the death of the testator were added, in order to give validity to an act requiring so
much deliberation as a last will, it might be still better, and that even the party should
have appeared at some place of public worship, and according to the Scotch law, at
market, if there is one, in the interval between making his will and before his death.
The English law of distribution of personal estates in case of intestacy, I conceive
to be a very good law, because very clear and very equitable. I t seems unreasonable
that the English settlers should submit to the French law in regard to personal, however they may acquire lands under the French law, now proposed to bo adopted, so as
1
See note 3, p. 331.
CONSTITUTIONAL DOCUMENTS . 333
SESSIONAL PAPER No. 18
to be considered hereafter as the English common and local law of the province. An
uniformity of the law of personal estate would be extremely convenient and useful for
all the inhabitants in a commercial country, and it would prevent great confusion when
Canadian and English families come to be more mixed. As lands are a permanent, but
personal is a floating property, the laws relative to them may well be made different ;
the policy which regards the encouragement of personal industry and commerce on one
hand, and the permanency of landed possession, for the purpose of keeping up degrees
of subordination in the subject, and for the better tillage and military defence of a
kingdom on the other hand, dictates this distinction.
A t the same time I conceive that the French laws of distribution of personal property, in cases of intestacy, and the legitime have a great deal of equity ; yet with
respect to the partage of their lands among all the children, without regard to primogeniture, it is attended with great inconveniencies to themselves. .Nothing reduces the
íamilies of the ancient French seigneurs to misery more than the division and subdivision of their lands by their own law; a law, which though it appears at first to
breathe more the spirit of democracy than of monarchy, yet it is in fact calculated for
a military government only ; because nobles so reduced can and will only live by the
sword*. The allotments to the under tenants in Canada are about eighty acres, jiist
sufficient in that cold country for summer pasture and winter fodder, for the cattle of
one family. I have no objection to any middle system between the French and English
law, better calculated for keeping up a sort of yeomanry or gentry, with estates or
seigniories as now allotted, of about two or three hundred pounds a year when well
cultivated, and Co be indivisible ; provided that it is right to new model the colony all
at once. Probably every year, as more remote from the cotrquest, will lessen the sub
ordination of the people, and may encrease to your Majesty’s government, the difficulties
of any future reformation, of both the law of England, and of France. The propositions
of Mr. Mazeres on this head, the reflection of governor Carlton on the close of his letter,
No. 5.1
(proposing a few companies of Canadian foot and officers) upon the* effects of
division and subdivision of lands in every generation ; the idea of the French government in the arret quoted, but impracticable to execute, and the laws of Normandy, which
agree in part with the propositions of Mr. Mazeres, are reasons in favour of this change.
Whether it may be a measure fit at the present, or at a future time, and by what
authority to be carried into execution, must be submitted to the opinion of those persons
who are best acquainted with the disposition of the inhabitants, and the state of the
colony in the present partitions, and to your Majesty’s royal wisdom, upon the question
of the present expediency. The detriment to the French colonies, as an obstacle to the
clearing and cultivation of more lands, arising from the French law of partition, is so
strongly painted by a French writer2
of great authority and abilities, that his opinion
appears to me to be conclusive : I have therefore given the whole of his opinion in the
margin f.
*T)es lés premiers jours de la colonie, on l’avoit comme étouffée au berceau, en accordant à des officiers
à des gentilhommes un terrein de deux à quatre lieues de front sur un profondeur illimitée. Ces grands
propriétaires hors d’état par la médiocrité de leur fortune et le peu d’aptitude à la culture, de mettre en
valeur de si vastes possessions, furent comme forcés de les distribuer à des soldats on à des cultivateurs, à
charge d’une redevance perpétuelle. C’était introduire en Amérique une image du governement féodal
qui fut long temps la ruine de l’Europe. Histoire Politique, tom. vi. p. 143. •
t Qui le croirait ‘ Une loi qui semble dictée par la nature même, qui se presente au cœur de 1 homme
juste et bon • qui ne laisse d’ abord aucun doute à l’esprit sur la rectitude et son utilité : cette loi cependant
est quelquefois contraire au maintien de nos sociétés : elle arrête les progrès des colonies, les écarte du but
de leur destination ; et de loin elle prepare leur ehûte et leur ruine. ^Qm le croirait? O est 1 égalité de
partage entre les entons ou les cohéritiers. Cette loi si naturelle veut être abolie en Amérique. _
Ce partage fût nécessaire dans la formation des colonies. On avoit a défricher des contrées immense?.
Le pouvoit on sans population? et comment sans propriété fixer dans ces regions éloignées et deserts des
hommes qui les plus part n’avoient quitté leur patrie que faute de propriété. Si le governement leur eut
refusé des terres ces ¿vanturiers en auroient cherche de climat en climat, avec le désespoir de commencer
des éstablissement sans nombre, dont aucun n’aurait pris cette consistance qui les rend utiles a la metrOPMais depuis que les heritages d’abord trop étendus ont été réduits par une suite de successions et de
partages soudivisés, à la juste mesure qui demandent les facilites de la culture; depuis qu ils sont assez
limités pour ne pas rester en friche par le défaut d’une population equivalente a leur étendue, une dtrmon
1
See Carleton to Shelburne, Jan. 20th, 1768, p. 205.
2
Abbé Raynal.
334 CANADIAN ABOHIYMS
6-7 EDWARD VII., A. 1907
There is one more observation which is to be made, before I dismiss the subject
of landed inheritance, that both by the subtilities of the English and of the French
lavs, the commutation of landed property is rendered liable to much delay, difficulty
and litigations on “titles, and prevents its being brought into commerce so much as it
might ; which is a matter of the utmost importance in any commercial country, particularly in a new colony, where credit wants every sort of supply and foundation. The
retrait lignager and féodal makes a part of the French law, whereby the lord or next
heir must be parties consenting to the sale of every estate, and to have a right of lods
and ventes of resuming and pre-emption within a year, which right is a twelfth part
of the purchase-money, and cannot be taken away without injury to the proprietor, the ,
lord having taken a small rent (originally from his under-tenant) with a view to these
fines of alienation to a stranger, which are the great profit of all seignories. So that if
the lord had not this power of resuming, he might be defrauded by a sale for a less
pretended sum than was actually paid. These subtilities introduced however into the
forms, often defeat the lord and the heirs ; because the decisions of the courts of France,
adapting their interpretation of the ancient existing laws to the wants and manners of
the times, endeavour to sap all these obstacles, and to introduce by degrees, and by construction of law, an easy commutation of landed property, necessary in an age of commerce. If, therefore, the mode of tenure is to be changed, as it is proposed, some compensation ought to be given to the lord and heir, as in the case of extinguishing the
heretable jurisdictions in Scotland. The leaving it in the power of a seigneur, at the
age of majority, now made twenty-one by an ordinance, to change his tenure into common
soccage, and descendible by the English or by some more convenient mode of inheritance
adapted to the nature and cultivation of the lands in allotment, is an option to which
no Canadian can have any objection.
Third Article. A bill is proposed for the better raising and collecting his Majesty’s
revenue.
On this subject it may be proper that cases touching the King’s revenue, whether
inward or outward, shall not be tried by juries. The facilities, the certainty and cheapness of collecting, and settling appeals concerning the land-tax in England, are an
admirable example, how easily men may be reconciled to public burthens, if they are
but complimented with the business of levying and judging of them themselves. As the
supporting the province with all the necessary and executive parts of government
depends upon raising an adequate revenue* ; and as interested juries will always suffer
to escape the persons of those who defraud it ; a British parliament, so used as it is to
the modes of the revenue laws in England, may easily be brought to introduce into
Canada, some of the same modes of taxation as in England. If a certain number of the
intérieure de terrems lesferoit rentrer dans leur premier néant. En Europe, un citoyen obscur qui n’a que
quelques arpens de terre, tire souvent un meilleur parti de ce petit fonds, qu’un homme opulent des domaines immenses que le hazard de la naissance ou de la fortune a mis entre ses. mains. En Amérique, la
nature des denrées qui sont d’un grand prix, l’incertitude des récoltes peu variées dans leur espèce, la
quantité d’esclaves, de bestiaux, d’utensiles nécessaires pour une habitation : tout cela suppose des
richesses considerables qu’on n’a pas dans quelques colonies, et que bientôt on n’aura plus ctanb aucune si le
partage des successions continue à morceler, à diviser de plus en plus les terres.
Q’un père en mourant laisse une succession de trente mille livres de rente. Sa succession se partage
également entre trois enfans. Il seront tous ruinés si l’on fait trois habitations : l’un parcequ’on lui
aura fait payer cher les bâtimens, et qu’à proportion il aura moins ^ de nègres et de terres ; les deux
autres parcequ’ils ne pourront pas exploiter leur heritage sans faire bâtir. Ils seront encore tous
ruinés, si l’habitation entière reste à l’un des trois. Dans un pais où la condition du créancier est la
plus mauvaise de toutes les conditions, les biens se sont élevés à une valeur immodérée. Celui
qui restera possesseur de tout sera bien heureux, s’il n’ est obligé de donner en intérêts que le revenu
net de l’habitation. Or comme la premiere loi est celle de vivre, il commencera par vivre et ne pas
payer. Ses dettes s’accumuleront. Bientôt il sera insolvable ; et du désordre qui nâitra de cette
situation, on verra sortir la ruine de tous les cohéritiers. L’abolition de l’égalité des partages est
la seul remede à ce désordre. Histoire Politique, torn. vi. p. 155, 156, 157. The author goes on to prove
that the great load of debts due”both within the French colonies, as well as to the mother country,
which rums all their establishments, is occasioned by the law of partition and subdivision of lands ad
infinitum in successions.
* L’administration des finances ne percevoit au Ganada que quelques foibles^ lods et ventes-. “Une
légère contribution des habitans de Quebec et Montreal pour l’entretien des fortifications de ces places, des
droits, mais trop forts, sur l’entrée, sur la sortie des denrées et des marchandises ; tous ces objets ne_ produisoient au fix en 1747 qu’un revenu de deux cens soixante mille deux cens livres. Histoire Politique,
tom. vi. p. 143.
CONSTITUTIONAL DOCUMENTS 335
SESSIONAL PAPER No; 18
principal land-holders of the Canadian seigneurs were to be appointed, together with hi?
Majesty’s governor and judges, to be commissioners, with the title of tres illustres, or righ
honourable, to hear and determine finally all matters and causes touching the receipt and
collection of all taxes and inland duties raised, or to be raised, fines of seigniories, and other
dues of his Majesty’s seignioral rights (concerning which difficulties have been made)
and revenue of what nature or kind soever, it would, together with a competent salary,
be a flattering circumstance to the Canadian landed gentry who should have these commissions, and would serve effectually to prevent evasions of the revenue laws of any sort,
now or hereafter, on the part of the commercial inhabitants, chiefly English, and who
are the people most tempted to evade them. But this regulation should by no means
extend to take away from the admiralty court its jurisdiction concerning duties and
forfeitures, under the acts of trade j but that the officers of the crown may sue there as
usual, and as they shall judge proper : but with a special clause, that in all cases where,
»by the acts of trade, his Majesty is intitled to any part of the forfeiture, all such causes
shall be carried on, both in the first and second instance, in the name of his Majesty’s
advocate-general, in order to prevent collusive desertion of the cause, or appeal, on one
side, or unjust harrassing of the subject on the other. This will be agreeable to the
practice in England, where all such causes are carried on in the court of Exchequer, in
the name of his Majesty’s attorney-general, by act of parliament.
Under the articles of revenue, the proposition of colonel Carlton, Appendix, No.
12. seems very proper to be established. That all vessels coming up the river shall be
obliged to enter at Quebec, and shall not break bulk at any place before they arrive
there.
The proposed duty upon rum will also deserve the consideration of government ;
and it is understood, that there is already some bill prepared upon this head, and now
under consideration of the board of treasury.
There are very able informations on the subject of duties in this province, in a
private paper of Mr. attorney-general Mazeres.
As it appears that your Majesty’s governors have omitted to require the oaths of
fealty and homage, legal doubts have been started, whether the fines to the crown, upon
the alienation of Jands, and other seignioral rights, are due till such fealty and homage
have been done : it should therefore make a part of the bill touching the revenue, that
all dues heretofore paid to the French king, whether arising out of lands, or under any
other denomination whatsoever, are payable and to be paid to your Majesty, your heirs,
and successors, unless your Majesty shall, of your royal grace and favour, remit the same
for the greater encouragement of your new subjects.
The seigneur-paramount has what is called the quint. To the seigneurs, the fines
are a twelfth part of the real purchase-money bona fide paid ; and if the vendor pays it
immediately, two thirds of a twelfth only are taken, which are equivalent to an eighteenth
of the whole purchase-money. The fluctuation of property has been so great since the
conquest, that the fines of alienation have been very beneficial to the lords, and consequently there must be considerable sums due to your Majesty on the same account.
Fourth article. A bill is proposed for giving leave to your Majesty’s Roman catholic subjects in the said colony, to profess the worship “oj their religion, according to the
rites of the Bornish church, as Jar as the laws of Great Britain permit, which are already
in force, and’antecedent to the definitive treaty of peace, concluded at Paris, 10th February
1763, and for the better maintenance of the clergy of the church of England already
established in the said colony.
The treaty gives the superiority to the laws of England : it understands them all
to be introduced into the colony ipso facto. The treaty stipulates clearly that the laws
shall not be changed in this article with your Majesty’s assent, and by the national
legislation, but shall stand as they did stand, as the law of the realm in being at the
instant of the contracting. ,
I t is then the question, how far the laws of England affect the case of the Romish reli«ion 1 In England very much : if executed ; in the colonies settled by ourselves, no notice
has been taken of it : so some penal laws, in other cases of trading property and revenue,
have been very lightly enforced there formerly, even when the colonies have been
336 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
expressedly mentioned. But if the penalties of the laws are not felt by the professors
of the Romish religion in England, it is by connivance from humanity or policy, not
to weaken or depopulate, that the laws are suspended but not abrogated.
The first thing that strikes upon this head, is an opinion, that the penal statute
laws of England, in relation to religion, do not extend to the other British colonies, and
so it seems to be agreed by many ; and that the Roman catholic worship and profession
of it therefore, sub modo, and in a certain way, may be permitted, or rather connived at
in them, without breach of the fundamental laws of England, under restrictions.
If the exercise of the power of the papal see cannot be permitted in the ancient
colonies of the crown by existing law, it is clear that it cannot be permitted in a new
acquired colony, when the ceded colony is put by the treaty on the ‘same footing with
the ancient colonies, by leaving it to the laws of the realm.
With regard to Canada, in the fourth article of the treaty it is declared, that his
Britannic Majesty shall give the most effectual orders that his new Roman catholic subjects
may profess the worship of their religion, according to the rites of the Romish church, as far
as the laws of Great Britain permit. I state the article in the French language, for the
greater clearness and precision in arguing upon it. Sa Majesté Britannique convient
d’accorder aux habitants de Canada la liberté de la religion catholique, en consequence elle
douera les ordres les plus precis et les plus effectifs pour que ses nouveaux sujets catholiques
puissent professer le culte de leur religion selon le rit de l’Eglise Romaine, en tant que
le permettent les loix de la Grande Bretagne. By these terms it appears, that not the
profession of the doctrines, but the profession of the exercise of external ceremonies is
only stipulated for : and the article is very equivocal, whether that profession is to be
public or private ; for the word profession may ba insisted upon either way : and as for
the degree, the article is en tant que, as Jar as, and in such degree, as the laws of Great
Britain permit at the instant of contracting. Les loix de la Grande Bretagne is a general term, and these words being in the plural number, and the verb permettent in the
present tense, must mean consistently with the general system of laws of Great Britain,
now existing in their totality ; any of which, tacit or written, may operate with regard
to this subject. The treaty considers the toleration as limitable in the degree and
manner of it accordingly.
The makers of the treaty of Versailles, seem to have had in their eye the eleventh
article of the treaty of Utrecht, respecting the cession of Minorca to the crown of
Great Britain. In the capitulation of Minorca, there was no article respecting laws
or religion ; because general Stanhope took possession in the name of the archduke, as
King of Spain. Spondet insuper regia sua Majestas Magnœ Britanniœ sese facturum
ut incolce omnes insulte praefatm tarn ecclesiastici quam seculares bonis suis universis et
honoribus tuto pacatèque fruantur atque religionis Romance catholicce liber usus Us
permittatur, utque ètiam ejusmodi rationes ineantur ad tuendam religionem praedictain
in eadem insula, quœ à gubernatione civili atque a legibus Magnce Britannia} paenitus
abhorrere non videantur. Moreover, her Britannic Majesty engages, that all the inhabitants of the said islan d, as well ecclesiastics as laity, shall enjoy, in quiet and safety, their
properties and honours, and that the free use of the Roman catholic religion shall be
allowed them ; so that measures of such sort shall be entered upon for the protecting the
said religion in the said island, which measures shall not appear to be absolutely inconsistent with the civil government, and the constitution of England. Here the use clearly
relates to the use of ceremonies. The fact is, the inhabitants of Minorca enjoy their
religion, and their church government, which is something more, as effectually as if they
remained under the crown of Spain ; and the course of appeal lies, from the bishop of
Majorca, whp has the ecclesiastical jurisdiction as bishop of Minorca, although a subject
of Spain, to the Pope himself. This suspense of the law of England, with respect to
the people of Minorca, however does not alter it.
Now I conceive that the laws and constitution of this kingdom permit perfect
freedom of the exercise of any religious worship in the colonies, but not all sorts of
doctrines, nor the maintenance of any foreign authority, civil or ecclesiastical, which
doctrines and authority may affect the supremacy of the crown, or safety of your
CONSTITUTIONAL DOCUMENTS 337
SESSIONAL PAPER No. 18
Majesty and the realm : for a very great and necessary distinction, as it appears to me,
must be taken between the profession of the worship of the Komish religion, according
to the rites of it, and its principles of church government. To use the French word,
the culte, or forms of worship or rituals, are totally distinct from some of its doctrines ;
the first can, may, and ought, in my humble opinion, in good policy and justice to be
tolerated ; the second cannot be tolerated.
The twenty-seventh article of the capitulation for the surrender of Montreal, and
the whole province of Canada, which is on the demanding part of the Canadians, best
explains their own meaning and that of the treaty ; the words are, Demanded, that the
free exercise of the Soman catholic religion shall subsist entire, in such manner, that all
the people shall continue to assemble in churches, and to frequent th”, sacraments as heretofore, without being molested in any manner, directly or indirectly} And so far (taking
,this to be the true sense of the treaty demonstrated by those who are to have the
benefit of it, agreeably to their petition) I think a British act of parliament may go in
terms for the toleration of the form of worship, in manner and degree, without breach
of the fundamental laws of the constitution ; and it is a sufficient answer to all the
world, to say, the contracting parties have the stipulation executed in the manner
exactly as demanded, and no other. f
But in a question of this kind, before it can be said that the whole system of the
church of Rome, not only of its ceremonies, but of its doctrines, can be tolerated by
the laws of England, antecedent to the conquest and treaty, which refers back to them,
it must be considered what the system of the Romish church actually is ; not only as
controuled in France by the sovereign and civil power, but as the great political system of
the court of Rome with all its pretensions.
With respect to the ritual, it is calculated for the eyes and the ears of an. ignorant
multitude, and not for the head or the heart, while it is in an unknown tongue. Yet
such as it is, there is no great political consequential evil can follow from this culte, or
mode of worship, being suffered to remain among such a people. I t is innocent enough ;
and it would be cruel as well as unjust, to deprive them of the pleasure and comfort
of religious rites in their accustomed way.
The exercise of the Romish worship being therefore politically fit to be tolerated
in Canada, the question is, is it equally fit to tolerate all the doctrines of the Romish
church, or the ecclesiastical establishments, and powers for the support of the doctrines ?
To this I answer no : and for this plain reason, because the Romish religion itself
(of which the’conduct of France in many instances in history, with respect to conquered
places, affords sufficient example) will neither tolerate nor be tolerated. In some of the
articles of its system, on the presumption of its being the dominant system among the
several states of Europe professing Christianity, it will give no quarter, and therefore it
cannot take it without the destruction of the giver. •
In order to judge politically of the expediency of suffering the Romish religion to
remain an established religion of the state in any part of your Majesty’s dominions, the
Romish religion (I mean its doctrines, not its ceremonies) ought to be perfectly under-
* i See Articles of Capitulation, Montreal, p. 14 & 25.
2
The remainder of this report, as explained in note 1, p. 310, is omitted.
338 CANADIAN ARCHIVES
6-7 EDWARD VI’ A. 1907
CRAMAHÉ TO DARTMOUTH.!
QUEBEC 22a
June 1773.
M Y LOED ! Tour Lordship is pleased to mention in your Dispatch No. á.,2
that the
Civil Constitution and other necessary Arrangements for this Province were under the
Consideration of His Majesty’s Privy Council; I most sincerely wish for the Good-of
the King’s Service, and the Happiness of the People, that Matter may be soon brought
to a final Conclusion—
I t has ever been my Opinion, I own, that the only sure and effectual Method,
of gaining the affections of His Majesty’s Canadian Subjects to His Royal Person and
Government, was, to grant them all possible Freedom and Indulgence in the Exercise
of their Religion, to which they are exceedingly attached, and that any Restraint laid
upon them in Regard to this, would only retard, instead of advancing, a Change of their
Ideas respecting religious Matters ; by Degrees the old Priests drop off, and a few years
will furnish the Province with a Clergy entirely Canadian ; this could not be effected
without some Person here exercising Episcopal Functions, and the Allowance of a
Coadjutor will prevent the Bishop’s being obliged to cross the Seas for Consecration and
holding Personal Communication with those, who may not possess the most friendly
Dispositions for the British Interests—
I am happy in the Approbation my Conduct in regard to the Franciscan Friar has
received, and the manner, in which Your Lordship is pleased to express yourself on the
Occasion, calls for my very sincere and hearty Thanks-3
I have the Honor to be with the greatest Respect
My Lord !
Your Lordship’s
Most Obedient and
Most Humble Servant
H. T. CRAMAHÉ
Earl of Dartmouth *
One of His Majesty’s Principal Secretaries of State.
DARTMOUTH TO CRAMAHÉ.”
WHITEHALL December 1st 1773.
L I E U T – G O V R . C B A M A H É ,
SIE,
Your Dispatches numbered from 4 to 10 inclusive have been receiv’d and laid before
* The King, and I have the Satisfaction to Acquaint you that the Affairs of Canada
& the arrangements necessary for the adjustment of whatever regards the Civil Government of the Colony are now actually under the immediate Consideration of His Majesty’s
Servants, and will probably be settled in a very short Time.
1
Canadian Archives, Q 9,p.51. William Earl of Dartmouth succeeded Lord Hillsborough as Secretary of State for the Colonies in August 1772. According to the official entry, ” The Earl of Hillsborough Resigned the Seals on the 13th Aug* : 1772 and the Earl of Dartmouth Received the Seals the
following Day.” Q 12 A,p.l05. He retained the office till the beginning of 1776. This was the Lord
Dartmouth who formed the famous collection _ of Mss. known as ” The Dartmouth Papers,” in which
many important documents relating to the American colonies, including Canada, are preserved, and from
which several important papers in the present volume are copied.
2
Referring to Dartmouth’s despatch of Dec. 9th. 1772. See Canadian Archives, Q 8,p.220.
s
Referring to Cramahé’s action in the ease of an Irish Eranciscan friar who came to Quebec from
the island of St. Johns (Prince Edward Island) seeking employment which Cramahé refused ; but paid his
passage to Europe. See Cramahé to Dartmouth, Nov. 11th, 1772 ; Q 9,p.4. Also Dartmouth’s approval,
Q 9,p.7.
4
Canadian Archives, Q 9,p.l57.
CONSTITUTIONAL DOCUMENTS 339
SESSIONAL PAPER No. 18
You may be assured that I will not fail in this Consideration to urge the
Justice and Expediency of giving all possible Satisfaction to the new Subjects on
the Head of Religion ; and to endeavour that the Arrangements with regard to that
Important part of their Interests be established on such a Foundation that all Foreign
Jurisdiction be excluded, and that those professing the Religion of the Church of Rome,
may find within the Colony a resource for every thing essential to the free Exercise of
it, in the true Spirit of the Trpaty.
The Limits of the Colony will also in my Judgement make a necessary part of this
very extensive Consideration.
There is no longer any Hope of perfecting that plan of Policy in respect to the
interior Country, which was in Contemplation when the Proclamation of 1763 was issued j 1
many Circumstances with regard to the Inhabitancy of parts of that Country were then
unknown, and there are a Variety of other Considerations that do, at least in my Judge-
*ment, induce a doubt both of the Justice and Propriety of restraining the Colony to the
narrow Limits prescribed in that Proclamation.
His Majesty’s Subjects therefore may with confidence expect that an Attention
will be shewn to their wishes in this respect, and such Attention is more particularly due
to them from the great Candour à Propriety of their Proceedings upon the Application from Governor Tryon for continuing the Line of 45 from Lake Champlain to the
River St. Lawrence.2
The Ordinance providing for the Administration of Justice in Mr. Hey’s absence,3
appears in the general view of it, to be conformable to what was wished on that head,
but I shall avoid ..entering into any particular consideration of it until Mr. Hey’s
Arrival.
I am to presume that nothing was left undone that could be effected to bring
Mo1
‘ Ramsay to that Punishment his atrocious Crime deserved,4
and I lament his Escape
the more from the account I have received from Sir William Johnson of other murthers
committed near Niagara, and particularly of the Murther of Pour Canadian Traders
by some Seneca Indians.
Your Conduct in regard to the Complaints of the Indians of Sault St. Louis and the
Lake of the Two Mountains,5
and your Humanity in assisting them in their Distress, are
very much approved by the King, who wishes that every step may be taken with regard
both to his new Subjects and to the Savages in connection with them, that may have
the effect to attach them more closely to the British Interests.
Mor
. Baby.. one of His Majesty’s new subjects lately arrived here from Canada,
has delivered me a Letter from them, inclosing a Petition to The King on the subject
of their present precarious situation : This Petition has been presented to His Majesty,
1
The reasons for this plan are given in the Report of the Lords of Trade to the King in Council,
Aug. 5th, 1763. See p.110. The same subject was discussed in 1767, with reference to the reasonable
claims of all the American Colonies to the unorganized territory in their rear. See Shelburne to Lords of
Trade Oct. 5th, 1767. Calendar of Home Office Papers, 1766-69,No.568.
2
Referring to the proceedings as recorded in the Minutes of Council at Quebec, with reference to
the proposals received from Governor Tryon of New Y o r k to complete the boundary line. See Minutes
of Council, 8th, F e b and 22nd Feb., 1771; Q 8,p.41 & 46. See also, correspondence and proceedings of
Council; Q 9,pp.91,96 & 106a. The agreement subsequently reached between Sir Henry Moore,
successor to Governor Tryon, and the Commander in Chief of Quebec, fixed the boundary at latitude 45, as
laid down in the Proclamation of 1763, This agreement was ratified by the King in Council.
3 I n a letter to Lt. Governor Cramahé, April 10th, 1773, Da rtmouth enclosed ” a Sign Manual of
His Majesty ” permitting Chief Justice H e y to return to Britain, on account of his health, and indicating that, should he avail himself of the privilege, the Lt.Gov. might pass a temporary ordinance to provide
for the discharge of his duties by a commission. See Q 9,p.l5, also p. 70. This was accomplished by an
ordinance entitled ” A n Ordinance, For establishing a Court of Appeals during ihe absence of the present
Chief Justice, and for Ascertaining the Powers of the Commissioners for Executing the Office of- Chief
Justice.” Q 9,p.lll.
4
Ramsay was accused of the murder of an Indian near Niagara and his trial was appointed for
Sept 1773 • See Q 9 p 34 Cramahé subsequently reports that he was acquitted for lack of evidence and
t h a t his acquittal had’ a bad effect upon the Indian*. H e refers also to the murder^ of Canadians by the
Sénecas : See Q 9, p. 106.
5
The Indians of Sault St. Louis and Lake of Two Mountains complained of the unsettled boundaries
of their reserves, and also of the rum traffic. See Cramahé to Dartmouth. Q 9,p.34.
1 8 — 3 — 2 2 £
340 CANADIAN AROBIJE8
6-7 EDWARD VII., A. 1907
and most graciously received, and i-s ordered by His Majesty to be referred to the Consideration of His Majesty’s Confidential Servants, together with the other Papers relative
to the State of that Colony.
I am &ca
*
DARTMOUTH
MASERES TO DARTMOUTH. 1
INNER TEMPLE.. Jan. 4, 1774.
M Y LORD, I herewith send your Lordship some papers which I have received
within these few days from Quebeck, containing an account of the proceedings of the
principal English inhabitants of the town of Quebeck concerning a petition they have
presented to the Lieutenant-Governour and Council for a General assembly of the freeholders of that province.2
They intend upon the Lieutenant-Governour’s refusal of their
petition, (which they expect,) to present it to his Majesty in Council. They have
accompanied these papers with a civil letter to me, in which they declare they believe
me to have the welfare of that province much at heart ; which is indeed most true. I
have sent your Lordship a copy of that letter f but can assure your Lordship that I have
had no hand (be it a right measure or a wrong one,) in exhorting them to make this
application for an assembly, and did not in the least know that they intended it till I
received these papers. I told Mr. Thomas Walker and Mr. Macaulay, two of the Committee for preparing this petition, when I saw them last Winter in London, that I
thought that a legislative council, consisting only of protestants, and much more
numerous than the present, and made perfectly independent of the Governour, so as to
be neither removeable nor suspendible by him upon any pretence, but only retnoveable by
the king in Council, would be a better instrument of government for that province than
an assembly, for seven or eight years to come, and until the protestant religion and
English manners, laws and affections shall have made a little more progress there, and
especially than an assembly into which any Catholicks should be admitted. But as they
have desired me to communicate this account of their proceedings to your Lordship,
I have therefore sent them to you. I am almost well of the hurt in my leg which I
received on the 10th of November, and which has confined me to my room almost ever since :
and can now go out in a coach or chair, though I cannot walk yet : and therefore am
ready to wait upon your Lordship whenever you may think that my attending you may
be of any service in the business of the province of Quebeck, which I hear is now in
hand. Your Lordship may command any thing that I can do further towards promoting
so good a work.
v I remain, with great respect,
Your Lordship’s most Obedient
and humble servant
FRANCIS MASERES.
(Original)
Endorsed :—To
The Right Honble the Earl of Dartmouth,
in Charles Street, near St. James’s Square.
1
Canadian Archives, Q 10, pp. 8-16. The documents which follow, with such variations as are
noted, are given also in Maseres’ “An Account of the Proceedings of the British, And other Protestant
Inhabitants, of the Province of Quebeck, in North America, In order to obtain An House of Assembly In
that Province.” London ; MDOCLXXV.pp.4-10. This letter to Dartmouth, however, which introduces the account of the proceedings, and which explains Maseres’ own attitude towards the proposal for
an Assembly, is not given in that volume.
2
See the letter from Cramahé to Dartmouth which accompanies these petitions, p.343.
3
See below, p.313.
CONSTITUTIONAL DOCUMENTS ‘ 341
SESSIONAL PAPER No. 18
At a meeting of the British Inhabitants of the province of Quebec at the house
of Miles Prenties Innholder in the upper Town—Quebec 30th October 1773—being
Sa turday.
Mr. John McCord on holding up hands was chosen president.
The first question, Whether it is not expedient to petition for a house of Assembly.
Answer—Yeas 38—to 3 nays.
Resolved That a Committee of eleven be appointed and that seven of said number
may be esteemed a full Committee (in case any of the Gentlemen named should be sick
or out of Town) to draw up a Petition and lay it before another general meeting. And
the following Gentlemen were accordingly regularly voted to form the said. Committee
viz—
William Grant Jenkin Williams
John Wells Thomas Walker
* ‘ Charles Grant John Lees
Malcolm Fraser Zachary Macaulay
Anthony Yialars John McCord
Peter Fargues
The Committee then appointed to meet at Mr. Prenties’s on Tuesday next at four
o’Clock in the afternoon.
Malcolm Fraser was chosen Secretary to the Committee.
Resolved That a Copy of these Minutes be sent by the Committee to the Gentlemen
of Montreal.
2 Nov1
1773 At Prenties’s
A Majority of the Committee having accordingly met vizt.
Thomas Walker William Grant
Charles Grant Jenkin Williams
John Lees Zachary Macaulay
John McCord Malcolm Fraser
The Committee judging it to be regular first to present a Petition to the Lieut.
Governor in Council and not in the first Instance to the King have Resolved That a
Petition be addressed and presented to the Lieut. Governor in Council and a Draft of
such Petition having been accordingly framed—
I t was further resolved That it be translated into French and that some of the
principal French Inhabitants be requested to meet the Committee at four o’Clock on
Thursday Evening next at Prenties’s.
Resolved that a Copy of the above proceedings with a Copy of the Petition above
” mentioned be transmitted < o Montreal by next post and addressed to Mr. Gray to be communicated to the Inhabitants of Montreal Copy of a Letter of Invitation sent to the Canadian Gentlemen dated 2 Nov' 1773.1 Messieurs—Les Affaires et la Situation actuelle de La Province ayant besoin que ses habitans y portent quelque attention Et nous sousignés ayant été nommés par une nombreuse assemblée des anciens sujets de sa Majesté, comme un corps de Committé pour faire quelque chose a cet égard—Nous vous invitons de nous rencontrer au Taverne de Prenties Jeudi a quatre heures après midi afin de vous communiquer nos idees et de scavoir les vôtres sur des matières qui nous intéressent également. Nous avons l'honneur d'etre &c N.B. This Letter was signed by the whole eleven members of the Committee and addressed To Messieurs De La Naudiere—De Rigauville, De Lery, Cugnet—Perault— Duchenay, Decheneaux—Tacherau—Compte du près—Fremont—Perras—Marcoux— Berthelot & Dufau of Quebec and to Monsr Tonnanoourt of Trois Rivieres then at Quebec. ~i~In the mss «¡pyTliis letter if, placed after the entry of Nov. 8th, but in Maseres' " A n Account of the Proceedings " &a. it is placed in the chronological order which is here adopted. 342 CANADIAN ABOEITES 6-7 EDWARD VII., A. 1907 • 4 Nov1 1773 At Prenties's The following members of the Committee haying met Vizt. Jenkin Williams William Grant Charles Grant John McCord John Lees Malcolm Eraser Zachary Macaulay Thomas Walker John Wells And the following French Gentlemen having attended this meeting in consequence of the Invitation sent them viz. Monsieur Decheneaux Monsr. Tonnancourt - — Marcoux „ Perras Cugnet Berthelot Perrault ' Compte du prés Mr. William Grant was chosen Chairman of the Committee, and a Translation into French of the Petition intended to be presented tQ the Lieut Governor being read, The Opinion of the French Gentlemen present was required as to the measure under consideration and after some conversation on the Subject The Question being put— Whether they think it necessary (from what has been debated) to conveen their fellow Citizens. I t was unanimously voted in the affirmative Mr. Decheneaux & Mr. Perras have undertaken to conveen the new Subjects at two o'Olook on Saturday next The Committee to meet on Monday next at Prenties's at six o'Clock in the Evening 8'Nov\1773. The following Gentlemen met at Prenties's Mr. Williams Mr. Walker Mr. Wm Grant Mr. McCord Mr. Lees Mr. Wells Mr. Fraser I t was resolved to write a Letter to Mr. Decheneaux to beg he would let the Committee know if the New Subjects had taken any measures in consequence of what was communicated to them at last meeting? and what these measures were. But Mr. Dechenaux being out of Town the Letter was sent to Mr. Perras who returned the Answer annexed. Resolved that a Letter be sent by the Committee to Francis Maseres Esq1 inclosing the above Minutes with a Draft of the Petition.— The Committee to meet when Summoned by the Secretary as the business will depend on the Letters to be received from Montreal.— Copy of the letter wrote to Mr. Perras 8 th Nov' 1773. Monsr Les Messieurs du Committé assemblé chez Prenties vous prie d'avoir la bonté de les informer si les nouveaux sujets ont pris quelques mesures sur ce que vous a ete communiqué Jeudi dernier et si vous pouvez leurs faire part de .Resolutions prises par vos concitoyens vous obligerez beaucoup ces Messieurs—On attend L'honneur de votre réponse par le porteur et J'ai l'honneur d'etre Monsr Votre très humble Serviteur s i g n é M A L C O L M F F R A S E B Follows Mr. Perra's answer QUEBEC le 8-—9 bre 1773 MONSR. Le Depart precipité de vaisseaux pour L'Europe ne m'a pas permis de repondre suivant mes désirs aux attentions de Messieurs du Committè, cependant j'ai vu quelques uns de mes citoyens qui ne me paroissent pas disposer a S'assembler comme CONSTITUTIONAL DOCUMENTS 343 SESSIONAL PAPER N o. 18 quelques uns d'entre i a prendre patience— nous le voudroient. J'a Le grand nombre l'emporte l'honneur d'etre &c et le petit réduit A true copy MALCOLM FFRASER Secretary to the Committee. LETTER OF THE COMMITTEE TO MASERES. 1 QUEBEC 8th Nov1 1773. SIR A S you appear to have the true Interests of this Country at heart, We take ,the liberty to trouble you with the Draught of a Petition which the English Inhabitants of the Province have determined to present to the Governor à Council. !"t is now the general opinion of the people (French & English) that an Assembly would b& of the utmost advantage to the Colony, tho' they cannot agree as to the Constitution of it. The British Inhabitants of whom we are appointed a Committee are of very moderate principles. They wish for an Assembly ; as they know that to be the only sure means of conciliating the New Subjects to the British Government as well as of promoting the Interests of the Colony and securing to its Inhabitants the peaceable possession of their rights and propertys. They would not presume to dictate. How the Assembly is to be composed is a matter of the most serious consideration : They Submit that to the Wisdom of his Majesty's Councils. What they would, in the mean time, request you to do is to inform the Ministry and the Publick That a Petition is presented (for it will be so in a few days) to the Governor here to call an Assembly, And that if he does not grant their request they will immediately apply to His Majesty from whom they have the most sanguine hopes of a gracious Reception. They beg your Interest in promoting so laudable an Undertaking and hope you will excuse the liberty they have taken We are with Esteem Sir Your most obedient & most humble Servants William Grant Zach. Macaulay Jenkin Williams Chas. Grant Thomas Walker John Lees John Welles Malcolm ffraser John McCord To Francis Maseres Esqr. CRAMAHE TO DARTMOUTH. 2 QUEBEC 13th December 1773. M Y LOED ! Herewith inclosed, I transmit to Your Lordship, Copies of two Petitions, signed by some of His Majesty's old Subjects residing here and at Montreal, presented me the 4th instant, and of my Answer to them dated the 11th . About six Weeks or two Months ago, a Mr. McCord, from the North of Ireland, who settled here soon after the Conquest, where he has picked up a very comfortable Livelihood by the retailing Business, in which he is a considerable Dealer, the Article of Spirituous Liquors especially, summoned the Principal Inhabitants of this Town, that are Protestants, to meet at a Tavern, where He proposed to them applying for a House of Assembly, and appointing a Committee of eleven to consider of the Method of making this Application, and to prepare and digest the Matter for them. i Canadian Archives, Q 10, p. 20-21. 2 Canadian Archives, Q 10, p. 22. 344 CANADIAN ARCHIVES 6-7 EDWARD V I I , A. 1907 This Committee, of which Mr. MeCord takes the lead, has had several meetings and fixed at last upon the Course they have now taken, of Petitioning the Lieutenant Governor in Council, and in case of a Refusal there, to Memorial His Majesty ; The Committee having previously wrote to and engaged some of their Fellow Subjects at Montreal to second them in their Applications. M r MeCord endeavoured all this Summer, and again since the appointment of the Committee, to persuade the Canadians to join the old Subjects in petitioning for an Assembly, used every Argument he could think of for that Purpose, and carried the first Draft set on Foot for it to a Canadian Gentleman of this Town to translate into French ; the Canadians suspecting their only View was to push them forward to ask, without really intending their Participation of the Privilege, declined joining them here or at Montreal, but in the agitation they were thrown into by all this Negotiation, as well as M r Maseres's Publications,1 circulated here with great Industry, they thought themselves obliged to do something, tho' they could not well tell how, and this produced the Petitions already sent Home. I t may not be amiss to observe, that there are not above five among the signers to the two Petitions, who can be properly stiled Freeholders, and the Value of four of these Freeholds is very inconsiderable. The Number of those possessing Houses in the Towns of Quebec and Montreal, or Farms in the Country, held of The King or some private Seigneur, upon paying a yearly Acknowledgment, is under thirty. In my Answer2 I carefully avoided entering into any Discussion upon the Subject of their Petition, or taking notice of the Irregularity of their conduct, to endeavour to preserve them in good Temper, and to prevent them presenting their Requests through any other than the proper Channel, was the measure that appeared to me most eligible for the King's Service ; I have therefore promised them, to forward to Your Lordship, the Memorial they intend presenting to His Majesty; when that is executed, and they are a little cooled, they will be more ready to attend to any Thing I may take Occasion to offer upon the Matter in private. , The whole of this Transaction sufficiently evinces how necessary it is to give Power and Activity to the Government of this Province ; the Canadians are tractable and submissive, but if Matters were to remain here much longer in the loose Way they are in at present, there is too much Reason to apprehend, that it might be attended with bad Effects ; A Confirmation of their Laws of Property, and Rights of Inheritance, after which they most ardently sigh, would be most satisfactory to them all, and prove a very great Means of attaching the Canadians effectually to His Majesty's Royal Person and GovernmentI have the Honor to be with the greatest Respect My Lord ! Your Lordship's Most Obedient and Most Humble Servant H. T. C R A M A H É Earl of Dartmouth One of His Majesty's Principal Secretaries of State. 1 Of these the first and last published, prior to this date, have already been given in this volume ; see p.179, and p.228. Of the several other papers dealing with the laws and constitution of the Province of Quebec published before this date, some were reproduced in later volumes, especially in "An Account of the Proceedings" &c., others remained in their original form of issue, as the "Draught of an Act of Parliament for settling the Laws of the Province of Quebec, " 1772. 2 See below, p.346. CONSTITUTIONAL DOCUMENTS 345 SESSIONAL PAPER No. 18 PETITION TO LT. GOVERNOR FOR AN ASSEMBLY. 1 To the Honourable Hector Theophilus Cramahé, Esquire, His Majesty's Lieutenant Governor and Commander in Chief of the Province of Quebec, in Council. The Petition of the Subscribers his Majesty's Antient Subjects the Freeholders, Merchants, Traders, and other Inhabitants of the said Province. Humbly Sheweth, That Whereas his Most Excellent Majesty by his Royal Proclamation bearing date at St. James's the Seventh day of October 1763 (out of his Paternal Care for the Security of the Liberty and propertys of those who then were, or should thereafter become Inhabitants of the four several Governments therein mentioned) Did publish and declare, > that he had, in his Letters Patent, under his Great Seal of Great Britain, by which the
said Governments were constituted ; been graciously pleased to give express power and
Direction to his Governors, that so soon as the State and Circumstances of those Governments would admit thereof : They should with the Advice and Consent of the Members
of his Councils, Summon and Call General Assemblys within the said Governments, And
that he had been graciously pleased to give power to his said Governors with the consent
of his said Councils and the Representatives of the People to make, constitute, and
Ordain, Laws, Statutes & Ordinances for the publick peace, welfare and good Government of those Provinces and of the People and Inhabitants thereof. And Whereas his
most Excellent Majesty in pursuance of his said Royal Proclamation, by his Letters
Patent to his Governors has been graciously pleased to give and grant unto them full
power and Authority with the Advice and Consent of his said Councils, under the Circumstances aforesaid, to call General Assemblys of the Freeholders and Planters within
tneir respective Governments. And Also Whereas your Petitioners (who have well considered the present state and Condition of this Province) do humbly conceive That a
General Assembly of the People would very much Contribute to its peace, Welfare and
good Government as well as to the Improvement of its Agriculture and the Extension
of its Trade and Navigation ; They do therefore most humbly pray your Honor (with
the Advice and Consent of His Majesty’s Council) to Summon and call a General
Assembly of the Freeholders and Planters within Your Government in such Manner as
you in your discretion shall judge most proper.
QUEBEC 29th November 1773.
Alex1
Fraser
Simon Fraser
Adam Lymburner
Alex1
‘ Davison
Murdoch Stuart
Daniel Morison
Sam1
Jacobs
John Lees Junr.
Jams
Price
Robt.” Woolsey
Jacob Rowe
John Renaud
Mich1
Cornud
Simon Fraser Junr
Jas
Hanna
Jonas Clark Minot
Jenkin Williams
William Grant
John McOord
. P. Fargues
Chas
Grant
Malcolm ffraser
Zach. Macaulay
John WT
elles
John Lees
James Tod
Jas
Cuming
Alexr
Martin
D. Lynd
John Lynd
D
1
Gallwey
Dun11 Munro
Geo. King.
Rich3
Murray
Randle Meredith
Robt. Willcocks
J. Melvin
R. Hope
Henry Boone
John W. Swift
Charles Hay
Charles Le Marchant
Thos
MeCord
J a ‘ Sinclair
P
r
Mills
John Halsted
Lauch Smith
James Gordon
Ra. Gray
N. Bayard
John D. Mercier
I do certify that the foregoing Petition is a true copy of the Original filed in my Office.
MDÜnadian Archives, Q 10,p.26. Given also in ” An Account o£ the Proceedings ” &e., p.ll.
346 CANADIAN AROEIVES
6-7 EDWARD VII., A. 1907
Quebec 16 December
1773.
Geo. Allsopp. D.C.C.
Endorsed :—Copy of the Quebec Petition presented 4t]r Decr
1773 In Lieut. Govr
Cramahés (No. 11) of 13th December 1773.
The Montreal Petition the same as the preceding—with the following Signatures1—
Montreal 29tt Novemr
1773.
Edward Chinn
John Thompson
Edwd
Antiil
E. Huntley
Dan1
Robertson
John Blake
John Neagle
Rich4
McNeall
John Burke
Thomas Walker
John Cape
Sam. Holmes
J” Dumoulin
Alex1
Paterson
James McGill
James Dyer White
Lawrence Ermabinger
William Haywood
James Finlay
Wm
McOarty
Joseph Torrey
Alexr
Henry.
Jas
Bindon
Alexander Hay
Joseph Howard
Geo. Singleton
Levy Solomons
Alexr. Henry
Ezekiel Solomons
Rich”1
Dobie
John Lilly
Edwd
Wm
Gray
Thomas McMurray
James Morrison
Geo. Measam
J. Maurez
Thomas Walker Junr
.
John Wharton
Jacob Vander Hey den.
I do Certify that the foregoing Petition is a true Copy of the Original filed in my
Office. Quebec 16 December 1773.
GEO. ALLSOPP D. C. C. ‘
Endorsed :—Copy of the Montreal Petition —presented 4 a
Decr. 1773.
In Lieut. Gov1
Cramahé’s (No 11.) of 13th December 1773.
LT. GOVERNOR CRAMAHE’S REPLY. 2
Gentlemen
The Subject of your Petition is a Matter of too much Importance, for His Majesty’s
Council here to advise, or me to determine, upon, at* a Time, that, from the best Information, the Affairs of this Province are likely to become an Object of Public Regulation ;
The Petitions and my Answer shall be transmitted by the first Opportunity to His
Majesty’s Secretary of State.
Quebec 11th Decr
1773.
(Signed) H. T. CRAMAHÉ
1
In Maseres’ ” A n Account ot the Proceedings ” &c, no mention is made of there being two
petitions, and no distinction is made between the Montreal and Quebec lists of names, which are mingled
together in a common list. The date of presentation is given as Dec. 3rd, whereas in Allsopp’s certified
copy it is given as the 4th.
2
This reply was framed and authorized by the Governor in Council, Dec, 11th, 1773. See Q 10,p.38.
CONSTITUTIONAL DOCUMENTS 347
SESSIONAL PAPER No. 18
P E T I T I O N TO T H E K I N G .
To T H E K I N G S MOST EXCELLENT M A J E S T Y . 1
The humble Petition of the Subscribers your Majesty’s an t i e n t Subjects, Freeholders, Merchants and Planters in the Province of Quebec in N o r t h America.
Most humbly.
Sheweth.
T h a t W h e r e a s your Majesty by your royal Proclamation bearing D a t e at St.
James’s the seventh D a y of October One thousand seven H u n d r e d a n d Sixty Three was
, most graciously pleased to publish and declare ” T h a t out of your Majesty’s paternal Care
” for the Security of the Liberty and Properties of those who t h e n were or should
” thereafter become I n h a b i t a n t s of the four^everal Governments therein mentioned (of
” which this your Majesty’s Province was denominated to be one) Y o u r Majesty had in
” the Letters P a t e n t by which the said Governments were constituted given express
” power and Direction to your Governors, T h a t so soon as the S t a t e and Circumstances
” of those Governments would admit of it, they should with the Advice of t h e M e m b e r s
” of your Majesty’s Councils, summon and call General Assemblies within t h e sai d
” Governments respectively, in such M a n n e r a n d F o r m as is used and directed in those
“, Colonies and Provinces in America which are under Y o u r Majesty’s immediate Gov-
” ernment. A n d also t h a t your Majesty bad been graciously pleased to give Power to
” your said Governors with the Consent of your Majesty’s said Councils and the Repre-
” sentatives of t h e People, so to be summoned as aforesaid, to make, constitute, and
” ordain Laws, Statutes and Ordinances, for the peace, Welfare, and good Government
” of your Majesty’s said Colonies, and of the People and I n h a b i t a n t s thereof, as near
” as might be agreeable to the Laws of England, and u n d e r such Regulations a n d
” Restrictions as are used in other Colonies.”2
A n d W h e r e a s it has graciously pleased
Y o u r Majesty in the Letters P a t e n t of Commission to your Captain General and
Governor in Chief, (and in Case of his Death, or during his Absence, in t h e Letters
P a t e n t of Commission to your Majesty’s Lieutenant’Gove rnor) of this Province, to give
a n d g r a n t u n t o him full power and Authority, with the Advice and Consent of your
Majesty’s Council, so soon as t h e Situation and Circumstances of this Province would
admit of it, and when and as often as Need should require, to summon and call general
Assemblies of the Freeholders, and Planters within this Government, in such M a n n e r
a s h e in his .Discretion should judge most proper.’5
A n d W h e r e a s Y o u r Petitioners, whose
Properties real and personal in this Province are become very considerable, having well
considered its present State and Circumstances, and humbly conceiving them to be such
as to admit the summoning and calling a general Assembly of t h e Freeholders, a n d
P l a n t e r s Did on the Third D a y of December I n s t a n t present their humble Petition to
the Honourable H e c t o r Theophilus Cramahé Esquire your Majesty’s L i e u t e n a n t Governor
a n d now Commander in Chief, stating as above and humbly praying t h a t he would be
pleased, with t h e Advice and Consent of your Majesty’s Council, to summon and call
a general Assembly of t h e Freeholders a n d Planters within this Government, in such
M a n n e r a n d as he in his Discretion should judge most proper ; A n d your Majesty’s said
1
The Lt. Governor having, as anticipated, declined to grant the petition for an Assembly, the
Committees of Quebec “and Montreal prepared their petition to the King, as given here. Canadian
Archives, Q 10,p.46. In the letter of Cramahé to Dartmouth, .Tan. 19th, 1774, which accompanies this
petition, he says that he suspects they have sent a duplicate of it to Maseres. Q 10, p. 43. The Committees evidently bad some doubts as to their petitions to the King reaching their destination if presented
through the official channels only, for, as Cramahé had suspected, they sent copies of these to Maseres,
then in London, to be presented through the Colonial Secretary. They had also written to their
mercantile associates in London to solicit their assistance in presenting their case before the proper
authorities. This correspondence is given in Maseres’ ” An Account of the Proceedings ‘ &c, p.29.
2 As may be observed by comparing this passage with the letter of the Proclamation, (See p.120,
last paragraph. ) this is not the exact wording of the portion quoted, but simply a paraphrase of it.
3
See the section of the Commission to Governor Murray, authorizing the establishment of an
Assembly, p. 128. m
348 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Lieutenant Governor on the Eleventh Day of December Instant after having taken the
said Petition into his Consideration, was pleased to inform your Petitioners, ” That the
li Subject of thier said Petition, was a Matter of too much Importance for your Majesty’s
‘.’ Council here to advise, or for him your said Lieutenant Governor to determine upon,
” at a Time, that, from the best Information, the Affairs of this Province are likely to
” become an Object of public Regulation ; but that he would transmit the said Petition
” by the first Opportunity to your Majesty’s Secretary of State.”1
Your Petitioners being fully convinced from their Residence in the Province, and
their ‘Experience in the Affairs of it, that a general Assembly would very much contribute to encourage and promote Industry, Agriculture and Commerce and (as they
hope) to create Harmony and good Understanding between your Majesty’s new and old
Subjects Most humbly Supplicate your Majesty, to take the Premisses into your royal
Consideration ; And to direct your Majesty’s Governor, or Commander in Chief to call
a General Assembly in such Manner, and of such Constitution and Form as to your
Majesty, in your Royal Wisdom, shall seem best adapted to secure its’ Peace Welfare
and good Government. ‘ .
And your Petitioners as in Duty bound shall ever Pray &c,-
Quebec 31st December 1773
Jenkin Williams
John Welles
Randle Meredith
Alex1
Davison
John Lees Junr
N. Bayard
P
r
Mills
John Halsted
Jas
Tod
Arthur Davidson
John Majer
J. Melvin
Simon Fraser Junr
Dun1
‘ Munro
Wm
Lindsay
Dava
Lynd
William Laing
Wm
Keith
Charles Hay
Dan. Morison
Chas Grant
William Grant
Zach: Macaulay
John McCord
Adam Lymburner
John Renaud
Alex1
. Fraser
Jonas Clarke Minot
Murdoch Stuart
Mich. Cornud
Robt. Woolsey
D. Gallway
Thos McCord
John Ross
John Burke
Francois Smith
Rod* McLeod
Godfrey King
John Saul
George Jinkins
(Original)
Endorsed :-
Malcolm ffraser
John Lees
Alexr
„ Martin
Simon Fraser
Henry Boone
Charles Le Marchant
John D. Mercier
Jacob Rowe
Jas. Sinclair
George King
Jacob Smith
John Lynd •
Jas
JJEanna
John White Swift
Ra. Grey
Robt. Mcfie
Alexr
Lawson
Frederick Petry
Francis Anderson
Hugh Ritchie
George Hips
-In Lieut. Gov* Cramahés (No. 13) of 19* Jany. 1774.
Montreal Petition the same
Montreal 10lh January 1Y74
Dan1
Robertson
John Wharton
Dumas
Samuel Morrison
George Singleton
Alex1
‘ Paterson
Chas
Paterson
as that of Quebec—with the following signatures—
Edma
Wm
Gray
Rich* Huntley
Alexander Hay
John Lilly
John Porteons
John Thomson
Rich* Dobie
Jean Etienne Waden
Hugh Farries
John Sunderland
Samuel Edge
Abm
Holmes
Sam1
Holmes
Richa
Livingston
1
See above p. 346. 2
In Maseres’ ” A D Account of the Proceedings ” &c, pp.20-24, the petition is given as only from
Montreal, dated Jan. 10th, though the list of names attached contains both the Quebec and Montreal
signatures. Elsewhere, (see p.27) it is stated that there were two petitions.
CONSTITUTIONAL DOCUMENTS 349
SESSIONAL PAPER No. 18
Peter Arnóldi
Edmd
Antill
G. Christie
Ohabrand Delisle Minister
Pierre du Calvet J.P.
J. Grant
John Blake
Jam3
Blake
Lawrence Ermatinger
James Dyer White
James Morrison
Jean Bernard
Rich3
MeNeall
1
Joseph Howard
Jacob Vander Heyden
Ezekiel Solomon
Levy Solomons
Jas. Doig
Jas. Finlay
John Gregory
Thomas Walker
Thomas Walker Junr.
Rich11 Walker
Geo. Measam
Philip Loch
William Weir
Edward Chinn
John Kay
Wm
M°Carty
Thomas M’Murray
Benjn
Frobisher
Joseph Bindon
James McGill
Jn°Stenhouse
Alexr
Henry
Solomon Mittleberger
• Wm
Murray
Alex1
‘ Henry
Jam” Price
Willm
Haywood
Jn° Richardson
John Jones
Robert Simpson
James Frazer
James Noel
Jn° Pullman
Robt. Cruickshank
John Neagle
Peter Forbes
Allan McLaclain
Nicholas Brown
John Trotter
Phillip Bruikman
Edwd
Cox
Roger M°Cormick
John Marteilhe
James Stanley Goddard
Peter Mcfarland
Andrew Porteous
J” Dumoulin
G. Young
Thomas Duggan
T. Duggan
William Aird
J. S. Nichol major
Daniel M°Kil!ip
In Lieut. GoV Oramahé’s (No 13) of 19th Jany
1774.
MEMORIAL FROM QUEBEC TO LORD DARTMOUTH.
To the Right Honble the Earl of Dartmouth one of his Majesty’s principal Secretarys
of State.1
The Memorial of the Freeholders, Merchants Planters and others his Majesty’s
antient and loyal Subjects now in the District of Quebec in the Province of Quebec in
North America.
Humbly Sheweth.
That after the Capitulation of Canada and the definitive Treaty of Peace by which
this Province was ceded to Great Britain his Majesty was graciously pleased by his
royal Proclamation of the 7tt October 1763. to give express power & direction to his
Governors of the four several Provinces therein mentioned, (whereof this Province is
one) with the advice and Consent of the Members of his Councils, to summon and call
general Assembly’s, for making constituting and ordaining Laws Statutes and Ordinances for the public peace, Wellfare and good Government thereof as near as might be
agreeable to the Laws of England And also was graciously pleased to declare and promise,
That in the mean time and untill such Assemblys could be called all Persons inhabiting
in or resorting to th<*said Colonies should have the enjoyment and benefit of the Laws of England.2 /That your Memorialists thus encouraged, having settled themselves, purchased Lands, planted and improved them, and engaged deeply in Commerce in this Province, and humbly conceiving it at this Time seasonable & expedient to supplicate bis Majesty 1 Canadian Archives, Q 10,p.56. This memorial is not given in Maseres' " An Account of the Proceedings " &e. The briefer one from Montreal which follows this is given however. Nevertheless these memorials were evidently V ^ ^ ^ ^ ^ ^ ^ . 1 ^ ^ ^ ^ ^ ^ ^ 0 ^ ^ : tions to the King, as received through Cramahe Moreover, in his letter to Dartmouth of Feb 3rd 1774 .Cramahé indicates that they were not forwarded through him, since they were not communicated to him. See Q lO.p.53. 2 See p. 120, last paragraph. 350 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 to accomplish his most gracious Promise, Have prepared their most humble Petition to his Majesty1 (which they take the liberty to transmití herewith to Your Lordship) praying that he would be graciously pleased to order his Governor with the Advice and Consent of his Majesty's Council to call a general Assembly of the People in such manner and of such Constitution and form as his Majesty in his royal Wisdom shall think proper to direct. Your Memorialists most humbly hope that his Majesty out of his royal and paternal Care for the Wellfare and happiness of all his loving & obedient Subjects will be graciously pleased to relieve them from the apprehensions they are under That their Property's may be endangered, And that they and their Posterity may lose the fruits of their labours by residing in a Country without any fixed or stable form of Government exposed to Ordinances which may be neither consonant with nor agreeable to the » Laws of England, a Situation we presume equally inconvenient to the new as to us his Majesty's antient and loyal Subjects. Your Lordships Memorialists are firmly but humbly of opinion that a power of Legislation vested in a Governor Council and Assembly of the People is the only permanent constitutional Mode of Government that should be established in this Province and from their own knowledge and Experience of its State since the Conquest, they are convinced that the sooner an Assembly is called, to act in conjunction with his Majesty's Governor and Council, the sooner, the Peace and good Government thereof will be settled on a firm and solid basis. No tempoiary Mode your Memorialists apprehend can so effectually attach and reconcile the new Subjects to His Majesty's august House and the British Constitution or be &o grateful to his Majesty's antient subjects. Your Memorialists conscious of their own inability will not presume to point out how this Assembly should be composed and constituted. That is a matter in their opinion fitting only for the Wisdom and consideration of his Majesty and his learned Councils. But as it may be advanced by some Persons (who either are not so well acquainted with the present State of this Province as your Memorialists, or whose Interest in the welfare of it, is of a more transient nature) that it is not yet ripe for an Assembly, That the Kings old Subjects are but few in number, and that they possess but little Property in proportion to the new Subjects who are the Body of the People but of the Roman Catholick Communion? Your Memorialists who have well weighed and seriously considered these objections take the Liberty to assure your Lordship that in their humble opinion the Province is at this Time perfectly mature for the Reception of that Establishment, And that an Assembly to act in Conjunction with his Majesty's Governor and Council would in time give much more Satisfaction to the People, would point out more evidently the true Interest of the Colony, its Powers and Resources and be better able, than a Governor and Council, to make Laws Ordinances and Statutes " suitable to their own Emergencies. Your Memorialists have the honour to assure your Lordship, That the Number and real Property of his Majesty's antient Subjects are not so triflling as may have been represented, for several of them possess the largest and best cultivated Seigniorys in the Province (The Lands of the religious Society's excepted) and most of them are proprietors of freehold Estates.2 Their Personal Estates by far exceed those of the new Subjects. The Trade and Commerce of the Country ever since the Conquest and at this Time being principally carried on by his Majesty's old Subjects.3 • The Settlement of the legislation of the Colony is not the onfy object your Memorialists have to request your Lordships Attention to. They beg leave to lay before Your Lordship the deplorable State it is in for want of Protestant Seminarys and Protestant Schools for the Education and Instruction of Youth, I t is with regret that they see the rising Generation of Children born of Protestant Parents utterly neglected and daily 1 See p. 347. 2 A partial list of the British owners of lands, including seigniories, in the Province of Quebec, in 1773, is given in the Dartmouth Papers ; See Canadian Archives, M 384,p.233. 3 Chief Justice Hey, in a letter to the Lord Chancellor given below, says on this point, referring to the English merchants, "with whom almost the whole trade of the country lyes, & which without them was & without them will continue except in a very few articles & those to no extent, a country of no trade at all." See Q 12,p.208. CONSTITUTIONAL DOCUMENTS 351 SESSIONAL PAPER No. 18 exposed to the known assiduity of the Roman Catholic Clergy of different Orders who are very numerous in this Province and who from their own immense funds have lately established Seminarys alarming in their foundation (all Protestant Teachers of every Science being excluded therefrom, The Children of British Parents must therefore go without Instruction or attend these, For tho' his Majesty's antient Subjects arewilling to contribute to the utmost of their Power to encourage Men of Learning and ability to come to reside among them, Yet that is insufficient without the aid and assistance of Government. Your Memorialists have also the Honour to represent to Your Lordship, That the Trade Cultivation and Prosperity of the Colony have been much interrupted by the sequestration of the upper Indian trading Posts, Lake Champlain and the Coast of Labradore from this Government, by which not only the natural resources of the Province have been greatly restrained but many of the Inhabitants as well old as new 'Subjects have thereby been deprived of their personal Property and even of their real Estates which the latter held and enjoyed for many Years before the Conquest and which the former purchased on the faith of the Capitulation and Treaty of Peac°, And Your Memorialists will venture to assure Your Lordship That if the Province is not restored to its antient Limits and the parts which have been dismembered from it reunited to that Government to which nature points they should belong, and all be put under some salutary and well judged Regulations. The Morals of the Indians will be debauched, and the Fur-Trade as well as the Winter Seal Fishery for ever lost not only to this Province but to Great Britain, as neither can be carried on to advantage but by the Inhabitants of Canada. Your Memorialists might add much more in support of the Subject matter of this Memorial as well as on many other Matters very interesting to the Province, but as your Memorialists will not incroach on your Lordships Time and Patience they conclude by humbly and ardently praying your Lordship to be pleased to lay their most humble Petition herewith transmitted before his Majesty and humbly intreating Your Lordships Intercession and good Offices in that behalf as well as in behalf of the other important Objects pointed out to your Lordship in this their Memorial, And reposing themselves entirely on your Lordships known honour, Understanding and Uprightness. They as in Duty bound will ever Pray &c— Quebec 3 1 " Decern' 1773. Jenkin Williams A Committee named at John Welles a Meeting of his John Lees Majesty's antient Sub- John McCord 1 jects residing in the Chas Grant District of Quebec. Malcolm ffraser Zach.macaulay (Original) Endorsed : Memorial of the Kings Ancient Subjects in the District of Quebec to His Majesty. R/ 1st June 1774. MEMORIAL FROM MONTREAL TO LORD DARTMOUTH. To The Right Honorable The Earl of Dartmouth one of His Majesty's Principal Secretaries of State.1 The Memorial of the Freeholders, Merchants, Planters and Others, His Majesty's Antient and Loyal Subjects now. in the Province of Quebec, Sheweth, That your Lordships Memorialists encouraged by the Capitulation of Canada, confirm'd by the definitive Treaty of Peace and His Majestys Royal Proclamation of 7th of i Canadian Archives, Q 10,p.63. This, it will be observed, is simply a summary of the preceding petition from Quebec. 352 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 October 1763, did purchase Lands, Plant, Settle, and carry on Trade and Commerce in this Province, to a very considerable Amount, and to the manifest Advantage of Great Britain—in confident Expectation of the early Accomplishment of His Majesty's said Proclamation, giving express Power and Direction, to his Governour, with the Advice and Consent of his Council, to summon and call General Assemblies, to make, constitute and ordain, Laws, Statutes and Ordinances, for the Publick Peace, Welfare, and good Government of the said Province, as near as might be agréable to the Laws of England— For which Reasons Your Memorialists have drawn up and transmitted herewith Their most humble Petition to The King, praying his Majesty will, out of his Royal and Paternal Care, of all his Dutifull and Loyal Subjects, in this Province, be graciously pleased to relieve them from the Apprehensions They are under of their Property being endangered, and loosing the Fruits of their Labour; exposed to Ordinances of a Governor and Council, repugnant to the Laws of England, which take Place before His Majesty's Pleasure is known, and are not only contrary to His Majesty's Commission and private Instructions to his said Governour, but we presume equally Grievous to His Majesty's New and Antienb Subjects. Your Lordships Memorialists further see with Regret, the great Danger, the Children born of Protestant Parents are in, of being utterly neglected for want of a sufficient Number of Protestant Pastors, and thereby exposed to the usual and known Assiduity of the Roman Catholick Clergy, of different Orders, who are very Numerous in this Country, and who from their own immense Funds, have lately established a Seminary for the Education of Youth, in this Province, which is the more alarming as it excludes all Protestant Teachers of any Science whatever. Wherefore Your Lordship's Memorialists humbly pray that you, will be pleased to present, their said Petition to His Majesty—And also pray Your Lordship's Intercession and good Offices in that behalf. And Your Lordships Memorialists as in Duty bound shall ever Pray Montreal January 15t!l 1774 Edwd Wm Gray A Committee appointed R. Huntley at a General Meeting Lawrence Ermatinger of the Inhabitants Will Haywood of Montreal. James M'Gill Jas. Finlay Edward Chinn (Original) Endorsed :—Memorial of the Kings Ancient Subjects in the District of Montreal to the Earl of Dartmouth. R/ 1st June 1774. DARTMOUTH TO CRAMAHÉ. 1 WHITEHALL May 4th 1774. Lieut. Governor Cramahé SlE, I have received your Letters No. 13 & 142 & have laid them before the King, together with the two Petitions transmitted therewith. The Manner in which the Petitioners have expressed their Wishes is decent & respectful, but I am fully convinced from your Account of the Steps taken to procure these Petitions that it was become highly necessary that the Arrangements for the Government of Quebec should be no longer delayed ; And I have the Satisfaction to acquaint you that I did on Monday last present to the House of Lords a Bill for the Regulation 1 Canadian Archives, Q 10,p.55. 2 Letter No. 13 is that o£ Cramahé to Dartmouth, of Jan. 19th, 1774, referred to in note l,p.347, enclosing the petitions to the King. No. 14 is that of Feb. 3rd, 1774, referred to in note l,p.349. / CONSTITUTIONAL DOCUMENTS 353 SESSIONAL PAPER No. 18 of that Government,1 which is calculated to lay the Foundation for those Establishments that I hope will give full Satisfaction to all His Majesty's Subjects & remove those difficulties with which the Administration of the Government in that Province has been so greatly embarrassed. I am &c DARTMOUTH. CRAMAHÉ TO DARTMOUTH.* (N° 17.) QUEBEC 15a July 17-74. " Duplicate. My LORD ! Your Lordship will herewith receive the Minutes of His Majesty's Council of this Province to the End of June last. I am Honoured with Your, Lordship's Circular Dispatch of 2a March,8 and one of the 6th April4 Numbered 11 ; The Event, which Your Lordship was pleased to notify in the former, affords great Satisfaction to all His Majesty's Loyal Subjects in this Province ; I am extremely Happy in receiving my Royal Master's Approbation of my answer to the Petitioners for an Assembly. His Majesty's old subjects in this Province, tho' collected from all Parts of His extensive Dominions, have in General, at least such as intend remaining in the Country, adopted American Ideas in regard to Taxation, and a Report, transmitted from one of their Correspondents in Britain, that a Duty upon Spirits was intended to be raised here by Authority of Parliament, was a principal Cause of setting them upon petitioning for an Assembly, and endeavouring to engage their Fellow Subjects to join therein. Some of the Committee, with whom I conversed this Spring upon the Subject, acknowledge the Irregularity of their Assembling without the Consent, or Approbation of the King's Governor, that it was an ill example shewen to their Fellow Subjects, whom it was their Interest, if it were only upon Account of their great Superiority in Point of Numbers, to see continue in those Habits of Respect and Submission to which they had been accustomed, and, upon my stating these and some other Reasons in the strongest Manner I could, promised noc to engage again in such a Business ; From the Temper they seem to be in at present, and the tractable Disposition of the Canadians, I am Hopefull, they will wait with Patience, untill an Opportunity offers for perfecting those Arrangements, they have been made to expect, and which in certain Cases are much wanted, and therefore much to be desired.5 * * * * * * I have the Honor to be with the greatest Respect My Lord Your Lordship's Most Obedient And Most Humble Servant H. T. CRAMAHÉ Earl of Dartmouth One of His Majesty's Principal Secretaries of State. 1 The Quebec Bill was introduced in the House of Lords by Lord Dartmouth, May 2nd, 1774. 2 Canadian Archives, Q 10,pp.79-81. 3 Announcing the birth, on Feb. 24th, of Prince Adolphus 'Frederick, afterwards Duke'of Cambridge. * See Dartmouth to Cramahé, Q 10,p.42, expressing approval of his reply to the petitioners for a House of Assembly. 5 The remainder of the despatch refers only to Indian affairs and hence is omitted. 18—3—25 354 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 PETITION OF F R E N C H SUBJECTS. A Petition of divers of the Roman-Catholick Inhabitants of the Province of Quebeck to the King's Majesty, signed, and transmitted to the Earl of Dartmouth, his Majesty's Secretary of State for America, about the Month of December, 1.773, and presented to his Majesty about the Month of February, 1774.1 Au ROY. ' SIRE, Vos très-soûmis et très-fidéles nouveaux sujets de la province de Canada ' prennent la liberté de se prosterner au pied du throne, pour y porter les sentiments ' de respect, d'amour, et de soumission dont leurs cœurs sont remplis envers votre ' auguste personne, et pour lui rendre de très-humbles actions de grace de ses soins ' paternels. 1 Nôtre reconnoissance nous force d'avouer que le spectacle effrayant d'avoir été ' conquis par les armes victorieuses de vôtre Majesté n'a pas longtems excité nos regrets ' et nos larmes. Ils se sont dissipés à mesure que nous avons appris combien il est 1 doux de vivre sous les constitutions sages de l'empire Britannique. En effet, loin de ' ressentir au moment de la conquête les tristes effets de la gêne et de la captivité, le ' sage et vertueux Général qui nous a conquis, digne image du Souverain glorieux qui ' lui confia le commandement de ses armées, nous laissa en possession de nos loix et de ' nos coutumes. Le libre exercice de nôtre religion nous fût conservé, et confirmé par 1 le traité de paix : et nos anciens citoyens furent établis les juges de nos causes civiles.2 ' Nous n'oublirons jamais cet excès de bonté : ces traits généreux d'un si doux vain- ' queur seront conservés précieusement dans nos fastes ; et nous les transmettrons d'âge ' en âge à nos derniers neveux.—Tels sont, Sire, les doux liens qui dans le principe nous ' ont si fortement attachés à vôtre majesté : liens indissolubles, et qui se resserreront 1 de plus en plus. ' Dans l'année 1764, votre Majesté daigna faire cesser le gouvernement militaire ' dans cette colonie, pour y introduire le governement civil. Et dès l'époque de ce ehan- ' gement nous commençâmes à nous appercevoir des inconvénients qui résultoient des ' loix Britanniques, qui nous, étoient jusqu'alors inconnues. Nos anciens citoyens, qui ' avoient réglé sans frais nos difficultés, furent remerciez : cette milice qui se faisoit une ' gloire de porter ce beau nom sous vôtre empire, fût supprimée. On nous accorda à la ' vérité le droit d'être jurés : mais, en même tems, on nous fit éprouver qu'il y avoit des ' obstacles pour nous à la possession des emplois. On parla d'introduire les loix d'An- ' gleterre,3 infiniment sages et utiles pour la mére-patrie, mais qui ne pourroient s'allier 1 avec nos coutumes sans renverser nos fortunes et détruire entièrement nos possessions.— ' Tels ont été depuis ce tems, et tels sont encore, nos justes sujets de crainte : tempérés ' néanmoins par la douceur du gouvernement de vôtre Majesté. ' Daignez, illustre et généreux Monarque, dissiper ces craintes en nous accordant ' nos anciennes loix, privilèges, et coutumes, avec les limites du Canada telles qu'elles ' étoient cy-devant. Daignez répandre également vos bontés sur touts vos sujets sans ' distinction. Conservez le titre glorieux de Souverain d'un peuple libre. Eh ! ne ' seroit-ce pas y donner atteinte, si plus de cent milles nouveaux sujets, soumis à vôtre 1 empire, étoient exclus de vôtre service et privés des avantages inestimables dont joiiis1 sent vos anciens sujets ?—Puisse le ciel, sensible à nos prières et nos /vœux, faire jouir ' vôtre Majesté d'un règne aussi glorieux que durable ! Puisse cette auguste famille 1 This petition, which does not appear among the State Papers, together with the translation of it and the memorial which follows, are taken from Maseres' " A n Account of the Proceedings" &c. pp. 112- 131. Concerning this Maseres says, " It is easy to see that the foregoing petition of the aforesaid French inhabitants of Canada has been made the foundation of the act of parliament above-recited." (The Quebec Act) p.181. 2 See, however, the proclamations ot Amherst and Murray, pp.31 & 33. •' For the basis of this change and the circumstances attending it, see Ordinance.of Sept. 17th, 1764 and the notes thereon ; p.149. CONSTITUTIONAL DOCUMENTS 355 SESSIONAL PAPER No. 18 ' d'Hanovre, à laquelle nous avons prêté les sermens de fidélité les plus solemnels, con- ' tinuer à régner sur nous à jamais ! ' Nous finissons en suppliant vôtre Majesté de nous accorder, en commun avec ses ! autres sujets, les droits et privilèges de Citoyens Anglois. Alors nos craintes seront ' dissipées : nous filerons des jours sérains et tranquilles ; et nous serons toujours prêts ' à les sacrifier pour la gloire de nôtre prince et le bien de nôtre patrie.' ' Nous sommes, avec la submission la plus profonde, ' De votre Majesté, ' Les très-obéissant, très-zéle's, et ' très-fidéles sujets, 1 Fr. Simonnet, ' Landriéve, . ' De Eouville, ' De Rouville, fils, 1 Longueuil, Hertel Beau bassin, 1 St. Disier, ' John Vienne, ' La Perier, ' Le Palliau, ' J. Daillebout de Cuisy, ' Gordien de Cuisy, fils, ' La Corne, fils, ' Picotté de Belestre, ' St. Ours, ' St. Ours, fils, 1 Chevalier de St. Ours, l'eschaillon, ' Carilly, ' La Corne, ' Le Moine, ' Quinson de St. Ours, 'Guy, ' Pouvret, 1 Contre cœur, ' St. George Du Prè, ' Des Rivières, ' Louvigny de Montigny, ' Montigny, fils, ' Sanguinet, ' L. Porlier, ' Jean Crittal, ' J. G. Hubert, ' Pierre Panet, fils, ' Fr. Cariau, ' Pierre Foretier, ' Landriaux, ' L. Defoui, ' J. G. Pillet, ' La Combe, ' Fr. La Combe, ' Ch. Sanguinet, ' Jobert, 1 J. Sanguinet, ' M. Blondeau, ' S. Chaboille, ' Eauge, ' J. G. Bourassa, ' J. La Croix, ' P. Paneb, ' Giasson, ' J. B. Blondeau, ' Talles, ' Le Grand, ' Pillet, < L. Baby, ' P. Pillet, ' Hamelin, fils, ' Laurent Du Charme, ' Foucher, 1 Berthelot, 1 Lamber St. Omer, 1 Méziére, ' De Bonne, ' St. Ange, ' Gamelin. Translation of the foregoing Petition of divers of the French Inhabitants of the Province of Quebeck to the King's Majesty, which was signed about the Month of December, 1773, and presented to the King about February, 1774. ' S I R , 'Your most obedient and faithful new subjects in the province of Canada take the 'liberty to prostrate themselves at the foot of your throne, in order to lay before you 'the sentiments of respect, affection, and obedience towards your august person, with 1 which»their hearts overflow, and to return to your majesty their most humble thanks 'for your paternal care of their welfare. 18—3—231 356 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 ' Our gratitude obliges us to acknowledge, that the frightful appearances of conquest ' by your majesty's victorious arms did not long continue to excite our lamentations and ' tears. They grew every day less and less as we gradually became more acquainted ' with the happiness of living under the wise regulations of the British empire. And ' even in the very moment of the conquest, we were far from feeling the melancholy ' effects of restraint and captivity. For the wise and virtuous general who conquered ' us, being a worthy representative of the glorious sovereign who entrusted him with the ' command of his armies, left us in possession of our laws and customs : the free exercise ' of our religion was preserved to us, and afterwards was confirmed by the treaty of ' peace ; and our own former countrymen were appointed judges of our disputes concern- ' ing civil matters. This excess of kindness towards us we shall never forget. These ' generous proofs of the clemency of our benign conqueror will be carefully preserved in ' the annals of our history ; and we shall transmit them from generation to generation ' to our remotest posterity. These, Sir, are the pleasing ties by which, in the beginning ' of our subjection to your majesty's government, our hearts were so strongly bound to 'your majesty; ties which can never be dissolved, but which time will only strengthen ' and draw closer. ' I n the year 1764,your majesty thought fit to put an end to the military govern- ' ment of this province, and to establish a civil government in its stead. And from the ' instant of this change we began to feel the inconveniencies which resulted from the ' introduction of the laws of England, which till then we had been wholly unacquainted ' with. Our former countrymen, who till that time had been permitted to settle our civil ' disputes without any expence to us, were thanked for their services, and dismissed ; and ' the militia of the province, which had till then been proud of bearing that honourable ' name under your majesty's command," was laid aside. It is true indeed we were admitted 1 to serve on juries : but at the same time we were given to understand, that there were 'certain obstacles that prevented our holding places under your majesty's government. ' We were also told that the laws of England were to take place in the province, which, ' though we presume them to be wisely suited to the regulation of the mother-country ' for which they were made, could not be blended and applied to our customs without ' totally overturning our fortunes and destroying our possessions. Such have been ever ' since the sera of that change in the government, and such are still at this time, our 'jusc causes of uneasiness and apprehension; which however we acknowledge to be 'rendered less alarming to us by the mildness with which your majesty's government 1 has been administered. ' Vouchsafe, most illustrious and generous sovereign, to dissipate these fears and ' this uneasiness, by restoring to us our ancient laws, privileges, and customs, and to 1 extend our province to its former boundaries. Vouchsafe to bestow your favours ' equally upon all your subjects in the province, without any distinction ! Preserve the ' glorious title of sovereign of a free people : a title which surely would suffer some ' diminution, if more than an hundred thousand new subjects of your majesty in this ' province, who had submitted to your government, were to be excluded from your 'service, and deprived of the inestimable advantages which are enjoyed by your majesty's ' antient subjects. May heaven, propitious to our wishes and our prayers, bestow upon ' your majesty a long and happy reign ! May the august family of Hanover, to which ' we have taken the most 'solemn oaths of .fidelity, continue to reign over us to the end ' of time ! ' We conclude by intreating your majesty to grant us, in common with your other ' subjects, the rights and privileges of citizens of England. Then our fears will be ' removed, and we shall pass our lives in tranquillity and happiness, and shall be always ' ready to sacrifice them for the glory of our prince and the good of our country. ' We are, with the most profound submission, ' Your majesty's most obedient, most loyal, and most faithful ' subjects, ' Pr. Simonnet, &c. &c.' CONSTITUTIONAL DOCUMENTS 357 SESSIONAL PAPER No. 18 A MEMORIAL OP T H E FOREGOING F R E N C H PETITIONERS I N SUPPORT OP T H E I R PETITION. ' Mémoire pour appuyer les demandes des très soumis et très fidèles nouVeaux sujets 1 de sa majesté en Canada. ' L'Augmentation d'un si vaste pais, tel qu'il étoit lors du gouvernement François ' dont le nombre des habitants excède actuellement plus de cent milles âmes, dont les ' dix-neuf vingtièmes sont nouveaux sujets ;- - l'avancement de son agriculture ; - - ' l'encouragement de sa navigation et de son commerce ; un arrangement à ¿ i r e f ' sur des fondements inébrantables, qui puisse déraciner la confusion qui y règne, faute ' de loix fixes et autorisées ; -sont des points présentement en considération qui sont ' dignes de la sagesse du gouvernement. ' La conservation de nos anciennes loix, coutumes, et privilèges, dans leur entier, 1 (et qui ne peuvent être changées ni altérées sans détruire et renverser entièrement nos ' titres et nos fortunes,) est une grace et un acte de justice que nous espérons de la ' bonté de sa majesté. ' Nous demandons avec ardeur la participation aux emplois civils et militaires ' L'idée d'une exclusion nous effraye. Nous avons prêté à sa majesté et à l'auguste ' famille d'Hanovre le serment de fidélité le plus solemnel : et depuis la conquête nous ' nous sommes comportés en fidèles sujets. Enfin nôtre zèle et nôtre attachement nous ' feront toujours sacrifier nos jours pour la gloire de nôtre souverain et la sûreté de l'état. ' La colonie, telle qu'elle est* fixée maintenant par la ligne de quarante cinq degrés ' est trop resserrée dans ses limites.1 Cette ligne, qui la borne, passe à environ quinze ' lieúes au dessus de Montréal : et cependant c'est de ce seul côté que les terres se ' trouvent fertiles, et que peut s'étendre avec plus d'avantage l'agriculture. Nous sup- ' plions que, comme sous le tems du gouvernement François, on laisse à nôtre colonie ' touts les pais d'enhaut connus sous les noms de Missilimakinac, du Détroit, et autres ' adjacents jusques au fleuve du Mississippi.2 La ré-union de ces postes seroit d'autant ' plus nécessaire à nôtre pais que, n'y ayant point de justice établie, les voyageurs de ' mauvaise foi, auxquels nous fournissons des marchandises pour faire le commerce avec ' les sauvages, y restent impunément avec nos effets ; ce qui ruine entièrement cette ' colonie, et fait de ces postes une retraite de brigands capables de soulever les nations ' sauvages.3 ' Nous désirons aussi qu'il plût à sa majesté re-unir à cette colonie la côte de La- ' brador, (qui en a été aussi soustraite,) telle qu'elle y étoit autrefois. La pesche du loup ' marin (qui est le seule qui se fait sur cette côte,) ne s'exerce que dans le fond de ' l'hyver, et ne dure souvent pas plus d'une quinzaine de jours. La nature de cette ' pesche, qui n'est connue que des habitants de cette colonie ; son peu de durée ; ' et la rigueur de la saison, qui ne permet point aux navires de rester sur les ' côtes ; combinent à exclurre touts les pescheurs qui viennent de l'Angleterre. ' Nous représentons humblement que cette colonie, par les fléaux et calamités de la 1 guerre et les requents incendies que nous avons essuies, n'est pas encore en état de ' payer ses dépenses, et, par conséquent, de former une chambre d'assemblée. Nous ' pensons qu'un conseil plus nombreux qu'il n'a été jusques ici, composé d'anciens et nou- ' veaux sujets, seroit beaucoup plus à propos. i See note 2, p. 339. 2 For the considerations which prevailed in fixing the boundaries of the Province of Quebec in 1764, see the Papers relating to the Establishment of Civil Government ; p. 105 & pp. 110-111. 8 Both the French and British elements in Quebec favoured an extension of the boundaries of the Province as a means of placing in their hands a monopoly of the trade with the western Indians. The problem of the regulation of the Indian trade was the occasion of a great many_ despatches and reports with the most varied proposals. One of the most comprehensive presentations of the situation, as it affected all the northern colonies interested in the western trade and settlement, was furnished in a communication from Lord Shelburne to the Lords of Trade, dated Ocî. 5th, 1767, including the views of Sir Jef. Amherst and G-en. Gage, together with all other papers available which might throw light on the subject. See Calendar of the Home Office Papers, 1766-69, No. 568. 358 CANADIAN ARCEIYES 6-7 EDWARD Vil., A. 19Q7 ' Nous avons lieu d'espérer des soins paternels de sa majesté, que les pouvoirs de ce conseil seront par elle limitées, et qu'ils s'approcheront le plus qu'il sera possible, à la douceur et à la modération qui font la base du gouvernement Britannique. ' Nous espérons d'autant mieux cette grace que nous possédons plus de dix dou ziémes des seigneuries et presque toutes les terres en rotures. 'Fr. Simonnet, &c, &c.n Translation of the foregoing Memorial in Support of the Requests made by his Majesty's most obedient and most faithful new Subjects nrCanada, in their Petition abovementioned. ' The improvement of so vast a country as Canada is, if considered as having the v same boundaries as it had in the time of the French government ; a country in which * there are atpresent more than an hundred thousand inhabitants, of whom more than nitie- 'teen in twenty are new subjects of the king;— — t h e increase of agriculture in this ' country ; the encouragement of its trade and navigation ; a settlement of ' the laws by which its inhabitants are to be governed, built upon solid and immove- ' able foundations, so as to remove and cut up by the roots the confusion which at present ' overspreads the province in congequence of the want of clear and known laws established ' by an incontestable authority ; are points which are now proposed to the consider- 'ation of the British government, and are worthy objects of its attention and wisdom. 1 The continuance of our ancient laws, customs, and privileges, in their whole extent, 4 (because it is impossible to change or alter them without destroying and totally over- * throwing our titles to our estates and our fortunes ; ) is a favour, and even an act of * justice, which we hope for from the goodness of his majesty. ' We ardently desire to be admitted to a share of the civil and military employments * under his majesty's government. The thought of being excluded from them is fright- * ful to us. We have taken the most solemn oath of fidelity to his majesty and the 'august family of Hanover : and ever since the conquest of the country, we have behaved ' like loyal subjects. And our zeal and attachment to our gracious sovereign will make * us always ready to sacrifice our lives for his glory and the defence of the state. ' The province, as it is now bounded by a line passing through the forty-fifth degree 'of north latitude, is confined within too narrow limits. This line is only fifteen leagues ' distant from Montreal. And yet it is only on this side that the lands of the province ' are fertile, and that agriculture can be cultivated to much advantage. We desire 'therefore that, as under the French government our colony was permitted to extend ' over all' the upper countries known under the names of Michilimakinac, Detroit, and * other adjacent places, as far as the river Mississippi, so it may now be enlarged to the ' same extent. And this re-annexation of these inland posts to this province is the more ' necessary on account of the fur-trade which the people of this province carry on to ' t h e m ; because, in the present state of things, as there are no courts of justice whose 'jurisdiction extends to those distant places, those of the factors we send to them with * our goods to trade with the Indians for their furs who happen to prove dishonest con- ' tinue in them out of the reach of their creditors, and live upon the profits of the goods " entrusted to their care : which intirely ruins this colony, and turns these posts into ' harbours for rogues and vagabonds, whose wicked and violent conduct is often likely ' to give rise to wars with the Indians. ' We desire also that his majesty would be graciously pleased to re-annex to this ' province the coast of Labrador, which formerly belonged to it, and has been taken 'from it since the peace. The fishery for seals, which is the only fishery carried on ' upon this coast, is carried on only in the middle of winter, and sometimes does not last ' above a fortnight. The nature of this fishery, which none of his majesty's subjects * but the inhabitants of this province understand ; the short time of its continuance ; and 1 There follows the same list of names as that appended to the petition which precedes. CONSTITUTIONAL DOCUMENTS 359 SESSIONAL PAPER No. 18 ' the extreme severity of the weather, which makes it impossible for ships to continue ' at that time upon the coasts ; are circumstances which all conspire to exclude any ' fishermen from Old England from having any share in the conduct of it. ' We further most humbly represent that, by means of the ravages and calamities ' of the late war, and the frequent fires that have happened in our towns, this colony is ' not as yet in a condition to defray the expences of its own civil government, and con- ' sequently not in a condition to admit of a general assembly. We are therefore of ' opinion that a council that should consist of a greater number of members than that ' which has hitherto subsisted in the province, and that should be composed partly of his 'majesty's old subjects, and partly of his new ones, would be a much fitter instrument ' of government for the province in its present state. ' We have reason to hope, from the paternal care which his majesty has hitherto ' shewn for our welfare, that the powers of this council will be restrained by his majesty ' within proper bounds, and that they will be made to approach as near as possible to ' the mildness and moderation which form the basis of the British government. * We hope the rather that his majesty will indulge us in the above requests, because 4 we possess more than ten out of twelve of all the seigniories in the province, and almost ' all the lands of the other tenure, or which are holden by rent-service. ' Fr. Simonnet, &c. &c.' CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC. 1 The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proclamation, and other Promises solemnly given. The proclama- The king's most excellent majesty was graciously pleased, by his royal tion of October proclamation2 of the seventh of October, one thousand seven hundred and sixty-three, passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as of his colonies in America, to resort to the said province of Quebeck, and the other provinces then lately ceded to his majesty by the French king, in order to avail themselves, with all convenient speed, of the great benefits and advantages that must accrue therefrom to their commerce, manufactures, and navigation ; and as an encouragement to them so to do, to publish and declare, that his said majesty had, in the letters patent under the great seal of Great-Britain, by which the new goverments in the said ceded countries had been constituted, given express power and directions to his governours in the said new colonies, that so soon as the state and circumstances of the said new colonies would admit thereof, they should summon and call general assemblies within the said governments, in such manner and form as is used and directed in those colonies and provinces in America which were under his majesty's immediate government ; and that his majesty had also given powers to the said governours, with the consent of his majesty's councils of the said province, and the representatives of the people in the same, so to be summoned as aforesaid, to make, 1 According to Maseres, this presentation of the case of the British merchants in London, " was drawn up at the desire of the said merchants, in the month of May last, at the time of passing the late Quebeck bill and of which printed copies were distributed to several members of both houses of •parliament i'n order to give weight to a petition against that bill which these merchants _ at that time presented to tie House of Uommons in behalf of themselves and their correspondents and friends, the British inhabitants of the province of Quebeck." "An Account of the Proceedings" &c., p. 201. The petition here referred to was presented in the House of Commons by Mr. Mackworth on May 31st. See Cavendish's Debates on the Quebec Bill, pp.74-75. The " Case " as here given is taken from Maseres' "An Account of the Proceedings " &c, p.202. Another copy, evidently from the same source, is given m the Dartmouth papers, M 3S5,p.393. There is no doubt, from the style of the document, that Maseres was employed by the merchants to state their cas#in due form. 2 See p.119. 360 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 190? • constitute and ordain laws, statutes, and ordinances for the publick peace, welfare, and good government of his majesty's said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies ; and was pleased further to declare, that in the mean time, and until such, assemblies could be called as aforesaid, all persons inhabiting in, or resorting to, his majesty's said colonies might confide in his majesty's royal protection for the enjoyment of the benefits of the laws of England ; and that for that purpose his majesty had given power, under the great seal, to the governours of his majesty's said new colonies, to erect and constitute, with the advice of his majesty's councils of the said provinces respectively, courts of judicature and publick justice within the said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agreeably to the laws of England. Provincial or- And in pursuance of the said proclamation, and of the commission dinance of of captain-general and governour in chief of the said province of QueSept. 17,1764. beck, granted to major-general -Murray,1 in the following month of November, one thousand seven hundred and sixty-three, and by him received and published in the month of August of the following yearj one thousand seven hundred and sixty-four, the said major-general Murray did, with the advice of his majesty's council of the said province, make and publish an ordinance of the said province on the seventeenth day of September, in the same year, one thousand seven hundred and sixtyfour, for erecting and constituting courts of judicature2 ; and by the said ordinance did erect two principal courts of judicature, called the Courts of King's Bench, and Common Pleas ; and did by the said ordinance givepower and authority to the chief justice of the province, before whom the said court of King's Bench was to be held, to hear and determine all criminal and civil causes, agreeably to the laws of England, and the ordinances of the said province ; and did likewise, by the said ordinance, direct and command tho judges of the said second court, called the Court of Common Pleas, to determine all matters brought before them agreeably to equity, having regard nevertheless to the laws of England, as far as th*e circumstances and then present situation of things would admit, until such time as proper ordinances for the information of the people could be published by the governour and council of the said province, agreeable to the laws of England. Provincial And on the sixth day of November, in the same year, one thousand, ordinance of seven hundred and sixty-four, another provincial ordinance was published r-gl em t'y the said governour Murray, and his majesty's council of the said province, for the sake of quieting the minds of his majesty's new Canadian subjects, and removing the apprehensions occasioned by the said introduction of the laws of England into the said province,3 by which it was ordained and declared, that until the tenth day of August then next ensuing, that is, in the year of our Lord one thousand seven hundred and sixty-five, the tenures of the lands, in respect of such grants as were prior to the cession of the said province, by the definitive treaty of peace signed at Paris, on the tenth day of February, one thousand seven hundred and sixty-three, and the rights of inheritance, as practised before that period, in such lands or effects of any nature whatsoever, according to the custom of the said country, should remain to all intents and purposes the same, unless they should be altered by some declared and positive law. i See p.126. s See p.149. s See p.166. CONSTITUTIONAL DOCUMENTS 361 SESSIONAL PAPER No. 18 Conclusion^ And the said two ordinances have been transmitted to his majesty, the^said^ro- an<^ never disallowed by him, andaré therefore generally understood by clamation and his majesty's British subjects in the said province, to have received the taking's &Zsanction o f . h i s majesty's royal approbation ; and in consequence of the cient & natu- s a id * w 0 ordinances, together with the proclamation aforesaid of the seventh ral-born sub-, of October, one thousand seven hundred and sixty-three, and the two jectst commissions of governour in chief of the said province, granted successively to major-general Murray and major-general Carleton, which seem in every part of them to pre-suppose that the laws of England were in force in the said province of Quebeck, being full of allusions and references to those laws on a variety of different subjects, and do not contain any intimation of a saving of any part of the laws and customs that prevailed in the said province in the time of the French government, . f we the British merchants trading to Quebeck, and all the ancient British subjects' residing in the said province have been made to understand and believe, that the laws of England have been introduced into the said province, and that they have had the sanction of his majesty's royal word, that they should continue to be observed in the said province. We cannot >therefore but express our surprise and concern at hearing
The petition- that a bill is now brought into parliament, by which it is intended, that
eïaTthe d™ * n e s a ^ royal proclamation of October, one thousand seven hundred and
sign of revok- sixty-three, and the commission under the authority whereof the governing the king’s m e n t of the said province is at present administered, and all the ordiandcommis-11′ nances of the said province, relative to the civil government andadminsion to his go- istration of justice in the same, and all commissions to judges and other
vernour, &c. 0 jgc e l.s 0f the same, should be revoked, annulled, and made void.
We humbly beg leave to represent, that many of us have, through a
Credit given o o n g ( j e r i c e j n the said royal proclamation, and other instruments proceedtioners to per- ing from, and allowed by, his majesty’s royal authority, ventured to send
sons residing considerable quantities of merchandize into the said province, and to give
npmftSe faith ‘ a r S
e c r edits t o divers persons residing in the same, both of his majesty’s
of the said pro- new Canadian subjects, and of his antient British subjects, who have, through
clamation, &c. a \fe& confidence in the said proclamation,, resorted to, and-Settled themselves in, the said province. And that we have employed our property and
credit in this manner, in a firm belief, that wê should have the remedies
allowed us by the laws of England for the security and recovery of it ;
and that if we had supposed the French laws, which prevailed in the
said province under the French government, to be still in force there,
or to be intended to be revived in the same, we would not have had
any commercial connections with the inhabitants of the said province, either
French or English. And therefore we beg leave to represent, that we think
ourselves intitled”, upon the mere grounds of justice, (without desiring
any favour to be shewn us on the account of our being his majesty’s antient, and faithful, and protestant subjects, that are attached to his royal
They therefore person and government by every tie of religion, interest, and habitual duty
desire that thea n ( j affection) to insist that, if it be resolved to persist in this new measure
l”ienf
d
th revi” of reviving all the former laws of Canada concerning property and civil
French laws rights, and abolishing the laws of England that have prevailed there in their
may at least s
tead since the establishment of the civil government in one thousand seven
for orneóme hundred and sixty-four, the execution thereof may at least be postponed
or some i • ^ . j w e sjj an k a v e had sufficient time to withdraw our. effects’from the
said province, and obtain payment of the debts which are owing to us in
the same, by the remedies and methods of trial allowed and appointed by
the laws of England in that behalf ; through a reliance on which remedies
and methods of trial we were induced to venture our said effects there, and
permit those debts to be contracted. And this time, we humbly represent,
cannot well be less than three years. %
362 CANADIAN ABGEIVES
6-7 EDWARD VII, A. 1907
Vindication We further beg leave to represent, that we apprehend his majesty’s forformer con-S m e r c o n |luct in introducing the laws of England into the said province by
duct in intro- his proclamation and other instruments aforesaid, to have been in no wise
ducmg the unusual, or severe, or particularly harsh, with respect to his new Canadian
land intonS” subjects, nor to have been unexpected by them, but to have been the naCanada. tural and known consequence of the conquest and cession of the country
to his majesty by the late peace, according to the policy of the crown of
Great-Britain on the occasion of similar conquests in former times. And we
particularly beg leave to observe, that the whole law of England has been
„•,, introduced into the kingdom of Ireland, in consequence of the conquest of
thing was it by the arms of England, without any the least mixture of the” antient
done in Irish laws, even upon the subjects of tenures and descents of land : and no
; inconvenience has been found to follow from it ; but, on the contrary,
the similitude of laws is at this day a strong ground of union and
mutual affection between the inhabitants of the two countries. And
the like has been done with respect to the principality of Wales ;
And in Wales; in which the English law is the only law that has been allowed for
more than two hundred years past : and the like good effects have
followed from it. And in the last century, upon, the conquest of the province of New-York, then called the New Netherlands, from the Dutch, the
And in New- same policy was observed, and the Dutch laws were totally abolished, and
“iork. £n e English laws introduced in their stead, which have prevailed there ever
since. And yet, at that time, the Dutch settlers in that province were very
numerous, and from them much the greater part of the present inhabitants
are descended. And, in conformity to these examples, we did conceive his
most gracious majesty to have intended to introduce the laws of England,
by his proclamation aforesaid, into the four new governments of Granada,
. . East Florida, West Florida, and Quebeck, instead of the French and Spanish
doing so in laws, which had prevailed therein under the former governments. And we
Canada was conceive this conduct of his most gracious majesty, to have been no way
expressly re- derogatory to the articles of capitulation, granted to his Canadian subjects
king by the by general Amherst, upon the surrender of the whole country to his majesty’s
capitulation, arms in September,,one thousand seven hundred and sixty1
; because, when
the French general expressly demanded, in one of the articles of capitulation,
“That the French and Canadians should continue to be governed according
to the custom of Paris, and the laws and usages established for that country,
and that they should not be subject to any other imposts than those that
were established under the French dominion ;” the said general Amherst,
in his answer to the said demand, declares, ” That they become the king’s
subjects ;”2
thereby avoiding to tie up and preclude his late majesty, and
his royal successors, from making such changes in the laws and taxes
of the said province, as to his royal wisdom should seem meet.
“The rjart<¡ f ^ e further beg leave to represent, that we are most especially anxious the English for the preservation of those parts of the English law which relate to matlaw which the ^ers of navigation, commerce, and personal contracts, and the method of niost10partieu- determining disputes upon those subjects by the trial by jury, and likewise for larly desire to those parts of it which relate to actions for the reparation of injuries received, be continued s u c ii a s actions of false imprisonment, and of slander, and of assault, and ince. whatever relates to the liberty of the person, and most of all for the writ of habeas corpus, in cases of imprisonment ; which we take to be, in the ' strongest and most proper sense of the words, one of the benefits of the laws of England, of which his majesty has promised us the enjoyment by his proDlamation above-mentioned, and which we apprehend to be a part of the English system of jurisprudence, to which our new Canadian fellow-subjects will not object. 1 See Capitulation o£ Montreal, p.8. 2 Capitulation pf Montreal, articles 41 & 42 ; see pp.17-18 & 27. CONSTITUTIONAL DOCUMENTS 363 SESSIONAL PAPER No. 18 pOTous'con- A n d . We b e g l e a v e t 0 r e P r e s e n t > t h a t the province of Quebeck has thriven
dition of the exceedingly, both in agriculture a n d trade, since the establishment of the
province since civil government of the province, and the introduction of t h e English l a v s
tion of*tneUC”
i n t o t l l e s a m e > h a v i n g exported last year about three hundred and fifty
English law. thousand bushels of corn ; whereas, in the time of the French government,
they exported none a t all, a n d produced hardly enough for their own subThe greater ^ t e n c e .
part of the A n d we further beg leave to represent, t h a t much the greater p a r t of this
trade of the t r a d e is carried on by his majesty’s old British subjects in t h e i=aid province ;
carried on by by which they may “justly claim to themselves the merit of having been t h e
the British in-principal promoters of the late great improvement of the province,
habitants of A n d w e fu r t n e r k e g i e a v e t 0 represent, t h a t we by no means object to a
The petition- revival or continuance of t h e former French laws concerning the tenures of
¿ersdonot ob-land, and the methods of alienating and conveying land, nor even concerning
vival°or eon*- ^
6
inheritance of land belonging to Canadians born, or to be born, of marriages
tinuance, of already contracted ; nor concerning dower, or the other civil rights of either
the French m e n or women resulting from the matrimonial contract, so far as they relate
to^anded1
”
8
*° m a rria,ges already contracted. A n d we conceive t h a t t h e revival of the
property. F r e n c h laws in these particulars, with full powers given to t h e Canadians
of future times to continue them in their respective families at their pleasure
by marriage-agreements, last wills, or deeds in their life-time, would be
sufficient to give full satisfaction to the bulk of his majesty’s new Canadian
subjects, and make them acquiesce very chearfully in the general establishm e n t of the laws of England, in conformity to his majesty’s proclamation
above-mentioned, upon all other matters.
Many of the A n d we further beg leave to represent, t h a t several of his majesty’s Old
itants of^he British subjects are possessed of a considerable quantity of landed property
province are in the said province, and t h a t others of them* are daily becoming so : and
possessed of hereupon w e will venture to affirm, t h a t sixteen of the seigniories of t h a t
quantities of province, and some of them the most valuable ones in the country, are in
landed prop- the hands of the said Old British subjects.1
erty m it. A n d we further beg leave to represent, that, in consequence of his
majesty’s most gracious promise contained in his proclamation aforesaid,
that, as soon as the situation and circumstances of the said province would
Concerning permit, a n assembly of freeholders and planters of the same should be called
of1
thS
e
t
fr¿ly ^ y his majesty’s governour thereof, which, in conjunction with the said
holders of the governour, and his majesty’s council of t h « s a i d province, should have power
province. t 0 m a k e laws and ordinances for the welfare a n d good government of t h e
said province, we have constantly entertained hopes t h a t an assembly of the
freeholders of t h e same would soon be established, a n d t h a t we should enjoy
the benefits resulting from t h a t free a n d equitable method of government in
common with the inhabitants of t h e adjoining provinces of North-America.
The peti- And therefore we beg leave to represent, t h a t we have been very greatly
S ™ m e d a
a t t h e a l a r m e d by t h a t p a r t of the bill now before parliament, which seems to
clause for es- ‘ cancel t h e said most gracious promise of our sovereign, a n d to deprive us of
tablishing a ,an n 0 p e g of obtaining the establishment of a general assembly of t h e freecounclfhTthe holders of t h e said province, and to establish in t h e steady thereof a very
province. different mode of government in t h e said province, b y a legislative council,
consisting of persons appointed by, and removeable at t h e pleasure of, t h e
crown ; more especially as the said new mode of government, (which we
presume nothing b u t some urgent a n d very peculiar circumstances of necessity can be thought a sufficient reason for adopting) is not limited in
the said bill to continue for only a certain small numb e r of years, after
which they might hope to have an assembly in the said province, agreeably
1
See “List of British proprietors of Lands in the Province of Quebec, 1773.” Dartmouth Papers,
M 384,p.233. Twenty nine of these are designated as holding seigniories._
364 CANADIAN ARCHIVES
„ 6-7 EDWARD VII, A. 1907
to the said royal promise, but is established in very general terms, that
remove that agreeable prospect out of their sight.
The want of a We further beg leave to represent, that we have hitherto been made to
sufficient understand) that the reason of the omission of his majesty’s governours of
protestant the said province to call a general assembly of the freeholders of the same,
landholders in from the first establishment of the civil government thereof, in the year
the province o n e thousand seven hundred and sixty-four, to the present time, according
assembly has *° *^e
powers and directions given them by his majesty in that behalf, in
been hitherto their commissions of captain-general and govermJur in chief of the said
alledged as province, has been the difficulty of finding a sufficient number of subjects
tînt 1
Vf^íi ^Oîl Or
the omission oi his majesty in the said province properly qualified, in all respects, to be
to call one. members of such assembly, according to the directions of the said commissions, which required, that all persons who should become members either of
the said assembly of the freeholders of the said province, or of his majesty’s
council of the same, should take the oath of abjuration of the pope’s power,
and subscribe the declaration against transubstantiation, as well as take the
oath of allegiance and the oath of abjuration of the pretender’s right to
the crown of these realms, before they were admitted to sit and vote in
such assembly and council.1
And this objection, we beg leave to represent,
That reason is is now thought, by persons well acquainted with the said province, to be at
now at an end, a n en^ there being now a sufficient number of freeholders in the said prosufficient vince to constitute a house of assembly, willing and ready to take the said
number of oaths and declaration ; in proof of which we beg leave to inform this honourt ^holders for a
‘
3
-‘e n o u s e> t Q a t a petition has been lately presented to his majesty from the
that purpose. British and protestant inhabitants of the said province, signed by a great
number of persons of that description, requesting his majesty to summon and
call such a general assembly of the freeholders of the said province, and assuring him that the*re are a sufficient number of persons in the said province
qualified according to the direction of his majesty’s commission for that
purpose, and humbly representing to his majesty, that the situation and
circumstances of the said province are at present such, as not only render
the said measure of establishing a general assembly practicable, but likewise make it to be highly expedient for the regulation and improvement of
the said province.2
And we beg leave further to represent, that if it be thought inexpedient
‘ on the one hand to constitute a house of assembly, consisting of protestants
only, agreeably to the directions of his majesty’s commissions before-mentioned, on account of the great superiority of the numbers of the RomanCatholicks in the said province, who would thereby be excluded from sitting
in such assembly ; and, on the other hand, it be thought dangerous to sum
mon a general assembly into which the Roman-Catholicks should be admitted
indiscriminately with the protestants ; and, on account of this twofold
difficulty, it be judged necessary to have recourse to the new method of
government above-mentioned, by investing a council of persons nominated,
Obiect’on to anc^ removeable at, the pleasure of the crown, with a certain degree of
the admission legislative authority ; we humbly hope that the same reasons which make
of Koman- it be judged dangerous to admit the Romau-Catholick inhabitants of the
into the°lesris- s a ^ province into a share of the legislative authority by means of an open
lative council, assembly of the same, will be thought sufficient to exclude them from obtaining a share of the same authority by an admission into this new legislative
council ; which, being a single body invested with the power of making laws
for the province,, will be of more weight and consequence in the same, than
an assembly of the freeholders would be, if the plan of government promised
by his majesty’s proclamation and commissions above-mentioned, by a
1
See conditions stated in Murray’s Commission, p.128.
2
See Petition to the King from Quebec and Montreal, p. 347. ,
CONSTITUTIONAL DOCUMENTS 365
SESSIONAL PAPER No. 18
*
governour, council and assembly, had been pursued. And therefore we
cannot but express our concern to find, that in the bill now before parliament,1
there is no provision that all, or even any of, the members of the said
intended council should of necessity be protestants, but that they may be
all Roman-Catholicks notwithstanding any thing contained in the same.
And therefore we most humbly and earnestly intreat this honourable house
to take care that, if such a legislative council must be established in the
said province, in lieu of an assembly of the freeholders of the same, the
members thereof shall be all protestants ; or, if that be thought too much
to grant to them, that at least a majority of the members of the said council
should necessarily be protestants, and only a few of the most moderate sort
of Roman-Catholicks should be admitted into it, who should be required to
take the oath of abjuration of the pope’s authority, though not to subscribe
‘ the declaration against transubstantiation ; which is a temperament, which,
as we conceive, might lead to good effects hereafter.
Necessity of And we further beg leave to represent both on our own account, and in
making the behalf of our friends and correspondents, the antient British inhabitants
the legislativenow residing in the said province, that, if the said province must be gocouneil inde- verned by a legislative council, nominated by his majesty, without the conpe”
d
r
< n tl o t0ftllecurrence of an assembly of the freeholders of the same, we humbly hope that a clause will be inserted in the bill, to render the members of the said council incapable of being either removed or suspended by his majesty's governour of the said province', and liable only to be removed by his majesty himself, by his order in his privy council, (of whose wisdom and justice we can entertain no suspicion) to the end, that the said counsellors may both act with a spirit of freedom and independence becoming their , high offices of legislators of the said province, and be thought to do so by 1 the people of the same, instead of being considered as dependent creatures and tools of \the will and pleasure of the governour for the time being, as we conceive will be the case, if he shall be invested with a power of removing or suspending them from their said offices at his discretion. The petition- And we beg leave further to represent, that it is also our wish, if such ers desire a legislative council shall be established in lieu of an assembly, that the lative council" number of the members thereof may be fixed and certain, instead of being may consist of liable to vary between the numbers of seventeen and twenty-three persons, a certain num-as j g pr 0 p0 s e ( j i n the present bill ; and likewise, that the said council may bers° instead be made as numerous as conveniently may be, to the end, that it may conof a number tain within it persons acquainted with every part of the province, and the varieTat b e interests of the inhabitants residing in the same, and that their acts and pleasure. resolutions may be, for the most part, agreeable to the sentiments of the body of the people over whom they are to preside. And, with respect to And they sug- this point, we beg leave to represent, that it is the opinion of some of the gest that their m o s t judicious and respectable of our friends and correspondents in the " w l b e s a i d province, that it would be easy to find thirty-one persons amongst the thirty-one British and other protestant inhabitants of the said province, capable of being useful members of such a council. They further And we further beg leave to represent, that in ease such a legislative desire that a c o u n o i i should be established, it is our earnest desire that provision may Se whole be made in the said bill, that a certain number of the members of the same number of s n a u be necessary to transact business ; without which it may happen, may bfnTde t n a t a rerJ s m a J 1 P a r t ° f t h e w h ° 1 < S b ° d y ' a S ' f ° r e x a m P l e ' five 0 r s i x Pe r" necessary to sons, shall occasionally exercise the great powers vested in the whole, and the transact- m a ] j e i a w s and ordinances that shall bind all the inhabitants of the probufiness vince ; which, we humbly conceive, would be highly inexpedient and unbecoming and cause great uneasiness in the said province. And we are i The Quebec Bill. 366 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 humbly of opinion, t h a t the n u m b e r thus made necessary to t h e exercise of these high legislative powers, ought to be more t h a n half t h e whole numb er of t h e members of such council. A A th t t-h A n d we further beg leave to suggest it as our opinion concerning t h i s members may legislative council, t h a t it would be expedient t h a t t h e members thereof be paid for should receive some reasonable reward out of t h e publick revenue of t h e a e atthe P r 0 v i n c e j £ ° r every attendance a t t h e meetings of t h e said council on t h e council, a cer- legislative business of the said province, sufficient, a t least, to defray the tain sum of expences of travelling to the place where the said meetings shall be held, every^ttend- a n c ^ °^ residing there during the time of the said meetings ; to t h e end, t h a t anee. a t all t h e meetings of the said council, there may be a very full attendance of counsellors, who may concur in exercising the said high authority ; without which, the ordinances they shall pass will not be very likely to obtain the reverence due to them from the people, nor meet with a chearful obedience. And that the B u t above all, we beg leave to repeat our most earnest hopes and desires, said council t h a t the establishment of the said legislative council (if it shall be îished foronly r e s ° l v e d t h a t s u c h a one shall be established,) may be only f o r a small a small num- numb e r of years, to t h e end, that, in case it shall hereafter appear to his t )eïh°f JTth t m a J e s t y i t h a t the situation and circumstances of the said province will the province a d m i t of the summoning a general assembly of t h e freeholders of the same, may after- we may a t last reap the benefit of his most gracious promise to us in his W a r d b gOV" P r 0 ° l a m a t i o n and commissions above-mentioned, t h a t we should be governed assembly. in the usual and approved method of his majesty's other colonies in America, by a governour, council, and assembly. W e therefore humbly hope, t h a t the honourable house of commons will t a k e our case into consideration, and permit us to be heard by our council a t the bar of their house, to the several heads mentioned in this state of it, and to such other parts of the bill n o w before them, as we shall apprehend ourselves to be concerned in interest to object to, either on our own account, or in the behalf of our correspondents and friends, t h e Old British subjects of the crown now residing in the said province. A n d we have a firm reliance on the wisdom and justice of this honourable house, the representatives of t h e Commons of Great-Britain, for a satisfactory determination upon all t h e matters contained in this case, and upon the other points which may be submitted to their consideration by our counsel a t ' t h e i r bar, a n d for the protection of our rights and liberties, as British subjects, who have acted under t h e sanction of his majesty's royal proclamation above-mentioned. L O R D M A N S F I E L D ' S J U D G M E N T I N C A M P B E L L v. H A L L , 1774. 1 The case of the Island of G r e n a d a ; in relation to.the pa ym e nt of four and one-half in the h u n d r e d of goods imported therefrom ; between Al exander Campbell, Esq., Plaintiff, a n d W m . Hall, Esq., Defendant, in the Court of King's-Bench, before Lord ChiefJ u s t i c e Mansfield: 15 George I I I . , A . D . 1774. November 28. The unanimous j u d g m e n t of the Court was this day given by Lord Mansfield, as follows : This is an action b r o u g h t by the plaintiff, Alexander Campbell, who is a naturalborn subject of Great Britain, and who, upon the third of May, 1763, purchased lands 1 After comparing the versions of this Judgment as given m Cowper's "Reports," Lofft's "Reports," and Howell's " Complete Collection of State Trials " Vol. XX, it has been found that, with some slight variations, the selected version given by Mr. Wm. Houston in his "Documents illustrative of the Canadian Constitution " p.79, may be safelj followed, and is therefore substantially that given here. CONSTITUTIONAL DOCUMENTS 367 SESSIONAL PAPER No. 18 in the island of Grenada ; and it is brought against the defendant, William Hall, who was collector for His Majesty at the time of levying the imposts, and of the action brought, of a duty of four and a half per cent, upon goods exported from the island of Grenada. The action is to recover a sum of money, which was levied by the defendant and paid by the plaintiff, as for this duty of four and a half per cent, upon sugars, which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff. The action is an action for money had and received ; and it is brought upon this ground, namely, that the money was paid to the defendant without consideration, the duty for which he received it not having been imposed by lawful or sufficient authority to warrant the same. And it is stated in the special verdict1 that the money is not paid over, but continues in the defendant's hands, by consent of the Attorney-General, for His Majesty, in order that the question may be tried. The special verdict states Grenada to have been conquered by the British arms from the French King in 1762 ; that the island was ceded by capitulation ; and that the capitulation upon which it surrendered was by reference to the capitulation upon which the island of Martinico had been surrendered on the 7th of February, 1762. The special verdict then states some articles of that capitulation, particularly the fifth, which grants that Grenada should continue to.be governed by its own laws till His Majesty's pleasure be known. It next states the sixth article, where, to a demand of the inhabitants of Grenada requiring that they, as also the religious .orders of both sexes, should be maintained in the property of their effects, moveable and immoveable, of what nature soever, and that they should be preserved in their privileges, rights, honours, and exemptions, the answer is that the inhabitants, being subjects of Great Britain, will enjoy their properties and the same privileges as in the other His Majesty's Leeward Islands. Then it states another artiele of the capitulation, namely, the 7th article, by which they demand that they shall pay no other duties than what they before paid to the French King ; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the administration of government should be paid 'out of the King's demesne : in answer to which they ar.e referred to the answer I have stated, as given in the foregoing article ; that is, being subjects they will be entitled in like manner as the other His Majesty's subjects in the British Leeward Islands. The next thing stated in the special verdict in the treaty of peace signed on the 10th of February, 1763 ; and it states the part of the treaty of peace by which the island of Grenada is cedgd, and other articles which are not material. - The next material instrument which they state is a proclamation under the Great Seal, bearing date the 7«h of October, 1763, reciting thus : " Whereas it will greatly contribute to the settling of our said islands of which " Grenada is one, that they be informed of our love and paternal care for the liberties " and rights of those who are, or shall be inhabitants thereof; we have thought fit to " publish and declare bv this our proclamation, that we have by our letters patent under " our Great Seal of Great Britain, whereby our said Governments are constituted, given " express power and direction to our governors of our said colonies respectively, that so " soon as the state and circumstances of the said colonies will admit thereof, they shall, " with the advice and consent of our said council, call and summon general assemblies, "in such manner and form as is used in the other colonies under our immediate govern- " ment. And we have also given power to the said governors, with the advice and consent "of our said council and assembly of representatives as aforesaid, to make, constitute, The general argument presented in this judgment on the status of the laws of a conquered country, and on the nature of the authority having the right to change them may be compared with the arguments presented, in the case of the Province of Quebec, by the various law Officers of the Crown, alike m Britain and in Canada. I n Vol. I I , of the " Canadian Freeholder " Maseres discusses the whole judgment wrth 1S iSRrferringn to the verdict of the jury before whom the cahe had been tried and who rendered a special verdict setting forth the facts in the case. 2 See Treaty of Paris, 17fí3, article 9; p.76, and also p.8i. t 368 CANADIAN ARCHIVES 6-7 EDWARD VI!., A. 1907 " and ordain laws, statutes, and ordinances for the public peace, welfare and good govern- " ment of our said colonies and the inhabitants thereof, as near as may be agreeable to " the laws of England, and under such regulations and restrictions. as are used in our " other colonies."1 Then follow letters patent under the Great Seal, or rather a proclamation of the 26th of March, 1764, whereby the King recites, that he had ordered a survey and division of the ceded islands, as an invitation to all purchasers to come and purchase upon certain terms and conditions specified in that proclamation. The next instrument stated in the verdict is the letters patent bearing date the 9th of April, 1764. In these letters there is a commission appointing General Melville Governor of the island of Grenada, with power to summon an assembly as soon as the situation and circumstances of the island would admit; and to make laws in all the usual forms with reference to the manner of the other assemblies of the King's Provinces in America.2 » The Governor arrived in Grenada on the 14th of December, 1764 ; before the end •of 1765, the particular day not stated, an assembly actually met; but before the arrival of the Governor at Grenada, indeed, before his Commission, and before his departure from London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the Great Seal, bearing date the 20th of July, 1764, and reciting that in Barbadoes, and in all the British Leeward islands, a duty of four and a half per cent, was paid upon goods exported ; and reciting further : " Whereas it is reasonable and expedient, and of importance to our other sugar "islands, that the like duties should take place in our said* island of Grenada; we have " thought fit, and our royal will and pleasure is, and we do hereby, by virtue of our " prerogative Boyal, order, direct, and appoint that an impost or customs of four and " a half per cent, in specie, shall, from and after the 29th day of September next ensuing " the date of these presents be raised and paid to us, our heirs and successors, for and " upon all dead commodities of the growth or produce of our said island of Grenada that " shall be shipped off from the same, in lieu of all customs and impost duties hitherto " collected upon goods imported and exported into and out of the said island, under the " authority of his Most Christian Majesty, and that the same shall be collected, &c." ; then it goes on with reference to the island of Barbadoes, and the other Leeward islands. The jury find that in fact such duty of four and a half per cent, is paid to his Majesty in all the British Leeward islands. And they find several Acts of Assembly which are relative to the several islands, and which I shall not state, as they are public, and every gentleman may have access to them. » These letters patent of the 20th of'July, 1764, with what I stated in the opening, are all that is material in this special verdict. Upon the whole of the case this general question arises, being the substance of what is submitted to the Court by the verdict : " Whether these letters patent of the 20th of July, 1764, are good and valid to abrogate the French duties, and in lieu thereof to impose this duty of four and a half per cent., which is paid by all thé Leeward islands subject to his Majesty." That the letters are void has been contended at the bar, upon two points : (1) That although they had been made before the Proclamation of the 7th of October, 1763, the King by his prerogative could not have imposed them ; and (2) that, although the King had sufficient authority before the 7th of October, 1763, he had divested himself of that authority by the Proclamation of that date. A great deal has been said, and authorities have been cited relative to propositions in which both sides exactly agree, or which are too clear to be denied. The stating of these will lead us to the solution of the first point. I will state the propositions at large : 1 See Proclamation of 1763, p.119. This is only a paraphrase and not a verbally correct transcript of the section quoted ; see p.120, last paragraph. 2 That this Commission was practically the same as that for the Governor of Quebec is evident from the proceedings in connection with their draughting. See pp. 109 & 116. CONSTITUTIONAL DOCUMENTS 369 SESSIONAL PAPER No. 18 1. A country conquered by the British arms becomes a dominion of the King in the right of his crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain. 2. The conquered inhabitants once received into the conqueror's protection become subjects ; and are universally to be considered in that light, not as enemies or aliens. 3. Articles of capitulation, upon which the country is surrendered, and treaties of peace by which it is ceded, are sacred and inviolate, according to their true intent and meaning. 4. The law and legislation of every dominion equally affects all persons and property within the limits thereof, and is the true rule for the decision of all questions which arise there.- Whoever purchases, sues, or lives there, puts himself under the laws of the place, and in the situation of its inhabitants. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the-natives while he con- * tinues there. 5. The laws of a conquered country continue in force until they are altered by the conqueror. The justice and antiquity of this maxim are incontrovertible ; and the absurd exception as to pagans mentioned in Calvin's case, shows the universality and antiquity of the maxim. That exception could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. Tn the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws, until his Majesty's pleasure be further known. 6. If the King has power (and, when I say " the King," I mean in this case " t h e King without the concurrence of Parliament") to alter the old and to make new laws for a conquered country—this being a power subordinate to his own authority as a part of the supreme legislature and parliament—he can make none which are contrary to fundamental principles he cannot exempt an inhabitant from the laws of trade, or the authority of Parliament, or give his privileges exclusive of his other subjects ; and so in many other instances that might be put. The present Proclamation is an Act of this subordinate legislative power. If it had been made before the 7th of October, 1763, it would have been made on the most reasonable and equitable grounds, putting the island of Grenada as to duties on the same footing as the other islands. If Grenada paid more duties, the injury would have been to her ; if less, it must have been detrimental to the other islands ; nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes that if any new duties were laid on, their condition would be the same as that of the other Leeward islands. The only question which remains on this first point then is, whether the King of himself had power to make such a change between the 10th of February, 1763, the day the treaty was signed, and the 7th of October, 1763. Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and subordinate to the constitution and parliament. I t is left by the constitution to the King's authority to grant or refuse a capitulation. If he refuses, and puts the inhabitants to the sword, or exterminates them, all the lands belong to him ; and if he plants a colony, the new settlers share the land between them, subject to the prerogative of the conqueror. If he receives the inhabitants under his protection and grants them their property, he has power to fix such terms and conditions as he thinks proper. He is entrusted with making peace at his discretion ; and he may retain the conquest, or yield it up, on such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a conquered nation.1 To go into the history of conquests made by the crown of England. The alteration of the laws of Ireland has been much discussed by lawyers and writers of great fame at different periods of time ; but no man ever said the change was made by the parliament of England ; no man, unless perhaps Mr. Molyneux, ever said the 1 See however the discussion of this point by Atty. Gen. Thurlow, p.292. 1ÍS—3—24 370 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 King could not do it. The fact, in truth, after all the researches that have been made, comes out clearly to be as laid down by Lord Chief Justice Vaughan, that Ireland received • the laws of England by the charters and commands of Henry II., King John, Henry III., and he adds an et cetera to take in Edward I., and the successors of the princes named. That the charter of 12 King John was by assent of a parliament of Ireland, he shows clearly to be a mistake. Whenever the first parliament was called in Ireland, that change in their constitution was without an act of the parliament of England, and therefore must have been derived from the King. Mr. Barrington is well warranted in saying that the 12th of Edward I., called the " Statute of Wales," is certainly no more than a regulation made by the King as conqueror, for the government of the country, which, the preamble says, was then totally subdued • and, however for purposes of policy he might think fit to claim it as a fief appertaining to the realm of England, he could never think himself entitled to make laws without assent of parliament to bind the subjects of any part of the realm. Therefore as he did make laws for Wales without assent of parliament, the clear consequence is that he governed it as a conquest : which was his title in fact, and the feudal right was but a fiction. Berwick, after the conquest of it, was governed by charters from the crown, till the reign of James I., without interposition of parliament. Whatever changes were made in the laws of Gascony, Guyenne, and Calais must have been under the King's authority ; if by act of parliament, that act would be extant, for they were conquered in the reign of King Edward I I I . ; and all the acts from that reign to the present time are extant ; and in some acts of parliament there are commercial regulations relative to each of the conquests which I have named ; none making any change in their constitution and laws, and particularly with regard to Calais, which is alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitution : for the inhabitants were summoned by writ to send burgesses to the English parliament ; and, as this was not by act of parliament, it must have been by the sole act of the King. Besides the garrison there are inhabitants, property, and trade at Gibraltar; the King, ever since that conquest, has from time to time made orders and regulations suitable to the condition- of those who live, trade, or enjoy property in a garrison town. Mr. Attorney-General1 has alluded to a variety of instances, several within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have been for years back a great many inhabitants of worth and a great irade carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily follow a conquest by the King of England) the same argument applies herej for before the 7th of October, 1763, the constitution of Grenada continued, and the King stood in the place of their former sovereign. After the con-quest of New York, in which most of the old Dutch inhabitants remained, King Charles II. changed its constitution and political form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent. It is not to be wondered that an adjudged case in point is not to be found ; no dispute ever was started before upon the King's legislative right over a conquest ; it never was denied in a court of law or equity in Westminster-hall, never was questioned in parliament. Lord Coke's report of the arguments and resolutions of the judges, in Calvin's case lays it down as clear (and that strange extrajudicial opinion, as to a conquest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that "if a King"—I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly exploded—" If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom ; but, until he doth make an altera ation of those laws the ancient laws of that kingdom remain ; but if a King hath a 1 Edward Thurlow. See note l,p.305. CONSTITUTIONAL DOCUMENTS 371 SESSIONAL PAPER No. 18 kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament." It is plain that he speaks of his own country where there is a parliament. Also, " if a King hath a kingdom by conquest, as King Henry the Second had Ireland, after King John had given to them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England. Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting officially in a public charge or in private, are not properly authority on which to found a decision, yet I cite them ;—not to establish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it hast received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and conformable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg, what was to be done if they should persist in this refusal. Their answer is—"If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but, if it was to be considered in the same light as the other colonies, no tax could be imposed upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable ; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occasions, traced the constitution of Jamaica as far as there are books or papers in the offices ; I cannot find that any Spaniard remained upon the island so late as the Restoration; if any, they were very few. A gentleman to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names among the white inhabitants of Jamaica ; but there were amongst the negroes. The King, I mean Charles the Second, after the Restoration invited settlers by proclamation, promising them his protection. He made grants of land. He appointed at first a governor and council only ; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner ; not by the grants, but by commissions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown ; like the cases of the islands of St. Helena and St. John, mentioned by Mr. Attorney-General. A maxim of constitutional law, as declared by all the judges in Calvin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise made it doubtful ; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited ; no instance is to be found in any period of our history where it was ever questioned. The counsel for the plaintiff undoubtedly labored this point from a diffidence of what might be.our opinion on the second question. But upon the second point, after full consideration, we are of opinion that before the letters patent of the 20th of July, 1764, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada. The first and material instrument is the proclamation of the 7th of October, 1763. See.what it is that the King there says, and with what view he says it ; how and to what he engages himself and pledges his word : " Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof ; we have thought fit to publish and declare by this our proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circum18—3—24 ¿n CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 stances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies" (and then follow the directions for that purpose.) And to what end 1 " To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our * said colonies," of which this of Grenada is one, " and of the people and inhabitants thereof, as near as may be agreeable to the laws of England." With what view is the promise given ? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution ; but riot so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assured them of the constitution under which they were to live.1 The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase,' to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April, 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should admit.2—You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called : the promise imports the contrary ; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice ; not an interposition of legislative authority between the time of the promise and of calling the assembly. I t does not appear from the special verdict when the first assembly was called ; it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly. We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island of Grenada—in general to all whom it might concern—that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King. Therefore, though the right of the King to have levied taxes on a conquered country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the finding of the verdict, paid in Barbadoes and all the other Leeward islands ; yet by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is inverted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only now be done, to use the words of Sir Philip Yorke and Sir Clement Wearg, " by the assembly of the island, or by an act of the Parliament of Great Britain." The consequence is, judgment must be given for the plaintiff. 1 Since Canada came equally with Grenada under the Proclamation of Oct. 1763, the chief features of this paragraph apply closely to the Canadian ease and represent the claims so constantly put forth by the English element in their petitions. 2 See preparations for the issue of Commissions for Governors Melville and Murray, among others : pp.109 & 116. CONSTITUTIONAL DOCUMENTS ' 373 SESSIONAL PAPER No. 18 MASERES TO THE LORD CHANCELLOR. 1 April SO1 " 1774. M Y LORD, I n n e r temple I took the liberty of communicating to your Lordship some time agothe testimonies of Mr Le Brun,3 the French lawyer at Quebeck, and Mr Du Mas Saint Martin,3 the justice of peace at Montreal, concerning the favourable reception my French mémoire4 had met with in Canada from the Canadians as well as the English. I now beg leave to add the testimony of Mr De Lisle, the protestant minister and Chaplain of the garrison at Montreal, a native of old France, and Colonel Christie, a Scotsman of , an excellent understanding and easy fortune, and who has known Canada ever since the conquest of it, and who is proprietor of two valuable seigniories in it ; both to the same purpose. Mr De Lisle writes as follows—"Your answer to Mr Cugnet is universally admired and applauded by both English and Canadians." And Colonel Christie writes in these words. "I can assure you that your mémoire à la défense du plan d'acte jüúy rp0 a j20 w £he Inhabitants the Privilege of the Common Law Writ of Habeas
Corpus.
gtuy T 0 pr 0 vi(j e that all Incumbents be nominated by the Governor in Writing
under his Hand and Seal, unless the Eight of Patronage be in any private Person And
that all Incumbents be irremoveable except for Misdemeanor to be tried by the Governor
and Council.
gts rp0 g j v e a jj Ecclesiastical Jurisdiction in regard to Marriages, the Probate of
Wills, granting Letters of Administration and other Civil Rights, except only in the
Case of Tythes to the Courts of Law, and all Questions concerning Tythes to be
determined by the Governor & Council.
10th Every Protestant Parishioner to pay his Tythes to the King’s Officer towards
providing a Maintenance for the Protestant Clergy.
On Aug 26th, Maseres writing to Dartmouth, says : “Mr. Maseres begs leave to acquaint his Lordship that
on Tuesday se’ennight (which he apprehends to be since his Lordship left town, ) be had the honour of waiting
on Lord North by appointment at Bushey Park, to confer with him on the affairs of Quebec ; and that
Lord North seemed fully determined to do something towards the settlement of that Province in the next
session of parliament, and particularly with respect to the establishment of a revenue and a legislature.
His Lordship was clearly of opinion that this ought to be by a legislative council, and not an assembly ;
and he liked very well the proposal (contained in Mr. Maseres’s draught of an act of parliament for establishing such a council,) that they should not be invested with the power of taxation, but only that of legislation, and that the necessary taxes should be laid by the Parliament of Great Britain.
” Lord Mansfield has also very lately declared an intention of reading over all the papers relating to
the province of Quebec, and using his endeavours towards procuring a Settlement of it. And, about two
months ago, Lord Chancellor made a similar declaration. And the leisure of this season of retirement
seems to be favourable to this good design of their Lordships to give this subject a thorough consideration. If therefore, Lord Dartmouth should bring on the determination of this business in the privy council in the course of this vacation, it seems likely that he would meet with a great concurrence and support
from his Majesty’s other servants and counsellors, and that the whole settlement of that province might
be prepared and digeste-i in the manner necessary for the consideration of parliament by the beginning of
next Session.” M 384, p. 194.
i
376 GAWADIAW ARCHIVES
6-7 EDWARD VI!., A. 1907
FIRST D R A U G H T OF QUEBEC BILL. 1
An Act for granting for a limited time, therein menta
Powers of Legislation to the
Governor & Council of His Majesty’s Province of Quebec for the time being—
Whereas His Majesty was graciously pleased, by a Royal Proclamation bearing
Date at St. James’s the 7th Day of Octr
,in the third year of His Majesty’s Reign, to
publish & declare, that certain Lands •& Countries in America, therein mentioned &
described, had been erected into a Province by the name of the Pi ovince of Quebec,
& that the Gov1
thereof was expressly empowered & directed, by Commission under the
Great Seal, that so soon as the State & Circumstances of the said Province would admit
thereof, he should, with the Advice & Consent of His Majesty’s Council for tha
said Province, summon & call a General Assembly within the said Province in such
manner & form as is used & directed in those Colonies & Provinces in America, which
are under His Majesty’s immediate Government, & that power had been also given to
the said Governor with the consent of the Council & of the Representatives of the People
so to be summoned & elected as aforesaid, to make constitute & ordain Laws, Statutes
& Ordinances, for the public peace Welfare & good Government of the said Province
& of the People & Inhabitants thereof. And Whereas the State CD
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384 CANADIAN AROBIVES
6-7 EDWARD VII., A. 1907
not the Laws of England for the Decision of the same, and all Causes that shall hereafter
be instituted in any of the Courts of Justice to be appointed, within & for the said
Province by His Majesty, His Heirs & Successors, shall, with respect to such Property
& Rights be determined by the Judges of the same agreeably to the said Laws & Customs of Canada & the several Ordinances that shall from time to time be passed in
the said Province by the Gov1
Lieut-Govr
or Commander in Chief by & with thé advice
& consent of the Legislative Council of the same to be appointed in manner herein
before mentioned & by no other Laws Customs or Usages whatsoever.
Provided always that it shall & may be lawful to & for every Person in the said
Province, whether Canadian or English, that is Owner of any Goods or Credits in the
same, and that has a right to alienate the said Lands, Goods or Credits in his Life time
by Deed of Sale, Gift or otherwise to devise or bequeath the same at his or her death
by his or her last Will & Testament to such Persons, & in such manner as he or she
shall think fit, any Law, Usage or Custom; heretofore; or now prevailing in the Province, to the contrary hereof in any wise notwithstanding. And provided also that
nothing in this Act shall extend or be construed to extend to any Lands that have been
granted by His Majesty or shall hereafter be granted by His Majesty His Heirs &
Successors to be holden in free & common soccage1
& that it shall & may be lawful to the Civil Government of the said Province of Quebec and the Powers and
vineetobenuli Authorities given to the Governor and other Civil Officers of the said Proand void after vince, by the Grants and Commissions issued in consequence thereof, have
May 1,177S. Deen- found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof amounted, at the
Conquest, to above Sixty-five thousand Persons professing the Religion of
the Church of Borne, and enjoying an established Form of Constitution and
System of Laws, by which their Persons and Property had been protected,
governed, and ordered, for a long Series of Years, from the First Establishment of the said Province of Canada ; be it therefore further enacted by the
Authority aforesaid, That the said Proclamation, so far as the same
relates to the said Province, of Quebec, and the Commission under the
Authority whereof the Government of the said Province is at present
CONSTITUTIONAL DOCUMENTS . 403
SESSIONAL PAPER No. 18
administered, and all and every the Ordinance and Ordinances made by the
Governor and Council of Quebec for the Time being, relative to the Civil
Government and Administration of Justice in the said Province, and all
Commissions to Judges and other Officers thereof, 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.
Inhabitants o^ And, for the more perfect Security and Ease of the Minds of the InhabiQwebee may tants 0f the said Province, it is hereby declared, That His Majesty’s SubBtMbibh Reli- jects, professing the Religion of che Church of Rome of and in the said
gion, subject Province of Quebec, may have, hold, and enjoy, the free Exercise of the
to theKmgs j},e]}gion 0f f¿ e Church oí’Borne, subject to the King’s Supremacy, declared
by Act IEhz.; and established by an Act, made in tita First Year of the Reign of Queen
Elizabeth, over all the Dominions and Countries which then did, or thereand t^eOlergy a ft e r should belong, to the Imperial Crown of this Realm ; and that the
accustomed Clergy of the said Church may hold, receive, and enjoy, their accustomed
Dues. Dues and Rights, with respect to such Persons only as shall profess the
said Religion. ”
Provision may Provided nevertheless, That it shall be lawful for His Majesty, His
be made by Heirs or Successors, to -make such Provision out of the rest of the said
forthe^Sui!>y
accustomed Dues and Rights, for the Encouragement of the Protestant
port of the Religion, and for the Maintenance and Support of a Protestant Clergy
Protestant within the said Province, as he or they shall, from Time to Time, think
oiergy. necessary and expedient.
Provided always, and be it enacted, That no Person, professing the
professing^the Religion of the Church of Rome, and residing in the said Province, shall be
Bamish Reli- obliged to take the Oath required by the said Statute passed in the First
gion obliged Year of the Reign of Queen Elizabeth, or any other Oaths substituted by any
Oath of I Eliz- other Act in the Place thereof; but that every such Person who, by the
but to take sa*^ Statute is required to take the Oath therein mentioned, shall be
before the ‘ obliged, and is hereby required, to take and subscribe the following Oath
Governor, &c, before the Governor, or such other Person in such Court of Record as His
Oath? 0 W l n s Majesty shall appoint, who are hereby authorised to administer the same ;
videlicet,
The Oath. / A. B. do sincerely promise and swear, That I will be faithful, and bear
true Allegiance to His Majesty King GEOBGE, and him will defend to the
‘ utmost of my Power, against all traiterons Conspiracies, and Attempts
whatsoever, which shall be made against His Person, Grown and Dignity ;
and I will do my utmost Endeavour to disclose and make known to His
Majesty, His Heirs and Successors, all Treasons, and traiterons Conspiracies, and Attempts, tvhich I shall know to be against Him, or any of Them ;
and all this I do swear without any Equivocation, mental Evasion, or
secret Reservation, and renouncing all Pardons and Dispensations from
any Power or Person whomsoever to the Contrary.
So H E L P M B GOD.
inïthToatîT -A-nd every such Person, who shall neglect or refuse to take the said Oath
to be subject before mentioned, shall incur and be liable to the same Penalties, Forfeits thK ^fJfV t u r e s» Disabilities, and Incapacities, as he would have incurred and been
Miz. y
° liable to for neglecting or refusing to take the Oath required by the said
H’ M • i ‘ Statute passed in the First Year of the Reign of Queen Elizabeth.
CbmadianSub- And be it further enacted by the Authority aforesaid, That all His
jects (religious Majesty’s Canadian Subjects, within the Province of Quebec, the religious
edl ma^hoîd Orders and Communities only excepted, may also hold and enjoy their
all their Pos- Property and Possessions, together with all Customs and Usages relative
sessions, etc. thereto, and all other their Civil Rights, in as large, ample, and beneficial
and inMatters Manner, as if the said Proclamation, Commissions, Ordinances, and other
V L T B°” t Acts and Instruments, had not been made, and as may consist with their
to be had to Allegiance to His Majesty, and Subjection to the Crown and Parliament
18—3—26 J
404 CANADIAN AROHIYES
6-7 EDWARD VII., A. 1907
-the Laws of of Great Britain; and that in all Matters of Controversy, relative to ProDœi?
sfon?rtheP
ert
y
a n d C i v i l 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, to be appointed within and for
the said Province, by His Majesty, His Heirs and Successors, shall, with
respect to such Property and Rights, be determined agreeably to the said
Laws and Customs of Canada, until they shall be varied or altered by
any Ordinances, that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, oi Commander in Chief, for
the Time being, by and with the Advice and Consent of the Legislative
Council of the same, to be appointed in Manner herein-after mentioned.
•Not to extend Provided always, That nothing in this Act contained shall extend, or be
.granted by construed to extend, to any Landh that have been granted by His Majesty,
His Majesty 0 r shall hereafter be granted by His Majesty, His Heirs and Successors, to
SoocaKe1011 ^e holden in free and common Soccage.
Owners of Provided also, That it shall and may be lawful to and for every Person
Ooods may thaA, is
Owner of any Lands, Goods, or Credits, in the said Province, and
same by Will *n a*
n a s a Right to alienate the said Lands, Goods, or Credits, in his or her
&o. Life-time, by Deed of Sale, Gift, or otherwise, to devise or bequeath the
same at his or her Death, by his or her last Will and Testament ; any Law,
Usage, or Custom, heretofore or now prevailing in the Province, to the
if executed Contrary hereof in any-wise notwithstanding ; such Will being executed,
tae°Laws of either according to the Laws of Canada, or according to the Forms preCanada. scribed by the Laws of England,
Criminal Law And whereas the Certainty and Lenity of the Criminal Law of England,
of England to and the Benefits and Advantages resulting from the Use of it, have been
be continued sensibly felt by the Inhabitants, from an Experience of more than Nine
Province. Years, during which it has been uniformly administered ; be it therefore
further enacted by the Authority aforesaid, That the same shall continue
to be administered, and shall be observed as Law in the Province of Quebec,
as well in the Description and Quality of the Offence as in the Method of
Prosecution and* Trial ; and the Punishments and Forfeitures thereby
inflicted to the jxclusion of every other Rule of Criminal Law, or Mode of
Proceeding thereon, which did or might prevail in the said Province before
the Year of our Lord One thousand seven hundred and sixty-four ; any
Thing in this Act to the Contrary thereof in any Respect notwithstanding ;
subject nevertheless to such Alterations and Amendments as 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 said Province,
hereafter to be appointed, shall, from Time to Time, cause to be made
therein, in Manner herein-after directed.
„ . M And whereas it may be necessary to ordain many Regulations for the
may appoint a future Welfare and good Government of the Province of Quebec, the
Council for Occasions of which cannot now be foreseen, nor, without much Delay and
the Province*• I n c o n v e i l i
e n c e> be provided for, without intrusting that Authority, for a
‘ certain Time, and under proper Restrictions, to Persons resident there :
And whereas it is at present inexpedient to call an Assembly ; be it therefore enacted by the Authority aforesaid, That it shall and may be lawful
for His Majesty, His Heirs and Successors, by Warrant under His or Their
Signet or Sign Manual, and with the Advice of the Privy Council, to constitute and appoint a Council for the Affairs of the Province of Quebec, to
consist of such Persons-resident there, not exceeding Twenty-three, nor less
r
than Seventeen, as His Majesty, His Heirs and Successors, shall be pleased
may make *° appoint ; and, upon the Death, Removal, or Absence of any of the
Ordinances, Members of the said Council, in like Manner to constitute and appoint such
w
j*!? C o n s e n t and so many other Person or Persons as shall be necessary to supply the
Governor. Vacancy or Vacancies ; which Council, so appointed and nominated, or the
CONSTITUTIONAL DOCUMENTS 405
SESSIONAL PAPER No. 18
major Part thereof, shall have Power and Authority to make Ordinances
for the Peace, Welfare, and good Government, of the said Province, with
the Consent of His Majesty’s Governor, or, in his Absence, of the Lieutenantgovernor, or Commander in Chief for the-Time being.
The Council Provided always, That nothing in this Act contained shall extend to
are not authorise or impower the said legislative Council to lay any Taxes or Duties
lavT^xes *° w
i
t n i
n
the said Province, such Rates and Taxes only excepted as the
Pubhck Roads Inhabitants of aDy Town or District within the said Province may be
or Buildings authorised by the said Council to assess, levy, and apply, within the said
excep e . Town or District, for the Purpose of making Roads, erecting and repairing
publick Buildings, or for any other Purpose respecting the local Convenience
and (Jeconomy of such Town or District.
Ordinances Provided also, and be it enaeted by the Authority aforesaid, That every
f^íi*1
?
be Ordinance so to be made, shall, within Six Months, be transmitted by the
His Majesty Governor, or, in his Absence, by the Lieutenant-governor, or Commander
for Hi« in Chief for the Time being, and laid before His Majesty for His Royal
Approbation. Approbation ; and if His Majesty shall think fit to disallow thereof, the
same shall cease and be void from the Time that His Majesty’s Order in
Council thereupon shall be promulgated at Quebec
Ordinances Provided also, that no Ordinance touching Religion, or by which any
frión-not tobe Punishment may be inflicted greater than Fine or Imprisonment for Three
in Force with- Months, shall be of any Force or Effect, untiJ the same shall have received
?
u t His Ma- His Majesty’s Approbation.
bation. ppr0~ Provided also, That no Ordinance shall be passed at any Meeting of the
When Ordin.- Council where less than a Majority of the whole Council is present, or at
anees are to be any Time except between the First Day of. January and the First Day of
passed by a May, unless upon some urgent Occasion, in which Case every Member thereof ,resident at Québec, or within Fifty Miles thereof, shall be personally summoned by the Governor, or, in his Absence, by the Lieutenant-governor, or
Commander in Chief for the Time being, to attend the same.
Nothin» to – ^ d be it further enacted by the Authority aforesaid, That nothing herein
hinder His contained shall extend, or be construed to extend, to prevent or hinder His
Majesty to Majesty, His Heirs and Successors, by His or Their Letters Patent under
Courts of the Great Seal of Great Britain, from erecting, constituting, and appointing,
Criminal, such Courts of Criminal, Civil, and Ecclesiastical Jurisdiction within and.
Civil, and Eo- for ^ n e saj^¿ Province of Quebec, and appointing, from Time to Time, the
Jurisdiction. Judges and Officers thereof, as His Majesty, His Heirs and Successors,
shall think necessary and proper for the Circumstances of the said Province.
All Acts for- Provided always, and it is hereby enacted, That nothing in this Act conmerly made tained shall extend, or be construed to extend, to repeal or make void,
forcedwitliin within the said Province of Quebec, any Act or Acts of the Parliament of
the Province. Great Britain heretofore made, for prohibiting, restraining, or regulating,
the Trade or Commerce of His Majesty’s Colonies and Plantations in
America ; but that all and every the said Acts, and also all Acts of Parliament heretofore made concerning or respecting the said Colonies and Plantations, shall be, and ai>e hereby declared to be, in Force, within the said
Province of Quebec, and every Part thereof.
Finis.
406 CAS AI) I AX ARCHIVES
6-7 EDWARD VII.. A. 1907
QUEBEC R E V E N U E ACT.1
A N S T O D É C I M O Q U A R T O
GEORGII I I I . REGIS.
CAP. L X X X V I I I .
An Act to establish a Fund towards further defraying the Charges of the Administration of Justice, and Support of the Civil Government within the Province of
Quebec, in America.
WHEREAS certain Duties were imposed, by the Authority of His most
Preamble. Christian Majesty, upon Wine, Rum, Brandy, Eau de Vie de Liqueur,
ties împosed imported into the Province of Canada, now called the Province of Quebec,
by His most and also a Duty of Three Pounds per Centum ad Valorem, upon all dry
Christian M a ” Goods imported into, and exported from, the said Province, which Duties
Bum, Brandy, subsisted at the Time of the Surrender of the said Province to Your
etc. impoited Majesty’s Forces in the late War : And whereas it is expedient that the
into Quebec, sa^¿ j)u-(¿eg should cease and be discontinued ; and that in Lieu and in
Stead thereof, other Duties should be raised by the Authority of Parliament,
for making a more adequate Provision for defraying the Charge of the
Administration of Justice, and the Support of Civil Government in the said
Province : We, Your Majesty’s most dutiful and loyal Subjects, the
Commons of Great Britain, in Parliament assembled, do most humbly
beseech Your Majesty that it may be enacted ; and be it enacted by the
King’s most Excellent Maj-esty, by and with the Advice and Consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the Authority of the same, That from and after the
after April 5, Fifth Day of April, One thousand sevenKhundred and seventy-five, all the
1775, to be Duties which were imposed upon Rum, Brandy, Eau de Vie de Liqueur,
witMnThe w
^ h i n the said Province, and also of Three Pounds per Centum ad Valorem,
Province, on dried Goods imported into, or exported from, the said Province, under
the Authority of His most Christian Majesty, shall be, and are hereby
discontinued ; and that in Lieu and in Stead thereof, there shall, from and
and in Stead a
f*er the said Fifth Day of April, One thousand seven hundred and
of which the seventy-five, be raised, levied, collected, and paid, unto His Majesty, His
following Du- j j e i r s a n c j Successors, for and upon the respective Goods herein-after mentó His tioned, which shall be imported or brought into any Part of the said ProvMajesty. ince, over and above all other Duties now payable in the said Province, by
any Act or Acts of Parliament, the several Rates and Duties following ;
that is to say,
The Rates. For every Gallon of Brandy, or other Spirits, of the Manufacture of
Great Britain, Three-pence.
For every Gallon of Rum, or other Spirits, which shall be imported or
brought from any of His Majesty’s Sugar Colonies in the West Indies,
Sixpence.
For every Gallon of Rum, or other Spirits, which shall be imported or
brought from any other of His Majesty’s Colonies or Dominions in
America, Nine-pence.
For every Gallon of Foreign’Brandy, or other Spirits, of Foreign Manufacture, imported or brought from Great Britain, One Shilling.
For every Gallon of Rum, or Spirits, of the Produce or Manufacture of
any of the Colonies or Plantations in America, not in the Possession or
1
The text of this, as also of the following Act, is taken from the original folio black letter form in
which it was first issued by the King’s Printers, J3yre and Strachan.
CONSTITUTIONAL DOCUMENTS 407
SESSIONAL PAPER No. 18
under the Dominion of His Majesty, imported from any other Place,
except Great Britain, One Shilling.
For every Gallon of Molasses and Syrups, which shall be imported or
brought into the said Province, in Ships or Vessels belonging to His
• Majesty’s Subjects in Great Britain or Ireland, or to His Majesty’s Subjects
in the said Province, Three-pence.
For every Gallon of Molasses and Syrups, which shall be imported or
brought into the said Province, in any other Ships or Vessels, in which the
same may be legally imported, Sixpence ; and after those Rates for any
greater or less Quantity of such Goods respectively.
Rates deemed And it is hereby further enacted by the Authority aforesaid, That the
Sterling said Rates and Duties, charged by this Act, shall be deemed, and are hereby
GreMBritnim- declared to1
be, Sterling Money of Great Britain, and shall be collected,
‘ recovered, and paid, to the Amount of the Value which such nominal Sums
bear in Great Britain ; and that such Monies may be received and taken
according to the Proportion and Value of Five Shillings and Sixpence the
Oun’ce in Silver; and that the said Duties, herein-before granted, shall be
raised, levied, collected’ paid, and recovered, in the same Manner and Form,
and by such Rules, Ways, and Means, and under such Penalties and Forfeitures, except in such Cases where any Alteration is made by this Act, as
any other Duties payable to His Majesty upon Goods imported into any
British Colony or Plantation in America are or shall be raised, levied, colhow thev are ‘ e c*
e
d, paid, and recovered, by any Act or Acts of Parliament, as fully and
to be levied, effectually, to all Intents and Purposes, as if theseveral Clauses, Powers, Direc-
&c
– tions, Penalties, and Forfeitures, relating thereto, were particularly repeated
and again enacted in the Body of this present Act ; and that all the Monies
that shall arise by the said Duties, (except the necessary Charges of raising,
collecting, levying, recovering, answering, paying, and accounting for the
same,) shall be paid by the Collector of His Majesty’s Customs, into the
to whom thev Hands of His Majesty’s Receiver-general in the said Province for the Time
are. to be paid, being, and shall be applied, in the first Place, in making a more certain and
adequate Provision, towards defraying the Expences of the Administration
of Justice, and of the Support of Civil Government, in the said Province ; and
that the Lord High Treasurer, or Commissioners of His Majesty’s Treasury,
or any Three or more of them for the Time being, shall be, and is or are
and how-to hereby impowered, from Time to Time, by any Warrant or Warrants under
e app îe . , j ^ g ^ (¡heir Hand or Hands, to cause such Money to be applied out
of the said Produce of the said Duties, towards defraying the said Expences ;
and that the Residue of the said Duties shall remain and be reserved in the
Hands of the said Receiver-general, for the future Disposition of Parliament.
And it is hereby further enacted by the Authority aforesaid, That if
with respect &nJ Coods chargeable with any of the said Duties herein-before mentioned
to Goods shall be brought into the said Province by Land Carriage, the same shall
í?íol’Sht ^*? pass and be carried through the Port of Saint Jb/Ws, near the River Sorrel ;
chargeable o r ^ such Goods shall be brought into the said Province by any inland
with the Du–Navigation, other than upon the River Saint Lawrence, the same shall pass
Mentioned a Q (i De carried upon the said River Sorrel, by the said Port, and shall be
there entered with, and the said respective Rates and Duties paid for the
same, to such Officer or Officers of His Majesty’s Customs as shall be there
appointed for that Purpose; and if any such Goods coming by Land Carriage
or inland Navigation, as aforesaid, shall pass by or beyond the said Place,
before named, without Entry or Payment of the said Rates and»Duties, or
shall be brought into any Part of the said Province, by or through any other
Place whatsoever, the said Goods shall be forfeited ; and every Person who
shall be assisting, or otherwise concerned in the bringing or removing such
Goods, or to whose Hands the same shall come, knowing that they were
brought or removed contrary to this Act, shall forfeit Treble the Value
408 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
of such Goods, to be estimated and computed according to the best Price
that each respective Commodity bears in the Town of Quebec, at the Time
such Offence shall be committed ; and all the Horses, Cattle, Boats, Vessels,
and other Carriages whatsoever, made use of in the Removal, Carriage, or
Conveyance of such Goods, shall also be forfeited and lost, and shall and
may be seized by any Officer of His Majesty’s Customs, and prosecuted, as
herein after mentioned.
ifenalties and And it is hereby further enacted by the Authority aforesaid, That the
Porfeitures said Penalties and Forfeitures by this Act inflicted, shall be sued for and prowhere to be se cuted in “any Court of Admiralty, or Vice Admiralty, having Jurisdiction
uros©cutGQ
for etc. within the said Province, and the same shall and may be recovered and
divided in the same Manner and Form, and by the same Rules and Regulations, in all Respects, as other Penalties and Forfeitures for Offences against
the Laws relating to the Customs and Trade of His Majesty’s Colonies in
America shall or may, by any Act or Acts of Parliament be sued for, prosecuted, recovered, and divided.
Any Person And be it further enacted by the Authority aforesaid, That there shall,
keeping a ‘ from and after the Fifth Day of April, One thousand seven hundred and
iickUEnteiU
seventy-five, be raised, levied, collected, and paid, unto His Majesty’s
tamment to Receiver-general of the said Province, for the Use of His Majesty, His
pay 11.16 s. Heirs and Successors, a Duty of One Pound Sixteen Shillings, Sterling
Money of Great Britain, for every Licence that shall be granted by the
Governor, Lieutenant Governor, or Commander in Chief of the said
Province, to any Person or Persons for keeping a House or any other Place
Penalty of 101. 0f pUbijck Entertainment, or for the retailing Wine, Brandy, Rum, or any
Offence. other Spirituous Liquors, within the said Province ; and any Person keeping
any such House or Place of Entertainment, or retailing any such Liquors
without such Licence, shall forfeit and pay the Sum of Ten Pounds for every
such Offence, upon Conviction thereof ; One Moiety to such Person as shall
inform or prosecute for the same, and the other Moiety shall be paid into
the Hands of the Receiver-general of the Province, for the Use of His
. Majesty.
Not to make Provided always, That nothing herein contained shall extend, or be
void French construed to extend, to discontinue, determine, or make void, any Part
reserved ât °% ^he territorial or casual Revenues, Fines, Rents, or Profits whatsoever,
the Conquest, which were reserved to, and belonged to, His most Christian Majesty, before
and at the Time of the Conquest and Surrender thereof to His Majesty the
King of Great Britain ; but that the same, and every of them, shall remain
and be continued to be levied, collected, and paid, in the same Manner as
if this Act had never been made ; any Thing therein contained to the Contrary notwithstanding.
In Suits And be it further enacted by the Authority aforesaid, That if any
brought pur- action or Suit shall be commenced against any Person or Persons for any
Act, Thing done in pursuance of this Act, and. if it shall appear to the Court or
* Judge where or before whom the same shall be tried, that such Action or
Suit is brought for any Thing that was done in pursuance of and by the
Defendants to Authority of this Act, the Defendant or Defendants shall be indemnified
have Treble and acquitted for the same ; and if such Defendant or Defendants shall be
Costs. g o acquit’ ed ; or if the Plaintiff shall discontinue such Action or Suit, such
Court or Judge shall award to the Defendant or Defendants Treble Costs.
Finis.
CONSTITUTIONAL DOCUMENTS 409
SESSIONAL PAPER No. 18
A N N O DÉCIMO Q U I N T O
GEORGII I I I . REGIS.
CAP. XL.
An Act for amending and explaining an Act, passed in the Fourteenth Year of His
Majesty’s Reign, intituled, An Act to establish a Fund towards further defraying
the Charges of the Administration of Justice, and Support of the Civil Government
within the Province of Quebec, in America.
Preamble. WHEEEAS by an Act, passed in the Fourteenth Year of His Majesty’s
14É?eo ixr Re
ign
> (intituled, An Act to establish a Fund towards further defraying the
recited. Charges of the Administration of Justice, and Support of the Civil Govern-
“> cment within the Province of Quebec, in America,) it is, amongst other
Things, enacted, That if any Goods, chargeable with any of the Duties in
the said Act me .tioned, shall be brought into the said Province by Land
Carriage, the same shall pass and be carried through the Port of Saint
John’*, near the River Sorrel ; or if such Goods shall be brought into the
said Province by any Inland Navigation, other than upon the River Saint
Lawrence, the same shall pass and be carried upon the said River Sorrel by
the said Port, and shall be there entered with and the said respective Rates
and Duties paid for the same, to such Officer or Officers of His.Majesty’s
Customs as shall be there appointed for that Purpose ; and if any such Goods
coming by Land Carriage Qr Inland Navigation as aforesaid, shall pass by
or beyond the said Place before named without Entry or Payment of the
said Rates and Duties, or shall be brought into any Part of the said Province
by or through any other Place whatsoever, the said Goods shall be forfeited ;
and every Person who shall be assisting, or otherwise concerned, in the
(
‘ bringing or removing such Goods, or to whose Hands the same shall come,
knowing that they were brought or removed contrary to this Act, shall
forfeit Treble the Value of such Goods ; to be estimated and computed
according to the best Price that each respective Commodity bears in the
Town of Quebec at the Time such Offence shall be committed ; and all the
Horses, Cattle, Boats, Vessels, and other Carriages whatsoever, made use
of in the Removal, Carriage, or Conveyance of such Goods, shall be forfeited
and lost, and shall and may be seized by any Officer of His Majesty’s Customs, and prosecuted as therein-after mentioned : And whereas there is
, Reason to apprehend, that the Regulations and Restrictions contained in
the said herein-before recited Clause, so far as they relate to the bringing
of Rum, Brandy, or other Spirits, into the Province of Quebec by Land
Carriage, may, without further Explanation, operate to the Prejudice and
Disadvantage of the Commerce carried on with the Indians in the upper or
interior Parts of the said Province, we, Your Majesty’s most dutiful and
loyal Subjects, the Commons of Great Britain, in Parliament assembled, do
His Majesty’s most humbly beseech Your Majesty that it maybe enacted; and be it
bring°by m a y e n a c t e d b
y
t h e K i n g ‘ s
most Excellent Majesty, by and with the Advice and
Land’or In- Consent of the Lords Spiritual and Temporal, and Common’s, in this present
land Naviga- Parliament assembled, and by the Authority of the same, That it shall and
Parts’ of° Qui- m a y be lawful to and for all His Majesty’s Subjects freely to bring, carry or
lee, not here- convey, by Land Carriage, or Inland Navigation, into any Parts of the
‘ tofore eom~. Province of Quebec, not heretofore comprehended within the Limits thereof
üi’piisiiQfiCl i n
the Royal by His Majesty’s Royal Proclamation of the Seventh of October, One thousand
Proclamation seven hundred and sixty-three, any Quantity of Rum, Brandy, or other
° °CQ a t^?’ Spirits, any Thing contained in the before-recited Act of Parliament to the
of Rum, Bran- contrary thereof in any-wise notwithstanding.
dy, etc.
F I N I S .
410 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
CARLETON TO DARTMOUTH. 1

PLAÎT POE T H E F U T U R E MANAGEMENT OP I N D I A N A F F A I R S ,
R E F E R R E D TO I N T H E T H I R T Y SECOND ARTICLE OF T H E
FOREGOING INSTRUCTIONS.
1. That the Trade and Commerce with the several Tribes of Indians in North
America under the protection of His Majesty shall be free and open to all His
Majesty’s subjects, under the several Regulations and Restrictions hereafter mentioned,
so as not to interfere with the Charter to the Hudson’s Bay Company.
2. That for the better Regulation of this Trade, and the Management of Indian
Affairs in general, the British Dominions in North America be divided into two
Districts, to comprehend and include the several Tribes of Indians mentioned in the
annexed Lists A. and B,
3. That no Trade be allowed with the Indians in the southern District, but within
the Towns belonging to the several Tribes included in such District ; and that in the
Northern District the Trade be fixed at so Many Posts, and in such Situations, as shall
be thought necessary.
4. That all Laws, now in Force in the several Colonies for regulating Indian Affairs,
or Commerce, be repealed.
5. That there be one general Agent or Superintendant appointed by His Majesty
for each District.
6. That the Agent or Superintendant for the Northern District shall be allowed
three Deputies to assist him in the Administration of Affairs within his District ; and
that the Agent or Superintendant for the Southern District shall be allow€d two
Deputies’.
7. That there shall be a Commissary, Interpreter, and Smith, appointed by His
Majesty to reside in the Country of each Tribe in the Southern District, and at each
Post in the Northern District.
8. That it be recommended to the Society for the propagation, of the Gospel in
foreign parts to appoint four Missionaries in each District, to reside at such places, as
the Agent or Superintendant for each District shall recommend.
9. That theiCommissaries, Interpreters, and Smiths in each District do Act under
the immediate Direction and Orders of the Agent or Superintendant, who shall have a
power of Suspending them in Case of Misbehaviour, and, in Case of Suspension of a
different amounts from those here given. Among the variations are the following—Lt. Governor, £800,
Chief Justice, £1,000 ; the six Judges, £300 each, Commissary for Indians, £200. There are two additional
offices, Judge of the Admiralty, £200, Register of the Court of Admiralty, £100. There was no provision
for Schoolmasters, or for Contingent Expenses. From another document we find that the appointments
to these positions were divided between Lord Dartmouth, the Treasury Board, and the Governor, as
follows,^
” Lord Dartmouth—Lt. Governor, Chief Jastice, Seery & Register, 3 Judges, Attorney Gen1
, Clerk of
Crown, Commissary for Indian Affairs, Naval Officers, 5 Superintend’8
, 4 Ministers, 2 Schoolmasters.
lreasury—Surveyor of Lands, D” of “Woods, Receiv’ Gen1
.
Governor—Clerk of Council, Captain of ye Port, 2 Sheriffs, 5 Judges, 5 Assessors, 5 Sheriffs, Grand
Voyer, ffrench Secretary.” M 385, p. 492.
18—a—28
434 CANADIAN ARCHIVES
6-7 EDWARD VI!., A. 1907
Commissary, or of a Vacancy by Death, or Resignation, the Office shall be executed,
until the King’s pleasure is known, by one of the Deputies to the Agent or Superintendant.
10. That the said Agent or Superintendant shall have the Conduct of all public
Affairs relative to the Indians ; and that neither the Commander in Chief of His
Majesty’s Forces in America, nor any of the Governors and Commanders in Chief of
any of the Colonies, or persons having military Commands in any of the Forts within
each of the said Districts, do hold any General Meetings with the Indians, or send any
public Talks tq them without the Concurrence of the Agent or Superintendant, unless
in cases of great Exigency, or when the said Agent or Superintendant may be in some
remote part of his District.
11. That the said Agents or Superintendants do in all Affairs of political consideration, respecting peace and war with the Indians, purchases of Lands, or other Matters,
on which it may be necessary to hold any general Meetings with the Indians, advise
and act in concert with the Governors, (or the Governors and Councils, as the Occasion
may require), of the several Colonies within their respective Districts ; And that the
said Agents or Superintendants shall be Councillors extraordinary within each Colony
in their respective Districts, in like manner as the Surveyors General of the Customs
for the Northern and Southern Districts of America.
12. That the Governor or Commander in Chief of every Colony be directed to
communicate to the Agent or Superintendant of that District, within which his Government lyes, all such Information and Intelligence, as he may receive respecting Indian
Affairs ; And that the Agents or Superintendants shall in like manner communicate to
the Governors all Intelligence and Information, respecting the State of Indian Affairs,
which may in any wise regard the Security and Interest of the said Colonies.
13. That no Order shall be issued by the Governor or Commander in Chief of any
of His Majesty’s Colonies, or by any Officer having Military Command in any Forts
within the Indian Country, for stopping the Trade with any Tribe of Indians in
either of the said Districts, without the Concurrence and Consent of the Agent or
Superintendant for Indian Affairs.
14. That the said Agents or Superintendants shall by themselves, or sufficient
Deputies visit the several Posts or Tribes of Indians within their respective Districts
once in every year, or oftener, as Occasion shall require, to enquire into, and take an
Account of the Conduct and Behaviour of the subordinate Officers at the said Posts,
and in the Country belonging to the said Tribes ; to hear Appeals ; and redress all
Complaints of the Indians ; make the proper Presents ; and transact all Affairs relative
to the said Indians.
15. That for the maintaining peace and good Order in the Indian Country, and
bringing Offenders in criminal Cases to due Punishment, the said Agents or Superintendants, as also the Commissaries at each Post, and in the Country belonging to each
Tribe, be empowered to Act as Justices of the Peace in their respective Districts and
Departments, with all powers and priviledges vested in such Officers in any of the
Colonies ; and also full power of Committing Offenders in Capital Cases, in order that
such Offenders may be prosecuted for the same ; And that, for deciding all civil actions,
the Commissaries be empowered to try and determine in a Summary way all such Actions,
as well between the Indians and Traders, as between one Trade and another, to the
Amount of Ten Pounds Sterling, with the Liberty of Appeal to the Chief Agent or
Superintendant, or his Deputy, who shall be empowered upon such appeal to give
Judgement thereon ; which Judgement shall be final, and process issue upon it, in like
manner as on the Judgement of any Court of Common Pleas established in any of the
Colonies.
16. That for the easy attainment of Justice, the evidence of Indians, under proper
Regulations and Restrictions, be admitted in all Criminal as well as civil causes,
that shall be tried and adjudged by the said Agents or Superintendants, or by the said
Commissaries ; and that their Evidence be likewise admitted by the Courts of Justice
in any of His Majesty’s Colonies or Plantations in Criminal cases, Subject to the same
Pains and Penalties in Cases of false Evidence, as His Majesty’s Subjects.
CONSTITUTIONAL DOCUMENTS 435
SESSIONAL PAPER No. 18
17. That the said Agents or Superintendants shall have power to Confer such
Honors and Rewards on the Indians, as shall be necessary ; and of granting Commissions to principal Indians in their respective Districts to be War Captains or Ofiicers
of other Military Distinctions.
18. That the Indians of each Town in every Tribe in the Southern District shall
choose a beloved Man to be approved of by the Agent or Superintendant for such
District, to take care of the Mutual Interests both of Indians and Traders in such
Town ; and that such beloved Men, so elected and approved in the several Towns,
shall elect a Chief for the whole Tribe, who shall constantly reside with the Commissary in the Country of each Tribe, or occasionally Attend upon the said Agent or
Superintendant, as Guardian for the Indians and Protector of their Rights, with
Liberty to the said Chief to be present at all Meetings and upon all Hearings or Trials
relative to the Indians before the Agent or Superintendant, or before the Commissaries ;
and to give his Opinion upon all Matters under Consideration at such Meetings or
Hearings.
19. That the like Establishments be made for the-Northern District, as far as the
Nature of the Civil Constitution of the Indians in this District, and the Manner of
Administering civil affairs will admit.
20. That no person having any Military Command in the Indian Country shall
be capable of Acting as Commissary for the Affairs of the Indians ; in either of the
above mentioned Districts respectively ; nor shall such person having military Command be allowed to carry on trade with the Indians, or to interpose his Authority
in any thing, that regards the Trade with, or civil Concerns of the Indians ; but to
give the Commissary or other Civil Magistrate all Assistance in his power, whenever
thereunto required.
21. That.the said Commissaries shall keep exact and regular Accounts, by way
of Journal, of all their Transactions and Proceedings, and of all Occurrences in their
respective Departments, and shall by every opportunity communicate such Transactions
and Occurrences to the Agent or Superintendant in their respective Districts ; which
Agent or Superintendant shall regularly by every Opportunity correspond with the
Commissioners for Trade and Plantations.
22. That the Agent or Superintendant, to be appointed for each District, as also
the Commissaries residing at the Posts, or in the Indian Country within each District,
shall take an Oath before the Governor or Chief Judge of any of the Colonies within
their respective Districts, for the due Execution of their respective Trusts ; and they
and all other subordinate Officers, employed in the Affairs of the Indians, shall be forbid,
under proper Penalties, to carry on any Trade with them, either upon their own
Account, or in Trust for others, or to make any Purchase of, or accept any Grants of
Lands from the Indians.
23. That for the better regulation of the Trade with the said Indians, conformable
to their own Requests, and to prevent those Frauds and Abuses, which have been so
long and so loudly complained of in the manner of carrying on such Trade, all Trade
with the Indians in each District be carried on under the Direction and Inspection of
the ‘Agents or Superintendants, and other subordinate Officers to be appointed for that
purpose, as has been already mentioned.
24. That al\ Persons intending to trade with the Indians shall take out Licences
for that purpose under the Hand and Seal of the Governor or Commander in Chief of
the Colony, from which they intend to carry on such Trade, for every of which Licences
no more shall be demanded or taken than two Shillings.
25. That all persons taking out Licences shall enter into Bond to His Majesty, His
Heirs, and Successors in the Sum of with one Surety in the Sum of
for the due observance of the Regulations prescribed for the Indian
Trade.
26. That every Person willing to give Security, and finding a Security willing,
if required, to take an Oath, that he i<* possessed of property to double the Value of the Sum he stands security for, shall be intitled to a Licence. 18—3—28J t 436 CANADIAN ARCHIVES 6-7 EDWARD VII, A. 1907 27. That every such Licenced Trader shall at the time of taking out the Licence, declare the Post or Truck house, at which or the Tribe of Indians with which he intends to trade, which shall be specified in the Licence itself. 28. That no Licence be granted to continue longer than for one Year. 29. That no Person trade under such Licence, but the person named in it, his Servants, or Agents, whose Names are to be inserted in the Margents ; and in Case any of the Servants or Agents named in such Licence shall die, or be discharged, the same shall be notified to the Governor, by whom the Licence was granted, or to the Commissary of the Post, or in the Tribe, where such Trader carries on Trade, to the end that the Name or Names of any other Servants or Agents, employed by the said Trader in the place of those dead or discharged, may in like manner be inserted in the Margent of the Licence. 30. That all Licences be entered in the Secretary's Office, or other proper Office of Eecord in each Colony, where they are taken out ; for which Entry no more shall be demanded or taken than Six pence for each Licence ; and all persons to have free Liberty to inspect such Entry, paying a Pee of Sixpence for the same. 31. That Persons trading with the Indians without a Licence, and without giving the Security above required, or trading at any other Posts or places, than those expressed in their Licences, do forfeit all the Goods they shall be found then trading with, and also pay a Pine of to His Majesty, His Heirs, and Successors, and sufier Months Imprisonment. 32. That all Traders immediately upon Arrival at the posts or Truck houses in the Northern district, or in the Tribes in the Southern district, for which Licences have been taken out, and before any Goods are sold to, or bartered with the Indians, * do produce such Licences to the Commissaries appointed for the Direction and Inspection of the Trade at such posts, or Truck houses, or in such Tribes. 33. That all Trade with the Indians shall be carried on by Tariffs, to be settled and Established from time to time by the Commissaries at the several Posts, or Truck houses, or in the Countries belonging to the several Tribes in Concert with the Traders and Indians. 34. That the Commissaries appointed to direct and inspect the Trade at each Truck house in the Northern District, shall be empowered to fix and prescribe Limits round each Post or Truck house, within which Limits all Trade with the Indians may be commodiously carried on in the most public Manner. 35. That all Traders have free Liberty to erect Hutts and Warehouses within such Limits, in such Order and Manner as the Commissary shall, with the concurrence of the Officer Commanding at such Post, Direct and appoint. 36. That no Trader shall Traffic, or have any Dealings with the Indians without the Limits prescribed by the Commissary or other Chief Officer appointed for the Inspection and Direction of the Trade. 37. That each Truck house or post of Trade in the Northern District be fortified and garrisoned ; and that all Traders have free Liberty to retire into such Garrison with their Effects, when ever any Disturbance shall Arise, or the Commissary at such post shall represent it to be necessary. 38. That no Trader shall sell or otherwise supply the Indians with Rum, or other spirituous Liquors, Swan Shot, or rifled Barrelled Guns. 39. That in Trade with the Indians no Credit shall be given them for Goods in Value beyond the Sum of fifty Shillings ; and no Debt beyond that Sum shall be recoverable by L'a w or Equity. 40. That all Disputes concerning Weights or Measures in the buying or selling Goods shall be decide,! by Standard Weights and Measures, to be kept'in each Post or Truck-house in the Northern District, and in each Tribe in the Southern District. 41. That no private person, Society, Corporation, or Colony be capable of acquiring any Property in Lands belonging to the Indians, either by purchase of, or Grant, or Conveyance from the said Indians, excepting only where the Lands lye within the Limits of any Colony, the soil of which has been vested in proprietors, or" Corporations by Grants from the Crown; in which Cases such Proprietaries»or Corporations only shall be capable of acquiring such property by purchase or Grant from the Indians. CONSTITUTIONAL DOCUMENTS 437 SESSIONAL PAPER No. 18 42. That proper Measures be taken, with the Consent and Concurrence of the Indians, to ascertain and define the precise and exact Boundary and Limits of the Lands, which it may be proper to reserve to them, and where no Settlement whatever shall be allowed. 43. That no purchases of Lands belonging to the Indians, whether in the Name and for the Use of the Crown, or in the Name and for the Use of proprietaries of Colonies be made but at some general Meeting, at which the principal Chiefs of each Tribe, claiming a property in such Lands,- are present ; and all Tracts, so purchased, shall be regularly surveyed by a Sworn Surveyor in the presence and with the Assistance of a person deputed by the Indians to attend such Survey ; and the said Surveyor shall make an accurate Map of such Tract, describing the Limits, which Map shall be entered upon Record, with the Deed of Conveyance from the Indians. I t is estimated, that the annual Expence of supporting the Establishments, proposed in the foregoing plan, providing presents for the Indians, and other contingent Expènces, may amount to about twenty thousand pounds ; and it is proposed to defray this Expence by a Duty upon the Indian Trade, either collected upon the Exportation of Skins and Furs, (Beaver excepted,) from the Colonies, or payable by the Traders at the posts and places of Trade, as shall, upon further Examination and the fullest Infor niation, be found most practicable, and least burthensome to the Trade. A. List of Indian Tribes in the northern District of North America. Mohocks. Powtewatamis. Oneidas. Ottawas. Tuscaroras. Chipeweighs, or Missisagis. Onondagas. Meynomenys. Cayugas. Folsavoins. Sénecas. Puans. Oswegachys. Sakis. Nanticokes. Poxes. Conoys. Twightwees. Tuteeves. Kickapous. Saponeys. Mascoutens. Caghnawagas. Piankashaws. Canassadagas. Wawiaghtonos. Arundacks. - Keskeskias. Algonkins, Illinois. Abenaquis. ' Sioux. • Skaghquanoghrônos. Micmacs. Hurons. Norwidgewalks. Shawanese. Arseguntecokes. Delawares. Penobscots. Wiandots. Sl John's. B. List of Indian Tribes in the southern District of North America. Cherokees. Attucapas. . Creeks. Bayugtas. Chickasaws. Tunicas. Ohactaws. Peluches. Catawbas. ' Ofugulas. Beluxis. Querphas. Endorsed : Dr* Instructions for Guy Carleton Esqr Gov' of Quebec, Dated 3a t rigorous Marks of Our highest Displeasure, and
be prosecuted with the utmost Severity of the Law for your Offence against TJ s in a
Matter of this consequence, that We now so particularly charge you with.
G: E.
QUEBEC. A List of Ships & Vessels, which have entered inwards in the Pout of
between the day of and the day of
ended at with the particular Quantity & Quality of the Loading of each Vessel.
in the Province of Quebec
following, being the Quarter
Time of
Entry
Ship’s
Name
Masters
Name Built
NUMBER OF
Where
& when
built
Where
&
when
regis- tered
Owner’s
Names
Masters
Name Built
Tons Guns Men
Where
& when
built
Where
&
when
regis- tered
Owner’s
Names
GENERAL CARGOE
N.B. The particular Quantity & Quality of the Loading must be mentioned under these Colums.-
Prom
whence
Where
&
when
Bond
given
2
to
1
a
sa
•ij
m
D
I
33 _ In the Register of Prize Ships the Capture & Condemnation must be also specially mentioned, instead of the time & place of Building ; List of all Ships trading D to, or from the Plantations, or from one Plantation to another, to be prepared Quarterly by the Collector of Oubtoms, and the Naval Officers in the respective < Plantations, in order to be transmitted by you to the Lord High Treasurer, or Lords Commissioners of the Treasury for the time being, to the Lords Commissioners rfor Trade and Plantations, and to the Commissioners of His Majesty's Customs at London by the first Opportunity of Shipping Each Quarter. ~
in the Province of Quebec S
following, being the Quarter ^
2>
Ship’s
Name
Master’s
Name’ Built
NUMBER OP
When
& where
built
Time of
Clearing
Ship’s
Name
Master’s
Name’ Built
Tons Guns Men
When
& where
built
–
Where
&
when
regis- tered
Owner’s
Names
GENEBAL CAESOE.
N.B.—The particular Quantity & Quality of the Loading must be mentioned under these Oolumns.-
Whither
bound
Where
&
when
Bond
given
TJ>
TJ
m
33
z
o
»
O
i
o
^1
feb
o
o
asI3
Endorsed : GUY CABLETON Esqr G-overnor of Quebec
Trade Instructions
Dated 3a Jan* 1775.
IF».
CD
450 CANADIAN ARCHIVES
to the Commander in Chief of Our said Province for the time being.
Given at Our Court at S* James’s the thirteenth day of March
1775. In the fifteenth year of Our Reign.
Whereas We did by Our general Instructions to you, bearing date at Our Falaceof 8* J ames’s the . day of Declare Our Royal Will
& Pleasure that sundry Salaries & Allowances therein mentioned, should be discharged & paid out of any Revenue arising to Us within Our said Province of
Quebec, or out of such other Monies as should be granted or appropriated to the Use
& Service of Our said Province ; the said Salaries & Allowances to commence on,
& to be payable from & after the first day of May 1775. I t is Our further Will
& Pleasure, that over and above the several Salaries and Allowances in the said
Instructions mentioned & set, down—You do pay, or cause to be paid annually out
of the said Revenue or Monies granted or appropriated as aforesaid, unto Our Trusty
& welbeloved Edward Bishopp Esq1
or to his lawful Attorney, for & during Our
Will & Pleasure, the further Sum of One Hundred Eighty two Pounds ten ShilP
the said annual Payment or Allowance to commence on the first day of May next
ensuing the date hereof.
G:R.
fe [L.S.] George R
Î5 Additional Instructions to Our Trusty & Welbeloved Guy Carleton
.Sj^ Esq1
Our Captain General and Governor in Chief in and over Our
• °.’-,
-i Province of Quebec in America and of all Our Territories, dependant
,2P* thereupon, or to the Commander in Chief of Our said Province for the
§ time being.—Given at Our Court at S*. James’s the fourteenth day
— of November 1775, In the sixteenth year of Our Reign.—
Whereas We did by Our General Instructions to you bearing date at Our Palace
of S* James’s, the 3a
day of January 1775 Declare Our Royal Will and Pleasure that
sundry Salaries and Allowances therein mentioned should be discharged ‘ & paid out
of any Revenue arising to Us within Our said Province of Quebec, or out of such other
Monies as should be granted or appropriated to the Use and Service of Our said
Province the said Salaries and Allowances to Commence on and to be payable from
and after the first Day of May last ; It is Our further Will & pleasure that over
and above the several Salaries and Allowances in the said Instructions mentioned and
set down, You do pay or cause to be paid annually out of the said Revenue or Monies
granted or appropriated as aforesaid unto Our Trusty and Welbeloved John Christopher
Roberts Esquire, or to his lawfull Attorney the further Sum of Three hundred and
fifty pounds ; the said annual payment or Allowance to Commence on the -first day of
May last.—
G. R.
CARLETON TO GAGE.1
(Secret) (Copy) QUEBEC 4th Eeby. 1775.
S I E
As this goes by Lt. Cleveland of the 7th, I will venture to be more explicit
about what you mention of the Canadians and Indians in your Letter2
of the 25th Decr
1
Canadian Archives, Q 11, p. 290. Gen. Gage had arrived in Boston on May 13th 1774, in the
double capacity oí Governor of Massachusetts and Commander in Chief of the British forces in Xorth
America. Upon him, therefore, rested the duty of carrying out the repressive measures enacted by the
Home Government, such.as the “Port Act,” the ” Regulating Act,” the “Quartering Act,” &e. The
troubles which culminated in a rising of the people in Sept. induced Gage to call for more troops. He
therefore, as we have seen (p. 410. ) not only summoned two regiments from Quebec, but enquired as to< Carleton's ability to send him a body of Canadians and Indians to assist in suppressing the colonists. 2 This letter has not yet been found among the State Papers. CONSTITUTIONAL DOCUMENTS 451 SESSIONAL PAPER No. 18 last, than I thought it prudent to do by Post, as one may naturally suppose, those, who seem resolved to force their Country into Rebellion, Jealous of the Correspondence, may intercept our Letters, to make themselves Masters of the Correspondence, and should those Disorders continue, as there is too much Reason to apprehend, I submit it to your Consideration, whether it may not be proper to send me a Cypher, for the greater Security of our Correspondence on Matters of a secret nature. The Canadians in General have been made very happy by the Act passed in their Favor, all that have spoke, or wrote to me upon the subject, express the most grateful Sense of what has been done for them ; I must not however conceal from Your ,Excellency, that the Gentry, well disposed, and heartily desirous as they are, to serve the Crown, and to serve it with Zeal, when formed into regular Corps, do" not relish commanding a bare Militia, they never were used to that Service under the French Government, (and perhaps for good Reasons) besides the sudden Dismission of the Canadian Regiment yaised in 1764, without Gratuity or Recompence to Officers, who engaged in our Service almost immediately after the Cession of the Country, or taking any Notice of them since, tho' they all expected half pay, is still uppermost in their Thoughts, and not likely to encourage their engaging a second Time in the same Way ; As to the Habitans or Peasantry, ever since the Civil Authority has been introduced into the Province, the Government of it has hung so loose, and retained so little Power, they have in a. Manner emancipated themselves, and it will require Time, and discreet Management likewise, to recall them to their ancient Habits of Obedience and Discipline; considering all the new Ideas they have been acquiring for these ten years past, can it be thought they will be pleased at being suddenly, and without Preparation embodied into a Militia, and marched from their Families, Lands, and Habitations to remote Provinces, and all the Horrors of War, which they have already experienced ; I t would give an appearance of Truth to the Language of our Sons of Sedition, at this very Moment busily employed instilling into their Minds, that the Act was passed meerly to serve the present Purposes of Government, and in the full Intention of ruling over them with all the Despotism of their ancient Masters.— I t may be further observed, that the Act is no more than the Foundation of future Establishments ; that the new Commissions and Instructions, expected out, are not yet arrived, and that the Dissolution of the present Constitution, if it deserves the Name, and Establishment of the new one, are still at some Distance ; at that Period, upon the first of May,1 every Civil Regulation, at present existing, is annihilated, and the whole to be cast into a new Form, a Work that must necessarily be attended with some Difficulty, and will require Time, Consideration, and great Prudence, for which it is not in our Power to prepare, untill the final Determination of the Ministry upon all these Matters is known ; had the present Settlement taken Place, when first recommended, it would not have roused the Jealousy of the other Colonies, and had the appearance of more disinterested Favor to the Canadians; many Advantages might have resulted therefrom at this Juncture, which must now be deferred to a more distant occasion— Since it could not be done before, this would prove a fair opportunity for raising a Battalion or two of Canadians ; such a measure might be of singular LT se, in finding Employment for, and consequently firmly attaching, the Gentry, to our Interests, in restoring them to a significance, they have nearly lost, and through their Means obtaining a further Influence upon the Lower Class of People, a material Service to the State^ besides that of effectually securing many Nations of Savages— As to the Indians, Government having thought it expedient to let Matters go in that channel, I have ever considered the late Sir Wm Johnson,3 to whom, I suppose, 1 The Quebec Act did not come into force until May 1st, 1775. 2 Sir Wm. Johnson, having early settled on the Mohawk river above Albany, and having acquired, through trade and the "French wars, an unusual inBuenee over the Iroquois Indians, 'had been appointed Superintendant of Indian Affairs for the Northern Division. H e died on July 11th, 1774. Col. G-uy Johnson, his nephew and son-in-law, who had also perved in the war for the conquest of Canada, had been appointed Sir W m . Johnson's deputy in 1762 and named as his successor. On Sir William's death h e continued for a time as Indian Agent ; but his conduct of the office was not very satisfactory and later he was .superseded by his cousin Sir John Johnson, son of Sir William. I n 1775 the position of Superintendant of Indian Affairs was conferred upon Major J o h n Campbell. 18—3—29 \ ,452 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Colonel Guy Johnson succeeds, as having their Political Concerns under his immediate Direction, with which I never interfered further, than their Commercial Interests, or the private Property, they possess in the Country, required, and upon this Principle Major Campbell's Commission was granted; however, if I am not greatly deceived in my Intelligence^ not only the Domicilie's of the Province, but all the neighbouring Indians are very much at your Disposal, whenever you are pleased to call upon them, and what you recommend shall be complied with— Left to my own Speculations in this retired Corner, without Intelligence of what passes in Europe till very long after the Event, and from a knowledge of the present Continental Transactions only, I entertain no Doubt, our Army is by this Time augmenting, and that as soon as the Navigation opens, some Troops from Britain will be sent up this River, and in my Opinion, it should not be an inconsiderable Force ; if we are to have a French War, this Corps will become indispensably necessary here, if not, it might effectually second your Intentions, prevent much Effusion of Blood and Treasure, and procure the speedy Decision of a Contest, rendered more dangerous by every Moment's Delay ; the Strong easily find Friends, and no Doubt they might readily procure a Multitude of excellent Guides, who would lead the Way on any Service you should think right to direct &ca (Signed) GUY CARLETON (a true Copy) H. T. CRAMAHÉ His Excy General Gage Endorsed :—Copy of a Letter from Geni. Carleton to Geni. Gage, dated Quebec 4th Febry 1775, In Lieut. Governor Cramahé's Letter of the 9th Nov1 DARTMOUTH TO CARLETON.1 WHITEHALL 7th June 1775. Governor Carleton Sir, I have rec3 your Dispatch of the 13t t of March,2 N° 9, and have laid it before the King. The Enemies of the Constitution appear to be unwearied in their Endeavors to convey every Misrepresentation that may have the Effect to weaken the Hands of Gov*, and to encourage Faction & Discontent. I t is hoped, however, that the Firmness of the present Parliament, in Support of the Measures which the last Parliament thought fit to adopt for America in general, and for regulating the Government of Quebec in particular, will have the Effect to quiet the apprehensions, and remove the Prejudices which ill designing Men have so artfully endeavoured to create. The Attempt made to raise new Difficulties to Gov' -on the ground of the Petitions from the old Subjects in Quebec, was supported by the whole Strength of Opposition:3— how little Impression it made within Doors, will best appear from the great Majority in both Houses against the Proposition that was moved upon those Petitions; and Ihave the Satisfaction to assure you, that it met with no greater Encouragement without Doors, and that, to all appearance, the People of England, in general, concur in the Measures which have been adopted for America. 1 Canadian Archives, Q11, p. 145. 2 In this Carleton referred to the continued agitation of the British element against the change in the system of government introduced by the Quebec Act ; he referred also to the circulation of a printed translation of the letter addressed to the Canadians by the Continental Congress at Philadelphia; Minutes of the Council were likewise enclosed. See Q 11, p. 129. 3 Referring to the motion made in Parliament during the session of 1775 for the repeal of the Quebec Act. CONSTITUTIONAL DOCUMENTS 453 SESSIONAL PAPER No. 18 I have also the Satisfaction to acquaint you, that an Account published here of aSkirmish between the King's Troops and the Provincials, in the Neighbourhood of Boston, of which, however we have received no Intelligence from General*Gage, has had no other Effect than to increase that just Indignation, which every Friend to Government feels, for the Insult ofiered to the Constitution, in the rebellious Resistance to» the Authority of Parliament, by the People in North America. I am &ca DARTMOUTH. CARLETON TO DARTMOUTH. 1 ? MONTREAL 7th June 1775. M Y LORD ! The 19th of last Month in the Evening, I received Intelligence from General Gage by Sea of the Rebels having commenced Hostilities in the Province of the Massaehusets, and Requesting I would send the 7ttL Regiment with some Companies of Canadians and Indians to Crown Point, in order to make a Diversion, and favour his Operations. The next morning, Captain Hazen arrived Express at Quebec, and brought me an Account, that one Benedict Arnold said to be a native of Connecticut, and a Horse Jockey, landed a considerable Number of armed men at St. John's, distant from this Town eight Leagues, about eight in the Morning of the 18th, surprised the Detatchment of the 26"1 doing Duty there, consisting of a Serjeant and ten Men, and made them Prisoners, seized upon The King's Sloop, Batteaus, and every other Military Store, and a few Hours after departed, carrying off the Craft, Prisoners, and Stores they had seized. From this Party We had -the first Information of the Rebels being in Arms upon the Lakes, and of their having, under the Command of said Arnold, surprised Ticonderoga, Crown Point, the Detatchment of the 26"1 doing Duty at these two Places, and all the Craft employed upon those Lakes ; Arnold told Captain Hazen, He had for that Purpose received a Commission of Colonel from the Congress of the Massaehusets, with the Command of five hundred Men, that Volunteers to the Amount of fifteen hundred followed him, but he did not-wait for them all. The same Evening another Express brought an Account of the Rebels having landed at St. John's a second Time, in the Night between the 18tk and 19th, this Party was said to be three' hundred strong, and that nine hundred more were at the Isle aux Noix ; this second Party however was not near so numerous as at first reported, and most pro'bably would have been cut off by a Detatchment of one hundred Men from the 26tt Regiment, under the Command of Major Preston, had they not been advised of the March of the Troops by one Bindon a Merchant of this Town, upon which they crossed the Sorel, and were fired at by the Troops,as they went down the River. While this Party, Commanded by one Ethan Allen, said to be outlawed in the Province of New York, remained at St. John's, He sent a Letter by this same Bindon, addressed to one Morrison and the British Merchants of Montreal Lovers of Liberty, demanding a Supply of Provisions, Ammunition, and spirituous Liquors, which some of them were inclined enough to furnish, had they not been prevented. The little Force we have in the Province was immediately set in Motion, and ordered to assemble at or near St. John's ; The Noblesse of this Neighbourhood were called upon to collect their Inhabitants, in order to defend themselves, the Savages of those Parts likewise had the same orders ; but tho' the Gentlemen testified great Zeal, neither their Entreaties or their Example could prevail upon the People ; a few of the 1 Canadian Archives, Q 11, p. 184. This despatch gives Carleton's account of the attack on Canada as the sequel to Cage's operations at Boston. It reveals also the surprising extent to which the general body of the French Canadians had adopted British ideas of personal liberty during ten years of British law and administration, as shown in their refusal to submit once more to the feudal authority of the noblesse under the restoration of the French system by the Quebec Act. Many documents of the period, m addition to the few samples given, deal with this important crisis in Canadian government. 454 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Gentry, consisting principally of the Youth, residing in this Place, and it's Neighbourhood, formed a small Corps of Volunteers under the Command of Mr. Samuel Mackay, and took Post at St. John's ; the Indians shewed as much Backwardness as the Canadian Peasantry. The Consternation in the Towns and Country was great and universal, every Individual seemed to feel our present impotent Situation, for tho' in no Danger of internal Commotions, we are equally unprepared for Attack or Defence ; Not six hundred Rank & Pile fit for Duty upon the whole Extent of this great River, not an armed "Vessel, no Place of Strength ; the ancient Provincial Force enervated and broke to Pieces ; all Subordination overset, and the Minds of the People poisoned by the same Hypocrisy and Lies practised with so much Success in the other Provinces, and which their Emissaries and Priends here have spread abroad with great Art' and Diligence ; had it not been for those few Troops, three hundred Rebels might have procured all the Arms, Ammunition, and Provisions, this Province can afford, and have kept Post at St. John's with great Security. We are at present fortifying a Post there and at Oswegatchie, tho' there are other Avenues into the Province, I hope the above may be made sufficiently strong to resist any sudden Attack of this Sort ; a considerable Force here might not only secure ourselves, but assist General Gage in extinguishing the Flames of Rebellion in the other Provinces more speedily, I fear he has none to spare, and it may be too late in the year to have them from Europe, however I shall see what in our present Situation is further practicable for The King's Service. Wi+hin these few Days the Canadians and Indians seem to return a little to their Senses, the Gentry and Clergy have been very useful upon this Occasion, and shewen great Fidelity and Warmth for His Majesty's Service, but both have lost much of their Influence over the People; I propose trying to form a Militia, and if their Minds are favourably disposed, will raise a Battalion, upon the same Plan as the other Corps in America, as to Numbers and Expence, and were it established, I think, it might turn out of great public Utility ; but I have many Doubts whether I shall be able to succeed. These Measures, that formerly would have been extremely popular, require at present a great Degree of Caution and Circumspection ; so much have the Minds of the People been tainted by the Cabals and Intrigues, I have from time to time given Your Lordship some Information of, I am as yet uncertain whether I shall find it advisable to proceed in the aforementioned Undertaking; to defame their King and treat him with Insolence and Disrespect, upon all Occasions to speak with the utmost Contempt of His Government, to forward Sedition and applaud Rebellion seem to be what too many of His British American Subjects in those Parts think their undoubted Right. For my Part since my Return to this Province, I have seen good Cause to repent my having ever recommended the Habeas Corpus Act and English criminal Laws ; these Laws, now used as Arms against the State, require more public "Virtue, and greater Fidelity to their Prince, than is generally to be met with amongst the set of People here, that take the Lead upon all Occasions ; To render the Colony of that Advantage to Great Britain, it certainly is capable of, would require the reintroducing the French Criminal Law, and all the Powers of it's Government. Our Communication with the other Provinces being entirely stopped, we run a Risk of being at a great Loss for Money, to defray the ordinary and extraordinary Expences, the Service here must be attended with, The Money Contractors, as well as Trade, as this Time of the Year, being used to procure large Supplies of Cash from New York and Philadelphia, with which Places We have at present no Intercourse ; if fifteen or twenty thousand Pounds were sent here as soon as possible, it would be of great Use to Government, which must lose considerably by the present low course of Exchange, likely to fall every Day ; could it be procured in Dollars, and some Part in small silver, CONSTITUTIONAL DOCUMENTS 455 SESSIONAL PAPER No. 18 the same would prove highly beneficial to this Country, where that species is become •extremely scarce. I am with much Respect and Esteem Your Lordship's Most Obedient and Earl of Dartmouth Most Humble Servant One of His Majesty's - GUY CARLETON Principal Secretaries •of State. 8°l June P . S. Since I wrot« the above, I ñad ths Rebels are returned, and have taken Post near to St. John's, and there have The King's Sloop and Major Skene's Schooner well armed, with several Bateaus ; tho' I have not as yet been able to procure exact Accounts of their Numbers or Intentions, I have Reason to believe from the imperfect « Information already received, they are more in Number than upon their former Incursions. G. C. CRAMAHÉ TO DARTMOUTH. 1 QUEBEC 21S1 Sepr 1775. My Lord ! I am sorry to transmit to Your Lordship the disagreable account of a disagreable Business, some time in the Beginning of this Month, upon News of the Rebel Army .approaching, General Carleton set out for Montreal in great Haste ; the 7ft instant the Rebels landed in the Woods near St. John's, and were beat, back to their Boats by a Party of Savages incamped at that Place ; in this Action the Savages behaved with great Spirit and Resolution, and had they remained firm to our Interests, probably the Province would have been saved for this Year, but finding the Canadians in General averse to the taking up Arms for the Defence • of their Country, they withdrew, and made their Peace. After their Defeat the Rebels retired to the Isle aux Noix, where they continued till lately, sending out some Parties, and many Emissaries, to debauch the Minds of the Canadians and Indians, in which they have proved too successful], and for which they were too well prepared by the Cabals and Intrigues of these two last years ; W e knew of their being reinforced, and very considerably, I suppose, as they appeared in Numbers near St. John's last Sunday Evening ; where or when they landed, or the Particulars since, we have but very imperfect Accounts of, all Communication with the Ports of St. John's and Chambli, being, as far as I can find, entirely cut off. No Means have been left untried to bring the Canadian Peasantry to a Sense of their Duty, and engage them to take up arms in Defence of the Province, but all to no Purpose ; The Justice must be done to the Gentry, Clergy, and most of the Bourgeoisie, that they have shewen the greatest Zeal and Fidelity to the King's Service, and exerted 1 Canadian Archives, Q 11, p. 249. This and the succeeding letter from Chief Justice Hey give two other versions of the quite unexpected sequel to the Quebec A ct. In the meantime Lord Dartmouth was fully relying upon Carleton's previous assurances of what could be expected from Quebec in support of the British interests on the continent, if only the French laws and system of government were re-established and the noblesse and clergy restored to their former ascendancy. Hence, when the crisis was precipitated a,t Boston, he_wrote to Carleton, July 1st, 1775, saying that " the King relies upon the Loyalty & Fidelity •of His Canadian Subjects for their Assistance to suppress Rebellion, and it is His Majesty's pleasure that you do, if you see no objection, immediately upon the Receipt of this Letter take the proper Steps for raising a Body of 3,000 Canadians in such form & manner as you^ shall judge most proper, to act as Light Infantry, either in a separate Corps, or in conjunction with His Majesty's other Troops, as shall, upon •consulting Gen1 Gage, be thought most expedient." Q 11, p. 152. On receiving still worse news from Gage, Dartmouth writes again to Carleton, on the 24th of -July, " and it having been judged proper, upon a consideration of these Despatches that the number of Men to be raised in Canada, should be double what •was first proposed, It is His Majesty's Pleasure that instead of 3,000 men which you were authorized to raise by my Letter of the 1st of July, the number to be raised be 6,000, and I have accordingly given directions for an additional supply of Arms, Clothing, & Accoutrements in proportion." Q 11, p. 182. 456 CANADIAN ARCSIYES 6-7 EDWARD VII., A. 1907 their best Endeavours to reclaim their infatuated Countrymenj some Troops, a n d a Ship of War or two, would in all likelihood have prevented this general Defection. Some of the King's old Subjects have joined the Rebels, and it were to be wished all of them, inclined to that Cause, had done the same, we should be the safer for it, the Copy of an intercepted Letter from one of them is herewith inclosed j 1 some Canadians, I understand, are with the Bostonians upon every Road. As the ship this goes by sails to morrow very early, I have not time to enter into particulars, Lt. Col. Maclean with about eighty of his new raised Corps, and twenty of the Eusileers, besides a Militia composed of the Inhabitants of the Town, is all that we have to repair it's Breaches, and defend it ; General Carleton, who is still at Montreal, has not received a Line from Your Lordship since the 15a of April, or from General Gage since the 3Tl of July last. I have the Honor to be with great Respect, My Lord ! Your Lordship's Most Obedient and Most Humble Servant H. T. CRAMAHÉ. Earl of Dartmouth One of His Majesty's Principal Secretaries of State. C H I E F JUSTICE H E Y TO T H E LORD CHANCELLOR. 2 QUEBEC Aug. ye 28th 1775. My Lord Since I had the honour of writing to your Lordship soon after my arrival here, by Captn. Brash, The affairs of this Province are so far in a better train as the apprehensions of any decisive invasion from the Garrisons of Crown Point and Ticonderoga seem to be removed by the lateness of the season, and an appearance of less alacrity on their Part for a business of that sort than they shewed a month ago, or when I dispatched my other Letter to your Lordship. Whether this arises from the fears which the Congre ss may have entertained of opening the wound they have given the Mother Country too wide to admit of being closed by treaty, or from those of Individuals in the danger of the attempt, I am at a loss to determine, k can only say, that, from some cause or other, the Expedition appears to be suspended, if not wholly abandoned, & unless they mean to take advantage of the winter when they may pass the Lake upon snow shoes, I should think the latter the most probable. I could hardly expect to find credit with your Lordship for what I asserted of the ' backwardness of the Canadians when the situation of things here, made it necessary for Gen Carleton to declare Martial Law,3 and call upon the Militia to turn out in defence of the Province ; unhappily ! every day furnishes too many instances of it, and gives me an Idea of the real character of the Canadians very different from what I used to entertain, and constantly represented to your Lordship whenever I had occasion to speak of them. Your Lordship will remember how much has been said by us all of their Loyalty, obedience & Gratitude, of their habitual submission to Government, & their decent civil & respecfull demeanour to those who had the conduct of it, but time and accident, have evinced that they were obedient only because they were afraid to be otherwise à with that fear lost (by withdrawing the troops) is gone all the good disposition 1 This letter, which was in French, " was signed by Jas. Livingston, who had come originally from New York State and who was a grain merchant living on the Sorel. See Q 11, p. 252. 2 Canadian Archives, Q 12, p. 203. 3 This Proclamation was issued on June 9th, two days after his despatch to Dartmouth given above. The Proclamation is given in Maseres' "Additional Papers concerning the Province of Quebeck," p. 170. It authorized the raising of the whole militia of the Province. *" CONSTITUTIONAL DOCUMENTS 457 SESSIONAL PAPER No. 18 that we have so often an 1 steadily avowed in their names & promised for them in ages to come. Yet I am sometimes willing to think that fear, joined with extreme ignorance and a credulity hardly to be supposed of a People, have been overmatched by the subtilty & assiduity of some Colony agents who were Very busy here last winter, & that they are not at bottom an ungenerous or disobedient People. That temperate management and gentle methods of persuasion and instruction may yet bring them to a sense of their duty & indeed their interest, & when they are made to understand that the true point of fear should be that of sitting still & not putting themselves into a state of defence, they will take arms not only for their present defence, but when supported by a body of the Kings troops be ready for any offensive service that the times may demand ; which in my poor opinion who pretend to nothing less than military knowledge, would strike more terrour into the Colonies than Gen Gage's army doubled or trebled at Boston, where from the nature of the Ground & a thousand other circumstances there can be little hopes of making any decisive impression. But be that as it may, your Lordship who has indulged me in a freedom of expressing my thoughts with respect to this country upon points of less importance will forgive me upon one which appears to me so essential, tho it should happen to be a little out of my Line & fall more immediately within that of another to whose circumspection however & Judgement I pay the utmost deference, I mean the Governour's. I t appears to me that while England has a firm hold of this Country, which a good Body of troops & nothing else will give her, her cause with the Colonies can never be desperate 'tho ' she should not have an inch of ground in her possession in any one of them, from this country they are more accessible, I mean the N. England People, (Paradoxical as it may seem) than even from Boston itself, & I believe it to be as true as any thing can be that has not been reduced to absolute proof that the Colonies without the assistance of England, would have been reduced from North to south by this Province in the last war. They thought so themselves, à the Pains they have taken to keep the Canadians quiet which a good appearance of troops from England would soon remove, convince me that they are in dread of it at this hour, and I do4 most firmly believe that if the army at Boston was removed here ready to begin its operations from hence in the spring & the fleet continued (if that could be done) to block up their ports & prevent their trade, it would have a better effect Art X X
Proceedings in Actions under £10 Sterling
In Matters either not exceeding or under Ten Pounds Sterling, any
Person having a Right of Action against another, shall prepare, or procure
from the Clerk of the Court of Common Pleas, a Declaration in the following Form.
Montreal – u d ,
y
o t ±
‘
A. B. Plaintiff. C. D. Defendant.—The Plain-
” tiff demands of the Defendant the Sum of due to the Plaintiff
” from the Defendant, for which said Sum, though often demanded,
” still remains due, therefore the Plaintiff prays Judgment.”
The Declaration shall be filed by the Clerk, who shall make a Copy
thereof, and at the Foot of such Copy write out a Summons in the Language
of the Defendant in the following Form, viz.
11 To C. D. the Defendant in the Above Action—
” You are hereby commanded and required to pay the Plaintiff A. B. the
” above-mentioned Sum of together with Costs, or else to
” appear in Person, or by Your Agent, before me, at the Court House in
” the City of ¡¿Elüi together with your Witnesses, if you have any, on the
” Day of when the matter of Complaint against you
” as -ascertained in the above Declaration will be heard and finally deter-
” mined, otherwise Judgment will be given against you by Default—E. F.
” Judge of the Court of Common Pleas.”
This Summons shall be signed by one of the Judges of the Court, and
a Copy thereof, and of the Declaration, served on the Defendant Personally,
or left at his Dwelling House, or Ordinary Place of Residence, with some
• grown Person there; and the Person serving the same shall inform the Defendant, or such grown Person, of the Contents thereof. If, at the Time
mentioned in the Summons, the Defendant does not appear (Proof of the
Service thereof being produced in Court) the Judges, or any one of Them
shall hear the cause on the part of the Plaintiff, and make such order, Decree, or Judgment, and award such, reasonable Costs of Suit, as to them or
->, him shall appear agreeable to Equity and good Conscience; but if the Defendant does not appear by himself, or his Agent, and the Plaintiff, or his
Agent, does not appear, or appearing does not Prosecute, or prosecuting,
fails in his Action, the Judge or Judges shall dismiss the Defendant with
Costs. If the Plaintiff makes good his Charge against the Defendant, the
• Judge or Judges shall give Judgment accordingly, and award Costs and
Execution, but the Execution shall not issue till the next Court Day after
Judgment given: the Execution shall go against the Moveables only of t h e
Defendant, which shall be seized by some Person to be for that Purpose
appointed by the Court, and sold by him in the manner mentioned in the
Sixteenth Article of this Ordinance. But the Execution shall contain an
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Exception of the Party’s Beasts of the Plough, Implements of Husbandry,
Tools of his Trade, and one Bed and Bedding, unless his other Goods and
Chattels should prove insufficient, in which Case such Beasts of the Plough,
Implements of Husbandry and Tools of his Trade, shall be sold, but not the
Bed and Bedding. The J udge or Judges, may, if they think proper, order
the Debt to be levied by Installments, provided the Time allowed shall not
exceed the Space of Three Months from the Day of issuing the Execution.
Art X X I .
In Matters, as well above as of or under the Value of Ten Pounds
Sterling, if the Defendant shall convey away or secrete his Effects, an
Execution shall go against his Person, to be taken and detained in Prison
until he satisfies the Judgment.
Art X X I I .
For the Satisfaction of all Judgments given in Commercial Matters
between Merchants, as well as of all Debts due to Merchants for Goods,
Wares, and Merchandizes, by them sold, Execution shall issue not only against
the Goods, Chattels, Lands, and Tenements of the Defendant, but also, in
case they shall not produce the Amount of the Plaintiff’s Demand, against
his Person, to be taken and conveyed into the Prison of the District, and
there detained until he pays the Amount of the Judgment, or otherwise settles with and satisfies the Plaintiff : Provided, that if the Defendant after remaining one month in Prison, shall make Application to the
Court, and make an Affidavit that he is not worth Ten Pounds, the Plaintiff shall pay to the Defendant the Sum of Three Shillings and Sixpence
weekly, for his Maintenance as long as he shall be detained in Prison at
the Suit of the Plaintiff; such Payment shall be made in Advance on
Monday in every Week, in Failure of which the Court from whence the
Execution issued shall order the Defendant to be released ; but the Plaintiff shall not be obliged to make such Payment, if he can prove, to the
Satisfaction of the Court by which the Defendant stands committed, that
the Defendant has secreted or conveyed away his Effects to defraud his
Creditors.
Art X X I I I .
When any Person against whom J udgment shall be given in any of the
Courts of Common Pleas shall not have sufficient Goods, Chattels, Lands,
or Tenements, to satisfy such Judgment within the Jurisdiction of the
Court wherein such Judgment shall have been obtained, but shall have
Goods, Chattels, Lands or Tenements within the Jurisdiction of the other
Court of Common Pleas, it shall be lawful for the Judge or Judges of the
Court wherein Judgment shall have been obtained to award Execution to
the Sheriff of the other District, who, after getting the Writ indorsed by
one of the Judges of the Court for the District in which the Goods, Chattels, Lands, or Tenements are situated, shall execute the same, and make
Return thereof to the Court from which it issued ; and such Writ and
Return shall be by him sent to the Sheriff of the District from whence the
Writ was originally awarded, to be delivered into the Court that issued the
same. —The Sheriff executing such Writ shall be answerable for his Doings
relative thereto before the Court from which it was originally awarded ;
and the Judges of the Court of Common Pleas for the one District may, in
like manner, award Execution against the Body of a Person residing in the
other in Cases where such Execution is by Law allowed, and the Sheriff
executing the Writ to him in such case directed shall convey the Body of
CONSTITUTIONAL DOCUMENTS 471
SESSIONAL PAPER No. 18
such Person into the Prison of the District wherein such Person shall be
arrested.
Art X X I V .
This Ordinance, and the several Provisions and matters therein contained, shall remain in Force only during the Space of Two Years from the
Publication thereof.
GUY CARLETON. .
Ordained and Enacted by the Authority aforesaid, and passed in
Council under the Great Seal of the Province, at the Council
Chamber in the Castle of S’ Lewis in the City of Quebec, the
Twenty fifth day of Eebruary, in the seventeenth year of the
Reign of our Sovereign Lord George the Third, by the Grace of
God, of Great Britain, France and Ireland, King Defender of the
Faith and so forth, and in the Year of our Lord One thousand
seven hundred and seventy seven.
By His Excellency’s Command
J: W I L L I A M S
C.L.C.
A N ORDINANCE FOR ESTABLISHING COURTS OF C R I M I N A L
JURISDICTION I N T H E . P R O V I N C E OF QUEBEC. 1
I t is Ordained and Enacted by His Excellency the Captain General
and Governor in Chief of this Province, by and with the advice and consent
of the Legislative Council of the Same, That,
Establishment of a
Supreme
Court of
Criminal
Justice,
to be held *
before the
Chief Justice
or Commissioners for
executing that
Office.
Four Sessions;
Two at Quebec
Two at Montreal.
Times of
Sitting.
Special Commissions to be
issued if necessary.
Art, I.
There shall be, and hereby is erected, constituted and established for
the Province at large, a Supreme Court of Criminal Justice and Jurisdiction,
to be called and known by the name of the Court of King’s Bench, for the
Cognizance of all Pleas of the Crown, and for the Trial of all manner of
Offences whatsoever ; the said Court shall be held before the Chief Justice of
the Province, or Commissioners that may be appointed for executing the
Office of Chief Justice for the Time being, who shall hear and determine
the said Pleas of the Crown, and of all manner of Offences whatsoever,
according to the Laws of England, and the Ordinances o? the Government
and Legislative Council of the Province.
And for the Speedy Administration of Justice, and the preventing
long Imprisonments, there shall be held, in every Year, Four Sessions of
the said Court of King’s Bench, whereof Two Sessions sh .11 be held at the
City of Quebec, and the other Two at the City of Montreal, at
the Times hereafter following, to wit, at the City of Quebec on the First
Tuesday of May and the First Tuesday of November, and at the City of
Montreal on the First Monday of March and the First Monday of
September in every year : but nothing herein contained shall extend to
prevent the Governor, Lieutenant Governor, or Commander in Ciief for
the Time being, to issue Commissions of Oyer and Terminer and Gaol
Delivery at any other Time or Times, when he may think it necessary and
expedient so to do.
1
Canadian Archives, Q 62 A—2,p.5ÍM.
472 CANADIAN’ ARCHIVES
6-7 EDWARD VII., A. 1907
Art. IT.
Establish- I n e a c n of the Districts of Quebec and Montreal, there shall be held
ment of the and kept, Pour Times in every Year, a Court of General Quarter Sessions
Court of 0£ £n e p e a c 6 j by the Commissioners of the Peace of each respective District,
sions. or so many of them as are or shall be limited in the Commission of the
Peace, who shall hear and determine all matters relative to the Conservation
of the Peace, and whatsoever is by them cognizable, according to the Laws
of England, and the Ordinances of the Governor and Legislative Council of
the Province.
The said Sessions for the District of Quebec, shall be held at the City
Places and 0f Quebec, and the said Sessions for the District of Montreal shall be held
ting. a
^ tfie City of Montreal, on the days hereafter following, to wit, on the
second Tuesdays of the Months of January, April, July and October, in
every year.
Two Commis- And Two of the said Commissioners of the Peace shall sit weekly in
sioners to sit Rotation, in the Cities of Quebec and Montreal, for the better Regulation
week y. Q£ ^& Police, and other matters and Things belonging to their Office ; and
the names of the Commissioners who are to sit in each Week shall be
posted up on the Door of the Sessions House, by the Clerk of the Peace,
Two Days before their respective Sittings.
Art. I I I .
Captains of
Militia îm- j ^ s
t n e great extent of this Province may render it often impractitheir respec- ca,ble for the Coroner of the District to give his attendance at the different
tive Parishes Places where it might be necessary, the Captains of Militia shall be and
to act as Cor- n e r e D y a r e impowered, in their respective Parishes, when any marks of
Violence appear on any dead Body, to summon together Six respectable
Householders of his Parish, to inspect the same ; and he shall, according
to their Opinion, report the manner and cause of such Death in writing, to the
nearest Commissioner of the Peace, that a further examination may be made
therein, if necessary. l
Art. IV.
Captains of And as great Inconveniences might arise from the want of Peace
apDomted Officers in different parts of the Province, the said Captains of Militia shall
Peace Officers be and hereby are impowered to arrest any Person guilty of any Breach of
in their the Peace, or any Criminal offence, within their respective Parishes, and to
Panshes™ convey or cause to be conveyed, such Person before the nearest Commissioner of the Peace, to be dealt with according to Law.
(signed)
GUY CARLBTOJST
Ordained and Enacted by the Authority aforesaid, and passed in Coun
cil under the Great Seal of the Province at the Council Chamber,
in the Castle of S* Lewis, in the City of Quebec, the Fourth Day
of M arch, in the seventeenth year of the Reign of our Sovereign
Lord George the Third, by the Grace of God of Great Britain
Prance and Ireland, King, Defender of the Faith and so forth, and
. in the Year of Our Lord One thousand seven hundred and seventy
seven.
By His Excellency’s Command.
J: WILLIAMS
C.L.C.
CONSTITUTIONAL DOCUMENTS 473
SESSIONAL PAPER No. 18
PETITION OP MERCHANTS FOR R E P E A L OP QUEBEC ACT.1
To The Right Honorable Lord George Germain, One of His Majesty’s Principal Secretaries of State, &c &c ifec
The Petition of the Merchants & such Inhabitants of the Province of Quebec as
are at present in London- – Sheweth,
That His Majesty’s British subjects in that extensive Colony apprehending the
inconveniences which have since really arisen from the operation of an act of Parliament passed in the Year 1774 for establishing the Government of the Province of
Quebec, did in the same year’ Petition his Majesty, and both Houses of Parliament,
that itenight be repealed or at least amended.2
We beg leave to inform your Lordship, that from the reduction of Canada till May
1775 when the above mentioned act took place, the inhabitants as well Canadians as
English lived with great satisfaction in the enjoyment of their liberty and Property
under the Protection of the English Government, and that they received the new
regulations contained in the act with surprize, and reluctance ; for them saw themselves
at once deprived of that inestimable priviledge of the English constitution, that grand
Bulwark against Injustice and Oppression, the trial by Juries, and of the benefit of the
Commercial Law¿ of England, so wisely calculated to promote a spirit of Trade and
Industry and so generally known and understood ; instead of which they found themselves obliged to have recourse to the Laws of Canada scarcely, if at all, understood by
any Pers n in the Province, and consisting chiefly of occasional Mandates issued, from
time to time, by the French Governors. In consequence of this subjection to the arbitary command of their superiors, many of the Canadians have been ordered out upon
the public Service, without any pay or emolument whatever, and upon refusal have
been thrown into prison under a Military Guard.3
I t cannot be wondered at if under
such circumstances, Discontents, and even Dissatisfaction to his Majesty’s Government
should have crept in.
The ordinances lately made by the Governor and Council, in aid of the Prench
Law, have contributed to increase the General dissatisfaction. This Council, when only
twelve members were present,4
and each of them bound by an Oath of Secrecy, proceeded
to make laws without requiring the least Information, and with the most Total disregard of an Application from the Merchants who petioned, upon Grounds of general
utility, that they might not be deprived of the Mercantile Laws of England.
The Ordinances furnish further matter of Complaint because of the ambiguous
terms in which .they are expressed, of the indefinite Power which they give to the
Judges, and of the Prejudice which prevails in them, without exception, in favor of the
Laws of Canada, whose forms are tedious, expensive and unnecessary. In particular
the ordinance regulating the Indian Trade,5
without yielding any revenue or advantage
whatever to Government, subjects the Trader to insuperable Difficulties, for the pass he
obtains is upon Conditions frequently out of his Power to comply with, and his whole
Property is in consequence liable to confiscation, by the civil or seizure by the military
1
Canadian Archives, Haldimand Papers, B 43, p. IS. 2
Referring to the petitions of Nov. 12th, 1774, See pp. 414 & 417. 3
Referring to the restoration of the French feudal system under the Quebec Act, and the consequent
exaction of corvées and other compulsory services. See notes 1 and 2, p. 461. See also Burgoyne to
Qarleton, as to enforcing corvées ; Q. 13, p. 212.
4
Four members of the Council had been captured and were prisoners in the colonies. See Q 12, p.
172. Some of the others were absent, and one or two had died. In Carleton’s letter to Germain, of June
27th, 1777, he stated that, having found a sufficient number of Councillors in the Province to proceed upon
the business of legislation, he had not nominated any others. 5
Being No. 7 in the list given on p. 463. This is given in full in, ” Ordinances made and passed by
the Governor and Legislative Council of the Province of Quebec. Ai’d now in Force in the Province of
Lower Canada. Quebec, 1795.” p. 9. The portion more particularly complained of is section V, which
requires every trader among the western Indians to have a pass, in default of which he is subject to a penalty of £50. Conviction may be secured on the testimony of one credible witness, other than the informer
who is to receive one half the penalty.
474 CANADIAN AR0BIVE8
6-7 EDWARD VI!., A. 1907
power, upon an information laid against him by any person tempted by a prospect of
the reward. Nor though the information be false, is there any provision to redress the
Trader, though he may be equally ruined by the Expence, and the delay of his Journey in the proper Season. These difficulties are so alarming chat though this Trade is
by far the most considerable in the Province since the commencement of the Present
Rebellion, whenever the communication from Albany shall be open a great part of it
will be carried on from the Province of New York, notwithstanding the situation of
Canada be in all respects more convenient.
We beg leave to assure your Lordship that these causes originating chiefly from
the Quebec act, have concurred to spread a general discontent throughout the Province,
without any advantage to the present state, and so far -as to alienate the affections of
His Majesties subjects as to give great reason to apprehend a disposition in them to
change their present form of Government, should such an Opportunity unhappily offer.
We therefore humbly entreat your Lordship to take into your consideration the
dangerous, and confused situation of this Colony, and grant us your Patronage and
assistance in endeavouring to obtain a repeal of the Quebec Act, the Source of these
grievances and an Establishment, in its stead, of a free Government by an assembly or
Representation of the People, agréable to His Majesty’s Royal Promise contained in the
Proclamation made in the year 1763. This measure alone, which we are firmly persuaded is founded equally on the Principles of Justice and good Policy is adapted to
conciliate the minds of a dissatisfied People, to confirm their wavering Disposition, and
to restore that mutual confidence between the Governors and the Governed which is
essentially necessary to the happiness of both. (signed)
London 2 April 1778.
Wm Lindsay .
Jno Shannan
Edwards Watts
Dan1
Sutherland
Charles Paterson
James Finlay
Allan Paterson
Alex1
Fraser
Wm
Smith
Josiah Blackley
John Maedonald
William Grant
Wm
Aird
Isaac Todd
William Shaw
Chas Grant
Alex1
Davidson
Adam Lymburner
Thoa
Aylwin
John Salmon
John Paterson
Jean H. D. Hemair
Rob* M. McWilliams
John Pagan
Randle Meredith
INSTRUCTIONS TO GOVERNOR HALDIMAND. 1
(L.S.) George R.
Instructions to Our Trusty and Welbeloved Frederick Haldimaná Esquire,
Our Captain General & Governor in Chief in Province of Quebec in America, and of all our Territories dependent
S thereupon. Given at our Court at S* James’s the Twenty Ninth day of
S March 1779 In the Nineteenth Year of Our Reign.
Whereas it is fitting, and Our Royal Purpose, that Our Council for the Province
of Quebec under your Government, should be fully informed of Our Gracious Intentions in the Constitution proposed for Our said Province, to the end, that they may
jointly with You Our Governor and agreably to the Powers vested in them by Act
of Parliament carry Our said Intentions effectually into execution to the benefit of
Our Service, & to the ease and security of all Our Subjects, Inhabitants of the said
Province. • I t is Our Will & Pleasure and you are hereby strictly directed and
required if you shall not have carried Our Royal Instructions for that purpose given,
already, into effect ; upon receipt hereof, by the first opportunity & without delay,
to communicate to Our said Council, such and so many of Our said Instructions
wherein their Advice and Consent are made requisite, with such others from time to
time, as you shall judge for Our Service to b?, imparted to them.1
G. R.
t, George R.
S [L. S.]
, 8 ^ Additional Instruction to Our Trusty and Welbeloved Frederick Haldimand
°.*ri Esquire, Our Captain General and Governor in Chief in and over Our
j§¡> Province of Quebec in America, or to the Commander in Chief of Our said
8 Province for the Time being. Given at Our Court at S* James’s the Six-
•— teenth day of July 1779. In the Nineteenth year of Our Reign.
Whereas it is expedient and agreeable to Our Royal Will and pleasure that Our
Subjects Inhabitants of Our Province of Quebec, under your Government, should
have, and enjoy every Benefit and Security resulting to them from a speedy and
effectual Distribution of Law and Justice, according to the principles of the British
Constitution, as far as the same can be adapted to their peculiar Circumstances and
Situation. And Whereas according to the practice of the Courts of Civil and Criminal
1
This is one of the recommendations of the Board of Trade referred to in the previous note and
which was rendered necessary on account of Carleton’s having withheld his Instructions from the Council,
contrary to the seventh article of the Instructions. See Q 18-B, p. 143, also p. 155. Haldimand, who had
adopted Carleton’s policy, naturally did not relish the Instructions received, and in a despatch to Germain
of 14th Sept., 1779, marked ” Secret and confidential,” after referring to other matters, he takes up the
question of the additional Instructions : ” From the State of the Province herein Exhibited, your Lordship
will please to consider, whether, consistently with the King’s Service, the additional Instructions sent over
this Spring ought positively to be attended to, and followed, whether every Measure of Government ought
to be exposed, and laid open to that Mixture of People which compose our Council, and whether it is not
more probable that the generality of its members will rather incline to the particular and concealed Interests, to which they lean, or which is more probable, be biased by what they conceive to be their private
and particular Interests, than act upon Just and liberal motives for the Good of the State in general.”
Q 16 -2, p. 591. See also Q 16-2, p. 616. He therefore withheld the two Instructions of March 29th and
continued his previous course. When these facts, including Haldimand’s explanations, were laid before
the Board of Trade they passed the following judgment upon his conduct,—” Sensible as we are of your
merit, and the purity of your intention, it is painful for us to proceed to the consideration of your not communicating to the legislative Council the General Instructions, which yon were particularly directed to do
by the additional Instruction transmitted to you for that express purpose ; And, as far as appears to us,
not complying with another additional instruction sent you therewith, for regulating and preventing an
abuse introduced by your predecessor, of doing the business of Council by a select number of the Members,
under the name of a Privy Council ; yet not paying obedience to express Instructions, the compliance
with which rested with’yourself only, is a matter of too serious importance for us not to give you’ our unreserved opinion upon it. The instructions in question were founded upon the most convincing necessity,
and His Majesty’s Pleasure was conveyed in terms so peremptory and express, that we are at a loss to
* conceive, how it was possible for you to hesitate upon an instant obedience to them : had we only eonsuited our immediate line of duty, we should have submitted to His Majesty our opinion upon this conduct
on your part ; but as a proof of our good wishes for you, and that we place the utmost confidence in your
assurances, that your views, as well in the civil as the military affairs of the Province, have no end, but
his Majesty’s Service ; however we conceive you to have been in this instance mistaken, we have adopted
this method to inform you what we think of this part of your conduct, as Civil Governor ; and as we persuade ourselves, that you will immediately, upon the receipt of this letter, comply with the said instructions, we forbear to add what we must upon a contrary conduct of necessity do.’ Q 18-B, p. 182.
478 CANADIAN ARCHIVES
6-7 EDWARD VI!.. A. 1907
Judicature, as constituted by the Ordinances now in force, the Official Duty of the
Chief Justice of Our said Province is confined to Causes of a Criminal Nature only
except in Cases of Appeal, where he sits in common with the rest of our Council.
In Consideration hereof, and to prevent (as far as in Us lies) the’ Frequency of
Appeals, I t is Our “Will and Pleasure and you are hereby strictly enjoined and
required, by and with the Advice and Consent of Our Council in their Legislative
Capacity assembled to frame an Ordinance to be passed for the purposes of explaining
and amending the”Ordinances before mentioned by directing and enacting that the
Chief Justice shall preside and be made a Member of the Court of Common Pleas,
and as such shall sit in the said Court four times in the year at Quebec, & twice in
the year at Montreal, at the latter place immediately after, or before the present
Circuit Business, as shall be deemed most convenient, that notwithstanding his having
given his Opinion in the Court below he shall sit and give his Opinion in the Court of
Appeal, that such Court of Appeal shall consist of four persons besides the Chief
Justice to be nominated by the Governor or Commander in Chief for the time being
from among the Members of Our Council, and approved and confirmed by Us, together with the Judges of the Court of that District from whence the Appeal does
not come, the Lieutenant Governor of Our Province not to be one ; That of these
persons five to be a Quorum for the Dispatch of Business, the Chief Justice or the
Person or one of the Persons officiating in that Capacity always to be one ; And that
the said Court of Appeal be confined to examine Errors of Law only taking the Facte,
as stated in the Transcript transmitted by the Court where such Cause shall have
been determined, & without going into New Evidence, or re-examining the Evidence
before taken.1
G. R.
1
A memorandum drawn up by Mr. Livius, without date but evidently while he was in Britain,
proposed an amendment to the judicial system of the Province ; ” In order that impartial & Substantial
Justice may be easily attained in Canada by a course of Law, three Points are principally to be attended
t o : ” The three points are,—”First—to interpose such an Authority between the Sword & the People,
that they maynot be oppressed by any Person using the Generals name.” &c. 2dly ” To divide the
supreme Judicial from the Legislative Authority which are now conjoined in precisely the same Persons,
viz the Council : ” &c. 3rd ‘ ‘ To establish some Judicatory for small causes arising a t a great distance from
the Seat of the Ordinary Court in each district. ” These features, and especially the latter two, are discussed
at some length, with detailed suggestions for bettering the system. See Q 16—1, p. 3. On May 6th the
Lords of Trade sent an official communication to Richard Jackson, the Counsel of the Board, saying that
it had under consideration “what Amendments it may be expedient to propose to His Majesty in the
constitution of the Courts of Common Pleas within the Province of Quebec,” Hence they “desire your
” opinion for their Lordships information, ‘ whether it is not fitting and expedient for the better distribution
‘ of Justice in Matters of Property, that the Chief Justice, (whose function is at present confined to the
‘ cognizance of Criminal Causes only) should also preside in the Courts of Common Pleas established for
‘the Districts, into which the Province is divided ; and if so, at what and how many periods in the course
‘ of the year his presence should be required so as best to satisfy the convenience of parties resorting to his
‘ judgment, and least to interrupt and obstruct the other Duties of his office ; also whether any objection
‘lies against his sitting as a member of the Council upon Appeals from Courts, where he has presided in
‘ judgment upon the causes ; and if so, what regulations you would recommend as to his interference in the
‘ Council upon such Appeals, whether by barring him from Vote, or even from Debate, unless called upon
‘ to give information in the same, likewise whether any regulation is advisable as to the persons composing
‘ the Council in cases of Appeal ; and whether in such cases the Council, shall proceed to examine and
‘ correct all errors both of fact and Law, »nd admit new or further Evidence»’ ” Q 18—B, p. 157. On July
1st the Board of Trade reported to the King in Council on the system of justice in Quebec and the
Ordinances passed there in 1777, “and we thereupon humbly beg leave to represent to your Majesty, that,
however it might have appeared tp your Majesty’s Governor and Legislative Council, that these Ordinances
would be adequate to the Salutary purposes for which they were framed, we find on the best information,
that they are m many instances insufficient, and particularly for that the official duty of the Chief Justice
is thereby confined to matters criminal and cases of Appeal ; and that the frequency of Appeals from the
Courts of Common Pleas, under their present Establishment, is attended with every manifest mconveniencies to your Majesty’s Subjects, ” Q.18—B, p. 161. After this follows the substance of the Instruction
here given. On Oct. 24th, 1779, Haldimand acknowledged the receipt of this Instruction and promised to
lay it before the Council, though he doubts the wisdom of making any changes under the existing circumstances of the Province. He promises during the winter to give his views on such alterations as appear
to him practicable. See Q 16—2, p. 621.
CONSTITUTIONAL DOCUMENT® 479
SESSIONAL PAPER No. 18
OPINIONS OP MEMBERS OF COUNCIL ON EXECUTING T H E INSTRUCTIONS OF 16TH J U L Y 1779.1
The Question now put is,
Whether it is expedient
to put in Execution His
Majesty’s Additional In- ‘
struction to His Excellency
the Governor dated in July
last, requiring alterations
to be made in the Courts
? of Appeals and Common
Pleas.
Every Member of this honourable Board is, no doubt, well inclined to pay all due
obedience to the King’s Commands—The Alterations required by His Majesty, are
Expressly said to be for the purpose of benefiting His Subjects in this Province, by an
Expeditious Efficacious distribution of Justice, founded on the principles of the
British Constitution.
I therefore Conclude, that the Ordinances of this Province for Establishing Courts
of Civil Judicature, have been laid before the great Law Officers, and in consequence of
their report and advice the Instruction now before us has been framed : For that reason
it would be high presumption in me to suppose that the Alterations which His Majesty
enjoins to be made would not be productive of the good Intended ; I t is therefore my
advice, that an Ordinance be passed, deviating as little as possible from the great outlines laid down in the Instruction, but to have its Operation suspended until His
Majesty’s further pleasure is known.
The Intention of this Suspension is to give time to the Members of this Board
(who apprehend that the alterations required will hurt, rather than prove beneficial to
the Subject) to state to the Minister thro’ His Excellency the Governor the evils that
may (in their opinion) probably result from a Change in the present mode of administering
Justice. I would wish humbly to represent that I think the person appealing from the
Sentence of the Court to a higher Court, where a Member of the Court appealed from
sits as President, may Count on the President’s Voice and Influence. I would likewise
represent that there ought to be four terms annually at Montreal instead of two.
I am, of opinion that this Board may guard against Every inconvenience in framing
that Law, We may certainly make deviations of this Nature without incurring Censure
as having acted contrary to His Majesty’s Gracious Intention.
(Signed)
H U G H F I N L A Y
Quebec 14th February
1780.
Indorsed. v
Copy
M
r
Finlay’s Opinion concerning the Additional Instruction which the Governor laid
before the Legislative Council for their Advice concerning some Alterations Enjoin’d
to be made in the Court of Civil Judicature.
14tt February 1780.
In Govr
Haldimand’s (No. 67) of 2 5 a
Oct 1780.
1
Canadian Archives, Q 17—1, p. 299. Hugh Finlay occupied the position of Postmaster General in
Canada, an Imperial Appointment.
480 CANADIAN ARCEIYES
6-7 EDWARD Vil., A. 1907
OPINION” OF GEO. ALLSOPP. 1 %
M
r
Allsopp’s Opinion is that it would be for the Advantage and benefit of the
Province to advise the Governor.
That an Ordinance be framed and passed in Conformity to His Majesty’s Royal
Additional Instruction bearing date at S’ James’s the 16* day of July 1779, with a
Saving Clause to the following purport ;
That neither the Chief Justice nor any other Judge of the Courts of Appeals or
Common Pleas, shall have two Voices or a preponderating Voice in any of the said
Courts, there appearing by this New Regulation to be Intended Eight Judges in the
Court of Appeals and four in each of the Courts of Common Pleas; and therefore to
remedy the Inconvenience of an Equal division of Voices, Let it be Enacted, That when
the Voices shall be Equal in the Court of Common Pleas, The Eldest Member of the
Council, not being one of the Judges of the said Courts, shall be added to the Judges so
divided in Opinion, and the Cause reheard—And when it shall so happen that the
Voices in the Court of Appeals shall be also Equally divided, That there be added to
the Number of Judges in that Court, the Eldest Member of the Council, not being a
Judge of either of the Courts of Common Pleas, nor having before sat on the Cause.
and the Cause reheard.
(Signed) GEO: ALLSOPP.
Indorsed— Copy.
14th February 1780.
M
r
Allsopp’s Opinion upon the Question
concerning His Majesty’s Instruction, viz,
additional Instructions of the 16*” July 1779.
In Govr
Haldimand’s (N° 67), ‘
of 25th Oefcr
1.780.
OPINION OP GEO. POWNALL. 2
M
r
Pownall’s Answer to Col’ Caldwell’s Motion relative to the King’s Instructions.
In Council “) With res-pect to the regulations proposed in His Majesty’s InstrucQuebec Feby
13°’ j- tion being carried into immediate Execution, being to the Advan1780. J tage a n the nothing new to Communicate with Regard to our Indian Allies. Since the
neighbouring Provisional Treaty has been Made public, several Persons of influence in
States. tfie State of Vermont have been here at’different times, they all agree in
State. describing these People as very Averse to Congress and its Measures, they
now insist that in Case Congress should admit their Claim to be the 14th
State, upon an exemption from any part of the debts contracted pievious
to their Admission, as having never been represented in Congress, they
could not be bound by it’s Acts ; They Seem to have an entire Confidence
that’in Case Congress Should think of reducing them by Force, the N eight h 9u sS
r e l bouring States of New England could never be prevailed upon to assist in
of N. Yorkate t l l e attempt, for which reason they make no Scruple of Setting the State of
New York & its Claims of Jurisdiction over them at defiance. They give
great encouragement to the Royalists from the Neighbouring Provinces to
Settle amongst them and have already taken possession of the Lands on
the South Side of Lake Champlain to the Boundary Line at the Degree
45.—They made no Scruple of telling me that Vermont must either be
annexed to Canada, or become Mistress of it, as it is the only channel by
Which the Produce of their Country can be Conveyed to a Market, but
they assured Me that they rather Wished the former. They are really a
1
The first Ordinance passed relating to these fisheries was that of 28 Geo. III., cap. 6, “For
regulating the Fisheries in the River St. Lawrence, in the Bays of Gaspé and Chaleurs, on the Island of
Bonaventnre, and the opposite shore of Percé.” Ordinances Made and passed by the Governor and
Legislative Council of the Province of Quebec, 1795. p. 153. 2
Canadian Archhes, Haldimand Papers, B 56, p. 149. The first portion of this despatch relates to
the extensive negotiations, both before and after the Treaty of 1783, between Haldimand and a section of
the people of Vermont, chiefly through the agency of Ethan Allen and a few others. Lord North, to whom
this despatch is addressed, held office as one of the Secretaries of State from April 2nd, to Dec. 23rd, 1783.
18—3—32
498 CANADIAN ARGBITE8
The State of
ÏT: York settling along
Lake Champlain
bad consequences that
will follow
also to the
Canadians
6-7 EDWARD VII., A. 1907
hardy enterprising People, and tho’ it was in my Power with the greatest
ease during the War to destroy Such of them as Should Settle on Lake
Champlain, it was with great difficulty that I could deter them from attempting it, and not till after by experience they found that I was determined to effectuate by force what I could not gain by Admonition.—Tho*
I have heard them with Patience, I have assured them that I could not
interfere in these Matters as I had the Most positive Orders from the King
to do every thing in my power to Conciliate the Affections of the Subjects
of the united States to those of Great Britain. The State of New York is
Making Settlements in the Same Manner on the opposite Side of the Lake.
—The Conduct of these People is not Justified by the Rules of War, for
until the Definitive Treaty is made, the Provincial One1
is no more than
preliminaries to a Peace, but Circumstanced as I am, and Willing to Shun
every thing which could be construed as an inclination to infringe the Cessation of Hostilities I have thought it best not to oppose them, tho’ I foresee great and Mischievous Consequences to this Province from the Settlement which the State of New York is making near the Boundary Lines.
The Americans are Settling Captain Hazen, now a Brigadr
General, with
the few Canadians remaining of the Corps upon Lake Champlain, they give
them Lands and a Sum of Money proportionate to their Rank and Services. As their Number is Small, the expence will be trifling, but Still
these Canadians will be handsomely rewarded, and the Encouragement
given to them will have considerable Influence upon the Minds of their
Country Men upon Some future Occasion. I t will be Totally impossible to
prevent frequent Intercourse between them, and the Settlement being So
C mtiguous to the Boundary Line will afford a Safe and easy Azylum to the
Seditious and dissaffected of this Country who are very numerous in the
Parishes adjoining to Lake Champlain. This Province can only be preserved by bringing back the Canadians to a regular Subordination, and by
TheCanadians rendering them useful as a well disciplined Militia—In order to effectuate
by a well dis- this, the Authority of Government Must be Strengthned & not diminishciplinedmi- ed. Be assured My Lord, that every Scheme calculated for the latter purlitia pose, & however disguised, has its Source from the Partizans and Emissaries
of the American States. To me personally considered, it Must be a Matter
of indifference What form of Government is adopted for this Province, bub
I would be deficient in that Duty which I owe to the King and the British
Nation, if I did not acquaint Your Lordship for His Majesty’s Information,
that in Order to keep this Country dependent upon Great Britain, no
Change Should be Made in the Act of Parliament which regulates it. The
Bll tobekeot-‘-jeë’s
l
a
k
ure here, has Power to alter Such parts of the French Law as may
in force be found by Experience unadequate to the Circumstances of a Commercial
Country and is possessed on the Other Hand with Authority to alter Such
parts* of the Criminal Law of England as are improper or inapplicable to
the State of the Colony. These Alterations ought to be Made with prudence and discretion, and no doubt the Legislative Council will do it at a
proper time.—It is an easy Matter to repeal the Quebec Act, but it will be
a difficult Task to Substitute another in its Place, The Saving by having a
House of As-House of Assembly ¿612,000 pc
Annum, which may be the diificiency one
sembly how Year with Another after the Revenues of the Province have been appro-
*íí h
¿”pUPd °rt” priced to Pay the Civil Establishment cannot be put in Competition with
the Many bad Consequences which would attend the Measure.
I am the More explicit on this Subject with your Lordship, as being
upon the Spot, I Know the Views and Motives of the Persons who have
been active in setting forth Petitions and creating Jealousies and divisions
1
The provisional articles of peace were signed at Paris, JSfov. 30th, 1782. British and Foreign State
Papers, vol. I, p. 773. The declaration relative to the suspension of hostilities was signed at Versailles
Jan. 20th, 1783. Ibid. p. 777.
CONSTITUTIONAL DOCUMENTS! 499
SESSIONAL PAPER No. 18
Interested
views of the
People wishing for a
Change o£
Government.
Col. Cor.
Canada
Quebec.
Vol. 23
p. 13.
in the Province. Some wish a form of Government, which by resembling
the Républicain one in the Neighbouring States, may prepare the People
for an Union with them upon Some future Event ; and Many wish to vent
their resentment against those who have either prevented or brought to
light their Abuse of the Public Money, but much of the future Welfare of
the People of this Province or of its utility to Great Britain will depend
upon the Arrangements which will be Made in Consequence of the
Definitive Treaty, and of the Measures which the Governor will be
instructed to pursue.—
I have the Honor to be with the greatest Respect and Esteem
My Lord
Your Lordship’s Most obedient
& Most Humble Serv’
F R E D : H A L D I M A N D
The Right Hoñble Lord North
(original)
H A L D I M A N D TO NORTH. 1
My Lord
*
QUEBEC 6″1
November 1783.
Your Lordship has already been made acquainted with the general State
of this Country, I am told that in the Petition which Some of His Majesty’s
Antient Subjects have prepared to be presented to Parliament, they lay
great Stress upon the Number of Loyalists who are to Settle in the
Province, as an Argument in favor of the Repeal of the Quebec Act and
for Granting a House of Assembly, but I have great Reason to believe
these unfortunate People have Suffered too Much by Committees and
Houses of Assembly, to have retained any prepossession in favor of that
Mode of Government, and that they have no Reluctance to Live under the
Constitution established by Law for this Country. A t the Meeting of the
Legislative Council I intend to propose and recommend the Passing an
Ordinance for the Introduction of the Habeas Corpus Act
2
or Some other
Mode for the personal Security, which will put the Liberty of the Subject
in that Respect upon the Same footing as in England, and which will
remove one of the ill grounded Objections to the Quebec Act, for tho’ 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.—
I have the Honor to be with the greatest Respect and Esteem
My Lord
Your Lordship’s Most Obedient
and Most Humble Servant
ERED: H A L D I M A N D
The Right Honorable Lord North
(original)
i Canadian Archives, Haldimand Papers, B 56, p. 170. The first part of this despatch deals with
the preparations for the settlement of the Loyalists.
2
On Feb. 7th, 1782, in the Legislative Council, ” Mr. AUsopp moves for leave to bring in 3 Ordinances
in conformity to the 12th & 13th Articles of his Majesty’s Instructions ” The first related to English Law
and trial by jury in commercial matters ; the second authorized and required the judges of all the Courts
to issue writs of Habeas Corpus according to the rules and laws of England ; the third provided for the
suspension of the second ordinance for a year. See Q 20. p. 244. This motion, however, was defeated and
immediately afterwards AUsopp was suspended from the Council on the grounds of his protest of 1780 ¡
See note 2, p. 488.
18—3—321
500 CANADIAN ARCHIVES
6-7 EDWARD V I I , A. 1907
F I N L A Y TO NEPEAN. 1
QUEBEC 22a
October 1784.
SIB,
The Advocates for a House of Assembly in this Province take it for granted
that the people in general wish to be represented ; but that is only a guess, for I will
venture to affirm that not a Canadian landholder in fifty ever once thought on the
subject and were it to be proposed to him, he would readily declare his incapacity to
Judge of the matter. Although the Canadian Peasants are far from being a stupid
race, they are at present an ignorant people, from want of instruction—not a man in
five hundred among them can read ; perhaps it has been the Policy of the Clergy to
keep them in the dark, as it is a favourite tenet with the Roman Catholic Priests, that
ignorance is the mother cf devotion. The Pernales in this Country have great advantage
over the males in point of Education. The Sisters of the Congregation, or grey Sisters
as they are called, are settled in the Country Parishes here and there to teach girls to
read, write, sew, & knit Stockings :, there’s only a few of that Sisterhood—they are the
most useful of any of the religious orders in Canada.
Before we think of a house of Assembly for this Country, let us lay a foundation
for useful knowledge to fit the people to Judge of their Situation, and deliberate for the
future well-being of the Province. The first step towards this desireable end, is to have
a free School in every Parish—Let the schoolmasters be English if we would make
Englishmen of the Canadians ; let the Masters be Roman Catholics if it is necessary,
for, perhaps the people, at the instigation of the Priests, would not put their children
under the tuition of a Protestant.
The natural born subjects say, that they settled in Canada under the Kings promise
to call a house of Assembly as soon as the circumstances of the Province would permit.
The time is now come, say they • they likewise state many privileges that they hoped to
enjoy on the faith of the Eoyal proclamation, of which they were deprived by the
Quebec Act. __
I t is not yet ascertain’d that the people wish for a house of Assembly !—Is it not
the very essence of representation that the membei s of the house be chosen by the free
and uncontrolled voices of the people in their districts ? The Quebec Act gives full
power and authority to His Majestys Legislative Council to make Laws and grant all
manner of Priviledges to render His Majestys subjects in Canada free and happy ; if
they are not actually so, the Legislative Council alone is to blame, not the Quebec Act,
for by it the Council may alter even the Criminal Law.
Before any Act passes giving the Canadians a house of Assembly, let us be sure
that it will be agreeable to a Majority of the landholders—Let the nature of free
representation be set forth, let the duty of a representative be explained, and convey a
proper idea of the powers a house will have to frame laws and lay taxes : this necessary
information ought to be drawn up in plain clear terms, and read to the people every
1
Mr. Hugh Finlay, as already indicated (see note 3, p. 486) was Postmaster General and a member of
the Council. Evan, afterwards Sir Evan Nepean was appointed the first Permanent Under Secretary of
State for the Home Department, in 1782. This office was created in consequence of the readjustment of a
number* of offices of state. The office of Secretary of State for the Colonies, created in 1768, was abolished
along with the Board of Trade and Plantations, in 1782, under the Act of 22nd Geo. III. cap. 82, the
preamble to which states—”Whereas his Majesty, from his paternal regard to the welfare of his faithful
people, from his desire to discharge the debt on his civil list, without any new burthen to the publick, for
preventing the growth of a like debt for the future, as well as for introducing a better order and economy
m the civil list establishments, and for the better security of the liberty and independency of parliament,
has been pleased to order, that the office commonly called or known by the name of Third Secretary of
State, or Secretary of State for the Colonies ; the office or establishment commonly known by the name
and description of The Board of Trade and Plantations ; the offices of lords of police in Scotland ; ”
&c. &e. “shall be, and are hereby utterly suppressed, abolished, and taken away.” Statutes at Large, vol.
34, p. 143. The former duties of the Board of Trade and Plantations were to be executed by a Committee
of the Privy Council. See sec. 15 of the Act. The work of the Colonial Secretary was transferred to the
Home Department, formerly the Southern Department, in which there was also a Parliamentary Under
Secretary.
CONSTITUTIONAL DOCUMENT® 501
SESSIONAL PAPER No. 18
Sunday for three months by the curate of each Parish immediately after divine service,
that the inhabitants or country people, may turn it in their thoughts, consult among
themselves and advise with the most sensible in the Parish, be they French or English,
to enable them to come to a determination concerning this matter.
Let those who assert that it is necessary for the wellbeing of the people that the
habitans have a share in the Government, do their beat endeavours to show them by
solid arguments that it will be for their good—At the end of three months, or six if
more time is requisite, let the Captains of Militia in presence of the Curate and four
of. the most notable in the Parish take the voices of the people for House, or no House1
?
If a majority throughout the Province say House, grant their desire—if they say no
house—the British Parliament will not force that form of Government upon them : the
ancient subjects, (a small proportion of the people) ought not unreasonably to insist on
that which a majority of their fellow Citizens refuse after mature deliberation. •
When the people, by means of education, become more enlightened, they will
probably wish for an alteration of the present system—whenever that desire appears let
the alteration be made—in the mean time let it always be held up that a house will be
called whenever a majority of the people apply for it.
I conceive, that whenever taxation is mentioned, the Peasant will reject the idea
of a house, from his narrow way of thinking, and attachment to money. Were a house
to be forced on them, and that house lay taxes to defray the expence of Government
and a thousand useful purposes which the English Members (if any English there
should be chosen) would be continually be projecting, they would deem themselves
oppressed and probably wish to join the American confederacy, not possessing knowledge enough to foresee the evil consequences of that Junction.. The Enemys of
Government (and there never is wanting turbulent people in all Countrys) would make
a handle of their discontentment and keep up a spirit which they would hope to turn
to account one day or other.
We at this moment enjoy all the benefits arising from the Habeas corpus act.1
The Legislative Council have repeatedly refused to grant Jurys in civil cases. Say
the people, there is no Judge on the Bench capable of determining a Commercial point
so well as a Jury of Merchants, nay ’tis absolutely impossible that Right can be done to
the subject by Judges not bred to the Law, under that anticommercial ill understood
System la coutume de Paris, without the intervention of Juries—Jurys are an Englishman’s birth right.—Why refuse optional Juries 1 asks an old subject—because, answer
the Judges, they are too burthensome on the people. No replys the Englishman, Jurys
are not burthensome where the Courts are properly regulated by terms, but here you
have weekly Courts, as inconvenient as injurious since they tend by their frequency to
deprive the Subject of trial by Jury, a right which an Englishman never can give up/
and which His Majesty was pleased by His 13th Instruction strenuously to recommend,
but the Judges who have had most influence with our Governors have found means to
prevent our having Jurys in the Civil Courts, as they have been looked on as a pernicious check on the power of the Bench.3
1
In his speech to the Legislative Council at the opening of the session, on March 22nd, 1784,
Governor Haldimand stated that he had regretted that the condition of publie affairs had not hitherto
permitted of his recommending an Ordinance for the better security of the liberty of the subject, now,
however, he would present one to them. See Q 23, p. 152. While this ordinance was being considered,
Mr. Grant of St. Roc moved that the following clause should be incorporated :—” And it shall be clearly
understood at all times hereafter, that the Common and Statute Law of England in as far as the tame is
favourable and protective of personal Liberty, Safety and Security is the right of all His Majesty’s faithful
subjects in this Province ; And as such shall be the rule whereby to decide every case and situation not
provided for by the present Ordinance.” Q 23, p. 247. This was defeated by nine to seven. But inasmuch
as the preamble to the ordinance recited the 13th article of the Instructions to the Governor, the. same
minority supported a motion, introduced by Mr. Finlay, to the effect that the ordinance as passed did not-,
fulfil the conditions of the 13th article. The minority consisted of Messrs. Grant, DeLery, Collins,
Levesque, Uunn, l’inlay and Lt. Gov. Hamilton ; and each of these, except Mr. Collins, recorded his
dissent from the vote of the majority. See Q 23, p. 255 et seq. The Ordinance introduced by Haldimand
and passed was 21 Geo. III., cap. 1. ” For securing the Liberty of the Subject, and for the prevention of
Imprisonments out of this Province.” Ordinances made and passed by the Governor &c, p. 57.
3
Repeated efforts, extending from 1777, had been made to secure an ordinance granting the right of
trial by jury in civil cases, but not until the departure of Haldimand, Nov. 16th, 1784, was there any
prospect of its being passed. Under Lt. Governor Hamilton’s administration, however, in the spring of
1785, this feature was embodied in the new Ordinance for Regulating the Proceedings o£ the Civil Courts,
See below, p. 529.
502 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
I t has been remark’d that men never wish for more power than the Law gives
them, unless they intend to use it—On trials for Damages, the want of Juries may be
severely felt.”
May I, Sir, refer you to a sensible man Mr. Grant of S’. Roc, (a Member of the
Legislative Council) for ample information concerning our Courts of Justice—he lives
at N° 42 Newman street.
I t has been represented that poor people cannot afford to attend as Jurors on
civil causes—Let them be paid and they will cheerfully serve—’tis but reasonable that
the contending partys should pay.
I have taken the liberty to trouble you with this letter at the desire of my friend
Governor Skene.
I have the honor to be Sir
* Your most obedient and very humble
Servant
H U G H F I N L A Y
Evan Nepean Esqr
(original)
PETITION FOR HOUSE OF ASSEMBLY. 1
TO THE KING’S MOST EXCELLENT MAJESTY.
The humble Petition of Your Majesty’s Ancient and New Subjects; Inhabitants of
the Province of Quebec.
MAY I T PLEASE YOUB MAJESTY,
AFTBE the Conquest of the Province of Canada by the Arms of Great Britain,
Your Petitioners in compliance with Your Majesty’s gracious and royal Proclamation,
1
Canadian Archives, Q 24-1, p. 1. Given also in Q 27-1, p. 431. On the 22nd of April, during the
session of the Legislative Council, Mr. Grant made the following motion :—”I move that a Committee of
this Legislative Council be immediately named to take into Consideration and draw up an humble petition
to His Majesty and Parliament praying that an Assembly, or such other Elective Body be called to represent
the people of this Province, and in such manner and number, and so composed as to His Majesty in his
Wisdom shall seem fit. In which Assembly, or Elective Body, together with His Majesty’s Council and
Governor, shall be vested the usual Legislative Powers of an English Colonial Government. And I move that
the following among other Reasons may be suggested in support of the said petition and this Motion. ” These
reasons may be summarized as follows ; 1st. As the Quebec Act prohibits the Council from levying
taxes, except to a very limited extent for inhabitants oí towns and districts, an elective Assembly is
necessary to adequately provide for the needs of the Province. _ 2nd. Eor 24 years the Canadian people
have been led to expect the establishment of Constitutional Government. 3rd. These expectations
probably explain why the power of local taxation has not been called for, with the result that local
improvements, such as roads, have either been maintained by the Crown or have fallen into decay. 4th.
An Assembly with the power of taxation is the more necessary that the King, by the Act of 18 Geo. III.,
cap. 12, has relinquished the right of internal taxation in the colonies. 8th. That the power of raising
revenue for the general welfare of the people is as essential to free government and the rights of
British subjects as personal liberty and security. 6th. Representative Government is necessary in view of
the immigration of the Loyalists, and this is an opportune period to petition for it. 7th. The same
petition should pray the King to direct trial by jury in civil cases, where desired by either party, the
present system being anomalous. 8th. The extraordinary powers given to the Legislative Council by the
8th, 10th, llth, & 14th sections of the Quebec Act, while its members are entirely dependent for their seats
on the pleasure of the Crown, nine of them forming a quorum, and hence five having the power to conduct
the biisiness of the Province. See Q 23, pp. 269-276. The discussion on this motion was delayed by the
order to have it translated into French. In the meantime, St. Luc La Corne moved for an address to
the Governor, expressing satisfaction with the Quebec Act and praying for its continuance. This was
carried on a division of 12 to 5. As ultimately presented, the address, with Haldimand’s reply, was as
follows :—”May it please Tour Excellency. We the members of the Legislative Council take the Liberty
to represent to Your Excellency our Gratitude for His Majesty’s paternal goodness in the gracious protection he has granted to the people of this Province during the Troubles which have distracted the
greatest part of North America. At the same time we take the Opportunity of renewing our Solicitations
to Your Excellency that you will be pleased to convey toHis Majesty the sense we have of the great
advantage which has accrued to the people of this Province, and to the tranquility and safety of it. from
CONSTITUTIONAL DOCUMENTS; 503
SESSIONAL PAPER No. 18
bearing date the 7tU day of October 1763,1
Settled and became established, in the New
acquired Colony of Quebec ; in the full reliance on the faith of the Crown of Great
Britain, as expressed in that Proclamation, for the enjoyment of those Laws, that Freedom and Security in Canada, which the Principles of the English Constitution afforded,
in every part of the British Dominions in America. YOUR PETITIONERS and the Inhabitants of the Province, have chearfuUy on every occasion, obeyed the Controuling power
of the Parliament of Great Britain, and with patience have suffered, during a period of
Anarchy and War, rather than wound Your Majesty’s feelings, or embarrass the Throne
with Remonstrances and Petitions, at a time when the safety of the Nation, made
sacred every moment of Public deliberation. The Actions and Conduct of Your Petitioners when truly represented, will best express to Your Majesty, the Sincerity of their
Loyalty and Attachment to the Crown and Government of Great Britain.
YOUR PETITIONERS look with Concern on the burthen of Great Britain, and with
great Pain and Commiseration they see the distresses of Your Majesty’s loyal Subjects,
who, driven from their Estates, Wealth, and Possessions are daily taking. Shelter in
this British Colony; though their unsettled and distressed Situation, may for the present
hinder them from bringing forward their Petitions and their Claims; Your Majesty will
readily perceive that a Government similar or Superior, to that under which they were
born, had lived, and were happy, must be considered by those Your Majesty’s unfortunate Subjects as an Affectionate proof of Your Majesty’s Paternal Care and Regard for
them; and the first Comfort which Your Majesty in releif to their Distresses can now
grant :n And the more so, as it will be a Blessing not merely granted to them, but extended to their Children and Posterity. YOUR PETITIONERS fully persuaded that the
Welfare and Happiness of Your Majesty’s Subjects, are objects of Your Majesty’s serious, and benign Consideration—beg leave to lay their Petition at the foot of the
Throne and ardently to request Your Majesty’s Interposition for the Repeal of the
Quebec Bill; allowing such Priviledges as are already granted to the Roman Catholick
Religion; as being inadequate to the Government of this extensive Province; the Cause
of much Confusion in our Laws, and fraught with trouble and uneasiness to Your Majesty’s loyal Subjects here. And that Your Majesty will be pleased to Concur in establishing your affectionate Subjects of this Province, in the full Enjoyment, of their civil
Rights as .British Subjects; and in granting them a Pree, Elective House of Assembly.
In these hopes they humbly presume to Suggest, that Clauses of the following Import,
may be inserted in the Act of Parliament, which shall be made to Confirm a free Constitution to this Country.
I
s
‘ THAT the House of Representatives or Assembly,—be chosen by the Parishes,
Towns and Districts of the Province, to be Composed of Your Majesty’s Old and New
Subjects, in such manner as to Your Majesty’s Wisdom may seem most proper, that the
Assembly* be triennial, and the Members elected every three Years.2
2
a
THAT the Council consist of not less than Thirty Membres and in case of
Division on any measure before them, that no Act shall be passed, unless at least Twelve
Members agree to carry the Vote. That the appointment of the Members, may be
the Act of Parliament which was passed in their favour the 14th year of. His Majesty’s Reign ; the continuation of which Law, the result of that generous and tolerating Spirit which distinguishes the British
Nation, will be the means of rendering the people of this Province indissolubly attached to the Mother
Country, and happy in the Enjoyment of their Religion, Laws and Liberties. (Signed)
v Henry Hamilton President.”
” The Governor’s Answer—
Gentlemen. I will transmit your Address to the Secretary of State, to be laid before His Majesty.
The Ordinance passed this Session for securing the personal Liberty of the Subject, will contribute to
remove the prejudices of the misguided against the Act of Parliament which regulates the Province, and
at the same time will be the means to frustrate the Attempts of the malicious and designing to create confusion and dissention within it. (Signed) ïred. Haldimand.” Q 23,p.317.
The vigour of this reply was doubtless heightened by the fact that of the five members who voted against
the Address, four recorded their reasons of dissent. These were Lt. Gov. Hamilton, Hugh Finlay, I \
Levesque, and J. G. O. DeLery. They all considered that the changed conditions resulting from the
independence of the late Colonies and the arrival of the Loyalists required changes in the Quebec Act and
a more liberal and representative form of government. See Q 23,pp.287-305.
i See p.119.
2
For a more detailed plan of the proposed Assembly, drawn up by the Committees of Quebec and
Montreal at the same time as this petition, see the document which follows this, p. 510.
504 CANADIAN ARCHIVES *
6-7 EDWARD V I I , A. 1907
during their residence in the Province, and for Life ; yet subject to temporary leave of
Absenc ••, as mentioned in the 11th Article ; And that they serve as Councellors, without
Fee or Reward.
3
d
THAT the Criminal Laws of England be continued, as at present established
by the Quebec Act.
4
th THAT the ancient Laws and Customs of this Country, respecting landed
Estates, Marriage Settlements, Inheritances and Dowers, be continued ; yet subject to
be altered by the Legislature of Quebec ; And that Owners may alienate by “Will, as
provided by the 10th Section of the Quebec Bill.
5
th THAT the Commercial Laws of England, be declared to be the Laws of this
Province, in all Matters of Trade and Commerce, subject to be Changed by the Legislature of Quebec, as in the preceeding Article.
6
tt THAT the Habeas Corpus Act, the 31st Charles 2d
be made part of the Constitution of this Country.
7’11 THAT Optional Juries be granted, on all Trials in Courts of Original Jurisdiction. That they be regularly Baloted for, and a Pannel formed as in England ; either in
the Case of an ordinary or a Special J ury, at the option of the Party applying for the
same, And that Nine Members out of the Twelve, may in Civil Cause?, be sufficient to
Return Verdicts, subject to be Modified by the Legislature of Quebec, as in the 4″1
Article.
8″1
THAT the Sheriffs be elected by the House of Assembly, and approved and
Commissioned by the Governor, at the Annual meeting of the Legislature. That they
hold their Appointment during* the period elected for, and their good Behaviour ; and
that they find reasonable Security, for a faithful discharge of their Duty.
9
th THAT no Officer of t*he Civil Government, Judge or Minister of Justice, be
suspended by the Governor or Commander in Chief for the time ; from “the Honours,
Duties, Salaries or Emoluments, of his Appointment ; but with the advice and Consent
of Your Majesty’s Council, for the Affaires of the Province ; which Suspension shall not
Continue, after the Annual Sitting of the Council ; unless it be approved by the same.
The cause of Complaint if approved, to be thereafter reported to Your Majesty, for
Hearing and Judgement thereon.
10th THAT no New Office be Created, by the Governor” or Commander in Chief
for the time ; but with the Advice and Consent of Your Majesty’s said Council and be
approved at their Annual Meeting, as in the preceeding Article.
11th THAT all Offices of Trust be executed, by the Principal in the Appointment j
unless by leave of Absence from the Governor, with advice and Consent of his Council >
which leave of Ab ence, shall not extend to more than Twelve Months, or be renewed by
the Governor, but with the Approbation of the Council, at the Annual Session.
12th THAT Judges be appointed, to preside in the Courts of the Province ; to hold
their places during Life, or their good Behaviour, and that they be rewarded with
Sufficient Salaries, so as to confine them to the functions of administering Justice. That
every Cause of Accusation for a Removal, proceeding from the Governor, shall follow
the Rule laid down in the 9th Article. And every Cause of Accusation for a Removal,
on the Part of the Public, shall proceed from the House of Assembly, and be heard by
the Council ; which, if well founded, shall operate a Suspension ; and in either Case, be
decided in Appeal and Report to Your Majesty.
13th THAT Appeals from the Courts of Justice in this Province to the Crown, be
made to a Board of Council, or Court of Appeals, composed of the Right Hoñble The
Lord Chancellor and the Judges of the Courts of Westminster Hall. –
14’11 YOUR PETITIONERS beg leave, humbly to Represent to Your Majesty; that
from their Proximity to the United States, who from Situation and Climate, have many
advantages over .them, the Internal Regulations for promoting the Trade, Agriculture
and Commerce, of this Province ; are now become more intricate and difficult ; and will
require great Care and Attention, on the part of the Legislature here ; to watch over
the Interests of this Country. They therefore request, that the Assembly may have the
Power, of laying the Taxes and Duties, necessary for defraying the Expences of the
CONSTITUTIONAL DOCUMENTS’ 505
SESSIONAL PAPER No. 18
Civil Government of the Province. And for that purpose, that the Laws now existing,
laying Taxes and Duties to be levied in the Province, may be repealed.
SUCH MAT IT PLEASE YOUB MAJESTY are the Intreaties and Prayers of Your loyal
Subjects ; and in full Confidence they trust, that Your Majesty will releive them from
the Anarchy and Confusion, which at present prevail, in the Laws and Courts of Justice
of the Province, by which, their Real Property is rendered insecure, Trade is clogged,
and that good Faith, which ought, and would subsist among the People, and which is
the Life and Support of Commerce, is totally destroyed. And be Graciously pleased to
Secure to them, a Constitution and Government, on such fixed, and liberal Principles,
as may promote the desire Your Affectionate Subjects of this Province have, of rendering this Mutilated Colony, a bright Gem in the Imperial Crown of Great Britain. And
that may call on the present Generation, for their unceasing Acknowledgements and
Gratitude. And upon the future, to feel as the present, that the Security and
Happiness of the People and Province of Quebec ; depend on an Union with, and Submission to, the*Crown and Government of Great Britain.
In these pleasing hopes Your Petitioners as in Duty bound will ever pray &c.
&c. &o.
Quebec 24th November 1784
(Signed)
John Munro
John MacDonald
Alex1
ffraser
Andrew Doe
Jail es Brymore
Wm
Hemley
Joseph Musgrave
Robert Urquhart
Joohn Coops
W – Miller
J. Stewart
Robert Sandeson
James Stiveinson
James Collum
John Bell
John Thomson
Rob’ Russel
William Russe!
John Fraser
Patk
Sulavan
George Harrow
John Henderson
Donald Smith
Robert Gorrie
James Currie
Jas
Duncanson
Elias Salomon
Alexr
Spark
Wm
Lindsay Jr
Wm
Person
Luke Gambee
John Justus Diehl
John Urquhart
John Buchanan
Wm
Thomas
John Chillas
John Crawford
John Johnston
Alex1
MacPherson
Alexr
Macpherson
John Macpherson
Andrew Martin
John Young
James Sherrar
Malcom Mullun
Patrick Codey
Louis Ratti
Jn° Jones
Josep Mather
John Daly
Johann friedrih
Jacob Stugman
John King
John Gawler
John Hay
Lauch Smith
James M0Neill
Jas
Sinclair
Geo. Sinclair
James Swan
Zacfr MacAulay
Cuthbert Grant
Daniel Fraser
John Pagan
Meredith Wills
John Rodhe
Alex1
Johnston
John Johnston
Rob’ Haddan
John Ay ton
John Lynd
Henry Crebassa
CANADIAN ARCHIVES
William Grant
George Jinkins
Wmm
Webb
John Robinson
Jas
Gibbons
John M°Kutcheon
Jas Quin
John Saul
Wm
Mackenzie
John Ross
Henry Cull
W H a y
Alexr
Wallace
Jeff1
‘* Manning
Jn° Jones
Sam1
Casey
Thos
Bennett
William Laing
Da Cameron
Wm
Garrett
Godfrey King
Sam1
Jefferys
Dunccan Mkensy
John Simpson
John Potts
Stephen Curtis
Mathew Lymburner
David Barclay
Thomas Sketchley
A. Ferguson
William Maonider
Roderic Fraser
Tho5
Cary.
Alexr
Ross
David Ross
J. Buchanan
Rob’ M°fle
Willm
Ritchie
Thorn3
Bissbrown
Robert Stewart
Matthew Stewert
Hyam Myers
Mathw
Maenider
James Bowman
Charles Grant
Adam Lymburner
Rob’ Willcocks
John Antrobus
Jn° Painter
John Jones
William Wilson
Al. Wilson
G. Stuart
Richd
Dalton
Jacob Rowe
John Munro
Thomas M “Cord
6-7 EDWARD VII., A. 1907
Thomas Powis
Robert Woolsey
Robert Keating
Hugh Jameson
Jn° Blackwood Jur
Wm
Burns
Fridrick Glackemeyer
Miles Prenties
C. J. Tanswell
Thomas Grahame
Ans
Grant
Jas
Grant
Jas
Greig
Isaac Roberts
Anthony Vanfelson
W Roxburgh
Fred: Petry
Alex. Greig
P. Pollock
John McCord Junr
Jas. Sinclair
James Woods
George Gillmore
Robert Ritchie
Hugh Ritchie
John Ritchie
Hugh Merchall
James Johnston
I. Fraser
John Buchanan
Robert Lester
Wm
Lindsay
Constant Freeman
Ezekiel Freeman
John Walter
Wm
Vonden Velden
Nath. Taylor
Jn° Taylor
Edward O’Hara
David Shoolbred
Tho” Watt
A. Aylwin
C. Danbridge
Jn° Purss
Malcolm ffraser
William Bell
Wiliam Wilson
Ri a Grey
Samuel Harris
Andrew Colly
John Hay
William Carss
David Morris
Jams Gordon
John T Doyle
William Lane
William Crouch
CONSTITUTIONAL DOCUMENTS
John M°Cord
John Lampard
Rendel McDoneld
Patrick Ledwith
Daniel Duncan
Hugh Rigby
John Reid
John Brook
Alexader annod
Rich4
Dunn
Moses Brockett
John Evans
John Richardson
Richard Janneyson
Francis Desrocher
W: Ward
Sam1
Henry
John Stanley
John Greig
William Moore
John Salmon
B. V. Clench
Jn° Salmon
John Dormer
Hugh Fraser
Joseph Fraser
John Walsh
Alexr
MeDonald
Alexr
Iver
Charle? Daly Junr
W. Cameron
Edward Mackay
Cha Stewart
Isaac Gay
“H •
O oo
•g.È
a
W ‘ C a w
Daniel Blunt
William Miller
John Fraser
John Rodolf Smith
Charles Smith
David Jacobs
Sam1
Pepper
James Galbraith
Wm
Brown
Jas
Melvin
John Woolsey
Rob* Russel
W Courcy GUI
Philip Sullivan
Dunacan MDonald
James Davidson
Malcolm Fraser
Aaron Hart
Sam Sills
William Nelson
Moses Hart
John Macpherson
John Fraser
Philip Lloyd
John Sills
Eze1
Harb
R. Mell
I. M. Bliss
Robert Jones
Thomas Prendergast
James Day
Joseph Ray
George Rapper
John’ M°Bain
District of Montreal
Jacob Jordan
James M°Gill
James Finlay
Benj11 Frobisher
Nicholas Bayard
William Kay
Alex1
Henry
J. Blackwood
Geo: McBeath
Jn° Askwith
William Allen
Joseph Frobisher
Hugh Ross
Ancus Cameron
Alexander Hay
Charles Paterson
Sam1
Birnie
James Dyer White
J. M°Kinnsy
Jacob Ruhn
Fran Winton
John Forsyth
John Franks
William Harkness
Wm
Griffin
Rosseter Hoyle
Robert Griffin
Abraham Hart
Samuel Gerrard
Colin Hamilton
Laurence Taaffe
W m Jj y M o N e i l l
Charles Smyth
Angus Macdonald
John Smith
D
a
Lukin rpb^u”””
James Cameron
G. Young ij
t
508 CANADIAN ARCSI7ES
Felix Graham
John Gregory
J. Grant
David McCrae
John Lilly
Geo. Selby
W. Maitland
James Caldwell
R.Sym
Robert Jones
William Taylor
F. Bleakley
Jn° Bell
Alexander Campbell
I. R. Symes
Rob* MeGrigor
James Laing
R. Gruet
David Davis
John Russel
Thomas Sullivan
Rich4
Dowie
(Oliver Church Late
Lieu* 2 dB K R R
New York)
(John Dusenberg Ensn
Late Loyal Rangers)
samuel Burch
Levai Michaels
Henry J. Jessup
Isaac H ‘ Abrams
Isaac Hall
John Campbell
Donald Fisher
Jos. Forsyth
(H. Spencer Lieu* late 2a
BK.R.R. N. York)
Richa
Pollard
John Grant
John M°Kindlay
Wm
Packer
John M°Gill
Fras
Badgley
Peter Pond
Thos
Burn
Dava
Alexr
Grant
Alexr
Cooper
Rich’1
McNeall
Alex1
Fraser
Thomas Frobisher
John Ogilvy
Andrew Todd
Thomas Corry
War” Mason
Gor. Moore
R. J. Wilkinson
James Noel
e-7
EDWARD VII., A. 1907
R. Cruickshank
John Rowand
E. Edwards
Thomas Forsyth
D. Sutherland
James Grant
Allan Paterson
John Ross
Levy Solomons
Levy Solomon Junr
John Turner & Sons *
Uriah Judah
Chy
: Cramer
Alex* Henry
Adam scotfc
Alexr
Mabbut
Jonas schindler
William Hunter
Alexr
Walmsley
Henry Edge
Allex* Martin
James M°Nabb
James Ruott
Thomas M”Murray
Isaac Judah
Sam1
Judah
Laurence Costille
Saint Louis
Henry Campbell
John Bethun»
Nomd
MacLeod
James Mackenzie
Wm
Murray
James Finlay Junr
J. Symington
J. Pang man
John Tobias Deluc
Cuthbert Grant
Robert Grant
Thos
Nadenhuvet
James Foulis
William Bruce
John Macriamara
Daniel Sullivan
Finlay Fisher
. John Stewart
Daniel Mackenzie
Joseph Anderson
Paul Heck
Robert Thomson
Samuel Heck
Alexr
Milmine
Robert Smith
William Smith
Jacob Tyler
Char3
Grimesly
Wm
Grimesly
CONSTITUTIONAL DOCUMENTS 509
SESSIONAL PAPER No. 18
endorsed
Charles Lilly
Duncan Fisher
John Ridley
Alex1
‘ Campbell
John Milroy
Joseph Hamly
Sam1
White
Sam1
Douney
C. Rolffs
Wm
Hall
– Geo. McDougall
Robert Lindsay
Jas
Robertson
Thos
Brekenridge
John Foulis
Francis Crooks
Geo. Edw. Young
George Aird
Joseph Provan
Simon McTavish
John Lawrence
Sam1
Embury
S. Anderson
Dan1
Daly
Richd
Whitehorse
James Fraser
Alexander fraser
Rich4
Whitehouse
Levi Willard
Joseph Johnson
M. Cuthell
James Leaver
Tobias Burke
Rob* M°Ginnis
Richd
ÜVPGinnis
John Hicks
George Hicks
Stephen Milers
William Tilby
James Perry
Edward Corry
Stephen Waddin
Peter Smith
Owen Bowen
Peter Grant
Jrns
Chaorles
James Fairbairn
John Hughes
Ranald McDonald
Watkin Richard
jenbaptiste Lafrenay
Thomas Sare
And17 Cockburn
ThoB
Isbusther
Joseph Land rey
Robert Withers
(Parchment copy)
In L4
Gov1
Hamilton’s N° 2 of 9.
David Ross
Abram Holmes
William Fraser
William H assail
David Ray
Thomas Busby Sen1
Thomas Busby Junr
William England
Conrad Marsteller
William Creighton
Hugh Holmes
Jervis George Turner
R
a
Warffe
James Nelson
Philip Cambell
Duncan Cumins
Henry Gonnerman
Firedrick Gonnerman
John Maxwell
Thos
Little
Christ’ Long
Edward Gross
Nicholas Stoneman
Jn° Daly
Thos
Oakes
John Grant
Willm
Wintrope
Joel Andras
Thomas Fraser
Jn° Lumsden
William Holmes
Nicholas Montour
Patrick Small
David Rankin
(Richard Duncan
late Capn
Roy1
Yorkers)
Dune11 Cameron
Andw
Wilson
Donald M°Donell
Angus M°Donald
Ed. Umfreville
John Lockhart Wiseman
Jan* 1785
510 CANADIAN ARGEIYES
6-7 EDWARD VII., A. 1907
PLAN POR A HOUSE OF ASSEMBLY.1
We conceive that the House, of Assembly ought for the present, to consist of a
Number not exceeding 70 Representatives,
who ought all to profess the Christian
Religion, And Speak and write the English or french languages.
When this plan was made out in fall That, to procure that Number, the City
1784, the loyalists had not begun their new of Quebec (being the Capital) and Parish,
Settlements. As these new Settlements and the City of Montreal and Parish, behave been divided, and erected into five tween them, elect 13. Members. The City
new districts,2
it may be proper that each of three Rivers 2. Members. AndT as there
district send a certain number of Repre- are in the province 120 parishes, that
sentatives, And that the two districts of they be divided into counties and districts
Quebec and Montreal, containing the old according to the Number of Inhabitants,
settled j>art of the Country, be divided in such manner as -each County or district
into a certain number of districts (for the may elect two or four Members,
purpose of electing Representatives only)
to choose Members for the house of Assembly.
That the Legislature have the power, on application to them, to erect such parishes
as may in future be settled, into Counties or districts, to elect & Send Members to the
Assembly, as the province increases in population.
That the qualification necessary to have a Vote at the Election of the representatives for the Cities shall be, a House, Shed or lot of Ground of the Value of forty
Pounds Sterling ; And, for the Counties or districts, a real Estate, JEstate of Inheritance or Terre en roture, of aï least, one and a half Acres in front by 20 .Acres in
Depth, or other Estate of higher denomination, And of which the Voter shall have the
absolute property ; lying within the district or County, or City and parish he votes
for.
That the qualification necessary for a person offering himself to serve as a representative shall be a real Estate of Inheritance or descent in Lands or Houses of the
Value of thirty Pounds Sterling yearly Rent.—
That every person shall prove by Oath, (under the pains and penalties of perjury)
his qualification to either Vote or represent, being of the age of twenty one years, And
be absolute proprietor of the qualification.
That none but Males shall either Vote or represent.
That the Assembly have free liberty of debate, And the power of chusing a speaker.
That all laws relating to taxation or raising monies on the Subject, originate in the
House of Assembly.
That the Assembly have the sole right to try and decide in all contested Elections.
That all affairs be carryed in the Assembly by a Majority of Votes.
That at every Meeting of the Assembly, the Speaker, And, at least one half of the
representatives be necessary to form a house.—
1
Canadian Archives, Q 42,p.l27. In his letter of July 24th, 3789, to the Hon. W. W. G-renville,
Adam Lymburner, who was then in London as the agent of the subscribers to the petition of Nov. 24th,
1784, states,—” The Committee of Quebec and Montreal in the autumn 1784 apprehending there might be
some difficulty about these matters in this Country—drew up a short sketch of a plan for a House of
Assembly of which I have the Honour of inclosing a Copy.” Q 43,p.777. The plan however does not
accompany the letter but is found in vol. Q 42, as indicated. Concerning the committees mentioned we
find the following in Smith’s History, “To prevent”, in some measurp, the pernicious effects of false reports;
on the objects of Reform, and for the information of the public in general, committees were named and
appointed to carry forward and support the petitions, and they were printed and distributed in the French
language, all over the Province.” History of Canada, &c, p.166.
2
This marginal note was evidently added by Lymburner. The new Districts referred to were created
by the Patent of July 24th, 1788, establishing and defining the Districts of Luneburg, Mecklenburg,
Nassau and Hesse. See Q 39, p. 122.
CONSTITUTIONAL DOCUMENTS 511
SESSIONAL PAPER No. 18
That the Governor or Lieutenant Governor for the time being, shall be obliged to
call together the representatives in assembly, once every year, between the first of January and the first of May of every year, And, at any other time the Urgency of Affairs
may require.—
Endorsed : Plan for a House of Assembly drawn up by the Committee’s of Quebec
and Montreal, in November 1784
In Mr. Lymburner’s 24lh July 1789
OBJECTIONS TO THE PETITION OP NOV. 1784.1
OBJECTIONS
A u x D E M A N D E S P A I T E S ,
Demandé au
Prologue.
Répondu.
ART. I.
Demandé.
Répondu.
ART. II.
Demandé.
Répondu.
ART. III.
Demandé.
Répondu.
À NOTRE AUGUSTE SOUVERAIN;
Par l’Adresse lue dans une Assemblée tenue chez les S. B. P. P. Reaolets,
le SO Novembre 178J/..
QUE, considérant le fardeau de la Grande-Bretagne, il nous soit accordé
une Chambre d’Assemblée, pour imposer des Taxes, &c.
Que c’est avec douleur certainement, que nous devons regarderie fardeau
de notre Mere Patrie: mais hélas! ce ne peut être qu’une douleur infructueuse:
car, quel remède y pouvons-nous apporter? Nous, dont les besoins renaissent
chaque jour; nous, qui, chaque année nous dépouillons jusqu’au dernier sol,
pour payer les effets, (déjà consommés) qu’est obligée de nous fournir cette
Mere Patrie; Nous, qui malgré les sommes énormes, que la guerre a occasionné de laisser en ce pays, sommes encore en arrière avec la Métropole,
d’une balance de comptes considéiable. Quelles sont donc nos ressources
pour appuyer des Taxes? Sera-ce sur les Villes? Qui ne connoît pas
l’indigence de leurs Citoyens. Sera-ce sur les Terres? Qui ne sçait pas, que
les Campagnes endetées envers les Villes, n’ont pu jusqu’à présent se
liquider; que la misère est le partage d’une très-grande partie de leurs Habitants. Que sera-ce donc, lors qu’une partie de leurs travaux sera consacrée
pour le soutien de l’Etat ?
Cet exposé, vrai dans tous ses points, doit convaincre, qu’une Chambre
d’Assemblée, pour imposer des Taxes, est, non-seulement inutile, mais encore, préjudiciable aux intérêts de cette Colonie.
Que la Chambre soit indistinctement composée, d’anciens & nouveaux
Sujets, &c.
Cet article demande une plus grande extention: car, par ce mot indistinctement, il pourra y avoir autant, & même plus d’anciens que de nouveaux
Sujets dan la Chambre; ce qui seroit contraire au droit naturel, puisqu’il y a
vingt Canadiens contre un ancien Sujet. Que deviendront nos droits confiés
à des Etrangers à nos Loix.
Que le Conseil soit composé de trente Membres, sans appointements,
&c.
Que cela sera bon, s’il se trouve assez de riches désintéressés pour
prendre le parti du Peuple, l’honnête indigent étant dans l’incapacité de
donner son temps pour rien.
Que les Loix Criminelles d’Angleterre soient continuées, &c.
Que la douceur de ces Loix doivent en faire désirer la continuation;
mais demande inutile, puisque nous les avons.
1
Canadian Archives, Q 40, p. 199. This reply to the petition of Nov. 24th, 1784, was sent, together
with other papers, in a despatch from Dorchester to Sydney, dated Jan. 10th, 1789. As the certificate
appended to it indicates, it was drawn up and printed in Dec. 1784.
512 CANADIAN ARCHIVES
ART. IV.
“Demandé.
Répondu.
ART. V.
Demandé.
Répondu.
ART. VI.
Demandé.
Répondu.
ART. VII.
Demandé.
Répondu.
ARO?. VIII.
Demandé.
Répondu.
ART. IX.
Demandé.
ART. X.
Demandé.
ART. XI.
Demandé.
Répondu.
ART. XII.
Demandé.
Répondu.
6-7 EDWARD VII.. A. 1907
Que les Loix, Coutumes & Usages de de Pays soient continuées ; sujettes
néanmoins, aux altérations que la Législation trovera nécessaire, &c.
Cet article est contradictoire ; en se qu’il constate nos Droits, & les
détruits entièrement. En effet, n’est ce pas les détruires, que de les soumettre aux altérations que la Législation trouvera nécessaire d’y faire?
Ne deviendront-ils pas arbitraires ? Que pourra-t-on statuer sur des Droits
aussi changeants, que les Chambres auxquelles ils seront soumis ?
Que les Loix de Commerce d’Angleterre soient déclarées celles de cette
Province, sujettes aux mêmes altérations que l’aiticle 4me. &.O.
Que la réponse à l’article 4me. est la même pour celui-ci.
Que l’Acte à’Abeas Corpus soit en force, &c.
Que notre Auguste Souverain nous l’ayant accordé,1
il est inutile de
l’importuner pour cet objet.
Que dans les Cours de Jurisdiction, il soit accordé dos Jurés à la demande
des Parties.
Que cet article est entièrement en faveur du Riche, contre le Pauvre. Si
ce sont des Jurés ordinaires ; Pauvres que deviendront vos familles, lorsqu’il
vous faudra laisser vos travaux, une partie de l’année, pour aller décider
des Causes qui ne vous regardent en rien 1 Vous vous plaignez déjà
d’être obligés de les interrompre, lorsque vous êtes appelles pour les Affaires
Criminelles ce qui arrive six fois l’année. Que sera-ce donc, lorsque vous
serez obligés d’assister à toutes les Audiences 1 Quelqu’un dira peut-être
que cela se fait à Londres, qu’en conséquence on le peut faire dans ce pays.
Que ce quelqu’un compare le nombre de citoyens de Londres, se montant
à trois cens mille hommes environ, avec douze cens tout au plus que vous
êtes dans cette Ville à ses Paux-bourgs. Pour lors il verra que vous serez
obligés de vous trouver 250 fois à l’Audience, contre une fois que se trouve
le Citoyen de Londres. Jugez par là si vous avez d’autre métier à faire à
que deviendront vos familles.
Si ce sont des Jurés spéciaux, (en conséquence payés) quel est le pauvre
qui pourra lutter contre un riche oppresseur, détenteur de son bien ; qui,
pour l’écraser, demandera des Jurés (qu’on ne pourra lui refuser) ne sera-ce
pas mettre le pauvre dans l’alternative d’abandonner sa cause, ou se voir
totalement ruiner, s’il vient à succomber. On se plaint des frais qu’entraîne
la Justice. Qui pourra y suffire lorsqu’il faudra y joindre la paye de douze
Jurés ? n’est ce pas fermer la porte du Sanctuaire de la Justice à l’indigent.
Que les Ctieriffs soient élus par la Chambre, aprouvés & commissionnés
par le Gouverneur, &c.
Que si le Cheriff nommé par la Chambre ne convient pas au Gouverneur,
qui deviendra l’administration des Loix & de la Justice ? De là ne
s’ensuivra-t-il apar un temps d’anarchie, préjudiciable aux intérêts publics.
Que nul Officier civil ne pourra être suspendu de sa charge, par le
Gouverneur, sans le consentement du Conseil, &c.
Qu’aucune nouvelle Charge civile soit créée par le Gouverneur, sans le
consentement du Conseil, &c.
Que les Emplois de confiance soient exercés par les Personnes mêmes,
&c.
Que les trois articles précédents seroient admissibles en temps & lieu.
Qu’il soit nommé des Juges dans les Cours de la Province, qu’ils ayent
des appointements fixes & suffisants, &c.
Qu’il est juste d’avoir des Juges pour administrer la Justice, qu’ils aient
des appointements suffisants pour vivre convenablement à leur état, par,
sans cela, ou ils négligeront les devoirs de leur Charge, pour s’occuper de soins
qui puissent les mettre plus à leur aise, ou ils mettront la Justice à l’enchère.
Referring to the Ordinance of 24 Goo. HI., cap. 1. See note 1, p. 501.
CONSTITUTIONAL DOOÜMMNT& 513
SESSIONAL PAPER No. 16
Art. XIII.
Demandé.
Répondu.
Art. XIV.
Demandé.
Répondu.
Que les appels des Cours de Justice de cette Province soient faits au
Lord Chancellier, à la Cour de Westminster Hall.
Que nous avons eu jusqu’ à présent recours au Roi cfc à son Conseil, qui
prenoit nos Loix pour guides de leur décision. Mais que deviendront tous
nos Droits rapportés dans une Chambre qui ne s’écarte en rien des Loix &
Constitutions Britanniques ? Hors, si le Conseil de la Province change vos
Loix, & y substitue celles d’Angleterre, dans quelle confusion y the King. saj(j Province, nor in any other Manner than by His Majesty’s Order, in
His Privy Council of Great Britain, or under His Signet and Sign-Manual
countersigned by one of His Majesty’s principal Secretaries of State.
Unless the PROVIDED nevertherless that, if an Address shall be presented to the
Council shall Governour in Chief of the said Province, or, in Case of his Death or Absence
.address the from the said Province, to the Lieutenant-Governour or Commander in
CONSTITUTIONAL DOCUMENT® 523
SESSIONAL PAPER No. 18
Onvernour to
suspend a
Judge for
some misconduct or neglect
of duty ; m
which Ca.se he
may be Suspended for one
Year.
Persons admitted to act
as Advocates
in the Courts
of Justice in
the Province
of Quebeck
Shall not be
Suspended
from the exercise of their
«aid profession by any
authority but
that of the
Judges of the
Coures m
which they
practice, and
by them only
by a written
Order, mentioning the
Cause of Such
Suspension.
An Appeal
shall lie from
Such Order of
the Judges to
the Legislative Council,
and from the
decree of the
Legislative
Council to the
King, in his
Privy Council
of Great
Britain.
Chief of the same, by a Majority of the whole Number of the Members of
the said Legislative Counctl, setting forth some Misconduct or Neglect of
Duty in the Chief Justice of the Province, or in any other Judge of the
same, and thereupon praying that he may be suspended from his Office of
Chief Justice, or Judge, in the said Province for the Space of a Year, it
shall be lawful for the Governour in Chief of the said Province, or, in Case
of his Death or Absence from the said Province, for the LieutenantGovernour or Commander in Chief, of the said Province for the Time being,
to suspend the Chief Justice, or Judge, against whom such Address of the
Legislative Council shall have been presented, from the exercise of his said
Office of Chief Justice, or Judge, in the said Province for the said Space of
one year : After which Time the said suspended Person shall either resume
the Exercise of his said Office of Chief Justice, or Judge, in the said Province
or be Suspended from the Exercise of it for a further Time, or be intirely
removed from it, as the King’s Majesty shall think fit to direct in the
Course of the said Year of his Suspension either by His Order in His
Privy Council of Great Britain, or by an Order under his Signet and SignManual countersigned by one of His principal Secretaries of State. And
if no such Signification of the King’s Majesty’s Pleasure on the said Suspension shall be made in the course of the Year, during which it shall
continue, the said Suspension shall be at an End at the Expiration of
the said Year, and the said Chief Justice, or Judge, that shall have been so
Suspended, shall resume the Exercise of his said Office. And no Suspension of the Chief Justice of the said Province, or of any other Judge in the
same, from the Exercise of his said Office of Chief Justice, or Judge, made
by the Governour in Chief of the said Province, or any other Person
therein, in any other Manner than is herein before set forth, shall be of
any “V alidity, or Force, whatsoever.
AND IT IS FURTHER, ENACTED by the Authority aforesaid, That, from and
after the said first Day of September in the present Year of our Lord one
thousand, seven hundred, and Eighty-five, no Barrister at Law, or other
Person who has been admitted, according to the Rules and Customs established in the said Province of Quebeck, to act as an Advocate at the Bar
of any Court of Justice in the said Province, shall be prohibited, or suspended, from the Exercise of the said Profession of an Advocate in the said
Court, for any Time how short soever, in any other Manner, or by any other
Authority than that of an Order of the Judge, or Judges, of the Court in
which he has acted as an Advocate, grounded either on some Misconduct
in his Capacity of an Advocate in the said Court, or on a legal Conviction
of some Felony, or other Offence ; which Order of the Judge, or Judges, of
the Court, either for excluding him perpetually from the Liberty of acting
as an Advocate in the said Court, or for suspending him therefrom for a
limited Time, shall be in writing and shall set forth the particular» Fault in
the said Advocate’s Conduct in the said Court, or the Offence whereof he
shall have been legally convicted, as aforesaid, on which the said Order
shall be grounded. And an Appeal shall lie from the sa’id Order of Prohibition, or Suspension made by the Judge, or Judges, of the Court in which
the said Advocate shall have practised, to the Legislative Council of the
said Province, who, after due Consideration of the Matter, shall either
rescind the said Order, or confirm it, or mitigate the Severity of it by
reducing it from a total and perpetual Prohibition to a temporary Suspension from the Exercise of his said Profession of an Advocate, or from a
suspension for the Time mentioned in the Order to a Suspension for a
shorter Time, as they shall see Occasion. And from the Decree that sh’all
be made herein by the said Legislative Council there shall lie a further
Appeal to the King’s Majesty in his Privy Council of Great Britain •; where
524 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
the Matter shall be finally determined. But every such Order of Suspension of- an Advocate from the Exercise of his Profession shall be in Force
and take Effect, notwithstanding an Appeal shall have been made from it,
until such Appeal shall have been heared and determined and a Decree
shall have been made by the Court appealed to, whereby such order of
Suspension shall have been rescinded, or altered.
AND, whereas there are good Grounds for believing that the Introduction
of the Trial by Jury into the said Province of Quebeck in Civil Actions,
whenever either of the Litigant Parties shall desire it, in the same Manner
in which it actually took Place in the said Province from the Month of
September in the Year of our Lord one thousand, seven hundred, and sixtyfour, till the first Day of May in the Year of our Lord one thousand, seven
hundred, and seventy-five, would greatly contribute to the fair and impartial
Administration of Justice in the said Province, I T IS THEBEFOKÉ JFURTHEE
After the lbt ENACTED by the Authority aforesaid, That, from and after the said first
,D.iy of next p a „ 0f September in the present Year one thousand, seven hundred, and
1785, the Trial Eighty-five, the said Method of Trial by a Jury of twelve good and lawful
by Jury shall Men shall again take Place in the said Province in all Civil Actions in the
ihe SaidPro- ^ 0 , l r*
s
°^ Justice in the same, whensoever both, or either, of the Parties
vince in the shall desire it ; but not otherwise. And, to the End that the Persons who
determination shall be chosen to serve on Juries may attend their said Duty with the
tions’In the” m o r e Chearfulness, they shall receive, as a Reward for their Attendance
same, when- and Trouble, the Sum of Half a Spanish Dollar to each Jury-Man; which
ever either of g u m shall be paid to them immediately in Court as soon as they shall have
shall desire to brought in their Verdict, by the Party which shall have desired to have
have it. such mode of Trial, or, if both Parties shall have joined in desiring such
Mode of I rial, by both the Litigant Parties equally.
AND, to the End that the Resolutions and Proceedings of the Legislative
Council of the Province (by which the said Province is now governed without an Assembly elected by the Freeholders of the same) may be made more
agreeable to the general Sense and Inclinations of the People of the same,
I T IS FURTHEB ENACTED by the Authority aforesaid, That, from and after
After the l»6
the first Day of next September, in the present Year of our Lord one
SeSembOT thousand, seven hundred, and eighty-five, the Legislative Council shall con1785, the sist of not fewer than thirty-one Members, who shall be nominated and
Legislative appointed by the King’s Majesty, in the same,Manner as the Members who
Province of n o w compose the said Council have been nominated and appointed by
Quebeck shall Virtue of the Act of Parliament passed in that Behalf in the fourteenth
te”st thirty’ Y e a r o f t h e R e i §
n o f H i s P r e s 6 n t Majesty,
one Members. FlNIS
PETITION OF SIR J O H N JOHNSON AND LOYALISTS. 1
Copy of a Petition, intituled, ” The Petition of Sir John Johnston, Bar* and others in
Behalf of the Loyalists settled in Canada.” Dated London, 11′ 1
April 1785 ; and
signed by Colonel Gay Johnson, and others.
To the King’s Most Excellent Majesty.
The Petition of Sir John Johnston Baronet, and others, whose names are hereunto
subscribed, on Behalf of the Officers and Soldiers of the Provincial Troops and Indian
Department, who served under their Command during the late Rebellion ; and of the
other Loyalists, their Associates, who have taken Refuge in Canada.
Most humbly Sheweth,
1
Canadian Archives, Q 62A-1, p. 339. See also “Copy of a Memorial to Sir John Johnson, from
the Officers ind private Men of the late Corps of Loyal Bangers, now inhabitants of the Koyal Seigneurie
No 2 above Catarequoiu.” Q. 24, p. 262.
CONSTITUTIONAL DOCUMENTS 525
SESSIONAL PAPER No. 18
That the Persons of the above Description, animated by your Petitioner’s Example>
having sacrificed their Estates and Properties in support of Your Majesty’s Laws and
Government, did faithfully serve in Canada, and on its Frontiers, till the Reduction of
these Corps ; when being still actuated by the same Principle of Loyalty and Affection,
they, to the number of several Thousands, resolved to settle within Your Majesty’s
Government, on the Lands assigned them as a Reward for their Services, and in pursuance of the Proclamation of Your Majesty’s Commissioners in the year 1776 ; and
entered earnestly on the Improvement thereof, with a Prospect of making a Provision
for their Families, and thereby contributing greatly to the Advantage, Strength, and
Security of that-Province, and to the Increase of Your Majesty’s Revenues.
That the Tenure of Lands in Canada is such as to tubject them to the rigorous
Rules, Homages and Reservations, and Restrictions of the French Laws and Customs,
which are so different from the mild Tenures to which they had ever been accustomed,
and which continue to be enjoyed by the rest of Your Majesty’s Subjects, has occasioned
a general Discontent, and would have induced many to decline accepting their Locations, and to resolve on abandoning their Enterprize, but for the Influence of Your
Petitioners, who had first Jed them into the Service, and on whose Endeavours they
relied for obtaining, through Your Majesty’s Favour, the Grant of such Terms and Tenures, and the Establishment of the same Laws as they formerly enjoyed under the
auspices of Your Majesty’s Government. In full Confidence of thisJhappy Event they •
were prevailed upon .to persevere in their Settlements, on which they have already, at
some Expence, and much Labour, erected Habitations, and cleared Part of the Lands
allotted to them.
For the Attainment of these Objects, so essential to the Happiness of Your Majesty’s faithful Subjects, so conducive to the Increase of these new Settlements, and so
salutary in their Consequences to the Public, we have, upon mature Deliberation, formed
a Plan, which with the reasons in support of it, we humbly presume to submit to Your
Majesty’s Royal Consideration.
1
st I t is proposed, that the County of Point Boudet, on the Lake S* François, in
the River S’ Lawrence, and from thence Westward, shall be comprehended within One
District, distinct from the-Province of Quebec, under the Government of a Lieutenant
Governor and Council, to be appointed, by Your Majesty, with the necessary Powers of
internal Regulation, but subordinate to the Governor and Council of Quebec, in the
same, manner as the Island of Cape Breton now is, to the Government of Nova Scotia.
This Territory will include all the Settlements made or intended to be made by the
disbanded Corps, and the other Loyalists, while it leaves all French Canada and the
French Seigneuries as they were before.
2
a,y That this Territory shall be subdivided into smaller Districts or Counties)
Cataraqui1
being the Metropolis, with Courts of Justice, to be established by Your
Majesty.
In support of such an Arrangement, we beg leave to remark, that it “will be productive of the most beneficial Consequences, not only to the Settlers, but to the Nation
at large—.Whilst this Territory remains a Part of the Province of Quebec, and the
Inhabitants amenable to the Courts of Justice’there and at Montreal, the Delay and
expence of an Attendance on those Courts, both to Suitors and Witnesses, will be
enormous, the distance from Detroit to Montreal being not less than Six hundred Miles,
without any Road whatsoever, and the water communication exceedingly tedious, precarious, and during the Winter Season absolutely impassable : Crimes will be committed
with Impunity, from the difficulty of Prosecutions ; and Civil Remedies in effect rendered burthensome from the same causes.
The Inhabitants of this Territory, already amounting to several Thousands, conceive with all Humility that they have the strongest Grounds to hope for such an exempt Jurisdiction as they ask for ; They were born British Subjects, and have ever been
accustomed to the Government and Laws of England. I t was to restore that Government, and to be restored to those Laws, for which frcm Husbandmen they became
Afterwards Kingston.
526 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Soldiers, animated with the Hope, even in the most gloomy Aspect of Public Affairs,
that should they fail in their Attempts to recover their former Habitations by a Restoration of Your Majesty’s Government, they would still And a Resource in some Parts
of the British Dominions, where they might enjoy the Blessings of British Laws and of
the British Government ; and they still possess the greatest Confidence, that by Your
Majesty’s Gracious Interposition they will be exempted from the Burthens of French
Tenures, which, however congenial they may be to Men – born and bred under them,
would be in the highest Degree exceptionable to Englishmen.
The Petitioners have the more Confidence in the Success of their Application, from
reflecting that they do not ask for more than has already been granted to their Fellow Sufferers in Nova Scotia, for less indeed than is enjoyed by those who are settled in the Province
of New Brunswick, and only to be in the same situation with the Settlers in the Island of
Cape Breton : A distinction between men under the same circumstances of Prescription,
Confiscation, “and Attainder, and who have been invited into the Public Service, and to
take Part in the Royal Cause, by the same assurances of Protection, and the same Gracious Offers of Rewards, in the one case continuing to Settlers the Blessings of the
British Constitution, and in the other subjecting them to the Hardships of French
Tenures and French Laws, they trust will not be permitted by a Gracious Sovereign,
who is the Father of all His People.
In consideration of the vast extent of this Territory, along an important and valuable Communication, which is not only the Channel of the Fur Trade, but the Residence
of those Nations of Indians who took part in Support of the Royal Cause, the Security,
growth, and extension of these Settlements, must evidently be an object of the utmost
Consequence, not only as it will most essentially secure and promote- that Trade, but as
it will preserve those Indians in their adherence to Your Majesty.
The United States are duly impressed with this Idea, and have already manifested
a purpose of supplanting us in the Friendship of the Indians ; and unless they are
counteracted, the British Interest with those Nations will very rapidly decline. We
humbly presume that effectually to counteract them nothing would be so conducive as
the Establishment of a liberal System of Tenure, Law, and Government in this new
Settlement; this would best contribute to the Growth and Increase of i t ; whilst it
would stimulate the Adventurers themselves to the most vigorous Exertions, it would
invite and encourage Emigration to it ; for as the present Inhabitants before the Rebellion principally resided in the now United States, their extensive connections there,
from their Attachment to Your Majesty, their ancient Predilection in favour of the
British Government, their Dislike of the Republican Government they now live under,
as well as from their Family, and Personal Attachments, would be strongly induced to
remove to this new Colony : Should Your Majpsty graciously vouchsafe Your Royal
Protection to these Settlements, we are confident that in every Competition for the
Favour of the Indians Your Majesty will have a decided Advantage, not only from the
Influence which many of your Petitioners are known to have over them, but because
Numbers of the present Settlers have long been in Habits of Friendship and mutual
good Offices with them, sharing the same Dangers, and fighting in the same Cause, and
whose former Prepossession would thus, by means of a familiar and constant Intercourse
with Your Majesty’s Faithful Subjects, be best preserved and rendered permanent.
Upon the whole, whether we consider the Relief and Prosperity of the Settlers as
Sufferers in the Cause of their King and Country, for whom Your Majesty has ever
expressed so Benevolent a Disposition, or the Advancement of the Settlement, as conducive to the Benefit of the Nation, in either View, and much more in both respects,
do we conceive that the Plan now proposed is such an one as will merit and obtain Your
Royal Attention and Patronage.
For our Part, we conceive ourselves bound by the strongest Ties to use every
Endeavour in our Power to promote the Wishes of these People ; I t was by our Example
that numbers of them were induced to quit their former Possessions, and to take up Arms,
by which they have been deprived of their Property, and Banished from their Country ;
and. it was from their expectation’of the Success of our Representation to their Sovereign,
that they have entered upon the arduous undertaking of forming Settlements in a wild
CONSTITUTIONAL DOCUMENT® 527
SESSIONAL PAPER No. 18
and inhospitable Country ;—Well knowing the Disposition of these People, and the
Habits in which they have been bred, we think it our Duty most respectfully to declare it
to be our opinion, that unless they can obtain the object they are in pursuit of, they will
be discouraged from Carrying on-their present Enterprize, and prefer some other part
of Your Majesty’s Dominions, where they may enjoy the Blessings of the British Constitution, but where perhaps they would not be equally useful as they will be in their
present situation, should they receive the Protection they solicit.
Your Petitioners, therefore, impelled by motives of Humanity towards a Number
of Distressed Families, by a sense of Honor and Justice to a set of deserving Men, who
placed Confidence in them, and to whose Eventual Loss of Property and Reverse of
Fortune, they ‘consider themselves in a great Degree accessary, and at the same time
by a Conviction of the Public “utility of the Measure, most humbly implore Your
Majesty that the Blessings of the British Laws and of the British Government, and an.
exemption from the Tenures, may be extended to the aforesaid Settlements.
London > (Signed)
11th April 1785. Gay Johnson, Col. 6 Nations & Superintendant of their Affairs.
Bob’ Leake, Major late 2a
John Butler. L’ Colonel
Batt11 K. R. Reg’ New York Commanding late Rangers.
John Munro. Cap’ late Is
‘ Eben Jessup, late L* Col.
Battn
K.R. Reg’ New York. CommdgKing’sLoyalAmericans.
P. Daly. Cap’ late Is
‘ James Gray, late Major
Battn
K. R. Reg’ New York. K. R. Reg’ New York.
Thoa
Gummersal Cap* late Ed” Jessup, Major Commdg
I
s
‘ Battn
K. R. Reg’ New York. late Corps of Royal Rangers.
HAMILTON TO SYDNEY. 1
Duplicate , Quebec 20th April 1785.
My Lord
In a former letter to your Lordship, I made an undisguised avowal of my entire
ignorance of various matters relative to the state of this Province very necessary to be
known by a person in my situation.2
Tho’ I daylv gain some information yet I am
apprehensive that my long letters contain too little matter to be interesting.
The minutes of Council will no doubt display the endeavours of some of the Members
to bring forward salutary measures, to improve defective Laws, & to render a British
Constitution desirable as well as venerable.
These endeavours will appear to have been opposed and counteracted generally by
the same persons whose attempts however sometimes fall short of their aim.
1
Canadian Archives, Q 24-2, p. 291. When Haldimand returned to Britain in the autumn of^ 1784,
Lieut. Governor Henry Hamilton assumed office as administrator of the Civil Government, while St.
Léger was placed in command of the military affairs, with Hope as Commissary General. After the
passing of the Quebec Act Hamilton had received his appointment from Dartmouth as Lt. Governor at
Detroit, and was one of those to whom fell the unfortunate duty of employing the Indians to harass the
scattered frontier settlements of the Enarli3h colonists in Pennsylvania and Virginia, during the Revolutionary War. Afterwards, as Lt. Governor of Quebec Province and President of the Legislative Council,
by his advocacy of the extension of British institutions in Canada, he incurred the enmity of Governor
Haldimand and his friends, especially Col. Henry Hope, who succeeded him as Lt. Governor. Thomas
Townshend, afterwards Viscount Sydney, was one of the Secretaries of State in 1782, but had been replaced
by Fox during the Shelburne Administration. He again became Secretary of State for the Home Department, on Dec. 23rd, 1783. He was created Baron Sydney in March, 1783, and Viscount Sydney in 1789.
2
The letter referred to is evidently that of Dec. 2nd, 1784, in which he refers to his inexperience in
the details of the government, owing to the lack of information. See Q 24-1, p. 24. He brings up the
matter again in his letter of Jan. 23rd, 1785. Q 24-1, p. 268. Hamilton had made repeated applications
to Haldimand before his departure, for information and instructions relative to the government of the
Province. These being withheld, up to the last moment, he had made application to Sydney for the
necessary papers and instructions. See Hamilton to Haldimand, Q 23, p. 392 ; Hamilton to Sydney,
Q 23, p. 389 ; and Finlay to Nepean, Q 23, p. 438.
528 CANADIAN ARCHIVES
6-7 EDWARD VI!., A. 1907
I t might seem a hazarded opinion to advance that there are a few persons in this
Province who appear desirous that the Canadians should feel such restraints and bear
such burthens under English Government as shall keep their minds open to favorable
impressions of their former situation under French Laws and an Arbitrary Government.
“What other principle could operate to prevent the substitution of legal means to the
odious partial services by corvées 1 Why have not the services been regulated. and
equallized !x
A principal object for the consideration of the Legislature is the arrival in this
Province of numbers of Englishmen or the descendants of Englishmen who must abhor
their being subjected t o a n authority they have been unacquainted with, and to men
whose language & customs they are as yet strangers to. Provision by Law should be
made to conciliate these people, and if possible prevent complaint by anticipating their
grievances.
Until this day the Militia Ordinance remains unamended, tho’ its defects are
palpable & even acknowledged by those who might reform it—They advance, that this
is not a proper period, but, if a time of Peace is not the properest time to relieve a
people from the burdens indispensibly borne in a time of “War, these Gentlemen see not
tha readyest means of contenting the Canadians, or are wilfully blind to them.2
The general terms in which I represented this matter at the opening of the Session
not having produced the desired effect, I took occasion in the Private Council to enter more
particularly into the Subject, at the same time expressing my wish that the Canadians
should participate with the Old Subjects in all the advantages of the English Constitution mentioning the various provisions and considerations which had governed the British
Legislature in forming the English Militia Law.
One of the Members, a native of this Country advanced, that the new subjects in
this Province would Universally prefer their Ancient Government, and return to the
dominion of their ancient Master or Masters. This being uttered with Vehemence
produced a ferment which T interrupted by addressing myself to the Member, who was
(I believe) struck with a sense of his own imprudence, saying, “Monsieur, si ses gens
” croyent par là montrer leurs bons sens, du moins ils ne démontrent point ce que demande
“leur devoir.” What followed from the Members, being likely to produce acrimony and
personalities Î thought proper to stop them by saying, ” brisons la dessus ” and urged
the further consideration of the business before us.
I cannot help My Lord calling to mind the Marquis de la Payette,3
his visit to the
Indians, the inherent Attachment of the French to whatever is French, the possibility
of a revival of natural prejudices upon the event of a Continental War in Europe, and
the indefatigable industry of the rivals of Britain to create for her difficulties and
embarrassments : the unrestrained maxims of their policy which all the world has
experienced and which they think Justifiable if subservient to their boundless ambition.
My Lord, I give no credit to this Gentleman’s assertion, but I will venture to
advance that if any thing can effectually hasten the disaffection of the Canadians to
British Government, it is the idea which some few entertain and which seems to govern
their reasonings and actions, that a military system alone with an adherence to the
maxims of a military Government can retain the people of this Colony in their
allegiance. An enquiry into the character consequence and unbiassed disinterestedness
of these few persons whom I could count up without employing many figures would
satisfy your Lordship that they cannot have the confidence of the people at large, wanting fortune, activity, information and true public spirit.
1
There was much protest among the general body of French Canadians, except of course the
Seignieurs, against the enforcement of the Corvées and other feudal exactions of the older Régime, as
enforced by Carleton and Haldimand, and later by Hope within whose functions as Quartermaster
General these matters lay. Among numerous papers on the subject may be taken a group giving the
French complaints and Hope’s reply. . See Q 25,-p. 438.
–
2
The military administration of the Province was in the hands of St. Léger and Hope. For a
vigorous criticism of Hamilton’s administration after the departure of Haldimand, see Hope to Haldimand,
May 26th, 1785. Q 24-2, p. 886. 3
Eeferring to the visit of Lafayette and the American Commissioners to various tribes of western
Indians. At Fort Stanwix they met with deputies from the Six Nations. See Haldimand Papers, B 58,
p. 14; also, Q 24-1, pp. 17 and 43.
CONSTITUTIONAL DOCUMENT® 529
SESSIONAL PAPER No. 18
Your Lordship knows, Canada is no longer what it -was at the conquest; it is (as
Ï have reason to think) much altered since the American Independence took place.
Besides the afflux of persons disgusted with American Government, the load of
taxes imposed on those who yet remain under it must shew to the Canadians their
advantages over them in situation which they were blind to while the American
Emissaries during the late rebellion amused them with the florid display of the blessings
of American liberty.
Those persons who by their mere negatives to matters brought on in Council, stop,
or prolong the proceedings, are not armed with argument to support their naked votes,
& lean upon the faith, information and suggestions of those few who have more subtility and plausibility than solid Argument.
The minutes speak for this assertion, but My Lord I must resort to Your indulgence for thus openly & perhaps too warmly treating this subject.
I have heard it said that I encourage petitioners and remonstrants—it may be so
understood because in the last Session of the Legislative Council, I voted for throwing
open the doors of the Council chamber.1
I receive all Applications from the highest to
the lowest, I wish to render Justice to all. If Petitioners are not heard how shall
abuses be reformed !—if I have not the confidence of the people at large, I shall be a
stranger to their discontents, ’till they break out in murmurs and it may then be too
late to apply a Remedy.
The papers which shall be transmitted from time to time I expect will vindicate
this reasoning, in the interim Your Lordship will please to Justify me in so much as I
•have not reaped the advantage of those notices and instructions which I am to hope
will come to my assistance from Your Lordship in the short period of the absence of a
Superior2
I have the honor to be with profound deference and respect
My Lord
Your very obedient and
Very faithful servant
H E N R Y HAMILTON
The Right Honorable Lord Sydney
One of His Majestys Principal Secretaries of State
ORDINANCE ESTABLISHING T R I A L BY J U R Y .
ANNO VICÉSIMO QUINTO GEORGII REGIS. 3
C H A P . , 1 1 .
An Ordinance to regulate the Proceedings in the Courts of Civil Judicature, and to establish Trials by juries in Actions of a Commercial
Nature and Personal Wrongs to be compensated in Damages.
Preamble. Whereas it is necessary for the Ease and Conveniency of His Majesty’s
Subjects who may bave Actions to prosecute in the Courts of Civil Judi1
This refers to the proceedings in Council in April, 1784, when a number of citizens of Quebec made
application for permissien to be present at the debates of the Legislative Council. The Council by a vote
of 11 to 5 adopted the following position, ” The Council have voted that the G-entlemen who requested
admission to hear the Debates this day cannot be admitted. This to serve as an answer to every future
application.” Reasons of dissent were recorded by Lt. Gov. Hamilton, President of the Council, and Mr.
l’inlay. Hamilton’s reason was, ” because our Debates have for object the benefit of the province.” The
reason for their votes put forth by the leaders of the majority, was that their oath as councillors required
them to keep secret all that might be discussed in Council. Mr. Pinlay, in his reasons for dissent, sought
to prove that no such limitations applied to the proceedings of Council as a legislative body. See Q 23,
pp. 235-241.
2
As a result of the representations of Haldimand and Hope what came to him was the following, ” I
have received the King’s Commands to signify to you, that His Majesty has no further Occasion for your
Services as Lieutenant Governor of the Province of Quebec, and that it is His Royal Pleasure that you do
return to England, leaving with Colonel Hope, who is appointed to succeed you, such Instructions and
Documents of Government as are in your possession, and which may be necessary for his guidance.”
signed. ” SYDNEY.” Q 25, p. 34.
8
Canadian Archives, Q 62 A-2, p. 601. The Ordinance for regulating the proceedings in the Courts
of Civil Judicature, first passed in 1777, (see p. 466) had been renewed every two years, with practically no
1 8— 3— 3 4
530 CANADIAN AROEIYEB
6-7 EDWARD VII., A. 1907
cature established in this Province, that the mode of Administering
Justice in the said Courts should be clearly ascertained, and rendered as
plain as possible :
Be it therefore Ordained and Enacted by His Honour the Lieutenant
Governor and Commander in Chief of this Province, by and with the Advice and Consent of the Legislative Council thereof, and by the Authority,
of the same it is hereby Ordained and Enacted.
Manner of Art. -*•• That in all Causes, or Matters of Property, exceeding the Sum
Proceedings or Value of Ten Pounds Sterling, upon a Declaration presented to any one
in the actions 0£ ^Q j u ( j g e s 0f the Court of Common Pleas by any Person, setting forth
“Value of the Grounds of his Complaint against a Defendant, and praying an Order
£10 Sterling, to compel him to appear and answer thereto, such Judge shall be and
hereby is empowered and required in his separate District to grant such an
order, whereby the Plaintiff may have and obtain from the Clerk of the
Court a Writ of Summons in the Language of the Defendant, to be issued
in His Majesty’s Name, and attested by name of such Judge, to be directed
and executed by the Sheriff of the District where such Court shall have
Jurisdiction, and in which the Defendant may be or doth reside, commanding such Defendant to be and appear in such Court to Answer to the Plaintiff on the day appointed by such Judge in the Order on the Declaration,
Regard being had to the Season of the Year, as well as to the Distance
of the Defendants abode or Place of Service from the Place where the
Court may sit.
Execution not Art 2. Provided always, That a Copy of the Writ of Summons and the
to be issued Declaration shall be served on the Defendant Personally, or left at his
tees, till Se- House, with some grown Person there belonging to the Family, and in so
curity be doing the Service shall be deemed sufficient: Provided nevertherless, that if
given. j.jje Defendant be absent in the Upper Country, or lower Parts of the¿
Province, that is to say, When in or upon any Place beyond the Long
Sault on the Ottawa River, or beyond the Oswegatche in the upper Parts
of the Province, or in or upon any Place below Cape Cat on the South
side, and the Seven Islands on the North side of the River S’ Lawrence,
and where such Defendant hath not been Personally served with such
Summons and Declaration as abovesaid, that no Execution shall issue
unless the Plaintiff shall give good and sufficient Security, to be approved
by the Court, to refund to the Defendant, or his legal Representative
as much as the Defendant, appearing by himself or his legal Attorney within a Year and a Day, may be able to set aside and reverse of the said
Judgment, by such the Consideration of the said Judgment in the Court
where given, as may be presented in the Conditions expressed in the
Security to be given as aforesaid for rehearing of the merits of said Cause.
Art. 3. That the said Declaration so to be filed shall not be altered or
• amended after being filed as abovesaid, unless upon Rule of the Court, and
upon payment of Costs.
Attachment -^rt- *• That in all and every Case where one or more Judges of any
against the Court of Common Pleas is or may be satisfied, “by the Affidavit of the
T)°bt wif
nli Plaintiff, or his Book keeper or Clerk, or legal Attorney, that the Defending to leave a n * is Personally indebted to the Plaintiff in a Sum exceeding Ten Pounds
the Province. Sterling, and may also be satisfied, by the Oath of the Plaintiff or some
other Person, that the Defendant is immediately about to leave the
Province, and whereby the Plaintiff might be deprived of his Remedy
against such Defendant, it may and shall be lawful for one or more Judge
alteration, notwithstanding the continued efforts to secure the introduction of trial by jury in civil cases in
accordance with the 12th article of the Governor’s Instructions (see p. 422). But during the session of
1785, under Lt. Governor Hamilton’s administration, on the renewal of the ordinance provision for trial
by jury was incorporated. Por this the Lt. Governor received the thanks of the mercantile element of
both old and new subjects, in an address of May 9th, 1785. See Q 24-2, p. 398.
CONSTITUTIONAL DOCUMENT® 531
SESSIONAL PAPER No. 18
or Judges of any Court of Common Pleas to grant a Capias or Attachment against the Body of such Defendant, to be directed to the Sheriff in
Manner as aforesaid, to hold such Defendant to Bail, for his Appearance at
the Return of such Writ, and in Default thereof to commit him to Prison,
there to remain until Special Bail may be given by such Defendant,or until
Two Days after execution may be obtained by the Plaintiff, if Judgment
be in his Favour.
Art. 5. Provided always, That if any Defendant so bound in Recognizance by Special Bail, shall or do surrender himself in Open Court, pending the Action, or at any Time within One Month after Judgment obtained, or do surrender himself unto the Sheriff of the District where such
Court may have Jurisdiction, at any Time within Fifteen Days after the
day on which the Plaintiff might legally have and obtain Execution by
Capias ad Satisfaciendum upon Judgment obtained, that then and in
such case such Surrender of the Defendant shall be held, taken, and
considered as a Discharge of the Persons bound for such Defendant on
Special Bail.
If Defendant Art. 6. If on the Day of the Retvrn of the Writ of Summons the Dedoes not ap- fendant does not appear in Person, or by Attorney (Proof of such Service
ment to be en” being produced or made in Court) the Plaintiff shall obtain a Default
tered. against the Defendant; and if on calling over the Action on the next
Weekly Court Day the Defendant should still neglect to appear, without
any good Reason for such his Neglect, the Court, after hearing and receiving
Sufficient Proof of the Plaintiff’s Demand, shall Cause their final Judgment
to be entered against the Defendant, and shall award such Costs thereupon
as they shall think reasonable, and issue such Execution as the Law, according to the nature-of the Case, may direct.
Art. 7. Provided always, That every Proof that may be offered by the
Plaintiff in Support of his Action and Demand, shall be filed in Court, and
remain of Record, in the same manner as if the Defendant had appeared
and defended the Action.
If Defendant Art &• Provided always, That the Defendant upon his Appearance at
appears, he is the Return Day of the Writ, or in Case of Default upon his Appearance at’
to answer the ¡foe n e x t Weekly Court after such Return, and after payment of Costs of
such Default as abovesaid, shall then or on such other Day, as he may obtain from the Court, make his Answer to the Declaration, either in writing
or Verbally, as he thinks fit; and if the answer be verbal, the Clerk of the
Court shall take down the Substance thereof in writing, and preserve the
same among the Records of the Court, and in the said Action. And if the
Plaintiff doth not appear at the Return Day of such Writ, or appearing
doth not prosecute his Action, the same shall be dismissed, with Costs to
the Defendant.
Trial by Art. 9. That all and every Person having Suits at Law and Actions in
Juries in eer- any of the said Courts of Common Pleas, grounded on Debts, Promises,
tkeOTtion oí Contracts, and Agreements of a Mercantile Nature only, between Merchant
the Parties, and Merchant, and Trader and Trader, so reputed and understood according to Law, and also of Personal Wrongs proper to be compensated in
Damages, may, at the Option and Choice of either Party, have and obtain
the Trial and Verdict of a Jury, as well for the Assessment of Damages,
on Personal Wrongs committed, as the Determination of Matters of Fact,
in any such Cause : Provided always, That the Agreement of Nine of the
Twelve Jurors who shall compose such Jury shall be sufficient and effectual
to return a Verdict, and that the same so made and returned, shall be held
as legal and effectual to every Intent and Purpose, inasmuch, as if the
whole Twelve Jurors had agreed therein ; and the Clerk of the Court shall
set down the Names of the Jurors on the Register of the Court in every
18—3—341
532 CANADIAN ARCHIVES
6-7 EDWARD VI!., A. 1907
case where Verdicts may be returned as abovesaid : Provided also, That in
all such Causes and Actions that may be between His Majesty’s Natural
born Subjects of Great Britain, Ireland, or the Plantations and Provinces
in America, the Juries in such causes shall be composed of such natural
born Subjects as abovesaid ; and in all Causes and Actions between His
Majesty’s Canadian or new Subjects, the Juries shall be composed of such
Canadian or new Subjects ; and in all Causes of Actions between natural
born Subjects and the Canadians or new Subjects; the Jury shall be composed of an equal number of each, if such be required by either of the
Parties in any of the above-mentioned Instances.
English Rules £.r^ |Q. In Proof of all Facts concerning Commercial Matters, Recourse
adopted Si shall be had, in all the Courts of Civil Jurisdiction in this Province,” to the
Commercial Rules of Evidence laid down by the Laws of England.
Cases. ^ r t 21. Provided always, And it is Ordained and Enacted, That in all
Whereneither c a u s e g ^efore the said Courts of Common Pleas, where the Parties, Plainous of the tiff nor Defendant, are neither of them desirous of a Trial by the Verdict
Trial by Jury, 0f a J u r v 0f and respecting Matters legally within the Cognizance of such
as^ormeSy8
Jury> but that such Trial should be by the Deposition of Witnesses, and by
Proofs, as at present used in His Majesty’s Said Courts of Common Pleas,
the Court shall, after issue joined on the Merits of the Cause, in the manner as hereafter expressed, appoint a Day for hearing the Evidence of
Parties, Plaintiff and Defendant, and cause the same to be taken down in
Writing by the Clerk of the Court in open Court, and signed and sworn to
by each respective Witness, save and except as hereafter provided for
Witnesses absent by reason of Sickness, or of departing the Province.
Provision for Art 12. Provided also, That in case of Sickness, and where the Witnesses
examining cannot attend tne Court to- be ascertained by Affidavit, it may be lawful for
ease of Sick- the Court in such Cases, and of evident Necessity, after Issue joined as
ness, orwhen abovesaid, to allow and permit that any one Judge, in the Presence of the
par”the Pro- Parties, Plaintiff and Defendant, or their Attornies, or in their or either of
vince. their Absence, after due Notice signified, may take the Deposition of such
Witness in Writing, to be signed and sworn to, and certify and Record the
same in the said Court, and there to be of legal Effect ; and moreover that
such Deposition so taken may be offered and read to the Jury as legal
Evidence, if such Cause be to be tried by Jury ; and also in Causes instituted in the said Court, where any Witness may be about to depart the
Province, and by which means either party might be deprived of his Testimony, to be ascertained by Affidavit, it shall and may be lawful for any
Judge of the said Courts to take the Deposition of such Witness, in presence of the Parties, or their Attornies, in the manner as above Expressed,
and the same shall be of legal Effect in every Cause in the manner as abovesaid.
Limitation of Art 13. And it is further Ordained and Enacted, That every Issue in
Pleadings. Law or Fact, to be formed in any Cause in either of the said Courts of
Common Pleas, between the Parties, Plaintiff and Defendant, shall be made
and completed, by the Declaration, Answer, and Replication, or by the
Plea, Answer, and Replication, in Cases of Abatement and Bar of the said
Parties, Plaintiff and Defendant, and that no other or further Pleadings, or
Writings by Way of Plea, upon such Issue or matter in Dispute, whether
of Law or Fact, shall be received or admitted by the said Courts of Common
Pleas, as part of and to be put upon Record in any Cause therein instituted,
and to be heard and adjudged upon, any Thing to the contrary notwithWhen the standing.
Sheriff is con- Art 14. That every Writ and Process which ought to be served and excerned, the ecuted by the Sheriff, where it shall happen, that the Sheriff may be PersonProcess to^be a2ly interested, and concerned, shall be served and executed by the Coroner
Coroner. ** of the District in which such Writ, Process, or execution may issue.
CONSTITUTIONAL DOCUMENTS 533
SESSIONAL PAPER No. 18
Of Jurors, _
their Qualifications.
Sheriffs to
make out list
of Jurors.
Juries to be
taken in Rotation.
Challenge, or
Exceptions to
Jurors to be
determined
agreeable to
the Laws of
England.
List of Jurors
to be returned
by the Sheriffs
in the Month
of June
Yearly.
Penalty on
Jurors not
attending.
Art 15. That all Merchants or Traders of lawful Age, and also all Persons of lawful Age being Householders, or occuping Lodgings of the value
of Fifteen Pounds per Annum Rent, shall be held and considered qualified
as Jurors, and to serve on Petit Juries.
Art 16. That the Sheriff of each District shall make out Lists of all
Persons so qualified as abovesaid, who may reside in the Cities of Quebec
or Montreal, or within the Vicinage or Banlieu thereof, and return the
same into the respective Courts of Common Pleas of the District in which
such Sheriff may officiate, and in which Return shall be set down the
Christian and Surname, and also the Profession, Trade, or Calling, and
Place of Abode, of such Persons so returned.
Art. 17. That from the said general List the Clerk of each Court shall
make two separate Lists or Books, the one to contain the names of all
Merchants, Persons concerned in Trade, or qualified to serve on Special
Juries, and the other List or Book to contain the names of Persons of different Occupations so returned on the said General List by the Sheriff as
aforesaid ; that the said Lists or Books, when so made, shall be examined
by the Judges and Sheriff and corrected, if needful, and shall be of Record
and open in the Clerks Office to the Inspection of all Persons, without Pee
or Reward.
Art 18. That on all and every Cause where a Trial may be «moved for
and directed to be taken by the Verdict of a Jury, it shall and may be lawful for the Parties, Plaintiff and Defendant, or their Attornies, to strike a
Jury from the above Lists or Books so returned into Court, and completed
as abovesaid, in the same manner, and under the same Rules, as Special
Juries are struck in the Courts of Record in England, (that is to say) from
the first List or Book so formed by the Clerk, and approved by the Judges
as abovesaid, in all Causes of Mercantile Dispute, or Actions of Damages,
where the total Amount, Sum, Dealing, or Matter of Account, Agreement
or Transaction between the Parties may exceed Fifty Pounds ; and from the
second List or Jury Book, where the total Sum as abovesaid may not exceed
the said Sum of Fifty Pounds.
Art. 19. Provided always, That the said Juries so to be struck from
either of the said “Lists, shall be taken from the same in Rotation, and following each other, by commencing at that Part of that List from whence
the former or Preceding Jury was struck or taken ; and also that in all
Causes that may appear to the Court before which they are to be had to be
of Intricacy, and that ought to be tried by a Jury from the first List,
although the Sum or total Amount may not exceed Fifty Pounds, the
Judges of such Court may permit and order the Jury to be struck from the
first List, the Party applying for such Jury paying the Difference of Fees
between Jurors from the first and the second Jury List or Book.
Art 20. That all and every Challenge, or exception to the Pannel, or any
particular Juror returned thereon, shall be taken, made and determined
upon in Open Court, and conformable to the Laws of England ; the Jurors
serving on Special Juries as abovesaid, and struck from the first List or
Jury Book,v shall have and receive Two Shillings and Six pence each for
every Verdict to be made and delivered, and before returned into Court ;
and Jurors struck from the second List or Jury Book, One Shilling each for
every Verdict in Manner as aforesaid.
Art. 21. That Lists of Jurors, in the manner prescribed by the preceding
Articles shall be made, by the Sheriffs returned into the several Courts,
and formed in the manner abovementioned in the Month of June in Every
Year.
Art. 22. That all Persons being duly summoned to attend in any of His
Majesty’s Courts of Common Pleas to serve as Jurors as abovesaid, and
neglecting or refusing so, to do shall “be liable to, and may be fined by the
534 CANADIAN ARCHIVES
6-7 EDWARD VI!., A. 1907
Said Courts respectively, in any Sum not exceeding Five Pounds, and not
less than Ten Shillings, to be levied by Warrant of Distress on the Goods
and Chattels of such Person so refusing or neglecting to attend, and to be
paid to His Majesty’s Receiver General for the public uses of the Province.
Persons ex- Art. 23. That the Members of His Majesty’s Council, the Officers of His
empted from Majesty’s Courts, Officers of the Customs, Naval Officers, Persons employed
iSpwinsr on.
Juries. i n
the Service of the Post Office, Physicians and Surgeons, and Officers employed in Military Service, shall be exempted from serving on Juries.
Appeals from Art. 24. The Party meaning to Appeal from any definitive Sentence or
definitive Judgment of any of the Courts of Common Pleas shall sue out a Writ from
Judgments. t j j e Q o u r t 0f ^ppeai^ tested and signed by the Governor, Lieutenant
Governor, or Chief Justice, stating that the Appellant complains of being
aggrieved by the Judgment, and therefore commanding the Judges of the
inferior Court, or any Two of them, to send up the Original Papers and ‘
Proceedings found in the Records or Registers of the Court concerning the
same. Such Writ, when presented to any of the Judges of the Court below,
shall be allowed by him, if the Appellant has given the requisite security,
which Security is hereby understood to be Personal Security, or Bail by
Justification, any Law, usage, or Custom to the Contrary notwithstanding.
Provided nevertherless, that an Appeal may be had and obtained in manner
abovesaid from any Interlocutory Sentence or Judgment which may carry
execution by ordering something to be done or executed that cannot be
remedied by the final sentence or Judgment, or whereby the Right of the
matter in Contestation between the Parties may be in part decided,
or whereby final hearing and Judgment may be unnecessarily delayed :
Provided always, That such Appeal shall not be granted and allowed,
except upon Motion made in the Court of Appeals for that Purpose, and a
Rule served upon the other Party, or his Attorney, to shew cause why a
Writ of Appeal from such Interlocutory Sentence or Judgment should not
be granted :—And it is hereby ordained, that a Rule so served shall have
the Effect to stay Execution upon such Interlocutory Sentence or Judgment,
till the determination of the Motion for such Appeal ; and if the Writ of
Appeal shall be awarded thereupon, and allowed by the Judges in manner
as aforesaid, the Clerk of the Court shall proceed to comply with the Order
of the Writ, and the Judges, or any Two of them, shall make their Return
as therein commanded.
Appellant to Art 25. If the Appellant does not, within Eight Days after the Return
file his Reason of the said Writ, and the Transmission of the Proceedings, file his Reasons
Eirirt^ays11 °^ Appeal, the Appellee shall obtain a Rule or Order, that unless the
Appellant’s Reasons of Appeal are filed in Pour Days, the Appeal will be
dismissed : And if the said Reasons of Appeal are not filed within Pour
Days after Service of the said Rule, on the Appellant or his Agent, the
Appeal shall be accordingly dismissed with Costs.
Appellee to Art. 26. Within Eight Days after the Reasons of Appeal are filed, the
file Hs An- Appellee shall file his Answers thereto ; or if he neglects so to do, the
Days. Appellant shall obtain a Rule or Order, that unless the Appellee file his
Answers within Pour Days, he will be precluded from filing them after
that Period, and if his Answers are not filed within Four Days after
Service of such Rule on the Appellee or his Agent, he shall accordingly be
precluded from filing them, and the Court will proceed to hear the cause
on the Part of the Appellant and proceed to Judgment therein without the
„, „ Intervention of the Appellee.-
on good Cause Art. 27. The said Court of Appeals nevertherless shall and may, upon
Shewn may Application made, and good Cause shewn by either of the Parties, (Notice
timeafove being given to the other) prolongthe Time allowed for filing either the Reasons
allowed. of Appeal or Answers thereto ; and in Case the Court shall not be sitting
CONSTITUTIONAL DOCUMENTS 535
SESSIONAL PAPER No. 18
at the time when such Reasons or Answers ought regularly to be filed, the
Party neglecting shall apply to the Court at the next sitting thereof, and
shew his Reasons for such neglect ; and if the Court finds them insufficient,
it will as the case may be, either dismiss the Appeal or proceed to hear it
without the Intervention of the Appellee as above directed.
Day to be Art. 28. When the Reasons of Appeal, and the Answers thereto, are
üf e
th°Oh e se” ñ l e d ‘
t h e C o u r t s h a 1 1 ‘
o n t h e A P P l i c a t i o n o f either of the Parties, fix on s u such Convenient Day for the hearing of the Cause, as to it may seem
proper.
Execution to Art. 29. If the Writ of Appeal is not allowed by one of the Judges of
issue m Fif- the Court below, and a Copy thereof served on the Appellee, or his Agent,
Appeal is ‘not within Fifteen Days af cer any Judgment given in the Court of Common
allowed, or Pleas, Execution shall issue, : Provided always, that in Cases of Appeal
rive”*7
from Judgments in His Majesty’s Court of Common Pleas in the District
oí Montreal, Execution shall be stayed for the space of Twenty Days,
where the Party meaning to Appeal shall lodge good and sufficient Security
in the said Court, within Fifteen Days from the date of such Judgment,
to prosecute his said Writ of Appeal with Effect ; and that such security
Limitation of shall be taken as in case of an actual Writ of Appeal issued and admitted.
Appeals. And no Appeal shall be allowed or received from the Court of Common
Pleas, after the Expiration of one Year from the Date of the Judgment of
such Court, save and except such Judgment whereby the Rights of Infants,
Of Execu- ‘ Absentees, Femes Coverts, or Persons non compos Mentis may be bound.
t i o n s- Art. 30. The Execution sued out from any of the Courts of Civil Jurisdiction shall be a Writ issuing in the Kings name, tested and signed, when
Nature of the ¡ggjj-jjjg from the Court of Appeal, either by the Governor, Lieutenant
Governor, or Chief Justice, and when issuing from the Court of Common
Pleas by one of the Judges of the Court for the District in which it is
given, directed to the Sheriff of the District, setting forth the Judgment of
the Court between the Parties, and the kind of Execution which the Law,
according as the Case may be, shall direct, whether the same be to take the
Body, or to levy a Sum of Money out of any one’s Goods and Chattels,
Lands and Tenements, or to do any Special Matter or Thing whatever. The
Date of the Judgment shall be indorsed on every Writ of Execution ; and
that Indorsement signed by the Judge.
Personals to ^ j . 3 ^ j n aj) Qa s e s w r i e re Execution shall issue against Real and Perposed of, and sonal Estates, the Sheriff shall first dispose of the Personal Property, and
if insufficient if the Proceeds thereof fall short of the Amount of the Judgment, the Real
tobeSoïd*3
Estate, or so much thereof, as will produce the Amount, shall be Sold for
that Purpose.
Manner of sel- ^ r t 33^ Where Moveables shall be seized by the Sheriff under an execution, he shall cause the seizure to be published at the Church Door of the
Parish, immediately after Divine Service, on the first Sunday succeeding
such seizure, and at the same Time cause to be proclaimed the Day and
Place when and where he means to proceed to the Sale thereof, provided
that the place of Sale shall be in the same Parish in which the seizure is
made ; and provided always that the Sheriff shall not sell Chattels so to be
seized and notified, until Eight Days after Notification of Sale as abovesaid. And that at the Request of the Plaintiff the Sheriff may cause Goods
and Merchandizes, so seized as abovesaid, to be transported from the Parish
where seized to the City of Montreal or Quebec (being in the District where
seized) and there to be sold after due Notice as aforesaid ; and that Execution so to be issued against Chattels or Personal Estate shall be made returnable at such Day as the Court from whence it may issue shall judge
reasonable, and that Execution shall issue against Chattels, or personal and
Real Estate, in one and the same Writ, but that such Execution shall be
first levied upon the Chattels or Personal Estate, and be returnable as to
CANADIAN ARCHIVES
Manner of
selling Real
Property.
When Two
or more Executions issue
6-7 EDWARD VII., A. 1907
such first levy, yet nevertherless may have force and Effect, and be returnable at a more distant Period as to the second Levy on Real Estate, for the
full satisfaction of the Execution aforesaid.
Art 33. When Lands and Tenements shall be seized by the Sheriff under
a Writ of Execution, he shall advertize the Sale thereof Three several Times
in the Quebec Gazette, to be on some certain Day after the expiration of
Pour Months from the Date of the first Advertisement, and proclaim the
said Sale at the Church Door of the Parish in which the Premisses are situated, immediately after Divine Service, on the Three^undays next preceding the sale, and cause a Copy of the said Advertisement to be fixed on the
Door of the Parish Church ; and that Lands in Roture shall be sold at the
Door of the Church of the Parish where seized. And the Sheriff is hereby
further required to advertize, immediately after the Seizure, that all and
every Person having any Claim on Said Lands and Tenements, by Mortgage
or other Right or Incumbrance, do give notice thereof at his Office, either
before or after the Sale, where the Law makes a Distinction, and to remove
all Doubts, the Sale then by the Sheriff, without any other Formality, shall
have the same Porce and Effect as the Décret had heretofore.
Art 34. If Two or more Writs of Execution shall be Issued upon Judgments given the same day, against the same Defendant or Defendants, and
on Judgmentss 0 marked on the Writs, such Executions shall have the same Privilege, and
given the same be satisfied in the same Proportion : Provided always, that if any Opposiday, they are ^[ons o r Claims may be entered at the Sheriff’s Office, either before the Sale
in the same of Moveables, or before or after the Sale of Immoveables and where required
Proportions by Law in the one or the other Case above mentioned, or where the Moveof Oppositions aWe s seized may be claimed by any other Person as to him pertaining, in
entered at the all such Cases the Sheriff shall return the Same at the proper Periods into
Sheriff’s the Court where Such Execution issued, that the said Court may, on hearing such claims and Oppositions, and the Parties therein concerned, adjudge
them according to Law.
Art 35. On every Execution the Sheriff shall be allowed all his Disbursements and shall be authorized to charge over and above at the Rate Two
and a half per Cent to be deducted out of the Money he levies.
Proceedingsin Art 36. In matters not exceeding or under Ten Pounds Sterling, any
á’n’steriíw61 -P61″
13011 having a Right of Action against another shall prepare, or procure
from the Clerk of the Court of Common Pleas, a Declaration in the following Form, viz.
Day of . . 17. A.B. Plaintiff
C. D. Defendant
” The Plaintiff demands of the Defendant the Sum of
” due to the Plaintiff from the Defendant for which said Sum,
” though often demanded still remains due, therefore the Plaintiff Prays
” Judgment.”
This Declaration shall be filed by the Clerk, who shall make a Copy thereof,
and at the Foot of such Copy write out a Summons in the Language of the
Defendant in the following Form ; viz.
Montreal as. George the Third by the Grace of God of Great
” Britain, France and Ireland, King, Defender of the Faith to C. D.
” Defendant in the above Action. You are hereby Commanded and
” required to pay the Plaintiff A.B. the above mentioned Sum of
” together with Costs, or else to appear in Person, or by your
“Agent, before our Judges of our Court of Common Pleas at the Court
Allowance to
the Sheriff.
£10 Sterling.
Declaration Quesee
Summons.
” House of the City of on the Day of.
” when the matter of Complaint against you as ascertained in the above
” Declaration, will be heard and finally determined, otherwise Judgment
“will be given against you by Default. Witness the Honourable
CONSTITUTIONAL DOCUMENTS 537
SESSIONAL PAPER No. 18
Services.
Non-Appearance.
Appearance.
Judgment.
Execution.
Exception.
Debt to be
levied by Installments.
If Defendant
secretes his
Effects, or op^
poses the
Seizure of
them, Execution against
the Body.
In Commercial matters,
Execution
against the
Body.
” • one of the Judges of our Said Court of Common Pleas, this
” Day of in the Year and
” Year of our Reign.”
This Summons shall be signed by one of the Judges of the Court and a Copy
thereof, and of the Declaration, served on the Defendant Personally, or left
at his Dwelling House, or ordinary Place of Residence, with some Grown
Person there, and the Person serving the same shall inform the Defendant
or such Grown Person of the Contents thereof. If at the Time mentioned
in the Summons, the Defendant does not appear (Proof of the Service
thereof being produced in Court) the Judges or any one of them, shall hear
the Cause on the Part of the Plaintiff, and make such Order, Decree or
Judgment, and award such reasonable Costs of suit, as to him or them shall
appear agreeable to Equity and good Conscience.
But if the Defendant does appear by himself or his Agent, and the Plaintiff or his Agent does not appear, or appearing does not prosecute, or
prosecuting fails in his Action, the Judge or Judges shall dismiss the
Defendant with Costs. If the Plaintiff makes good his Charge against the
Defendant, the Judge or Judges shall give Judgment accordingly and award
Costs, and Execution, but the Execution shall not issue until Eight Days
after Judgment given.
The Execution shall go against the Moveables only of the Defendant,
which shall be seized by some Person to be for that Purpose appointed by
the Court, and sold by him in the manner mentioned in the 32a
Article
of this Ordinance. But the Execution shall contain an Exception of the
Party’s Beasts of the Plough, Implements of Husbandry, Tools of his Trade,
and One Bed and Bedding, unless his other goods and Chattels shall prove
insufficient, in which case such Beasts of the Plough, Implements of Husbandry, and Tools of his Trade, shall be sold, but not the Bed and Bedding.
The Judge or Judges may, if they think proper, order the Délit to be levied
by Installments, provided the Time shall not exceed the Space of Three
Months from the day of issuing the Execution.
Art 37. In matters as well above as of under the Value of Ten Pounds
Sterling, if the Defendant shall convey away or secrete his Effects, or shall
with Violence, or by shutting up his House, Store, or Shop, oppose his
Effects being seized, in all such Cases, on due Proof thereof, an Execution
shall go against his Person, to be taken and detained in Prison until he
satisfies the Judgment, any Law, Usage or Custom to the contrary notwithstanding.
Art 38. For the Satisfaction of all Judgments given in Commercial
Matters between Merchants or Traders, as well as of all Debts due to
Merchants or Traders, for Goods, Wares, and Merchandizes by them sold,
Execution shall issue not only against the Goods, Chattels, Lands, and
Tenements of the Defendant but also, in case they shall not produce the
Amount of the Plaintiff’s Demand against his Person, to be taken and conveyed into the Prison of the District, and there detained until he pays the
Amount of the Judgement, or otherwise settles with and satisfies the
Plaintiff, any Law, Usage, or Custom to the Contrary notwithstanding:
Provided, that if the Defendant after remaining One Month in Prison,
shall make application to the Court, and make an Affidavit that he is not
worth Ten Pounds, the Plaintiff shall pay to the Defendant the Sum of
Three Shillings and Six Pence weekly for his Maintenance, as long as he
shall be detained in Prison at the Suit of the Plaintiff; and in Time of
Scarcity the said Court of Common Pleas may in its discretion augment the
said Allowance, not exceeding the further Sum of One Shilling and Six
Pence per Week ; such Payment shall be made in Advance on Monday in
every week ; in failure of which the Court from whence the Execution
issued shall order the Defendant to be released ; but the Plaintiff shall not
538 CANADIAN AR0HIYE8
6-7 EDWARD Vil., A. 1907
be obliged to make such Payment, if he can prove to the Satisfaction of the
Court, by which the Defendant stands committed, that the Defendant has
secreted or conveyed away his Effects to defraud his Creditors.
Power of Art 39. When any Person, against whom Judgment shall be given in
Execution o u t a n v °f t n e Courts of Common Pleas shall not have sufficient Goods, Chatof one Dis- tels, Lands, or Tenements, to satisfy such Judgment, within the Jurisdicotherint° **on °^ t n e Court- wherein such Judgment shall have been obtained, but
shall have Goods, Chattels, Lands, or Tenements within the Jurisdiction of
the other Court of Common Pleas, it shall be Lawful for the Judge or
Judges of the Court wherein Judgment shall have been obtained, to award
Execution to the Sheriff of the other District, who after getting the Writ
indorsed by one of the Judges of the Court for the District in which the
Goods, Chattels, Lands or Tenements are situated, shall execute the same,
and make Return thereof, to the Court from whence it issued ; and such
Writ and Return shall be by him sent to the Sheriff of the District from
whence the Writ was originally awarded, to be delivered into the Court
that issued the same. The Sheriff executing such Writ shall be answerable
for his Doings relative thereto before the Court from which it was originally
awarded, and the Judges of the Court of Common Pleas for the one District may in like manner award Execution against the Body of a Person
residing in the other in Cases where such Execution is by the J_,aw allowed ;
and the Sheriff executing the Writ to him in such case directed shall convey the Body of such Person into the Prison of the District wherein such
Person shall be arrested.
Art 40. That the Ordinance shall continue and be in force from and
durjng Two Years, from the First Day of May next, and unto the End of
the Sessions of the Legislative Council which will be in the Year of our
Lord 1787.
(signed) H E N R Y HAMILTON.
Ordained and Enacted by the Authority aforesaid, and passed in
Council under the Public Seal of the Province at the Council
Chamber in the Castle of S’ Lewis in the City of Quebec, the 2 Ia
‘
day of ApriLin the Twenty Fifth year of the Reign of Our Sovereign Lord George the Third, &c. &c. f conduct which has procur’d it—To merit
that approbation is my greatest ambition.
At the samé time that I am sensible of the difficulties of my station and present
Situation, I have satisfaction in informing Tour Lordship, that the contagion of party
and the desire of innovation (notwithstanding the Countenance which they have had,
and the effects produced by the Emissaries who were sent by the Committees thro’ many
of the parishes,) can be said to have made but little progress amongst the Canadians in
general. Those of them who have join’d in Petitions addresses &c” are chiefly Burghers
and shop keepers in the Towns of Quebec and Montreal, dependent upon the British
Traders in their circumstances and with a very few exceptions by no means respectable
in their characters. The Noblesse, the Proprietors of Lands and the secular Clergy,
are sensible I believe of the advantages granted them by the Act of Parliament and
consequently wish ardently the continuance of it. Bigotry and the influence of the
Regular Clergy viz : “of the Seminaries of Quebec and Montreal and of the other
Religious Communities made some respectable people among the Canadians join at first
in the mission of Mess1
Adhemar and De Lisle, in consequence of the expulsion from
the Province of two Priests who were sent from the seminary of S6
Sulpice at Paris ;
but they no sooner found that this measure was perverted to civil and Political purposes,
than they became sensible of their error ; and in the Petition to the King (of which
Major Ross was the Bearer) they testified their disapprobation of an House of Assembly
and the innovations consequent upon it.2
I would upon this occasion be more explicit
in my sentiments on the present system, if I did not know that His Majesty and Ministers may have the most ample information on that head from the General Officers who
have since the conquest of the country had the honor to serve as Governors in it—The
Generals Gage, Murray, Sir Guy Carleton and Gov’ Haldimand are in England ; their
abilities and experience render them in an eminent degree competent to judge of the
system which is best calculated to secure this Country, to promote the happiness of the
people and to render it useful to Great Britain.3
Permit me only, My Lord, to suggest
1
Referring to the petition of Nov. 24th, 1784, and the work of the Committees of Quebec and Montreal in drawing up the Plan of a House of Assembly, and appointing an agent in London. See pp. 502 &
610 and note 1, p. 510. 2
See p. 517.
a
General Haldimand on his return to England drew up a memorandum respecting public matters
in the Province of Quebec, which he submitted to the consideration of Lord Sydney. Among the topics
discussed were those of Civil Affairs and Deputies from Canada. Under these heads he had this to say :—
“6th. The Spirit of Opposition to every Measure which I have proposed in, or out of Council for the
King’s Service, has been so strongly manifested by some Members of the Legislative Council and by the
Attorney General, particularly since Lieut. Governor Hamilton’s arrival at Quebec, who has thought fit to
place Himself at the Head of that Party, and the Infection has been so industriously spread by means of the
Clergy, and other Agents, that I despair of seeing that mutual Confidence and Harmony subsist in the
540 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
with great deference an Opinion that provided the present system is persevered in without any further Parliamentary Interference, an Instruction or permission should be
given to His Majesty’s Governor or Commander in Chief for the time being, to recommend more than six Canadian Catholics for seats in the Legislative Council—for as
this Body has authority to make alterations in the Laws, customs and usages of Canada
the measure appears to me only consonant to equity and could not fail to have the best
effects in reconciling the people to such alterations as it may be necessary to make, in
the enacting of which an equal or at least a more proportionable number of their
Countrymen shall have a ^oice. Some transactions in the last session of the Legislative
Council to my knowledge created these just reflexions in the minds of many of the
most moderate and intelligent Canadians—and I have reason to think that such an
additional proof of His Majesty’s Generosity and confidence would give great satisfaction to the people of Canada, as it would in their opinion secure to their Posterity the
Possession of their religion, laws and liberty. Another measure which in my humble
conception will attach the Canadians still more firmly to His Majesty’s Government,
would be to establish a corps under certain regulations for the service of the Province
officer’d chiefly by Canadians ; which would hold out some provision for the younger
branches of good families, (the want of which or of some similar resource I have heard
them frequently Jament,)—might be made to serve many useful purposes—would restore
that martial spirit so congenial to their sentiments—and which would be also a Standard for the rest of the Country to repair to, when an enemy might threaten the frontier.
I am aware My Lord that the Loyalists settled between Cataraqui and Montreal
have been incited to ask, and have been encouraged to expect a Constitution of Government different from that establish’d in the other Parts of the Province, and that to
meet this wish.of theirs without at the same time creating jealousy in the other subjects
of the Province will be the most embarassing point for Government in England to settle—but their If umbers are not so considerable nor their desire for a change of the present System so firmly rooted (I should hope) as to render such a measure necessary at
least immediately ; as otherwise 1 foresee that it will create a reasonable source of complaint among the Canadians.
I will in a future letter and when I shall have received the dispatches and Regulations announced to me in Your Lordships letter of the 16a1 August1
have the honour to
write more fully my sentiments of these and other matters
I have the honour to be My Lord with the utmost respect
Your Lordships
most Obedient and
faithfull humble servant
H E N R Y H O P E
The Right HonWe Lord Sydney OOT
4
The Quebec Act. See p. 401.
6
“For an earlier expression of these views, see Carleton to Shelburne, p. 196.
«
572 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Unless the Canadians can be brought to perceive that it is their intrest to be attached to Great Britain, they will lean towards that Government which they may erroneously have conceived best calculated to promote their welfare ; we ought not to for c et
their lukewarmness in 1775—the better sort of the people in general, and the Clergy,
behaved well, but” we had little or no assistance from the peasantry, and all this arose
from the insinuations of the Colonists, touching the supposed intention of the King and
Parliament in passing the Quebec bill : it seems at present the wish of those who prefer
french Law, and french Customs, to inculcate, that if we introduce the English Commercial Law, the Estates and property of the Canadians will be annihilated, and this hashad an effect, and has produced some applications to Lord Dorchester, praying him to
prevent the introduction of English Law in any case. These applications were founded
on error.
. I shall not even pretend at this day to guess how matters may go in Council this
Session, tho’ a Majority seem unwilling that any alteration should take place in the
present System. »
The English who carry on, I may say, 9/ 10tbs of our Trade, pray for the introduction of the Commercial Law of England, and so do the Loyalists, who understand as
little of the French Law, as of the French language.
Lord Dorchester will examine with attention & treat with candor the Reports now
before him.1
I here take the liberty to trouble you with my opinion, that the introduction of
the English Commercial Law can in no wise affect ‘ the Titles or tenures of Lands or
” the descent, alienation, incumbrances and settlements of real Estates, or the distribu-
” tion of personal property of persons dying intestate,” but if any inconvenience should
arise from the introduction of the Commercial Law of England, the Legislative Council
will have it in their power to remedy the evil : but I cannot help again observing that
I do not conceive how the Laws of Commerce can affect the real property of any Canadian ; the ignorant or the designing may have sounded this a’arm to procure applications to prevent the wishes of the Mercantile body from being complied with.
I am with real esteem, and much regard, Dear Sir
Your ever obedient and most humble servant
H U G H FINLAY
Evan Nepean Esqr
(original)
F I N L A Y TO NEPEAN. 2
Quebec 15ft March 1787
Dear Sir
We have passed but one Ordinance this Session to ascertain the Qualifications of
Jurors in Criminal causes ; it was brought in by Mr. Smith, but sadly Mutilated by the
Council. We wait the Chief Justice’s return from Montreal before we take the Bills
now before us under consideration, he is on his Circuit.
The most important Bills now on the Table are One ” For the better administra
” tion of Justice, and to regulate the practice of the Law”3
One ” For the relief of the Poor by the Dispensation of Justice in small causes ” one
” For regulating the Militia ” and another ” For lodging the Troops in the Country
” Parishes, and for the transport of King’s Provisions &c ”
the two first were proposed by the Chief Justice. In the face of them was brought in
by a Canadian Member,* a Bill entitled ” An Ordinance to regulate effectually the pro1
Referring to the Reports being prepared by Committees of the Council in 1786—87. So far as these
bear upon the consta tutiona’ questions they are given below.
2
Canadian Archives, Q 2S, p. 30G.
3
This draught of an ordinance, as introduced by the Chief Justice, is given below, following this
letter.
4
Paul Roc de St. Ours.
*
CONSTITUTIONAL DOCUMENTS 573
SESSIONAL PAPEH No. 18
” ceedings in the Courts of Civil Jurisdiction ” and ’tis proposed to do this, by depriving
the King’s natural bôrn Subjects of the benefit of trial by Jury in mercantile causes,
and by substituting the French rule of evidence in commercial tri ils, in lieu of the
English rule. Mr
. Smiths Bill ought first to be considered, if we observe order ; but
attempts have been made, and they will again be made to have both Bills presented to
the same Committee at one and the same time, to be blended & considered as but one
Project. A Canadian Gentleman, say those who pique themselves on their Noblesse,
will ever look on it as an indignity to be tried by their Peers, if men in Trade are to be
considered in that light ;—Whilst those very merchants whom they affect to despise
may be far their Superiors in point of Birth Education and Fortune ;—Ma’s c’est un
homme commerçant, et tout est dit. However, as Juries are optional, the Canadian
may elect another mode of Trial ; all contraversies touching his landed property and
his civil Rights are to be decided by the ancient Laws of the Country.
The gentry will retain those prejudices (the noblesse are a small proportion indeed
of the Canadian^) whilst the Judges, English Judges ! take pains to disparage that mode
of Trial. Would the French members of our Legislative Council but read the Works
•of some illustrious writers who treat of Government in their own language they would
learn to prize the blessing of a trial by Jury. Though they like it not, why wish they
to deprive Englishmen of that which they hold so dear 1 I t is because they have been
lately taught to believe that the introduction of the Commercial Law of England, will
destroy the Security of their Possessions, and in time totally overset their municipal
Laws, and this apprehension has arisen (as I have heard) from a late harangue from the
Bench in the Common Pleas made in order to refute a doctrine advanced by His
Majesty’s Chief Justice in the Court of Appeals t>n the 29″1
of Dec1
.
1
None of the
Judges of the Common Pleas were there present when Mr. Smith enlarged on the intent
and meaning of the Quebec Act relative to the rule of decision in certain Contraversies,
so that they must have spoken from hearsay. I was in Court and took notes. I
trouble you with the substance of what Mr. Smith said. I was not a little pleased to
find that I had always been of Mr. Smith’s opinion.
In consequence of very reprehensible misrepresentations, and artful insinuations,
fears were awakened ; and those who dread the introduction of the English Commercial
Law, because ignorant of it, profited by alarms which they contributed to raise, &
procured addresses to the Governor General expressive of apprehensions that the
•Canadians are about to lose the Benefits accorded to them by the Quebec Act. Another
groundof alarm was the Report from the Committee of Merchants, to the Committee
•of Council on Commerce and Police.2
The French Advocates, it is said, were very busy
in representing this as a glaring attack on the Civil Rights of the People of Canada.
To undeceive the Canadian People, and to quiet their minds, and in order to
iprevent falsehoods from spreading, some well intention’d Gentlemen beg’d leave to print
the Chief Justice’s Bill :—I take the liberty to send you a copy of it.s
The King’s natural born subjects have been disquieted by a late proposal made by
a Canadian Member of the Council, which would deprive the mercantile body of the
benefit of Trial by Jury in Commercial causes, and their fears were not lessen’d when
the Council refused to let them have a copy of the Bill alluded to ; They had for answer
to their Petition—That the Prayer of it, is of a nature not to be granted. I enclose a
•copy of the petition. The voices were equal, but the nays carried it, on the Parliamentary rule of, Semper presumetur pro negante.
T beg your pardon for troubling you with two letters for my friend Colonel Skene.
I have the honor to be, with very great esteem,
Dpar Sir
Your obliged servant
H U G H F I N L A Y
Evan Nepean Esquire,
•(original)
1
Referring to the points discussed in the foregoing despatch of the Chief Justice, of Jan. 2nd. See
p. 569. 2
Given below, see p. 614. 3
This is the draught ordinance which follows this letter.
CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
D R A U G H T OP ORDINANCE F R A M E D BY C H I E F J U S T I C E SMITH. 1
Draught
of an
Act or Ordinance
for the better Administration of Justice,
and to Regulate the Practice of the Law,
in the
Province of Quebec :
Now laying on the Table of the
Honorable Legislative Council.
Introduction.
The Copy of this Draught of a Bill brought into the Council by the Honourable the
Chief Justice, and now laying on the Table, was procured by some Gentlemen of Quebea
and Montre»!, and is printed at their own expence, to prevent mistakes and to set
those to right who may Have erroneously conceived that it has lately been in contemplation of any person or of any set of people in this province, to procure alterations in
the Laws, unfavourable to His Majesty’s Canadian Subjects, affecting either their property or civil rights: and they presume, the attention paid to the preservation of both,
in the proposed Bill, will dissipate every uneasiness that may have been raised on that
account, in the minds of their fellow-subjects.
Quebec 12&
March 1787
Draught
of
An Act or Ordinance for the better Administration of Justice, and to Regulate the Practice of the Law.
Whereas by a certain Statute passed in the fourteenth year of his Majesty’s Reign,
intituled ” An Act for making more effectual Provision for the Government of the Pro-
” vince of Quebec in North America,” I t is among other things enacted, that all his
Majesty’s Canadian Subjects within the Province of Quebec, the Religious Orders and
Communities only excepted, may hold and enjoy their Property and Possessions, together
with all Customs and usages relative thereto, jand all other their Civil Rights, in as
large, ample and beneficial manner, as if a certain Proclamation and certain Commissions, Ordinances and other Acts and instruments in the said Statute referred to, had
not been made, and as may consist with their allegiance to his Majesty, and subjection
to the Crown and Parliament of Great Britain, and that in all matters of Controversy,
relative to Property and Civil Rights, resort shall be had to the Laws of Canada as theRule for the Decision of the same, and that all causes that should thereafter be instituted
in any of the Courts of Justice to be appointed within and for the said Province by his
Majesty, his Heirs and Successors, should, with respect to such Property and Rights,
be determined agreeably to the said Laws and Customs of Canada, until they shall be
varied or 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, to be
appointed in manner in the said Statute aforementioned.2
And whereas two certain Ordinances of this Province have been passed for regulating the practice in the Courts of Civil Judicature, the first3
of which was in force
from the time of its being enacted in the seventeenth year until the twenty-fifth year
of his Majesty’s Reign, when a new Act4
was passed for that purpose with divers alterations, which is nearly expiring.
1
Canadian Archives, Q 56—3, p. 679. 2
S?e The Quebec Act, pp. 403-404. •Î The Ordinance of 1777. See p. 466.
* The Ordinance of 1785. See p. 539.
574
CONSTITUTIONAL DOCUMENT® 575
SESSIONAL PAPER No. 18
And Whereas his Excellency the present Governor of the said Province hath been
pleased to communicate to the Legislative Council, divers Articles of his Majesty’s
Instructions respecting the Administration of Justice, the twelfth article whereof is in
the words following, to wit :
“The Establishment of Courts, and a proper mode of administering Civil and
” Criminal Justice throughout the whole extent of our Province, according to the prin-
” ciples declared in the said Act for making more effectual Provision for the Govern-
” ment thereof, demand the greatest care and circumspection, for as on the one hand it is
” our gracious purpose, conformable to the spirit and intention of the said Act of
” Parliament, that our Canadian Subjects should have the benefit and use of their own
” Laws, Usages and customs in all control ersies respecting Titles of Land, and the
“Tenure, Descent, Alienation, Incumbrances, and Settlements of Real Estates, and the
” distribution of personal property of persons dying intestate ; so on the other hand it
” will be the duty of the Legislative Council to consider well in framing such Ordinances
“as may be necessary for the Establishment of Courts of Justice, and for the better
“administration of Justice, whether the Laws of England «nay not be, if not altogether,
” at least in part the rule for the decision in all cases of personal actions grounded upon
” debts, promises, contracts and agreements, whether of a mercantile or other nature,
” and also of wrongs proper to be compensated in damages, and more especially where
” our natural born Subjects of Great Britain, Ireland or other Plantations, residing at
” Quebec, or who may resort thither, or have credit or property within the same, may
” happen to be either Plaintiff or Defendant in any Civil suit of such a nature.”1
And whereas the Commerce of the Province is almost intirely in the hands of Merchants who are his Majesty’s natural born subjects, and it is essential to the encrease
and tranquility, growth, prosperity, and strength of the Province, that the administration of Justice be regulated in such manner as to give safety, not only to all the inhabitants of the Colony, but to such of their fellow-subjects as they may have intercourse
with in other parte of his Majesty’s dominions, and especially in Great Britain and
Ireland, from whence those supplies and credits are chiefly to be obtained, by which the
raw materials and natural resources of this extensive Province are to be drawn forth
into the common stock and commerce of the British Empire.
And whereas the aforementioned Ordinances, on account of the peculiar condition
of the Country, under a recent change of Government, could only be laws of experiment
and temporary expediency, to be altered and amended as occasion might require for
perfecting the security of all his Majesty’s subjects, and the said Ordinances have not
given the satisfaction expected by the people for the safety of their rights and property,
and especially in the proceedings that affect their important concerns of a Commercial
nature.
And whereas at the close of the late war on this continent, his Majesty was pleased
in his great wisdom and grace to afford a refuge in this part of his Dominions, to many
thousands of his natural born Subjects from the United States of America, who having
suffered the loss of their Property for their faithful adherence to his Government and
attachment to the British cause, are become objects of the national confederation, and
are chiefly collected together upon divers parcels of the waste lands of the Crown, and
their relief and comfort require very special Provision, suited to their circumstances,
that all the inhabitants of the Colony, tho’ originally of different Provinces and Governments may be United in Harmony and Mutual affection, under the Gracious and Benevolent protection of their common Sovereign ;
§1 Be it therefore enacted and ordained by his Excellency the Governor and the Legislative Council, and it is accordingly hereby enacted and ordained by the-authority
of the same, that for the better encouragement of his Majesty’s Subjects, and their
Ease and convenience under a due administration of Justice, it shall be lawful for
his Excellency the Governor, or the Commander in Chief of the Province for the time
being, with the advice of the Council, by Patent under the Great Seal of the Province, to form une or more new Districts therein, to be afterwards Organized by Com1
See Instructions to Lord Dorchester, 1786, 12th article, p. 555.
576 CANADIAN ARGHITES
6-7 EDWARD VII., A. 1907
mission and Commissions for the Creation and appointment of all such Offices and
Officers within the same, as may appear to be most necessary or conducive to the purposes aforesaid, any thing in any former Law or Ordinance of the Province contained
to the contrary thereof notwithstanding.1
And for the security and contentment of such of his Majesty’s Canadian subjects
.as have, or may have Property m such new District or Districts. Be it further enacted
by the same authority that in all their controversies respecting Titles of Land, and the
Tenures and Descent, Alienation, Incumbrance-‘, and settlements of Real Estates, and
for the distribution of Personal Property of persons dying intestate, such Proceedings
shall be had therein as will give them the full Benefit and Security intended by the
Statute abovementioned, and that every clause and Article in any of the said Patents
and Commissions for forming Such new District and Districts, and the administration
of Justice in the same to the contrary, shall as to his Majesty’s Canadian Subjects be
absolutely null and void.
And for amending the present Ordinances relating to the course of Judicature in
Civil Causes. »
§2. Be it also enacted by the same Authority, that the Courts of Common Pleas shall
have no cognizance of any new cause to be legally brought in any of the Courts of
Request after the erection of the same, by “Virtue of another Ordinance of the present
Session, entituled, *” An Act or Ordinance for the relief of the poor by the Dispensation
” of Justice in small Causes.”
* The Bill here referred to, enables the Governor by Letters Patent, to parcel out the Province into
Precincts or Circles comprehending several contiguous Parishes, and to appoint in each Precinct three
commissioners from the principal Inhabitants ; and authorizes them, or any two of them to hold a Court
of Requests once a month, or oftener if need be for the Precinct.
There is to be a Clerk for every Circle to keep an Office and give out the Summons or Process.—A
^Serjeant to execute the Process is m the appointment of the Commissioners.
The Court of Requests is competent for causes under £10, except in certain causei involving questions
that are not proper for a summary decision.
The Court is minutely directed, and the Judgements final without Appeal, because the main object
is to relieve the poor and the distant inhabitants.
For the same reason the Pees are low and the proceedings quick, and very plain and simple.
The Bill proceeds upon the Supposition, that there are public spirited Gentlemen to be found up and
down the Country, who will not refuse in turn to be Judges between their neighbours ; for they are not to
have authority out of their own Circle.
As it is possible that the Commissioners in some Circles, may not be able to afford to give so much
of their time to their Countrymen as may be required, a fee is allowed to the sitting Judges on every Judgement ; if they please to take it.
The Governor may form a Circle as soon as he finds fit Commissioners for it, and they may dispense
Justice in either language.
Nothing is made a requisite qualification but integrity and a good sound understanding. The Judges
will be standing Arbitrators for their Circle.
All the Officers of the Court of Bequests are to be upon Oath. There are Guards against perjuries,
contempts and Extortions.
Until a Parish is in some Circle, the old Course of Tournée, is to continue there, and when incircled
it is to cease as to that Circle and all the Parishes it includes, and the Inhabitants be saved from all the
waste of time, trouble, and charge of referring for Justice to Quebec and Montreal : and it is thus hoped
that a general Spirit of useful Industry will spread through the Province, and contentment be given to all,
as their differences will thus be speedily adjusted, by those to whom, as neighbours, they may have easy
access, and by whom the Parties will be known.
These Commissioners are not to be Justices of the Peace, nor the Justices to be Commissioners, the
confounding these Trusts in the same Person being subject to many objections, as former experience has
shewn here and^ elsewhere, in the low Character of Trading Justices as they are called.
The Justices are to be left to their proper business in preserving the public Peace, and preventing
and punishing Crimes. Prit ate Disputes will be settled by the Commissioners in the Court of Requests
for the people, by their own Countrymen, and as it were at their own Doors, and according to good Conscience and their own usages, and in their own language, every man managing his own cause by himself
or his friend. No Lawyers to be there, unless both Parties chuse to have their assistance. 1
Appended to this paragraph is the following marginal note, evidently inserted by Einlay when
sending the draught :—” this first Section of ye
Law, with the §7 was to introduce the Laws of England
into all the upper part of the Province, and among all the old Subjects in the lower part ; and leave the
Canadians to the Coutume ¿fcc” until they should be Snltahtened.” Though this bill did not pass, yet in
the Oidinanee for continuing for a time that of 1785 to regulate the Proceedings in the Courts of Civil
Judicature, being 27 Geo. III., cap. 4, a clause was introduced providing for the erecting of new Districts
and for their administration. See below p. 583.
2
This is the title of a bill or draught ordinance, summarized by Finlay in the appended note, which
was also introduced by the Chief Justice but which failed to pass. In the Ordinance however of 27 Geo.
III., cap._ 4, which continued the old Ordinance with some amendments, a clause is introduced,
” Respecting Dispensation of Justice in Small Causes,” which secures the central object of this bill. See
below, p. 583.
CONSTITUTIONAL DOCUMENTS 577
SESSIONAL PAPER No. 18
And respecting the Trial of Causes above Ten Pounds sterling, and such beneath
that Sum, of which the Courts have cognizance, the same shall be proceeded in, heard and
determined only in regular Terms, consisting of the first 14 days, Sundays and Holydays
excepted, in the months of June, August, October, December, February
tice to be™0
”
anc^ April yearly, the first return days whereof shall always be the first day
made by of the Term, and the rest and the general Rules of Practice, such as the
Conh v’ %< r e aP e c t ,i v e Judges of the Common Pleas may state in a formulary, and of Appeals.0 ' P r e s e n t to the Provincial Court of Appeals, who shall have authority from time to time to establish the same. And it being indispensibly requisite to the safety of Property in every suit at Law, to exclude all Legislative authority from, being united with the exercise of the Judicial Power of the said Courts of Common Pleas, lest the Estates and Rights of the People should be subject to the erroneous or arbitrary opinions of the Judges. § 3. Be it enacted by the same Authority, that in every Instance where the fact is not verified by a Verdicc of the Jury,but by other proof, or the testimony of witnesses, the same shall be inserted in the Record of the Cause, that in Case of Appeal, the whole Proceedings may go up to be adjudged in the Superior Tribunal, as regularly, and as fully as the same was before the Court below. And wherever the opinion or judgement of the Court, is pronounced upon any Law, usage or custom of the Province, the same shall in like manner be stated upon the Minutes or Record of the Court, and referred to and ascertained, that the real Ground of the Opinion or Judgement may also appear to the Court of Appeals, AND UPON ALL opinions conceived by any Party to be to his Injury, he shall be allowed his exception to be preserved in the minutes, all which proceedings shall be transmitted under the Signatures of the Judges or any two of them, and the Seal of the Court, that all his Majesty's subjects, and especially his Canadian subjects, by these means may be effectually protected in the enjoyment of all the Benefits secured to them for their Property and Civil Rights by the Statute and Ordinance aforesaid. And to take away all doubts and scruples with respect to the. Right of Appeal m any Cause before the said Courts of Common Pleas, § 4. Be it enacted and declared by the same authority, that the Court of Appeals «shall be deemed and adjudged to have an Original Appellate Jurisdiction with all the Power necessarily annexed to such Jurisdiction, and that it shall henceforth belong to the provincial Court of Appeals to determine tlve Question when security shall be requisite and the sufficiency thereof, and the Admission, Dismission or Remission of Appeals, and the supply of the Defects of the Record, and of the effect of the Appeal as a Supersedeas of all or any Proceedings in the lower Courts for the stay of Execution on the Judgements of the same, or any Process of the nature of Execution, with authority also to make rules aud orders to regulate, effectuate and accelerate the Proceedings in all causes of Appeal for the Advancement of Justice, and to prevent unnecessary delays and expence in the same. And to strengthen the security of the subject for his Estate and Rights, even in the said Court of Appeals ; § 5. Be it further enacted and ordained, by the same authority, That none of the Members of the Court of Appeals shall presume to sit upon the Bench thereof, until he shall have taken an Oath before the Governor for the time being, that he will faithfully serve our Lord the King and his People, in the Office of Judge of the Court of Appeals in this Province, and that he will do equal Law and Execution of Right to all the King's Subjects, rich and poor, without any regard to any person, that he will not take gift or reward of any man that shall have Plea or Process before him, and that he will deny no man common right by the King's letters, or any other man's, and that in case any letters come to him contrary to the Law, that he will do nothing by such letters, but certify the King thereof, and proceed to execute the Law according to the best of his Knowledge and Judgement. 18—3—37 578 CANADIAN AUCHIVE8 6-7 EDWARD VII., A. 1907 §6. And be it also enacted by the same authority, That it shall be sufficient to disqualify any Member of the Legislative Council from sitting as Judge in any Cause of Appeal, that he is interested in the event of it, or related to either of the parties interested in the same, or that he is a Judge of either of the Courts of Common Pleas, or that he was absent at any former hearing in such Cause of Appeal. And because his Majesty's Canadian Subjects cannot suffer detriment by trials according to the English Laws and course of practice in controversies in which they are not concerned, between his Majesty's natural born subjects, who have also their predilection and attachments to the modes of trial conformed to their own customs, and in deference to his Majesty's instruction above recited ? § 7 Be it also enacted, That as often as che Party plaintiff in a cause, being one of his Majesty's natural born subjects, shall commence his Action against another person that is not one of his Majesty's Canadian subjects according to the course of the common Law, the same Cause shall proceed to the end thereof in the same course, and hone all its legal consequences and effects, as if the same had been begun and prosecuted in the Common-Pleas of Westminster-Hall, as nearly as the condition of the Province will permit ; and for the fullest security of his Majesty's Canadian subjects in the enjoyment of the ancient Laws, Usages and Customs of Canada, every such suit shall abate whenever the defendant shall plead or alledge that he is one of.his Majesty's Canadian Subjects, or descended from any person that was so at the Conquest, in the paternal or maternal line, and the question of fact, whether he is or is not, shall be tried and determined by the Court without a Jury, and if the facts shall be found for the Defendant by the Court in manner aforesaid, judgement of non pros shall be entered against such Plaintiff for the Defendant, and the Defendant recover his Costs. § 8. And be it also enacted by the same authority, That in all causes where the Sheriff is a party, or shall appear to the Court to be exceptionable and not indifferent between the parties in any cause, the process shall go to the Coroner. § 9. And where Appeals are brought by executors, administrators or guardians, the Plaintiff shall no.t have execution nor any process in the nature of execution, without such security first given as the Court of Common-Pleas in their discretion shall direct, to refund the damages and costs in case the judgement shall be reversed, together with such costs as the Court of Appeal may award. And whereas great inquietudes have arisen in the Colony within four years past, respecting certain processes against estates and effects, seizing and arresting the same, and divesting the proprietor thereof without previous trial and judgement at law between the parties, which proceedings pass in Prance under the name of saisie arrêts, and saisie exécution, tho' they are there exercised under special guards, would be very mischievous if practiced against the poor inhabitants of this province, and especially as the Sheriffs and the subordinate executive agents are not yet under any bonds with sureties for their demeanor, and it is_ more expedient in so infant a country to leave Creditors in general to the caution prudence requires against negligent confidences, than to introduce the rapid measures of ancient and populous nations against complicated frauds and bankruptcies. §10. Be it further enacted by the same authority, That no such process shall hereafter be issued except for attaching the estates and effects of persons concerned in traffic, and only then for debts exceeding the Sum of Fifty Pounds Sterling, after Oath before the Judge issuing the same, of the amount of the debt and of the demand of payment thereof, arid that there is good cause to apprehend the loss of the debt without such process, which oath shall be indorsed thereon. 1 In connection with this clause there is inserted the following maiginal note:—"To introduce the Com. Law of England as ye Rule &° between ye old Subjects conformable to opinion & Judg' in Appeal ded' 1786. Case Grant v Gray and conform ye new Subjects or Canadians to y" Coutume de Paris & Civil Laws." This refers to the judgment delivered by the Chief Justice and which gave rise to much discussion. It is referred to in the letter from Chief Justice Smith to Nepean, see p. 569, also in that of Finlay to Nepean, see p. 572. The judgment of the Court of Common Pleas is given in Q 27-1, p. 28, and the judgment in appeal at p. 26. CONSTITUTIONAL DOCUMENTS 579 SESSIONAL PAPER No. 18 And the seizure to be afterwards made shall remain in the hands of the Sheriff, subject to such orders as the Court may afterwards take respecting the same. But whenever the Owner thereof shall either pay the debt and costs or give security to answer the value of the same, and to abide the judgement of the Court, the Estate and effects so seized shall be forthwith restored. And in the prospect that the aforementioned amendments and alterations in the Civil Jurisprudence will suffice with the provisions already made by the former. Ordinances until experience shall direct to such improvements as the case of all his Majesty's Canadians to subjects whether Canadian or others may require for the perfect establishask ye Eng. ment of their property, rights, and interests, and for promoting their muCom. Law. tuai affection and the general tranquillity of the province, by the removal of every jealousy and discontent injurious to the King's government and the common welfare ; Be it therefore enacted by the same authority, That the Act or Ordinance passed in the twenty^ftfth year of his Majesty's Reign, intituled, " An Ordinance to regulate "the proceedings in the Courts of Civil Judicature, and to establish trials by Juries in " Actions of a commercial nature, and personal wrongs to be compensated in damages,"1 so far as the same is not altered and amended by the provisions in this Act above contained, shall continue to the day of April, which will be in the year of our Lord one thousand, seven hundred and eighty-nine, at which time this Act for making the several amendments therein aforementioned shall also expire. Finis EXTRACT PROM PROCEEDINGS OF COUNCIL.2 Monday 26th March 1787. His Honor The Lieutenant Governor, and all the Other Members above. (William Smith Esq1 ". C. J., Mr. Harrison, Mr. Mabane, Mr. De Lery, Mr. Eraser, Mr. Grant, Mr. Baby, Mr. Holland, Mr. Boucherville, Mr. Einlay, Mr. Collins, Mr. Pownall, Mr. Bellestre, Col. Caldwell, Mr. De St. Ours, Mr. De Longueüil, Sir John Johnson, Dupré.) The Chief Justic'e presented a Protest signed by him and the eight other Members against the Vote of the Council upon the Question of the 22d instant for the Committment of the Bill for the better Administration of Justice, and to regulate the practice of the Law.— Read the same—Ordered to be translated, and entered on the Journals. T H E PROTEST. First—Because the refusal to commit the Bill, implies a disapprobation of every part of it as incapable of being so altered as to retain a single Clause, and amounts as clearly to a, rejection of every paragraph of it, as if each had been Separately Voted to be struck out ; and it was so explained and understood, and that intention avowed by every Speaker against the Committment. Second—Because the regulations for the Administration of Justice in all the Courts of Common Pleas, as well as in the monthly Court of Appeals, were so obviously expedient to the eye of meer abstract Theory, as to require only to be read to be approved and might have been contended for by the Judges without any disparagement of Character or Office, and served for no mean defence against the clamours and complaints, to which Courts where the Judges find both law and fact are obnoxious ; and especially in such a Country as this, where they also huid the mighty trust of settling the Question, what was or was not, the custom and usage, as well as the Law of the Colony antecedent to the Conquest: i See p. 529. 2 Canadian Archives, Q 27-2, p. 645. _ At the session of the Legislative Council, on March 22nd, the Chief Justice moved, with reference to his bill " for the better Administration of Justice, and to regulate the practice of the Law," "That this bill be committed to a Committee of the whole Council for Friday the 30th instant," and the motion being put it was defeated by ten to nine. At the next meeting of the Council the Chief Justice and his supporters registered their protest. See Q 27-2, p. 643. 18—3—37J 580 CANADIAN ABUSIVES 6-7 EDWARD Vil., A. 1907 Third—Because one of the best securities for the permanent duration of t h e privileges granted by the Statute commonly called the Quebec' Act to His Majesty's Canadian Subjects is their ready manifestation of a correspondent liberality lo his Map sty's Native born Subjects thro' the Voice of that Legislature which the Statute erects, of « hich His Majesty has constituted so many of the Canadian Gentlemen to be Members. The Bill pointed to a measure for shewing such a disposition without the smallest Infringement of the Benefits granted by the British Parliament to themselves and it had succeeded if only one of them had given his Voice for the Committment, the question being decided by the Chair. Fourth—Because the postponing the relief which according to this Bill the Governor was to be enabled to afford to the American Loyalists settled on our Frontiers, to us appears inconsistent with the Interests of the Crown, and repugnant to every motive of sound policy as well as the Sympathy we ought to have for those, who with so much honor to themselves have sacrificed every consideration of Private Interest to their faithful affection for their Sovereign and the British Cause, and to whom as Subjects of tried Loyalty and men of Arms this Province may one day be obliged to look for its defence and protection ; to say nothing of what became the King's Servants here to have done for Sufferers of such distinguished merit, in Obedience to the Royal commands communicated to General Haldimand by a Letter from Lord North of which the following is a Copy. Whitehall 24th July 1783. " The distressed situation to which many of His Majesty's faithful Subjects in the " Provinces and Colonies now the United States of America are reduced by adhering to " their Loyalty and supporting the British Constitution, has induced His Majesty to " afford them every encouragement due to their zeal and sufferings, and as Numbers of " those deserving Loyalists may wish to settle in Quebec it is His Majesty's pleasure " that every assistance and support should be held out to them." Fifth -Because the Bill was framed to heal the divisions and animosities which have so long subsisted in the Colony to its disgrace and detriment, and we are fearful that the rejection of it will not only revive a Spirit, which as a party one in the trite game of selfish ambition and avarice, for petty consequence, place and profit, is always contemptible, and sometimes harmless, is nevertherless to the last degree dangerous, in a Country of mixed Nations habits and languages, where the name of party, if the contest respects the substantial interests of the Crown and nation will be- changed into the serious discrimination of the Loyal and the disaffected : and we are the more anxious for the general harmony as the discords by increasing the debility of the province, predisposes it to become a Theatre for the Malignant Machinations of the internal mal contents of Great Britain and the hostile views of foreign powers.— Sixth—Because without some regulations to quiet the murmurs against the course of administring Justice which has' obtained here for years past, expressed in the Reports on our Table, from the Magistrates and.Merchants of the Province, and the complaints to the King's Ministers by the Merchants of London, the commerce and settlement of the Colony cannot advance, in the course necessary to give it strength for its own security, and cover the two other Provinces,1 fortunately for all of them ; committed to the wisdom and vigilance of the noble Lord, who is so well disposed and qualified to raise them to safety and prosperity if their own cheerful co operation shall not be wanting. Last—Because thro' the whole of the debate forthe noncommittnient of theBill, which has had but a single reading it being the course of this Council contrary to Parliamentary usage to commit it before a second reading) nothing was offered in our opinion of the .least weight against the Bill, unless there be supposed good cause for the insinuation of the Honourable Judge of the Common pleas, who was alone it, that 1 Referring to Nova Scotia and New Brunswick, now placed under the general administration of Lord Dorchester See note 2, p. 550. CONSTITUTIONAL DOCUMENTS 581 SESSIONAL PAPER No. 18 the Preamble was exceptionable on account of its having recited that part of the Quebec Act, excluding the Religious houses and communities from the benefit of the Laws and usages given to other Catholics ; to which the Speaker added his regret at the bare mentioning in conversation without doors as another matter tending to dissatisfy the Catholick Inhabitants the King's late gift or intended munificence out of the Estates of the dissolved and banished Order o£ Jesuits to an Individual, meaning The Right Honourable Lord Amherst.1 Respecting which we are persuaded and think it just to declare, that the ill temper and Spirit implied by the suggestion, as existing in the Colony, has as yet neither that degree of Inveteracy nor extent to require any timid condescensions from the Executive and Legislative authority subversive of the Government ; and we coneeive that if the fears of the Speaker really had any foundation, the Bill stood for that reason upon the stronger ground, not only for the Committment he opposed, but the enacting it to all the Extent of its objects for gratifying the reasonable expectations of His Majesty's good and Loyal subjects, for the promoting the population o$ the Country, and the Speediest removal of every cause of discontent upon the interesting points of commerce, and the right Adminis' ration of Justice ; without which no people can exist in safety and peace, and a Commercial people the least of all others. We lament therefore the loss of this Bill as embarrassing if not defeating the provisions expedient* for the interests of the Crown, as unfriendly to the Commerce of the Nation as distressing to the Loyalists who have fled to our Borders for refuge, and have the most unexceptionable claim, at least to Legislative regulations for their comfort, as tending to distract the minds of the Inhabitants with Jealousies, to the reducing of the force of the Colony ; and as the consequence of all, the exposing of it to the operation of foreign principles, smoothing the way to an Invasion. And this Protest we make in vindication of ourselves to His Majesty and his Representative, and with the sine rest desire to preserve the tranquility of the Province and the Interest of every order of Men in it, Protestants and Catholics, by all the means that may consist with our duty to the Crown, and a warm and affectionate regard for the general weal of the British Empire. Quebec. Monday. 9. o'Clock A M 26th March 1787. W M SMITH H U G H FINLAY EDW4 HARRISON JOHN. COLLINS. (signed) GEO. POWNALL HENRY. CALDWELL WILLIAM GRANT SAMUEL HOLLAND JOHN. JOHNSON2 1 In 1770 Lord Amherst had petitioned tor and been promised the Estates of the Jesuits. See Q 56-3, p. 846. But during the year 1787 quite an agitation arose to have these estates devoted to education. See various petitions and papers in Q 35, pp. 62-116. See also the very full reports on the Jesuit Estates contained in vols. Q 50 -A, 50 -B, 50-C, 50-E, 50-E, 50-G, 1 & 2 and 50-H. 2 When the Ordinance of 27 Geo. III., cap. 4, which follows this document, had passed, Messrs Harrison and Holland " prayed leave to strike out their names trom this Dissent; the ends for which they signed the same being obtained in the Ordinances which have been passed this session by the Council. And it was ordered accordingly." Q 27-2, p. 654. 582 CANADIAN ARCHIVES 6-7 EDWARD Vil., A. 1907 ORDINANCE RE PROCEEDINGS OE CIVIL COURTS1 I ANNO VICÉSIMO SÉPTIMO GEORGII T E R T I I REGIS. CHAP. IV. An Ordinance to continue in Force for a limited Time an Ordinance made in the 25m Year of His Majesty's Reign, intituled, " An Ordinance " t o regulate the Proceedings in the Courts of Civil Judicature, and to " establish Trials by Juries in Actions of a Commercial Nature, and " Personal Wrongs, to be compensated in Damages,"2 with such additional Regulations as are expedient a' d necessary. Be it Enacted and Ordained by His Excellency the Governor, and the Legislative Council, and by the Authority of the same, it is hereby Enacted and Ordained, That an Ordinance made and passed the Twenty fifth of April, in the Twenty fifth year of His Majesty's Reign, intituled, " An Ordinance " to regulate the Proceedings in the Courts of Civil Judicature, and to es- " tablish Trials by Juries in Actions of a Commercial Nature, and Personal The former " Wrongs, to be compensated in Damages," and every Clause and Article be continued therein contained, be continued, and the same is hereby continued from the forTwoYears, expiration thereof to the end of the Sessions of the Legislative Council which will be held in the Year of our Lord 1789. where there is And whereas Additional Regulations are at this Time found to be exno Jury, the pedient and useful ; Be it further Enacted by the same Authority, That in serted in the" every Instance where the Fact is not verified by a Verdict of the Jury, but Record. by other Proof, or the Testimony of Witnesses, the same shall be inserted If the Judg- in the Record of the Cause, that in case of Appeal the whole Proceedings ment be upon m a y go up to be adjudged in the Superior Tribunal, as regularly and as tomL o a r WÚ?agS e full y a s t h e s a m e w a s b e f o r e t h e C o u r t o f C ° m m o n Pleas. °f ?i0 " And wherever the Opinion or Judgment of the said Court of Common same'to be Pleas is pronounced upon any Law, Usage, or Custom of the Province, the stated upon same shall in like manner be stated upon the Minutes or Record of the the Common Court, and referred to, and ascertained, that the real ground of the Opinion Pleas. or Judgement may also appear to the Court of Appeals, and upon all Exception to Opinions conceived by any Party to be to his Injury, he shall be allowed If the Judg- his Exception, to be preserved in the Minutes ; all which Proceedings shall ment be upon be transmitted under the Signature of the Judges, or any Two of them, and any Law, ^ie Seal of the Court, that all His Majesty's Subjects, and especially His torn of the Canadian Subjects, by these means may be protected in the Enjoyment of Province, the all the Benefits secured to them for their Property and Civil Rights, by the statedt0upon Statute passed in the Ul k year of His Majesty's Reign intituled, "An Act the Record of " for making more effectual Provision for the Government of the Province the Common « 0f Quebec, in North America," and by the Ordinances above-mentioned, tkra to beXOeP" And he it further Enacted by the Authority aforesaid, That in all Cases allowed. adjudged in the Provincial Court of Appeals, where the same may be • ^the c amfc f a PPea,led *° His Majesty in His Privy Council, and where their Opinion or Appeals. Judgment is pronounced on any Law, Custom or Usage of the Province, 1 Canadian Archives, Q 62A-2, p. 634. The rival bills of the Chief Justice, representing the English element, and of St. Ours representing the French interest, were defeated, with the result that the Council fell back by compromise upon the renewal of the Ordinance of 1785. However, in the amendments introduced into this, while passing through Committee, there were embodied many of the most important features of the measure introduced by the Chief Justice. The interesting progress of the bill through the Committee, with the numerous amendments proposed and defeated, may be followed in the Journals of the Council. See Q 27-2, pp. 737-761. 2 See p. 529. CONSTITUTIONAL •DOGUMENTB 583 SESSIONAL PAPER No. 18 ITour Terms in the Year Established. Appellate Jurisdiction of Court of Appeals, touching Security. Where Executors &c appeal, the Plaintiffs to give Security to refund before Execution issues. ^ eeting Dispensation of Justice in Small Causes. New Districts may be formed by Patent for the remote parts of the Province. the same shall in like manner, and for the same Reason as hereinbefore mentioned, be stated upon the Record, or referred to and ascertained. And, in all Causes of which the Common Pleas have Cognizance above Ten Pounds Sterling, the same shall be proceeded in, heard, and determined only in regular Terms, consisting of the First Fifteen Days (Sundays and Holidays excepted) in the Months of January and July, and the last Fifteen Days of March and September, Yearly, the First Return Days whereof shall always be the First Day of the Term, and the rest of the Return Days, and the General Rules of Practice, such as the respective Judges of the Common Pleas shall fix in a Formulary. And, to take away all Doubts and Scruples with respect to the Right of Appeal in any Cause before the said Courts of Common Pleas. Be it Enacted and Declared by the same Authority, That the Court of Appeals shall be deemed and adjudged to have an Appellate Jurisdiction, with all th^e Power necessarily annexed to such Jurisdiction ; and that it shall henceforth belong to the Provincial Court of Appeals to determine the Question when security shall be requisite, and the sufficiency thereof, and the Admission, Dismission, or Remission of Appeals, and the supply of the Defects of the Record and of the Effect of the Appeal as a Supersedeas of all or any Proceedings in the Lower Courts for the stay of Execution on the Judgment of the same, or any Process of the nature of Execution, with Authority also to make Rules and Orders, to regulate, effectuate and accelerate the Proceedings in all causes of Appeal, for the Advancement of Justice, and to prevent unnecessary Delays and Expence in the same. And, where Appeals are brought by Executors, Administrators, Curators, Tutors or Guardians, the Plaintiff shall not have Execution, nor any Process in the nature of Execution, without such security first given as the Court of Common Pleas in their Discretion shall direct, to refund the Damages and Costs, in case the Judgment shall be reversed, together with such Costs as the Court of Appeals may award. And, for the .more convenient Dispensation of Justice in small Causes, I t is enacted and Ordained by the same Authority, that it shall and may be lawful for his Excellency the Governor, or the Commander in Chief of the Province for the Time being, by and with the advice and consent of His Majesty's Council, to appoint by Commission such and so many Persons as he shall Judge fit, and for such Parts of the Province as he shall think proper, to hear summarily, and to determine finally, without Appeals, all Matters of Debt of Ten Pounds or under ; and it shall likewise be lawful for His Excellency the Governor, or the Commander in Chief for the Time being, by and with the Advice and Consent of His Majesty's Council, to regulate the Fees to be taken by the Persons so commissioned, and by their Subordinate Officers, and to direct a mode of proceeding for them, whereof, and the extent of their Jurisdiction respectively, a Notification shall be published r*n the Quebec Gazette, for the Information of all Persons whom it may concern.1 Whereas there are many Thousands of Loyalists and others settled in the Upper Countries above Montreal, and in the Bays of Gaspy and Chaleur, below Quebec, whose ease and convenience may require that additional Districts should be erected as soon as Circumstances will permit ;—It is Enacted and Ordained by the Authority aforesaid, That it may be lawful for the Governor or Commander in Chief for the Time being, with the Advice and Consent of the Council, to form, by Patent, under the Seal of the Province, one or more new Districts, as his Discretion shall direct, and 1 This clause embodies the essential features of the bill mentioned in §2 of the draught ordinance of the Chief Justice ; see p. 576. 584 CANADIAN ARCHIVES Attachments m certain Oases only. Proviso. These Additional Regulations to be in Force for Two Years. 6-7 EDWARD VIÍ., A. 1907 to give Commission to such Officer or Officers therein as may be necessary or conducive to the ease and convenience of His Majesty's Subjects residing in the remote Parts of the Province1 And be it further Enacted by the Authority aforesaid, That no"Proces3 of Attachment, except in the case of the Dernier Equippeur, according to the usage of the Country, shall hereafter be issued for Attaching the Estate, Debts and Effects of what Nature soever, of any Person or Persons whomsoever, whether in the Hands of the Owner, the Debtor, or a Third Person prior to Trial and Judgment, except where there be due Proof on Oath (to be indorsed on the Writ of Attachment) to the Satisfaction of one of the Judges of the Court issuing the same, that the Defendant, or Proprietor of the said Debts and Effects, is indebted to the Plaintiff in a Sum exceeding Ten Pounds, and is about to secrete the same, or dotb abscond, or doth Suddenly intend to depart from the Province, with an Intent to Defraud his Creditor or Creditors, and that the Defendant is then indebted to the Plaintiff, and he doth verily believe that he shall lose his Debt, or sustain Damage, without the Benefit of such Attachment. Provided always, That nothing herein contained shall be construed to the Prejudice of the Rights of Landlords, in their legal Course, for the Recovery of Rents, according to any former Mode of Proceeding by any Law, usage, or Custom whatsoever ; and provided also, that whenever the Defendant or Debtor shall either pay the Debt and Costs, or give Security to the Sheriff or Officers for the goods so attached, as in Ca=es of Bail on Personal Arrests, subject to Justification in Court to answer the Valué of the Goods, and abide the Judgment of the Court, the same shall be forthwith restored ; and for that Purpose the Defendant or Debtor shall be allowed Forty Eight Hours, after which Period, if the Debt and Costs be not paid, nor Security given, the Goods so seized shall remain attached, and held by the Sheriff or Officer to answer the Judgment of Law. Be it further Enacted by the Authority aforesaid, That the additional Regulations hereby Enacted shall be in force until the end of the Sessions that shall be held in the Year of our Lord 1789, or as long as the Ordinance hereby renewed ; and that the Ordinance passed in the Twentyfifth year of the Reign of his present Majesty, intituled, " An Ordinance " for granting a limited Civil Power and Jurisdiction to His Majesty's " Justices of the Peace in the Remote Parts of the Province "2 be no longer iii force than until Such Small Jurisdictions as by this Act are authorized shall be actually erected. Enacted and Ordained by the Authority aforesaid, and passed in Council under the Public Seal of the Province, at the Council Chamber, in the Castle of S' Lewis, in the City of Quebec, the 30th of April, in the 27th Year of the Reign of our Sovereign Lord George-the Third, &° &° à" and in the Year of our Lord 1787. By His Excellency's Command, (signed) J. W. MEARNS C.L.C. 1 This clause embodies the chief features of §1 of the draught ordinance of the Chief Justice ; see p. 675. 2 This was the Ordinance of 25 Geo. III., cap. 5. CONSTITUTIONAL DOCUMENTS 585 SESSIONAL PAPER No. 18 ORDINANCE BE CRIMINAL COURTS.1 ANNO VICÉSIMO GEORGII T E R T I I REGIS. CHAP. YI. An Ordinance to Explain and Amend an Ordinance for establishing Courts of Criminal Jurisdiction in the Province of Quebec. Whereas it is expedient that public Officers should be established in the several Parishes of this Province, under the Denomination of Peace Omcers ; It is Enacted and Ordained, by his Excellency the Governor and the Legislative Council, That all and every the Captains, and other Peace Officers, Officers of Militia in the said several Parishes of this Province, duly comappomted m missioned by His Excellency the Governor, or the Commander in Chief for Parishes. the Time being, and likewise the Serjeants named and appointed by the said Captains and other Officers in the respective Parishes, be, and they are hereby declared to be Public and Peace Officers within their respective Parishes, and authorized and enjoined to do and exercise all and singular the Duties and Services of Public and Peace Officers within their respective Parishes according to Law • And be it further Enacted by the same Authority, That it shall be Lawful for the Commissioners, or Justices of the Peace, The same to assembled in Quarter Sessions, or by a Majority of the same, and be appointed they are hereby required, as soon as conveniently may be, to name for the Towns. a m j appoint such and so many Persons as they may think sufficient, within the Towns and Banlieus of Quebec and Montreal, for carrying into Execution the orders and Decrees of the several Courts, and to preserve the Public Peace therein, every of which Persons so appointed shall faithfully perform the Duties of the Offices for which he may be so appointed for the space of one year ; previous to the expiration whereof it shall be the Duty of the said Commissioners or Justices of the Peace annually to appoint others to serve in their stead, and to increase or diminish the number first appointed, as to them shall appear to be most for the Public Weal and Safety ; and that no such appointment shall be valid in Quebec or Montreal, and their Banlieus respectively, in the Case of a Civil or Military Officer, or in any Person in Priest's Orders, or in the Profession or Practice of Physic or Surgery, or any Miller, Ferryman, Schoolmaster, or Student of any College or Seminary, or any Person not of full Age : or for neglecting or refusing to perform the said Office or Offices there shall be the Forfeiture of Twenty Pounds, to be recovered in any Court of Record, with Costs of Suit, by Bill, Plaint, or Information, in which no Essoign, Wager, of Law, or any more than One Imparlance, shall be allowed (signed) DORCHESTER Enacted and Ordained by the Authority aforesaid and passed in Council under the Public Seal of the Province, at the Council Chamber, in the Castle of S* Louis in the City of Quebec, the 30111 day of April, in the Twenty seventh year of the Reign of our Sovereign Lord George the Third, by the Grace of God of 1 Canadian Archives, Q 62A-2, p. 644. This Ordinance is an amendment of 17 Geo. I l l , cap. 5, given at p. 471. CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 Great Britain, France and Ireland, King, Defender of the Faith and so forth, and in the Year of our Lord 1787. By His Excellency's Command (signed) J: WILLIAMS C.L.O. SYDNEY TO DORCHESTER. 1 Private. WHITEHALL 20"1 Septf 1787. Right Honb16 Lord Dorchester. M Y DEAR LORD, I think it necessary to accompany my Public Dispatch with a few Lines of a more private and confidential kind. (¿jj^The Subjects contained in your various Dispatches are of very important and interesting natures. The Merchants who trade to Quebec naturally take part with their British Correspondents. But in the few Conversations I have had with them, they have restricted their Compl lints almost entirely to the want of Goals and Officers to secure their Debtors, hinting, however, that they would wish to have the English Commercial Laws prevail instead of the Coutume de Paris. I am clear that the Canadians have a right to retain, if they choose it, the Laws guaranteed to them by the Capitulation, and that Merchants who trade with them ought to content themselves with the Laws of that Country, as well as with those of every other with which they deal. ribKThe Disputes in the Legislative Council are extremely disgusting, not to say disgraceful, to the Government. Protests are of ancient Use in the House of Lord^, but I do not see with what propriety they are introduced into the Legislative Council of Quebec. The Protest of Mr, Pownall against the excluding Strangers,2 seems to me a very extraordinary Proceeding, and that in which the Speech of the Chief Justice of the Common Pleas is censured, is a direct attack upon the freedom of Debate, and in that instance unprecedented, i believe, by any proceeding of any Assembly whatever. Some means must be found of preventing this kind of animosity and personality between the King's Servants in the Province, as it is impossible for any Government to subsist under such Circumstances. The Behaviour of the Attorney General towards the Judges of the Common Pleas, seems to have been extremely improper, even if they deserved the imputations which he so unsparingly cast upon them, but if in the Event he cannot make good his charge, he must certainly appear very unfit to continue in his Office.3 1 Canadian Archives, Q 28, p. 44. In another despatch, dated Sept. 14th, Lord Sydney discussed in an official form the points here touched upon in a more confidential manner. Dorchester is informed that, though it is not the intention at present to change the constitution of the Province, yet His Majesty will be advised to make a change in the tenure of land in the Province. See Q 28^ p. 28. 2 At a session of the Legislative Council Jan. 22nd, some sixteen citizens presented a petition requesting permission to attend the debates of the Council, when Col. Caldwell moved " that every Member of the Council shall have leave to introduce any Gentlemen to hear the Debates at any time, except when the House is ordered to be cleared." This motion, however, was defeated by ten to eight, all the French members voting against it. On Jan. 25tb, Mr. Pownall recorded his protest, his reasons being that every British subject had a right, upon due application, to hear the debates of the Legislature which passed the laws governing him. He pointed out also that the idea which had prevailed previously, (See note 1, p. 52!)) that the members were bound by their oath to debate all measures in secret, was no longer held, and also that it is necessary to dissipate the suspicion with which their secret proceedings were regarded by the general public. See Q 27-2, pp. 564 & 570. 3 This refers to the famous arraignment by the Attorney General, James Monk, of the administration of justice in the Canadian Courts of Common Pleas. This criticism was made in the course of an address before the Legislative Council, on April 14th, 1787, when Mr. Monk was acting as counsel for the Canadian merchants, in support of their petition on behalf of themselves and other merchants in Britain, against a proposed ordinance introduced by Mr. St. Ours, to regulate proceedings in the courts, after that of the Chief Justice had been voted down. Mr. Monk's statements were taken up in the Council and the proceedings eventually resulted in a very extensive investigation before the Chief Justice, the minutes of which fill 13 volumes m the Canadian Archives; Q 29-1 to Q 34-2. CONSTITUTIONAL DOCUMENTS 587 SESSIONAL PAPER No. 18 All the Disputes seem to tend to a Division of the Province into two, with a Lieutenant Govr to each, under the Governor, I wish your Lordship had given me your thoughts upon that Subject, as well as upon any other plan of adjusting the differences subsisting in the Province, and unfortunately among the Officers of the Crown : You must be better able to form a decisive opinion upon the spot than We can here, and your long experience and general knowledge of the Province would give the greatest weight to your opinion. The Rights and the opinions of the antient Inhabitants of Canada, must be attended to in every thing like a change of the Government, otherwise under the shew of giving a free Constitution, We are really practicing Tyranny. Your Lordship will see by my official Dispatch,1 that the King's Servants have no immediate Thoughts of proposing any alterations fii the Quebec Act. No Plan of an Assembly has been suggested by any one, and indeed it would, under the present Circumstances, be very difficult to form such a one as would not be liable to very great objection. Bui I foresee, as well as your Lordship, that in proportion as the number of British and Loyalists increases in the Province, the applications for one will grow more frequent and pressing. I am, my dear Lord with great truth and regard, Your Lordship's most obed* humble Serv SYDNEY. DORCHESTER TO SYDNEY. 2 Quebec 13 June 1787. My Lord, I transmit herewith The Minutes of Council upon State business from A the 24th October 1786 to the 2 June 1787. both inclusive. B The Report of a Committee of Council relating to the Courts of Justice. C. The Report of a Committee of Council relating to Commerce and Police. D. The Report of a Committee of Council upon Population, Agriculture, and the Settlement of the Crown lands7 E The Journals serving for a Report of the Committee of Council for the Militia and the high roads and Communications. F. The Journals of the Legislative Council. G A set of printed Copies of twelve Ordinances passed during the last Cession of the Legislative Council H. Copy of a letter from the Lieutenant Governor, dated 10 th March 1787. I. Copy of a letter from the Lieutenant Governor, dated Is ' May 1787. K. Copies of Papers concerning a Grand Jury of Montreal. The great bulk of the Minutes of the Legislative Council was occasioned by a considerable warmth and much altercation, which prevailed among the members from their meeting ; very nearly to the end of the session, when they became more composed, and separated in tolerable good humour, with each other at least in appearance Two parties have subsisted in this province ever since the Civil Law was introduced here in 'Sixty four, the one zealous for English Laws and 1 Referred to in note 1, p. 586. 2 Canadian Archives, Q 27-1, p. 112. The capital letters in the margin refer to the reporte and proceedings embodying the investigation of the existing condition of the Province which Dorchester was required to make on returning to Canada. See note 2, p. 520. Those portions of the reports, &c, bearing on the constitutional changes which were being advocated, are given among the documents which follow, and need not be specially referred to here. They will all be found in vols. Q 27-1 ajjd 27-2. 588 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 for an Assembly, the other not less anxious to maintain the present form of Government with the Ancient laws customs and usages of the Country. I t unfortunately happened that the Quebec bill, which gave entire satisfaction to the latter, took place at a time, ^hen the Province was too much disturbed by the late rebellion to think of anything further than self defence, and immediate preservation; and it was no small addition to this misfortune, that the province has been left so many years without a law Officer of the Crown, to Assist in regulating the Courts of Justice, and in introducing such laws and practice, as might have given satisfaction to the former without infringing on the rights of the latter; for which reason the Ordinance for regulating the proceedings in the Courts of Civil Judicature has been temporary, and re-inacted from time to time with Alterations. The last Enacted in Eighty five1 for two Years, of course was to be.renewed this sessioD, and on this occasion both parties were attentive and anxious to obtain as much of their favourite System as possible; a bill brought in by the Chief Justice2 for this purpose was rejected, as were most of the bills brought in by him, the Majority alledging they were calculated to introduce too much novelty into the province; a bill on more Canadian principles was F brought in3 ; these proceedings occasioned a protest of some sharpness from 26th March, the minority f the Merchants petitioned the Legislative Council to be heard against that bill, then under Consideration of a Committee of the whole council, which was agreed to;5 the Attorney General, who was employed on that occasion, in his Speech against the bill, accused the- Court of Appeals of inconsistency in their decisions, and still more strongly the Judges of the Common PJeas, adding that these were influenced by caprice and humour, and that some of them had granted by favor to one what they had refused „ .pF to another.6 mary ^ ^ 2)j g g e n t 0f j ^ e 26"1 February and the Protest already mentioned H. I. occasioned the two letters from the Lieutenant Governor,7 and Mr. Monk's F speech occasioned the Address from the Legislative Council,8 and the peti27. April f¿ o n from the Judges of the Common Pleas then present in Quebec for an q inquiry into these charges.9 f The Chief Justice has accordingly been directed to investigate this matter, as it was not thought adviseable to add any part of the Council, since they were in some Measure involved in the Accusation. The bill under deliberation10 was rejected, and the temporary bill ready to expire was re-enacted for two years with many additions,11 which for the present has satisfied most of the opposite party both within the Council and without, so that there seemed a general disposition to rescind the protest, which had given much offence, and was carried into execution bv two 1 Given at p. 529. 2 Given at p. 574. 3 This bill was introduced by Mr. St. Ours, on Feb. 22nd, 1787. See Q 27-2, p. 611. 4 This protest, given at p. 579, was entered on the journals of the Council of March 26th. See Q 27-2, p. 646. 5 See journals of the Council, April 7th and 10th, Q 27-2, pp. 694 and 696. 6 The Attorney General delivered his address on April 14th. See note 3, p. 586. 7 On Jan. 23rd the Chief Justice, seconded by Mr. Finlay, brought in a bill " t o secure the Eoyal .Revenues and to regulate the Proceedings in Crown Causes, and to give the Subject the benefit of Appeal from large fines." This was intended to provide, through the Court of King's Bench, for the functions of an Exchequer Court, in a less expensive form. When this bill came up in committee, the French section of the Council, with whom Meesrs. Mabane, Fraser, and Hope invariably acted on all party questions, so completely altered it, including the title, that Messrs. Finlay, Grant, Collins, Caldwell, Holland, and Sir John Johnson entered upon the journals their reasons of dissent. See Q 27-2, pp. 617-620. This brought out a long letter from Lt. -Gov. Hope to Lord Dorchester, for the purpose of justifying his attitude towards the bill. This is given in section H. See Q 27-2,.p. 917. The second_ letter from the Lt.-Gov. was in justification of his action in assisting to defeat the bill of the Chief Justice, for regulating the proceedings in the Civil Courts, and is given in section I. See Q 27-2, p. 931. 8 Given in journals of the Council, Q 27-2, p. 768. 9 See minutes of Council which follow this document, p. 593. 10 The bill introduced by St. Ours. See note 3 above. n See p. 582. • - CONSTITUTIONAL DOCUMENTS 589 12. FeV. SESSIONAL PAPER No. 18 of the Members,1 but failed after a consultation for that purpose, with the rest. Your Lordship will perceive by the minutes of Council that soon after my arrival the members were divided into Committees2 for the purpose of making themselves intimately acquainted with the Affairs and interests of the province, and for bringing this knowledge forward and into the Legislative Council. Their reports have accordingly brought forward a great deal of useful information, to which I may have occasion to refer in some of my letters hereafter; but some of the Merchants of Quebec, who were consulted on the business of commerce and police took occasion from thence to enter deeply into law and politicks,3 recommended that a large portion of the common and statute law of England should be adopted in this Province, and referred to the petition sent two years ago to the King and both Houses of Parliament for an Assembly.4 Tiie Canadians were very much alarmed and offended that these Gentlemen should take upon themselves to desire»that numberless unknown customs and laws should be introduced, and their old customs and laws abroF gated in that summary manner. All the respectable Canadians of the town I FebJ. a r ,¿ neighourhood presented a Petition5 expressing their apprehensions upon this occasion. This business was carried on pretty nearly in the same manner at Montreal, and was followed by a petition much to the same F purpose f but it did not end quite so soon at Montreal ; reports were put about, that unfair means had been used to procure signatures to this petition, and the grand jury sent for several, by a huissier, and examined them concerning their signing the petition ; the numbers brought in this manner before the grand jury gave the more offence, as it so happened, that the foreman and some of the jurymen were the persons, Against whose opinions and recommendations the petition had been made, and as it did not appear that the smallest irregularity had «been found out, some murmurings followed and increased with .the numbers examined ; at length a Mr . Franchese speaking very freely and censuring the proceedings of the grand jury was prosecuted for this conduct by the Attorney General, and condemned ÏC. to pay a fine of fifteen pounds.7 Much interest has been used to have this fine remitted, but as I am convinced many evils might arise from remitting punishments, unless recommended by the Magistrate, who pronounced sentence, I have agreeable to that maxim told them the Application for pardon must come through the Chief Justice. I have been the more full' on these Matters, as they will shew Your Lordship the opinions of both parties here on the laws and form of government. I am with much respect and esteem Your Lordship's most obedient, and Most humble Servant. DORCHESTER Right Honble Lord Sydney &c. &°i &°. 1 Referring to the action of Messrs. Holland and Harrison in withdrawing their names from the protest of dissent. See note 2, p. 581. * 2 See below p. 591. 3 In so far as these deal with matters affecting the constitution of the Province, they aie given among the documents which follow, under section C. See p. 612. 4 See p. 505. 3 This petition was presented on Feb. 1st. See journals of the Council, Q 27-2, p. 575. The petition itself is given in Q 27-1, p. 315. 6 This petition was presented on Feb. 12th. See journals of the Council Q 27-2, p. 589. The petit : on itself is given in CJ 27-1, p. 410. 7 The papers relating to this affair are given in section K in Q 27-2, p. 911. 590 CANADIAN ABUSIVES 6-7 EDWARD Vil., A*. 1907 QUEBEC—COPY OF T H E MINUTES OF COUNCIL UPON STATE BUSINESS FROM T H E 24th OF OCTOBER 1786 TO T H E 2»d OF J U N E 1787.1 Thursday 2nd November 1786. A t the Council Chamber in the Bishop's Palace. Present His Excellency. The Right Honourable Guy Lord Dorchester The HonWe Henry Hope Esquire, Lieutenant Governor. William Smith Esquire C.J. Edward Harrison John Collins Adam Mabane * George Pownall J. G. C. De Lery Picoltée de Bellestre John Fraser Henry Caldwell William Grant Paul Roc St. Ours. Francis Baby Joseph De Longueüil Samuel Holland. . . . Esquires. His Honor the Lieutenant Governor, William Smith Esquire the Chief Justice, and Edward Harrison, John Collins, Adam Mabane, George Pownall, John Fraser, Henry Caldwell, William Grant and Samuel Holland Esquires, took and subscribed the State Oaths, and made and subscribed the Declaration against Transubstantiation. And. Joseph Gaspard Chauscgros De Lery, Paul Rock St. Ours, Francis Baby, and Joseph De Longueiiil Esquires took and subscribed the Oath, required by the Act of the fourteenth of His present Majesty, ch. 83.2—Then the Oath of Privy Counsellor was administered to them respectively, and they took their Seats. The Oath directed by the Statute of the 18th of Edward the 3d Stat 4. was administered to the Honble William Smith Esquire as Chief Justice for this Province. His Excellency intimated to The Council that he would have certain subjects to commit to their consideration at their next sitting. Monday 6,h November 1786. A t the Council Chamber in the Bishop's Palace Present His Excellency the Right Honourable Guy Lord Dorchester The Honb,c Henry Hope Esquire, Lieu* Governor. William Smith. Chief Justice Hugh Finlay Edward Harrison John. Collins . Adam Mabane. George Pownall J. G. C. De Lery. Picolteé de Bellestre. John Fraser. Henry Caldwell ' William Grant Paul Roc St. Ours Francis Baby. Joseph De Longueiiil Samuel Holland. Esquires. 1 Canadian Archives, Q 27-1, p. 120. These minutes constitute section A referred to in the foregoing despatch of Dorchester to Sydney. These are minutes of the executive sessions of the Council and differ from the record of the proceedings of the Council as a legislative body, which is given in the journals of the Council which constitute section F. Only those portions of the minutes are here reproduced which have a more or less direct bearing upon constitutional questions. The greater part of the minutes is taken up with commercial matters, government expenditure, petitions for land, &c. 2 Being the special oath prescribed in the Quebec Act. See p. 403. „* " CONSTITUTIONAL DOCUMENTS 591 SESSIONAL PAPER No. 18 The State Oaths were taken and subscribed by the Honble Hugh Finlay Esquire and Sir John Johnson, Baronet, and they made and subscribed the Declaration against Transubstantiation. # The Oath required to be taken by persons professing the Religion of the Church of Rome, by the Statute of the 14th of his present Majesty ch. 83 was taken and subscribed by the Honble René Amable Boueherville and Le Conte Dupré Esquires. They all took the oath of a Privy Councillor and afterwards their respective Seats at the Board. A t the Board in addition to the above Members. Sir John Johnson. Baronet René Amable Boueherville ) and > Esquires.
Le Conte Dupré j
His Excellency Lord Dorchester, agreeably to the Intimation he gave at the last sitting
of the Council, was now pleased to recommend to the Board the taking into consideration the following Subjects,1
viz. •
1
st Courts of Justice
2
nalJ’ The Militia ; the high roads and communications
3
ralï Population and Agriculture ; and the Settlement of the King’s Lands
and
i
mj The external and internal Commerce ; and the Regulation of the Police.
His Lordship expressed an earnest desire that the Members composing the several Committees, now to be named, would give particular attention to the objects recommended
to their Consideration, having an eye to the Antient Laws and Usages of the Province.
Then His Majesty appointed the Committees
I
s
‘—For Courts of Justice— The Chief Justice. Pr
.
Mr. Finlay
Mr. Dunn.
Mr. Mabane.
Mr. Fraser
Mr. St. Ours.
2
nd For the Militia ; The High Roads and Communications .
The Lieutenant Governor. Pr
Mr. Bellestre •
Col. Caldwell
Mr. Baby.
Mr. La Ñaudiere.
Mr. Dupré.
3
ra Upon Population & Agriculture ; and the Settlement of the King’s Lands.
Mr. De Lery. Pr
Mr. De Longueúil.
Mr. Holland
Mr. Davison
Sir John Johnson. B’
Mr. Boueherville
à
01 For the external and internal Commerce ; and the regulation of the Police
Mr. Levesque. Pr
Mr. Harrison
Mr. Collins
Mr. Grant
! Mr. Pownall
The Committees are empowed to send for and examine Persons Records and
Papers ; and they are to bring in their several Reports to His Excellency with as much
dispatch as they shall find convenient.
1
The investigations to be undertaken were to furnish that information which the Home Government
desired to obtain before determining upon the future government of the Province. See note 2 p. 520.
592 • ” CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
I t pleased his Lordship to communicate to the Board that he intended to assemble
The Legislative Council on Monday the 15* of January.1
** Friday 18th May 1787. ‘
Present
His Excellency The Right Honourable Guy Lord Dorchester Governor,
The HonbIe Henry Hope Esquire Lieutenant Governor.1
William Smith Chief Justice
Hugh Finlay Edward Harrison
John Collins Adam Mabane
George Pownall . J. G. C. DeLery ” –
William Grant Paul Roc de St. Ours.
Francis Baby Samuel Holland
and ‘
Le Comte Dupré— Esquires
m
His Excellency was pleased to refer all the public provincial Accounts for the last
six months to the examination of the Chief Justice, Mr. Harrison, Mr. Mabane, Mr.
Grant and Mr. Baby and any other Member attending shall have a voice ; to be
reported with all convenient Speed.
Read a Memorial of Mr. Judge Mabane, Mr. Judge Fraser and Mr. Judge Panet,
to His Excellency dated the Is
‘ instant, Stating among other things that an Accusation
of partiality was made before the Legislative Council, on the 14th of April last, against
The Judges of the Court of Common Pleas at Quebec by James Monk Esquire, His
Majesty’s Attorney General f and ” praying His Lordship to do them justice, by vindi-
” eating the digniiy of Government thus wantonly insulted in their persons by the
” King’s Attorney General, and thereby rescue their Characters and Reputation from
“an attack of partiality, so maliciously and-publickly brought against them, and unsup-
” ported, which’may also upon the slightest inquiry be proved to be altogether without
” foundation, and which is altogether unconnected with any further inquiry or investi-
” gation His Lordship may think proper to make into the charges of Inconsistency in the
‘*Judicial decisions of the Courts of Justice, alledged to arise from the inadequateness
“and uncertainty of the Laws.”
Here Mr. Judge Mabane withdrew. Then, read the Address of the Legislative
Council to His Lordship, dated the 27tl1 of April “requesting His Lordship, upon the
” reasons and grounds therein referred to, to take such steps as in his wisdom he should
” judge best calculated to promote the ends of public Justice, and to vindicate the
” honour of Government, which are both so essentially interested in an enquiry-into the
” Charges and Accusations so publickly brought before The Legislative Council, against
” the past administration of Justice in the Court of Common Pleas for the two Dis-
” tricts, as well as against the Judges of the same ; and that of Inconsistency in some
” of the Judgments of the Court of Appeals.” Read also the Extract from the Journals
of the Legislative Council, and the papers A and B which accompanied the Address.
W H E R E U P O N it is ORDERED by His Excellency with the advice of the Council
that it be Committed to The Chief Justice to cause the Investigation desired to be
made, by hearing the parties publickly in the Council Chamber, and that the report be
made to His Lordship with all convenient Speed ; and first upon the Question of partiality. And the Chief Justice is authorized to employ one or more Clerks in the Service aforesaid, with free Access to Records and Papers.
1
It was provided by the Quebec Act, and enforced in the ninth article of the Governor’s Instructions,
that, except under very special circumstances, the Council should meet for legislative purposes, only during the first four months of the year.
2 See note 3, p. 586.
CONSTITUTIONAL DOCUMENTS 593
SESSIONAL PAPER No. 18
MEMORIAL OF T H E JUDGES. 1
To His Excellency The Right Honorable Guy Lord Dorchester Captain General and
Governor in chief of the Colonies of Quebec Nova Scotia & New Brunswick—•
&c &c. &c.
The Memorial of the undersigned Judges of His Majesty’s Courts of Common Pleas
for the District of Quebec and Montreal.
Sheweth.
That on the 14th of April last, James Monk Esquire His Majesty’s Attorney
General for this province, on being heard as Council at the bar of the Honble The Legis-
lative Council upon a Petition of some of the Citizens of Quebec, and others, relative to
an Ordinance •íor regulating the proceedings of the Courts of Justice, then before a
Committee of the whole Council, did, in a Speech of considerable length, deliver’d in
presence of a Crowded audience, enter into a general field of declamation against the
Laws and Administration of justice for this Province, charging not only the Courts of
Common Pleas for both Districts, but the Provincial Court of Appeals, and even the
Lords of His Majesty’s Council with inconsistency in their judicial decisions ; and also
charging the Judges of the Court of Common Pleas for the District of Quebec with
partiality in having, through grace and favor granted to John Fraser of London
Merchant, what they afterwards denied to William Goodall of the House of Watson
and Rashleigh in a Case of a similar nature ; which last imputation is of the most
serious nature and consequence to your MEMORIALISTS affected thereby, and to
GOVERNMENT.
That when the Attorney Geneial was call’d upon to avow and support what he
had advanced in this behalf, and specially required so to do by the Legislative Council,
as well as generally, by an Honorable Member Mr. Caldwell, to bring forward any
accusation whatever of partiality, other than that stated in the Questions put to him by
the Council ; he the said Attorney General Did, in place of answering directly to so
plain a question, evade the same under pretext of consulting his Clients, as may appear
by his answer pf record, and having taken time, full six days to prepare himself to
satisfy the Council in this respect, in place of coming forward to support so foul an
Accusation, Did, at the moment of the last adjournment of the Council to wait on Your
Lordship at the close of the Session, present an answer for himself and his Clients
equally evasive, for all which your MEMORIALISTS beg leave to refer your Lordship to the Journals of Council and to the last Answer abovementioned.2
Your MEMORIALISTS therefore humbly pray Your Lordship to do them
Justice, by vindicating the dignity of Government, thus wantonly insulted in their
persons by the King’s Attorney General, and thereby rescue their Characters and
reputation from an attack of partiality so maliciously and publickly brought against
them and unsupported, which may also, upon the slightest inquiry be proved to be
altogether without foundation,—and which is altogether unconnected with any farther
inquiry or investigation Your Lordship may think proper to make into the Charges of
inconsistency in the Judicial decisions of the Courts of Justice Alledged to arise from
the inadequateness and uncertainty of the Laws.3
Quebec l5t May 1787.
(signed) A. MABANE. J . O P . for Quebec
J. ERASER. J . C . P .
P
re PANET. J . O . P .
.
1
See Q 27-1, p. 135. 2
¡For Monk’s statement, see journals of the Council ; Q 27 fi, p. 776. 3
As stated in Dorchester’s letter to Sydney, see p. 588, the Chief Justice was appointed to investigate the matter. The record of the investigation fills 13 volumes, Q 29-1 to Q 34-2, and brings out most
abundantly the very confused, inconsistent,,and arbitrary system of justice administered under the Quebec
Act, but without establishing any wilful corruption on the part of the judges, who were simply the victims of the system.
18—3—38
594 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
R E P O R T OP T H E COMMITTEE OP T H E COUNCIL RELATING TO
T H E COURTS OP JUSTICE. 1
To His EXCELLENCY THE RIGHT HONOEABLE LOED DOECHESTEE, GOVEBNOR IN1
C H I E F
OF THE PROVINCE OF QUEBEC &C
&° &c
The Report of the Committee of the Council, relating to the Courts of Justice.
May it please your Lordship
The Committee from the indefinite reference of the general subject of the Courts
of Justice to their consideration, apprehend that it is Your Lordships wise and benevolent intention to bring the present Jurisprudence of the Colony into view, for the
purpose of such Emendations’ as the Public welfare may require, and to that end they
proceed
First, to State what Courts there are for the administration of Justice, and then
Secondly to subjoin the observations occurring to them, as most deserving of Your
Lordships Attention.
There are Courts for Criminal, and Courts for Civil Jurisdiction.
Two Ordinances of this Province for instituting these Courts were passed in 1777,2
and another in 17853
for regulating the Civil Judicature, under the Authority of the
Statute of 1774 commonly called the Quebec Act.
That Ordinance which relates to the Criminal Jurisdiction4
erects
I
s
‘ A Court of Kings Bench for the Cognizance of all Pleas of the Crown ; and for
the trial of all manner of offences whatsoever ; to be held before the Chief Justice
(or Commissioners that may be appointed for Executing the Office of Chief Justice for the
time being) who shall hear and determine the said Pleas of the Crown, and all manner
of Offences whatsoever, according to the Laws of England, and the Ordinances of the
Governor and Legislative Council of the Province.
I F7
Courts of General Quarter Sessions of the Peace in each of the two Districts
of Quebec and Montreal, by so many Commissioners of each District, as are or shall be
limited in the Commission of the Peace, who are to hear and determine all matters
relative to the Conservation of the Peace, and whatsoever is by them cognizable according to the Laws of England, and the Ordinances of the Governor and Legislative
Council of the Province/
The two Districts of Quebec and Montreal comprehend the whole Province, and
are divided by the River Godfroy falling into the St. Lawrence from the South, and the
St. Maurice from the North ; so that the Eastern District is Quebec, and the Western
Montreal : Each District has a Sheriff and a Coroner, Special Commissions of Oyer and
Terminer may issue for either ; and the same act provides
I
st That the Captains of the Militia may arrest any person “guilty of any Breach
” of the Peace, or any Criminal offence within their respective Parishes, and convey or
” cause to be conveyed such person before the nearest Commissioner of the Peace, to be
“dealt with according to Law.” (1)
(1) That this be a part of the Report For it Mr Finlay
Against it Mr Mabane, Mr St Ours
IIl y That the Captains of Militia, may, when any marks of violence Appear on the
dead body Summon together six reputable householders of his Parish to inspect the
same ; and he shall according to their opinion report the manner and cause of such death
in writing to the nearest Commissioner of the Peace that a farther Examination maybe made therein if necessary.
1
Canadian Archives, Q 27-1, p. 185. This is section B referred to in Dorchester to Sydney, see
p. 587. This report was made before the investigation due to the charges of Atty. Gen. Monk was undertaken. The committee appointed to report upon the Courts of Justice consisted of the Chief Justice, and
Messrs. Finlay, Dunn, Mabane, Fraser, and St. Ours. As will be observed however most of the work was
done by Messrs. Finlay, Mabane and St. Ours. The notes 1 to 9 were placed at the foot of the pages, or
rather on parallel pages in the original m=s., but to avoid confusion they are here given at the end of each
section.
2 See pp. 464 & 471.
3 See p. 529.
* See p. 471.
CONSTITUTIONAL DOCUMENTS 595
SESSIONAL PAPER No. t 8
No other Law has been passed in the Colony so to organize it, as to give effect and
operation to that part of the Statute, by which the Criminal Laws of England were
introduced, as the Law of the Province relating to crimes and offences.
Under the two Ordinances respecting the Dispensation of Justice in Civil Causes,
the Courts are
I
s
‘ A Court for small causes of Ten pounds sterling and under.
I I a
A Court for Causes exceeding that Sum.
I I I d
Courts to hear Causesïn Appeal.
For Your Lordships clearer discernment of the nature of these Judicatures, the
Committee beg leave to present an abstract of what appears to be most material in che
Ordinances with respect to each of these Judicatures, and
I
st As to the Court for small Causes—The Cognizance is committed to either of
the Judges of the Kings Court of Common pleas. His decisions are final, and the rule
Equity and good conscience, as often as Judgment is given by the default of appearance.
In other cases-1
the practice has been to determine by the Law in general, as it was
understood by the Judge to apply to the case.
The Court is held weekly. The process is a declaration and summons—The .Return
Day as the Judge directs—The proceedings are summary—Costs follow the Judgment—
The Execution runs against the moveables unless screen’d by the fraud or violence of
the defendant, and then against his person—It is to be executed by such person as the
Judge nominates, and the Sum may be levied by installments, but all to run out within
three Months.
Confined to no place, the Judges alternately itinerate with their Clerk, twice yearly
to the remoter settlements within the bounds of their respective Districts.
II1
–
5
And in all causes above Ten Pounds two of the three Judges for each District
are required.
This is the great Court of the Country, with original Jurisdiction ; it has by the
Ordinance
” Full power Jurisdiction & Authority to hear and determine, all matters of Con-
” troversy relative to property and Civil rights”—
I t sits weekly in each District ; it may find Fact and Law, but either party has
the right in certain cases of electing a trial by Jury, and the formulary of practice is
of course twofold.
The first process is a declaration & summons, returnable at the day a Judge directs,
it goes to the Sheriff of the District on default of appearance at the two next successive
Court days there is an interlocutory Judgment—There is no Jury of Enquiry ; the
Court assesses the damages, and gives the final Judgment ; an execution follows, but in
that case the plaintiff gives security to refund, if by the reconsideration of the same
Court, that Judgment shall be revers’d ; as it may be, where the defendant being an
Inhabitant of certain remote distances, Viz’ (” beyond the Long Sault on Ottawa River,
” or beyond Oswegatchie1
in the upper parts of the province, or in or upon any place
” below Cape Cat on the South side, and the Seven Islands on the North side of the
” River St. Lawrence “) had not been personally summoned.
Where there is proof of the defendant’s intention to leave the Country, the first
process may be a Capias and require bail.
An issue may be raised Ore tenus ; the Ordinance has the words on that subject,
” That every issue in Law or Fact, to be formed in any cause, shall be made and
” compleated by the Declaration, answer and replication, or by the plea, answer and
” replication in Cases of abatement and bar of the said parties, plaintiff and defendant ;
” and that no other or further pleadings or writings by way of plea, upon such issue or
” matter in Dispute, whether of Law or Fact, shall be received or admitted by the said
” Courts of Common Pleas, as part of, and to be put upon the record, in any case there
” instituted and to be heard and adjudged upon, any thing to the contrary notwithstandi n g — ”
The trial by Jury is at the option of either of the Parties in such suits as are
1
Ogdensburg, or Prescott on the Canadian side of the St. Lawrence.
18—3—38 j
596 CANADIAN ABCHIVEB
6-7 EDWARD VII., A. 1907
” Grounded on Debts, Promises, Contracts and Arguments of a Mercantile nature
” only between Merchant and Merchant, and Trader and Trader, so reputed and under-
” stood, according to Law ; and also of personal wrongs proper to be compensated in
” damages”—
The Jurors are to be
” Merchants or Traders of Lawful age, and also all persons of lawful age being house-
” holders, or occupying Lodgings of the value of Fifteen pounds per Annum rent.”
They are to come only from the Vicinages or Banlieus of Quebec or Montreal ; The
precise limits of which the Committee are not able to ascertain.
The Sheriffs are annually to file two lists in the Clerks Office ; the first to consist
of all Merchants concerned in Trade, and the second of persons of other occupations.
These lists may be remodelled by the Sheriff and Judges, and are to be open to public
resort.
p=«” In causes of Mercantile dispute, or actions of Damage where the total amount, sum,
dealing, or matter of account, agreement or transaction between the parties, exceeds
Fifty pounds, a Jury is to be struck from the first list—and from the second when the
Demand is of Fifty Pounds and less ; and the strikings are to be in rotation, commencing for one cause where the last ended.
Challenges are to be according £b the Laws of England ; but in Causes between
natural born subjects the Jurors are to be natural born, Canadians if the parties are
Canadians, and De Medietate, where they are of different Classes.
The English rules of Evidence are to direct ” in Proof of all Facts concerning com-
” mercial Matters.”
Depositions before a Judge, after notice to the adverse party are admissible in the
case of a Witness about to leave the Province, or being sick, or not able to attend, and
as the Ordinance adds, in cases of evident necessity.
The Verdict is compleat, tho’ but nine Jurors concur.
On the Seizure of Personality in Execution, it shall be published at the Church
door of the Parish, the next following Sunday, notifying the time of sale.—That sale is
to be within the Parish and the time not within Eight days from the Seizure—
A t the request of the plaintiff, the goods may be conveyed to and sold at the
Capital of the District, and the Personal Estate is to be sold first
The sale of the Realty is to be preceded by three Gazette Advertisements, with an
interval of four Months, verbal and written proclamations at the Church door of the
Parish, and a public call upon all incumbrancers to notify their demands at the Sheriffs
Office
The body is liable to Execution when the goods are secreted or the Seizure opposed,
and to satisfy Judgments to Merchants and traders—But upon Oath of the imprisoned
debtor after a months confinement, swearing himself not worth Ten Pounds, he is to
have three shillings and six pence a week for his sustenance from the Creditor; with a
further Augmentation to one shilling and six pence more by the discretion of the Judges,
unless the plaintiff proves a concealment or substraction of effects for the purpose of
fraud
And Creditors have the advantage of carrying the process of execution from one
District to the other. The
I I I a
Civil Judicature is the Provincial Court of Appeals,
I t is constituted by any five Members of the Council with either the Governor,
Lieu1
Governor, or the Chief Justice.
I t has no Original Jurisdiction but only the hearing and determining Appeals in
causes under Ten Pounds, where it relates to a duty to the Crown, a fee of Office or
annual rent, or where a future Right is to be bound and in all cases above Ten Pounds.
But the Judgment below is final, and the right to Appeal suspended upon the
Appellants giving security to prosecute the Appeal and pay the Costs and damages,
in case the first Judgment be affirmed.
I t admits of a Question, whether the Jurisdiction of the Court of appeal is not made
to depend on the giving such security, The security is 1–ft to the Judgment of the
Court below.
CONSTITUTIONAL DOCUMENTS 597
SESSIONAL PAPER No. 18
From the Provincial Court of Appeals, the dernier resort is to the King in Privy
Council, but only in such cases under Ten Pounds as might come to the Provincial Court
of Appeals, and in those above Five Hundred Pounds Sterling.
The only remaining Court in the Actual execution of Authority is,
The Prerogative Court, one in each of the two Districts.
The Judges are constituted by Commission under the Province Seal, and are the
very same persons, that now sit on the Bench of the Common pleas.
Their Commissions give them power to take ye Probate of Wills relating to real
and personal Estates, and Issue letters of Administration, prove Inventories and s
Accounts, ” and to transact whatever may be legal and right for the Just Execution of all
” Wills and Codicils, and touching Estates, Lands, Tpnements, Goods, Chattels, Rights,
” Credits and Effects of all, any and every Intestate ; and to divide, apportion, appro-
” priate and decree the same, to such persons, and in such manner, as by Law it is per-
“mitted, and directed to be done.”
The Question implied by Your Lordship’s reference requiring, not only an enumeration of the Courts, and an analysis of their powers, but what may appear to be expedient for the advancement of Justice, the Committee proceed next to that part of their
Report.
They are very sensible of the weight of that care and circumspection, which his
Majesty recommends, for the Establishment of the proper mode of administering Civil
and Criminal Justice, in a Province so peculiarly circumstanced.
The Committee therefore mean as most likely to answer Your Lordship’s intention,
barely to point at the mont palpable defects in its presentJudicature and beginning with
that branch which more immediately concerns the Crown, further provision seems to be
wanting
I
st To introduce the subordinate and necessary Peace Officers known in the English
Law, as Bailiffs and Constables.
There are no Constables in the Province, and the Captains of the Militia are mere
Volunteers, from whom no service can be exacted as a Duty (2)
(2) ,On this clause, for ‘its standing. Mr. Einlay. against it, Mr Mabane and Mr. St.
Ours, who offer’d in its place the following suggestion
” Messrs Mabane and St. Ours think the clause should run thus ; There areno peace
“Officers in the Parishes of the Province as are known in the English Law, by the
” name of Bailiffs, or Constables, the Captains of the Militia being by the ordinance
“authorised to act as such without an obligation enjoin-‘d on them to do the duty.”
IIl y Suitable Justice-Halls and Prisons—The latter both at Quebec and Montreal being
in a Condition neither consistent with Humanity to the Prisoners, nor safety to the
Sheriffs or the Public, and having been repeatedly presented as insufficient by the Grand
Juries of both Districts.
I I P7
As the Law stands there is great danger of a Defect of Public Justice, in the
difficulty of obtaining freeholders to serve as grand and petty Jurors on trials in
Criminal Cases.
With a Freehold Estate, a competent knowledge of the English Language may be
necessary ; but very few unite both those qualifications, and yet there are many Inhabitants very fit for this Service who have no Freeholds (3)
(3) Advanced tp this length in the Report, Mr. Mabane insisted on taking in here, what
he offers as his Motion in the words following, and it was agreed that a Minute be made
of it.
” Mr. Mabane agreeable to a Motion which he made in Council the 6th of last
” ¡November, and which was withdrawn upon assurance given that the object of it would
” be taken into consideration by the Committee which was to be appointed for the
” Courts of Justice, finding that in the Report proposed by the Chairman no notice
” taken of that important necessary business, has made out, tho’ very sensible of his
” want of sufficient abilities the Heads of an Ordinance for promulgating to the people
” of this Province the principal parts or Articles of the English Law which he will
” subjoin to the Report as soon as it can be copied, for His Lordship’s information.
598 CANADIAN ABCHIYES
6-7 EDWARD VII., A. 1907
jyiy Tb^ case of the Loyalists from the old Colonies, who to the number of several
thousands have seated themselves since the last War in different parts of this Province,
calls, in the opinion of the Committee, for a very particular attention.
If this Class of the Inhabitants is to be severed from any other District, and
erected into separate Counties, an Act of Legislation will be necessary for that purpose,
the partition of the Province into two Districts, standing at present upon a Law, that
must for that purpose be repealed (4)
(4) On putting the Question as to making this Clause a part of the Report.
n
0TM
l
Agsl it—Mr. Mabane, Mr. St. Ours j -I~-ni’ in-T, n/r a¿ r\ r -A- substitute to be offered next meeting—°
The Substitute Ofifeftt—
Tho we are sensible that every attention compatible with Law and the- good
Government of the Province should be given to the Loyalists, we beg leave to observe
to Your Lordship that by far the greatest part of the Loyalists who took up arms in
Defence of his Majestys Government during the Course of the Rebellion, are already
settled in this Colony or those of Nova Scotia, New Brunswick and their dependancies
To this class of men Government is bound by Justice and gratitude to give
every protection and assistance. There may be of these meritorious people in this
Province (Their wives and children comprehended) about Six thousand ; of them a
great number are Emigrants from North Britain who served in the 8ith Regiment, the
Provincial Corps of Sir John Johnson, and others ; who assuredly cannot be supposed
to have any predilection for Laws of which they are totally ignorant. Every precaution
was taken to make the Loyalists, and others before they were disbanded acquainted
with the conditions upon which the Kings Lands were to be granted, and none of them
couldjfbe ignorant that by fixing their residence in this Province they became subject to
the Laws of it.
In framing Laws for the Province consideration shou’d certainly be had to the
opinions & customs of 113,000 natives, rather than to those of 6000 Strangers—
The number of Loyalists settled above Montreal does not appear at present to
require a separate District to be erected, tho’ that measure may become necessary in a
few years ; but by that time the state of the upper Countries, after the evacuation of
the Posts without the limits of the Province being known the Legislative Council will
be better able to deliberate upon the Measure, with precision and Certainty—
With regard to the great number of Emigrants from the United States of
America, who we are told, may be expected to resort to this Province provided the
Laws were made agreeable to them, we think it our duty to observe to Your Lordship,
that as these men did not stand forth in Defence of His Majesty’s Government they
can in general have no Claim to its Justice or Gratitude ; They are discontented with
the Taxes and other Grievances which abound in the american States, and are therefore willing to seek an asylum in the British Colonies. I t may be Policy to admit
them; but for many reasons they should be encourag’d to settle in the Colonies where
the Laws and form of Government are most agreeable to their Ideas, such as New
” Brunswick, Nova Scotia, the Islands of Cape Breton and St Johns : The Climate in
” the latter is temperate, and the lands fertile. The insular situation makes it easy
” for Great Britain to protect and keep it as a Colony. The Province of Quebec may
” be considered in many respeets as a frontier to the remaining British Colonies. Its
” inhabitants are numerous, and by Religion, Language Laws and Customs are the
” class of men the least likely to coalesce or unite with the neighbouring states of
“America.”
” I t is most humbly submitted to Your Lordship whether or not sound policy does
” not require that they should continue as they are”—
In 1766 when Governor Murray caused a Recensement to be made, the Canadian
men, women and children amounted to 65000. In 1784 when Governor Haldimand
caused another Rescensement to be made, their numbers amounted to 113,000.
CONSTITUTIONAL D.OGVMENT& 599
SESSIONAL PAPER No. 18
From this state of the population during the period of 18 years, your Lordship
may form an idea how much the Canadians will increase in 30 years, and there will
not be wanting men to cultivate the Lands which remain to be conceded, or to carry on
the Trade of the Colony in all its different branches.
V
ly The Committee conceive it to be their duty not to omit the suggestion, that
the Province remains to this day, without a Court of Exchequer for the regular Estreat
of His Majesty’s casual Revenue of fines and forfeitures in the other Courts ; an object
to which it becomes the Legislature to attend not only in fidelity and gratitude to the
Crown, but in Justice to the Colony, the King out of His Royal goodness having applied
his whole Revenue, Territorial & Casual to the support of the Government of the
Province (5)
(5) On the Question whether this Clause stand 2
For it Mr. Finlay
Against it Mr. Mabane.
doubted, by Mr. St. Ours.
Mr. Mabane offers what follows. ” There is certainly no court of exchequer in
” the Province ; but to this day there has been no Inconveniency felt from the want of it.
” The Sheriff and Clerks of the Court accounting every Six months to the Receiver
” General for the casual Revenue.
• ” With regard to the Territorial Revenue if it has not been fully revised it has not
” arisen from any deficiency of Law or authority in the Courts of Common pleas, but
” from the Indulgence of Government”— ,
Yl’y ^hg Committee on the other hand, cannot avoid the Remark, that tho’ the
present Ordinances enact what the King has been graciously pleased to recommend,
Appeals for the security of the property of the subject in Civil causes, a Clause is still
wanting to authorize what His Majesty has enjoined, that appeals be also allowed, even
in prosecutions in His Majesty’s own name for any fine that shall exceed the Sum of
One Hundred Pounds Sterling—
And as it is on the Grown Side of the Kings Bench Court that inferior Jurisdictions are Kept within the bounds of their Authority, and Magistrates held to their duty
by the Writs of QUO W A R R A N T O and Mandamus. &c, and the liberty of the subject protected, and it should neither be in the Power of that Court, to adjourn nor
prolong the Sessions at pleasure, it appears to the Committee to be requisite, that its
terms and return days be fixed and ascertained.
On the Civil Judicature
the Committee beg leave to observe,
I
st That it is in their opinion much to be regretted, that the Common Pleas, a
Court so respectable as that tribunal ought to be, to which causes of the highest Consequence are entrusted, holding the right of deciding in the first instance upon every
subject of property, in Actions Real, Personal, & mixed to an indefinite value, should
be charged with, and disparaged by a perpetual attention to the petty litigations under
the value of Ten Pounds.
The Remedy seems to be a Law, enabling Your Excellency by a Commission to
divide the Province into Precincts or Circles, consisting of two or three contiguous
Parishes ; and to consign the cognizance of small causes not to Justices of the Peace
(who by such a mistaken Policy, will be drawn aside from their proper duly in support
of the Government & the conservation of the public tranquility) but to two or three
Gentlemen of the Precinct or Circle, proceeding summarily, according to good conscience,
in a weekly Court of Requests, nearly similar to those lately established in different
Districts and Towns in England ; and by dispensing Justice in a quick, cheap and easy
manner, to a convenient neighbourhood, releiving the poor, and promoting that Industry
which prevents vice and disorder, and is of the greatest utility to the common weal.
But if for want of Public Spirit this measure should not be practicable in the old
settled parts of the Province, (which they are not willing to believe) the Committee
humbly conceive some such Law, must be indispensably necessary for the new Districts,
which, as consisting of English Loyalists & being very remote, cannot be left without
such Courts for the Adjudication of small causes, as well as what they have also been
600 CANADIAN ABOH1THS
6-7 EDWARD VII., A. 1S07
accustomed to, an inferior-Court of Common Pleas for the trial of Actions to Twenty,
Thirty, or Forty Pounds, according to the Course of the Common Law. (6)
The draft of an Ordinance for the trial of small causes is before the Committee.1
(6) On the Question whether this Clause stand ?
For it—Mr. Finlay.
Mr. St. Ours doubts on the Clause.
Mr. Mabane offers the following remarks, to be inserted—
” With regard to the Courts of Common Pleas having been charged with the
” determination of small Causes begs leave to observe to Your Lordship that at the
“Establishment of Civil Government in 1764 in order to prevent the necessity of the
” Inhabitants repairing from the distant parts of the District, there was an Ordinance
” passed authorising the Justices of the Peace to take cognizance of debts &° under
” the Sum of Ten Pounds.3
Many abuses arose from this Institution, and in the year
” 1770 an Ordinance of the Governor & Council,was passed
3
taking away the Juris-
” diction from the Justices of the Peace, and in order to prevent the Inconveniences
” resulting from the Change, required the Judges of the Court of Common Pleas to make
” a Circuit twice a year in their different Districts for which they have no allowance of
” any kind, and established a Weekly Court in the Towns of Quebec and Montreal
‘• where one of them was obliged to be present & determine Causes under the sum of
” Ten Pound?, and in these Causes very frequently points of Law of great Intricacy
” are involved j but if any method can be fallen upon to free the Judges of the Common
” Pleas from this burden without detriment to the Public, Mr. Mabane as one of them
” would be very glad of it ; but it is with regret that he doe3 not think the remedy
” proposed however well intentioned, and However ingenious applicable to the circunv
” stances of the Province.”
IIl y If it should be the choice of the Legislature to continue the Course of the
Court of Common pleas, in those parts of the Districts that remain, after the new
Counties are formed, as it stands at present regulated, by re-enacting the Substance of
the Ordinance of 1785, which is nearly expiring, the Committee humbly submjt whether
(among other amendments) it will not be very necessary so far to alter both Ordinances,
as to vest the Provincial Court of Appeals in future, with Authority to adjust the
matter of the Security to be given by Appellants for staying Execution of the Judgment
in the Court below. (7)
(7) On the Question, whether this Clause stand 1
For it—Mr. Finlay
Mr. Mabane observed that, it is his opinion the Court of Appeals have this.
Authority at present, and Alledges that the Court has exerted it, in more cases than one.
Mr. St Ours is in Doubt on this clause.
Ill 1 7 Upon due Consideration of the Copies of His Majesty’s Twelfth afld Fourteenth Instructions,* by your Lordship communicated to the Council (and heretofore by
General Haldimand on the 30th of August 1781) the Committee are further of opinion^
that no reasonable objection will lay against the Trial by Jury in any personal Action,
if it be at the same time enacted for the security of His Majesty’s Canadian Subjects,
that they shall have the benefit and use of their own Laws, TJsages and Customs, in all
Controversies respecting titles of Land, and the Tenure, Descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of Personal Property of
Persons dying Intestate, according to the full intent of the said Statute of the 14th year
of His Majesty’s Reign. (8)
(8) On the Question whether this Clause Stand ?
For it, Mr. Finlay
Against it Mr. Mabane )
Mr. St. Ours, f
1
This is the draught of an ordinance summarized in ITinlay’s note to the Bill of the Chief Justice for
the better administration of justice &c. See p. 676. 2
Referring to the Ordinance of Sept. 17th, 1764. See p. 149.
3 See p. 280. 4
See p. 555.
CONSTITUTIONAL DOCUMENT® 601
SESSIONAL PAPER No. 18 *
They offer a note for Entry, and desire that certain memorandums of the Council
in 1785,1
may accompany the Report :—and a List of the Jurors for Quebec.2
The Jiote. ” With regard to the Article of the proposed Report relative to the
” trial by Jury, Mr. Mabane & Mr. St. Ours cannot agree to it : however as the
” Ordinance expires with the approaching sessions, and therefore must be renewed, or
” another substituted in its place, they only beg leave TO annex for his Lordships infor-
“mation a Copy of Mr, Mabane’s dissent from the Register of the Council a n d a n
lt authenticated list of the J urors in the town and Banlieu of Quebec, which supports
” the objection to the Trial by Jury in civil causes—•
IVly As a Court of Chancery is essentially necessary in the English system to perfect the Administration of Justice in Civil causes, and the exercise of this Trust, as well
as that for those branches of the prerogative Courts which relate to Marriages and the
probate of Wills, and the granting letters of Administration, are vested in Your Lordship, the Committee presume no farther, than barely to Suggest, that the Subordinate
Officers for the first of these Courts remain to be appointed.
And that the business of the Common Pleas, well entitles its Judges’to an exoneration from the burden of the Prerogative Court,3
if the duties of both in the same persons
were compatible ; which, to say no more, is very questionable, if it is the right of the
Former, to issue prohibitions to the Latter, in cases where its powers are extended
beyond its Authority; evinced as it is, in the constant practice of the Common Bench in
Westminster Hall (9)
(9) On the Question whether this Clause shall stand 1
Mr. Pinlay for it
Mr. Mabane ) . , .,
Mr. St Ours } a
g
a m s t li¡
Messrs Mabane & St. Ours desire the following entry & that the Papers referr’d to in it
may accompany the Report—
” With regard to the Court of Chauncery Mr. Mabane and Mr. St. Ours, beg leave
” to anex for the information of your Lordship a Paper in the French Language wrote
” by Mr Panet one of the Judges of the Court of Common Pleas.4
” Mr. Mabane takes the liberty to observe that the Power which the French Law
” gives the Judges to interrogate the parties upon Oath, Surfaits et Articles pertinent
” to the cause in dispute, renders the Court of Chancery in a great measure unnecessary.”
” This Power is much regretted by Judge Blackstone not to be inherent in the
” Courts of Justice in England, and has been unwarily taken away in Commercial
” causes by an Article of the Ordinance which establishes the proof of Pacts in Com-
” mercial matters to be according to the rules of. Evidence in the English Law, tho’ the
” power still remains with regard to other causes ; This instance of itself evinces the
” great delicacy and deliberation with which changes should be made in the municipal
” Law of any Country, for with the best Intention in the world the Legislators (espe-
” cially in a conquer’d Country) may do a great deal of hurt instead of good, but this
“may be remedied in’restoring the Power when the Ordinance shall be renewed”—
” With regard to that part of the Report which relates to the Prerogative Court,
“Mr. Mabane and Mr. St. Ours beg leave to annex a Paper wrote by Mr. Panet for the
” information of His Lordship”—5
” Mr. Mabane did DOÇ consider the Commission fiorn Tour Lordship as necessary ;
” but as by His Majesty’s Commission to Your Lordship, the granting Letters of Ad-
” ministration is reserved to the Governor of the Province—He acted under it with
” great chearfulness as a proof of Your Lordships Confidence in Him, but never con-
” ceived that the English .words in it, can make affy alteration in the Law as Established by the Statute of the 14th of His present Majesty,” and adds, that the Judges of
1
Given below ; see p. 602.
2
Given below ; see p. 606. 3
Varioub papers and reports with reference to the Jurisdiction of
in Q 56-3, p. 773. 4
For Mr. Paneta paper on this subject see below, pp. 607 & 609. 5
For this paper by Mr. Panet see below, pp. 608 & oil. 6
The Quebec Act.
the Prerogative Court will be found
602 – CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
” the Court of Common Pleas, have no Salary nor have ever taken one farthing of fees
“from the People, for the Business in the prerogative Court.
Signed by order of the Committee
Wm. Smith. Chairman.
Quebec II a 1 January 1787.
All which is most humbly submitted, by Your Lordships most obed’ and most
humble Servants
Quebec Hugh Finlay
llt l lJan> 1787 A. Mabane.
P. R. St. Ours.
THE MEMORANDUM OF COUNCIL BEFEERED TO IN NOTE 8.1
8
t t of April 1785.
Read Article 27 of the projected Ordinance which was unanimously rejected
Mr. Mabane propos’d an additional Article to the following purpose. ” Provided
” always and it is hereby enacted and ordained, That nothing in this Ordinance or any
” Article thereof can, or ought to be construed to have introduced any part of the
” English Law, which is not expressly mentioned ; or to have made any deviation from
” the Law and Usage of the Province, which is not clearly and expressly mentioned by
” the words, any Law, Usage or custom to the contrary notwithstanding.”
9
th April 1785.
” Mr. Mabane agreeable to tne notice by him given yesterday moved as follows>
viz. “Tho’ from everything which has appeared in this Sessions I am more than ever
convinced that neither the circumstances of the Province nor any urgent necessity requires an innovation from the Municipal law of the Country of so great importance as
the admission of the Trial by Jury in Civil causes—Yet as the Council has voted that it
should be adopted under restrictions, I think it is the duty of every Member to suggest
the mode which appears to him most conducive to the good or the least hurtful in his
idea to the interests o’f the people—I therefore propose that in place of the 10th Article
reported by the Committee and rejected by the Council now standing the 9th in the
Ordinance, one to the following purpose should be substituted, viz*.
” That it be enacted any Law, Usage or Custom to the contrary notwithstanding,
” that in Actions or Suits at Law, in the Courts of Common Pleas, grounded on debts,
” promises, Contracts and Agreements of a Mercantile nature between Merchant and
” Merchant Trader and Trader, and in all actions and Suits where Compensation is to
” be made for personal wrongs—The Tryal by Jury may be had to establish the matter
” of fact in. the first cause, and to assess the amount of Damages in the other, Provided
” nevertherless That it is clearly understood that in Actions or Suits at Law between
” persons who are not natives of the province, and in Actions or Suits between persons
“who are natives of the Province The tryal by Jury shall be had at the desire of either
” of the Parties and that in such Actions and Causes as above where only one of the
” parties shall be a native, the tryal by Jury is not to be had except at the desire of
” both parties, and in all causes or Suits between persons npt natives of the Province
” the Jury shall be composed of persons who are not Natives of the Province, and in all
” Causes or Suits between Natives The Jury shall be composed of Natives only, and in
” all Causes and Suits where one of the Parties may be a Native and the other not a
1
Canadian archives, Q 27-1, p. 209. This is the memorandum referred to in note 8 of the foregoing
report, (p. 601). It consists of extracts from the journals of the Legislative Council relating to thepassing
of an Ordinance to regulate the proceedings in the courts of civil judicature, &c. (see p. 529). The journals
covering this period are given in Q 26-1, pp. 256-286.
CONSTITUTIONAL DOCUMENTS 603
SESSIONAL PAPER No. 16
” Native the Jury shall be composed one half of Natives and the other half of persons
” not Natives.”
Resolved that the Question be put, whether the proposition of Mr. Mabane shall
be adopted or not and being put, the voices standing 6 Ayes and 11 Noes voted and
Resolved in the Negative.
Copy Articles 9th and 10″1
referred to as proposed by the Committee and rejected
by the Council.
Art 9th.—And be it ordained and enacted That in all Causes, Suits, and Actions
to be prosecuted in any of His Majesty’s Courts of Common pleas, or removed in Appeal
therefrom, which shall be grounded upon Debts, promises, Contracts and Agreements
of a Mercantile Nature, the same shall be heard, considered and adjudged According to
the Ordinance of this Province in that respect particularly provided, and the Commercial
and Common Law of England save and except as hereinafter provided—
Art. 10th.—That all and every person having Suits at Law and Actions in any of
the said Courts’ of Common pleas grounded on debts, promises, contracts and agreements whether of a Mercantile or other Nature, and also of wrongs proper to be compensated in damages may at the option & choice of either party have and obtain the
trial and Verdict of a Jury, as well for the Assessment of Damages on personal wrongs
committed as the determination of matters of fact to be established in any such cause,
and that the Verdict of such Jury shall be binding upon the parties in every respect
and so far as the same by the Laws of England, the Verdict of a Jury legally could or
ought to be of Validity force and Effect—Provided always that the Agreement of nine
of the twelve Jurors who shall compose such Jury shall be sufficient and effectual to
return a Verdict and that the same so made and returned shall be held as legal and
effectual to every intent and purpose, in as much as if the whole twelve Jurors had
agreed therein. And the Clerk of the Court shall set down the names of the Jurors on
the Register of the Court in every cause where Verdicts may be returned as abovesaid—
Provided Also that in all such Causes and Actions that may be between His Majesty’s
natural born Subjects of Great Britain, Ireland or the Plantations and Provinces in
America, the Juries in such causes shall be composed of such natural born subjects as
abovesaid and in All Causes and Actions between His Majestys Canadian or new Subjects,
the Jury shall be composed of an equal number of each, if such be required by either of
the parties, in any of the above mentioned instances”—
11th April 1785.
Resolved that the Question be put upon Mr. Mabane’s proposition of Yesterday,
” Whether the Article by him proposed shall make part of the Ordinance or not.” The
Question being put, and the Voices standing 8 Ayes and 9 Noes voted and resolved in
the negative. Settled the title of the Ordinance to be as follows viz* ” An Ordinance to
” regulate the proceedings in the Court» of Civil Judicature and to establish Trials by
” Juries in Actions of a Commercial Nature and personal Wrongs to be compensated in
” Damages.”
13t t April 1785.
Mr. Mabane presented and read in English and French his reasons of dissent from
the Resolutions of the Couücil upon the Ordinance for regulating the proceedings in the
Courts of Civil Judicature &° as follows viz’.
” Having during the Course of the Sessions declared myself averse to Innovations
” in general in the present circumstances of the Province, I think it my duty now to enter
” upon the Journals my reasons of dissent from a resolution of the Council whereby the
” trial by Jury in Civil causes is adopted under restrictions.”
The ground work of this material change in the Municipal Laws of Canada is said
to be the 12th and 16th Articles of the Kings Instructions,1
the first of which was sent
to His Excellency Governor Carleton in the year 1774 or 5 soon after the Act of Par1
See pp. 474-5. The instructions given to Haldimand in 1778 simply continued those given to Carleton in 1775 (see p. 419) with the addition of a few new items, chiefly contained in article 16. See p. 475.
604 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
liament which regulates the Province of Quebec had been passed, and the Second of
April 1778 was transmitted in that Year to His Excellency Governor Haldimand subsequent to the Ordinances which had been made by the Legislature of this Country.
I therefore put a very different Construction upon the Royal instruction from that
which those who have voted for the Innovation have done.
The 12
th Article of the Instruction recommends to the Consideration of the Council
whether the Law of England may not be at least in part the rule of decision in personal
actions &ca and the 16th Article transmitted to the Governor in 1778 makes mention of
Ordinances having been framed and Ordained for establishing Courts and directing a
proper mode of administering Civil and Criminal Justice Conformable to the Spirit and
intention of the Act of Parliament therein mentioned and recommends the continuing
amending or inforcing such ordinances or making any farther or necessary change” and
regulation in the courts established or in the mode of administering Justice Provided
that such Ordinances be strictly conformable to the act of Parliament and the tenor of
these Instructions—I am therefore fully persuaded however inclined His Majesty might
be to recommend useful and necessary deviations from the Laws of this Province Established by the Quebec Act no such material and fundamental Alteration as that of the
Introduction of the Trial by Jury could be meant or intended, because such would be
contrary to the spirit and intention of the Act of Parliament which with a generosity
and liberality becoming the British Nation gives to the Canadians their own Laws,
Customs and Usages—•
2
aily Experience has shewn numberless inconveniences attending the Trial by Jury in
this Province whilst that Mode subsisted from the year 1764 to the year 1775. Pew
people who were then in the Province can be ignorant of these inconveniences or how
little Acceptable the mode of Trial by Jury was to the people or how hurtful it was to
their Interests. Juries were at that time optional, but instead of being in repute, it is
a fact well known that towards the latter years of the period in which they subsisted
few causes were tried by Jury. I t appears by an Authenticated List or Extract from
the Record of the Court of Common pleas for the District of Quebec laid before the
Council that for upwards of seven years from October 1768 to February 1775 there were
only 58 Causes tried by Jury in that Court and of these several were absentee causes.
or suits brought against persons absent from the Province, which by an Ordinance
behoved to be laid before a Jury and therefore cannot be said to be at the desire of
either party.
The petitions of the Canadians which procured the Quebec Act (14 Geo : 3. Cap 83)
and the undeniable Evidence which the Preamble of that wise and Salutary Law affords
of the sense which the Parliament of Great Britainn at that time entertained with
regard to the impropriety of changing the Laws and Usages of a numerous people and
of an extensive Country, as well as the inadequateness of the system which had been
introduced in room of the Ancient Law, of which the trial by Jury in Civil Causes at the
option of the parties was a principle part, is in my opinion, conclusive, because every
circumstance and every argument against such a change operates as powerfully at this
day as it did then, and perhaps more so from the late revolution in America.
I therefore cannot agree with those who in making regulations for this Country pay
not sufficient attention to the total difference of circumstances in almost every particular
from those of England, where the trial by Jury has been coeval with the Law itself.
Indeed nothing can afford more convincing proof of the impropriety of the trial by Jury
in Civil causes than the stretches that have been made to accomodate it to these
circumstances viz. By making the Agreement of nine of the Jurors a Verdict, and
changing the qualification of Jurors from the Laws of England. These circumstances
suffice to shew that this Province is unfit to receive the Trial by Jury as practised in
England. The unanimity of the 12 Jurors is considered by many Authors as one of the
Excellencies of the Institution and from the difficulty of finding Jurors in this Country
unconnected by Interest and friendship with the Parties, the deviation from the Laws
of England appear to me peculiarly unfavourable to the London Merchant as well as to
the Canadian Merchant or Trader—The Qualification of Jurors instead of being debased
from what the English Law requires perhaps ought to have been augmented.
CONSTITUTIONAL DOCUMENTS 605
SESSIONAL PAPER No. 18
3
raiJ The Changes from the french law that were made by the Ordinance of 1777,1
in favor of commerce, such as the introduction of the English Law of evidence in Commercial Cases and the attachment of the person as well as of the Effects for the satisfaction
•of all debts due to Merchants for goods by them sold, shew’d no want of attention to
the interests of trade, and His Majesty’s 12th Instruction and therefore no doubt could
be entertained, that the Council would, as far as in Justice it ought, extend its deliberations in favor of commerce and in protection of the British Merchant, but much might
have been done without going so far as to erect a new Tribunal in the Country unknown
to its fixed Laws, and which in practice will be found in many respects incompatible
with them. The examination of Experts known to the french law served the useful
purpose of establishing the matter of fact independent of the Judges, in difficult and
uncommon cases, as well as proving the practice therein and fixing valuations on all
disputed property and “Workmanship, and in settling intricate Matters of Account &°* ;
The French law provides Arbiters—In these Cases the Law is written and the decision
of the Courts m subject to review
• Wherqas by the Introduction of Juries the Canadian Merchant or Trader sees no
longer the rule of decision of his property in litigation which is or may be absorbed in
the general Yerdict ot a Jury.
i
my—Tho’ convinced by the experience of 24 years constant residence in the
•country and 20 years study and practice of the law as a judge, that the trial by Jury
in Civil Causes .was improper in general ; yet as the Council had voted the contrary I
thought it my duty to propose in my turn that mode which I conceived the least prejudicial to the Canadians, and accordingly did make a proposition of the 9th instant
entered upon the Journals, but the Council rejected it, tho it complied in everything
with the desires of the British Subjects, except that it gave to the Canadian Merchant
in his disputes with them in commercial cases the choice of having his property decided
agreeable to the Laws and usages of his native Country, .which by the act of Parliament were granted to him without reserve, and that he should not be forced into a mode
of trial to which he might be averse.
5*wy When I consider the 9tk and 10lh Articles of the Ordinance proposed by the
Committee of which a Copy is annexed, I thought it my duty to propose an additional
Article which is inserted upon the Journals and which could serve no end but to quiet
the minds of the Canadians and reconcile them to the change made in the Ordinance,
by giving them the most positive assurances that nothing which’ was not clearly expressed was innovated—This Article however salutary was rejected solely by the same
Majority which at the Commencement of the Sessions voted against postponing the
consideration of the new Ordinance till next Sessions—I have further to observe that
the time was improper for changes of this nature and that more compleat evidence of
the necessity or practicability of intro lucing Juries in civil causes than vague lists of
names laid upon the table should have been produced to the Council, a minute enquiry
ought to have preceded the business and every necessary preparation made before hand
For these reasons I dissent from the resolution of the Council and shall be much
satisfied if experience shall prove that I am wrong m my opinion and that the innovation will be found useful to the People.
(signed) A: MABANE,
1
See p. 466.
606 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
THE LIST OF JUEOES EEFEREBD TO IN NOTE
Names Occupation
Joseph Descheneau Esquire
Louis Langlois , Merchant
Michael Longvall D°
Francois Pomereau , D°
Antoine Serindac. 5. .. „. . . . D°
Jean Baptiste Guirault D°
Jean Baptiste Le Brun D°
Cha3
Berthelot D°
Jacques Perrault D°
Louis Fromenteau. 10 , D°
Jean Bte Le compte D u p r é . . . . Esqr
Pierre Marcoux Merchant
Louis Marchand D°
Pierre Dufan D°
Louis Duniere—15 D°
Michael Cornud D°
Louis Freemont D°
Charles Pinguet D°
Jacques Perras D°
Liberal Dumas—20 D°
Charles Voyez D°
Antoine Raby D°
Joseph Duval D°
Amant Primont D°
Josep Marie Cherrier—25 D°
Louis Turgeon Merchant
J. Bapte Brassard D°
Antoine Gosselin D°
Etienne Gouvereau D°
Ant e
Cui-eux S’ Germain D° .
Alexis Monjeon D°
Henri Crebassa D°
.Francois Duval , Ü0
Charles Guiyrand. fils D°
John Lynd. D°
John M°Cord, Junior , D°
John Munroe D°
William R o x b o r o u g h . . . . . . . . . D°
Matthew M0Mder D°
Robert Woolsey D°
John Melvin , Auctioneer
Thomas Aylwiu , Esquire
Names Occupation
William Lindsay Esquire
John Purss Merchant
Constant Freeman D°
Adam Lymburner. D°
Robert Willcocks DNathaniel Taylor Esquire
Thomas Sketchley Auctioneer
John Young Merchant
Henry Cull , , D° •
Robert Lester D°
James Todd – . . . , . . . D°
David Barclay D°
John Blackwood . „ D°
Alexander* Davison , D°
M
r
M°Nider D°
William Burns Auctioneer
John Painter Merchant
William Gill D°
John Jones , D°
John Pagan D°
Simon Fraser. Junior D°
Roderick Fraser D°
John Buchanan D°
James Johnston Esqr
John Antrobus.. Merchant
Simon Fraser—Senior D°
Richard Dalton D° *
Matthew Lymburner D°
Obadiah Aylwin D°-
Alexander Willson D°
Meredith Wills D°
Andrew Cameron D”
Jacob Rowe D°
Alexander Ross D”
David Ross. D°
John-Walter D°
George Irwin D”
Ezekiel Freeman D°
David Shoolbred D°
John Lees D°
William’ Lindsay, d unr
D°
George Stuart D”
(signed) A. MABANE.
P. PAÏTET.
1
Canadian Archives, Q 27-1, p. 224.
CONSTITUTIONAL DOCUMENT® 607
SESSIONAL PAPER No. 18
A PAPEE BY ME JUDGE PANET, EEFERRED TO BY NOTE 9. 1
Des Interrogatoires sur faits et Articles
Du Tems du Gouvernement françois il n’y avoit point de Cour de Chancellerie en
Canada, cependant Le Conseil supérieur de Quebec avoit le pouvoir de donner des
Lettres d’Emancipation et de Restitutions Contre les Actes susceptibles d’estre Rescindez, ces Lettres etoient addressees aux Juges des Jurisdiction inférieures qui prononcoient
à leur Enthezinement ou a leur rejection, il y avoit appel des Jugements de ces Cours
au Conseil—•
On ne souffroit pas beaucoup ou pour mieux dire on ne souffroit pas, de ce deffaut
de Chancellerie puisque les plaideurs avoient le droit de se faire interroger sur
faits et articles en vertu de L’Ordonnance de Louis Quatorze de L’Année 1667. Enregistré au Conseil supérieur de Quebec,
Ces Interrogatoires etoient bien nécessaires dans des Causes obscures pour
découvrir la vérité ; voici tout au long L’Ordonnance de 1667.2
Article I a
Permettons aux Parties de se faire Interroger en tout état de cause sur faits et
Articles pertinents concernant seulement la metiere dont est Question pardevant le
Juge ou le different est pendant, et en cas d’absence de la partie pardevant le Juge qui
sera par lui commis’ le tout sera retardatoire de L’instruction et Jugement.
2.
Les Assignations pour repondre sur faits et Articles seront ^donnée en Vertu
d’Ordonnance du Juge sans commission du greffe, encore que la partie fut demeurante
hors du Lieu ou le different est pendant, et sans que pour L’Ordonnance le Juge et le
greffier puissent prétendre aucune chose.
3.
L’Assignation sera donnée personne à au domicile de la partie et non à aucun
domicile élu n’y a celui du procureur, et sera donné Copie de L’Ordonnance du Juge et
des faits et Articles.
4
Si la partie ne compare aux Jour et Lieux qui seront assignés ou fait refus de
repondre sera dressés un procès verbal sommaire faisant mention de L’assignation et du
refus, at sur le procès Verbal seront’ les faits tenus pour Confessés et avérés en toutes
jurisdictions et Justice, même en nos cours de Parlement grand Conseil, Chambre des
Comptes, &oa
5.
Voulons néanmoins que si la partie se presente avant le Jugement du procès pour
subir l’interrogatoire, elle soit reçue à repondre à la charge de païer les frais de
L’interrogatoire et d’en bailler .copie a la partie, même de rembourcer les dépens du
premier procès verbal sans pouvoir les repeter et sans retardation du Jugement du
procès—
1
Canadian Archives, Q 27-1, p. 227. 2
This constitutes “Titre X ” of the “Ordonnance de Louis XIV, roi de France et de Navarre, du
mois d’avril 1667.” This ordinance was framed for the purpose of introducing uniformity, simplicity and
certainty into the general laws of the Kingdom of France. This section will be found in Vol. I, p. 124 of
the ” Edits, Ordonnances ” &c. Quebec 1854. The text here given follows the copy in the Public Record
Office, but, on comparison with the text in the Quebec edition, it will be found that there are several variations. Where possible the translation follows the text here given,
608 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
6.
la partie repondra en personne et non par procureur n’y par écrit, et en cas de
maladie ou Empêchement Légitime le Juge se transportera en son domicile pour recevoir
son interrogatoire.
7.
Le Juge après avoir pris le Seiment recevera la réponse sur chacuns faits et
Articles et pourra même d’office interroger sur aucuns faits quoiqu’il n’en ait point
ete donné Copie
8.
Les réponces seront precizes et pertinentes sur chacuns faits et sans aucuns Termes
injurieux et Calomnieux
9.
Seront tenus les Chapitres Corps et Communautez de nommer un Sindic procureur
ou Officier pour repondre sur les faits et Articles qui lui auront été communiquez et a
cette fin passeront une pouvoire spécial dans lequel les réponses seront Expliqués et
affirmés véritables autrement seront les faits tenus pour Confessés et avérés sans
prejudice de faire interroger les Sindics procureurs et autres qui ont agit par les ordres
de la Communauté sur les faits qui les concerneront en particulier pour y avoir par le
Juge tel Égard que de raison —
10 et d’e
Les Interrogatoires se feront aux dépens de ceux qui les auront requis sans qu’ils
peuvent eu demander aucune repetition n’y les faire entrer en Taxe, même en cas de
Condamnation de dépens.
Il seroit à souhaiter que cette Loy si simple fit partie des formes de proceder,
L’Ordonnance dernière garde le silence sur un objet si interressant—
ANOTHER PAPER,’BY MR. JUDGE PANET, REFERRED TO IN” NOTE 9.
1
Des Tutelles et Curatelles.
Du Tems du Gouvernement francois, les Juges de Quebec, Trois-Eivieres et Montreal,
non seulement rendoient la justice en toutes Actions civiles, mais encore procedoient a
L’élection des Tuteurs, Subrogez tuteurs et curateurs sur assemblée de parents et amis
au nombre de sept, ils n’avoient pas des commissions particulières pour ces sortes”
d’objets, cette forme de proceder fut continuée après la Conquête jusqu’à L’Année 1764.
Tems auquel le General Murray introduisit dans les Cours de Justice les loix d’Angleterre ce même Général accorda au Juges Mabane et Fraser des Commissions de
Surrogats.
En Vertu de cette commission le Juge surrogats de Montreal (J’ignore ce qui se
passa à Quebec) au lieu d’Actes de Tutelles donna des Lettres d’administration suivant
la forme Angloise, et obligea les administrateurs a donner des cautions. Ces Cautionnement répugnèrent beaucoup aux habitans plusieurs ne firent point d’Inventaire faute
de pouvoir trouver des Cautions ceux qui en trouvèrent furent obligez d’Envoyer
leur Inventaire a Quebec seul Bureau d’Enregistrement, les frais d’Enregistrement
etoient considerable et diminoient beaucoup le peu de bien qu’ils avoient, cette
nouvelle méthode de proceder Occasiona beaucoup de murmures et de plaintes,
elles parvinrent en L’Année 1767. à son Excellence le General Carleton qui
Enjoignit aux Juges de laisser la nouvelle forme, et de reprendre L’Ancienne connue
plus aisée et bien moin Coûteuse, ce qui fut pratiqué jusqu’au 1775.
1
Canadian Archives, Q 27-1, p. 231.
CONSTITUTIONAL DOCUMENTS 609
SESSIONAL PAPER No. 18
Il auroit été a Souhaiter qu’on eut pensé Lors de la redaction des ordonnances à
promulger les Loix concernants les Tutelles et Curatelles, on oublia des objets si interressants. Les Juges des plaidoyers Communs furent pourvus de Commissions du Gouverneur pour accorder des Lettres d’administration, et sans penser que ces Commissions
n’etoient pas nécessaires, ils se qualifloient de Juges de la Cour des Prerogatives et proceder
aux Elections de Tuteurs et Curateurs suivant la forme et les anciens usages, cependant
ils accordèrent des Lettres d’administration aux anciens Sujets suivans la forme Angloise.
les Juges des plaidoyers Communs prévoyant le danger et les difficultés d’avoir
deux formes de proceder dans une même Province prirent la resolution il y a 4 ou 5 ans
de presenter au Conseil un projet de formes de proceder pour les Actes de Tutelles et
Curatelles il en resultoit plusieurs avantages. 1° L’instruction des Anciens Sujets. 2°
Une forme permanente, d’autant plus nécessaire que les françois n’ont point de Loix
Ecrittes pour ces sortes d’actes, l’usage Constament pratiqué en Canada depuis l’Etablissement du pais tient lieu de Loix mais la pluspart des Membres du Conseil soutinrent
qu’il etoit inutile de faire une Loy à cet égard, vous avez dirent-ils des usages qui
tiennent lieu de Loy Continués les, il fut faite des reflections sur ce qu’on avoit accordé
des Lettres d’Administration suivant la forme Angloise ; depuis ce Tems les Juges ont
continué a donner des Lettres de Tutelles et Curatelles selon la forme françoise, réfléchissants qu’ils seroit dangereux d’avoir deux formes de procedée dans une même Province
•et L’embarras qu’il y auroit lorsqu’un des conjoints par marriage seroit né en Angleterre
et L’autre en Canada, distinction épineuse et sujets à mille difficultés
De L’insinuation et Enregistrement des Donations Entrevifs et des donations faites
•entre conjoints par Contrat de Marriage.
par la coutume de ce pais Toutes donations Entrevifs doit être Enregistrée dans
les 4 mois à peine de nullité, avant la Conquête, L’Enregistrement se faisoit dans les
Registres des Greffes des différentes Jurisdictions et depuis Jusqu’à présent cet usage a
ete continué.
Il est de la plus grande nécessité de laisser aux Juges de la Cour des Plaidoyers
Communs, l’administration de ces sortes d’objets dont ils connoissent la forme, sans cela
il naîtra une multitude de procès qu’on doit soigneusement éviter.
I certify the above from Page [i.e. 180] to this page, inclusively to be a true Copy of
the Originals of Record in my Office.
J: WILLIAMS
Council Office. Quebec
Endorsed B 24th May 1787.
In Lord Dorchester’s ISP 17.
of 13 June 1787.
(Translation.)
A PAPER, BY ME. JUDGE PANET, REFERRED TO BY NOTE 9.
Concerning Examinations on Facts and Evidence.
A t the time of the French Rule there was no Court of Chancery in Canada, but
The superior Council of Quebec had the power of giving Letters of Emancipation and
of Restitution against Acts which could be repealed, these Letters were addressed to
the Judges of the inferior Jurisdiction, who gave Judgment on their Ratification, or
their rejection. Appeal could be made from the Judgments of these Courts to the
Council. «
The people did not suffer much, or rather they did not suffer at all from this lack
•of a Court of Chancery, seeing that the litigants had the right to insist on being examined concerning facts and evidence in virtue of the Ordinance of Louis Fourteenth of
the Year 1667, registered at the superior Council of Quebec.
These Examinations were very necessary in obscure Cases for discovering the truth;
here follows in full the Ordinance of 1667.
18—3—39
610 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
Article I a
We hereby give Permission to all Parties to insist on Examination in any kind of
case, on pertinent facts and Evidence relating only to the affair in Question before the
Judge where the dispute is pending, and in the case of the absence of the party then
before the Judge who is commissioned by him, the whole without retarding the
information and Judgment.
2.
Summons to answer concerning facts and Evidence shall be issued in Virtue of
the Order of the Judge without commission from the record office, even though the
person concerned is residing out of the Place where the suit is pending, and witho’ut an
Order, the Judge and the Recorder have not authority to undertake anything,
3.
Examination shall be granted to any one at the house of the party concerned, and
not at any other house chosen nor at the house of the procureur, and a Copy of the
Order of the Judge and of the facts and Evidence shall be given.
4
If the party concerned does not appear at the Day and Place assigned, or refuses
to answer, a summary verbal process shall be issued making mention of the Summons,
and of the refusal, and in the Verbal process the facts shall be held as Confessed and
proved in all jurisdictions and Courts of Justice, even in our Courts of Parliament,
grand Council, Office of Public Accounts, &ca
.
5.
I t is our will nevertheless that when the party concerned appears before the Judgment of the suit to undergo examination, he shall be called upon to answer to the demand to pay the cost of the examination and of furnishing a copy thereof to the other
party, and also to repay the costs of the first verbal process, without the right to repeat
them and without delay in the Judgment of the case.
6.
The party concerned shall reply in person, and not through a procureur, nor by
writing, and in case of illness or of Lawful Hindrance the Judge shall proceed to his
house to carry out the examination.
7.
The Judge after having administered the Oath shall receive the reply to each fact
and Evidence, and in virtue of his office shall have power to ask questions concerning
any facts, although he may not have been given a copy thereof.
8.
Answers shall be precise and pertinent on each charge, and without any injurious
or calumnious Expressions.
9.
Chapters, Bodies and Communities shall be held empowered to nominate a Syndic,
Attorney or Officer to reply to the facts and Evidence communicated to him, and to
this end shall issue a special power in which the replies shall be Explained and affirmed
to be true, otherwise the facts shall be held as confessed and proven without prejudice
to the examining of Syndics, attorneys and others who have acted by the order of the
CONSTITUTIONAL DOCUMENTS 611
SESSIONAL PAPER No. 18
Community with respect to the facts which specially concern them so that they may receive from the Judge due consideration.
10 and last.
Examinations shall be held at the expense of those who” shall have required them,
without their having the right to demand any repetition nor to enter them as a Tax,
even in case they are condemned to pay the costs.
I t is to be wished that this simple Law had been made a part of the forms of procedure, the last Ordinance is silent on this most interesting point.
ANOTHER PAPER BY MR. JUDGE PANET, REFERRED TO I S ÍTOTE 9,
Concerning Guardianships and Trusteeships.
At the time of the French Government, the judges of Quebec, Three Rivers, and
Montreal, not only administered justice in all civil Actions, but also took action in the
Election of Guardians’Surrogate Guardians, and Trustees, relations and friends to the
number of seven being assembled. They had no special Commissions for this class of
cases. This form of procedure was continued after the Conquest till the Year 1764.
A t the time in which General Murray introduced the laws of England into the Courts
of Justice, this same General granted Surrogate Commissions to Judges Mabane and
Fraser.
In virtue of this commission the surrogate Judge of Montreal (I am not aware of
what was going on at Quebec) gave Letters of administration instead of Acts of Guardianship, according to the Englith forms, and required administrators to give sureties.
The inhabitants were most averse to this .giving of sureties, and many of them did not
make an Inventory, as they were unable to find Sureties. Those who did find them
were obliged to send this Inventory to Quebec, which was the only Registration Office.
The costs of Administration were considerable and greatly diminished the small advantage which they derived from it. This new Mode of procedure caused many murmurs
and complaints, and in the Year 1767 they came to the ears of his Excellency, General
Carleton, who directed the Judges to omit the new form, and return to the Old one,
which was better known and much less Costly. This was the practice until 1775.
I t would have been desirable that they should have thought at the time of the compilation of the regulations, for the promulgation of Laws concerning Guardianships and
Trusteeships, but these interesting points were forgotten. Judges of the Court of Common Pleas were provided with commissions by the Governor for the granting of Letters of
administration, and without considering that these Commissions were unnecessary, they
qualified themselves as Judges of the Court of Prerogatives, and proceeded to the
Election of Guardians and Trustees according to the ancient form and usages, while
they granted Letters of administration to ancient Subjects according to the
English form.
The Judges of the Court of Common Pleas, foreseeing the danger and difficulty of
having two forms of procedure in the same Province, 4 or 5 years ago, formed the resolution of presenting to the Council a plan of forms of procedure for Acts concerning
«Guardianships and Trusteeships. Many advantages resulted from this action. 1st The
Information of the Ancient Subjects. 2a
A permanent form, all the more necessary
because the Freneh have no written Laws for this class of acts. Customs invariably
practised in Canada since the Settlement of the country took the place of Laws, but the
greater part of the Members of Council maintained that it was useless to frame a Law
to this effect ; you have, said they, customs which take the place of Laws, Continue
them ; Objections were raised to the granting of Letters of administration according to
the English form ; since that Time Judges have continued to give Letters to Guardians
and Trustees according to the French form, thinking that it would be dangerous to have
two forms of procedure in the same Province, and considering the Confusion there
18—3—39i
612 CANADIAN ARCHIVES
6-7 EDWARD VI!., A. 1907
would be when one of the parties joined in marriage should have been born in England,
and the other in Canada, an equivocal difference which would give rise to a thousand
difficulties.
Concerning the Introduction and Registration of Donations Intervivos and Donations between those joined by Contract of Marriage
According to the customs in force in this country before the Conquest all donations Intervivos ought be registered within 4 months, under pain of lapsing,
Registration was made in the Registers of the Record Offices of the different Jurisdictions and from that time to the present this custom has been in force.
I t is extremely necessary to leave the administration of this class of subjects in the
hands of the Judges of the Court of Common Pleas, as they are acquainted with the
customary forms. Otherwise a multitude of lawsuits would be the result, which ought
to be carefully avoided.
C
R E P O R T OF T H E COMMITTEE OP COUNCIL RELATING TO COMMERCE
& POLICE W I T H A F E W OTHER P A P E R S CONCERNING THOSE
SUBJECTS, SCORED U N D E R I N T H E I N D E X W I T H RED INK. 1
INDEX.
Page 237 to 258 The Report of the Committee of Council (612)
259 Letter from the Committee of Council to the Merchants of Quebec.
260 Report of the Merchants of Quebec by their Committee to the Committee of Council
(614)
315 * Petition from His Majesty’s new Subjects residing at Quebec, (619) %vith an English translation of it. (621)
32? Letter from the Committee of Council to the Merchants of Montreal (622)
324 An answer to that Letter. (623) ‘
325 Reply to the Answer. (623)
326 Report of the Merchants of Montreal by their Committee to the Committee of
Council (624)
410 * Address from His Majesty’s New Subjects residing at Montreal (628), with an
English translation of it (629)
420 * Letter written by Mr. Joseph Howard a Merchant to the Committee of Merchants
at Montreal.
429 Extract of Imports and Exports into the Port of Quebec for the Years 1783. 1784.
1785 & 1786.
431 Copy of a Petition formerly presented to His Majesty, whereof Duplicates were
annexed to the Reports of the Merchants of Quebec & Montreal.
440 Letter to the Magistrates of Quebec, from the Committee of Council. (630)
441 Letter from the Magistrates of Quebec, in answer to the foregoing Letter. (631)
447 Letter to the Merchants at Three Ri\ era, from the Committee of Council (633)
448 Answer to that Letter (633)
451 * Representation by many of His Majesty’s new Subjects at Three Rivers to His Excellency and the Council. (634)
460 Information concerning the Fisheries.
470 Concerning the Navigation and Pilotage of the River S’. Lawrence.
To His Excellency the Right Honorable Guy Lord Dorchester Captain General and
Governor in Chief of the Colonies of Quebec, Nova Scotia and New Bruns svick and
their Dependencies &c. &c. &c.
THE REPORT OF THE COMMITTEE OP COUNCIL ON COMMERCE AND POLICE.2
May it Please your Lordship.
In obedience to your Lordships commands signified in Council on the 6th
November last, whereby you was pleased to appoint us, to be a Committee to take into
consideration the
1
Canadian Archives, Q. 27-1, p. 235. The index to this Report will indicate the varied and interesting character of the subjects dealt with. Only some of these, however, have a sufficiently direct bearing
upon the constitutional issues of the time to be included in this volume. The page numbers in the left
hand column refer to the copy in the Canadian Archives, while the numbers, in brackets, which follow the
articles, indicate the pages at which those reproduced in whole or in part in this volume will be found.
Those papers referred to in the title as underlined with red ink are marked with an asterisk. As indicated
in the Minutes of Council (see p. 591), those appointed to be members of this Committee were Messrs.
Levesque, Harrison, Collins, Grant and Pownall.
2
See Q 27-1, p. 237.
CONSTITUTIONAL DOCUMENT® 613
SESSIONAL PAPER No. 18
” External and Internal Commerce and regulation of the Police, having
” an Eye to the ancient Laws and usages of the Province, and to report
” to your Lordship our considerations thereon, with as much Dispatch
” a s we should find convenient.”
We now with the utmost diffidence, lay before your Lordship not only Our report,
but a Journal of our proceedings in order to obtain the thoughts of others, more
experienced than ourselves, on objects of such extensive concern to the Wellfare of the
Province, and the happiness of his Majesty’s subjects under your Lordships Government—
At our first meeting as a Committee, on the 13th of November, we perceived the
necessity of calling for the assistance of our fellow citizens on the considerations
committed ; considerations in which the Happiness and greatest Interests of the Country
were evidently to be contemplated.
We therefore thought it our duty (consistent with the powers communicated to us
by your Excellency) to consult the opinions and take the Ideas of the principal
Merchants and Magistrates of the Province, rather than solely to hazard opinions of
our own—
To obtain these in the most unbiassed manner, we immediately wrote to the
Magistrates—Merchants and Citizens of Quebec, Montreal and Three Rivers. We
acquainted them with Your Excellency’s recommendations to us, and entreated their
sentiments. We also wrote to the Collector and Comptroller of His Majesty’s Customs,
requesting an Account of the Imports and Exports and of the Shipping employed in
the Trade and Commerce of the Province since the Peace.
We wrote to Mr. Jas
Frost, Master of the Port, Mr. Steel Master of His Majesty’s
Provincial Vessel the Mercury, Mr. Constant Freeman an experienced Ship Master,
Mr. Chenique and Mr. Peter Fraser experienced Pilots, requesting their^Information
respecting the present state of the Navigation and Pilotage of the River Saint Lawrence,
and the Improvements that might be made therein.
Your Lordship was pleased to order to be laid before us the Application of Levi
Allen Esqr
on behalf of the state of Vermont for Commercial intercourse with this
Province, and through it to Britain and the other Country’s in His Majestys Dominion ;
And at same time, a Letter from the Collector of His Majestys Customs, stating the
Revenue Laws which apparently impeded Such Intercourse.
We received by Your Lordships command two Letters from Mr. Geo. Wm
Howard
a Merchant of Jamaica, and one from Mr. Bannatyne a Merchant of 8′ Christophers,
on the subject of the Trade from the West Indies to thia Province; the importation of
Foreign Molasses, and the Suppression of Distilleries : and Your Excellency was also
pleased to refer to us the observations of Mr. James Grant a Merchant of this place on
the same subject.
By Your Excellency’s command, we received from Cap” Le Maistre a List of His
Majestys Vessels employed on the Lakes Ontario, Erie and Huron ; and from Lieut.
Governor Hope, a Letter and Representation of Mr. Isaac Todd Merchant in Montreal,
respecting the Navigation, and the Transport and carriage of Merchants Goods from,
and to, the different ports or posts, on those Lakes.
Lieut Governor Cox, and John Collins Esqr
have represented to us the state of
the Cod Fishery in the Gulph and river St. Lawrence, and pointed out such regulations
as seem necessary for carrying it on. We take the Liberty of annexing their Papers,
and of entreating Your Excellency’s reference to them—
On the 4th December we received the return or Report of the Gentlemen to whom
we had written respecting the Pilotage and Navigation of the River, which with other
Papers, we also annex for Your Excellency’s Inspection—
On the 8th December we received from the Collector and Comptroller a return or
abstract of certain Exports, Imports, and Shipping (from 1st May 1783 to 1st December.
1786.
On the 27th December, the Magistrates of Quebec pSesented their sentiments
respecting the Amendments which seem requisite in the Police of their District, and
other Objects of useful regulation.
61á CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
On the First January, the return of the Magistrates and principal Merchants of
Three Rivers respecting regulations of Trade and Police.
On the 6th January the Merchants of Quebec delivered their opinions and representations on a variety of objects of Commercial & Political regulation ; to which they
have annexed the Copy of a Petition to His Majesty Transmitted to the Right Honorable Lord Sydney in the Fall of 1785. And on the 27″1
January the Magistrates and
Merchants of Montreal delivered their opinions on a variety of similar and other objects,
to which they have annexed a Petition to His Majesty transmitted Fall 1785—
In these they have deeply and accurately treated, an i Judiciously reasoned, on the
actual Situation & various Interests of the Province. We should therefore be wanting
to them, and to Your Excellency, if we did not annex and recommend their representations to Your Lordship’s most serious consideration and reflection 1
We pioceed to submit our own opinions, as far as we have been able hitherto to
form any—2
EBPORT OF THE MERCHANTS OF QUEBEC BY THEIR COMMITTEE TO THE “HONORABLE COMMITTEE OF COUNCIL ON COMMERCIAL AFFAIRS.3
Article 10Hl—” Recovery of Debts on the Principles of the English Commercial
” Laws, speedy processes, and Additional Laws for the Recovery of Small Debts in the
“Country.”
Observation—The Kings Proclamation of October 1763 promised the future
Settlers in this Province the Benefit of the Laws of England :—Those Laws were
accordingly introduced by an Ordinance of the Governor and Council in September
1764.4
but unfortunately abrogated in all civil causes by the Act of the 14th George : 3a
Chap. 83.5
which statute instead of remedying temporary abuses, introduced great Evils,
particularly to the Trading Interest of the Nation. The Merchants in England and
those of this Trovince have severely felt the Effects and disposition of Laws to which
they were utter Strangers, the principles whereof are anticommercial altogether.
The Custom of Canada is a system so imperfect and defective that the decisions in
the Courts have been arbitrary and destitute of uniformity ; The Court of Montreal
differs in its practice as well as decrees from that of Quebec, both Courts agree in not
Confining themselves to Rules of Law, but occasionally decide on the Equity of the
case contrary to the letter of the Law. Thus the Custom of Canada, the general laws
of France, The Roman Code, and in some Commercial points the Laws of England have
been resorted to ; but the most dangerous of all systems is that of the decisions in
Equity of Courts, strictly constituted as Courts of Law, without the ordinary Rules,
Principles and Maxims of Courts of Equity to govern them.
This Versatility in the decrees of the Courts, alone calls for a soiid system of Laws :
and surely no better can be resorted to than the Laws of England to govern the property
of British Subjects.
The Imports and Exports of the province being upwards of Half a Million a year
and from the nature of the property liable to be more affected by the Laws of the
Country, and the practice of the Courts than any other. We therefore recommend a
re introduction of the Common and Statute Laws of England as the general Rule for
the decision of all matters of Controversy relative to personal property and civil Rights
in all personal Actions grounded upon Debts, Promises, Contracts and Agreements,
whether of a Mercantile or other Nature and also concerning wrongs proper to be compensated in Damages with an exception to the Statutes regarding Bankrupts and other
local laws hereafter to be explained, as inapplicable to the situation and Circumstances
of the British Colonies in America in general, or this in particular—
1
These papers are referred to in the index above, where the page references are gi\ en.
2
As the committee deal almost entirely with economic questions, this section is omitted.
3
See Q 27-1, p. 2G0. Articles 1 to 9 (pp. 200-289) are omitted as dealing with commercial and similar
matters.
4
See p. 149.
5
The Quebec Act, <.ee p. 40J# CONSTITUTIONAL DOCUMENTS 615 SESSIONAL PAPER No. 18 With an exception also to all Real actions or Controversies respecting the titles of Land, and the Tenure, Descent, Alienation, incumbrances, and Settlements of Real Estates and the distribution of the personal property of persons dying intestate, in all •which His Majesty's new Subjects are most interested for the Decision whereof, except in certain cases hereafter to be mentioned, Resort should be had to the Laws and Customs of Canada, but that Juries should be granted in all Courts having original Jurisdiction, if demanded by either party, in all and personal Actions whatever. There must exist some Capital Defects in the Constitution or Practice of all the Courts of Law, on Account of the great delay and Procrastination in the Decision of Causes, which occasions many unnecessary appearances and attendances and creates ruinous expences to the parties. It is found by experience that the frequency of Holding Courts tends to keep up a Spirit of Litigation among the People, without procuring the Effect intended, a speedy administration of Justice ; We are therefore of opinion that stated terms, not more than Six, nor less than four in the year, are more eligible than these Continual Courts, and that the Court of Kings bench should be restored to its former Jurisdiction and powers in civil causes. To grant to Justices of the Peace in the country the powers they heretofore possessed1 in determining matters of property to a small amount under the Ordinance of the 17th September 1764 and thereby to prevent the great expences of distant Suitors to procure Justice, to rectify the rules of practice, and to reduce the Fees and Expences of Litigation in all the Courts, suited to the Abilities of the People, we humbly apprehend would be productive of great good to the province. It would be proper to divide the Province into more Districts, or rather Counties, erecting a Jurisdiction for Three Rivers according to its ancient Boundaries, from St. Anne to Berthier on the North, and from St. Pierre to Yamaska on the south side of the river Saint Lawrence —^—• Inferior Jurisdictions should be granted to Cataraqui2 and to Chaleur Bay3 as Counties, which would give this mutilated Province a respectable appearance, and forward its Settlement, a measure we think, dictated by good Policy. Article 1 I a " The present Establishment for Appeals in Commercial Causes—" Observations—The Defects in the Practice in the Inferior Courts as pointed out in the observation in the last Article, have made their way into the Court of Appeals,4 which for these eight years last past has laboured under a great Disadvantage, namely, that of not having one Gentleman bred to the Science of the Law presiding or sitting in that Court in order to explain the Law, and mark out the Errors in the proceedings if any, to the other Members. Indeed it is much to be lamented that there do not preside in all the Courts regularly bred professional Men, capable of conducting the Business with propriety and Dispatch, to the want whereof, we in some measure attribute the great delays and prolixitys of the proceedings in the decisions of causes, without any imputation on the Judges. The great number and fluctuation of the Members of this Court must also of necessity embarrass Decisions and create Delays. If this Court was in its Constitution assimilated to that of others in His Majesty's Colonies, we humbly conceive that the Alteration would be beneficial to the Subject. Article 12th. The Establishment of a Court of Chancery— Observation—A Court vested with Constitutional powers and Established under wise Rules and Regulations to determine Causes in Equity by an easy process, avoiding as much as possible dilatory pleas, with convenient dispatch and very moderate fees and expences will tend to grant relief to those who actually suffer, or think they do so, under the rigour of legal Decisions in particular cases, A Court thus Constituted, in which one or more able professional men shall have a Seat, is a very desirable Establishment, 1 Before the introduction of the Ordinance of 1770 (see p. 280) which abrogated the powers previously exercised under the Ordinance of 1764, (see p. 149). 2 Afterwards Kingston, the centre of the western settlements of the Loyalists. 3 Afterwards known as the District of Gaspé. 4 The Court of Appeal, like the Executive Council, consisted of any five or more of the members of the Legislative Council. 616 CANADIAN ARCHIVES 6-7 EDWARD VI!.. A. 1907 and what this Province has been deprived of, and many to their great concern have felt the Want of, since the yeaj.- 1775—x Article 13th "On a Registry of all Deeds." Observations—The Frauds committed by Debtors in Mortgaging their Estates for much more than their value, for want of a Public register Office2 are too sensibly felt by Almost every Merchant in the Province—It would be a very salutary measure to record All Incumbrances on real Estates in Order to give them validity and thereby prevent such frauds—And the great objection thereto that it would expose the secrets and situations of Families without reason, may be obviated by enacting that no person shall be entitled to information regarding the Incumbrances of an Estate without making Oath that he is interested therein, and that the Register Keeper shall give the necessary Extract and not allow the books to be examined. But as it has been discontinued so long, and the Justice of such an expost Jacto Law may be questioned by some, and strongly opposed by others, may we not take the medium between the two extremes and recommend that in Case a Law to register pase mortgages and Incumbrances should be impracticable That at any rate an Ordinance be enacted the next Sessions of the Legislative Council for the due registering of a Memorial of all Deeds of Sale, Mortgages, Obligations, Marriage Contracts, Donations, Dowers, or any other Deeds, affecting Real Estates, that shall be passed, within a short limited time, and for the future, which Memorial should specify the heads of the necessary Clauses in a consise manner with a reference to the Originals to have recourse to in case of need, to be furnished by the Notary and recorded by the Party in the Public Register's Office in Quebec within thirty days after such deed shall be passed, together with such other regulations as shall be necessary to ordain relative thereto ? I t might be proper to declare in the said Law, that all leases of Houses or Lands or a Memorial thereof, recorded in the Public Registers shall be binding on the Lesser, and bind the said Leased premises, according to the Covenants, notwithstanding the claim or Right of dispossessing or ousting such Lessee by virtue of the Coutume called Droit de Bourgeois de Paris or by any other Law or Custom whatever— That all Deeds, obligations, Mortgages, and Agreements executed before one or two Witnesses shall be binding on the parties and being recorded of equal validity as though the same had been passed and executed before a Notary, any Law or Usage to the contrary Notwithstanding— Article 14th " On a Bankrupt Law" Observation Public Credit and punctuality in dealings are not sufficiently established, nor is this Province yet ripe enough for the introduction of the Bankrupt Laws of England in their full extent, Yet we are of opinion that a Law is necessary to ascertain the Criterion ef a State of Bankruptcy and to compel the insolvent Debtor in that situation to a surrender of his Books, papers, & property upon Oath for the benefit of all his Creditors, in which Law the right of the wives of all persons concerned in Trade or Commerce, to the real or personal Estate of such Bankrupt, should be ascertained. A distinction should be made in the treatment of a fraudulent and unfortunate Bankrupt, the former should be punished exemplarily yet not cruelly, lest the End be defeated, the latter on a full proof of his Losses and Misfortunes and a faithful surrender of his Effects, after a reasonable time wherein he shall have used his utmost diligence towards the Settlement of his Affairs, should be, with consent of a Majority of his Creditors in number and value entitled to a Discharge. Article 15th "The Tenure on which the Crown Lands are hereafter to be granted, " it being an object connected with Commerce—" Observation—In order to encourage Effectually the Settlement of the ungranted Crown Lands behind the Canadian Seignories and other parts of this extensive province by American Loyalists and other Emigrants—It would be highly necessary, we 1 The Quebec Act came into force May 1st, 1775. 2 Under the French system, mortgages or hypothèques were executed by notaries in whose offices alone records of these were kept ; hence it was practically impossible for any one purchasing real estate or giving credit on the security of it to have any certain knowledge of how many previous obligations were registered against the property. This remained for many years one of the chief grievances of the mercantile element in the Province of Quebec. CONSTITUTIONAL DOCUMENTS 617 SESSIONAL PAPER No. 18 conceive, to make out those Grants in Townships and in free and Common Soccage similar to the Concessions in the province of Nova-Scotia, & New Brunswick, and those heretofore granted in the Royal Governments, now neighbouring States. This is the only Tenure to which English Subjects will be reconciled, and we are firmly of opinion that it will induce a very large number of persons to resort hither to the Improvement of Agriculture, theJncrease of Population, and Extension of Trade. The ancient Feudal System of holding Lands in Fief et Seignueurie as well as en Roture in quality of Vassals, is inimical to a free Commerce, and together with the Constitution of the Government, has greatly tended to prevent the Settlement of Lands and improvement of the Province hitherto, and will still have the same evil tendency until the lands to be granted are actually conceded, or declared to be intended to be so, on a more liberal tenure, for not only the desires but even the prejudices of the People ought to be considered. Nor can this proposed mode of granting new Lands operate any evil with respect to. the ancient Inhabitants of the Country now holding under the feudal system for we see different tenures of Lands in many of His Majesty's Dominions without producing any bad Effects. Measures like these, we are Confident, will soon give this Province the form and figure of a British Colony, bring forth its resources, and raise it into Consequence. Article 16Ul. " That a Standard should be fixed for Weights and Measures through- " out the Province." Observation—To regulate the Weights and Measures on a permanent Basis throughout this Province would tend to the facility of Commerce and the prevention of Frauds. Great abuses exist at this time, scarce two weights or two Measures are found exactly alike—It is not the use of French measures for grain &° and English Wheight for Flour and the like that creates difficulties, the Custom has been long understood, and well established-in those particulars, but it is the irregularity thereof that requires amendment. The proper Officer should procure and keep Stamped Weights and Measures for a Standard, the measure corresponding exactly with the French Minot or demi Minot, the only measure known here for grain, salt &oa—The measure for Linens and Woolens should be the English Yard, or Ell of five quarters of a yard. The Measure for Timber the English Foot of twelve Inches. The measure for Wine and Spirits should be the English Wine Gallon and that for Beer should be the English beer Gallon. The Weights used in Towns and Public Markets, and in Shops and Ware Houses should be the English Avoirdupois weight. • The Quintal or Hundred weight to be One hundred and twelve pounds of that weight. Such Officer should keep all those Measures and weights in his possession for a Standard and have power and be obliged to examine and stamp all weights and measures on being paid a reasonable allowance for his trouble, and a fine sufficient to prevent evil practices, should be levied on all persons using unstamped or deficient weights and measures—Provided nevertherless that any person making his Election to use french weights or the trench Liquid or Timber measure, such should be made in a different form and of different materials from the English, for a plain distinction, and regulated also by the proper Officer to the Standards. Article 20th— " Whether or not we should Apply for a Charter incorporating a " select number of Citizens on some good and approved plan, with power to make Bye " Laws, decide civil and Criminal causes under certain restrictions, whether under the " Stile and Title of Recorder, Mayor, Alderman, and Common Council of the City and " County of Quebec and the Precincts and liberties thereof or under any other " Denomination?" Observation—The wretched state of the Police of the City of Quebec is too' obvious to need explanation. The Regulations that are made, however useful and proper are but little attended to, and ill executed ; the Magistracy is unconnected, without a Head, 618 CANADIAN ARCHIVES 6-7 EDWARD Vil., A. 1907 and without inferior Officers to put the Laws in force, their Mandates want efficacy and do not enforce subordination in the People.1 There is, there can be no remedy but a Chief Magistrate with subordinate offic rs to put the Laws in force and keep up peace and good order in the Towns. — A Charter to incorporate the City of Quebec for the above and other good purposes would, we humbly apprehend, be attended with Salutary Effects. Article 21st " And a like Charter for the City of Montreal "—• Observation—It appears to us that the City of Montreal being under the like predicament with that of Quebec, would also be much benefited by a Like Charter, of which however they are the proper Judges. Article 22a " The establishing of Schools and Seminaries for the Education of " Youth, from those funds now unemployed as well in England as in this Province, and " particularly a respectable College in this City, with able Professors, and erecting Free " Schools at convenient distances throughout this extensive Province, for the purpose of " opening and enlarging the human mind, conciliating the affections of all His Majesty's " Subjects, and having a tendency to render this a happy and flourishing Province "— Observation—The Education of Youth in this Province, except in the Cities, where indeed the Schools cannot be boasted of, is confined altogether to the Female, sex, there are some five or six small indifferent Schools dispersed thro' the Country kept by Nuns called Sisters of the Congregation, for instructing Girls, but not a single one that deserves the name for Educating Boys, hence all the Inhabitants are unhappily ignorant of the use of Letters, and incapable of reading or writing, a situation truly lamentable ! We are informed that the Fund in England piously and generously contributed for the propogation of Christian knowledge in foreign parts, is in a great measure now unemployed,2 from the circumstance of the United States of America having separated themselves from Great Britain. We are also informed that the 'Society of Jesuits is shortly to be suppressed and dissolved and their property and Estates vested in the Crown.3 We understand that the Estates granted to the Jesuits were for the purpose of building a College and endowing it and the Revenues arising therefrom to be applied to the Education of Youth, and that before the Conquest of Canada, a very considerable number of Students were constantly educated in that College. Such being the deplorable state of this Country with respect to useful Learning, and such the ample provision made as a remedy to so great a misfortune as a state of Ignorance confessedly is— We have humbly to recommend that Application be made thro' the proper Channel for a participation of the first mentioned fund, and we humbly Trust that His Majesty out of his paternal goodness will be graciously pleased to direct that the Jesuits Estates and the Revenues thereof, may be applied to the Endowment of a College or University in this City with able professors for the Education of the Youth of all British America and for building and maintaining Free Schools with proper Masters for teaching the English Language, and other Branches of Education throughout this extensive Province on an approved liberal plan. Posterity requires at our hands our Endeavour to procure them so great a Blessing, which we Supplicate both on their behalf and our own— We have avoided making Observations on that important part of the Trade of this Province carried on with the Indians in the interior parts thereof, as the Merchants in Montreal by being particularly engaged therein, are more capable of giving the Honorable Committee information of the needful regulations, and to their report on that and other Subjects we refer. In general, and upon the whole of the observations which we have humbly offered, may be collected, the utter impossibility of governing this Province as a British Colony 1 During the session of 1777 an Ordinance was passed, 17 Geo. III., cap. 15, • " To empower the Commissioners of the Peace to regulate the Police of the -Towns of Quebec and Montreal for a limited time.'' The preamble declared it impossible, owing to the advanced state of the session, to form a permanent Police for these towns, hence only very general and indefinite powers were granted. Nevertheless this ordinance was simply renewed, without amendment, every two years, until 1791. 2 Assistance from this fund was soon afterwards extended to Canada for religious purposes. 3 The disposal of the Jesuits' Estates was a matter of much interest and discussion at this time. See note 1, p. 581. CONSTITUTIONAL DOCUMENTS ' 619 SESSIONAL PAPER No. 18 and promoting its prosperity without a power existing somewhere of levying inland Taxes and providing for useful regulations This Consideration we humbly submit to the Honorable Committee of Council, and refer them to the petition we had the Honor to transmit to His Majesty and both Houses of Parliament Two Years ago for Granting a House of Assembly to His Majesty's Faithful Subjects of this Province—l A Copy whereof Accompanies this Report— Quebec 5tlL January 1787. (sign'd) Geo : Allsop James. Johnston Robert. Lester. S. Fraser. Mathew. Lymburner. W ill : Goodall. John : Young. Sirs, As a Committee appointed by the Merchants of Quebec, We have the Honour to inclose our report, agreeable to your Letter of the 15"1 of November last. & are with great Respect Sirs your most obedient & most humble Servants (sign'd) Geo : Allsopp. James Johnston Robert Lester S. Fraser Will. Goodall John Young Mathew Lymburner, Quebec 6th January 1787. The Honble F. Levesque Edwd Harrison, John Collins George Pownall & Wm Grant Esqrs Committee of Council on Commercial Affairs COPY OF A PETITION TO HIS EXCELLENCY LOED DORCHÜSTER, FROM HIS MAJESTY'S NEW SUBJECTS RESIDING AT QUEBEC.2 A Son Excellence Le Tres Honorable Guy, Lord Dorcliester Capitaine General et Gouverneur en Chef des Colonies de Quebec, Nouvelle Ecosse.— Nouvelle Brunswick, et de leurs dépendances, Vice Amiral d'icelles ; Général et Commandant en Chef de toutes les troupes de Sa Majesté dans les dites Colonies, et dans l'Isle de Terre Neuve &° &c &". L'Humble supplique des Citoyens Canadiens de Quebec— Qu'il plaise à Votre Excellence. Nous Citoyens Canadiens de la Ville de Quebec, prenons la Liberté de faire à Votre Excellence nos très humbles Representations sur un Objet qui interesse essentiellement notre tranquilité et le bonheur de cette province. 1 See petition of Nov. 24th, 1784, sent to Britain early in 1785, p. 502. 2 Canadian Archives, Q 27—1, p. 315. This is one of the additional papers or documents referred to at the head of the Report as underlined in red ink in the index. This petition was not submitted to the Committee, nor did it form part oi their Report. It was sent directly to Lord Dorchester and by him presented to the Legislative Council, on Feb. 1st, 1787, along with the various reports and other papers. See journals of the Legislative Council, Q 27—2, p. 575. 620 - • • CANADIAN ABCBITES 6-7 EDWARD VII., A. 1907 Une juste et précise execution de nos loix civiles est notre Yoeu, et les Alterations qu'elles ont souffertes, et qu'elles pouront encore souffrir font nos Craintes et nos peines. Ces Loix ont établi les titres de nos biens et de nos familles, au nombres de cent Vingt Mille ames, qui forment les dix neuf Vingtième de la population actuelle. La Capitulation, en nous maintenant expressément dans l'entière et paisible propriété et possession de nos biens, nobles et innobles, meubles et immeubles, nous a nécessairement conservé ces loix civiles qui les définissent ; Et l'un des articles de l'acte de Parlement de la Quatorzième année du règne de sa très Gracieuse Majesté, considérant avec justice ce pays comme conquis, nous a si clairement accordées qu'il ne doit y avoir dans les cours de Justice aucune doute qu'il ait sous entendu d'y introduire, en outre, d'autres loix qui n'ont Jamais été publiées en cette province, puisque -leurs plus célèbres commentateurs déclarent qu'elles n'ont aucune force en Pays conquis et daja habités. Nous ne pouvons même imaginer que l'acte du Parlement qui nous accorde nos Propriétés et ces loix ait entendu Autoriser des Altérations réitérées qui détruiraient leurs principes fondamentaux, ou mêler avec ces loix d'autres loix, soit générales, soit particulières, qui ont des principes differens, et qui sont peu convenables à ce pays, dans la Vue de favoriser une certaine classe d'individus seulement; parceque du Mélange de diverses loix, en un même pays, il ne peut résulter qu'une confusion, la discussion entre les Sujets et des incertitudes ruineuse aux familles. L'Altération de nos loix civiles, coutumes et usages mérite la plus grande modera" tion, et les precautions les plus importantes. Ces loix sont simples, claires, connues et justes, même pour le Commerce, puisqu'elles favorisent beaucoup le prompt recouvrement des dettes ; La Justice et L'Egalité entre les Créanciers. Elles consistent en Ordonnances, que les Rois n'ont voulu faire, Lorsqu'elles touchaient aux propretés et aux droits de Citoyens, que sur les Resolutions des Etats; c'est à dire les trois ordres du peuple. Nos Coutumes n'ont aussi été rédigées par Ecrit que de cette manière, et leur redaction n'a été faite, que sur les resolutions des mêmes Etats. C'est pourquoi les lettres patentes de la dernière redaction les déclarent, et garantissent expressément comme loi et edit perpétuelles et irrevocables ; et que l'ancien Gouvernement n'a, pendant plusieurs siècles fait que peu d'ordonnances, dont aucune ne donne atteinte à ces loix—Telles sont les loix, coutumes, et usages pour nos droits réels et personel, dont les anciens et notables, même les nouveaux Canadiens qui sont en cette province, sans distinction de naissance, ont d'accord entre Eux demandé l'exacte exécution à Sa Majesté, en la suppliant de remédier à l'Etat actuel de cette province— Nous Supplions donc, tres respectueusement, Votre Seigneurie, de vouloir bien ne donner aucune sanction à ce qui tendrait à détruire les principes fondamentaux. des loix, coutumes, et usages qui règlent nos Propriétés, ou qui voudraient introduire d'autres loix, attendus que toutes innovations en loix ne devraient se faire qu'avec les mêmes precautions qui les ont établies L'Ancienne et constante protection que votre Excellence a bien voulu accorder à nos droits, les plus précieux, nous assure de celle qui doublera notre reconnaissance, et nos Voeux pour votre conservation et Prospérité Quebec le 19e Janvier 1787. N. B. The foregoing Petition was signed by 345 Persons— J WILLIAMS. C. C. CONSTITUTIONAL DOCUMENTS 621 SESSIONAL PAPER No. 18 (Translation of the foregoing Petition.) To His Excellency the Right Honourable Guy Lord Dorchester Captain General and Governor in Chief of the Colonies of Quebec, Nova Scotia and New Brunswick and other dependencies Vice Admiral of the same ; General and Commander in Chief of all His Majesty's forces in the said Colonies, and in thelsland of Newfoundland^ &c, — &c, — &c. — The humble Petition of the Canadian Citizens of Quebec. May it please Your Excellency We the Canadian Citizens of the Town of Quebec take the liberty most humbly to offer to Your Excellency our representations upon a Subject which essentially concerns our tranquility, and the Happiness of the Province A Just and Exact Execution of our Municipal Laws, is our wish, and the Alterations they have suffer'd, and may suffer, are our apprehensions, and our afflictions. Those Laws have established the titles of our Estates and of our Families to the number of a hundred and twenty thousand souls, who compose nineteen twentieths of the whole of the population. The Capitulation, by expressly granting to us the full and quiet right and possession of our Estates, noble and innoble, personal and realj has necessarily preserved to us, the Municipal Laws which define them. And one of the Sections of the Statute of the 14th year of the Reign of His Most Gracious Majesty justly considering this Country a Conquered one, has so clearly allowed them to us, that the Courts of Justice" ought not to entertain a Doubt that it was meant to introduce any other Laws, which have never been promulgated in this Province, for their most celebrated Commentators declare that they have no force in Countries which are Conquered and already inhabited. We cannot even conceive that the Act of Parliament which allows us our Possessions can be understood to authorise reiterated alterations, which would subvert the fundamental Principles ; or to mix with those Laws, others, either General or particular, which differ in principle and are but little adapted to this Country, with an Eye to Indulge a certain class of Individuals only : Because from a Mixture of different Laws, in one and the same Country, nothing but Confusion, a Disunion among the people; and an uncertainty, destructive to families, can result. Alterations in our Municipal Laws, Customs and usages, require the greatest moderation and circumspection. These Laws are clear, simple, well understood, and Just, even with respect to Commerce, for they greatly favour the speedy recovery of debts ; they are Equitable and promote Equality among Creditors. They consist of Ordinances, which the Sovereigns, in cases concerning property and civil rights, would not issue without the Resolves of the Estates, that is to say, the three Orders of the People. Our Customs also, were only committed to writing, in that Manner, and the digesting of them was done upon the Resolves of the same Estates. Therefore it is, that the Letters patent of the last Redaction expressly declare and ratify them as Law and Edict, perpetually and irrevocably, and that the former Government, for Ages, made but few Ordinances, not one of which struck at those Laws. Such are the Laws, Customs, and usages, in support of our Rights, real and personal, which the Elder and Chief men, and even the younger Canadians, who live here, without Distinction of birth, have agreed among ourselves to demand the exact Execution of, from His Majesty; supplicating him to apply a remedy to the pre-ent state of the Province. We therefore most respectfully intreat your Lordship to forbear giving your sanction to anything that may conduce to subvert the fundamental principles of the Laws, Customs, and Usages, which govern our properties, or introduce other Laws ; seeing that all innovations, in matter of Law, should be done with the same circumspection as obtained at their Establishment. 622 CANADIAN ARCHIVES 1 . 6-7 EDWARD Vil., A. 1907 The firm Protection which Your Excellency was pleased to give, heretofore, to our most precious Rights, assures it to us at present. — It will double our obligations, as it will our Prayers for your preservation and prosperity— Quebec 19"1 January 1787. The Petition was signed by 345 Persons, J WILLIAMS CO. LETTER FROM THE COMMITTEE OF COUNCIL ON COMMERCE AND POLICE TO THE MERCHANTS OP MONTREAL.1 QUEBEC 13"1 November 1786. Gentlemen, His Excellency Lord Dochester in Council having been pleased to appoint us to be a Committee to take into Consideration and to report to His Lordship, (preparatory to the meeting of the Legislative Council which will be on the fifteenth of January next) the State of the External and Internal Commerce and the Police of the Province ; with such Improvements as may be requisite to make therein,— We have therefore to request your Sentiments with all Convenient Speed, on objects so interesting to the Province at large and to Montreal in particular. We have the the Honor to be Addressed to Gentlemen Neven Sevestre your most obedient E. W. Gray most humble Servts St George Dupré FRANCIS LEVESQUE James M°Gill E D W A R D H A R R I S O N Pierre Guy (signed) J O H N . COLLINS James Finlay GEORGE POWNALL J. S. Goddard. W I L L I A M GRANT Pierre Messiere Pierre Portier Hertel de Rouville John Campbell Edwa Southouse Alexander Eraser Jacques Le Moine Benj. Frobisher. , Stephen De Lancey Esq1 & to Messts Jacob Jordan Isaac Todd Forsyth. J . Blondeau P. Perinault Richard Dobie T. Chaboillez Merchants. M 1 . McBeth & William Pollard. 1 Canadian Archives, Q 27—1, p. 323. CONSTITUTIONAL DOCUMENTS 623 6ESSI0NAL PAPER No. 18 ANSWER TO THE FOREGOING LETTER, MONTREAL 23d November 1786— Gentlemen, Your. Letter of the 15"1 Instant was immediately communicated to the Gentlemen to whom it was addressed when we had the Honor to be appointed by them as a Committee to examine into, and report upon the objects of our Enquiries, but in matters of such high Importance to the General Welfare and Prosperity of the Province at Large, and to this District in particular, We think it a duty incumbent upon us to call in and collect the general Voice of our fellow Citizens, which we shall do without delay, and report to you their Sentiments and ours thereon, in Time for your consideration previous to'the meeting of Council the 15 th January next— We have the Honor to be Gentlemen your most obedient most humble Serv1 (signed) To . The Honb,e George Pownall Willm Grant F. Levesque Edwd. Harrison John Collins REPLY. QUEBEC 8th Decern1 1786. Gentlemen, We* duly received your Letter of the 23,d Novem1 '. We are perfectly of opinion, and certainly understood, altho' our Letter was not nominally addressed to every Gentleman in Montreal, that the Voice of the Merchants & principal Citizens should be collected on objects so interesting to the whole, as those now in Agitation. , We are happy to observe that Gentlemen of your Experience and Knowledge have been chosen as a Committee for that purpose ; the sooner you can effect it and transmit your collective Sentiments the better, as the time draws near when we would wish to make up the report required of us. We have the Honor to be Gentlemen your most obed' most Humble Servants. Edward Harrison (signed) John Collins. Wm Grant Addressed to George Pownall. James M°Gill J. Perinault Pierre Meziere Jaccb Jordan Benjn Frobisher & Pierre Guy Esq» Montreal James McGill. Th. Perinault P i e Meziere. Jacob. Jordan. Benjamin Frobisher P Guy. 624 CANADIAN AROHITSS 6-7 EDWARD VII., A. 1907 REPORT OF THE MERCHANTS OF MONTBEAL BY THEIB COMMITTEE TO THE HONORABLE COMMITTEE OF COUNCIL ON COMMERCIAL AFFAIRS AND POLICE. 1 " The Establishment of a Chamber of Commerce duly incorporated "2 Observation. However beneficial to Trade and Commerce Institutions of this nature be considered, yet we are of opinion, that the same would prove ineffectual and inexpedient at this time ; considering the connexion that subsists, more or less among the Trading People of this Place. " Holding Terms and the Abolition of Circuits " Prom the frequency of holding Courts, and from the mixture of Prench and English Laws, great delays, procrastinations, and Incertitude are experienced in the decision of Suits, to remedy which we are of opinion, That Terms should be established ; four in the year to sit from day to day, for fourteen days each Term, which would be Sufficient, and prove more eligible for the dispatch of Business, than those Continual Courts. However for a time it might be proper to permit the Court of Common-pleas to sit once a fortnight for the decision of causes to the Amount of Ten Pounds. We are likewise of opinion, that the Circuits should be abolished. Its an itinerant Court that carries no respect— Impresses the Inhabitants with no Awe of Justice, and proves of no relief whatever to the distant Parts of the District—The end for which they were intended.3 " The present Establishment of Appeals in Commercial Causes " Observation. The same uncertainty that has hitherto prevailed in the Courts of Justice, has made its way into the Court of Appeals, probably through the disadvantage it has long labour'd under ; for want of a Gentleman bred to the Science of the Law, presiding or sitting in it, to point out to the other Members, the Errors in the Proceedings if any, and to explain the Law ; indeed without any Imputation- on the Judges it is much to be lamented that regular Bred professional men do not preside in all the Courts of Justice in the Province, to the want of which we may impute the great delays in the Decisions of Suits, in all the Courts but more particularly in the Court of Appeals, which has proved a great and real Grievance to this District : If the Court of Kings Bench was restored to its ordinary and former Civil Jurisdiction and powers, we conceive it would remedy the evil complained of ; I n which case we would humbly request that the Chief J ustice should hold two Terms in every year at Montreal, for the purpose of hearing and determining all Civil Suits that might be brought before him, either by Original, or on an Appeal from the Inferior Courts. This mode would prevent the great expence now attendant on Appeals to Quebec, and prove infinitely more Agreeable and satisfactory to the Suitors many of whom rather put up with the Decision of the inferior Courts, than go to the great Expence incurred by an Appeal on the present Footing. " The Establishment of a Court of Chancery " A Court of Chancery would be a very desirable object if it could be so constituted as to grant relief, under the legal decisions with convenient dispatch and on moderate Pees. 1 Canadian Archives, Q 27—1, p. 326. Much the same matters are discussed as in the Report from the Quebec Committee. As in that report, there are only certain sections which relate more or less directly to constitutional masters and only these are reproduced. The portion here given begins at p. 383. 8 The merchants of Quebec were those chiefly interested in the development of this proposal. See the "Plan for the establishment of a Chamber of Commerce for the City and District of Quebec." p. 462. 3 See Report on Courts of Justice, p. 595. CONSTITUTIONAL DOCUMENTS 625 SESSIONAL PAPER No. 18 " On a Register of all Deeds " Observation Frauds having been committed by Debtors mortgaging their Lands to different Creditors, also much Inconvenience arisen to Purchasers of Lands who have no effectual means of discovering Incumbrances on them. There being likewise a considerable degree of Obscurity in most Transactions with regard to real Property : We offer as a means of better ascertaining the Rights of Proprietors, and Creditors, «and avoiding Law-Suits—That there be erected at Montreal an Office for the registering all Deeds in future which affect real Property within the District.—That the Fees of such Office be moderate as possible.—That no such Deeds be valid in future unless passed by a Notary & so registered.—Considering the illiterate state of the Bulk of the Inhabitants.—That it shall be incumbent under a high penalty on the Notary who may pass any such Deed, to have the same Registered in the proper Office, and this within a short limited Time, and before he delivers any Copy to the Party. 1 " On a Bankrupt Law " Observation A Bankrupt Law and equitable rules for the Distribution of the Property^of Persons failing in Trade, is become essentially necessary» for the security of the fair Trader, and for the prevention of those Frauds there is too much Reason to believe are daily practised. We are therefore of opinion that such Law should ascertain what Act •of a Merchant amounts to an Act of Bankruptcy, & should compel the Insolvent Debtor, in that situation to a surrender of his Books, papers, and effects, on Oath for the benefit of all his Creditors, and to answer such questions to his Trustees or Creditors as they may put to him relating to his Business, In which Law, the Rights of the Wives and Children of all Persons concerned in Trade or Commerce to the real or Personal Estate of such Bankrupt should be ascertained, A Distinction ¡should be made in the Treatment of a fraudulent, & unfortunate Bankrupt; The former should be punished exemplarily, yet not cruelly, least the End be defeated ; and the latter entitled to a Discharge, provided three-fourths of his Creditors in number and value consent. The Contradictions in the Judgements of Law on this subject mark the strongest Injury to the Commercial Interest, therefore require a speedy and effective Remedy. Police " The building a Goal in the District of Montreal " There can be little doubt, that many Objects of Police, will be best provided for, by means of, incorporating,the Town of Montreal by Charter, But there are some, which as they concern the District at large, require to be more particularly adverted to. The want of a proper Goal for this District, has long been complained of, and at Divers t;mes has been represented, by different Grand Juries, as well at the Courts of Oyer & Terminer as at the inferior Courts of quarter Sessions, but hitherto no remedy has been applied. The House which at present serves for a Goal consists of four very small Rooms, in which are frequently confined promiscuously Persons of Different Sexes, and for very different Degrees of Crimes ; The unfortunate. Debtor cannot have a Room to himself, nor can the Malefactor when preparing for another World be accomodated with a place of retirement to deprecate the wrath of the offended Deity. The insufficiency of the Goal in point of security occasions a Guard of Soldiers to be kept in the lower part of it, and even with that precaution, many atrocious •offenders have escaped, insomuch that the Sheriff of the District has refused to confine Debtors, unless the Prosecutor agreed to take upon himself the Risk of an Escape. The Situation of this insufficient Goal heightens the Sufferings of those Persons whom the Laws dooms (i-ic) to an Imprisonment, offends every Passenger in the Warm Season and is a Nuisance to the Neighbourhood, being without those Conveniences requisite to carry off the Filth accumulated bv want of them. i See note 2, p. 616. 18—3-40 626 CANADIAN ARCHIVES 6-7 EDWARD VII., A. 1907 We propose as the means of obtaining a proper Goal, than an Assesment be laid on the District, for the purpose of raising a Fund adequate to the building of the same, if the present Legislature is competent thereto. " Whether or not we should apply for a Charter incorporating a telect number " of Citizens, on some good and improved Plan, with Powers to make Bye Laws, decide " Civil and Criminal Causes under certain Restrictions, whether under the Stile and " Title of Recorder, Mayor, Alderman & Common Council of the City & County of " Quebec, and the Precincts & Liberties thereof, or under any other Denomination " " And a like Charter for the City of Montreal " Observation. The bad state of the Police in this Town calls loudly for Reform and tho' Government in its Wisdom, have attended thereto, by the Appointment of an Inspector of Police ; yet we are sorry to observe that the Appointment has in no wise proven adequate to the Intent, and by Experience we find, that the exertions of the Magistrates are not sufficient to remedy the Evil complained' of, We therefore beg leave to point out as the only remedy that can be applied with Effect. The incorporating by Charter a select number of the Citizens of Montreal on a good and approved Plan, with such Powers, and Priviledges, -as^ are usually granted to Corporations ; for the purpose of Police only. And we further beg leave to request, that in case the Honorable Council should approve of this mode, and Government incline to grant the same, That it be recommended to His Excellency Lord Dorchester to bestow on the Corporation such Lots of Ground and Houses, thé Property of the Crown, within the Town and Suburbs of Montreal as Government have no present use for, in order to the same being applied towards the erecting Schools, work-houses, and other Establishments of Public Utility. " That a Regulation is necessary to prevent a Greater number of Licences being granted " for the Sale of Liquors than are necessary for the use of the Town & Country." Observation The many Complaints arising from the great number of disorderly Public Houses call the attention of the Legislature : There is infinitely too many of them both in Town and Country ; They are the bane of Industry, and only tend to Debauchery and riot, it is much to be wished that a fewer number of Licences were granted, and those to Persons of good Character only. » " A Regulation to prevent the Erection in future of Wooden Buildings or Fences within " the City of Montreal " Observation As the Legislature has carefully attended by a wise Law, 1 to prevent the dreadful accidents that might happen by Fire in the Towns of this Province, we must beg leave to offer an Amendment that would be of real Service, to prevent the Spreading of Fire in this Town, that is ; by enacting, that no wooden fence or building of Wood of what description soever, be erected in the Town of Montreal in future under a severe Penalty. " The Establishing of Schools and seminaries, for the Education of Youth, from those " Funds now unemployed, as well in England as in this Province, and particularly, a. " respectable College in this City, with able Professors, and erecting Free Schools at " convenient Distances throughout this extensive Province, for the purpose of opening " and enlarging the human Mind, conciliating the Affections of all His Majesty's sub- " jects, and having a Tendency to render this a happy & flourishing Province."— Observation. There remains for us to advert to a subject which we consider as the surest and best means of obtaining a chearful and dutiful obedience to the Laws, and Government, 1 Referring to the Ordinance of 17 Geo. III., cap. 13, "For preventing accidents by fire." This applied to Quebec, Montreal and Three Rivers. CONSTITUTIONAL DOCUMENTS 627 SESSIONAL PAPER No. 18 from subjects in genera], and that is by establishing throughout the Province at proper Distances, Public-Schools for the Instruction of Youth. We hardly know of a single school in any Country Part of the District for teaching Boys, and it is to the Zeal of the few Sisters of the Congregation, that we are indebted for all the little which is taught to girls, throughout the Country. The Captains of Militia who are frequently called upon to enforce Laws and orders, are so illiterate, that not one in three can write or even Read, the Consequence is Confusion and disorder, and frequent suits and Complaints between them and the Militia-men.—It is not for us to point out the best plan for Establishing those Schools, but having understood that all the Estates which the Jesuits possess in this Country were granted to them for the Purposes of Establishing proper Seminaries, of Learning and that those Estates are likely to reveit to the Crown, we humbly conceive that they could in no way be better employed, than in that for which they were originally intended and Granted. There may be further some unappropriated Funds in England for similar Purposes, now that the States of America, formerly Colonies of Great Britain are separated from her Dominion, which we would recommend to be applied for, through the proper Channel. Upon the whole of the Observations which we have humbly offered, may be collected, the utter impossibility of promoting the Welfare of this Province as a British Colony under the present system of Government This Consideration we submit to the Honorable Committee of Council, and refer them to the Petition we had the Honour to transmit to His Majestysand both Houses of Parliament two years ago, for granting a House of Assembly to His Majestys faithful Subjects of this Province, A Copy of which Accompanies this Report.1 (sign'd) Jacob Jordan. W Boutheiller James McGill. Richd. Dobie. P rc Guy. Th. Perinault Benjn Frobisher. John McKindlay M 10 Blondeau. James Walker. A. Auldjo. Thomas McCord. Montreal 23'a January 1787. COPY OP A LETTEE ACCOMPANYING THE ABOVE EEPOET. Montreal 23d January 1787. Gentlemen, Having now finished our report on the objects on which you were pleased to request our sentiments, and having read the same to a numerous Assembly of old and New Subjects in both Languages without one dissenting Voice being heard ; we take the earliest opportunity of transmitting the report, and shall be happy to learn that our Opinion on Subjects so interesting coincide with yours. I t would have afforded us much satisfaction, had it been in our power to hand you the Report at a more early day ; the length of the report with other Business of a pressing nature, which required the Attendance of several of the Members of our Committee, will we hope apologise for the delay. We reiterate our sense of the honor you have done us in Consulting with us on this occasion, and remain with the greatest respect Gentlemen Yourjnost obedient and very humble Servants (signed) Jacob Jordan P Boutheilier James McGill Th. Perinault , Pte Guy. John McKindlay Benjn Frobisher James Walker M Ie Blondeau Thomas McCord A. Auldjo Richd Dobie. 1 Referring to the petition of Nov. 24, 1784, to which were appended, in separate lists, the signatures of those from Quebec, Montreal and Three Rivers. See p. 502. 18—3—40 J 628 CANADIAN ARCHIVES '6-7 EDWARD VII., A. 1907 COPY OF AN ADDRESS TO HIS EXCELLENCY LORD DORCHESTER FROM HIS MAJESTY'S NEW SUBJECTS RESIDING AT MONTREAL.1 A Son Excellence Le Tres Honorable Guy Lord Dorchester, Capitaine General et Gouverneur en Chef des Colonies de Quebec, Nouvelle Ecosse, et Nouveau Brunswick, et leurs dépendances ; Vice Amiral d'Icelles ; Général et Commandant en Chef de toutes les Troupes de Sa Majesté dans les dittes Colonies, et dans l'isle de Terreneuve &° &°, &c . Qu'il plaise à Votre Excellence Dans un tems, ou l'arrivée de Votre Seigneurie seinbloit ne devoir faire penser aux anciens et Nouveaux Sujets de Sa Majesté qu'a se féliciter réciproquement de cet heureux événement : Dans un tems où nous pensions qu'il y auroit un accord mutuel à se rejouir des douceurs d'un Gouvernement heureux : dans un tems enfin, ou nous croions la tranquilité rétablie, les Anciens Sujets revenus d'un sisteme qu'un opposition générale des Loiaux x sic Sujets Canadiens devoit leurs* faire regarder comme inadmissible, dans un païs où les opposans, par droit, nombre, fortunes, et propriétés doivent emporter la balance ; C'est avec la Surprise, la plus grande, que nous voyons les nouvelles demandes des anciens sujets de Sa Majesté qui ne tendent à rien moins que boulverser les Loix fondamentalles des nouveaux, à les anéantir, et par la leurs propriétés cette commotion seroit alarmante, si les loiaux Sujets Canadiens de Sa Majesté n'etoient persuadés qu'elle a les x MS. cut off. Vues les plus f avorable(s)* pour son peuple Canadien ; Que lorsqu'elle verra, x sic par l'Entermise* de Votre Seigneurie, au pied de son auguste trône, l'opposition générale et formelle de ses loyaux Sujets Canadiens aux demandes injustes et outrées de ses anciens sujets ; Que Quand Notre très gracieux Souverain sera instruit que tout un Peuple qui n'a jamais cessé de lui être fidel, se réunuit pour reclamer Sa Justice et Son Equité, pour lui conserver x sic. ses Loix municipales, ses Loix, sur les queles* sont fondés ses biens, fortunes et propriétés ; ses Loix, que le droit des Gens assure, que la Capitulation a x sic promise, qu' une Proclamation a solemnellementx ratifiée, et que le Bill émané de Son Auguste Parlement dans la Quatorzième année de Son Règne2 bienfaisant, a maintenu, et nous guarantit; Que, quand sa très Digne Majesté daignera promener ses regards sur cette étendue de pays qu'habite un peuple qui désire le lui conserver, et qu'ensuite elle comparera cette quantité de personnes qui lui sont si fidèlement attachées, les Biens et les propriétés de tant d'invidus, dont on veut renverser les principes fondamenx sic. taux, avec le nombre, si petit, des anciens sujets, et de si peu'' de propriétés, ne devons nous pas espérer, que Notre très Gracieux Souverain, bien loin d'acquiescer, à des demandes aussi injustes afiirmera encore et rendra plus stables les Loix constitutionelles et municipales de ses fidèles et Loyaux sujets Canadiens. Nous Supplions Votre Excellence de vouloir bien jetter un regard sur les deux addresses3 envoiées ci-devant pour être mises au pieds du Trône auguste de sa Majesté, dont nous avons l'honneur de Vous transmettre les Copies; de les Considérer comme le Voeu unanime et invariable de la nation : E t que par vôtre illustre protection Notre très Gracieux Souverain 1 Canadian Archives, Q 27—1, p. 410. Like the petition from Quebec (see p. 619), this does not belong to the list of papers forming the Report of the Committee on Commerce and Police, but was addressed to the Governor and by him presented to the Legislative Council on Feb. 12tb, See journals of the Legislative Council, Q 27—2, p. 589. 2 The Quebec Act. See p. 401. s Referring to the memorials in opposition to the petition from Quebec and Montreal in 1784. See pp. 511 and 517. CONSTITUTIONAL DOCUMENTS 629 SESSIONAL PAPER No. 18 veuille Lien y avoir reference. Nous Espérons que Votre Excellence n'aura aucun égard à ces demandes de Chambre d'assemblée ; de Chartre d'Incorporation, dont le But est a peu près le même ; d'un Eregâtrement des Contrats, de Greniers et marchés publics pour les Grains &° ; d'un Commerce x sic 'avec Vermont ; de ces Innovations pour les douaires*, Hypothèque, &° ; ces points étant assés clairement expliqués dans netre Loix : le tout ne tendant qu'a la Sapper, et nous paroissant contraire et préjudiciable à l'avantage de la province. Que toutes autres Articles de ces demandes qui ne regardent pas le Commerce seul méritent un Désaveu de notre part, comme opposés au bien, aux intérêts aux droits, et aux privileges les plus sacrés des divers états qui composent cette Province, Et à qui sans daigner les consulter, on veut imposer des Loix dont eux seuls sentiront tout^Le poid. Nous osons nous flatter que Votre Seigneurie voudra bien faire valoir notre opposition par tout où besoin sera ; Qu'elle voudra bien l'appuier de son Credit : ses connoissances dans la province des sujets qui L'habitent la rendent plus capable que tout autre de faire, avec cette intégrité et cette impartialité, qui en tout tems, ont characterise Votre Excellence, un raport fidel et Exact des Vrais sentimens de notre nation ; et de pointer cette x sic distinction que l'on doit mettre entre la futilités T des démandes, x et les droits réels des opposans. Et c'est avec la confiance la plus sincere que nous attendons encore aux marques de cette protection bienfaisante si souvent réitérée à notre Egard ; qui fait, que sous un Gouvernement chéri, Le Plus Auguste des Rois est adoré, et ne peut qu'augmenter notre amour en se faisant représenter parmi ses loyaux Sujets Canadiens par Votre Seigneurie, pour la prospérité de laquelle nous ne cesserons de prier. Montreal le 3me Février 1787. N. B. The Address "was signed by 283 persons. J. W I L L I A M S C. C. (Translation of the foregoing Petition.) To His Excellency The Right Honorable Guy Lord Dorchester, Captain General and Governor in Chief of the Colonies of Quebec, Nova Scotia and New Brunswick, and the dependencies thereof, Vice Admiral of the same ; General and Commander in Chief of all His Majesty's Forces in said Colonies, and the Island of Newfoundland &° &c &e . May it please Your Excellency At a period, the Epoch of Your Lordships arrival, when it might be expected that all His Majesty's subjects, indiscriminately, would felicitate each other upon account of so Happy an event: At a period, when we conceived we should mutually rejoice at the blessings of an indulgent Government : At a period, when we thought that Disturbances had ceased, and His Majesty's Antient Subjects had retracted from a System, which upon a general opposition on the part of His Majesty's faithful subjects the Canadians they should have considered as inadmissable into a Country, where the opponents in Consideration of Rights, in point of number, of Wealth and of property preponderate : It is with the greatest astonishment We hear of the new requisitions of His Majesty's Ancient Subjects ; having a ' tendency to nothing short of a subversion of the fundamental Laws which Govern His Majesty's new subjects, to an Annihilation of them, and by that means of their Estates. This Commotion would appear alarming indeed, if His Majesty's faithful Canadian Subjects were not fully persuaded that His Majesty looks down upon his 630 CANADIAN ARCHIVES 6-7 EDWARD VII., A." 1907 Canadian people with the most benignant Eye. When His Majesty, by your Lordship's intervention, sees at the foot of his sacred Throne, the General and Spécifie opposition made by His Majesty's Canadian Subjects to the Unjust and strange demands of His Antient Subjects ; when our most Gracious Sovereign is informed that the whole of a People who have never discontinued their fidelity to him, are uniting together to Implore His Justice and Ms Equity for continuing to them their common Law ; a Law whereupon are founded their Estates, their Fortunes, and their Property; a Law, which the right of Nations assures to them ; which the Capitulation has promised to them ; which a Proclamation has Solemnly ratified ; and which an Act of His Majesty's August Parliament passed in the fourteenth Year of His benign reign has affirmed and warranted to us ; When His Most Gracious Majesty condescends to cast an Eye upon this extensive Country, inhabited by a people, desirous of preserving it to him, and then compares the number of persons who are so faithfully attached to him, their Estates and Possessions (whereof the fundamental principles are attempted to be subverted) with the fewness of antient subjects, and their so little Property ; Have we not to hope that our Most Gracious Sovereign will further strengthen, and render still more durable the constitutional and Municipal Laws of his faithfull & Loyal Subjects of Canada? We request Your Lordship's Attention to the two Addresses heretofore sent to be presented at the foot of His Majesty s sacred throne, Whereof we have the Honour to transmit Copies to you ; to consider them as the unanimous and immutable wish of this Nation and by your Noble Interposition, that our Most Gracious Sovereign will deign to refer to them. We hope Your Excellency will disregard those Demands of a House of Assembly, a Charter of Incorporation (whereof the design tends nearly to « the same end) a Registry of Deeds, store houses, Public Markets for Corn, &° ; of a Commerce with Vermont, of Innovations with regard to Dower, Hypothecations &° ; These points are clearly enough explained in our own Law : all which only tends to strike at the foundation of it, and appearing to us repugnant and hurtful to the Interests of the province. Every other Article of those Demands which does not relate to Commerce alone, merits a disavowal on our part, as being contrary to the Welfare, the Interests, the Rights i>nd Priviledges (the most sacred) of the different Estates whereof
this Province is composed ; and for whom, without condescending to consult
them, Laws are to be imposed, the burthen of which will fall on them only.
We presume to flatter ourselves that Your Lordship will improve our
opposition wherever it shall be found necessary ; that you will support it
with all -your Influence. Your Knowledge of the People of this province,
enables Your Lordship, preferably to all others, to draw up a faithful and
exact Report (with that integrity and impartiality which have, at all times
Characterised Your Excellency) of the true Sentiments of our Nation ; and
to point out that distinction which ought to be observed between the
futility of the demand, and the real Rights of the Opponents.
I t is with the sincerest Confidence, we again look up for instances of
that bénéficient protection so often reiterated in our behalf, which occa-
• sions, that, under an admirable Government, the most August of Kings is
adored ; and it cannot fail of enhancing our love for him, in permitting
himself tobe represented among his Loyal subjects of Canada, in the Person
of Your Lordship ; for whose Happiness we shall not cease to pray
Montreal 3rd February
1787.
The Address was signed by 283 Persons.
J W I L L I A M S
C. C.
‘ Canadian Archives, Q 27—1. p. 440.
CONSTITUTIONAL DOCUMENTS 631
SESSIONAL PAPER No. 18
LETTER, ADDRESSED TO THE MAGISTRATES OF QUEBEC, FROM THE COMMITTEE
OF COUNCIL FOR COMMERCE AND Police.1
Quebec 13lh November 1786.
Gentlemen
His Excellency Lord Dorchester in Council having been pleased to appoint us to
be a Committee to take into consideration and to report to His Lordship (preparatory
to the meeting of the Legislative Council, which will be on the fifteenth day of January
next) the state of the Police of the Province with such improvements as may be
necessary to make therein.
We have therefore to request your sentiments with all convenient Speed, on objects
so interesting to the Province at large, and to Quebec in particular,
We have the Honor to be
Gentlemen
Your most obedient most HbIe Servts
Addressed to f Francis Levesque
Nicholas Cox | Edward Harrison
J. ‘Tachereau (sign’d) \ John Collins.
Pierre Panet | George Pownall
J. Williams. [ William Grant
Thos
Scott.
Peter Stuart
Malcolm Fraser
Jno. Coffin
Jno. Renaud
Nath1
Taylor
T. Aylwin Q. 27-1. p. 440.
F. Duschenay &
Alex1
Fraser Esq13
Quebec.
LETTER FROM THE MAGISTRATES OF QUEBEC TO THE COMMITTEE OF
COUNCIL FOR COMMERCE AND POLICE IN ANSWER TO THE
FOREGOING LETTER.1
Quebec 20th December 1786.
Gentlemen
In compliance with your request to the Magistrates signified in your
Letter of the 15th Ult°, We now lay before you what has occured x
unto us
as requisite for the improvement of the Police, establishing good order, and
promoting the general good of the community.
I
s
‘ That an Extension of the Jurisdiction of Justices of the Peace, in certain instances, would render that Office of greater public utility Viz’—By
impowering them To convict on their own view persons offending against
the Royal Ordinance, and against the
Regulations of the Police of the City of Quebec, and these Regulations to extend to the Banlieu or precincts of the City.
To determine in a summary way all Disputes between
Habitant and Habitant, concerning Fences, Ditches, Water
Courses, Damages done by Cattle, Horses, Hogs &° breaking into
[Enclosures—Imposing a small fine over and above the real Damage
done.
1
Canadian Archives, Q 27—1, p. 441.
632 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
To settle in a summary way small Debts not exceeding Forty shillings value.
To settle the Assize of Bread at such times and as often as they may think
necessary for the Benefit of the public.
To confine all Beggars asking Alms, or Vagrants Idly strolling without a
Licence either in the Town or Country.
To visit all Protestant Schools once every three Months.
2—That a House of Correction, a Work House and an Aims-House, be
provided in the City of Quebec.
3—That every Parish be obliged to maintain its own Poor, and that a
Person or Persons in each Parish be authorized and impowered to remove
interloping Paupers to the Parish where they were, either born or had last
gained a Settlement, so that no Parish may be burdened with more than
its own Poor.
4—That no Parish Priest, Curate, or other Person, give Licence to any
poor person to ask Alms without the limits of their own Parish.
5—That so much of the present Ordinance1
respecting the Covering of
Houses with ¡Shingles, as limits the time of Prosecution for the Offence to
Ten days,—be repealed.
6—That the pretended Ancient Usage in Canada, called the Abandon,
x sie. whereby on the 29th of September annually person’s51 claim a right of pulling
down fences, and opening inclosures, as it tends greatly to the Injury of
the Parmer, where the Inclosures are laid open, and to the great discouragement of industrious Agriculture, be strictly prohibited by Law.
7—That the ancient Law of the Country, prohibiting the subdivision of
Farms2
be revived by an Act of the Legislature and Rules established for
the clearing of Fields of Thistles and other noxious Weeds.
8—That all Sportsmen, Idle persons, and those who walk or ride into the
Country, be prohibited from passing over Fences, and through Fields of
Grass or Corn, or removing Rails or Pickets to gain an Entrance.
9—That the Roads to certain distances around the City of Quebec be
repaired and kept in good order by the joint Labour of the Inhabitants of
the City and the Inhabitants of the Parishes within the prescribed Limits
10—That Bridges be built over the River St. Charles and other small
rivers on the Public roads, more Especially the River St. Charles, for the
great convenience of both City and Country around from whence a great
part of the supplies to the City are Brought. The Inhabitants of the
Country Parishes frequently lose much time in waiting for a suitable time of
the Tide to cross that River, in its present state without a bridge.
11. That for the better forming and keeping in good order the Public
Roads in Winter, the use of Traineaux be prohibited, and Trains only permitted, and these to be constructed with Runners not exceeding four Inches
in height, the length to be six and a half feet, and the breadth Two feet
eight Inches to be shod with a strip of Iron lengthways in the middle of the
bottom.
12—That some fund be established, or Money appropriated for the payment
of Bailiffs and Constables, without which Justice cannot be by the
M agistrates duly administered, as daily experience evinces.
13—That a substantial Prison be provided for the District of Quebec,
xsio. and to contain a sufficient number of Apartments’1
‘to keep Prisoners separate from each other.
1
Referring to the Ordinance of 17 Geo. III., cap. 13, “For preventing accidents by fire.”
2
Referring to the Ordinance of Louis XV. of 26th April, 1745: ” Ordonnance du Roi, portant enti^
autres choses défenses aux habitans de bâtir sur les terres, à moins qu’elles ne soient d’un arpent et demi de
front sur trente â quarante de profondeur. ” See Edits, Ordonnances Royaux, Déclarations et Arrêts du
Conseil d’Etat du Roi Concernant Le Canada. Quebec, 1854: Vol. I., p. 585.
CONSTITUTIONAL DOCUMENTS 633
SESSIONAL PAPER No. 18
14—That Provision be made for the safe Custody of Criminals, Vagabonds, Rogues,
Vagrants &ca in Parishes distant from the Capital, and the Public Prison for the
District.
15—That an Act be passed by the Legislature respecting Bastard Children ; and
Apprentices ; better adapted to the circumstances of this Province than are the acts of
Parliament now in use
16—That no Person be allowed to practise Physic or Surgery within this Province
without producing Testimony of his having been regularly educated in these Professions
and without being duly licens’d by authority
17—That the Pees of these Physicians and Surgeons who may be authorised topractice be regulated by the Legislature ; The high charges of the Physicans (it is
asserted) have deterred many persons—more especially the poor Inhabitants in the
Country from applying for relief, even in cases of necessity, whereby it is very probable
many lives are annually lost.
18—That the Inhabitants of Quebec be impowered to provide means for paving and
Lighting the Streets of the City
19—That public Schools for educating youth be established throughout the Province.
These Articles are very respectfully submitted to your Judicious consideration by ;
Gentlemen
your most obedient
and
most humble Servants
(signed) Jn° Coffin.
Thos
Scott
Malcolm Fraser
To the Honourable Peter Stuart
John Collins. Juchereau Duchesnay
Edward Harrison John Renaud
Prancis Levesque Thos
Aylwin.
George Pownall Eath1
Taylor.
and
William Grant
Esquires
LETTER, ADDRESSED TO THE MERCHANTS AT THREE EIVEES, FROM THE COMMITTEE
OF COUNCIL FOR COMMERCE AND POLICE.1
QUEBEC 13th November 1786.
Letter similar to the one addressed to the Magistrates of Quebec, with same Signatures at page JfJfi?
Addressed to
Tonnancour Esq1
Aaron Hart.
Samuel Sills
Bellefeuille Esq1
La framboise
&
Malcolm Fraser
Three Rivers
1
Canadian Archives, Q 27—1. p. 447.
2
Page 440 in Q 27—1; p. 630 in, this volume.
634 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
AN ANSWER TO THE FOREGOING LETTER.1
Three Hivers 28«’ Decern’ 1786.
In consequence of the Minutes of the Proceedings of the Quebec Merchants, We the
subscribers at a late Meeting have consider’d of the following objects ;
on those subjects of the Internal and external Commerce and Police of the Province in
general, and Three Rivers, in particular, and which are universally necessary
1
st That Foreign Molasses should not be imported unless subject to such Duty as will
bring it to an equal value of Molasses imported from the British Islands.
gna ijkg importation of Wine and Fruit directly from Spain and Portugal under certain
restrictions and rules.
3
r4 Bounty* on Exports including Pot and Pearl Ash.
4
th The improvement of the Fisheries.
5. The improvement of the Wheat & Flour Trade, and establishing Public Markets.
6
th The Improvement of the Navigation of the Paver.
7
th The Recovery of Debts on the Principles of the English Commercial Laws,
Speedy processes and additional Laws for the recovery of Small Debts, which is much
wanted at this Place as well as a better Police j the present system being found no ways
beneficial to Trade, here being no means for the recovery of Small Debts but by waiting
the Arrival of the Circular Courts twice pr
year, which Courts sitting sometimes at
M achiche and sometimes here, have often been attended with many abuses, as well as
total losses. The Establishment therefore of a Weekly Court at this place, for the
recovery of Small debts would be of a general benefit.
8
111 The Establishment of Appeals and a Court of Chancery.
9
tl1 Registering of all Deeds and Mortgages, and to ‘prevent frauds on Mortgages,
and that the original Deeds and Mortgages should be left in the Hands of the Proprietors
and not left in the possession of the Notaries
10*11 Some regulation of Law for Bankrupts, to prevent Frauds.
1 Ith That a standard should be fixed for Weights & Measures in the Province.
12th Bringing all Gold Coins to one certain Weight.
13th A Tax on all Goods sold at Yendue ; Furrs and Goods sold by execution excepted
14’11 A Charter for incorporating a select number of Citizens to make Bye Laws,
authorised to Commit Felons, and decide Civil and Criminal Causes, under certain Rules
& Restrictions (without the trouble of a Journey to Montreal) and whose power should
extend as was formerly done from St. Anne to Berthier on this side, and from St. Pierre
to Masqua on the south shore, also with full power to regulate the Police
15″1
The Establishment of Public Schools we think highly necessary, and that Three
Rivers is a very proper Spot for an Establishment of that Kind.
(sign’d) Aaron Hart
Sam1
Sills
x sic Malcolm Fraser x
J. La frambois.
A REPRESENTATION BY MANY OF HIS MAJESTY’S NEW SUBJECTS AT THREE
RIVERS TO HIS EXCELLENCY, AND THE COUNCIL, VIZ.2
A son Excellence, Lord Guy Dorchester Chevalier da très
honorable ordre du Bain, Gouvernour General et Commandant en Chef de la province de Québec And be it further Enacted by the same Authority, That in Civil
Courts ¡”the Actions to be instituted in the District of Hesse, it shall not be a Ground
District of of Exception of any kind whatsoever to oust the Courts of the said District
Hesse, relat- t)f Jurisdiction, that the Cause of Action arose out of the same, or that by
cile. °ml” Reason of the Domicile of the Defendant it ought to be brought elsewhere,
but that all the Proceedings in Causes there instituted, and the Judgment
and Execution thereon, shall be deemed and adjudged to have the like
Force, Effect, and Consequences, in all Respects whatsoever, as if the Cause
of Action and Ground of Defence had arisen, and all Transactions relating
to the same had happened within the said District of Hesse.
10th And forasmuch as, for want of a regular Magistracy, and an
Establishment for the convenient Dispensation of Justice in the District of
Hesse, Attempts may be made to elude the Payment of just Debts, under
Pretext of the Laws of Prescriptioií or Limitation, which presuppose a state
of general Tranquillity, and the easy and free Course of Justice :
Particular g 6 ft a i s 0 Enacted by the same Authority, That every such Plea or
of Actions in Defence under the Laws of Prescription or Limitation, be adjudged to be
the District of null and void in every cause to be instituted in the Courts of the said
Hesse. District of Hesse, except in Actions and Cases accruing posterior to the
first day of January which will be in the year of Our Lord One Thousand,
seven hundred and ninety :
Proviso. Provided always, And be it Enacted, That nothing herein contained shall
be construed to revive a Demand for cause of Action arisen prior to the
Eirst Day of January, in the Year of Our Lord One Thousand seven hundred and Eighty-Six.
11th And whereas the Western Districts of Luneburg, Mecklenburg,
Nassau, and Hesse are, and also the District of Gaspé probably will be,
chiefly Inhabited by Persons born within the Ancient Dominions of the
Crown of Great Britain.
Proofs admis- Be it further Enacted by the same Authority, That in Civil Causes heresable m the a f£e r to be tried or Adjudged and determined in either of the said New
Districts. Districts, where the Title to the Freehold shall not come into Question, no
Proof offered in such Cause shall be deemed to be inadmissible, that would
be sufficient to sustain the Point for which the same is offered, either by
the ancient or present Laws of the Province, or by the Laws of England.
S
bîe ?f ^h™’ 1 2 t h W n e r e Moveables shall be taken in Execution by the Sheriff of the
newDistrict District of Hesse, Luneburg, Mecklenburg, or Nassau, or Gaspé, he shall
cause such seizure to be published at the Church Door of the Parish immediately after Divine Service, on the First Sunday succeeding such Seizure ;
or if there be no Church in the Township or Parish then such seizure shall
be notified by Publication or Advertisement in Writing affixed to the Door
of the Court House of the District, and also at the nearest Grist Mill, as
soon as may be after such Seizure ; and the said Notification shall design
the Day and Place where and when he means to proceed to the Sale thereof, not protracting such Sale beyound Fourteen Days from the Date of such
Publication : And when Lands and Tenements shall be taken in Execution
Sale of Real by the Sheriff of either of the said Districts, he shall advertize the Sale by
Estates. Three several Publications in Writing, to be fixed at the Door of the Court
House of the District, and in some ostensible Place in the Office of Clerk of
662 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
t h e Court whence the Execution issued, a n d a t t h e nearest Grist Mill, such
Notice to be renewed t h e F i r s t M o n d a y of Three Successive M o n t h s preceding t h e Sale, which shall not t a k e Place in less t h a n F o u r M o n t h s after
t h e D a t e of t h e F i r s t Publication.
In Personal 13t u Be i t further Enacted b y t h e same authority, T h a t in all Personal
Actions no Actions to be instituted in any of Districts in this Province, i t shall not be
be taken by a legal Exception t h a t the Cause of Action arose out of such District, or
Reason of the t h a t by reason of the Domicile of t h e Defendant i t ought to be b r o u g h t
the™ Defend- elsewhere ; b u t t h a t all the Proceedings in such Actions, a n d t h e J u d g –
ant. ments a n d Executions thereon, shall be deemed a n d adjudged to have t h e
like Force a n d Effect in every Respect as if t h e Cause of Action and G r o u n d
of Defence h a d arisen, a n d all Transactions relating thereto h a d happened,
in t h e District where the Action is instituted, a n y Law, Usage, or Custom
to the Contrary notwithstanding.
Executions to 14th A n d be it enacted by t h e same A u t h o r i t y , t h a t t h e Course a n d
District to the •^> o w e r g i v e t l ^>J *^e s a i d Act, intituled, ” A n Ordinance to regulate the
other. ” Proceedings in the Courts of Civil Judicatur e, and to establish Trials by
” J u r i e s in Actions of a Commercial N a t u r e and Personal Wrongs to be
” compensated in Damages,” for perfecting the Execution of a J u d g m e n t
out of t h e District ‘where t h e same was rendered, shall be pursued in every
old or new District of the Province,
Appeals from 15th _Aja(j ^&Xj Parties adjudged in the said N e w Districts may not be
tricts?W 1S” deprived of their R i g h t a n d Benefit of Appeal :
Be it further E n a c t e d by the same Authority, T h a t the giving security as
heretofore used on t h e bringing of a W r i t of Appeal, shall as effectually
suspend Execution in Causes of t h e said Districts, as in t h e old Districts on
t h e actual Production of a W r i t of Appeal, such Appellant in all other
Respects conforming to t h e L a w of Appeals as it now stands, and suing out,
within Twenty Da y s after J u d g m e n t , a n Office Copy of t h e Proceedings in
the Cause adjudged ; which to prevent Delays, shall be as effectual before
the Appellate Jurisdiction as if transmitted according to t h e present L a w
and Usage in Appeals from t h e Common Pleas Courts of t h e old Districts.
D O R C H E S T E R
G R E N V I L L E T O D O R C H E S T E R . 1
(Private and Secret.)
W H I T E H A L L 20t h Octr
1789.
T h e R i g h t HonW e
L o r d Dorchester,
&° &° &c
.
M Y L O R D ,
The public dispatches 2
of this date will inform your Lordship of the intention of
H i s Majesty’s Servants, with respect to t h e plan to be proposed in P a r l i a m e n t for altering t h e present Constitution of C a n a d a . —I feel t h a t it is due to your Lordship, t h a t I
should inform you of t h e grounds on which this resolution has been adopted, in a more
particular m a n n e r t h a n t h e n a t u r e of a public dispatch appears to a d m i t ; and/ for t h a t
1
Canadian Archives, Q 42 p. 92. William Wyndham Grenville, a cousin and favourite of Pitt, the
Prime Minister, resigned the position of Speaker of the House of Commons to become Secretary of State
for the Home Department, in June 1789, m succession to Lord Sydney. He was raised to the Peerage as
Lord Grenville in 1790. In 1806 in coalition with Pox he became head of the famous ” Ministry of all the
Talents.”
2
See the despatch which follows this.
CONSTITUTIONAL DOCUMENTS 663
SESSIONAL PAPER No. 18
•
purpose, I inclose to your Lordship in confidence, a paper containing the heads of those
suggestions, on which the present measures are founded.
1
I am persuaded that it is a
point of true Policy to make these Concessions at a time when they may be received as
matter of favour, and when it is in Our own power to regulate and direct the manner
of applying them, rather than to wait ’till they shall be extorted from us by a necessity
which shall neither leave us any discretion in the form, nor any merit in the substance
of what We give.
I am ignorant how far your Lordship’s Opinion coincides with the ideas stated in
the inclosed paper. One point I observe, and have alluded to in my public Letter, on
which you have stated Objections ; but I think they are such as apply to the present «
state of the Province, rather than to what it would be under a different form of
Government.
With regard to the remainder, it would certainly give me great satisfaction if I
could find the opinions which I entertain confirmed by your Lordship’s experience and
knowledge of the Subject.
But, in all events, I have not the smallest doubt of your Lordship’s wish to co-operate in carrying into execution, in the most advantageous manner, that Plan which
Parliament shall ultimately adopt, on a subject which has been so- long before them ;
and I trust you will see the importance in this point of view, of your delaying your visit
to this Country, ’till after the new Government shall have been put in motion.
There is one subject adverted to in the paper which I now enclose, of which no
mention is made, either in the Bill now transmitted to your Lordship, or in the dispatch
which accompanies it. What I mean is, the suggestion relative to the possibility of
making such reservations of Land adjacent to all future Grants, as may secure to the
Crown a certain and improving Revenue.2—A Measure, which, if it had been adopted
when the Old Colonies were first settled, would have retained them to this hour in
obedience and Loyalty* I confess that I am very particularly anxious to find myself
sufficiently informed to be able to recommend to His Majesty, the adoption of some
system of this nature, in His remaining Colonies, and I should therefore feel myself
obliged to your Lordship, if you would consider it with attention, and state to me your
Sentiments, both as to the general principle, and as to the best mode of carrying it into
effect, in the different Provinces under the King’s Government in North America.
Your Lordship will perceive, by the different accounts, which you will receive from
Europe, that the state of France is such, as gives Us little to fear from that quarter in
the present moment. The opportunity is therefore most favourable for the adoption of
such measures as may tend to consolidate Our strength, and increase our resources, so
as to enable Ourselves to meet any efforts that the most favorable event of the present
troubles can ever enable her to make.
I am &c
W. W. GRENVILLE.
GRENVTLLE TO DORCHESTER. 3
(N° 2.) WHITEHALL 20th Octr
1789.
R* HonWe Lord Dorchester
Quebec.
My Lord,
I t having been determined to bring under the consideration of Parliament early in the next Session the propriety of making farther provision for the good
government of the Province of Quebec, I enclose to your Lordship the draught of a Bill
prepared for.this purpose.4
1
This paper does not accompany the despatch.
2
Referring to the proposed Grown Reserves.
3
Canadian Archives, Q 42, p. 96. This is the public despatch referred to in the foregoing letter.
4
See below, p. 6C7.
664 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
His Majesty’s Servants are desirous, before this Plan shall be proposed to Parliament, to avail themselves of such observations upon it as your Lordship’s experience
and local knowledge may suggest. I t is probable’ that Parliament may not meet till
towards the end of January next, and that there will therefore be full time for me to
receive your Lordship’s answer to this dispatch with such remarks as may occur to you ‘
on the proposed Bill, and with such information as may be necessary to enable me to
supply those particulars of detail which are now left in blank.
Your Lordship will observe that the general object of this plan is to assimilate the
Constitution of that Province to that of Great Britain, as nearly as the difference arising from the manners of the People and from the present Situation of the Province will
admit.
In doing this a considerable degree of attention is due to the prejudices and habits
of the French Inhabitants who compose so large a proportion of the community, and
every degree of caution should be used to continue to them the enjoyment of thost civil
and religious Rights which were secured to them by the Capitulation of the Province,
or have since been granted by the liberal and enlightened spirit of the British Government.
This consideration has had a great degree of weight in the adoption of the plan of
dividing the Province of Quebec into two Districts which are to remain as at present
under the administration of a Governor General, but are each to have a Lieut. Governor
and a separate Legislature.
The King’s Servants have not overlooked the reasons urged by your Lordship
against such a separation,1
and they feel that while Canada remained under its present
form of Government great weight would have been due to those suggestions ; but when
the resolution was taken of establishing a Provincial Legislature, to be constituted in
the manner now proposed, and to be chosen in part by the People every consideration
of policy seemed to render it desirable that the great preponderance possessed in the
Upper Districts by the King’s antient Subjects, and in the lower by the French Canadians
should have their effect and operation in separate Legislatures ; rather than that these
two bodies of People should be blended together in the first formation of the new Constitution, and before sufficient time has been allowed for the removal of antient prejudices,
by the habit of obedience to the same Government, and by the sense of a common
interest.
With respect to the intended Boundaries of these Provinces a blank is left in the
Bill in order that your Lordship may, with the assistance of the Surveyor General, who
is now in Quebec, consider of such a description of those Boundaries as may be sufficiently intelligible and certain, so as to leave no room for future difficulties on that subject. The division between the two Provinces is meant to be the same as is mentioned
to yourLordship in Lord Sydney’s Letter of 3d
Sept1
1788, with the alteration suggested
by your Lordship in your Letter of the 8th November following.2
There will however be a considerable difficulty in the mode of describing the
Boundary between the District of Upper Canada and the Territories of the United
States. As the adhering to the Line mentioned in the Treaty with America would
exclude the Posts which are still in His Majesty’s Possession, and which the infraction
of the Treaty on the part of America has induced His Majesty to retain, while on the
other hand the including them by express words within the Limits to be established
for the Province by an Act of the British Parliament would probably excite a considerable degree of resentment among the Inhabitants of the United States, and might perhaps provoke them to measures detrimental to Our Commercial Interests. Possibly the
best solution for this difficulty might be to describe the Upper District by some general
words such as “All the Territories &c. &c.
as I hoped might include the Territories subject to, or possessed ‘ by, His
Majesty, to the southward of the forty fifth degree of North Latitude on
the side of Lake Champlain, as well as oh the side of Oswego, Niagara,
Detroit, and Michilimakinac, corresponding as nearly as could be, with the
idea expressed in you-r letter. But upon consulting the Chief Justice, relative to the operation of this description of the Boundary, I find, that he
does not think it will answer the desired end.
The District of Gaspé it seems best for the present to leave annexed to
the Province of Lower Canada, on account of its commercial connection
with this province, and because, notwithstanding its distance, the communication of it with Quebec by water; is easier than its access to the seat of
the Government of New Brunswick, in the present condition of that pro1
Canadian Archives, Q. 44-1, p. 20.
2
See p. 663.
3
See below, p. 677.
CONSTITUTIONAL DOCUMENTS 675
SESSIONAL PAPER No. 18
vince ;. the more so, as the difficulty of a representation from that District,
in an Assembly at Quebec is greatly diminished, by the opening left in the
Bill for non residents of any district being elected Representatives thereof.
But the Bay of Chaleurs being subject to different Governments, particularly during the present uninhabited state of that part of New Brunswick, gives an opportunity to ill disposed persons to elude the controul of
the law, to the detriment of the Fisheries, and good order ; a clause to
B remedy this Evil is therefore inclosed, which, if approved of, may be introduced into the Bill, as an addition to the second clause.1
Many advantages might result from an hereditary Legislative Council,
distinguished by some mark of honor, did the condition of the country concur in supporting this dignity ; but the fluctuating state of Property in these
Provinces would expose all hereditary honors to fall into disregard ; for the
present therefore it would seem more advisable to appoint the members
during life, good behaviour, and residence in the province. The number for
Upper Canada to be not less than seven, and for Lower Canada not less than
fifteen, to be encreased by His Majesty, as the wealth and population of the
Country may require. To give thtm as much consequence as possible, in
the present condition of the Province, they should be selected from among
the men of property, where talents, integrity, and a firm attachment to the
Unity of the Empire may be found. I shall take the first opportunity of
communicating the names of such persons, as appear to me the fittest objects
of this description.
The House of Assembly for Upper Canada might consist of not less
than Sixteen, and that for Lower Canada of not less than thirty members,
or nearly double in number to the Legislative Councils, to be augmented
also in proportion to the Population of thé Country.
As far as I can judge at present it might be advisable to give the
Towns of Quebec and Montreal in I-iower Canada, a representation of four
members each, and two to the Town of Three Rivers, dividing the Country
Parishes thereof into twenty Circles, to send one member each. In Upper
Canada the four districts of Luneburg, Mecklenburg, Nassau, and Hesse,
to furnish four members each, and hereafter to be subdivided into as many
Circles and Towns, as their condition may require. But the present time
is too short to enter into a more minute detail, for which reason it is-
proposed to fix only the smallest number of Members in the Bill, and to leave
the actual subdivision and apportionment, necessary for an equal representation, to be ascertained by the Lieutenant Governors, with the advice of
the Executive Councils, of the respective Provinces, under authority for
that purpose from His Majesty.
The qualification of Electors, and persons to be Elected, as to birth,
has been extended to inhabitants of the Provinces before and since the
conquest, because they may be considered upon an equal footing with the
natives, and to foreigners naturalized, because an accession to the Province
of light and property from abroad is desirable, and not likely to injure the
King’s interest, under the guards proposed.
The disqualifications of Persons, attainted for Treason, and Felony,
Deserters from the Militia when called out into service, and Bankrupts,
until the full payment of their debts, have been added to the fourteenth
clause, as a check to these evils, and from a persuasion, that persons of that
description are not entitled to any political honors or consequence.
On the expediency of inserting any commercial regulations, as exceptions to the Laws of Canada, previous to investing the Assembly in Lower
Canada with a right to negative all future changes, I regret that the complicated and professional nature of the subject, prevents my forming any
1
This is the clause marked B, given below, p. 684.
18—3—43£
676 CANADIAN ARCHIVES
6-7 EDWARD VIL, A. 1907
other than a general opinion, that whatever regulatipns of this sort shall
be thought proper to be adopted, should be enacted Specially, unfolded to
the people, and not introduced in bulk, and by general description.
The introduction of a Soccage Tenure I think necessary in the upper
country, and advisable in every part of the province, and this free of Quitrents from all, holding no more than one thousand acres, as recommended
in my letter to Lord Sydney1
N° 18. And the Quitrent, which it may be
judged proper to lay on large Tracts, should be given up to the Provincial
Governments foi their Support, that all seeds of discord between Great
Britain and her Colonies may be prevented. And independent of this important consideration perhaps the true principle of Oeconomy is rather to
obviate the necessity of sending money Abroad, than to bring home anyfrom Quitrents or Duties of any Kind.
I take for granted, that the benefits, arising to the subject, from a
change of the tenure in Fief to that in Common Soccage, are meant to run
throughout, as from the King to His Tenant, so from the latter to all his
Under-tenants, a t the time of change ; Otherwise the advantages will be
confined to a few, and an interest created unfriendly to the improvement of
the country. Some alterations have been made in the clause relative to
this point, with a view of clearing doubt upon the subject.
The commencement of the operation of the Act, as to every part, excepting only the issuing the “Writs of Election, and calling together the
Houses of Assembly of the respective Provinces, has been fixed at such time,
as may be declared by His Majesty, with the advice of His Privy Council,
not later than Six months after the notification of the Act in this Country,
which I think will allow time sufficient for all necessary arrangements, as to
these points.
But for the Convocation of the Assemblies a more distant period
appears to be necessary, for the reasons above stated. As soon as the
proper plans for their organization shall have been prepared, His Majesty
may order the Assemblies to be convened, as soon as convenient, previous
to the first of January. 1792, as suggested in the thirty firtt clause of the
Bill, to which is likewise added a proposal for the temporary Government
of the two Provinces in the interval, by the Lieutenant Governors, and
Legislative Councils thereof, According to the model of the Quebec Bill.
Should this be approved, the Royal indulgence of returning to England
for a few months on my private Affairs, would give me an opportunity to
lay before His Majesty’s Ministers all further explanations in my power
on this subject.
Before I conclude, I have to submit to the wisdom of His Majesty’s
Councils, whether it may not he advisable to establish a General Government for His Majesty’s Dominions upon this Continent, as well as a
Governor General, whereby the united exertions of His Majesty’s North
American Provinces may more effectually be directed to the general interest,
and to the preservation of the Unity of the Empire.2
O I inclose a copy of a letter from the Chief Justice, with some additional
j) clauses, upon this subject,3
prepared by him at my request, together with
E his draught of an other proposed addition to the Bill, to provide for the
-p trial of foreign treason and murder,4
as also a copy of his letter respecting
Q. the operation of the Boundary, as described in the Bill,5
with his idea of
the Addition necessary to give free scope to our Courts of Justice.” The
1
See Dorchester to Sydney, June 13th, 1787 ; given at p. 646.
2 See below, p. 687.
s See below, p. 685. 4
See below, p. 689.
5
See Q 44-1, p. 79. 6
See Q 44 1, p. 83.
CONSTITUTIONAL DOCUMENTS 677
SESSIONAL PAPER No. 18
clause above referred to under the letter B was also prepared by him at my
request.
I am with much respect and esteem,
Sir,
Your most obedient, and most humble servant.
DORCHESTER
The Right Hon1
Mr. W. Grenville
SECOND D R A U G H T OP CONSTITUTIONAL BILL. 1
1. May it therefore please Your Most Excellent Majesty that it may be
Mem. The enacted, and be it enacted, by the King’s most Excellent Majesty, by and
NewYork6 6 ”
w i t a ^ e advice, and consent of the Lords spiritual and temporal and
and the Pro- commons, in this present Parliament assembled, and by the authority of
vinee of the same, that so much of the said Act, as in any manner relates to the
adjusted™*™ establishment of the boundaries of the Province of Quebec or to the appointthe Crown in ment of a Council for the affairs of the said Province or to the power given
F
r
“y Council by the gaj^j _^c^ to the said Council or to the major part of them to make
communica- Ordinances for the peace, welfare and good Government of the said Protions made to vince, with the consent of His Majesty’s Governor, Lieutenant Governor,
th6
Sa6
th°rS o r Commander in Chief for the time being, shall be, and the same is hereby
Board of ° repealed.
Trade 2
(2) And be it also Enacted by the Authority aforesaid, that the Country
of Canada shall be, and the same is hereby, divided into two Provinces to
be called the Province of Upper Canada and the Province of Lower
Canada, which Provinces shall be separated by a partition line of various
This Clause courses running due South from a Stone boundary fixed on the north bank
is entirely 0f the Lake Saint Prancis in a cove of the River of Saint Lawrence, West
See also the of Point au Boudet in the limit between the Township of Lancaster and
Clause B, the seigniory of New Longueuil to the Southernmost extent of His
W sedbv the Majesty’s Dominions and running in a Northerly direction from the aforeChief Justice, said stone boundary along the Western or inland bounds of the said
to be inserted Seigniory of New Longueuil and of the Seigniory of Vaudreuil, according
this Clause0
‘ *° their various courses, until it strikes the Uttawas River, thence in a
direct Line to the nearest point in the centre of the navigable channel of
the said river, thence ascending the middle of the navigable Channel of the
said river to the Lake Temiscaming, thence through the middle of the said
Lake to the most Northerly extremity thereof, and thence running due
North, to the boundary of the Territory granted to the Merchants Adventurers of England trading to Hudson’s Bay.4
The Province of Upper
Canada to comprehend all the Territories, Lands and Countries, which
are now subject to, or possessed by His Majesty, to the westward and
southward of the said Partition Line ; and the Province of Lower Canada
to comprehend all the Territories, Lands and Countries, which are now
subject .to, or possessed by His Majesty to the eastward of the said partition Line, and to the southward of the southern boundary of the said
Territories granted to the Merchants Adventurers of England, trading to,
1
Canadian Archives, Q 44-1, p. 30. The first draught of the Constitutional Bill having been sent to.
Doichester for his supervision and completion, we have here the second draught of the bill as amended by
him, with the assistance of Chief Justice Smith.’
2
This boundary was first defined by the Proclamation of 1763, but was afterwards revised. See note
2, p. 339. 3
See below, p. 6S4.
4
This follows with some verbal changes the boundary as previously given by Dorchester, See p. 655.
678 CANADIAN ARCHIVES
6-7 EDWARD VIL, A- 1907
Hudson’s Bay, being no part of the Government of Newfoundland or any
other of His Majesty’s Provinces in North America, at the time of passing
this Act.1
3. And be it further enacted by the authority aforesaid, that there
shall be, within each of the said Provinces respectively, a Legislative
Council and a house of Assembly, to be severally composed and constituted,
in the manner hereinafter described.
And that in each of the said Provinces, respectively, His Majesty, His
Heirs, or Successors shall have power, by and with the advice and consent
of the Legislative Council, and House of Assembly of such Provinces
res2>ectively, to make Laws for the peace, welfare, and good Government
thereof ; And that such laws being passed by the Legislative Council, and
House of Assembly, of either of the said Provinces, respectively and being
assented to by His Majesty, His Heirs, or Successors, or being assented to,
in His Majesty’s name, by such person as His Majesty shall from time to
time appoint to be His Governor or Lieutenant Governor of such Province ;
or as His Majesty shall from time to time appoint to administer His
Government within the same, in the absence of such Governor or Lieutenant Governor, shall be valid, and binding on the Inhabitants of the
Province, in which the same shall have been so passed.
4. And be it further enacted by the authority aforesaid that for the
purpose of constituting such Legislative Council, as aforesaid, in each of
the said Provinces respectively, it shall and may be lawful for His Majesty,
His Heirs or Successors, by and with the advice of the Privy Council, to
authorize and direct His Governor, or Lieutenant Governor or Person
administering His Government in each of the said Provinces respectively,
within the time hereinafter mentioned, in His Majesty’s name and by an
Instrument under the Great Seal of the Province to summon to the said
Legislative Council, to be established in each of the said Provinces
respectively a sufficient number of discreet and proper persons being not
fewer than (7) to the Legislative Council for the Province of Upper Canada ;
and not fewer than (15) to the Legislative Council for the Province of
by Virtue of Lower Canada. And that the Persons so summoned shall thereby become
^ ¿ 3 _ m
” members of the Legislative Councils, to which they shall respectively
(sic in MS) have been so summoned, and shall constitute and compose the same
respectively. And that it shall also be lawful for His Majesty, His Heirs
or Successors from time to time, by and with the advice of the Privy
Council to authorize and direct His Governor or Lieutenant Governor or
Person administering His Government, in each of the said Provinces
respectively to Summon to the said Legislative Councils of the said Provinces respectively in like manner, such other person or Persons, as His
Majesty, His Heirs or Successors shall think fit.
by Virtue of And that every Person who shall be so summoned to the Legislative Council
such Sum- of either of the said Provinces respectively shall thereby become a Member
These words °^ s u o n Legislative Council, to which he shall have been so summoned,
are new / And the major part of them duly assembled shall constitute a Legislative
(sic in MS) I. House or Council.
1
As to the difficulty of defining the boundaries of the Canadas, see note 3, p. 667 ; also Dorchester to
Grenville, Peb. 8th, p. 674. A suggestion of Chief Justice Smith was rather ingenious, ” If to Your Lordship’s
description, there bean addition, importing, that by Canada is meant whatever the French claimed as New
France, until His Majesty shall otherwise declare by Proclamation, the boundaries of the New Provinces
will be what the wisdom of the Crown shall see expedient, without waiting for the intervention of Parliament ; and the Colony Legislatures and Courts be unembarrassed ; the French Government having made
grants down to the south end of Lake George and asserting a dominion all round the Inland Great Lakes.
A. clause to this effect is inclosed and submitted to Your Lordship’s Pleasure.” Q 44-1, p. 81. The clause
is as follows :—”And the Country of Canada herein before mentioned shall be deemed and adjudged to
include all the Dominions of New France as claimed by the French Crown before the Conquest until His
Majesty shall otherwise declare by an Instrument to be issued with the advice of His Privy Council under
the Great Seal of Great Britain.” Q 44-1, p. 83.
CONSTITUTIONAL DOCUMENTS 679
These words
are new. -!
(sic in MS)
6.
any such member
SESSIONAL PAPER No. 18
(5) Provided always, and be it enacted by the authority aforesaid that
no person shall be summoned to the said Legislative Council, in either of
the said Provinces, who shall not be of the full age of twenty one years,
and who shall not be a natural born subject of His Majesty,
or shall not have been an Inhabitant of one of the said Provinces before
and since the thirteenth day of September One thousand seven hundred
and fifty nine, or else being of foreign birth, shall not have been naturalized by an Act of Parliament or a law of the Province.
And be it further enacted that every member of each of the said
Legislative Councils shall hold his seat therein for the term of his life, but
subject nevertherless to the Provisions hereinafter contained, for vacating
the same, in the cases hereinafter Specified.
Provided always and be it enacted by the authority aforesaid, that
if any member of either of the said Legislative Councils shall leave the
Province, for which he was appointed a Councillor, and shall reside out of
the same, for the space of one year continually, without the permission of
the Governor, or Lieutenant Governor, of the Province, or of the Person
administering His Majesty’s Government there, such permission to be signified to such Legislative Council, by such Governor, Lieutenant Governor, or
Person administering His Majesty’s Government, or if he shall reside out of
such Province, for the space of two years continually without the permission of His Majesty, His Heirs respectively, to call together an Assembly in and for such Province.
11. And be it further enacted by the authority aforesaid, that for the
purpose of electing the members of such Assemblies respectively, it shall
and may be lawful for His Majesty, His Heirs, or Successors, to authorize
His Governor, or Lieutenant Governor, of each of the said Provinces, or the
Person, administering His Government therein respectively, to issue a
Proclamation dividing such Province into districts, Counties or circles and
Towns and appointing the limits thereof, and fixing and declaring the nwrnher of Representatives, to he chosen by each : And that it shall also be lawful
for His Majesty to authorize such Governor, or Person as aforesaid, to
nominate and appoint proper Persons under the name of Sheriffs and Bailiffs
or any other name to execute the office of Returning Officer, in each of the
said Districts, Counties or Circles and Towns respectively.
8.
% the words
“said”&
“respectively’
inserted in
pencil above
the line.
10.
680 CANADIAN ARCHIVES
6.-7 EDWARD VIL, A. 1907
Î sic in MS. ( 12tt Clause omitted here*)x
j2 Provided always, and be it enacted by the authority aforesaid that
This clause t n e whole number of members to be chosen in the Province of Upper
new. Canada shall not be less than sixteen, and that the whole number of
(sic m MS) Members to be chosen in the Province of Lower Canada shall not be lessthan thirty.
13. And be it further enacted that Writs for the Election of Members
to serve in the said Assemblies respectively shall be issued by the Governor
or Lieutenant Governor or Person administering His Majesty’s Government,
within the said Provinces respectively, within (14) days after the sealing of
such instrument as aforesaid, and shall be directed to the respective returning Officers of the said Districts Counties, or Circles and Towns ; And
that the Form of such Writs shall be, as nearly as may be, conformable to
that of the Writs, issued in Great Britain, for the Election of Members to
serve in Parliament ; And that such returning Officers, shall, and they are
hereby authorized and required, duly to execute such Writs, and all other
* writs, which shall issue in pursuance of this Act, and shall be directed to
them ; And that writs shall in like manner and form, be issued for the
Electioiî of Members in the case of any vacancy which shall happen by the
Death of the person chosen ; or by his being summoned to the Legislative
Council of either Province, in which case it is hereby enacted that the
person so summoned shall no longer continue a member of the said houses
of Assembly or either of them.
And be it also enacted, that in the case of any vacancy by the death of
the person chosen, or by reason of his being so summoned as aforesaid, the
writ for the election of a new member in the room of the person, so dead,
new / or so summoned, shall be issued within six days after the same shall be made
(Sic in MS.)\ known to the proper office for issuing such Writs of Election.
* Sic in MS. Clause 14—omitted*
**• And be it further enacted that no person shall be capable of voting
i • • *M the same [within each of the said Provinces respectively.]
1
Clause 12 of the first draught is left out, while clause 12 of the present draught takes the place of
clause 14 of the first. There are several other changes of a like nature.
new
(Sic in MS)
new
(Sic in MS)
CONSTITUTIONAL DOCUMENTS 68.1
new
(sic m MS)
17.
This appears
unnecessary
if the former
SESSIONAL PAPER No. 18
And that the Members for the several Towns within the said Provinces
respectively shall be chosen by the majority of votes of such persons ; qualified
to vote as aforesaid, as shall severally be possessed of a Dwelling house and
Lot of Ground in such Town or in the Township or Parish thereof held in
like manner as aforesaid, or as having been resident within such town, or in
the Township, or Parish thereof for the spa^e of Twelve months next before
the date of the “Writ of Summons for the election, shall be possessed of the
value of One hundred Pounds Sterling in personal property within the same.
16. And be it further enacted by the authority aforesaid, that every
Voter, before he is admitted to give his Vote, at any such election, shall
if required by any of the Candidates or by the returning Officer take the
following Oath, which shall be administered in the English or French
Language as the case may require :
I A.B. do declare and testify in the presence of Almighty God, that I am,
to the best of my knowledge and belief, of the full age of Twenty one years
(and a natural born subject of His Majesty King George) or and (that I
have been an Inhabitant of one of His Majesty’s Provinces of Upper or
lower Canada, before and since the thirteenth day of September One
thousand seven hundred and fifty nine) or (and that I have been naturalized by Act of Parliament or a law of the Province) and that I have not
been polled before at this election.
And be it further enacted by the Authority aforesaid, that it shall
and may be lawful for His Majesty, His Heirs or Successors, to authorize
His Governor or Lieutenant Governor, of each of the said Provinces respectively, to fix the time and place of holding such elections, and to nominate
proper persons to preside at the Elections for the Towns, and to make
Glausestemds. returns of the same, subjrct nevertheless to such Provisions, as may hérésie m MS.) after be made in these respects by the Legislature of the Province.
18. And be it further enacted by the authority aforesaid, that it shall
and may be lawful for His Majesty, His Heirs or Successors to authorize
His Governor, or Lieutenant Governor of each of the said Provinces respectively, or the person administering His Government therein respectively to
fix the place* and times of holding the first and every other Session of the
Legislative Council and Assembly of each of the said Provinces and to prorogue the same from time to time, and to dissolve the same by Proclamation or Proclamations or otherwise whenever he shall judge it necessary.
19. Provided always, and be it enacted by the authority aforesaid, that
the said Legislative Council, and Assembly, in each of the said Provinces,
shall be called together once at the least in every twelve Calendar months ;
And that every Assembly shall continue for (7) years from the day of
the Return of the Writs for chusing the same, and no longer, subject nevertheless, to be sooner dissolved by the Governor, or Lieutenant Governor of
the Province, or Person, administering His Majesty’s Government there.
20- And be it further enacted, by the Authority aforesaid, that all questions which shall arise in the said Legislative Councils, or Assemblies,
respectively shall be decided by the Majority of Voices.
And that in cases where the Voices shall be equal the Speaker of such
Council, or Assembly, as the case shall be, shall have a casting Voice.
And that one half of the whole number of the members of each Assembly
respectively, duly assembled, and attending shall constitute a House of
Assembly
21. Provided always, and be it enacted by the authority aforesaid, that
no member either of the Legislative Council, or Assembly, in either of the
said Provinces, shall be permitted to sit, or to vote, therein, untill he shall
have taken and Subscribed the following Oath, either before the Governor
or Lieutenant Governor, of such Province, or Person administering His
CANADIAN ARCHIVES
6T7 EDWARD VII., A. 1907
Majesty’s Government there, or before some Person, or Persons, authorized
by the said Governor or Lieutenant Governor, or other Person, as aforesaid, to administer the same ; And that the same shall be administered in
the English or French”, Language, as the case shall require :
I A. B. do sincerely promise and swear, that I will be faithfull, and bear
true Allegiance to His Majesty, King George, as Lawful Sovereign of the
Kingdom of Great Britain, and of these Provinces thereunto belonging, and
that I will defend him to the utmost of my power against all traiterous
conspiracies, and attempts, whatever, which shall be made against His
Person, Crown, and Dignity ; and that I will do my utmost endeavour to
disclose and make Known to His Majesty, His Heirs, or Successors, all
treasons and traiterous conspiracies, and attempts which I shall know to be
against him or any of them ; And all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons
and dispensations, from any Person, or Power, whatever, to the contrary.
So help me God.
And be it further enacted by the authority aforesaid, that whenever
any Bill, which has been parsed by the Legislative Council, and by the
House of Assembly, in either of the said Provinces respectively, shall be
presented for His Majesty’s assent, to the Governor or Lieutenant Governor
of such Province, or to the Person administering His Majesty’s Government for the same, it shall and may be lawful for such Governor, or Lieutenant Governor, or other Person as aforesaid, at his discretion, subject
nevertheless to such Instructions as he may from time to time receive from
His Majesty, His Heirs, or Successors, either to declare His Majesty’s
Assent to such Bill, or to declare, that he withholds such assent, or that he
reserves the Bill, until His Majesty’s pleasure shall be signified thereon.
And be it further enacted by the Authority aforesaid, that no such
Bill, which shall be so reserved, by the Governor,,or Lieutenant Governor,
or Person administering His Majesty’s Government, shall have the force of
Law within the Province, in which the same shall have been so reserved,
until such Governor, or Lieutenant Governor, or other Person as aforesaid,
shall signify either by Speech or Message to the said Legislative Council
and Assembly of such Province, or by Proclamation, that such Bill has been
laid before His Majesty in Council, and that His Majesty has been pleased
to approve the same.
And be it further enacted by the authority aforesaid, that all Laws,
Ordinances, and usages, now in force, in either of the said Provinces respectively, respecting the description, quality, trial or punishment of
offences, or respecting the decision of any matter of controversy, relative to
property, or civil rights, shall remain, and continue to be of the same force,
and effect, in each of the said Provinces respectively, as at present, except
in so far, as the same are expressly varied by this Act, or in so far, as the
same shall, or may, hereafter be repealed, altered, or varied, by His Majesty, His Heirs, or Successors by and with the advice and consent of the
respective Legislative Councils, and Assemblies of the said Provinces respectively.
Provided also, and be it enacted by the authority aforesaid, that if
any Person, or Persons, holding any Lands in the said Provinces, or either
of them, immediately of the Crown in Fief, or in any other manner, than
in free and common Soccage, and having a right to alienate the same, shall
at any time from and after the commencement of this Act, surrender the
same into the hands of His Majesty, His Heirs, or Successors, by petition
to the Governor, or Lieutenant Governor, or other Person administering
the Government of the said Provinces respectively, setting forth, that he,
she, or they, is or are, desirous of holding the same in free and common
Soccage, such Governor, or Lieutenant Governor, or other Person, as afore-
CONSTITUTIONAL DOCUMENTS 683
new
SESSIONAL PAPER No. 18
said, shall thereupon cause a fresh Grant to be made to such Person or
Persons of such Lands, to be holden in free and common Soccage.
And every such change of Tenure shall work the absolute extinguishment
of all Mutation, Fines, burthens and incumbrances within the Tract so
–.. , surrendered, and regranted, to which the same, or any part thereof, would
(sic in MS) i o r m ight have been liable, under the laws and customs, concerning lands
held in Fief or in Roture, or in any other manner than in free and common
l_ Soccage in either of the said Provinces.
26. Provided nevertheless, and be it enacted by the Authority aforesaid,
that such surrender and grant, shall not avoid or Bar, any right to any
see Clause E. s u c h lands so Surrendered, or any interest in the same, to which any Person
extension o r Persons, other than the Person, or Persons, surrendering the same, shall
proposed to be have been intitled, either in possession, remainder, or reversion, or otherOriminal wise, at the time of such surrender, but that every such right and title
Law.i shall be as valid, and effectual, as if such surrender and grant had never
{sic in MS) been made.
27. And whereas it has been declared by an Act, passed in the Eighteenth
Year of the Reign of His present Majesty,2
that the King and Parliament
of Great Britain will not impose any Duty, Tax, or Assessment whatever,
payable in any of His Majesty’s Colonies, Provinces, and Plantations, in
North America, or the West Indies, except only such duties, as it may be
expedient to impose for the regulation of Commerce, the Net Produce of
such Duties to be always applied to and for the use of the Colony, Province
or Plantation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective General
Courts or General Assemblies, of such Colonies Provinces or Plantations,
are ordinarily paid and applied.
And whereas it is necessary for the general benefit of the British Empire,
that such Power of Regulation of Commerce should continue to be exercised
by His Majesty, and the Parliament of Great Britain, subject nevertheless
to the condition herein before Specified, with respect to the application of
any Duties, which may be imposed for that purpose ;
Be it therefore enacted by the authority aforesaid, that nothing in this
Act contained shall extend, or be construed to extend, to prevent, or affect
– the due execution of any Law, which has been, or shall be enacted by His
. – Majesty, and the Parliament of Great Britain for establishing Regulations,
and Prohibitions, and for imposing, levying, and collecting, Duties for the
Regulation of Commerce and Navigation.
28. Provided always and be it enacted by the authority aforesaid, that
all Duties, which shall be so imposed, shall be subject, and liable, to the
sole disposition of the Legislatures of the respective Provinces, as established
by this Act.
29. And be it further enacted by the authority aforesaid, that nothing in
this act contained, shall extend, or be construed to extend, to prevent or
hinder His Majesty from appointing, erecting, and constituting, such
Executive Council, or Councils, as He may judge proper, in each of the said
Provinces respectively ; or from nominating, and appointing thereto, from
time to time, such Persons, as He shall think fit to compose ‘the same, or
from removing therefrom, any person, or persons, whom He may think fit
so to remove.
30. And be it further enacted, that nothing, in this Act contained, shall
extend, or be construed to extend, to hinder His Majesty, His Heirs, or
Successors, from erecting, constituting, and appointing, by His, or Their
letters Patent, under the Great Seal of Great Britain, such Courts of Civil,
i See p. 689.
2
See note 3, p. 673.
684 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Criminal, and Ecclesiastical, Jurisdiction, within, or for, the said Provinces,
respectively, and from appointing, from time to time, such Judges, and
Officers, thereof, as His Majesty, His Heirs, or Successors, shall think
necessary, or proper, for the circumstances of the said Provinces.
31. And whereas by reason of the distance of the said Provinces from
this Country and of the change to be made by this Act in the Government
thereof, it may be necessary that some interval should elapse, between the
notification of this Act to the said Provinces and the day of its commencement.
Be it therefore enacted by the authority aforesaid that it shall and may
be lawful for His Majesty with the advice of His Privy Council, to fix and
declare, the day of the commencement thereof—Provided that such day
shall not be more than six months after the notification of the said Act, in
each of the respective Provinces as to all and every part thereof, excepting
only the issuing the “Writs of election and calling together the houses of
Assembly of each of the said Provinces respectively which it shall and may
be lawful for His Majesty by and with the advice of His Privy Council to
order, and direct at any time not exceeding the first day of January in the
year «of our Lord One thousand seven hundred and ninety irwo.
But to the end of a temporary provision for the welfare of the said Provinces until laws shall be made for the same by the Legislative Councils
and Assemblies thereof respectively as herein before declared.
Be it also enacted by the same authority that the Governor, Lieutenant
Governor or Person administering His Majesty’s Government in each of the
said-Provinces with the Legislative Council shall and may make ordinances to
be binding within the same respectively without an Assembly, to the extent
and under the Conditions restraints and Limitations declared respecting
the power and Authority of the Legislative Council mentioned in the Act of
the fourteenth year of His Majesty’s Reign—Chapter .83.1
D
Endorsed.
A.
• In Lord Dorchesters to Mr. Grenville N° 15. of 8 February 1790.
BOUNDARY BETWEEN QUEBEC AN D N E W BRUNSWICK. 2
B. And whereas doubts have arisen concerning the Partition Line between
the Province of Quebec and the Province of New Brunswick and the Coast
of the Fisheries in the Gulph of Saint Lawrence is at present a part of each
Province, and many inconveniences prejudicial to the due management of the
said Fisheries arise from the want of a regular and competent Government,
and the uninhabited condition of that part of the Coast comprehended in
the said Province of New Brunswick.
Be it therefore also enacted by the authority aforesaid that it shall be
lawful for His Majesty, His Heirs, or Successors, with the advice of His or
their Privy Council, to declare and establish the Partition and division between the said two provinces of Lower Canada and New Brunswick by any
Instrument to be issued under the Great Seal of Great Britain.
Provided always, and be it also hereby enacted that the declaration and
establishment, so to be made, shall not operate to the defeating or annulling of any title or Property, already duly acquired under the authority of
either of the said Provinces ; And that until His Majesty, His Heirs, or
1
The Quebec Act, see p. 401. 2
Q 44-1, p. 59. This is clause B, draughted by Chief Justice Smith, referred to in see. 2 of the above
draught of the Constitutional Bill. See p. 677.
CONSTITUTIONAL DOCUMENTS 685
SESSIONAL PAPER No. 18
Successors, shall issue such instrument and declaration, the Jurisdiction of
the said Province of Lower Canada shall extend over and comprehend, all
that part of the said Province of New Brunswick along the coast of the
said Gulph of S’ Lawrence, which is situated to the northward of a line
running through the middle of Focadie Bay to the most Westerly or extreme
head thereof and thence in a Westerly direction at the distance of ten miles
from the shore of the said Coast, until it strikes the boundary of the Province of Lower Canada ; but that any titles to Estates in Lands within the
present limits of New Brunswick shall be as valid as if this Act had never
been made.
D
Endorsed—
B.
In Lord Dorchester’s to Mr. Grenville No. 15. of the 8,h Februarv 1790.
C H I E F JUSTICE SMITH TO DOBCHESTEB. 1
Copy Quebec 5ft February 1790.
My Lord,
The clause inclosed for the Trial of extraprovincial offences2
appears to me to be
necessary to encourage that spirit of Enterprize, which leads our people in the Fur Trade
to explore the Depths of this Continent, and bas carried them almost over to the Eastern
shores of the Pacific Ocean. This Commerce, elsewhere wearing out, by the encreased
Population of the northeastern parts of the antient Continent, will soon become the
monopoly of our nation. I have couched it in terms least likely of any that occur tó
me, to excite the Jealousy of our Neighbours.
The Bill with the other additions for the intended Beforms in this Country, left to
be supplied by Your Lordship’s local Experience,3
greatly improves the old model of our
colonial Governments; for even those called the Boyal Provinces, to distinguish them
from the Proprietary and chartered Bepublics of the Stuart Kings had Essential Faults,
and the same general tendency.
Mr. Grenville’s plan will most assuredly lay a foundation for two spacious populous
and flourishing Provinces, and for more to grow out of them ; and compose, at no remote
period, a mass of Power very worthy of immediate attention.
I miss in it however, the expected Establishment to put what remains to Great
Britain of Her Antient Dominions in North America, under one general direction, for
the united interest and safety of every Branch of the Empire.
The Colonies of England were flourishing Colonies. It was the natural effect of
the connection, the Character of the People, and the Genius of the English Constitution.’
Our’s will be so too. But that prosperity may be their ruin. And I trust in God that
the wisdom, which is dictating the new Arrangements for us, will perfect its work, by
a system to prevent our repeating the Folly, that has plunged the severed parts of the
Continent into poverty and distress.
Native as I am of one of the old Provinces, and early in the public service and
Councils,4
I trace the late Bevolt and Rent to a remoter cause, than those to which it is
ordinarily ascribed. The Truth is that the Country had outgrown its Government, and
wanted the true remedy for more than half a century before the Rupture commenced—
1
Canadian Archives, Q 44-1, p. 61. This is section O of the enclosures in Dorchester’s despatch to
Gienville, of Feb. 8th, 1790.
2
Given below, sea p. 689.
3
“Referring to the first draught of the Constitutional Bill, (see p. 667) with the additions and amendments made by Dorchester, and embodied in the second draught (see p. 677) which constitutes section A
of the enclosures in Dorchester to Grenville, of Feb. 8th
4
H e was a native of N e w Y o r k and a member of the Council of t h a t Province before the Revolution.
686 CANADIAN ARCHIVES
6-7 EDWARD VII., A: 1907
To what period it continued to be practicable is problematical, and need not now be
assigned.
To expect wisdom and moderation from near a score of Petty Parliaments, consisting in effect of only one of the three necessary branches of a Parliament, must, after the
light brought by experience, appear to have been a very extravagant Expectation. So
it has been to my view above twenty years, and I did not conceal it.
My -Lord, an American Assembly, quiet in the weakness of their Infancy, could
not but discover in their Elevation to Prosperity, that themselves were the substance,
and the Governor and Board of Council mere shadows in their political Frame All
America was thus, at the very outset of the Plantations, abandoned to Democracy. And
it belonged to the Administrations of the days of Our Fathers to have found the Cure,
in the Erection of a Power upon the Continent itself, to controul all its own little
Republics, and create a Partner in the Legislation of the Empire, Capable of consulting
their own safety, and the common welfare.
To be better understood by your Lordship I beg leave to put a paper under this
cover, in the form of additions to the present proposed Bill, partly suggested by the
necessity of something to give a real and useful signiftcancy to Your Lordship’s nominal
command of more Provinces than this.1
As to the moment for commencing such an Establishment, that certainly must be
the worst, when it shall be most wanted. And since its Erection will speak Intentions,
and may give Umbrage, that will be the best time, in which that Umbrage shall excite
the least apprehension.
The Debility of our Neighbours is notorious, nor can be succoured during the
Distractions of France, and the consternation Spread by those Distractions through all
Europe.
Here in these provinces, where it is of much consequence, to set out with good
habits, what juncture can be so favourable, as when the thousands thrown into them,
under Your Patronage and Direction, have “their Loyalty confirmed by Resentments for
their Sufferings ; and so are disposed to take, and especially from Your hand, whatever
the wisdom of Great Britain shall prescribe, as a Gift of her Benevolence.
As to Canada, I mean that part of it to become Lower Canada, the Biasses in it, if
there are any remaining, to the Stock, from which it was severed, are become perfectly
harmless, by that Body of English Loyalty Your Lordship has planted in the West—
By their aversion to share in the Burdens and Miseries of the Revolted Colonies, and
by the growing Discernement, that our safety and Prosperity is only to be found in the
Commerce and Arms of Great Britain.
I am old enough to remember, what we in the Maritime Provinces2
dreaded from
this French Colony in the North, and what it cost to take away that dread, which
confined our Population to the Edges of the Atlantic ; and my mind is therefore carried,
under such an Administration as the present one, into a strong Persuasion, that nothing
will be neglected to enable Great Britain, so to serve hei*self of that Power, she already
possesses here, as to check any Councils to be meditated to her Detriment, by the new
Nation she has consented to create. She may do more ! but this is out of my province.
So much, my Lord, You’ll forgive me. I could not repress what I owed to the
vindication of my Zeal, in the sacrifice of my fortune for the British Interest, and as I
think still for the best Interests too of the Country of my Birth. Most of all I owed it
to my Sovereign, in whose Grace I found a Relief at the end of the Storm.
1
Lord Dorchester was appointed Governor, not only of Canada but of all the other British Provinces. See note 2, p. 050.
2
Meaning the Maritime Provinces of the old British Colonies, now the Atlantic States.
CONSTITUTIONAL DOCUMENTE 687
SESSIONAL PAPER No. 18
With a deep and grateful sense of all Your kindnesses and the honour of your
request of my poor abilities, upon questions of so great magnitude and consequence.
I am, My Lord, with the highest respect and esteem
Your Lordship’s
most humble and
most obedient Servant
(signed) WM. SMITH
Right HonMe
Lord Dorchester
Endorsed.
C.
D.
In Lord Dorchester’s to Mr. Grenville N° 15.
of 8 February 1790.
PROPOSED ADDITIONS TO T H E N E W CANADA BILL POR A
GEN E RAL GOVERNMENT. 1
And to provide still more effectually for the Government safety and
prosperity of all His Majesty’s Dominions in North America, and firmly to
unite the several branches of the Empire.
(1\ Be it also enacted by the same authority that there shall be (with a
Governor General) a Legislative Council and a General Assembly for all
His Majesty’s Dominions and the Provinces whereof the same do now or
may hereafter consist in the parts of America to the Southward of Hudson’s
Bay, and in those seas to the Northward of the Bermuda or Soaiers Islands ;
And that His Majesty His Heirs and Successors shall have power by and
with the advice and consent of the said Legislative Council and General
Assembly to make laws for the peace, welfare and good Government of all
or any of the said Provinces and Dominions : And that such Laws being
passed by the said Legislative Council and General Assembly and being
assented to by His Majesty, His Heirs and Successors, or being assented to
in His Majesty’s name by the Person appointed or to be appointed Governor
General of the Provinces and Dominions aforesaid, or such person as may
be appointed by the Crown to exercise the powers of Governor General on
the death or absence of such Governor General, shall be valid and binding
on the inhabitants of the said Dominions or such part thereof as shall for
that purpose be expressed.
(2) And be it enacted by the same authority that such Legislative
* Blank in Council may be composed of at least * Members from each of the
MS. said Provinces to be appointed as His Majesty by His Royal Inst: uctions
to the Governor General for the time being shall authorize and direct, who
shall hold their several places in the said Council for Life subject nevertheless to such terms and conditions as are herein before declared to be annexed
to the trust and station of a member of the Legislative Council of either of
the said Provinces of Upper & Lower Canada, and saving to His Majesty’s
Governor General or the Person upon whom that trust by His Majesty’s
appointment may devolve, power and authority from time to time by an
instrument under the Great Seal to be created for the British Dominions in
North America, to constitute, appoint and remove the Speaker of such
Legislative Council.
(3) And be it also enacted by the same Authority that such General
Assembly may be composed of such persons as may be elected by the
1
Canadian Archives, Q 44-1, p. 68. This is section JJ of the enclosures in Dorchester’s despatch of
3?eb. 8th. It consists of the additions to the Constitutional Bill proposed by Chief Justice Smith with a
view to forming a general government for the remaining British Colonies. It applies to Canada an idea
already suggested by several parties, among them the Chief Justice himself, for the unification of government and administration among the older colonies.
688 CANADIAN ARCHIVES
6-7 EDWARD VIL, A. 1907
majority of tho House of Assembly of the Province for which they serve to
be manifested by Triplicate Instruments under the hand and seal of the
Speaker thereof to the Governor General, the Speaker of the Legislative
Council, and the Speaker of the General Assembly.
(4) And be it also enacted by the same authority that to give any Acts
of the said Governor General, Legislative Council and General Assembly,
the force and authority of a Law, the same shall have been assented to in
the said Legislative Council by the majority of the voices forming a house
of Council, according to His Majesty’s appointment thereof, and shall have
been assented to in the said General Assembly by such and so many Voices
as will make it the Act of the majority of the Provinces, having right to be
represented in the said General Assembly, and it shall be a house of General
Assembly as often as there shall be assembled one or more members duly
elected by each of the Assemblies of the said Provinces or of the greater
number of such’provinces.
(5) And be it further enacted by the same authority that it shall be lawful for His Majesty, His Heirs and Successors to authoiize and direct His
Governor General for the time being or the Person upon whom that trust
by His Majesty’s Appointment may devolve, in His Majesty’s name and by
an instrument under the great seal of the British Dominions in North
America to summon and call together such General Assemblies in such
manner as His Majesty shall be pleased to signify and command by His
Royal Instructions to such Governor General.
(6) And be it also enacted by the same authority that the Governor
General under such instructions as he may have received from His Majesty
may assemble the said Legislative Council and General Assembly where,
and prorogue and dissolve them, when and as often as he shall judge it
necessary, Provided always and be it enacted that they shall be called
together one at least in every two years, and continue to have the right of
sitting seven years from the Teste or day of the process or summons for
their election unless they shall be sooner dissolved by the Authority aforementioned. But no Member either of the said Legislative Council or General Assembly shall be permitted to sit or vote in the General Legislature
untill he shall have taken such Oath as hereinbefore directed to be taken
by the Members of the Legislative Council and Assembly of Upper or
Lower Canada, or not being an Inhabitant of either of the said Provinces
last mentioned such other oaths and qualifications as are taken to become a
Member T>f the Parliament of Great Britain as by His Majesty’s Instructions shall be directed and required.
(7) And be it also enacted by the same Authority that whenever any
Bill which has been passed by the said Legislative Council and by the said
General Assembly shall be presented for His Majesty’s Assent to the Governor General for the time being or the Person exercising that trust under
His Majesty’s Authority, it shall and may be lawful for such Governor
General or other person exercising the said trust, at his discretion, subject
nevertherless to such Instructions as he may from time to time receive from
His Majesty His Heirs and Successors, either to declare His Majesty’s Assent to such Bill, or to declare that he withholds such assent, or that he
reserves the said bill untill His Majesty’s Pleasure shall be signified thereon. And no Bill so to be presented and not assented to in manner aforesaid shall have the force of a Law;
(8) And be it further Enacted by the same Authority that nothing in
this Act contained shall be construed to prevent His Majesty from appointing, erecting, and constituting such general and executive Council and
Councils as he may judge proper for the said Provinces and Dominions in
. general, and Any other Office, in His Royal Judgment and discretion requi-
CONSTITUTIONAL DOCUMENTS 689
SESSIONAL PAPER No. 18
site for the said general Government ; or from nominating and appointing
thereto from time to time, such persons as he shall think fit to compose the
same Executive Council, or to execute such offices or from removing therefrom any person or Persons whom he may think fit to remove.
(9.) And be it also Enacted by the same Authority that it shall and may
be lawful for His Majesty to give Authority to his said Governor General,
or the person exercising that trust, on his arrival in either of the provinces
within his commission, to assume the authority and to perform all the duties
‘ and functions which the Lieutenant Governor thereof, might exercise and
perform ; and the powers and authority of such Lieutenant Governor shall
be suspended & so continue during the time of the Governor General’s being
within the same province ; and that it shall also be lawful for His Majesty
to give to the said Governor General for the time being, tho’ absent in some
other province of His General Government, authority respecting any act of
any of the Provinces of such nature and tendency as His Majesty may see
cause by His Royal Instruction to describe, to suspend the execution of
such Act until His Majesty’s Pleasure shall be signified respecting the same;
to which end it shall be the duty of the person administering the Government in every Province subject to the Governor General’s Authority, to
transmit to him a copy of every bill to which he has assented as soon as
possible after the enacting of the same into a law ; and shall upon the suspension thereof by the Governor General immediately cause the same to be
made known by proclamation under the great seal of his Province, in the
manner most effectual for making the same universally known to the Inhabi t a n t s of the same Province, and all others whom the same may concern.
(10.) And be it further enacted by the Authority aforesaid, that nothing
in this Act contained shall be interpreted to derogate from the rights and Prerogatives of the Crown for the due exercise of the Royal and executive
authority over all or any of the said Provinces ; or to derogate from the
Legislative Sovereignty and Supremacy of the Crown and Parliament of
Great Britain ; but the Acts of Legislation of either of the said Provinces,
as well as the Acts of the Governor General and the Legislative
Council and General Assembly so to be made, shall be subject to the Royal
dis-allowance as exercised heretofore respecting the laws of any of the British
Provinces, and the said Dominions and all the Provinces into which they
may be hereafter divided shall continue and remain to be governed by the
Crown and Parliament of Great Britain as the supreme Legislature of the
whole British Empire.
Endorsed. D. D.
In Lord Dorchesters to Mr. prenville N° 15
of 8″1
February 1790.
CLAUSE BE T R I A L OF CRIMINAL OFFENCES. 1
And whereas it may so happen that Offences may be committed, whicn
as the Law now stands, may be only triable and punishable in England by
virtue of divers Statutes, as Treason or Murder perpetrated in foreign parts,
and yet the Offender may be taken and imprisoned for such offence, in one
or other of His Majesty’s Provinces in America.
Be it therefore enacted by the Authority aforesaid that such offender
may be tried and punished, in such of His Majesty’s Provinces where he
may happen to be imprisoned, and for that purpose may be proceeded against
before Commissioners of Oyer and Terminer constituted from time to time
1
This is clause B, (Q 44-1, p. 77) drawn up by Chief Justice Smith, and referred’to in Dorchester to
Orenville p. 676, as also in Smith to Dorchester, p. 685.
18—3—44
#
690 CANADIAN ARCHIVES
6-7 EDWARD Vil., A. 1907
under the Great Seal of the Province, as nearly as may be according to the
Course in the realm of England for the Trial of Offences of the like nature.
Endorsed. .B. D.
In Lord Dorchester’s to Mr. Grenville N” 15
of 8th February 1790.
G R E N V I L L E TO DORCHESTER. 1
N°. 25. Whitehall 5th June 1-790.
The Right Honorable )
Lord Dorchester j
My Lord,
Your Lordship’s dispatch2
N° 15 was not received
here till the 18th of April. The Session of Parliament was then so far advanced that it
was not thought proper to bring forward at that time the proposed bill for regulating
the Government of Quebec, especially as several of the observations stated by Your
Lordship on the subject were of a nature to require previous consideration, and as it
then appeared probable that I might receive from Your Lordship any further suggestions
which might occur on a fuller examination of the plan and that I might perhaps be able
to avail myself of Your Lordship’s personal assistance in the course of the summer.
The discussions which have arisen with Spain3
having induced His Majesty to
direct me to state to Your Lordship the necessity of your continuing for the present in
Quebec, and it being uncertain whether even in the Supposition of an amicable adjustment of that business, it could be terminated soon enough to allow of my transmitting
to Your Lordship this season His Majesty’s permission to return to England, I have
thought it right to state to Your Lordship in this manner some particulars which have
occurred to me on the subject of Your Lordship’s dispatch above mentioned and its
inclosures.
There will certainly be considerable difficulty in any mode of describing the boundaries of Upper Canada ’till some precise adjustment is made with the United States,
relative to those points in which the Treaty of 1783 has not been carried into execution
by the contracting parties. This subject is now under the consideration of Government,
and it is not improbable that some person may be sent from this Country with powers
to settle those points. But if such settlement shall not have taken place previous to
the time of bringing forward the Quebec bill in the next Session of Parliament, I am
inclined to believe the most adviseable mode of avoiding the difficulty in question will
be that of leaving the Boundaries to be fixed by His Majesty.
This would enable the King to provide for the point to which the clause B* inclosed
in Your Lordship’s dispatch relates—If any other mode should be adopted the object of
that clause will be attended to.
No material objection occurs to me to the numbers proposed by Your Lordship for
the’first formation of the Legislative Councils or Houses of Assembly in the two Provinces, especially as I must necessarily rely so much upon Your Lordship’s judgment in
that respect—If I were to wish any alteration it might perhaps be to lessen the numbers
of which the Legislative Councils are to consist in the first instance—and this with a
vie.w to having the means of greater selection with respect to the persons to be first
1
Canadian Archives, Q 44-1, p. 152. To follow the discussion of the various sections of the bill requires a reference to the first and second draughts of it. See pp. 667 and 677. 2
The despatch of ‘Feb. 8th, enclosing, among other papers, the second draught of the Constitutional
Bill. See p. 674. 3
The difficulty with Spain arose over the capture of certain British vessels at Nootka Sound, on the
north west coast of America. It was feared for a time that war would be the result, with the possibility
of the United States being drawn into it at the instance of Spain, Owing to the difficulties about the
western posts, &c.
4
The clause drawn up by the Chief Justice relative to the boundaries between Quebec and “Sew
‘Brunswick. See p. 684.
CONSTITUTIONAL DOCUMENTS 691
SESSIONAL PAPER No. 18
named, on the characters and conduct of whom so much depends. The mode suggested,
for ascertaining the circles, or districts for elections appears unobjectionable.
More difficulty seems to occur with respect to the proposed extension of the qualification of Eligibility to persons born under the dominion of foreign princes, and not
within those provinces which have been conquered by His Majesty’s arms. The
naturalization bills in Great Britain always contain a clause of exclusion from Seats
in either House of Parliament, and there seems to be great objection to giving any
similar right by provincial naturalization. Unless therefore I should hear from Your
Lordship that there are any persons whom in Your Lordship’s opinion it would in the
present moment be particularly desirable not to exclude and who would not fall under
the description of Eligibility as it before stood I incline to think it should not be
altered.
Some doubt occurs to me whether it would be desireable to extend the disqualifying clauses in the manner proposed by Your Lordship. I t is true unquestionably that
persons of the descriptions mentioned are not entitled to political honours or consequence, but the means of discouraging them within the province seems to be a consideration rather of local provincial regulation, and not naturally to form a part of a law
on which the Constitution of the Province is to be grounded.
After much enquiry and consideration, and after receiving the opinions of professional men upon the subject it does not appear to me to be practicable to introduce into
the proposed bill any considerable or material articles of Commercial Law, and the insertion of those of smaller importance would not be desireable. Unless therefore I
should receive any further suggestion on that subject from Your Lordship, it is my
present intention not to add to the bill any clause of that nature, although I cannot
but confess that I have taken this resolution with considerable reluctance, and apprehension of the possible effect, which it may have on the British Commerce.
The difficulties of which the Merchants have complained with respect to the Commercial Laws of Canada and which certainly by no means appear to me to have been
entirely unfounded, though in some instances, I think they have been exagerated, seem
nevertherless rather to have arisen from the uncertainty of those Laws than from the
positive defects of any one particular system. That uncertainty might perhaps be removed immediately by provisions to be adopted by the local Legislature of the Province,
and it must ultimately be done away by an uniform and consistent administration of
Justice which it will be the duty of His Majesty’s Ministers to secure to the King’s
subjects by such means as will under the proposed system ha
. left in His Majesty’s discretion. I am not quite satisfied that this will be fully sufficient to obviate the objection drawn from the prejudices of those persons of whom the Legislature of Lower
Canada must in great measure be composed, and from the natural operation of those
prejudices in questions of Commercial Laws. But the difficulty appears to me unavoidable and not to be of sufficient weight to prevent the adoption of the proposed system
if right in other respects.
I t is certainly very desireable that the benefits of an exchange from tenure in fief
to common Socage should not be confined to the persons holding immediately of the
King but should be extended to their under-tenants. But it seems necessary that some
mode of compensation should be settled by which the person holding of the King might
receive an adequate return for the value of the rights which he would lose by such conversion, unless it is understood that the benefit derived to the tenant in capite from the
extinguishing the feudal rights of the King, would in all cases be greater than the loss
incident to him upon the surrender of his rights over his under-tenants. This as far as
I understand the present system of tenures in Canada, I imagine would not be the case,
and it would therefore be necessary to make some provision for this difficulty.
Whether it is possible to establish any genera) rule or fixed proportion of compensation to be made by the under-tenant to his Lord in lieu of the feudal services and
payments to which he is now subject, or whether it would be necessary in each distinct
case to have recourse to some mode of appraisement or valuation, and what mode could
be best adapted for that purpose, I am not sufficiently informed to decide, and I must
therefore request that Your Lordship will with the assistance of His Majesty’s Chief
18—3—áá¿
692 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Justice, and any other Persons whom you may think competent to advise you upon it,
give a particular attention to this point : and transmit to me such a clause as shall be
judged effectual for the object which I have mentioned. Jn framing such a clause
attention will of course be paid by the persons drawing it to the nature and operation
of the different clauses in the Stat : 12 Oar. 2 Cap. 24, by which Socage holding was
made general in this Kingdom. If any compensation is to be paid by the under-tenant
to his Lord on such Conversion, it seems necessary to provide that the Conversion shall
not take place but by mutual consent.
Proper attention will be paid to Your Lordship’s suggestions with respect to the
‘Commencement of the Bill, but the intermediate establishment of a separate Government
in Upper Canada according to the form of that created by the present Quebec Act does,
not appear adviseable.
The formation of a general Legislative Government for all the King’s Provinces in
America,1
is a point which has been under Consideration, but I think it liable to considerable objection—The principle of uniting the executive Government, has already been
acted upon, and is one which I think of material importance to the British Interests in
America.
The other Clauses suggested by the Chief Justice will be considered by His Majesty’s Law Servants.
I am &°. &».
W. W. Grenville
DUNDAS TO DORCHESTER. 2
(No. 2)
Whitehall, 16111 September 1791.
The Right Honble
Lord Dorchester
My Lord,
In the letters which were written to your Lordship by my Predecessor, Lord
Grenville, I find you were long ago fully informed by his Lordship of His Majesty’s
intention of dividing His Province of Quebec into two separate Governments, to be
called the Province of Upper Canada, and the Province of Lower Canada, and of Regulations which were proposed to be made in consequence, for the better Government of
that part of His Majesty’s Dominions. In pursuance of that intention I am now to
inform your Lordship that a Bill was introduced into Parliament and passed during the
last session, intituled ” An Act to repeal certain parts of an Act passed in the Fourteenth
year of His Majesty’s Reign intituled An Act for making more effectual Provision for
the Government of the Province of Quebec in North America ; and to make further
provision for the Government of the said Province,” a Copy of which I inclose together
with a Commission under the Great Seal, revoking your former Commission of Governor
of the Province of Quebec, and vesting you with the Chief Government of the two
Provinces beforementioned and also Instructions under the Royal Sign Manual applicable
to the Regulations which His Majesty under the Act, has thought fit to establish.
I n framing the Instructions to Your Lordship with respect to the Quorums of the
legislative Councillors and of the Members of the Assembly for Lower .Canada, some
difficulties occurred in fixing on the number which might be proper to compose such
Quorums, and on a consideration of the subject, it was rather thought adviseable that
the number of which such Quorums should consist, should be left to those Bodies to
determine. The mode which His Majesty’s Servants recommend for adjusting this point,
1
Referring to the proposed clause on that subject submitted by the Chief Justice. See p. 687. 2
Canadian Archives, Q 52, p. 213. Henry Dundas was a noted politician of the period, who had
boxed the compass among the political parties of the time and finally attached himself to Pitt, with whom
he gained special favour. After filling several important ofiices, he became Secretary of State for the
Home Department, on June 8th, 1791. In 1802 he was raised to the peerage as Viscount Melville and
Baron Dunira. ‘
CONSTITUTIONAL DOCUMENTS ‘ 69â
SESSIONAL PAPER No. 18
is either by an Act of thé Legislature, or what may perhaps equally answer the purpose-,,
that of making the regulation now to be fixed upon, a standing order of each of the two.
Houses respectively, and I have it in Command to desire that your Lordship will on the
first meeting, recommend this object to their consideration, and likewise the forming
other such Rules or standing Orders for regulating the Form of proceeding in t h e
Council & Assembly, respectively, as may be most conducive to the regular dispatch
of Business.
Your Lordship will find on a perusal of the Act that the number of Representatives
of which the Assembly of Lower Canada was originally intended to consist has been
considerably increased. This measure will render a new Distribution necessary instead
of that which was proposed.by Your Lordship in your letter to Lord Grenville1
No. 15,
and I wish Your Lordship particularly to consider whether for the sake of convenience
and dispatch in deciding upon Elections and preventing the inconvenience of too great,
a number of Electors, the Towns of Quebec and Montreal might not for that purpose bedivided into two separate and distinct Districts, and that these Towns should return
Four Members each, by electing Two in each District, your Lordship will see by theCopy of a Paper delivered to me by Mr
Lymburner,2
that he proposes that each of theTowns of Quebec and Montreal should chuse seven Members each, but that arrangement
His Majesty’s Servants entirely disapprove of, and would be sorry that such a distribution should on any account take place.
When your Lordship shall have considered this subject maturely, and have arranged
your Plan for the Representatives to be chosen by each of the Towns and Circles
respectively, you will as soon as conveniently may be issue your Proclamation accordingly.
According to the best opinions which I can obtain it seems to me adviseable that
excepting in the instances of Trois Rivieres St. John & William Henry, each of the
other Circles and Towns or Townships in Lower Canada should elect one Representative,
and as the Extent of the several Towns from the introduction of new Settlers and from
the probable increase of Population will hereafter be likely to be enlarged, it seems to
be desireable that for the same purpose of preventing too great a number of Electors for
any place, that limits should now be fixed within which the Electors for the Representatives of the Towns should be resident, and whenever the number of new Inhabitants
resident within the limits adjacent and possessed of qualifications to vote for Towns or
Townships shall encrease so as to render it expedient that they should be represented in
the House of Assembly, a new Town or Township shall in like manner be established
within fixed limits for the purpose of separately electing an additional Representative in
the House of Assembly, and so on from time to time as often as the occasion may
require.
Your Lordship has I have no doubt been informed of the disputes & disagreements
which have at times taken place between the Councils & Assemblies of the different
Colonies respecting the Right claimed by the latter that all Bills whatsoever for granting Money should originate with them. The principle itself as far as it relates to any
question of imposing burthens upon the Subject is so consistent with the Spirit of Our
Constitution that it ought not to be resisted at the same time it would be prudent, if
possible, to avoid any unnecessary discussion of its application in minute cases, & above
all that it should not be so extended by overstrained refinements as to produce embarrassment ° S
° Causes herein-before specified, such H e r e d i t a r y R i g h t shall remain suspendnext intitied ed during t h e Life of such Person, unless H i s Majesty, H i s H e i r s or Successors, shall afterwards t h i n k fit to direct t h a t he be summoned to such
Council ; b u t t h a t on the D e a t h of such Person such Right, subject to the
Provisions herein contained, shall descend to t h e Person who shall next be
entitled thereto, according to the Course of Descent limited in the L e t t e r s
P a t e n t by which t h e same shall have been originally conferred.
X . Provided also, a n d be i t further enacted by the A u t h o r it y aforesaid,
T h a t if any Member of either of t h e said Legislative Councils shall be
attainted for Treason in any Court of L a w within any of H i s Majesty’s
Dominions, his Seat in such Council shall thereby become vacant, a n d a n y
such H e r e d i t a r y R i g h t as aforesaid t h e n vested in such Person, or to be
derived to a n y other Persons through him, shall be utterly forfeited and
extinguished
X I . Provided also, and be it further enacted b y t h e A u t h o r it y aforesaid,
Right to be 6
T h a t whenever a n y Question shall arise respecting t h e R i g h t of a n y P e r s o n
summoned to to be summoned to either of t h e said Legislative Councils respectively, or
Council, That whenever any Bill, which shall have been so presented for
of State His Majesty’s Assent to such Governor, Lieutenant Governor, or Person
Copies of such administering the Government, shall, by such Governor, Lieutenant
been absented Governor, or Person administering the Government, have been assented
to, which His to in His Majesty’s Name, such Governor, Lieutenant Governor, or Person
Majesty m a g aforesaid, shall, and he is hereby required, by the first convenient
declare his Opportunity, tq transmit to One of His Majesty’s principal Secretaries of
Disallowance State an authentick Copy of such Bill so assented to ; and that it shall and
YeIrsh
fromW°
ma
y
b e la-^^ a t a n
y
T i m e within Two Tears after such Bill shall have
the Receipt, been so received by such Secretary of State, for His Majesty, His Heirs or
Successors, by His or their Order in Council, to declare His or their Disallowance of such Bill, and that such Disallowance, together with a Certificate, under the Hand and Seal of such Secretary of State, testifying the
Day on which such Bill was received as aforesaid, being signified by such
Governor, Lieutenant Governor, or Person administering the Government,
to the Legislative Council and Assembly of such Province, or by Proclamation, shall make void and annul the same, from and after the Date of such
Signification.
702 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Bills re- i X X X I I . And be it further enacted by the Authority aforesaid, That no
Maiesty°s s u c ^ Bill» w n i ° h shall be so reserved for the Signification of His Majesty’s
Pleasure not Pleasure thereon, shall have any Force or Authority within either of the
to have any s a j¿ Provinces respectively, until the Governor or Lieutenant Governor, or
Majesty’s As- Person administering the Government, shall signify, either by Speech or
sent be com- Message, to the Legislative Council and Assembly of such Province, or by
mumeated to Proclamation, that such Bill has been laid before His Majesty in Council,
and Assem- and that His Majesty has been pleased to assent to the same; and that an
bly, &c. , Entry shall be made, in the Journals of the said Legislative Council, of
every such Speech, Message, or Proclamation ; and a Duplicate thereof,
duly attested, shall be delivered to the proper Officer, to be kept amongst
the publick Records of the Province : And that no such Bill, which shall
be so reserved as aforesaid, shall have any Force or Authority within either
of the said Provinces respectively, unless His Majesty’s Assent thereto
shall have been so signified as aforesaid, within the Space of Two Years
from the Day on which such Bill shall have been presented for His
Majesty’s Assent to the Governor, Lieutenant Governor, or Person
administering the Government of such Province.
Laws in X X X I I I . And be it further enacted by the Authority aforesaid, That
Commence- aU Laws, Statutes, and Ordinances, which shall be in Porce on the Day to
ment of this be fixed in the Manner herein-after directed for the Commencement of this
Act to con- ^ c ^ wjthin the said Provinces, or either of them, or in any Part thereof
cept repealed respectively, shall remain and continue to be of the same Force, Authority,
or varied by it, and Effect, in each of the said Provinces respectively, as if this Act had
not been made, and as if the said Province of Quebec had not been divided ;
except in so far as the same are expressly repealed or varied by this Act,
or in &o far as the same shall or may hereafter, by virtue of and under
the Authority of this Act, be repealed or varied by His Majesty, His Heirs
or Successois, by and with the Advice and Consent of the Legislative
Councils and Assemblies of the said Provinces respectively, or in so far as
the same may be repealed or varied by such temporary Laws or Ordinances
as may be made in the Manner herein-after specified.
Establish- X X X I V . And whereas by an Ordinance passed in the Province of
Court°o£Civil Queoeci the Governor and Council of the said Province were constituted a
Jurisdiction Court of Civil Jurisdiction, for hearing and determining Appeals in certain
m each Cases therein specified,1
be it further enacted by the Authority aforesaid,
That the Governor, or Lieutenant Governor, or Person administering the
Government of each of the said Provinces respectively, together with such
executive Council as shall be appointed by His Majesty for the Affairs of
such Province shall be a Court of Civil Jurisdiction within each of the said
Provinces respectively, for hearing and determining Appeals within the
same, in the like Cases, and in the like Manner and Form, and subject to
such Appeal therefrom, as such Appeals might before the passing of this
“• Act have been heard and determined by the Governor and Council of the
Province of Quebec ; but subject nevertheless to such further or other Provisions as may be made in this Behalf, by any Act of the Legislative
Council and Assembly of either of the said Provinces respectively, assented
to by His Majesty, His Heirs or Successors.
14 Geo III X X X V . And whereas, by the above-mentioned Act, passed in the FourCap, sà, and teenth Year of the Reign of His present Majesty, it was declared, That the
Clergy of the Church of Borne, in the Province of Quebec, might hold,
receive, and enjoy their accustomed Dues and Rights, with respect to such
Persons only as should profess the said Religion ; provided nevertheless,
that it should be lawful for His Majesty, His Heirs or Successors, to make
1
See ” Ordinance for establishing Courts of Civil Judicature in the Province of Quebec.” 1777 ;
articles i and 6, p. 464.
CONSTITUTIONAL DOCUMENTS 703
SESSIONAL PAPER No. 18
such Provision out of the rest of the said accustomed Dues and Bights, for
the Encouragement of the Protestant Religion, and for the Maintenance
and Support of a Protestant Clergy within the said Province, as he or they
should from Time to Time think necessary and expedient •} And whereas by
His Majesty’s Royal Instructions, given under His Majesty’s Royal Sign
Instructions of Manual on the Third Day of January, in the Year of our Lord One thousand
to Sir ‘ctuy ‘
s e v e
n
hundred and seventy-five, to Guy Carleton Esquire, now Lord DorCarleton, chester, at that Time His Majesty’s Captain General and Governor in Chief
&c. and j n a n ( j over j j j a Majesty’s Province of Quebec, His Majesty was pleased,
amongst other Things, to direct* “That no Incumbent professing the
” Religion of the Church of Home, appointed to any Parish in the said
” Province, should be entitled to receive any Tythes for Lands or Possessions
” occupied by a Protestant, but that such Tythes should be received by
” such Persons as the said Guy Carleton Esquire, His Majesty’s Captain
” General and Governor in Chief in and over His Majesty’s said Province
” of Quebec, should appoint, and should be reserved in the Hands of His
” Majesty’s Receiver General of the said Province, for the Support of a
” Protestant Clergy in His Majesty’s said Province, to be actually resident
” within the same, and not otherwise, according to such Directions as the
” said Guy Carleton Esquire, His Majesty’s Captain General and Governor
” in Chief in and over His Majesty’s said Province, should receive from His
” Majesty in that Behalf ; and that in like Manner all growing Rents and
” Profits of a vacant Benefice should, during such Vacancy, be reserved for
” and applied to the like Uses :”2
And whereas His Majesty’s Pleasure has
Instructions likewise been signified to the same Effect in His Majesty’s Royal InstrucFredenck tions, given in like Manner to Sir Frederick Haldimand Knight of the
Haldimand, Most Honourable Order of the Bath, late His Majesty’s Captain General
and to Lord a n ( j Governor in Chief in and over His Majesty’s said Province of Quebec f
recited • T
‘
a n d also in His Majesty’s Royal Instructions, given in like Manner to the
said Right Honourable Guy Lord Dorchester, now His Majestés Captain
General and Governor in Chief in and over His Majesty’s said Province of
and the Quebec f be it enacted by the Authority aforesaid, That the said DeclaraandProvisions *i° n a n d Provision contained in the said above-mentioned Act, and also the
therein said Provision so made by His Majesty in consequence thereof, by His Inrespecting the gtructions above recited, shall remain and continue to be of full Force and
Church of Effect in each of the said Two Provinces of Upj’er Canada and Lower Canada
Rome to respectively, except in so far as the said Declaration or Provisions respeccontmue m tively, or any Part thereof, shall be expressly varied or repealed by
any Act or Acts which may be passed by the Legislative Council and
Assembly of the said Provinces respectively, and assented to by His
Majesty, His Heirs or Successors, under the Restriction herein-after
provided.
His Majesty’s X X X V I . And whereas His Majesty has been graciously pleased, by
Message to Message to both Houses of Parliament,5
to express His Royal Desire to be
recited. enabled to make a permanent Appropriation of Lands in the said Provinces,
for the Support and Maintenance of a Protestant Clergy within the same,
in Proportion to such Lands as have been already granted within the same
by His Majesty : And whereas His Majesty has been graciously pleased, by
His said Message, further to signify His Royal Desire that such Provision
may be made, with respect to all future Grants of Land within the said
Provinces respectively, as may best conduce to the due and sufficient Sup1
See Quebec Act, p. 403.
2
See Instructions to Governor Carleton, 1775, art. 21, sec. 5, p. 426.
3
Haldimand received in 1778 the same Instructions as those given to Carleton in 1775. See p. 474.
4
See Instructions to Lord Dorchester, 1786, art. 21, sec. 5, p. 557.
5
See the King’s message to Parliament respecting Quebec ; Feb. 25,1791. Hansard, vol. 28, p. 1271.
The second part of the message relates to the establishing of the Clergy Reserves.
70é CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
port and Maintenance of a Protestant Clergy within the said Provinces,
in Proportion to such Increase as may happen in the Population and Cultivation thereof : Therefore, for the Purpose of more effectually fulfilling
His Majesty’s gracious Intentions as aforesaid, and of providing for the due
His Majesty Execution of the same in all Time to come, be it enacted by the Authority
the Governor aforesaid, That it shall and may be lawful for His Majesty, His Heirs or
to make Successors, to authorize the Governor or Lieutenant Governor of each of
f h ‘ T f ‘ *^e sa^
c
‘ Provinces respectively, or the Person administering the Governthe Support of ment therein, to make, from and out of the Lands,of the Crown within such
a Protestant Provinces, such Allotment* and Appropriation of Lands, for the Support
Pravmce –
P a n ^ Maintenance of a Protestant Clergy within the same, as may bear a.
due Proportion to the Amount of such Lands within the same as have at
any Time been granted by or under the Authority of His Majesty : And
that whenever any Grant of Lands within either of the said Provinces shall
hereafter be made, by or under the Authority of His Majesty, His Heirs
or Successors, there shall at the same Time be made, in respect of the same,
a proportionable Allotment and Appropriation of Lands for the abovementioned Purpose, within the Township or Parish to which such Lands so
to be granted shall appertain or be annexed, or as nearly adjacent thereto
as Circumstances will admit ; and that no such Grant shall be valid or
effectual unless the same shall contain a Specification of the Lands so
allotted and appropriated, in respect of the Lands to be thereby granted;
and that such Lands, so allotted and appropriated, shall be, as nearly as
the Circumstances- and Nature of the Case will admit, of the like Quality
as the Lands in respect of which the same are so allotted and appropriated,
and shall be, as nearly as the same can be estimated at the Time of making
such Grant, equal in Value to the Seventh Part of the Lands so granted.
and the X X X V I I . And be it further enacted by the Authority aforesaid, That
from Booh”» a
^
a n (^ every the Rents, Profits or Emoluments, which may at any Time
Allotments to arise from such Lands so allotted and appropriated as aforesaid, shall be
be applicable applicable solely to the Maintenance and Support of a Protestant Clergy
Purpose within the Province in which the same shall be situated, and to no other
solely. Use or Purpose whatever.
His Majesty X X X V I I I . And be it further enacted by the Authority aforesaid, That
Se^overiKjr6
^ shall and may be lawful for His Majesty, His Heirs or Successors, to
with the ‘ authorize the Governor or Lieutenant Governor of each of the said
Advice of Provinces respectively, or the Person administering the Government therein,
Council from Time to Time, with the Advice of such Executive Council as shall
to erect have been appointed by His Majesty, His Heirs or Succes-ors, within such
a d eadow’ Province, for the Affairs thereof, to constitute and erect, within every
them ; Township or Parish which now is or hereafter may be formed, constituted,
or erected within such Province, One or more Parsonage or Rectory, or
Parsonages or Rectories, according to the Establishment of the Church of
England ; and from Time to Time, by an Instrument under the Great Seal
of such Province, to endow every such Parsonage or Rectory with so much
or such Part of the Lands so allotted and appropriated as aforesaid, in
respect of any Lands within such Township or Parish, which shall have
been granted subsequent to the Commencement of this Act, or of such
Lands as may have been allotted and appropriated for the same Purpose, by
or in virtue of any Instruction which may be given by His Majesty, in
respect of any Lands granted by His Majesty before the Commencement of
this Act, as such Governor, Lieutenant Governor, or Person administering
the Government, shall, with the Advice of the said Executive Council,
judge to be expedient under the then existing Circumstances of such Township or Parish.
CONSTITUTIONAL DOCUMENTS 705
SESSIONAL PAPER No. 18
andtheGover- X X X I X . And be it further enacted by the Authority aforesaid, That it
IncumbenTtosha11 a n d m a y ^ e l a w f u l f o r H i s M a J
e s ty> His Heirs or Successors, to
them, who are authorize the Governor, Lieutenant Governor, or Person administering the
to enjoy the Government of each of the said Provinces respectively, to present to every
cumbents in” s u o n Parsonage or Rectory an Incumbent or Minister of the Church of
England. England, who shall have been duly ordained according to the Rites of the
said Church, and to supply from Time to Time such Vacancies as may happen therein ; and that every Person so presented to any such Parsonage or
Rectory, shall hold and enjoy the same, and all Rights, Profits, and
Emoluments thereunto belonging or granted, as fully and amply, and in
the same “Manner, and on the same Terms and Conditions, and liable to the
Performance of the same Duties, as the Incumbent of a Parsonage or
Rectory in England.
Presentations XL. Provided always, and be it further enacted by the Authority aforeto Parsonages, gaid, That every such Presentation of an Incumbent or Minister to any such
joyment of” Parsonage or Rectory, and also the Enjoyment of any such Parsonage or
them, to be Rectory, and of the Rights, Profits, and Emoluments thereof, by any such
subject to the Incumbent or Minister, shall be subject and liable to all Rights of InstituA •nriSQicfclOH
granted to the tion, a n d all other Spiritual and Ecclesiastical Jurisdiction and Authority,
Bishop of which have been lawfully granted by His Majesty’s Royal Letters Patent
Nova Scotia, t o t n e Bis n 0 p 0f _y0TO Scotia,1
or which may hereafter, by His Majesty’s
Royal Authority, be lawfully granted or appointed to be administered and
executed within the said Provinces, or either of them respectively, by the
said Bishop of Nova Scotia, or any other Person or Persons, according to
the Laws and Canons of the Church of England, which are lawfully made
and received in England.
Provisions re- XLI. Provided always, and be it further enacted by the Authority
TiTt”18 *?% a
f° r e s a id, That the several Provisions herein-before contained, respecting
Lands for the the Allotment and Appropriation of Lands for the Support of a Protestant
Support of a Clergy within the said Provinces, and also respecting the constituting,
Protestant erecting, and endowing Parsonages and Rectories within the said Promay be varied vinces, and also respecting the Presentation of Incumbents or Ministers to
or repealed by the same, and also respecting the Manner in which such Incumbents or
tive Goundl Ministers shall hold and enjoy the same, shall be subject to be varied or
and Assem- repealed by any express Provisions for that Purpose, contained in any Act
U
J”- or Acts which may be passed by the Legislative Council and Assembly of
the said Provinces respectively, and assented to by His Majesty, His Heirs
or Successors, under the Restriction herein-after provided.
Acts of the X L I I . Provided nevertheless, and be it further enacted by the Authority
Legislative aforesaid, That whenever any Act or Acts shall be passed by the LegislaAssembly, tive Council and Assembly of either of the said Provinces, containing any
containing Provisions to vary or repeal the above-recited Declaration and Provision
tíwEffeot8 to contained in the said Act passed in the Fourteenth Year of the Reign of
herein men- His present Majesty ; or to vary or repeal the above-recited Provision conti?ned to be tained in His Majesty’s Royal Instructions, given on the Third Day of
Parliament, January, in the Year of our Lord One thousand seven hundred and
previous to seventy-five, to the said Guy Garleton Esquire, now Lord Dorchester; or to
receiving His v a r y o r r e p e a l the Provisions herein-before contained for continuing the
sent, &c. Eorce and Effect of the said Declaration and Provisions ; or to vary or
repeal any of the several Provisions herein-before contained respecting the
Allotment and Appropriation of Lands for the Support of a Protestant
Clergy within the said Provinces ; or respecting the constituting, erecting,
or endowing Parsonages or Rectories within the said Provinces ; or respecting the Presentation of Incumbents or Ministers to the same ; or
1
See Instructions to Lord Dorchester of Aug. 25th, 1787, giving the Bishop of Nova Scotia ecclesiastical jurisdiction throughout British North America, p 568.
18—3—45
706 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
respecting the Manner in which such Incumbents or Ministers shall hold
and enjoy the same : And also that whenever any Act or Acts shall be
so passed, containing any Provisions which shall in any Manner relate to or
affect the Enjoyment or Exercise of any Religious Form or Mode of
Worship; or shall impose or create any Penalties, Burthens, Disabilities, or
Disqualifications in respect of the same ; or shall in any Manner relate to
or affect the Payment, Recovery, or Enjoyment of any of the accustomed
Dues or Rights herein-before mentioned ; or shall in any Manner relate to
the granting, imposing, or recovering any other Dues, or Stipends, or
Emoluments whatever, to be paid to or for the Use of any Minister, Priest,
Ecclesiastick, or Teacher, according to any Religious Form or Mode’of
Worship, in respect of his said Office or Function ; or shall in any Manner
relate to or affect the Establishment or Discipline of the Church of England, amongst the Ministers and Members thereof within the said Provinces ; or shall in any Manner relate to or affect the King’s Prerogative
touching the granting the Waste Lands of the Crown within the said Provinces ; every such Act or Acts shall, previous to any Declaration or Signification of the King’s Assent thereto, be laid before both Houses of Parliament in Great Britain; and that it shall not be lawful for His Majesty,
His Heirs or Successors, to signify His or their Assent to any such Act or
Acts, until Thirty Days after the same shall have been laid before the said
Houses, or to assent to any such Act or Acts, in case either House of
Parliament shall, within the said Thirty Days, address His Majesty,
His Heirs or Succesors, ‘ to withhold His or their Assent from such
Act or Acts ; and that no such Act shall be valid or effectual to any of the
said Purposes, within either of the said Provinces, unless the Legislative
Council and Assembly of such Province shall, in the Session in which the
same shall hâve been passed by them, have presented to the Governor,
Lieutenant Governor, or Person administering the Government of such
Province, an Address or Addresses, specifying that such Act contains
Provisions for some of the said Purposes herein-before specially described,
and desiring that, in order to give Effect to the same, such Act should be
transmitted to England without Delay, for the Purpose of being laid before
Parliament previous to the Signification of His Majesty’s Assent thereto.
Lands in Up- XLIIT. And be it further enacted by the Authority aforesaid, That
per Canada to all Lands which shall be hereafter granted within the said Province of
TTreeandOon£ Upper Canada shall be granted in Free and Common Soccage, in like Manmon Soocage, ner as Lands are now holden in Free and Common Soccage, in that Part of
and also in Qreat Britain called England ; and that in every Case where Lands shall
tí desired’1
‘
1
^e hereafter granted within the said Province of Lower Canada, and where
the Grantee thereof shall desire the same to be granted in Free and Common Soccage, the same shall be so granted ; but subject nevertheless to
such Alterations, with respect to the Nature and Consequences of such Tenure of Free and Common Soccage, as may be established by any Law or
Laws which may be made by His Majesty, His Heirs or Successors, by and
with the Advice and Consent of the Legislative Council and Assembly of
the Province.
Persons hold- XLIV. And be it further enacted by the Authority aforesaid, That
ing Lands in if any Person or Persons holding any Lands in the said Province of Upper
Upper Canada Qanada, by virtue of any Certificate of Occupation derived under the Aufresh Grants? ttiority of the Governor and Council of the Province of Quebec, and -having
Power and Authority to alienate the same, shall at any Time, from and
after the Commencement of this Act, surrender the same into the Hands of
His Majesty, His Heirs or Successors, by Petition to the Governor or Lieutenant Governor, or Person administering the Government of the said Province, setting forth that he, she, or they is or are desirous of holding the
CONSTITUTIONAL DOCUMENTS 707
SESSIONAL PAPER No. 18
same in Free and Common Soccage, such Governor or Lieutenant Governor,
or Person administering the Government, shall thereupon cause a fresh
Grant to be made to such Person or Persons of such Lands, to be holden in
Free and Common Soccage.
Grants, not to XLV. Provided nevertheless, and be it further enacted by the Aubar any Right thority aforesaid, That such Surrender and Grant shall not avoid or bar
or Title to the a n y Right o r Title to any such Lands so surrendered, or any Interest in
the same, to which any Person or Persons, other than the Person or Persons surrendering the same, shall have been entitled, either in Possession,
Remainder, or Reversion, or otherwise, at the Time of such Surrender ; but
that every such Surrender and Grant shall be made subject to every such
Right, Title, and Interest, and that every such Right, Title, or Interest
shall be as valid and effectual as if such Surrender and Grant had never
been made.
18 Geo. Ill, X L VI. And whereas by an Act passed in the Eighteenth Year of
teT’ ‘ reC1″ t”ne ï^e
ign
°f His present Majesty, intituled, An Act Jor removing all
Doubts and Apprehensions concerning Taxation by the Parliament of
Great Britain, in any of the Colonies, Provinces, and Plantations in North
America, and the West Indies ; and for repealing so much of an Act, made
in the Seventh Year of the Reign of His present Majesty, as imposes a
Duty on Tea imported from Great Britain into any Colony or Plantation m
America, or relates thereto it has been declared, “That the King and Par-
” liament of Great Britain will not impose any Duty, Tax, or Assessment
“whatever, payable in any of His Majesty’s Colonies, Provinces, and Plan-
” tations in North America or the West Indies, except only such Duties as
” it may be expedient to impose for the Regulation of Commerce, the Net
” Produce of such Duties to be always paid and applied to and for the Use
” of the Colony, Province, or Plantation in which the same shall be respect-
” ively levied, in such Manner as other Duties collected by the Authority
” of the respective General Courts or General Assemblies of such Colonies,
” Provinces, or Plantations, are ordinarily paid and applied:”1
And whereas
it is necessary, for the general Benefit of the British Empire, that such
Power of Regulation of Commerce should continue to be exercised by His
Majesty, His Heirs or Successors, and the Parliament of Great Britain,
This Act not abject nevertheless to the Condition herein-before recited, with respect to
to prevent the the Application of any Duties which may be imposed for that Purpose : Be
Operation of it therefore enacted by the Authority aforesaid, That nothing in this Act
Parliament contained shall extend, or be construed to extend, to prevent or affect the
establishing Execution of any Law which hath been or shall at any Time be made by
Prohibitions jj£g Majesty, His Heirs or Successors, and the Parliament of Great Britain,
Butts’for1
the f° r
establishing Regulations of Prohibitions, or for imposing, levying, or
Regulation of collecting Duties for the Regulation of Navigation, or for the Regulation
NavigationQf the’Commerce to be carried on between the said Two Provinces, or bemerce, etc. tween/either of the said Provinces and any other Part of His Majesty’s
Dominions, or between either of the said Provinces and any Foreign Country or State, or for appointing and directing the Payment of Drawbacks of
such Duties so imposed, or to give to His Majesty, His Heirs or Successors,
any Power or Authority, by and with the Advice and Consent of such Legislative Councils and Assemblies respectively, to vary or repeal any such
Law or Laws, or any Part thereof, or in any Manner to prevent or obstruct
the Execution thereof.
Such Duties X L V I I . Provided always, and be it enacted by the Authority afórete th ^W^of saic*’ That the Net Produce of all Duties which shall be so imposed shall at
the respective all Times hereafter be applied to and for the Use of each of the said ProProvinces, vinces respectively, and in such Manner only as shall be directed by any
1
See Statutes at Large, vol. 32, p. 4.
18—3—45 A
708 0 AWADÍAN ARCHIVES
6-7 EDWARD Vil., A. 1907
Law or Laws which may be made by His Majesty, His Heirs or Successors,
by and with the Advice and Consent of the Legislative Council and Assembly
of such Province.
His Majesty X L V I I I . And whereas, by Reason of the Distance of the said Provinces
m Council to from this Country, and of the Change to be made by this Act in the Govthe Com- ernment thereof, it may be necessary that there should be some Interval of
mencement of Time between the Notification of this Act to the said Provinces respectivethis Act, &e. ij^ a n ( j fae Day of its Commencement within the said Provinces respectively :
Be it therefore enacted by the Authority aforesaid, That it shall and may
be lawful for His Majesty, with the Advice of His Privy Council, to fix and
declare, or to authorize the Governor or Lieutenant Governor of the Province
of Quebec, or the Person administering the Government there, to fix and .
declare the 1 )ay of the Commencement of this Act within the said Provinces
respectively, provided that such Day shall not be later than the Thirty-first
Day of December in the Year of our Lord One thousand seven hundred and
ninety-one.
Time for issu- XLLX. And be it further enacted by the Authority aforesaid, That
mg the Writs the Time to be fixed by His Maiestv, His Heirs or Successors, or under
and Election ^ 8 o r their Authority, by the Governor, Lieutenant Governor, or Person
&c. not to be administering the Government in each of the said Provinces respectively,
iit e r 31^792 ^ o r issuvn& the Writs of Summons and Election, and calling together the
‘ Legislative Councils and Assemblies of each of the said Provinces respectively, shall not be later than the Thirty-first Day of December in the Year
of our Lord One thousand seven hundred and ninety-two.
Between the ^ . Provided always, and be it further enacted by the Authority aforeCommence- said, That during such Interval as may happen between the Commencement
ment of this 0f this Act, within the said Provinces respectively, and the First Meeting
First Meeting °f the Legislative Council and Assembly of each of the said Provinces resof the Legisla- pectively, it shall and may be lawful for the Governor or Lieutenant Gover-
*
IVdA™M n o r °^ s u o n Province, or for the Person administering the Government
temporary ‘ therein, with the Consent of the major Part of such Executive Council as
Laws may be shall be appointed by His Majesty for the Affairs of such Province, to make
m a e’ temporary Laws and Ordinances for the good Government, Peace, and Welfare of such Province, in the same Manner, and under the same Restrictions,
as such Laws or Ordinances might have been made by the Council for the
Affairs of the Province of Quebec, constituted by virtue of the abovementioned Act of the Fourteenth Year of the Reign of His present Majesty;
and that’such temporary Laws or Ordinances shall be valid and binding
within such Province, until the Expiration of Six Months after the Legisla- •
tive Council and Assembly of such Province shall have been first assembled
by virtue of and under the Authority of this Act ; subject nevertheless to
* be sooner repealed or varied by any Law or Laws which may be made by
His Majesty, His Heirs or Successors, by and with the Advice and Consent
of the said Legislative Council and Assembly. \ *
FINIS.
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
CONSTITUTIONAL DOCUMENTS RELATING TO CANADA1759-1791
GENERAL I N D E X
Abercrombie, Major, 8.
Abstract of Regulations. See Regulations.
Acadia ceded to Great Britain by Treaty of Paris,
74, 85.
Acadians to enjoy privileges as Canadians till fate
of country is decided, 17, 27.
Adams, John, signs Treaty of Paris, 1783, 493.
Address of Roman Catholic citizens to the King,
517,-518.
Adhemar, M., his mission to Paris, 539.
Administration of Justice. See Justice.
Admiralty, Court of, composition and duties of,
40 ; referred to, 48 ; maritime affairs governed
by English Court, 239 ; English laws suggested
by Maseres, 374; instructions to Carleton re,
430-431, 564.
Advocates, Canadian, permitted to practise in
Courts of Common Pleas, 150, 231, {see p. 266) ;
Roman Catholics not allowed to practise under
British law, 155, {see pp. 157,160); Canadian, ordinance permitting them to practise their profession, 173, {see \). 175) ; notaries may practise
as, 328; amendments to Quebec Act stipulating
that advocates may be suspended or removed
only by judges of the courts in which they
practise, 523.
.¿Economats ((Economats), Church revenue from
the, 51.
Age of Maturity, Ordinance defining, 166.
Agriculture, referred to, 59; regulations suggested by Carleton in favour of, note 3, p. 551;
committee of council appointed to report on,
591 ; report of committee of council on, 639 ;
committee of council suggest the revival of the
old laws and usages of the province, 640.
Ainslee, Mr., entrusted by Murray with management of King’s ports, 49.
Aitkin, John, member of committee at Quebec, 413.
Allen, T3than, in command of party at St. Johns,
453 ; his negotiations between Governor Haldimand and a section of the people of Vermont
relative to annexation to Canada, note 2, p.
497.
Allen, Levi, makes application on behalf of state of
Vermont for commercial intercourse with the
Province of Quebec, 613.
Allier, Jacques, appointed judge for Berthier by
Murray, 28, 29.
Allowances. See Salaries and allowances.
Allsopp, Geo., references to, 290, 346, 475, 480,
483, 484, 485, 486, 487, 488, 499, 540.
Allsopp, George, his opinion concerning alterations
to be made in court of civil judicature, 480;
suspended from the legislative council, note 2,
p. 488.
Almshouse, suggestion that one be provided, 631.
Amherst, Sir Jeffery, references to, 8, 20, 21, 29,31,
32, 33, 37, 72, 152, 354, 357.
Amberst, Sir Jeffery, extract from his despatch
to Pitt re capitulation of Montreal, 8 ; signs articles of capitulation of _ Montreal, 20, 29 ;
establishes provisional military government
with summary courts of justice, 31, 32; extract of letters to P i t t re military and civil administration, note p. 31 ; petitions for the estates of the Jesuits, note 1, p. 581.
Amiott, grand juror at Quebec, 155, 156.
Anticosti, placed under protection of governor of
Newfoundland, 120.
Appeals, to be made to military council, 34, 36 ;
made to Conseil Supérieur under French administration, 40 ; granted in civil cases to inhabitants of Quebec, 121, 238 ; regulations concerning
civil cases, 137 ; allowed from Superior Court to
Governor in Council where amount involved is
over £300, and from there to King in Council
where it is £500 or over, 149, 230 ; allowed to
Superior Court from Common PleaB where
amount is £20 or upwards, to Governor in
Council when above £300, and to King in Council when value is £500 or upwards, 150, 230 ;
from decisions of Justices of the Peace, 150, 231 ;
recommendation of grand jury re appeals from
military to civil courts, 154, {see pp. 157, 160) ;
permitted from Courts of Common L a w to Governor in Council, 215 ; to Governor in Council
and to the Privy Council, suggested by Maseres,
251 ; suggestions as to the nature of, 251 ; suggestions by Marriott concerning, 326, 327 ; regulated by Ordinance of 1777, 465 ; rules of procedure established by Ordinance of 1777 concerning, 467 ; regulations to limit number of, 478 ;
objection to the proposal to carry appeals to
England, 513, 515 ; regulations for appeals from
judgments of Court of Common Pleas, 534-535 ;
limitation of, 535 ; not to be allowed in proposed
Courts of Request, note p. 576 ; regulations proposed re judges of court of, 577 ; not allowed
in matters under amount of £10, 583: concerning a bill ” to secure the Royal Revenues
and to regulate the Proceedings in Crown causes,
and to give the subject the benefit of Appeal
from large fines,” note 7, p. 588 ; alterations
suggested in commercial causes, 624 ; suggestion
to establish laws re, 634. See also Court of Appeals.
Appeals to Privy Council, execution of judgment
suspended in case of, 215 ; allowed in cases of
fines for misdemeanours, 215.
Appeals, Court of, composition of proposed court,
175 ; the Governor and Council constitute a
court, 464 ; matters undecided by former courts
to be referred to Governor in Council, 465 ; to
consist of four members beside the Chief Justice,
478 ; suggestion that appeals from Canada be
made to the Lord Chancellor and the judges of
710
.Apeáis, Court of—Continued.
the Courts of Westminster Hall, 504 ; proposal
that the Provincial Court of Appeals have authority to establish general rules of practice,
577 ; proposal that the Provincial Court of
Appeals determine when security is requisite
and regulate the proceedings in all causes of
appeal, 577 ; proposal that court have an
original appellate jurisdiction, 577; members of
the Legislative Council are disqualified as judges
in any cause of appeal in cases where they are
interested, 578 ; regulation concerning cases in
volving points of law which are carried to the
Privy Council, 582 ; given appellate jurisdiction
with the necessary power annexed, 583 ; the
Provincial Court to determine the question of
security, 583 ; the Provincial Court to regulate
the proceedings in all causes of appeal, 583 ;
complaint re decisions of, 588 ; the Council
request an investigation into the charges against,
made by the Chief Justice, 592 ; defects of the
practice in, 615 ; composition of, note 4, p .
615 ; Governor and Executive Council to constitute a court in each Province, 702.
Appointments to Office, regulations controlling,
138, 216.
Apslie, Lord, High Chancellor of Great Britain,
374.
Archives, Registers of Supreme Council of Quebec
and other papers, necessary for establishing
rights of inhabitants, to remain in the country,
18, 28 ; disposition of, under treaty of Paris, 79,
89; Treaty of Paris of 1783 stipulates for restoration to United States of all their papers in
British possession, 493.
Arnold, Benedict, in command of invading force at
St. Johns, 453 ; in command of invading force
against Quebec, note 2, p. 459.
Arnot, Capt., in command of British troops at St. ”
Anne and Champlain, 66.
Arrest for Debt, English laws in force, 242, 247 ;
suggestions by Marriott concerning, 324. S^e
also Capias.
Assembly, general, permission granted to the Governor to call assembly in Quebec, 120, 237 ;
given power with the Governor m Council to
make laws, 128 ; Governor in Council granted
power to form a general assembly, 128, 135, 264;
instructions re adjournment of, 136 ; petition of
British merchants of Quebec for a Protestant r
assembly, 169 ; Attorney General Yorke’s opin- j
ion re petition of Roman Catholics, note p. 185 ;
Maseres’remarks on, 185, 186; Carleton, on ad- I
visability of granting, 205 ; regulations for pass- ‘
ing laws to be observed by, 213 ; Governor not ‘
allowed to exercise legislative authority without i
consent of, 243 ; Canadians to be admitted con- !
ditionally as members, 267 ; ‘ suggestions for re- I
gulations and limitations of proposed assembly,
268 ; oaths to be taken by members of ; qualifi- ¡
cations of members, 268, (see p. 265) ; petition j
to King from British subjects, 291 ; Solicitor
General’s opinion on granting the Canadians an
assembly, 297 ; Marriott, on calling an assembly,
317; Maseres’ remarks on petition of English
inhabitants for an assembly, 340 ; English inhabitants invite the French to join m their
petition, 341 ; proceedings of English inhabitants of Quebec and Montreal concerning their
petition, 341, (see also note 1, p. 347) ;
letter of English committee on the advantage of
an assembly to the colony, 343; letter of
Cramahé transmitting petitions to Dartmouth,
344 ; petitions of ancient subjects of ^ Quebec
and Montreal to Cramahé, 345-346 ; petitions to
the King of the old subjects of Montreal and
Quebec, 347-348 ; Cramahé refuses to grant peti6-7 EDWARD VII., A. 1907
Assembly—Continued.
tion of English inhabitants, note, p. 347 ; memorial of old subjects of district of Quebec to
Dartmouth, 349 ; memorial of old subjects of District of Montreal to Dartmouth, 351 ; Dartmouth
to Cramahé, advising him that a bill for the
regulation of the government had been presented to the House of Lords, 352; Cramahé to
Dartmouth, re petitions from inhabitants, 353;
French inhabitants acknowledge their gratitude
for steps taken towards granting an assembly,
354-356 ; memorial of the French inhabitants
for an increase in number of members of council,
357, 359 ; French subjects represent tha-t colony
is not ready for an assembly, 369 ; petition of –
British merchants of Quebec, 359-366; objections of British merchants of Quebec, to the
Quebec Bill, 361; merchants of Quebec
petition for a representative assembly, 474 ;
Haldimand’s opinion on establishing an assembly, 498, 499 ; Postmaster General Finlay’s
remarks on granting the Canadians an assembly, 500-501 ; petition to the King of his
ancient and new subjects, 502 ; motion in the
council to petition the King, note p. 502 ; clauses
proposed by petitioners to be inserted in an act
of parliament, 503 ; plan for proposed, 504 ; plan
drawn up by the Quebec and Montreal committee of the inhabitants, 510 ; committees of old
subjects appointed to carry forward the petitions
and prevent the effects of false reports on the
objects of reform, note 1, p. 510 ; regulations
proposed in plan for, 510 ; suggestion that members have free liberty of debate, 510 ; compulsory to call together once a year, 511 ; objections
to petition, 511, 514 ; objection to establishment
of, with power to impose taxes, 513, 516.
Assembly, Roman Catholic citizens state that assembly is not unanimous wish of Canadian
people, 518, 519 ; opinion of British merchants
trading with Quebec, 541 ; letter of Montreal
merchants to merchants of London, 544 ; letter
from merchants of Quebec to London merchants,
546 ; remarks of Sydney on granting the Canadians an assembly, 587; referred to, 619 ;
the King’s new subjects at Montreal petition
Carleton, 628, 630; referred to, 628; Carleton’s
remarks on granting Canadians an assembly 646 ;
British merchants trading with Quebec petition
for, 650 ; Adam Lymburner acts in England for
those desiring assembly, note p. 652 ; British
Government requests Carleton to investigate the
objections of the Canadians, 653; Carleton reports on the attitude of the different classes re
an assembly, 654; desire of the Loyalists to participate in a Provincial Assembly, 656; Finlay’s
remarks on, 656-657; referred to, 665, 66.6; notes
concerning plans for, notes 1 and 2, p. 666; first
draught of Constitutional Bill makes provision
for, m each province, 667; Governor authorized
to call, 669; the provinces to be divided into
electoral districts, 669 ; regulations concerning writs of’ election, 669-670; concerning
qualifications of electors and candidates, 670,
671, 675; to be called together at least once a year
and to continue seven years’ subject to be dissolved by the Governor, 671; the Governor to fix
the times and places of sittings, with power to
prorogue, 671; form of oath to be taken by members, 672 ; regulations concerning bills proposed
in the assembly or council, 672 ; suggestions by
Carleton concerning representation in, 675 ;
representation in western district, 675 ; second
draught of Constitutional Act provides for an
assembly in each province, 678; number of members of, 680; regulations for election of members,
680.
INDEX 711
SESSIONAL PAPER No. 18
Assembly, questions to t e aecided by a majority
of, voices, the Speaker to have casting voice,
681 ; regulations for the passing of bills, 682 ;
proposed assembly for the British dominions
in North America, 687 ; number to constitute a
quorum in Lower Canada, 692 ; increase in number of members in Lower Canada, 693 ; concerning the distribution of representation in Lower
Canada, 693 ; Constitutional Act provides for
assembly in each province, 695 ; nunlber of members in each province, 698 ; regulations for issuing writs of election, 698-699 ; qualifications of
electors and candidates, 699-700 ; times and
places of sittings. 700 ; to be called together at
least once a year and to continue for 4 years
subject to be dissolved by the Governor, 700 ;
rules governing bills passed by, 701-702.
Assize, Court of, twice every year at Montreal
not practicable, note 5, p. 149 ; number of sessions, 173.
Attorney and Solicitor General Yorke and DeGrey,
report re civil status of Roman Catholics, 171 ;
report re civil government of Quebec, 174, (see
p. 238); their report referred to, 269.
Aylwin, Thomas, grand juror at Quebec, 155, 156.
Baby, Francis, references to 339, 475, 483, 484, 552,
579, 590, 591, 592.
Baby, Francis, delivers letter to Dartmouth enclosing petition to the King, 339; appointed to
legislative council, 475, 552 ; appointed on committee to devise means to reduce price of wheat
and flour, 483 ; dissents from action taken to
regulate price of wheat and flour, 484.
Bacon, Ed., member of the Board of Trade, 97,
107. 114.
Bailiffs, proposal to increase power of, 187.
Bankruptcy, British merchants in Canada object to
enforcement of English law, 207, 242 ; Carleton
suspends introduction of English law, note 2,
p. 207; application to governor for a commission, 208 ; old inhabitants satisfied with English
law, 316 ; suggestions concerning a bankruptcy
law, 616, 634; merchants of Montreal advise
enactment of a bankruptcy law, 625.
Bannatyne, M., merchant of St. Christopher’s,
wiites re trade with “West Indies, 613.
Barrington, Lord, his opinion referred to in Lord
Mansfield’s judgment, 370.
Bayne, Dan’l, on grand jury at Quebec, 155, 156.
Beaujeu, M. de, council of war to assemble at
house of, 36.
Bedford, Earl of, representative of Great Britain in
negotiating Treaty of Paris, (1763), 73, 80, 81, 84,
90, 91.
Belestre, Pieotté de, member of legislative council, 475, 484, 552, 579, 590, 591, 592.
Benefices, abstract of regulations concerning appointments to, 303.
Bigot, Intendant, references to, 8,10,11, 22, 23, 27,
168.
Bigot, Intendant, piepares terms of capitulation of
Montreal, 8 ; provision made for his leaving
the country, in Articles of Capitulation of Montreal, 11, 22 ; paper currency issued by, note 2,
p. 168.
Bills of Exchange, drawn in Canada, should be
paid by France, 72 ; ordinance relating to, 463.
Bindon, Mr., merchant of Montreal, 453.
Blake, Charles, member of committee at Montreal,
413 ; opinions of, on situation at Montreal, 639,
640.
Board of Trade, letter from Egremont to, re
establishment of civil government in Quebec,
93 ; representations of, on the propriety of calling a general assembly, 171, 280, 269 ; suggest
action re conduct of Governor Murray, 172 ; report to, of the Attorney and Solicitor General re
the civil government of Quebec 174; Lt.-
Board of Trade—Continued.
Governor Irving criticizes administration of
justice, 187 ; report of, on the state of the
Province of Quebec, 263 ; suggest the formation of a legislature admitting Canadians as
members of the council and the assembly, 267 ;
submit to the King a draught of instructions
for Carleton, note, p. 419 ; repudiate Carleton’s
dismissal of Chief Justice Livius and re-appoint
him, note 3, p. 476 ; disapprove of Carleton’s
action in withholding information from Council,
notes pp. 476, 477 ; censure Haldimand for
refusing to follow instructions to communicate
to the Legislative Council everything in his
instructions wherein their advice and consent is
requisite, note p. 477 ; abolished by Act of Parliament, and Committee of Privy Council assumes duties of, note p. 500.
Boisseau, M., grand juror at Quebec, 155, 156.
Boucherville, M. de, member of legislative council, 552, 579, 639, 640.
Bougainville, Colonel de, commissioned to make
proposals to Amherst for a truce, 8.
Boundaries, of territory under French régime, 72 ;
of British territories as defined by Treaty of
Paris, 75, 86 ; limits of Canada as suggested by
Lords of Trade, 103, (see p. 112) ; of Nova Scotia,
117, 118; of the United States, according to
Treaty of Paris. (1783), 491; Grenville’s remarks
on the proposed boundaries of Upper and Lower
Canada, 664-665 ; concerning the boundariesof Canada, note 3, p. 667; Carleton discusses question of boundaries of provinces,
674 ; difficulty in describing boundaries of
Upper Canada, 678, 690.
Boundaries of Quebec, as defined in King’s proclamation and Governors’ instructions, 120, 132,
210 ; agreement reached fixing line between
Province of Quebec and State of New York from
Lake Champlain to the St. Lawrence, 338 ; request of inhabitants for restoration of ancient
limits, 351, 354, 356, 358 ; proposed extension of
provincial limits, 381 ; limitations as proposed
by the third draught of Quebec Bill, 388 ; letter
from Dartmouth to Hillsborough re extension
of, 390 ; according to Quebec Bill, as returned
from the Commons, 391 : as fixed by the Quebec
Act, 402 ; first draught of the Constitutional Act
repeals the portion of the Quebec Act relating
to boundaries, 667 ; line between Quebec and
New York adjusted by the Privy Council in
1766, 677 ; between Quebec and New Brunswick, 684.
Bowen, Ernán., geographer to His Majesty, map of
North America by, note p. 103.
Brant, Joseph, visits England to arrange restitution
for losses sustained during the war, 547 ; letter of.
Sydney to, concerning compensation for Indian
losses during the war ; question of assistance in
case of dispute with Americans about their
lands, 549.
Bread, changes suggested in ordinance relating to,
279.
‘British Merchants Trading with Quebec, memorialize British Government for a general assembly,
359-366 ; make suggestions for a legislative
council if assembly is not considered expedient,
364-366 ; memorialize Lord Sydney respecting
regulations proposed for that Province, 541 ;
petition for a house of assembly, English commercial law and reforms in the courts of justice,
650.
Bruyère, J., Secretary at Trois Rivières, furnishes
vital and other statistics concerning the government of that place, 67, 68, 69.
712 INDEX
6-7 EDWARD Vil., A. 1907
Burgoyne General, arrives at Quebec, 4t>0 ; bis
efforts to obtain aid from French Canadians not
very successful, notes p. 461 ; peasants refuse
aid to, notes p. 461 ; appointed to lead expedition
against Albany, note p. 474.
Burke, Edmund, favours the immediate consideration of petitions from Quebec concerning form of
government, note p. 652.
Burton, Colonel R., 29, 31, 32, 33, 37, 61, 66, 69,94,
104, 152, 153.
Burton, Colonel R., appointed byMonekton to act
as lieutenant governor of Quebec, note p. 29 ;
appointed governor of Trois Rivières, 31. 32 ;
reports on the state of the government of Three
Rivers, 61.
Butler, Colonel John, signs petition to the King on
behalf of the Loyalists, 527.
Caldwell, Colonel Henry, member of legislative
council, references to, 475, 480, 484, 487, 552,
586, 588, 590, 591, 592.
Calvet, Pierre de, protests against ordinance of
February, 1770, note p. 280.
Calvin, case referred to, in Lord Mansfield’s judgment, 370.
Cambridge, Duke of, announcement of birth of,
353.
Campbell, Major John, appointed Superintendent
of Indian Affairs, 451.
Campbell, Alex., plaintiff in suit of Campbell vs.
Hall, 366.
Canada, ceded to Great Britain by Treaty of Paris,
75, 85 ; boundaries of, 72, 75, 86, 103, 112, 491,
664, 665 ; proposed boundaries of, 103, (see also
pp. 72, 108,112). See also Quebec.
Canadians, character of, as described by Murray,
59, 65 ; rights under Treaty of Paris secured to
them by new government, 104 ; their complaints
re civil affairs to be investigated, 201 ; their altitude towards British government, 227 ; loyalty
of noblesse and clergy to English government,
455, 460 ; certain of the peasantry under the influence of the rebels refuse to take up arms in
defence of the country in 1775, 455, 459 ; Hey’s
remarks on their dissatisfied condition, 457 ;
opinion of Carleton on their loyalty, 459 ; peasantry refuse to aid Burgoyne, notes p. 461 ; object to the feudal authority exercised by the
noblesse, 461 ; Sydney’s remarks on the loyalty
of, 548 ; Quebec Act defines who are included
under the term “Canadian,” 571 ; opinion of
council that rejection of bill introduced by Chief
Justice will increase discord among them, 580 ;
Sydney’s opinion on rights of, 586, 587 ; residents
of Montreal and Quebec petition against adoption of common law of England, 589 ; those at
Montreal approve of Quebec Act, 628, 630 ; British government desires Carleton to investigate
their objections to house of assembly, and
trial by jury, 653 ; Finlay’s plan to accustom
them to English language, 657. See Inhabitants, also French Canadians.
Canadian Militia, Carleton approves the formation
of a regiment, 411 ; Carleton suggests organization of, 451, 454. See also Militia.
Canadian Troops, letter from Dartmouth, re troops
for the south, note p. 455.
Cape Breton, proposed annexation to Nova Scotia,
104 ; annexed to Nova Scotia, 120.
Capias, for Debt, authorized by Ordinance of J.777,
470 ; regulations governing the issue of, by judges,
530, 537. See also Debt.
Card Money,,issued by Intendant Bigot, 49.
Carleton, Guy, references to, 172, 179,192,193,195,
196, 199, 201, 203, 205, 207, 208, 210, 227, 228,
242, 245, 258, 259, 263, 274, 275, 276, 280, 290,
295, 319, 320, 330, 331, 384, 388, 389, 400, 410,
411, 412,419, 438, 450, 452, 453, 455, 456, 457,
459, 460, 461, 464, 465, 471, 472, 473, 474, 475,
Carleton, Guy—Continued.
476, 477, 539, 540, 648, 549, 550, 552, 567, 568,
571, 574, 586, 587, 589, 590, 592, 593, 594, 612,
619, 621, 628, 629, 638, 639, 641, 643, 646, 647,
651, 654, 655, 657, 662, 663, 667, 674, 676, 677,
678, 685, 686, 689, 690, 692, 703, 705.
Carleton, Guy, commission as Lieutenant Governor of Quebec, note p. 192 ; acts under instructions çiven to Murray pending the arrival of his
commission, note p. 192; intimates to council
his intention to summon any member he may
deem advisable, 194 ; instructed to report on
alleged defects in judicature, 201 ; acts as Lieutenant Governor, note 2, p. 208 ; his views on
the system of French land tenure expressed in a
letter to Shelburne, 208 ; appointed Captain
General and Governor in Chief of Quebec, not.e
2, p. 208 ; instructions as governor in chief of
Quebec (1768), 210 ; instructed to report on general condition of country, 225-226 ; letter to
Hillsborough re attitude of inhabitants to
British Government, 227 ; ‘disapproves of plan
to settle laws of province as suggested by
Maseres, 257 ; suggests that English law be followed in criminal matters and French law in
civil eases, 258 ; receives secret report of Lords
of Trade on proposed plans for government of
Quebec, note p. 263 ; signs ordinance for the
more effectual administration of justice and for
regulating courts of law1
in Quebec, 290 ; additional instruction to (1771), 295 ; advises the
ministry as to the policy to pursue in framing
the Quebec Act, note 3, p. 374 ; favours retention of French criminal law. note p. 377 (see also
258) ; his objections to the third draught of the
Quebec Bill, 389 ; his views on the French
feudal system, 389. ‘
Carleton, Guy, requests to be allowed to use his own
discretion in dealing with religious communities,
note p. 400 ; writes to Dartmouth expressing appreciation of Canadians for passing of Quebec
Act, 410 ; promises troops for Boston, 411 ; letter
to Dartmouth re English inhabitants who desire
the repeal of the Quebec Act, 412 ; memorandum
used in framing instructions of 1775, note p.
419 ; instructions to (1775), 419 ; comments of
Dartmouth on instiuctions of. note p. 419 ; regulations for the legislative council given In
his instructions of 1775, 420 ; instructions of
1775, give directions to legislative council for
establishment and regulations of courts of
justice, 421-425 ; instructed to encourage fisheries on Labrador coast, 428-429 ; system of
land tenure to be followed, as set forth in his
instructions (1775), 429 ; instructions of 1775 re
admiralty affairs, 430-431 ; instructions relating
to trade and navigation, 438 ; letter to Gage,
re the organization of the Canadian militia, 450;
instructions to, re additional salaries and allowances of offices under Government, 450 ; letter
from Dartmouth, re the agitation for repeal of
the Quebec Act, 452 ;_ letter to Dartmouth
giving account of invasion by American rebels,
453 ; on the adoption of British ideas of
personal liberty by the French Canadians, 453 ;
regrets having recommended the Habeas Corpus
Act and English criminal law ; is of opinion
that, French criminal law should be re-introduced, 454 ; on British interests in the South,
note p. 435 ; issues proclamation (1775) re the
militia of the Province, note 3, p. 456 ; despatch
to’Germain expressing his opinion of the loyalty
of the Canadians, 459 (see also notes p. 461);
. despatch to Germain, concerning ordinances
passed by legislative council (1777), 460 ; signs
ordinance for establishing courts of civil judicature (1777), 465 ; signs ordinance for establising
courts of criminal jurisdiction in Province of
Quebec (1777), 471.
INDEX i 713
SESSIONAL PAPER No. 18
Carletqn, Guy, is prepared to lead expedition
against Albany, 474 ; circumstances of his
removal from office of governor, note p. 474 ;
Lords of Trade refuse to sanction his dismissal
of Chief Justice Livius, and re-appoint him to
office, note 3, p. 476 ; his action in withholding
from the Council instructions wherein their
advice and consent was made requisite, notes
pp. 476, 477 ; Sheridan refers to the extraordinary powers conferred by the new
commission on the governor, note 2, p.
502 ; _ no change to be made in the constitution till the opinion of the people is
ascertained by him, 548 ; appointed Captain
General and Governor in Chief of all Britain’s
dominions in Ameriea, 550, 686 ; memorandum
for his instructions of 1786, 551 ; on the policy
he is to adopt in dealing with the United States,
note 3, p. 551 ; on methods to be adopted to secure allegiance of province, note 3, p.” 551 ;
desirous to check abuses in land grants, note 3,
p. 551 ; raised to peerage as Baron Dorchester,
note p. 552 ; instructions to (1786), 552 ; instructions relating to members of the council, 552 ;
regulations and powers of legislative council as
given in instructions of 1786, 552-554 ; regulations in his instructions of 1786 concerning
ecclesiastical jurisdiction and affairs, 556-559 ;
regulations concerning trade and fisheries in his
instructions of 1786, 559-560 ; instructions of
March 1787, 567; instructions of August 1787,
568 ; his instructions of August 1787 provide for
the free exercise of religion, 568 ; signs ordinance
of 1787, re criminal courts, 585.
Carleton, Guy, on the working of the Quebec Act,
588 ; on the friction in the legislative council,
588 ; requested to take action on the charges
made against judges by Monk, 592 ; report of
the committee of council relating to the courts
of justice, 594 ; petition of citizens of Quebec
concerning their municipal laws, 619, 621 ;
citizens of Montreal approve of the Quebec Act
and pray for a continuance of their common
law, 628, 630: new subjects at Three Rivers
make representations to the Governor and Council 634,637; his views on granting Canadians a
house of assembly, 646 ; recommends that lands
be grafted in free and common soccage, 646 ;
signs patent creating five new districts, 651 ;
authorized to investigate the objections of the
Canadians to the introduction of trial by jury,
653 ; reports on the condition of the province,
654; his opinions on the changes proposed in the
constitution, 654; requested to report on the ,
civil state of the Province and suggest a suit–
able form of government, 654 ; reports on the
objections of Canadians to trial by jury and
house of assembly, 654-655; recommends that
a Lieutenant-Governor be appointed for the
four western districts of the Province, 655 ; does
not favour a division of the Province, 655 ; secret
despatch from Grenville concerning the first
draught of the Constitutional Act^ 662 ; signs
ordinance of 1789 re proceedings in the civil
courts, 662 ; letter from Grenville discussing the
proposed Constitutional Act, 663-666; Grenville requests his opinion of the first draught of
the Constitutional Act, 664 ; letter to Grenville
on the proposed Constitutional Act, 674 ; suggests amendments to the first draught of the
Constitutional Act, 677 ; letter from Grenville
discussing the first and second draughts of the
Constitutional Act, 690 ; letter from Dundas on
the working of the Constitutional Act, 692-694.
Carleton, Colonel.Thomas, Lieutenant Governor of
New Brunswick, given the option of the Lieutenant Governorship of Quebec, 551 ; appointed
Brigadier-General and Commander of the
Forces, note 2, p. 551.
Cataraqui, letter from the magistrates of, concerning the administration of justice in their district, 642-644 ; proposal to make Cataraqui, instead of Carleton Island, the quarters of the
naval department and the depot of Stores for
the garrisons in the upper country, 644 ; extent of country comprised under the name of,
note 2, p. 648.
Cazeau, M., disloyalty of, 489.
Cession of Canada, Acadia and dependencies to
Greac Britain by Treaty of Paris, 75, 85 ; advantages of, 98-101.
Chancery, Court of, composition of proposed
court, 175 ; procedure in, 601 ; suggestions for
establishment of, 615 ; merchants of Montreal
advise establishment of, 624.
Charest, M., on grand jury at Quebec, 155, 156.
Chief Justice, William Gregory appointed, note p.
149 ; dismissal of Gregory, note. p. 178 ; William H e y appointed, note p. 178 ; Peter Livius
appointed, note 1, p. 475 ; Livius dismissed
from office; Board of Trade re-appoint him,
note 3, p. 476 ; William Smith appointed, note
p. 569. See also Gregory, Hey, Livius and
Smith.
Chinn, Edward, signs memorial to Dartmouth,
352.
Choiseul, Gabriel de, representative of France a t
framing of the Treaty of Paris (1763), 80, 81, 90,
91.
Church of England, establishment of, to be encouraged, 227.
Circuit Courts, regulations^ for proposed courts,
176 ; suggestion to establish them on model of
Welsh courts, 269 ; proposal to abolish, 624 ; inhabitants at Three Rivers protest against the
expense and delay of justice in, 635, 637 ; terms
of, in district of Hesse, 660-661.
Citadel of Quebec. See Quebec.
Civil Cases, French law to be observed in, 258.
Civil Courts, ordinance establishing, 149, 230; ordinance regulating composition of juries in, 173 ;
proposal to repeal ordinance relating to, 203; purport of ordinance relating to, 229, 232, 243; ordinance relating to, 266, 277, 280, 582; established
by Quebec Act, 405; ordinance establishing,
(1777) 464; ordinance to regulate proceedings in,
466 ; ordinance renewing and amending an ordinance to regulating proceedings in, 490. See also
Civil Judicature, and Justice.
Civil Government, introduction of, in 1764, note p.
33; variations in interpretations of proclamation
relating to, 238; salaries under, 432.
Civil Judicature, ordinance for establishing courts
of, (1777), 464; ordinance of 1777 confirms judgments of courts of civil jurisdiction established
since the enforcement of the Quebec Act, 465 ;
ordinance to regulate the proceedings in the
courts of, 466 ; Chief Justice Livius proposes an
amendment to the judicial system of the Province, note p. 478; Haldimand reviews the discussion by the legislative council on the expediency of acting on his instructions concerning
alterations in the judicial system, 482 ; ordinance to regulate the proceedings in the courts
of, and to establish trials by juries in actions
of a commercial nature and personal wrongs
to be compensated in damages, 529 ; instructions of 1786 concerning regulations for t h e
courts and the mode of administering justice,
555-556; proposed amendments, 576; ordinance
to continue an ordinance to regulate the proceedings in the courts of, 582 ; remarks of Mabane
on juries in civil causes, 604-605 ; merchants of
Quebec recommend the re-introduction of the
common and statute laws of England in matters
of personal property and civil rights, 614; inhabitants of Three Rivers represent to Carleton
the state of civil jurisdiction in their govern-
714 INDEX
6-7 EDWARD VII., A. 1907
Civil Judicature—Continued.
ment, 634-639 ; magistrates of Cataraqui recommend the establishment of courts of civil and
criminal jurisdiction in their district, 643 ; ordinance of 1789 re Proceedings in the Courts,
658; regulations for civil courts in the District
of Hesse, 661. See also Civil Courts, and Justice.
Civil Law, English law in force in Quebec, 229,
242 ; suggestion by Carleton to retain the
French law in civil matters, 258 ; Marriott’s remarks on status of civil law after the cession,
317; Quebec Act makes ” L a w s and Customs
of Canada ” the rule, 404 ; plan to avoid bringing commercial matters, which were subject by
Quebec Act to Erench civil law, into the regular
courts, 462. See also Justice.
Civil Procedure, laws and customs of Canada in
force under Quebec Bill as returned from the
Commons, 393 ; regulations for mode of
proceedings in actions above £10 in Court of
Common Pleas, 530; regulations for proceedings
in actions under £10 in Court of Common Pleas,
_ 536. –
Civil Property, authority of Justices of the Peace
* in matters of, 278. See also Civil Judicature and
Justice.
Civil Rights of Canadians, to be maintained by the
” L a w s and Customs of Canada,” 393, 404;
Erench advocates represent that the report
from the merchants to the council on Commerce
and Police is an attack on, 573 ; (see p. 574.)
Civil Suits, power given Chief Justice to hear and
determine, 191 ; necessity of reform in administration of justice in, 266. See also Civil Judicature, and Justice. *
Clergy, Haldimand’s remarks on their attitude
towards government, note 3, p. 539 ; provision
respecting those of the Roman Catholic church,
703 ; provision for maintenance of Protestant
clergy, 703-704.
Clergy Reserves, suggestions re, 693-694 ; regulations concerning, 703-705 ; lands set apart in each
province for support of Protestant clergy, 704-
706.
Code of Law, power granted to the representatives
of the people to frame code ” a s near as may be
to the laws of England, ” 120, 237 ; suggestions
for framing 252, 260 ; difficulties of framing
such a code, 253, 260 ; advantages and disadvantages set forth, 255 ; plan reported by Marriott,
310 ; British merchants trading with Quebec
represent the inconveniences of Erench and
English laws, 541.
Coke, Lord, quoted by Lord Mansfield in his judgment, 370.
Collins, John, member of legislative council, references to, 475, 484, 501, 552, 579, 5S1, 588, 590,
591, 592, 612, 613, 619.
Commerce, committee of council ap|»inted to
report on the external and internal commerce of
the Province, 591 ; merchants of Montreal object to the establishment of a Chamber of Commerce, 624; objections to requests for trade
relations with Vermont, 628, 630 ; merchants of
Montreal not averse to changes in commercial
law, 634 ; magistrates of Three Rivers point out
the necessity of laws for the recovery of debts
on the principles of English commercial law,
634 ; British merchants trading with Quebec
petition for English commercial law, 650 ;
British Parliament to make regulations for, 707.
See also Trade, and Trade and Commerce.
Commerce and Police, report of committee of
council on, 612 ; letter of council to merchants
of Montreal re, 622 ; answer to the letter, 623 ;
report of merchants of Montreal to committee
of’council on, 624; magistrates of Three Rivers
make suggestions to the council re matters of,
633.
Commission to Jacques Allier, 29-30 ; of Governor Murray approved by King, 124 ;
proposed additional clause in Murray’s commission re land grants, 125 ; appointing
Murray Captain General and Governor in
Chief of Quebec, 126 ; appointing Chief
Justice Hey, 190, (see note p. 178) ; appointing
Guy Carleton as Lieutenant Governor of Quebec,
note p. 19£.
Commissioners of the Peace. See Justices of the
Peace.
Common and Statute Law of England, Canadians
petition against adoption of, 589.
Common Pleas, appeals from courts of, may be
carried to Superior Court, Governor in Council,
or King in Council, 150, 230 ; powers of courts
of, 150, 230 ; Canadian advocates permitted to
practise in courts of, 150, 231 ; laws and customs of the Erench admitted in courts of, where
cause of action arose before Oct. 1, 1764, 150,
231 ; ordinance for establishing a third term
called Michaelmas, for sittings of courts of, 174 ;
inconsistency, in civil proceedings, in courts of,
242 ; minor cases of debt to be tried by judges
of, 282; ordinance of Eebruary, 1770, repeals
regulations of September, 1764, re sittings of
courts of, 283, 284 ; establishment of courts
for districts of Montreal and Quebec, 464 ; two
judges necessary in cases involving accounts
over $10, 464 ; four sittings a year to be held at
Quebec and two in Montreal, 478 ; chief justice
to preside and be a member of court of, 478 ;
council desires more than two terms a year to
be held in Montreal, 481 ; regulations for actions in courts of, 530-538 ; appeals from judgments of, 534-535 ; remarks of Chief Justice
Smith on, 570 ; judges of court of, would confine
English law to criminal cases, 571 ; to take no
• cognizance of any new cause brought in any >of
the Courts of Request after its erection, 576 ;
general rules of practice to be communicated by the judges of the Common Pleas
to the Provincial Court of Appeals, 577.
Common Pleas, ordinance regulating rights of appeal in causes before the court of, 577 ; regulations concerning sittings of court of, 583 ; to take
cognizance of the arraignment by Attorney
General Monk of the administration of justice
in the Canadian courts, note 3, p. 586, (sec p.
588) ; Attorney General Monk, accuses the judges
of the courts of inconsistency in their decisions,
588 ; the integrity of the judges established by
investigation, note 3, p. 593 ; petty litigation to
be taken to another tribunal, 599 ; judges present to the council a plan for forms of procedure
for acts concerning guardianships and trusteeships, 609, 611 ; J u d g e Panet’s opinion on the
desirability of leaving _ guardianships, trusteeships and letters of administration to the judges,
609, 612. See also Civic Judicature and Justice.
Congress, circulation of letters addressed to Canadians by the Continental Congress of Philaelphia, note 2 p. 452.
Constitution, as established by the Crown of
Erance not entirely abolished at the Cession,
265 ; Lieutenant Governor Hamilton considers
that the time is opportune for amendment of,
528 ; no change to be made in, until the opinion
of the people is ascertained, 548 ; Sydney advises
Dorchester that there is no intention to make
changes, 586 ; Loyalists desire to be governed by
tKe British constitution and laws, 645 ; Western
Loyalists petition to be governed by the English
constitution, 648 ; Sydney refers to the conflicting nature of the applications for changes in, 652 ;
summary of a debate in the British Commons
on, note, p. 652; Carleton’s opinions concerning proposed alterations in, 655 ; Einlay’s opinion that a constitution founded on the 12th
INDEX 715
S E S S I O N A L P A P E R No. 18
Constitution—Continued.
article of Carleton’s instructions would be mostsuitable for the Province, 656 ; Finlay’s remarks
on proposed changes, 656-658 ; Grenville on proposed changes, 665-666. See also Government.
Constitutional Act, despatches re, from G-renville to
Carleton, 662, 663-666 ; Carleton’s opinion on
first draught of, 664; first draught of, 667; first
draught divides the Province of Quebec into
Upper and Lower Canada, 667; first draught of,
provides for a Legislative Council and a House ‘
of Assembly in each of the provinces, 667; second draught of, 677; Carleton and Chief Justice Smith amend the first draught, note 1, p.
677; ‘ proposed additions to the Bill to form a
general government of all the British Provinces
in North America, 687; proposed clause re trial
of criminal offences, 689; Gren ville discusses the
first and second draughts, 690; letter of Dundas,
to Carleton on the working of, 692; text of Act
of 1791, as passed, 694; source of text in this
volume, note 3, p. 694; source of debates in the
British Parliament relating to, note 3, p. 694.
Contraband Trade, between St. Pierre and Miquelon, and Newfoundland, 99 ; carried on by
French subjects, 145, 146; instructions to Carleton (1775) for suppression of, 430.
Corvées, ordered by Carleton to follow Burgoyne’s
Army, note 2, p. 48l; remarks on, 516, 528.
Cosnan, Capt., Town Major at Quebec, 37.
Conway, Gen. H . S., succeeds Earl of Halifax as
Secretary of State for the Southern Department,
172, 190, 192, 199.
Council, composition of, and regulations concerning,
133-134 ; power given to governor to choose members for vacancies in, 134; protests against action
of governor in summoning only part of council,
192; protest against the number and order of
precedence of members appointed by the King,
and those appointed by the Governor, 193; members of the first council, note p. 193 ; the twelve
members appointed by the King to have precedence, 194 ; list of members in 1766, with dates of
their admission, note p. 194 ; list of members
appointed in 1768, 211 ; conditional power given
to Governor to appoint and suspend members,
211, 212; freedom of debate and vote given
to members, 212; proposed increase in number of members, 267 ; limit of the authority
of members, 297 ; proposition to enlarge, 321 ;
memorial of French inhabitants asking for
an increase in number of members, 357, 359 ;
British merchants of Quebec suggest a fixed
number of members, who would be independent
of the governor, 365; Lord North favours es<- tablishment of a council, and not an assembly, note p, 375 ; proposal to create the Legislative Council by letters patent, in second drauerht of Quebec Bill, 380. Council, clause in Quebec Bill as returned from the Commons providing for, and stipulating number and powers of, 393-394 ; provision in Quebec Act for calling a council by the King, 404-405 ; oath to be taken by members of, 420; Carleton's instructions of 1775 ixmstitute five members a board of council for all business except acts of legislation, 420 ; list of members appointed by the King in council as given in Carleton's instructions of 1775, 420 ; regulations for, in instructions to Carleton of 1775, 420; freedom of debate to members of, in Carleton'* instructions of 1775, 421 ; restrictions to powers of, 421-422 ; Carleton's remarks on ordinances passed in 1777, 460 ; list of ordinances passed in session of 1777, 463 ; list of members as appointed by Haldimand's instructions of 1778, 475 ; Governor and council authorized in 1778 to frame, Council—Continued. alter and amend ordinances relating to courts of justice, 475; instructions to Haldimand of 1779, interpret his former instruction re what shall be a quorum, 476 ; object to formation of privy council by Carleton, note 3, p. 476 ; Haldimand censured for calling together certain members to act as a privy council, note ' p. 477 ; opinions of members of the council on instruction of July, 1779, concerning alterations to be made in court of civil jurisdiction, 479 ; George Pownall appointed clerk and registrar of, note 2, p. 480 ; opinion of the legislative council on instruction to Haldimand concerning alterations to be made in the judicial system, 481. Council, Haldimand reviews the question discussed by the council as to their constitutional power to prohibit the export of grain and flour or to fix an arbitrary price, 482 ; refuse to grant juries in civil cases, 501, (see note p. 502) ; address to Haldimand praying for a continuance of the Quebec Act, note p. 502 ; extraordinary powers given the council by the Quebec Act objected to, note p. 502 ; proposed regulations for, 503 ; objections to proposed composition of, and salaries, 511, 514; Bill introduced to secure " a n emancipation of the Legislative Council from the uncontrollable authority of the Governor", note 2, p. 520 ; members of the council to be suspended or removed by the King only, 522 ; council to consist of at least thirty-one members, 524 ; not in favour of open debate, note 1, p.' 529 ; Haldimand's remarks on the opposition of certain members of the council to measures of government, note 3, p. 539 ; Lieutenant-Governor Hope suggests an increase in number of Catholic members, 540 ; proposal to increase the number of Canadian members, 548; instructions of 1786 re board of council, 552 ; list of members appointed by Carleton's instructions of 1786, 552 ; regulations for, in Carleton's instructions of 1786, 552:553; powers granted to,, in Carleton's instructions of 1786, 554 ; freedom of debate provided for, 554 ; old subjects refused copy of a bill depriving mercantile classes of trial by jury, 573. Council, members of council disqualified from acting as judges in certain cases, 578 ; extract from the proceedings of 1787, 579 ; protest of Chief Justice against vote of council, 579-588 ; disputes in the council contrary to the dignity of Government, 586 ; reports of committees, and journals of the council used by Carleton in making an investigation into the condition of the province, 587 ; discord in, referred to by Carleton, 588 ; objections to change in Bill introduced by Chief Justice, note 7, p. 588 ; committee on commerce and police recommended the adoption of much of the common and statute law of England, 589 ; two members of the council withdraw their names from the protest against the vote on the commitment of a bill for the better administration of justice, note 1, p. 589 ; minutes of the council upon state business, from October 1786 to J u n e 1787, 590 ; members take the oaths required, 590-591 ; committees appointed to make reports as a basis for determining the future government, of the province, 591 ; action of, on the charges made against the administration of justice by Monk, 592; report of, on the administration of justice, 594 ; memorandum of the council concerning trial by jury, 602 ; report of committee of council on commerce and police, 612 ; letter of committee of council on commerce and police, 622 ; answer to the letter, 623 ; report of merchants of Mon- 716 IXDJiX 6-7 EDWARD VII., A. 1907 Council—Continued. treal to committee of council on commerce and police, 624 ; committee of council request magistrates of Quebec, to express their views on police, 630 ; the magistrates of Quebec report to the council making suggestions for the improvement cf police, 631 ; letter to merchants at Three Rivers from committee of council requesting their views on matters of commerce and police, 633 ; report of the committee of council upon population, agriculture and the settlement of the Crown lands, 639 ; Carleton requested to recommend number of members and names of, 665 ; Grenville's remarks on the number of members to compose the council in Upper and Lower Canada, 665 ; members to be called by the Governors of the provinces, with the advice of the Privy Council, 668 ; members to be appointed for life, 668 ; the Speakers to be appointed and removed by the Governor, 669 ; the Governor to fix the times and places of sittings, with power to prorogue, 671 ; form of oath to be taken by members, 672 ; power vested in the King to create a council and appoint and remove members, 673 ; number of members, 678 ; qualifications of members, 679 ; to be called at least once a year, 681 ; power to make temporary laws without the assembly, 684 ; suggestion re number of members, 690; number to constitute a quorum in Lower Canada, 692 ; number of members in Upper Canada, 695; number of members in Lower Canada, 695 ; membership may be annexed to titles of honour, 696 ; regulations governing holding of, seats, 696-697 ; times and places of sittings, 700 ; rules governing bills passed by, 701-702. Council, Superior, appeals made to, under French administration, 40 ; powers of, 607, 609. Council of "War, sittings to be held at stated times, 34, 36. Courts of Civil, Criminal and .Ecclesiastical Jurisdiction, may be erected by the King, 674, 683-684. Court at Detroit, suggestion to establish, 326. Court of Admiralty, bee Admiralty, Court of. Courts of Appeal, matters undecided by former courts to be referred to Governor in Council, 465. Courts of Justice, procedure suggested for, 248 ; suggestion made that they be held once a week, 248 ; changes suggested by Board of Trade, 269; Canadians complain of excessive fees in, 292, 294 ; plans by Hey and Pownall for establishment of, note 4, p. 411; regulations for, 421-425 ; variation in text of Carleton's instructions re establishment of, note p. 423 ; Loyalists complain of the expense and delay in attending, 525 ; re sittings of, 624 ; magistrates of Three Rivers suggest a weekly court for the recovery of small debts, 634; inhabitants of Three Rivers ask for court of sessions to be held^ quarterly for trial of small cases, 636-638 ; British merchants trading with Quebec pray for reforms in, 650; expense and delay in, 650. See also Justice, Courts of. Courtney, , member of Opposition in British Parliament, 520. Coutume de Paris, referred to in terms of capitulation of Montreal, 18, 27; re authority of judges of inferior courts to adhere to, 187 ; referred to, 241, 235, 238, 313; Maseres' objections to revival of, 259 ; in operation in Canada by edict of Louis XIV, 312 ; suggestions re incorporation in Canadian law of parts of, 330 ; reference to abstract of, 330. Cox, Lt.-Gov., makes representation regarding codfisheries, 613. Cramahé, H. T., references to, 30. 35, 36, 37,-167, 187, 193, 194, 196, 276, 280, 295, 296, 338, 339, 340, 343, 344, 346, 347, 352, 353, 381, 452, 455, 475, 482,484, 486. Cramahé, H. T., recommended by Murray for Lieutenant Governor at Montreal, 167, (see note on same page) ; made member of first Council, note p. 167 ; acts as Governor in Carleton's absence, note 3 p. 295 ; appointed Lieutenant Governor, 295 ; letter to Dartmouth re granting Canadians free exercise of their religion, 338 ; letter to Dartmouth re petition of English inhatitants for an assembly, 343 ; petition from English inhabitants of Quebec and Montreal for an assembly presented to, - 345 ; letter to English inhabitants re their petition for an assembly, 346 ; declines to grant petition of English inhabitants for an Assembly, note p. 347 ; letter to Dartmouth, re petition of English inhabitants for an assembly, 353 ; writes Dartmouth re invasion of Canada by rebels, 455. Criminal Cases, English law to be followed in, 258. Criminal Code, Wedderburn's opinion on, note p. 377. Criminal Courts, established by Quebec Act, 405 ; ordinance of 1787 re, 585 ; copies of proceedings to be transmitted to the governor, 659. Criminal jurisdiction, power to grant pardons in criminal cases vested in the governor, 129 ; the Chief Justice vested with power to sit on criminal cases, 190 ; changes ^ suggested by Board of Trade re juries in criminal cases, 269 ; Thurlow's opinion on the proclamation of 1763, 307- 308 ; Carleton favours retention of French law, note p. 377 ; Wedderburn's opinions on forming a criminal code for Quebec, note* p. 377 ; English inhabitants protest that Quebec Act gives unlimited power to Governor and Council in matters of, 418 ; Carleton favours re-introduction of French law, 454; ordinance establishing courts of criminal jurisdiction in the Province of Quebec, 1777, 471 ; ordinance of 17S7 to explain and amend an ordinance for establishing e ourts of criminal jurisdiction. 585 ; execution of judgment to be suspended in certain cases, 659; proposal to incorporate English criminal law in the Constitutional Act, 689. See also Justice. Criminal Law of England, in force in Quebec, 229, 242 ; Carleton's remarks on, 258 ; suggestion by Wedderburn that it should not be transferred to Canada in its entirety, 300, 302; "Draught of an Act," by Maseres, provides for retention of, 374 ; to be observed in Province of Quebec, 393 ; Quebec Act provides for retention of, 404. Crown Lands, report of committee of council in settlement of, 639 ; opinions of Sir John Johnson with respect to the settlement of, 640-642 ; note re the basis of the reserves, note 1, p. 647 ; suggestion from Grenville concerning the reservation of, 663. See also Lands. Cugnet, F. J., secretary to the Governor in Council, references to, 210, 341, 373. Currency, Paper, negotiations with French government for redemption of, note p. 168. Custom Duties, Import and Export, application of English tariff in Quebec, 235. See also Duties. Customs Officers, to be excused from serving on juries or in militia "unless in case of absolute necessity ", 138, 216. Cuthbert, Capt. James, member of legislative council, 193, 194, 195, 475, 483, 484, 485, 486, 488, 517, 540. Daly, Capt. P., Loyalist, signs petition to the King, 527. Danser, John, on grand jury at Quebec, 155, 156. INDEX 717 S E S S I O N A L P A P E R No. 18 Dartmouth, Earl of, references to, 172, 338, 339, 340, 343, 347, 349, 351, 352, 353, 373, 375, 376, 377, 379, 380, 381, 385, 387, 388, 389, 390, 400, 410, 411, 419, 433, 452, 453, 455, 456, 527. Dartmouth, Earl of, appointed Secretary of State, note p. 338 ; formed the collection of manuscripts known as " the Dartmouth Papers," note p. 338 ; introduces Quebec Bill in House of Lords, note p. 353 ; makes changes in first draught of Quebec Bill, as prepared .by Wedderburn, note p. 376 ; letter to Hillsborough re extension of boundaries of Quebec, 390'; re plans of H e y and Pownall for establishing courts of justice, note 4, p. 411 ; expresses opinion to Garleton on the Quebec Act,412 ; comments on" the commission and instructions of Carleton, note p. 419 ; concerning the agitation for the repeal of the Quebec Act, 452. Davison, George, member of legislative council, 552, 639. Debate, freedom of, 212 ; opinion of Lord Sydney that speech of Chief Justice Smith is an attack on, 586. See also Freedom of Debate. Debt, English law on subject of arrest for, in force, 242, 277 ; suggestions for remedying abuses of the law relating to, 278 ; minor eases to be tried by judges of Common Pleas, 282 ; judgments may be satisfied by instalments at discretion of judge, 288 ; sworn declaration may be required from debtor as to his effects, 327. DeGrey, William, Solicitor General, report re civil status of Roman Catholics, 171 ; report re the civil government of Quebec, 174 [see also p. 238). See also Yorke and DeGrey. Descheneaux, M., letter from committee of British inhabitants of Quebec, sent to, 341. Districts, French division of the three administrative districts retained after the capitulation, note p. 31 (see also note p. 104) ; temporary division of Quebec province for administrative purposes, 151. ; proposal to create new district for the administration of justice, 575-576 ; creation of five new districts by letters patent, 651 ; Carleton recommends that a lieutenant governor be appointed for the western districts of the Province, 655 ; the governor or lieutenant governor to divide each province into electoral districts, 669; representatives in Western districts, 675; the province to be divided into districts for electoral purposes, 698. Division of the Province, Grenville's remarks' on the division into two districts, 654; proposed line to divide the province, 655 ; Carleton expresses opinion re, 655 ; as proposed by draughts of Constitutional Act, 667, 677, 695. Dolben, Sir W . , took part in debate on Canadian affairs in British House of Commons, 652. Dorchester, Lord, see Carleton, Guy. Drummond, Colin, member of legislative council, 211, 276, 280. Drummond, John, member of legislative council, 475. Dufau, Berthelot, letter from committee of British inhabitants of Quebec, sent to, 341. Dumas, A., on grand jury at Quebec, 155, 156. Dumont, M., on grand jury at Quebec, 156._ Duncan, Saml., on grand jury at Quebec, 155, 156. Dundas, Henry, letter to Carleton, concerning the working of the Constitutional Act, 692-694; appointed Secretary of State, 1791, note 2, p. 692 ; Secretary of State for Home Department in British Government, 692. Dunk, George, see Halifax. Dunn, Thomas, member of legislative council, references to, 193, 276, 280, 475, 483, 484, 488, 501, 552, 570, 594, 597, 598, 599, 600, 601, 602. D u Près, Comte, member of legislative council, 341, 552, 579, 591. Duties, judgment of Lord Mansfield in case of Campbell vs. Hall, in action to recover money paid on sugar exported from Grenada to Canada, 366 ; suggestions re export and import, 633 ; to be regulated by British Parliament, 673 ; t h e legislatures of the provinces to have the disposition of duties arising from. commerce and navigation, 673, 707, 708. Dyson, J., signs representation of Board of Trade to the King, 172. Ecclesiastical Government, under French regime, 50. Ecclesiastical Jurisdiction, establishment of, under Anglican church, 139 [see also 217, 269, 270, 271) ; proposed regulations concerning exercise of Roman Catholic authority, 270, 271, [see also pp. 139, 217, 218, 233, 419); proposal to appoint a superintendent of affairs in Roman Catholic Church, with restricted authority, 271 ; defined by Quebec Act, 405 ; instructions to Carleton re, 425-428 ; referred to in instructions to Carleton of 1786, 556-559 ; regulations in Carleton's instructions of 1786, 556-559 ; Bishop of Nova Scotia given jurisdiction over Quebec, N e w Brunswick and Newfoundland, 568; power of King to erect courts of, 674, 683-684 ; presentation of parsonages subject to, 705. Education, eonditionof Protestant children owing to want of instruction, teachers needed in Montreal and Quebec, 350, 352 ; movement to apply revenues of Jesuits estates to, note p. 581 [see also 618) ; suggestions for advancing matters of, 627 ; proposal to establish public schools, 633, 634 ; petition from Three Rivers for a public school, 636, '638 ; referred to, 644, 645 ; loyalists petition for aid to establish schools, 648. Egremont, Earl of, references to, 33, 37, 69, 72, 74, 98, 97, 108,109, 110,112, 116,123, 124. Egremont, Earl of, appioves system of justice and administration established by Amherst and Murray, notes pp. 33, 37 ; regulations to be made for establishment of government in Quebec, 93 (see note p. 96) ; succeeds P i t t as Secretary of State, 1761, note p. 96 ; on extent and settlement of new governments, also concerning commissions and instructions for governors, 108 ; clause in Treaty of Paris concerning Roman Catholic religion, 123. Elections, regulations for election of members of Assembly, 669, 681, 698-699. Eliot, Ed., member Board of Trade, 97, 107, 110, 112, 113, 274. Emigrants, settlement in Nova Scotia, 598. Emigration, attitude of home government towards, note, p. 119. English Language, Finlay's plan to adopt it in courts and free schools, 657. English Law, suggestion to make English law general, with certain exceptions to be set forth by proclamation, 253 ; advantages and disadvantages^ of, 256 ; suggestion by Carleton to follow English law in criminal cases, 258 ; Wedderburn in favour of, in criminal cases, 302 ; British merchants trading with Quebec protest against abolition of, 361 ; Quebec merchants desire certain g arts of the law to be retained, 362 ; judges of ommon Pleas oppose introduction of English law, quoting Quebec Act as their authority, 571 ; the retention of English law desired by English born subjects, 571 ; the English and the Loyalists desire English commercial law, 572 ; inhabitants of Quebec and Montreal petition against the adoption of English common and statute law, 589 ; merchants of Quebec recommend the re-introduction of common and statute law of England as the general rule in matters of personal property and civil rights, 614 ; magistrates of Quebec in favour of, 643 ; 718 INDEX 6-7 EDWARD Vil., A. 1907 English Law—Continued. British merchants trading with Quebec petition for English commercial law, 650; opinion of Finlay that English law should be adopted for personal actions for debt, contracts, etc., 657. See also Laws of England. English Criminal Law, Maseres in his draught of an act suggests retention of the English criminal law, 374 ; the Quebec Bill as returned from the Commons, provides for the continuance of the law in the province, 393 ; Quebec Act provides for retention of, 404. Ermatinger, Lawrence, member of committee of Montreal petitioning for an assembly, 352. Examination, concerning facts and evidence, a paper by Judge Panet, 607, 609 ; ordinance of Louis X I V , 1667, gives litigants the right of, 607, 609. Execution, against lands and goods, suggestion as to procedure, 250, 278, 282, 283 ; against houses and a n d lands, not allowed where matter is under £12, and only in default of personal property, 289 ; against lands and goods, rules in ordinance of 1777 re procedure, 468, 470, 535, 536, 537; exceptions under, 537 ; against the person, where defendant opposes the seizure of his effects, 537 ; against the person, as well as against lands and goods in commercial matters, 537 ; in case of appeal by executors, plaintiff not to proceed to execution without giving security as directed by the Common Pleas, 583 ; suspension of, in certain cases, 659 ; against land and goods, rules for, in the new districts, 661. Execution, Writ of, regulations concerning, in ordinance of 1785, 538. Executive Council. See Council. Eaneuil. Peter, member of the Grand J u r y of Quebec, 155, 156. Eargues, Peter, member of committee of Quebec, agitating for an assembly, 341, 413. Pees, complaints of excessive charges in courts of justice, 203, 292, 294 ; to be regulated by Governor in Council, 215 ; Haldimand's remarks on fees of office under Government, 486; of commissioners of justice in small causes to be regulated by the Governor in Council, 583. Perrière, Monsieur, professor of law at Paris, 253. Peudal Authority, Canadians refuse to subir.it to, 453 ; vested in the noblesse, 453. Feudal Power of the Crown, Carleton's representations for, the restoration of in Canada, note p. 295. Feudal Systern of the French, Carleton's views on, 389 ; Canadians object to its restoration under the Quebec Act, note p. 453, note 1, p. 461, note 3, p. 473, Feudal Tenure, Haldimand issues instructions re lands settled by the Loyalists, note 3, p. 494. See algo Land Tenure, and Tenure of Land. Fiefs, explanation of, 40, 41. Field, Mr., officer of Boyal Hospital at Quebec, 1762, 37. Finlay, Hugh, references to, 475, 479, 483, 484, 486, 488, 500, 501, 503, 529, 552, 571, 572, 576, 578, 579, 581, 588, 594, 597, 598, 599, 600, 601, 602, 656. Finlay, Hugh, his opinion on the changes to be made in courts of civil judicature, 479 ; appointed Postmaster General in Canada, notes p. 479, p. 486 ; letter re the repeal of the Quebec Act, 500-501 ; letter to Nepean, remarks on the introduction of English commercial law and riie attitude of the Canadians towards it, 571, 572, 573 ; protests against the vote of the Council for the commitment of a bill for the better administration of justice, 581 ; seconds a bill " to secure the Royal Revenues and to regulate the proceedings in Crown causes, and to give the SubFinlay, Hugh—Continued. ject the benefit of appeal from large fines, " note 7, p. 588 ; on proposed changes in constitution, 656 ; .proposal to introduce English language in courts and free schools, 657. Finlay, James, member of committee at Montreal petitioning for an assembly, 352. Fisher, James, surgeon to the garrison of Quebec, 639, 640. Fisheries, privileges of French subjects defined by Treaty of Paris, 75, 86, (see also p. 99) ; statement of the claims of Great Britain and France on the Atlantic coast and on the Banks of Newfoundland, 98, 99 ; measures proposed to prevent encroachments of French, 98, 99, 146 ; sealing on the Labrador Coast, 358, 381 ; extension of bound-, aries of Quebec, 382 ; instructions of 1775 direct encouragement and protection of, 428-429 ; privileges granted to United States by Treaty of Paiis of 1783, 492 ; regulations concerning fisheries in the Baie de Chaleur, 496 ; first ordinance relating to, passed in 1795 "regulating the fisheries in the River St. Lawrence, in the Bays of Gaspéand Chaleurs, on the Island of Bona venture, and the opposite shore of Percé ", note, p. 497 ; remarks on the Newfoundland trade, 542 ; encouragement to be given to the fisheries of Newfoundland, Labrador and the St. Lawrence, 560 ; fisheries to be improved, 633. Flitner, Zachariah, Provost Marshal of Quebec, 37. Forms, of declaration and summons, for use in civil actions, 536. Forms of Oaths, 392, 403, 681, 682, 700, 701. Fortifications, state of in Quebec, 38, 196, 197 ; Gage's remarksjm the state of, in the District of Montreal, 70 ; Governor in Council given power , to build, fortify and demolish, 130 ; land t o b e set apart for, 141, 221 ; Carleton reccommends erection of citadel at Quebec and place of arms at New York, 197, (see also pp. 197, 198) ; Carleton remarks on the necessity of, 227-228; Britain refuses to give up frontier posts on the great lakes, note p. 493 ; Carleton authorized to prepare an account of the state of the defences of the Province, 565. Fox, Charles James, opposes the Quebec Bill, note 2, p. 520 ; charges the British Ministry with neglect concerning Quebec, note, p. 652. Fralton, George, member of grand jury at Quebec, 155, 156. Franklin, Benjamin, signs Treaty of Paris of 1783, 493. Fraser, John, member of the Legislative Council, 475, 484, 552,579, 588, 590, 591, 592,593. Fraser, Judge John, memorial to the Governor to vindicate him from the charges made by the Attorney General, 593. Fraser, Malcolm, member of committee at Quebec, agitating for an assembly, 341, 351. Fraser, Peter, pilot on the St. Lawrence, 613. Fraser, S., merchant of Quebec, 619. Freeman, Constant, requested to furnish information, re state of navigation in the St. Lawrence, 613. Free schools, proposal of Finlay to adopt English language in, 652. Freedom of Debate, provided for, 212, 554. See also Debate. French Canadians, their adoption of British ideas of personal freedom, 453 ; their refusal to submit to feudal authority as restored by the Quebec Act, 453. See also Canadians, and Inhabitants. French Colonial Officers, inducements to leave Canada offered by France, 198, 320. French Criminal Law. See Criminal law. French Land Tenures, draught of an ordinance relating to, 204. See also Land Tenure. INDEX 719 SESSIONAL PAPER No. 18 French .Law, summary of, ordered by Carleton, notes p. 210; suggestion to re-establish the whole French law to the exclusion of the English, 252 ; advantages and disadvantages of, 255; suggestion by Carleton to retain French law in civil cases, 258 ; Chief Justice Hey's opinion on inexpediency of reviving French law in civil matters, 258 ; reasons given by Maseres for its revival in certain cases, 260 ; to be observed re land grants, 295, (see uho p. 218-223) ; suggestion by Wedderburn re land tenure and distribution of goods, 303 ; review of the system in Canada by _ Thurlow, 305 ; followed in certain cases, notwithstanding ordinance of 1764, 336 ; Quebec merchants desire postponement of revival of, 361 ; Quebec merchants in favour of, 363 ; re tenures and conveyance of land, 373. Sec also French Law and Customs, and Laws and Customs of Canada. F r e n c h L a w a n d Customs, admitted in Court of Com- - mon Pleas where cause of action arose before Oct. 1,1764,150,231; Canadians desire to be governed by, 292, 294 ; petition of Canadians for restoration of, 292, 293. See also Caws, French Law, and Laws and Customs of Canada. French Regime, state of government under, 40. French troops, granted honours of war, 8, 21. Frost, James, information requested from, re state of navigation in the St. Lawrence, 613. Fulton, Geo. See Fralton. F u r trade, duties from, 57, 71 ; sketch of, 100. Gable, Benjamin, hangman at Quebec, 37. Gage, General, references to, 31, 32, 37, 67, 72, 94, 104, 152, 153, 195, 259, 357, 410, 411, 451, 453, 458, 539. Gage, General, appointed Governor of Montreal by Amherst, 31, 32; report on state of government of Montreal, 69 ; receives commission as Commander-in-Chief of the forces, note p. 152 ; re state of fortifications at Crown Point, F o r t George and Ticonderoga, 195, (see also p. 198) ; asks for troops to aid in colonial troubles in the south, 410 ; re formation of a Canadian militia, and troops to quell rebellion in colonies to the south, 450. Gaseoyne, Bamber, member of British Board of Trade, 97, 107, 110, 112. Gaol, power vested in Chief Justice to deliver prisoners from, 191 ; proposal t o build one in Montreal, 625. Gaspey (Gaspé), suggestion by Marriott to erect a court at, 326. Germain, Lord George, Colonial Secretary, 459,460, 461, 473, 474, 475, 482, 487. Gibbon, the historian, his opinion quoted, 652. Gibson, John, map oí North America engraved by 103. Goldfrap, J., Deputy Registrar at Quebec, 132, 192, 195. Goodall, William, merchant of Quebec, 593, 619. Gordon, William, Clerk of the Crown at Quebec, death of, 567. Government, French division into three administrative districts retained after capitulation, note p. 31, (see also v-104); report on state of, by Murray, 37 ; state of administration under French regime, 40 ; report on state of, in Three Rivers, by Burton, HI ; report on state of, in Montreal, by Gage, 6 9 ; Bgremont on establishment of, in Quebec, 93 (see note p. 96); necessity for regular form of, 102; temporary division of Quebec Province, into two administrative districts, 151 ; proposal by Board of Trade to grant representation to Canadians, referred to, 172, 267-268; report of the Attorney and Solicitor General, 174; proposed division of Quebec into three administrative districts, 176; Maseres' opinions on measures for settlement of Government—Continued. laws for Quebec, 181,182,183 ; administration of, vested in Governor Murray, 264 ( see p. 126) ; secret report of the Lords of Trade on, note p. 263; report of Lords of Trade re proposed regulations and reforms for, 263; proposed conditional admission of inhabitants to all offices under, 267; list of documents which served as a basis of report of Lords of Trade, 274; Lords of Trade suggest necessity of immediate measures of reform in Province of Quebec, 274; Solicitor General Wedderburn sets forth defects m mode of, 296 ; powers of Governor and Intendant under French regime, 297; military government referred to, 297;. abstract of regulations proposed by Wedderburn, 302-303; sketch by Thurlow of French system of, 305 ; summary of powers of Governor, 306-7. Government, French subjects petition the King for restoration of old laws and customs, 354, 355 ; French inhabitants complain of not being allowed to hold office under, 356, 358 ; French subjects represent that colony is not ready for an assembly and -that a council consisting of both old and new subjects would be suitable, 357, 359 ; memorial of French inhabitants to be allowed to hold civil and military appointments, 357, 358; Maseres' letter to the Lord Chancellor on proposed Act for settlement of the laws of Quebec, 373; queries re government of Quebec, 400; instructions to Carleton (1775) re salaries and allowances of offices under, 432; Roman Catholic subjects request a more adequate share in offices held under government, 518, 519 ; despatch from Hope to Sydney concerning changes in the policy of, 538 ; committees of the legislative council«iake reports re the future government of the province, 591; proposed line of division of the province, 655 ; Grenville's remarks on the proposed councils and assemblies of the two provinces, 665 ; Chief Justice Smith's remarks on the expediency of a general government of all the British dominions in North 'America, 685-687; Grenville does not favour temporary establishment of a separate government in Upper Canada, 692. See also Constitution. Government Civil, introduction of in 1764, note p. 33 ; draught of proclamation establishing. 93 (see also p. 119) ; proclamation relating to, 119, 237, referred to 242, 265, 291; established by ordinance, 149 ; date of formal establishment, note p. 149 ; Quebec Bill, as returned from the Commons, revokes the proclamation of October, 1763, relating to, 392. See also Constitution, and Government. Government, Military, Hamilton's opinion on the inexpediency of, 528. Governor, obliged to reside in the colony during office, 107 ; proposal to grant temporary powers to, 114 ; power given to, re appointment of judges and other officers of justice, 129; authority exercised only with consent of assembly, 243 ; limited power of, 244 ; limitations to his power proposed, 521-522; Montreal merchants object to the authority vested in him, 545 ; the powers of the governors of Quebec, Nova Scotia and New Brunswick modified, 550; given power to divide the province into electoral districts and to appoint returning officers, 698; rules governing his action on bills passed by council and assembly, 701- 702. Governor General, proposal to appoint, 689. Grain, export of, 482 720 INDEX 6-7 EDWARD VII., A. 1907 Grand Jury, recommends appeal from military to civil courts, 154, (see pp. 157,160); resolves not to " sit as jurors at any court where some man sufficiently versed in the law does not preside,' 154; (see also pp. 157, 160) ; presentments of, 153 ; (see also pp. 156, 159, 266) ; protests against admission of Roman Catholics as jurors, 155, (see pp. 156, 158, 161), recommends Protestants as jurorsincertain cases, 156,158,160. Grand Voyer, duties of, 40 ; appeals from, allowed to the Intendant, 40. Grant, Chas., member of committee of British inhabitants of Quebec, 341, 351. Grant, Francis, Governor of East Florida, 108, 116, 124. Grant, Robert, interested in lawsuit over an estate, 570, 578, 612. Grant, William, references to, 167, 341, 475, 480, 483, 484, 485, 486, 488, 501, 502, 540, 552, 579, 581, 588, 590, 591,. 592, 619. Grant, William, his opinion concerning alterations to be made in the judicial system, note 2, p. 480 : in favour of an assembly, note p. 502. Grant, James, make observations re West Indian trade, 613. Gray, Major James, signs petition to the King on behalf of the Loyalists, 527. Great Lakes, French claim exclusive navigation on, 99, 100 ; refusal of England to withdraw from the frontier posts on them in consequence of the non-fulfilment by the United States of articles of the Treaty of "Paris of 1783 relative to confiscated' lands, note p. 493 ; request that inhabitants.have free use of, 649. Gregory, Chief Justice, appointment of, note p. 149 ; dismissed from office, note p. 178 ; member of first legislative council, appointed by Murray, note p.< 193. Grenville, Lord William Wvndham, references to, 419, 510, 662, 663, 667, 674, 678, 685, 690. Grenville, Lord William Wyndbam, appointed Secretary of State, June 1789, note 1, p. 662 ; secret despatch to Carleton concerning the first draught of the. Constitutional Act, 662; letter to Carleton, discussing the proposed Constitutional Act, 663-666 ; despatch to Carleton requesting his opinion on the first draught of the Constitutional Act, 664 ; on proposed changes in constitution, 665, 666; letter to Carleton, discussing the first and second draughts of the Constitutional Bill, 690. Grey, William De, report of, as Solicitor General, re civil status of Roman Catholics, 171 ; as Solicitor General, makes report on civil government of Quebec, 174. Grimaldi, Marquis de, signs Treaty of Paris, 80,90. Guardianships and Trusteeships, opinion of Judge Panet relating to, 608, 611. Gugy, Conrad, member of legislative council, 475, 483, 484. Gummersall, Captain Thomas, signs petition to the King on behalf of the Royalists, 527. Habeas Corpus, proposal of Maseres to incorporate Habeas Corpus in Quebec law, 374; English inhabitants protest against being deprived of, by the Quebec Act, 415, 417,# 418; comment on ' the law of Habeas Corpus, in the instructions to Carleton in 1775, 423, (see also pp. 300, 331); Oarleton's remarks on, 454 ; proposed by Haldimand, 499 (see also pp. 489,504,512,514); Finlay's remarks on, 500-501 ; writ of, to be issued in manner prescribed by Statute 31, Chas. II, 521. Haldimand, Lord, references to, 8, 152, 421, 424, 474, 475, 476, 477, 478, 479, 480 482, 487, 490, 495, 496, 497, 499, 501, 503, 529, 538, 539, 546, 552, 567, 603. • Haldimand, Lord, instructions of 1778, 474; appointment as Governor of Quebec, note p. 474; instruction of 1779, 476, 477; instructions of 1779, as to what constitutes a quorum of the legislative council, 476 ; instructed to pass an ordinance authorizing the Chief Justice to preside and be a member of the Court of Common Pleas 477; directed to communicate to the council everything in his instructions wherein their advice and consent is made requisite, 477 ; disregards instructions in dealing with the council, note p. 477; despatch to Germain, reviews the discussion concerning alterations in the judicial system, 482; despatch to Germain, on the constitutional power of the council to prohibit the export of grain and flour or to fix an arbitrary price, 482; issues pro- - clamation prohibiting export of wheat and of flour, note 1, p. 483; remarks on the undue influence of a combination on the market, 485 ; his remarks on fees of office under government, 486; gives his reasons for not communicating certain of his instructions to the legislative council, 487-489 ; King approves of his conduct as commander, but regrets that his action as ci\ il governor cannot be regarded in so favourable a light, note 3. p. 487; signs ordinance to regulate proceedings in courts of civil judicature, 490 ; instructions of 1783, 494. Haldimand, Lord, authorized in 1783 to make grants of land to the loyalists from the Amer-^ ican colonies desiring to settle in Canada, 494 ; instructions of May, 1785, 495; instructions of July 1785, 496 ; makes regulations for the fisheries in Baie des Chaleur, 496 ; despatch to North, concerning negotiations with a section of the people of V ermont, 497 ; his opinion that the Quebec Act should be kept in force, and tl;at the authority of the council to alter certain parts of French civil law and English criminal law should be used with discretion, 498; despatch to North, intends to propose an ordinance for the introduction of the Habeas Corpus Act, 499 ; introduces an ordinance for the better security of the liberty of the » subject, note 1, p. 501 ; his answer to an address from the council expressing satisfaction with the Quebec Act, note p. 502 ; returns to England, 1784, note 1, p. 527 ; opposes the extension of British institutions in Canada as advocated by Lieutenant Governor Hamilton, note 1, p. 527; withholds instructions relative to,the government of the province from Hamilton, note 2, p. 527 ; draws up a memorandum on civil affairs, note 3, p. 539 ; is succeeded by Carleton as Captain General and Governor in Chief of Quebec, note 2, p. 550 ; extract of letter from North authorizing aid for the Loyalists, 580. Halifax, Earl of, references to, 112, 113, 114, 117, 119, 121, 123, 124, Í26, 152, 153, 172. Halifax, Earl of, letter on the extent of new provinces, 112 ; succeeds Egremont as Secretary of State, 113 ; approval by the King of the proclamation establishing civil government, 119. Hall, William, defendant in suit of Campbell vs. Hall, 366. Hamilton, Lieut.-Governor, references to, 501, 503, 527, 529, 531, 539. 546. Hamilton, Lieut.-Governor, despatch to Sydney, admits that he is not sufficiently informed about the Province, 527 ; as president of the legislative council advocates the extension of British institutions in Canada, note 1, p. 527 ; received appointment as Lieutenant Governor at Detroit, note 1, p. 527 ; assumes office of Administrator of Civil Government in absence of Haldimand in 1784, note 1, p. 527 ; applies to Sydney for in- INDBX 721 SESSIONAL PAPER No. 18 Hamilton—Continued,. structions, which had been refused him by Haldimand, relative to the government, note 2, p. 527; suggests that the time is opportune for amendment of the constitution, 528 ; despatch to Sydney, his views on the loyalty of the French, 528 ; despatch to Sydney, desires to render justice to all, 529 ; dismissed from the lieutenant governorship, note 2, p. 529 ; under his administration provision for trial by jury in civil cases was incorporated in ordinance for regulating procedure in civil courts, note 3, p. 529. Harrison, Edward, member of legislative council, 475, 483, 4S4, 552, 579, 581, 589, 590, 591, 592, 612, 619. Hartley, David, signs Treaty of Paris of 1783, 493. Hawke, Sir Ed., member of Privy Council, 199. Hazen, Oapt., bring news to Carleton of advance of Benedict Arnold upon Quebec, 453. Hervey, Cant., in command of British forces at Trois Rivieres, 66. Hey, Chief Justice William, references to, 178, 190, 195, 203, 229, 258, 279, 305, 315, 339, 377, 379, 385, 387, 411, 412, 455, 456, 480. Hey, Chief Justice "William, commission of, note p. 178, (see also p. 315) ; reports on the inexpediency of reviving whole of "French law in civil matters, 258 ; signs report of Committee of Council on Administration of Law bs-Justices of the Peace, 279 ; temporary ordinance passed, providing for discharges of his duties by a commission during his absence, note 3, p. 339 ; assists Wedderhurn in framing part of the Quebec Act, note p. 377 ; his opinion on the criminal law proposed for Canada, note p. 377 ; his opinion concerning the Quebec Bill, note p. 379 ; extract of letter to Dartmouth re plans for ordinance establishing courts of justice, note p. 411 ; returns to Canada, note p. 412 ; letter to the Lord Chancellor concerning the state of military affairs in the province, and the attitude taken by the Canadians in the invasion by the rebel colonists to the south, 456 ; requests to be relieved from office, 458. Hey and Pownall, memo re establishment of courts of justice, note p. 411. Hey wood, William, signs memorial from Montreal to Dartmouth, 352 Hillsborough, Earl of, references to, 114,116, 207, 227, 244, 258, 263, 265, 274, 275, 276, 295, 338, 384, 388, 389, 390. Hillsborough, Earl of, appointed first Secretary of State for the colonies 1768, note p. 207; signs report of Board of Trade on state of Province of Quebec, 274; his objections to the third draught of the Quebec Bill, 388. Holland, Capt., member of legislative council, 37, 39, 193, 194, 484, 552, 579, 581, 588, 589, 590, 591, 592, 639, 640. Hope, Colonel Henry, references to, 527, 529, 538, 545, 546, 547, 550, 551, 552, 579, 590. Hope, Colonel Henry, made Commissary General, note 1, p. 527; succeeds Hamilton, as Lieutenant Governor of Quebec, note 1, p. 527; appointed Lieutenant Governor of Quebec, note 2, p. 529, note 1, p. 538; despatch to Sydney, concerning change in the policy of government, 538; suggests that the legislative council have more than six Canadian Catholics as members, 540; his opinion on granting the Loyalists a separate government, 540; despatch from Sydney offering him the lieutenant-governorship of New Brunswick should Colonel Carleton, the Î resent holder of the office, desire to become áeutenant Governor of Quebec, 551; his attitude towards two bills introduced by Chief Justice Smith, note 7, p. 588. 1 8 — 3 — 4 6 Huntley, R., signs memorial from Montreal to Dartmouth, 352. Howard, P. W., merchant of Jamaica, writes re trade with West Indies, 613. Imprisonment for Debt, abuse of authority by Justices of the Peace under Ordinance of September 1764, 277-278. See also Capias, and Debt. Imprisonments, suggestions by Marriott to regulate, 324. Indians, to enjoy freedom of their religion and to maintain their lands, 17, 27 ; characteristics of^ Indian nations, 54 ; population of Three Pvivere, 67; their rights to be protected, 145, 223 ; referred to, 339 ; administration of justice at trading posts, 428 ; plan for the management of Indian affairs referred to in Carleton's Instructions of 1775, 433 ; division of country into two districts for trading purposes, 433 ; outline of duties and powers of superintendents and commissaries, 434-435 ; lfets of tribes in the Northern and Southern Districts of North America, 437 ; appointment of superintendent of, note p. 451 ; measures to maintain the loyalty of the Indians who supported the British cause during the rebellion, 526 ; visit of La Fayette to western tribes, 528 ; England'3 policy towards, 547 ; British Government to make compensation for their losses sustained during the war, note 1, p. 547. Indian Lands. See Lands, and Lands Indian. Indian Trade, remarks on, 100 ; instructions re appointment of superintendents for trading posts, 424, 428 ; merchants of Quebec object to an ordinance relating to, 473 ; suggestions for the removal of inconveniences attending, 543 ; referred to, 618 ; Loyalists request measures for the benefit of, 649. See also Trade, Indian. Inglis, Doctor Charles, appointed Bishop of Nova Scotia with jurisdiction over Quebec, New Brunswick and Newfoundland, 568. Inhabitants, remarks by Burton on those of Three Rivers, 65 ; required to take oath of allegiance, 139, 217 ; Carleton's remarks on the possibility of revolt, 227. See also Canadians, and French Canadians. Instructions to Murray, (1763), 132 ; interpretation of Proclamation of 1763, note p. 163; extract of, re amendment of ordinance establishing Civil Courts, note, p. 173. Instructions to Carleton, (1768), 210 ; (1771), 295 ; (1775), 419, 450 ; (1786), 552 ; (1787), 567, 568 ; relating to trade and navigation (1775)_, 438 ; memorandum used in framing instructions of 1775, note 1, p. 419; regulations for the Legislative Council (1775), 420; directions to Legislative Council for establishment and regulation of Courts of Juitiee, 421-425 ; regulation of ecclesiastical affairs, 425-428; provisions for encouragement and protection of Indian trade and fisheries on the Labrador coast, 428-429 ; system of land tenure as given in, 429; re salaries and allowances of offices under government, 432; re clearance of vessels, 448, 449; Finlay's opinion that the 12th article of instructions of 1786, would be a suitable basis upon which to frame a Constitution, 656. Instructions to Haldimand, (1778). 474; (1779), 476; (1783), 494; (1785), 495, 496 ; the Chief Justice to preside and be a member of the Court of Common Pleas, 477 ; opinion of the legislative council on executing alterations in the judicial system, 481, 494. Invasion of Canada, letter from Cramahé, referring to, 455. Iron works at St. Maurice, reservation of land necessary for, 144, 222, 563. Irving, Paul Aemilius, references to, 37,172,173, 174, 187,188, 193, 194, 195: 722 INDEX 6-7 EDWARD VIL, A. 1907 Irving, Paul Aemilius, Lieutenant Colonel and Deputy Quarter Master General at Quebec, 37; acting Governor, signs ordinance _ giving Canadians the right to act as jurors in civil and criminal causes, 173, (see p. 175); signs ordnance establishing Michaelmas term for sittings of Supreme Court and Court of Common Pleas, 174; his criticism of the administration of justice, 187. Jackson, Richard, assists Hey to draught an ordinance re courts of justice, note 4, p. 4 1 1 ; counsel for the Board of Trade ; his opinion on amendments for the Common Pleas requested, note p, 478. Jay, John, signs Treaty of Paris of 1783, 493. Jenyns, Soame, member of the Board of Trade, 97, 107, 172, 274, 419. Jessup, Colonel Eben, signs petition to the King on behalf of the Loyalists, 527. Jessup, Major Edward, signs petition to the King on behalf of the Loyalists, 527. Jesuits Estates, concerning disposal of, note 1, p. 581 ; suggestion to apply the revenues to the various branches of education, 618; referred to, 627. Johnson, Colonel Gay, signs petition on behalf of Loyalists, 527. J ohnson, Sir John, references to, 494,524, 549, 552, 579, 581, 588, 639, 640, 642, 645. Johnson, Sir John, his petition to the King, 524 ; certifies as to the losses of the Mohawks during the war, 547 ; his opinion with respect to the settlement of Crown lands, 640-642 ; lette'r from magistrates of Cataraqui concerning trade and land tenure in their district, 642-644 ; letter from the magistrates of Cataraqui concerning the administration of justice in that district, 642-644 ; letter from the magistrates of New Oswegatchie, | re population, agriculture and the settlement of Crown lands, 645. Johnson, Sir William, referred to, 339 ; sketch of, note 2, p. 451. Johnstone, Alexander, member of the legislative council, 475. Johnstone, Captain Alexander, in command of company of troops at Three Rivers. 66. Johnstone, George, Governor of West Florida, 108, 116, 124. Johnstone, James, foreman of the Grand J u r y of Quebec, 155. 156, 619. Johnstone, Sir James, favours establishment of House of Assembly, 652. Joliff e, W., member of the Board of Trade, note, p. 419. Journals of Council, list of those used by Carleton in his report, 587. Judges, to be appointed by the Governor, 129 ; re the appointment, or removal of 137, 522, 556 ; general rules of practice, 177 ; arbitrary powers held by French judges, 187 ; those of Superior Court, to be instructed to adhere to the Custom of Paris, 187 ; number of, in Quebec, at time of conquest, 209 ; to be appointed by the majority of members of council, 215; additional appointment for Court of Common Pleas at Montreal, 278 ; may order the satisfaction of judgments by instalments, 288 ; ¡ suggestions by Marriott re limitation of jurisdiction, 323, 324, 326 ; instructions to Carleton (1775) to regulate appointment of, 424 ; by ordinance of 1777, decision of judges to be final in matters under value of £10, 464 ; suggestions for regulating appointment and fees of judges, 504 ; referred to, 512, 515 ; investigation into charges against the judges of Common Pleas does not establish corruption on their part, note 3, p. 593 ; powers of the first judge appointed for the district of Hesse, 659 ; power of the King to appoint, 674, 684. Judicature, Privy Council's resolution requiring report on defects in the state of, 199, 200 ; Governor to report on the condition of the Judicature in the Province of Quebec, 199, referred to, 272 ; alleged defects to be reported on, 201 ; Governor in Council given power to constitute courts of, 214 ; Maseres' suggestion for establishment of three Royal courts of, 247, 260 ; suggestions for reform in execution of law, 301. See also Jurisdiction. Juries, Canadians given right to act as jurors, note p. 149, (see pp. 156,160,230, 266) ; dissatisfaction of British traders with permission given to Canadians to act as jurors, note p. 150 ; Murray recommends tha,t Canadians act as jurors, 167; ordinance granting Canadians right to act a s jurors on civil and criminal causes, 173, 267, (see p. 175) ; ordinance relating to composition of, incivil matters, 173, (see p. 175) ; verdicts to be carried by majority of jury, 249 ; suggestions for forming a panel in criminal cases, 269 ; suggestions by Board of Trade re juries in criminal cases, 269 ; Marriott's remarks on juries in criminal cases, 324 ; English inhabitants protest against being deprived by the Quebec Act of trial by jury,, 414, 417, 418 ; petition that optional juries be granted on all trials in courts of original jurisdiction, that they be balloted for and a panel formed as in England, 504 ; objections to proposed optional juries on trials in courts of original jurisdiction, 512, 515; clause amending the Quebec Act, providing for trial by jury in civil cases when desired, 524 ; regulations for forming a panel, 533 ; ordinance of 1787 provides that where there is no jury the fact be inserted in the record of the cause *o that in | event of appeal the case may be tried in the superior* tribunal as fully as before the Common Pleas, 582 ; Quebec merchants advise that juries be granted in all courts having original jurisdiction, 615. Jurisdiction, Civil, suggested that Indian lands b e included under civil jurisdiction, 109 ; Court of Common Pleas at Montreal constituted an independent court with original jurisdiction, 282 ; in Illinois, Detroit, St. Vincenne, Gaspé and -Michillimackinae, 424, 428 ; ordinance of 1777 confirms judgments of civil courts, 465. See also Judicature. Jurisdiction, Criminal, ' ' A n Ordinance of 1787 to explain and amend an Ordinance for establishing courts of, " 585. See also Judicature. Jurisdiction, Ecclesiastical, Carleton's instructions of 1775 on the regulation of, 425-428. Jurors, protest of French jurors in reference to the "Presentments of the grand jury of Quebec," 156, 159 ; methods suggested jn selection of, 249 ; suggestions for a double panel, 251 (see p. 328) ; concerning qualifications of, 533, 572, 604 ; list of jurors in town of Quebec in support of the objections to trial by jury in civil causes, 606 ; qualifications of, in the five new districts, 658. Jury, Trial by, right of, granted in Court of Common Pleas, 150, 230; merchants of Quebec protest i against abolition of, 473 ; Haldimand in favour ! of, 488-489 ; remarks of Finlay on, 500-501 ; re- ' fusal of legislative council to grant trial by jury in civil cases, 501 ; ordinance establishing trial by jury, (1785). 529 ; clause in ordinance of 1785 providing for trial by jury in certain cases at the option of the parties concerned, 531 ; reasons given by the noblesse for their objection to, 573 ; proposal to deprive English born subjects of trial by jury in certain cases, 573 ; memorandum of the council relating to, 602, 6C3, 604. 605 ; list of jurors in town of Quebec, 606 ; objections of Canadians to be investigated, 653, 655. See also Trial by Jury. INDEX 723 SESSIONAL PAPER No. 18 Justice, extract of proposed additional instruction to Murray re administration oî, note p. 163 ; ordinance regulating composition of juries in civil courts, 173 ; suggestions for the improvement of administration, 187 ; complaint of Canadians re delay and expense in courts of, 202 ; Carleton suggests reforms in administration, 205 ; delay and expense in administration of, to be remedied, 205-206 ; draught of report of Governor in Council re state of administration, 228 ; laws of England followed in Quebec, 229 ; expense and delay arising in the administration of, 245-247 ; proposed division of province into three administrative districts with three royal courte, 247 ; proposal to divide Quebec into three ji idicial districts, 247; pïan for the administration of, proposed by Maseres, based on Quebec system, 247-252; Maseres proposes system similar to that in force during French regime, 247-252 ; four different methods suggested to settle the laws of the province, 252 ; plan to settle laws of province drawn up for Carleton, 257, (sre also note p. 258) ; Maseres' eroticism of Carleton's plan to settle laws of province, 258 ; chief complaint of Canadians is expense and delay in legal matters, 260 ; ordinance of September, 1764, gives rise to delay and expense in suits concerning civil property, 266 ; changes suggested by Board of Trade re circuit courts, 269 ; report of committee of council on administration by Justices of Peace, 276 ; suggestion, to annul authority given by ordinance of September, 1764, to Justices of the Peace in matters of civil property, 278. Justice, ordinance of February, 1770, for the more effectual administration of, and for regulating the courts of law, 280 ; on the dispensation of justice in small cases, 288 ; ordinance for the more effectual administration of, 290; Canadians desire to be governed by French laws and customs, 292, 294 ; defects in system set forth by Solicitor General Wedderburn, 296 ; remarks on expense and delay in adminis- . tration, 301 ; suggestions for appointing commissioners of the peace with limited powers, 304 ; general remarks and propositions by Thurlow, 305-310 ; Carleton's instructions of 1775 give directions to Legislative Council for establishment and regulation of courts, 421-425 ; plan for the extension of, to the Indian country, 434-435 ; ordinance for establishing courts of civil judicature in the Province of Quebec, _ 1777,, 464 ; ordinance to regulate the proceedings in the courte of civil judicature in the Province of Quebec, 1777, 466; ordinance for establishing courts of criminal jurisdiction in the Province of Quebec, 1777, 471 [see also 555, 556) ; proposed ordinance " for the relief of the poor by the Dispensation of Justice in small causes," 572, [see note p. 576) ; draught of an ordinance framed by Chief Justice Smith for the better administration of justice, and to regulate the practice of the law, 574 ; administration of, referred to in 12th article of Carleton's instructions of 1786, 575 ; commissioners appointed for the dispensation of justice in small causes, regulating their fees and the extent of their jurisdiction, 583 ; Governor authorized to form new districts for the administration of justice, 583. Justice, concerning arraignment by Attorney General Monk of the administration of justice in the courts of Common Pleas, note 3, p. 586, [see p. 588) ; letter from Carleton to Sydney on his investigation of the conditions of the Province, 587 ; the Chief Justice to make an investigation into charges against administration, 592; report of the committee, of council on, 594 ; confusion in the courts from want of uniformity in the laws, 614 ; 18—3—46JJustice— Continued. delay and expense in the courts, 615; suggestion for the fess frequent holdings of courts, 615 ; suggestion to erect more districts for the administration of justice, 615 ; confusion arising from mixture of different laws, 619, 621 ; inhabitants at Three Rivers complain of the expense and delay in, 635, 637 ; magistrates of Cataraqui complain of the expense and delay in their district, 613 ; Loyalists desire a separate government dependent on Lower Canada, 645. See also Justice, Courts of. Justice, Courts of, authority to constitute courts granted to Governor and Council, 121, 237 ; Governor in Council given power to erect, 129, 137 ; ordinance for establishing and regulating, 149, 230 ; general rules proposed for judges in personal actions, 177 ; committee appointed to report on matters relating to, 591 ; report of the committee of council, relating to, 594. Sec also Justice. Justice, Military Courts of, established by Murray, 33, 35. Justices of the Peace, powers defined according to ordinance of September 1764, 150, 231 ; regulations concerning appeals from decisions of, 150, 231 ; proposed limitation of powers of, 176 ; appointment of, by consent of the majority of the council, 215 : report of council on administration of law by, 276 ; complaints re administration of law in Montreal by, note pp. 276-278 ; exceed authority vested in ttïem by ordinance of September, 1764, 277; suggestion to annul authority given by ordinance of September, 1764 in matters of civil property, 278; proposed appointment of, by special commission, for towns of Quebec and Montreal, 279 ; authority in matters of property confined by ordinance of February, 1770 to those acting under a special commission, 280 ; penalty for violation of ordinance 281 ; instructions to Carleton (1775), to regulate appointment of, 424 ; Governor in Council authorized to appoint justices for small causes, 583 ; authorized to appoint peace officers for the towns, 585 ; officers of militia authorized to act in the country parishes as justices, 585 ; suggestion that the power given to them by the ordinance of 1764 be restored, 615 ; suggestion to grant an extension of jurisdiction to, 631 ; any three justices empowered to hear and determine breaches of the peace and petty larceny, 660. Keene, Whitshed, member of British Board of Trade, 419. King's Bench, Courts of, established by ordinance of, 1777, 471 ; duties of, 471 ; terms of sittings, 471 ; suggestion to restore its former jurisdiction and powers in civil causes, 615,624. See also _ Superior Court. Kingston. See Cataraqui. Kneller, Henry, receives temporary appointment as Attorney General, note p. 276, note p. 280 ; death of, note 4, p. 483. Knox, William, his remarks concerning the third draught of the Quebec Bill, 389 ; other references to, 377, 381, 388, 389, 390. Labrador Coast, to be under the authority of the governor of Newfoundland, 120; French subjects desire to be under the protection of Quebec, 358 ; encouragement of fisheries on, 428, 429 ; fishery rights of Canadians on, to be protected as directed in Carleton's instructions of 1775, 428-429 ; encouragement to be given the fisheries, 42S-429, 560. LaCorne, Abbé de, Dean of the Chapter of Quebec, 51. LaCorne, St. Luc, member of legislative council, references to, 475, 483, 502. See also St. Luc. 724 INDEX 6-7 EDWARD VII,, A. 1907 LaFayette, Marquis de, re his visit to th Indians, 528. LaNaudière, Charles de, member of legislative council, 341, 552. Lands, remarks on the settlement of, 100, 101; restrictions proposed re land grants, 108 (see also p. 112) ; on the extent of Crown lands in Canada, 108, (see also pp. 110, 112) ; proposal to give power to governors to make grants of, 117, 118,125 ; proposed grant of, to naval and military officers and soldiers who served in North America, 121, (see also pp. 109, 113 ; power to dispose of, vested conditionally in Governor and council, 121 (see also pp. 102, 117, 118, 125, 126); proposed additional clauses in Governor's commission re grants of, 125, 126, 131 ; regulations for making laws relating to, 135 ; French inhabitants required to register grants received before the treaty of 1763, 141, 218; regulations concerning the granting of, 142, 143, 144 ; the rights of Indians to lands to be protected, 145 ; proposed retention of French customs and usages in actions relating to, 177; regulations concerning granting of, 219, 220, 221, 222 ; French and English law followed in proceedings relating to, 240, 241 ; ordinance of 1745 concerning settlement of, note p. 241 ; justices not allowed to determine questions of titles, 288 ; French system of grants restored, 295, (see pp. 218-223) ; suggestions made by Wedderburn re disposition of lands of the Jesuits, 303 ; French law re lands followed by inhabitants notwithstanding ordinance of September, 1764, 316 ; Marriott's remarks on the laws concerning distribution of, 332, 333 ; Quebec Act provides that lands granted by the King may be executed according to laws of Canada or laws of England, 393. 404. Lands, dispute concerning fulfilment of articles of Treaty of Paris of 1783 relating to confiscation of, note p. 493; provisions in Treaty of Paris of 1783 for the restoration of confiscated . property, 493 ; Haldimand authorized in 1783 to make grants of lands to Loyalists who desire to settle m Canada, 494 ; views of Carleton, on the removal of unnecessary burdens, and the evils of large grants, note 3, p. 551 ; Canadian laws and customs to be followed in actions relating to, 555 ; reserves to be made for carrying on the fisheries in the Bay of Chaleur, 560 ; Carleton's instructions of 1786 provide that lands be granted in fief as practised before the cession, omitting the reservation of any judicial power, 561 ; provision made in Carleton's instructions of 1786 for granting lands to the Loyalists, 561- 563 ; grants to reduced officers and privates of the 84th Regiment of Foot, 562 ; reservation of timber lands for the Crown, 563 ; provision for the administration of justice in the proposed new districts in controversies respecting titles of of land, 576 ; committee of council appointed to report on the settlement of Crown lands, 591 ; council recommends that the Loyalists hold their lands according to the terms of Carleton's Instruction (1771), 640 ; recommendation of Carleton, re tenure of, 646 ; petition of Loyalists re, 648 ; Loyalists to be granted their lands in free and common soceage, 653. Land Tenure, conditions of, 41, 62, 70 ; ordinance for temporary retention of French system, 166, 187, 231, 232, 243 ; draught of an ordinance retaining French laws and customs relating to inheritance and alienation of lands, 204 : sketch of ; retention of French system recommended, 209 : Maseres' reasons for reviving French law, 260 ; restoration of French system of, 295 (see pp. 218-223) ; suggestion by Wedderburn to retain French law only, 303; Maseres in his Land Tenure—Continued. ' ' Draught of an Act " proposes retention of French law, 373 ; instructions to Carleton in 1775, relating to, 429; Loyalists petition the King for relief from the French system, 525 ; changes to be made in system of, in Quebec, note 1 p. 586; Quebec merchants recommend retention of Canadian laws, 615; suggestions concerning the tenure of Crown lands for the Loyalists, 616 ; notes concerning instructions to Carleton in reference to, note 1, p. 641, note 3, p. 646; magistrates of Cataraqui represent that the Loyalists should be allowed to hold their lands in freehold tenure, 643 ¡inhabitants of New Oswegatchie desire to hold their lands free from seignorial claims or other incumbrances, 645 ; Carleton recommends that Crown lands be granted in free and common soceage, 646 ; Loyalists desire lands to be granted according to English tenure, 648, 653 ; Finlay's opinion that the laws and customs of Canada should be retained, 657 ; Grenville's remarks on proposed changes in, 666 ; lands in both provinces may be held in free and common soceage, 672 ; remarks by Carleton on alteration in mode of, 676 (see 691-692) ; lands may be held in both provinces in free and common soceage, 682-683, 706, 707. See also Tenure of Lands, and Lands. Lands, Indian, the rights of the Indians to be maintained, 17, 27; proclamation proposed regarding lands reserved for Indians, 111, 112, 223 ; prohibition of private purchase of, 113 ; protection from encroachment on, 121 ; policy of the British government regarding the losses sustained by Joseph Brant and others, 547, [see also 548). Laws, the representatives of the people to frame a civil code ' ' as near as may be to the laws of England, " 120, 237 ; power given to the assembly to make laws,_ 128 ; regulations to be observed by Governor in Council and Assembly in the framing and passing of, 135, 213; suggestions for retaining the laws of France or making thbse_ of England general in the province, 252 ; ad-' vantages and disadvantages of both methods, 255-256 ; suggestion by Carleton to follow English law m criminal, and French law, in civil cases, 258 ; retention of certain parts of French law and whole of English criminal law, proposed by Maseres, 374. Laws of Canada, Carleton orders an abridgement of French laws to be drawn up, 202, 210. Laws of England, criminal and civil, in force in Quebec, 229, 242 ; question of legality of introduction of English law, 244, (see p. 258). Laws and Customs of Canada, admitted in Court of Common Pleas where cause of action arose before Oct. 1, 1764, 150, 231 ; Carleton suggests that they be followed in civil oases, 258 ; inhabitants desire to be governed by, 292, 294, 354, 356 ; to be followed in civil matters, 393, 404 ; petitioners for a House of Asssembly desire continuance of, in certain matters, 504, (see p. 555) ; referred to, 512, 514 ; opinion of the Solicitor General that matters relating to, should be decided by Privy Council, note 1, p. 571 ; ordinance of 1787 provides for the statement on the record of the Common Pleas of any judgment pronounced upon any law or custom of the Province, 582; question raised as to whether the law is applicable to English- born subjects, 569, 571 ; Canadians at Montreal claim that their common law was promised them by the articles of capitulation, 628, 630 ; retention of, advised by Finlay in settlement of real estate, 657 ; the noblesse petition the King for maintenance of, note 3, p. 657. See also FVench Law, and French Law and Customs. ISBEX 725 SESSIONAL PAPER No. 18 Leake, Major "Robert, signs petition to the King on behalf of the Royalists, 527. Le Brun, M. French lawyer, letter to Maseres, 373. Lees, John, member of committee of British inhabitants, 341, 351, 413. Legal Forms, examples of, 285, 469, 536. Legal System, address of French citizens to the King relating to, 161. Legge, Capt., in command of British forces at Masquinonge and Maehiche, 66. Legislative Authority of Governor, exercised only with consent of Assembly, 243. Legislative Council. See Council. L e Loutre, Abbé, the cause of trouble in Acadia. 123. Le Maistre, Capt., sends to committee of council a list of'vessels on Lakes Ontario, Erie and Huron, 613. Léry, Chaussegros de, member of the legislative council, 341, 475, 484, 501, 503, 540, 552, 579, 590, 591, 592, 639, 640. Lester, ïtobert, member of committee of merchants of Quebec, 619. Letters of Administration, objections to the form of granting, 609, 611. L'Evesque, Francis, member of legislative council, 475, 484, 485, 503, 540, 552, 612, 619. Levis, Marquis de, references to, 8, 10,11, 22, 23. Levis, Marquis de, sends letter to Amherst re capitulation of Montreal, 8. Lewes, Sir Watkin, takes part in discussion of Canadian affairs in British House of Commons, 652. Lieutenant Governor, Carleton acts as, note 2, p. 208; Hamilton dismissed from office of, note 2, p. 529; Governors of Quebec, Nova Scotia and New Brunswick, to be styled Lieutenant Governors, with reduced powers, 550 ; appointment of, for Western Districts, recommended by Carleton, 655. See also Burton, Carleton, Cramahe, Hamilton and Hope. Lisbnrne, Lord, member of British Board of Trade, 274. Lisle, M De, chaplain of the garrison at Montreal, 373 531 Livius! Peter, Chief Justice, 475, 476, 478, 487, 488, 489. Livius, Peter, appointed Chief Justice 1776, note I, p. 475; dismissed from office by Carleton, note 3, p. 476 ; Board of Trade repudiate Carleton's dismissal of, and re-appoint him to office, note 3, p. 476 ; proposes an amendment to the judicial system of Quebec, note p. 478. Livingstone, James, merchant at Sorel; letter written by him, intercepted and sent to Dartmouth, 456. Longueuil, M. de, member of legislative council, I I , 23, 475, 484, 552, 579, 590, 591, 592, 639, 640. Lords of Trade, see Board of Trade. Lotbinière, Chartier de, criticizes important features of the Quebec Bill, 373, 395, 399. Loughborough Baron, see Wedderburn. Louisiana, trade in, 72. Loyalists, Haldimand authorized to make grants of lands to, 494 ; Haldimand gives Sir J o h n Johnson instructions re tenure of land settled by Loyalists, note 3, p. 494; petition of Sir J o h n Johnson and others in behalf of the Loyalists settled in Canada, 524: petition the King for relief from the French system of land tenure, 525 ; propose a plan to erect the country west of Lake St. Francis into one district to be subdivided into counties, with courts of justice, 525; Lieutenant Governor Hope's opinion of granting a separate government to, 540 ; referred to, 541, 570, 575 ; concerning their petition for alterations in mode of government and land tenure, 544; proLoyalists—Continued. vision made in Carleton's instructions of 1786 ^or grants of lands to them, and for the 'mode of holding such lands, 561-563 ; members of the legislative council protest against the postponement of relief which a proposed ordinance would afford them, 580 ; extract of letter from North authorizing aid to, 580; new districts authorized to be formed for the purpose of administration of justice, 583 ; recommendation of Council to grant them lands, 598 ; committee of Council recommend that the Loyalists should hold their lands according to the mode laid down in Carleton's Instruction of •1771, 640 ; desire to hold their lands in the same manner as those who resorted to Nova Scotia and New Brunswick, 641 ; petition to hold their land's free from seignorial claims, 645, 648 ; desire to be governed by the British constitution and laws, 645; petition'of the western Loyalists to Carleton asking for the extension of the British constitution to their settlement, 648; petition for measures to encourage trade, 648, 649 ; to be granted their lands in free and common soccage, 653; proposed division of the province, 653; Loyalists to be granted British laws and English land tenure, 653 ; Carleton recommends the appointment of a lieutenant governor for the four western districts of the province, 655; re claim that they desire to participate in a provincial assembly, 656. Lymburner, Adam, references to, 155,156, 510, 618, 651, 652. Lymburner, Adam, agentin England of the element in Canada desiring a House of Assembly, note p. 652 ; on the necessity of alteration in the mode of government in Quebec, note, p. 652 ; proE usais as to distribution of representation in ower Canada, 693. Mabane, Adam, references to, 37,193,194,475, 481, 488, 552, 570, 579, 588, 590, 591, 592, 593, 594, 597, 598, 599, 600, 601, 602, 603, 605, 606. Mabane, Adam, sends memorial to the Governor re' charges of the Attorney General, 593 ; his reasons against trial by jury in civil causes, 603-605. Macaulay, Zachary, member committee of Quebec petitioning for an assembly. 340, 341, 351, 413. Maekworth, Sir Herbert, member of British Parliament, 359, 652. Maclean, Lieutenant Colonel, officcer at Quebec during the invasion of 1775, 456. Madelaine Island, placed under the protection of Newfoundland, 120. Magistrates, of District of Montreal, protest against ordinance of February, 1770, note p. 280 ; of Quebec, express opinion that the jurisdiction of justices of the peace be extended, 631 ; of Quebec, suggest improvement in matters of police, 631; recommend that a workhouse and almshouse be provided, 631 ; of Quebec, recommend that fees of physicians be regulated by the legislature, 632 ; of Cataraqui, write to Johnson concerning trade and land tenure in their district, 642-644 ; of New Oswegatchie, write to Sir J o h n Johnson re population, agriculture, and the settlement of the King's lands, 645. Maitland, Lieutenant Colonel, officer at Quebec, 37. Malone, Captain, officer at Quebec, 37. Mansfield, Lord, references to, 366, 375, 385, 386, 387, 390. Mansfield, Lord, renders judgment in Campbell vs. Hall, 366 ; defines power of King to alter and make laws, 369 ; draws up a new form of oath for the Quebec Bill, note p. 390. Maritime Affairs, settled according to laws of English Court of Admiralty, 239. INDEX Marsham, Mr., member of British Parliament, favours the Habeas Corpus for Quebec, 652. Martial law, Governor given power to execute " in time of war," 130 ; declared in Quebec by Carleton in 1775, 456. Martin, Mr.,Secretary to the Lords of the Treasury, 49, 652. Marriott, James, frames a code of laws for the Province of Quebec, 310 ; source of text given in this volume, notes pp. 296, 310; reviews the early administration of the colony, 311-337 ; endeavours to frame code of laws from facts furnished in several reports, 311 ; on the relation of Canada to Old France, 312 ; basis on which code of laws should be formed, 312 ; remarks - on status of civil law after the cession, 317 ; refers to discretionary power of the Governor, 317 ; suggests that four bills re courts of justice, common law, revenues and religion be laid before Parliament, 322 ; on oaths to be taken by members of Council and Assembly, 322 ; makes suggestions as to the limitation of power of judges, 323, 324. Maseres, Francis, references to, 178, 179, 203, 239, 258, 262, 276, 296, 316, 317, 327, 328, 333, 335, 340, 343, 347, 349, 373, 375, 413, 414. Maserps, Francis, appointed Attorney General, not's pp. 178, 179 ; considerations of, on the expediency of procuring an act of parliament for the settlement of the province of Quebec, 179 ; prepares draught of report of Governor in Council re state of laws and administration of justice in Quebec, 228, (see p. 257) ; plan for the administration of justice suggested by, 247 ; suggests that the province should be divided into three districts, 247 ; his suggestions re qualifications of judges, 247 ; suggests that power of deciding cases should be vested in English judges, 248 ; suggests four methods of settling the laws of this province, 252 ; his plan for settling the laws of the province disapproved by Carleton, 257 ; criticises Carleton's suggestions re criminal law, 258 ; disagrees with Carleton and returns to England, note p. 276 ; writes to Dartmouth re petition of f nglish inhabitants for an assembly, 340 ; letter from committee of English inhabitants re an assembly, 343 ; writes to the Lord Chancellor setting forth chief points in his draught of a proposed act for settlement of the laws of Quebec, 373 ; confers with Lord North on measures to settle affairs of Quebec, note p. 375. MeCord, John, member of committee of Quebec agitating for an assembly, 341, 351. MeGill, James, member of committee of "Montreal petitioning for an assembly, 382. McKenzie, Alexander, desires to be made a member of the council, 155, 156, 167. McKenzie, William, desires to be appointed to the council, 167. MeRandle, Gilbert, grand juror at Quebec. 155, 156. Mearns, J. W., clerk of the council, 584. Melville, Robert, Governor of the West Indies, 109, 116, 124, 372. Melville, Viscount. See Dundas. Memoranda, relating to the Quebec Act, 374-385 ; used in framing instructions to Carleton (1775), note p. 419 ; by Carleton for his instructions of 1786, 551 ; concerning trial by jury, 602. Memorial, from Quebec to Dartmouth for an assembly, 349, 351 ; of Ereneh subjects for continuance of their old laws and customs, 357, 358 ; of British merchants trading with Quebec for house of assembly, 541 ; of the judges of the Common Pleas of the district of Quebec for vindication from charges by the Attorney General, 593 ; of merchants trading to Quebec for reform in the civil constitution, 649. 6-7 EDWARD VII., A. 1 9 0 7 Meredith, Randal, member of committee of Quebec agitating for an assembly, 413. Mesplet, Fleury, printer at Montreal, 513, 516. Militia, Carleton's projects relating to Canadian, 451, 454; Carleton authorizes raising of, note 3, p. 456 ; officers of, empowered by ordinance of 1777 to act in their respective districts as peace officers, 472; suggestion from Hope concerning, 540 ; Sydney's remarks on raising colonial militia, 549 ; Einlay recommends a well established company, 571 ; proposal to enact an ordinance to regulate, 572 ; ordinance proposed for lodging the troops in the country parishes and for the transport of King's provisions, &e., 572 ; officers authorized to act as peace officers in the country parishes, 585 ; committee of council appointed to report on matters relating to, 591 ; suggestion to make Cataraqui the depot of stores for the garrisons in the upper country, 644. Military Council, to constitute a court of appeal, 34, 36. Military Courts, established by Murray, 3'3, 35. Military Force, advisability of maintaining, 102, 104, 109. Military Government, established by Amherst, 31, 32 ; Hamilton's disapproval of, 528. Militia Ordinance, proposed amendment of, 528. Military State of Quebec, sketch of, by Carleton, 196. Mills, Lieutenant, officer at Quebec, (1762,) 37,193. Mining, opportunities neglected by the French, 64. Minutes of Council, 1786-1787, 590. Mohawks, their losses during the war to be compensated by British government, 547. Monckton, General Robert, referred to, 29, 30, 96. Monckton, General Robert, wounded at capture of Quebec, note p. 29 ; succeeds Wolfe at Quebec, note p. 29 ; appoints Murray to act as governor of Quebec, note p. 29 ; appoints Burton to act as lieutenant governor of Quebec, note p. 29 ; issues manifesto permitting inhabitants to return to lands on giving up arms and taking oath of fealty, note p. 29 ; extract of letter to P i t t re staff at Quebec, note p. 29. Money Bills, council and assembly to have power to frame such, 135, 136, 137. Moneys, Public, Governor in council granted power to dispose of, 131 ; rules to be observed by Governor in council in passing laws concerning, 213. Monk, James, references to, 483, 586, 588, 592. Monk, James, appointed Attorney General, note 4, p. 483 ; arraigns the administration of justice in the Canadian Courts of Common Pleas, note 3, 586, (see pp. 588, 592.) Monopolies, abolition of, 70- Montcalm, Marquis de, last letter of, re surrender of Quebec, 3. Montgomery, General, in command of invading force in attack on Quebec, note p. 459. Montreal, articles of capitulation of, 8, 21 ; source of text of articles of capitulation in this volume, note p. 8 ; articles of capitulation referred to, 8, 21, 264, 337, 362; report by Gage on state of government of, 69 ; state of fortifications, 70 ; re sittings of court of assize at, note p. 149 ; Murray advises appointment of a lieutenant governor for, 167 ; seigneurs petition the King to suppress the register, and for liberty for all subjects " w i t h o u t any distinction of religion," 188, 189; defective state of the fortifications, 197 ; complaints re adminstration of law by justices of the peace, note p. 276 ; Court of Common Pleas at Montreal constituted an independent court with original jurisdiction, 282 ; articles of capitulation ratified by Treaty of Paris, 306 ; petition of old subjects for an as- INDEX 727 SESSIONAL PAPER No. 18 Montreal—Continued. sembly, 346, 318, 351 ; Court of Common Pleaa to sit twice a year at Montreal, 478, 481 ; state of police in, 618 : proposal for a charter to incorporate the city, 618, 626 ; views of merchants on the state of commerce, 622, 623, 624 ; suggestion for erection of a registry office at, 625 ; proposal for building a gaol, 625. Montre^or, Lieutenant, officer at Quebec in 1762,37. Moore, Sir Henry, Governor of New York, 339. Morgan, Maurice, sent by Privy Council to Quebec to report on the adminstration of law in the province and of " everything relative to the general state and condition of Canada." 2U1 ; delivers reports re methods of administration of justice to privy council, note p. 258. Mounier, Francis, member of the council appointed by Murray, 193, 194. Municipal Government, note re the beginning of the agitation or, in the western settlement, p. 643. Municipal Laws, citizens of Quebec petition Carleton concerning alterations in and execution of, 619, 621. Munro, Captain John, signs petition to the King on behalf of the Loyalists, 527. Murray James, references to, 29, 30, 31, 33, 35, 36, 37, 61, 93, 104. 108, 112, 115, 120, 123, 124, 126, 12b, 130, 131, 132, 149, 150, 151, 152, 153, 158, 163, 166, 167, 168, 172, 173, 187, 188, 189, 190, 192, 193, 194, 234, 239, 259, 264, 266, 306, 313, 317, 321, 327, 347, 354, 364, 372, 486, 539. Murray, James, appointed acting governor of Quebec, note p. 29 ; appoints Jacques Allier as judge in Berthier, 29, 30 ; establishes military courts, 33, 35 ; reports on state of government of Quebec, 37 ; reports on draught of commission as governor, 116 ; letter to Egremont re clause in Treaty of Paris concerning Roman Catholic religion, 123 ; his commission as Captain General and Governor in Chief, 156, (see also pp. 239, 243, 264) ; instructions to, 132 ; instructed to report on the affairs of the country, 147, 148; signs ordinance establishing civil courts, 152 ; protests against entire military authority being vested in the commander-in-chief of the forces, 152 ; additional instruction re interpretation of proclamation of 1763, note p. 163; signs ordinance for temporary retention of French land tenure and rights of inheritance, and defining age of maturity, 166 ; cause of recall as Governor, note p. 167, (see also note, p. 172); writes Lords of Trade advising extension of civil privileges to Roman Catholics, 167 ; British traders of Quebec request his dismissal, 168 ; board of trade advises recall of, 172 ; date of his former recall, note, p. 172 ; extract from additional instruction re alteration of ordinance establishing civil courts, note, p. 173; his commission as Vice Admiral of Quebec introduces laws of English Court of Admiralty, 239 ; purport of his commission and instructions, 239, 243, 244 ; attention drawn in report of Lords of Trade to additional powers vested in Governor, 265 ; his powers as Governor, 306-307. Murray, "Walter, member of the first council appointed by Murray (1764) 193, 194, 276. Naval Department, suggestion to make Cataraqui quarters of, 644. Naval Officers, offences on land to be punishable by law, 131. Navigation, exclusive rights claimed by French on Great Lakes, 99,100 ; instructions to Carleton relating to, 438; open to Great Britain and the United States by the Treaty of 1783, 493 ; difficulties of, in relation to lumber and fur trade, note p. 543 ; requests of the Loyalists Navigation—Continued. concerning, 649 ; British Parliament may impose duties for the regulation of, 707, (see also p. 673.) (See also Trade and Navigation). Nepean, Sir Evan, referred to, 500,569, 571, 572, 578, 656. Nepean, Sir Evan, appointed first permanent Under Secretary of State for the Home Department, note p. 500. New Brunswick, boundary line between Quebec and, 674-675, 684. Newfoundland, French to have privilege of fishing and drying fish on part of banks of, 75, 78, 86, 88, (see also, pp. 98, 99); Labrador coast placed under protection of, 120 ; remarks on corn trade with Quebec, 542 ; encouragement to be given fisheries of, 560. New Orleans, retained by France under Treaty of Paris, 75. 86. Noblesse, inhabitants refuse to submit to authority of, 453 ; loyal to the English government, 455, 460 ; consider it an indignity to be tried by their peers if men in trade are to be considered in that light, 573 ; petition the King for the maintenance of old French laws and institutions, note 3, p. 657. North, Lord ..references to, 390, 460, 474, 497, 499. North, Lord,' his opinion on establishing a legislature in Quebec, note p. 375 ; extract of a letter to Haldimand authorizing aid for the Loyalists, 580. Norton, Attorney General, reports on civil status of Roman Catholics, 171. Norton and DeGrey, report on status of Roman Catholic subjects, 171, 267, 271. Notaries, desire to practise as advocates, 328. Nova Scotia, proposed annexation of Cape Breton and St. Johns to, 104 ; boundaries of, 117, 118 ; Charles Inglis appointed Bishop of, 568. Oath, of allegiance, to be taken hy inhabitants, 139, 217 ; to be taken by all officeholders and others in British possessions, 233; Marriott's remarks on oaths to be taken by members of Council and Assembly, 322 ; form of, to be taken by Roman Catholics, given in Quebec Bill, 392,' 403 ; forms of, 392, 403, 671, 672, 681, 682, 700, 701 ; to be taken by members of legislative council, 420, 553 ; to be taken by the loyalists making application for lands, 562 ; members of the legislative council take the oaths required of them, 590-591. (Economats, see .¿Economats. Official Salaries, amounts determined by instructions to Carleton in 1775, 432. Ordinance, of 1760, establishing provisional military government, 31, 32 ; of 1760, establishing military courts, 33, 35 ; of September, 1764, establishing civil courts, 149, referred to, note pp. 33, 203, 229, 230, 231, 232, 243, 265, 266, 277, 280, 314, 315, 322, 323, 327, 360, 361 ; of November, 1764, for temporary retention of French system of land tenure and rights of inheritance, and defining the age of maturity, 166 ; interpretation of, 232 ; of July, 1766, granting Canadians right to act as jurors in civil and criminal cases, and allowing advocates to practise their profession, 172, (see p. 175) ; of July 26th., 1766, establishing a third term, called Michaelmas, for sittings of Supreme Court and Court of Common Pleas, 174 ; for regulating pilotage in river St. Lawrence, 187 ; relating to French land tenures, 204; re settlement of lands, note p. 241 ; defects in ordinance of September, 1764, 266 ; to be prepared by Attorney General re administration of justice, 276, suggestions for this ordinance, 278 ; of September, 1764, gives undue authority to justices of the peace, 277 ; relating to assize of bread, 728 INDEX Ordinance—Continued. 279 ; of February, 1770, repealing clauses in ordinance of September, 1764, re authority of justices in matters of private property, 280 ; of February, 1770, for the move effectual administratration of justice, and for regulating the courts of law in Quebec province, 280 ; of February, 1770, gives offence to justices of Montreal, note p. 280; clauses in ordinance o£ 1761, re sittings of courts repealed by ordinance of February, 1770, 283 ; of September, 1764, repealed by ordinance of July, 1766, 818. Ordnance, Quebec Bill as returned from the Ciommons repeals the proclamation of 1763, and ordinances made since that date, 392 ; those of Governor and Council made since proclamation of October, 1763, and relating to the civil government annulled by the Quebec Act, 403 ; list of ordinances passed in the legislative council, session of 1777, 463 ; of 1777, for establishing courts of civil judicature in Quebec, 464, {see p. 574); of 1777, regulating proceedings in the courts of civil judicature in the province of Quebec, 466 ; of 1777, for establishing courts of criminal jurisdiction in the province of Quebec, 471 ;# of 1777, regulating proceeding in courts of civil judicature, to be in force for two years only, 471 ; to prevent undue influence of the market by a combination, 485 ; concerning regulations for postmasters, remarks of Haldimand on, 486 ; remarks re regulating and establishing fees of office under government, 486 ; of 1783, re proceedings of courts, renewing and amending a former ordinance, 490 ; Governor and Council authorized to enact an ordinance supporting general trade instructions, 49K ; titles of ordinances passed in 1787 and 1788, relative to trade and commerce with the United States, note 2, p. 496; regulating the fisheries in the river St. Lawrence, in the bays of Gaspe* and Chaleurs, on the island of Bonaventure, and the opposite shore of Percé, (1795) note 1, p. 497 ; for securing the liberty of the subject, and for the prevention of imprisonments out of the province, note 1, p. 501. Ordinance, to regulate the proceedings in the courts of civil judicature and to establish trial by jury, 529; titles of five ordinances laid before the Council in 1787, 572 ; of 1777, regulating proceedings in courts of civil judicature; draught framed by Chief Justice Smith for the better administration of justice and to regulate the praetiee_ of the law. 574 ; for the dispensation of justice in small causes, note p. 576 ; to regulate the proceedings in the courts of civil judicature and to establish trial by jury in commercial causes, 579 ; of 1785, renewed in consequence of the defeat of the rival bills proposed by the Chief Justice and St. Ours, 582 ; of 1787, re proceedings of civil courts, 582 ; of 1787, continuing for two years an » ordinance to regulateproceedings in the courts of civil judicature, with additional regulations, 582 ; of 1787, re proceedings of civil courts, to remain in force two years, 584 ; of 1787, to explain and amend an ordinance for establishing courts of criminal jurisdiction, 585 ; concerning examination on facts and evidence, 607, 609; " t o empower the Commissioners of the Peace to regulate the police of the towns of Quebec and Montreal for a limited time," note 1, p. 618 ; of 1789, re proceedings in the courts of civil jurisdiction, 658. Orwell, Lord, member of the Board of Trade, 97, 107, 110, 112, 114. Panet, Judge P., references to, 570, 593, 606, 607, 608, 609, 611. 6-7 EDWARD Vil., A. 1907 Panet, Judge P., memorial to the Governor to vindicate him from the charges of the Attorney General, 593; paper by, concerning examinations on facts and evidence, 607, 609 ; paper by, concerning guardianships and trusteeships, 608, 611. Parr, John, Governor of Nova Scotia, note 2, p. 850. Payn, Phil, on grand jury at Quebec, 155, 156. Perrault, M., grand juror at Quebec, references to, 155, 156, 841. Personal Liberty, Canadians adopt British ideas of, 453. Petition, of Quebec traders for reforms in civil government, 168; of London merchants, re changes in Government of Quebec, 170 ; of Seigneurs of Montreal for suppression of the Register and permission to hold office under government, 188, 189 ; of old subjects for a general assembly, 291, 347 ; of French subjects for restoration of their old laws and customs, 354, 355 ; for repeal of Quebec Act, 414, 417, 473 ; for house of assembly from old and new subjects of Quebec, Montreal and Three Rivers, 502 ; of Sir John Johnson on behalf or the Loyalists settled in Canada, 524 ; of British merchants trading with Quebec, respecting regulations proposed for that province, 541 ; of Western Loyalists for government according to. the British constitution, 647. Pilotage, of St. Lawrence, regulations proposed for _ 187. Pipon, see Robin, Pipon & Co. Piracy, instructions for th»1 suppression of, 146, 224 ; directions in instructions to Carleton, for suppression of, 430, 564. Pitt, William, references to, 3, 8, 29, 81, 33, 96, 521. Pitt, William, extracts of despatches from Amherst to, re capitulation of Montreal, note 1, pp. 8, 29 ; extract of despatch from Amherst to, on capitulation of Quebec, note p. 29 ; his opinion on the necessity of reconstructing the government of Quebec, note 2, p. 520. Plan of a Code of Laws for the Province of Quebec, reported by the Advocate General, James Marriott, (1774), 310. Plan for the Managementof Indian Affairs, referred to in Carleton's instructions, of 1775, 433. Police, suggestion by Marriott to imitate system used in Holland, 324; report of-committee on commerce and police, 612; suggestions for remedying the condition of police in Quebec, 617; concerning an ordinance " to empower the Commissioners of the Peace to regulate the police in the towns of Quebec and Montreal for a limited time", note 1, p. 618; suggestions for regulations in matters of police in Quebec and. Montreal, 626; committee of council ask the magistrates of Quebec for their views on police affairs, 630 ; magistrates of Quebec lay before the eouncil suggestions for the improvement of, 631 ; proposal to appoint a police commissioner at Three Rivers, 636, 638, See also Commerce and Police. Pollock. William, Clerk of the Crown in Quebec, 567.' Poney, grand juror at Quebec, 155, 156. Population, of Quebec, estimate referred to, 57 ; of Three Rivers, report on, 65, 67 ; committee of council appointed to report on. 591 ; report of committee of council on, 639; committee of council suggests methods for increase of, 640 ; Loyalists suggest^ that the encouragement of educa'tion and missions would be helpful to, 645 ; distribution of, in the province, 654, 655. Post office, Hugh Finlay holds office of Postmaster General, note 3, p, 486 ; Haldimand's remarks on an ordinance making regulations for postmasters, 486. INDEX 729 SESSIONAL PAPER No. 18 Potts, Ja., Deputy Clerk of Council, 173, 174, 195. Powell, Mr., attorney at Montreal, 485. Pownall, George, referred to, 475,480, 484, 488, 552, 586, 590, 591, 592, 612, 619, 651. Pownall, George, member of the legislative council, 475 ; his opinion on the instruction to Haldimand concerning alterations co be made in courts of civil judicature, 480; appointed clerk and registrar of the legislative council, note 2, p. 480v Pownall, John, U n d e r Secretary of State for the Colonies, references to, 258, 400, 411. Powys, (Powis) Mr., introduces a Bill in British House of Commons to alter and amend the Quebec Bill, note 2, p. 520 ; gives expression to the wishes of the people of Canada concerning their constitution, and makes a motion that their petitions be considered, note, p. 652. Practice, general rules of, 177 ; rules of, to be established by ordinance, 178. Praslin, Due de, signs Treaty of Paris, 80, 90. Precedence, of members of the council, 192. Prenties, Miles, British inhabitants of Quebec meet a t his inn, 341. Presentments, of the Grand J u r y of Quebec, re Courts of Justice, Juries, Appeals, Public Accounts, 153, (see also pp. 156, 159, 266) ; protest of the French jurors in reference to, 156, 159. Preston, Major, Commander of 26th Regiment,453. Prévôté of Quebec, composition of, 40. Price, Benjamin, member of legislative council, 195, 413. Privileges, of Canadians, under Treaty of Paris, secured to people by new government, 104. Privy Council, asks for report on the administration of justice, 199, 200 ; sends Maurice Morgan •to Quebec to make report on the administration of law in the Province and of " everything relating to the general state and condition of Canada, 201; draught of a report of the Governor and Council on the state of law and justice in Quebec, sent to, 228 ; report of Lords Commissioners for Trade and Plantations re state of Quebec, 263. Procedure, to be observed in executions, 286-290,; ordinance of 1777 establishes rules of procedure in writs of execution, 468, 470 ; regulations of proceedings in actions above £10, 530 ; proposal that the provincial court of appeals have . authority to establish the general rules of practice as stated to them by the judges of the Common Pleas, 577 ; an ordinance to continue an ordinance to regulate the proceedings in the court of civil judicature, 582 ; judges of the Common Pleas presented a plan of forms of procedure for acts concerning guardianships and trusteeships, 609, 611. Proclamation of October 1763, establishing civil government, documents forming basis of, note p. 93 ; of October, 1763, 119 ; various interpretations of, 238; Thurlow's remarks on, 306-308; other interpretations, 308; paraphrase of a portion of, 347; judgment of Lord Mansfield to the effect that the King had divested himself of certain authority by, 368 ; that portion relating to the civil government of Quebec, annulled by Quebec Act, 402; other references, 242, 265, 291, 313, 314, 339, 349, 359, 361, 381, 390, 391, 542, 574, 614. Proclamation, proposed, re Indian lands, extent, settlement and constitution of new colonies, 112, 114,115 ; Haldimand issues a proclamation prohibiting export of wheat and flour, note 1. p. 483. Property, Canadians to be maintained in possession of, 205, 206 ; rules to be observed by Governor in Council in passing laws, 213; diversity in practice of law, 240 ; difficulties of administerProperty— Continued. ing law in the courts, 267 ; undue authority used by justices of the peace under ordinance of September 1764, in matters of, 277 ; suggestion to annul power given justices of the peace re civil property, 278 ; authority of justices of the peace confined to those acting under a special commission by ordinance of February, 1770, 280; regulations altering method of selling personal and real property under execution, 289 ; proposed regulations re personal property, 303; Chief Justice Smith raises the question whether by the Quebec Act the laws and customs of Canada are in force exclusively, 569-571, (see p. 403) ; Canadians consider the English commercial law will destroy the security of their possessions, 573. Protestants, grand jury demands that a Protestant jury should be impannelled in certain cases, 156, (see pp. 158, 160). See also Religion. Provisions, Haldimand issues a proclamation prohibiting export of wheat and flour, note 1, p . 483. Provost-marshalship, proposed abolition of office, 250. Quarter Sessions, Court of, ordinance relating to, 472. Quebec City, text of articles of capitulation, taken from photographic reproduction of original document, 3 ; inhabitants to enjoy possession of effects and privileges after capitulation, 4, 6 ; officials at (1759), note p. 29 ; general staff at, 37 ; state of the fortifications, 38, 197 ; Carleton proposes building a citadel at, 195, 196, 198, 199 ; state of police in, 617-618 ; proposal for charter to incorporate the city, 618, 626. Quebec Province, nature of soil and products, 56 ; boundaries cf, 72, 120, 132, 2i0, 338, 351, 354, 356, 358, 381, 388, 390, 391, '402, 664, 665, 667, 674, 677, 684 ; description of proposed seal for Province, 115 ; boundaries of, according to Murray's commission, 126; Baron Maseres on the expediency of procuring an Act of Parliament for settlement of the Province, 179 ; draught of report drawn up by Maseres on the state of law and justice in, 228 ; report of the Board of Trade on the state of, 263 ; disorder and confusion caused by restricted authority of Governor and Council, 267 ; petition to the King, from the old subjects, for an assembly, 291 ; unsatisfactory methods of administering justice, 315, 325, 331 ; proposed extension of boundaries, 381 ; remarks on instructions to Carleton, re division of Province into two judicial districts, 423, 464 ; Grenville's remarks on the division of the Province into districts, 654; distribution of the population in, 654, 655 ; proposed line of division in the Province, 655 ; division of Province into Upper and Lower Canada, 667, 695 ; Carleton's remarks on the proposed boundaries of the two Provinces, 674 ; boundary between New Brunswick and, 674. 675, .684 ; limits between New York and Quebec adjusted by the Privy Council in 1766, 677. Quebec Act, memoranda and draughts of bills relating to, 374 ; Carleton's advice to Ministry in framing, note p, 374 ; final text of, 401 ; source of text in this volume, note p. 401 ; boundaries of the Province as fixed by, 402; Roman Catholics granted " free exercise of their religion subject to the King's supremacy," 403 ; makes provision for support of Protestant clergy, 403; provides that the " L a w s and Customs of C a n a d a " are to be the rule in civil matters, 404 ; provides for retention of the criminal law of England, 404 ; Dartmouth's opinion of, ^412 ; proceedings of the English inhabitants who desire repeal of, 413 ; petitions 730 INDEX 6-7 EDWARD Vil., A. 1907 Quebec Act—Continued. for its repeal, 414, 417 ; motion made in Parliament for repeal of, note 2, p. 452 ; letter from Dartmouth re agitation for repeal of, 452 ; petition for repeal, 473 ; H u g h Finlay's comment on, 500 ; objection to the extraordinary powers given the legislative council by, note p. 502 ; address to Haldimand from the council expressing satisfaction with the Act, note p. 502 ; draught of an Act to explain and amend the Quebec Act, 520 ; British merchants trading with Quebec protest against, 542, 546 ; administration of justice under, note 3, p. 593 ; approved of by inhabitants of Montreal, 028, 630 ; repeal of those portions relating to the boundaries of the Province, 667 ; section referring to boundaries repealed by second draught of the Constitutional Act, 677. See also Quebec Bill. Quebec Bill, Marriott's attitude towards, note p. 311 ; introduced by Dartmouth in House of Lords, ndte p. 353, note 2, p. 374 ; first draught of, 376 ; second draught of, 377 ; proposal that the Act continue in force for fourteen years, 377;'second draught of, prepared by Wedderburn under direction of Dartmouth, note p. 377 ; extract of letter from Wedderburn re criminal law in Canada, note p. 377; proposal in second draught to create the legislative council by letters patent, 380 ; third draught of, 382 ; notes by Wedderburn on third draught, 385; limitations ©f Canada's boundaries as proposed by third draught, 388 ; remarks of William Knox concerning the third draught, 389 ; quotation from Cavendish's Debates re, 389 ; amendments indicated by brackets, notes p. 390 ; changes introduced by the Commons, note p. 390 ; as passed by the Commons, 13th June, 1774, 390 ; draught as returned from the Commons, 390 ; Roman Catholics granted the " free exercise of their religion subject to the King's supremacy," 392; laws and customs of Canada made the rule in civil matters, 393 ; criticism of several important • features of the bill by de Lotbinière, 395, 397 ; queries relative to the government of Quebec framed before Bill assumed its final form, 400 ; Charles Fox opposes the Bill, note p. 520. Quebec Gazette, extract from, being a summary of a debate in the British House of Commons on changes in the constitution of Canada, note p. 652. Quebec Revenue Act, text of, 406 ; an Act to explain and amend, 409. Quit Rents, Carleton authorized to prepare the heads of a bill controlling the collection of, 563. Ramezay, M. de, signs articles of capitulation of Quebec, 3, 5, 6, 7. Ramsay, Monsieur, acquitted on trial for murder, 339. Rebels, influenced section of community against defence of the country in 1775, 455, 459. Regiment of Foot,(Eighty-fourth),special provision made in Carleton's instructions of 1786 for granting lands to the reduced officers and privates of, 562. Registration, French inhabitants possessing land granted before Treaty of Paris required to register titles, 141, 218 ; seigneurs of Montreal petition the King for the suppression of, 188, 189 ; referred to, 304 ; suggestion to make ordinance requiring the registration of all deeds, 616 ; suggestions for erection of registry office at Montreal; 625 ; suggestion concerning the registration of all deeds, 628, 630, 634. Registrar, surveyors of Quebec province required to enter their surveys in office of, 143, 221. Regulations, concerning civil and criminal cases, 176 ; abstract of regulations proposed by Wedderburn to be established by act of parliament, 302, 303 ; concerning bills proposed in the assembly or council, 672. Religion, seigneurs of Montreal petition the King that all'subjects may hold office without any distinction of, 188, 189 ; toleration suggested in matters of, 227 ; suggestion by Solicitor General that inhabitants of Canada should be allowed religious freedom, and that authority of King be supreme in ecclesiastical matters, 298 ; suggestion by Wedderburn to grant to Canadians the free exercise of, 302 ; concerning the tythes for Protestant clergy, 386 ; note in third draught of Quebec Bill concerning the Protestant religion, 386 ; provision made by Quebec Act for support of Protestant clergy, 403 ; legislative council may not put laws affecting religion in force, without King's consent, 405 ; provision for maintenance of a Protestant clergy, as given in Carleton's instructions of 1775, 42& : instructions to Carleton 1775, direct encouragement of missions to the Indians on the Labrador coast, 429 ; Carleton's instructions of 1787 authorize religious freedom, 568. Religion, Protestant, proposed means for establishing and maintaining, 139, 140, 217, 227, 400, 558, 559 ; Carleton instructed to permit free exercise of, 568 ; provisions relating to, note 1, p. 694 ; maintenance of, 703-705. See also Religion. Religion, Roman Catholic, free exercise of, granted " until possession of Canada shall have been decided," 4, 6, 14, 2 5 ; protection for Roman Catholics in exercise of ; particular instruction:, to Murray re clause of Treaty of Paris granting liberty of, 123, (see pp. 75, 86) ; liberty " a s far as the laws of Gi eat Britain permit " referred to, 139, 217, .236, 260, 265, 266, 269, 270, 296, 298 ; Maseres' interterpretation of British law re toleration of, in Quebec, 180, 181 ; remarks by Marriott on a proposed bill for free exercise of, 335-337 ; Cramahe's opinion of grantiug Cana- • dians free exercise of, 338, (see also p. 339) ; Roman Catholics " to enjoy free exercise of their religion subject to the King's supremacy " by Quebec Act, 403, (see p. 392); Roman Catholics have free exercise of their religion according to instructions to Carleton (1775), 425 ; Catholic citizens request that their bishops maybe allowed to bring priests from Europe to carry on the work of the seminaries and missions, 517, 518, 519 ; provision for clergy, 703. Religious communities, not to be molested, 15, 26 ; sketch of, 51 -53 ; Murray directed to make report on Catholic institutions, 139, (see 217, 269- 270) ; proposal to make laws for the reform or abolition of, 270 ; remarks on establishment and state of, 298-300 ; Carleton desires to exercise his own discretion in dealing with, note p. 400 ; referred to, note p. 419 ; regulations in Carleton's instructions concerning, 426, 558. Report, of Murray on government of Quebec, 37 ; Burton on government of Three Rivers, 61 ; Gage on government of Montreal, 69 ; of Lords of Trade on provision for establishing a government at Quebec, 97 ; re Indian Lands, 110 ; on commissions for governors by Committee of Privy Council, 116; of Attorney and Solicitor General re civil status of Roman Catholics in countries ceded to Britain by Treaty of Paris, 171 ; of Attorney and Solicitor General re the civil governments of Quebec, 174, (see p. 238) ; on administration of justice required by Privy Council, p. 199, referred to, 273 ; of Maseres on administration of government, 228 ; Maseres' criticism of Carleton's Report on laws of Que- INDEX 731 SESSIONAL PAPER No. 18 Report—Continued. bee, 258, (see p. 257) ; of Lords Commissioners for Trade and Plantations relative to the state of the Province of Quebec, 263, list of documents which served as a basis of, 274 ; of committee of council on administration of law by justices of the peace, 276 ; of Solicitor General Wedderburn, setting forth defects in mode of government and suggesting plan of civil and criminal law, 296, (see also p. 302), note as to the source of text in this volume, note p. 296 ; Attorney General Thurlow on administration of government with abstract propositions for improvement, 305, source of text in this volume, notes pp. 296, 305; of the committee of the council relating to the courts of justice, 594 ; of the committee of council upon population, agriculture, and the settlement of Crown lands, 639. Representative g< >vernment, proxx>sed by Board of
Trade, 172.
Request, Courts of, plan for the establishment and
regulation of, note p. 576; private disputes to
be settled by the commissioners, note p. 576.
Reserves, clause in Haldimand’s instructions providing for reserves of land for educational and
religious purposes, 494.
Revenue, proposal to create revenue by taxation,
172 ; duties proposed on liquor for revenue, 184 ;
proposals to levy taxes, 184, 185 ; insufficient
provision made for, 266 ; remarks by Marriott,
on proposed bill for raising and collecting taxes,
334; clause in Act allowing liquors to be imported into parts of Quebec, 409.
Revenue Act. See Quebec Revenue Act.
Reynal, Abbé, Marriott refers to legal works of,
319, 333.
Rice, George, member of Board of Trade, references to, 97, 107, 110, 112.
Ridley, Sir Matthew White, speaks in favour of
Constitutional Act, note p. 652.
Rigaud, M. de, Governor of Montreal, 11, 22.
Roberts, John, member Board of Trade, 274.
Robin, Pipon & Co., grant of land on Baie de
Chaleur, made to, 560.
Robinson, Thomas, member of Board of Trade,
274. >
Roman Catholics, inhabitants to give account of
arms and ammunition in their possession, 139 ;
given right to act as jurors, note p. 149, (see pp.
156,167) ; Grand J u r y of Quebec protests against
Catholics as jurors, Í55,- (see pp. 156, 158, 161) ;
report of Attorney and Solicitor General re
status of, 171; summary of Attorney General
Yorke’s opinion re the right of Catholics (according to British law) to sit in House of Assembly, note p. 185 ; members of council should
not be required to make certain declaration,
267; address to the King from, 517, 518;
Lieutenant Governor Hope suggests that there
be more than six Catholic members of the legislative council, 540. See also under Religion.
Ross, Major, bearer of petition to the King from
Canadians disapproving an assembly, 539.
Rosslyn, Earl of. See Dartmouth.
Royal Courts of Judicature, suggested by Maseres,
247, 248, 260.
Rules of Practice, Provincial Court of Appeals to
ha\ e authority to establish, 577.
Russell, Erancis, surgeon in hospital at Quebec,
1762, 37.
Salaries and Allowances of Officeunder Government,
to be regulated by the Governor in Council, 215:
note concerning estimates for, note p. 432, note
p. 566 ; provision for, in instructions to Carleton
of 1775, 432 ; additions to, 450, 567.
Saunders, Admiral Charles, signs articles of capitulation of Quebec, 3, 5.
Savile, Sir George, member of the British Commons, note 2, p. 520.
Seal for Quebec Province, description of proposed, 115.
Security, Court of Appeals to determine
when necessary, 577, 583.
Secretary of State for the Colonies, office created in
1768 and abolished in 1782, note p. 500.
Secretary of State for Home Department, Viscount
Sydney holds office of, note 1, p. 527.
Seigneurs, powers of, 62.
Seizure before Judgment, ordinance concerning, 584.
Shelburne, Earl of, references to, 97, 107, 110, 112,
116, 192, 196, 199, 201, 203, 205, 208, 228, 259,
274, 320, 331, 333, 358, 571.
Shelburne, Earl of, President of the Board of
Trade, note 2, p. 116 ; appointed Secretary of
State for the Southern Department, note, p.
192; letter from Carleton on the state of the
Province, 196 ; letter to Carleton re improvement of the Constitution, 196 ; letter to Carleton
re defects in system of judicature, 201.
Sheridan, Richard, comments on the powers vested
in Governor, note 2, p. 502 ; thinks the British
ministry guilty of neglect in adjusting the laws
of Canada, note p. 652.
Sheriffs, proposed appointment of, instead of a
provost marshal, 250 ; to be appointed by governor for each district, 669.
Shoolbred, John, merchant of London, is granted
land on Baie de Chaleurs for purposes of fishing
trade, 560.
Sills, Samuel, grand juror at Quebec, 155, 156.
Simcoe, Lieutenant-Goyernor, note 1, p. 651.
Simmonet, Fr., signs a petition for retention of old
laws and customs, 355, 366, 358.
Smith, Chief Justice William, references to, 552.
569, 571, 574, 578, 582, 588, 590, 592, 602, 677,
678, 684, 685, 687, 689.
Smith, Chief Justice William, letter to Nepean on
the Quebec “i.ct, 569-571 (see p. 373); remarks
on the Court of Commons Pleas, 570; his
draught of an ordinance for the better administration of justice, 574; summary of an ordinance for the relief of the poor by providing
for the dispensation of justice in small causes,
note, p. 576 ; his speech considered by Lord Sydney to be an attack on the freedom of debate,
586 ; bill “to secure the Royal Revenues and to
regulate the Proceedings in Crown Causes, and
to give the subject the benefit of Appeal from
large fines, ” note 7, p. 588 ; assists Carleton in
amending the first draught of the Constitutional
Act, note 1, p. 677; makes suggestion concerning
boundaries of Canada, 678 ; draught of a clause
for the Constitutional Act re the boundary between Quebec and New Brunswick, 684 ; letter
to Dorchester concerning plans for a general
government of the British dominions in North
America, 685-687 ; draught of additions to the
Constitutional Bill for a general government,
687 ; re trial of criminal offences, 689, referred
to, pp. 676, 685.
Soldiers, grants of land to be given to, 113.
Solicitor General. See Attorney and Solicitor General.
Sorel, Seigneurie of, to be allotted and granted to
the Loyalists who withdrew from the colonies
after the signing of the Treaty of Peace, (1783)
563.
Speakers of the Council, to be appointed or removed by the Governor, 669, 679, 697.
Spry, Captain, engineer at Quebec, (1762,) 37.
Stanhope, Admiral, takes possession of the Island
of Minorca, 336.
Steel, Mr.,master of the King’s vessel ” M e r c u r y , ”
council requests information from, re the navigation of the St. Lawrence, 613.
732 INDEX
6-7 EDWARD VII., A. 1907
Stewart, Charles, member of the Council, (1765) 195.
Stuart, Dr. John, missionary to Mohawk Indians,
first clergyman appointed in upper Canada,
note 2, p. 644.
Suckling George, Attorney General of Quebec, dismissed from office, note p. 178.
Superior Court, established, 149 ; appeals from,
allowed to Governor in Council where value of
contested matter is over £300, and from there
to King in Council where value is £500 or
over, 149,230; judges to adhere to the Custom
of Paris, 187 ; slowness of proceedings in, 187 ;
suggestions for composition and powers of, 304;
ordinance of 1777 creates the Governor and
Council a Court of Appeals in matters exceeding £10, their judgment to be final in
cases under £500, 464. See also King’s Bench.
Supreme Court, of Criminal Justice, ordinance
establishing a third term for sittings of, 174 (see
also p. 176) ; power given thé Chief Justice to
hold, 192; established by ordinance of 1777, 471.
Sydney, Lord, references to, 527, 538, 547, 550,
551, 586, 587, 646, 649, 651, 653, 654, 655,
662, 676, 694.
Sydney, Lord, holds office of Secretary of State,
note 1, p. 527; despatch to Hope, indicating the
policy of the British Government in the struggle between the Americans and the English to
secure influence over the Indians, 547; despatch
to Hope re proposed increase in the number of
Canadian members in the Legislative Council,
548; letter to Joseph Brant, concerning British
support of Indians in case of land dispute with the
Americans, 549; letter to Brant, concerning compensation to Indians for losses sustained during
the war, 549; despatch to Hope, announcing Carleton’s appointment as Governor General and offering Hope the Lientenant Governorship of
New Brunswick, should Colonel Carleton,
Lieutenant Governor of New Brunswick assume that office for Quebec, 550 ; letter to Carleton, on the attitude of Attorney General Monk
towards the judges oí the Common Pleas, 586 ;
is of opinion that Canadians have a right to retain the laws guaranteed them by the capitulation, 586; expresses opinion re ^ speech of
Chief Justice Smith, 586; his opinion on the
rights of the old inhabitants, 587; letter from
Carleton, his investigation of the condition of the
Province? 587; letter to Carleton on division of
the Province, 587; letter to Carleton, re granting Canadians a House of Assembly, 587; letter
from Carleton, recommending that Crown
Lands be granted in free and common soeeage,
646; petition fromBritish merchants trading with
Quebec for a House of Assembly, 649; on the
conflicting tendencies of the applications for a
change in the constitution, 652 ; letter to Carleton, requesting a report on the civil state of the
Province, 654; remarks concerning Protestant
religion, note, p. 694.
St. John’s, annexed by Britain to government of
Nova Scotia, 120.
St. Léger—selected to command expedition against
United States, 460; placed in command ot military affairs in the absence of Haldimand in Eng
land, 1784, note 1, p, 527.
St. Luc, La Corne, member of legislative council,
483, 484. See also La Corne.
St. Martin, Dumas, justice of the peace at Montreal, 373.
St. Maurice Forges, account of, 64 ; reservation of
land necessary for carrying on, 144, 222, 319,563.
St. Ours, Paul Rocque, memlber of legislative
council, 475, 484, 552, 579, 582, 586, 588, 590,
591, 592, 594, 593, 599, 600, 601, 602.
St. Pierre and Miquelon, ceded conditionally to
France by Treaty of Paris, 75, 86, [see also p. 99)
Tachet, M., grand juror at Quebec, 155.
Taxation, suggestion for creating revenue by, 172 ;
Council prohibited from levying taxes, note p,
502 ; objections raised to the imposition of taxes
by House of Assembly, 511, 514, 516, (see also
421) ; petition of Roman Catholics setting forth
that Colony is not in a position to be taxed, 518,
519. See also under Duties.
Tenure of Land. See Land Tenure.
Terre en Roture, explanation of, 41.
Test, oaths required from members of assembly,
265, 268.
Three Rivers, report on state of government of, by
Burton, 61 ; state of fortifications and defence
62 ; remarks of Burton on the inhabitants, 65 ;
inhabitants of district petition the King for a
House of Assembly, 507 ; suggestion to form a
district for the administration of justice at,
615 ; magistrates of, suggest the establishment
of a weekly court for the recovery of small
debts, 634, 637 ; representations of citizens at,
634-637 ; inhabitants object to the circuit court,
634, 637 ; protest of inhabitants re delay in
circuit courts, 635, 637 ; inhabitants request
the establishment of a civil prison, 635, 638;
suggestion as to limits of district, 638.
Thompson, Zachariah, Captain of ports, Québec,
37.
Thurlow, Attorney General Edward, reports on
mode of government with abstract propositions
for its improvement, 305 ; notes as to source of
text in this volume, pp. 296, 305.
Timbei Limits^ provision for, 144, 222.
Tithes, regulations proposed, 303 ; rules for collection of, 557.
Townshend, Brigadier General George, references
to 3, 5, 6, 7, 96, 199.
Townsend, Brigadier General George, extract from
his despatch to Pitt, re capitulation of Quebec,
3 ; signs articles of capitulation of Quebec, 5.
Townshend, Thomas. See Sydney.
Trade, merchants and inhabitants to enjoy privileges of, 18, 28 ; under French regime, 57 ;
remarks on, 70, 71 ; in Louisiana, 72 ; contraband trade between St. Pierre and Miquelon
and Newfoundland, 99 ; prohibition of contraband trade, 145, 146 ; effect of Pontiac’s rebellion on, 168 ; representation by British merchants at Quebec on the condition of, 168 ; British
traders of Quebec complain of the restriction of,
168 ; merchants in London and Quebec, seek
the advancement of, 170 ; rules_ to be observed
by Governor in Council in passing laws relating
to, 213 ; English laws affecting commerce
applied to Quebec, 234 ; in Canada chiefly carried on by English merchants, note p. 350;
instructions to Carleton relating to, 438 ; contraband trade infringes on rights of the United East
India Company, 445 ; Chief Justice Hey’s
remarks on unsatisfactory state of, 458 ; plan
for the establishment of a Chamber of Commerce for the city and district of Quebec, 462 ;
merchants of Quebec protest against ordinances
relating to, 473 ; Haldimand’s remarks on the
law concerning,- 488 ; Governor and ‘ Council
authorized to make ordinance in favour of, 496 ;
ordinances passed in 1787 and 1788 relative to
trade and commerce with the United States,
note 2, p.” 496 ; suggestion that the commercial
laws of England, subject to the Legislature, be
declared law in all matters of, 504 ; commercial
laws of England referred to, 512, 514 ; clause in
ordinance of 1785 providing for English rules
of evidences in commercial cases, 532; executions against lands and goods, 537; remarks
INDEX 733
SESSIONAL PAPER No. 18
Trade— Continued.
of the British merchants trading with Quebec on
the exports and imports of the Province, 542-543 ;
remarks on trade with Newfoundland, 542-543 ;
trade with Vermont, 542 ; British merchants
trading with Quebec petition for regulations as
proposed for Newfoundland, 542; inconveniences
of colonial navigation acts bearing on the timber and fur trade, notes p. 543.
Trade, regulations in Carleton’s instructions of 1786
re peltry, 559-560 ; Fmlay’s opinion that English
commercial law does not affect the titles or
tenure of lands or the distribution of property,
572 ; the English and the Loyalists desire the
commercial law of England, 572 ; proposal to
regulate the administration of justice in matters
of, 575; opinion of Sydney t h a t Canadians have
right to retain laws guaranteed to them by terms
of capitulation, 586; English traders desire English commercial law in Quebec, 586, 601 ; Mabane’s remarks on trial by jury in commercial
causes, 605 ; suggestions for regulating appeals
in commercial causes, 624; suggestion to improve
the wheat and flour trade, and to establish public
markets, 633; magistrates of Cataraqui make
suggestions relative to trade in the western district, 643; Loyalists ask that importation of lumber from Vermont be prohibited, 645,648; legislatures of the provinces to have the disposition of
the duties accruing from, 673, 683; Carleton’s
suggestions for regulations re, 675 ; remarks on
commerical law for Canada, 691. See also Commerce, and Commerce and Police.
Trade, Indian, plans for remedying abuses in, 71 ;
proposal to keep up military force for security
of, 109,113; license required for, 122, (see also pp.
102, 113) ; regulation of, 145, 223 ; English and
French inhabitants desire extension of limits of
the Province for purposes of, 351, 358 ; regulations in Carleton’s instructions of 1775, 428 ;
plan of regulations for, 436 ; merchants of Quebec object to an ordinance regulating^ 473 ; suggestions for removal of inconveniencies attending, 543. See also Indian Trade.
Trade, Eur, sketch of, 100.
Trade and Fisheries, regulations of 1786, 559-560 ;
see also Fisheries.
Trade and Navigation, instructions to Carleton re,
438 ; colonial and foreign relations, note p. 438 ;
regulations for civil procedure relating to, 443.
See also Navigation.
Traders of Quebec, British, Murray’s recall due to
strained relations with, note p. 167 ; petition the
King for Murray’s dismissal, 168.
Trading posts, of the French, list of, 71 ;, the last
belonging to Canada annexed to Louisiana, 72.
Treaty of Paris, (1763), Erench text of, taken from
photographic reproduction of original, 73; preliminaries of, signed at Fontainebleau, 73, 84 ;
list of treaties forming the basis of, 74, 85 ;
source of English version, note p. 84.
Treaty of Paris, (1783,) text of, 491; source of text in
this volume, note p. 491 ; dispute concerning fulfilmentof 5th and6th articles, npte p. 493; articles
not fulfilled by contracting parties, 690.
Treaty of Utrecht, violation of terms of, re fur
trade and fisheries, 100.
Treby, Capt., in command of British forces quartered a t Trois Rivières, 66.
Trial by J u r y . See Jury, Trial by.
Troops, Gage recommends a detachment of, for
each Indian trading post, 7 1 ; state of, reported by Carleton, 196 ; assistance of, required by Gage, 410, 411 ; difficulty in raising
Canadian regiment, 455, 459, notes p. 461 ;
remarks re billeting of, on the inhabitants, 516.
See also Militia.
Tryon, Governor of New York, 339.
United East India Company, trade of, 445.
United Empire Loyalists. See Loyalists.
United States, by Treaty of Paris (1783) England
acknowledges independence of, 491 ; boundaries
stipulated by Treaty of Paris, (1783), 491, {see p.
690) ; titles of ordinances passed in 1787 and
1788 relative to trade and commerce with,
note 2, p. 496 ; Carleton suggests that instructions be given him as to the policy he is, to
observe in dealing with, note 3, p. 551.
Vaudreuil, Marquis de, references to, 8, 9,10,11,19,
20, 22, 23, 24, 28, 29,123.
Vaudreuil, Marquis de, sends letter to Amherst re
capitulation of Montreal, 8 ; signs articles of
capitulation of Montreal, 20, 29 ; re claims for
lands, note p. 123.
Vermont, difficulties of, with State of New York,
497 ; Haldimand’s account of his negotiations
with, 497 ; remarks on trade with, 542 ; objections concerning trade with. 628, 630, 645, 648.
Vialars, Anthony, member of committee of Quebec
petitioning for an assembly, 341.’
Vice Admiral of Quebec, Murray appointed as, 239.
Walker, Thomas, member of committee of Quebec,
petitioning for an assembly, 340, 341, 413.
Wall, Richard,- signs the articles of the Treaty of
Paris, (1763), 83, 93.
Wearg, Sir Clement, his opinion on the right to
levy taxes, 371, 372.
Wedderburn, Sir Alexander, Solicitor General, references to, 296, 362, 376, 377, 379, 380, 385, 387.
Wedderburn, Sir Alexander. Solicitor General, rereports on the defects in mode of government,
296, (see also p. 302) ; source of text in this volume, note p. 296 ; makes suggestions as to the
limit of authority of council, 297 ; suggests that
the criminal law of England should not be transferred to Canada in its entirety, 300 ; abstract
of regulations proposed by, 302-304; first draught
of Quebec Bill attributed to him. note p. 376 ;
frames second draught of Quebec Bill under
Dartmouth’s instructions, note p. 377 ; his
opinion on creating the legislative council by
letters patent, note p. 380; notes on third
draught of Quebec Bill. 385 ; his view as to
English settlement of Canada, note p. 389.
Weights and Measures, proposals for the regulation
of, 617.
Wells, John, member of committee of Quebec petitioning for an assembly, 341, 351, 413.
Williams, Jenkin, clerk of the council, references
to, 341, 351, 463, 466, 471, 472, 484, 488, 490, 586,
609, 620, 629.
Wills, . See Hillsborough.
Wilmot, Sir John Eardley, Chief Justice of the
Court of Common Pleas, 373.
Wilmot, Montagu, Governor of Nova Scotia. 117,
118, L24 ; report on draught of his commission as
governor of Nova Scotia, 117.
Witnesses, suggestions for the examination of, 250 ;
provisions m ordinance of 1785 for examination
of 532.
Wolfe, General James, issues manifestoes promising protection- to the people, note p. 29.
Workhouse, suggestion that one be provided, 631.
Wright, James, Governor of Georgia, 124.
W r i t of Appeal, clause in ordinance of 1783, i elating to, 490.
W ri ts of Election, regulations concerning, 669, 680,
698, 699, 708.
Writs of Execution, nature of, procedure to be followed in, 468.
Yorke, Attorney-General, C. references to, 174,178,
185, 267.
Yorke, Attorney-General C . makes report on civil
government of Quebec, 174.
734 INDEX
Yorke and De Grey, Attorney and Solicitor-General, referred to, 171, 174, 178, 183, 238, 243, 265,
269, 308, 309, 313, 314, 323, 329.
York and De Grey, report on the civil government
of Quebec, 174.
Yorke, Sir Philip, questions regarding the rights of
assembly of Jamaica referred to him, 371, 372.
6-7 EDWARD VII., A. 1907
Yorke and Yorke, sign commission appointing
Murray as Governor, 132.
Young, Colonel, appointed civil and criminal judge,
note p. 29.
Young, John, merchant of Quebec, 619.