Document Information

Date: 1914
By: Dominion of Canada (Parliament), Arthur Doughty, Duncan McArthur
Citation: Dominion of Canada, Parliament, “Documents Relating to the Constitutional History of Canada 1791-1818” in Sessional Papers (1914).
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TABLE OF CONTENTS

PAGE

INTRODUCTION IX

Order in Council dividing the Province of Quebec into the Provinces of Upper and Lower Canada, August 24, 1791 3

Commission to Lord Dorchester as Governor in Chief of Upper and Lower Canada, September 12, 1791 5

Instructions to Lord Dorchester as Governor in Chief of Lower Canada, September 16, 1791 13

Instructions to Lord Dorchester as Governor in Chief of Upper Canada, September 16, 1791 33

Instructions relating to Trade and Navigation, September 16, 1791 49

Commission to Alured Clarke as Lieutenant Governor of Lower Canada, September 12, 1791 54

Commission to John Graves Simcoe as Lieutenant Governor of Upper Canada, September 12, 1791 55

Proclamation fixing the day for the commencement of the new Constitution, November 18, 1791 55

Simcoe to Dundas, November 19, 1791 57

Report of the Executive Council of Lower Canada respecting the Crown Lands, February 4, 1792 59

Proclamation respecting Crown Lands in the Province of Lower Canada, February 7, 1792 60

Clarke to Dundas, April 28, 1792 62

Opinion of the Solicitor General of Lower Canada on the Constitution of the Court of Appeals, January 80, 1792 63

An ordinance regulating the causes in appeal to the Court of the Governor and Executive Council, February 24, 1792 68

Dundas to Clarke, July 12, 1792 70

Additional Instructions respecting the constitution of the Court of Appeals, Lower Canada, July 12, 1792 71

Clarke to Dundas, July 2, 1792 71

Proclamation dividing the Province of Lower Canada into districts and counties, May 7, 1792 72

Proclamation dividing the Province of Upper Canada into counties, July 16, 1792 77

An Act introducing English Civil Law into Upper Canada, 32 Geo. III , c. I . 83

An Act establishing trial by Jury in Upper Canada, 32 Geo. III , c. II 85

An Act for the appointment of town officers, Upper Canada, 33 Geo. III , c. II 86

An Act regulating local t a x a t i o n and providing for the payment of members of the House of Assembly, Upper Canada, 33 Geo. III , c. III 91

Letters patent erecting the Provinces of Lower Canada and Upper Canada into a Bishop’s See, June 28, 1793 101

Extracts from the Rules and Regulations of the House of Assembly of Lower Canada 105

Suggestions of Lord Dorchester on the Government of Canada 106

Dundas to Dorchester, July 17, 1793 107

Dundas to Clarke, October 3, 1792 109

Plan of a Bill for altering the courts of justice, Lower Canada 111

Monk to Dundas, June 6, 1794 118

Dissent of M. de Lanaudiere from the passing of the Judicature Bill, May 1, 1794 121

The Judicature Act, Lower Canada, 34 Geo. III , c. VI 125

An Act establishing a Court of King’s Bench in Upper Canada, 34 Geo. III , c. I I . 146

An Act establishing District Courts in Upper Canada, 34 Geo. III , o. III 153

Proceedings of the Legislative Assembly, Lower Canada, on the question of privilege. Journal of Assembly, November 27, 1793 162 ” ” December 18, 1793 163 ” ” January 9, 1794 164 ” ” January 10, 1794 165 ” ” January 13, 1794 165

Right to originate legislation inflicting pecuniary penalties, Lower Canada. Journal of Assembly, April 5, 1793 166 ” Legislative Council, April 27, 1793 166 ” Assembly, February 18, 1795 , 167

Dorchester to Dundas, December 31, 1793 168

Dorchester to Dundas, December 31, 1793 170

Dundas to Dorchester, May 11, 1794 171

Warrant for the appointment of honorary members of the Executive Council, June 30, 1794 172

Simcoe to Portland, February 17, 1795 173

Simcoe to Dorchester, March 9, 1795 176

Dorchester to Portland, February 20, 1795 183

Portland to Dorchester, May 27, 1795 185

Portland to Simcoe, September 3, 1795 187

Additional instructions relating to the Indian Department, December 15, 1796 189

Opinion of Jonathan Sewell on the authority of the rectors, church wardens, and vestries of the Church of England, June 10, 1795 189

Opinion of Attorney General Jonathan Sewell on the right to collect tithes, Oct. 1, 1795 191

An Act respecting the eligibility of persons to be elected to the House of Assembly, Upper Canada, 35 Geo. III, c. II 194

Simcoe to Portland, December 21, 1794 196

Simcoe to the Lieutenants of Counties 198

Commission to Lieutenants of counties, Upper Canada, November 2, 1792 200

Simcoe to Portland, January 22, 1796 200

Portland to Simcoe, May 20, 1795 204

Simcoe to Portland, October 30, 1795 206

Portland to Simcoe, March 3, 1796 210

Opinion of Sir William Grant on the right to collect tithes, January 8, 1796 211

Constitution of Executive Council, Upper Canada. Minutes of Executive Council, August 11, 1797 212 ” ” ” ” 12,1797 213

An Act for the better preservation of His Majesty’s Government, Lower Canada. 37 Geo. III c. VI 215

Russell to Portland, November 19, 1797 217

Portland to Russell, January 10, 1798 218

Right of the Legislative Council to amend Bills imposing a Tax. Journal of the House of Assembly, Lower Canada, May 5, 1798 219 ” Legislative Council, Lower Canada, May 8, 1798 220 ” House of Assembly, Lower Canada, May 9, 1798 221

An Act for the division of Upper Ganada into counties, 38 Geo. III, c. V 222

Documents relating to the entry of the Minutes of the Executive Council, Lower Canada. Minutes of the Executive Council, September 20, 1798 227 ” ” ” December 22, 1798 229 ” ” ” March 25, 1799 233

Delegation of the functions of the Lieutenant Governor of Upper Canada. Minutes of the Executive Council, August 22, 1799 236 ” ” ” ” ” 24, 1799 237 ” ” ” September 1, 1799 240

Portland to Milnes,” February 20, 1800 242

(Enclosure) Portland to Duke of York, February 21, 1800 242

Milnes to Portland, May 13, 1800 244

Additional Instructions relating to the Indian Department, July 16, 1800 244

Redistribution Act, Upper Canada, 40 Geo. III , c. III 245

Act for the further introduction of English Criminal Law into Upper Canada, July 4, 40 Geo. III , c. I 246

Milnes to Portland, November 1, 1800 249

Portland to Milnes, January 6, 1801 255

Milnes to Portland, April 16, 1801 257

(Enclosure) Abstract of Act respecting Lods et Ventes 259 ” Protest of Chief Justice Osgoode 262 ” Report of the Attorney General on the protest of Chief Justice Osgoode. 264

Milnes to Portland, May 15, 1801 270

(Enclosure) Report of a Committee of the Executive Council, Lower Canada, May 1, 1801 272

(Enclosure) Protest of Chief Justice Osgoode 273

(Enclosure) Report of a Committee of the Executive Council, May 7, 1801 273

(Enclosure) Report of the Attorney General, May 15, 1801 274

Milnes to Portland, June 12, 1801 278

Osgoode to Ryland, May 25, 1801 280

Portland to Milnes, July 13, 1801 281

Reference to the Attorney and Solicitor General respecting the Court of King’s Bench of Lower Canada, July 22, 1801 282

Repoit of the Attorney and Solicitor General on the constitution of the Court of King’s Ben h, July 30, 1801 283

Ryland to Chief Justice Monk, September 3, 1801 285

Proceedings relating to the expulsion of Charles Boue from the House of Assembly, Lower Canada— House of Assembly, March 31, 1800 285 ” ” April 2, 1800 287 ” ” January 24, 1801 287 ” ” March 20, 1801 288 ” ” February 12, 1802 289 ” ” February 17, 1802 290

House of Assembly, February 23, 1802 290 ” ” February 26, 1802 291 ” ” February 27, 1802 292 ” ” March 22, 1802 292

An Act disqualifying Charles Bouc from being elected to the House of Assembly, Lower Canada April 5, 1802 292

Plan of a Bill erecting a Court of Chancery in Upper Canada 294

Observations on a Bill erecting a Court of Chancery in Upper Canada 298

Order in Council respecting a Court of Chancery for Upper Canada, March 24, 1802 300

Right of the Crown to nominate Public Officers— Journal of the Legislative Assembly, April 20, 1804 301 Report of a conversation between Attorney General Sewell and Monseigneur Plessis on the relation between the Crown and the Roman Catholic Church, April 26, 1805. 304

Petitions from the Eastern Townships for Representation— Minutes of the Executive Council, July 31, 1805 309

Tenth Report of the Spcial Commttee, July 26, 1805 310

Report of the Attorney General of Lower Canada on the means of changing the basis of representation 312

Proclamation conferring the Government of Lower Canada on Thomas Dunn, July 31, 1805 315

An Act respecting the trial of controverted Elections in Upper Canada, 45 Geo. III, c. III 316

Grant to Castlereagh, March 14, 1806 318

Address of the Legislative Assembly to President Grant, March 1, 1806 320

Reply of President Grant to the Address of the House of Assembly 321

Opinion of the Attorney and Solicitor General of Upper Canada on the address of the Legislative Assembly, Mav 12, 1807 321

Observations on the Government of Canada by John Black, October 9, 1806 323

Proceedings relative to the Petition against the election of Justice Thorpe— Journal of the Legislative Assembly, Upper Canada, February 9, 1807 325 ” ” ” ” February 10, 1807 327

Gore to Windham, March 13, 1807 327

Castl reagh to Gore, June 19, 1807 330

Redistribution Act, Upper Canada, 48 Geo. III, c. II 331

An Act regulating the trial of controverted elections, Lower Canada, 48 Geo. III , c. 21 332

Opinion of Sir John Nicholl on the powers of the Bishop of Quebec, April 23, 1808 339

Privilege of the Legislative Assembly, Lower Canada— Journal of the Legislative Assembly, February 16, 1808 342 ” ” ” February 29, 1808 343 ” ” ” March 8, 1808 344

Proceedings relative to the imprisonment of Joseph Wilcocks for contempt of the House of Assembly, Upper Canada— Journal of House of Assembly, February 18, 1808 346 ” ” ” February 20, 1808 347 ” ” ” March 16, 1808 348

Observations relative to the Political state of Lower Canada by Mr. Ryland 348

Report of the disadvantages arising from the election of Judges to the Legislative Assembly, Lower Canada— Journal of House of Assembly, May 10, 1809 350

Proceedings relating to the expulsion of Ezekiel Hart from the House of Assembly, Lower Canada— Journal of House of Assembly, January 29, 1808 351 ” ” ” February 1, 1808 352 ” ” ” February 12, 1808 352 ” ” ” February 17, 1808 353 ” ” ” February 20, 1808 354 ” ” ” April 19, 1808 354 ” ” ” May 5, 1809 355 Minutes of Executive Council, April 19, 1809 356 ” ” ” May 10, 1809 367

Craig to Castlereagh, June 5, 1809 360

Castlereagh to Craig, September 7, 1809 363

Castlereagh to Craig, September 7, 1809 364

Resolutions of the House of Assembly of Lower Canada respecting its privileges— Journals of the Houre of Assembly, February 3, 1810 365

Address of the-House of Assembly of Lower Canada to the King 366 ” ” ” to Sir James Craig 367

Reply of Sir James Craig to the Address of the House of Assembly 367

Bill for the appointment of a Provincial Agent for Lower Canada 369

Proceedings relating to the expulsion of P. A. DeBonne from the House of Assembly, Lower Canada— Journals of House of Assembly, February 24, 1810 370

Speech of Sir James Craig on proroguing Parliament 371

Craig to Liverpool, March 30, 1819 372

Proceedings in the Court of King’s Bench relating to the imprisonment of Pierre Bedard, April 17, 1810 379

Craig to Liverpool, May 1, 1810 387

Observations of Chief Justice Sewell on the union of the Provinces 400

Opinion of Sir V. Gibbs on the proposed changes in the constitution, August 22, 1810 406

Liverpool to Craig, S ptember 12, 1810 407

Liverpool to Craig, September 12, 1810 408

Craig to Ryland, November 9, 1810 411

Opinion of Chief Justice Monk on the power of erecting parishes in Lower Canada, August 10, 1810 413

Proceedings relating to the disallowance of the elections of James Wilson and John Roblin, Upper Canada— Journal of the House of Assembly, February 6, 1810 416 ” ” ” February 12, 1810 417 ” ” ” February 26, 1810 417 ” ” ” March 3, 1810 418 ” ” ” March 7, 1810 419

An Act disqualifying Judges from sitting in the House of Assembly, Lower Canada, 51 Geo III, c. IV 420

Resolutions of the House of Assembly of Lower Canada on the imprisonment of Pierre Bedard— Journal of House of Assembly, December 24, 1810 420

Report of the Executive Council on the imprisonment of Pierre Bedard, April 4, 1811422

Opinion of the Law Officers of the Crown on the right of presentation to Roman Catholic livings, Lower Canada, July 3, 1811 424

Proceedings relative to the right of the Legislative Assembly of Upper Canada to commit to Jail for breach of privilege— Journals of Legislative Council, March 2, 1812 425

Proceedings in the House of Assembly relative to the exercise of the power of imprisonment by the Executive Council, Lower Canada— Journal of House of Assembly, May 11, 1812 428 ” ” ” May 16, 1812 429

Opinion of Chief Justice Monk on the declaration of Martial Law, July 8, 1812 432

Proclamation declaring limited Martial Law, Upper Canada, November 22, 1813 435

Resolution of the House of Assembly of Upper Canada regarding Martial Law, February 19, 1814 435

Drummond to Bathurst, April 5, 1814 436

Opinions of John B. Robinson in the case of Empey vs. Doyle— Robinson to Loring, June 2, 1814 437 ” ” June 28, 1814 438 ” McMahon, November 21, 1814 439

Bathurst to Drummond, August 23, 1814 441

Opinion of Justice Powell on the declaration of Martial Law 441

Resolutions of the House of Assembly, Lower Canada relating to the authority of the Courts of Justice— Journal of Assembly, February 2, 1814 : 443

Heads of Impeachment of Jonathan Sewell 445 ” ” James Monk 450

Address of the House of Assembly to the Prince Regent, February 25, 1814 452 Proceedings in the Provincial Parliament on the Articles of Impeachment— Journal of House of Assembly, February 26, 1814 454 ” ” ” March 3, 1814 455 ” ” ” March 17, 1814 456

Resolutions of the Legislative Council of Lower Canada on the Right of the House of Assembly to appoint a special agent for the Province, February 28, 1814 457

Memorial of the judges of Lower Canada on the subject of the Impeachment of the Chief Justices, February 26, 1814 458

Resolutions of the Legislative Council on the Impeachment of the Chief Justices, March 2, 1814 459

Prevost to Bathurst, March 18, 1814 462

Bathurst to Prevost, July 12, 1814 464

Prevost to Bathurst, September 4, 1814 465

Bathurst to Drummond, July 12, 1815 469

Decision of the Privy Council in the case of the Impeachments, June 29, 1815 470

Bathurst to Drummond, July 12, 1815 472

Resolutions of the House of Assembly on the decision in the case of the Impeachments— Journal of House Of Assembly, February 24, 1816 472

Drummond to Bathurst, February 27, 1816 473

Resolutions of Assembly, Lower Canada, re Constitution of Provincial Courts 478

Constitution of the Court of Appeals, Lower Canada, November 16, 1815 479

Opinion on the Privileges of the House of Assembly and on the casting vote of the Speaker of the Legislative Council, December 30, 1815 480

Proceedings relative to the appointment of a Provincial Agent, Lower Canada— Journal of the House of Assembly, February 18, 1815 484 ” ” ” March 3, 1815 485 ” ” ” March 20, 1815 485

Drummond to Bathurst, March 6, 1816 486

Bathurst to Sherbrooke, May 31, 1816 487

Bathurst to Sherbrooke, June 7, 1816 488

Sherbrooke to Bathurst, July 15, 1816 489

Bathurst to Sherbrooke, September 30, 1816 490

Proposed change of Land Tenure 491

Memorial of John Caldwell, April 5, 1816 491

Bathurst to Drummond, May 4, 1816 492

Cochrane to Chief Justice Sewell, August 3, 1816 492

Report of a Committee of the Executive Council, August 16, 1816 494

Opinion of Chief Justice Sewell on the change of Tenure of Land, August 20, 1816 496

Opinion of Law Officers on change of Tenure of Land, January 22, 1817 498

Sherbrooke to Bathurst, May 20, 1817 500

Bathurst to Sherbrooke, August 31, 1817 501

Second Report of Law Officers on the proposed change of Tenure, August 1, 1817 501

Sherbrooke to Bathurst, March 10, 1817 502

Articles of Impeachment of Justice Foucher— Journals of House of Assembly, Lower Canada, January 25, 1817 504

Proceedings relating to the Impeachment of Justice Foucher— Address of the House of Assembly to Hi’s Royal Highness the Prince Regent 506

Address of the Legislative Council to His Royal Highness the Prince Regent 507

Resolutions of the House of Assembly, March 21, 1817 508

Memorial of Justice Foucher, March 8, 1817 508

Bathurst to Sherbrooke, July 7, 1817 510

Report of the Law Officers on Procedure in Cases of Impeachment. October 22, 1817 512

Separate Opinion of the Attorney General, November 27, 1817 513

Separate Opin’on of the Advocate General, December 1, 1817 514

Draft Commission for the Trial of Justice Foucher, November 26, 1817 518

Opinion of the Law Officers of the Crown on questions submitted by the Executive Council, December 1, 1817 521

Opinion of the Advocate General, December 1, 1817 521

Report of Executive Council on issuing a Commission for trial of Judge Foucher Report of the Judges of the Court of King’s Bench on the trial of Justice Foucher 522

Report of the Judges of the Court of King’s Bench, Montreal, December 29, 1817…. 522

Report of the Justices of the Court of King’s Bench, Quebec, January, 1818 524

Report of the Executive Council on the Trial of Justice Foucher 529

Sherbrooke to Bathurst, January 10, 1818 530

Sherbrooke to Bathurst, January 10, 1818 531

Bathurst to Sherbrooke, April 8, 1818 532

Richmond to Bathurst, May 18, 1819 534

Address of the Legislative Council on the Powers of the House of Assembly, February 26, 1819 534

Bathurst to Richmond, July 10, 1819 536

Act respecting eligibility of persons to be returned to the Legislative Assembly, April 1, 1818 537

Right of House of Assembly to initiate all Money Bills 540

Journal of House of Assembly, Upper Canada, March 12, 1818 540 ” ” ” March 19, 1818 540 ” ” ” March 21, 1818 540 ” ” ” March 23, 1818 542 ” ” ” March 24, 1818 543 ” ” ” March 26, 1818 544 ” ” ” March 27, 1818 547 ” Legislative Council ” March 27, 1818 547 ” ” ” March 30, 1818 547 ” ” ” April 1, 1818 550

Proceedings in the House of Assembly relating to the convention of 1818 551

Petition of Inhabitants of Kingston 552

An Act to prevent certain meetings in the Province of Upper Canada, November 27, 1818 554

Proceedings of the House of Assembly on the Question of Privilege 555

Appointment of Roman Catholic Bishop to the Legislative Council 556

[Page ix]

INTRODUCTION.

This volume is a continuation of the series of Constitutional Documents published by the Archives in 1907. In its preparation the present editors have followed the principle of selection adopted in the first volume according to which the documents were divided into six classes:

I. Terms of Capitulation and Treaties, determining the limits of the colony and the conditions under which it was ceded or held.

II. Royal Proclamations, or British Statutes determining the basis and character of the government to be established and maintained in the colony.

III. Commissions and instructions issued to the various Governors, giving in further detail the system of government and administration to be established in the colony, and the general policy to be followed.

IV. Ordinances and Laws passed by the local legislative body, determining the character and organization of the local system of justice.

V. Special reports of a more or less official character, setting forth the actual conditions of the country from a constitutional point of view and proposing necessary changes in the constitution of the Province.

VI. Miscellaneous papers furnishing the connecting links and general constitutional atmosphere of the central documents of the foregoing classes and consisting of petitions and dbunter petitions of the inhabitants of the province, minor reports from the Governors and officials of the province on issues political and constitutional and the correspondence, official, semi-official and private between the British Secretaries of State and the representatives of the Crown in the colony.

Such a classification is, broadly speaking, applicable to constitutional documents relating to any period of Canadian history. Nevertheless, as the Constitution of Canada has undergone gradual change, it is natural to find a corresponding change in the character of the later documents. Por this reason those included in the present volume differ considerably from the first collection. The period from 1759 ao 1791 was essentially one of preparatory measures and consequently many documents were found belonging to the first three classes. The right of the Crown of Great Britain to the possession of the Provinces was established by Treaty, and the limits of the provinces were defined, though these were subsequently altered as a result of the recognition of the independence of the United States and subsequent negotiations. A definite system of government was established in due course and nominally at least the sys-

[Page x]

tems of law to be applied, in criminal and civil matters had been indicated. Courts of Justice had been organized and an administrative system had been put in operation. The task of the future was the adjustment of the system of government so created to the changing needs and conditions.

The American war of independence, apart from its influence on the attitude of British statemanship towards the government of dependencies acted in a very definite manner upon the development of the Canadian constitution. A sudden and copious stream of immigration introduced new political habits and aspirations. New districts were opened up for settlement; new industrie» were established; new commercial interests were formed and a new political problem was created. The Constitutional Act of 1791 was a well-meant attempt to meet the needs of the moment.

The colony was divided into the separate Provinces of Upper and Lower Canada, and the principle of representation in government was introduced by the creation of an elective House of Assembly for each province. Each also was to have, as a second chamber, a Legislative Council, the members of which, nominated by the Sovereign, were to hold office for life. The executive functions of government in each province were to be performed by a Governor or Lieutenant Governor assisted by an Executive Council also nominated by the Crown. In this volume therefore may be traced the development of two constitutions, similar in their essential features, operating in the midst of two peoples of widely divergent political habits and tendencies.

Such, in the main outlines, was the system under which the two Canadian provinces were governed, not without vicissitudes for practically half a century or from 1792 to 1841.

The boundary line between legislative and executive functions in government is not easily drawn and the history of this period illustrates the growing demands of the legislatures to exercise an effective control over administration. The goal of this movement or tendency was responsible government and only with the attainment of this result was a true political equilibrium established.

The decade following the passing of the Constitutional Act is marked by various measures intended to promote the satisfactory -working of the new system of government. The views of the British Government as to general policy to be followed are to be found in the commission and instructions of Lord Dorchester. An Elective Assembly was a novelty to the majority of the inhabitants of Lower Canada and much attention was therefore given to the procedure necessary in connection therewith.

The majority of the inhabitants of Upper Canada were already familiar with the working of popular institutions and were thus prepared to take advantage of the new constitution, and at an early date many statutes were passed conferring on the inhabitants of Upper Canada rights which have been associated particularly with Anglo-Saxon traditions.

Early in the history of each Province, but first in Upper Canada, Acts were passed establishing a judicial system and the arrangements then made remained in

[Page xi]

force, with inconsiderable modifications, until the union of the provinces. Unfortunately it was not long before dissensions broke out in both provinces, particularly in Lower Canada. In that province there was trouble within the Executive body itself, the subject of dispute being the proper interpretation of the regulations respecting the disposition of waste lands, the members of the Council being almost unanimously opposed to Governor Prescott. It was not long, however, before difference of political sentiment and aim founded all too visibly on difference of race and temperament began to manifest themselves in the Assembly. The friction thus arising between the majority of the Assembly and the Executive is amply illustrated in the documents.

In Lower Canada, owing to the complete absence oí local municipal institutions, the situation was aggravated by the concentration of practically the whole administrative work of the province in the hands of the Government, subject to the criticisms and demands of the Assembly. In Upper Canada municipal institutions were for a long time very rudimentary; but such as they were, they relieved to some extent the provincial government of a certain amount of detail. In Lower Canada, the Executive Council was on the whole more influential than the corresponding body in Upper Canada, where the Lieutenant Governor was always clearly predominant.

The subsequent history of the Constitutional development of Lower Canada to the time of the suspension of the Constitution in February 1837 is concerned chiefly with the efforts of the popular party in the House of Assembly to bring the administration to terms through its control of supply. The government had to 1831 an independent source of revenue through the operation of the Imperial Act 14 Geo. LU, cap. 83. That revenue it had yielded to the Assembly in the hope of obtaining in return a vote of a permanent Civil list, a hope which was disappointed. At an earlier date articles of impeachment had been proposed against Chief Justice Sewell and Chief Justice Monk for the purpose of establishing their responsibility to the House of Assembly as Executive and Administrative Officers. After the Government had parted with the larger part of its independent resources the conflict resolved itself into a question of financial endurance.

While the wheels of government were thus clogged in Lower Canada, the Province of Upper Canada was deprived of one of its main sources of revenue. The ports of entry for Upper Canada as regards sea-borne merchandise, were located within the lower province, and the government of Upper Canada had therefore been under the necessity of making terms with its sister province for the payment at various times of certain portions of the revenue collected at Montreal and Quebec. During the heat of the struggle between the Legislature and the Executive in Lower Canada the agreement for the division of the revenue between the provinces had been allowed to lapse and the Province of Upper Canada found itself faced with the prospect of financial starvation. In these circumstances it became necessary in the year 1822« to request the intervention of the British government. The immediate problem to be solved was the proper division of the revenue, but, from the point of view of the Home authorities, the whole situation had grown so difficult, that the idea was entertained of attempting a larger remedy by a re-union of the two provinces. This, however, was found at the time to be impossible.

[Page xii]

There are, it will be observed, comparatively few documents falling within the first three divisions of the classification given above, the reason being that the passing of the Constitutional Act did away, to a large extent with the necessity for the intervention of the government of Great Britain in the affairs of the Provinces. It therefore follows that the greater part of the documents in this volume belong to either the fourth or sixth division outlined above.

The Act of 1791 gave the provincial Legislatures power to make certain changes in their own constitution. There will therefore be found statutes determining from time to time the electoral divisions of the provinces and regulating the election of members of the House of Assembly. Questions arose as to the eligibility of certain persons to be elected to the House of Assembly and accordingly statutes are found in each province relating to this subject, but chiefly in Lower Canada where jealousy of the Executive was more acute than in the western province. In Upper Canada, as already indicated, the functions of government were to some extent delegated by the legislature to local governing bodies and there is therefore a body of law relating to the formation and powers of municipal corporations. In this connection may be noted the appearance of a new kind of Constitutional Document closely akin to legislative enactment yet of a distinct character. When the courts of justice were called upon to interpret the constitution their judgments must be recognized as a source of constitutional history. The decision of the Court of King’s Bench for the district of Quebec in the case of Pierre Bédard throws much light on the question of the privilege of members of the House of Assembly and on the exercise of the power of imprisonment conferred by the legislature on the Executive Council.

A new species of Constitutional record must also be admitted to the sixth class of documents. The proceedings of the House of Assembly in each province become of the utmost importance in connection with the constitutional struggles which have now passed into history. The claim of the House of Assembly to larger powers of control is set forth in various resolutions. The legislative Council, on the other hand, more closely allied by sentiment with the executive authority steadily upheld the existing system and in its resolutions the position it took is stoutly defended.

Wherever possible the original text has been followed in the documents published m this volume and the notation is the same as followed in the first volume. A new series of documents will be observed, designated, “Duplicate Despatches”. This important series of documents acquired more recently consists of signed copies of the despatches from the Colonial Governors to the Secretary of State,. The originals of these despatches are of course among the Colonial Records in London. The G. series to which frequent reference is made consists of the original despatches from the Colonial Secretary to the Governor or Lieutenant Governor of the Province, and is comparatively complete for the period covered by this volume. The documents copied from the G. series therefore are reproductions of original despatches, as are also the documents taken from the ” Sundry Papers, Secretary of State.” The minutes of the Executive Council of each Province are reproduced wherever possible from the original minute book of Council designated ” State Books “. Documents reproduced from the

[Page xiii]

Q. series are taken from copies which have been carefully compared with the originals in the Public Records Office in London.

The statutes and journals of the Legislative Council and Assembly constitute the chief printed sources. The text of the Statutes has in every case been taken from the original edition published by authority of Parliament, while the minutes of the Legislative Council and the Journals of the House of Assembly of Lower Canada have been reproduced from the proceedings as published by authority of Parliament. The original printed journals of the House of Assembly of Upper Canada, for the early period covered by this volume, were many years ago destroyed by fire but a copy «\ has been made from the manuscript copy of the Journals sent at the close of each session by the Lieutenant Governor to the Colonial Secretary in accordance with the Instructions to the Governor. The proceedings of the House of Assembly of Upper Canada are therefore reproduced from this subsequent copy.

The notes throughout this volume have been written to afford information regarding the documents themselves and the issues with which they are concerned1. As in the first volume their functions may be classified as follows :—

(a) To furnish references to the sources of the documents reproduced, (b) To provide references where possible to all other papers referred to in the documents published, (c) To provide such information as will relate successive documents or series of documents each to the other, (d) To indicate the official position, and supply brief biographical information relating to the various parties between whom the correspondence published takes place or who are prominently mentioned in the course of such correspondence.

ORDER IN COUNCIL DIVIDING THE PROVINCE OE QUEBEC INTO THE PROVINCES OE UPPER AND LOWER CANADA.1

AT THE COURT OF ST. JAMES’S, THE 24TH OF AUGUST, 1791.

PRESENT:

THE KING’S MOST EXCELLENT MAJESTY.

Lord Chamberlain, Lord Frederick Campbell, Lord Grenville, Lord Dover, Mr Secretary Dundas, Mr Chancelr of the Exchequer

Whereas there was this Day read at the Board, a Report2 from the Right Honorable the Lords of the Committee of Council dated the 19th of this Instant in the words following,: vizt.

” Tour Majesty having been pleased by Your Order in Council bearing date the 17th of this Instant, to refer unto this Committee a Letter from the Right Honorable Henry Dundas, One of Your Majesty’s Principal Secretaries of State, tothe Lord President of the Council, transmitting a printed Copy of an Act passed in the last Session of Parliament Entitled “An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty’s Reign, entitled 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;” And also Copy of a Paper presented to Parliament previous to the passing of the said Act, describing the Line proposed to be drawn for dividing the Province of Quebec into Two separate Provinces, agreeable to Your Majesty’s Royal Intention, signified by Message to both Houses of Parliament,3 to be called the Province of Upper Canada and the, Province of Lower Canada, and stating that by Section 48 of the said Act, It is provided, that by reason of the distance of the said Provinces from this Country and of the change to be made by the said Act in the Government thereof, it may be necessary that there should be some Interval of Time between the Notification of the said Act to the said Provinces respectively, and the day of its commencement within the said Provinces respectively, and that it should be lawful for Your Majesty with the Advice of Your 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 day of commencement of the said Aet within the said Provinces respectively, Provided that such Day shall not be later than the 31st of December 1791: The Lords of the Committee in Obedience to Your Majesty’s said Order

1. From the Register of the Privy Council, 31 Geo. III. 2. See Privy Council Register, 31 Geo. III , p. 304. 3. This Message was presented to both Houses of Parliament, February 25, 1791. See Parliamentary History of England, Vol. XXVIII, p. 1271.

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of Reference this Day took the said Letter into their Consideration, together with the Aet of Parliament therein referred to, and likewise Copy of the said Paper describing the Line proposed to be drawn for separating the Province of Upper Canada, and the Province of Lower Canada; And Their Lordships do thereupon agree humbly to Report as Their Opinion to Your Majesty, That it may be adviseable for Your Majesty by Your Order in Council to divide the province of Quebec into Two distinct Provinces by separating the Province of Upper Canada, and the Province of Lower Canada, according to the said Line of Division described in the said paper (Copy of which is hereunto annexed) ; And The Lords of the Committee are further tof Opinion, that it may be adviseable for Your Majesty, by Warrant under Your Boyal Sign Manual to Authorize the Governor or Lieutenant Governor of the Province of Quebec, or the person Administering the Government there, to fix and Declare such Day for the Commencement of the said beforementioned Act within the said Two Provinces of Upper & Lower Canada respectively, as the said Governor or lieutenant Governor of the Province of Quebec, or the person Administering the Government there, shall judge most adviseable, Provided that such day shall not be later, than the 31st Day of December in the present year 1791.”

His Majesty this Day took the said Report into His Royal Consideration, and approving of what is therein proposed, is pleased, by and with the Advice of His Privy Council to Order (as it is hereby Ordered) that the Province of Quebec1 be divided into Two distinct Provinces, to be called the province of Upper Canada, and the province of Lower Canada, by separating the said two Provinces, according to the following Line of Division—vizt

“To commence at a Stone Boundary, on the North Bank of the Lake St. Francis ; At the Cove west of pointe au Bodet, in the limit between the Township of Lancaster and the Seigneurie of New Longueuil running along the said limit in the direction of North Thirty four Degrees ; West to the Westermost Angle of the said Seigneurie of New Longueuil,2 thence along the North western boundary of the Seigneurie of Vaudreuil running North Twenty five Degrees, East until it strikes the Ottawas River, to ascend the said River into the Lake Tomiscanning, and from the head of the said Lake, by a line drawn due North until it strikes the boundary line of Hudsons Bay, including all the Territory to the westward and southward of the said: Line, to the utmost Extent of the Country commonly called or known by the Name of Canada.”3 Whereof the Governor, Lieutenant Governor or Commander in Chief of the Province of Quebec, and all other His Majesty’s Officers in the said Provinces, and all whom it may concern, are to take Notice, and to yield due obedience to His Majesty’s Pleasure hereby signified.

1. For the boundaries of the Province of Quebec see page 51, note 4. 2. A note on the plan of part of the province of Lower Canada made by order of Lord Dorchester, 1794 and 1795, referring to this line of division, says : ” This Order of His Majesty must have been founded on an erroneous map of this part of the country, in which the abovementioned Westerly Angle of the Seigneurie of New Longueuil, and the Southwesterly Angle of the Seigneurie of Vaudreuil were represented as coincident with each other, whereas they are, in reality, many miles distant one from the other.” “The true intent and meaning of His Majesty’s Royal Order appears to be this:—That the boundary, between the said provinces of Lower and “Upper Canada shall commence at the abovementioned stone boundary above Pointe au Beaudette, and shall run along the line which divides the township of Lancaster from the Seigneurie of Hew Longueuil, then along a line to be drawn from the said westerly angle of the Seigneurie of New Longueuil to the southwesterly angle of the Seigneurie of Rigaud (which has been sometimes called the Seigneurie of vaudreuil), thence along the northwesterly boundary of the said Seigneurie of Rigaud until it strikes the Ottawa river (to wit—along the lines AB, BC, and CD, on this map) and thence up the said river, &c.” For this plan see p. 72. 3. The general line of division between Upper and Lower Canada had been indicated by Lord Sydney in his despatch to Dorchester, Sept. 3, 1788. (Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 652 and Canadian Archives, Q. 36—2, p. 476). It had been expressed in the form here given by Lord Dorchester. (Constitutional Documents, p. 656).

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Whereas there was this Day read at the Board, a Report from the Right Honorable the Lords of the Committee of Council, dated the 19th of this Instant, in the words following, vizt

“Your Majesty having been pleased by Your Order in Council &c. &c…………… 1791.”1

His Majesty this Day took the said Report into His Royal consideration, and approving of what is therein proposed, was pleased, by and with the Advice of His Privy Council to Order, that the Province of Quebec be divided into Two distinct Provinces, to be called the Province of Upper Canada, and the Province of Lower Canada, by separating the said Two Provinces according to the Line of Division inserted in the said Order.

And His Majesty is hereby further pleased to Order, that the Right Honorable Henry Dundas, One of His Majesty’s Principal Secretaries of State, do prepare a Warrant2 to be passed under His Majesty’s Royal Sign Manuel to Authorize the Governor or Lieutenant Governor of the Province of Quebec or the Person administering the Government there to fix and Declare such day as They shall judge most adviseable for the Commencement within the Province of Upper Canada, and the Province of Lower Canada respectively, of the said Act passed in the last Session of Parliament entitled ” An Act to repeal certain parts of An Act passed in the Fourteenth year of His Majesty’s Reign, entitled 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”—Provided that such Day, so to be fixed and declared for the Commencement of the said Act, within the said Two provinces respectively, shall not be later, than the Thirty first Day of December, One thousand seven hundred and ninety one.

COMMISSION TO LORD DORCHESTER AS GOVERNOR OF UPPER AND LOWER CANADA.3

Guy Lord Dorchester Commission George the Third by Grace of God of Great Britain ffrance and Ireland King Defender of the ffaith and so forth To Our Right Trusty and Welbeloved Guy Lord Dorchester Knight of the most honorable Order of the Bath Greeting Whereas wee did by our Letters Patent under our Great Seal of Great Britain bearing date the twenty second Day of April in the Twenty sixth year of our Reign Constitute and appoint you Guy Lord Dorchester (then Sir Guy Carlton) to be our Captain General and Governor in Chief in and over our Province of Quebec in America comprehending all our Territories Islands and Counties in North America then bounded as in our saidi recited Letters Patent was mentioned and expressed4 Now Know ye that wee have revoked and determined and by these Presents

1.1791. The Report of Aug. 19, given above is here repeated. 2. For the Warrant, see Canadian Archives, Q. 59 B, p. 199. 3. From the Patent Roll 31, Geo. III , Part 10, No. 4. Copy in the Canadian Archives, M. 229, p. 54. 4. For the commission to Lord Dorchester of 1786 with the definition of the boundary of the Province of Quebec, see the Canadian Archives, M. 229, p. 51. The boundary was originally defined in the Proclamation of 1763 but was subsequently modified by the Quebec Act and the Treaty of Paris of 1783. Since then, however, circumstances had arisen which made the definition of the boundaries of the new provinces a very delicate matter. Owing to the nonfulfillment of its treaty obligations by the United States, Britain still retained posts south of the boundary line and was not at-this time prepared to commit herself regarding their disposal. (See Constitutional Documents, 1759-1791, Shortt & Doughty, 1907, pp. 667, note, and 690). By the Jay-Grenville Treaty of 1794, Britain agreed to withdraw from all the po«sts within the territory of the United States. By the Quebec Act the Labrador Coast, formerly annexed Newfoundland, was included within the province of Quebec. An Imperial Act of 1809 (49 Geo. III , ch. 27) restored to Newfoundland the Labrador coast and the adjacent islands, except the Islands of Madeleine. A further Act of 1825 (6 Geo. IV, ch. 59) provided

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do revoke and Determine the said recited Letters Patent and every Clause Article or thing therein contained And Whereas wee have thought fit by our Order made in our Privy Council on the Nineteenth day of August One thousand seven hundred and ninety one1 to divide our said Province of Quebec: into two separate Provinces to be called the Province of Upper Canada and the Province of Lower Canada by .a Line to commence at a Stone Boundary on the North Bank of the Lake Saint ffrancis at the Cove West of Point Au Baudet in the Limit between the Township of Lancaster and the Seigneurie of New Longueuil running along the said Limit in the Direction of North thirty four Degrees West to the Westermost Angle of the said Seigneurie of New Longueuil thence along the North Western Boundary of the Seigneurie of Vaudreuil running North twenty five Degrees East until it strikes the Ottowas River to ascend the said River into the Lake Tommiseanning and from the head of the said Lake by a dine drawn due North until it strikes the Boundary Line of Hudsons Bay the Province of Upper Canada to Comprehend all such Lands Territories and Islands lying to the Westward of the said Line of Division as were part of our said Province of Quebec and the Province of Lower Canada to comprehend all such Lands Territories and Lands (Islands?)2 lying to the Eastward of the said Line of Division as were part of our said province of Quebec And Whereas by an Act passed in the present year of our Reign 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 Quebec in North America and to make further Provision for the Government of the said Province3] further Provision is thereby made for the Good Government and Prosperity of our said Provinces of Upper Canada and Lower Canada flwther Know ye that wee reposing especial Trust and Confidence in the Prudence Courage and Loyalty of you the said Guy Lord Dorchester of our especial Grace certain Knowledge and mere Motion have thought fit to constitute and Appoint you the said Guy Lord Dorchester to be our Captain General and Governor in Chief of our said Province of Upper Canada and of our said Province of Lower Canada respectively bounded as hereinbefore described And wee do hereby require and command you to do and execute all things in duo manner that shall belong to your said Command and the Trust wee have reposed in you according to the several Powers Provisions and Directions granted or appointed you by Virtue of this Present Commission and by Virtue of the above recited Act passed in the Present year of Our Reign and of such Instructions and Authorities herewith given unto you or which may from time to time he given you in respect to the said Provinces or either of them under our Signet or Sign Manual or by Our Order in Our Privy Council and according to such Laws as shall hereafter be made and established within our said Provinces of Upper Canada and Lower Canada under and by Virtue of such Powers Provisions and Discretions (Directions) as aforesaid And our Will and Pleasure is that you the said Guy Lord Dorchester as soon as may be after the Publication of these our Letters Patent do take the Oaths appointed to be taken by an Act passed in the first year of the Reign of King George the first intituled [An Act 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 Hope’s of the Pretended Prince of Wales and his open and secret Abettors] as altered and explained by an Act Passed in the Sixth year of our

that “so much of the said coast (Labrador) as lies to the eastward of a line to be drawn due north and south from the bay or harbour of Anse Sablón, inclusive, as far as the fifty-second degree of north latitude, with the islands of Anticosti and all other islands adjacent to such part as last aforesaid of the coast of Labrador, shall be and the same are hereby re-annexed to and made a part of the said province of Lower Canada.” This has continued as the boundary between Labrador and Quebec. 1. See p. 3. 2. Throughout the Commission the words inserted in brackets are added in the margin of the copy in the Canadian Archives. 3. For a copy of the Constitutional Act of 1791, see Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 694.

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Reign Intituled An Act 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 Intituled [An Act for the Improvement of the Union of the two Kingdoms as after the times therein limited requires the Delivery of certain Lists and Copies therein mentioned to Persons indicted of Treason or Misprision of Treason] as also that you make and subscribe the Declaration mentioned in An Act of Parliament made in the twenty fifth year of the Reign of King Charles the Second Intituled [An Act for Preventing Dangers which may happen from Popish Rescuants (Recusants ?)] And likewise that you take the usual Oath for the due Execution of the Office and Trust of Oui Captain General and Governor in Chief of our said Province of Upper Callada and our said Province of Lower Canada and for the due and impartial Administration of Justice and further that you take the Oath required to be taken by Governors of Plantations to do their utmost that the several Laws relating to Trade and the Plantations be observed all which said Oaths and Declarations the Executive Councils of our said Provinces of Upper Canada and Lower Canada respectively or any three or more of them (the?) Members of either of them have hereby full Power and Authority and are required to tender and Administer unto you and in your absence to our Lieutenant Governor if there be any upon the place All which being duly Performed you the said Guy Lord Dorchester or in your absence our Lieutenant Governors of the said Provinces or Persons Administering the respective Governments therein shall administer unto each of the Members of such Executive Councils as aforesaid the Oaths mentioned in the said first recited Act of Parliament altered as aforesaid as also cause them to make and subscribe the aforementioned Declaration and Administer to them the Oath for the due Execution of their Places and Trusts and yon shall also administer the above mentioned Oaths and Declarations to our Lieutenant Governors if there be any within the said Provinces wherein you shall reside And Whereas wee may find it convenient for our Service that certain Offices or Places within our said Provinces of Upper Canada and Lower Canada should be filled by Our Subjects who may have become such by being Naturalized by an Act of the British Parliament or by the Conquest and Cession of the Province of Canada and who may profess the Religion of the Church of Rome It is therefore our Will and Pleasure that in all Cases where such Persons shall or may be admitted into any such Office or Place the Oath Prescribed in and by An Act of Parliament passed in the fourteenth year of our Reign Intituled [An Act for making more effectual Provision for the Government of the Province of Quebec in North America] and also the usual Oath for the due Execution of their Places and Trusts respectively shall be duly Administered to them and wee do further Give and Grant unto you the said Guy Lord Dorchester full Power and Authority from time to time hereafter by yourselves (or) by any other to be Authorized by you in that behalf to Administer and give the Oaths mentioned in the aforesaid Acts to all and every such Person and Persons as shall at any time or times pass into our said Provinces of Upper Canada and Lower Canada or shall be resident or binding (abiding?) there And we do hereby Authorize and empower you to Keep and Use the Public Seas (Seals?) of our Said Provinces of Upper Canada and Lower Canada for Sealing all things whatsoever that shall pass the Seal of our said Provinces respectively and in Case of your Absence from either of our said Provinces to deliver the same into the Charge and Custody of our Lieutenant Governor or Person Administering the Government there for the Purposes before mentioned until wee shall think fit to Authorize you by an Instrument under our Royal Sign Manual to commit the Custody thereof to such Person or Person (Persons?) as may be appointed by us for that purpose And Whereas by the said recited Act passed in the present year of Our Reign it is enacted that there shall be within each of our said Provinces of Upper Canada and Lower Canada respectively a Legislative Council and an Assembly to

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be composed and Constituted in the manner in the said Act described1 and that in the said Provinces wee our Heirs and Successors shall have Power during the Continuance of the said Act by and with the advice and Consent of the Legislative Councils and Assemblies to make Laws for the Peace Welfare and good Government of the said Provinces respectively such Laws not being repugnant to the said Act and that all such Laws being passed by the said Legislative Councils and Assemblies and being assented to by us our Heirs and Successors or assented to in our name by such person as wee our Heirs and Successors shall from time to time appoint to be Governor or Lieutenant Governor of the said Provinces respectively or by such Person as wee our Heirs or Successors shall from time to time appoint to Administer the Government within the same are by the said Act declared to be by virtue of and under the Authority of the said Act valid and binding to all Intents and Purposes whatsoever within the said Provinces wee do hereby Give and Grant unto you the said Guy Lord Dorchester full Power and Authority to issue Writs of Sumons and Election and to call together to (the?) Legislative Councils and Assemblie of our said Provinces of Upper Canada and Lower Canada in such manner as is in the said Act Authorized and directed Subject to the Provisions and regulations therein contained in that behalf and to such Instructions and Authorities as shall herewith at any time hereafter be given unto you by us in that behalf under our Signet and Sign Manual or by our order in our Privy Council And further for the Purpose of Electing the Members of the Assemblies of our said Provinces of Upper Canada and Lower Canada Wee do hereby Give and Grant unto you the said Guy Lord Dorchester full Power and Authority to Issue a Proclamation2 dividing our said Provinces of Upper Canada and Lower Canada into Districts or Counties or Circles and Towns or Townships and appointing the Limits thereof and Declaring and appointing the Number by Representatives to be chosen by each of such Districts or Counties or Circles and Tows (Towns?) or Townships respectively within our said Provinces of Upper Canada and Lower Canada and from time to time to nominate and appoint proper Persons to execute the Office of returning Officer in each of the said Districts or Counties or Circles and Towns or Townships respectively Subjects to the Provisions Directions and Regulations of the said last mentioned Act in that behalf and to such Instructions and Authorities as shall be herewith or at any time hereafter given by us unto you in that behalf under our Signet and Sign Manual or by Our Order in Our Privy Council and Wee do hereby give and Grant unto you the said Guy Lord Dorchester full Power and Authority to fix the time and Place of holding the Elections for the said Districts or Counties or Circles and Towns or Townships within our said Provinces of Upper Canada and Lower Canada and the times and Places of holding the first and every other Session of the Legislative Councils and Assemblies of our said Provinces of Upper Canada and Lower Canada and to Prorogue the same from time to time and to dissolve the same by Proclamations or otherwise Subject nevertheless to the Regulations Provisions and Directions of the said last mentioned Act and to such Instructions and Authorities as in respect of the Premises may be hereby or at any time hereafter given by us unto you under our Signet and Sign Manual or by our Order (in our?) Privy Council Wee do by these Presents Authorize and empower you from time to time with the advice of the Executive Councils appointed by us for the affairs of our said Provinces of Upper Canada and Lower Canada respectively from time to time to form Constitute and Erect Townships or Parishes within our said Provinces and also to Constitute and Erect within every Township or Parish •which now is (or?) hereafter may be formed constituted or erected within our said Provinces 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 Seal of our said Provinces respectively to endow every such

1. See the Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 695. 2. See pages 72 and 77.

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Parsonage or Rectory with so much or such part of the Lands so allotted and appropriated as by the said last recited Act is in that behalf mentioned in respect of any Lands within such Township or Parish which shah have been granted subsequent to the Commencement of the same 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 us in respect of any Lands granted by us before the Commencement of the last mentioned Act as you with the advice of our said Executive Council of such Province shall judge to be expedient under the then existing Circumstances of such Township or Parish Subject nevertheless to such Instructions touching the Premises as shall or may be given you by us under our Signet and Sign Manual or by Our Order in Our Privy Council and Wee do also by these Presents authorize and impower you to present Subject to the Provisions in the above mentioned Act in that behalf to every such Parsonage or Rectory and to every Church Chapel or other Ecclesiastical Benefice according to the Establishment of the Church of England within either of our said Provinces an Incumbent or Minister of the Church of 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 of Incumbents or Ministers of the said Parsonages Rectories Ohnrches Chapels or Benefices or any of them respectively and wee do hereby Give and Grant unto you the said Guy Lord Dorchester by yourself or by your Captains and Commanders by you to be Authorized full power and Authority to levy Arm Muster Command and employ all Persons whatsoever residing within our said Provinces of Upper Canada and Lower Canada and as occasion shall serve to March from one Place to another or to Embark them for the resisting and withstanding of all Enemies Pirates and Rebels both at Land and at Sea and to transport such fforces to any of our Plantations in America if necessity shall require for the Defence of the same against the Invasion or Attempts of any of our Enemies and such Enemies Pirates and Rebels (if there shall be occasion) to pursue and Prosecute in or out of the limits of our said Provinces and Plantations or any of them and if it shall so please God to vanquish apprehend and take them and being taken according to Law to put to death or Keep and Preserve them alive at your Discretion and to execute Marshal Law in time of Invasion or at other times when by Law it may be executed and to do and execute all and every other things (thing?) or things which to our Captain General and Governor in Chief doth or ought of Right to belong and wee do hereby give and grant unto you full Power and Authority Subject Nevertheless to such Instructions as wee may at any time be pleased to give unto you under our Signet and Sign Manual or by our Order in our Privy Council with the advise of the Executive Council appointed by us for our Provinces of Upper Canada and Lower Canada respectively to erect raise and Build in our said Provinces such and so many fforts and Platforms Castles and ffortifications as you by the advice aforesaid shall judge necessary and the same or any of them to fortify and furnish with Ordinance Ammunition and all Sorts of Arms fit and necessary for the security and defence of our said Provinces and by the advice aforesaid the same again or any of them or (to ?) demolish or Dismantle as may be most convenient and for as much &s Divers Mutinies and Disorders may happen by Persons shipped and employed at Sea during the time of War and to the end that such as shall be shipped and employed at Sea during the time of War may be better Governed and ordered wee do hereby give and grant unto you the said Guy Lord Dorchester full Power and Authority to constitute and appoint Captains Lieutenants Masters of Ships and other Commanders and Officers and to grant unto such Captains Lieutenants Masters of Ships and other Commanders and Officers Commissions to execute the Law Martial during the time of War according to the Directions of an Act passed in the twenty second year of the Reign of Our late Royal Grandfather Intituled [An Act for amending explaining and reducing into one Act of Parliament the Laws relating to the

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Government of his Majesty’s Ships Vessels and fforces by Sea] as the same is altered by an Act passed in the nineteenth year of our Reign Intituled [An Act to explain and amend an Act made in the twenty second year of the Reigm of his late Majesty King George the Second Intituled An Act for amending explaining and reducing into one Act of Parliament the Laws relating to the Government of his Majesty’s Ships Vessels and fforces by Sea] and to use such Proceedings Authorities Punishments and Executions upon any Offender or Offenders who shall be Mutinous Seditious disorderly or any way unruly either at Sea or during the time of their abode or residence in any of the Ports Harbours or Bays of our said Provinces of Upper Canada and Lower Canada as the Case shall be. found to require according to the Martial Law and the said Directions during the time of War as aforesaid provided that nothing herein contained shall be construed to the enabling you or any by your Authority to hold plea or have any Jurisdiction of any Offence Cause Matter or thing committed or done upon the High Sea or within any of the Havens Rivers or Creeks of either of our said Provinces under your Government by Any Captain Commander Lieutenant Master Officer Seaman Soldier or Person whatsoever who shall be in our actual Service and pay in or on board any of our Ships of War or other Vessels acting by immediate Commission or Warrant from our Commissions for executing the Office of High Admiral or from our High Admiral of Great Britain for the time being under the Seal of our Admiralty but that such Captain Commander Lieutenant Mastef Officer Seaman Soldier or other Person so offending shall be left to be proceeded against and tried as their Officers shall require either by Commission under our Great Seal of Great Britain as the Statute of the twenty eight of Henry the eighth directs or by Commission from ours (our) said Commissioners for executing the Office of our High Admiral or from our High Admiral of Great Britain for the time being according to the aforementioned Act intituled [An Act for explaining amending and reducing into one Act of Parliament the Laws relating to the Government of His Majesty’s Ships Vessels and forces by Sea] as the same is altered by an Act passed in the nineteenth year of our Reign Intituled [An Act to explain and amend an Act made in the twenty second year of His late Majesty King George the second Intituled An Act for amending explaining and reducing into one-Act of Parliament the Laws relating to the Government of His Majesty’s Ships Vessels and fforces by Sea] Provided nevertheless that all Disorders and Misdeameanors committed on shore by any Captain Commander Lieutenant Master Officer Seaman Soldier or other Person whatsoever belonging to any of our Ships of War or other Vessels acting by immediate Commission or Warrant from our said Commissioners for executing the Office of our High Admiral or from our High Admiral of Great Britain for 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 Offenders (Offences?) and Misdemeanours shall be committed on shore notwithstanding such Offenders 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 said Commissioners for executing the Office of High Admiral or our High Admiral of our Great Britain for the time being as aforesaid so as he shall not receive any protection for the avoiding of Justice for such Offences committed on Shore from, any pretence of his being employed in our Service at Sea you are to give Warrants under your Hand for the issuing of Public Monies for all Public Services and Wee do particularly require you to take care that regular accounts of all Receipts and Payments be duly Kept and that there be transmitted every half year or oftener Copies thereof properly Audited to our Commissioners of our Treasury or to our High Treasurer for the time being to the end that wee may be satisfied of the Right and due application of the Revenue of our said Provinces with the Probability of the Increase or Dimunation (Diminution?) of it under every Head

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and Article thereof and wee do further give to you the said Guy Lord Dorchester full Power and Authority when and so often as any Bill which has been passed by the Legislative Counsel and by the House of Assembly of either of our said Provinces of Upper Canada or Lower Canada shall be presented unto you for our Royal Assent to declare according to your Discretion but Subject Nevertheless to the provisions contained on (in?) the said recited Act passed in the present year of Our Reign and Subject also to such Instructions Directions and Authorities as.wee shall herewith or at any time hereafter give unto you in that behalf under Our Signet and Sign Manual or By an Order in our Privy Council that you Assent to such Bill in our Name or that you withhold our Assent from such Bill or that you reserve such Bill for the Signification of our Royal Pleasure thereon and wee do by these presents give and Grant unto you the said Guy Lord Dorchester full power and Authority with the advice of the Executive Councils appointed by us for the affairs of our said Provinces of Upper Canada and Lower Canada but Subject nevertheless to the provisions of the said Act and to such further powers Authorities and Instructions as we may herewith or at any time hereafter give to you in that behalf under our Signet and Sign Manual or by our Order in our Privy Council to erect Constitute and appoint such Court or Courts of Judicature or Public Justice within our said Provinces as you and they shall think fit and necessary for the hearing and determining of all Causes as well Criminal as Civil according to Law and Equity and for awarding Execution thereupon with all reasonable and necessary powers Authorities ffees and privileges belonging thereunto as also to appoint and Commission fit persons in the several parts of your said Government to administer the several Oaths herein before mentioned as also to tender and administer the aforesaid Declaration unto such persons belonging to the said Courts as shall be obliged to take the same and wee do hereby authorize and empower you to constitute and appoint Judges and in Cases requisite Commissioners of Oyer and Terminer Justices of the Peace and other necessary Officers and Ministers in our said Provinces of Upper Canada and Lower Canada for the better administration of Justice and putting the Laws in execution and to administer or cause to be administered unto them such Oath or Oaths as are usually taken for due execution and performance of Offices and places and for the clearing of truth in Judicial Causes and wee do hereby give and grant unto you full power and authority where you shall see cause or shall judge any Offender or Offenders in Criminal Matters or for any ffines or fforfeitures due unto us fit Objects of our Mercy to pardon all such Offenders and to remit all such Offences ffines and fforfeitures * Treason and Wilful Murder only excepted in which cases you shall likewise have power upon extraordinary Occasions to grant reprieves to the offenders until and to the Intent that our Royal Pleasure may be Known therein and wee do likewise give and Grant unto you full Power and Authority with the advice of our Executive Councils for the Affairs of our said “Provinces of Upper Canada and Lower Canada to grant Lands within the said Provinces respectively which said Grants are to pass and be sealed with our Seal of such Province and being entered upon Record by such Officer or Officers as shall be appointed thereunto shall be good and effectual in Law against us Our Heirs and Successors Provided nevertheless that no Grants or Leases of any of the Trading Ports in our said Provinces shall under Colour of this Authority be made to any Person or Persons whatsoever until our Pleasure therein shall be signified to you and wee do hereby give you the said Guy Lord Dorchester full Power to order and appoint ffairs Marts and Markets as also such and so many Ports Harbours Bays Havens and other Places for the Convenience and Security of Shipping and for the better Loading and unloading of Goods and Merchandizes within our said Provinces of Upper Canada and Lower Canada as by you with the Advice of Our Executive Council for Our said Provinces respectively shall be thought fit and necessary for the same. And Wee do hereby require and command all our Officers

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and Ministers Civil and Military and all other Inhabitants of our said Provinces of Upper Canada and Lower Canada to be obedient aiding and assisting unto you the said Guy Lord Dorchester in the Execution of this Our Commission and of the powers and Authorities herein contained and in Case of your Death or Absence out of Our said Province of Upper Canada or Our province of Lower Canada1 to be obedient aiding and assisting unto such Persons (as) shall be appointed by us to be our Lieutenant Governor or Commander in Chief of such Province respectively To Whom Wee do therefore by these presents in Case of your Death or Absence from such Province give and grant all and singular the powers and Authorities herein granted to be by him executed and enjoyed during our Pleasure or until your Arrival within such Province respectively And if upon your Death or Absence out of our said Provinces of Upper Canada or Lower Canada or either of them there be no Person upon the Place Commissioned and appointed by Us to be Our Lieutenant Governor or appointed by Us to Administer Our Government within the said Province2 in case of the Death or Absence of you and our Lieutenant Governor of the said Province Our Will and Pleasure is that the oldest Member of our Executive Council for Our said Province of Upper Canada or Our said Province of Lower Canada being a naturel born Subject of Great Britain Ireland or Our Colonies and Plantations and Professing the Protestant Religion who shall then be residing within such of Our said Provinces8 Shall take upon him the Administration of the Government and execute our said Commission and Instructions and the several Powers and Authorities therein contained and to all Intents and Purposes as other Our Governors Lieutenant Governors or persons administering Our Governments until Our further pleasure be known therein Nevertheless as it may happen in Case of the Death Absence Removal or Suspension of our Lieutenant Governor of either of the Provinces above mentioned that the Succession of such oldest member as aforesaid to the Administration of the Government may not be for the good of Our Service and the Welfare of such Province Wee do hereby authorize and impower you in Case of such Death Absence or Removal if it shall appear to you that it would not be expedient for such oldest Councillor in Succession to administer the Government to* nominate and appoint by a Commission under the Seal of such Province you being yourself at the Time of such Appointment Personally resident in it any Member of the Executive Council by Us appointed for Our said Province of Upper Canada or Our Province of Lower Canada respectively whom you shall judge the most proper and fitting to be Our Lieutenant Governor thereof such Person being a Natural born Subject of Great Britain Ireland or of Our Colonies and Plantations and professing the protestant Religion until Our pleasure thereupon shall be Known and you are to transmit to us by the first Opportunity through one of our Principal Secretaries of State your Reasons for such Appointment And Wee do hereby Give and Grant unto you the said Guy Lord Dorchester full Power and Authority in Case any Person or Persons Commissioned or appointed by Us to any Office or Offices within Our said Provinces of Upper Canada or Lower Canada from which they may be liable to be removed by Us shall in your Opinion be unfit to continue in Our Service to suspend or remove such person or persons from their several Employments without stating to him or them your Reasons for such Suspension or Removal And Wee do hereby declare ordain and appoint that you the said Guy Lord Dorchester shall and may hold execute and enjoy the Office and place of our Captain General and Governor in Chief in and over Our said Provinces of

1. In Sherbrooke’s and subsequent Commissions the following clause is here inserted: ” or in case from any special Circumstances we shall judge it expedient by Warrant under the Sign Manual or otherwise to provide for the Civil Administration of the government notwithstanding your actual presence in either of our said provinces.” 2. Drummond’s Commission (1814) directs that the government devolve on the senior officer commanding the forces for the time being. 3. Prevost’s and Sherbrooke’s Commissions add here “(the Chief Justice and Bishop for the time being excepted).”

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Upper Canada and Lower Canada with all its Rights Members and Appurts whatsoever together with all and singular the Powers and Authorities hereby granted unto you for and during Our Will and Pleasure.

In Witness &c. Witness &c this Twelfth Day of September One thousand seven hundred and ninety one.

BY THE KING HIMSELF.

INSTRUCTIONS TO LORD DORCHESTER AS GOVERNOR OF LOWER CANADA.1

[L. S.]

GEORGE R. C. O. Instructions, Quebec, 1786-1791.

INSTRUCTIONS to Our Right Trusty and Welbeloved Guy, Lord Dorchester, Knight of the Most Honourable Order of the Bath, Our Captain General and Governor in Chief in and over Our Province of Lower Canada; Given at Our Court at St. James’s, the Sixteenth day of September, 1791, In the Thirty First Year of Our Reign.

1st. With these Our Instructions you will receive Our Commission2 under Our Great Seal of Great Britain constituting you Our Captain General and Governor in Chief in and over Our Provinces of Upper Canada and Lower Canada, bounded as in Our said Commission is particularly expressed. In the Execution therefore of so much of the Office and Trust We have reposed in you as relates to Our Province of Lower Canada, you are to take upon you the Administration of the Government of the said Province, and to do and execute all things belonging to your Command according to the several Powers and Authorities of Our said Commission under our Great Seal of Great Britain and of the Act passed in the present year of Our Reign therein recited, and of these Our Instructions to you and according to such further Powers and Instructions as you shall at any time hereafter receive under Our Signet and Sign Manual, or by Our Order in Our Privy Council.

2. And you are with all due Solemnity, before the Members of Our Executive Council, to cause Our said Commission to be read and published, which being done, you shall then take and also administer to each of the Members of Our said executive Council, the Oaths mentioned in an Act passed in the first Year of His late Majesty King George the first, intituled—”An Act 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.” As altered and explained by an Act passed in the Sixth Year of Our Reign, intituled, “An Act 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” intituled ” An Act for the Improvement of the Union of the two Kingdoms, as after the time therein limited requires the delivery of certain Lists therein mentioned to Persons indicted for High Treason, or Misprision of Treason” and also make and subscribe, and cause the Members of the said Executive Council to make and subscribe the Declaration mentioned in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second, intituled ” An Act for preventing the dangers which may happen from Popish Recusants.” and you and every of them are likewise to take an Oath for the due Execution of your and their Places and Trusts with regard to your and their equal and impartial

1. From a contemporary copy in the Canadian Archives, G. 181, p. 1. 2. See p. 5.

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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 duly observed.

3. You shall also administer or cause to be administered the Oaths appointed in the aforesaid recited Acts, to all Persons, except as hereafter mentioned, that shall be appointed to hold or exercise any Office, Place of Trust or Profit in Our said Province, previous to their entering on the Execution of the Duties of such Office ;” and you shall also cause them to make and subscribe the Declaration mentioned in the aforesaid Act of the Twenty fifth Year of the Reign of King Charles the Second—But in cases whereany such Office, Place of Trust or Profit within Our said Province of Lower Canada shall be conferred on any of Our Subjects who may profess the Religion of the Church of Rome, you shall, so often as any such Person shall or may be admitted into any Such Office, Place of Trust or Profit, administer or cause to be administered to him the Oath prescribed in and by an Act of Parliament passed in the 14th Year of Our Reign, intituled “An Act for making more effectual Provision for the Province of Quebec in North America ” and also the usual Oath for the Execution of such Office, Place of Trust or Profit in lieu of all other Tests and Oaths whatsoever.

4. Whereas We have thought fit that there should be an executive Couneil for assisting you or Our Lieutenant Governor or Person administering the Government of Our said Province of Lower Canada for the time being; We do hereby by these Presents nominate and appoint the undermentioned Persons to be of the executive Council of Our said Province, vizt.: William Smith,1 Paul Roc de St. Ours,2 Hugh Finlay,3 Francois Baby,4 Thomas Dunn,5 Joseph de Longueuil,8 Adam Mabane,7 Pierre Panet8 and Adam Lymburner9 Esqrs.—And Whereas, by an Ordinance10 passed in the Province of Quebec, the Governor and Council of the said Province were constituted a Court of Civil Jurisdiction for hearing and determining Appeals in certain Oases therein specified; And Whereas by an Act passed in the present Year of Our Reign, it is declared, that the Governor, Lieutenant Governor, or Person administering the Gov-

1. Prior to the War of Independence, William Smith had been Chief Justice of the Province of New York. He supported the Loyalist cause and chose to return to England with Guy Carleton in 1783. In 1786, at the timet of Carleton’s return to Quebec, Smith was appointed Chief Justice of the province and a Member of the Legislative Council. He had taken a prominent part in the discussions on the Constitutional Bill and had in this connection proposed a federation of all the British North American Provinces. Subsequently he became the first Chief Justice of the Province of Lower Canada and the first President of the Legislative Council. He died, Dec. 6. 1793. 2. P. R. de St. Ours had been a Member of the Legislative Council since 1775. 3. Hugh Finlay had served on the various councils of the province since 1768. In addition he held from the British government the position of Deputy Postmaster General for the North American Provinces. 4. François Baby had been appointed to the Legislative Council of Quebec in 1777. He was also one of the most trusted ofiicers of the Canadian militia. 5. Thomas Dunn had been a member of the governing body of Quebec since Governor Murray’s first council in 1764. In 1775 he was appointed to the Legislative Council and in the following year was selected by Carleton as a member of the first Privy Council of the province. He was at this time also a judge of the Court of Common Pleas for the districts of Quebeo, Three Rivers and Montreal. 6. Joseph de Longueuil had been a member of the Legislative Council since 1778. 7. Adam Mabane was a member of the first Executive Council of Quebec. In 1766 he incurred the displeasure of Carleton and was suspended from office. He was appointed to the Legislative Council in 1775 and to the Privy Council in the following year. He never took office, however, as a member of the Executive Council of Lower Canada, his death occurring Jan. 3, 1792. 8. Though not previously holding executive office, Pierre Panet had been a justice of the Court of Common Pleas for the district of Quebec since 1783. 9. Adam Lymburner was one of the leading merchants of Quebec. As agent of the British inhabitants he had appeared before the British parliament in opposition to the division of the province. He did not present himself for admission to the Executive Council until 1799, when he was refused the oath of office by virtue of the 7th Article of the Royal Instructions. 10. Ordinance of February 25, 1777. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 464.

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ernment of the said Province, together with such executive Council, shall be a Court of Civil Jurisdiction within Our said Province 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 have been before the passing of the above recited Act have been heard and determined by the Governor and Council of Quebec.1—In order therefore to carry the said Act into Execution, Our Will and Pleasure- is that you do in all civil Causes, on application being made to you for that purpose, permit and allow Appeals from any of the Courts of Common Law in Our said Province, unto you and the Executive Council of the said Province of Lower Cauadfe in manner prescribed by the above mentioned Act; and you are for that purpose to issue a Writ as nearly in the accustomed manner before the passing of the above mentioned Act in respect of such Appeals as the case will admit, returnable before Yourself and the Executive Council of the said Province, who are to proceed to hear and determine such Appeal Wherein such of the said Executive Council as shall be at that time Judges of the Court from whence such Appeal shall be so made to you Our Captain General, and to Our said executive 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 and such executive 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 such Appeal be made within Fourteen days after Sentence, and good Security be given by the Appellant, that he will effectually prosecute the same, and answer the condemnation, as also pay such costs and Damages as shall be awarded by Us, in ease the Sentence of you and the Executive 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 matters or thing where the Rights in future may be bound, in all such Cases you and the said Executive Council are to admit an Appeal to Us in Our Privy Council, though the immediate Sum or Value appealed for be of a less value; and it is our further Will and Pleasure, that in all Oases where by your Instructions you are to admit Appeals unto Us in Our Privy Council, Execution shall be suspended until the final Determination of such Appeal, unless good and sufficient Security be given by the Appellee to make ampie restitution of all that the Appellant 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 ordered to the Appellant—You and Our Executive Council are also to permit appeals unto Us in Our Privy Council, in all Oases of Fines imposed for Misdemeanours, provided the Fines so imposed amount to or exceed the Sum of 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 sueh Fine was imposed in your Government shall be confirmed.

5. And that We may be always informed of the names and Characters of Persons fit to supply the Vacancies which may happen in Our said Executive Council, You are in ease of any Vacancy in the said Council to transmit to Us by one of Our principal Secretaries of State, the Names and characters of sueh. three Persons, Inhabitants of Our said Province of Lower Canada whom you shall esteem the best qualified for fulfilling the Trust of sueh Executive Councillor.

6. And in the Choice and Selection of such Persons proposed to fill such

1. See Article XXXIV of the Constitutional Act of 1791.

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Vacancy in Our said Executive Council, as also of the Chief Officers, Judges Assistants, Justices of the Peace and other Officers of Justice, you are always to take Care that they be men of good Life, well affected to Our Government, and of abilities suitable to their Employments.

7. And Whereas we are sensible, that effectual Care ought to be taken to obligie the Members of Our Executive Council to a due Attendance; it is Our Will and Pleasure in order to prevent the many inconveniences which may happen for want of a Quorum of the Council to transact.—Business as occasion may require, that if any of the Members of Our said Executive Council residing in Our said Province, shall hereafter willingly absent themselves from the Province, and continue absent above the Space of Six Months together, without leave from you first obtained under your hand and Seal; or shall remain absent for the Space of one Year without Our Leave given them under Our Royal Signature, their Places in the said Executive Council shall immediately thereupon become void—And We do hereby will and require you, that this Our Royal Pleasure be signified to the several ‘Members of Our said Executive Council, and that it be entered in the Council Books of the said Province as a standing Rule.1

8. And to the end that Our said Executive Council may be assisting to you in all affairs relating to Our Service, you are to communicate to them such and so many of these Our Instructions, wherein their advice is mentioned to be requisite; and likewise all such others from time to time as you shall find convenient for Our Service to be imparted to them.

9. You are also to permit the Members of Our said Executive Council to have and enjoy Freedom of Debate and Vote in all Affairs of Public Concern which may be debated in the said executive Council.

10. And Whereas We have thought fit to declare by Our Order in Council bearing date the 24a1 day of August last, that the Division of Our Province of Quebec shall commence on the day of December next,2 and that from thenceforth the Lands and Territories therein described shall be two separate Provinces x and be called the Province of Upper Canada and the Province of Lower Canada; you are, as soon as may be after such Division shall take place, to summon by an Instrument under the Great Seal of Our Province of Lower Canada, to the Legislative Council of that Province, the following Persons whom We hereby authorize and direct you so to summon to Our said Legislative Council of Lower Canada; viz* William Smith, J. G. Chaussigros ‘de Lery, Hugh Finlay, Picotté de Belestre, Thomas Dunn, Paul Roc de St. Ours, Edward Harrison, Francis Baby, John Collins, Joseph de Longueuil, Adam Mabane, Charles de Lanaudiere, George Pownall, R. Amable de Boucherville, and John Frazer, Esqre.3—

11. And Whereas by the aforesaid recited Act passed in the present Year of Our Reign, it is provided that the Seats of the Members of Our Legislative Council shall become vacant in certain Cases mentioned in the said Act,4 It is Our Will and

1. In 1799, a case arose to which this article was applied. On July 18th, Mr. Adam Lymburner presented himself to the board and requested that the usual oaths be administered to him. Mr. Lymburner admitted that he had secured no leave of absence and it was accordingly resolved unanimously by the Council “that the case of A. Lymburner, Esq., gomes within the Provision of the 7th Royal Instruction and as he, the said A. Lymburner, Esq., hath not produced any further title or Authority, he has no right to demand that the said Oaths be administered to him or to a Seat at the Board.” (See Minutes of Executive Council, State Book B, Lower Canada, page 493.) 2. The date on which- the Constitutional Act should come into effect was not determined by the Order in Council of August 24, but was later fixed as December 26, 1791. For the proclamation declaring the act to be in force, see page 55. 3. All members of the new council had served on the former Legislative Council. John Collins held the office of Deputy Surveyor of Lands. George Pownall, nephew of Governor Pownall, was Secretary and Registrar of the Province of Quebec. 4. See Article VIIÍ. of the Constitutional Act, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 696.

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Pleasure, that if any Member of Our said Legislative Council shall at any time leave Our said Province and reside out of the same, you shall report the same to Us by the first opportunity through one of Our Principal Secretaries of State—And you are also in like manner to report whether such member of the said council is absent by your permission, or by the Permission of Our Lieutenant Governor or Commander in Chief of the said Province for the time being; and you are also in like manner, to report, if it shall come to your knowledge, that any sueh Member shall at any time take or have taken any Oath of Allegiance or Obedience to any foreign Prince or Power, or shall be attainted for treason in any court of Law within any of Our Dominions, that We may take measures thereupon as We shall think fit— And you are to take especial Care that the several Provisions of the said Act respecting the several Cases in which Persons may or may not be entitled to receive Writs of Summons to the said Legislative Council, or to hold their Places therein shall be duly executed.

12. And for the Execution of so much of the Powers vested in you by Our said Commission, and by virtue of the said Act, as relates to the declaring that you assent in Our Name to Bills passed by the Legislative Council and House of Assembly, or that you withold Our Assent therefrom, or that you reserve such Bills for the Signification of Our Royal Pleasure thereon, It is Our Will and Pleasure that you do carefully observe the following Rules, Directions, and Instructions, vizt—

That the Style of enacting all the said Laws, Statutes and Ordinances, shall be fey Us, Our Heirs, or Successors, by and with the Advice and Consent of the Legislative Council and Assembly of Our Province of Lower Canada, constituted and assembled by virtue of, and under the Authority of an Act passed in the Parliament of Great Britain, entitled, ” 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;” and that no Bill in any other Form shall be assented to by you in Our Name.

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 Laws

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 in case any Law or ordinance respecting private Property, shall be passed without a saving of the right of Us, Our Heirs and Successors and of all Persons or Bodies Politic or Corporate; except such as are mentioned in the said Law or Ordinance, You shall declare that you withold Our Assent from the same; and if any such Law or Ordinance shall be past without such Saving you shall in every such Case declare that you reserve the same for the signification of Our Royal Pleasure thereon.

That in all Laws or Ordinances for 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 Public Uses of the said Province, and the Support of the Government thereof, as by the said Law shall be directed, and that a Clause be inserted declaring that the due Application of such* Money pursuant to the Directions of such Law shall be accounted for unto Us through Our commissioners of Our Treasury for the time being in such manner and form as We shall direct.

13. And Whereas We have by Our said Commission1 given you full Power and

1. See Dorchester’s commission, page 8.

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Authority subject as therein is specified, and to these Our Instructions in that behalf to issue Writs of Summons and Election, and to call together the Legislative Council and Assembly of Our said Province of Lower Canada, and for the purpose of electing the Members of the Assembly of Our said Province of Lower Canada have also given you full power and Authority to issue a Proclamation dividing Our said Province of Lower Canada into Districts or Counties, or Circles, and Towns or Townships, and declaring and appointing the number of Representatives to be chosen by each of such Districts or Counties, or Circles and Towns or Townships; now, Our Will and Pleasure is, that you shall issue such Proclamation as soon as may be, allowing nevertheless a reasonable time between the issuing thereof and the time of issuing the Writs of Summons and Election above mentioned.1

14. That all Laws assented to by you in Our name, or reserved for the Signification of Our Pleasure thereon, shall, when transmitted by you, be fairly abstracted in the Margins, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is introductory to a New Law, declaratory of a former Law, or does repeal a Law then before in being ; And you are also to transmit in the fullest manner the Reasons and occasion for proposing such Laws, together with fair copies of the Journals and Minutes of the Proceedings of the said Legislative Council and Assembly, which you are to require from the Clerks or other proper Officers in that behalf, of the said Legislative Council and Assembly.

15. And Whereas in the said Act it is provided that in certain Cases, Acts passed by the Legislative Council and Assembly of the Province shall previous to any Signification of Our assent thereto, be laid before both Houses of Our Parliament of Great Britain;2 And, Whereas it is also provided in the said Act, that in certain Cases Provision may be made by Acts of the Legislative Council and Assembly of the Province assented to by Us Our Heirs or Successors (thereby reserving the power of giving such Assent to Us, Our Heirs, or Successors only)3 you are to take especial Care, that in every such Case you are to declare that you reserve such Bills for the Signification of Our Pleasure thereon; And you will likewise reserve for such signification every other Bill which you shall consider to be of an extraordinary or unusual Nature, or requiring Our special consideration and decision thereupon, particularly sueh as may affect the Property, Credit, or dealings of such of Our Subjects as are not usually resident within the said Province, or whereby duties shall be laid upon British or Irish Ships ping, or upon the Product or manufactures of Great Britain or Ireland.

16. And Whereas Laws have formerly been enacted in several of Our Plantations in America, for 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 assent in Our name to any Law that shall be enacted for a less time than frsvo years, except in cases of imminent necessity or immediate temporary expediency; and you shall not declare Our Assent to any Law containing Provisions which shall have been disallowed by Us, 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 of State, of the reasons and necessity for passing sueh Law.

17. Whereas We have thought fit by Our Orders in Our Privy Council to disallow certain Laws passed in some of Our Colonies and Plantations in America, for conferring the Privileges of Naturalization on Persons being Aliens,4 and for divorcing Posons who have been legally joined together in Holy Marriage—And Whereas Acts have been passed in others of Our said Colonies, to enable Persons who are Our liege Subjects by Birth or Naturalization, to hold and inherit Lands, Tenements, and Real

1. For the Proclamation see page 72. 2. Article XLII of the Constitutional Act made special provision for the reservation of all acts touching the religious establishment of the province. (See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 705.) 3. See Article XXXX. of the Constitutional Act. 4. See page 107, note 1.

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Estates, altho’ such Lands, Tenements, and real Estates had been originally granted to, or purchased by Aliens antecedent to Naturalization—It is Our Will and Pleasure, thai you do not upon any pretence whatsoever give your Assent to any Bill or Bills that may hereafter be passed by the Legislative Council and Assembly of the Province under your Government for the Naturalization of Aliens, nor for the Divorce of Persons joined together in Holy Marriage nor for establishing a Title in any Lands, Tenements, and real Estates in Our said Province originally granted to or purchased by Aliens antecedent to Naturalization.

18. You are to give Warrants under your hand for the issuing of Public monies for all Publie Services, and We do particularly require you to take care that regular Accounts of all Receipts and Payments of Public Monies be duly kept, that the same from time to time be audited by Our executive Council, and that Copies thereof attested by you be transmitted every half year or oftener if there should be occasion to Our commissioners of Qur Treasury or to Our High Treasurer for the time being, and Duplicates thereof by the next conveyance, in which Accounts, shall be specified every particular Sum raised or disposed of, to the end that We may take such measures as We may deem necessary for the Examination of the said Accounts, and that We may be satisfied of the right and due Application of the Revenue of Our said Province of Lower Canada, and with the Probability of the increase of1 diminution of it under every head and Article thereof.

19. Whereas by an Act of Our Parliament of Great Britain passed in the fourth year of Our Reign, intituled “An Act to prevent Paper Bills of Credit hereafter to be issued in any of His Majesty’s Colonies or Plantations in America, from being declared to be a legal Tender in payments of Money, and to prevent the legal Tender of such Bills as are now subsisting, from being prolonged beyond the Periods limited for calling in and sinking the same,” it is enacted that no Paper Bills or Bills of Credit should be created or issued by any Act, Order, Resolution, or Vote of Assembly in any of Our Colonies or Plantations in America, to be a legal tender in payment, and that any such Act, Order, Resolution or Vote for creating or issuing sueh Paper Bills or Bills of Credit, or for prolonging the legal tender of any such then subsisting and current in any of the said colonies or Plantations, should be null and void—And Whereas by another Act of our said Parliament passed in the Thirteenth Year of Our Reign, intituled, “An Act to explain and amend the above recited Act passed in the Fourth Year of Our Reign as aforesaid ” it is enacted that any Certificates, Notes, Bills, or Debentures, which shall or may be voluntarily accepted by the Creditors of the Public within any of the Colonies in America as a Security for the Payment of what is due and owing to the said Public Creditors, may be made and enacted by the General Assemblies of the said Colonies respectively to be a tender to the Public Treasurers in the said Colonies, for the Discharge of any Duties, Taxes, orother Debts whatever due to, and payable at or in the said Public Treasuries of thesaid Colonies, in virtue of Laws passed within the same, and in no other Case Whatsoever— It is Our Will and Pleasure that you do in all things conform yourself to the Provisions of the said Recited Acts both with respect to the not assenting to any Bills which may be presented to you for the purpose of issuing or creating Paper Bills or Bills of Credit, to be a legal Tender in payment, and the assenting to any Bills by which Certificates, Notes or Debentures which may be voluntarily accepted in payment by the Public Creditors shall be made a legal Tender to the Treasury for Taxes, Duties, and other Payments to the Public Treasury.

20. You shall not remit any Fines or Forfeitures whatsoever above the Sum of Ten Pounds, nor dispose of any Forfeitures whatsoever, until upon signifying unto the Commissioners of Our Treasury or Our High Treasurer for the time being, the nature of the Offence, and the occasion of such Fines and Forfeitures, with the particular

1. The text reads “of” where “or” is obviously intended.

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Sums or Value thereof (which you are to do with all Speed) You shall have received Our Directions thereon, but you may in the mean time suspend the payment of the said Finest and Forfeitures.

21. And you are on every occasion to transmit to Us by one of Our principal Secretaries of State with all convenient Speed, a particular Account of all New Establishments of Jurisdictions, Courts, Offices and Officers, Powers, Authorities, Fees, and Privileges granted and settled within Our said Province of Lower Canada; as likewise an Account of all the Expences (if any) attending the Establishment of the said Courts and Offices.

22. It is Our further Will and Pleasure that all Commissions to be granted by you to any Person or Persons, to be Judge, Justice of the Peace, or other necessary Offices be granted during Pleasure only.

23. You are not to suspend any of the Members of Our said Executive Council, or to suspend or displace any of the Judges, Justices, Sheriffs, or other Officers or Ministeïs within Our said Province of Lower Canada without good and sufficient Cause, and in case or1 such Suspension or Removal, you are forthwith to transmit your reasons Jor the same to one of Our Principal Secretaries of State.

24. And Whereas frequent complaints have 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 everywhere 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 dutes without delay or partiality.

25. You are to take care that no Court of Judicature be adjourned but upon good Grounds, as also that no Orders of any Court of Judicature be entered or allowed which shall not be first read and approved of by the Justices in open Court, which Rule you are in like manner to see observed with relation to all Proceedings of Our Executive Council of Lower Canada, and that all orders there made, be first read and approved in such Council before they are entered upon the Council Books.

26. You are to take Care that all Writs within Our said Province of Lower Canada be issued in Our Name.

27. You shall take care with the Advice and Assistance of our Executive Council, that such Prisons as may at any time be necessary, be erected, and that the same or any other already erected be kept in such a Condition as may effectually secure the Prisoners which now are or hereafter may be confined therein.

28. You shall not suffer any Person to execute more Offices than one by Deputy.

29. You shall not by Colour of any Power or Authority hereby or otherwise gffnted or mentioned to be granted unto you, take upon you to give, grant, or dispose ot any Place or Office 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 Vacancy of any sueh Office or Place, or upon the Suspension of any such officer by you aa aforesaid, put in any fit Persons to officiate in the Interval, till you shall have represented the matter unto Us through one of Our principal Secretaries of State, which you are to do by the first opportunity, and till the said Office or Place is disposed oí by Us, Our Heirs or Successors, under the great Seal of this Kingdom, or until some Person shall be appointed thereunto under Our Signet and Sign Manual, or until Our further Directions be given therein; and it is Our express Will and Pleasure, that you

1. Evidently “of” should be substituted for “or.”

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do give reasonable Support unto the Patent Officers in the Enjoyment of their legal and established Fees, Rights, Privileges, and Emoluments, according to the true Intent and meaning of their respective Patents.

30. 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 on Juries, 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 Cases of absolute necessity, or serving any Parochial Offices which may hinder them in the Execution of their Duties.

31. And Whereas nothing can more effectually tend to the speedy settling of Our said Province of Lower Canada, the Security of the Property of our Subjects and the Advancement of our Revenue, than the disposal of such Lands as are Our Property upon reasonable terms, and the establishing of a regular and proper method of Proceeding, with respect to the passing of Grants of such Lands.—It is therefore Our Will and Pleasure, that all and every Person and Persons who shall apply for any Grant or Grants of Land, shall previous to their obtaining the same, make it appear that they are in a condition to cultivate and improve the same, and in case you shall, upon a consideration of the Circumstances of the Person or Persons applying for sueh Grants, think it aoviseable to pass the same, you are in such Case to cause a Warrant to be drawn up directetd to the Surveyor General or other 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 farthest from the date thereof, with a Plot or Description of the Lands so surveyed thereunto annexed, and when the Warrant shall be so 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 therein—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, and a Docket thereof be also entered in Our Auditor’s Office, Copies of all which Entries shall be returned regularly by the proper Officer to Our Commissioners of Our Treasury.

32. And for the further Encouragement of Our Subjects, It is Our Will and Pleasure that the Lands to be granted by you as aforesaid, shall be laid out in Townships, and that each inland Township shall, as nearly as Circumstances shall admit, c-msist of Ten Miles Square; and such as shall be situated upon a navigable River or Water shall have a front of Nine Miles, and be twelve Miles in Depth, and shall be subdivided in such manner as may be found most adviseable for the’accommodation of the Settlers, and for making the several Reservations for Public Uses and particularly for the Support of the Protestant Clergy agreably to the above recited Act passed in the present Year of Our Reign.1

33. And Whereas great Inconveniences have heretofore arisen in many of the Colonies in America from the granting excessive Quantities of Land to particular Persons who have never cultivated or settled the same, and have thereby prevented others more industrious from improving such Lands—In order therefore to prevent the like inconveniences in future, it is Our Will and Pleasure that you observe the following Directions and Regulations in all Grants to be made by you as aforesaid; vizt

That no Town Lot shall be granted to any one Person being Master or Mistress of a Family in any Township to be laid out as aforesaid which shall contain more than one Acre of Land.

1 See Article XXXVI. of the Constitutional Act. Constitutional Documents, 1758-1791, Shortt and Doughty, 1907, p. 703.

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That no Park Lot shall be granted to any one Person being Master or Mistress of a Family in any Township so to be laid out, which shall contain more than Twenty four Acres.

That no Farm Lot shall be granted to any one Person being Master or Mistress of a Family in any Township so to be laid out, which shall contain more than 200 Acres.

It is Our Will and Pleasure, and you are hereby allowed and permitted to grant unto every such Person or Persons sueh further Quantity of Land as they may desire, not exceeding one Thousand Acres over and above what may have heretofore been granted to them, and in all Grants of Land to be made by you as aforesaid, you are to take care that due regard be had to the quality and comparative Value of the different parts of Land comprized within any Township, so that each Grantee may have as nearly as may be a proportionable quantity of Lands of such different Quality and comparative value, 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 such Tract do not extend alongthe Banks of any River, but into the main Land, that thereby’the said Grantees may have each a convenient Share of what accomodation’ the said River may afford for navigation or otherwise.

34. And as a further Encouragement to Our Subjects who shall become Settlers as afore’said, It is Our Will and Pleasure that the said Townships and the respective Allotments within the same, together with the Lands to be reserved as aforesaid, shall be run and laid out by Our Surveyor General of Lands for the said Province, or some skilful Person authorized by him for that purpose, which Surveys together with the Warrants and Grants for the respective Allotments shall be made out for and delivered to the several Grantees free of any Expence or Fees whatsoeveî other than such as may be payable to the different Officers according to the Table of Fees already established upon Grants of Land made in the said Province.

35. And in order to prevent any Persons disaffected to Us and Our Government from becoming Settlers in Our said Province of Lower Canada, It is Our Will and Pleasure that no Warrants for surveying Lands be granted by you or the Lieutenant- Governor or Person administering the Government for the time being, unless the Person or Persons applying for the same, do, at the time of making such application, besides taking the usual Oaths directed by Law, also make and subscribe the following Declaration in your or his presence, or in the presence of such Person or Persons AS shall by you or him be appointed for that purpose ; vizt

” I , A: B : do promise and declare that I will maintain & defend to the utmost of my Power the Authority of the King in His Parliament as the Supreme Legislature of this Province.”

36. Whereas the reserving such Bodies of Land within Our Province of Lower Ganada, where there are considerable Growths of Timber fit for the use of Our Royal Navy, is a matter of the utmost importance to Our Service—It is Our Will and Pleasure that no Grants whatever be made of Lands within any District or Tract in Our said Province of Lower Canada until Our Surveyor General of Woods or his Deputy lawfullv appointed shall have surveyed the same and marked out as reservations to Us, Our Heirs, and Successors such parts thereof as shall be found to contain any considerable growth of masting or other Timber fit for the use of Our Royal Navy, and more especially upon the Rivers, and you are hereby instructed to direct Our Surveyor General of Lands in Our said Province from time to time with all due diligence to compleat the Surveys and mark out the Reservations as aforesaid in the most convenient parts of Our said Province; and you are from time to time to report the number, extent, and Situation of such Reservation, and you are further to direct Our Surveyor General not to certify any Plots of Land ordered and Surveyed for any Person or Persons whatever, in order that Grants may be made out for the same, until it shall appear to him by a Certificate under the hand of Our said

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Surveyor of Woods or his Deputy, that the Land so to be granted is not part of or included in any District marked out as a Reservation for Us, Our Heirs and Successors as aforesaid for the purpose herein before mentioned, and in order to prevent any deceit or fraud from being committed by the Persons applying for Lands in this respect; It is Our Will and Pleasure, that’in all Grants to be hereafter made for Lands within Our said Province of Lower Canada, the following Proviso and exception be imiserted vizt “and provided also that no part of the Parcel or Tract of Land hereby granted to the said and his Heirs be within any Reservation made and marked for’Us, Our Heirs, and Successors by Our Surveyor General of Woods, or his lawful Deputy, in which Case, this Our Grant for such part of the Land hereby given and granted to the said and his Heirs forever as aforesaid, and which shall upon a Survey thereof being made, be found with any such Reservation, shall be null and void, and of non Effect,’any thing herein contained to the contrary notwithstanding.”

37. 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 within Our said Province of Lower Canada in manner prescribed in and by the said Act passed in the present Year of Our Reign—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 the said Terms and Conditions respecting the granting 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 conveniences for Trade and Navigation.1

38. 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 passing Grants of Lands in conformity to the said Act passed in the present year of Our Reign, be entered upon record for the Information and Satisfaction of all Parties whatever that may be concerned therein.2

39. And Whereas it hath been represented unto Us that many parts of the Province under your Government are particularly adapted to the Growth and Culture of Hemp and Flax, It is therefore Our Will and Pleasure, that in all Surveys for Settlement, the Surveyor be directed to report whether there are any or what quantity of Lands contained within such Survey fit for the Production of Hemp & Flax.

40. And Whereas it hath been represented to Us, that several Parts of Our Province of Lower Canada have been found to abound with Coals, It is Our Will and Pleasure that in all Grants of Land to be made by you a Clause be inserted, reserving! to Us Our Heirs, and Successors all Coals, and also all Mines of Gold, Silver, Copper, Tin, Iron and Lead, which shall be discovered upon sueh Lands.

41. You shall cause a Survey to be made of all the considerable Landing Places and Harbours in Our said Province, in case the same shall not have already been done, and report to Us by one of Our Principal Secretaries of State, how far any Fortifications be necessary for the Security and Advantage of the said Province.

42. And Whereas it appears from the Representations of Our late Governor of the District of Trois Rivières, that the Iron Works at S*. Maurice in that District are of Creat 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 Iron Works was procured; or which shall appear to be necessary or convenient for that. Establishment either in respect to a free passage in the River St. 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

1. For the Proclamation and papers relating to it see page 60. 2. For a discussion of the interpretation of this article, see the Papers relative to the entry of the Minutes, of the Executive Council, Lower Canada, page 227 et seq.

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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.

43. Whereas the Establishment of proper Regulations in matters of Ecclesiastical Concern is an Object of very great Importance, it will be your indispensible Duty to take Care that no Arrangements in regard thereto be made, but such as may give full satisfaction to Our New Subjects in every point in which they have a right to any Indulgence on that head, always remembering that it is a Toleration of the free Exercise of the Religion of the Church of Rome only to which they are entitled, but not to the Powers and Privileges of it as an established Church, that being a Preference which belongs only to the Protestant Church of England.

44. Upon these Principles therefore, and to the end that Our just Supremacy in all matters Ecclesiastical as well as civil may have it’s due Seope and Influences; It is Our Will and Pleasure First, That all Appeals to or Correspondence with any Foreign Ecclesiastical Jurisdiction of what nature or kind soever, be absolutely forbidden under very severs Penalties.

2ndly. That no Episcopal or Vicarial Powers be exercised within Our Said Province by any Person professing the Religion of the Church of Rome, but such only as are essentially and indispensably necessary to the free Exercise of the Romish Religion, and in those Cases, not without a License and Permission from you under the Seal of Our said Province for and during Our Will and Pleasure, and under such other Limitations and Restrictions as may correspond with the Spirit and Provisions ni the Act of Parliament of the 14th Year of Our Reign, ” for making more effectual Provision for the Government of the Province of Quebec ;” and no Person whatsoever is to have holy Orders conferred upon him, or to have the Cure of Souls, without a License for that purpose first had and obtained from you.

3rdly. That no Person professing the Religion of the Church of Rome, be allowed to fill any Ecclesiastical Benefice, or to have or enjoy any of the Rights or Profits belonging thereto, who is not a Canadian by Birth (such only excepted as are now in possession of any such Benefice) and who is not appointed thereto by Us, or by or under Our Authority, and that all Right or Claim of Right in any other Person whatever to nominate, present, or appoint to any vacant Benefice, other than such as may lay Claim to the Patronage of Benefices as a Civil Right, be absolutely abolished, no Person to hold more than one Benefice, or at least not more than can reasonably be served by one and the same Incumbent.

4thly. That no Person whatever professing the Religion of the Church of Rome be appointed Incumbent of any Parish in which the Majority of the Inhabitants shall solicit the Appointment of a Protestant Minister; In such Case, the Incumbent shall be a Protestant, and entitled to all Tythes payable within such Parish : But nevertheless, the Roman Catholics may have the use of the Church for the free Exercise of their Religion at such times as may not interfere with the Religious Worship of the Protestants; And in like manner the Protestant Inhabitants in every Parish where the Majority of Parishioners are Roman Catholics, shall notwithstanding have the use of the Church for the Exercise of their Religion at such times as may not interfere with the Religious Worship of the Roman Catholics.

5thly. That no Incumbent professing the Religion of the Church of Rome eppointed to any Parish, shall be entitled to receive any Tythes for Lands or Possessions occupied by a Protestant; but such Tithes as shall be received by such Persons as ycu shall appoint, and shall be reserved in the hands of Our Receiver General as aforesaid for the Support of a Protestant Clergy in Our Said Province, to be actually resident within the same, and not otherwise, according to such Directions as you shaS receive from Us in that behalf, and in like manner all growing Rents and Profits of a

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vacant Benefice during such Vacancy be reserved for, and applied to the like Uses.

6thly. That all persons professing the Religion of the Church of Rome, who are already possessed of, or may hereafter be appointed to any Ecclesiastical Benefice, or who may be licensed to exercise any power or authority m respect thereto, do take and Subscribe before you in Council, or before such Person as you shall appoint to administer the same, the Oath required to be taken and subscribed by the aforesaid Act of Parliament, passed in the Fourteenth Year of Our Reign, intituled An Act for “making more effectual Provision for the Government of the Province of Quebec m “North America.”

7thly. That all Incumbents of Parishes professing the Romish Religion not being under the Ecclesiastical Jurisdiction of the Bishop of Nova Scotia, shall hold their respective Benefices during their good Behaviour, subject however, in case of any conviction for criminal Offences, or upon due Proof of seditious Attempts to disturb the Peace and tranquility of Our Government to be. deprived or suspended by you.1

8thly. That such Ecclesiastics as may think fit to enter into the holy State of Matrimony, shall be released from all Penalties to which they may have been subjected in such Cases by any Authority of the See of Rome.

9thly. That Freedom of the Burial of the Dead in the Churches and Church yards be allowed indiscriminately to every Christian Persuasion.

10thly. That the Royal Family be prayed for in all churches and Places of holy Worship in such manner and Form as is used in this Kingdom, and that Our Arms and Insignia be put up, not only in all such Churches and Places of holy Worship, but also in all Courts of Justice; and that the Arms of France be taken down in every such Church or Court where they may at present remain.

11thly. That the Society of Romish Priests called the Seminaries of Quebec and Montreal shall continue to possess and occupy their houses of Residence, and all other Houses and Lands to which they were lawfully entitled on the 13th of September 1759, and it shall be lawful for those Societies to fill up vacancies, and admit new Members according to the Rules of their Foundations, and to educate Youth in order to qualify them for the Service of Parochial Cures as they shall become vacant.—It is nevertheless Our Will and Pleasure, that not only those Seminaries, but all other Religious Communities, so long as the same shall continue, be subject to Visitation by you Our Governor, or such other Person or Persons as you shall appoint for that purpose, and also subject to sueh Rules and Regulations as you shall, with the advice and Consent of Our Executive Council think fit to establish and appoint.

12thly. It is also Our Will and Pleasure that all other Religious Seminaries and Communities (that of the Jesuits only excepted) do for the present, and until We »an be more fully informed of the true state of them, and how far they are or are not essential to the free Exercise of the Religion of the Church of Rome, as allowed withia Our said Province, remain upon their present Establishment, but you are not to allow the Admission of any new Members into any of the said Societies or Communities (the Religious Communities of Women only excepted) without Our express Orders for that purpose: That the Society of Jesuits be Suppressed or dissolved and no longer continued as a Body Corporate or Politic, and all their Rights, Possessions, and Property shall be vested in Us for sueh Purposes as We may hereafter think fit to direct and appoint; But We think fit to declare Our Royal Intention to be, that the present members of the said Society as established at Quebec shall be allowed sufficient Stipends and Provisions during their natural Lives, that all Missionaries amongst the Indians, whether established under the Authority of, or appointed by the Jesuits, er by any other Ecclesiastical Authority of the Romish Church, be withdrawn by Degrees, and at such times, and in such manner as shall be satisfactory to the said

1. See the report of a conversation between Mgr. Plessis and Attorney General Sewell, page 304.

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Indians, and consistent with the public Safety, and Protestant Missionaries appointed in their places—That all Ecclesiastical Persons whatsoever of the Church of Rome be inhibited upon Pain of Deprivation, from influencing any Person in the making of a Will, from inveigling Protestants to become Papists, or from tampering with them in matters of Religion, and the Romish Priests be forbidden to inveigh in their Sermons against the Religion of the Church of England.

45. Whereas, We did by Our Oommissiion1 under the Great Seal of Great Britain, bearing date the 1st day of August, 1787, appoint the Right Rev. Father in God Charles Inglis Doctor in Divinity, to be Bishop of the Province of Nova Scotia, and thereby give to him and his Successors in the said See, Jurisdiction Spiritual and Ecclesiastical, in and throughout the said Province of Nova Scotia and its Dependences, according to the Laws and Canons of the Church of England, which are lawfully made and received in England in the several Causes and Matters particularly expressed and set forth in the said Commission and no others

And Whereas by another Commission We did also give and grant to the said Bishop of Nova Scotia full Power and Authority by himself or his sufficient Commissary or Commissaries, to exercise the like Spiritual and Ecclesiastical Jurisdiction within the Provinces of Quebec, of New Brunswick, and the Islands of St. John, Cape Breton, and Newfoundland,-as is set forth in the said Commission—We do hereby order and enjoin you, that you do give all fit Support and Countenance to the said Bishop in the Exercise of his Jurisdiction Spiritual and Ecclesiastical, according to the Laws of this Realm, and, the Laws of the Province of Lower Canada, and to the Tenor of the said Commissions, It is nevertheless Our Will and Pleasure to reserve to you the granting of Licenses for Marriages, Letters of Administration, and Probates of Wills, as heretofore exercised by you, and your Predecessors, and also to reserve to you and to all others to whom it may lawfully belong, the Patronage and Right of Presentation to Benefices; but it is Our Will and Pleasure, that the Person so presented, shall be instituted by the Bishop or his Commissary duly authorized by him as directed by Our said commission.

46. You are to permit Liberty of Conscience, and the free Exercise of all such modes of Religious Worship as are not prohibited by Law, to all Persons who inhabit and frequent the Province of Lower Canada, provided they be contented with a quiet and peaceable Enjoyment of the same, without giving Offence or Scandal to Government.

47. You are to take especial Care that God Almighty be devoutly and duly served throughout your Government, that the Lord’s Day be duly kept, and that the Services and Prayers appointed by and according to the Book of Common Prayer be publicly and solemnly read and performed throughout the Year.

48. You are to be careful that the Churches which are or may be hereafter erected in Our said Province of Lower Canada be well and orderly kept.

49. You shall recommend to the Legislative Council and General Assemblies of the Province of Lower Canada, to settle the Limits of Parishes in such a manner as shall be deemed most convenient.

50. You are to use your best Endeavours that every Minister be constituted one of the Vestry in his respective Parish, and that no Vestry be held without him, except in case of his sickness, or that, after notice given of a Vestry he omit to come.

51. It is Our Will and Pleasure that you recommend to the Legislative Council and Assembly of Our said Province of Lower Canada to make due Provision for the erecting and maintaining of Schools, where Youth may be educated in competent Learning, and in knowledge of the Principles of the Christian Religion.

1. For. the Commission to Dr. Inglis and the Instructions relating to it, see the Colonial Office Records, Nova Scotia. Canadian Archives, M. 505. See also page 101.

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52. And it is Our further Will and Pleasure that no Person shall be allowed to keep a School in the Province of Lower Canada, without your License first had and obtained; In granting which you are to pay the most particular attention to the Morals and proper Qualifications of the Persons applying for the same; and in all cases where the School has been founded, instituted, or appointed for the Education of members of the Church of England, or where it is intended that the School Master should be a Member of the Church of England, you are not to grant such Licenses except to Persons who shall first have obtained from the Bishop of Nova Scotia, or one of his Commissaries, a Certificate of their being properly qualified for that purpose.

53. And it is Our further Will and Pleasure, that in order to suppress every Species of Vice, Profaneness, and Immorality, you do forthwith cause all Laws already made against Blasphemy, Profaneness, Adultery, Fornication, Polygamy, Incest, Profanation of the Lord’s Day, Swearing, and Drunkenness, to be strictly put in execution in every part of the Province of Lower Canada, and that for this purpose, You do Direct that the Constables and Church Wardens of the several Parishes do make Presentment upon Oath of any of “the Vices before mentioned to the Justices of the Peace in their Session, or to any of the other temporal Courts : And you are earnestly to recommend to the Legislative Council and Assembly to provide effectual Laws for the Restraint and Punishment of all such of the aforementioned Vices against which no Laws are as yet provided, or in cases where the Laws already made are found to be insufficient. And in order to discountenance Vice and promote the practice of Virtue to the utmost of your power, We do hereby strictly command and enjoin you to appoint no Person to be a Justice of the Peace, or to any trust or Employment, whose notorious ill Life or Conversation may occasion Scandal.

54. You are not to present any Protestant Minister to any Ecclesiastical Benefice within Our said Province by virtue of the said Act passed in the present Year of Our Reign and of Our Commission to you, without a proper certificate from the Bishop of Nova Scotia” or his commissary, of his being conformable to the Doctrine and Discipline of the Church of England.

55. 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 Public Worship according to the Rites of the Church of England.

56. It is Our Royal Intention that the Peltry Trade of the Interior Country shall be free and open to all Our Subjects, Inhabitants of any of Our Colonies, who shall, pursuant to what was directed by Our Royal Proclamation of 1763 obtain trading Licenses from the Governors of any of Our said Colonies under Penalties to observe such Regulations as shall be made by Our Legislature of Our Province of Lower Canada for that Purpose—These Regulations therefore, when established, must be made Public throughout all Our American Possessions, and they must have for their Object the giving every possible facility to that Trade which the nature of it will admit, and which may be consistent with fair and just dealing towards the native Indians with whom it is carried on; The fixing stated times and places for carrying on the Trade and adjusting Modes of settling Tariffs of the Prices of Goods and Furrs, and above all the restraining the Sale of Spirituous Liquors to the Indians, will be the most probable and effectual Means of answering the ends proposed.

57. The Fisheries on the Coast of Labrador1 and the Islands adjacent thereto, are Objects of the greatest Importance, not only on account of the Commodities they produce, but” also as Nurseries of Seamen upon whom the Strength and Security of Our Kingdom depend.

58. Justice and Equity demand that the real and actual property and possession of the Canadian Subjects which existed at the time of the Cession of the said Province

1. See page 5, note 4.

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on that Coast, should be preserved entire, and that they should not be molested or hindered in the Exercise of any Sedentary Fisheries they may have established there.

59. Their Claims however extend to but a small district of the Coast, on the greatest part of which District, a Cod Fishery is stated to be impracticable.

60. On all such parts of the Coast where there are no Canadian possessions, and more especially where a valuable Cod Fishery may be carried on, it will be your Duty to make the Interest of Our British Subjects going out to fish there in Ships fitted out from Great Britain, the first Object of your Care, and as far as circumstances will admit to establish on that coast the Regulations in favour of British fishing Ships which have been so wisely adopted by the Act of Parliament passed in the Reign of King William the Third, for the Encouragement of the Newfoundland Fishery, and by the several Acts passed in the 15, 26, 28 and 29th years of Our Reign for that purpose; And you are on no Account to allow any Possession to be taken, or Sedentary Fisheries to be established upon any parts of the Coast that are not already private Property by any Persons whatever, except only such as shall produce annually a certificate of their having fitted out from some Port in Great Britain.

61. Whereas it will be for the general Benefit of our Subjects carrying on the Fishery in the Bay of Chaleurs in Our Province of Lower Canada, that such Part of the Beach and Shore of the said Bay as is ungranted, should be reserved to Us, Our Heirs, and Successors, it is therefore Our Will and Pleasure that you do not in future direct any Survey to be made or Grant to be passed for any part of the ungranted Beach or Shore of the said Bay of Chaleurs, except such parts thereof as by Our Orders in Council dated the 29th of June and 21st of July 1786 are directed to be granted to John Shoolbred of London, Merchant, and to Messrs. Robin, Pipon and Company of the Island of Jersey Merchants, but that the same be reserved to Us, Our Heirs and Successors, together with a Sufficient Quantity of Wood Land adjoining thereto, necessary for the purpose of carrying on the Fishery; The Limits of such Wood Land so to be reserved to be determined upon and ascertained by you and Our Executive Council for Our said Province of Lower Canada, in such manner as from the most authentic Information shall appear to you and them most convenient and proper for that purpose—It is nevertheless Our Intention, and We do hereby signify to you Our Will and Pleasure, that the free use of such Beach or Shore, and of the Wood Land so to be reserved, shall be allowed by you or any Person authorized by you, to such of Our Subjects as shall resort thither for the purpose of carrying on the Fishery in such proportions as the number of Chaloups he or they shall respectively employ may require; Provided that, if any Fisherman who shall have permission to occupy any part of the said Beach or Shore, and Wood Land for the purpose of the said Fishery, shall not during any one Season continue so to occupy and employ any part of the said Beach or Shore, and Wood Land so allotted to him, you or any Person authorized by you as above may and shall allow the use of such part to any other Fisherman who shall apply for the same for the purpose of carrying on the Fishery. And Whereas it may be necessary to establish local Regulations to prevent Abuses as well as disputes and misunderstanding between the Fishermen resorting to the said Beach or Shore, it is Our Will and Pleasure that you, by and with the Advice and Consent of Our said Executive Council, do frame such Regulations from time to time as to you shall appear necessary to answer those salutary purposes, and that you transmit the same to Us through one of Our principal Secretaries of State for Our Pleasure therein, and Copies thereof to Our Committee of Our Privy Council for Trade and Foreign Plantations by the first Opportunity.

62. And Whereas it is expedient for Our Service that We should from time to time fce informed of the State of the Trade and Fisheries, as well as of the Population of Our said Province of Lower Canada ; It is Our Will and Pleasure, that you do transmit to Us through one of Our Principal Secretaries of State, and to Our Committee of Our

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Privy Council for Trade and Foreign Plantations for their Information, yearly and every year, a full and particular Account of the State of the Fur and Peltry Trade, The Nature and Extent of the several Fisheries carried on by Our Subjects or others, either on the Coasts Lakes or Rivers of the said Province, the State of the Cultivation, particularly specifying the Quantity of Grain, Hemp, and Flax produced, and of any other important Branch of Trade which may in your opinion be undertaken and advantageously carried on by Our Subjects; the number of Inhabitants, distinguishing them under different heads, of Men, Women, and Children, inserting in sueh Account the number of Persons born, ehristened, and buried, and any extraordinary Influx or Emigration from Our said Province, specifying at the same time the number of Slaves, and the number of Our Subjects capable of bearing Arms in the Militia, The Number and Tonnage of Shipping and Craft employed upon the Lakes or Rivers in or contiguous to the Province of Upper Canada, and of the Number and Tonnage of the Shipping entering inwards or clearing outwards from the Ports of Our Province of Lower Canada; together with any other Information on these or any other points of the like nature which may be proper to be communicated to Us.

63. And Whereas for some years past, the Governors of some of Our Plantations have seized and appropriated to their own use, the produce of Whales of several kinds taken upon those Coasts, upon pretence that Whales and1 Royal Fishes, which tends greatly to discourage that Branch of Fishery in Our Plantations, and to prevent Persons from settling there—It is therefore Our Will and Pleasure that you do not pretend to any Claim nor give any manner of Discouragement to the Fishery of Our Subjects upon the Coasts of the Province under your Government, but on the contrary that you give »11 possible Encouragement thereto.

64. And Whereas you will receive from Our Commissioners for executing the Office of High Admiral of Great Britain, and of the Plantations, a Commission constituting you Vice Admiral of Our said Province of Lower Canada, you are required and directed carefully to put in execution the several Powers thereby granted you,

65. And Whereas We are desirous that Our Subjects in the Plantations should have the same Ease in obtaining the Condemnation of Prizes there as in this Kingdom, You are to signify Our Will and Pleasure to the Officers of Our Admiralty Court in Lower Canada, that they do not presume to demand or exact other Fees than what are taken in this Kingdom, which amount to about Ten Pounds for the Condemnation of each Prize, according to the List of such Fees.

66. And there having been 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 Commissions and Instructions granted m this Kingdom; but you are not to grant Commissions of Marque or Reprizal against any Prince or State in amity with Us to any Person whatsoever, without Our Special Command, and you are to oblige the Commanders of all Ships having private Commissions to wear no other Colours than sueh as are described in an Order in Council of the 1th January 1730, in relation to Colours to be worn by all Ships of War.

67. Whereas Commissions have been granted unto several Persons in Our respective Plantations in America for trying Pirates in those parts pursuant to the several Acts for the more effectual Suppression of Piracy; and a Commission will be prepared empowering You as Our Captain General and Governor in Chief of Our Province of Lower Canada, with others therein mentioned to proceed accordingly in reference to the said Province; Our Will and Pleasure is, that in all matters relating to Pirates, you govern yourself according to the Intent of the said Acts.

68. 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

1.”And” in the text is an error for “are”

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more may be necessary to be built for the Defence and Security of the same—You are from time to time to transmit an Account thereof with relation to Our said Province of Lower Canada 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 any Public Magazines or in the hands of private Persons, together with a State-of all Places either already fortified or that you may judge necessary to be fortified 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 Master General or Principal Officers of Our Ordnance, which Accounts are to express the particulars of Ordnance Carriages, Balls, Powder, and all other Sorts of Arms and Ammunition now in Our public Stores, and so from time to time of what shall be sent to you or bought with the Public money, and to specify the time of the disposal and the occasion thereof, and other like Accounts half yearly in the same manner.

69. And in case of Distress of any other of Our Plantations, you shall upon Application of the respective Governors thereof to you, assist them with what Aid the Condition and Safety of Our said Province under your Government can spare.

70. If any thing shall happen which mlay 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 said Executive Council, to take order for the present therein, provided nevertheless that what shall be done be not repugnant to the said Acts passed in the 14*11 and in the present year of Our Reign, 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, except it be for the purpose of preventing or repelling Hostilities, or unavoidable Emergencies wherein the consent of Our Executive Council shall be had, and Speedy Notice given thereof to Us by one of Our Principal Secretaries of State.

71. 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 Public 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.

72. And Whereas We are desirous that a proper Provision should be made for the Support of Our Government within Our said Province of Lower Canada, We do therefore hereby declare it to be Our Royal Intention that the following annual Salaries and Allowances be discharged and paid out of any Revenues arising to Us within the same, or out of such monies as shall be granted or appropriated to the Uses and Services of Our said Province of Lower Canada, that is to say:1—

To the Governor Per Annum £2,000 * Lieu*. Governor ” 1,500 Chief Justice, ” 1,200 6 Judges of Common Pleas—£500 each 3,000 Judge of the Admiralty 200 Attorney General 300 Clerk of the Crown and Pleas 100 Two Sheriffs at £100 each 200 Secretary & Register 400

1A comparison with the list of salaries under the previous establishment, (See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 566) will reveal very few changes, the chief being due to the creation of an Executive Council and the separation of the Upper Posts from Lower Canada.

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Clerk of the Council 100 Surveyor of Lands 300 Surveyor of Woods 200 Commissary for Indians 300 Captain of the Port 100 Naval Officer 100 Receiver General of the Revenues 400 Nine Executive Councillors at £100 each 900 A Grand Voyer 200 French Secretary 200 Four Ministers of the Protestant Church at £200 per annm. each 800 One Minister of the Church of England settled at Sorel 100 One Schoolmaster 100 Allowance to the Person licensed to superintend the Romish Church 200 Pensions to the Officers of a Corps of Canadians employed in the last War and discharged without any Allowance, as follows, vizt.:— To Mr. Rigauville Commandant of the said Corps 200 Five Captains at £100 each 500 Ten Lieutenants at £50 500 Commandant of the Savages 100 To Annual Contingent Expenses 1,000

73. And Whereas We have made sufficient Provision for the support of Our Lieutenant Governor of Our said Province of Lower Canada for the time being by the Allowance inserted in the foregoing Estimate; It is Our Will and Pleasure, when it shall happen that you shall be absent from Our said Province that no part of the Salary or any Perquisites and Emoluments which are due unto You shall during the time of your Absence be claimed by or paid and satisfied to such Lieutenant Governor : And it is Our further Will and Pleasure, that, if Our Lieutenant Governor of Our said Province of Lower Canada should happen to die during such Your Absence, and the administration of the Government thereby, or otherwise devolve on the President or Eldest Member of Our Executive Council, or on such other executive Councillor as by virtue of Our commission in that behalf shall be appointed by you under the Great Seal of Our said Province, to the Administration of the Government thereof, such President or Councillor shall during his continuing in the Chief Command, receive the Salary or Allowance hereby provided for Our Lieutenant Governor, and no other Allowance, Perquisite, or Emolument whatever.

74. And Whereas great Prejudice may happen to Our Service, and to the Security of Our said Province by the Absence of you Our Governor in Chief, or Our Lieutenant Governor for the time being, you shall not upon any pretence whatsoever come to 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.

75. 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 eommissionated or appointed by Us to be Our Lieutenant Governor, the eldest Executive Councillor who shall be at the time of your Death or Absence residing within Our said Province of Lower Canada, subject to such other Nomination and appointment by you under the Great Seal of Our said Province as in Our said Commission is in that behalf mentioned shall take upon him the Administration

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of the Government, and execute Our said Commission and Instructions, and the Several Powers and Authorities therein contained in the manner therein directed1—It is nevertheless Our express Will and Pleasure, that in such case the said President shall forbear to assent to any Acts but what are immediately necessary for the Welfare of Our said Province without Our particular order for that Purpose, and that he «hall not take upon him to dissolve the Assembly then in being, nor to remove or suspend any of the Members of Our said Executive Council, nor any Judges, Justices of the Peace or other Officers Civil or Military without the Advice and Consent of the majority of the said Executive Council; and the said President is by the first opportunity to transmit to Us by one of Our Principal Secretaries of State, the reasons for such Alterations signed by him and Our Council—And Our Will and Pleasure is, that the above Instructions with respect to such President shall also be equally observed by and binding upon such other Executive Councilloi as may be nominated and appointed by you under the Great Seal of Our said Province by virtue of Our said Commission in that behalf.

76. And Whereas by Our different Commissions We have appointed you to be Our Governor and Commander in chief of Our Province of Upper Canada, Lower Canada, and of Our Province of Nova Scotia, including the Islands of St. John and Cape Breton, as well as of Our Province of New Brunswick, and it is Our Intention that the Lieutenant Governors commanding in the said Provinces of Nova Scotia and New Brunswick, and Upper Canada should have and enjoy the full Salaries, Perquisites, and Emoluments granted to them and arising from the respective Governments in as full and ample a manner as if the said Governments were under distinct Governors in Chief; it is therefore Our Will and Pleasure that you shall not at any time or times when you shall be resident and commanding in chief in either of Our said Provinces of Upper Canada, Nova Scotia, and New Brunswick have or receive any part of the said Salaries, Perquisites or Emoluments, but that the same shall continue to be paid and satisfied to the Lieutenant Governors of the said Provinces respectively in like manner as they usually are during your Absence therefrom.

77. And you are upon all occasions to send to Us by one of Our Principal Secretaries of State a particular Account of all your Proceedings and of the Condition of Affairs within Your Government.

Endorsed: Instructions for the Right Honourable Lord Dorchester, Governor of Lower Canada.

Dated 16th September, 1791.

[L.S.]

1. See page 12.

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INSTRUCTIONS TO LORD DORCHESTER AS GOVERNOR OF UPPER CANADA.1

[L.S.]

GEORGE R.

INSTRUCTIONS to Our Right Trusty and Well beloved Guy Lord Dorchester, Knight of the Most Honorable Order of the Bath, Our Captain General and Governor in Chief, in and over Our Province of Upper Canada. Given at Our Court at St. James’s the Sixteenth day of September 1791, In the Thirty First of Our Reign.

1st. With these Our Instructions You will receive Our Commission2 under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and over Our Provinces of Upper Canada and Lower Canada bounded as in Our said Commission is particularly expressed. In the execution therefore of so much of the Office and Trust We have reposed in You as relates to Our Province of Upper Canada, You are to take upon you the Administration of the Government of the said Province, and to do and execute all things belonging to Your Command, according to the several Powers and Authorities of Our said Commission under Our Great Seal of Great Britain, and of the Act passed in the present Year of Our Reign therein recited,” and of these Our Instructions to you and according to sueh further Powers and Instructions as you shall at any time hereafter receive under Our Signet and Sign Manual, or by Our Order in Our Privy Council.

2. And You are, with all due Solemnity, before the Members of Our Executive Council, to cause Our said Commission to be read and published, which being done, You shall then take, and also administer to each of the Members of Our said Executive Council, the Oaths mentioned in an Act passed in the first Year of His late Majesty King George the First, intituled, ” An Act 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;” as altered and explained by an Act passed in the Sixth Year of Our Reign, intituled, ” An Act for altering the Oath of Abjuration and the Assurance, and for amending so much of an Act of the Seventh Year of Her lato Majesty Queen Anne, intituled “An Act for the Improvement of the Union of the two Kingdoms, as after the time therein limited requires the delivery of certain Lists therein mentioned to Persons indicted for High Treason or Misprision of Treason;” and also make and subscribe and cause the Members of the said Executive Council to make and subscribe the Declaration mentioned in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second, intituled, “An Act for preventing the Dangers which may happen from Popish Recusants,” and You and every of them are likewise to take an Oath 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

1. From the copy in the Canadian Archives, M. 232, p. 1. These Instructions are very similar to the Instructions for Lower Canada. They have likewise been printed in the Report of the Canadian Archives for 1905, Vol. 1. In order to avoid confusion in future references to them they are here printed in full. 2. See page 5.

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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 duly observed.

3. You shall also administer or cause to be administered the Oaths appointed in the aforesaid recited Acts to all Persons, except as hereafter mentioned, that shall be appointed to hold or exercise any Office, Place of Trust or Profit, in Our said Province, previous to their entering on the execution of the Duties of sueh Office, and you shall also cause them to make and subscribe the Declaration mentioned in the aforesaid Act of the Twenty fifth year of the Reign of King Charles the Second. But in cases where any such Office, Place of Trust, or Profit within Our said Province of Upper Canada shall be conferred on any of Our Subjects who may profess the Religion of the Church of Rome, You shall, as often as any such Person shall or may be admitted into any such Office, Place of Trust or Profit, administer, or cause to be administered to him, the Oath prescribed in and by an Act of Parliament passed in the 14th year of Our Reign, intituled, ” An Act for making more effectual provision for the Province of Quebec, in North America;” and also the usual Oath for the execution of such Office, Place of Trust or Profit, in lieu of all other Tests and Oaths whatsoever.

4. Whereas We have thought fit that there should be an Executive Council for assisting you, or Our Lieutenant Governor, or Person administering the Government of Our said Province of Upper Canada for the time being, We do hereby by these Presents, nominate and appoint the undermentioned Persons to be of the Executive Council of Our said Province, vizt. William Osgoode,1 William Robertson,2 Alexander Grant,3 and Peter Russell4 Esquires. And Whereas by an Ordinance5 passed in the Province of Quebec, the Governor and Council of the said Province were constituted a Court of Civil Jurisdiction for hearing and determining Appeals in certain Cases therein specified; And whereas by an Act passed in the present Year of Our Reign, it is declared that the Governor, Lieutenant Governor, or Person administering the Government of the said Province, together with such Executive Council shall be a Court of Civil Jurisdiction, within Our said Province for hearing and

1. William Osgoode was born in England in 1754. He was called to the bar in 1779 and on the division of the Province of Quebec was selected as the first Chief Justice of the new Province of Upper Canada. At the same time he was made a member of the Executive and Legislative Councils and was subsequently appointed first speaker of the Legislative Council. In 1794 he succeeded to the position of Chief Justice of Lower Canada rendered vacant by the death of William Smith. As a member of the Executive Council of Lower Canada he came into conflict with Lord Dorchester, Prescott and Milnes and as a result his resignation was submitted to the Duke of Portland in 1800. He returned to Britain in the summer of 1801 though his resignation did not take effect until May of the following year. He died February 17, 1824. 2. Concerning Robertson, Simcoe, writing to Dundas, August 12, 1791, says “He is now in London, I have some slight acquaintance with him, and he seems to be a person of very good mann~rs and gjod sense. He is a merchant and was adverse to the opposition which the merchants made to the Division of the Provinces. He resides at Detroit.” Q. 278, p. 298. In November, 1792 Simcoe reports having received Robertson’s resignation from both the” Executive and Legislative Councils. Q 279, p. 8. 3. Alexander Grant was descended from a prominent family of Invernesshire, Scotland. He was born in 1725 and in his early years served in both the army and navy. In 1759 he was with Amherst in the movements about Lake Champlain and was later transferred to the command of the fleet on the Lakes between Niagara and Mackinaw. He held this position at the time of the creation of the Province of Upper Canada. On the death of Lieutenant- Governor Hunter in August, 1805, Grant became President of the Council and administered the government of the Province until the arrival of Lieutenant-Governor Gore in August, 1806. He died in 1813. 4. Peter Russell, of the family of Russell of Bedford, was born in Cork, Ireland, and educated at Cambridge. He entered the army and in 1778 was given a Commission as Captain in the 64th Regiment of Infantry. He served in the expedition against Savannah and Charleston in 1779-1780. When the civil establishment of the new province of Upper Canada was being formed he was very highly recommended by Simcoe and was appointed to the Executive and Legislative Councils. Later he was made Receiver General of the Province. On Simcoo’s retirement in 1796 he administered the government of the Province as President of the Council. He died September 30, 1808. 5. See Constitutional Documents, 1739-1791, Shortt and Doughty, 1907, p. 464.

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determining Appeals within the same, in the like cases, and in the like manner and form, and subject to such Appeal therefrom, as sueh Appeals might have been before the passing of the above recited Act, heard and determined by the Governor and Council of Quebec.1 In order therefore to carry the said Act into execution, Our Will and Pleasure is, that you do in all Civil Causes, on application being made to you, for that purpose, permit and allow Appeals from any of the Courts of Common Law in Our said Province, unto you and the Executive Council of the said Province of Upper Canada, in manner prescribed by the abovementioned Act, and you are for that purpose to issue a Writ, as nearly in the accustomed manner before the passing of the abovementioned Act, in respect of such Appeals, as the Case will admit, returnable before yourself and the Executive Council of the said Province, who are to proceed to hear and determine such Appeal, wherein such of the said Executive Council, as shall be at that time, Judges of the Court from whence such Appeal shall be made to you Our Captain General and to Our said Executive Council as aforesaid, shall not be admitted to vote upon the said Appeal, but they may nevertheless be present aï the hearing thereof, to give the reasons of the Judgement given by them, in the Onuses 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 sueh Charges, as shall be awarded in ease the first Sentence be affirmed, and if either Party shall not rest satisfied with the Judgement of you and such Executive Council as aforesaid. Our Will and Pleasure is, that they may then Appeal unto Us, in Our Privy Council provided the Sum of Value so appealed for unto Us, do exceed Five Hundred Pounds Sterling, and that such Appeal be made within Fourteen days after Sentence and good Security be given by the Appellant, that he will effectually prosecute the same and answer the Condemnation, as also pay sueh Costs and Damages as shall be awarded by Us, in case the Sentence of You and the Executive 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 matters or thing where the Rights in future may be bound, in all such Cases you and the said Executive Council are to admit an Appeal to Us in Our Privy Council. though the immediate Sum or Value appealed for be of a less value; and it is Our further Will and Pleasure, that in all cases, where by your Instructions, you are to admit Appeals unto Us in Our Privy Council, execution shall 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 Appellant shall have lost by means of such Decree or Judgement, in case upon the determination of such Appeal, such Decree or Judgement should be reversed and restitution ordered to the Appellant. You and Our Executive Council are also to permit Appeals unto Us, in Our Privy Council, in all Cases of Fines imposed for Misdemeanors, provided the Fines so imposed amount to, or exceed the Sum of 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 Your Government shall be confirmed.

5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Executive Council, You are in case of any Vacancy in the said Council, to transmit to Us, by one of Our principal Secretaries of State, the Names and Characters of such three Persons, Inhabitants of Our said Province of Upper Canada, whom you shall esteem the best qualified for fulfilling the Trust of such Executive Councillor.

6. And in the choice and selection of such Persons proposed to fill such Vacancy in Our said Executive Council, as also of the Chief Officers, Judges, Assistants,

1. See Article XXXIV of the Constitutional Act.

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Justices of the Peace, and other Officers of Justice, you are always to take care that they may be Men of good Life, well affected to Our Government, and of Abilities suitable to their Employments.

7. And whereas We are sensible that effectual Care ought to be taken to oblige the Members of Our Executive Council to a due attendance, It is Our Will and Pleasure, in order to prevent the many inconveniences, which may happen for want of a Quorum of the Council to transact Business as occasion may require, that if any of the Members of Our said Executive Council, residing in Our said Province shall hereafter wilfully absent themselves from the Province and continue absent above the space of Six Months together without leave from you first obtained under Your h.md and Seal, or shall remain absent for the Space of One year without Our Leave given them, under Our Royal Signature, their Places in the said Executive Council shall immediately thereupon become void.” And We do hereby will and require you, that this Our Royal Pleasure be signified to the several Members of Our said Executive Council, and that it be entered in the Council Books of the said Province as a standing Rule.

8. And to the end that Our said Executive Council may be assisting to You in all Affairs relating to Our Service, You are to communicate to them, such and so many of these Our Instructions, wherein their Advice is mentioned to be requisite; and likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them.

9. You are also to permit the Members of Our said Executive Council to have und enjoy Freedom of Debate and Vote in all Affairs of Public concern, which may be debated in the said Executive Council.

10. And whereas We have thought fit to declare by Our Order in Council bearing date, the 24th day of August last,1 that the Division of Our Province of Quebec shall commence on the day of December next, and that from thenceforth the Lands and Territories therein described, shall be two separate Provinces, and be called the Province of Upper Canada, and the Province of Lower Canada; You are as soon as may be after such division shall take place to summon, by an Instrument under the Great Seal of Our Province of Upper Canada, to the Legislative Council of that Province, the following Persons, whom We hereby authorize and direct You, to to summon to Our said Legislative Council of Upper Canada, vizt. William Osgoode, Richard Duncan, William Robertson, Robert Hamilton, Richard Cartwright Junior, John Munro, Alexander Grant and Peter Russell Esquires.

11. And whereas by the aforesaid recited Act passed in the present year of Our Reign, it is provided that the Seats of the Members of Our Legislative Council shall become vacant in certain Cases mentioned in the said Act,2 It is Our Will and Pleasure, that if any Member of Our said Legislative Council shall at any time leave Our said Province and reside out of the same, You shall report the same to Us, by the first opportunity, through One of Our Principal Secretaries, of State; And you are also in like manner to report whether such Member of the said Council is absent by your permission, or by the permission of Our Lieutenant Governor, or Commander in Chief of the said Province for the time being; And you are also in like manner to report if it shall come to your knowledge, that any such Member shall at any time, take, or have taken any Oath of Allegiance, or Obedience to any Foreign Prince or Power, or shall be attainted for Treason, in any Court of Law within any of Our Dominions, that We may take measures thereupon, as We shall think fit: And you are to take especial Care, that the several Provisions of the said Act, respecting the several Cases in which Persons may, or may not be entitled to receive Writs of Sum-

1. See page 3. 2. See Article VIII of the Constitutional Act.

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mons to the said Legislative Council, or to hold their Places therein, shall be duly executed.

12. And for the execution of so much of the Powers vested in you, by Our said Commission, and by Virtue of the said Act, as relates to the declaring that you assent in Our Name to Bills passed by. the Legislative Council and House of Assembly, or that you withhold Our Assent therefrom, or that you reserve sueh Bills for the signification of Our Royal Pleasure thereon, It is Our Will and Pleasure, that you do carefully observe the following Rules, Directions and Instructions, vizt

That the Style of enacting all the said Laws, Statutes and Ordinances shall be by Us, Our Heirs or Successors by and with the Advice and Consent of the Legislative Council and Assembly of Our Province of Upper Canada constituted and assembled by Virtue of and under the Authority of an Act passed in the Parliament of Great Britain, 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;” and that no Bill in any other form shall be assented to by you, in Our Name.

That each different matter be provided for by a different Law, without including in one and the same Act such things as have ño 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 in case any Daw or Ordinance respecting private property shall be passed without a saving of the Right of Us, Our Heirs and Successors and of all Persons, or Bodies Politic or Corporate, except such as are mentioned in the said Law or Ordinance, You shall declare that you withhold Our Assent from the same; and if any such Law or Ordinance, shall be passed without such saving, You shall in every such case declare that You reserve the same for the signification of Our Royal Pleasure thereon.

That in all Laws, or Ordinances for 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 Public Uses of the said Province, and the support of the Government thereof, as by the said Law shall be directed, and that a Clause be inserted, declaring that the due application of such Money, pursuant to the directions of such Law, shall be accounted for unto Us through our Commissioners of Our Treasury for the time being in such manner and form as We shall direct.

18. And Whereas We have by Our said Commission given You full Power and Authority subject as therein is specified, and to these Our Instructions in that behalf, to issue Writs of Summons and Election, and to call together the Legislative Council and Assembly of Our said Province of Upper Canada ; and for the purpose of electing the Members of the Assembly of Our said Province of Upper Canada, have also given you full Power and Authority to issue a Proclamation dividing Our said Province of Upper Canada into Districts or Counties, or Circles and Towns, or Townships, and declaring and appointing the number of Representatives to be chosen by each of such Districts or Counties, or Circles and Towns or Townships; now, Our Will and Pleasure is, that you shall issue such Proclamation, as soon as may be, allowing nevertheless a reasonable time between the issuing thereof, and the time of issuing the Writs of Summons and Election above mentioned.1

1. For the Proclamation, see page 77.

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14. That all Laws assented to by You in Our Name, or reserved for the signification of Our Pleasure thereon, shall when transmitted by You, be fairly abstracted in the Margins and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is introductory to a new Law, declaratory of a former Law, or does repeal a Law then before in being; And You are also to transmit in the fullest manner, the Reasons and Occasion for proposing such Laws, together with fair Copies of the Journals and Minutes of the Proceedings of the said Legislative Council and Assembly, which you are to require from the Clerks, or other proper Officers in that behalf, of the said Legislative Council and Assembly.

15. And whereas in the said Act, it is provided that in certain cases, Acts passed by the Legislative Council and Assembly of the Province, shall previous to any signification of Our Assent thereto, be laid before both Houses of Our Parliament of Great Britain;1 And whereas it is also provided in the said Act, that in certain cases, Provision may be made by Acts of the Legislative Council and Assembly of the Province, assented to by Us, Our Heirs, or Successors, (thereby reserving the power of giving such Assent to Us, Our Heirs or Successors only) You are to take especial care that in every such Case, You are to declare that You reserve such Bills for the signification of Our Pleasure thereon; And you will likewise reserve for such signification every other Bill, which you shall consider to be of an extraordinary or unusual Nature, or requiring Our special consideration and decision thereupon, particularly such as may affect the property, credit or dealings of such of Our Subjects as are not usually resident within the said Province or whereby Duties shall be laid upon British or Irish Shipping or upon the product or Manufactures of Great Britain or Ireland.

16. And whereas Laws have formerly been enacted in several of our Plantations in America, for 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 assent in Our Name to any Law that shall be enacted for a less time than Two years, except in Cases of imminent necessity, or immediate temporary expediency; and you shall not declare Our Assent to any Law containing Provisions which shall have been disallowed by Us, without express leave for that purpose first obtained from Us, upon a full representation by you to be made to Us thro’ one of Our Principal Secretaries of State, of the reasons and necessity for passing such Law.

17. Whereas We have thought fit by Our Orders in our Privy Council to disallow certain Laws passed in some of our Colonies and Plantations in America for confirming2 the privileges of Naturalization on Persons being Aliens & for divorcing Persons who have been legally joined together in Holy Marriage, And whereas Acts have been passed in others of Our said Colonies to enable Persons who are our liege Subjects by Birth or Naturalization to hold and Inherit Lands Tenements & Real Estates, altho’ such Lands, Tenements & Real Estates had been originally granted to, or purchased by Aliens antecedent to Naturalization. It is Our Will and Pleasure, that you do not upon any pretence whatsoever give your Assent to any Bill or Bills that may hereafter be passed by the Legislative Council and Assembly of the Province under your Government for the Naturalization of Aliens, nor for the divorce of Persons joined together in Holy Marriage, nor for establishing a Title in any Persons, to Lands Tenements and Real Estates in our said Province originally granted to, er purchased by Aliens antecedent to Naturalization.

18. You are to give Warrants under your hand, for the issuing of Public Monies for all public Services, and We do particularly require you to take care that regular Accounts of all Receipts and Payments of Public Monies be duly kept, that the same

1. Article XLII of the Constitutional Act provided for the reservation of all acts touching the religious establishment of the province. (See Constitutional Documents, 1759-1791, Shoitt and Doughty, 1907, page 705.) 2. A marginal note suggests the reading “conferring.”

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from time to time be audited by our executive Council, and that Copies thereof attested by you be transmitted every half year or oftener if there should be occasion to our Commissioners of Our Treasury, or to our High Treasurer for the time being, and Duplicates thereof by the next conveyance, in which Accounts shall be specified every particular Sum raised or disposed of, to the end that We may take such Measures as We may deem necessary for the examination of the said Accounts, and that We may be satisfied of the right and due application of the Revenues of our said Province of Upper Canada, and with the probability of the increase or diminution of it under every head and article thereof.

19. Whereas by an Act of Our Parliament of Great Britain passed in the fourth year of our Reign intituled ” An Act to prevent Paper Bills of Credit, hereafter to be issued in any of His Majesty’s Colonies or Plantations in America, from being declared to be a legal tender in Payments of Money, & to prevent the legal Tender of such Bills as are now subsisting, from being prolonged beyond the periods limited for calling in and sinking the same ” it is Enacted that no Paper Bill or Bills of Credit should be created or issued by any Act, Order Resolution or Vote of Assembly in any of Our Colonies or Plantations in America to be a legal tender in payment, and that any such Act, Order, Resolution or Vote for creating or issuing sueh Paper Bill or Bills of Credit, or for prolonging the legal tender of any sueh then subsisting and current in any of the said Colonies or Plantations, should be null and Void. And Whereas by another Act of Our said Parliament, passed in the thirteenth year of our Reign intituled “An Act to explain and amend the above recited Act passed in the fourth year of Our Reign as aforesaid ” it is enacted that any Certificates, Notes Bills or Debentures, which shall or may be voluntarily accepted by the Creditors of the Public within any of the Colonies in America as a Security for the Payment of what is due and owing to the said Public Creditors may be made and enacted by the general Assemblies of the said Colonies respectively to be a tender to the Public Treasurers in the said Colonies for the discharge of any duties, Taxes or other Debts whatever due to & payable at or in the said Public Treasuries of the said Colonies, in virtue of Laws passed within the same, and in no other ease whatsoever; It is Our Will and Pleasure, that you do in all things conform yourself to the provisions of the said Recited Acts, both with respect to the not assenting to any Bills which may be presented to you for the purpose of issuing or creating Paper Bills or Bills of Credit, to be a legal tender in payment, & the assenting to any Bills by which Certificates, Notes or Debentures, which may be voluntarily accepted in payment, by the public Creditors shall be made a legal Tender to the Treasury for Taxes duties & other Payments to the public Treasury.

20. You shall not remit any Fines or forfeitures whatsoever above the Sum of Ten pounds, nor dispose of any Forfeitures whatsoever, until upon signifying unto the Commissioners of our Treasury, or our High Treasurer for the time being, the nature of the Offence and the occasion of such Fines and Forfeitures with the particular Sums or value thereof (which you are to do with all speed) you shall have received our Directions thereon, And you may in the mean time suspend the payment of the said Fines & forfeitures.

21. And you are on every occasion to transmit to Us thro’ one of our Principal Secretaries of State with all convenient speed, a particular Account of all new Establishments of Jurisdictions, Courts, Offices & Officers, Powers and Authorities, Fees & privileges granted and settled within Our said Province of Upper Canada, as likewise an account of all the Expenses (if any) attending the Establishment of the said Courts and Offices.

22. It is our further Will and Pleasure that all Commissions be granted by you to any Person or Persons, to be Judge, Justice of the Peace, or other necessary Offices be granted during Pleasure only.

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23. You are not to suspend any of the Members of Our said executive Council, or to suspend or displace any of the Judges, Justices, Sheriffs, or other Officers or Ministers within our said Province of Upper Canada, without good & sufficient cause, and in case of such Suspension or Removal you are forthwith to transmit your reasons for the same to one of our Principal Secretaries of State.

24. And whereas frequent Complaints have 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 everywhere speedily & duly administered, and that all disorders, delays & 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 delay or partiality.

25. You are to take care that no Court of Judicature be adjourned but upon good grounds, as also that no Orders of any Court of Judicature be entered or allowed which shall not be first read and approved of by the Justices in open Court, which Rule you are in like manner to see observed with relation to all proceedings of Our Executive Council of Upper Canada, and that all Orders there made be first read and approved in such Council before they are entered upon the Council Books.

26. You are to take care that all Writs within Our said Province of Upper Canada be issued in Our Name.

27. You shall take care with the Advice & Assistance of our executive Council that such Prisons as may at any time be necessary, be erected, and that the same or any other already erected be kept in such a Condition as may effectually secure the Prisoners which now are or may hereafter be confined therein.

28. You shall not suffer any Person to execute more Offices than one by Deputy.

29. 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 Place or Office 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 STgn 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 Us, through one of our Principal Secretaries of State which you are to do by the first opportunity, and till the said Office or place is disposed of by Us Our Heirs or Successors under the Great Seal of this Kingdom, or until some person shall be appointed thereunto under Our Signet and Sign Manual or until Our further directions be given therein; and it is Our express Will and Pleasure, that you do give reasonable support unto the Patent Officers in the enjoyment of their legal and established Fees, Rights, Privileges & Emoluments, according to the true intent and meaning of their respective Patents.

30. 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 on Juries, 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 as 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 Oases of absolute necessity, or serving any Parochial Offices which may hinder them in the Execution of their Duties.

31. And Whereas nothing can more effectually tend to the speedy settling of our said Province of Upper Canada, the Security of the Property of Our Subjects and

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the advancement of our Revenue, than the disposal of such Lands as are our Property upon reasonable terms, and the establishing of a Regular and proper method of proceeding with respect to the passing of Grants of such Lands. It is therefore Our Will and Pleasure that all and every Person and Persons who shall apply for any Grant or Grants of Land, shall, previous to their obtaining the same, make it appear that they are in a condition to cultivate and improve the same, and in case you shall upon a consideration of the circumstances of the Person or Persons applying for sueh Grants, think it advisable to pass the same, you are in such Case, to cause a Warrant to be drawn up, directed to the Surveyor General, or other 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 farthest from the date thereof, with a Plot or Description of the Lands so surveyed thereunto annexed, and when the Warrant shall be so 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 therein. 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, and a Docket thereof be also entered in Our Auditors Office, Copies of all which Entries shall be returned regularly by the proper Officer, to Our Commissioners of our Treasury.

32. And for the further encouragement of our Subjects, It is our Will and Pleasure that the Lands to be granted by you as aforesaid shall be laid out in Townships, and that each Inland Township shall as nearly as circumstances shall admit consist of Ten Miles Square and such as shall be situated upon a Navigable River or Water shall have a front of Nine Miles, and be twelve Miles in depth, and shall be subdivided in such manner as may be found most advisable for the Accommodation of the Settlers and for making the several reservations for Public Uses and particularly for the support of the Protestant Clergy agreeably to the above recited Apt passed in the present year of Our Reign.1

33. And Whereas great inconveniences have heretofore arisen in many of the Colonies in America from the granting excessive quantities of Land to particular Persons who have never cultivated or settled the same & have thereby prevented ethers more industrious from improving such Lands ; in order therefore to prevent the like inconveniences in the future it is Our Will and Pleasure that you observe the following directions and Regulations in all Grants to be made by you as aforesaid vizt :

That no Town Lot shall be granted to any one Person being Master or Mistress of a Family in any Township to be laid out as aforesaid which shall contain more than One Acre of Land.

That no Park Lot shall be granted to any one Person being Master or Mistreas of a Family in any Township so to be laid out which shall contain more than Twenty four Acres.

That no Farm Lot shall be granted to any one Person being Master or Mistress of a Family in any Township so to be laid out which shall contain more than 200 Acres.

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 may have heretofore been granted to them, and in all grants of Land to be made by you as aforesaid you are to take care that due regard be had to the quality and comparative value of the different parts of Land comprized within any Township so that each Grantee may have as nearly as may be a proportionable quantity of Lands of sueh different quality and comparative value, 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 such Tract

1. See Article XXXVI of the Constitutional Act.

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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.

34. And as a further encouragement to Our Subjects who shall become Settlers as aforesaid, It is Our Will and Pleasure that the said Townships & the respective allotments within the same together with the Lands to be reserved as aforesaid shall be run and laid out by Our Surveyor General of Lands for the said Province, or some skilful Person authorized by him for that purpose, which Surveys together with the Warrants & Grants for the respective Allotments shall be made out for and delivered to the several Grantees free of any Expense or fees whatsoever, other than sueh as may be payable to the different Officers according to the Table of Fees to be established upon Grants of Land made in the said Province.

35. And in order to prevent any Persons disaffected to Us and Our Government from becoming Settlers in Our said Province of Upper Canada. It is Our Will and Pleasure that no Warrants for Surveying Lands be granted by you, or the Lieuteaant Governor or Person administering the Government for the time being unless the Person or Persons applying for the same do at the time of making such application besides taking the usual Oaths directed by Law also make and subscribe the following Declaration in your or his presence, or in the preaence of such Person or Persons as shall by you or him be appointed for that purpose.—viz : ” I : A. B. do promise and declare that I will maintain and defend to the utmost of my power the Authority of the King in His Parliament as the Supreme Legislature of this Province.”

36. Whereas the reserving such Bodies of Land within Our Province of Upper Canada where there are considerable Growths of Timber fit for the use of Our Royal Navy, is a matter of the utmost importance to Our Service. It is Our Will and Pleasure that no Grants whatever be made of Lands within any district or Tract in Our said Province of Upper Canada until Our Surveyor General of Woods or his Deputy lawfully appointed shall have Surveyed the same and marked out as reservations to Us, Our Heirs & Successors such Parts thereof as shall be found to contain any considerable Growth of Masting or other Timber fit for the use of Our Royal Navy, and more especially upon the Rivers. And you are hereby instructed to direct Our Surveyor General of Lands in Our said Province from time to time with all due diligence to compleat the Surveys and mark out the Reservations as aforesaid in the most convenient parts of Our said Province, and you are from time to time to report the number, extent & Situation of sueh Reservations, and you are further to direct Our Surveyor General not to certify any Plotts of Land ordered and Surveyed for any Person or Persons whatever in order that Grants may be made out for the same, until it shall appear to him by a Certificate, under the hand of our said Surveyor of Woods or his Deputy, that the Land so to be granted is not part of, or included in any district marked out as a Reservation for Us Our Heirs and Successors as aforesaid for the purpose herein before mentioned, and in order to prevent any deceit or fraud from being committed by the Persons applying for Lands in this respect, It is Our Will and Pleasure that in all Grants to be hereafter made for Lands within Our said Province of Upper Canada the following proviso and Exception be inserted vizt ” and provided also that no part of this Parcel or Tract of Land hereby granted to the said and his Heirs be within any reservation heretofore made and marked for Us, Our Heirs and Successors by Our Surveyor General of Woods, or his lawful Deputy in which case this Our Grant for such part of the Land hereby given and granted to the said…………….and his Heirs for ever as aforesaid and which shall upon a Survey thereof being made, be found within any such Reservation shall be null and void and of none effect, any thing herein contained to the contrary notwithstanding.

37. 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

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which Lands will be granted within Our said Province of Upper Canada in manner prescribed in and by the said Act passed in the present year of our Reign, you ara 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 the said Terms and Conditions respecting the granting 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 conveniences for Trade and Navigation.1

38. 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 passing Grants of Land in conformity to the said Act passed in the present year of Our Reign, be entered upon record, for the Information and Satisfaction of all Parties whatever that may be concerned therein.

39. And Whereas it hath been represented unto Us, that many parts of the Province under Your Government are particularly adapted to the growth and culture of Hemp and Flax, It is therefore Our Will and Pleasure that in all Surveys for Settlement the Surveyor be directed to report whether there are any or what quantity of Lands, contained within such Survey fit for the Production of Hemp and Flax,

40. And Whereas it hath been represented to Us, that several Parts of Our Province of Upper Canada have been found to abound with Coals, It is Our Will and Pleasure that in all Grants of Land to be made by you, a Clause be inserted reserving to Us, Our Heirs and Successors all Coals, and also all Mines of Gold, Silver, Copper, Tin, Iron and Lead which shall be discovered upon such Lands.2

41. You shall cause a Survey to be made of all the considerable Landing Places and Harbours in Our said Province, in case the same shall not have already been done, and report to Us by One of Our Principal Secretaries of State, how far any Fortifications be necessary for the Security and Advantage of the said Province.

42. Whereas the Establishment of proper Regulations in Matters of Ecclesiastical Concern is an object of very great Importance, it will be your indispensible Duty to take Care that no arrangements in regard thereto be made, but such as may give full Satisfaction to Our New Subjects in every Point in which they have a right to any Indulgence on that Head, always remembering that it is a Toleration of the free Exercise of the Religion of the Church of Rome only, to which they are entitled, but not to the Powers and Privileges of it as an established Church, that being a Preference which belongs only to the Protestant Church of England.

43. Upon these Principles therefore and to the end that Our just Supremacy in all matters Ecclesiastical as well as Civil may have its due Scope and Influence, It is Our Will and Pleasure

First. That all Appeals to, or Correspondence with any Foreign Ecclesiastical Jurisdiction of what nature or kind soever, be absolutely forbidden under very severe Penalties.

Secondly. That no Episcopal or Vicarial Powers be exercised within Our said Province by any Person professing the Religion of the Church of Rome, but such only as are essentially and indispensibly necessary to the free Exercise of the Romish Religion and in those Oases not without a License and Permission from you under the Seal of Our said Province for and during Our Will and Pleasure, and under such other Limitations and Restrictions as may correspond with the Spirit and Provisions of the Act of Parliament of the 14th year of Our Reign ” for making more effectual Provision for the Government of the Province of Quebec,” and no Person whatever is to have Holy Orders conferred upon him or to have the Cure of Souls without a Licence for that purpose first had and obtained from you.

Thirdly. That no Person professing the Religion of the Chureh of Rome be allowed to fill any Ecclesiastical Benefice, or to have or enjoy any of the Rights or

1. For the Proclamation, see page 60, note 1. 2. In 1797, this clause was altered by an Additional Instruction. See page 205, note 2.

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Profits belonging thereto who is not a Canadian by Birth (such only excepted as are now in Possession of any such Benefice) and who is not appointed thereto by Us, or by or under Our Authority, and that all Right or Claim of Right in any other Person whatever to nominate, present or appoint to any vacant Benefice, other than, such as may lay Claim to the Patronage of Benefices as a Civil Right, be absolutely abolished, no Person to hold more than one Benefice, or at least not more than can reasonably be served by one and the same Incumbent.

Fourthly. That no Person whatever professing the Religion of the Church of Rome be appointed Incumbent of any Parish in which the Majority of the Inhabitants shall solicit the Appointment of a Protestant Minister; In such Case the Incumbent shall be a Protestant, and be entitled to all Tythes payable within such Parish; But nevertheless the Roman Catholicks may have the use of the Church for the free exercise of their Religion at such Times as may not interfere with the Religious Worship of the Protestants, and in like manner the Protestant Inhabitants in every Parish where the Majority of Parishioners are Roman Catholicks shall notwithstanding have the use of the Church for the Exercise of their Religion at such times as may not interfere with the Religious Worship of the Roman Catholicks.

Fifthly. That no Incumbent professing the Religion of the Church of Rome appointed to any Parish, shall be entitled to receive any Tythes for Lands or Possessions occupied by a Protestant, but such Tythes shall be received by such Persons as you shall appoint, and shall be reserved in the Hands of Our Receiver General as aforesaid for the Support of a Protestant Clergy in Our said Province to be actually resident within the same and not otherwise according to such Directions as you shall receive from Us in that behalf, and in like manner all growing Rents and Profits of a Vacant Benefice shall during sueh Vacancy be reserved for and applied to the like uses.

Sixthly. That all Persons professing the Religion of the Church of Rome, who are already possessed of or may hereafter be appointed to any Ecclesiastical Benefice, or who may be licenced to exercise any Power or Authority in respect thereto do take and subscribe before you in Council, or before such Person as you shall appoint to administer the same, the Oath required to be taken and subscribed by the aforesaid Act of Parliament passed in the Fourteenth year of Our Reign intituled ” An Act for making more effectual Provision for the Government of the Province of Quebec in North America.”

Seventhly. That all Incumbents of Parishes professing the Romish Religion not being under the Ecclesiastical Jurisdiction of the Bishop of Nova Scotia shall hold their respective Benefices during their good behaviour, subject however in ease of any conviction for Criminal Offences or upon due proof of Seditious Attempts to disturb the Peace and Tranquillity of Our Government to be deprived or suspended by You.

Eighthly. That such Ecclesiasticks as may think fit to enter into the Holy State of Matrimony shall be released from all Penalties to which they may have been subjected in such Cases by any Authority of the See of Rome.

Ninthly. That Freedom of the Burial of the Dead in the Churches and Church Yards be allowed indiscriminately to every Christian Persuasion.

Tenthly. That the Royal Family be prayed for in all Churches and Places of Holy Worship in such manner and form as is used in this Kingdom, and that Our Arms and Insignia be put up, not only in all such Churches and Places of Holy Worship, but also in all Courts of Justice, and that the Arms of France be taken down in every such Church or Court where they may at present remain.

44. Whereas We did by Our Commission1 under Our Great Seal of Great Britain bearing date the Is*. day of August 1787, appoint the Right Reverend Father in God,

1. For the Commission to Dr. Inglis and Instructions relating to it, see the Colonial Office Records. Nova Scotia, Canadian Archives, M. 505.

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Charles Inglis, Doctor in Divinity to be Bishop of the Province of Nova Scotia, and thereby give to him and his Successors in the said See, Jurisdiction, Spiritual and Ecclesiastical, in and throughout the said Province of Nova Scotia, and its Dependencies according to the Laws and Canons of the Church of England, which are lawfully made and received in England in the several Causes and Matters particularly expressed and set forth in the said Commission and no other; And Whereas by another Commission We did also give and grant to the said Bishop of Nova Scotia, full Power and Authority by himself, or his sufficient Commissary or Commissaries, to exercise the like Spiritual and Ecclesiastical Jurisdiction, within the Provinces of Quebec of New Brunswick and the Islands of S*. John, Cape Breton and Newfoundland, as is set forth in the said Commission; We do hereby order and enjoin you, that you do give all fit support and countenance to the said Bishop in the exercise of his Jurisdiction Spiritual and Ecclesiastical, according to the Laws of this Realm and the Laws to be established in Our Province of Upper Canada, and to the Tenor of the said Commissions. It is nevertheless Our Will and Pleasure to reserve to you, the granting of Licences for Marriages, Letters of Administration and Probates of Wills as heretofore exercised by you and your Predecessors; And also to reserve to you, and to all others to whom it may lawfully belong the Patronage and Right of Presentation to Benefices, but it is Our Will and Pleasure that the Person so presented shall be instituted by the Bishop, or his Commissary, duly authorized by him, as directed by Our said Commission.

45. You are to permit liberty of Conscience and the free exercise of all such Modes of Religious Worship, as are not prohibited by Law, to all Persons who inhabit and frequent the Province of Upper Canada, provided they be contented with a quiet and peaceable enjoyment of the same without giving Offence or Scandal to Government.

46. You are to take especial Care that God Almighty be devoutly and duly served throughout Your Government, that the Lord’s Day be duly kept, and that the Services and Prayers appointed by, and according to the Book of Common Prayer, be publickly and solemnly read and performed throughout the year.

47. You are to be careful that the Churches which are or may be hereafter erected in Our said Province of Upper Canada be well and orderly kept.

48. You shall recommend to the Legislative Council and General Assembly of the Province of Upper Canada to settle the Limits of Parishes in such a manner as shall be deemed most convenient.

49. You are to use Your best endeavours that every Minister be constituted one of the Vestry, in his respective Parish, and that no Vestry be held without him, except in Case of his sickness, or that after Notice given of a Vestry he omit to come.

50. It is Our Will and Pleasure, that you recommend to the Legislative Council and Assembly of Our said Province of Upper Canada to make due provision for the erecting and maintaining of Schools, where Youth may be educated in competent Learning, and in knowledge of the Principles of the Christian Religion.

51. And it is Our further Will and Pleasure that no Person shall be allowed to keep a School in the Province of Upper Canada, without Your Licence first had and obtained, In granting which You are to pay the most particular Attention to the Morals and proper Qualifications of the Persons applying for the same, and in all Cases where the School has been founded, instituted or appointed for the Education of Members of the Church of England, you are not to grant sueh Licences except to Persons who shall first have obtained from the Bishop of Nova Scotia, or One of his Commissaries, a Certificate of their being properly qualified for that purpose.

52. And it is Our further Will and Pleasure, that in order to suppress every Species of Vice, Profaneness and Immorality, You do forthwith cause all Laws already made against Blasphemy, Profaneness, Adultery, Fornication, Polygamy, Incest, Profanation of the Lord’s Day, Swearing and Drunkenness to be strictly

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put in execution, in every part of the Province of Upper Canada, and that for this purpose you do direct that the Constables and Church Wardens of the several Parishes do make Presentment upon Oath of Any of the Vices beforementioned to the Justices of the Peace in their Session, or to any of the other Temporal Courts : And you are earnestly to recommend to the Legislative Council and Assembly, to provide effectual Laws for the Restraint and Punishment of all such of the aforementioned Vices, against which no Laws are as yet provided, or in eases where the Laws already made, are found to be insufficient; And in order to discountenance Vice and promote the practice of Virtue to the utmost of Your Power, We do hereby strictly command and enjoin you to appoint no Person to be a Justice of the Peace, or to any Trust or Employment, whose notorious ill Life or Conversation may occasion Scandal.

53. You are not to present any Protestant Minister to any Ecclesiastical Benefice within Our said Province by virtue of the said Act passed in the present Year of Our Reign, and of Our Commission to you without a proper Certificate from the Bishop of Nova Scotia, or his Commissary of his being comformable to the Doctrine and Discipline of the Church of England.

54. 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 Public Worship, according -to the Rites of the Chureh of England.

55. It is Our Royal Intention that the Peltry Trade of the Interior Country shall be free and open to all Our Subjects Inhabitants of any of Our Colonies who shall pursuant to what was directed by Our Royal Proclamation of 1763 obtain trading Licences from the Governors of any of Our said Colonies under Penalties to observe such Regulations as shall be made by Our Legislature of Our Province of Upper Canada for that purpose. These Regulations therefore when established, must be made public throughout all Our American possessions and they must have for their Object the giving every possible facility to that Trade which the nature of it will admit, and which may be consistent with fair and just dealing towards the Native Indians with whom it is carried on; the fixing stated times and places for carrying on the Trade and adjusting Modes of settling Tariffs of the prices of Goods and Furs and above all the restraining the Sale of Spirituous Liquors to the Indians, will be the most probable and effectual Means of answering the Ends proposed.

56. And Whereas it is expedient for Our Service, that We should from time to time be informed of the State of the Trade and Fisheries, as well as of the Population of Our said Province of Upper Canada; It is Our Will and Pleasure that you do transmit to Us through One of Our Principal Secretaries of State, and to Our Committee of Our Privy Council for Trade and Foreign Plantations for their Information, yearly and every Year a full and particular Account of the State of the Fur and Peltry Trade; The nature and extent of the several Fisheries carried on by Our Subjects or others either on the Lakes or Rivers of the said Province, The state of the Cultivation particularly specifying the quantity of Grain, Hemp and Flax produced, and of any other important branch of Trade which may in your opinion be undertaken and advantageously carried out by Our Subjects, The Number of Inhabitants distinguishing them under different heads of Men, Women and Children, inserting in such Account the number of Persons born, christened and buried, and any extraordinary influx or emigration from Our said Province, specifying at the same time the number of Slaves, and the number of Our Subjects capable of bearing Arms in the Militia; The number and Tonnage of Shipping and Craft employed upon the Lakes or Rivers in, or contiguous to the Province of Upper Canada together with any other Information on these, or any other points of the like nature, which may be proper to be communicated to Us.

57. And Whereas you will receive from Our Commissioners for executing the Office of High Admiral of Great Britain and of the Plantations, a Commission con-

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stituting You Vice Admiral of Our said Province of Upper Canada, You are required and directed carefully to put in execution the several Powers thereby granted you.

58. And Whereas We are desirous that Our Subjects in the Plantations should have the same ease in obtaining the Condemnation of Prizes there as in this Kingdom, You are to signify Our Will and Pleasure to the Officers of Our Admiralty Court in Upper Canada, that they do not presume to demand or exact other Fees than what are taken in this Kingdom, which amount to about Ten Pounds for the Condemnation of each Prize according to the List of sueh Fees.

59. And there having been 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 Commissions and Instructions granted in this Kingdom, but You are not to grant Commissions of Marque or Reprisal against any Prince or State in Amity with Us to any Person whatsoever, without Our special Command, and You are to oblige the Commanders of all Ships having private Commissioners to wear no other Colours than sueh as are described in an Order in Council of the 7th January 1730, in relation to Colours to be worn by all Ships of War.

60. Whereas Commissions have been granted unto several Persons in Our respective Plantations in America, for trying Pirates in those Parts, pursuant to the several Acts for the more effectual suppression of Piracy, and a Commission will be prepared empowering you, as Our Captain General and Governor in Chief of Our Province of Upper Canada with others therein mentioned, to proceed accordingly in reference to the said Province; Our Will and Pleasure is, that in all Matters relating to Pirates, you govern yourself according to the Intent of the said Acts.

61. 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 may be necessary to be built for the Defence and Security of the same, you are from time to time to transmit an Account thereof with relation to Our said Province of Upper Canada 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 any Public Magazines, or in the hands of private Persons, together with a State of all Places either already forfeited, or that You may judge necessary to be fortified 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 Master General or Principal Officers of Our Ordnance, which Accounts are to express the particulars of Ordnance, Carriages, Balls, Powder and all other Sorts of Arms and Ammunition now in Our Public Stores, and so from time to time of what shall be sent to you, or bought with the public Money, and to specify the time of the disposal, and the occasion thereof, and other like accounts half yearly in the same manner.

62. And in case of Distress of any other of Our Plantations, you shall upon Application of the respective Governors thereof to you, assist them with what Aid the Conditions and Safety of Our said Province under your Government can spare.

63. 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 said Executive Council to take order for the present therein, provided nevertheless that what shall be done be not repugnant to the said Acts passed in the 14*11 and in the present year of Our Reign, 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, except it be for the purpose of preventing or repelling Hostilities, or unavoidable emergencies wherein the Consent of Our Executive Coun-

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cil shall be had and speedy Notice given thereof to Us, by One of Our Principal Secretaries of State.

64. AndJWhereas great prejudice may happen to Our Service, and to the Security of Our said Province by the Absence of you, Our Governor in Chief, or Our Lieutenant Governor for the time being, You shall not upon any pretence whatsoever come to 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.

65. And Whereas We have thought fit by Our Commission to direct, that in case of your Death or Absence from Our said Province,1 and in case there be at that time no Person commissionated or appointed by Us to be Our Lieutenant Governor, the eldest Executive Councillor who shall be at the time of Your Death or Absence residing within Our said Province of Upper Canada subject to such other nomination and appointment by you under the Great Seal of Our said Province as in Our said Commission is in that behalf mentioned, shall take upon him the administration of the Government, and execute Our said Commission and Instructions and the several Powers and Authorities therein contained in the manner thereby directed;2 It is nevertheless Our express Will and Pleasure that in such Case the said President shall forbear to assent to any Acts but what are immediately necessary for the Welfare of Our said Province without Our particular Order for that purpose, and that he shall not take upon him to dissolve the Assembly then in being, nor to remove or suspend any of the Members of Our said Executive Council, nor any Judges, Justices of the Peace or other Officers Civil or Military without the Advice and Consent of the Majority of the said Executive Council, and the said President is by the first Opportunity to transmit to Us by One of Our Principal Secretaries of State, the reasons for such Alterations signed by him and Our Council. And Our Will and Pleasure is, that the above Instructions with respect to such President shall also be equally observed by and binding upon such other Executive Councillor as may be nominated and appointed by you under the Great Seal of Our said Province, by Virtue of Our said Commission in that behalf.

66. And Whereas by Our different Commissions We have appointed You to be Our Governor and Commander in Chief of Our Province of Upper Canada, Lower Canada and of Our Province of Nova Scotia, including the Islands of St. John and Cape Breton, as well as of Our Province of New Brunswick, and it is Our Intention that the Lieutenant Governors commanding in the said Provinces of Nova Scotia and New Brunswick and Upper Canada should have and enjoy the full Salaries, Perquisites and Emoluments granted to them and arising from the respective Governments in as full and ample a manner as if the said Governments were under distinct Governors in Chief, it is therefore Our Will and Pleasure that you shall not at any time or times when you shall be resident and Commanding in Chief in either of Our said Provinces of Upper Canada, Nova Scotia and New Brunswick, have or receive any part of the said Salaries, Perquisites or Emoluments, but that the same shall continue to be paid and satisfied to the Lieutenant Governors of the said Provinces respectively in like manner as they usually are during Your Absence therefrom.

67. And You are upon all Occasions to send to Us by One of Our Principal Secretaries of State a particular Account of all Your Proceedings, and of the Condition of Affairs within Your Government.

G. R.

Endorsed: Instructions for The Right Honble Lord Dorchester Governor of Upper Canada. Dated 16th September 1791

1. The interpretation of the phrase “Absence from Our said Province” is discussed in the course of a report prepared by the Chief Justice of Upper Canada in 1799. See page 237. 2. See p. 12.

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INSTRUCTIONS RELATING TO TRADE AND NAVIGATION.1 GEORGE R.

C. O. Instructions. Quebec. 1786-1791.

ORDERS AND INSTRUCTIONS to Our Right Trusty and Welbeloved Guy Lord Dorchester, Knight of the Most Honorable Order of the Bath, Our Captain General and Governor in Chief in and over Our Province of Lower Canada, in Pursuance of several Laws relating to the Trade and Navigation of Our Kingdoms of Great Britain and Ireland, and Our Colonies and Plantations in America. Given at Our Court at St James’s the Sixteenth Day of September 1791. In the Thirty first year of Our Reign.

First. You shall inform yourself of the several Laws relating to the Plantation Trade, and for the Encouragement of the Trade & Navigation of Our Kingdoms of Great Britain and Ireland, and shall take the Oath ordained by Law, to do your utmost, that all the Clauses Matters and Things therein contained, or which shall be enacted in any Act of Parliament hereafter to be made, relating to Our Plantation, or to the Trade & Navigation of Our said Kingdoms, be punctually and bona fide observed according to the true Intent and meaning thereof, and in particular you are to take especial Care, that the several Acts of Parliament of Great Britain for allowing the Importation & Exportation, of certain Goods, Wares, and Merchandize into and from Our Kingdom of Ireland, from and to Our Plantations in America, in like manner as the same are exported & imported from and into Our Kingdom of Great Britain from the said Plantations be strictly complied with in your Government.

2. And whereas an Act was passed in the Twenty Sixth Year of Our Reign, intituled, “An Act for the further Increase and Encouragement of Shipping and Navigation ” It is Our Will and Pleasure that you do cause the Provisions of the said Act to be strictly enforced within your Government; And you are to be particularly attentive to such Duties as are therein required to be done and performed by you, so that the Regulations thereby made and enacted be punctually complied with.

3. And whereas the Colonies and Provinces of New Hampshire, Massachuset’s Bay, Rhode Island, Connecticut, New York, New Jersey, Pensylvania, the three lower Counties on the Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, were by the provisional Articles of Peace concluded at Paris, on the 30th of November 1782, and also by the Definitive Treaty signed on the 3d of September, 1783, declared free and Independent States, by the Name of the United States of America; And whereas by an Act made in the Twenty third Year of Our Reign, intituled, “An Act for preventing certain Instruments from being required from Ships belonging to the United States of America, and to give to His Majesty for a limited time certain Powers for the better carrying on Trade and Commerce, between the Subjects of His Majesty’s Dominions, and the Inhabitants of the said United States.” It was enacted that during the Continuance of that Act, it should be lawful for Us in Council, by Order, or Orders to be issued and published from time to time, to, give such Directions, and to make sueh Regulations with respect to Duties, Drawbacks, or otherwise for carrying on the Trade & Commerce between the People

1. From the copy in the Canadian Archives, M. 231, p. 55. The same Instructions were given for Upper and Lower Canada. These Instructions may be compared with the Trade Instructions to Carleton in 1775. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 438.

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and Territories belonging to Our Crown, & the People and Territories of the said United States, as to Us in Council should appear most expedient and salutary, any Law, Usage, or Custom to the contrary notwithstanding; the Provisions of which said recited Act have been continued & enforced by several other Acts since passed; And whereas in pursuance of the Powers vested in Us, by the Acts of Parliament aforesaid, We by several Orders issued by Us, in Our Council, have made such Regulations and given such Directions, for regulating the Trade between Our Dominions, & the said United States, as the Interest and Welfare of Our Subjects, & the Preservation and Encouragement of the Trade and Navigation of Our Kingdoms, have from time to time made necessary and expedient and particularly by that of the 4t h of April, 1787, by which We did make certain Regulations with respect to the Importation of Goods & Merchandize, the Growth and Produce of the United States of America, into our Territories and Islands in the West Indies.1 It is therefore Our Will and Pleasure, that you do in all things conform yourself, as well to the Provisions of the above mentioned Acts of Parliament, as to the Regulations and Directions contained in Our said Orders in Council; or such further Regulations and Directions, as may be contained in any future Order or Orders made by Us in Council, for the purposes aforesaid, & that you do give the proper Orders to the several Officers concerned, that due Obedience be paid thereunto.

4. You shall take Care that the Naval Officers within your Government, do give such Security to the Commissioners of Our Customs, for the true and faithful Performance of their Duty, as is by Law required.

5. And whereas it is necessary for the greater Convenience of Merchants and others, that the Naval Officers and the Collectors of the Customs should reside at the same Ports or Towns, you are therefore to take Care that this Regulation be observed, and to consult with the surveyor General of Our Customs in what Place, it may be most convenient to have the Custom House fixed, for the Dispatch of Business, if the same shall not have been already done, and to take Care that the Collector and Naval Officer reside within a convenient Distance of the Custom House.

6. You shall every three Months or oftener, as there shall be Opportunity of Conveyance, transmit to the Commissioners of Our Treasury, or Our High Treasurer for the Time being, and to the Commissioners of Our Customs in London, a List of all the Ships and Vessels trading in your Government according to the Schedule hereunto annexed, together with a List of the Bonds taken in pursuance of the several Acts herein before mentioned; And you shall cause Demand to be made of every Master, at his clearing of an Invoice, of the Contents and Quality of his Lading &c. according to the Schedule hereunto also annexed; And you shall moreover direct the several Naval Officers within your Government, to furnish you with Quarterly Lists of such Ships and Vessels, together with the Tonnage and the Names of the Masters and Owners thereof, and of the Cargoes according to the Schedule before mentioned, which you are to transmit to Us thro’ one of Our principal Secretaries of State, by the first Opportunity that shall offer, after the Expiration of such Quarter ; And it is Our Will and Pleasure, that you be particularly attentive to Our Directions in this respect, and that you do take due Care, that the several Naval Officers do strictly comply therewith.

7. You shall give Directions that the Surveyor General of the Customs for the District in which your Government lyes, be permitted to have recourse to the said Bonds, as well as to the Book or Books, in which they are, or ought to be entered,

1. The Order in Council of the 4th of April, 1787, contained regulations for the trade between the United States and the United Kingdom and between the United States and the West Indies. After enumerating the commodities which might be imported into Nova Scotia and New Brunswick from the United States and the conditions of their importation, it continued thus, “And His Majesty it, hereby further pleased to order, that no Goods, Commodities or Merchandize whatsoever shall be imported from any of the Territories belonging to the said United States into any of the Ports of the Province of Quebec.” See Sydney to Dorchester, April 6, 1787, and enclosures. The Canadian Archives, G. 1, p. 72.

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& to examine, as well whether due Entry be made, as whether they are regularly taken & discharged; And where it shall appear that Bonds are not regularly discharged, you are to order that sueh Bonds be put in Suit.

8. You shall not Assent to any Act of Assembly, or allow any Usage to prevail within your Government, which shall be repugnant to the Acts of Parliament herein before mentioned, or to any that may hereafter be made, as far as the same relate to Our Plantations in America.

9. You shall be aiding and assisting to the Collectors, & other Officers of Our Customs appointed or who shall hereafter be appointed by the Commissioners of Our Customs in this Kingdom, by and under the Authority and Direction of the Commissioners of Our Treasury, or Our High Treasurer for the time being; and also to the Officers of the Court of Vice Admiralty in your Government appointed, or who shall hereafter be appointed, by Our High Admiral of Great Britain, or Commissioners for executing the office of High Admiral, or by you, or Our Commander in Chief for the time being, as Vice Admiral within your said Government, in putting in Execution the several Acts of Parliament before mentioned; And you shall cause due Prosecution of all such Persons as shall anyway resist, or hinder any of the said Officers of Our Admiralty, or Customs, in the Performance of their Duty.

10. Whereas the Commissioners appointed for collecting the Six Pence per Month, from Seamen’s Wages for Our Royal Hospital at Greenwich, pursuant to the Act of Parliament for that purpose, have given Instructions to their Receivers in foreign Parts for their Conduct therein ; It is Our Will and Pleasure, that you be aiding and assisting to the said Receivers in your Government, in the due Execution of their Trusts.

11. You shall take Care that upon any Actions, Suits and Informations that shall be brought, commenced or entered in any Court within your Government, upon any Law, or Statute, concerning Our Duties, or Ships, or Goods to be forfeited, by reason of any unlawful Importation, or Exportation, there be not any Jury impannelled, but of such as are Natives of Great Britain, Ireland, or some of Our Plantations and entitled by Law, to the Privileges of British Subjects.

12. You shall from time to time advise thp Commissioners of Our Customs in London of all Failures, Neglects, Frauds and Misdemeanors of any of the Officers of Our Customs within your Government, and shall also communicate to them, all Occurences which you may think necessary for their Information, relating either to any of the Acts hereinbeforementioned, or to Our Revenue, under their Management.

13. If you shall discover that any Persons, claiming Right or Propriety in any Island, or Tract of Land in America, by Charter, Letters Patent, or other Grant, shall at any time hereafter, alien, sell, or dispose of such Right or Propriety other than to Our natural born Subjects of Great Britain, Ireland or Our Plantations in America, without the License or Consent of Us, Our Heirs & Successors, signified by Our, or Their Order in Council first had and obtained, you shall give Notice thereof to Us, thro’ one of Our principal Secretaries of State, and to the Commissioners of Our Treasury, or Our High Treasurer of Great Britain for the time being.

14. And whereas notwithstanding the many good Laws made from time to time, for preventing Frauds in the Plantation Trade, it is manifest that very great Abuses have been, and still continue to be practised,, to the Prejudice of the same, which Abuses must needs arise either from the Insufficiency, or Insolvency of those Persons who are accepted as Securities, in Bonds required by Law, or from the Remissness, or Connivance of Our Governors, who ought to take due Care that those Persons who execute such Bonds should be sued for Breaches of the Conditions of such Bonds, you are to take Notice that We consider the Good of Our Plantations and the Improvement of the Trade thereof, by a strict and punctual Observance of the several Laws in force concerning the same, to be of so great Importance to the Benefit of this Kingdom, and to the advancing of the Revenue of Our Customs, that, if We shall hereafter be informed that at any time there shall be any Failure in the due Observance of those

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Laws, and of these present Instructions, by any wilful Neglect or Fault on your Part, we shall esteem such Neglect to be a Breach of the same; And We think proper to apprize you, that it is Our fixed and determined Will and Intention, to remove you, or Our Commander in Chief for the time being, from your Employments, for any such Offence, and that We will strictly levy and inflict as well the Fine of One Thousand Pounds, imposed by an Act passed in the Seventh & Eighth of King William the Third, Chap: 22a as all other Fines, Forfeitures, Pains and Penalties, to which you shall for such Offence be liable by any Acts of Parliament now in force, or otherwise—And that you will further on the same account receive the most rigourous Marks of Our Highest Displeasure.

G. R.

Endorsed: Trade Instructions For the Right Honble. Lord Dorchester K.B. Governor of Lower Canada. Dated 16th September 1791.

N.B.—Similar Instructions were Signed and bearing the same date for his Lordship as Governor of Upper Canada.

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A LIST of Ships and Vessels which have cleared Outwards1 at the Port of in the between the day of and the day of Quarter ended at with the particular Quantity and Quality of the Lading of each Vessel.

In the Register of Prize Ships, the Capture and Condemnation must be also especially mentioned instead of the Time and Place of Building; List of all Ships, trading to or from the Plantations, or from one Plantation to another, to be prepared Quarterly, by the Collector of the Customs, &. 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 ; and to the Commissioners of His Majesty’s Customs in London by the first Opportunity of Shipping every Quarter.

1. The schedule for vessels entering port has not been reproduced. With the substitution of “Time of Entry” and “From Whence” for “Time of Clearing” and “Whither Bound” it is the same as that here given.

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COMMISSION TO ALURED CLARKE AS LIEUTENANT GOVERNOR OF LOWER CANADA.1

GEORGE R.

GEORGE THE THIRD by the Grace of God, King of Great Britain, France and Ireland, Defender of the Faith &c,

To OUR Trusty and Wellbeloved ALURED CLARKE2 Esquire, Major General of Our Forces, 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 Governor of Our Province of Lower Canada, 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 er appertaining; and further in case of the death or during the absence of Our Captain General and Governor in Chief of Our said Province of Lower Canada 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 said Captain General and Governor in Chief according to such Instructions as he hath already received from Us, and such further Orders and Instructions as he or you shall hereafter receive from Us.

AND WE do hereby command all and singular Our Officers, Ministers and loving Subjects in Our said Province, and all others whom it may concern to take due notiee hereof and to give their ready obedience accordingly.

GIVEN at Our Court at St. James’s the twelfth day of September, 1791, in the thirty-first year of Our Reign.

BY HIS MAJESTY’S COMMAND, HENRY DUNDAS.

Major General Alured Clarke. Lieutenant Governor of the Province of Lower Canada.

1. From the Commission as entered in Lib. E, Imperial Commissions, Folio 18, in the office of the Eegistrar General of Canada. 2. Prior to his connection with Canada, Alured Clarke had served in varions important commands. From 1782 to 1790, he was Lieutenant-Governor of Jamaica. He was appointed Lieutenant-Governor of Quebec, March 19, 1790, and entered on his duties in October of that year. On Lord. Dorchester’s departure for England in August, 1791, Clarke assumed the administration of the government and acted as Governor of Lower Canada until the return of Lord Dorchester in September, 1793.

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COMMISSION TO JOHN GRAVES SIMCOE AS LIEUTENANT GOVERNOR OF UPPER CANADA.1

GEORGE R.

GEORGE THE THIRD by the Grace of God of Great Britain France and Ireland King Defender of the faith &c To Our trusty and welbeloved JOHN GRAVES SIMCOE,2 Esq.1.

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 Governor of our Province of Upper Canada in America—To have hold exercise and enjoy the said place & office during Our pleasure, with all rights Privileges, profits, perquisites It advantages to the same belonging or appertaining, and further in case of his Death, or during the absence of Our Captain General and Governor in Chief of Our said Province of Upper Canada 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 said Captain General & Governor in Chief according to such Instructions as he hath already received from Us, and such further Orders & Instructions as he or you shall hereafter receive from Us, & we do hereby command 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 twelfth day of September 1791—In the Thirty first year of Our Reign—

By His Majesty’s Command (Signed) HENRY DUNDAS

Register ” A.” Commissions. 1651-1841

PROCLAMATION.3

FIXING THE DAY FOR THE COMMENCEMENT OF THE NEW CONSTITUTION.

ALURED CLARKE.

GEORGE THE THIRD by the Grace of GOD of Great Britain France and Ireland KING Defender of the Faith and so forth—

To all Our loving Subjects whom these Presents may concern

GREETING—WHEREAS WE have thought fit by and with the Advice of Our Privy Council by Our Order in Council4 dated in the month of August last to order that Our Province of Quebec should be divided into two Distinct Provinces to be called the Province of Upper Canada and the Province of Lower Canada by separating the said two Provinces according to the following Line of division vizt To commence at a Stone boundary on the North Bank of the Lake S* Francis at the Cove West of

1. From the Commission as entered in Register “A,” Commissions, Folio 6, in the Office of the Registrar General of Canada. 2. Colonel John Graves Simcoe first gained distinction as the officer in command of the Queen’s Rangers in the campaign against the revolting colonies. His military career closed with the surrender of Cornwallis at Yorktown. In 1790, he was elected to the British parliament and took a keen interest in the passage of the Constitutional Bill. When it was decided to divide the Province of Quebec, Simcoe was selected for the Government of Upper Canada. 3. From the original parchment, Canadian Archives, Proclamations, Lower Canada, 1791. The Proclamation was published in The Quebec Gazette of December 1, 1791. Copies are to be found in Q. 57-1, page 186 and 58-1, page 5. 4. See page 3.

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Pointe au Bodet in the limit between the Township of Lancaster and the Seigneurie of New Longueuil running along the said Limit in the direction of North Thirty fatr degrees West to the Westermost Angle of the said Seigneurie of New Longueuil thence along the North western Boundary of the Seigneurie of Vaudreuil running North Twenty five degrees East until it strikes the Ottawas River to ascend the said River into the Lake Tomiscanning and from the Head of the said Lake by a Line drawn due North until it strikes the boundary line of Hudson’s Bay including all the Territory to the Westward and Southward of the said line to the utmost extent of the Country commonly called or known by the name of Canada AND WHEREAS by an Act passed in the last Session of Parliament 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 It is provided that by reason of the distance of the said Provinces from Great Britain and the change to be made by the said Act in the Government thereof it may be necessary that there should be some interval of Time between the notification of the said Act to the said Provinces respectively and the day of its commencement within the said Provinces respectively And that it should be Lawful for Us with the advice of Our Privy Council to fix and declare or to authorize the Governor or Lieutenant Governor of Our Province of Quebec or the Person administering the Government there to fix and declare the day of the Commencement of the said Act within the said Provinces respectively provided that sueh day shall not be later than the Thirty first day of December One thousand seven hundred and Ninety one1 AND WHEREAS in pursuance of the said Act We have thought fit by another order in Council2 bearing date the Twenty fourth Day of August last to Authorize Our Governor or in His Absence Our Lieutenant Governor or the Person administering the Government of Our said Province of Quebec to fix and declare such Day as he should judge most adviseable for the Commencement of the said Act within the Province of Upper Canada and the Province of Lower Canada respectively And to that effect have by Our Warrant3 to Our right Trusty and wellbeloved Guy Lord Dorchester Captain General and Governor in Chief in and over Our said Province of Quebec or in his absence to Our Lieutenant Governor or Commander in Chief of Our said Province for the time being under Our Signet and Royal Sign manual bearing date at St James’s the Twelfth day of September last Signified Our Will and pleasure that He take the necessary measures accordingly KNOW YE “therefore that Our Trusty and Wellbeloved Alured Clarke Esquire Our Lieutenant Governor of Our said Province of Quebec in the absence of Our said Governor thereof Hath Judged it most adviseable to fix upon Monday the Twenty sixth day of December next for the Commencement of the said Act within the Provinces aforesaid respectively and it is accordingly hereby declared that the said Act of Parliament 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 shall commence within the said Provinces of Upper Canada and Lower Canada respectively on Monday the said Twenty sixth Day of December in this present Year One thousand seven hundred and Ninety one of which all OUR loving Subjects and all others concerned are to take notice and govern themselves accordingly IN TESTIMONY Whereof We have caused these Our Letters to be made Patent and the Great Seal of OUR said Province of Quebee to be here to affixed WITNESS .OUR Trusty and Wellbeloved ALURED CLARKE Esq OUR Lieutenant

1. See Article XLVIII. of the Constitutional Act. Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 708. 2. See page 3. 3. For the Warrant see the Canadian Archives, Q. 59B, page 199.

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Governor and Commander in Chief of OUR said Province of Quebec Major General Commanding OUR Forces in North America &c .&o &c at OUR Castle of Saint Lewis in the City of Quebec this Eighteenth Day of November in the Year of OUR LORD One thousand seven hundred and Ninety one and in the Thirty second Year of OUR

HUGH FINLAY, Acting Secretary.

SIMCOE TO DUNDAS1

Duplicate N°1

Quebec Novr 19th 1791

Sir,

In a conversation which I have had with Mr Chief Justice Smith,2 He appears decidely of opinion, That, from the Moment Lieut Governor Clarke shall issue his Proclamation,3 in December next agreable to the Act of Parliament & fix & Declare the commencement of the late Act of Parliament by which the new form of Government is Constituted in Upper & Lower Canada, there will be a defiency of that part of the executive Government, which is Vested in the Governor or Lieut Governor be extended in remitting fines or forfeitures, nor its Justice exemplified in executing the Sentence of Death; & this defect He supposes not to admit of remedy, for the present, as there is not in America, a Major part of the executive Council of Upper Canada,4 to administer the Oaths necessary for me, to qualify myself to take upon me the Government agreable to my Commission;5 & He conceives it utterly impossible that Liet. Governor Clarke having received his Commission, as Lieut. Governor of Lower Canada can in any shape, administer the Government of Upper Canada. Submitting, to such high Legal Authority as that of the Chief Justice, I have only desired that his opinion may not be publicly divulged; & at the same time I have stated to the Chief Justice that, I conceive, all the inferior degree of Magistracy do remain in full force, Authority & Effect, as being derived from those Laws, Statutes, or Ordinances, which in the 33d Clause of the Canada Bill are declared to operate as if the Province of Quebec had not been divided.6

The Chief Justice intimates his Surprize that there was not inserted a clause in Lord Dorechesters Instructions, which had obtained generally in those of the Governors of the Ancient Colonies of Great Britain, to authorize the Governor to nominate executive Councellors in case of the want of a sufficient Number, (from whatever reason it might arise,) to carry on the necessary Business of Government: & such Executive Councellors, He said, might exist, pro hac vice, & under whatever limitations his Majesty in his Wisdom should think fit—

I cannot but think such a Clause, Sir, to be well worth your consideration, as the Executive Council of Upper Canada Canada, is very limited in point of Numbers. The present Executive Council of Upper Canada is very limited in point of Numbers. The present Executive Council consists of four Members viz—Chief Justice Osgoode, Mr Robertson, Mr Grant & Mr Russel: & by a letter I received from Mr Nepean, I understand that a Gentleman from Detroit is to be added to this Number, for whom

1 From the contemporary copy in the Canadian Archives, Duplicate Despatches, Upper Canada, 1791. Another copy is to be found in Q. 278, page 7. 2. See page 14, note 1. 3. See page 55. 4. Mr. Grant was at this time the only member of the Executive Council in Canada. 5. See Dorechester’s Commission, page 5. 6. Simcoe feared that in the absence of a Proclamation continuing the Judges and Justice in office the magistrates might refuse to act. This question is discussed at greater length in his despatch to Dundas of December 7, 1791.

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a Blank is left in Lord Dorchesters Instructions—There is also another Blank left in the same Instructions for some other Person, but for whom I have not the slightest Intimation—

I do not apprehend that Lord Dorchester or myself in his Absence, has any Authority to legally fill up these Blanks—I wish that Mr Jacques of Detroit may he appointed to the first Vacancy both in the Executive & Legislative Councils1 as I understand he is the most proper Person in that District from whence it is but Justice that a French Gentleman of indisputable Loyalty should be selected & the other Vacancy I think it would be proper to empower me to dispose of as I shall think fit, to the Speaker or some Member, in all probability, of the House of Assembly—There is not at present any one of this Executive Council, in Canada, except Mr Grant—

The Season will probably be very late before such a Number of the Executive Council can be convened beyond the Point au Boudet, as to invest me in the Office of Lt Governor—

I submit to your Consideration whether an Instruction framed to enable me to call together a certain Discription of Persons for that Especial Purpose would, orwould not be an advisable measure2—The Necessity of ordering all the Civil Officers of the Government to repair to Montreal as early as possible will I dare say attract your Notice—

I have the honor to be with the utmost respect—

Sir, Your most Obedient & most Humble Servant

J. G. SIMCOE.

To The Right Honble Henry Dundas &c. &c. &c. one of his Majestys Principal Secretaries of State. Whitehall London.

1. Simcoe had been asked in July to recommend persons qualified to represent the French Canadian settlement at Detroit in the Executive Council. (The Canadian Archives, Q 278, page 172.)

2. No instructions were given in this respect. Matters were allowed to stand until the spring when the arrival of Osgoode and Russell permitted the constitution of the Executive Council.

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REPORT OF EXECUTIVE COUNCIL RESPECTING CROWN LANDS.1

Saturday 4 a February 1792.

At the Council-Chamber in the Bishop’s Palace.

PRESENT

His EXCELLENCY MAJOR-GENERAL CLARKE LIEUTENANT-GOVERNOR.

The Honorable William Smith Esquire and The Honorable Francois Baby Joseph De Longueuil & Thomas Dunn Pierre Panet Esquires

Report on the Reference respecting the Waste Lands.

His Excellency communicates to the Board a Report of the Committee upon the Reference of His Majesty’s Instructions relating to the Waste Lands of the Crown,2 together with a Draft of the Proclamation required by the Reference, which are approved of and ordered to be entered.

” To His Excellency Alured Clarke Lieutenant-Governor of the Province of Lower Canada and Major General of His Majesty’s Forces &c &c &c.

“Report on the Reference of the Royal Instructions for the disposal of the Crown Lands in Lower Canada, to a Committee of the Executive Council, the Members assembled being the Chief-Justice, Mr Finlay, Mr Baby and Mr Dunn,

“MAY IT PLEASE YOUR EXCELLENCY,

“The Committee upon consideration had of His Majesty’s Instructions relating to the Waste Lands of the Crown, and an Extract from the Secretary of State’s Letter of the 16th of September3 accompanying the same, humbly report,—

That it is expedient to make His Majesty’s most gracious intentions for the Population, Strength and Prosperity of the Province, immediately and generally known, by printing and dispersing copies of some Proclamation of the Tenor of the Draft herewith delivered.

“That in the Defect of a Regulation for the Conduct of the officer concerned in the Land granting Department, it is expedient to frame a Table of fees, to which all the Petitioners for the Crown-lands may have access.—

1. From the original minutes, Canadian Archives, State Book A, Lower Canada, page 17 2. See the Instructions to Dorchester, Articles 31-40, page 21. 3. The despatch of Mr. Dundas to Lord Dorchester, No. 1 of September 16, 1791, contains the instructions for the appropriation of lands to be known as the Crown Reserves. “The general Instructions which accompany this will sufficiently explain to your Lordship His Majesty’s intentions with respect to the nature and extent of the Lands to be reserved for the support of the Protestant Clergy. In addition to which, His Majesty’s Servants are of opinion that other reservations should be made for the benefit of the Crown within the several Towns and Townships, for the purpose of raising, by sale or otherwise, a fund, to be hereafter applied towards the support of Government.” ” These reservations should be made in sueh situations, and be so intermixed with Lands to be granted to other persons, as may render the possession of them objects to such persons when the Lands originally granted to them shall have been cultivated. The extent of these reservations, it is conceived, should not be less than that which has been directed to be allotted for the Protestant Clergy, and, it is expected that by a judicious choice sueh reservations may ultimately become an Object of considerable importance in the way I have mentioned.”—(The Canadian Archives, Q 52, page 211.)

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” That for such Table and Regulations the Prerogative of the Crown is competent, and the Interposition of the Legislature neither necessary nor expedient. In confirmation of which opinion, the Committee observe, that the Table of fees ought to be such, as while it fulfils the Royal Intention of improving and peopling the Province, as essential to its welfare and safety, should (that End answered) be of as little expenee as possible to the Crown ; and the Table of fees, as a measure of experiment, should therefore be alterable at the pleasure of the Government alone. And until His Majesty shall otherwise command, may stand upon the authority of the Governor and Council, entered in the Minutes of the Board, and copies hung up in all the Offices thro’ which the Grants are to pass—

“That the Committee do not conceive it to be necessary, to put the whole Charge of Surveys upon the Crown; but that the royal bounty, so favorable to settlers in other respects, will suffice even tho’ a part of the Charge of the Work in the Field for ascertaining the Grants desired, should be borne by the Petitioners ; and that sueh contribution will rather expedite than retard the execution of His Majesty’s most gracious intentions—

“The Committee are further of opinion, that the Proclamation should also be silent, as to the Town Spots in the large Townships to be granted, Husbandry being the first object, and Village Settlements following as the Population by Farmers advances, and then in such locations as Accident or a coincidence of circumstances may direct : and for this reason, the Proclamation is so framed as to reserve to the Government, the power of devoting a proportion for Villages, where the utility of the measure shall become apparent, and a Township to be created, shall be so well known, as to enable the Crown to provide for a close settlement in it, and to designate the Spot.—

” All which is nevertheless humbly submitted to your Excellency’s great wisdom”

“Signed by Order 30th Jany 1792

(Signed) “WM. SMITH Chairman.”

A PROCLAMATION.1

To such as are desirous to settle on the Lands of the Grown in the Province of Lower Canada.

BY HIS EXCELLENCY ALURED CLARKE, Esquire, Lieutenant Governor and Commander in Chief of the said Province, and Major General of His Majesty’s Forces, &c &c &c.

BE IT KNOWN -to all concerned, that His Majesty hath by His Royal Commission and Instructions to the Governor,2 and in his absence to the Lieutenant Governor or

1. From the copy published in The Quebec Gazette, February 16, 1792, and enclosed in Clarke to Dundas, Ño. 21, Canadian Archives, Duplicate Despatches, Lower Canada. In transmitting this Proclamation Lieut. Governor Clarke remarked, ” This Proclamation has been published with the advice of the Executive Council, as will appear by the enclosed Minute of their proceedings but it is not so declared in the Body thereof, in order to accommodate Colonel Simcoe, who wished at the same time to issue a Proclamation respecting the Crown Lands in Upper Canada, exactly corresponding to that published here, and who could not in his present situation avail himself of the advice of His Council, at his request also I have omitted to add the short description of the natural advantages of the soil and climate and its conveniences for trade as recommended in the same Article of the Instructions, he not having yet acquired a sufficient knowledge of the country to enable him to do it. ” No regulation of the quantum of fees payable on grants of lands exists at present in this Province, as is supposed by the 34th Article of the Royal Instructions.” Canadian Archives, Q 58-1. p. 97. Colonel Simcoe issued a similar Proclamatipn for Upper Canada on the same day. It is signed by Thos. Talbot, Acting Secretary. See Simcoe to Dundas, No. 4, February 16, 1792. A contemporary copy may be found in the Canadian Archives, Duplicate Despatches, Upper Canada, 1792. 2. See pages 5 and 13.

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person administering the Government for the time being of the said Province of Lower Canada, given Authority and Command to grant the Lands of the Crown in the same by Patent under the Great Seal thereof; and it being expedient to publish and declare the Royal Intention respecting such Grants and Patents, I do accordingly hereby make known the Terms of Grant and Settlement to be:

First. That the Crown Lands to be granted be parcel of a Township: If an inland Township, of Ten Miles square, and if a Township on navigable Waters, of Nine Miles in Front and Twelve Miles in Depth, to be run out and marked by His Majesty’s Surveyor or’ Deputy Surveyor General, or under his sanction and authority.

Second. That only such part of the Township be granted as shall remain, after a reservation of one seventh part thereof for the support of a Protestant Clergy, and one other seventh part thereof, for the future disposition of the Crown.

Third. That no Farm Lot shall be granted to any one person which shall contain more than two hundred acres; yet the Governor, Lieutenant Governor or Person sdministering the Government, is allowed and permitted to grant to any person or persons sueh further quantity of Land as they may desire, not exceeding one thousand acres over and above what may have been before granted to them.

Fourth. That every Petitioner for Lands make it appear, that he or she is in a condition to cultivate and improve the same, and shall besides taking the usual Oaths, subscribe a Declaration (before proper persons to be for that purpose appointed) of the tenor of the words following, viz.

” I , A. B. do promise and declare that I will maintain and defend to the utmost of my power the authority of the King in His Parliament as the supreme Legislature of this Province.”

Fifth. That application for Grants be made by petition to the Governor, Lieutenant Governor, or person administering the Government for the time being, and where it is adviseable to grant the Prayer thereof a Warrant shall issue to the proper Officer for a survey thereof, returnable within six months with a Plot annexed, and be followed with a Patent granting the same, if desired, in Free and Common Soccage, upon the terms and conditions in the Royal Instructions expressed, and herein after suggested.

Sixth. That all Grants reserve, to the Crown all Coals, commonly called Sea Coals, and Mines of Gold, Silver, Copper, Tin, Iron, and Lead; and each Patent contain a clause for the reservation of Timber for the Royal Navy of the tenor following:

” And provided also, that no part of the tract or parcel of Land hereby granted to the said and his heirs, be within any Reservation heretofore made and marked.for Us, Our Heirs and Successors by Our Surveyor General of Woods, or his lawful Deputy; in which case, this Our Grant for such part of the Land hereby given and granted to the said and his heirs forever as afore said, and which shall upon a survey thereof being made, be found within any such Reservation, shall be null and void, anything herein contained to the contrary notwithstanding.”

Seventh. That the two sevenths reserved for the Crown’s future disposition, and the support of a Protestant Clergy, be not severed Tracts each of one seventh part of the Township, but such Lots or Farms therein as in the Surveyor General’s Return of the survey of the Township, shall be described as set a part for these purposes, between the other Farms of which the said Township shall consist, to the intent that the Lands so to be reserved, may be nearly of the like value with an equal quantity of the other parts to be granted out as afore-mentioned.

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Eighth. That the respective Patentees are to take the Estates granted to them severally free of Quit Rent and of any other Expences, than such Fees as are or may be allowed to be demanded and received by the different Officers concerned in passing the Patent and recording the same, to be stated in a Table authorized and established by the Government and publickly fixed up in the several Offices of the Clerk of the Council, of the Surveyor General, and of the Secretary of the Province.

Ninth. That every Patent be entered upon record within Sis Months from the Date thereof, in the Secretary’s or Register’s Offices, and a Docket thereof in the Auditor’s Office.

Tenth. Whenever it shall be thought adviseable to grant any given Quantity to one person of one thousand acres or under, and the same cannot be found by reason ef the said Reservations and prior Grants within the Township in the Petition expressed, the same, or what shall be requisite to make up to sueh Person the Quantity advised, shall be located to him, in some other Township upon a new Petition for that purpose to be preferred.

And of the said several Regulations, all Persons concerned are to take Notice and govern themselves accordingly.

GIVEN under my Hand and Seal at Arms at the Castle of Saint Lewis, in the City of Quebec, the Seventh Day of February, in the Thirty-second Year of His Majesty’s Reign, and in the Year of Our Lord One thousand seven hundred and ninety- two.

ALURED CLARKE.

By His Excellency’s Command,—A. C.

HUGH FINLAY, acting Secretary.

CLARKE TO DUNDAS.1

No. 25.

QUEBEC, 28th April, 1792.

SIR,

Inclosed I have the honor to transmit you Copies of the Minutes of Council concerning State matters from the 26th December last to the 11th Instant.

I inclose also Exemplifications under the Great Seal of the Province & printed Copies of two Ordinances2 enacted by the Governor and Executive Council on the 24tb February last, with a paper of Observations respecting them.

Besides the remarks therein made relative to the Court of Appeals, I wish to call the attention of the King’s Ministers to that part of the Minutes which states it to be the opinion of the Council that by the late Act the Governor. Lieut. Governor or Person administering the Government should always preside in that Court which in this Country, where it meets monthly and sits as long as there is any business before it, will employ much of his time, and may be productive of great clamour and inconvenience by impeding the regular Course of Justice, should his other duties, which in his Military capacity may become very important, call him to a distant part of the Province.

By the Royal Instructions, such Members of the Executive Council as shall be at that time Judges of the Court from whence an Appeal shall be made are not to

1. From the contemporary copy in the Canadian Archives, Duplicate Despatches, Lower Canada, 1792. 2. One Ordinance is that published at page 68; the other was an ordinance to facilitate the production of Parol Proof in Civil Causes.

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be permitted to vote upon the said Appeal.1 The Judges of the Common Pleas are fey their Commissions authorized to officiate in each and every district—It is therefore submitted whether those who are of the Council may not sit and vote in Appeal in Causes at which they have not before assisted in the Court below.

The Instructions being silent as to the Members necessary to form a Quorum of the Executive Council, and the Royal Commission having fixed three as the number before whom the Governor was to take the Oaths of Office, that rule has been adopted, as sufficient for all purposes, which I trust will be approved.

The governor not being vested with an authority to appoint Members of the Council protempore, in ease they should be reduced to a number too few to transact business, it is submitted whether such power might not be conducive to His Majesty’s Service.

I have the honor to be with great respect, Sir Your most obedient and most faithful humble servant, ALURED CLARKE.

The Right Honble. Henry Dundas.

OPINION OF HIS MAJESTY’S SOLICITOR GENERAL FOR THE PROVINCE OF LOWER CANADA SUBMITTED TO THE HONORABLE BOARD OF COUNCIL UPON HIS EXCELLENCY’S REFERENCE TO THE BOARD OF THE 9T H INSTANT TO REPORT “WHAT THE ADMINISTRATION OF JUSTICE IN THE COURT OF APPEALS MAY REQUIRE.”2

May it please Your Honors,

In order fully to meet the requirements of the reference, it is necessary to take into contemplation the Statute of the 14*11 of His Majesty ch. 83 commonly called the Quebec Act. His Majesty’s Commission to His Excellency Governor Carleton in consequence of that Act, The Royal Instructions, if attainable, that accompanied that Commission, and the provincial Ordinance of 1777 Ch. 1. as well as the l9t. 33d. 34th. 48th. & 50a . Sections of the Statute of the 31s t . of His Majesty ch. 31. which I shall term The Ganada Act, His Majesty’s Commission to his Excellency Lord Dorchester in consequence of that Statute and the 4th article of the Royal Instructions accompanying that Commission.

By the Quebec Act, Sect. 12.s it was enacted that His Majesty should & might constitute and “appoint a Council for the affairs of the province of Quebec, who should have power and authority to make Ordinances for the peace welfare & good government of the province with the consent of His Majesty’s Governor, &c, and after several provisions therein specified, It was also enacted at Sect. 17.

1. See Article 4 of the Instructions, page 14. 2. Owing to the uncertainty of the Constitution of the Court of Appeal the Lieutenant Governor asked the Committee of the whole Council to report “what the Administration of Justice in the Court of Appeals may require, with liberty to avail themselves of the Opinions of the King’s Solicitor General and of such Gentlemen of the Law as He may elect to His aid therein.” (Minutes of Executive Council, January 9, 1792). Opinions were secured from the Solicitor General, Mr. Ogden, Mr. DeBonne, Mr. A. Panet, Mr. Berthelot Dartigny and Mr, Jonathan Sewell. These formed part of the report of the Committee of Council and were the basis of the Ordinance which follows. The opinion of the Solicitor General is here given in the form in which it appears in the Minutes of the Executive Council, State Book A, Lower Canada, page 30. 3. Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 404.

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” That nothing therein contained should extend or be construed to extend to prevent or hinder His Majesty His Heirs or Successors, by His or their Letters Patent under the Great Seal of Great Britain from erecting constituting and appointing Courts of Criminal Civil & Ecclesiastical Jurisdiction within & for the said province of Quebec, and appointing from time to time the Judges and Officers thereof.”

His Majesty by his Commission under the Great seal of Great Britain to His Excellency Governor Carleton dated at Westminster the 3d of January 1775, was pleased ” to give and grant unto His Governor full power & authority, with the advice & consent of His Council, to erect constitute & establish such & so many Courts of Judicature & public justice within his Government as he and they should think fitj & necessary for hearing & determining all Causes as well Criminal as Civil.”—And also—” to grant to his Governor full power & authority to constitute and appoint Judges and other necessary Officers & Ministers for the better administration of Justice and putting the Laws in execution.”1

I am not armed with any of the Royal Instructions which accompanied that Commission but His Majesty by his Commission delegates to the Governor & Council the power of erecting the civil and criminal Courts, and to the Governor alone the appointment of the Judges thereof.2

By the authority of the Quebec Act and His Majesty’s said Commission, the Governor & Legislative Council of the day by the Ordinance of 1777 ch. 1. article 4, erected a Superior Court of civil jurisdiction for hearing and determining Appeals. It run in these words,

“The Governor & Council are hereby erected &-constituted a superior Court of Civil Jurisdiction (whereof in the absence of the Governor and Lieutenant Governor the Chief Justice shall be President) for hearing & determining all appeals from the inferipr Courts of Civil Jurisdiction within the province, in all cases where the matter in dispute shall exceed the sum of Ten pounds sterling or shall relate to the taking or demanding any duty payable to His Majesty, or to any fee of Office, or annual rents, or such like matter or thing where the rights in future may be bound, though the immediate sum or value appealed for be less than Ten pounds sterling.—And any five Members of the said Council (the Judges who shall have given the Judgment appealed from excepted) with the Governor, Lieutenant Governor or Chief Justice shall constitute a Court for that purpose, which shall sit the first Monday in every Month throughout the year, and continue sitting each month as long as the business before it may require—And the said Court of Appeals shall have power to revise & examine all the proceedings in the Court below, and to correct all errors both in fact and in Law, and to give such Judgment as the Court below ought to have given, and on such judgment to award and issue such execution as the law shall direct.”3

Thus, in the year 1777, the Court of Appeals was erected, its Judges described, and its Jurisdiction defined. But the existence of that Court extinguished on the day of the commencement of the Canada Act in this province by the operation of the 1st Section thereof,4, which repeals so much of the Quebec Act as in any manner relates to the appointment of a Council for the affairs of the province of Quebec, or to the power given by the said Act to the said Council. It took effect here on the 26th

1. See Canadian Archives, M 229, pages 42 and 43. 2. See Articles 12-19 of the Instructions to Carleton, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 422. 3. Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 464. 4. Ibid, page 694.

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of December last in consequence of his Excellency’s proclamation1 of the 18th of November issued pursuant to the 48th Section of the Act.

By the 33a Section2 all the Laws Statutes and Ordinances in force on the day the Commencement of the said Act in this province are to remain & continue in force, but with this exception, viz,

” Except in so far as the same are expressly repealed or varied by this Act, or in so 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 Successors by and with the advice & consent of the Legislative Council & Assembly 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 hereinafter mentioned “—alluding to the 50th Section.

The Ordinance of 1777 ch. 1. constituting the former Court of Appeals, describing its Judges, and ascertaining its Jurisdiction, was a Law in force on the day of the commencement of the Canada Act—Here the Question is raised,

” Whether the Constitution of that Court, the description of its Judges, and the designation of its Jurisdiction, are, or any and what part of the is repealed or varied by the Canada Act ?”

The legal answer to this question will depend upon a right construction of the 34a section, which runs in these words,

” And Whereas by an Ordinance passed in the province of Quebec the Governor and Council of the said province were constituted a Court of civil jurisdiction for hearing & determining appeals in certain eases therein specified, 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 & determining appeals within the same, in the like cases, and in the like manner & form, & subject to the like appeal therefrom, as such appeals might before the passing of this Act have been heard and determined by the Governor & Council of the province of Quebec; but subject nevertheless to such other or further provisions as may be made in this behalf, by any Act of the Legislative Council & Assembly of either of the said provinces respectively, assented to by His Majesty, his Heirs or Successors.”

Here we see a new Court of Appeals erected immediately after the dissolution of the former one, and a different description of the Judges of that Court, but with the same Jurisdiction in every respect. The Governor or Lieutenant Governor, or person administering the Government of the province, together with the Executive Council are to compose the Court. The Court being so Composed are to hear and determine appeals in the like cases and in the like manner & form, and subject to such appeal therefrom, as heretofore under the Ordinances made in consequence of the Quebec Act. If it should be conceived that the presence of the Governor or Lieutenant Governor or person administering the Government is unnecessary upon the Bench, it would then be reduced to the executive Council alone, which in my opinion is not Warranted ,it would be irregular.3

As to the number of the Members of the Executive Council requisite for composing a Court, with the Governor or Lieutenant Governor or person administering the Government, three members in my opinion in case a greater number cannot attend, may

1. See page 55. 2. Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 702. 3. This is the view expressed in all six opinions.

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with the Governor or Lieutenant Governor or person administering the Government compose a competent Court, and I ground my opinion upon the Clause in His Majesty’s Commission whereby the Executive Council or any three or more of the Members thereof are empowered and required to tender & administer to the Governor the oaths therein directed,1 whence I conclude that the Governor and any three or more of the Members are considered a competent Board of Council, and as such by the 34th Section of the Statute may compose a competent Court of Civil Jurisdiction for hearing & determining Appeals; but for making Temporary Laws the consent of the major part of the Executive Council is required by the 50th Section. I consider as I have before abserved, that so much of the article of the Ordinance of 1777 ch. 1. as relates to the erection or constitution of the Court of Appeals, and the description of its Judges, to be totally varied by the said 34th Section of the Act, and therefore what is mentioned in that article of the Ordinance, of 1777 whereby the President and any five of the Members of the then Legislative Council were to compose a Court, has no relation to the Court as it now stands, constituted by the 34th section of the Act, followed up by the 4th article of the Royal Instructions.2

If this Interpretation of the Act is not admitted to be right, the subject as it regards the King’s Prerogative, becomes very delicate.

The Act says the Governor or Lieutenant Governor or person administering the Government together with sueh executive Council as should be appointed by His Majesty, are to compose the Court of Appeals. It is true that His Majesty’s Commission to the Noble Lord our Governor gives and grants to His Lordship full power and authority with the advice of the executive Council, “but subject nevertheless io the provisions of the said Act, and to such further powers, authorities and Instructions as His Majesty may therewith or at any time thereafter give to His Governor in that behalf under his Majesty’s signet & sign manual or by his Order in his privy Council, to erect constitute and establish such Court or Courts of Judicature and public justice within this province as He and they should think fit for the hearing & determining of all Causes as well Criminal as Civil according to Law and equity—And that His Majesty therein empowers the Governor to constitute & appoint Judges &e. But the Canada Act has erected, constituted & established the now Court of Appeals for this province, and His Majesty has been graciously pleased to constitute and appoint the Judges thereof—Therefore I humbly conceive it to be unsafe under any Construction of the 50th Section to deviate by any temporary law to be made, from the Act itself either respecting the constitution of the Court, or the description of the Judges thereof.

There are seven Members of the Executive Council resident within the province, and at any rate His Excellency the Lieut. Governor with a majority of the nine members named (if your Honors should think I am wrong in my opinion that three are sufficient) will compose a competent Court.

I am therefore of opinion that the Constitution of the present Court of Appeals and the description of the Judges thereof, require no declaratory or Explanatory Law, the same being sufficiently explicit in the words of the Statute and in the Royal Instruction.

1. For the Commission, see page 5. For a decision relative to a quorum of the Executive Council in Upper Canada, see page 214. 2. On this question a difference of opinion arose. Mr. Ogden consideied it a proper question for Legislation. He was of opinion that if the whole of the fourth Article of the Ordinance of 1777 was barely intended to constitute the Court of Appeals then it was repealed by the Act of 1791. But if the second section of the fourth article was to he considered as part of the Practice and Procedure of the Court it still remained in force and five members would constitute a quorum. Mr. DeBonne says ” je suis clairement d’opinion que le même nombre qui composoit l’ancienne Cour d’apel, est requis pour celle actuelle” (State Book A, Lower Canada, page 48) and Mr. Panet “dans le doute du nombre compétent des Juges d’Appels, la majorité des Conseillers executifs en Cour ponrroit être adoptée”, (State Book A, Lower Canada, page 52.) Mr. Sewell argued that the phrase “Manner and form” “could be construed to include the number and description of members necessary to constitute the court.

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With respect to the designation of the Jurisdiction of the present Court of Appeals the 33a Section of the Canada Act1 continues in force all the Laws Statutes & Ordinances of the province, to be executed as heretofore, with exception to so much of the 4th Article of the Ordinance 17772 as I have already spoken to: Therefore their jurisdiction, under the Canada Act, in so far as relates to that article is,

” To hear & determine all appeals from the inferior Courts of Civil Jurisdiction within this province of Lower Canada, in all eases where the matter in dispute shall exceed the sum of Ten pounds sterling, or shall relate to the taking or demanding any duty payable to His Majesty, or to any fee of Office or annual rents, or other such like matter or thing where the rights in future may be bound though the immediate sum or value appealed for be less than ten pounds sterling—They are to revise and examine all the proceedings of the Court below, correct all errors both in fact and in Law, give such judgment as the Court below ought to have given, and on such Judgment to award and issue such execution as the Law shall direct—And the Court is required to sit the first Monday in every month throughout the year, and continue sitting each month as long as the business before it may require.”

Other points are committed to their Jurisdiction by other Laws & Ordinances of the province.

The jurisdiction of the present Court of Appeals, under the Canada Act is therefore the same in every respect with the Jurisdiction vested in and exercised by the former Court of Appeals. This subject therefore requires no explanatory Law.

By the 4th article of the Royal Instructions to His Excellency Lord Dorchester bearing date at St James’s the 16th of September last, the Royal will and pleasure is expressed that the Governor should permit & allow Appeals unto him & the Executive Council in manner prescribed by the Act, and should issue a Writ as nearly in the accustomed manner as the case should admit returnable before himself & the Executive Council, who are to proceed to hear & determine such appeals wherein such of the executive Council as shall be at that time Judges of the Court from whence such Appeal shall be so made shall not be admitted to vote upon the said appeal, but they may be present to give the reasons of the Judgment given by them in the Causes wherein such appeal may be made, provided 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 &c.

Two Questions arise upon this article,

1st—Whether a Judge of the inferior Court being a Member of the Executive Council, who did not sit in Judgment in the cause, can sit as a Judge in Appeal.

2a—Whether the Governor or Lieutenant Governor or person administering the Government of the province can legally permit & allow & issue a Writ of Appeal, in eases under the sum or value of Three hundred pounds, but greater than ten pounds sterling.

By the Ordinance of 1777 ch. 1. Article 4. The Judges who should not have sat in Judgment in the inferior Court, were permitted to sit upon the Bench in the Court of Appeals, and to vote upon the decree there to be pronounced—By this article of the Royal Instructions it is expressed that “such of the Executive Council as shall “be at that time Judges of the Oourt from whence such appeal shall be made, shall not be admitted to vote upon the said appeal—But it proceeds by admitting them (the Judges of the Court) to be present to give the reasons of the Judgment given by them. The Honorable Mr Dunn3 is at present the only Member of the Executive Council who is also a Judge of the Court of Common pleas as well for the Districts of Montreal

1. Constitutional Documents, 1759-1791, Shoitt and Doughty, 1907, page 702. 2. Ibid, page 464. 3. See page 14, note 5.

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& Three Rivers as for the District of Quebec; He might under the Ordinance of 1777 sit in Judgment in the Court of Appeals upon any sentence of the Common pleas in either district wherein he had not been upon the Bench giving the sentence of the inferior Court; but I think the safer and perhaps the better opinion upon the Royal Instruction is, that no Member of the Executive Council who shall be at the time Judge of the Court from whence the appeal is made should vote upon “any appeal from the Court wherein he is a Judge, until the Royal pleasure in this respect shall hereafter be communicated to His Majesty’s Governor.1

The second Question is, ” Whether the Governor &c. can legally permit & allow & issue a Writ of appeal in cases above Ten pounds but inferior to three hundred pounds sterling ? ” .

I have already expressed my opinion that under the 34th section of the Canada Act the new Court of Appeals can now proceed to hear and determine Appeals in the like cases i.e., in all cases above the sum or value of Ten pounds sterling, and in the like manner é form, as the former Court of Appeals might—But by the Royal Instruction it is provided that in all such Appeals the sum or value appealed for do exceed the sum of Three hundred pounds sterling.

If it be conceived that the’Royal Instruction is to take immediate effect, a temporary law should be made for that purpose, if it be thought fit that the Courts of Common pleas are to be invested with an ultimate Jurisdiction to that extent. But I humbly conceive that His Excellency the Governor &c. may under the Canada Act proceed in all cases in the same manner as heretofore, until His Majesty’s Royal will and pleasure shall in this respect hereafter be communicated to his Governor.

All which is very respectfully submitted to your Honors consideration and wisdom.

(Signed) J. WILLIAMS,2 Solr Gen1.

30a January, 1792.

G.R.

AN ORDINANCE RELATING TO CAUSES IN APPEAL TO THE COURT OF THE GOVERNOR AND EXECUTIVE COUNCIL.3

Anno Tricesimo secundo Georgii Tertii Regis.

CHAP. I.

Passed 24th Feb. 1792.

P. A. Be Bonne, A.S.

WHEREAS an Act of Parliament was lately passed, intitled, “An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty’s Reign entitled 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.”

1. See the Additional Instruction, page 71. 2. Mr. Jenkin Williams had been appointed Solicitor General and Inspector of the Royal Domain, December 14, 1782. Since 1776 he had been Clerk of the Legislative Council of Quebec and, on the formation of Lower Canada, was appointed Clerk of the Executive Council. In 1793 he was made a justice of the Court of Common Pleas and on the reorganization of the judiciary in 1794 became a justice of the Court of King’s Bench for the District of Quebec. Later he held a seat in both the Executive and Legislative Councils. 3. From the copy of the ordinance published in The Québec Gazette, March 1, 1792.

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AND WHEREAS it is by the said Statute first afore-mentioned, enacted that the Governor, Lieutenant Governor or person administering the Government of Lower Canada, together with such Executive Council as should be appointed by His Majesty for the Affairs of the said Province shall be a Court of Civil Jurisdiction within the said Province, for hearing and determining Appeals within the same in the like cases and in the like manner, and form and subject to sueh Appeal therefrom as such Appeals might before the passing of the said Act have been heard and determined by the Governor and Council of the Province of Quebec, but subject nevertheless to such further order or other provisions as might be made in that behalf by any ,Act of the Legislative Council and Assembly of the said Province assented to by His Majesty, His Heirs or Successors. AND WHEREAS, it was by the said Statute also enacted, That the former Ordinances in force at the day of the commencement of the said Statute should remain and continue to be of the same force as if the said Statute had not been passed, except in so far as the same was expressly repealed or varied by the said Statute, or in so far as the same should be or might thereafter by virtue of and under the authority of the said Statute be repealed or varied by His Majesty, His Heirs or Successors, by and with the advice and consent of the Legislative Council and Assembly of the said Province, or in so far as the same might be repealed or varied by such temporary Laws or Ordinances as might be made in the manner therein after specified.1

AND WHEREAS.it was further by the said Statute enacted, That in such interval as might happen between the commencement of that Statute within the said Province of Lower Canada and the first meeting of the Legislative Council and Assembly, it should and might be lawful for the Governor or Lieutenant Governor thereof, or for the person administering the Government therein, with the consent of the major part of such Executive Council as should be appointed by His Majesty for the Affairs of the said Province, to make 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 afore-mentioned Act of the fourteenth year of the Reign of His present Majesty, and that such temporary Laws and Ordinances should be valid and binding within the said Province until the expiration of six months after the Legislative Council and Assembly of the said Province of Lower Canada shall be first assembled by virtue of and under the authority of the said Statute, subject nevertheless to be sooner repealed or varied by any Law or Laws which might be made by His Majesty, His Heirs or Successors, by and with the advice and consent of the said Legislative Council and Assembly.2

And it being highly expedient to take away all doubts and scruples respecting the legal authenticity of the Acts and Proceedings of the Court of Appeals, by the said Statute enacted or intended to be enacted, be it therefore enacted, ordained and declared by His Excellency the Lieutenant Governor and the Executive Council of the Province of Lower Canada, and it is accordingly enacted, declared and ordained by the Authority of the same, That it shall be no valid objection in the Law to the Authority of the present Court of Appeals, substituted in the placa and stead of the Court of Appeals which existed in the Province, at and immediately before the commencement of the said Statute of the thirty-first year of His Majesty’s Reign, that the said present Court proceeded in any business therein with fewer Members of the Executive Council than five, if the number of sitting and acting Members are not less than three.

1. Constitutional Act, Article XXXIII. Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 702.

2. Constitutional Act, Article L, ibid, page 708.

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And be it further enacted, declared and ordained, That the present Court of Appeals erected and established and proceeding in manner afore-mentioned, shall be deemed and adjudged to be fully vested with all the Jurisdiction, cognizance, Power and Authority at any time heretofore lawfully exercised by or vested in the Court of Appeals heretofore held for the Province of Quebec, at and immediately before the partition thereof into the two Provinces of Upper and Lower Canada. And that all Actions and Causes whatsoever pending in the said former Court of Appeals, immediately before the dissolution thereof, as well as all Appeals since brought, or to be hereafter brought in the present Court of Appeals, and which might have been appealable to the said former Court, shall be appealable to and be proceeded in, adjudged and determined in such course and manner in the present Court of Appeals, as they lawfully might be in the said former Court of Appeals, if the said former Court of Appeals had not been discontinued and dissolved.

ALURED CLARKE.

DUNDAS TO CLARKE.1

WHITEHALL 12th July 1792.

Lieut Govr CLARKE

SIR, I have received your Letters numbered from 24 to 29 both inclusive, and have had the honor of laying them with their several Inclosures before the King. I herewith transmit to you the Report of His Majesty’s Law Officers on the subject of the Memorial inclosed in Your Letter N°. 32 which I hope will satisfy the doubts which have arisen in the Minds of the Persons concerned.

I t appears by the late Act that the Governor, Lieutenant Governor or Person administering the Government, with the Executive Council of the Province form a Court of Appeal for such Province to be holden “in the same manner and form” as it was before held by the Governor and Council of the Province of Quebec.

If “therefore it was a requisite to. that Court of Appeal, that the Governor, Lieut. Governor, or Person administering the Government should preside therein, in Person, I conclude it is to be also so in the Present Court. But if it was not then deemed requisite, (which I understand to be the case) neither is it so now by the tenor of the Act. If however, there are any well founded doubts on the subject, I see no reason why (as provision is made for such alterations by the above mentioned Act of Parliament) an Act of the Legislative Council and Assembly should not be passed, requiring the Governor, Lieutenant Governor or Person Administering the Government to preside only when he shall be resident in Quebec, or within a certain distance from the same; such Act (if at all requisite) should nevertheless, when passed, be reserved for the signification of His Majesty’s pleasure thereon.

I cannot help observing with regret that sueh is the course of Justice, as to occasion Appeals to the extent your Letter presumes. It bespeaks a degree of dissatisfaction at the Courts below which must occasion great inconvenience and detriment to all Suitors.

Inclosed are additional Instructions concurring with your Suggestions in allowing such Members of the Court of Appeal as are at the same time Judges in the Courts below, to vote in certain cases.

1. From copy in the Canadian Archives, Q. 77A, page 25. 2. The reference is to Clarke’s letter No. 23 of March 10th which contained a memorial on the question of the qualification for the franchise. See page 107, note 1.

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I have also transmitted you His Majesty’s Pardon for the Convicts mentioned in your Letter N° 28 under the conditions therein mentioned.

I am &c.

(Signed) HENRY DUNDAS,

GEORGE R. ADDITIONAL INSTRUCTION.1

to our Right Trusty and wel beloved Guy Lord Dorchester, Knight of the most Honorable Order of the Bath, Our Captain General and Governor in chief in and over our Province of Lower Canada in America; or in his absence to the Lieutenant Governor or Commander in Chief of our said Province for the time being. Given at our Court at Saint James’s the twelfth day of July 1792, in the Thirty second year of our reign.

WHEREAS by our General Instructions to you, bearing date at St. James’s the sixteenth day of September, 1791, It is declared amongst other things to be our Royal Will and pleasure that in hearing and determining any appeal which shall be brought before you and our Executive Council therein mentioned in the manner prescribed by the said Instructions, sueh of the said Executive Council as shall be at any time Judges of the Court from whence such Appeal shall be BO made to you Our Captain General and Governor in Chief, and to our said Executive Couneil, shall not be permitted to vote upon the said Appeal.2

Now our Will and Pleasure is, that the Members of our said Executive Council, who are Judges as aforesaid, shall be admitted to vote upon any appeal, in case they have not in the same Cause, assisted as Judges in the Court from which such appeal shall be made.

CLARKE TO DUNDAS.3

No. 33. QUEBEC 2nd July 1792.

SIR

In compliance with the late Act4 and the Royal Instructions,6 I caused to be issued on the 7th May a Proclamation (Copy of which is inclosed) dividing the Province into Counties, Cities and Boroughs ; and ascertaining the Number of Representatives to be chosen in each, which you will find is not exactly conformable to the suggestions of your Letter6 of the 16th September last, relative to William Henry

1. The Instructions are not copied in Q 77A. This text is from the copy entered in the minutes of the Executive Council of Lower Canada, State Book A, page 220. A similar Instruction of the same date was sent to Lord Dorchester as Governor of Upper Canada. See Canadian Archives, M 232, page 46. 2. See page 15. 3. From the original copy in the Canadian Archives, Duplicate Despatches, Lower Canada. 1792. 4. See Article XIV of the Constitutional Act. Constitutional Documents, 1159-1791, Shortt and and Doughty, 1907, page 698. 5. See Article 13 of the Instructions to Lord Dorchester, page 17. 6. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 692. Mr. Dundas had recommended 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.” In his despatch to Clarke of August 15, 1792, Dundas wrote: ” I approve of the Proclamation enclosed in your letter N° 33 both as to the Disposition of the Province (its present state considered) and as to the appropriation of Representatives for the same. The time for the actual commencement of the first Session, as well as the intermediate Steps proposed by you, appear likewise to be perfectly proper.” (The Canadian Archives, Q 59, pt. 2, page 596.)

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and St Johns, one Member being thought sufficient for the first, and the latter not considered of sufficient consideration to merit any distinction at all; Nor was it in general practicable, from the present state and situation of the Country, to divide the Province into so many Counties, as would have been necessary, if only one Member has been assigned to each; I have, however, had the pleasure to learn that the division therein described has given more general satisfaction, than might have been expected in a business so difficult in itself, and so little understood by the people in general : This being done I consulted the Council1 as to the time of calling together the General Assembly, and with their advice fixed that the Writs of Election should be tested the 24th May and returnable on the 10th July instant, being the period between Seed time and the Hay-harvest, and on all accounts the least inconvenient to the Country in general.

In conformity thereto I appointed Returning Officers for the respective Counties, and issued Writs of Election for each, together with Writs of Summons to the Gentlemen nominated to the Legislative Council.2

It having been found necessary to appoint a Clerk of the Crown in Chancery, The Honble Hugh Finlay has been nominated by me to that Office, and in conformity to the Royal Instructions I now report the same, though no Salary has been attached to it.3

Conceiving, however, that a Meeting at the time beforementioned would be attended with inconvenience on account of the approaching Harvests, I have with the advice of the Council issued a Proclamation proroguing the General Assembly to the 20th of August, and by interim Prorogations, of about forty Days each, agreeable to the practice in England, shall defer the actual Assembling till the 3rd of December next,4 at which time the Navigation being closed, and the Roads good, all parties may proceed upon the public business without interruption to their private affairs.

I have the honor to be, with great respect, Sir, Your most obedient, and most faithful humble servant The Right Honble ALURED CLARKE. HENRY DUNDAS.

PROCLAMATION DIVIDING THE PROVINCE OF LOWER CANADA INTO COUNTIES AND ELECTORAL DISTRICTS.5

ALURED CLARKE,

GEORGE THE THIRD by the Grace of God, of Great Britain France and Ireland, King, Defender of the Faith, &c. To all Our loving Subjects whom these presents may concern. WHEREAS in pursuance of an Act of Parliament lately made and provided, passed in the Thirty first Year of- Our Reign and of Authority by Us given

1. See the Minutes of the Executive Council, May 14, 1792, Canadian Archives, State Book A, Lower Canada, page 92. 2. See the Canadian Archives, State Book A, Lower Canada, pp. 93-95. 3. In the absence of George Pownall, Mr. Finlay was at this time acting as Secretary of the Province. Regarding this appointment Mr. Dundas wrote ” The appointment of a Clerk of the Crown in Chancery is chiefly I conceive for the issuing of Writs of Summons and Election, and in no wise interfering with the Duties of the Secretary of the Province. The Salary for such an Office seems naturally to arise from Fees or an allowance for each Writ, to be granted and permanently annexed to the office by an Act of the Legislature.” Dundas to Clarke, August 15, 1792. Canadian Archives, Q 59, pt. 2, page 597. See also page 14, note 3. 4. The Assembly did not meet until the 17th of December. 5. From The Quebec Gazette of Thursday, May 24, 1792. The division into counties is represented in the “Plan of part of the Province of Lower Canada, Made by order of Lord Dorchester, 1794 and 1795,” here reproduced.

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for that purpose, Our late Province of Quebec is become divided into the two Pro- vinces of Upper Canada and Lower Canada, and Our Lieutenant Governor of the said Province of Lower Canada by Power from Us derived, is authorized in the absence of Our Right Trusty and Wellbeloved GUY LORD DORCHESTER, Captain General and Governor in Chief of Our said Province of Lower Canada to divide the said Province of Lower Canada into Districts, Counties, Circles or Towns and Townships for the purpose of effectuating the intent of the said Act of Parliament, and to declare and appoint the number of Representatives to be chosen by each to serve in Assembly of the said Province. KNOW YE THEREFORE, that Our Trusty and Wellbeloved ALURED CLARKE, Our Lieutenant Governor of Our said Province of Lower Canada, in the absence of Our said Governor in Chief, hath and by this Our Proclamation doth divide the said Province of Lower Canada into Counties, Cities, and Towns, and declare and appoint the number of the Representatives of them and each of them to be as herein after limited, named, declared and appointed, that is to say, that the first of the said Counties be all that part of the said Province on the Southerly side of the River of St. Lawrence, now called the District of Gaspé, as described in Our Royal Proclamation under the Great Seal of Our late Province Quebec, bearing date the twenty-fourth day of July in the twenty-eighth year of Our Reign;1 and that the second of the said Counties to be called Cornwallis, shall comprehend all that part of Our said Province on the same side of the River St. Lawrence between the said County of Gaspé and a line running South-east from the westerly angle of a tract of land commonly called the Seigniory of Mr. Lauchlan Smith or St. Ann’s, together with the Islands of St. Barnaby and Bic, and all other Islands in the said River nearest to the said County, and in the whole or in part fronting the same; and that the third of the said Counties to be called Devon, shall comprehend all that part of Our said Province on the same side of the said River of St. Lawrence between the westerly side of the said County of Cornwallis and a line parallel thereto running from the westerly angle of a tract of land commonly called the Seigniory of the River du Sud, together with all the Islands in the River St. Lawrence nearest to the said County, and in the whole or in part fronting the same; and that the fourth of the said Counties be called Hertford, shall comprehend all that part of Our said Province on the southerly side of the said River St. Lawrence between the westerly side of the said County of Devon and a line parallel thereto, running from the northeasterly angle of a tract of land commonly called the Seigniory of Lauzon or the Seigniory Point Levy, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same; and that the fifth of the said Counties to be called Dorchester, shall comprehend all that part of Our said Province on the southerly side of the said River St. Lawrence, between the westerly side of the said County of Hertford and a line parallel thereto, running from the westerly angle of the aforesaid tract of land called the Seigniory of Lauzon or the Seigniory of Point Levy, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same; and that the sixth of the said Counties to be called Buckinghamshire, shall comprehend all that part of Our said Province on the southerly side of the said River St. Lawrence between the westerly side of the said County of Dorchester and a line parallel thereto, running from the northeasterly angle of a tract of land commonly called the Seigniory of Sorel, together with all the Islands in the said River St. Lawrence (or Lake St. Peter) nearest to the said

1. By the Proclamation of July 24, 1788, several new Districts were formed and among them the District of Gaspé. It is described thus—”to comprehend all that part of Our said Province on the Southerly side of the river Saint Lawrence, to the Eastward of a North and South line intersecting the North-easterly side of Cape Cat, which is on the Southerly side of the said river.” See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 651.

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County, and in the whole or in part fronting the same; and that the seventh of the said Counties to be called Richlieu, shall comprehend all that part of Our said Province on the southerly side of the said River St. Lawrence, between the westerly side of the said County of Buckinghamshire and the following lines, that is to say, a line running south-east from the westerly angle of a tract of land commonly called the Seigniory of St. Ours, until the same shall intersect the easterly bank of tho River Sorel, otherwise called the River Richlieu or Ohambly, thence up the easterly bank of the said River to the northeasterly bounds of a tract of land commonly called the Seigniory of Rouville, and thence by a line running south-east to the limits of Our said Province, together with all the Islands in the River St. Lawrence (or Lake St. Peter) nearest to the said County, and in the whole or in part fronting the same, and together also with all the Islands in the River Sorel, Richlieu or Ohambly nearest to the said County, and in the whole or in part fronting the same, including in the said County the tract of land comprehended within the limits of the Town or Borough of William Henry herein after described; and that the eighth of the said Counties to be called Bedford, shall comprehend all that part of Our said Province on the easterly side of the River Sorel, otherwise called the Richlieu or Chambly, between the said River and the westerly side of the aforesaid County of Richlieu, together with all the Islands in the said River Sorel, otherwise called Richlieu or Chambly, nearest to the said County and in the whole or in part fronting the same; and that the ninth of the said Counties to be called Surrey, shall comprehend all that part of Our said Province on the southerly side of the River St. Lawrence, between that River and the River Sorel, Richlieu or Ohambly, and between the afore-mentioned south-east line running from the westerly angle of the tract of land called the Seigniory of St. Ours and a line parallel thereto, running from the westerly angle of a tract of land commonly called the Seigniory of Varrennes, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same, and together also with all the Islands in the River Sorel, Richlieu or Chambly nearest to the said County, and in the whole or in part opposite thereto on that side; and that the tenth of the said Counties to be called Kent, shall comprehend all that part of Our said Province on the southerly side of the River St. Lawrence between that River and the River Sorel, Richlieu or Chambly, and between the westerly side of the said County of Surrey and a line parallel thereto, running from the westerly angle of a tract of land commonly called the Barony of Longueuil, together with all the Islands in the said River St. Lawrence nearest to the said’County, and in the whole or in part fronting the same, and together also with all the Islands in the said River Sorel, Richlieu or Ohambly nearest to the said County, and in the whole or in part opposite thereto on that side; and that the eleventh of the said Counties to be called Huntingdon, shall comprehend all the rest of Our said Province of Lower Canada on the southerly side of the said River St. Lawrence, together with all the Islands in the said River St. Lawrence and in the River Sorel, otherwise called the Richlieu or Chambly nearest to the said County; and that the twelfth of the said Counties to be called York, shall comprehend all that part of Our said Province of Lower Canada on the northerly side of the said River St. Lawrence, between the uppermost limits thereof and a line running west north west1 from the southeasterly angle of a tract of land com-

1. Regarding this line a note on the Plan of part of the Province of Lower Canada made by order of Lord Dorchester, 1794 and 1795, says ” owing also to an error m the former Plan, a mistake was made in the Proclamation respecting the course or bearing oí the line of the Seigneurie of Dnmont (on the north side of the Lake of Two Mountains) which forms the division line between the counties of York & Effingham. This line is called West North West in the Proclamation, whereas it should have been called North West the same as the lines of the other Seigneuries on the River St. Lawrence, as appears by the Records

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monly called the Seigniory of Dumont, together with the Islands of Perot and Bizarre, and all the other Islands in the Rivers St. Lawrence and Ottowa nearest to the said County, and in the whole or in part fronting the same, excepting the Islands of Jesus and Montreal; and that the thirteenth of the said Counties to be called Montreal, shall comprehend the Island of Montreal including likewise such part thereof as shall be comprehended within the limits of the City and Town of Montreal herein after described; and that the fourteenth of the said Counties to be called Effingham, ehalh comprehend all that part of Our said Province on the northerly side of the Rivers St. Lawrence and Ottowa, between the easterly side of the aforeside County of York and a line parallel thereto running from the south easterly angle of a tract of land commonly called the Seigniory of Terrebonne, together with the Island of Jesus and all the other Islands in the said Rivers St. Lawrence and Ottowa in the whole or in part fronting the said County, except the aforesaid Island of Montreal; and that the fifteenth of the said Counties to be called Leinster, shall comprehend all that part of Our said Province on the northerly side of the said Rivers St. Lawrence and Ottowa, between the easterly side of the said County of Effiingham and a line running north-west from the southeasterly angle of a tract of land commonly called the Seigniory of St. Sulpice, together with all the Islands in the said Rivers St. Lawrence and Ottowa nearest to the said County, and in whole or in part fronting the same; and that the sixteenth of the said Counties to be called Warwick, shall comprehend all that part of Our said Province on the northerly side of the River St. Lawrence between the easterly side of the said County of Leinster and a line parallel thereto, running from the southeasterly angle of a tract of land commonly called the Seigniory of Berthier, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same; and that the seventeenth of the said Counties to be called St. Maurice, shall comprehend all that part of Our said Province on the northerly side of the River St, Lawrence between the easterly side of the said County of Warwick, and a line parallel thereto running from the southeasterly angle of a tract of land commonly called the Seigniory of Batiscan, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same, including within the said County the tract of land comprehended within the limits of the Town and Borough of Three Rivers herein after described; and that the eighteenth of the said Counties to be called Hampshire, shall comprehend all that part of Our said Province on the northerly side of the River St. Lawrence, between the easterly side of the said County of St. Maurice and a line parallel thereto running from the southwesterly angle of a tract of land commonly called the Seigniory of St. Gabriel, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same; and that the nineteenth of the said Counties to be called Quebec, shall comprehend ail that part of Our said Province on the northerly side of the River St. Lawrence between the easterly side of the said County of Hampshire, and a line running north north-west from the southwesterly angle of a tract of land commonly called the Seigniory of Beaupré, near the mouth of the River Montmorency, together with all the Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same, (except the Island of Orleans,) including within the said County the tract of land comprehended within the limits of the City and Town of Quebec herein after described; and that the twentieth of the said Counties to be called Northumberland, shall comprehend all the rest of Our 3aid Province on the northerly side of the River St. Lawrence, and on the easterly side of the said County of Quebec, together with the Island of Coudre and all the other Islands in the said River St. Lawrence nearest to the said County, and in the whole or in part fronting the same, except the Island of Orleans ; and that the twenty-first of the said Counties

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to be called Orleans, shall comprehend the said Island of Orleans ; and that the first of the said Cities to be called (as heretofore) the City and Town of Quebec, shall comprehend all that tract or promontory of land (being part and parcel of the aforesaid County of Quebec,) between the Rivers St. Lawrence and St. Charles, bounded in the rear by a right line running along the easterly front of the Convent called the General Hospital, and continued from River to River; and that the said City and Town of Quebec be, and the same is hereby declared to be divided into two parts, to be called respectively the Lower Town and the Upper Town, and that the said Lower Town shall comprehend all that part of the said tract or promontory of land situate below the Hill called Cape Diamond, and the fortifications and high ground beyond them, including both sides of the road passing the Intendants Palace and Saint Roc, until the said road shall meet the afore-mentioned rear-line continued from the easterly front of the General Hospital aforesaid, together with the ground up Mountain-street on the easterly side thereof as high as the ground of the Bishop’s Palace, not including the same, and on the westerly side of Mountain-street as high as the alley leading to the old Chateau of Saint Lewis, from the head of the steps opposite to the gate of the said Bishop’s Palace; and that the said Upper Town shall comprehend all the rest of the said tract or promontory of land within the limits above described for the City of Quebec; and that the second of the said Cities to be called (as heretofore) the City and Town of Montreal, shall comprehend all that tract or parcel of land (being part and parcel of the aforesaid County of Montreal) bounded in front by the River St. Lawrence, and in the rear by a line parallel to the general course of the fortification walls on the rear of the said Town at the distance of one hundred chains from the Gate commonly called the St. Lawrence Gate, and bounded on the easterly or lowermost side by a line running parallel to the general course of the fortification walls on the easterly or lowermost side of the said Town, at the distance of one hundred chains from the gate towards the Quebec Suburbs, commonly called the Quebec Gate, and on the westerly or uppermost side by a line running parallel to the general course of the fortification walls on the westerly or uppermost side of the said Town at the distance of one hundred chains from the gate towards” the St. Anthony Suburbs, commonly called the Recolets Gate, and that the said City and Town of Montreal be, and the same is hereby declared to be divided into two parts to be called respectively the Easterly ward and Westerly ward, and that the said Easterly ward, shall comprehend all the easterly or lowermost part of the said tract above described, bounded on the westerly or uppermost side by a line running through the middle of the main street of the St. Lawrence Suburbs and the continuation thereof, and through the middle of the street called Congregation-street, Notre Damestreet, and along the middle of the same westerly to the middle of St. Joseph-street, and thence down the middle of St. Joseph-street to the River; and that the said Westerly Ward shall comprehend all the rest of the said tract or parcel of land within the limits above described; and that the first of the said Towns or Boroughs to be called the Town or Borough of Three Rivers, shall comprehend all that tract or parcel of land (being part and parcel of the aforesaid County of St. Maurice) bounded in the front by the River St. Lawrence, and in the rear by a line parallel to the general course of the said front, at the distance of one hundred and sixty chains from the westerly point of the mouth of the River St. Maurice, on the easterly side by the said River St. Maurice, and on the westerly side by a line rectangular to the aforesaid rear line, running from a point therein at the distance of one hundred and sixty chains from the westerly bank of the said River St. Maurice until it strikes the said River St. Lawrence; and that the second and last of the said Towns or Boroughs to be called the Town or Borough of William Henry, shall comprehend all that tract or parcel of land (being part and parcel of the aforesaid County of St. Maurice) bounded in the front by the River Sorel, otherwise called the Rivei Richlieu or Chambly, in the rear by a line parallel to the easterly side of the Royal Square of the said Town at the distance of

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one hundred chains therefrom, on the northerly side by the River St. Lawrence, and on the southerly side by a line parallel to the southerly side of the Royal Square of the said Town at the distance of one hundred and twenty chains therefrom. AND KNOW YE ALSO, that Our said Lieutenant Governor hath also declared and appointed, and doth hereby declare and appoint that the several Counties of Cornwallis, Devon, Hertford, Dorchester, Buckinghamshire, Richlieu, Surrey, Kent, Huntingdon, York, Montreal, Effingham, Leinster, Warwick, St. Maurice, Hampshire, Quebec and Northumberland, afore-mentioned, shall and may be represented in the Assembly of the said Province by two Members or Representatives to be duly chosen in and for each of the same Counties respectively; and the Counties of Gaspé, Bedford and Orleans,, by only one Member or Representative for each of the said Counties respectively; and the Cities or Towns of Quebec and Montreal respectively, by four Members or Representatives for each of the said Cities or Towns, to wit, two for each Subdivision thereof respectively; and the Town or Borough of Three Rivers, by two Members or Representatives for the said Town or Borough ; and the Town or Borough of William Henry, by only one Member or Representative for the said Town or Borough. Of which Our loving Subjects and all others concerned are to take due notice and govern themselves accordingly. IN TESTIMONY whereof, We have caused these Our Letters to be made Patent and the Great Seal of Our said Province of Lower Canada to be hereunto affixed. WITNESS Our Trusty and Well beloved ALURED CLARKE, Esquire, Our Lieutenant Governor and Commander in Chief of Our said Province of Lower Canada and Major General Commanding Our Forces in North America, &c. &c. &o. At Our Castle of Saint Lewis, in the City of Quebec, this Seventh Day of May, in the Year of Our Lord One thousand seven hundred and ninety-two, and in the Thirty-second Year of Our Reign.

A. C.

HUGH FINLAY, Acting Secretary.

PROCLAMATION DIVIDING THE PROVINCE OF UPPER CANADA INTO COUNTIES.1

J . GRAVES SIMCOE.

GEORGE THE THIRD by the Grace of God of Great Britain, France and Ireland King Defender of the Faith, &c. &c.

To all our loving Subjects, whom these presents may concern,

WHEREAS in pursuance of an Act of Parliament, lately made and provided, pass’d in the Thirty first Year of our Reign, and of authority by us given for that purpose, our late Province of Quebec is become divided into the two Provinces, of Upper Canada and Lower Canada; and our Lieutenant Governor of the said Province of Upper Canada, by power from us derived, is authorized, in the absence of our Right Trusty and well Beloved GUT LORD DORCHESTER, Captain General and Governor in

1. From the original published Proclamation, in the Canadian Archives, Proclamations, Upper Canada. 1792. Writing to Dundas, November 4, 1792, Lieut.-Governor Simcoe remarked, ” The dividing the Province into Counties was not only a measure necessary to establish a certain Basis for representation, in a Country where there is not as yet a Village, but I had a further view to unite and melt into each other the several Districts, which from circumstances and their appropriated Names, I was well informed had seemed to acquire separate and distinct Interests. To complete this purpose, I thought it best at the outset to annihilate the names: a circumstance which must naturally have taken place, when with the encreasing Population of the Country, new Districts must have been formed for the speedy execution of justice.” (The Canadian Archives, Q. 279, pt. 1, page 84.) See also page 146, note 2. For the location of the various counties see the “Plan of the Province of Upper Canada divided into Counties by order of His Excellency John Graves Simcoe, Esqre” page . A new division of the Province into counties was made in 1798. See page 222.

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Chief of our said Province of Upper Canada, to divide the said Province of Upper Canada into Districts, Counties, Circles or Towns and Townships, for the purpose of effectuating the intent of the said Act of Parliament, and to declare and appoint the Number of Representatives, to be chosen by each to serve in the Assembly of the said Province.

KNOW YE therefore, that our trusty and well beloved JOHN GRAVES SIMCOE, Esq: Lieutenant Governor of our said Province of Upper Canada, in the absence of our said Governor in Chief, hath, and by this our Proclamation doth divide, the said Province of Upper Canada into Counties; and hath and doth declare and appoint the Number of Representatives of them, and each of them, to be as herein after limited, named, declared and appointed (that is to say) that the first of the said Counties be hereafter called by the name of the County of GLENGARY: which County is to be bounded, on the East by,the Lines that divide Upper from Lower Canada, on the South by the River St. Laurence, and Westerly by the Eastern-most boundary of the late Township of Cornwall, running North Twenty four Degrees West until it Intersects the Ottawa or Grand River, thence descending the said River until it meets the divisional lines aforesaid. The said County is to comprehend all the Islands in the said River St. Lawrence, nearest to the said County, and in the whole or greater part fronting the same.

THAT the second of the said Counties be hereafter called by the name of the County of STORMONT, Which County is to be bounded on the East by the Westernmost Line of the County of GLENGARY, on the South by the River St. Laurence, to the Western-moat boundary of the late Township of Osnaburg, and on the West by the Eastern-most boundary Line of the late Township of Williamsburg, running North Twenty four Degrees West until it intersects the Ottawa, or Grand River, thence descending the said River until it meets the North Western-most boundary of the County of Glengary, and the said County of Stormont is to comprehend all the Islands in the said River St. Laurence, nearest to the said County, and in the whole or greater part fronting the same.

THAT the third of the said Counties be hereafter called by the name of the County of DUNDAS ; whieh County is to be bounded on the East by the Western-most I boundary Line of the County of Stormont, on the South by the River St. Laurence, and on the West by the Eastern-most boundary Line of the late Township of Edwardsburg, running North Twenty four Degrees West until it intersects the Ottawa, or Grand River, thence descending the said River until it meets the North Westernmost boundary of the County of Stormont. The said County of Dundas, is to comprehend all the Islands in the said River St. Laurence nearest to the said County, and in the whole or greater part fronting the same.

THAT the fourth of the said Counties be hereafter called by the name of the County of GRENVILLE; whieh County is to be bounded on the East by the Westernmost line of the County of Dundas, on the South by the River St. Laurence, and on the West by the Eastern-most boundary Line of the late Township of Elizabethtown ; running North Twenty four Degrees West until it intersects the Ottawa or Grand River, thence descending the said River until it meets the North Western-most boundary of the County of Dundas. The said County of Grenville is to comprehend all the Islands in the said River St. Laurence nearest to the said County, and in the whole or greater part fronting the same.

THAT the fifth of the said Counties, be hereafter called by the name of the County of LEEDS; which County is to be bounded on the East by the Western-most Line of the County of Grenville, on the South by the River St. Laurence, and on the West by the Eastern-most boundary Line of the late Township of Pittsburg; running North until it intersects, the Ottawa or Grand River, thence descending the said River until it meets the North Western-most boundary of the County of Grenville.

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The said County of Leeds, is to comprehend all the Islands in the said River St. Laurence, nearest to the said County, and in the whole or greater part fronting the same.

THAT the sixth of the said Counties be hereafter called by the name of the County of FRONTENAC; which County is to be bounded on the East by the westernmost Line of the County of Leeds, on the South by Lake Ontario, on the West by the Eastern-most boundary line of the late Township of Ernest town; running North twenty four degrees West until it intersects the Ottawa or grand River, and thence descending the said River until it meets the North Western-most boundary of the County of Leeds.

THAT the seventh of the said Counties be hereafter called by the name of the County of ONTARIO; which County is to consist of the following Islands, and Island at present known by the name of Isle Tonti, (to be called AMHERST Island) an Island known by the name of Isle au Foret (to be called GAGE Island) an Island, known by the name of grande Isle (to be called WOLFE Island), and an Island known by the name of Isle Cauchois (to be called HOWE Island) and to comprehend all the Islands between the mouth of the Garanoque1 to the Easter-most extremity of the late Township of Marysburg called Point Pleasant.

THAT the eighth of the said Counties be hereafter called by the name of the County of ADDINGTON; which County is to be bounded on the East by the Westernmost Line of the County of Frontenac, on the south by Lake Ontario to the Westernmost boundary of the late Township, of Ernestown, and on the West by the Easternmost boundary Line of the late Township of Fredericksburg; running North thirtyone degrees West until it meets, the Ottawa or grand River, and thence descending the said River until it meets the Northwestern-most boundary of the County of Frontenac; comprehending, within the said County all the Islands nearest to it, and in the whole or greater part fronting the same.

THAT the ninth of the said Counties be hereafter called by the name of the County of LENOX; which County is to be bounded on the East by the Western-most Line of the County of Addington, on the South and West by the Bay of Quinti to the Eastern-most boundary of the Mohawk village, thence by a Line along the Western-most boundary of the late Township of Richmond, running North sixteen degrees West to the Depth of twelve miles, and thence running North seventy four degrees East until it meets the Northwestern-most boundary of the County of Addington; comprehending all the Islands in the Bays, and nearest the shores thereof.

THAT the tenth of the said Counties, be hereafter called by the name of PRINCE EDWARD; which County is to be bounded on the South by Lake Ontario, on the West by the carrying place on the Isthmus of the Presque Isle de Quinti, on the North by the Bay of Quinti, and on the East from Point Pleasant to Point Traverse by its several shores and Bays, including the late Townships of Ameliasburg, Sophiasbmrg, and Marysburg; the said County of Prince Edward to comprehend all the Islands in the said Lake Ontario and Bay of Quinti nearest to the said county, and in the whole or greater part fronting the same.

THAT the Eleventh of the said Counties be hereafter called by the name of the County of HASTINGS; whieh County is to be bounded on the East by the Westernmost Line of the County of Lenox, on the South by the Bay of Quinti until it meets a boundary on the Eastern-most shore of the River Trent, thence along the said River until it intersects the rear of the ninth Concession, thence by a Line running North sixteen degrees West until it intersects the Ottawa or grand River, thence descending the said river until it meets the Northwestern-most boundary of the County of Addington; and the said County of Hastings to comprehend all the Islands

1. This is a misprint in the original proclamation for Gananoque.

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in the said Bay of Quinti and river Trent nearest to the said County, and in the whole or greater part fronting the same.

THAT the Twelfth of the said Counties be hereafter called by the name of the County of NORTHUMBERLAND; which county is to be bounded on the East by the Western most line of the County of Hastings and the carrying place of the Presque Isle de Quinti, on the South by Lake Ontario until it meets the Western most point of little Bay, thence by a Line running North sixteen degrees West until it meets the Southern boundary of a Tract of Land belonging to the Messisague Indians, and thence along the said Tract, parallel to Lake Ontario, until it meets the Northwestern most boundary of the County of Hastings; the said County of Northumberland is to comprehend all the Islands in the said Lake Ontario and Bay of Quinti nearest the said County, and in the whole or greater part fronting the same.

THAT the Thirteenth of the said Counties be hereafter called by tho name of the County of DURHAM; which County is to be bounded on the East by the Westernmost Line of the County of Northumberland, on the South by Lake Ontario until it meets the Western-most Point of Long Beach, thence by a Line running North sixteen degrees West until it intersects the Southern boundary of a Tract of Land belonging to the Messisague Indians; and thence along the said Tract, parallel to Lake Ontario, until it meets the Northwestern most boundary of the County of Northumberland.

THAT the Fourteenth of the said Counties be hereafter called by the name of the County of YORK; which county is, to consist of two ridings, the East and the West Riding; the East riding is to be bounded on the East by the Western-most Line of the County of Durham, on the South by Lake Ontario until it meets the Easternmost boundary of a Tract of Land belonging to the Messisague Indians, on the West by the Eastern-most boundary Line of said Tract, running North sixteen degrees West the distance of twenty-eight miles, thence North seventy four degrees East fourteen miles, thence South sixteen degrees East sixteen miles, to the Southern boundary, of the lands belonging to the said Indians, and thence along the said Tract parallel to Lake Ontario until it meets the Northwestern-most boundary of the County of Durham.

THAT the West riding of the said County be hereafter called by the name of the West riding of the County of YORK, which riding is to be bounded on the East by the Western-most line of a tract of land belonging to the Messissague Indians, running North forty-five degrees West to the river La Tranche (to be called the Thames), on the South by Lake Geneva, (to be called Burlington Bay), and the carrying place leading through the Mohawk village to where it intersects the river la Tranche or Thames, and thence up the said river to the Northwestern-most boundary of a Tract of Land belonging to the Messissague Indians.

THAT the fifteenth of the said counties be hereafter called by the name of the County of LINCOLN; which county is to be divided into four ridings; the first riding is to be bounded on the West by the Eastern-most line of the County of York, on the South by the grand River to be called the Ouse, thence descending the said river until it meets on Indian road leading to the forks of the Chippawa Creek, (which creek is to be called the Welland), thence descending the said Creek until it meets the continuation of the Eastern-most boundary of the late Township Number 5, thence North along the said boundary until it intersects Lake Ontario, and thence along the South shore of Lake Ontario, until it meets the Southeast boundary of the County of York.

THE second riding is to be bounded on the West by the Eastern-most line of the first riding on the North by Lake Ontario, on the East by the river Niagara, and on the South by the northern boundary of the late Townships N°. 2 N°. 9 and N°. 10.

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THE Third riding is to be bounded on the East by the river Niagara, on the South by the Chippawa or Welland, on the West by the Eastern most boundary of the first riding, and on the North by the Southern boundary of the second riding. THE fourth riding, is to be bounded on the East by the river Niagara, on the South by the Lake Erie, to the mouth of the grand river or Ouse, thence up the said river to the road leading from the said grand river or Ouse to the forks of the Chippawa or Welland, and on the North by the said road until it strikes the forks of the Welland, and thence down the said Welland to the river Niagara; the said fourth riding to include the Islands comprised within the Eastermmost boundaries of the river Niagara.

THAT the sixteenth of the said Counties be hereafter called by the name of the County of NORFOLK; which County is to be bounded on the North and East by the county of Lincoln and the river la Tranche, (now called the Thames), on the South by Lake Erie until it meets the Barbue (to be called the Orwell river), thence by a line running North sixteen degrees West until it intersects the river la Tranche or Thames, and thence up the said river until it meets the Northwest boundary of the County of York.

THAT the seventeenth of the said counties be hereafter called by the name of the County of SUFFOLK; which county is to be bounded on the East by the County of Norfolk, on the South by Lake Erie until it meets the carrying place from Pointe aux Pins unto the Thames, on the West by the said carrying place; and thence up the said river Thames, until it meets the Northwestern-most boundary of the county of Norfolk.

THAT the eighteenth of the said counties be hereafter called by the name of the County of ESSEX ; which county is to be bounded on the East by the County of Suffolk, on the South by Lake Erie, on the West by the river Detroit to Maisonville’s mill; from thence by a line running parallel to the river Detroit and Lake St. Clair at the distance of four miles until it meets the river la Tranche or Thames, and thence up the said river to the Northwest boundary of the county of Suffolk.

THAT the ninteenth of the said counties be hereafter called by the name of the County of KENT; which county is to comprehend all the country (not being Territory of the Indians) not already included in the several Counties herein before described, extending Northward to the boundary line of Hudsons bay, including all the Territory, to the Westward and Southward of the said line, to the utmost extent of the country commonly called or known by the name of Canada.

AND KNOW YE ALSO, that our said Lieutenant Governor, hath also declared and appointed, and doth hereby declare and appoint, that for the purposes of representation, the said County of Glengary (bounded as aforesaid) shall be divided into two ridings; the first riding to include the late Township of Charlottenburg, and the feocond riding tos comprehend such part of the said County of Glengary as is not contained in the first riding, and that each of the said ridings shall send one representative that is, the said first riding shall and may be represented in the said House of Assembly by one Member, and the said second riding shall and may be represented in the said House of Assembly, by one Member; and that the said County of Stormont (bounded as herein before described) shall and may be represented in the said House of Assembly, by one Member; and that the said County of Dundas (bounded as herein before is described) shall and may be represented in the said House of Assembly by one Member ; and that the said County of Grenville (bounded as herein before is described) shall and may be represented in the said House of Assembly by one Member; and that the said County of Leeds and County of Frontenac (severally bounded as herein before is described) shall together send one representative, that is, the said Counties of Leeds and Frontenac shall and may be represented together in the said House of Assembly by one Member; and that the County of Ontario and

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the County of Addington (severally bounded as herein before is described) shall together send one representative, that is the said Counties of Ontario and Addington shall and may be represented together in the said House of Assembly by one Member; and that the County of Prince Edward (so bounded as herein before is described) together with the District of the late Township of Adolphus, in the County of Lenox, shall together send one representative, that is the said County of Prince Edward together with the said District (late the Township of Adolphus) shall and may be represented together in the said House of Assembly by one Member; and that the County of Lenox (the said District late the Township of Adolphus excepted) with the Counties of Hastings and Northumberland (severally bounded ‘as herein before is described) shall together send one representative, that is, the said County of Lenox (except as before excepted) and said Counties of Hastings and Northumberland, shall and may be represented together in the said House of Assembly by one Member; and that the Counties of Durham and York, and the said first riding of the County of Lincoln (severally bounded as herein before is described) shall together send one representative, that is, the said Counties of Durham and York and first riding of the County of Lincoln shall and may be represented together in the said House of Assembly by one Member; and that the said second riding of the said County of Lincoln (bounded as herein before is described) shall and may be represented in the said House of Assembly by one Member; and that the said third riding of the said County of Lincoln (bounded as herein before is described) shall and may be represented in the said House of Assembly by one Member ; and that the said fourth riding of the said County of Lincoln and the County of Norfolk (severally bounded as herein before is described) shall together send one^representative, —that is, the said fourth riding of the said County of Lincoln and the County of Norfolk shall and may be represented together in the said House of Assembly by one Member; and that the County of Suffolk and the County of Essex (severally bounded as herein before is described) shall together send one representative,—that is, the said Counties of Suffolk and Essex shall and may be represented together in the said House of Assembly by one member; and that the said County of Kent, (as herein before is described) shall and may be represented in the said House of Assembly by two Members, of which our loving Subjects and all others concerned are to take due notice and govern themselves accordingly.1

IN TESTIMONY whereof we have caused these our Letters to be made Patent, and the great Seal of our said Province of Upper Canada to be hereunto affixed. WITNESS our Trusty and well beloved JOHN GRAVES SIMCOE Esqr. Lieutenant Governor of our said Province of Upper Canada, and Colonel Commanding our forces in Upper Canada &c: &c.—At our Government House, in the Town of Kingston, the sixteenth day of July in the Year of our Lord One Thousand seven hundred and ninety-two, and in the thirty-second Year of our Reign.

Wm. JARVIS, Secretary. J. G. S.

1. For the later basis of representation see the Redistribution Acts of 1800 and 1820, pages 245 and

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AN ACT INTRODUCING ENGLISH CIVIL LAW INTO UPPER CANADA.1

IN THE THIRTY-SECOND YEAR OF GEORGE THE THIRD.

CHAP. I.

An ACT to repeal certain paiis of an Act passed in the fourteenth year of His Majesty’s Reign, intituled, “An Act for making more effectual Provision far the Government of the Province of QUEBEC, in NORTH-AMERICA, and to introduce the English Law, as the Bule of Decision in all matters of Controversy, relative to Property and Civil Bights.”

WHEREAS, by an Act passed in the fourteenth year of his present Majesty, intituled, ” An Act for making more effectual provision for the Government of the Province of Quebec, in North-America,” it was, among other things, provided, “That in all matters of controversy relative to property and civil rights, resort should be had to the Laws of Canaâa as the rule for the decision of the same;”2 such provision being manifestly and avowedly intended for the accommodation of His Majesty’s Canadian subjects: and whereas, since the passing of the Act aforesaid, that part of the late Province of Quebec, now comprehended within the Province of Upper-Canada, having become inhabited principally by British subjects, born and educated in countries where the English Laws were established, and who are unaccustomed to the Laws of Canada, it is inexpedient that the provision aforesaid contained in the said Act of the fourteenth year of His present Majesty, should be continued in this Province— Be it enacted, by the King’s most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” and by the authority of the same, ” That from and after the passing of this Act, the said provision contained in the said Act of the fourteenth year of his present Majesty, be, and the same is hereby repealed; and the authority of the said Laws of Canada, and every part thereof, as forming a rule of decision in all matters of controversy relative to pro-

1. The first Parliament of Upper Canada was assembled at Newark, September 17, 1792, and remained in session until the 15th of October. This Act and the one which follows were the first statutes enacted by the Province of Upper Canada. Both are taken from the edition of lhe Statutes of His Majesty’s Province of Upper-Canada” printed at York under the authority of His Excellency Peter Hunter by John Bennett, Printer to the King’s Most Excellent Majesty, 1802. 2. See the Quebec Act, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 404.

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perty and civil rights, shall be annulled, made void and abolished, throughout this Province, and that the said Laws, nor any part thereof as such, shall be of any force or authority within the said Province, nor binding on any of the inhabitants thereof.”

II. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act shall extend to extinguish, release or discharge, or otherwise to effect any existing right, lawful claim or incumbrance, to and upon any lands, tenements or hereditaments within the said Province, or to rescind or vacate, or otherwise to affect any contract or security already made and executed conformably to the usages prescribed by the said Laws of Canada.

III.- And be it further Enacted by the Authority aforesaid, That from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England as the rule for the decision of the same.

IV. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act shall extend, or be construed to extend, to repeal or vary any of the ordinances made and passed by the Governor and Legislative Council of the Province of Quebec, previous to the division of the same into the Provinces of Upper and Lower- Canada, otherwise than as they are necessarily varied by the provisions herein mentioned.

V. And be it further Enacted by the Authority aforesaid, That all matters relative to testimony and legal proof in the investigation of fact, and the forms thereof, in the several Courts of Law and Equity1 within this Province, be regulated by the rules of evidence established in England.

VI. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act contained, shall vary, or interfere, or be construed to vary or interfere with any of the subsisting provisions respecting ecclesiastical rights and dues within this Province, or with the forms of proceeding in civil actions, or the jurisdiction of the Courts already established, or to introduce any of the Laws of England respecting the maintenance of the poor, or respecting bankrupts.

1. While the provisions of this Act were made applicable to the courts, both of law and equity, it was not until 1837 that a court of purely equitable jurisdiction was established in Upper Canada. See page 294.

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AN ACT ESTABLISHING TRIAL BY JURY IN UPPER CANADA.

IN THE THIRTY-SECOND YEAR OF GEORGE THE THIRD.

CHAP. II.

An ACT to Establish Trials by Jury.

WHEREAS, the Trial by Jury has been long established and approved in our mother country, and is one of the chief benefits to be obtained by a free Constitution—Be it therefore enacted by the King’s most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Ganada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” and by the authority of the same, That from and after the first day of December, in this present year of our Lord, One Thousand Seven Hundred and Ninety-Two, all and every issue and issues of fact, which shall be joined in any action, real, personal or mixed, and brought in any of His Majesty’s Courts of Justice within the Province aforesaid, shall be tried and determined by the unanimous verdict of twelve Jurors, duly sworn for the trial of such issue or issues, which Jurors shall be summoned and taken conformably to the Law and custom of England.1

II. Provided always, and be it further Enacted by the Authority aforesaid, That nothing herein contained shall prevent, or be construed to prevent the said Jurors, in all cases where they shall be so minded, from bringing in a special verdict.

1. The Provincial Statute, 34 Geo. III, Chap. I, provided for the regulation of Juries.

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AN ACT FOR THE APPOINTMENT OF TOWN OFFICERS, UPPER CANADA.1

IN THE THIRTY-THIRD YEAR OF GEORGE THE THIRD,

CHAP. II.

An ACT to provide for the Nomination and Appointment of Parish and Town Officers within this Province.

WHEREAS, it is requisite for the maintenance of good order and the regular execution of the laws, that proper officers should be appointed to superintend the observance thereof; Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the legislative council and assembly of the Province of Upper- Canada, constituted and assembled by virtue of and under the authority of an Act passed in the parliament of Great Britain, 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,” and by the authority of the same, That it shall and may be lawful, as soon as conveniently may be, ‘ after the passing of this Act, for any two of His Majesty’s justices of the peace, acting within the division in which any parish,2 township,3 reputed township or place may be, to issue their warrant, giving eight days previous notice to the constable4 of such parish,

1. From the edition of The Statutes of His Majesty’s Province of Upper-Canada printed under the authority and by command of His Excellency Peter Hunter, by John Bennett, 1802. 2. This being the beginning of representative local government in Upper Canada the* Assembly, in enacting this statute, was under the necessity of accepting sueh local units as already existed. The ecclesiastical jurisdiction known as the parish presented itself as a most natural unit and, though its limits were not definitely determined, it was readily accepted as a basis for the system of local government. 3. The township was yet nothing more than a territorial unit adopted as an aid in the surveying and settlement of the Province. The Instructions to Governor James Murray in 1763 contained the following order—”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 may be natural Boundaries extending up into the Country, and comprehending a necessary Part of the River of St. Lawrence,-where it can be conveniently had.” (See Article 45 of Instructions to Murray, Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 141.) In the Instructions to Lord Dorchester in 1791, it was recommended that ” each Inland Township shall, as nearly as Circumstances shall admit, consist of Ten Miles Square; and such as be situated on a navigable River or Water shall have a front of Nine Miles, and shall be Twelve Miles in Depth.” (See Article 82 of the Instructions to Dorchester, page 41.) In 1798 an Act (Chap. I.) was passed authorizing the Surveyor General, on application from the magistrates of any district, to fix and determine the boundary lines of any township within the district. 4. The constables were appointed by the justices of the Peace for each district at the regular meeting of the Court of Quarter Sessions held in April. See Section X of this Act.

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township, reputed township, or place, authorizing him on a day to be fixed by the said justices in the present year, and on the first Monday in the month of March1 in every ensuing year, to assemble the inhabitant householders, paying or liable to pay, to any public assessment or rate2 of such parish, township, reputed township, or place, in the parish church or chapel, or in some convenient place within the said parish, township, reputed township, or place, for the purpose of choosing and nominating the parish or town officers herein after mentioned, to serve in their respective offices for the year next ensuing, at which meeting the said constable shall preside.3

II. And be it Enacted by the Authority aforesaid, That it shall and may be lawful for the said inhabitant householders, or the greater part of them so assembled, to choose one fit and proper person from among the inhabitants to be clerk of the said parish, town or township, who shall and is hereby required to make a true and complete list of every male and female inhabitant within the limits of his parish, town or township, and return the same to the justices acting as aforesaid, so as they may produce the said list at the general quarter sessions in the month of April to be holden, and the said clerk shall and is hereby required, to enter and record all such matters, as shall relate to the said parish, town or township, and shall appertain to his office, which records shall be faithfully and carefully kept and preserved by such clerk, and by him delivered to his successor duly nominated and appointed.

III. And be it further Enacted by the authority aforesaid, That it shall and may be lawful for the said inhabitant householders, in manner aforesaid, to choose two fit and proper persons, from among the said inhabitants, to serve the office of assessors for the said parish, township, reputed township or place, who shall assess all such rates and taxes, as shall be imposed by any Act or Acts of the Legislature of this Province,4 and be made payable by the inhabitants thereof.

IV. And also to choose and nominate in manner aforesaid, one fit and proper person to serve the office of collector for such parish, township, reputed township, or place, who shall and may, and is hereby authorized, from time to time, to demand and receive from the inhabitant householders, under the said assessment, such monies as may be due and payable from the said inhabitants, in respect of the malters aforesaid, which collector shall acount for and pay over the monies so received by him, in such manner as shall be directed by any Act or Acts of the said Legislature, that may authorize the imposing and levying such rates and taxes respectively.

V. And also to choose and nominate in manner aforesaid, not less than two or more than six persons,5 as shall be specified in the

1. In 1817 an Act was passed changing the nomination day to the first Monday in January. 2. For the different rates levied for local purposes see the preamble to the Act authorizing the collecting of local taxes, page 91. 3. Provision was made in 1806 authorizing the justices of the Peace in Quarter Sessions, in case of neglect to hold the regular town meeting, to appoint the town officers to serve until the next town meeting, or, in case of the death or removal of any town officer, to appoint a successor for the balance of the term. 4. See the Statute regulating assessments, page 91. 5. This clause was amended hy the Act 45 Geo. III , Chap. VI. which empowered the inhabitants at the town meeting to select not less than two nor more than twelve persons to act as overseers of highways.

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warrant to be issued by the said justices, to serve the office of overseers of highways and roads, to oversee and perform such things as shall be directed by any Act to be passed, touching or concerning the highways and roads in this Province, which said overseers shall also serve the office of fence-viewers, and are hereby authorized and required, upon receiving proper notice, to view and determine upon the heighth and sufficiency of any fence or fences within their respective parish, township, reputed township, or place, conformably to any resolutions, that may be agreed upon by the said inhabitants at such meeting to be holden, under and by virtue of such warrant as aforesaid.

VI. And also to choose and nominate in manner aforesaid, a person or persons to serve the office of pounds-keeper, who is hereby authorized to impound all cattle, and each and every horse, sheep and hog that shall trespass on the lands of any person, having inclosed the same by such high and sufficient fence, as shall have been agreed on in manner aforesaid, and also to impound any stoned horse, more than one year old, that shall be running at large upon the high-ways or commons, and to detain such horse, until the owner thereof shall have paid the sum of twenty shillings, one half to be paid to the person taking such horse, the other half thereof to the collector, towards the public stock of the district.

VII. And also to choose and nominate in manner aforesaid, two fit and discreet persons to serve the office of town wardens for such parish, township, reputed township, or place; but as soon as there shall be any church built for the performance of divine service, according to the use of the church of England, with a parson or minister duly appointed thereto, then the said inhabitant householders shall choose and nominate one person, and the said parson or minister shall nominate one other person, which persons shall jointly serve the office of church warden, and that such town wardens or church wardens, and their successors duly appointed, shall be as a corporation, to represent the whole inhabitants of the township or parish, and as such may have a property in goods or chattels of or belonging to the said parish, and shall and may sue, prosecute or defend in all presentments, indictments or actions, for, and on the behalf of the inhabitants of the said parish.

VIII. And be it further Enacted by the Authority aforesaid, That the constable presiding at such meeting, shall and is hereby required, to cause a list to be made out, containing the names of the persons chosen and nominated to serve and execute the several offices herein before mentioned in manner aforesaid, which list shall be signed by the said constable, who shall forthwith communicate the same to either of the justices, having signed the warrant by virtue of which such meeting was holden, and it shall and may be lawful for either of the said justices, or for any justice of the peace,, acting within the division, and he is hereby authorized and empowered to administer an oath of office, to each and every person or persons so chosen and nominated as aforesaid, within seven daysafter such meeting as aforesaid, in the following form:

” You A. B. do promise and swear, that you will faithfully, diligently and justly serve and perform the office and duties of for according to the best of your abilities—So help you God.”

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And that every person having taken such oath, shall be held to he lawfully appointed to such office, for which he shall have been chosen and nominated as aforesaid.

IX. Provided always, That any person so chosen and nominated to serve any of the offices herein before mentioned in manner aforesaid, who shall refuse or neglect to signify his consent to enter upon such service, and to take the oath herein before set forth by the space seven days after such nomination as aforesaid, shall forfeit and pay the sum of forty shillings for every such neglect or refusal, to be recovered upon proof thereof on confession, or by the oath of one credible witness, before any one justice of the peace, acting within the said division, to be levied by warrant of distress, and sale of the goods and chattels of the party so neglecting or refusing, and to be paid into the hands of the treasurer, towards the public stock of the district, except in the case of forfeiture of any person or persons , nominated to be overseers of the highways and roads, and refusing to act, whose penalties shall be paid into the hands of the commissioners of the highways and roads, and that it shall and may be lawful, in case of refusal as aforesaid, for any two of his Majesty’s justices, acting within the said division, to hold a special session for the purpose of naming one or more person or persons to serve the office, that may have been refused, by the party chosen to serve the same, and fined in manner aforesaid, and if the person or persons so named by the said justices, upon being served with due notice thereof, which notice the constable is hereby required to serve upon the person, or leave the same at his usual place of abode, shall neglect or refuse by the space of seven days, after the service of such notice, to accept the said office, and take the oath herein before prescribed, he shall for every such neglect or refusal, forfeit the sum of forty shillings, to be levied by distress and sale, and paid over in manner herein before mentioned.

X. And be it further Enacted by the authority aforesaid, That it shall and may be lawful for the justices of the peace, within, the respective limits of their commissions at their general quarter sessions in the month of April assembled, or the greater part of them, to nominate and appoint yearly and every year, a sufficiently discreet and proper person, to serve the office of high constable in each and every district, and also to nominate and appoint, such a sufficient number of persons, as in their discretion will be necessary, to serve the office of constable in each and every parish, township, reputed township, or place, and the said constable and constables, before they enter upon their office, shall severally take the following oath, which it shall and may be lawful for any justice of the peace to administer—

“You shall well and truly serve our Sovereign Lord the King, in the Office of for the of for the year ensuing, according to the best of your shill and knowledge—So help you God.”

XI. Provided always, and be it further Enacted by the Authority aforesaid, That no person having been appointed and served any of the offices mentioned in this Act, shall be liable to be appointed, or serve the same office, within three years from such appointment and service, unless he shall consent thereto.

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XII. Provided also, That when any township, or reputed township, shall not contain thirty inhabitant householders, it shall not be lawful for’the said justices to issue their warrant for calling a meeting therein, but the said inhabitant householders shall be joined to, and be reputed and taken as inhabitants of the township adjacent thereto, which shall contain the smallest number of inhabitants.

XIII. And be it enacted, That it shall and may be lawful for the justices of the Peace within the respective limits of their commissions, at the General Quarter Sessions in the month of April to be holden, assembled, or the greater part of them, to limit and appoint such fees and perquisites as to them shall appear reasonable to be demanded and taken by every town clerk and pound keeper of the several parishes or townships within their respective districts.

SCHEDULE. JUSTICE’S WARRANT TO ASSEMBLE THE INHABITANTS.

Home District.

To the Constable for the Township of in the said District.

BY virtue of a power for such purpose granted by a certain Act of the Legislature of this Province, made and passed in the thirtythird year of his present Majesty’s reign, to us A. B. Esquire, and O. D. Esquire, two of his Majesty’s justices of the peace in and for the said district, these are to authorize and require you, giving eight days previous notice, to assemble the inhabitant householders, paying or liable to pay to any public assessment or rate living within your parish or township, to meet at on for the purpose of choosing and nominating certain fit and proper persons to serve the offices herein specified for the ensuing year, that is to say, one town clerk, two assessors, one collector, two or more overseers of the highways and roads, one or two pound-keepers, and two town wardens, according to the directions in the said Act contained, and for so doing this shall be a sufficient warrant. Given under our hands and seals at on the day of in the year of the reign of

CONSTABLE’S NOTICE TO BE GIVEN ON A NOMINATION TO AN OFFICE BY THE JUSTICES.

Home District, Township of

WHEREAS at a special session for that purpose

holden on the day of by A. B. Esquire, and C. D. Esquire, two of His Majesty’s justices of the peace for the said district, you were by the said justices nominated and appointed to serve the office of for the township of for the year next ensuing, by virtue of a power to them for that purpose granted by a certain Act of the Legislature of this Province. These are therefore to notify unto you, that unless you accept the said office, and take the oath prescribed, within seven days from the receipt of this notice, you shall for such neglect or’ refusal, forfeit and pay the sum of forty shillings, as by the said Act is directed.

Dated this day of in the year,

G. H. Constable.

To Mr. L. M. CONSTITUTIONAL DOCUMENTS 91

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AN ACT REGULATING LOCAL TAXATION AND PROVIDING FOR THE PAYMENT OF MEMBERS OF ASSEMBLY, UPPER CANADA.1

IN THE THIRTY-THIRD YEAR OF GEORGE THE THIRD.

CHAP. III.

An ACT to authorize and Direct the Laying and Gollecting of Assessments and Bates, in every District within this Province, and to Provide for the Payment of Wages to the Members of the House of Assembly.

WHEREAS, it is necessary to make provision for defraying the expences of building a Court House and Gaol, and keeping the same in repair, for the payment of gaolers salary, for the support and maintenance of prisoners, for building and repairing houses of correction, for the construction and the repair of bridges, for the fees of the coroner and other officers, for the destroying of bears and wolves, and other necessary charges within the several districts of this Province; Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” and by the authority of the same, That the assessors of every parish, township, reputed township or place within this Province, shall and they are hereby required as soon as conveniently may be after the passing of the present Act, and hereafter yearly and every year, within thirty days next after they shall be appointed to their office,2 to make out a true and complete return of every inhabitant householder living within the limits of the said parish, township, reputed township or place, and to divide each and every of them into eight different classes, in the following manner, that is to say:

II . That the first class do contain the names of such house 1st classs holders as aforesaid, as the said assessors to the best of their knowledge and judgment believe are possessed of real or personal property, goods or effects to their own use, to the value of fifty pounds, and not amounting to one hundred pounds.

1. From the printed copy of The Statutes of His Majesty’s Province of Upper-Canada, edition of 1802. This Act was repealed by the statute 47 Geo. III, Chap VII. which established a new basis of assessment. 2. See Clause I. of the act for the appointment of parish and town officers, page 86.

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III. And that the second class do contain the names of such householders as aforesaid, as the said assessors to the best of their knowledge and judgment believe, to be possessed of real or personal property, goods or effects to their own use, to the value of one hundred pounds, and not amounting to one hundred and fifty pounds.

IV. And that the third class do contain the names of such householders as aforesaid, as the said assessors to the best of their knowledge and judgment believe, to be possessed of real or personal property, goods or effects to their own use, to the value of one hundred and fifty pounds, and not amounting to two hundred pounds.

V. And that the fourth class do contain the names of such householders as aforesaid, as the said assessors to the best of their knowledge and judgment, believe to be possessed of real or personal property, goods or effects to their own use, to the value of two hundred pounds, and not amounting to two hundred and fifty pounds.

VI. And that the fifth class do contain the names of such householders as aforesaid, as the said assessors to the best of their knowledge and judgment, believe to be possessed of real or personal property, goods or effects to their own use, to the value of two hundred and fifty pounds, and not amounting to three hundred pounds.

VII. And that the sixth class do contain the names of such householders as aforesaid, as the said assessors, “to the best of their knowledge and judgment, believe to be possessed of real or personal property, goods or effects to their own use, to the value of three hundred, pounds, and not amounting to three hundred and fifty pounds.

VIII. And that the seventh class do contain the names of such householders as aforesaid, as the said assessors, to the best of their knowledge and judgment, believe to be possessed of real or personal property, goods or effects to their own use, to the value of three hundred and fifty pounds, and not amounting to four hundred pounds.

IX. And that the eight class do contain the names of such householders as aforesaid, as the said assessors, to the hest of their knowledge and judgment, believe to be possessed of real or personal property, goods or effects to their own use, to the value of four hundred pounds and upwards;1 and that such inhabitants as the said assessors, to the best of their knowledge and judgment, believe not to be possessed of real or personal property, goods or effects, to the value of fifty pounds, shall be included in a list to be called the excused list.2

1. In 1794 this Act was amended by adding two further classes, the 9th and 10th, consisting of householders possessing property valued between £450 and £500 and between £500 and £550 respectively. The amended act then authorized the assessors to make a list to be called the Upper list, of all householders possessed of property in excess of £500. Within the 9th class the rate was £1 2s. 6d., within the 10th, £1 5s., and in the Upper list 5s. for every £100. (34 Geo. III , Chap. VI.) 2. The provision for an excused list was altered by clause VI. of the Act 34 Geo. III,) Chap VI. ” And whereas every inhabitant householder within this Province, possessed of a location or lot of land, by his Majesty’s bounty, or otherwise, may by his honest industry, support himself, and at the same time contribute something to the public stock of the district; Be it enacted that the appellation of the excused list, by the said abovementioned act, directed to be given to the list containing the names of the persons therein specified, do cease and determines and that such list be continued to

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X. And be it Enacted by the authority aforesaid, That the said assessors shall and they are hereby required within six weeks from the time of their appointment, to make out a copy of such their returns of all the inhabitant householders within their respective parish, township, reputed township or place, so divided into classes as aforesaid, with the names of the said assessors thereunto subscribed, and to present the same to two justices of the peace living within or next to such parish, township, reputed township or place, for their consideration and allowance, which they are to signify by signing the said return, and such allowance of the said justices shall be a sufficient warrant for the collectors of the said parish, township, reputed township or place, to demand and receive from the said inhabitant householders the rates hereafter imposed by virtue of this act, and the said assessors shall cause the same to be fixed on the church door, or some other place of public resort, in the said parish, township, reputed township or place for general inspection, and shall also transmit a copy of such return, signed by the said assessors, to the clerk of the peace of the respective districts.

XI. And be it further Enacted by the authority aforesaid, That if any person shall be aggrieved by being included in any of the classes above mentioned, or shall have any material objection to any person being left out of any of the said classes in such return as aforesaid, he may upon giving reasonable notice to the assessors in his own case, and to the party in case of any such objection as aforesaid, appeal to the next general quarter sessions, and it shall and may be lawful for the said justices to inquire into the matters aforesaid, upon oath to be administered to the parties, if to the said justices it shall appear to be needful, (which oath the said justices are hereby impowered and authorized to administer) and having enquired, to determine the same either by confirming or amending such return, in such manner only as shall be necessary to give relief in the matters complained of, and such determination of the said justices shall be final in all matters aforesaid.

XII. And be it further Enacted by the authority aforesaid, That it shall and may be lawful for the collector of each parish, township, reputed township or place, and he is hereby authorized, to demand and receive yearly and each year for the space of two years next ensuing the twenty-fifth day of March, which will be in the year of our Lord one thousand seven hundred and ninety-four, of every inhabitant householder, whose name shall he included in the first class aforesaid, the sum of two shillings and six pence, as his rate or proportion of the district assessment, to he levied for the uses and purposes aforesaid.

XIII. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be

be made out, and be called the Under List; and that every inhabitant householder within this Province, whose name shall be included m the said Under List, shall for the «¡aid year ensuing, contribute and pay the sum of two shillings, towards the public stock of the district, to be proportionably diminished, in case it shall not hereafter be found necessary to impose an entire rate according to the provisions in the said Act in that behalf contained.” By the Act 43 George III, Chap. XII. the basis of assessment was completely changed. The existing classification of householders was abandoned and a valuation was placed on the various articles of real and personal property which were subject to taxation.

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included in such second class as aforesaid, the sum of five shillings, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XIV. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such third class as aforesaid, the sum of seven shillings and six-pence, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XV. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such fourth class as aforesaid, the sum of ten shillings, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XVI. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such fifth class as aforesaid, the sum of twelve shillings and six-pence, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XVII. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such sixth class as aforesaid, the sum of fifteen shillings, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XVIII. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such seventh class as aforesaid, the sum of seventeen shillings and six pence, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XIX. And also to demand and receive, for and during the time aforesaid, of every inhabitant householder, whose name shall be included in such eighth class as aforesaid, the sum of twenty shillings, as his rate or proportion of the district assessment, to be levied for the uses and purposes aforesaid.

XX. And be it further Enacted by the authority aforesaid, That the collector of each and every parish, township, reputed township or place, shall, and he is hereby required once in every three months to pay or cause to be paid to the treasurer of the district, all such monies as he shall have received under and by virtue of this act, and shall also produce the book or books of assessment for the examination of the said treasurer, and it shall and may be lawful for the said treasurer, upon being satisfied that all the monies to be received by virtue of this act, have been duly collected and paid or accounted for by the said collector, to pay «into the hands of the said collector, the sum of three pounds for every hundred pounds so by him collected and paid as aforesaid, and at and after the same rate and proportion, for any sum less than one hundred pounds, by him collected and paid, and the said treasurer shall and is hereby required to give a receipt for the monies so collected and paid over to him, which receipt shall be a good and sufficient discharge to the said collector, for the monies so collected and paid by him to the said treasurer.

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XXI. Provided always, and be it enacted, That for the purposes of the current year which will determine on the twenty-fifth day of March, one thousand seven hundred and ninety-four, it shall and may be lawful, for the said collectors, and they are hereby required, to demand and levy in manner herein after to be mentioned, from each and every inhabitant, according to the several classes in which they shall respectively be included, one half of the rate to be yearly assessed on each and every class according to the proportions herein before set forth, and that each and every person whose name shall be returned in the first class, shall pay for the purposes aforesaid, the sum of fifteen pence, that each and every person, whose name shall be returned in the second class, shall pay for the purposes aforesaid, the sum) of two shillings and six pence, that each and every person, whose name shall be returned in the third class, shall pay for the purposes aforesaid, the sum of three shillings and nine pence, and that each and every person, whose name shall be returned in the fourth class, shall pay for the purposes aforesaid, the sum of five shillings, and that each and every person, whose name shall be returned in the fifth class, shall pay for the purposes aforesaid, the sum of six shillings and three pence, and that each and every person, whose name shall be returned in the sixth class, shall pay for the purposes aforesaid, the sum of seven shillings and six pence, and that each and every person, whose name shall be returned in the seventh class, shall pay for the purposes aforesaid, the sum of eight shillings and nine pence, and that each and every person, whose name shall be returned in the eighth class, shall pay for the purposes aforesaid, the sum of ten shillings.

XXII. And be it further Enacted by the Authority aforesaid, That the said collectors shall make out a book of account, containing the names of each inhabitant householder, within their parish, township, reputed township, or place, who are liable to be charged with such assessment, divided into their respective classes, according to the returns made by such assessors as aforesaid, and that upon the payment of the rate so charged upon them in their several classes, the said inhabitant householders, and each of them may require the collector to write the word “paid,” opposite to his or her name, and likewise to write down in figures the sum so paid in a ruled column or margin in such book to be made, and that such entry shall be a full and sufficient discharge to such inhabitant householder for the payment of the said rate.

XXIII. And be it further Enacted by the Authority aforesaid, That if any inhabitant householder shall refuse or neglect to pay the sum or rate, for which he stands classed and rated in manner aforesaid, by the space of fourteen days after demand duly made of the same by the said collector, such collector shall, and he is hereby required, to levy the same by distress and sale of the goods and chattels of the person so neglecting or refusing to pay, having first obtained a warrant for that purpose, under the hand and seal of some justice of the peace, within the said district, and to render the overplus, if any there shall be, after deducting the amount of the rate assessed and the charges of the distress and sale, to the owner thereof.

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XXIV. And be it further Enacted by the Authority aforesaid, That no collector of any parish, township, reputed township or place, shall be authorized to demand payment of any assessment or rate to be imposed upon any inhabitant householder by virtue of this Act, until after he shall have entered into a bond with a sufficient surety to the church or town wardens of the said parish, township, reputed township, or place, and their successors in the penal sum of one hundred pounds,1 that the said collector will duly and faithfully account and pay into the hands of the treasurer of the district, all and every sum or sums of money that he shall receive, on account of the said assessment and rates. Provided always, that the receipt of such treasurer ” shall be a sufficient discharge to all such collectors for the amount thereof, and shall be so far deemed and taken as evidence of the performance of the conditions in such bond or obligation to be contained.

XXV. And be it further enacted by the Authority aforesaid, That it shall and may be lawful for the said justices at their respective general quarter sessions, or the greater part of them, then and there assembled, to nominate and appoint a proper person, being resident in the said district, to be treasurer of the said district, which treasurer shall give sufficient security, in such sums, as shall be approved of by the said justices at their respective general quarter sessions, or the greater part of them, then and there assembled, to be accountable for the several sums of money which shall be respectively paid to him in pursuance of this Act, and to pay such sum or sums of money as shall be ordered to be paid by the justices in their general quarter sessions, and also for the due and faithful execution of the trust reposed in him, and all and every such sum or sums of money as shall be paid into his hands by virtue of and in pursuance of this Act, shall be deemed and taken to be the public stock of the district, and the said treasurer shall and is hereby required, to pay so much of the money in his hands, to such person and persons as the said justices at their respective general quarter sessions, or the greater part of them, then and there assembled, shall by their orders direct and appoint, for the uses and purposes herein before recited, and for any other uses and purposes to which the public stock of any district is or shall be applicable by law, reserving at all and every time or times to and for his own use, and as a reward for his labor and expence, the sum of three pounds for every hundred, that shall or may be paid into his hands by the said collectors for the purposes aforesaid.

XXVI. And be it further Enacted by the Authority aforesaid, That the said treasurer shall, and is hereby required, to keep books of entries of the several sums respectively received and paid by him in pursuance of this Act, and also to deliver in true and exact accounts upon oath, if required, (which oath, any one of the justices at their respective general quarter sessions is hereby authorized to administer) of all and every sum or sums of money respectively received and paid hy him, distinguishing the particular uses to which

1. By sections VI. and VII. of the Act 46 Geo. III, Chap. V. the collector was required to enter into a bond with two sureties to the Clerk of the Peace for the sum of two hundred pounds. This provision was altered by an Act of 1808 by which the collector was bound to the treasurer of the district instead of to the Clerk of the Peace.

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such sum or sums of money have been applied, to the justices at every general quarter sessions to be holden for the district, and shall lay before the justices of such session the proper vouchers for the same, and the discharges of the said justices of the peace, or the greater part of them, by their orders made at their general quarter sessions to such treasurer, shall be taken and allowed, as good and sufficient acquittances to the full amount thereof.

XXVn. And be it further Enacted by the Authority aforesaid, That it shall and may be lawful for the said justices of the peace, at their general quarter sessions assembled, or the greater part of them,’ from time to time, to continue such treasurer in his office so long as they shall see convenient, and to remove him at their pleasure, and appoint any ether person in his place.

XXVIII. And be it further Enacted by the Authority aforesaid, That in order to make provision for the district assessment after the expiration of two years as aforesaid, it shall and may be lawful for the justices of the peace, in their general quarter sessions in the month of April assembled,1 or the greater part of them, to cause an estimate to be laid before them of the sum or sums of money that may be necessary, to defray the charges and expenees accruing to their respective districts, for the uses and purposes aforesaid, for the ensuing year, and having determined and resolved upon the samet to cause the amount of the sum to be raised, to be divided, in an exact proportion, to the rate with which each class is severally charged, as herein before is provided, and to declare that the assessment required will be a half rate, a third, fourth, fifth, eighth, or any aliquot part of a rate, by computing the proportion, which the sum proposed to be raised bears to the amount o£ the sum, which shall have been raised by the original rates of two shillings and six pence, five shillings, ten shillings, and twenty shillings, severally, imposed on each respective class as aforesaid, and for that purpose to make a special order declaring the amount of the sum intended to be raised, and specifying the fractional part of the rate to be assessed and collected (in case it shall not be deemed necessary to impose an entire rate, according to the proportions aforesaid) on each and every inhabitant householder, according to their respective «lasses as aforesaid, which order being signed by the said justices in their general quarter sessions in the month of April assembled, or the greater part of them, shall be binding upon each and every inhabitant householder, in respect of the rate, with which he stands charged throughout this Province. And the high constable shall, at such times as the said justices by their order in sessions shall direct, cause such rates to be levied by a warrant under his hand, directed to the assessors and collector of every parish, township, reputed township or place within this Province.

XXIX. And be it further Enacted by the Authority aforesaid, That no new assessment shall be made, until it shall appear to the justices at their respective general quarter sessions, or the greater part of them, then and there assembled, by the accounts of their treasurer or otherwise, that three-fourths of the money collected by

1. An act was passed in 1796 permitting the justices of the peace to levy a rate in the meeting of the Quarter Session immediately following the passing of the act.

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virtue of the preceding rate, shall have been expended for the uses and purposes mentioned in this Act.

XXX. And whereas, it was the ancient usage of that part of Great Britain called England, for the several members representing the counties, cities and boroughs therein, to receive wages for their attendance in Parliament, and whereas it seems expedient to adopt the same custom in this Province; Be it therefore further enacted, that after every prorogation and dissolution of the Assembly of this Province, it shall and may be lawful for every member thereof having attended, to receive from the speaker of the House of Assembly, a warrant under his hand and seal, signifying the time that such member hath attended his duty in the said Assembly, and every member possessed of such warrant, shall and may ask and demand of the justices of the peace for the district, in which the county or riding represented by such member may be situate, in their general quarter sessions assembled, a sum not exceeding ten shillings per day, for every day that the said member shall have been engaged in the attendance of his duty in the House of Assembly; and have been necessarily absent from his place of abode, in going to, or returning from his said attendance, which sum it shall and may be lawful for the said justices to levy by assessment tp be made on each and every inhabitant householder in the several parishes, townships, reputed townships or places, within the county or riding represented by such member, by virtue of and in pursuance of an order to be by the said justices made for that purpose to the high constable of the district, who shall and may thereupon issue his warrant to the assessors of the several parishes, townships, reputed townships or places as aforesaid, who shall assess the same by dividing the sum to be assessed according to the rates and proportions as affixed to the several classes, in the return made as herein before mentioned, which rates shall be levied by the collector in manner herein before directed, and paid over to the said member, and in ease any person shall refuse or neglect to pay his due proportion or rate so to be assessed as aforesaid, by the space of fourteen days after the same shall have been demanded of himi by the said collector, it shall and may be lawful fof the said collector to levy the same by distress and sale of such persons goods and chattels, having first obtained a warrant for that purpose in the manner herein before directed.1

1. The act 43 Geo. III , Chap. XI, repealed this XXXth Clause. The provisions regarding the rate of payment and the speaker’s warrant were embodied in the act of 1803, but a change was made in the method of levying the tax. This sum, it enacts, ” it shall or may be lawful for the said Justices to leyy, by assessment to be made on each and every inhabitant householder in the several parishes, townships, or places within the County or Riding represented by such Member, in the same manner and form as by law any assessment may now or hereafter be levied, for any public purpose in any district in this Province; and for the said Justices to issue their order upon the Treasurer of the district to pay the amount of the sum to which any such Member may be intitled, out of the monies which may come into his hands, under and by virtue of any Act of the Provincial Parliament. And it shall and may be lawful to and for each and every Member, who may now or hereafter represent part of two or more districts, to ask and demand from the Speaker of the House of Assembly, who is hereby authorized and required to grant the same, a Warrant, directed to the justices in General Quarter Sessions assembled, of each of the said districts, which the said Member shall so represent, which Warrant shall specify the sum that each district is liable to pay, and the Justices thereof respectively, are hereby required to cause the sum specified in such Warrant to be collected and paid to. the said Member, in manner and form as herein before directed.”

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SCHEDULE. HIGH CONSTABLE’S WARRANT TO LEVY THE RATE.

To the Assessors and Collector of the Township of in the said District.

Western District.

BY virtue of an order from His Majesty’s justices of the peace, in and for this district in their general quarter sessions assembled, you are hereby required to raise the sum of within your township, in such manner as by a certain Act of the Legislature of this Province, for that purpose, passed in the thirty-third year of his present Majesty’s reign, is directed, being the proportion of your township (or parish) for and towards the general district assessment for defraying the expences of building a gaol and court house and keeping the same in repair, for the payment of the gaolers salary, for the support and maintenance of prisoners, for building and repairing houses of correction, for the construction and repairing of bridges and other purposes in the said Act mentioned, and hereof you are not to fail on the peril that shall ensue thereof.

Given under my hand this day of A. H. High Constable.

FORM OF AN ASSESSMENT.

Eastern District. Township of

AN assessment for defraying the expences of building a gaol and court-house and keeping the same in repair, for the payment of the gaolers salary, for the support and maintenance of prisoners, for building and repairing houses of correction, for the construction and repair of bridges and other purposes mentioned in an Act of the Legislature of this Province, of the thirty-third year of his present Majesty, intituled, An Act to for the township, or reputed township, called in the county of made and assessed the day of

Class I. Containing the name of such inhabitant householders living within the township aforesaid, as we to the best of our knowledge and judgment, do believe are possessed of real or personal property, goods or effects, to the value of fifty pounds, and not amounting to one hundred pounds, and who are severally and each to pay the sum of two shillings and six pence, in respect of their rate and proportion of the said assessment.

G.H. I.K. L.M.

First class : rate two shillings and six pence.

Class II . Containing the names of such inhabitant householders,, living within the township aforesaid, as we to the best of our knowledge and judgment, believe are possessed of real or personal property, goods or effects to their own use, to the value of one hundred

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pounds, and not amounting to one hundred and fifty pounds, and who are severally and each to pay five shillings, in respect to their rate and proportion of the said assessment.

N.O. P.Q. R.S.

Second class: rate five shillings.

Class III. Containing, &c. Class VIII. Containing, &c.

Assessed by us, A.B. C.D. Assessors.

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LETTERS PATENT ERECTING THE PROVINCES OF LOWER CANADA AND UPPER CANADA INTO A BISHOP’S SEE.1

GEORGE THE THIRD by the Grace of God, King of Great Britain, France and Ireland, Defender of the Faith &c.

To All to whom these Presents shall come, Greeting,—

Whereas We did, by Letters Patent,2 under our Great Seal of Great Britain bearing date the thirteenth day of August in the twenty seventh year of our reign, give and grant unto the Right Reverend Father in God Charles, by divine permission, Bishop of Nova Scotia in North America by himself & by his sufficient Commissary, or Commissaries to be by him substituted and appointed full power and authority to exercise jurisdiction Spiritual and Ecclesiastical in the Province of Quebec, now divided into two Provinces and called the Province of Lower Canada and the Province of Upper Canada as well as in the Provinces of New Brunswick and the Island of Newfoundland respectively, according to the Laws and-Canons of the Church of England as by our said Letters Patent relation being thereunto had will more fully and at large appear.—

Now We have thought fit to revoke and determine and do hereby revoke & determine so much of our said Letters Patent as relates to the said Province of Quebec (now the Province of Lower Canada and the Province of Upper Canada) and every clause, article or thing in our said Letters Patent contained as relate thereto.

And whereas the doctrine & discipline of the Church of England are professed & observed by a very considerable part of our loving Subjects of the said Provinces of Lower Canada and Upper Canada and their dependencies in North America.

And whereas by an Act of Parliament passed in the thirty first year of our reign, 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 & to make further provision for the Government of the said Province ” sundry provisions are thereby made respecting the allottment and appropriation of lands for the support of a Protestant Clergy within our said Provinces, and also respecting the constituting, erecting and endowing Parsonages or Rectories within the said Provinces, and also respecting the presentation of Incumbents or Ministers to the same, and also respecting the manner ira which such Incumbents or Ministers shall hold and enjoy the same.

And whereas the Churches of the said Provinces are not without great difficulty supplied with Ministers duly ordained, and the people thereof deprived of some offices prescribed by the Liturgy and usage of the Church of England for want of a Bishop residing in the said Provinces; for remedy of the aforesaid inconveniences and defects, We have determined to erect the aforesaid Provinces into a Bishop’s See; And We do by these Presents erect, found, ordain, malee and constitute the said Provinces of Lower Canada and Upper Canada and their Dependencies to be a Bishops See, and be called from henceforth the Bishoprick of Quebec, and to the end that this our Intention may be carried into due effect, We having great confidence in the Learning Morals, Probity and Prudence of our beloved Jacob Mountain, Doctor in Divinity do. name and appoint him to be Bishop of the said See of Quebec and its Dependencies so that he the said Reverend Jacob Mountain shall be and be taken to be Bishop of the

1. From the copy in the Canadian Archives, Q. 108, page 131. 2. For the letters patent see the Canadian Archives, M 505.

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Bishop’s See of Quebec and its dependencies and may by virtue of this our nomination and appointment enter into and possess the said Bishop’s See as the Bishop thereof during his natural life without any let or impediment of Us, Our Heirs or Successors.

And We do by these Presents give and grant to the said Jacob Mountain and his Successors Bishops of Quebec and its Dependencies full power and authority to confer the Orders of Deacon and Priest, to confirm those that are baptized and come to years of discretion, and to perform all the other functions peculiar and appropriated to the office of a Bishop, such Bishop and his Successors having been first duly ordained or consecrated Bishops according-to the form prescribed by the Liturgy of the Church of England, and also by him or themselves or by his or their Commissary, or Commissaries to be by him or them substituted and appointed to exercise Jurisdiction spiritual & ecclesiastical in and throughout the said See and Diocese according to the laws and canons of the Church of England which are lawfully made and received in England in the several causes and matters hereafter in these Presents expressed and specified & no other.1

And for a declaration of our royal will concerning the special causes and matters in which We will that the aforesaid Jurisdiction shall be exercised, We have further given and granted, and do by these presents give & grant to the aforesaid Bishop and his Successors full power and authority by him or themselves or by his or their sufficient Commissary or Commissaries by him or them to be substituted and named to give Institution to Benefices and grant Licences to Curates and to visit all Rectors, Curates, Ministers & Incumbents of all the Churches within their said Diocese wherein Divine Service shall be celebrated according to the rights and Liturgy of the Church of England and all Priests & Deacons im holy orders of the Church of England resident in their said Diocese with all and all manner of Jurisdiction power and coersion ecclesiastical that may be requisite in the premisses as also to call before him or them, or his or their Commissary or Commissaries at such competent days, hours and places whatsoever when and as often as to him or them or his or their Commissary or Commissaries shall seem meet and convenient the aforesaid Rectors, Curates, Ministers, Incumbents, Priests or Deacons im holy orders of the Church of England or any of them and to enquire by Witnesses to be sworn in due form of law by him or them or his or their Commissary or Commissaries and by all other lawful ways and meane by which the same may by law be best and most effectually done as well concerning their morals as their behaviour in their said offices and Stations respectively, as also to administer all such oaths as are accustomed to be taken in ecclesiastical Courts and to punish and correct the aforesaid Rectors, Curates, Ministers, Incumbents, Priests and Deacons in holy orders of the Church of England according to their merits, whether by removal, deprivation, suspension or other such ecclesiastical censure or correction as they may be liable to according to the Canons & Laws, ecclesiastical aforesaid.

And further, We have given and granted and do by these Presents give and grant to the aforesaid Bishop and his Successors full power and authority from time to time to name and substitute under his or their hands and episcopal Seals one or more efficient Commissary or Commissaries to exercise and perform all and singular the premises in the said Diocese and the several parts thereof with effect, and to remove and change the said Commissaries from time to time as to him or them shall seem expedient.

And We will that during a vacancy of the said See by the demise of the said Bishop or his Successors or otherwise, Institution to Benefices and Licences to Curates may be given by the Commissary or Commissaries who were so as aforesaid named &

1. For the opinion of Sir John Nicholl on the meaning of this clause see page 339.

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substituted by the last preceding Bishop and were in the possession of that office under such Substitution and appointment at the time when the See became vacant, and in case of the death of such Commissary or Commissaries before another Bishop is appointed to the said See, We will that Institutions to Benefices & Licences to Curates within the said Diocese may be given by or by the authority of any two Clergymen, of the Church of England resident in the said Diocese who shall be appointed for that purpose by the Governor of the Province.—

And moreover We command and by these Presents for us, Our Heirs and Successors strictly enjoin as well all and singular Our Governors, Judges and Justices, as all and singular Rectors, Curates, Ministers, Incumbents and other Our Subjects in our said Provinces of Lower Canada & Upper Canada and their dependencies, that they & every of them be aiding and assisting to the said Bishop and his Successors and his or their Commissary or Commissaries in the execution of the Premisses in all things as becomes them.

Nevertheless We will and do by these Presents declare and ordain that it shall be lawful for any person or persons against whom any Judgment, Decree, or Sentence shall be pronounced by any Commissary or Commissaries of the said Bishop or his Successors to demand a re-examination & review of such Judgment, Decree or Sentence before the Bishop himself or his Successors, who upon such demand made shall take cognizance thereof and shall have full power and authority to affirm, reverse or alter the said Judgment sentence or decree of His or their Commissary or Commissaries after having fully and maturely re-examined and reviewed the same.

And if any party or parties 3hall conceive himself or themselves aggrieved by any Judgment decree or sentence pronounced by the said Bishop or his Successors either in case of any such revision or in any cause originally instituted before such Bishop or his Successors, it shall be lawful for such party or parties so conceiving himself or themselves to be aggrieved to appeal from such sentence to Us, Our Heirs or Successors in Our High Court of Chancery of Great Britain so as notice of such appeal be given to the said Bishop within fifteen days after such Sentence shall have been pronounced, and good and sufficient security in the penalty of One Hundred pounds given to the Appellant or Appellants to pay such Costs as shall be awarded in case the Sentence appealed from shall be affirmed by Commissioners to be named by Us, Our Heirs & Successors under our Great Seal of Great Britain for the hearing and determining of the same.

And we will that such Commissioners shall have power finally to decide and determine the said Appeal in as ample manner and form as the Commissioners appointed and assigned under our Great Seal of Great Britain, by virtue of the Statute made in the twenty fifth year of the Reign of King Henry the Eighth (intituled ” An Act for the submission of the Clergy & restraint of Appeals”) can or may hear and definitely determine appeals from any of the Courts of the Archbishops of Our Realm of England.

Moreover, We will and grant by these Presents that the said Bishop be a Body corporate, and do ordain, make, & constitute him to be a perpetual Corporation, and to nave perpetual Succession and that he & his Successors be for ever hereafter called and fcnown by the Name of Bishop of Quebec and that he and his Successors by the Name aforesaid shall be able and capable in the law and have full power to purchase, have, take, hold and enjoy, such manors, messuages, lands, rents, tenements, annuities and hereditaments of what nature or kind soever in fee and in perpetuity or for term of life or years as by grant or licence under the Great Seal of our said Provinces of Lower & Upper Canada he or they, shall at any time be authorised to take, hold and enjoy, and also all manner of goods, chattels, and things personal whatsoever of what nature and value soever and also to demise any of the said manors messuages, lands, tenements and hereditaments whereof or wherein he or they shall have any Estate or interest as aforesaid in such manner as by licence under the Great Seal of Our Prov-

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inces of Lower Canada and Upper Canada he or they shall at any time be authorised for that purpose; and that he and his successors by and under the said name may prosecute, claim, plead and be impleaded, defend and be defended, answer and be answered in all manner of Courts of Us, Our Heirs & Successors and elsewhere in and upon all and singular causes, suits, Writs, & demands real, personal and mixed as well temporal as spiritual and in all other things, causes & matters whatsoever and that he and his Successors shall and may for ever hereafter have and use a Corporate Seal and the said Seal from time to time at his and their will and pleasure to break, change, alter or make new as to him or them shall seem expedient.

Moreover, We will and ordain by these Presents that the Bishop of the said See of Quebec and his Successors shall be subject and subordinate to the Archiepiscopal See of the Province of Canterbury and to the Most Reverend Father in God John Lord Archbishop of Canterbury Primate of all England and Metropolitan and his Successors in the same manner as any Bishop of any See within the Province of Canterbury in our Kingdom of England is under the Authority of the aforesaid Archiépiscopal See of Canterbury and the Archbishop thereof; save and except in the matter of Appeals from Judgments, Decrees or Sentences pronounced by the said Bishop of Quebec or his Successors, which we will shall not be made to the said Archbishop of Canterbury or to his Courts, but to Commissioners appointed by Us or our Successors in manner aforesaid.

And to the End that all the matters & things aforesaid may have their due Effect, We do hereby signify to the Most Reverend Father in Christ John Lord Archbishep of Canterbury, Primate of all England and Metropolitan, that we have erected and founded the aforesaid Episcopal See of Quebec and have named and preferred our beloved Jacob Mountain Doctor in Divinity to the said Bishoprick and have appointed him the Bishop and ordinary Pastor thereof, requiring and by the faith and love whereby he is bound unto us, commanding him to consecrate the aforesaid Jacob Mountain, Bishop of Quebec, in manner accustomed and diligently to do & perform all other things appertaining to his office in this behalf with effect, and further to the end that all the other things aforesaid may be firmly holden and done We will and grant to the aforesaid Jacob Mountain that he shall have our Letters Patent under Our Great Seal of Great Britain duly made and sealed.

In witness whereof We have caused these Our Letters to be made Patent.

Witness Ourself at Westminster the Twenty eighth day of June in the Thirty third year of our Reign.

By Writ of privy Seal

YORKE

Endorsed : Copy of Letters Patent L. 25 Henry 8. Chap. 21

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EXTRACTS FROM THE RULES AND REGULATIONS OF THE HOUSE OF ASSEMBLY, LOWER CANADA.1

QUORUM.

Resolved.

I. That the Quorum of this House do consist of thirty four Members, the Speaker included.2

II. That the Rule which establishes the Quorum of this House, be a standing Rule thereof.

BILLS.

Resolved.

I. THAT every public Bill shall be introduced by a motion for leave, specifying the title of the Bill, or by a motion to appoint a Committee to prepare and bring it in, or by an order of the House on the report of a Committee.

II. That Bills of a private nature shall be introduced by a petition to be presented by a member and seconded.

III. That Bills relative to the criminal laws of England in force in this province, and to the rights of the Protestant clergy, as specified in the act of the 31st year of his Majesty chap. 31,” shall be introducedi in the English language; and the Bills relative to the Laws, customs, usages and civil rights of this Province, shall be introduced in the French language, in order to preserve the unity of the texts.

IV. That such Bills as are presented shall be put into both languages, that those in English be put into French, and those presented in French be put into English by the clerk of the House or his Assistants, according to the directions they may receive, before they be read the first time—and when so put shall also be read each time in both languages—well understood that each Member has a right to bring in any Bill in his own language, but that after the same shall be translated, the text shall be considered to be that of the language of the law to which said BilLhath reference.

RULES RELATIVE TO THE INTRODUCTION OP PRIVATE BILLS, PASSED IN THE HOUSE THE 19TH APRIL 1793.

V. That this House will receive no Petition for any sum of money relating to public service, but what is recommended by His Majesty’s Governor, Lieutenant Governor or person administering the government at the time.

VI. That when any Bill shall be brought into the House for confirming letters patent, there be a true copy of such letters patent annexed to the Bill.

VII. That if any motion be made in the House for any public aid; subsidy, duty or charge upon the people, the consideration and debate thereof, shall not presently be entered upon, but adjourned till such further day as the House shall think fit to appoint; and then it shall be referred to the Committee of the whole house, and their opinions to be reported thereupon before any resolution or vote of the house do pass thereupon.

1. The following extracts are made from the Rules and Regulations of the House of Assembly, Lower-Canada, Quebec, Printed for John Neilson, MDCCXCIII. 2. The Committee appointed to draft the Rules of the Assembly had recommended that the quorum fixed at twenty-six, but the House favoured an amendment making the quorum thirty-four. Later in the first session, the number was reduced to twenty-six, and in the following session to eighteen. Subsequently, however, it was increased. 3. See Article XLII. of the Constitutional Act, Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 705

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VIII. That all aids and supplies granted to his Majesty by the Legislation of Lower Canada are the sole gift of the Assembly of this Province, “and all Bills for granting such aids and supplies, ought to begin with the Assembly, as it is the undoubted right of the Assembly to direct, limit, and appoint in all such Bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Legislative Council.

SUGGESTIONS REGARDING THE GOVERNMENT OF CANADA SUBMITTED BY LORD DORCHESTER TO Mr SECRETARY DUNDAS.1

1st The Establishment of a general Government for all the King’s Provinces in North America.

To consist of a Governor General a general Legislative Council, and a House of General Representatives to be chosen by the Assemblies of the different Provinces, with a General Executive Council, and such other Officers as the King may see fit.

The necessity of a General Government for the Colonies was urged from New York in 1783 and again in 1790 in the letter N° 15 to Lord Grenville of the 8th February from Quebec particularly the inclosures C and D.2

Without a measure of this kind, the general Interest of the Empire as well as the true Interest of the Colonies themselves will suffer and at a future day of their Prosperity, the Unity of the Empire will be Endangered.

With the introduction of a General Government the Colonies of Nova Scotia and New Brunswick should at the same time be put on a footing with the two ‘Ganadas by giving them Quadrenial Elections, Seats in the Legislative Councils for Life and their Lands free from Quit Rent.

2nd The Establishment of a free course of Justice throughout every part of His Majesty’s North American Dominions.

I n the present unsettled State of the Boundary between the Colonies and the United States, neither our Courts of Justice nor our Legislatures can operate coextensively with the Kings Dominions and Possessions.3

……………………………………………………………….

4th A more perfect organization of the Courts of Justice in Lower and Upper Canada. One supreme court of Common Pleas for each Province will give uniformity, energy and dispatch to the Administration of Justice. ………………………………………………………….. …………………………………………………………. …………………

15th An alteration of the new Canada Act, in respect to the disqualification of those Canadians, who, though absent at the Cession have been residents of the Province for more than seven Years.

1. Prom the contemporary copy in the Letter Book of the Governor-in-Chief, Canadian Archives, G. 539, page 12. This copy is undated though another copy in Q. 62, page 43, bears the date of February 19, 1793. Although Lord Dorchester had been absent from Quebec since August, 1791, he was, as Governor in Chief, actively promoting the interests of the Canadian provinces before the British Government. 2. Lord Dorchester refers to the recommendations of Chief Justice Smith, first presented when Mr. Smith was a member of the Executive Council of the Colony of New York. This scheme of federation was again advanced when the change in the government, of the Province of Quebec was being considered. The letter of Chief Justice Smith to Lord Dorchester and the Scheme for a General Government—enclosures C and D referred to—are to be found in Constitutional Documents, 1759-1791 Shortt and Doughty, pages 685-689. 3. See page 5, note 4.

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Several Members of the Upper and Lower House are supposed to be actually under this disqualification.1

DUNDAS TO DORCHESTER.2

Whitehall 17th July 1793.

From Mr Secretary Dundas My Lord

Having maturely considered the Suggestions submitted to me by your Lordship relative to His Majesty’s North American Governments, I take this opportunity pre-

1. The qualification for the franchise and for membership in the Assembly had been determined by Articles XX to XXIV. of the Constitutional Act. (See Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 699). Article XXII provided that no person should be capable of voting at an election for a member of the Assembly or of being elected to the Assembly who was not “a natural-born Subject of His Majesty, or a Subject of His Majesty naturalized by Act of the British Parliament, or a Subject of His Majesty, having become such by the Conquest and Cession of the Province of Canada.” The Act of the British Parliament 13 Geo. II , Cap. VII, An Act naturalizing foreigners in the British Colonies in America, provided ” That Foreigners who have resided or shall reside seven years or more in any of His Majesty’s Colonies in America., and shall not have been absent more than two months at any one time during the said seven years, and shall take and subscribe the Oaths, and make, repeat and subscribe the Declaration appointed iby 1st Geo. 1st Chap. 13th and make and subscribe the Profession of the Christian belief, appointed by 1st of William and Mary chap. 18a1 before a Judge of the Colony, and receive the Sacrament in some Protestant Congregation in Great Britain or some of the said Colonies in America, shall be deemed Tour Majesty’s Natural born Subjects to all intents.” Since 1763 there had been a considerable immigration to Quebec of Europeans born without the Dominions of Great Britain. People falling within this class had petitioned Lieutenant- Governor Clarke in March, 1792, asking that the doubts regarding their rights be removed. The question was referred to the British Law Officers and their opinion was that only those foreigners naturalized upon the terms of the Act quoted above or at the time of the Cession were capable of voting at the elections or of being elected members of the Assembly. (See Canadian Archives, Q 58-1, pages 231-239 and Q 61-2, page 383). Doubt still remained as to what class of persons had become British Subjects ” by the Conquest and Cession of the Province of Canada.” Lieutenant-Governor Clarke referred the question to the Provincial Attorney General, Mr. James Monk who gave it as his opinion that ” the persona described by the Capitulation at the Conquest (Septr., 1760) and by the Treaty of Peace at the Cession of Canada (Feby. 1763) as becoming Subjects of His Majesty are such Inhabitants, who had been ” the Subjects of the most Christian King in Canada.” He continued ” The Cases of the Canadian Gentlemen against whom objection may be raised as not qualified &ca within the Letter of the Act, are, so far as I can learn, persons who either retired from Canada with the French Army, or soon after the Conquest, or within the period stipulated by the Treaty; or persons who resided in France at the period of the Conquest and Cession of the Province of Canada.” Lieutenant-Governor Clarke referred the Persons and Effects. ” About the year 1766 many Natives of Canada, or of old France who at the Conquest were Officers in the French King’s Service, and had so continued to different periods, after the Conquest, and to the year 1766—And others, His Subjects who had quitted the Colony as above stated, or were in France at the period of the Conquest, came to Canada to reside and settle as Subjects of His Majesty. The Estates that some had held under the French King, they had not sold; others, were Heirs bo persons who had remained in Canada, and became Subjects conformable to the Treaty; others, purchased Estates after their return, nor do I find that any legal objection has been taken, to any person of the above description, possessing the Estates they hold under the French Government, nor to inherit, nor to take by purchase. And so far the reverse, to legal objection that many of them have been commissioned to Offices of Trust in His Majesty’s Government, of Majistracy, of the Militia, and of the Legislative Council, under the Quebec Act 14 Go. 3 Chap. 83. ” And some of those persons I understand have been appointed to the Legislative Council : and others, chosen to become Members of the House of Assembly. The terms of the Statute are clear, and I the rather believe, some of the cases upon which objections may be raised, will draw a legal conclusion against the Claimant Members for want of the qualifications required to hold a Seat in the Legislature under the Statute of 31 of His Majesty Chap 31.” {See the Canadian Archives, Q. 6Í. pt. 2, page 445). A list of the Members of the Council and Assembly* whose qualifications were in doubt is appended to this report. (See also Monk to Nepean, Nov. 9th, 1792, Canadian Archives, Q. 61 pt. 2, page 468). The question of naturalization and its relation to the right to vote and to be elected to the House of Assembly later arose in Upper Canada. For further documenta see page 108 et seq. 2. From the contemporary copy in the Letter Book of the Governor-in-Chief, Canadian Archives, G. 539, page 1. Other copies aie to be found in Q. 57, pt. 2, page 323, and Q. 62 page 207.

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vious to your Lordship’s departure for Quebec, of conveying to you, my sentimentsupon each of them seperately, and in the order in which they stand in a Copy of them hereto subjoined.

The first suggestion cannot be carried into execution without an Act of Parliament; but I have great doubts as to the measure itself, and it requires reasons moreforcible than any which have yet occurred to me, to convince me that such a confederacy amongst the distant* dependencies of the Empire, can either add to its own strength or the real happiness of the different Provinces.

With respect to Quit Rents in Nova Scotia and New Brunswick the, collection of them is for the present in effect suspended and the Colonial Quit Rents in general are now under consideration, with a view to a certain arrangement for their final determination.

The inconvenieneies stated in the second Suggestion, cannot I conceive be effectually remedied, untill a proper opportunity occurs for settling the Boundary between His Majesty’s Provinces, and the American States by Commissioners jointly appointed by both Powers.1 In the mean time it is certainly of consequence that Justice, conformable to the Laws of the Provinces, should be administered to those who are resident within the extent of the authority of the Crown tho’ not within the limits of the Provinces.

And their obedience is the more obligatory, as they in fact participate in thefree Government and in many instances exercise the franchises created by the late Canada Act, and with this view I highly approve of the Orders and directions which have from time to time been given to the Commanders of such Posts as are without the limits, as they tend in a great measure to lessen such inconvenieneies as arestated in the letters referred to by your Lordship; For at all events, the Authority of Government so long as the Posts are held by the Crown, must be coextensive with their limits.2

…………………………………………………………………………. ……………….

A plan for the purposes stated in the fourth Suggestion has already been transmitted to Lieut. Govr Clarke in my despatch to him of the 3d October 1792,3 which Plan if carried into eompleat execution in all its parts will I am persuaded, effect in Lower Canada everything required on this head. I have always conceived that it isintended to constitute the Supreme Court in Upper Canada upon the same principle.4

………………………………………………………………………….. ………………………………………………………………………….. …………………………

Should the difficulty stated in your Lordship’s dispatch, fifteenth Suggestion, ultimately be found to exist, it will then be a matter of consideration in what manner the same should be obviated. In the meantime however, it is clear that the right of the several persons to the seats to which they have been elected in the present Assembly, as well as the right of any of those who have been summoned to the Legislative Councils must be determined by the mode of proceeding prescribed by the late Canada Act, for trying the same; and therefore, it seems highly advisable to seefirst what such decisions may be, and upon what principles they are founded before

1. By the Jay-Grenville Treaty of 1794 the border posts were restored to the United States and provision was made for the appointment of Commissioners to determine the international boundary. 2. The text of the comments on Lord Dorchester’s second suggestion given in the draft of this despatch, (Q 57, pt. 2, page 324) is slightly different from that found here though the meaning is substantially the same. 3. See page 109. 4. See page 146.

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any further step is taken therein. Such decisions may be against the disqualification supposed to exist, and so far be declaratory of the Law in future, in which case no alteration I apprehend will be necessary.1

……………………………………….

I am, my Lord Your Lordship’s m.o.h.s.

Signed/ HENRY DUNDAS.

The Right Honble. Lord Dorchester K.B.

DUNDAS TO CLARKE.2

WHITEHALL 3d. Oct. 1792.

Lieut. Govr Clarke,

Sir,

The consequence of a due and uniform administration of Justice in the Provinces of America and the West Indian Colonies has of late directed my particular attention to that important object.2

Your letter to me (N° 25) of 28th April last4 from which may be inferred the number of causes which are brought before the Executive Council in the form of Appeals, led me to examine more particularly into what had already drawn my attention, namely the state of Judicial proceedings and the constitution of the Courts within your Province.

I have in consequence (after having communicated on the Subject, as well with Gentlemen of considerable legal knowledge, and who have had much professional practice in Canada, as with others,) formed a Plan for altering and amending the Judicature in Lower Canada herewith transmitted to you, which you will recommend to the Legislature of the Province for their consideration, and I trust adoption.5

As there will probably be a considerable space of time between your receiving it and the meeting of the Council and Assembly to proceed upon business, you will have an opportunity of giving it your best attention. Although I am convinced of the expediency and utility of the Plan as to all its essential Points, it may nevertheless be necessary for the Legislature in carrying the same into execution to make such alterations and additions as in its wisdom shall be thought meet, in order to adapt it to local circumstances and to practice, but I trust they will be such only as will in no wise affect the principle of the Plan.

1. Lieutenant-Governor Clarke in his despatch to Mr. Dundas No. 78 of July 3rd, 1793 reporting the transactions of the first Session of Parliament remarked, ” The question re^ lative to the capability, under the Act of Parliament, of Sundry Canadian Gentlemen to take their seats in the Legislative Council and House of Assembly was not agitated in either branch of the Legislature. Monsieur de la Valtrie one of the Members for the County of Warwick as mentioned in my letter (No. 65) of February 2nd was the only one objected to and the Petition against him, was suffered to pass unnoticed; and I do not think it probable that any further attempt will be made during the existence of the present Assembly to brin<* this Subject into discussion." (The Canadian Archives, Q 63, pt. 2, page 307). See also Monk to Nepean No. 5, Jan. 3*d, 1793, Canadian Archives, Q 66, page 266). The question was not again agitated and no further action was taken. 2. From the copy in the Canadian Archives, Q. 77 A, page 34. Another copy mav be found in Q 60, page 206. 3. The plans for the judicial establishments of the other North American Provinces and the West Indian Colonies are to be found in the Canadian Archives, Q 57, pt. 2, pages 351-356. 4. See page 62. 5. The substance of the despatch was communicated to the Legislative Council and Assembly by a Message from the Lieutenant-Governor, January 14th. 1793.

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The constituting of Forms1—The regulation of Process as far as it is requisite, or in short whatever is not to be established by the orders of the Courts themselves, will form a part of the Bill as being in fact appurtenant to the Plan itself.

You will however, in a Bill of such Importance at all Events—reserve the same when passed by the Council and Assembly, for His Majesty’s Pleasure thereon, and in the meantime, I hope, you will have an opportunity of acquainting me with such additions and alterations, if any, as you conceive are likely to be proposed on your recommendation of the measure.

In establishing offices to the respective Courts, in pursuance of the proposed Plan, you will be careful to continue under the appointment of His Majesty, such as have been usually under the same, and such as from the duties annexed to them are of a similar description.

I am &c

HENRY DUNDAS.

Enclosure.

LOWER CANADA.

Proposed Plan.

That there be two Courts of Original Jurisdiction within the Province; One for the District of Quebec, the other for the District of Montreal; to take cognizance of all Causes whatsoever within the Province, as well Civil as Criminal, & where the King is a party, those purely of Admiralty Jurisdiction, and such as are brought for sums under £20 (and for which Provision is hereinafter made) excepted. The first to consist of His Majesty’s Chief Justice for the Province of Lower Canada and two Puisne Justices with the followin Salaries Chief Justice £1,200 Puisne Justices Two, each £500. 1,000 £2,200

The other to consist of:— H.M. Ch. Justice of the Court of King’s Bench at Montreal with a Salary of £ 800 And two Puisne Justices each £500 1,000 £1,800

In Aid of these two Courts a Provincial Court to be established at Quebec, and another &z Montreal for those Districts respectively, with one Judge to each, to hold Pleas in Civil Svits where the Demand is not above £20 and from which there shall be no appeal.

The Judges of the Provincial Courts to have a Salary of each £200-£400.

N.B.—The Districts of Quebec and Montreal to include the whole Province.

If the Province particularly wish it, a similar Provincial Court to the two above mentioned may be constituted for what is now called the District of Gaspé, which (as it is at a considerable distance from Quebec) may create a necessity of extending the Jurisdiction of the Court there to all causes under £50 to avoid the delay of Justice.

Present Establishment.

Chief Justice—£1,200. Six Judges of Common Pleas each £500, paid by the Province. Attorney Genl. £300.

1. The copy in Q. 60 reads ” Terms ” which appears to be preferable.

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PLAN OF A BILL FOR ALTERING THE COURTS OF JUSTICE.1

AN ACT FOB THE BETTER DIVISION OF THE PROVINCE OF LOWER CANADA, FOR AMENDING THE JUDICATURE THEREOF AND FOR REPEALING CERTAIN LAWS HEREIN-MENTIONED.

Most Gracious Sovereign,

WE Your Majesty’s most dutiful and loyal subjects the Legislative Council and Representatives of your people of the province of Lower Canada, having taken intoour most serious consideration the message2 communicated to us by His Excellency the Lieutenant Governor Your Majesty’s Commander in Chief of this province, recommending a plan for altering and amending the judicature thereof, and establishing a due and uniform administration of justice therein, and having maturely deliberated upon the means recommended in the said message for securing to your people in thisprovince the important objects of your Majesty’s paternal care, we do with profoundgratitude for the same, most humbly beseech your Majesty that it may be enacted and be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the province of Lower Canada, constituted and assembled by virtue of and under the authority of an act of the Parliament of Great-Britain, passed in the thirty first year of His Majesty’s reign, entitled, ” An act to repeal certain parts of an act passed in the fourteenth year of “his Majesty’s reign, entitled 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,” that the said province of Lower Canada shall consist of two districts divided by the following lines, to wit, the eastern shore of the River St. Maurice to the Lake St. Thomas, and thence a north-west line as the magnetic needle points to the northern limits of the province, and running from the eastern shore of the St. Maurice at its discharge into the river St. Lawrence, across the same to the easterly side of the eastern mouth of the River Becancourt and up the said eastern side of the Becancourt twenty miles, and thence on a course south east to the southern limits of this Province, the easterly side of which partition, shall be called the district of Quebec and the western side the district of Montreal. And be it also enacted by the same authority, That there shall be erected, andthere are hereby erected two Courts of Original Jurisdiction within this province to be called the Courts of King’s bench one for the district of Quebec, to be held in the city of Quebec, and the other for the district of Montreal, to be held in the city of Montreal, to take cognizance of all causes, as well Civil as Criminal, and where the King is a party, except those purely of Admiralty Jurisdiction, and such as are brought for sums under twenty pounds sterling. The first to consist of his Majesty’s Chief Justice of the province of Lower Canada, and two Puisne Justices. The other to consist of his Majesty’s Chief Justice of the Court of King’s bench at Montreal, and two Puiané Justices, any two of whom, in their respective districts shall constitute a Court for vall judicial purposes whatsoever.

And for the more speedy administration of justice, be it further enacted by the same authority, That there shall be held within each of these two districts at the

1. From the copy of the Bill as printed for John Neilson, Quebec, MDCCXCIII. The plan for a judicial establishment proposed by Mr. Dundas was referred by Lieutenant-Governor Clarke to the Chief Justice Mr. Smith, and to the Attorney General, Mr. Monk, who separately prepared drafts of bills. A third bill was proposed by a committee of the Legislative Council. All three were then considered by the Council and formed the basis of the bill here given. This bill was sent to the Assembly on April 8th, 1793, and was ordered to be printed for public distribution, but owing to the lateness of the season its consideration was deferred until the following session. (For the various drafts of bills, see the enclosures in Clarke to Dundas, No. 79, July 3rd, 1793, the Canadian Archives, Q. 65, pages 1-130). A copy was transmitted to Mr. Dundas and his observations, as given in the notes which follow, are contained in his despatch to Lord Dorchester, No. 1 of Oct. 2nd 1793, (The Canadian Archives, Q 65, page 325). 2. See page 169, note 5.

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cities of Quebec and Montreal four Sessions of the said Court of King’s Bench in. every year, to be called Hillary, Easter, Trinity, and Michaelmas Terms; Hillary Term to commence on the first Monday, in the month of January; the Term of Easter to commence on the second Monday, of the month of March; Trinity Term to commence on the first Monday, in the month of July; and Michaelmas Term oa the second Monday, in the month of September yearly; that in case either of the above days appointed for the commencement of the said several terms, should happen to be a holy-day, then the term or terms shall commence on the day following, not being a holy-day, and the said terms shall severally continue for twelve days festivals and non-juridical days not included, and it is declared and enacted that the first, seventh and last juridical days in each term within each of the said district shall be the return days for all writs issuing from the said Courts of King’s Bench respectively.

Provided always and it is hereby enacted that nothing in this act contained shall extend or be construed to extend to prevent the Governor, Lieutenant Governor or person administring the government of this province, for the time being, from issuing at any time or times other than during the sittings of the said Terms commissions of Oyer and Terminer and General Goal Delivery for such district or county within this province as shall be deemed expedient and necessary.

Provided also, and it is hereby further enacted, That in every case where any commission of Oyer and Terminer and General Goal Delivery shall issue, wherein his Majesty’s Chief Justice of the province, or his Majesty’s Chief Justice of the Court of King’s Bench at Montreal, or wherein two of the puisne Justices of the said Court of King’s Bench are not included, and assisting at the Courts to be held under and by virtue of such commission, the execution of every sentence or judgment of such Court wherein it shall extend to life or limb, shall be suspended until the approbation of the Governor, Lieutenant Governor, or person administering the government of this province shall be signified thereon by warrant under his hand and seal at arms.

And to the end that the Government may have full information of the proceedings of such Courts of Oyer and Terminer and General Goal Delivery, as shall be held without the personal attendance either of the Chief Justice of the province, or of the Chief Justice of the King’s Bench at Montreal, or of two puisne Justices of the said Courts of King’s Bench. Be it also enacted by the same authority, That it shall be the duty of the said Courts, with all convenient speed, to transmit to the Governor or Lieutenant Governor, or persons administering the government of the province for the time being, all and every the proceedings that may be had before such Justices of Oyer and Terminer and General Goal delivery in the several cases above mentioned, in the manner directed and ordained in an aet of the Governor and late Legislative Council of the province of Quebec, passed in the twenty-ninth year of his Majesty’s reign, entitled, ” An Act to continue the Ordinance regulating the ” Practice of the Law, and’to provide more effectually for the dispensation of justice, ” and especially in the new districts.

And be it also enacted by the same authority, That the course of the proceedings in all civil causes to be instituted in the said Courts of King’s Bench, and until further provision by law may be made for the same, shall be the same as by law they are directed to be in the present Courts of Common Pleas in causes exceeding ten pounds sterling.

And be it further enacted by the same authority, That all powers and authority vested by any former law, in the present Court of Common Pleas, or in any or either of the Judges thereof shall be deemed and adjudged to be now vested in the said Courts of King’s Bench, and some or one of the Justices thereof within that district where the powers and authorities transferred are to be executed or have their operation. And the said Courts of King’s Bench as well in causes triable by Jury accord-

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ing to the course of the English Law, as in causes triable without a Jury according to the course of the French Law, shall have authority by discretionary rules to transact in the vacations all such business in the causes pending before the said Court as by the English Law may be performed out of term, and by the French Law is not necessary to be transacted à l’audience in open Court, anything in this act relating to the terms of the said Courts to the contrary notwithstanding.

And whereas doubts have arisen upon the extent of the jurisdiction of the Common Pleas to give- remedy in all cases committed under the French Government to the Courts of the Prévôté, justice Royal the Intendants and the Sovereign Council as courts of original jurisdiction touching Rights remedies and actions of a civil nature.1

Be it therefore enacted by the same authority that the Courts of King’s Bench hereby created shall be competent for affording such remedy as before the conquest was attainable in either or all of the Courts then established in causes merely of a Civil nature and cognisance until His Majesty His Heirs or Successors shall otherwise parcel out or distribute the powers and authorities requisite for the full and compleat dispensation of Justice in this Province in such way and manner as to the Royal wisdom may seem meet.

Be it also enacted by the same authority, That all the proceedings upon actions instituted and pending in any of the Courts of Common Pleas in this province, where the demand is above twenty-pounds sterling, shall forthwith be transmitted into the Court of King’s Bench of the district in which the defendant in such actions may have resided at the time of instituting the same, to be there proceeded upon, as if the same had been commenced therein. And that all proceedings upon actions instituted and pending, in any of the present Courts of Common Pleas, where the demand does not exceed the sum or value of twenty pounds sterling, shall forthwith be transmitted into the Provincial Court of that jurisdiction, wherein the defendant in the suit resided at the time of the institution thereof, to be proceeded upon to judgment and execution and all other purposes in each of the above mentioned cases which to Law and Justice may appertain.

And be it also enacted by the authority aforesaid, That the Governor or Lieutenant Governor or person administering the government or the Chief Justice of this province, together with any five or more members of the Executive Council of the province, [the Judges who shall have given the judgment appealed from excepted]] shall compose the Court of Appeals for hearing and determining all appeals as well from the present Court of Common Pleas and the Courts of King’s Bench, herein before erected, as from the Provincial Courts, herein after to be established, in all cases where appeals are by this act allowed, any law to the contrary notwithstanding. And be it also enacted by the same authority, That an appeal shall lie to the Court of the Governor and Executive Council, or Court of Appeals of this province from all judgments given in either of the said Courts of King’s Bench, in all cases where the matter in dispute shall exceed the sum of twenty pounds sterling, or shall relate to the taking or demanding any duty, rent, revenue, sum or sums of money

1. Regarding this clause Dundas observes ” it may be a doubt whether the clause— which speaks only of Remedies in Causes of a civil nature, is sufficiently extensive to include such Matters as are generally denominated, voluntary, as distinguished from those of a remedial Jurisdiction; such as for Instance, in this Country, the Appointment of Guardians, the Probate of Willa, the granting of Administration and the like, if it he distinctly meanc to give the Courts now to be established, all the Powers and Authorities vested in the iormer Courts of Canada, it might be stated, that the Courts now instituted shall possess the same Civil Jurisdiction, that all or any of the Courts heretofore established there enjoyed. At the feame time, if those Courts possessed Powers which are now obsolete, or not applicable to the present Courts of Judicature in the Province, they should be excepted, or the Powers which are now wanted to be exercised should be distinctly enumerated and not included under any general reference. This last method I conceive would be the most preferable.” (Canadian Archives, Q 65, page 825.)

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payable to his Majesty, or to any fee of office or annual rents,1 or other such like matter or thing where the rights in future may be bound, though the immediate sum or value appealed for be less than twenty pounds sterling, provided security be duly given by the appelant that he will effectually prosecute the same and answer the condemnation, and also pay such costs and damages as shall be awarded, in ease the judgment or sentence of the Court of King’s Bench shall be affirmed.

And be it further enacted by the authority aforesaid, That the judgment of the said Court of the Governor and Executive Council or Court of Appeals, shall be final in all cases where the matter in dispute shall not exceed the sum or value of five hundred pounds sterling; but in cases exceeding that sum or value as well as in all cases where the matter in question shall relate to taking or demanding, any duty, rent, revenue, sum or sums of money payable to his Majesty, or to any fee of office or annual rents, or other such like matter or thing where the rights in future may bebound, an appeal shall lie to his Majesty in his Privy Council, though the immediate sum or value appealed for be less than five hundred pounds sterling, provided security be first duly given by the appelant that he will effectually prosecute his appeal and answer the condemnation, and also pay such costs and damages as shall be awarded by his Majesty in his Privy Council, in case the judgment of the said Court of the Governor and Executive Council or Court of Appeals shall be affirmed.

And be it also enacted by the same authority, That in all cases where appeal shall be allowed to his Majesty in his Privy Council, execution shall be suspended until the final determination of such appeal, provided security be duly given as aforesaid.

Provided always and be it also enacted that wherever the judgement appealed from shall bé founded on the verdict of a jury no other appeal shall lay than an appeal in Error that the law only and not the fact may be elsewhere drawn into question and the proceedings on every such appeal in error be according to the course of the Laws of England in the like eases.” And that it shall not be necessary on any appeal

1. The manuscript copy transmitted by Clarke adds here “or where the title to Lands or Tenements is in question.” Dundas observed that throughout the bill, all cases where the Title to Lands or Tenements was in question should be excepted in express terms. 2. Referring to this clause Dundas says, ” I observe it is provided that the appeals in Error shall b© according to the Course of the Laws of England in the like cases; as this reference is general and goes the whole length of establishing all our Laws relative to this Point, it may be doubtful whether the Canadian Court of Appeals would not be bound by it, to support all the formal & technical objections that are allowed to prevail in this Country, many of which are grounded on Forms not retained from choice, but because they are now so interwoven with the substance of our Law as not easily to be altered, & the perfect knowledge of them which many of the Profession possess, renders their Existence not very inconvenient, but which would certainly prove both embarrassing to the Practisers, and unsatisfactory to the Suitors in Lower Canada. It would therefore, in my apprehension be better to introduce, by detailed enactment from the English Laws,, whatever the existing System was capable of receiving; as by tbie means both what is retained, and what is introduced is equally well known. The same Observation applies to thelast lines of this Clause which appear to me to be, at the same time, rather obscure in themode of expression, and to contain by general Reference more of the English Law, than can be necessary, for their purpose, or adapted to the present System. ” It would be easy I should think, and much safer to lay down a few leading Rules about the granting of New Trials, Arrests of Judgements, and Proceeding by Appeal on Matters of Law, by which a Form of proceeding sufficiently correct for the purposes of substantial Justice might be established. Supposing in such case much might be wanting & that many points would arise, for which no provision could be made; still an imperfect selection would be found much less inconvenient than an indiscriminate adoption of our Laws. The Defects of the one it is easy to supply,—The Embarrassments resulting from theother, it is very difficult to overcome. I am of opinion that if it were provided that the Provincial Courts should be held by any one of the Puisne Judges of the Courts of King|s Bench, it would be a great improvement upon the original Plan, it would lead to an Uniformity m the Principles of decision between the inferior & superior Courts & the dignified situation and character of the Judge would secure that respect & deference to his decisions, which is the more necessary as there is no appeal. In order to render this practicable, the most convenient periods may be fixed upon for holding these Courts suppose four Sessionsare established in each year for each of the Provincial Districts—I do not apprehend that and material Inconvenience will arise from their not being held so frequently as is provided for by the present Bill—As this will throw an additional labour on the Puisne Judges of the Courts of King’s Bench £100 per Annum may be added to their present Salarios on this Account.” (The Canadian Archives, Q 65, page 326.)

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to send up to the Court appealed to original papers filed in the lower tribunal, but copies thereof except in the instances where such originals may be required by the special writ or rule of the Court of Appeals for such purpose obtained and such trial by verdict shall be grantable in any mercantile cause tho’ the parties nor either of them be of the occupation of Merchants or Traders1 and in all other causes where both parties shall desire the same and every cause triable by verdict2 be Subject to Relief by the laws of England allowed for new trials arrest of Judgement and appeals in error in the manner aforementioned.

And in aid of the said Courts of King’s Bench, and for the convenience and ease of his Majesty’s subjects in this province, who may have suits to prosecute in matters not exceeding the sum or value of twenty pounds sterling, be it further enacted by the authority aforesaid, That there shall be constituted, and there are hereby constituted four Provincial Courts within the said province of Lower Canada, for the jurisdictions hereafter described and named, to be held by one Judge in each jurisdiction, who shall sit one day at least, and oftener, if need be, in every week throughout the whole year, excepting three weeks at seed time, four weeks at harvest time, two weeks at Easter, and two weeks at Christmas, and except, during such vacations as shall be appointed by the said Judges respectively for making Circuits twice in every year through their respective jurisdictions, with power to hear and determine all civil suits and actions brought before them, where the matter in dispute shall not exceed the sum or value of twenty pounds sterling, the judgments of which Provincial Courts to the extent of fifteen pounds sterling shall be final and conclusive, except in matters which may relate to the taking or demanding any duty, rent, revenue, sum or sums of money payable to his Majesty, or to any fee of office or annual rents, or other such like matter or thing, where the right in future may be bound ; but in all the said excepted eases, as well as in all cases where the judgment of either of the said Provincial Courts shall exceed the sum or value of fifteen pounds sterling, an appeal shall lie to the Court of King’s Bench of the district wherein the defendant in the original action shall be resident, provided security be duly given effectually to prosecute such appeal; to which Courts of King’s Bench power is hereby given to hear, try and determine such appeals, and to proceed to judgment and execution therein, as if the same had originated in such Courts of King’s Bench; the judgments there to be final and conclusive in all cases, except in matters which may relate to the taking and demanding any duty, rent; revenue, sum or sums of Money payable to His Majesty, or to any fee of office or annual rents, or other such like matter or thing where the righta in future may be bound. And in every circuit for the jurisdiction of Quebec Three Rivers and Montreal each county contained therein shall be visited by the Provincial Judge thereof at such times and places whereof the County shall have had notice by advertisements affixed to the Church doors of every Parish therein for four Sundays previous to the sitting of the circuit Court thereof.

And be it further enacted by the same authority that the Provincial Court of Gaspé shall be confined to the County of Gaspé and that the Provincial Court of Quebec shall extend over the City and County of Quebec and the Counties of Northumberland, Orleans, Hampshire, Cornwallis, Devon, Hertford, Dorchester and so much of Buckinghamshire and the River and Islands of the Saint Lawrence as are to the eastward of the line above mentioned for the Western district of Quebec and the Provincial Court of Montreal over the City and County of Montreal and the Counties of York, Effingham, Leinster, Warwick, Huntingdon, Kent, Surrey, Bedford and so much of the Counties of St. Maurice and Richelieu and the River and Islands of the St. Lawrence as are to the Westward of the western lines of the Seignories of Maskin-

1. Provision was made for trial by Jury m Mercantile causes by the Ordinance of 1785 See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 531. 2. The manuscript copy reads ” triable by Jury.”

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ongé and Yamaska and the Provincial Court of Three Rivers over all the Country and the Saint Lawrence laying between the said Provincial jurisdictions of Quebec and Montreal.

And be it also enacted by the same authority, That the sittings and course of proceedings in causes to be instituted in the said Provincial Courts before a single Judge, shall be the same as by law they are directed to be in the present Courts of Common Pleas in causes of or under ten pounds sterling, except in such cases wherein the Judgement given may be appealed from as herein before mentioned. Be it therefore likewise enacted that in all such cases and in issuing process and execution for sums exceeding fifteen pounds sterling the proceedings shall be in writing or in the same form as they are now in use in the Court of Common Pleas in causes exceeding ten pounds sterling.

And be it enacted by the same authority, That all powers and authorities vested by any former Law, in the Courts of Common Pleas, or in any or either of the Judges thereof, shall be deemed and adjudged to be now vested in each of the beforementioned Provincial Courts, and the Judges thereof respectively within their respective jurisdictions, as before described, to the extent of twenty pounds sterling.

And be it further enacted by the same authority, That as often as the jurisdiction of either of the said Provincial Courts shall be exceptionable on account of the interest of the Judge thereof, in the controversy, or of his affinity to either of the contending parties, the Court of King’s Bench of the district wherein the defendant resides, shall have the cognizance of the cause, though the matter in demand should be under the sum of twenty pounds sterling, any law to the contrary notwithstanding. And be it also further hereby enacted that the custody of all Records books registers minutes or papers in file of the Common Pleas Courts existing prior to this Act shall in future belong to the Courts of the new districts respectively comprehending the same those in causes of the value cognizable in the Provincial Court to the Clerk or Clerks thereof and those of the value cognizable in the Kings bench to the Clerk or Clerks thereof and that the refusal to deliver the same shall be deemed to be a contempt of the Kings Bench of the said districts respectively which courts shall have authority to compel from time to time such surrender of the said Records according to the injunctions of this act.

And be it further enacted by the authority aforesaid, That an Act or Ordinance made by the Governor and Legislative Council of the late province of Quebec, and passed on the twenty fifth day of February in the seventeenth year of his Majesty’s reign, entitled, ” An Ordinance for establishing Courts of Civil Judicature in the “Province of Quebec,”1 and every clause and article therein, be, and the same is hereby repealed.

And be it also enacted by the same authority, That the first article of the Ordinance made by the Governor and Legislative Council of the late province of Quebec, and passed in the fourth day of March in the same seventeenth year of his Majesty’s reign, entitled, “An Ordinance for establishing Courts of Criminal Jurisdiction in ” the Province of Quebec,”2 whereby a supreme Court of Criminal Jurisdiction for the Province at large was established, and the sessions “thereof ascertained, be, and the said first article of the said Ordinance is hereby repealed.

And be it also enacted by the authority aforesaid, That an Act made and passed by the Governor and Legislative Council of the late Province of Quebec, on the twelfth day of April in the thirtieth year of his Majesty’s reign, entitled, ” An Act ” or Ordinance to form a new District between the District of Quebec and Montreal, ” and for regulating the same District,”3 be, and the same and every part thereof is,

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 464. 2. Idem, page 471. 3. See the Canadian Archives, Proclamations. Lower-Canada, 1790.

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hereby repealed, except so much of the said Ordinance as gives authority for regulating the Police of the Town of Three Rivers.

And be it enacted by the same authority, That a certain Ordinance made and passed by his Excellency the Lieutenant Governor and the Executive Council of this Province on the twenty-fourth day of February, in the thirty-second year of his Majesty’s reign, entitled, ” An Ordinance relating to causes in appeal to the Court of the Governor and Executive Council.”1 be, and the same and every part thereof is hereby repealed.

And be it further enacted by the same authority, That a certain other Ordinance made and passed by the said Lieutenant Governor and Executive Council on the fifteenth day of August, in the said thirty-second year of his Majesty’s reign, entitled, ” An Ordinance for suspending the session of the Court of King’s Bench at Montreal, and to facilitate the proceedings in appeal causes,”2 be, and the same and every part thereof is hereby repealed.

And be it further enacted by the authority aforesaid, That all and singular the Laws of this Province, which before the passing of this Act were in force, to govern and direct the practice of the respective Courts of Civil and Criminal Jurisdiction, and that are not expressly repealed, altered or varied by this Act, shall remain and continue in force and be observed by all and singular the Courts hereby established, and by the Judges thereof; and if more particularly that the said Courts of King’s Bench, in their respective districts, in all causes of original jurisdiction to be instituted therein, shall be governed in its practice and course of proceedings by the Laws prescribing the modes of practice, in causes of a similar nature, for the Courts of Common Pleas, prior to the passing of this Act, and in all causes that may be brought up by appeal into either of the said Court of King’s Bench, the same Courts shall form rules for proceeding therein, as nearly as may be, to the Laws prescribing the rules of proceedings in causes brought before the Court of Appeals; and the Provincial Courts erected by this Act, shall be governed in their practice, and course, of proceedings in the same manner and in like cases as the Courts of Common Pleas for the districts of Quebec and Montreal were governed by the Laws of this Province, before the passing of this Act.

Provided always and it is declared and enacted, That nothing herein contained shall be construed in any manner to derogate from the rights of the Crown to erect, constitute and appoint Courts of Civil or Criminal Jurisdiction within this province, and of appointing from time to time the Judges and Officers thereof as His Majesty, His Heirs or Successors shall think necessary or proper for the Circumstances of this Province, or to derogate from any other Right or Prerogative of the Crown whatsoever.

And to the great end of establishing like Securities for the Subject in this Province, with those to which the Subject in England is entitled by the Great Charter and the Laws and Statutes of that Kingdom in the cases where the King is a Party;

Be it therefore further enacted and declared by the same authority, That in all process, causes, prosecutions and controversies in this Province of what nature soever on the part of the Crown, the subject here shall have the rights, benefits, privileges and securities enjoyed by the subject in like cases in the Realm of England, and the proceedings of the King’s Bench of this Province, conform to the course of proceedings in England in all the causes and controversies in which the King may be a party,

1. See page 68. 2. See the Minutes of the Executive Council, Lower-Canada, Aug. 15, 1792. State Book A, page 179.

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anything to the contrary in this or any other Act or Ordinance of this Province notwithstanding.1

Finis.

MONK TO DUNDAS.2

QUEBEC June 6th 1794.

SIR,

The Judicature Bill has passed both Houses of the Legislature, and the Governor has reserved it for His Majestys pleasure. I suppose, it will by this Conveyance, be transmitted to your Hands for that purpose. I take this occasion to present Sir, such observations as occur to me (worthy remark) to meet any wish you might have in that respect, on a measure of so great importance to His Majestys Government in this Province.

The original Plan2 by your Instructions to Lieut. Governor Clarke, with the subsequent one to Lord Dorchester Pr. the October Packet,4 have directed my endeavors that the Bill should come out of the Legislature, to meet as near as possible, the Intentions of Government.

Herewith I present a Copy of the abstract (or Heads of the act) which I delivered Lord Dorchester before the Bill came for his sanction. By that, you will perceive Sir, the leading points of your Instructions have been preserved. At the same time it will not escape your notice that, considerable additions have been made, Yet under that latitude which the Instructions permitted, and that I think the local circumstances

1. With reference to this clause Mr. Dundas remarks, ” The last Clause appears to me in some of the instances which it embraces unnecessary, and, at the same time, too vague & indiscriminate to act upon. With respect to Criminal Cases, this Provision is not wanted for the Law of England is already in force. In matters of Revenue or Customs it cannot operate, as they are, by British Statutes, made the subject of Admiralty Jurisdiction, where the Proceeding is not by Jury with respect to the casual & Territorial Revenue of the Crown, it is not by a general Reference to our Exchequer Proceedings, that those proceedings can be put in practice by the Courts of King’s Bench in lower Canada. ” An Exchequer with all its offices & forms must be erected in Canada, before a Crown debt can be accounted for, or recovered there precisely in the same manner as in England, and what parts of our Procedure come under the definition of a Right Benefit, Privilege or Security, might be matter of endless doubt and. debate. The Errors & defects therefore which may exist in the present mode of proceeding in the Revenue Cases last mentioned, should be remedied & supplied in the present Bill, by distinct & specified Provisions for that purpose, applicable as far as they go to the nature of the Court which is to take cognizance of them.” (The Canadian Archives, Q 65, page 328.) 2. From the copy in the Canadian Archives, Q 69, pt. 2, page 261. James Monk was born in Boston in 1745. At an early age he was admitted to the bar of Nova Scotia. In 1771 he entered as a student of the Middle Temple and three years later was appointed Solicitor General of Nova Scotia. In 1776 he was selected for the office of Attorney General of Quebec. While still acting as Attorney General in 1787, he presented the case of the Canadian Merchants in opposition to an Ordinance proposed in the Legislative Council for altering the Proceedings in the Courts1 of Justice. While his exposure of the incompetence and confusion which existed in the administration of Justice led to the appointment of an investigating Committee by Lord Dorchester, his conduct on this and other occasions, excited the displeasure of the Colonial authorities and he was suspended from office in April, 1789. Three yeare later, however, he was appointed Attorney General of the Province of Lower Canada, and took a prominent part in the constitution of the new judicial system. In August, 1794 he was appointed to both the Executive and Legislative Councils of the Province and on the creation of the new Court of King s Bench for the District of Montreal became its first Chief Justice. On several occasions he acted as President of the Legislative Council. In 1812 he was associated with Chief Justice Sewell in an impeachment by the Legislative Assembly but the charges of the Assembly were not sustained. On the death of the Duke of Richmond in August 1819, he became the Administrator of the Province and acted in that capacity, excepting during the brief period of Sir P. Maitland’s administration, until the arrival of Lord Dalhousie in June, 1820. He returned to England in 1824 and received a Knighthood in the following year. He died at Cheltenham, November 18, 1826. 3. See page 110. 4 See page 111, note 1.

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of Suitors and the country, necessarily required. The defects of the Bill which came last year from the Legislative Council1 have been avoided, and the two Houses, this Session, have taken such steps, to attain proper rules of practice,2 as I trust will effect the intentions of His Majesty’s Ministers, and produce a permanent and satisfactory. System for Governing the proceedings in His Majestys Courts, in this Colony.

Such Judicial Powers are granted by the Bill as will afford an effectual remedy to suits of every nature—and supply the necessity of a Court of Chancery, or Exchequer, by a Jurisdiction suitable to the Laws, and less burthen-some to the Subject, than the establishment of such Courts in this Country.

The inclosure N° 2.a contains particular remarks on the parts of the Bill, and has a reference to the several sections of it, as abstracted N° 1. And N° 3 point to the parts omitted of the former, and those added in the present Bill. Under every view which the Bill stands, I consider it as a very great improvement in the Judicial powers of this Colony. And altho’ there are parts which may require amendment, and some change Yet I do not perceive any that are of a nature, not to hope His Majesty’s pleasure may sanction it, to become a Law.

I think I may venture to predict, that the Courts to be established under this Bill, will prove a great medium to secure the Interests of His Majestys Subjects, British, and Canadian, and to raise and support that Loyalty which is ever thç consequence of good Laws, well executed.

Lest Sir you should be so wholly occupied as to prevent a particular attention to the parts of this Bill, I beg leave to state a Circumstance that has long claimed the most serious attention of Government, And now is seized upon by its enemies to favor the motives of rebellion.

The original grants of Land in this Country, were made by the Kings of France upon Féodal principles. The Seignior or Lord held his Fief for the express purpose of subdividing, and granting over the Fief estate, by a mean tenure to his vassals, in small portions, and upon small rents, under the general Laws of Fief, and roture tenure, as settled in the vicounty of Paris. At the first settlement of the Country and down to the year 1700, the Seigniors granted the Lands at moderate rents and services, and the Kings intentions were fulfilled. But about that period, it would seem, that Interest urged the Seigniors to a different conduct. And they exacted money for some grants, as upon a Sale of the Lands conceded, and which often remained uncultivated. And upon other grants, they imposed higher Rents and Services than “was customary, and contrary to the Intentions of the Seignior Dominant, the Grantor. By which the Fief-Lord, or Servant of the King, in great degree defeated the policy of the Government in making such Grants. And on the other hand, it often happened that the Censitaire, or roture vassal of the Lord, did not settle Lands within the period necessarily limited in the grant, and which occasioned two Edics of the French King in July 1711.4 Under these laws the seigniors were bound to concede, and grant in limited portions of Land en roture to the King’s Subjects, at such reserved Rents and Services as has been Customary, before the year 1711. And by the other Edict, the Tenants were obliged to settle the Lands granted, ” Tenir feu et lieu,” within twelve months or they became forfeited, and might be Escheated to the Seignor. By one of those

1. See page 111. 2. A joint address of both Houses was presented to the Governor requesting him to require the Judges and Law Officers of the Crown to report their opinions respecting the forms of proceeding which ought to be followed in the Courts of the Province. 3. The substance of the remarks in this enclosure is given in the notes to the various clauses of the act, page 125, et seq. 4. The Arrêts of Marly, of the 6th of July, 1711. The first is entitled ” Arrêt du Roi qui ordonne que les terres dont les concessions ont été faites, soient mises en culture et occupées par des habitans,” and the second, “Arrêt du Roi qui déchait les habitants de la propriété des terres qui leur auront été concédées s’ils ne les mettent en valeur, en y tenant feu et lieu, dans un an et jour de la publication du die arrêt.” Edits, Ordonnances Royaux, Déclarations et Arrêts du Conseil d’Etat du Roi Edition of 1854, Vol I, pagea 324 and 326.

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Edicts, when the Seignior refused to make such a grant, to any subject applying, the same was grantable by the Intendant and Governor (as if never granted in Fief but remaining in the King) and the growing Rents of such concession, went into the Royal Treasury as part of the Domain revenue.

The Intendant and Sovereign Council, as a Court of Justice compelled an Obedience by the Seigniors, to these Laws; and equal relief was afforded to the Vassal subject, and to the Seignior, and the Policy and intentions of the King were fulfilled.

The Advocate General was the supporter of all complaints, by the Vassal, against the Lord, for disobedience of those Laws, and that, as a duty of office, enjoined by the King, who as the protector, became ” the Father of his Subjects.”

After the Conquest by His Majesty’s arms in 17S9, and the Peace in 1763, His Majesty’s old Subjects bought many of those Fief Estates, and down to the present day, have been acquiring and now hold Lands, to a very considerable extent. After the Proclamation of 7. October 1763, and towards the year 1768, those Fief Landholders contended, “that they held their Estates Free from any such Edict Commands, and that they had a legal right to concede how and at what Terms they thought proper “—And they have continued so to do—As the Country has populated, and the Lands risen in Value so have the Seigniors English and Canadians, pretty generally, augmented their Rents and Services, without regard to the Edict above stated, and which the French King had made to repress a rapacious, or a needy Lord. The Peasants have complained. They were told “the Courts were open, Justice was Free.” But the French Kings protection was ‘ not continued. The powers of the French Government were either not revived, or could not be brought into action. The Roturier found a contest with His Seigneur, an enterprize of Ruin, and submitted to the hand of Power. The Lands were taken upon the Seigniors Terms, and thus has the Regranting gone on, since the conquest. The Censitaires hold Lands, in many parts of the Province, at rents and services, exorbitant, in comparison to what they were granted at in 1711. Many, and very considerable, at double and treble the Rents the (French King) Fief Grantor intended to confine the Seignior to, by the Edict of 1711.—The Peasant, Roturier, “has felt the more, when he has in any instance found that the Censitaires Lands have been reunited to the Seigniors Fief, under the Edict of 1711, for want of Culture. And this feeling, has not been moderated, when any vassal who wished to hazard a Trial has found, that the courts have doubted their possessing the Intendants Power, to compel the Seignior to concede Lands to the Peasant, under the Edict of 1711. The Eighth clause of this Bill,1 is intended to remove that doubt, and serve, not only as one step towards forming a Judicial Medium of relief, to Censitaires or Peasants of the Colony (who have so loudly, and often, I think with reason complained) but to establish a Judicature that may grant every relief which the ancient Laws afforded.

This now becomes a part of the Bill that, in my opinion, is of great moment, and the subject becomes deserving the Attention of Government. The Rents and Services Exacted by the Seigniors, forms that ground of complaint by the Peasants, which the Enemies ‘of His Majestys Government, do not fail to assimilate, to the Kingly Government of France, and foment to the utmost, as the best means of detaching His Majestys Subjects from their Loyalty, to acquiesce in, or wish, or aid a Revolution !

If the policy and powers of the French Government were in this instance revived, and the Attorney General directed to the same duties in His Majesty’s Courts, which the Advocate General performed heretofore. The Peasants finding the King their immediate Support against the illegal claims of the Seigniors, I do believe it would

1. See page 128.

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prove no small means to overcome, the Arts, of Seditious and Traitorous Subjects; and defeat, the too successful efforts of subtle enemies. His Majesty would gain great affection from those Subjects who tho’ living under mild and good Laws, are unable to profit by them, whilst through the arts, or the open defiance of the wealthy they became injured, and easily conceive themselves to be greatly oppressed. And thus are they, in some degree prepared, to the disposition now so generally Evinced.1 I shall soon have occasion to make an official report to the Governor on this Case, that may more fully draw the Subject into view, and Consideration. The present observations became necessary upon a part of this Bill that I consider to be of great moment, Early to establish.

And with great respect have the Honor to be Sir Your very faithfully devoted and Obedient Humble Servant J MONK

The Right Honorable HENRY DUNDAS &C &c &c

End:—Quebec June 6th 1794 James Monk, At on the Judicature Bill Private

DISSENT OF M. DE LANAUDIERE.2

JOURNALS OF THE LEGISLATIVE COUNCIL. 34 GEOKGE III., 1794

THURSDAY, 1st May.

The Honble Mr. DeLanaudiere made his protest, and Entered his dissent against the vote of this House, on the 28th of April last,8 Dy which it was resolved, that the Bill Intituled ” An Act for the division of the province of Lower Canada, for amending the Judicature thereof, and for repealing certain Laws therein mentioned,” with the amendments thereunto made by this House, should pass, which protest and dissent was read and in the words following : To witt.

1. In the latter part of this letter Monk has in mind the attempts of Genet, the agent of the French Republic in the United States to foment disloyalty among the French Canadians. The situation was regarded by Monk as very serious and was described at great length in several reports to.Lord Dorchester and to the Colonial Office. Subsequent events, however, did not justify the anxiety manifested by Mr. Monk. 2. Prom the copy of the Journals of the Legislative Council in the Canadian Archives. Q 68, page 61. Charles Tarieu de Lanaudiere, only son of Charles Francis de Lanaudiere, member of the Legislative Council of Quebec, was born in 1744. He served at the Battle of Ste. Foye in 1760, and at the close of the war he retired to France but returned to Canada in time to take part in resisting the American Invasion. He had command of the Company which escorted Carleton from Montreal to Quebec to meet the forces of Arnold. He was appointed A.D.C. to Carleton and accompanied him to England in 1778. On his return to Canada in 1787 he was appointed to the Legislative Council and was reappointed on the formation of the new province. 3. Early in its second session the Legislative Assembly appointed a special Committee to consider the Constitution of the Courts of Justice. On the basis of the Legislative Councils ” Plan ” of the previous Session the committee prepared a new bill much more extensive in its application. This bill was introduced in the Assembly on the 19th of February, 1794, and was referred to the Legislative Council on the 4th of April. In the Council several amendments were made, none affecting the principle of the bill, and on the 28th of April it was passed in its amended form.

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Je proteste,

1ment. Parceque je ne vois rien devant cette Maison, qui puisse l’avoir déterminé à donner sa Sanction à ce Bill, envoyé de la Chambre d’Assemblée qui a dans plus d’une Instance pensé le rejetter, et qui ne l’a passé, que par une foible majorité de cinq voix, dans laquelle se trouvoit un seul homme de Loi et dans la Minorité il en étoit un nombre contre1 Ce qui me confirme davantage dans mon Opinion que ce Bill est évidemment ineonstitutionelle et ne peut apporter le bien qui en est attendu.

2ment. Parce que cette Maison doit faire attention qu’elle est composée de Membres tde l’ancien Conseil et qu’ils doivent se ressouvenir qu’ils furent indefatigables à promouvoir le bien de cette Province et qu’ils avoient porté partout les Remedes nécessaires pour la meilleure Administration de la Justice et qu’ils ne le firent que sur des Representations et Recherches et Rapports des Citoyens éclairés; que leurs travaux furent couronés de Succès et que depuis un nombre d’années bien loin d’avoir entendu aucune plainte, au contraire elles ont cessé de tout part, preuve evidente qu’il n’en existe plus.

3ment. Pareeque le Changement total de l’Administration de la Justice, ne pourra que repandre une defiance genérale parmi le peuple, en voyant que ee Bill fait revivre dans plusieurs de ses Clauses, et particulièrement dans la huitième,2 des Jurisdictions que le temps avoit fait oublier, et inconnus depuis la Conquête; et dont les Noms ns devroient jamais être rappelles ni proférés dans aucun Acte sous aucun Gouvernement Anglois, comme celle d’Intendant qui a fait tant de mal dans ce pays; Jurisdiction qui va donner aux Cours et aux Juges des Pouvoirs indéfinissables, et que probablement ces mêmes Juges non versés dans certaines Parties de cette Jurisprudence Françoise les embarrassera beaucoup—comme le fÎBo—qui apporte toutes les formes de la Chambre des Comptes de France, les autres Justices Royales prévautés, Conseils Supérieurs. Il est annexé aussi aux Juges, les pouvoirs d’élections de Tutelle,” Curatelle, Lettres de Recision, ce qui ne devroit proprement appartenir qu’à une Cour de Chancellerie. Et il est à remarquer, que tous ces Etablissements la plu-part étoient séparés et exercés par différents Juges avant la Conquête. Mais ici elles sont réunies dans une seule Cour.

4ment. Parceque ce Nombre de pouvoirs donnés aux Cours et aux Juges ne pourra être qu’un Cahos de Confusion qui confondra les Intérêts de la Couronne, ceux des Sujets du Roy, et les entraînera dans un Labyrinthe dont ils ne pourront sortir que três difficilement et qu’avec des frais ruineux.

5ment. Parcequ’il est reconnu et démontré par tous les auteurs, qui ont écrit avec prudence sur l’Association des Corps politiques, que nul changement ne doit s’effectuer ¿ans aucune Branche d’un Gouvernement, qu’après que le Législateur est bien sur que celui qu’il veut y apporter plaira et fera le bien. L’Expérience nous fait voir la solidité de pareils arguments. Mais ici sans plainte de la Part du Peuple, sans même d’aucune Classe de Citoyens, sans rien devant ni l’une ni l’autre Maison, un Bill est apporté, passé, et renverse tout le Sisteme Juridique, établi depuis un nombre d’années ; pourquoi ce changement dans un tems nébuleux, ayant des Objets plus pressants sur lesquels nous aurions du donner toute notre attention, quand sur tout le laboureur et toutes les Classes des Citoyens sont tranquilles et dorment avec confiance sous la protection de la Loi, qui a assuré depuis si longtems leur vie et leur Propriété.

6ment. Parceque le peuple voyant l’instabilité de notre conduite, et que nous détruirons dans un Jour, ce qui nous avoit coûté des années de Recherches et de Reflexions; ne pourra qu’avoir une bien défavorable idée de nos deliberations; et nous lui ferons

1. The vote on the third reading of the bill had been— Yeas.—Messieurs Dambourges, DeBonne, Mathiot, St. George Dupré, O’Hara, Coffin, Richardson, Duchesnay, Tashereau, Lester, Barnes, McGill, Lees, McBeath and Lynd,—15. Nays.—Berthelot, Duniere, Boudreau, Chevrier, Papmeau, Bédard, Marcoux, Grant and J. A. Panet,—9. 2. See page 128. Compare with the opinion of Monk, page 119.

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prendre une aversion pour la Constitution, qu’il devroit chérir. Ayons toujours present qu’elle est dans son Enfance et qu’elle demande de grands Menagemens.

7ment. Parceque cette Maison auroit du suivre ee qui avoit été si sagement adopté par l’ancienne Legislature; faire imprimer ce Bill auparavant de l’avoir passé, et l’avoir fait répandre dans le public.1 Alors il auroit vu ce qui etoit proposé pour son. bein-être et auroit eu le tems d’apporter ses Remarques s’il en eut eu à faire. Non il faut que ce Bill soit passé dans cette Seance: comme s’il alloit faire revivre le Siècle d’or, et que le Public n’aura plus qu’a tendre les Mains, pour recevoir les Richesses que la Corne d’abondance va répandre par son efficacité.

8ment. Est ce que pareequ’on allegue le Message de Son Excellence le Lieutenant Gouverneur, qui recommande le Plan des ministres2 Qui est celui qui peut douter des Sentiments paternels du meilleur des Rois envers ses Sujets! Qui est celui qui ignore la sage Administration de ses Serviteurs d’apresent, qui ont amené notre Mere Patrie la Grande Bretagne au plus haut degré de Splendeur? doit on inférer de ee que les Ministres de sa Majesté proposent un plan que nous devons l’adopter implicitement? Si j’entends bien leur Recommendation, ce n’est qu’autant qu’il peut opérer un Bien évident. Et assurément on ne peut s’imaginer, qu’ils ayent d’autres vues, et voulussent que nous adoptassions un Changement, qui est de nul avantage; et que le peuple ne demandent pas. Ce Bill même est entièrement contraire à ce qui est recommandé dans le Message. Tout y est mutilé et en Opposition à l’objet proposé par eux.

9ment. Parceque l’Introduction d’un autre Juge en Chef, pour le district de Montreal, n’apportera que des Depenses considerables, et que rien n’est apparent du bien, qui peut résulter de cette innovation; et qui on doit remarquer que dans l’un et l’autre cas, les frais tomberont sur cette Province ou sur la Mère Patrie. Est-ce le tems des les augmenter?

10ment. Parcque l’Administration de la Justice Criminelle depuis trente ans, fut exercé par un seul Juge, en Chef, et qu’on a jamais oui parler d’une seule plainte. A present il en faut deux, et cependant la Province est la Moitié moins grande, qu’elle n’etoit auparavant; par le partage qui en a été fait, par l’act du 31me de sa Majesté qui nous donne cette généreuse Constitution. Ce qui etoit administré par un seul Juge en Chef, le sera à present par trois.

11ment. Parceque ce Bill refuse aux Sujets d’ici, le droit indéniable qu’il a d’avoir des Jurés dans ses affaires de Conteste et de controverse de partie à partie; Il ne le lui accorde pas même dans les Causes où le Roi est prosecuteur. Le Choix ne lui en est pas laissé. Cela seul est capable de lui faire regarder les Coure de Justice, plutôt comme des Institutions despotiques, que comme des Etablissements pour la Protection et Sûreté de sa Propriété; Surtout étant imbu que les Juges qui president dans ces Cours, ne tiennent leurs places que sous le bon plaisir du Gouvernement.

12ment. Parceque l’on ne peut douter, que notre Mere Patrie nous ayant donné la présente Constitution, ses Vues étoient et sont encore, d’amener autant que possible l’Introduction de ses Lois et forme d’Administration; afin d’assimiler cette Province aux Usages, Coutumes de la Grande Bretagne; et faire connoitre aux nouveaux Sujets du Roi, ici qu’il n’y en a pas de meilleurs dans le Monde. Cependant cela n’a pas été pris en Contemplation par ce Bill.

13ment. Parceque selon moi il est probable, que quelques Personnes se sont approchés des Ministres et ont profité de l’occasion pour renouveller des Plaintes qui furent faîtes, il y a quelques années, et que tout homme délicat n’y sauroit pensé qu’avec peine; et J e ne fais aucun doute que sons ce spécieux pretexte, ils ont surpris leurs oreilles, et profitant de ce Moment ont peint la Province sous des Couleurs fausses et désavantageuses. Je ne hésite pas de le dire, que cette Personne a plutôt agi pour des Intérêts propres que pour le Bien de la Patrie.

1. See page 111. Note 1. 2. See page 111.

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14ment Je finis pareeque je vois avec Peine, que ce Bill a plutôt passé par une Division que par des débats, par nombre que par Argument. Mais malgré le peu de Succès des mes efforts, pour arrêter qu’il ne prit place dans cette Séance; à fin de donner occasion au publie de le connoitre avant qu’il fit Loi; Je jouirai au moins du Plaisir, que l’on trouvera et lira dans ee Registre, que je m’etois opposé à sa passation; prédisant de plus qu’il sera la Ruine d’un Nombre de Sujets de sa Majesté. Cette Maison a le pouvoir mais J e doute du Savoir pour une Loi, qui embrasse tant d’Objets ; surtout n’ayant plus dans ce Conseil l’assistance de cet homme, qui remplissoit ce fauteuil avec tant d’éclat ; et qui étoit reconnu pour le plus grand Jurisconsulte de l’Amérique Septentrionale.1 Il n’est pas à douter qu’à ce Moment sa place est remplie; que la Personne sur qui le Choix est tombé, est digne de l’occuper et que nous devons espérer de l’avoir sous peu dans cette Maison. Pourquoi donc par notre Piecipation, nous sommes nous frustrés des Connoissances legales qu’il auroit pu donner sur un objet oïl particulièrement il doit jouer le premier Rôle? Je-le Répète, le Peuple au lieu d’avoir une favorable Impression de no3 demarches en entretiendra un Sentiment bien different et loin de désirer de revoir cette Legislature se rassembler une autre année, il craindra sa Réunion.

(Signé) DELANAUDIERE.

1. Chief Justice William Smith died at Québec, Dec. 6th, 1793. 2. Mr. Osgoode, the Chief Justice of Upper. Canada, was appointed to succeed Chief Justice Smith. Notification of his selection had been sent to Lord Dorchester, March 22nd, 1794. (Canadian Archives, Q 77A, page 117.) He arrived in Quebec in July and was admitted to the Executive Council on Sept. 19th, 1794.

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THE JUDICATURE ACT, LOWER CANADA.

ANNO TRICÉSIMO QUARTO GEORGE III. CAP. VI.1

An ACT for the division of the Province of Lower-Canada, for amending the Judicature thereof, and for repealing certain Laws therein mentioned.

MOST GRACIOUS SOVEREIGN,

WE, your Majesty’s most dutiful and loyal subjects, the Legislative Council and Representatives of your People of the Province of Lower Canada, having taken into our most serious consideration the message communicated to us last Session by his Excellency the Lieutenant Governor, then your Majesty’s Commander in Chief of this Province, recommending a plan, for altering and amending the Judicature thereof, and for establishing a due and uniform administration of justice therein, and having maturely deliberated upon the means, recommended in the said message, for securing to your People in this Province the important objects of your Majesty’s paternal care, we do with profound gratitude for the same, most humbly beseech your Majesty, that it may be enacted: and be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Lower-Canada, constituted and assembled by virtue of and under the authority of an Act of the Parliament of Great Britain, passed in the thirty-first year of his Majesty’s reign, intituled “An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty’s reign,” intituled “An Act for malting 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:” that the said Province of Lower-Canada shall consist of three districts, to be called, the district of Quebec, the district of Montreal and the district of Three-Rivers, which shall be divided by the following lines to wit, the district of Quebec shall be bound-

1. The Judicature Bill on passing the Provincial Legislature was reserved for His Majesty’s assent. The Duke of Portland, who had succeeded Mr. Dundas in the Colonial Office, writing to Lord Dorchester on August 13th, said in referring to the Bill, ” I therefore enclose your Lordship the Consent of the King in Council for passing the said Bill into a Law.” (Canadian Archives, Q 77A, page 150.) The August packet, bearing the original despatch with the Order in Council was captured and the mail lost. Doubt arose in the mind of Lord Dorchester as to the validity of the notification of the Boyal assent to the bill and the question was referred to the Executive Council. On the 21st Nov., the Council reported that they “having duly considered the 32nd Section of the Act of the 31st of His Majesty, eh. 31, are of opinion that the signification expressed in the Duplicate, of His Grace the Duke of Portland’s letter to His Lordship is amply sufficient to authorize His Excellency to issue a Proclamation declaring His Majesty’s consent to the passing of the said Bill into a Law.” (Canadian Archives, State Book A. Lower Canada, page 68.) Accordingly a freclamation was issued on December Uth declaring the bill to have ecome law and to be effective from the date of the Proclamation. The text of the act is that given in The Provincial Statutes of Lower Canada, Volume the first, printed by command of His Excellency the Governor by William Vondenvelden, Quebec, 1793.

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ed to the Westward by the Eastern line of the seignory of Dorvilliers, as far as it extends, and thence by a due North-West line to the Northern boundary of this Province, on the North-side of the river Saint Lawrence, and by the Eastern line of the seignory of Saint Pierre les Beequets as far as it extends, and thence by a due South-East line, to the Southern boundary of this Province, on the Southside of the river Saint Lawrence, and the said district of Quebec shall comprehend all that part of this Province, which lies to the Eastward of the before mentioned western boundary lines, of said district. The district of Montreal shall be bounded to the Eastward by the Western line of the seignory of Masquinongé as far as it extends, and thence by a due North-West line to the Northern boundary of this Province, on the North-side of the river Saint Lawrence, and by the Western line of the seignory of Yamaska as far as it extends, and thence by a due South-East line to the Southern boundary of this Province, on the South-side of theriver Saint Lawrence, and the said district of Montreal shall comprehend all that part of this Province which lies to the Westward of the before mentioned Eastern boundary lines of said district; and the district of Three-Rivers shall be bounded to the Eastward by the before mentioned Western boundary lines of the district of Quebec, and to the Westward by the before mentioned Eastern boundary lines of the district of Montreal; and shall comprehend all that part of this Province, which lies between the said boundaries; and the said districts shall also respectively comprehend all the islands in the river Saint Lawrence, opposite to the shores thereof, which are included within the respective limits aforesaid.1

II. And be it further enacted by the authority aforesaid, that there shall be constituted and erected in each of the said districtsof Quebec and Montreal respectively, a court to be called the Court of King’s Bench; that the court of King’s Bench for the district of Quebec shall consist of his Majesty’s Chief Justice for the said Province and the three Puisne Justices; and the court of King’s Bench for the district of Montreal shall consist of his Majesty’s Chief Justice of the said court and three Puisne Justices; and that the said courts, in the respective districts aforesaid shall have original jurisdiction, to take cognizance of, hear, try and determine in the manner herein after enacted, all causes as well civil as criminal, and where the King is a party, except those purely of Admiralty jurisdiction, and such as are herein after excepted and provided for the inferior district of Gaspé, as part of the said district of Quebec.

III. And for the administration of Justice, in criminal cases, it is further enacted, by the autherity aforesaid, that there shall be held by two or more justices of the said court of King’s Bench, one of whom shall always be his Majesty’s Chief Justice of the Province,

1. Commenting on this section, Mr. Monk, the Attorney General, says, ” It would seem by this and a future Section of the Bill that the Province is divided into four Districts in place of two pointed out by the Plan. But in reality the District of Three Hivers and Gaspá are merely Circuits for the Jurisdiction of Provincial Courts. The former to take cognizance of Causes arising within a certain extent from the Town of Three Eivers, and a Circuit and assize of the Court of King’s Bench to be held at the Town of Three Rivers for Trial of Causes arising within that District. And the latter, the Jurisdiction of a Provincial Court for the Trial of small Causes.” (Canadian Archives, Q 69, pt. 2, page 282.)

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or the Chief Justice of the Court of King’s Bench at Montreal, Sessions of the said court of King’s Bench, in every year, for the within each of the aforesaid districts of Quebec and Montreal, two cognizance of all crimes and criminal offences, at the times and places hereafter mentioned, to wit, at the city of Quebec the last ten days in the months of March and September, and at the city of Montreal the first ten days in the said months of March and September, and that every jurisdical day during the said Sessions shall be a return day.

IV. Provided always, and it is hereby enacted, that nothing in Act contained shall extend or be construed to extend, to prevent the Governor, Lieutenant-Governor or Person administering the Government of this Province, for the time being, from issuing at any time or times, other than during the sittings of the said Terms, Commissions of Oyer and Terminer and General Gaol Delivery, for such district and County within this Province, as shall be deemed expedient and necessary.

V. Provided also, and it is further enacted by the authority aforesaid, that in every case where any commission of Oyer and Terminer and General Gaol Delivery shall issue, the execution of every sentence or judgment of such court, which shall extend to life or limb or to any penalty, fine or forfeiture, exceeding the sum of twenty-five pounds sterling money of Great Britain, shall be suspended until the approbation of the Governor, Lieutenant-Governor or Person administering the Government of this Province shall be signified thereon, by warrant under his hand and seal at Arms.

VI. And to the end that the Government may have full information of the proceedings of such courts of Oyer and Terminer and General Gaol Delivery, be it also enacted by the same authority, that it shall be the duty of the said courts, with all convenient speed, to transmit to the Governor, Lieutenant Governor or Person administering the Government of the Province for the time being, not only copies of the indictment, information or charge and of the plea and other proceedings in every such cause before them had, but the scope and substance of the points ruled in evidence, and of their charge to the jury and copy of the verdict and of every material transaction in the cause, together with such observations as they may think proper to make on every such cause and trial, and the whole under the signatures of the majority of the Judges, before whom every such trial was had; provided always and be it nevertheless enacted by the same authority, that it shall not be necessary to make such report of the proceedings in any case where it shall not extend to life or limb or transportation, nor to any greater fine, penalty or forfeiture than the sum of twenty-five pounds sterling money of Great Britain.1

1. ” The powers reserved and limited by these clauses may appear to be somewhat inconsistent with the 43. Section and embrace a novelty, in obliging those courts where ever the Chief Justice, or Judges of either of the Courts of K. B. may sit, to report the proceedings before any Judgment can be executed. I was of that opinion at first. But when some Genl. of the House assigned as the reason ” That Comisss. of Goal Delivery were usually Issued to the Chief Justice & six Justices of the Peace, or that if even issued to the Judges at the K. B. the Ch. J. and those Judges might at some time be, in the minority, on a legal Question, and great evils result therefrom, which the above restriction might possibly Correct.” (Observations of Mr. Monk, Canadian Archives, Q 69, pt. 2, page 282.)

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VII. And for the speedy administration of justice in all suits or actions of a civil nature, cognizable by the aforesaid courts of King’s Bench or where the King may be a party, be it further enacted by the authority aforesaid, that two or more Justices of the said courts respectively, shall hold in the city of Quebec for the district of Quebec, and in city of Montreal, for the district of Montreal, four superior Terms of the said courts in every year, that is to say, on the first twenty juridical days of the months of February, April, June and October, and the said courts shall continue to be held every day (Sundays and holy-days excepted) during the said several Terms, and the first and every other juridical day in each Term, within each of the said districts, shall be return days for all writs and process issuing from the said courts respectively; provided always, that the said courts shaE only take cognizance in the superior Terms aforesaid of suits or actions wherein the value of the matter in dispute shall exceed the sum of ten pounds sterling, or if relating to the inferior district of Gaspé, herein after erected, shall exceed the sum of twenty pounds sterling, unless the said action shall relate to any fee of office, duty, rent, revenue or any sum or sums of money payable to his Majesty, titles to lands or tenements, annual rents or such like matters or things where the rights in future may be bound.

VIII. And be it further enacted by the authority aforesaid, that each of the aforesaid courts of King’s Bench shall have authority in the superior terms before established, to grant emancipation of minors, on the counsel of their relations or friends, and to hear and determine all legal matters and causes for the rescission of all contracts and deeds, and to rescind and annull the same in the same manner, as if special letters of emancipation and rescission had been in the first instance obtained, conformable to the usage under the Government, prior to the conquest of this country; and the said courts of King’s Bench shall respectively, in the superior terms aforesaid, have full power and jurisdiction, and be competent to hear and determine all plaints, suits and demands of what nature soever, which might have been heard and determined in the courts of Prevoté, Justice Royale, Intendant or Superior Council, under the Government of this Province, prior to the year one thousand seven hundred and fifty-nine, touching rights, remedies and actions of a civil nature, and which are not specially provided for by the Laws and Ordinances of this Province, since the said year one thousand seven hundred and fifty-nine; and the said courts of King’s Bench shall be respectively competent to award and grant all such remedy, as may be necessary for effectuating and carrying into execution the judgment or judgments thereof, which may be made in the premises aforesaid, and which to law and justice shall appertain; provided always, and it is also enacted, that nothing in the present Act shall extend to grant to the aforesaid courts of King’s Bench, any powers of a legislative nature, possessed by any court prior to the conquest, or to render necessary the presence and authority of more than one Justice of the said courts of King’s Bench, in all matters which require dispatch, such as the interdiction of insane persons, the election of tutors or guardians, curators and other counsels of relations, closing of inventories, attestation of accounts, insinuations, affixing and taking off seals of safe custody, and other acts of the same nature,

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which may be done either in or out of court, or out of Term; provided also that nothing in the present Act shall extend to revoke or annull an Ordinance of the province of Quebec of the thirty-first year of his Majesty’s reign, chap. 6th, intituled: “An Act or Ordinance concerning the building and repairing of churches, personage-houses and churchyards.”

IX. And iwhereas great inconveniences may arise by requiring Powers of the personal attendance of relations or friends, before one or more of the Justices of the said courts of King’s Bench, to counsel and advise upon the appointment of guardians, or tutors, curators to absentees, or to vacant estates, and other matters which require such counsel and advice, where the said relations or friends reside at the distance of five leagues and upwards from the towns of Quebec or Montreal, although within the respective districts where such courts may have jurisdiction for remedy thereof ; be it further enacted by the authority aforesaid, that the said courts of King’s Bench respectively, or any Justice thereof, shall have full power and authority, to authorise upon application of parties some Notary, and for want of a Notary, some other fit person residing near the habitation of such relations or friends, to call them together and administer to them an oath according to law, and to receive their counsel and opinion touching the matter so committed to them in trust, and the same to set down in writing in due form, and transmit to the respective court, from which such power and authority may have been received ; and any Justice or Justices thereof shall have full power and authority to proceed thereupon and grant every such act, order or appointment in as ample a manner as if the said relations or friends had been present, and personally given their counsel on the matter in question before him or them; and it shall be also lawful for all or either of the Judges of the said court of King’s Bench respectively to appoint such Notary or other fit person, as above said, for affixing and taking off seals upon petition presented to that effect.

X. And whereas it is expedient that for hearing, trying and determining in a summary manner, all civil suits or actions, wherein the amount claimed shall not exceed the sum of ten pounds sterling, there should be held inferior Terms of the said court of King’s Bench at the city of Quebec, for the district of Quebec, excepting that part of it herein after erected into the inferior district of Gaspé; and at the city of Montreal for the district of Montreal; be it further enacted by the authority aforesaid, that there shall be held by one or more Justices of the said courts six inferior Terms’thereof in every year, that is to say, at the city of Quebec for the district of Quebec, excepting that part of it herein-

1. On Section VIII, Mr. Monk observes ” The Powers vested in the Courts of King’s Bench by this Section, I consider as a very great improvement to the Judicature of this Country and absolutely necessary. Neither do I consider any part of the power granted by this clause improperly trusted to the Courts of K.B. Some where in this Colony they should be vested. The Ordinance 31, Geo. 3, ch. 6, excepted bv this Section—was a part of the Intendant”s power respecting Parsonage Houses, Churches, &c, and may properly remain limited as directed by this Section of the present Bill.” (Q 69, pt. 2, page 283.) On the Ordinance concerning the building and repairing of Churches, see the Report of the Privy Council of Quebec, March 31st, 1791, State Book 1, Quebec, pages 38-70, and also the opinion of Chief Justice Monk in 1810, page 413. For a further discussion of Section VIII, see the Protest of M. Lanaudiere, page 122, and Mr. Monk’s letter to Mr. Dundas, page 118.

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after erected into the inferior district of Gaspé, from the twentyfirst to the last day of January, both days inclusive; from the eleventh to the nineteenth day of March, both days inclusive; from the twenty-first to the last day of May, both days inclusive; from the twenty-fourth to the last day of June, both days inclusive ; from the twenty-first to the last day of August, both days inclusive; and from the twenty-first to the last day of November, both days inclusive: and at the city of Montreal for the district of Montreal, during the same periods as aforesaid, in the months of January, March, May, June and November, and from the eleventh to the nineteenth day of September, both days inclusive, (the Sundays and holy days in said periods excepted.) And the first and every juridical day of each of the inferior Terms aforesaid, shall be a return day for all writs and process issuing out of the said courts respectively; and the said courts in the inferior Terms thereof as aforesaid for each district respectively, shall have cognizance of, hear, try and determine in a summary manner, without appeal, every civil suit or action (those purely of Admiralty jurisdiction, and those relating to the inferior district of Gaspé, as hereinafter provided for, excepted,) wherein the amount claimed shall not exceed the sum of ten pounds sterling: provided always, that if such suit or action shall relate to any fee of office, duty or rent, revenue or any sum or sums of money payable to his Majesty, titles to lands or tenements, annual rents, or such like matters or things, where the rights in future may be bound, the defendant or defendants shall be at liberty, before entry of a plea or defence to the merits of such demand, to form an exception to the jurisdiction of the said inferior Terms, and require that the said suit or action may be removed and brought into hearing, trial and judgment in the superior Terms of the said court of King’s Bench of the district where such suit or action may have been brought, and all and every such exception so made as above said, shall be entered of record, and the process, suit and demand and all things thereto relating, shall be removed into the superior Terms of the said court, which shall proceed to hear and determine in a summary manner, whether the exception is well founded; and if the said court shall sustain the exception, it shall proceed to trial and judgment, according to the rules of proceeding , in the superior Term aforesaid; but if the said court shall dismiss the exception, the process, and all things thereto relating, shall be remitted to flip next inferior Term thereof, to be there heard, tried and finally determined.1

XI. And whereas it will contribute to the ease and convenience of his Majesty’s subjects, residing in the district of Three Rivers, that all causes relating thereto he there decided; be it therefore enacted by the authority aforesaid, that there shall be held at the town of Three Rivers, for the district of Three Rivers, by two of the Justices of the courts of King’s Bench for the districts of Quebec and Montreal, and the Provincial Judge to be appointed for the district of Three Rivers, a court of King’s Bench to sit in two

1. In this S ction there has been a departure from the original plan of Mr. Dundas, where it was proposed that in the Provincial Court a single Judge should have final jurisdiction in suits wherein the demand did not exceed £20. This was thought to give too great a power to a single judge and the jurisdiction was reduced to causes not in excess of £10 and modified by the provision for removal to the superior Terms.

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Terms every year, that is U. say, from the thirteenth to the last day of each of the months of March and September, both days inclusive, (Sundays and holy-days excepted;) and during the four first juridical days of each of said Terms, the said two Justices and Provincial Judge, or any two of them, with the Chief Justice of the Province, or the Chief Justice of the court of King’s Bench at Montreal, shall have cognizance of all crimes and criminal offences, and during the remainder of each of said Terms, the said two Justices and Provincial Judge, or any two of them, shall have original jurisdiction, take cognizance of, hear, try, and determine, all civil suits or actions, and where the King is a party in said district, those purely of Admiralty jurisdiction, and suits or actions wherein the value of the matter in dispute shall not exceed the sum of ten pounds sterling, excepted, unless the said suits or actions not exceeding ten pounds sterling, shall relate to any fee of office, duty, rent, revenue, or anj sum or sums of money, payable to his Majesty, titles to lands or tenements, annual rents or such like matters or things, where the rights in future may be bound; and the first and every juridical day in each part of the said Terms for criminal and civil causes, shall be return days for all writs and process, issuing from the said court for criminal and civil causes respectively, and the said court of King’s Bench, to be held as aforesaid at Three Rivers, and the Justices and Provincial Judge composing the same, or any of them, shall have within that district, both in and out of court the same powers and authorities in all cases, as are granted by this Act to the courts of King’s Bench of the districts of Quebec and Montreal, and the Justices thereof or any of them, in or out of court, or out of Term.

XII. And whereas it is expedient, that there should be a court in the district of Three Rivers for hearing, trying and determining in a summary manner, all civil suits or actions wherein the amount claimed shall not exceed the sum of ten pounds sterling; be it further enacted by the authority aforesaid, that there shall be appointed a Provincial Judge for the district of Three Rivers, who shall hold a Provincial court at the town of Three Rivers in six Terms every year, that is to say, from the first to the tenth day, both days inclusive, in each of the months of February, April, June, August, October and December, (the Sundays and holy-days in said Terms excepted,) which shall have cognizance of, hear, try, and determine in a summary manner, without appeal, every civil suit or action, (those purely of Admiralty jurisdiction excepted.) wherein the amount claimed shall not exceed the sum of ten pounds sterling: provided always that if such suit or action shall relate to any fee of office, duty, rent, revenue or any sum or sums of money payable to his Majesty, titles to lands or tenements, annual rents, or such like matters or things, where the rights in future may be bound, the defendant or defendants shall have the same right to form an exception to the jurisdiction of the said Provincial court, and to require a removal of the suit or action into the court of King’s Bench to be held at Three Rivers, in the same manner and under the same conditions as are herein before provided for, the removal of suits or actions from the inferior to the superior Terms of the courts of King’s Bench at Quebec and Montreal, and every juridical day in

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each Term shall be a return day for all writs and process issuing from the said Provincial court.

XIII. And provided also and be it enacted by the authority aforesaid, that in every suit or action, where legal objection shall be made to the Judge of the said Provincial court of the district of Three Rivers, every such objection shall be entered of record, and the process, suit and demand, and all things thereto relating, shall bn removed into the next Term of the court of King’s Bench to be held at the said town of Three-Rivers, which shall proceed to hear and determine in a summary manner, whether the said objection is well founded; and if the said court shall sustain the objection, it shall proceed to trial and judgment of the suit in a summary manner, but if the said court shall dismiss the objection, the process and all things thereto relating shall be remitted to the said provincial court, to be there heard, tried and finally determined.

XIV. And considering the remote situation of the county of Gaspé, and for the ease and convenience of his Majesty’s subjects resident within the said county, who may have suits to prosecute not exceeding the sum of twenty pounds sterling; be it further enacted by the authority aforesaid, that the said county of Gaspé, shall be erected into an inferior district, to be called the inferior district of Gaspé, and there shall be appointed a Provincial Judge, who shall hold a provincial court for the said district, as herein aftermentioned, which shall have cognizance of, hear, try, and determine in a summary manner, without appeal, every writ, suit or action, and where the King is a party, (those purely of Admiralty jurisdiction excepted,) wherein the amount claimed shall not exceed the sum of twenty pounds sterling; and the said court shall be held at the places and during the following terms in every year, that is to say, at Bonaventure, in the Bay of Chaleurs, from the sixteenth to the thirty-first day of May, both days inclusive; at Carleton, in the said Bay, from the sixteenth to the thirty-first day of July, both days inclusive ; at Percé, in the entry of the Bay of Gaspé, from the sixteenth to the thirty-first day of August, both days inclusive; and at Douglas-town, within the said Bay of Gaspé, from the fifteenth to the thirtieth day of September, both days inclusive; (the Sundays and holy-days in said Terms excepted,) and the first and every other juridical day of each of the aforesaid Terms in the said inferior district of Gaspé, shall be return days.

XV. Provided always that the said provincial court for the inferior district of Gaspé, shall not have power or authority to issue a writ of execution against the body or immoveable property, although the amount of the judgment should exceed the sum of ten pounds sterling, any law to the contrary notwithstanding.

XVI. Provided also that no defendant or defendants shall be amenable to the courts to be held at Carleton or Bonaventure, unless the summons shall be served on him or them personally, on the Westside of Mackarel-point, in Chaleur Bay, or left at a place at which he or they shall be actually residing or carrying on the fishery or other business, to the Westward of said Mackarel-point; nor shall any defendant or defendants be amenable to the courts to be held at Percé or Douglas-town, unless that the summons shall be served on him or them personally on the East-side of said Maekarel-point, or

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left at a place, at which he or they shall be actually resident or carrying on the fishery, or other business, Eastward of Maekarel-point aforesaid in the said Bay of Chaleurs, or on the coast of the river Saint Lawrence as far as the county of Gaspé extends.

XVII. And be it further enacted by the authority aforesaid, that the Judge of the said Provincial court of Gaspé shall have authority either in or out of Court’or out of Term, to proceed to the interdiction of insane persons, the election of tutors or guardians, curators and other counsels of relations or friends, closing of inventories, attestations of accounts, insinuations, affixing and taking off seals of safe custody and other acts of the same nature, which ought not to suffer any delay, and he shall have the same power and authority as is given by this Act to all or any of the Judges of the courts of King’s Bench of the districts of Quebec or of Montreal, to appoint a Notary or some other fit person, upon application of parties, to receive the counsels and opinions of relations or friends, and he shall proceed on such matters in the manner and form prescribed by the present Act.

XVIII. And be it further enacted by the authority aforesaid, that every writ of summons that may be granted by any of the Justices of the court of King’s Bench of the district of Quebec, for civil suits or actions, wherein the value of the matter in dispute shall exceed the sum of twenty pounds sterling, against any defendant or defendants, residing within the inferior district of Gaspé, shall be made returnable into the said court of King’s Bench at Quebec only, in the Terms to be there held in the months of June or October, and there shall be at least two months betwixt the service of the said summons and the day of return into the said court of King’s Bench; and the Judge of the said provincial court of Gaspé shall have power and authority, on a declaration presented to him in writing, by any person or persons, setting forth the grounds of his or their complaint against a defendant or defendants residing in said inferior district, and that the amount of the claim against him or them exceeds the sum of twenty pounds sterling, to grant a writ of summons returnable into the court of King’s Bench at Quebec, in either of the two Terms thereof as aforesaid : provided always that there shall be the same distance of tjme betwixt the service of the said summons and the day of return into the said court of King’s Bench as above mentioned: and the said declaration and summons, together with the service thereof, certified under the hand of the Judge and seal” of the said provincial court of Gaspé, (if the said summons was by him granted,) being returned into the court of King’s Bench at Quebec, the said court shall proceed to hear, try, and determine the suit or action in like manner as if the said summons had issued originally therefrom.

XIX. And be it further enacted by the authority aforesaid, that there shall be held a circuit court annually in each of the districts of Quebec and Montreal, by one at least of the Justices of the aforesaid courts of King’s Bench, which said circuit courts shall sit once in every year in each of the counties included in the aforesaid districts of Quebec and Montreal respectively, (except the counties of Quebec, Montreal, Orleans and Gaspé,) and hear and determine all civil suits and actions brought before them, where

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the amount claimed shall not exceed the sum of ten pounds sterling, and which said circuit courts shall have all the powers and authorities vested in the said courts of King’s Bench, sitting by inferior Terms in the cities of Quebec and Montreal, in causes not exceeding the sum of ten pounds sterling; and that the sittings of the said circuit courts in each of the said districts shall be two days in each place, and shall be held at the times and places hereafter mentioned, to wit, for the district of Quebec at Kamouraska, in the county of Cornwallis, the first Friday and Saturday after the twenty-ninth day of June of each year; at l’Islet, in the county of Devon, the Monday and Tuesday of the week following; at Saint-Valier, in the county of Hertford, the Thursday and Friday of the same week; at Saint- Mary’s Nouvelle Beauce, in the county of Dorchester, for the said county, (except the parishes of Saint Joseph, of Pointe Levi and Saint Nicholas,) Monday and Tuesday of the week following; at Cap-Santé, in the county of Hampshire, Monday and Tuesday of the week following; at Lotbinière, in that part of Buckinghamshire comprehended in the district of Quebec, Wednesday and Thursday of the same week ; and at Saint Joachim, in the county of Northumberland, Monday and Tuesday of the week following; and for the district of Montreal, at Vaudreuil, in the county of York, for said county, (except the Isle Bizarre, and the seigniories of the lake of the Two Mountains and of Saint Eustache,) and for that part of the county of Huntingdon, which is to the Southward of the lake Saint Francis, the first Monday and Tuesday after the twenty-ninth day of June; at Terrebonne, in the county of Effingham, Thursday and Friday of the same week; for the said county and for the seigniories of the lake of the Two Mountains, and of Saint Eustache at the village of l’Assomption in the county of Leinster, Monday and Tuesday of the week following; at Berthier, in the county of Warwick, Thursday and Friday of the same week; at Verchères, in the county of Surry, Monday and Tuesday of the week following; at Saint Denis, in the county of Richelieu, Thursday and Friday of the same week; at Chambly, in the county of Kent, Monday and Tuesday of the week following; for the said county and for the lower part of the county of Bedford, and at Dorchester or Saint John’s, in the county of Huntingdon, Thursday and Friday of the same week, for the’said county, (except the seigniories of Sault Saint Louis, Chateauguay and Beauharnois,) and for the upper part of the county of Bedford; and at Chateauguay, Monday and Tuesday of the week following for the said seigniories of Sault Saint Louis, Chateauguay and Beauharnois.

XX. And be it also further enacted by the authority aforesaid, that there shall be held in like manner, once in every year, by the Judge of the provincial court of the district of Three Rivers, a circuit court in the said district, at the times and places herein after mentioned, to determine all civil suits and actions that are within the competency of the said provincial court of the district of Three Rivers, and that the sittings of the said circuit court shall be two days in each place, and shall be held, to wit, at Rivière du Loup for that part of the said district which lies to the Westward of the town and banlieue of Three Rivers, on the North-side of the river Saint Lawrence, on the first Monday and Tuesday after the twentyninth day of June; at Batiscan, for that part of the said district which

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lies to the Eastward of the town and banlieue of Three Rivers, on the said side of the river Saint Lawrence, the Friday and Saturday of the same week; at Gentilly, for that part of the aforesaid district which lies to the Eastward of the river Becancour, on the Southside of the river Saint Lawrence, on Tuesday and Wednesday of the following week; and at Baye du Febvre, for that part of the said district which lies to the Westward of the said river Becancour, on the said side of the river Saint Lawrence, on Friday and Saturday of the same week.

XXI. Provided always and be it further enacted by the author- ity aforesaid, that if any suit or action in such circuit courts shall relate to any fee of office, duty, rent, revenue or any sum or sums of money payable to his Majesty, titles to lands or tenements, annual rents or such-like matters or things where the rights in future may be bound, the defendant or defendants shall have the same right to form an exception to the jurisdiction of the said circuit courts, and to require a removal of the suit or action into the superior Terms of the court of King’s Bench to be held at Quebec or Montreal, or into the Terms of the court of King’s Bench to be held at Three Rivers, each for their district respectively, in the same manner and under the same condition as are herein before provided for the removal of like suits or actions, from the inferior to the superior Terms of the courts of King’s Bench at Quebec or Montreal, and from the provincial court at Three Rivers to the court of King’s Bench to be there held; and as often as it shall happen, that an objection may be legally taken to the Judge upon the said circuit courts in any suit or action, every such suit or action shall be reserved to be heard, tried, and determined in a summary manner at the next inferior Terms of the courts of King’s Bench at Quebec or Montreal, or Terms of said court to be held at Three Rivers respectively.

XXII. And be it further enacted by the authority aforesaid that all records, registers and proceedings, in custody of, or belonging to the present court of King’s Bench, shall be taken and considered to courts, belong to, and be in custody of the court of King’s Bench, to be established under the present Act, for the district of Quebec,1 and all the proceedings, records and registers in actions instituted and pending in any of the courts of Comanon-Pleas of the districts of Quebec and Montreal, for whatsoever amount, and in that of the county of Gaspé in actions wherein the amount claimed is above the sum of twenty pounds, sterling, shall be transmitted to the court of King’s Bench for the district in which such suits may have been instituted, to be proceeded upon therein, as if they had commenced in the same, and that the custody of all records, registers, papers and minutes of what nature soever, in the possession of or considered as belonging to the courts of Common-Pleas of the districts of Quebec and Montreal, shall be taken and considered to belong to the courts of King’s Bench of the said districts respectively, and the proceedings, records and registers and all papers and minutes of what nature soever as aforesaid, in the custody of, or belonging to the court of Common-

1. In the following year this section was amended so as to permit the transfer to the Clerk of the Crown of the respective districts of records in the custody of the Court of King’s Bench and which related to causes instituted in the district of Montreal or Three Rivers.

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Pleas of the district of Three Rivers, if relating to actions or suits for sums not exceeding ten pounds sterling, shall be taken and considered to belong to the provincial court of the said district ; and if relating to actions or suits for sums exceeding ten pounds sterling, shall be taken and considered to belong to the court of King’s Bench, to be held at Three Rivers, for the said district, and the proceedings, records and registers and all papers and minutes of what nature soever, in the custody of or belonging to the court of Common-Pleas of the county of Gaspé, relating to suits or actions for sums not exceeding twenty pounds sterling, shall be taken and considered to belong to the provincial court of the inferior district of Gaspé, and that all and every the records, registers, papers and minutes aforesaid shall be transmitted to the respective Clerks of the said courts of King’s Bench and provincial courts to be established under the present Act, which courts respectively shall have authority, from time to time, to order and compel the surrender of the said records, registers, papers and minutes, by such persons, who are or may be in possession thereof; and the refusal to surrender and deliver the same shall be deemed and considered to be a contempt of the said courts, and the person or persons so refusing may be proceeded against as in cases of contempt accordingly.

XXIII. And be it further enacted by the authority aforesaid, that the Governor, Lieutenant Governor or Person administering the Government,sthe members of the Executive Council of this Province, the Chief Justice thereof, and the Chief Justice to be appointed for the court of King’s Bench at Montreal, or any five of them (the Judges of the court of the district wherein the judgment appealed from was given, excepted) shall be constituted and are hereby erected and constituted, a superior court of civil jurisdiction or provincial court of appeals, and shall take cognizance of, hear, try and determine all causes, matters and things appealed from all civil jurisdictions and courts, wherein an appeal by law is allowed; provided always that no member of the court of appeals, shall be considered disqualified from sitting on appeals, from the district of Three Rivers, excepting the Judges who may have given the judgment appealed from.

XXIV. And be it also enacted by the authority aforesaid, that the Governor, Lieutenant Governor or Person administering the Government, When present in the said provincial court of appeals, shall preside therein, and shall have and hereby hath full power and authority to appoint any member of the said court to be President thereof, during the absence of the said Governor, Lieutenant Governor or Person administering the Government for the said court, any law to the contrary notwithstanding.2

1. For the former constitution of the Court of Appeals see Section XXXIV. of the Constitutional Act, the Ordinance of 1792, page 68, and the additional Instructions of July 12. 1792, page 71. For the constitution of the Court of Appeal of Upper Canada see page 155. 2. The rule which came to be adopted regarding the presidency of the Court of Appeal was that in appeals from judgments given in the Court of King’s Bench for the district of Montreal the Chief Justice of the Province should preside and that in appeals from the district of Quebec the Chief Justice of the Court of King’s Bench for Montreal should preside.

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XXV. And be it further enacted by the authority aforesaid, that the said court of appeals shall be held at the city of Quebec in four Terms during every year, that is to say, from the tenth to the twentieth day, both days inclusive, of each of the months of January and November, and from the twentieth to the thirtieth day, both days inclusive, of each of the months of April and July, the Sundays and holy-days in each Term excepted.

XXVI. And be it further enacted by the authority aforesaid, that all and every the records, registers and judicial proceedings thereto relating, of the court of apoeals of the Governor and Council, before the passing of this Act, shall be forthwith transmitted into, and make part of the records of the court of appeals by this Act constituted and established; and the said court shall and may hear, try, and determine, and upon judgment made, shall issue execution in all causes which remained in the former court of appeals unheard and not determined, and shall and may issue all such process and writs of execution upon any judgment made by the former court of appeals of the Governor and Council, with full cognizance of every matter thereupon, which may be lawfully moved, touching any execution aforesaid; and the said court of appeals shall have full power and authority, from time to time, to order and compel such persons as are in possession of any of the records, registers and proceedings aforesaid, to transmit the same as before ordered; and every neglect or refusal shall be deemed a contempt, and the party offending may be proceeded against in the same manner as for a contempt of the said court.

XXVII. And be it also enacted by the authority aforesaid, that an appeal shall lie to the court of appeals of this Province, herein before mentioned and constituted, from every judgment of the present court of Common-Pleas, in all cases wherein by law, an appeal may now be brought therefrom to the present court of appeals, and from every judgment which may be given in the civil superior Terms of the said courts of King’s Bench for the districts of Quebec and Montreal, or civil Terms thereof, to be held at Three Rivers, in all cases where the matter in dispute shall exceed the sum of twenty pounds sterling, or shall relate to any fee of office, duty, rent, revenue or any sum or sums of money payable to his Majesty, titles to la1 ds or tenements, annual rents or such like matters or things where the rights in future may be bound, although the immediate value or sum in appeal be less than twenty pounds sterling: provided that security be first duly given by the appellant, that he will effectually prosecute the said appeal and answer the condemnation, and also pay such costs and damages as shall be adjudged in case the judgment or sentence of the court of King’s Bench be affirmed, or that the appellant agrees and declares in writing at the Clerk’s office of the court appealed from, that he does not object to the judgment given against him being carried into effect according to law; on which condition, he shall give security only for the costs of appeal, in case the appeal is dismissed; and on condition also, that the appellee shall not be obliged to render and return to the appellant more than the net proceeds of the execution, with the legal interest on the sum recovered, or the restitution of the real property, and of the net value of the produce and revenues of the real property, whereof the appellee has been put in possession by virtue of the

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execution, to take place from the day he recovered the sum or possessed the real property, until perfect restitution is made, without any damages against the appellee by reason of the said execution in case the judgment is reversed, any law, custom or usage to the contrary notwithstanding.

XXVIII. And be it further enacted, that wherever the judgment appealed from, shall be founded on the verdict of a jury, no other appeal shall lie than an appeal in error, that the law only and not the factya^y be drawn into question.

XXIX. And be it further enacted by the authority aforesaid, that all and singular the laws of this Province which before the passing of this Act were in force to govern and direct the practice of the respective courts of criminal and civil jurisdiction, or which gave authority to the said courts to make and establish rules of practice, and which are not expressly repealed or varied by this Act1 shall continue to be in force and be observed respectively by the courts of criminal and civil jurisdiction, constituted by, or to be constituted in pursuance of this Act; that is to say, that the laws which concern and direct the present courts of Common-Pleas, in causes exceeding ten pounds sterling, shall continue to be observed by the courts of King’s Bench for the districts of Quebec and Montreal, in the superior Terms thereof, and by the court of King’s Bench in the Terms which it shall hold in the town of Three Rivers ; that those which concern and direct the present courts of Common- Pleas in causes not exceeding ten pounds sterling, shall continue to be observed by the courts of King’s Bench for the districts of Quebec and Montreal, in the inferior Terms thereof, and by the provincial courts of Gaspé and Three Rivers; and lastly, that the laws which concern and direct the present court of appeals and the present courts of criminal jurisdiction, and the Sessions of the Peace respectively, shall continue to be respectively observed, by the provincial court oí appeals, and by the courts of criminal jurisdiction and Sessions of the Peace constituted by or to be constituted in pursuance of this Act.

XXX. And be it further enacted by the authority aforesaid, that the judgment of the said court of appeals of this Province, shall be final in all cases where the matter in dispute shall not exceed the sum or value of five hundred pounds sterling; but in cases exceeding that sum or value, as well as in all eases where the matter in question shall relate to any fee of office, duty, rent, revenue, or any sum or sums of money payable to his Majesty, titles to lands or tenements, annual rents or such like matters or things where the rights in future may be bound, an appeal shall lie to his Majesty in his Privy-Council, though the immediate sum or value appealed for, be less than five hundred pounds sterling, provided security be first duly given by the appellant, that he will effectually prosecute his appeal, and answer the condemnation, and also, pay such costs and damages as shall be awarded by his Majesty in his Privy-Council, in case the judgment of the said court of appeals of this Province be affirmed, or provided that the appellant agrees and declares in writing at the Clerks office of the court appealed from, that he does not object to the judgment given against him, being carried into effect

1. See Sections XXXVIII. to XLII.

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according to law, on which condition he shall give sureties for the costs of the appeal, only, in case the appeal is dismissed, and on condition also that the appellee shall not be obliged to render and return to the appellant, more than the net proceeds of the execution, with legal interest on the sum recovered, or the restitution of the real property; and of the net value of the produce and revenues of the real property, whereof the appellee has been put in possession, by virtue of the execution, to take place from the day he recovered the sum or possessed the real property until perfect restitution is made, but without any damage against the appellee, by reason of such execution, in case that the judgment be reversed, any law, custom or usage, to the contrary notwithstanding.

XXXI. And be it also enacted by the authority aforesaid that in all cases, where appeal shall be allowed to his Majesty in his Privy-Council, execution shall be suspended, for fifteen Calendar months from the day on which such appeal is allowed; and from the expiration of that period, to the final determination of the said appeal, if before the expiration of the said fifteen months, a certificate shall be filed in the court of appeals of this Province, signed by the Clerk of his Majesty’s Privy-Council, or his Deputy, or any other person, duly authorised by him, that such appeal has been lodged and that proceedings have been had thereon before his Majesty in his Privy-Council, and if no such certificate be produced and filed in the provincial court of appeals, within the said fifteen months, the said appeal shall not longer operate a stay of judgment and execution, but the party, who obtained judgment in the said provincial court of appeals may sue out execution as if no such appeal had been made or allowed, any law, usage or custom to the contrary notwithstanding.

XXXII. And be it further enacted by the authority aforesaid, that in all cnscs, where an appeal is by law allowed, from the court of King’s Bench, to be constituted in pursuance of this Act, to the provincial court of appeals herein before mentioned and constituted, as also where an appeal is by law allowed, from the said provincial court of appeals, to his Majesty in his Privy-Council, no appeal shall be granted or allowed, after the expiration of one year, from the date of the final judgment of the said courts respectively; any law, usage or custom to the contrary notwithstanding, saving always and excepting every such judgment, whereby the rights of persons under age, femes covert, or persons non compos mentis or otherwise interdit may be bound; who may appeal from any such judgment, within one year after the disability, under which they have respectively so laboured, shall have ceased, and in case of the death of any person labouring under any of the said disabilities, his or her heir or heirs, if present in the Province, may appeal from such judgment, within one year after such death or if absent therefrom, within five years; and also saving and excepting every judgment which shall be given against any person absent from this Province, who may appeal from any such judgment, within one year after such death, or if absent therefrom, within five years; and also saving and excepting every judgmaat which shall be given against any person absent from this Province, who may appeal from any such judgment, within five years from the date thereof, if he or she does not sooner return to this Province, in which case no appeal shall be admitted after the

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expiration of one year from the date of such return, and in case of the death of any person within one year after any judgment given against him or her, his or her heir or heirs, if present in this Province, may appeal from such judgment, at any time before the expiration of a year from the death of such person, and if absent, before the expiration of five years from the date of such judgment.

XXXIII. And be it further enacted by the authority aforesaid, that all proceedings, records and registers in actions instituted and depending in any of the courts of request, within the different districts of this Province, as established by this Act, shall be transmitted into the courts of King’s Bench, in the inferior Terms thereof, or into the provincial courts of the respective districts, in which such actions may have been instituted, to be there proceeded upon, as if they had been commenced in the said courts, and that the keeping of all records, registers, papers and minutes of what nature soever, in the possession and considered as belonging to, the said courts of request, shall be taken and considered as belonging io the said Courts of King’s Bench in the inferior Terms thereof or to the said provincial courts of the respective districts, in which such courts of request are comprehended, which courts shall respectively have authority to order and compel the delivery of the aforesaid records, registers papers and minutes, by all such persons as are or may be in possession thereof, and the refusal to surrender and deliver them up, shall be considered as a contempt of the said courts respectively.

XXXIV. And be it further enacted by the authority aforesaid, that there shall be held four times in every year, in each of the dis tricts of Quebec, Montreal and Three Rivers, and in the inferior district of Gaspé, a General Session of the Peace, by the Justices of the Peace of each respective district, or any three of them, whereof one shall be of the quorum, who shall hear and determine all matters relating to the conservation of the peace, and whatsoever is or may be by them cognizable, according to the criminal laws of that part of Great Britain called England, and the Ordinances or Acts in force in this Province; and the said Sessions for the districts of Quebec, Montreal and the Town of Three Rivers shall be held respectively at the cities of Quebec and Montreal and the Town of Three Rivers, that is to say, from the tenth to the nineteenth day of each of the months of January and July, both days inclusive; and from the twenty-first to the thirtieth days of each of the months of April and October, both days inclusive, (Sundays and holy-days excepted) and the said Sessions for the inferior district of Gaspé shall be held at Bonaventure and Carleton, in the Bay of Chaleurs; at Percé, in the entrance of the Bay of-Gaspé and at Douglas-town, within the said Bay of Gaspé; for eight days immediately following the Terms of the provincial court of the said inferior district, (Sundays and holy-days excepted,) and two of the said Justices of the Peace shall sit weekly, in rotation in the cities of Quebec and Montreal,1

1. On the 17th of May, 1810, Sir James Craig reported that, owing to the disorganized condition of the Courts of Quarter Sessions for the towns of Quebec and Montreal, he had, on the advice of the Executive Council, appointed a permanent chairman of the Court for Quebee and two Justices of the Peace as Police Magistrates for the town of Montreal. (See Canadian Archives, Q 112, page 173.)

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and in the Town of Three Rivers, for the better regulation of the Police, and other matters, and things belonging to their office, and the names of the Justices who are to sit in each week, shall be posted, upon the door of the Session-house, by the Clerk of the Peace ; provided always, that nothing herein contained shall be construed to prevent the holding of Special Sessions of the Peace, for the purposes and in the manner by law allowed.1

XXXV. And be it further enacted by the authority aforesaid, that all recognizances which may hereafter become forfeited, in his Majesty’s courts of General or Special Sessions of the Peace for the districts of Quebec or Montreal, shall be certified and estreated in and into his Majesty’s courts of King’s Bench of the respective districts twice in every year that is to say; all recognizances which may be come forfeited, in the said courts of General or Special Sessions of the Peace, from the beginning of every Sessions to be held in the month of January in every year to the end of every Sessions to be held in the month of April in every year, shall be and are hereby ordained to be certified and estreated in and into the said courts of King’s Bench, the last day of every Term to be held “in the month of June yearly, and all recognizances which may become forfeited in the said courts of General or Special Sessions of the Peace, from the beginning of every Sessions to be held in the month of July in every year, to the end of every Sessions to be held in the month of October in every year, shall in like manner be certified and estreated in and into the said courts of King’s Bench the last day of every Term to be held in the month of February yearly, and all recognizances which may hereafter become forfeited in the General or Specials Sessions of the Peace for the district of Three Rivers, shall be certified and estreated in and into the court of King’s Bench of that district, that is to say, all recognizances forfeited in said sessions of January and April shall be certified and estreated in and into the court of King’s Bench, to be held at Three Rivers aforesaid in the month of September, and all recognizances forfeited in said Sessions of July and October, shall be certified and estreated in and into the court of King’s Bench to be held at Three Rivers aforesaid in the month of March, and all recognizances which may hereafter become forfeited in the General or Special Sessions of the Peace for the inferior district of Gaspé, shall be certified and estreated once in every year, in and into the court of King’s Bench, to be held for the district of Quebec, in the month of February, and all recognizances which shall become forfeited in any court of Oyer and Terminer, and General Gaol Delivery, shall bè certified and estreated in and into the court of King’s Bench of the district respectively where such recognizance shall have been entered into, on the last day of the next Term, after the same shall have become forfeited; on pain, that every Officer of or belonging to the said courts of General Quarter or special Sessions of the peace, to whom it doth, ought or shall appertain to make certificate or estreat of any of the said recognizances, making default or offending therein, shall forfeit and pay twenty pounds sterling, for every such default or failure that shall be made in certifying and estreating as aforesaid; the one moiety to the Receiver General for the use of the Crown to be applied for the public uses of this Province, and

1. Mr. Monk observes that this clause preserves what would otherwise be lost with the Ordinances repealed by the Act.

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for the support of the Government thereof, and shall be accounted for to the crown through the Commissioners of his Majesty’s Treasury for the time being, as the Crown shall direct, and the other moiety to such person or persons that shall or will sue for the same, in any court of record, by action of debt, plaint, bill or information, and which said several courts of King’s Bench are hereby authorized to cause to be levied in the whole, or to moderate and remit in the whole, or in part, such forfeitures, where it may appear just and reasonable to be done.1

XXXVI. And whereas the great extent of this Province, may render it often impracticable for the Coroner of the district to give his attendance to the different places where it might be necessary; be it further enacted by the authority aforesaid, that the Captains or senior Officer of Militia shall be, and hereby are empowered, in their respective parishes, when any marks of violence appear on any dead body, to summon together six reputable house-holders 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 Justice of the Peace, that a further examination may be made therein, if necessary.2

XXXVII. And be it further enacted by the authority aforesaid, that all the Powers and authorities granted by an Ordinance, passed by the Governor and Legislative Council of the late Province of Quebec, on the twpnty-ninth day of April, in the twenty-fourth year of his Majesty’s reign, intituled “An Ordinance for securing the the liberty of the subject, and for preventing of imprisonments out of this Province,” to the courts of King’s Bench of the said late provinceof Quebec, or to the Chief Justice thereof, or to the Commissioners for executing the office of Chief Justice, or to any Judge or Judges of the said Court of King’s Bench, regarding the writ of Habeas Corpus, shall be vested in each of the courts of King’s Bench, to be constituted in virtue of this Act for the districts of Quebec and Montreal, and in all and singular the Justices thereof, against any of the Judges of the court of King’s Bench, provided always and be it further enacted, that when any writ of Habeas Corpus shall be returnable in vacation time, such writ shall be made returnable at Quebec, before the Chief Justice of this Province or at Montreal before the Chief Justice of the Court of King’s Bench

“The duties directed and powers granted by this section appear to be very requisite. Altho’ recognizances for appearance, &c. have been forfeited without number, during fifteen years of my experience I scarcely know an instance of the penalty being levied. And the administration of Justice has been greatly relaxed by such indulgence or necessity. Lately Mr. Smith, Chief Justice held that there was no Court of Exchequer nor power in the country to recover the penalty of a recognizance forfeited for non-appearance &c. The Equity Trust reposed in the Courts of King’s Bench by this clause to mitigate the forfeiture of the recognizance appears to be necessary, nor is there to be apprehended any improper exercise of the power but on the contrary, great benefit from such confidence” (Observations of Mr. Monk, Canadian Archives, Q 69, pt. 2, page 286) 2 This section on retains Article III. of the Ordinance for establishing Courts of Criminal Jurisdiction in the Province of Quebec, 17 Geo. III, chap. 5, which is repealed by section XXXVIII. of the Act. 3. T e Ordinance of the 24th Geo III chap. 3 known as the Habeas Corpus Ordinance. See Canadian Archives, Ordinances of the Province of Quebec, 1784.

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at Montreal; and in case of the absence or indisposition of either of them respectively, two or more Puisne Justices of the said courts of King’s Bench respectively, shall be necessary to proceed, hear and determine on; any law or usage to the contrary notwithstanding; provided also and be it further enacted, by the authority aforesaid, that a writ of Habeas Corpus, according to the true intent and meaning of the aforesaid Ordinance, may be directed and run into the district of Three Rivers, from either of the courts of King’s Bench, aforesaid, or from any of the Justices thereof, and shall be made returnable, at the option of the person applying for or demanding the same, either into the Terms of the court of King’s Bench to be held at the Town of Three Rivers, or in vacation time before either of the Chief Justices aforesaid, at Quebec or Montreal, to be proceeded on as if such writs had been applied for or demanded by or on behalf of any person confined or imprisoned in either of the districts of Quebec or Montreal.

XXXVIII. And be it further enacted by the authority aforesaid, that the Acts or Ordinances passed by the Governor Legislative Council of the late province of Quebec hereafter mentioned, to wit, An Ordinance, intituled, “An Ordinance for establishing courts of c vil judicature in the Province of Quebec,” passed the twenty-fifth day of February, in the seventeenth year of his Majesty’s reign ; also an Ordinance, intituled, ” An Ordinance for establishing courts of criminal jurisdiction in the Province of Quebec,” passed the fourth day of March, also in the seventeenth year of his Majesty’s reign; also an Ordinance, intituled, “An Ordinance for granting a limited civil power and jurisdiction to his Majesty’s Justices of the Peace, in the remote parts of this Province,” passed the thirtieth day of April, in the twenty-fifth year of his Majesty’s reign; also an Act or Ordinance, intituled, “An Act or Ordinance to alter the Ordinance herein after mentioned,” passed the thirtieth day of April, in the twenty-eighth year of his Majesty’s reign; also an Act or Ordinance, intituled, “An Act or Ordinance to foi m a new district between the districts of Quebec and Montreal, and for regulating the same districts,” passed the twelfth day of April, in the thirtieth year of his Majesty’s reign, be, and the said Acts or Ordinances and every part thereof are hereby repealed.

XXXIX. And be it further enacted by the authority aforesaid, that such part of an Ordinance, passed by the Governor and Legislative Council of the late province of Quebec, on the thirtieth day of April, in the twenty-seventh year of his Majesty’s reign, intituled, “An ordinance to continue in force, for a limited time, an Ordinance made, 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 establish trials by juries in actions of a commercial nature, and personal wrongs to be compensated in damages,” with such additional regulations as are expedient and necessary: and which parts are, to wit, the clause which fixes the Terms of

1 Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, 2 Ibid. page 471. 3 5 Geo. VI, Chap. 5. 4. 30 Geo. III. Chap. 5. 5. 27 Geo. III, Chap. 4.

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the court of Common-Pleas, the clause concerning appeals to be lodged by executors, administrators, tutors or curators, and the part which concerns the dispensation of justice in small matters, and which gives power to the Governor or to the Commander in Chief, for the time being, with the advice and consent of the Council, to erect new districts by letters patent in the distant parts of this Province, be, and the said parts or clauses of the said Ordinance are hereby repealed; and all power and authority vested in any court, or the Judge or Judges of any court constituted in virtue of the said Ordinance, shall from and after the passing of this Act cease and determine.

XL. And be it further enacted by the authority aforesaid, that so much of an Act or Ordinance passed by the Governor and Legislative Council of the late Province of Quebec, on the thirtieth day of April, in the twenty-eighth year of His Majesty’s reign, intituled, “An Act or Ordinance for regulating the fisheries in the river of Saint Lawrence, in the Bays of Gaspé and Chaleurs, on the island of Bonaventure and the opposite shore of Percé,” as gives power to two Justices of the Peace to hear and determine any difference or controversy which might arise betwixt the masters of fishing-ships, shallops, boats or other vessels, for and concerning the right and property of fishing rooms, stages, flakes, or any other convenieney or building for carrying on their fishery, or for curing their fish, between Cap Cat and the rapids of Ristigouche in the bay of Chaleurs aforesaid, at Percé and on the island of Bonaventure, be and such part of the said Act or Ordinance is hereby repealed.

XLI. And be it further enacted by the authority aforesaid, that so much of an Act passed by the Governor and Legislative Council of the late province of Quebec, on the eleventh day of April, in the thirty-first year of his Majesty’s reign, intituled, “An Act to continue and amend the Acts or Ordinances therein mentioned, respecting the practice of the law in civil causes,” as concerns the regulations hitherto established respecting the conduct of the business of the courts of request, and gives power and authority to the Governor or Commander in Chief, with the advice of the Council to make, from time to time, such alterations therein as he shall think necessary, by letters patent under the great seal, be, and such part of the said Act or Ordinance is hereby repealed.

XLII. And be it further enacted, by the authority aforesaid, that so much of an Act passed by the Legislature of this Province, in the thirty-third year of his Majesty’s reign, intituled, “An Act to prevent the inconveniences that may arise by the discontinuance of certain temporary Ordinances” passed by the Lieutenant-Governor and Executive Council, as continues a temporary Ordinance, intituled, ” An Ordinance relating to causes in appeal to the court of the Governor and Executive Council,” passed the twenty-fourth day of February, in the thirty-second year of his Majesty’s reign, be, and such part of the said Act as continues the said Ordinance in force, is hereby repealed.

1. 28 Geo. III, Chap. 6. 2. 31 Geo. III,.Chap. 2. 3. See page 68.

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XLIII. Provided always, and it is declared and enacted by the authority aforesaid, that nothing herein contained shall be construed in any manner to derogate from the rights of the Crown, to erect, constitute and appoint courts of civil or criminal jurisdiction within this Province, and to appoint, from time to time, the Judges and Officers thereof, as his Majesty, his Heirs or Successors shall think necessary or proper for the circumstances of this Province, or to derogate from any other right or prerogative of the Crown whatsoever.1

XLIV. And be it further enacted by the authority aforesaid, that every writ or process, which is or shall be returnable into any of the present courts of Common-Pleas, at any day posterior to the passing of this Act, shall be returned into that court, into which the records, registers and proceedings of the court from whence such writ or process may have issued, are by this Act directed to be transmitted; and every such writ or process shall be held and considered to be returnable on the first day of the Term, as by this Act established, next following the day on which such writ or process is or shall be returnable into any of the courts of Common-Pleas.

1. Regarding this Section, Mr Monk observes ” A clause hastily added to the Bill, by a warm advocate for the Crown, without knowing there to be a necessity, or its extent or meaning. It may produce a benefit. It cannot injure.” (Canadian Archives, Q 69, pt. 2, page 287.)

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AN ACT ESTABLISHING A COURT OF KING’S BENCH IN UPPER CANADA.

THIRTY-FOUR GEORGE THE THIRD.

CHAPTER II.1

AN ACT TO ESTABLISH A SUPERIOR COURT OF CIVIL AND CRIMINAL JURISDICTION, AND TO REGULATE THE COURT OF APPEAL.

[9th July, 1794.]

FOR the general and regular administration of justice throughout this Province; Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the legislative council and assembly of the Province of Upper-Canada, constituted and assem-

1. From The Statutes of His Majesty’s Province of Upper Canada, edition of 1802. 2. Between the years 1791 and 1794 the Province of Upper Canada was not without a system of courts. That portion of Quebec which became Upper Canada had been divided in 1788 into four judicial districts which had subsequently been changed in name. The District of Lunenburg became the Eastern District; Mecklenburg, the Midland District; Nassau, the Home District, and Hesse the Western District. Courts of Common Pleas and of Quarter Sessions had been established within each of these districts, while the Constitutional Act constituted the Governor and Executive Council a Court of Appeal for the Province. (See Constitutional Documents, 1759-1791, Shortt and Doughty, pages 651 and 102.) In 1792, a Provincial Statute created a Court of Requests in which two or more justices of the peace determined causes for the recovery of debts not exceeding the sum of forty shillings. In the following year the Governor, Lieutenant Governor or person administering the government, together with such persons as he should associate with him, were constituted a Court of Probate for the Province and the Governor or his representative was authorized to form within each of the districts of the Province a Surrogate Court for the purpose of granting probate of wills and letters of administration. Regarding the Courts of Common Pleas, Lieut.-Governor Simone, writing to Mr. D ndas, August 2, 1791, observed that, ” It was with difficulty that persons could be obtained to accept the office of Judge. In the Eastern District the Duty was discharged by Country Gentlemen. In the Western as characters of this Description were not to be obtained the appointment was offered to some respectable Merchants, but they excused themselves from the consciencious plea, that it was impossible any cause could come before them in which they should not be mediately or immediately interested. In the Home & Midland districts recourse was had from necessity among others to Gentlemen concerned in Commerce both as Principals & Agents who might with greater propriety have availed themselves of a similar excuse, but in a still more extensive line, not being actuated by the like scruples, accepted the office & till the first meeting of the Legislature decided every cause without even the Intervention of a Jury.” (The Canadian Archives, Q 280, pt. 1, page 250.) In 1792, plans were considered for the reform of the judicial systems of the various North American colonies, (see page 110). The existing establishment for Upper Canada is given as Chief Justice £1,000 Two Judges of Common Pleas, each, £500 1,000 Attorney General 300 £2,300

Solicitor General not necessary, none appointed. Mr. Dundas observes that ” This establishment seems to require no other alteration, it being the intention of Chief Justice Osgoode to preside in the Court of Common Pleas. And Lieut. Governor Simcoe may be instructed to propose a Bill for making the said Court Co-extensive as to its Jurisdiction with the Conits at Quebec and Montreal.” (The Canadian Archives, Q 57, pt. 2, page 360.)

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bled by virtue of and under the authority of an Act passed in the parliament of Great Britain, 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,” and by the authority of the same, That there be constituted and established, and there is hereby constituted and established a court of law, to be called and known by the name and style of his Majesty’s Court of King’s Bench, for the Province of Upper-Canada, which shall be a court of record of original jurisdiction, and shall possess all such powers and authorities as by the law of England are incident to a superior court of civil and criminal jurisdiction, and may and shall hold plea in all, and all manner of actions, causes or suits, as well criminal as civil, real, personal and mixed, arising, happening or being within the said Province, and may and shall proceed in such actions, causes or suits by such process and course, as shall tend with justice and dispatch, to determine the same, and may, and shall hear and determine all issues of law, and shall also hear, and by and with an inquest of good and lawful men,1 determine all issues of fact that may be joined in any such action cause or suit, as aforesaid, and judgment thereon give, and execution thereof award, in as full and ample a manner as can or may be done in his Majesty’s courts of king’s bench, common bench, or in matters which regard the king’s revenue by the court of exchequer in England. And that his Majesty’s chief justice of this Province, together with two puisne justices, shall preside in the said court, which court shall be holden in a place certain, that is, in the city, town, or place the governor or lieutenant governor shall usually reside; and until such place be fixed, the said court shall be holden at the last place of meeting of the legislative council and assembly.3

II. And in order that certain stated times be fixed for the sitting of the court, be it enacted by the authority aforesaid, That four periods»of session or terms be appointed in each year, successively, to be known by the names of Hilary, Easter, Trinity, and Michaelmas term. That the Hilary do commence on the third Monday in January, and end on the Saturday of the ensuing week. That Easter term do commence on Monday next after the sixteenth day of April, and end on the Saturday of the ensuing week. That the Trinity term do commence on the third Monday in July, and end on

1. An Act passed in this same year (Chap. I) authorized the Court of King’s Bench on motion to order a special jury to be struck for the trial of any issue. This Act was repealed by the Statute 48 Geo. III , chap. XIII, which empowered His Majesty to obtain a special jury in any cause without any motion in court. 2. It will be observed that the jurisdiction of the Court of King’s Bench of Upper Canada was confined to that of the common law courts of England. No opportunity was permitted to apply the equitable doctrines then being administered by the Lord Chancellor and the Master of the Rolls in England. This limitation was early felt to be a hardship and as early as 1802 a demand was made for the establishment of a court of equity. (See page 294). 3. In 1795, special provision was made for the holding of the Sessions of the Court of King’s Bench in the town of Newark for the two years next ensuing. At the end of this period the original Act of 1794 came into force and with the change in the seat of government the Courts likewise moved to York.

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the Saturday of the ensuing week: and that the Michaelmas term do commence on the first Monday in October,1 and end on the Saturday next ensuing: and that the first and last days of every term, and every alternate day from the first, not including Sunday, be return days.

III. Provided always, and be it hereby further Enacted, That when the court shall have good reason to believe, there will not be sufficient business to require their daily attendance throughout the term, they may be at liberty to adjourn the court on any return day, to the next immediate return day.

IV. And be it further Enacted by the Authority aforesaid, That all writs to be sued out of the said court, shall issue in the King’s name, and be tested by the Chief Justice, or in his absence, by the senior Judge of the court, and be returnable on some return day in term time, and that not less than fifteen days inclusive, shall always intervene between the teste and return of the first process that shall be directed to the Sheriff of the Home district, or the district in which the court shall be holden, and that not less than forty days inclusive, shall always intervene between the teste and return of the first process into every other district.2

V. And be it further Enacted by the Authority aforesaid, That the original and first process of the said court, shall be by writ of Capias ad respondendum3; and in order that the defendant or de fendants may be immediately apprized of the cause of complaint against him or them, the said writ shall state the form of action, and refer to the declaration which shall always be annexed to, and served with the writ; and for that purpose it is hereby further enacted, That no process shall issue at the suit of any plaintiff, where the defendant is not to be holden to special bail, until the declaration on which it may be founded shall be filed in the office.

VI. And be it further Enacted by the Authority aforesaid, That no person shall be arrested or holden to special bail, upon any process issuing out of the said court in a civil suit, unless an affidavit be first made by the plaintiff, that the defendant is justly and truly indebted to him, in a sum certain, which together with the account for which it became due, shall be specified, and also that the deponent verily believes the defendant is about to leave the Province, with an intent to defraud his creditors,* which affidavit may be made before any Judge or Commissioner of the Court, authorized to take affidavits as hereinafter is provided, or else before the officer who shall issue such process, or his deputy, which oath the said officer or his deputy are hereby authorized to administer; and for such

1. The times at which the various terms commenced was altered by 37 Geo. III , c. IV, s. 3. 2. Several important changes in procedure were made in 1797 and again in 1801. The Act 37 Geo. III , c. IV, limited the time for the return of the first process to fifteen days in all the districts of the Province, while the Act 41 Geo. III , c. IX. made it possible to issue writs and transact all proceedings before final judgment in the office of the clerk of the Crown and Pleas within each district. 3. In cases in which special bail was not required the original process was changed in 1797 to a writ of summons. 4. Experience proved that the provision here contained did not prevent debtors from absconding and it was accordingly amended in 1798, so as to make it sufficient that the affidavit, besides stating the cause of action, should also state ” that the deponent is apprehensive that the defendant will leave the Province without paying his debts.” (37 Geo. III, o. VI, s. I.)

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afiidavit one shilling shall be paid and no more; and the sum or sums specified in such affidavit, shall be indorsed on the back of the writ, or process, for which sum or sums the sheriff or other officer to whom such writ or process shall be directed shall take bail, and for no more.

VII. And whereas by reason of the present want of a certain and Teady communication throughout the Province, it may be practicable for fraudulent persons to escape from their creditors, before process can be obtained from the said court to prevent them, be it therefore enacted by the authority aforesaid, That it shall and may be lawful for any plaintiff having made such affidavit as aforesaid, to sue out from the clerk of the peace, in each and every district, a writ of capias ad respondendum, with which the said clerk shall, from time to time be supplied, signed by the proper officer of the court, on which shall be indorsed the amount of the sum sworn to, and to which the said affidavit shall be annexed; whereupon it shall and may be lawful for the sheriff to arrest the said defendant and hold him to special bail, to the amount of the sum endorsed.

VIII. And be it further Enacted by the Authority aforesaid, That in all civil suits where the defendant shall not be holden to bail, by reason of such affidavit as aforesaid, the ordinary course of proceeding shall be by serving or causing the defendant or defendants personally to be served with a copy of the process and declaration, by some literate person; and if such defendant or defendants shall not appear at the return of the process, or within eight days after such return, in such case it shall and may be lawful for the plaintiff or plaintiffs, upon affidavit being made and filed of the personal service of such process and declaration, which affidavit shall be filed gratis, to enter a common appearance for the defendant or defendants, and to proceed thereon, as if such defendant or defendants had entered his, her or their appearance.

IX. And be it further Enacted by the Authority aforesaid, That upon every copy of such process, to be served upon any defendant, shall be written a notice in the English tongue, to such defendant of the intent and meaning of such service to the effect following:

” A. B. You are served with this process, to the intent that you may, either in person or by your attorney, appear in his Majesty’s court of King’s Bench, at the return thereof, being the day of in order to your defence in this action.”

And when any party, defendant, is a Canadian subject by treaty, or the son or daughter of such Canadian subject, the like notice shall be written in the French language.

” A. B. Il vous est enjoint et ordonné de comparôitre personnellement ou par procureur a la cour du banc du roy a l’expiration de ce writ qui fera le jour pour répondre a cette action.”

X. And be it further Enacted by the Authority aforesaid, That it shall and may be lawful for each and every defendant personally to attend and enter his, her or their appearance at the office, on or before the day at which the process or writ shall be returnable, or to authorize any person to enter an appearance for him, her or them:

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and that in all actions or suits where the defendant or defendants have entered, or caused such appearance to be entered, the plaintiff or his attorney shall, by a demand in writing, call for a plea ; and in all actions or suits where the defendant or defendants live within the Home district, or the district in which the court shall be holden, four days shall be allowed after such demand, as the ordinary time within which they shall be required to file their plea to the action; and in all actions or suits where the defendant or defendants reside without the limits of the Home district or district in which the court shall be holden, eight days shall be allowed after such demand, as the ordinary time within which they shall be required to file their plea, and if after the expiration of such times respectively, no plea be filed, it shall and may be lawful for the plaintiff or plaintiffs or his attorney to sign judgment in the cause.

XL And be it further Enacted by the Authority aforesaid, That in all actions or suits, where the defendant or defendants, having been served with a copy of process, with such written notice as aforesaid, shall neglect to enter their appearance at the return of the writ, it shall and may be lawful for the plaintiff or plaintiffs, having entered such appearance for the said defendant or defendants, as aforesaid, at the expiration of eight days after having entered such appearance, to sign judgment in the cause, without any demand of a plea.1

XII. And be it further Enacted by the Authority aforesaid, That the first and last days of all periods of time limited by this act, or hereafter to be limited by any rules or orders of court, for the regulation of practice, be inclusive.

XIII. And be it further Enacted by the Authority aforesaid, That the form of proceeding in the said court shall be by a course of pleading, to issue in the most compendious manner; and that in all actions founded on a common undertaking, the following form of declaration may be adopted.—A, B. complains of C. D. late of Por that whereas the said C. D. on the day of at was indebted to the said A. B. in the sum of (the consideration advanced) and being so indebted, he the said C.D. then and there undertook and faithfully promised the said A.B. to pay him the said sum, when he the said CD. should be requested, and though since requested, doth now refuse so to do, to the said A.B. his damage of £ who therefore brings his suit.

XIV. And be it further Enacted by the Authority aforesaid, That each and every of the statutes of jeofails; and each and every of the statutes of limitations, and each and every of the statutes for the amendment of the law, excepting those of mere local expediency, which from time to time have been provided and enacted, respecting the law of England, be adopted and declared to be valid and effectual for the same purposes in this Province.2

XV. And in order to discourage vexatious suits, and to prevent additional charges upon any defendant or defendants, who may

1. The procedure in such instances was further defined by 37 Geo. III, c. IV, s. 5. 2. The extent to which the provisions of the statutes here mentioned are applicable in the Province of Ontario is set forth in the E.S.O. (1897 c. III, s. 8.

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be willing to pay the sum which he or they admit to be justly due, Be it enacted, that in all cases where the sum demanded by any plaintiff or plaintiffs is a sum certain, or is capable of being ascertained by computation of numbers, it shall and may be lawful for any defendant or defendants, to move that he or they may be at liberty to pay into court such sum as he or they shall propose to pay in full discharge of the said demand; whereupon the court may order a rule to be drawn up to such effect, or in time of vacation, such order may be made by a judge of the court, and in case the pjaintiff shall be willing to accept, and shall accept the same, together with all costs accruing to that time, to be taxed by the proper officer, the same shall be in full satisfaction of such his demand, and all further proceedings in the said action shall cease ; and to the end that every plaintiff or his attorney may know of such proceeding, the defendant or defendants shall, and are hereby required to serve a copy of the rule authorizing such payment to be made, upon the plaintiff or his attorney, at the time of filing his plea of the general issue, to such plaintiff’s declaration.

XVI. Provided always, That upon payment of money into court, it shall and may be lawful for the officer receiving the same, to demand, and take a sum not exceeding twenty shillings, for every hundred pounds so paid into court, and at, and after the same rate and proportion, for every sum of money so paid, and also to demand and take the sum of one shilling for every receipt by him given on account of money so paid in as aforesaid.

XVII. And for the more convenient administration of justice throughout the Province, Be it enacted, that it shall and may be lawful for the governor, lieutenant governor, or person administering the government of this Province, to issue yearly and every year, in the vacation between the Trinity and Michaelmas terms, such commissions of assize and nisi prius, into the several districts, as may be necessary for the purpose of trying all issues joined in the said court, in any suit or action arising in the said districts respectively; and that when a suitable communication by land shall be opened from the city, town or place, which shall be the seat of government, into the respective districts, and the circumstances of the Province may require it, it shall and may be lawful for the governor, lieutenant governor, or person administering the government, likewise to issue yearly and every year in the vacation, between the Hilary and Easter terms, such commissions of assize and nisi prius into each of ” the several districts, as may be necessary for the trial of all issues joined in manner aforesaid; and to that end, it shall and may be lawful for any person or persons upon reasonable notice given to the adverse party, or their attorney, to take and sue forth such writs and records of nisi prius, as may be necessary for the trial of all issues joined in the said court as may be triable in the respective districts of- this Province, and thereupon sue out their jury process in such manner and form, and with such awards, as is practised in the courts of nisi prius in England.

XVIII. Provided always, That nothing herein contained shall or be construed to prevent the governor, lieutenant governor, or person administering the government of this Province, from issuing a special commission or commissions for the trial of one or

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more offender or offenders upon extraordinary occasions, when he shall deem it requisite or expedient that such commission should issue.

XIX. And be it further Enacted by the Authority aforesaid, That upon all issues joined in the said court in any suit or action which shall arise or be triable within the Home district, or in the district where the court shall be holden, the clref justice, or in his absence, any other judge of the said court, shall, as justice of nisi prius for the said district, at their discretion, either in term time, or within ten days next after the end of every Easter and Trinity term, respectively, try all manner of issues joined in the said court, which ought to be tried by an inquest of the said district, and that commissions and writs of nisi prius shall be for that purpose from time to time awarded ; and it shall and may be lawful for any person or persons, upon reasonable notice as herein after set forth, given to the adverse party or their attorney, to take and sue forth such writs and records of nisi prius as may be necessary, for the trial of such issues as aforesaid.

XX. And be it further Enacted by the Authority aforesaid, That the sheriffs of the several districts shall, and they are hereby requiied to make return of all writs of nisi prius which shall be delivered to them, or their sufficient deputy; before the said chief justice, and every other judge wno shall be assigned to execute such commissions of assize and nisi prius, and shall give their attendance upon the said chief justice, and each other justice, as well for the returning of such tales de circumstantibus as shall be prayed for the trial of such issues, as for the maintenance of good order in the king’s court, and for the doing and executing of all other things to the office of sheriff in such case belonging and appertaining.

XXI. And be it further Enacted by the Authority aforesaid, That no indictment, information or cause whatsoever, shall be tried at nisi prius, before any judge or justice of assize or nisi prius, or at the sittings for the Home district, or district where the said court shall be holden, unless notice of trial, in writing, has been given at least eight days before such intended trial; and in case any party or parties shall have given such notice of trial as aforesaid, and shall not afterwards duly countermand the same, in writing, at least four days before such intended trial, every such party shall, upon neglect of bringing such issue to trial, be obliged to pay unto the party or parties to whom such notice of trial shall have been given, as aforesaid, the like costs and charges as if such trial had not been countermanded.

XXII. And be it further Enacted by the Authority aforesaid, That no indictment, information or cause whatsoever, shall be tued at nisi prius before any judge or justice of assize or nisi prius, in any district, other than the Home district, or district where the court shall be holden, unless notice of trial has been given, at least twenty days before such intended trial; and in case any party or parties shall have given such notice of trial as aforesaid, and shall not afterwards duly countermand the same, in writing, at least fourteen days before such intended trial, every such party shall, upon neglect of bringing such issue to trial, be obliged to pay unto the party or parties to whom such notice of trial shall have been given as aforesaid, the like costs and charges as if such trial had not been countermanded.

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XXIII. And whereas it may in many cases be desirable for the furtherance of justice to obtain the depositions of witnesses in civil suits, which cannot be had by the ordinary process of subpoena, Be it enacted by the authority aforesaid, That where the cause of action arises without the jurisdiction of the court, it shall and may be lawful on special application for that purpose made, to issue a commission under the seal of the court, to take the examination of witnesses residing without the limits of the Province, due notice being given to the adverse party, to the end that he, she or they, may cause such witnesses to be cross-examined, and also that when the testimony of any aged or infirm person, or of any person about to depart the Province may be required, it shall and may be lawful for the said court to issue a commission, in like manner, for the examination of such aged or infirm person, or of any person about to depart the Province, due notice being given to the adverse party for the purposes aforesaid.

XXIV. Provided always, and be it further Enacted, That the examination of such aged or infirm person so taken, shall not be admitted or read at the trial of any issue, in case he or she be living at the time of the trial, and that the examination of such person about to depart the Province, so taken, shall not be admitted or read at the trial of any issue, in case he or she shall be in the Province at the time of such trial.

XXV. And be it further Enacted by the authority aforesaid, That the allowance of costs to either party, plaintiff or détendant, in all civil suits and penal actions, be regulated by the statutes and usages which direct the payment of costs, by the laws of England.

XXVI. And be it further Enacted, That the Chief Justice and other the Justices of the said court of King’s Bench, for the time being, or any two of them, whereof the Chief Justice for the time being to be one, shall, and may by one or more commission or commissions, under the seal of the said court, from time to time, as need shall require, empower what, and as many persons as they shall think fit and necessary, in all the seveTal districts within this Province, to take and receive all and every such affidavit and affidavits as any person or persons shall be willing and desirous to make before any of the persons so empowered, in or concerning any cause, matter or thing depending, or hereafter to be depending, or in any wise concerning any of the proceedings to be in the said respective courts, and that it shall and may be lawful for any judge of assize, in his circuit, to take and receive any affidavit or affidavits as any person or oersons shall be willing and desirous to make before him, in or concerning any cause, matter or thing depending or hereafter to be depending, or in any wise concerning any proceedings to be had in the said court of King’s Bench, which said affidavits, taken as aforesaid, shall be filed in the office of the said court, and there be read and made use of in the said court, to all intents and purposes as other affidavits, taken in the said courts ought to be, and that all and every affidavit and affidavits, taken as aforesaid, shall be of the same force as affidavits taken in the said court shall and may be; and all and every person or persons forswearing him, her, or them- selves, in such affidavit or affidavits, shall incur and be liable unto the same pains and penalties as if such affidavit or affidavits had been made and taken in open court.

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Provided always, That for the taking of every such affidavit, the person or persons so empowered and taking the same, shall, for so doing, receive only the sum or fee of twelve pence and no more.

XXVII. And be it further Enacted by the Authority aforesaid, That the chief justice for the time being, and other the justices of the said court of king’s bench, or any two of them, whereof the said chief justice shall be one, shall, or may by one or more commission or commissions, under the seal of the said court, from time to time, as need shall require, empower such and so many persons as they shall think fit and necessary, in all and every the several districts of this Province, to take and receive all and every recognizance or recognizances of bail or bails, as any person or persons shall be willing or desirous to acknowledge, or make before any of the persons so empowered, in any action or suit depending, or hereafter to be depending in the said court, in such manner and form, and by such recognizance or bail as the justices of the said court may hereafter take, or may think fit; which said recognizance or recognizances of bail, or bail-piece, so taken as aforesaid, shall be transmitted to any one of the justices of the said court, who upon affidavit made of the due taking of the recognizance of such bail, or bailpiece, by some credible person, present at the taking thereof, such justice shall receive the same; which recognizance of bail, or bailpiece, so taken and transmitted, shall be of the like effect as if the same were taken de bene esse, before any of the said justices; for the taking of which recognizance or recognizances of bail, or bailpiece, the person or persons so empowered, shall receive only the sum or fee of two shillings, and no more.

XXVIII. And be it further Enacted, That the justices, respectively, shall make such rules and orders for the justifying of such bails, and making of the same absolute, as to them shall seem meet, so as the cognizor or cognizors of such bail or bails be not compelled to appear in person in the said court, to justify him or themselves; but the same may, and is hereby directed to be determined by affidavit or affidavits, duly taken before the said commissioners, who are hereby empowered and required to take the same, and also to be examined by the justices upon oath, touching the value of their respective estates.

XXIX. And be it further Enacted, That any judge of assize, in his circuit, shall and may take and receive all and every such recognizance or recognizances of bail or bails, as any person shall be willing and desirous to make and acknowledge before him, which being transmitted in like manner as aforesaid, shall, without oath be received in manner as aforesaid.

XXX. And be it further Enacted, That the several Acts and Ordinances of the governor and council, of the late Province of Quebec, whereby the several courts of common pleas in this Province were constituted, and from time to time continued, be, and each and every of them are hereby repealed.1

XXXI. And be it further Enacted, That all proceedings upon actions, instituted and pending in any of the late courts of common

1. See page 146, note 2, and also sections XXXVIII. to XLII. of the Judicature Act of Lower Canada, page 143

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pleas in this Province, shall forthwith be transmitted into the said court of king’s bench, there to be continued to judgment and execution, as if the same had been commenced in the said court, for which purpose it shall and may be lawful for the governor, lieutenant governor, or person administering the government of this Province, to issue a commission for the trial of all issues that may be joined in any of the said courts in their respective districts, and to direct that the records thereof be returned into the said court of king’s bench.

XXXII. And be it further Enacted, That all and singular the records of the several courts of common pleas for the Eastern district, for the Midland district, for the Home district, and for the Western district of this Province, respectively, shall be transmitted to, and deposited in the said court of king’s bench, and make a part of the records of the said court, for all such purposes as to law and justice may appertain.

XXXIII. And be it further Enacted, That the governor, lieutenant governor, or person administering the government of this Province, or the chief justice of the Province, together with any two or more members of the executive council of the Province, shall compose a court of appeal, for hearing and determining all appeals from such judgments or sentences as may lawfully be brought before them.1

XXXIV. Provided always, and be it further Enacted, That when any person having given the judgment or sentence appealed from, shall be a member of the court of appeal, it shall and may be lawful for him to assign to the said court his reasons for delivering such judgment, in case he shall be so disposed, but he shall not be at liberty to give his vote in the decision of the question, before the court.

XXXV. And be it further Enacted, That an appeal shall lie to the court of the governor and executive council, from all judgments given in the said court of king’s bench, in all cases where the matter in controversy shall exceed the sum of one hundred pounds, or shall relate to the taking of any annual or other rent, customary or other duty, fee, or any other euch like demand, of a general and public nature, affecting future rights, of what value or amount soever the same may be, upon proper security being given by the appellant that he will effectually prosecute his appeal and answer the condemnation, and also pay such costs and damages as shall be awarded in case the judgment or sentence appealed from shall be affirmed, and that upon the perfecting such security, execution shall be stayed in the original cause.

XXXVI. And be it further Enacted by the Authority aforesaid, That the judgment of the said court of appeal shall be final, in all cases where the matter in controversy shall not exceed the sum or value of five hundred pounds sterling, but in cases exceeding that amount, as well as in all cases, where the matter in question shall

1. For the constitution of the Court of Appeal of Lower Canada, see page 14, The constitution of the previously existing Court of Appeal is to be found in Section XXXIV of the Constitutional Act.

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relate to the taking of any annual or other rent, customary or other duty, or fee, or any other such like demand of a general and public nature, affecting future rights, of what value or amount soever the same may be, an appeal may lie to his Majesty, in his privy council, upon proper security being given by the appellant that he will effectually prosecute his appeal, and answer the condemnation, and also pay such costs and damages as shall be awarded by his Majesty, in his privy council, in ease the judgment of the said court of governor and executive council, or court of appeals shall be affirmed: and upon the perfecting of such security, execution of the said judgment shall be stayed, until the final determination of such appeal to the King in council.

Provided always, and be it further Enacted, That in time of actual war, and when there may be reason to suspect an invasion of the Province from the King’s enemies, it shall and may be lawful for the governor, lieutenant governor, or person administering the government, by and with the advice and consent of the executive council, to issue his proclamation to remove the place of holding the said court, and to appoint and make known such other place, within the limits of the Province, as shall be deemed most safe and convenient for holding the same.

XXXVII. And be it further Enacted by the Authority aforesaid, That it shall and may be lawful for the persons herein after mentioned, to demand and take the following fees, and no more, for the services respectively set forth.

XXXVIII. Provided always, That it shall and may be lawful for his Majesty’s attorney general to demand and receive his fees in the increased proportion of one third, to the following table, to wit:1

s. d. Taking instructions to prcsecute or defend, with warrant of attorney 5 0 For drawing declaration, 5 0 Copy of the same, 2 6 Entérine common appearance with clerk, 10 Pleading general issue, 3 0 Special plea, replication, or other pleading, 10 0 Copy of the same, 3 0 Drawing affidavit 5 0 Notice of trial and all other notices,.. 2 6 Every subpoena 1 0 Every motion of course 5 0 Every special motion, 7 6 Preparing brief of facts 10 0 Arguing demurer 10 0 Fee with brief m matters under £30-10s. above E. erv necessary attendance at the office, or on adverse party, 1 0 Attending to strike special jury, 7 6 Attending taxation of costs, 5 0

Fees to be taken by the Clerk of the King’s Bench in Civil Causes : s. d. For sealing, entering and filing every writ or precipe,.. .. 2 0 For entering appearance 10 Drawing every order or rule of court, 2 0

1. in 1804, this table of fees was abolished and the Court of King’s Bench was authorized to declare the fees to be taken for any process before the court. See 44 Geo. III , c. III. This Act of 1804 was in turn repealed by the 50th of Geo. III , c. IX.

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s. d.

Filing every declaration, plea, demurrer, or any pleading or paper 2 0 Attending and striking of special jury, with copies to each party, 5 0 Every recognizance entered in court 5 0 Drawing every postea and judgment, 13 4 Writ of execution, 5 0 Exemplification and copies of all records, for each sheet containing 72 words, 1 0 Searching records for any one year 10 General search, 2 6 Entering satisfaction on record, 2 6 Writ of execution, possession, restitution, 5 0

MARSHALL.

s. d. Entry of every cause, 2 6 Drawing the jury, 2 6 Entry of verdict 2 6

CRIER.

s. d.

Calling and swearing each jury, 2 0 Calling Plaintiff on nonsuit, 1 0 Proclamation calling any party on recognizance, 1 0

SHERIFF.

s. d.

Serving a writ, 2 6 Arrest, 5 0 Bail Bond, 5 0 Poundage on execution, 0 6 When for a sum exceeding £100 0 3 Service of writ of possession, or restitution, 10 0 Bringing up prisoner by habeas corpus, in civil cause 12 0 Travelling per mile, 0 6 Executing writ of enquiry, summoning jury, and return of inquisition, 10 0 Attending view per diem 15 0

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AN ACT ESTABLISHING DISTRICT COURTS IN UPPER CANADA THIRTY-FOUR GEORGE THE THIRD CHAPTER III.1

AN ACT TO ESTABLISH A COURT FOR THE COGNIZANCE OF SMALL CAUSES IN EACH AND EVERY DISTRICT OF THIS PROVINCE.

FOR the more convenient administration of justice in small causes, in each district of this Province; Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled, by virtue of, and under the authority of an Act passed in the Parliament of Great Britain, 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 Norths America, and to make further provision for the government of the said Province,” and by the authority of the same, That there be constituted and established, and there is hereby constituted and established, in each and every district,2 a court which shall have cognizance in all actions of contract, for sums above forty shillings, not exceeding the sum of fifteen pounds,3 to be known by the name and style of the District Court, of each respective district, and shall be holden by one or more judge or judges, to be appointed by commission, under the great seal of the Province.

II. And for the regular despatch of business, Be it further Enacted, That there be appointed four periods of sitting, or terms for the said court, in each and every year, which terms shall severally commence on the Monday in the week next but one preceding the week in which the Quarter Sessions are respectively holden, in each district, and shall end on the Saturday in the same week, which courts shall be severally holden in the respective town, township or place wherein the court-house for the district is directed to be built,4 excepting in the Western district, where the said court shall be holden in the town of Detroit.5

1. From The Statutes of His Majesty’s Province of Upper Canada, edition of 1802. 2. See page 146. note 2. 8 By the Act 37 Geo. III, chap. VI, the jurisdiction of the District Court was extended from fifteen pounds to forty pounds in actions for the recovery of debt’s where he amount was already ascertained. The court was given cognizance of questions of property in personal chattels where the claim did not exceed fifteen pounds and was also authorized to award damages to the same amount in cases of trespass where titles to lands or future rights were not concerned. 4. The Act 32 Geo. III , chap. 8, fixed the location of the various courthouses. For the Eastern district the courthouse was to be at New- Johnstown, in the Township of Edwardsburg, near the modern town of Prescott, for the Midland district at Kingston, and for the Home district at Newark. 5. The town of Detroit was restored to the United States later in the year 1794. Consequently the part of Article II. relating to the Western district was repealed by the Act of 1796, chap. 4, by which provision was made for the transfer of British administration and judicial offices to the town of Sandwich.

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III. And be it further Enacted by the Authority aforesaid, That the course of proceeding in the said court shall be by summons, issuing in the King’s name, returnable on some day in the said term, and bearing teste in the name of the first judge of the court, which may be in the following form:

DISTRICT to wit

GEORGE the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, and so forth, &c.

To A. B. Greeting.

We command you, that you do either in person or by your attorney appear at our District Court to be holden at on the day of to answer the complaint of C. D. in a plea of contract, whereby you have promised to pay him the sum of £. for (the consideration) and which you refuse to pay him as he says : witness E. F. judge of the said court, this day of in the year

IV. And be it further Enacted, That the said process shall be served on the defendant or defendants by a literate person at least eight days before the return thereof, and in case the said defendant or defendants shall not appear in court either in person, or by attorney, on the return of the process, it shall and may be lawful for the said plaintiff or his attorney, on the day next after such return day, upon affidavit made of the service of such process, to enter an appearance for such defendant or defendants, and on the day next after the entry of such appearance, in case the defendant shall not have appeared and discharged the costs of such entry either in person or by attorney, it shall and may be lawful for the plaintiff to sign judgment, and sue out a writ of inquiry of damages, directed to the sheriff of the district, to be executed on some given day, in the course of the week in which the quarter sessions are holden next ensuing, and returnable the first day of the following term

V. And be it further. Enacted by the Authority aforesaid, That it shall and may be lawful for the defendant or defendants, his or their attorney, to appear on the return day of the writ, and file his plea, on or before the third day after such appearance, which, in case he means to defend the suit and to plead the general issue, may be in the following form; “The said C. D. appears in person or by G. H. his attorney, and says he made no such promise ;” and in default of a plea, upon the third day after such appearance, it and may be lawful for the plaintiff to sign judgment.

VI. Provided always, That where there are mutual debts between plaintiff and defendant, or if either sue or be sued, as executor or administrator, when there are mutual debts between testator and intestate and the other party, one debt may be set against the other, and such matter may be given in evidence on the general issue, so as at the time of pleading the general issue, when any süch debt is to be insisted on in evidence, notice be given of the particular sum or debt so intended to be insisted on, and on what account it became due.

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VII. And be it further Enacted by the Authority aforesaid, That in all cases where the defendant or defendants shall enter, or cause his or their appearance to be entered at the return of the writ, it shall and may be lawful for him or them, on motion made in court, to be supported by affidavit, to apply for further time to put in their plea, which motion the court shall be at liberty to grant, where sufficient cause shall be shewn, and also to impose such terms on the defendant as justice may require.

VIII. And be it further Enacted, That four days notice of trial shall be given to the defendant or defendants of every issue to be joined in the said court, which notice may be lawfully countermanded, provided such countermand be served on the defendant or his attorney two days before the expiration of the notice.

IX. Provided always, and be it further-Enacted, That when the plaintiff having given notice of trial, and not having countermanded the same within the time aforesaid, shall neglect to enter the cause and bring forward the said issue for trial, he shall pay to the defendant or defendants all reasonable costs and charges by him incurred on account of such notice; and in ease the said plaintiff shall not give fresh notice of the trial of the said issue, on or before the third day of the term next ensuing, it shall and may be lawful for the defendant to move for, and the court to give the like judgment as in case of a non-suit.

X. And to the end that the trial of all issues to be joined in the said court, as well as the execution of all writs of inquiry, to be sued out upon judgments obtained by default, as aforesaid, may be had at the most convenient time and place, it shall and may be lawful for the judge presiding in the said court, to issue his precept to the sheriff of the district, at least seven days before the week in which the sessions are holden, requiring him to summon, and the said sheriff shall, and is hereby required upon receipt of such precept, to summon not less than thirty-six, nor more than forty-eight jurors, living within the said district, to be and appear in the town or place where the quarter sessions are usually holden, on the same day on which the said sessions do severally commence to be holden, from whom a jury shall be taken for the trial of each issue, in like manner as directed in all causes to be tried at nisi prius;1 and each person sworn for the trial of any issue joined, shall be intituled to receive six-pence and no more.

XI. And be it Enacted, That in all cases when the verdict of the jurors shall be for the plaintiff, it shall and may be lawful for the plaintiff or his attorney to sign judgment on the third day of the term next after the giving of the said verdict, and to proceed to sue out execution immediately.

XII. Provided always, That when the party defendant shall have any material or just cause to shew why judgment should be arrested, or a new trial had, it shall and may be lawful for him, either in person or by attorney, on the first or second day of the

1. The procedure in the selection of jurors was determined by the Act 34 Geo. III , c. I.

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term, next ensuing the said verdict, to move the court, on grounds to be supported by affidavit, for a rule to shew cause to the effect abovementioned; and in case ‘the court shall see sufficient grounds for the granting of such rule, notice thereof shall be served on the party plaintiff or his attorney, and on hearing the parties, the said rule shall be made absolute or discharged in the course of the said term.

XIII. And be it further Enacted by the Authority aforesaid, That it shall and may be lawful for the persons herein after named to demand and received the following fees and no more, for the service herein after set forth:

ATTORNEY.

s. d. Instructions to sue or defend, 5 0 Declaration, 4 0 Plea, 2 6 Entering appearance by the plaintiff, 2 6 Notice, 1 0 Motion of course, 2 6 Special motion, 5 0 Brief and fee thereon, 10 0

SHERIFF.

s. d. For every jury sworn, 4 0 Every execution, 5 0 Poundage, 2i per cent. Milage, 4 pence per mile.

CLERK.

s. d. For filing declaration, 2 0 For filing each paper, 1 0 Taking verdict, 2 6 Entering postea and judgment, 2 6

CRIER. s. d. For swearing jury, 10

JUDGE. s. d. On every declaration filed, p 2 6 Eule of court on all special motions 5 0 For signing judgment, 10 0

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PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY, LOWER CANADA, ON THE QUESTION OF PRIVILEGE.1

JOURNAL OF ASSEMBLY, WEDNESDAY, 27TH NOVEMBER, 1793.

Mr. Speaker informed the House, that he had received a letter on Monday last, immediately after the adjournment of the House, from John Young2 Esquire a Member thereof, which he now thought proper to communicate to the House for its consideration.

The said letter was then read throughout in both languages by the Clerk at the table.

Ordered, that the same be entered in the Journals.

And the said letter is in the words following:

Quebec, Monday morning, 25th November, 1793.

Mr. Speaker,

At the opening of the present Legislature, you in the name of the House of Assembly claimed such privileges and liberties as are enjoyed by the Commons of Great Britain,3 and His Majesty by his Representative, having recognized the enjoyment of all just rights and lawful privileges, I think it necessary to inform you that on Saturday afternoon the Sheriff of the District of Quebec by one of his Officers whose name I know not, arrested my person upon a Writ of Capias ad respondendum sued out of the Court of Common Pleas on the 23d instant by James Hunt of Quebec, Ironmonger, upon a declaration signed by J. A. Panet4 Advocate.

1. From the Journal of the House of Assembly for Lower Canada, for the year 1793. 2. Mr. John Young was a prominent merchant in the city of Quebec. He was elected to the first Assembly of Lower Canada for the Lower Town of Quebec, and was returned to the three succeeding Parliaments. In 1794, he was appointed an honorary member of the Executive Council and in 1808 was admitted as a regular member of the Council. He was selected by Sir Robert Milnes in 1799 as chairman of a commission for the regulation of pilots and was instrumental in securing the incorporation of the Trinity House of Quebec of which he became the first Master m 1805. From 1814 until 1817, Mr. Young was absent from the country. On his return he resumed his duties as a member of the Executive Council and served as chairman of the committee for auditing the public accounts of the Province. He died September 14, 1819. 3. Immediately after his election as speaker of the House of Assembly had been approved by the Lieutenant Governor, Mr. Panet laid claim, on behalf of the Assembly, to ” the freedom of speech, and generally all the like privileges and liberties as are enjoyed by the Commons of Great Britain our Mother Country.” To this request the Lieutenant Governor replied ” the House may depend on being allowed the full exercise and enjoyment of all just Rights and Lawful Privileges.” (Journals of Assembly, Lower Canada, 1792, pages 20 and 22). From the beginning the representative of the Crown was careful to guard against admitting the right of the House of Assembly to exercise the same privileges as were enjoyed by the House of Commons. The opinion of the Law Officers of the Crown on the privileges of a colonial legislature may be found at page 480. 4. J. A. Panet, one of the leading advocates of Quebec, was elected to represent the Upper Town in the first Legislature, and on the assembling of Parliament was chosen Speaker of the House. In January, 1794, he was appointed a justice of the Court of Common Pleas and though continuing as a member of the House of Assembly, resigned from the office of Speaker. When, under the new judicial system it was decided that Mr. Panet should be transferred to the court of King’s Bench for the district of Montreal he declined the appointment and retired from the Bench. He was re-elected to the second Parliament and again chosen Speaker, a position which he filled until the close of the seventh Parliament in 1814. In 1812, he declined the offer of the office of Advocate General of the Province which had been tendered him by Sir George Prévost. in January, 1815, he was called to the Legislative Council. He died at Quebec in May of the same year.

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As a private individual and a Merchant it is of no moment to me, who they are, that shall think proper in that way to bring an action at Law on any of my transactions, and as was my duty I submitted to the arrest and gave bail, but in my public character as a Member of the House of Assembly, it is also my duty to inform the House of this contempt and infraction of their privileges.

The immediate departure of the ship in which I have taken my passage under leave from the House, prevents me from doing so in my place, as was my intention; and I have therefore to request of you to lay this information before the House, in •whose hands according to the Constitution is lodged the vindication of their own rights, that the House may have a knowledge of the insult offered to them through me, and be enabled to take such measures as they shall see expedient to punish such a violation of their Constitutional privileges.

I have the honor to be Sir, your most obedient and most humble Servt. JOHN YOUNG.

J. A. Panet, Esquire, Speaker of the House of Assembly.

Upon motion of Mr. Richardson, seconded by Mr. Lester, Ordered, that the House do now resolve itself into a Committee of privileges of the whole House, to take into consideration the letter of John Young Esquire, a Member of this House, to Mr. Speaker by him just communicated.

Resolved, in concurrence with the Committee of the whole House that a Committee be named of nine Members, three of whom to form a Quorum, with power to send for such persons and papers as they may find necessary; to search in the Journals of the Commons of Great Britain, for cases as similar as possible to the present question of arrest, upon a Writ of Capias ad respondendum by the Sheriffs Officer of the District of Quebec of the person of John Young Esquire, one of the Members of the Assembly of the Province of Lower Canada; and also to report their opinion on the complaint of a breach of the privileges of the House in the person of the said John Young Esquire, as stated in his letter dated the 25th November instant, addressed to J, A. Panet Esquire, Speaker of the House of Assembly, and referred to the consideration of the Committee of the whole House.

JOURNAL OF ASSEMBLY, WEDNESDAY, 18 DECEMBER, 1793.

Mr. Coffin, Chairman of the Select Committee to whom it was referred, to searchin the Journals of the Commons of Great Britain, for cases as similar as possible to the arrest upon a Writ of Capias ad respondendum by the Sheriffs officer of the District of Quebec of the person of John Young, Esq. one of the Members of this Assembly, and report the same to the House—And also to report their opinion on a complaint of a breach of the privileges of the House, in the person of the said John Young, Esq, reported that the Committee had carefully examined, and maturely considered the matter in reference, had selected some eases from the Journals of the House of Commons of Great Britain, and after due deliberation upon the whole, had come to several resolutions thereon, which he was ready to report to the House when it should be pleased to reeeive the same.

Ordered, that the report be now received.

And he read the report in his place in both languages, and having delivered in the same at the table, it was again read once throughout in French and in English by the Clerk.

The Resolutions contained in the said Report are as followeth:

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Resolved, that it 4s the opinion of this Committee, that the person of John Young, Esq. a Member of Assembly, was arrested on the 23d day of November last, in direct violation of the undoubted rights and privileges of this House.1

Resolved, that it is the opinion of this Committee, that James Hunt of Quebec, Ironmonger, by instituting a suit whereby the person of John Young, Esquire, a Member of Assembly, was arrested on the twentythird day of November last; is thereby guilty of a breach of the privileges of this House.2

Resolved, that it is the opinion of this Committee that J. A. Panet, Esquire, of Quebec, Advocate, Speaker of the House of Assembly, by suing out as Advocate for the said James Hunt, the Writ by virtue of which the person of John Young, Esquire, a Member of Assembly, was arrested on the twenty-third day of November3 last, is thereby guilty of a breach of the privileges of this House.

Resolved, that it is the opinion of this Committee, that James Shepherd Esquire, Sheriff of the District of Quebec, in having given a deputation to Phillip Hooper, Bailiff, whereby the body of John Young, Esquire, a Member of Assembly, was arrested, and then brought before him the twenty-third day of November last, when the said John Young, Esquire, was held to bail, and which still continues undischarged; is thereby guilty of a breach of the privileges of this House.

Resolved, that it is the opinion of this Committee, that Phillip Hooper Bailiff in serving the Writ whereby the person of John Young, Esquire, a Member of Assembly was arrested on the twenty-third day of November last; is thereby guilty of a breach of the privileges of this House.4

JOURNAL OF ASSEMBLY, THURSDAY, 9TH JANUARY, 1794.

Mr. Speaker put the following question to the House.—” Whether it be the pleasure of this Honorable House that he be permitted to declare and cause to be inserted in the Journals, his Apology and Submission to the said resolution of this House, concerning the arrest of John Young, Esq.?”

Which passing unanimously in the affirmative, Mr. Speaker read the following declaration in both languages, videlicet.

As the Honorable House have judged necessary to resolve, that I am guilty of a breach of its privileges in regard to the arrest of John Young, Esquire, one of its Members, I consider it to be my duty to submit personally to the resolution of the majority of this House; and at same time to express with candour, what I have voluntarily said and repeated in the Committee and in the House, that I had not any intention in the charge I undertook as Advocate for James Hunt, in the action which he instituted against John Young, Esquire, to infringe or violate the privileges of thia House, but that I conceived in the month of November last that the Laws of this Country authorised the arrest. I yesterday offered to explain myself to this House more clearly on what then induced me to act as an Advocate, but that being dispensed with, I hope this Honorable House will accept this apology and excuse me, if in the commencement of such a Constitution as ours, my opinions in Law as an Advocate have not had the good fortune to meet those of the majority of this Honorable House;

1. The consideration of the report of the Select Committee was referred to a committee of the whole House which reported January 7th, 1794. The House of Assembly concurred in the fiTst resolution by a vote of 19 to 8. 2. On the 8th of January, the House concurred in the second resolution by a vote of 18 to 12. 3. The third resolution caused a long debate. The Speaker was refused permission to declare or to insert in the Journals of the House the motives which induced him to act as advocate for Mr. Hunt in his suit against Mr. Young. The resolution of the committee was then adopted by a vote of 15 to 12. (See Journals of Assembly, January 8th, pp. 88 to 92.) 4. The fourth and fifth resolutions of the Select Committee were defeated by one vote in the committee of the whole House. They were, however, brought before the Assembly and were adopted on a division of 14 to 11. (Journals of Assembly, p. 92.)

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the error was involuntary, it is established by the resolution of this House, I submit to its resolve, and as a further proof of which, I declare, that this morning I filed m the Court of Common pleas of Quebec a petition, of which I now produce a Copy, to have leave to desist from prosecuting as Advocate the Cause in Court, until that the arrest of John Young, Esquire, or his Special Bail be discharged.

(Signed) J. A. PANET.

9th January, 1794.

Upon motion of Mr. De Bonne, seconded by Mr, Lester, Resolved, that the apology and declaration just made by Mr. Speaker are sufficic nt and satisfactory to this House, and that in consequence no further proceedings be taken on the third resolution of this House which concerns him.

JOURNAL OF ASSEMBLY, FRIDAY, IOTH JANUARY, 1794.

Ordered, that James Hunt, of the city of Quebec Ironmonger be, (for the breach by him committed of the privileges of this House, in instituting a suit whereby the person of John Young, Esquire, a Member of Assembly was arrested on the twentythird day of November last) taken into the custody of the Serjeant at Arms attending this House, there to remain till he has caused the Bail given by the said John Young, Esquire, in the aforesaid suit to be discharged; and further, till he has made satisfaction to this House for the said Breach of the Privileges thereof : and that Mr. Speaker do issue his Warrant accordingly.

JOURNAL OF ASSEMBLY, MONDAY, 13TH JANUARY, 1794.

Ordered, that James Shepherd Esquire be informed by the Serjeant at Arms, without the Mace, that he may present, himself at the Bar of this House; where standing up, and the Assembly in silence, the Mace upon the table, Mr. Speaker shall tell Mr. Shepherd that the House having been informed that he desired to be admitted to make his apology, the House had ordered him to be admitted according to his desire, and were ready to hear him now: Mr, Shepherd having finished his apology, Mr. Speaker will tell him that he may retire.

* * * * * * * * *

Mr. Shepherd having apologized, Mr. Speaker told him that he might retire—and being retired.

* * * * * * * * *

Resolved, that James Shepherd, Esquire, Sheriff of the District of Quebec, has made satisfaction to this House for the breach of the Privileges thereof by him committed; and that no further proceedings be had on the resolution regarding him.1

1. On the following day a similar resolution was passed concerning Philip Hooper Bailiff, who had previously made his apology before the House.

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RIGHT TO ORIGINATE LEGISLATION INFLICTING PECUNIARY PENALTIES, LOWER CANADA.

JOURNAL OF ASSEMBLY, FRIDAY, 5TH APRIL, 1793.

Mr. Grant moved that the Bill intitled “An Act to provide Returning Officers on Writs of Election for Knights, Citizens, and Burgesses in Assembly,”1 be now read the second time.

Seconded by Mr. McBeath.

Agreed to unanimously, and the same was read a second time in english, with a translation thereof in french.

Then Mr. Lees moved, that the Bill from the Honorable the Legislative Council now read, entitled ” An Act to provide Returning Officers on Writs of Election for “Knights, Citizens and Burgesses in Assembly” be laid aside., as h, tends to lay a charge on the people (by imposing pecuniary penalties) it being a privilege inherent to this House that Bills of that nature ought to be first considered here. Seconded by Mr. De Rocheblave.

Debates ensued, and

* * * * * * * * *

It was accordingly

ORDERED, that the Bill from the Honorable the Legislative Council now read, entitled “An Act to provide Returning Officers on Writs of Election for Knights, ” Citizens and Burgesses in Assembly ” be laid aside, as it tends to lay a charge on the people, (by imposing pecuniary penalties) it being the privilege of this House, that Bills of that nature ought to be first considered here.

JOURNAL OF THE LEGISLATIVE COUNCIL.2

33 Georgii III. 1793.

Saturday, 27th April.

The House adjourned during pleasure and was put into committee of the Whole House upon the Bill entitled “An Act to provide Returning Officers for Knights, ” Citizens and Burgesses to serve in Assembly.”

After some time the House was resumed and Mr Finlay reported from the Committee of the Whole House That the Committee perceive nothing exceptionable in the Matter of the Bill which is similar to a part of a Bill for like purposes early in the Session sent down from this House to the Assembly.

That the Committee are at a loss for the motives of that House for originating a new Bill in stead of sending up amendments to the Bill offered for the concurrence

1. Early in the first session of the Parliament of Lower Canada a Bill was introduced in the Legislative Council providing for the appointment of returning officers and imposing certain penalties for neglect of the duties set forth. The Bill was passed by the Council and received by the Assembly on March 4th, 1793. As here indicated, on the second reading it was laid aside by the Assembly. A committee of the Assembly prepared a new Bill similar to the first which was passed by the Assembly and sent to the Legislative Council. The consideration of this second Bill by the Council is given in the Journal for April 27, 1793. 2. From the copy of the Journal of the Legislative Council, Lower Canada, 1793, Candían Archives, Q. 63, pt. 2, page 442.

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of the Assembly and hope it is not imputable to the Denial of a Right in this House to originate Bills with pecuniary penalties.

That the Committee are not unapprised of the instances in the British Parliament of substituting one Bill for another of similar import but conceive when it is done the practice stands in Parliament upon strong ground and peculiar considerations. The ordinary course of fair Legislation requiring that each House should have the credit of what they respectively devise for the public benefit—and consequently that Bills only approved in part should be concurred in with amendments.

That if there is colour for supposing the Assembly to have originated the present Bill upon an exclusive claim to the infliction of pecuniary penalties it is doubly exceptionable, that claim having been never ceded by the Upper House in Parliament and tho’ asserted by the Oomimons in-some instances in others given up.

That it will become the Legislative Council to follow the example of the Lords in Parliament and while they yield to the Assembly the claim to originate all Bills of aid and Supply and general charge upon the people only in the House of Assembly to Maintain the claim of this House to interfere in the imposition of Penalties in all other Bills : a Law without Sanctions amounting to nothing more than a naked opinion or advice.

The Committee are nevertheless against retarding the present Bill in committment and for reserving the claims of this House to a future occasion, if that ever shall occur and this on the ground of the urgent necessity of the Provision this Bill is to make the novelty of the Constitution happily erected1 here and the advanced Season of the year leaving upon our Journals a Protestation to estop all pretext for any conclusion of a cession by us of the right of this House to imitate the Lords in Parliament in all eases essential to a safe and effectual Legislation and which our local circumstances will permit or require for the common good of this Branch of the British Empire.

The House concurred with the Committee in their Report.

JOURNAL OF ASSEMBLY, WEDNESDAY, 18TH FEBRUARY, 1795.1

The order of the day for the House to resolve itself into a committee of the whole House, to consider whether it is expedient for this House to proceed upon Bills originating in the Legislative Council, that do or shall contain pecuniary penalties or forfeitures; or upon amendments that by them shall be made to Bills from this House, when such amendments shall be to insert pecuniary penalties or forfeitures; or to alter those inserted by this House, being read:

The House resolved itself into the said Committee.

Mr. Speaker left the Chair,

Mr. McNider took the Chair of the Committee;

Mr. Speaker resumed the Chair,

And Mr. McNider reported, that the Committee had come to a resolution on the subject in reference, which they had directed him to report to the House, whenever it should be pleased to receive the same.

Ordered that the report be now received.

And he read the report in his place, and delivered the same in at the table, where it was read once throughout by the Clerk; and the resolution contained in the said report is as follows :

1. From the Journal of the House of Assembly of Lower Canada for 1795. The issue between the Legislative Council and Assembly had been referred to Mr. Dundas by Lord Dorchester in his despatch No. 15 of January 20th, 1794, (Canadian Archives, Q 67, p. 69). Mr. Dundas had replied supporting the contention of the Legislative Council (See page 172). Consequently in the session of 1795 the Assembly formally withdrew the claims which it had previously made.

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Resolved, that it is the opinion of this Committee, that in order to expedite the business of the Legislature, the House should not insist on the privilege claimed and exercised by them, of laying aside Bills sent from the Legislative Council, because they impose pecuniary penalties; nor of laying aside amendments made by the Legislative Council, because they introduce into or alter pecuniary penalties in Bills sent to them from this House; provided that all such penalties thereby imposed, are only to punish or prevent crimes and offences, and do not tend to lay a burthen on the subject, either as aid and supply to His Majesty, or for any general or special purposes, by rates, tolls, assessments or otherwise.

On motion of Mr. Richardson, seconded by Mr. Lees, Resolved, that this House doth agree to the foregoing resolution.

DORCHESTER TO DUNDAS.1

Duplicate N°12.

QUEBEC 31 DECEMBER 1793.

SIR

The importance of our having for this Province a Chief Justice possessed of Abilities, discretion, a disposition to promote the King’s Service, and competent legal knowledge, will immediately appear to you, and renders superfluous everything I could say on the choice of a Person to fill up the Vacancy occasioned by the death of Mr Smith.2 But there is a circumstance not very conspicuous which heretofore has had great influence on the Interests of the Crown in His Majesty’s North American Dominions ; I mean, what is called the Rights and Perquisites of Office, and the great scope given, or supposed to have been given, on that head.

In the year Sixty Six, I found here the Salaries of the Civil Officers generally very small, and some of them had none; much discontent on account of the Fees exacted, and the Attornies loudly complained of; these to excuse themselves told their Clients, the Judges had a large share of what was paid. On enquiry I found, that though the Scandal was great, the Profits to the Bench were small, and the Judges readily gave up all Fees for a Compensation.3

At that time the Chief Justice had Six Hundred Pounds a Year, and the Judges of the Common Pleas, One hundred and fifty each. I was the more anxious on account of the Judges, as it appeared to me more essentially necessary they should remain free from all Reproach; but at the same time there were Complaints against every Office, and every Officer wished to derive his Income entirely from Salary; in consequence of which a general increase of Salary was recommended.

This condition of things seemed to obtain much attention at home, from public Motives; and to get clear of all difficulties at once, former Commissions were declared

1. Lord Dorchester returned to Canada in September, 1793, and toot the oath of office as Governor of the Province on October 3rd. This despatch is from the original copy in the Canadian Archives, Duplicate Despatches, Lower Canada, 1793. 2. Mr. Smith’s death occurred December 6th. See page 14, note 1. 3. The question of fees was one of the first to occupy the attention of Carleton on assuming the government of Quebec in 1766. A list of fees to be taten by the various public officers had been framed by the Legislative Council in June, 1765. (See Minutes of Council, June 20, Canadian Archives, State Boot B, Quebec, p. 11.) Carleton’s first step was to issue a public advertisement in November, 1766, declaring his intention to relinquish all the fees pertaining to his own office. (Canadian Archives, Q 3, pp. 411 and 414.) The situation was fully discussed in his despatches to Lord Shelburne of May 14th, 1767, and of April 11th, 1768, in the latter of which is given a complete list of fees required. (Canadian Archives, Q. 4, p. 173 and Q 5, pp. 441 and 445.) Again in 1775 Carleton endeavoured to secure a more satisfactory regulation of fees but on account of opposition in the Legislative Council his efforts were unavailing. By the Ordinance of 1783, Chap. 3, a new schedule of fees was adopted. In this connection see Haldimand’s despatch to Lord Germain of October 25th, 1780. (Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, p. 482.)

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void by the first Quebec Act; each Patentee had an Annuity from Government equal to what his Deputy had paid him, and I think every Officer’s Salary was considerably augmented, except the Surveyor General’s; that of the Chief Justice was raised to Twelve Hundred, and those of the Judges of the Common Pleas to Five hundred Pounds a year.

Notwithstanding this additional Expence, neither Government nor People found all the Benefit which might have been expected: the Style of the new Commissions, as of the old, authorized, Fees, Profits, Perquisites, Emoluments &c. &c. Gentlemen came out much obliged to their Friends at home for good Places, and regarded everyone as unfriendly and inimical who attempted or were disposed to controul thtir Rights and Profits of Office : so that not long after this change, a Chief Justice told me, his Commission authorized him to take Fees &c. and that no Person should hinder him: I observed that the Officers of the Customs acted on the same Principle some years before, and had their Salaries immediately reduced to their former standard. Fortunately, the Bench has hitherto continued free from that Reproach; but to secure it so, it is to be wished that the words appearing to authorize these demands were left out of their Mandamus.

I do not mean indiscriminately to censure the taking of any Fees ; some may be even useful; still less would I appear to throw reproach on any Gentlemen in Office the objection is not to Individuals, but to a System of Policy, which in the ordinary course of Things, alienates every Servant of the Crown irom whoever administers the King’s Government.

This Policy I consider as coeval with His Majesty’s Governments in North America, and the cause of their destruction.

As its object was not public but private advantage so this Principle was pursued with diligence, extending itself unnoticed, till all authority and influence of Government on the Continent was overcome, and the Governors reduced almost to mere corresponding agents, unable to resist the pecuniary Speculations of Gentlemen in Office, their Connexions, and Associates, or any enormity whatever. I t was not therefore surprising that this Phantom of an Executive Power should be swept away at the first outset of a’Politieal Storm.

Vices there were in the Constitution of their Governments, and frequent Errors in the administration; but notwithstanding all these Errors and Defects, it was impossible but that, out of so many, one Governor at least might have been found capable of making a struggle to preserve his Province for the Crown, if all Power and Influenee had not been previously taken away, and the unbridled Multitude abandoned to Leaders of Rebellion who inflamed their Passions and played with our Credulity till they acquired strength sufficient to stand forth in their proper Shape.

The Policy which lost those great Provinces cannot preserve these scattered and broken Fragments which remain.

They had many additional Dangers to apprehend.

For the present I shall conclude with this observation that whatever tends to enfeeble the Executive Power on this Continent, tends to sever it for ever from the Crown of Great Britain.1

I am with great Respect and Esteem Sir Your most obedient humble Servant

DORCHESTER.

The Right Honble HENRY DUNDAS

Endorsed: Quebec, 31r t Dec1 1793. Lord Dorchester, R/ 8th April, N° 12 (Duplicate)

1. The importance of preserving the authority of the representation by Lord Dorchester. See page 184.

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DORCHESTER TO DUNDAS.1

N° 14—Duplicate

QUEBEC, 31 December 1793.

SIR,

The business of the Executive Council is very much increased and that board is of considerable service in the administration of the King’s Government in this Province, but their numbers are unequal to what is required of them, so that allowing for ordinary casualities it must frequently happen that their public business will be at a stand for want of members sufficient. Of the nine who form that council2 one has never joined,3 one is vacant,4 one sick5 and one has leave of absence on public business,6 and of the five who remain three7 live at Montreal, where besides being persons of consideration in their Country they are frequently useful in their capacity of Executive Councillors, at present they are attending the Legislature, and two8 live at Quebec, so that as soon as the Assembly is prorogued two only will remain here. It does not appear to me that less than thirteen can carry on that business without frequent interruptions for want of a Quorum, and perhaps it might still be necessary to allow a discretionary power to add temporary members or members without Salary, when it becomes necessary by any extraordinary contingency.9 Sould this addition of four Members be approved I should recommend P. A. DeBonne10 and A. J. Duchesnay, 11 Canadian Gentlemen, John Lees12 and John Young,13 English Merchants all of the Assembly.

I am with much respect and esteem.

The Right Honorable HENRY DUNDAS

SIR Your most obedient and Most Humble Servant. DORCHESTER

P.S.—I am to acknowledge the receipt of your letter of the 2d October, to which due attention will be paid.

1. From the original copy in the Canadian Archives, Duplicate Despatches, Quebec, 1793. 2. The Council was originally composed of nine Members. (See the Instructions to Lord Dorchester, Article 4, page 14.) The vacancy caused by the death of Adam Mabane in 1792, had been filled by the appointment of James McGill. 3. Adam Lymburner did not apply for admission to the Council until 1799, when it was refused on account of his absence from the province without the permission of the Governor. 4. This vacancy was caused by the death of Chief Justice Smith. 5. The reference is to Pierre Panet. 6. Hugh Pinlay had been granted leave of absence in connection with the business of the Postal Service. 7. Paul Roc de St. Ours, Joseph de Longueuil and James McGill resided at Montreal. 8. François Baby and Thomas Dunn. 9. The appointment of honorary Members to the Executive Council had been suggested by Mr. Mont in a letter to Evan Nepean of May 8th, 1793. (See Canadian Archives, Q 66, page 300.) 10. Pierre Amable de Bonne had been commissioned as an advocate for the Province of Quebec in 1780. In 1790, he was appointed Olerk for the adjustment of the Land Koll of the Province. In 1790 and 1791, he acted as French Secretary and Translator to the Governor and Conncil. He was elected to the first Assembly of Lower Canada for che County of Tort and 1794 he was appointed a judge of the Court of Common Pleas. On the organization of the Court of King’s Bench he was appointed a justice for the district of Quebec. His appointment as an honorary member of the Executive Council was confirmed in 1794 and in 1802 he was admitted as a regular member of the Council. The policy of permitting judges to sit in the Legislative Assembly was an important issue during the administration of Sir James Craig, and in 1810, Justice DeBonne was declared disqualified from sitting in the Assembly by a resolution of the House. Two years later he resigned from the Court of King’s Bench. He died in September, 1816. For the proceedings relating to the disqualification of Mr. DeBonne, see pages 370 and 371. 11. Antoine Juehereau Duchesnay, Seignior of Beauport, represented the county of Buckingham in the Legislative Assembly. He had already been recommended by Lieutenant Governor Clarke for a seat in the Legislative Council. He continued to act as an honorary mem-

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DUNDAS TO DORCHESTER.1

The Rt. Honble WHITEHALL 11th May 1794.

Lord Dorchester

MY LORD,

I have received and laid before the King your Lordship’s Letters numbered from 12, to 16, inclusive.

From your Lordship’s judicious remarks contained in N° 12,2 respecting the Fees and Perquisites of office, particularly as far as they regard Courts of Justice, I feel great satisfaction in His Majesty’s appointment of M1 Osgoode3 to be Chief Justice of Low’» Canada as I am assured that in the person of that Gentleman, the Province is stcured from any such Fees or Perquisites being taken: I am equally well assured, tbat there will be no Judge in the Court to be established under the new Judicature Bill, which I trust is already passed, in favour of whom the same observation may not be made. I observe that the Instruments appointing the Justices and Judges, in His Majesty’s Colonies & Plantations abroad, are precisely of the same tenor as those by which the Welsh Judges are appointed in this Country and it should always be borne in mind that no Instrument in mentioning Fees or Perquisites neither can nor does thereby create any Fees or Perquisites, but simply warrants the receipt of such as are bonâfide, legal, and accustomed or ancient, and in lieu of which no compensation has been received. In the case of Judges I apprehend, those words more particularly relate to those small Fees, or Perquisites to the inferior officers concerned in the process and proceedings of the Court, and which, it is the bounden duty of such Court, and I am confident will be so considered, to render as reasonable, & as little burthensome to Suitors as possible.

When I consider the ample Salaries annexed to the Civil Appointments in Lower Canada, and the number of those appointments, I perfectly coincide with your Lordship in opinion, that it is highly expedient, that distinction should be made between such Fees as are useful, have been legally authorized, have been at all times the same, and never discontinued, and in lieu of which no additional Salary is expressed to have been granted; and such as are in their nature oppressive, have not been regularly and uniformly received, or in lieu of which additional Salaries, or other compensations have been expressly granted. I should apprehend that Fees coming under this latter description cannot be warranted under the appointment of the persons receiving them, and that your Lordship, as Governor, must in general have sufficient authority to correct such abuses. And where it should be doubted, I have only to add, that your Lordship’s representation of any specific ease of this nature will be properly attended to here, to whatever department the consideration of it may belong.

In answer to your Lordship’s Letter N° 4.4 proposing to add four Members to the Executive Council, to avoid any interruption of the Public Business, for want of a Quorum, I cannot but be of “opinion, considering the present expensive Civil

ber of the Executive Conncil until his death in December, 1806. His son A. L. J. Dnchesnay was likewise a member of the Legislative Assembly and was later appointed to both the Legislature and Executive Councils. 12. John Lees was at this time a member of the Assembly for the Borough of Three Rivers which he continued to represent during the first four Parliaments of the Province. He toot his seat as a Member of the Executive Council in December, 17S4, although, through the miscarriage of his commission, he did not take the oath of office until the following July. In 1786, he was appointed Storekeeper General for the Indian Department. On several occassions he served on the Commission to determine the division of customs dues between the Upper and Lower Province. In 1804, he succeeded Pierre Panet as a regular member of the Council. He died at Montreal, March 3rd, 1807. 13. See page 162, mote 2. 1. From the copy in the Canadian Archives, Q. 77, page 123. 2. See page 168. 3. See page 84, note 1. 4. Obviously an error in the copy. The reference is to Dorchester’s letter No. 14, which immediately precedes this despatch.

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Establishment of Lower Canada,1 and the addition which those Members would make to that Establishment, that the adoption of the measure proposed by your Lordship, (vizt.) that of granting Your Lordship the discretionary power of adding temporary members without Salary, would of itself, do away the difficulties youi have stated. I shall therefore lose no time in laying before His Majesty in Council an additional Instruction to your Lordship to that effect. In the meanwhile, and to render the Executive Council as efficient a Board as possible, I have directed that Mr Chief Justice Osgoode’s Mandamus to the Executive, as well as the Instrument to summon him to the Legislative Council, should both be transmitted with this Letter. I have likewise signified to Mr Lymburner2 the necessity there is, that he should attend his Duty, as Executive Councillor, who perfectly concurring in the propriety of this observation has engaged either to proceed to Quebec this Summer, or should his health not permit him to do so, in that case to resign his situation.

As the Legislative Council & Assembly have amicably terminated such Disputes, as might be expected to arise between them, in the first exercise of their functions, I shall not, at present, further observe upon them, than just to remark that there is the greatest possible difference between the case of a Revenue Bill, a Tax, a Grant, or the like, where a Penalty may be enacted to enforce those objects, and where in various other instances, Penalties are enacted, without any connection with or relation to Money Bills or Grants—as for instance—in Bills of a Judicial nature, in Bills for the suppression and punishment of crimes, and in various other cases where the enactment of a Penalty as far as the Proceedings of this Country are made a Rule of Proceeding, may originate with propriety, either in the Legislative Council, or Assembly8

I am My Lord etc. HENRY DUNDAS.

D.

WARRANT FOR THE APPOINTMENT OF HONORARY MEMBERS OF THE EXECUTIVE COUNCIL.4

Duplicate.

GEORGE R RIGHT Trusty and Welbeloved We greet you well! We being well satisfied of the

1. For the original Civil Establishment of the Province, see page 30. This had been increased by the reorganization of the courts. 2. See page 16, note 1. 3. See the proceedings of the Legislative Council and Assembly, pages 166 et seq. 4. From the original in the Canadian Archives, Secretary of State, Sundry Papers. Lower Canada, 1794. The same form of warrant was used for the appointment of honorary members of the Executive Council in Upper and Lower Canada. In 1795, a situation arose in Upper Canada similar to that represented by Lord Dorchester in his despatch No. 14. On November 8th, Lieutenant Governor Simcoe wrote to the Duke of Portland, ” I beg to offer to your Grace’s consideration, what I have heretofore represented, the very insufficient number of the Executive Council of this Country—the Members at present by the Non-Appointment of a Chief Justice are reduced to four, and in consequence the Public Business is by no means carried on in that methodical manner, which I could wish, from the non attendance of the Members, and the burthen in general falls with extreme weight on myself, the Receiver General and Major Shaw. Mr. Grant, who commands the Kings Vessels, being generally absent on his duty, and Mr. Baby, the remaining Member residing at Detroit where He has Mercantile Transactions. It is therefore I most seriously beg Tour Grace’s attention to what is a great public inconvenience; the sictness of a Single Member stops the whole Business of the Province; and the Series of Ill Health with which I have of late been afflicted, admits of no remedy, as *a Quorum without me, cannot be formed for the preparation or despatch of Business. (Canadian Archives, Q. 282, pt. 1, p. 21.) To this the Dute of Portland replied, March 3rd, 1795, ” And in the meantime, in consequence of your representation of the necessity of augmenting the number of His Majesty’s

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Loyalty Integrity and Ability of Our Trusty and Welbeloved P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young Esqrs have thought fit hereby to signify Our Will and Pleasure that forthwith upon receipt of these Presents you swear and admit them the said P Amoblé De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young to be of Our Executive Council of Our Province of Lower Canada in America to act as Members of such Council respectively at the times on the occasions and upon the Summons herein after mentioned and not otherwise, that is to say, provided nevertheless that the said P Amoblé De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young shall not nor shall any of them Act as Members or a Member of Our said Executive Council save only and except at such time or times and upon such occasion or occasions respectively when they shall respectively l e especially summoned to attend as Members of such Council by Our Governor or the Person having the Government of Our said Province for the time being nor shall any of them by virtue of this Appointment and of their being so sworn and admitted as aforesaid be entitled to any Salary as Members of Our said Executive Council. And it is Our further Will and Pleasure that the special Appointment and Admission of the said P. Amoblé De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young respectively in manner aforesaid shall be clearly and distinctly expressed in the Minutes of Our said Council upon the swearing and admission of the said P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young respectively. And for so doing this shall be Your Warrant. And so We bid You heartily farewell! Given at Our Court at Saint James’s, the Thirtieth day of June 1794 In the Thirty fourth Year of Our Reign—

By His Majesty’s Command PORTLAND.

P Amoble De Bonne & others Esqrs to be of the Executive Council of Lower Canada. (Endorsed)

To Our Right Trusty and Welbeloved Guy Lord Dorchester K. B.; Our Captain General and Governor in Chief in and over Our Province of Lower Canada in America or in his absence to Our Lieutenant Governor or Commander in Chief of Our said Province for the time being.

SIMCOE TO PORTLAND.1

N° 19. Upper Canada Johnstown February 1701 1795.

My Lord Duke,

I beg to inclose to Your Grace some letters (A.B.C.D) which have lately passed between Lord Dorchester and myself relative to Indian Affairs and, I hope that the

Council for the better carrying on of the Public Affairs of the Province, I have received His Majesty’s Pleasure that Captain McGill and Mr. Smith should be appointed Executive Councillore Extraordinary but without any present Salary, and to attend only when specially summoned by you for that purpefte according to the tenor of His Majesty’s Warrant which I herewith inclose. Similar Appointments have been made in Lower Canada on a similar requisition from Lord Dorchester ; and it is intended that the Extraordinary Executive Councillors, thus named, should succeed to Salaries when Vacancies arise in consequence of the death or removal of any of the five Councillors provided for in the Provincial Estimate.” (Canadian Archives, Q. 282, pt. 1, page 37.) The question later arose as to the right of honorary members of the Executive Council to sit in the Court of Appeals. For the opinion of the Law Officers of the Crown on this subject see page 479. 1. From the copy in the Canadian Archives, Q. 281, pt. 1, p. 273. The Duke of Portland had been head of the coalition ministry which succeeded Shelburne in April, 1783. The rejection of Fox’s India Bill in December of the same year led to his re-

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Commission of Sir John Johnson1 will be altered in the manner, that was intimated by the Letter of Mr Dundas to Lord Dorchester (N°1)2 to which I have referred; and under the impressions of which, I undertook the Government of this Colony.

There ought not to be an unnecessary vestige of Military Government in this Country, and the power exercised by the Superintendants is what of course, being unknown to the British Constitution, cannot from its influence be submitted to with safety to the King’s Authority.3

The Lieutenant Governor of this Province must be an Officer in the Confidence of his Majesty’s Ministers.—I need not enter into the detail of Indian Superintendants; their Want of Education, Ignorance of all but the Seperate Nations, upon an interest with whom, their own consequence- is grafted, their immoral Habits, and the Indolence and depravity which in them, seems to be derived from the Persons with whom they are so conversant, disable them, from unnecessary confidence.

The Commander in Chief at Quebec in lesser transactions cannot controul the department, its expenditure & informalities; the very distance prevents Him; and the Regulations now transmitted at this critical period, while they substantiate the fact, allow me to hope, that Your Grace and His Majesty’s Ministers in the system for the future Garrisons and stations of the Kings Troops, will also give proper and suitable regulations for this important Branch, such as may give satisfaction to the

signation. In July, 1794, an alliance was formed between Pitt, who had succeeded the Duke of Portland as Prime Minister, and the more conservative wing of the Whig party with the result that the Dute joined the ministry as Secretary of State for the Home Department. 1. Sir John Johnson, Bart., eldest son of Sir William Johnson was born in 1742. On the outbreak of the War of Independence he joined the Loyalist forces and was instrumental in raising ” The King’s Koyal Regiment of New York. ” He was knighted in 1765 and on his father’s death in 1774 succeeded to the title and family estates. In 1776, he led a large band of followers, chiefly from his tenants, to the Province of Quebec and later raised and commanded a regiment which did effective service in the defence of the Province. In 1782, he was appointed Superintendent General and Inspector General of Indian Affairs and four years later was made a member of the Legislative Council of Quebec. When the Loyalist migrations began, Sir John was placed in charge of the work of settlement in the districts around the Upper St. Lawrence and Late Ontario. His connection with the Indian Department and with settlement made him familiar with the needs of the newer districts of the Province and on the formation of Upper Canada, Johnson was recommended by Lord Dorchester as its first Lieutenant Governor. The British Government, however, had already decided on the appointment of Simcoe. The division of the Province involved no serious change in the Indian Department and Sir John continued as Superintendent General. In 1796, he was appointed to the Legislative Council of Lower Canada. He died at Montreal January 4th, 1830. 2. Before his departure from Quebec in 1791, Lord Dorchester raised the question as to what officer should, in the absence of the Commander in Chief, ” take the command of the Superintendant General and Inspector General of Indian Affairs.” (Dorchester to Grenville, No. 83, March 19. Canadian Archives, Q. 50, pt. 1, p. 81.) The letter of Mr. Dundas, No. 1 of September 16, 1791, contains a reply to Lord Dorchester’s reference. Mr. Dundas observes that ” The difficulties which occur with respect to the Superintendant General of Indian Affairs, as stated in Tour Lordships letter No 83 will Immediately be removed, by recalling his present, and granting him a new Commission, as from the nature of that appointment, that Department must necessarily be subject to the Command and Control of such officers as His Majesty may from time to time think fit to entrust with the Government of either of those Provinces wherein the Residence of such Superintendant maybe necessary, but particularly that of Upper Canada.” (Canadian Archives, Q. 59 B, p . 207.) A new Commission was accordingly granted which contains the following regulation, ” And you are to observe and follow such orders and directions as you shall receive from Our Commander in Chief of our Forces in our said Provinces of Upper Canada and Lower Canada, or in case of his absence from the Officer who may be left in Command of the said Forces for the time being.” (Commission to Johnson, September 16, 1791, Canadian Archives, Q. 71, pt. 2, p. 455. See also Dundas to Johnson, of the same date, Q. 59B, p. 229). From this it is seen that the Commission to Sir John Johnson had already been altered but not in tihe manner desired by Lieutenant Governor Simcoe. 3. The particular issue between Lieutenant Governor Simcoe and Lord Dorchester was the control of the Indian Department which, being considered a part of the military establishment of the colony, came within the authority of Lord Dorchester, as Commander in Chief of His Majesty’s forces. At this time the Department consisted of the Superintendent General, Storeteeper General, Agent, Secretary and Surgeon together with a Deputy Agent and a staff at the Indian Posts situated at Niagara, Detroit and Michilimactinac. As the Indian Settlements were almost entirely within Upper Canada, Simcoe insisted that the control of the Indian Department should be vested in the Government of Upper Canada.

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People of this Province, universally alarmed, for their Properties, and Lives, and who openly accuse, whether justly or not, the Indian Department, of fomenting disputes, for the purpose of self consequence, & wealth; and of appropriating public Bounty to private vices.

Such a System, I hope, will not leave to me, the unavailing regret of having only done my duty, by pointing out Errors, and the mode of preventing them, instead of carrying into effect a regular and extensive arrangement, which ultimately, may be the means of preserving his Majesty’s American Empire.

The present crisis I cannot but consider, My Lord Duke, as of the utmost importance, such as requires from me the language of truth—the universal Conversation from Montreal to Detroit is that the Posts are to be withdrawn,1 and the loss of them under such inauspicious Circumstances, is supposed as universally, to include the defection of the Indian Nations.

I have offered from time to time to Your Grace and his Majesty’s Ministers my Ideas how to prevent, as far as, I see possible, this Calamity, should they not be approved of, by the Kings confidential Servants I shall most chearfully acquesce in their decision, without hesitation, or enquiry; and to the utmost of my facilities endeavour to execute what they may direct—but I beg to observe to your Grace, that from all other Men and from the Commander in Chief, I shall hope and expect, to be convinced of the impropriety of my own system, or the efficacy of leaving his Majesty’s interests and the lives of his faithful Subjects to chance or procrastination, by other means than the dictates of Authority.

In this Country, My Lord Duke, it will be more easy to create an Aristocracy than to give due and constitutional weight to the Kings Representative;2 in the first instance the passions of Men range themselves on the side of many competitors for distinction, in the latter they unite against the Authority of a Single Person.

The influence from the disposal of Offices is of no moment; Those which in older Countries derive their value from fees are unknown in these new Settlements and are in fact so burthensome as scarcely to be applied for by the Inhabitants reluctantly and frequently abandoned at an improper moment.

It seems therefore necessary, that the appearance of Power over all inferior Military employments, (which Generals in Chief rarely condescend to notice) ought with peculiar propriety to be vested in the Person administring the Government of the Province ; at least no new Power, no interfering Arrangement should be admitted, such as the Indian department to circumscribe his Influence, and the British Constitution, being granted to this Province, Your Grace will depend upon it that its Inhabitants will naturally desire to obtain all its qualities & properties.—the real and apparent Independancy of their first Magistrate, is considered by them, by no means less necessary to promote the Authority of the Crown, than to prove their own Emancipation from the Province of Lower Canada, and Military Government; which has always been opposite to the Inclinations of the American English. Such is the language which I have frequently heard from the leading Men of the Province; from those who are best affected to the Kings interests.

I have the honour to be with the greatest Respect, My Lord Duke Your Grace’s most Obedient and most humble Servant J G SIMCOE

His Grace the Duke of Portland One of His Majesty’s Principal Secretaries of State &c. &c. &c.

Endorsed:—Upper Canada 17th Feby, 1795 Lieut. Govr Simcoe

R/ 12th May 1795. Ansd 3d Sep.r

1. By the Jay-Grenville Treaty of 1794, all the Posts within the territory of the United States held by Britain were to be restored before June 1st, 1798. 2. For Simeoe’s scheme for the creation of a colonial aristocracy see the correspondence relative to the appointment of Lieutenants of Counties, pages 196 to 211.

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N° 19.

(Eight Inclosures)

SIMCOE TO DORCHESTER.1

Kingston March 9th 1795.

(Duplicate) N° 47. My Lord,

In compliance with my intimation of the 30th of January,2 I take the opportunity of stating some of the many Reasons to Your Lordship which induce me to maintain, that the present Department for the Superintendency of the Indian Nations is insufficient, and inexpedient; and that it requires, without loss of time, the most complete Reformation.

The Alteration recently made on great, and wise, and necesary Principles, in the nature of the Government of Upper Canada, establishing the British Constitution in all its forms and faculties in the Province, seems of course to imply that suitable Provisions must take place to give due countenance and influence in the administration of Public Affairs to the several Branches of the Legislature into which British Wisdom has constitutionally and distinctly seperated British Power.

The Representative of the Sovereign must be endued with sufficient means to uphold the Executive part of the Government; and those Bodies, who represent themselves and the People, ought not to admit, and will not, Your Lordship may be assured, a greater share of Military power to narrow their duties and interfere in their Operations, than what the British Constitution allows, or the necessity of the case may for the present justify.

To apply these Facts to the existing state of the Province of Upper Canada—It is obvious, that the Representative of the Sovereign, id particular, cannot be deprived of any power naturally incident to his Station, under any pretext whatsoever, without a proportional diminution in the Eyes of those who are entrusted to his Government of that Ascendancy and Weight which is most necessary for their own preservation, not less so to the support of the Kings Authority, and, probably, requisite to strengthen the connexion of the Province with the Empire of which it forms a part;—and it is apparent in the infant state of this Province, that this necessary influence, weight, or ascendancy, is not at present to be obtained by the Lieutenant Governor of Upper Canada, thro’ any of those means of Patronage, or offices of interest or emolument, which formerly abounded in the British Provinces of America, and in the natural progress of Society, will hereafter strengthen the Executive Government of this Province; but the sole means by which He can maintain the Authority necessary for his Constitutional Station, must depend at this most critical Period, on the intrinsic merits of the duties He has to execute or result from the plain and unsupported Semblance, of his being the Representative of the Royal Authority.

If it has been thought expedient, that the Person who is appointed by his Majesty for the important purpose of Governing this infant Province, should also be the Commandant of his Forces therein, it must doubtless be thereby intended among other Reasons, which now most happily seem of less importance, to support and to encrease his influence; and of consequence, it appears to be unnecessary, that any Establishment administered by Military Authority, under the pretext of being solely amenable to the Commander in Chief, should be withdrawn from every degree of intermediate Responsibility to Him, either as commanding in Upper Canada or as the King’s Representative in the province; but when the magnitude of the Indian Affairs are duly weighed, their various relations and connexions, their new and menacing Aspect,

1. From the copy in the Canadian Archives, Q. 281, pt. 2, page 341. 2. Simcoe to Dorchester, No. 38, Canadian Archives, Q. 281, pt. 2, page 285.

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and that Peace may be preserved, or War accelerated, by the due management or mismanagement of those Nations. The simple Consideration of such important Objects demands, and would alone make me, My Lord, require as administering the Government of Upper Canada, Those alterations to be made in the Constitution of the Indian department which-Mr. Secretary Dundas in his letter to Your Lordship, N°. 1, mentions to be determined upon in the new Commission to be issued to Sir John Johnson; and which I presume has taken place1—It is not the Genius -of the British Constitution, nor can it be the wish of his Majesty’s Confidential Servants, that in my responsible Station I should stand upon unsure and unsafe grounds—To talk of Your Lordship’s personally directing the Indian Affairs beyond general and common regulations, when you reside at Quebec, is out of the question; The most important Concerns must be transacted through the interposition of some Officer upon the Spot, subordinate to Your Lordship, or not, as may be just and effectual — And I must be, that intermediate Person, whether in a Military or civil Capacity it matters not to me—But it is obvious, that the Lieutenant Governor, must have from some source or other a Power, commensurate with his Responsibility, and that may enable Him to carry into effect such measures as may be necessary for the publick Service, whether they be confined to the interior management of the Government, or relate to any intercourse with foreign Nations.

If the Indians be contemplated, seperately, or as connected with the United States, an Attention to their Affairs on the part of this Government, becomes a matter of great and encreasing necessity.

Nor will the other Branches of the Legislature have immaterial offices to exercise in relation to the Indian Nations.

The present system of the Indian Department is the subject of much obloquy, and is very unpopular in the Province, and this arises, among other reasons, not only from the real or supposed Peculation of some of its Members, ‘dilated upon with sufficient malignity, but also, from the idea which many respectable People entertain, that the Disputes and War between the Indians and United States have been fomented and supported by Persons in the Department, not on public, but personal motives; and beyond the Orders or intentions of Government—These Sentiments whether they be well grounded or not, have their Influence; and it is reasonable to suppose, may occasion the Legislature to look with diffidence and suspicion upon any future exemption of those who direct this Department, from the controul of the King’s Representative— It is evident any other controul than that which arises from an intimate knowledge of the transactions of this Office in the detail, as they respect the Savages, h nothing but a dead Letter, or a mere display of Words.

The Members of the Legislature therefore, as well as the People of the Province will not see with secret satisfaction and confidence the Lives and properties of themselves and of their families at this momentous period, dependant on the discretionary Conduct of the Indian Department.

The Legislature also, can alone prevent improper Encroachments being made upon the Lands of the Indians : It can alone regulate the Traders, and prevent their Vices from being materially injurious to the Welfare of the Province; and it will in all probability exert its authority, as seems most just, to effect these popular objects—

The Legislature alone, can give due efficiency to those general principles of Policy which his Majesty shall think proper to adopt in respect to the Indians; and which the Lieutenant Governor or Person administering the Government of Upper Canada, the Confidential Servant of the Crown in the Province, can alone carry into execution with safety, Vigilance and promptitude—He also, by his influence with the other

1. Lord Dorchester, in his reply to Simcoe, after referring to the documents mentioned in the above note, proceeds, ” I have not a power to mate those alterations you seem to require, nor does my judgment allow me either to recommend or approve them.” (Dorchester to Simcoe, April 2, 1795, Canadian Archives, Q. 71, pt. 2, page 451. See also page 174, note 2).

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Branches of the Legislature, must temper and guide to the public Interest every important Law to which the new State of the execution of the Treaty of 17831 may give birth, or which shall arise, from time to time, in consequence of any pressing event—

An intimate knowledge on the part of the Lieutenant Governor of the Indian Affairs will materially facilitate the proper execution of these Duties; and without doubt He will obtain Universal Influence in all these Points, and sufficient confidence will be reposed in Him by the other Branches of the Legislature, when they shall see ; that He is furnished with ample means of information.

It is therefore, among other material Reasons, that adverting to the Security of the Peace of this Province and therein of the British Empire, and to the necessity of forming a proper and just system for cultivating the affections of the Indians, and giving permanency to what is now precarious and illusory, that I have stated to His Majesty’s Ministers, ” It appears to me advisable that the Indian Department should remain as at present under the supreme controul of the Commander in Chief or Governor General, that Colonel M°Kee2 the efficient deputy Superintendent should be added to the Council of the Province of Upper Canada, That, the Lieutenant Governor, or Person administering the Government, in Council, should watch over the various concerns of the Indian Nations, regulate the expences and superintend the delivery of the annual presents ; that, these presents should be delivered at stated times, generally, if possible to all the Indian Nations — That as soon, as conveniently it can be executed, a Council House should be erected for this purpose at the proposed seat of Government, London8 particularly adapted as central to the Indian Nations ; that there, the Indians should be assembled to receive their regular presents, with all due form and Solemnity under His Majestys Picture or Statue; that they may be taught to repose in Security on their Great Father, consider Him, and not his Officers or Agents as their benevolent Benefactor.—That to this fire-place, a deputation of all their Chiefs should be annually invited to resort, to reconcile their respective differences, to receive advice, and to renew their friendship with the Kings People; that by placing the administration of the Affairs of the Indians in the hands

1. The interpretation of the boundary clauses of the Treaty of 1783, was one of the subjects provided for by the Jay-Grenville Treaty. Although this treaty had been concluded in November, 1794, Simcoe had not yet received notification of its terms. 2. Colonel Alexander McKee entered the service of the Indian Department under Sir William Johnson. In 1771, he succeeded Colonel Croghan as Deputy Superintendent for Indian Affairs. He tookpart in the War of Independence being stationed at Fort Pitt. For a time he was held a prisoner here by the Revolutionary forces but managed to escape and proceeded to Detroit in 1778. He was then appointed Deputy Agent resident at Detroit where his direction of Indian Affairs was most successful. The absence of Sir John Johnson from the Province necessitated the appointment of a chief for the Department and Colonel McKee was accordingly given the position of Deputy Superintendent General of Indian Affairs in December, 1794. He died January 15th, 1799. (For correspondence regarding the appointment of his successor see page 242 et seg. 3. London was proposed by Simcoe as the Capital of Upper Canada m 1793. Writing to Mr. Dundas, September 20th, he says, ” It is apparent that there is no spot in Upper Canada so central as to have a speedy and ready communication with all parts of the Province; which may be considered as confined between the Ottawa and French Rivers and the Lakes; but it is equally evident that sooner or later as population increases, and circumstances shall admit, it wilt be necessary for the purposes of public convenience to make some further division of the Canada’s, and perhaps Montreal presents itself as the Centre of an intermediate Government. I beg, Sir, to state these ideas, as in pursuance of them, they lead to the propriety of establishing a Capital of Upper Canada, which may be somewhat distant from the centre of the’present Colony; were there no immediate motives or political reasons that may render it expedient. This Capital, I propose to be established at New London, as marked on the Map of “The Thames.” (Canadian Archives, Q. 279, pt. 2, page 493). Mr. Dundas expressed approval of Simcoe’s choice. ” I also agree with you that the place upon the River Thames, which you have marked as the scite for London, is well situated and judiciously chosen for the future Capital; but as the Defence of the Colony is the first object, if that Defence should be Maritime, it follows that the Settlement of York is the most important for the present, not as the future Capital, but as the Chief Place of Strength and Security for the Naval Force of the Province.” (Dundas to Simcoe, March 16th, 1794, Canadian Archives, Q. 280, pt. 1, page 20.)

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of the Governor and Council, in the room of the Superintendant, and Officer Commanding the Troops, it is evident an uniform system would be adopted, and that policy which is now casual and fluctuating, would become permanent as possible; not depending on the life or removal of one Man; on the employment of the Officers, or the death of the Agent; but an adequate knowledge would be acquired of all the Indian transactions ; and the reports of the Committee of Council on this Subject (of which Mr McKee should be the President) would offer to his Majesty’s Ministers the best sources of information, the means of regulating the Public expenditure in this important office, and of applying it with the best possible effect.”

“That the Council of this Country, it is obvious, will have every interest to fulfill the Kings benevolence to the Savages—They will themselves acquire a certain influence and weight with the Chiefs and always be able to recommend, proper Agents, Interpreters, and Subordinate Officers; a Species of itten of the greatest importance, but which are hourly growing more scarce from the circumstance of the Indian trade having undergone a material alteration in its extent, and in particular as the Prisoners who are adopted by the Indian Nations—and by that mode gain the means of acquiring an interest in their affections, and a knowledge of their language, are now entirely composed of the Inhabitants of the United States, and not of the British Colonies; of Persons, who consequently will promote the interests of their native Country.

Such is the outline, My Lord, which I have stated to the consideration of his Majesty’s Ministers in respect to that Branch of the Superintendancy of the Indian Nations which principally affects this Province, and such alterations, as in my judgment may be carried into execution without difficulty, and to the public advantage.

It seems proper that to these Observations I should offer to Your Lordship, more at large, such additions as may elucidate the detail of the Subject.

The advantages which the Place I have proposed (and which has been approved of by his Majesty’s Ministers) for the scite of the Capital of Upper Canada offers to the Kings Government, as They concern the Indian Nations, for the sake of perspicuity, I beg leave to state to Your Lordship, as They apply to the Savages within the boundary of the Treaty of 1783,1 and as they ultimately effect those Nations who should be without that line of demarcation.

In respect to those Nations within the Boundary line, and bordering on the inhabited pale of Upper Canada—They may be principally included as part of three distinct Nations namely the Confederacy of the 6 Nations the Chippewa’s (of whom the Messissagua’s are a tribe) and the Western Confederacy, a small part of which now reside in Upper Canada, and to the whole of whom agreeably to my letter to Your Lordship of the 18th of December 1794 Colonel M°Kee has offered a Settlement within the King’s purchases on the Chanail Ecarté, upon the principle therein explained;2

The Council fire of his Majesty regarding the Six Nations, is now at Niagara;3 that of the Western Indians at Detroit; If possible, before these places shall be evacuated, I wish, that the Council fire of the Six Nations with all possible Solemnity should be transferred to the proposed Capital; such a Solemnity was performed, as I understand, when formerly it was removed to Sir Wm. Johnson’s House on the Mohawk river, and I presume the form may be met with in the Archives of the Indian department, it scarcely having happened in the memory of the Indians now guiding

1. By Article II. of the Treaty of Paris, 1783, the boundary line for this district was fixed as the middle of the water communication between Lake Ontario and Lake Superior. For the text of the treaty see Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 491. 2. Simcoe’s letter to Portland, No. 14 of December 22, 1794, contains an account of the offer of land for a settlement of the Western Indians. (See Canadian Archives, Q. 281, pt. 1, page 201.) The stream then known as the Chanail Ecarté is the modern Sydenham River. 3. The Council fire of the Six Nations was moved from Albany to the residence of Sir William Johnson in June, 1755. For a narrative of the proceedings see the New York Colonial Documents, edition of 1855, Vol. VI, page 964.

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their Councils, or possibly any of the Kings Subjects as assistant thereto, unless it be Colonel Butler,1 who has great influence among those people, and certainly a knowledge of their Customs, which may be of present importance.

To this Council Fire, I should also wish that established at Detroit to be assembled; with such ceremonies, as may revive among the Indians in that quarter, whatsoever ancient forms and usages they may be attached to, or may stamp upon their minds such new Impressions as the Solemnity of the occasion may render it proper for their common good and the King’s benefit, should at present be inculcated, and held in future remembrance.

Thither also, should the Chippewa’s and Messissugua’s be invited, and the Council Fire, as the general place of resort of all the Indian Nations from the Mohawks on the Bay of Quinté or possibly the Messissagua’s at Kingston, to the straits of Detroit, and beyond it, should be firmly established; and all the Nations should be bound in one covenant, and be taught to consider (in the absence of the Commander in Chief, or Governor General), the King’s Lieutenant Governor, the Representative of their Common Father. A Council House should be built with all possible speed, and it should be suitably decorated with the Emblems and Ensigns of the different Nations; and thither, should their Chiefs be invited annually to assemble (and on particular events at proper seasons) for the purposes heretofore specified, and to receive their annual presents, or such orders as may be given them for obtaining them at more convenient places.

This great and annual meeting should be conducted with the most impressive Ceremony; Troops should be assembled, either purposely, or in consequence of the general Relief, the Lieutenant Governor and Council should attend with all the Officers Civil and Military.

In order to carry into effect the essential guidance which the Kings Lieutenant Governor and the Council, who are constitutionally responsible for the protection and welfare of the Kings Subjects in this Province, must have, and must exercise in all Indian Affairs, now about to be so materially interwoven and connected with the United States, and which under the pressure of particular circumstances calls for all their vigilance and attention on the Spot, and to erect a system, not fluctuating, but permanent, and which may suffer as little as possible from the changes of Men, It has been proposed that the Lieutenant Governor and Council of the Country to whom his Majesty has confided its Government, and not in the inferior office of Superintendant General, should be entrusted the total supervision of the Indian Nations, as far as concerns that management and those relations, which are necessary to prevent or provide against their “Hostility, or alienation from his Majesty’s Interests—and in order to acquire a due knowledge of the Policy, the inclinations and prejudices of the Indian Nations, It appears most requisite that the Superintendant General, or Deputy best acquainted with the various Indian Nations, should be added to his Majesty’s Councils and have a seat at the Board; presiding in the absence of the Lieutenant Governor, in all transactions in which the Indian Nations shall be concerned.

This Superintendant or rather Deputy, might have part of his Salary ex officio, as of the Council that of the Deputy ought to be augmented; Colonel McKee would be the most proper person to be admitted into the King’s Council,2 and It appears to me at present of great importance that Colonel Butler, whose well known influence with the Six Nations is universally acknowledged to have been of the utmost consequence in the late War, should also have a seat at the Council, and possibly enjoy

1. Colonel Butler had been connected with the Indian Department since 1755. During the Revolutionary War he raised and commanded a corps of Rangers which acted in conjunction with the Indian tribes. He acquired great influence with the natives and was largely instrumental in preserving their alliance with Britain. 2. Colonel McKee had already been recommended by Simcoe for appointment to the Executive Council. (See Simcoe to Dundas, No. 24, June 21, 1794, Canadian Archives, Q. 280, pt. 1, page 185.) The appointment was not made; for the reasons see page 188.

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his present Salary for Life; as a compensation for former Loyalty and Service, without any future interference in the detail of distributing the presents, to which He appears from his state of Health, not to be able, with due vigilance to attend — But his long experience in Indian Affairs and Loyalty render his Opinions at the present crisis an object of great consideration.

The proceedings of the Lieutenant Governor and Council should be from time to time as the case may require transmitted to the Commander in Chief and all the details, by the deputy Superintendant to the Superintendant General for his information.

It seems proper, that the Presents and Pensions which are constantly once in a year given to certain Indians, and to the Women and Children, shonld be regulated by a List, and delivered to them as annual donations, and of Right, agreeably to the Custom of the late Sir Wm. Johnson, and what Sir John Johnson, I understand, recommended to Major General Clarke on his going to England, upon leave of absence.

This plan is peculiarly necessary to be adopted in respect to the Grand River Indians; both to ascertain their several claims and to prevent improper influence and dépendance on their Chiefs, and particularly on Brant; who always aims to appear to them, to be the distributor of the Kings bounty.

It would also be of evident public utility, should the Magistrates of those parts of the Province where the Indian presents are distributed attend at their delivery; their permanent situation, their Interest and personal knowledge of the Indians in their vicinity, would render their presence together with the Military Officers a real check against fraud or abuses, and would, probably, add to the Security and peace of the King’s Subjects by shewing to the Savages those Magistrates the Constant Witnesses of their general behavious, as in some measure, vested with Authority in the distribution of the public bounty.

In regard to the Indians without the Boundary of 1783,1 It is apparent that the Indians who visit Detroit in their Canoes from the Lakes Huron and Michigan, may with equal ease by keeping the eastern instead of the Western shore of the Lake Sinclair, ascend the River Thames to Chatham &ca, and,” probably, by proper exertions of the Merchants added to the influence of the King’s Government, may be preserved from becoming the property of the United States, whensoever they shall possess Detroit and of their ready instruments The French Canadians.

In the present state of Affairs, it seems, that the welfare of this Province requires the lessening of the Interest which the Canadians of Detroit possess in the affections oi the Indians, as far as possible, and rather of the two, to throw it, into the hands of the Subjects of the United States; for this purpose, the settlements on the River Thames, and in particular, that at Chatham, may be of great consequence.

It is reasonable to suppose, the Commerce which the United States will carry on with the Indians to the Eastward of the Detroit, will not revert to that Post, should the British Merchants intercept by the Lake Huron and the Thames, the Commerce to the Westward of that Place. Detroit would soon be reduced to be a place of very little importance.

I have thus, My Lord, endeavoured to throw together my Ideas of a regular system. The very execution of its details, as appears by the orders of Your Lordship now before me, and by the general opinion of all classes of Men in this Province requires considerable alteration; the Erection of Upper Canada into a free Government, render in my opinion its continuance on the present footing totally incompatible with the Public Interest, and with the public Duty of those whose Office it is to administer it; and should it be suffered to continue, it would hourly unfold and exhibit a striking Example of the inconveniences of those Systems which exist on the baseless fabric of Effects after the causes from which they have originated have been long antiquated and done away.

1. See page 178, note 1.

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I transmit this present statement to Your Lordship under a strong sense, that I should betray my public trust, did I not openly avow my Ideas of the impropriety of continuing the Superintendancy of the Indian Affairs, on its present footing, as It regards the Province of Upper Canada, and I shall therefore by enclosing a duplicate of this letter to the Duke of Portland in the most Solemn manner represent the dangers of a System which in my Judgment, is injurious to the King’s Service, and inadequate to any good purpose which may be expected from it.

I conceive it to be an Establishment, not only incompetent and dangerous as far as concerns foreign Nations; but to be too extensive in its Objects, and of too great a magnitude as it respects the internal Affairs of this Province, to be for a moment admitted to stand upon any footing whatsoever, seperate and Indépendant of the controul or Superintendance, of the person in whom His Majesty shall be pleased to confide the Government of Upper Canada.

I therefore, if it shall continue on its present Indépendant Footing declare, that I consider the Power and Authority of my Station, requisite for the good Government and internal Welfare of the Province of Upper Canada to be materially and unnecessarily weakened; but more especially should I be permitted to remain in this insecure situation, I beg not to be understood, as responsible for the Continuance of Peace, with the Indian Nations, and as far as their Interests are implicated and interwoven with the Subjects of the United States.

I have the honour to be with great Respect,

My Lord, Your Lordships Most Obedient and most humble, Servant J G SIMCOE

Thee Right Honourable Lord Dorchester.

Endorsed :— A. In Lt. Govr. Simeoe’s of 17th March 1795

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DORCHESTER TO PORTLAND.1

N°. 22

QUEBEC 20th February 1795.

MY LORD,—From the North American Correspondance Your Grace will perceive that this Command, Civil and Military is greatly disorganised: The same Person, it is true, is Governor of every Province, and Commander in Chief of the Forces,2 with Powers apparently in his Commissions to draw forth in times of danger the greatest possible stfength for their Common Defence, and for the no less essential Purpose of enabling him to superintend the whole, and prevent any System of private advantage from insinuating itself unnoticed, to the detriment of the Crown and Empire.

The Minister for this Department is seldom stationary long enough to see through our Colonial Politics, and their interested bias.3 Matters of greater importance at home, constantly require his attention, so that he has not time to make himself master of the Business, or to examine the various.Projects continually pressing upon him from these Provinces, which if properly investigated on the Spot, and afterwards transmitted from hence divested of the delusions of Fancy, and varnish of private Views, would be greatly reduced in Substance, and submitted to his Consideration with a perspicuity that would enable him to judge of the effect they probably might have on the National Interests.

The King’s Commissions being Competent for this Superintendence, it was to be expected that information of all occurrences detrimental to good Government and of all abuses tending to aggrieve His Majesty’s Subjects, would be collected as to a Centre; that nothing might lie concealed, but the whole be corrected without delay by the Servants of the Crown.

Accordingly References from the Minister, and Communications from the several Lieutenant Governors were at first received; and I began to collect Information from all Parts, and to submit the Result to the King’s Confidential Servants.

A different System has been since adopted, tending to revive the old Colonial Practice, which from an early period prepared, and gradually rendered all things favorable for Leaders of Rebellion, to usurp from Government the Confidence and gratitude of the People; and ended in Revolt and Dismemberment of the Empire.

1. From the copy in the Canadian Archives, Q. 71, pt. 2, page 313. 2. Lord Dorchester was at this time Captain General and Governor in Chief of the Provinces of Nova Scotia, New Brunswick, Cape Breton and Prince Edward Island. His Commissions for Nova Scotia and New Brunswick are dated April 27, 1786. The former may be found in the Canadian Archives, M. 588 and the latter in M. 592. 8. Colonial affaira were at this time under the direction of the Secretary of State for the Home Department. Since Lord Dorchester’s appointment as Governor in Chief in 1788, Lord Sydney, Lord Grenville,. Mr Dundas and the Duke of Portland had successively held the position of Secretary of State for the Home Department. 4. The reference is probably to Lord Sidney’s despatch of April 5th 1787, which deals with the Government of the Provinces. It is to be found in the Canadian Archives, Q. 27, pt. 1, page 44. 5. Canadian Archives, Q. 28, page 28. 6. See Parr to Nepean, May 25th, 1787, Canadian Archives, M. 505. 7. Ibid, Q. 28, page 127.

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The great changes occasioned by this Revolution, in the Political situation of these Provinces; their distance from all Succour, and from the Supreme Seat of Government, pointed out the necessity of an Authority on the Spot, to unite and call forth the Greatest Force their Population would permit and to act with promptitude in all Cases where delay might be dangerous.

Thus constituted and united our Colonial strength might be in the Proportion of One to Fourteen, compared with the Foreign Power extending along our Frontier: Yet, in this Critical Situation, the drift of our present Policy is to divide and subdivide, and of this Remnant to form many independent Governments, with as little Communication and as little Connexion as possible; while that of our Neighbours is to consolidate, and of many independent States to form one Government.

Instead of Authority competent to carry on the King’s Service, to distribute orders, regulate their Execution, and enforce Obedience ; it seems to be a measure of Office to withdraw all Power frpm the Person with whom the King’s Commissions have placed it, Communications are made, and directions sent to inferior Officers, whereby the intermediate Authority is virtually superceded; which consequently Acts as a Recall on the Person in the Chief Command: the Injury is not in a Recall, but in the manner of bringing it about, which breaks asunder all Ties of subordination and overturns the Authority of the Crown delegated by the King’s Commission.

No. 3 to Mr. Thus we not only preclude ourselves from the chance of profiting Dundas. by occurrences which the course of time may bring forth, but endanger His Majesty’s Possessions on this Continent still more and more.

Every one is impatient of Restraint, especially in matters of gain; and all things incline to favour Insubordination; with a little more encouragement, we may expect the Fruits thereof at an early Season.

I have said enough, I hope, to convince Your Grace it is necessary for the King’s Service, that this Command be speedily assumed by my Successor,1 with Authority sufficient to restore Order—and to maintain the Interests of the Crown and Empire.

I am with great Respect and Esteem

My Lord Your Grace’s most Obedient humble Servant DORCHESTER

His Grace The Duke of Portland &c &c &c Endorsed—Quebec 20th, Feby., 1795 Lord Dorchester Rd 15. May 1795 And. 27th No. 22.

1. On the 4th September, 1794, Lord Dorchester wrote to Mr. Dundas ” It will give me much satisfaction should they (the Canadian Provinces) escape the Dangers to which they are exposed by their unnatural Con-National Polacy more suited to their Gen- rexion; and that they adopt a eral Interests. Be this as it may, you will perceive Sir, with me, that various reasons concur to mate it necessary for the King’s Service that I retire from this Command; I am therefore to request you will have the goodness to obtain for me His Majesty’s Permission to resign the Command of His Provinces in North America, and that I may return home by the first opportunity.” (Canadian Archives, Q. 69, pt. 1, page 177.) The request was repeated in his despatch No. 61 of October 1st. (Q. 70, page 116.)

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PORTLAND TO DORCHESTER.1 N°. 15

WHITEHALL 27 May 1795

MY LORD

I have had the honor of laying before The King your Lordships letters numbered 22 and 23.

I can assure Your Lordship that I felt great concern at reading your Letter N°. 22 and the more so because from the general terms in which your dissatisfaction is express’d it is not in my power to take those means for removing it which a specification of the particular causes to which it is owing would have enabled me to do and which my knowledge of the Sentiments of all The Kings Confidential Servants with respect to your Lordship authorizes me to answer for their desire and endeavours Jointly with mine to have seen accomplished. Coinciding in opinion with Your Lordship upon the principle of consolidating as much as possible the Strength and Interest of His Majesty’s North American Provinces I must notwithstanding avow that I should have believed on a fair and candid reference to the Correspondence of this Department with those Provinces and to the various circumstances (many of them of an urgent and Extraordinary nature) under which it has been necessarily carried on that Your Lordship could not have thought that it was a measure of this office to withdraw all Power from the Person with whom The King’s Commissions have placed it. and indeed I am most certain that it never was for a moment in the contemplation of my Predecessors to diminish a Particle of that Power in any degree in which the application of it was practicable with respect to your Lordships Military authority which is the first and most important consideration as being most capable of being applied to all the Provinces with a view to their defence and protection taken seperately or Jointly. I have only to refer Your Lordship to my last letter on this subject2 a Triplicate of which I enclose. In this Capacity Your Lordship has ever been considered as corresponding with and directing the Commanders in Chief of the Districts or the Lieutenant Governors as the case may be in all matters of a Military Nature in such manner as you shall Judge necessary and I should be sorry to understand that your direc-

1. From the original copy in the Canadian Archives, G. 539, page 121. 2. Lord Dorchester had asked for a definite statement as to where the chipf Military command in the Canadian Provinces was lodged. The Duke of Portland’s despatch No. 14 contains his reply, ” I am sorry Your Lordship conceives that there is any doubt entertained in any Quarter, of the Chief Military Command being lodged in Your Lordship’s hands— His Majesty’s Pleasure has already been declared in this particular, in the most solemn manner, by His Majesty’s Commission and Instructions to Your Lordship.—I am well aware that the Concerns of the Civil Government of Upper Canada must frequently connect themselves with the Administration of the Indian Department, and that of the Commissariat, so far as they regard that Province; and in all such Cases, I am persuaded that Your Lordship will always be inclined to listen to such representations from the Lieutenant Governor touching those Departments (especially where the Civil Concerns and the improvement of the Province is the Object) as tend to forward His Majesty’s Interests, and those of the Province, which are inseparable:—At the same time, there can be no doubt, but that all matters relating to those departments, are primarily under Yonr Lordshin’s Authority, as Commander in Chief, and to be exercised under your directions, in such manner as you shall judge best for the Public Service.” (Canadian Archives, Q. 71, pt. 2, page 311.)

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tions or representations to them in any case have not been attended to. With respect to such directions of a Military Nature as from the pressure of the occasion and to avoid circuity have been sent from hence to the Commanders in Chief of Districts or the Lieutenant Governors it has from the nature of your Command, been invariably understood and generally expressed to be communicated by them to Your Lordship. With respect to your Civil Authority as Governor General, I have only to observe that as by His Majestys Instructions the Lieutenant Governor of each Province is vested therewith except where you are present it follows of course that such Lieut. Governor must receive his directions from hence respecting the various Concerns of His Civil Government—at the same time, whenever and as often as Your Lordship shall require information from any or all of the Provinces touching such matters as you shall Judge proper to represent to His Majesty I must take it for granted that the Lieutenant Governors do as it is their duty most readily communicate such information to you. and I hope it is unnecessary to add that any representation from you in consequence thereof will always meet with due attention from His Majesty’s Confidential Servants. I have been induced to enter rather more at large into the present subject from the great respect I bear your Lordship and from a wish that you should not continue to entertain an Idea so contrary to my Sentiments as that it would ever have passed thro’ my mind to embarrass or diminish your Authority. From the same respect I wish to forbear giving an answer to the conclusion of your letter as I hope mine of the 25th of December last1 which I observe you have not yet received will render it unnecessary.

Having already in several of my Letters expressed my sense of the Attention of your Lordships Governmt to the Revenue of the Province I shall not trouble you with a repetition of it in answer to your Letter inclosing the Council Minutes on matters of state from the 18th Jany to the 14th February last.

The Diminution of 38 Per Cent on the Collection by Licenses under the Act of the 14th of His present Majesty demonstrates the expensive System on which this duty is collected and the saving which may be made by the amount of the Duties being collected under Acts of the Legislature in effecting which the frequent instances

1. in his despatch of July 5th, 1794, Mr. Dundas had expressed apprehension lest Lord Dorchester’s answer to the message from the Indians of the Upper Country might provoke hostilities with the United Statets. (Canadian Archives, Q. 67, page 177.) This had been viewed by Lord Dorchester as an expression of censure and had been one of the causes of his request for leave to retire. (See page 184.) The Duke of Portland’s letter of December 25, 1794, makes reference to the statement of Mr. Dundas and to Lord Dorchester’s interpretation of it, he says, ” Under such an impression therefore Your Lordship must give me leave to say that I see nothing in the fair liberal and necessary suggestions contained in my Predecessors correspondence with you on this subject which should at all incline you to consider them as reasons for proposing to retire from your present Command. I cannot but hope that the time you have had to consider them may have already conciliated Yoar Lordship to the opinion I have the honour of submitting to you; and I hope it not less from the sincere respect and regard I bear Your Lordship for your long faithful and meretorious Services than from a conviction of the great prejudice which must arise to His Majesty’s Service if such representations as His Majesty’s Confidential Servants judge requisite to make are not offered and received with that mutual frankness, candour and good will which the nature of the case and the Duties of the respective stations of the Parties necessarily require.” (Canadian Archives, G. 539, page 101.)

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I have had of Tour Lordships Zeal on similar occasions assure me of your successful as well as your best exertions.

I have the honor to be &c. Signed. PORTLAND.

Rt Honble LORD DORCHESTER.

PORTLAND TO SIMCOE.1

WHITEHALL, 3d Septr 1795.

Lt Govr Simcoe, N°8.

SIR,

I have received and laid before The King your Letters of the dates and numbers mentioned in the Margin with their several Inclosures. As your Sentiments respecting the Commissariat and the Indian Department but more especially respecting the latter, are fully detailed in Nos 20 and 21, it will not be so necessary for me in my Answer to these points to advert to Nos 18 and 19, as they discuss the same Subjects.

From the terms in which I have already stated my opinion as to the Nature of those Departments, both’ in my Letters to Lord Dorchester and Yourself, I should hope that their execution under their present Constitution, might be carried on with the best possible effect, both to The King’s Service, and the Civil Interest of the Province of Upper Canada.

From the nature of those Departments they are placed, and allowed to be properly placed under the Authority of the Commander in Chief in the first instance, with powers to be delegated by him, and executed under his directions. When Upper Canada became a separate Province, it evidently appeared that those Departments, particularly the Indian, would in many respects bear an intimate relation to, and have connection with the Civil Policy and Government of that Province. This Circumstance naturally led to representations, that the Commander in Chief, in exercising his primary Authority over those Departments, in cases where their Administration was connected with the Civil Policy and Government of Upper Canada, would of course arrange such Administration upon communication, and in concert with the Person entrusted with the Executive Authority of that Province, although the Authority over the Departments themselves continued (as it still does) to be vested in the Commander in Chief.

Having thus shortly stated the case, as it actually stands, I cannot but seriously regret the want of that Mutual Concert and arrangement which appear to me to be so easy and practicable, and which are of such Consequence at this moment, when so much depends upon a proper impression being made on the minds of the Indians within the Boundary Line of 1783, in the Upper Province.2 As far as my own ideas go, I êfaould be more inclined to confine any part of the Authority of the Indian Department which might be delegated by

1. From the copy in the Canadian Archives, Q. 281, pt. 2, page 376. 2. See page 178, note 1.

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the Commander in Chief in certain Cases^ touching the Civil Government of Upper Canada to the Lieutenant Governor in person, than to the Lieutenant Governor and Council. The Concert and Communication between those two great Officers would by this means be more immediate, and better kept up—And I should imagine that the same assistance might be received by the Lieutenant Governor from the Officers in the Indian Department merely as such, in Upper Canada, (in Consequence of Orders from the Commander in Chief for that purpose) as if they joined to their situation, that of being Members of the Executive Council of that Province.1

The Circumstances which have delayed the publication of our Treaty with America, are highly to be lamented, as no time should be lost in preparing the minds of the Indians for the Evacuation of the Posts, conformably to the Ideas expressed in my former Letters on this Subject of the 19th of November and 8th of January last.2

Some of the Measures suggested in Tour Letter to Lord Dorchester of the 9th of March last, especially those which relate to holding General Councils of the Indians, would I conceive, be very conducive to this purpose, and might be the means of giving them a true notion of their future situation with regard to us, and of the nature of the present Treaty, which in fact, by giving up the precarious and contingent tenure of the Posts, secures to us and the Indians, both within and without the Line of 1783, the most unrestrained intercourse and communication, and both the power and the means of trading with each other to an extent, which is denied to the Americans, from the very nature of their situation with regard to the Indians.

I am &c.

PORTLAND.

Endorsed :—Drat. To Lt Govr Simcoe 1795. N° 8.

1. See Simcoe’s recommendation regarding the control of the Executive Council over Indian Affairs, page 180. 2. See Canadian Archives, Q. 281, pt. 1, page 2.

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ADDITIONAL INSTRUCTIONS RELATING TO THE INDIAN DEPARTMENT.1

GEORGE R.

(L.S.) C.O. (Quebec 1795-1801. Vol. 3.)

ADDITIONAL INSTRUCTION to the Governor Lieutenant Governor or the Person Administering the Government of Our Province of Upper Canada for the time being. Given at Our Court at Saint James’s the 15th day of December 1796 In the Thirty seventh Tear of Our Reign.

WHEREAS we judge it to be conducive to the better Eegulation of Our Concerns with the Indian Nations within Our Province of Upper Canada, that the same should be conducted by the Person exercising the Government of Our said Province for the time being. It is therefore Our Will and Pleasure, That you do take upon you the Conduct and Management of Our Concerns with the said Indians within the Province of Upper Canada, and that you do from time to time give to all Persons whom it may concern, such Directions for the due Execution of these, Our Instructions, as occasion may require, such Directions nevertheless to be subject to any special Orders directed to you, from such Person as shall at any time be constituted & appointed by Us to be Governor General of Our Provinces in North America. And It is Our Will and Pleasure, That all Persons holding Commissions in the Indian Department within Our Provinces of Lower and Upper Canada, so far as the same relates to the Province of Upper Canada, shall follow such Orders and Directions as they shall from time to time receive from you in the Execution of this Our Instruction, any thing in the said Commissions to the contrary notwithstanding. And you are in case of any Vacancy in any Office or Place in the said Indian Department within Our Province of Upper Canada, to transmit to Us by the first opportunity thro’ one of Our Principal Secretaries of State, the name of such Person, with an Account of his Character and Services, as You shall esteem to be best qualified for fulfilling the Duties of such Office, for Our further Directions therein.

GEORGE R.

OPINION OF ATTORNEY GENERAL SEWELL ON THE AUTHORITY OF THE RECTORS, CHURCHWARDENS AND VESTRIES OF THE CHURCH OF ENGLAND.2

To His Excellency the Right Honorable Guy Lord Dorchester, Captain General and Governor in Chief, in and over the Province of Lower Canada &c &c &c

My Lord,

Your Lordship having been pleased to refer to my Consideration a Letter from the ReV1. Mr. Doty and others officiating as the Rector, Wardens and Vestry of Christ

1. From the copy in the “Instructions to Governors, Upper Canada, 1791-1839.” Canadian Archives, M 232, page 47. Further representations were made by Lieutenant-Governor Simcoe and by Mr. Russell urging a change in the administration of the Indian Department in so far as it related to Upper Canada. The retirement of Lord Dorchester and the appointment of a new Governor in Chief afforded an opportunity for making the proposed alteration. Accordingly this Additional Instruction was issued to accompany Lieutenant-General Prescott’s Commission as Governor-in-Chief. 2. From the original in the Canadian Archibes, Sundry Papers, Secretary of State, October, 1795.

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Church in the Borough of William Heniry to the Lord Bishop of Quebec, requiring an Answer to the following Question,

“Whether the Rector, Wardens and Vestry or Sidesmen of that Church are a Corporation, having Authority to call Parish Meetings for the purpose of assessing the People,”—

I have now the honor of submitting my Opinion to Tour Lordship’s Consideration.

By the common Law of England, Churchwardens are certainly the Guardians or Keepers of the Church and Representatives of the Body of the Parish; a kind of Corporation, not perfect, but with power to repair the Church, and to make Rates and Levies upon the Parishioners for that purpose, recoverable in the Ecclesiastical Courts.

The Common Law of England however in the aggregate, forms no part of the Law of Lower Canada, it being an established Principle, that in conquered or ceded Counties, The antient Laws remain, until the King or Parliament shall have actually set them aside. This is particularly the case im Lower Canada, where the antient Law still subsists and is in fact the Common Law of the Province under a declaratory Act of Parliament.

From the common Law of England, (in which I include the Canon Law of England,) we cannot, I think, derive the powers and Authorities of the Rectors, Churchwardens and Vestries of the Church of England in Lower Canada; and in the antient Law of Canada, which recognizes the Ohurch of Borne only, it is in vain to search for the Powers and Authorities of Protestant Institutions

The Statutes of the British Parliament and Acts of the Provincial Legislature, are the only remaining Sources, to which we can look for the Powers, which the Letter referred supposes inherent in the Rector, Churchwardens and Vestry of the Parish of William Henry; and I must Confess I know not of any Statute or Act from which they can be derived.

I am therefore of Opinion, that the Persons officiating as the Rector, Wardens and Vestry of Christ Church in the Borough of William Henry are not a Corporation and have not any Authority to call Parish Meetings for the purpose of assessing the People.

The Letter referred proposes an extent of Inquiry infinitely beyond the bounds of an Opinion; But as I Conceive the immediate Object of the Writers will be answered by what I have already said, and that the Grounds of this Opinion will prove the Sentiments which I must necessarily hold on the remaining points submitted for my Opinion I humbly hope, that Tour Lordship will be pleased to dispense with any further Eeply to the Inquiry, on my part—The Object is of the first Importance, calls loudly for Legislative Interference and perhaps at this Moment ought not to be too minutely scrutinized.

All which nevertheless is most respectfully submitted By

My Lord

Your Lordships most faithful & most

Obedt. Servant

J. SEWELL.

Attorney General.

Quebec 10th June 1795.

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OPINION OE ATTORNEY GENERAL SEWELL ON THE RIGHT TO COLLECT TYTHES.1

Copy/ Province of Lower Canada

L.S.

To His Excellency The Right Honorable Guy Lord Dorchester Captain General and Governor in Chief in and over the said Province of Lower Canada &c. &c.

My Lord,

In obedience to Your Lordship’s Commands signified to me by Mr. Secretary Coffin in his Letter to me of the 24th of August last, by which I was directed to take into consideration the 39th Section of the Statute 31 Geo 3. ch. 31. and to report to Your Lordship my Opinion whether Protestant Ministers of the Ohurch of England, duly presented to any Rectory or Parsonage erected under that Act in Lower Canada, will be entitled to demand Tythes of their Parishioners by virtue of the above Section ; I have maturely considered the Statute so far as it relates to the subject and have now the honor of submitting my Opinion to Your Lordship.

The 39th Section of the Statute 31. Geo 3. ch 31. is in these words—”And be it further enacted by the Authority aforesaid, that it shall and may be lawful for His Majesty, his Heirs and Successors to authorize the Governor Lieutenant Governor or Person administering the Government of each of the said Provinces respectively, to present to every such Parsonage or Rectory an Incumbent or Minister of the Church of England, who shall have been ordained according to the Bules 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 & amply and in the same manner and on the same Terms an|d Conditions and liable to the performance of the same Duties, as the Incumbent of a Parsonage or Rectory in England.”

The Question therefore for consideration is, Does the Right of Tythes belong by Grant or otherwise to any Protestant Rectory or Parsonage, erected under the Statute 31. Geo 3. c. 31. in Lower Canada? For the Canadian Incumbent according to the Statute is only to enjoy the Rights belonging to or granted to his Rectory or Parsonage, in like manner as an Incumbent in England enjoys the Rights of his Rectory.

The Right of Tythea in England is founded upon the Municipal Law, the same in Prance and in Canada (with respect to the Catholic Clergy) It is grounded upon two Edits of Lewis the XIV made in April 1663 and May 1679,2 and on Ordinance of the superior Council of Canada of the 4th of September 1667. The Idea of Tythes Jure divino has long since been exploded in England, in France and in Canada. In what Law then is founded the Right of Tythes supposed in the case in Question ? From the Law of England it cannot be derived, for generally speaking, the Common Law of England forms no. part of the Civil Jurisprudence of Canada f and I am clearly of Opinion, that an Incumbent in Canada, cannot ground a Pretension to a Right of Tythes,

1. From the copy in the Canadian Archives, Q. 74, pt. 2, page 222. 2. The edict of April, 1668, authorized the founding of an ecclesiastical Seminary at Quebec, and in support of it granted certain specified tithes and the civil powers possessed by other religions communities in France. The edict of May, 1679, was particularly concerned with the question of tithes and contained specific regulations respecting the levying of tithes, the rights of parish priests of the founders of parishes and of seigneurs on whose Lands Churches were built. See the Edicts Ordonnances Royaux Declarations et Arrets du Conseil d’Etat du Roi, edition of 1854, pages 55 and 231. S. Confusion is apt to arise from the use of the word “Canada” throughout this opinion. In this particular case the Attorney General is referring to Lower Canada only. On the question of the application of English law to Upper Canada, see page 83.

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upon the Common Law of England alone, nor can he upon the English Statute Law, for the English Statute Law extends to Canada, only in Oases where Canada or the British Colonies are expressly mentioned ; and with respect to Tythes in the Colonies, the Statute Law is totally silent. It is true a grant of Tythes might be derived under the Law of England, from another Source, for, His Majesty by Right of Conquest, became the sole Legislator of Canada, and a Right to appropriate certain Tythes has been reserved to him by Statute 14 Geo : 3. c. 83 ; 1 but in fact while His Majesty remained the sole Legislator of Canada, he did not grant to any Protestant Rectory, those Tythes which were reserved by the 27th Article of the Capitulation, granted by General Amherst in 1760,2 or any other Right of Tythes, and he hath not since the year 1774, made any appropriation or granted to any Protestant Rectory, those Tythes which were reserved for his Disposition by the 6th Section of the Act 14th Geo 3. c. 83. The Law of France with respect to Tythes in Canada, hath been abrogated by the Edicts of Lewis the XIV, which are before cited and tho’ the Law of Canada, of which these Edicts are part provides for the maintenance of the Catholic Clergy by Tythes, yet in the Law of Canada, where, as I have remarked, in a former Report on a Subject connected with the present, the Protestant Religion was not tolerated, we cannot expect to find a Right of Tythes, granted to Protestant Rectories.3

It may be argued that the 39th Section of the Act 31st Geo 3. ch 31. absolutely gives to Canadian Incumbents, all the Rights of an English Incumbent, but I cannot conceive that the words of this Section will by any means warrant such a Construction. With respect to Tythes, it must be remarked, that very few Incumbents in England receive the same Tythes, how then shall we determine what Incumbent in England shall be the English Incumbent mentioned in the Act, whose Rights the Canadian Incumbent is to enjoy, or shall we presume that each Individual Incumbent in Canada is to enjoy, the various Rights of Tythes belonging to all the English Incumbents collectively? Which to the ruin of the Canadian Subject would give Tythes in Canada upon almost every thing, even Houses, which by custom are tithable in London. This could never be the intention of that Legislature, who for the ease of the Canadian Subject have provided by the same Act an especial fund for the Maintenance and support of a Protestant Clergy in Canada, and declared by Statute 18th Geo 3. c. 12. that they would 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.

I have slightly remarked upon! the Reservation of Tythes for the future disposition of the Crown by the Statute 14 Geo : 3. c. 83. To what I have said, I think it proper to add, that the 5t h and 6t t Sections of this Statute in consequence of the 27th, Article of the Capitulation granted by General Amherst imi 1760 enacts,—” That the Roman Catholic Clergy in Canada may hold, receive and enjoy their accustomed dues and rights with respect to such Persons only as shall profess the Roman Catholic Religion, Provided nevertheless, that it shall be lawful for His Majesty, His Heirs or Successors to make such Provision out of the rest of the said accustomed Dues and Rights 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 shall from time to time think necessary and expedient.”

I have said that of these accustomed dues and rights, the Right of Tythes is one and that it hasi not yet been granted by the Crown to any Protestant Rectory, and is not therefore a Right which any Canadian Incumbent can enjoy under the 39th Section of the Statute 31st Geo 3. c. 31., but I would not be understood to infer from

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 403. 2. Article XXVII. of the Capitulation of Montreal stipulated that the obligation to pay tithes should depend on the King’s pleasure. See Constitutional Documents, 1759-1791 Short and Doughty, 1907, page 25. 3. See page 189.

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thence that such an Appropriation may not be made should His Majesty think it expedient.

Upon the whole I am of opinion ” That Protestant Ministers of the Church of England duly presented to any Rectory or Parsonage erected in Lower Canada will not be entitled to demand Tythes of their Parishioners by virtue of the 39th Section of the Statute 31. Geo 3. c. 31.”

All which is most respectfully submitted, to

Your Lordship’s Consideration by

My Lord Your Lordship’s m.o. & m.h.s.

J. SEWELL Attorney General.

Quebec 1st October 1795. Endorsed—F.

In Lord Dorchester’s N°. 65. to the Duke of Portland

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AN ACT RESPECTING THE ELIGIBILITY OF PERSONS TO BE ELECTED TO THE HOUSE OF ASSEMBLY, UPPER CANADA.1

IN THE THIRTY FIFTH YEAR OF GEORGE III.

CHAP. II.

AN ACT to ascertain the Eligibility of persons to be returned to the House of Assembly.

WHEREAS many natural born subjects of his Majesty, who have sworn allegiance to other states and powers, and been resident in the dominions of the same, have been induced, or may hereafter be induced, by the excellency and lenity of his Majesty’s government, to become inhabitants of this Province; and whereas it is inexpedient that such persons should be immediately admitted to all the privileges of British subjects ;257 Therefore be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of, and under the authority of an Act passed in the Parliament of Great Britain, 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,” and by the authority of the same, That from and after the passing of this Act, no person or persons of what condition soever, coming from any part, place or country, not being under his Majesty’s government at the time of the passing of this Act, and not having been a bona fide subject of the King for and during the term of seven years next preceding the passing thereof, shall be eligible to be proposed, chosen or elected as a representative, or representatives of any county, city, riding, borough or other place, of any description now or hereafter sending a representative or representatives to the House of Assembly of this Province, until such perso» or persons shall have resided for and during the space of seven years, next ensuing the day of his coming into and settling as a subject in the said Province.

II. And be it further Enacted, That no person or persons of what condition soever, that shall or may have come into this Province be-

1. From the printed copy of the Statutes of Upper Canada, edition of 1802. This Statute was repealed by the Act 54 Geo. III. cap. IV. 2. The only legal restrictions on the eligibility of persons to be elected to the “Legislative Assembly were those imposed by the Constitutional Act of 1791. It was there required that a candidate be of twenty-one years of age, “a natural-born Subject of His Majesty, or a subiect of His Majesty naturalized by Act of the British Parliament, or a subject of His Majesty having become such by the Conquest and_ Cession of the Province of Canada.” Members of the Legislative Council, Ministers of the Church of England, or Ministers, Priests or teachers under any form of religious faith were excluded as also were persons attainted for treaso* or felony. See Constitutional Documents, 1769-1791, Shortt and Doughty, 1907 page 699.

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fore the passing of this Act, from any part, place or country, not being under his Majesty’s government, and not having been a bona fide subject of the King, for and during the term of seven years next preceding the passing hereof, shall be eligible to be proposed, chosen or elected as a representative or representatives of any county, city, riding, borough or other place of any description, now or hereafter sending a representative or representatives to the house of assembly of this Province, until such person or persons, shall have resided in the said Province, for and during the space of seven years next preceding the passing of this Act.

III. And be it further Enacted, That if any person or persons of what condition soever, coming from any part, place or country, not being under his Majesty’s government at the time of the passing of tiiis Act, and not having been a bona fide subject of the King, for and during the space of seven years preceding the passing thereof, and who shall and may have come into this Province before the passing of this Act and settled as a subject therein, from any part, place or country, not being under his Majesty’s government at the time of the passing of this Act, and not having been a bona fide subject of the King for seven years preceding the day of his coming into this Province, with an intention to become a subject of the King, and his settling as such within the same, shall propose or offer himself or themselves as a candidate or candidates to become a representative or representatives of any county, city, riding, borough or other place, now or hereafter sending a representative or representatives, until such person or persons shall have resided for and during the term of seven years next ensuing the day of his coming into and settling as a subject in the said Province; and shall be thereof convicted, by the oath of any one credible witness, shall forfeit and pay the sum of one hundred pounds ; to be recovered by any person who shall sue for the same, in hia Majesty’s court of his bench in this Province; by action of debt, bill, plaint or information, wherein no essoin, privilege, protection or wager of law shall be allowed, and only one imparlance, one half of which said sum shall be given unto the person sueing for the same; and the other half paid into the hands of his Majesty’s receiver general, to and for his Majesty, his heirs and successors, for the public uses of the said Province and support of the government thereof; to be accounted for to his Majesty, through the commissioners of his treasury for the time being, in such manner and form as his Majesty shall direct.

IV. And be it further Enacted, That if any person or persons of the description aforesaid, coming hereafter to settle in this Province, or being therein settled as aforesaid, before the passing of this Act, shall be chosen or elected a representative or representatives (whether smch person or persons shall have proposed or offered him or themselves as a candidate or candidates or not) of any county, city, riding, borough or other place of any description, now or hereafter sending a representative or representatives to the House of Assembly of this Province as aforesaid, and shall presume upon such choice or election to obtrude or present himself or themselves into the said House as a representative or representatives as aforesaid; he or they, shall forfeit and pay the sum of twenty pounds (over and besides the foregoing penalty, if Bush person or persons shall have incurred the same)

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for every that day he shall so obtrude or present himself or themselves, to be recovered by any person who shall sue for the same, in his said Majesty’s court of his bench, by action of debt, bill, plaint or information wherein no essoin, privilege, protection or wager of law shall be allowed and only one imparlance ; one half, of which said sum, shall be given to the person suing for the same, and the other half paid into the hands of his Majesty’s receiver general; to and for his Majesty, his heirs and successors, for the public uses of the said Province, and the support of the government thereof, to be accounted for to his Majesty, through the commissioners of his treasury for the time being ; in such manner and form as it shall please his Majesty to direct.

SIMCOE TO PORTLAND.1

N°. 13. Kingston Upper Canada.

My Lord Duke, December 21st 1794.

In the present situation of Affairs in this Country, I beg to offer for Your Grace’s immediate Consideration some important Objects which will be affected by the Arrangement now under Contemplation between His Majesty and The United States; these Objects relate entirely to the civil Government.

A Principle on which I have considered this Government as most wisely established, and which I have never lost sight of in its Administration, has been to render the Province as nearly as may be a perfect image and transcript of the British Government and Constitution. In the pursuance of this Object and in order to give weight and respectability to the Legislative Council, which his Majesty and the Parliament had constituted as a Branch of Government, I thought it proper, having divided the districts into Counties2 to create Lieutenants3 selecting them where practicable from the Legislative Counsellors and giving to the Lieutenants as nearly as circumstances would admit, the appointments or recommendation of the Magistrates, and the nomination of the Officers of the-Militia, as stated in the Circular Letter I beg to enclose to Your Grace—4 I have reason to believe this arrangement will in due Progress answer the intention.

The Towns of Kingston and that on the River Niagara from their situation must be places of great resort. I therefore beg to submit to Your Grace, That I think, It would be for the public Interest and the Kings benefit, that These places should be incorporated and named the Cities of Kingston and Niagara; I should propose that the Corporation should consist of a Mayor and six Aldermen, Justices of the Peace ex officio, and a competent number of Common Council, to be originally appointed by the Crown, and that the succession to vacant seats might be made in such a manner as to render the Elections as little popular as possible; meaning such Corporations to tend to the support of the Aristocracy of the Country.

1. Prom the copy in the Canadian Archives, Q. 281, pt. 1, page 164. 2. Por the Proclamation dividing Upper Canada into Counties, see page 77. 3. Writing to Mr. Dundas, Nov. 4th, 1792, Lieut.-Governor Simcoe reports. ” In order to promote an Aristocracy most necessary in this Country, I have appointed Lieutenants to the populous Counties, which I mean to extend from time to time; and have given to them the recommendatory Power for the Militia and Magistracy as is usual in England—of course, those persons are selected, whom I have found at the Head oí the respective Counties.” Canadian Archives, Q. 279, pt. 1, page 85. On Nov. 2nd, 1792, Commissions were issued to Lieutenants of the Counties of Essex, Prince Edward, Stormont, Dundas, Glengarry, Lincoln, Frontenac and Kent. Lieutenants were later appointed for the Counties of Grenville, Lennox, Addington, Leeds and York. 4. See page 198.

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I should propose that these Corporations should have maritime Jurisdiction, if such shall either at present or in future be necessary to take place on the Lakes and River St Lawrence—The whole Jurisdiction of Lake Ontario might well be divided between Niagara and Kingston and the intermediate Port of York.

The St. Lawrence might be divided between Kingston and Cornwall or New Johnstown—Erie might be divided between Niagara and the Post to be taken near to Long Point. From thence the Jurisdiction of Long Point, might extend to the Isle Bois blanc, and from thence, that of Chatham might begin and terminate at Cabots Head (Pennatangushene) or Gloucester1 should comprehend all the Maritime Jurisdiction beyond that on Lake Huron and Superior and the North Western territory.

It also appears, and possibly more eminently necessary, that I should observe to Your Grace, the propriety of establishing, probably by Treaty with the United States, some law to prevent Criminals of a certain description finding refuge in His Majestys dominions and those of the States, respectively. It appears to me that a vigilant Police is most necessary on the limits of the two Countries for that express purpose; and perhaps, It may be proper to enact stricter Laws on this Subject, and applicable to particular Spots, that might not be justifiable or necessary to be extended over the other parts of the Province—The straits of Niagara and the Port of Kingston are the general places at which strangers enter the Province, and where People leave it, It seems therefore, that establishing a Corporation at these places with adequate jurisdiction may be of public Service in these respects.

Great Britain from its insular situation (as far as I recollect) affords no examples of English laws being applicable to boundaries respecting a foreign Neighbour; and in particular, of communications by water; a division on which must form such a boundary.—The term debateable land, when England and Scotland were seperate Kingdoms seems to support the propriety of my wish that so soon as possible the Laws may define & comprehend for the purposes of internal Government both the land and water under certain Jurisdictions.

I have to observe to Your Grace these proposed Corporations, should have the right of “suing and being sued and sufficient powers for giving efficacy to all internal regulations and by these means of promoting the welfare of the Community, without any of those monopolies which exist in European Corporations—

The Basis adopted for an equal Representation of the People of the Province was Its population, ascertained by the Militia Rolls—This Principle, liable from its own nature, and the situation of the Cîountry to fluctuate, will in a more particular manner become unequal, should Detroit be relinquished to the United States—It therefore appears to me, seasonable that I should request Your Grace’s directions on what established Principle the Extension of the number of Representatives should hereafter take place? and It may be worthy of your consideration whether in the present peculiar Instance It may or may not be proper to give the Right of electing Members to the Inhabitants of the proposed cities of Niagara and Kingston; which certainly will add to their respectability—both, should include a competent tract of Ground, and for all purposes, the former should include Queensiown, where some Proprietors mean to build largely the ensuing Year, and the present town of Newark.

In respect to existing circumstances, It appears to me of consequence, That Niagara should be incorporated so soon as possible, were it only to preserve its name in the Kings Dominions. It is the policy of the United States to call themselves Bolely Americans, not only with the view to melt down in that general name every part of their Confederation, but to enforce when time shall suit, their principle, ” that

1. Cabot’s Head and Penetanguishne are not the same place as this would seem to indicate. The point which forms the Northeastern extremity of the Bruce Peninsula was then known as Cabot’s Head. Gloucester was the name given to the small bay at the mouth of the River Severn.

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all Colonies connected with European Governments, or depending upon them are foreign, and invaders, and that They themselves only are the Natives.”

Having no Chief Justice,1 and being at a distance from the Attorney General2 I have thought proper at the present Crisis to offer These ideas to Your Grace In hopes that should they be deemed worthy of attention, Charters of incorporation with such powers may be forwarded to me from England, before the meeting of the next Session; and I am to observe to Your Grace, That as by Act of Parliament3 the ensuing Session will be the last of the present House of Assembly, It will be provident, to pass every Bill, that may be necessary before it be dissolved, as it not be probable that a more loyal or better disposed set of men will be again reassembled.

It has been represented to me, that the Act of Parliament which established the Constitution of this Country, specifying that the Lands should be granted in free and common soccage4, is at variance with His Majesty’s Instructions which preclude my granting Lands without The reservation of Mines which may be discovered5; and It is stated to me that a Grant in free and common Soccage reserves only to the Crown, Mines of Silver and Gold.

I shall be glad of Your Grace’s immediate directions on this Point; in particular as I meant to submit to you whether the grant of Iron Mines might not be made by the Government of this Country, there is every probability that They may be usefully worked—And I presume that His Majesty’s Ministers do not mean to follow any system which may preclude such rude Manufactures as may be necessary for the benefit of the Country.

* * * * * « * * *

I have the honour to be with great Respect and Deference.

My Lord Duke Your Graces’s most Obedient and most humble Servant J G SIMCOE.

His Grace, The Duke of Portland &c, &c, &c.

Endorsed:—Upper Canada, 21st Dec1. 1794. Lt. Govr. Simcoe, T. 1st May. Ansd. N°. 13.

ENCLOSURE. SIMCOE TO LIEUTENANTS OF COUNTIES.6

(Copy.)

Sir

Having thought it necessary for the public benefit to create Lieutenants of those Counties within the Province which are sufficiently populous to require such a

1. Chief Justice Osgoode had been removed from Upper Canada to succeed Chief Justice Smith in Lower Canada. The appointment of Mr. Elmsley as Chief Justice of Upper Canada was not made until 1796. 2. The Attorney General was Mr. John White, who came out from England in 1792, and who was elected to the first Assembly for the counties of Leeds and Frontenac. Mr. Wh’ifce resided at York. 8. See Article XXVII. of the Constitutional Act, Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 700. 4. See Article XVIII. of the Constitutional Act. 5. See Article 40 of the Instructions to the Governor of Upper Canada, page 43, 6. Prom the copy in the Canadian Archives, Q. 281, pt. 1, page 173. Simcoe elsewhere states that this letter was dated Nov. 1st, 1792.

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Superintendency, I enclose to you a Commission under the Great Seal of Upper Canada appointing you Lieutenant of the County of — — — — —

It may not be improper to observe that this high office under the Constitution of Great Britain is generally conferred upon the Persons who seem most respectable to His Majesty’s Government for their property, Loyalty, Abilities and Discretion in their several Counties, and who from a combination of such Possessions and Qualities acquire that weight, respect and public confidence which renders them the natural support of Constitutional Authority.

If on the one hand this Office has been at all times bestowed by the Sovereign with the Circumspection and Caution due to the Important Trusts which it involves; on the other; it has been a principal object of honourable Ambition which the British Constitution approves in the first Men of ye State making a due provision of Power for that legal Aristocracy which the Experience of Ages has proved necessary to the Ballance and Permanency of her inestimable form of Government.

In Naming You, Sir, to this office on the first establishment of the true British Constitution in her Colony of Upper Canada, I am influenced by the Consideration of finding you already at the Head of the Civil Jurisdiction of the County in which you reside, and having the same Opinion of Your Loyalty, and Character which occasioned Your Original Appointment, I am happy in adding my public Testimony to that of Lord Dorchester.

It is my wish, that the Magistrates whom you are now to superintend may appear to you to be worthy to be continued in Office, but should there be Improper persons in that Station, You will be pleased without hesitation to give me the necessary Information.

A Commission will probably be issued soon after the meeting of the Legislature, agreeably to the British Custom including Such persons in each County as shall appear proper to be continued, or added, if any Addition shall seem necessary to the Several Lieutenants as Justices of the Peace.

In regard to the Militia of your County, as it is to be supposed that the Legislature will shortly frame a General Act for the Province,1 I should not wish at present to make any Alterations in its Officers; You will be pleased however to be prepared with such lists as may be necessary to fill up any Vacancies or to supply any Augmentation, should such appear requisite—All Commissions are to be recommended by you, and if then they shall be approved by me, they are to be signed as in the British Act by you as Lieutenant— — —I beg to observe that I consider all those who keep Taverns, however respectable in their private Characters; as not admissable either as Officers of the Militia or Justices of the Peace. You will be pleased to take the Customary Oaths with as much Publicity and Solemnity as possible.

I am Sir &c.

[signed] J. GRAVES SIMOOE

Endorsed:—N°. 1 in Lt. Governor Simcoes, N°. 13 To the Duke of Portland, of the 21st. Decr 1794.

1. A general Militia Act, 33 Geo. III, cap. I, was passed by the Legislature in its next session and in it the position of the Lieutenants of Counties was formally recognized.

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COMMISSION TO LIEUTENANTS OF COUNTIES, UPPER CANADA.1

GEORGE the THIRD by the Grace of God of Great Britain France and Ireland KING Defender of the Faith &c &c

To Our Trusty and welbeloved Alexander McKee Esqr2 Greeting;

We reposing especial trust and confidence in your loyalty courage and prudence, have constituted and appointed and by these presents do constitute and appoint you to be Our Lieutenant in and of Our County of Essex in Our Province of Upper Canada, to have hold exercise and enjoy the said place and office together with all rights, privileges and advantages to the same belonging or appertaining during Our pleasure, and We do hereby authorize and empower you to muster array and exercise all and every the Militia within your said County, and to cause the same to be mustered arrayed and exercised according to such instructions as from time to time shall be given or sent to you, by Our Governor Lieutenant Governor or person administering the Government of Our Province aforesaid.—

IN TESTIMONY WHEREOF We have caused these Our Letters to be made Patent and the Great Seal of Our Province of Upper Canada to be hereunto affixed—Witness Our Trusty and welbeloved John Graves Simcoe Esqr Our Lieutenant Governor Colonel commanding Our forces in Upper Canada

At Our Government House Navy Hall in the County of Lincoln this 2nd day of November, One Thousand Seven Hundred and Ninety-two, and in the Thirty-second year of Our reign.

(Signed) Wm. Jarvis Secy.

SIMCOE TO PORTLAND.3

N°. 16.

Upper Canada Kingston January 22d. 1795.

My Lord-Duke.

In addition to the objects, stated in my Letter, N° 13,4 I have reserved a subject of great importance which at the present crisis it seems eligible should be distinctly submitted to Your Graces consideration.

I refer to the propriety of immediately establishing, or not, some positive principle or rule for the due application of any Income which may hereafter arise from the lands directed to be reserved for the benefit of the Crown; agreeably to the opinion of his Majesty’s Ministers as contained in the Extract of Mr. Secretary Dundas Letter herewith enclosed.

There is perhaps no distinct Article of the Provisions made in support of the Establishment of the British Government in Upper Canada more just in appearance, and that I trust may become more efficacious in the result, than ” that the Extent of these Preservations should not be less than what has been directed (by Act of Parliament) to be allotted for the Protestant Clergy.”5

The General and partial Arrangement of such Eeservations ; The Securing of them from undue Encroachments; and the Application of them to public purposes, are, severally, objects of much difficulty, and that require great Attention and Management.

1. This copy of the Commission issued by Simcoe is taken from ” Lib. A. Commissions, folio 18 ” in the office of the Secretary of State for Canada. The Commission to Alexander McKee is selected because of its being the first issued to Lieutenants of Counties. 2. See page 178, note 2. 3. Prom the copy in the Canadian Archives, Q.281, pt. 1, page 220. 4. See page 196. 5. See the despatch of Mr. Dundas to Lord Dorchester, No. 1 of September 16, 1791, quoted supra, page 59. note 3.

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The establishment of the British Constitution in this Province may be contemplated as a most wise and necessary measure, in a variety of respects, but more especially, as offering the best Method gradually to counteract, and ultimately to destroy, or to disarm, the Spirit of democratic Subversion, in the very Country which gave it existence and growth; and this it is reasonable to believe may be effected, by exemplifying a better practical system of internal Government, than the seperate States of America can possibly demonstrate; and setting forth the Superior Advantages which an Union with Great Britain presents to this Province to what can be offered to the Subjects of the various States by their Confederation.

I beg to observe, that as it was on this foundation that I undertook the Administration of the Government of the Province of Upper Canada, so I can assure Your Grace that in no one instance in my power have I willfully departed from its principles, I have therefore endeavoured to establish the form as well as the Spirit of the British Constitution by modelling all the minutest branches of the Executive Government after a Similar system, and by aiming as far as possible to turn the Views of His Majesty’s Subjects from any attention to the various modes and customs of the Several Provinces from which they emigrated, to the contemplation of Great Britain Itself, as the sole and primary Object of general and particular Imitation.

It is evident, that in the due course of events an Uniform Adherence to this point; just support, and proper Examples, may produce the most important Effects, and in a manner, that has never yet been experienced in Any British Colony, & gradually anglicize this internal Empire—but while this and all other Arrangements must be progressive in their Effects, a most striking and immediate Superiority is given to the British Province; by the terms, on which, his Majesty, in his benevolence, has directed the Crown lands to be granted, forming a perfect Contrast with those which the United States offer to their Settlers.1

This very circumstance will, I hope, impede those Settlements from whose vicinity as I have elsewhere particularly observed to Your Grace, there seems a well founded apprehension of danger to this Province—but the obvious and inestimable advantage which the Settlers in the Kings dominions may derive over those of the United States, is, that their present exemption from taxation will be the inheritance of their posr terity, (for whose welfare the American Farmer is peculiarly provident) : and that this immunity will arise from the Provision made in the reservations of the Lands of the Crown for the Support of Government.

In this respect therefore, My Lord Duke, the benevolence and wisdom of Ms Majesty’s Government, at this moment, forms a Complete Contrast, with the Avarice, and Want of foresight in the Seperate States, or the Confederation of the Republick, nor is it possible that any ancient Possession, or probable, that any future acquisition of the United States, shall otherwise be regulated, than to become the subject of unconditional sale, to the Land Jobbers of America or Europe.

The oppression, it may be said, the impracticability of raising taxes in a Country so internally situated, as is the case of Upper Canada, may be fully represented to Your Grace, in the Speech of a Representative of Pennsylvania2 which I beg to submit to you, on the Subject of the recent disturbances at Pittsburg, it is copied from a Newspaper; while this Speech instructs those who administer the Government of Upper Canada, what it is proper to asoid, it corroborates the Superior Advantages

1. See the Proclamation relating to the settlement of Crown Lands, supra, page 60. The conditions attached to grants of the Crown Lands in Upper Canada were similar to those adopted in the Lower Province. 2. The speech referred to was delivere by Mr. White on the motion for the appointment of a Committee of the Legislature of Pennsylvania, to bring in a Bill authorizing the Governor to complete the Quota of Militia required from that State by accepting voluntary enrollments and to provide bounties for such volunteers. The speech contained a criticism of the treatment received by the western settlers from the federal Government. See Canadian Archives, Q. 231, pt 1, page 234.

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which his Majesty’s Subjects, in local Circumstances not very different, must derive from a more provident Attention to their Happiness and future Welfare.

Under similar Impressions at the close of the first Sessions of the legislature of this Province,1 I adverted to the Object of these Reservations.

I not only My Lord Duke had in Contemplation the permanent Effects likely to flow from these Reservations, and the Strength and immediate Animation, such Appropriations would give to the Settling of his Majesty’s dominions, but the Conviction that the Reservations could never be effectually guarded and preserved, unless the Legislature of the Country and the People at large; felt an interest in the Advantages to be deduced from them.

This Opinion I entertained from a perfect knowledge of the manners of those Individuals who settle in distant Countries, and that they will not be restrained from craipation, but by force; and from General Observation, on the very unproductive Nature of the Quit Rents, in America which although in the infancy of the Rebellion were invidously stated by the Congress, as soon to pour immense Wealth into the Hands of the Crown, It has never been thought advisable to collect since the Seperation.

The General Arrangement of these Reservations, as far as Grants have been made under the present Government, has been communicated to Mr. Dundas in my letter No. 17,2 I have thought it proper to make in addition to those Reservations, and indépendant of the general Principle; Specific Appropriations for such purposes as I am now carrying into effect; such as, to remunerate the expences of opening the Military Roads by the Soldiers, building Inns or Posts necessary for Communication, and the erection of a Wharf at York—such reserves, I hope, will by sale, reimburse the Original expence, and (if from Circumstances the Sale should be differed,) the interest accumulating on its Expences.

But upon the general view of these Reservations, I am of Opinion, that they should not be sold, but leas’d for as short a term as may be reasonable, at an annual Rent.

Having offered these observations to your Grace’s notice, I beg leave to submit to You, whether at this period, so critical and important in respect to the Province of Upper Canada, It may not be for the King’s Interest, that, at the ensuing Meeting of the Legislative Council and Assembly, [the last Sessions under the Act of Parliament] I should communicate to the Houses his Majesty’s gracious Intentions in making such Reservations; and that in such formal terms, as may be sufficient to prevent, hereafter, any absolute Grants of these lands being made to Individuals, or being perverted from their original intention, and permanent Appropriation?

If the particular Circumstances of this Province shall render such a Measure advisable in Your Grace’s Judgment, I beg permission to observe, that I suppose it might be carried into execution by a gracious Message of His Majesty’s expressing his Royal desire, and benevolence; & upon such a Message, it might be proper to ground a Summary’mode of proceeding under the Authority of the Legislature against those who should infringe upon such Eeserves, a very necessary object, and which mode might be equally extended for the Security & preservation of the Lands appropriated for the maintenance of the Protestant Clergy.

It might be not improper, in the royal Message, to stipulate and define the purposes to which the reservations as they shall become productive; may in regular progression be applied, such as the Civil Government, the Marine, the Fortresses, the Troops of the Crown, and such objects as may be considered, for the general Advantage and protection of the Empire, leaving, the Provisions for the internal Government of the Counties or districts to be furnished from other resources.

1. For Simcoe’s speech at the close of the first session of the Legislature see the Canadian Archives, Q. 279, pt. 1, page 132. 2. For Simcoe’s letter No. 17, see the Canadian Archives, Q. 279, pt. 2, page 332.

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I take this opportunity of mentioning to Your Grace, that having received from the Bishop of Quebec a Copy of his letter to Mr Dundas of the 15th September 1794.1 I shall shortly through his Lordship offer my Sentiments on the Subjects therein stated; a matter of the most serious Consequence.

It is proper also that I should notice to Your Grace that in the Act of Parliament by which this Province was constituted itnd which has been justly considered as its Magna Oharta the forty sixth Clause Confirms his Majesty’s Right in Parliament to enact such laws and exercise such power as may be neeessary for the regulation of Commerce and the general Benefit of the British Empire therein; the next clause; The Forty Seventh clearly intimates, “that the Net Produce of such Duties “as may be collected in future shall be applied by the Legislature of the Province.”2

It has been suggested in the House of Assembly that this Clause, gives the legislature a retrospective claim as far as the present Duties may be Concerned, to be made acquainted with their application—Means have been taken to prevent any formal motion in this respect ’till such time as I am informed of the Opinions of his Majesty’s Ministers on the Subject but as it is evident, that a very considerable Part of the Duties now raised, are Articles consumed in the Indian Trade within this Province, and by its Inhabitants, and there is reason to believe that the trade for Rum may be extended from thence to the Subjects of the United States; and more particularly as M1. Dundas has stated in his letter, N° 2 September 16th 1791, to Lord Dorchester;3 the disposition of his Majesty’s Ministers to obtain a repeal of such duties whensoever the Legislature of the Province shall establish an equivalent for them; It seems therefore to be just, that the Amount of such duties should ‘be duly laid before the legislature of the Province that when circumstances shall render it expedient adequate means may be adopted for their repeal.

It is scarcely possible, My Lord Duke, that a Commutation of these duties will take place for many years; But, as it seems, their annual Account may be readily laid before the House of Assemlbly and legislative Council, and by so doing some dissatisfaction might be prevented without any detriment to the King’s Service, It is therefore; I have thought it proper to make this Statement to Your Grace—If it appears in any view objectionable, I have little doubt but I shall be able, at present, to prevent this question from being agitated.

Your Grace will also have the goodness to consider on the 43, and 44 Sect: of the Act alluded,4 so far as the latter clause expressly stipulates the grant of all lands, “in free and Common Soccage to such persons who held Certificates of occupation; and whether as I have intimated to Your Grace if by the Nature of such Grants, all Mines, Gold and Silver excepted, become the property of the person holding the Grant, it may not be advisable that the instructions5 which prohibit the granting of Lands without the reserves of mines and timber and on which my Proclamation of the 7th of February 1792a was founded may not be done away.

As I do not perceive any injury which will accrue to the Crown or the Public by the annulling of these restrictions, It seems to be proper on all accounts that the future Inhabitants of the Province should be placed upon the same footing in their tenures as the Original Settlers; in particular, as the latter enjoy a very peculiar Advantage which may justly be considered as a sort of primogeniture in the not having their lands separated and divided by those intervening Reservations, which are to take place in the New Grants.

1. This letter contains a review of the condition of the Church of England in Upper Canada and suggests means for promoting its interests. See the Canadian Archives, Q. 69, pt. 2, page 385. 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 707. 3. Ibid, page 692. 4. Ibid, page 706. 5. See Articles 36 and 40 of the Instructions to the Governor of Upper Canada, supra pages 42 and 43, and also the Additional Instruction, page 205, note 2. 6. See page 60, note 1.

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Having thought it proper to communicate to Your Grace the Speech Marked A1 as applicable to the Subject now before me, I am sure I shall be pardoned for observing that It substantiates in a very eminent degree the necessity as well as the propriety of the happy application of the Provisions wanted for the victualling of the Kings forces, to the encouragement of the Agriculture of this Province—the same extension in the purchase of Stores for its naval Armaments, will I trust in no very short period lay the foundation for the rapid Growth of Hemp or manufacture of Canvass, and in the present Crisis of European Affairs, I am happy to believe, that nothing but want of reasonable support and systematic Arrangement will prevent a successful termination of the great experiment, whether the Enjoyment of the principles and forms of the British Constitution, internally, and a common interest and union, externally, may not attach for Ages This Commanding Province to the side of Great Britain?

At least admitting the apprehensions of the Lukewarm and desponding to govern the Subject, it is reasonable to presume an internal and compact Government may be built up, which in its interests, and Commerce, would be more united with the States of Europe than those of the Atlantick Shores of America.

I have the honour to be with the utmost Eespect, My Lord Duke Your most Obedient and most humble Servant J. G. SIMCOE.

His Grace The Duke of Portland One of His Majesty’s Principal Secretaries of State, &c. &c. &c.

Endorsed:—Upper Canada 22a. Jany. 1795 Lt. Govr. Simcoe. Rd . 1st. May Ansd. N°. 16.

PORTLAND TO SIMCOE.2 WHITEHALL 20th May 1795.

Lieut. Governor Simcoe, N°. 7.—

SIR,

Since my Dispatch to you of the 9th instant, I have laid before the King your letters numbered from 12 to 17 inclusive, with their several Inclosures. I am well aware of the difficulties under which, from a combination of circumstances, you have been obliged to regulate your behaviour toward the American States, and I am happy in giving you this testimony of my entire approbation of your conduct.

I have maturely considered the Contents of N°. 133 and I should be wanting in the duty I owe to my Station, if I were not unequivocally to state it as my opinion, that neither the Plan of creating Corporations, nor that of establishing Lieutenants of Counties’, is at all eligible, in the present situation of Canada. What it might be

1. See page 201, note 3. 2. From the copy in the Canadian Archives, Q. 281, pt. 2, page 328. 3. See page 196.

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prudent to concede to an earnest desire of the People, is one question, What it is expedient for Government to bring forward, or propose, is another.

Both the Measures seem very unfit to be encouraged by the Parent State in a dependent Colony—The Legislative Power being given up to an Assembly of their own, it is only thro’ the executive Power, vested in the Person having the Government of the Province, that the Sway of this Country can be exercised—Every kind of Authority that is not inconsistent with the Constitution given to the Province, ought, therefore to be concentered in hib hands—Whereas the evident tendency of both these Measures, is to fritter down his direct Power, and to portion it out among Corporations and Lieutenants, who, on many occasions, may be disposed to use it in obstructing the Measures of Government, and, in all events, will require to be courted and managed, in order to secure the right direction of the Influence thus unnecessarily given them. T have entered purposely more at large into these proposed Measures, because I observe that your adoption of them arises from an idea, that by assimilating the modes of the Government of the Province, to the modes of the Government of England, you will obtain all the beneficial effects which we receive from them—Whereas to assimilate a Colony in all respects to its Mother Country, is not possible, and if possible, would not be prudent. The one may have many Institutions which are wholly inapplicable to the situation of the other—Some there may be, which we permit to continue here only, because they already exist, and are interwoven with other parts of the Government, but which, perhaps, if we had a choice, we should not now be disposed originally to introduce— Such, in the Opinion of many, are Corporations, and separate Jurisdictions of all sorts. Others there are which may be objectionable in a Colony, as tending to lessen the Authority which the Parent State ought to possess over it, as long as that relation subsists between them—Of this description I conceive to be all subordinate Powers created in the Colony, beyond those which are absolutely necessary for its internal Police—The Power of the Person having the Government, is the Power of this Country; but such subordinate Powers as are proposed, are not ours.—We have no Connection with, or direct Influence over, those who exercise them—They are rather means and instruments of Independence.—Having said thus much, it must depend on local circumstances and further consideration, how far it may be expedient to attempt to undo anything that has been already done;1 but I can see no ground that will authorise me to encourage the further prosecution of either of the Measures in question.

I have referred to the Lords of the Committee of Privy Councillor Trade and Plantations what you have stated respecting Mines and Minerals, with a view to receiving their Opinion, whether His Majesty’s Instructions respecting them, may not be considered as applicable to Royal Metals only, viz. to Gold and Silver.2

* * * * * * * *

With regard to that part N°. 163 which respects the Crown Lands, having already written at large to Lord Dorchester,4 I have now only to enclose the same for

1. See page 196, note 3. 2. It was later decided to reserve only mines of gold and silver. An Additional Instruction dated July 6th, 1797, was accordingly sent to Governor Prescott and to President Russell to the effect that ” Our Will and Pleasure is that in all Grants of Lands which shall be made within Our said Province a Clause be inserted (in lieu of the clause above mentioned), reserving to Us, Our Heirs and Successors all Mines of Gold and Silver only which shall bo discovered upon such Lands; Provided nevertheless, and it is Our further Will and Pleasure that in such Particular Grants of Lands, which, may be made in Our said Province, in respect whereof you shall be of Opinion that it will be for the Public Interest, that Coals and all Mines ci Copper, Tin, Iron, and Lead discovered therein should be reserved to Us, Our Heirs, and Successors, such Clause of Reservation be inserted therein as is contained in this behalf in the above recited Instructions to Governors of Lower Canada, (Canadian Archives, M. 231, page 71). 3. See page 200. i. This letter, Portland to Dorchester, No. 13, of April 6th, 1795, is not enclosed. It may be found in Q. 71, pt. 1, page 91. The Duke of Portland there remarks “The very ample provision which, in process of time, the Church Lands will afford to the Protestant Clergy, will doubtless, at a future period, render the perception of Tythes unneces-

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Your guidance and direction; and I beg leave to add, that I feel much satisfaction at Your early attention to a matter of such importance as the due care and management of the Reservations both of the Church and Crown Lands.

The Crown Eeservations will certainly, in the Progress of time, form a considerable Fund, towards supporting the expences more immediately appertaining to the Executive Branch of the Legislature; it therefore becomes a primary object to that Legislature, to preserve those Eeservations from being lessened or deteriorated by means of Trespasses committed on them or by any Species of Fraud whatever. Notwithstanding this, I am of Opinion that it would not be proper to define or limit the appropriation of them in the most distant degree, for any Specific Services at a future period. Such a proceeding would take that grace from the Crown which should accompany those Acts which, from time to time, it may perform for the relief of the Province, and the support of its Government.

I do not see the slightest objection to the Assembly being made acquainted both with the Amount and the application of Monies raised by Duties paid by the Province. Such a system so far from being detrimental, must always be of Service to His Majesty’s Interests. I am of Opinion that the whole Expenditure of the Province, as well as the public Eevenue arising from it, should be laid before the House, that it may be aware of the great disproportion between them, and consequently be impressed with the generous and liberal conduct pursued by Great Britain for promoting the strength, wealth, and general prosperity of the Province.

* * * * * * * * * I am &c.

PORTLAND.

Endorsed :—Drat. To Lt. Governor SIMCOE May 1795.

SIMCOE TO PORTLAND.1

UPPER CANADA NAVY HALL 30th. October 1795.

N°. 30

My Lord Duke,

I do myself the honour of acknowledging your Grace’s Letter N°.7 of the 20th. of May.

It is with the most solid satisfaction, that I receive Your Grace’s approbation of my conduct in the late transactions with the United States, under difficulties, originating from the most extraordinary occurrences ; and which, both as a Servant of His Majesty, and as a Man, I cannot but feel my great good fortune in having escaped.

sary, and it therefore becomes a very material object, to adopt such measures, as may tend most directly and immediately to render them, as well as the Crown Lands, in some degree productive. With this View. I submit to Tour Lordship’s Consideration, whether it may not be proper to form a Committee of the Executive Council, for the care and management of the Church and Crown Lands, who should be authorized and instructed to lett the same to the possessors of adjoining Lots, or otlipr Persons, for terms of years, or for Lives, on certain reserved Rents, to be respectively received and managed for the benefit of the Crown, and the future Incumbents of the Rectories which shall be established in respect of such Lands, pursuant to the Canada Act. The Church and Crown Lands will, of course, become of some Consideration, in proportion as the Lots adjoining to them become cultivated, especially to the holders of the adjoining Lots. And it seems highly proper, that some competent, respectable, and responsible mode of managing them should be adopted without delay. I am therefore desirous that Your Lordship should Consult with His Majesty’s Law Officers on this Subject, as well as with the Bishop of Quebec as far as the Church Lands are concerned, and report to me, for Hit Majesty’s information, the result of your deliberations. 1. From the copy in the Canadian Archives, Q. 282, pt. 1, page 6.

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I beg leave to offer, to your Grace, a few Observations in vindication of the principles which have regulated my Conduct, as submitted to your Grace, in my Letter N°. 13,1 and in answer to which you are pleased to state as your Opinion “that neither the Plan of creating Corporations, nor that of establishing Lieutenants of Counties are at all eligible in the present situation of Canada.”2 the very high Respect that is personally due to Your Grace, as well as that which I owe to your dignified station, make it necessary in my own Justification, not to be too apprehensive in engaging Your Grace’s time; particularly, in the elucidation of objects of no trivial Importance.

It appears proper that I should state to your Graee, that, uncontrovertibly, on my receiving the administration of the Government of this Province, under the Canada Act, I did conceive, and stated to His Majesty’s Ministers, that I considered the Act as the Magna Charta of the Colony, and that it was my duty to render the Province as nearly as may be “a perfect Image and Transcript of the British Government and Constitution “—The forms of the British Constitution, from the very seed plot in the Province to their Maturity in the Parent State, being in my Judgement, essentially necessary for the preservation of the Public Tranquillity, and the best Security for Colonial Allegiance—this certainly is personal opinion, & the whole attempt to govern a Colony on these principles, is undoubtedly, an Experiment; but the Experiment originates from the new and distinct Constitution given to Upper Canada, and is sanctioned by it; and my personal Opinion has uniformly influenced my public Conduct; for had Mr Fox succeeded in his Motion of rendering the Legislative Council of the Province Elective,3 It is well known that I should have, respectfully, declined the Administration of the Government.

I have already stated to your Grace, in N°. 13, that to give a Constitutional Eespectability to the Members of the Legislative Council was a principal reason for my establishing Lieutenants of Counties, but it by no means was the Sole one—the distance that the seat of Government, wherever placed, must be from many parts of the Colony, seem to me to require a gradation of Officers as absolutely necessary for its internal and subordinate regulation. Nothing presents itself more naturally than leaving the Superintendancy of such regulation in the hands of Persons whom the Colonists, principally disbanded Soldiers, have long been accustomed to consider, as their Leaders ; by having exercised the Administration of Justice, or having commanded them in the Field; and from such Persons, It appears to me, that the recommendatory Power of adding to the Magistracy and Militia, where necessary, must have been deduced, under whatever name, had I not neglected the Public Interest; and that the appellation of Lieutenant, by no means a novelty in the ancient Colonies, while it contributes to their personal respectability, detracted in no degree whatsoever, from the direct Power, but added much to the Influence of the King’s Representative ; at the same time that it concentered, and rendered manageable, the internal Government of this extended Province—And of such utility, I beg to assure Your Grace, I have found it.

1. See page 196. 2. See page 201. 3. The position of Mr. Fox is set forth in his remarks on the clauses of the Quebec Government Bill relatüng to the Legislative Council. “Instead, therefore, of the King’s Naming the Council at that distance—in which case they had no security that rersons of property, and persons fit to be named, would be chosen— wishing, as he did, to put the freedom and stability of the Constitution of Canada on the strongest basis, he proposed thrt the council should bo elective. But how elective? Not as the men bers of the House of assembly were intended to be, but upon another footing. Ha proposed that the members of the Council should not be eligible to be elected unless they possessed qualifications infinitely higher than those who were eligible to be chosen members of the liouse tf Assembly. By this means, they would have a real aristocracy chosen by persons of property from among persons of the highest property, and who would thence necessarily possess that weight, influence, and independence, from which alone could be derived a power of guarding against any innovations that might be made, either by the people on ths one part, or the Crown on the other.” Parliamentary History of England, Vol. XXIX, 1791- 1792, page 411.

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But I have to represent to your Grace, the awful example of the late American Rebellion; from the beginning to the end, from its progress to its maturity, It is considered by the Loyalists of this Country, as the most scandalous and Swindling Transaction that has disgraced the Annals of Mankind; The formation of Committees, who with extreme activity exercised all the subordinate Offices of Government, and possessed themselves of the Civil Sword, which they without hesitation exerted with unrelenting Severity against their Opponents, was the principal mean by which the Rebellion was brought to a certain degree of maturity, even before It was suspected in Great Britain; such a Lesson, most surely, My Lord Duke, inculcates the necessity of providing a vigilant, and pervading, and active authority to superintend every division of a Province, physically separated into so many detached parts; and, I know of no Arrangement of equal Utility and Wisdom, with that which the Counties of England exhibit as the platform of their internal Government, in the due Connection of the Aristocratic and Democratic System of their Magistracy.

I therefore, upon the most mature deliberation cannot but consider, the Establishment of Lieutenants of Counties, as the natural result of the Constitution of the Country, and as essential to the Kings Service; and since all my statements previously to my leaving England,1 and during my administration of this Government,have been formed on the propriety of supporting that just Aristocracy which the Canada Bill has provided for ;2 and since, I have always estimated this Power, as barring the Avenues to disaffection and Sedition, by making a constitutional Provision against those turbulent Talents which may otherways with great facility gain a more than Aristocratic Ascendancy over a People, composed as are the generality of Colonists, and who by the possession of such means may be capable and desirous of disturbing the Operations of Government in the slightest, as well as the most essential particulars; and since, I have always contemplated this aristocratic Power as being the truest safe guard of the Sovereignty against such Machinations, particularly in a Province where the direct Weight of the Executive Power is a Feather,3 and It possesses none indirectly, the Military being vested by the Commander in Chief in Inferior Agents. So I beg leave with all due deference to Your Grace, from these Opinions to deduce the Observations, that I should be very happy was their sufficient property and other Qualifications in pny Members of the Legislative Council to see the provision of the Canada Act, in this respect, immediately completed by an hereditary Seat derived from a Title of Honor being vested in their Families.

I cannot therefore under such impressions but feel myself proportionably mortified, by the measures which I have substituted, in some degree as preparatory & leading to that event, being disapproved of by Your Grace.

It may not be unnecessary for me to observe to Your Grace, that when I speak of assimilating the modes of Government to those of the Parent State, I principally allude, in matters of less consequence, to checking the Elective Principle from Operating so universally as it does in the United States ; but which, a» may be seen in some of the Acts, though I have been enabled to restrain, I by no means had the Power to abolish. The House of Assembly being in many respects at their first meeting tenacious, and untractable; the Legislative Council having more than once prevented me from the necessity of giving a negative to their Bills I must also beg leave to submit to your Grace, that in the Legislative Acts of this Province Care has been taken, to avoid the introduction, of those, which seemed irrelevant to its situation; or which were generally supposed to have been proved to be inconvenient in the parent Country.

But since Your Grace considers the recommendatory Influence which I have attached to the Station of Lieutenants, agreeably to the tenor of my letter to them, as

1. Lieut.-Governor Simcoe’s views on the Government of Upper Canada were expressed in a long despatch to Mr. Dundas in June, 1791. See Canadian Archives, Q. 278, page 228. 2. Articles V. to X. of the Constitutional Act provide for the conferring of hereditary titles of honour on members of the Legislative Council. See Constitutional Documents, 1759-1791, ShoTtt and Doughty, 1907, page 696. 3. See the opinion of Sir J. C. Sherbrooke on this question, page 490.

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given unnecessarily; and since you see “no grounds to encourage the further prosecution of the measure,”1, I feel it as my bounden duty, implicitly, to follow Your Grace’s Tdeas, and without hesitation to sacrifice my own Judgement to those principles of due subordination, which, in official measures, will I trust, ever regulate my conduct. I shall therefore submit to Your Grace’s further Consideration, the local circumstances which may lessen the inexpediency of any measures that Your Grace may think proper I should adopt, in order to undo what has already been done, namely, the appointment of Lieutenants of Counties and desiring from them recommendations of proper persons to exercise the duties of Officers of Militia; and of Magistrates in their respective Counties.

My Circular letter,2 to the Lieutenants was dated on the first of November 1792 and in the second Sessions in the Year 1793 by an Act of the Legislature the Militia bill was formed Expressly, on the English Model, and of course acknowledging the Power of the Lieutenants of Counties ;3 It appears to me to be inexpedient to attempt to repeal this Bill; and possibly the only mode of abolishing the Lieutenants of Counties is, either by openly avowing that His Majesty’s Ministers have disapproved of my Creation; or by letting them gradually die off and not be renewed—but this latter mode will bear with it this inconvenience, that most of the Lieutenants are Gentlemen in the prime of their Life and from the hardihood required in their Military duties the last War, It is to bo hoped may long withstand the inclemencies of a new Country.

Should your Grace approve of those modes, I am ready to do my duty in carrying them into effectujj execution: and I should wish that the measure, however irksome, should originate with me, rather than be left as a source of unpopularity to my Successor.

There will be many plausible reasons that will assist me in the task; for the last Lieutenancy I appointed, there were several Applicants, of equal claims either as Magistrates or Military Servants of the Crown, had not residence in the County preponderated in favor of the person appointed; so that a decision on this point may be held out as having been so disageeable that I would not chuse to undergo it on future occasions, and at present, I may prepare the way by not filling up the vacancy occasioned by the death of Colonel Grey.4

I beg to observe to Your Grace that by the creation of Lieutenants, I have had the temporary opportunity of doing justice to myself in respect to the Officers who had eminently served the King; many of these Gentlemen, thought themselves neglected in the list transmitted by Lord Dorchester,5 as Sir John Johnson’s, for the Choice of the King’s Ministers, either to become Executive or Legislative Counsellors; and Sir John Johnson having disclaimed the Arrangement of this List, They naturally supposed from the Alterations made therein that I was adverse to their preferable Claims ; but this appointment did away all such suppositions; and as no complaint whatever was made against the Persons I selected, It prepared more than any other circumstance, for that degree of facility with which public affairs have been carried on in this Province; and for that unanimous and determined Zeal which so recently appeared when It was threatn’d with War and Devastation.

In respect to Corporations I beg to observe to your Grace, as I did not previously submit my appointment of Lieutenants to His Majesty’s Ministers, considering such appointment, as of course, and unobjectionable, so understanding that objections might

1. See page 205. 2. See page 198. 3. The Act 32, Geo. III, Chap. I, not only acknowledged the power of the Lieutenants but made them the central feature of the Militia system of the Province. See also supra, page 199, note 1. 4. James Gray was appointed Lieutenant of the County of Stormont, Nov. 2nd, 1792. On Oct. 24th, 1786, Archibald McDonell was appointed as his successor. 5. For Lord Dorchester’s recommendations see his despatch to Mr. Grenville, March 15th, 1790, Canadian Archives, Q. 44, pt. J, page 130.

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bo raised to the Establishment of Corporations I felt it my duty to state to Your Grace my reason for recommending the Measure and to request your directions thereon. Your Grace’s disapprobation, of course, debars me from any further prosecution of an object which, in my judgment, might be easily modified so as to contribute essentially to the Welfare of the Province.

The Treaty recently concluded with the United States on the most liberal principles, will give to that artful People great facilities in attempting, what in their controversial writings on the Treaty, and in general conversation they look forward to with confidence and pleasure, the Alienation of the Affections of the People of this Province from Great Britain ;—I am confident that if proper measures are taken and this Country be vigorously supported, their efforts will be in vain; but I should be deficient in my duty did I not respectfully observe to Your Grace that in my Opinion, whatever may be effected by the Influence of the Executive Government in this Country, nothing can be expected from its Power; and it is evident, in my apprehension, that from the result alone, of the full exercise of the faculties inherent in every distinct Branch of the British Constitution, this Province can be rootedly attached to the British Empire.

I have the honour to be with the utmost Respect and Deference.

My Lord Duke Your Grace’s most Obedient and most humble Servant J G SIMCOE.

His Grace the Duke of Portland, One of His Majesty’s principal Secretaries of State. &c. &c. &c.

Endorsed :— Upper Canada 30th. Oct1. 1795. Lt. Govr. Simcoe. R 3d. Feby. Ansd. 3d. March. No. 30.

PORTLAND TO SIMCOE.1

WHITEHALL, 3d. March 1796. M. Genl. Simcoe

No. 11.

Sir,

I have laid before The King Your Letters of the dates and numbers mentioned in the Margin.

No. 30—30th October 1795. No. 31—8th Novemebr. No. 32.—9th.

Taking into consideration what has been already done with respect to the appointment of Lieutenants of Counties in Upper Canada, it would certainly be highly unadviseable to pursue any measures for setting them aside. It is not as to the principles upon which you judged proper to make those appointments that there can be any doubt, or objections started; The Observations in my Letter of the 20’h of May last2 were

1. From the copy in the Canadian Archives, Q. 282, pt. 1, page 35. 2. See page 204.

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directed to the appointments themselves from a reasonable ground of apprehension, that in the present infant state of the Province, they would not be found to answer the end proposed. In introducing a new authority, such as that vested in Lieutenants of Counties into a new Government (should such a measure have been judged necessary) it appears to me, that it would have been safer, and the influence which His Majesty’s Eepresentative thereby parted with would have been more easily controuled & directed, if the appointments of Lieutenants, in the first instance, could have been made to extend to the Districts or Circuits of the Province, instead of being multiplied and subdivided into Counties:—But as the case now stands, it will be proper to adhere strictly to the mode of proceeding sanctioned by your Authority, and you will, of course, lose no time in filling up the vacancy occasioned by the death of Colonel Grey.1

The working of Mines, particularly those of Iron, in Upper Canada, will unquestionably be of great public advantage; and supposing even that the ore should be found more plentifully on the American side of the Treaty Line than on ours, yet as the natural advantages for working it are in favor of Upper Canada, we shall, of course be proportionablj benefited by that circumstance.

* * * * * * * *

I am &c.

PORTLAND.

Endorsed :—Drat. To M. Genl. Simcoe March 1796. N°. 11.

OPINION OF WILLIAM GRANT ON THE RIGHT TO COLLECT TITHES.2

8th January 1796

Copy

My Lord,

I have received, and considered the Papers sent me by your Grace’s desire concerning the Right of the Protestant Clergy in Canada to exact Tythes from their Parishioners.—By the old Law of Canada reestablished in 1774 the Roman Catholic Clergy alone were entitled to Tythes or other Ecclesiastical dues. If a protestant clergy have any such Right it must be derived from some new and special enactment By the 14. Geo. 3. Cap 833, the Catholic Clergy were declared to be entitled to receive their ancient Rights and dues from those of their own persuasion only; had it not been for this every Parishioner of whatever religious persuasion would have been bound to pay Tythes to the Roman Catholic Priest. The Eestriction however did not operate as art exemption in favor of Protestants from all obligation to pay Tythes; for it was provided’by the same Act that it should be lawful for His Majesty to make provision out of the rest of the said accustomed dues, and Rights for the maintenance and support of a protestant Clergy. But this did not give any Right to a protestant Clergyman to exact Tythes even from protestants. The Right of collecting them was wholly in the King, who might relax, or enforce it as might be judged expedient.— The only other Act that has any reference to the subject, is that of the 31st G. 3 O. 31, by the 39th Section of which it is declared that every person presented to a Par-

1. See page 209. 2. From the copy in the Canadian Archives, Q. 77, page 225. 3. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 403.

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sonage, Or Rectory shall hold the same, and all Rights, Profits and emoluments thereunto belonging, or granted as fully and amply, and in the same manner &c. as the incumbent of a Parsonage, or Rectory in England.1

This Clause does not give any Right to the Protestant Parson or Rector. It only declares that he shall hold those belonging or granted to him as fully, & amply as an Incumbent in England. What Rights do belong to a Protestant Parson in Canada, it does not determine. The King may no doubt, grant the Tythes which he has a Right to collect from all Persons who are not of the Roman Catholic Persuasion. But this Right never has been exercised, and those best acquainted with the Circumstances of both Provinces seem to think that it would be inexpedient to attempt to enforce it. As to the Powers of vestries, Church wardens &c of Protestant Churches, I conceive they must be the subject of Legislative Eegulation, for I do not apprehend that the late Act has the Effect of introducing into Canada that Part of our Common & Ecclesiastical Law that relates to such matters.

All which is respectfully submitted by,

My Lord, Your Grace’s &c. &c. (Signed) W. GRANT.

His Grace the Duke of Portland (Signed) &c &c &c.

Endorsed :—Copy of a Letter from Mr Grant to the Duke of Portland dated 8th Jany 1796.

CONSTITUTION OF EXECUTIVE COUNCIL, UPPER CANADA.

MINUTES OF EXECUTIVE COUNCIL, UPPER CANADA,2 COUNCIL CHAMBER AT NEWARK 11th AUGUST 1797

Present His Honor Peter Russell Esqr. President Honl. John Elmsley Chief Justice Honl. James Baby Honl. Alexr. Grant Honl. AEneas Shaw Honl. John McGill Honl. David William Smith

The President addressed the Board in the following words,

GENTLEMEN,—I did not expect to have had an occasion for putting you to the trouble of attending me here; as I had flattered myself that the Council near me would have answered every purpose for which a Council might have been wanted, until I could return to York, But upon my proposing a question to the Members of a Council held here on the 27th of last Month, the Chief Justice8 unexpectedly started

1. See the Constitutional Act, ibid, page 705. 2. From the original Minutes of the Executive Council, Canadian Archives, State Book B. Upper Canada, page 61. 3. The Chief Justice, Mr. John Elmsley, was born at Marylebone, England in 1762, and was called to the bar at the Middle Temple in 1790. In April, 1796, he was selected to succeed Mr. Osgoode as Chief Justice of Upper Canada and was at the same time appointed to the Executive and Legislative Councils of the Province. When the office of Chief Justice of Lower Canada became vacant in 1802 through Mr. Osgoode’s resignation, Mr. Elmsley was selected for promotion. He was appointed to the Executive Council in August 1802, and in the following year to the Legislative Council of which he subsequently became President. Early in 1805, owing to the serious condition of his health, he was granted leave of absence and was preparing to return to England when his death occurred at Montreal on the 29th of April.

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an objection to the competency of the Board, founded upon the insufficiency of its Number.1

The Members then present, were the Chief Justice, Mr. Baby and Mr. Smith,2 and I presided. Being therefore exceedingly alarmed at an objection which, if immoveable, would invalidate almost every proceeding of the Executive Council, since the existence of this Government; I caused the Governor General’s Commission and Instructons to be laid before the Board, and was in hopes that after maturely reconsidering the matter, the Members would have met me in Council the next day perfectly satisfied of their own competency. The Chief Justice however appearing to be only more strongly confirmed in his opinion and the other two Members being unwilling to take upon them to decide a question which respected their own Power, it was unanimously referred to the decision of a full Board.

You are consequently, Gentlemen, now called upon to declare your opinions in Council.

Whether a Board of the Executive Council of this Province, consisting (as before stated) of the President (while Administring the Government) and three other Members, is a competent Board of Council, and its number sufficient to give validity to its proceedings?

Gentlemen,—When you have determined this question, I shall take the liberty of submitting some other matters of Importance to your consideration

The President then withdrew.

The Board proceeded to take the question proposed by the President into consideration

Adjourned

COUNCIL CHAMBER AT NEWARK 12th AUGUST 1797

Present

His Honor the President The Honl. John Elmsley Chief Justice ” Honl. James Baby ” Honl. Alexr. Grant ” Honl. AEneas Shaw ” Honl. John McGill ” Honl. David William Smith

1. On the 8th of May, 1797, an order had been issued by the Executive Council directing the Secretary of the Province to transmit before the 1st of June to each of the officers of government concerned in the granting of land a statement of the account between him and such officer up to the 81st of March and al^o to transmit to the Clerk of the Council a general statement of all such accounts. The Secretary had not complied with this order and on July 27th the President submitted to the Executive Council the question: ” Has the Secretary neglected or not to obey an order of this Board?” The Chief Justice then objected to the competency of its number to decide a question likely to lead to the serious consequences which might follow their determination. On the following day the question of the constitution of a quorum was submitted to the Council, but it was decided that the opinion of a full board should be secured. See the Minutes of the Executive Council, July 27th, 1797, Canadian Archives, State Book B, Upper Canada, page 57. 2. David William Smith, only son of Major John Smith of the 5th Regiment which was stationed at Detroit, was born in 1704. He served as Ensign in his father’s regiment and in 17S0 acted as secretary to the Land Board of Hesse of which his father was chairman. He was elected to the first Assembly of Upper Canada for the combined counties of Suffolk and Essex. Shortly afterwards he removed with his father to Niagara and in September 1792 was appointed Surveyor of Lands for the Province. In June 1793, he was articled to the Attorney General and in July of the following year was called to the bar. In March 1796, he was anpointed an honorary member of the Executive Council. He was elected to the second Parliament in 1796 for the County of Lincoln, and in the following year was chosen Speaker of the Assembly President Russell selected him for the position of Lieutenant of the County of York in 1798. In July 1799 he was appointed Master in Chancery for the Province. He was returned to the third Parliament in 1799 and was again elected Speaker. In 1801 he served as one of the Commission for the Administration of the Government of the Province. He resigned his various appointments in 1804 and retired to England where for

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The Board having met, resumed the consideration of the question proposed by the President, and in consequence

RESOLVED, that it does not appear from the Governors Commission1, or from the Royal Instructions,1 that His Majesty has declared how many Members short of the whole number, shall constitute a Board of Executive Council: and that therefore it ia necessary that the Board should specify some number until His Majesty’s pleasure be known,

RESOLVED, that three Members of the Executive Council, whether Ordinary or Extraordinary, exclusive of the Member who may Administer the Government shall until His Majesty’s pleasure is known be deemed a sufficient number to form a Board for all purposes except those specified in the Sixty fifth Article of the King’s Instructions. 2

RESOLVED, that His Honor be requested immediately to transmit these resolutions to the Secretary of State and request His Majesty’s pleasure thereon.3

many years he managed the estates of the Duke of Northumberland. He was created & baronet of the United Kingdom in 1821. His death occurred at Alnwick, England, May 9th, 1837. 1. See pages 5 and 33. 2. This article of the Instructions required the President to have the consent of a majority of the Executive Council before dissolving the Assembly or dismissing any civil or military officer. See page 48. 3. His Majesty’s pleasure was expressed in a despatch of the Duke of Portland to Mr. President Russell, No. 7 of January 10th, 1798. See page 218.

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AN ACT FOR THE BETTER PRESERVATION OF HIS MAJESTY’S GOVERNMENT, LOWER CANADA.

ANNO TRICESIMO SEPTIMO GEORGII III.

CAP. VI.1

AN ACT for the better preservation of His Majesty’s Government as by Law happily established in this Province.

[2d. May, 1797.]

WHEREAS it is necessary to defend and secure His Majesty’s good and loyal subjects against every traiterous attempt that may be formed for subverting the existing Laws and constitution of this Province of Lower-Canada, and for introducing the horrible system of Anarchy and confusion, which has so fatally prevailed in France; loanable. therefore and for the better preservation of His Majesty’s Government, and for securing the Peace, the Constitution, Laws and Liberties of the said Province; Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the said Province of Lower-Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” And it is hereby enacted by the authority of the same, that every person or persons who are or shall be in prison within this Province of Lower-Canada, at or upon the day on which this Act shall receive His Majesty’s Royal Assent or after, by warrant of His said Majesty’s Executive Council of and for the said Province, signed by three of the said Executive Council, for High Treason, misprision of High Treason, suspicion of High Treason or Treasonable practices; may be detained in safe Custody without Bail or mainprize until the first day of May, which will be in the Year of Our Lord one thousand seven hundred and ninety-eight; And that for and during the continuance of this Act, no Court or Courts, Judge or Judges, Justice or Justices of the Peace, shall bail or try any such person or persons so committed, without a Warrant for that purpose from His Majesty’s Executive Council, signed by three of the said Executive Council, any Law, Statute, Act or Ordinance to the con- trary notwithstanding.

II. And be it further enacted by the authority aforesaid, that for and during the continuance of this Act, it shall not be lawful to for any Justice or Justices of the Peace within this Province, or in any District or part thereof, to bail or admit to bail any person or persons charged with the crime of High Treason, or misprision of High Treason or suspicion of High Treason or Treasonable practices, any Law, Statute or Ordinance to the contrary notwithstanding.

1. From The Provincial Statutes of Lower Canada, 1797. This statute was renewed annually until 1802. In 1803 it was re-enacted and again renewed annually until 1812 when a dispute regarding its provisions arose between the Legislative Council and Assembly. (See page 428). For the proceedings in a case which arose out of it see page 379.

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III. And be it further enacted by the authority aforesaid, that for and during the continuance of this Act, in all and every case, in which application shall be made for His Majesty’s writ of Habeas Corpus to any Court or Courts, Judge or Judges within this Province, or in any district or part thereof, by any person or persons who are or shall be in prison within this Province, at or upon the day on which this Act shall receive His Majesty’s Royal Assent or after, charged with High Treason, Misprision of High Treason, suspicion of High Treason or Treasonable Practices, such writ of Habeas Corpus (if allowed by such Court or Courts, Judge or Judges) shall not be made returnable in less than fourteen days from the day on which such writ of Habeas Gorpus shall be allowed, and in all and every such case, it shall be the duty of such Court or Courts, Judge or Judges and of each and every of them, and they are hereby required when and so soon as such application for such writ of Habeas Corpus shall to them be respectively made, to give notice and information thereof in writing, together with Copies of such application and of the affidavit or affidavits or other paper writings, on which such application shall be founded, to the Governor, Lieutenant Governor or Person administering the Government of this Province for the time being.

IV. Provided always, and be it enacted, that such writ of Habeas Corpus, or the benefit thereof, shall not be allowed by such Court or Courts, Judge or Judges to any person or persons detained in prison at the time of his, her or their application of such writ of Habeas Corpus by such warrant of His said Majesty’s Executive Council as aforesaid, for such causes as aforesaid or any or either of them, and that in all and every ease, where such writ of Habeas Corpus shall be allowed, no Court or Courts, Judge or Judges shall bail or admit to bail, the person or persons to whom such writ of Habeas Corpus shall be allowed, if upon the return made to such writ of Habeas Corpus at the expiration of fourteen days, from the day on which such writ of Habeas Corpus shall be so allowed, it shall appear that such person or persons shall be then detained in prison by such warrant of His said Majesty’s Executive Council, as aforesaid, for such causes as aforesaid or any or either of them, any Law, Statute, Act or Ordinance to the contrary notwithstanding.

V. And be it further enacted by the authority aforesaid, that this Act shall continue and be in force, from the day on which it shall receive the Royal Assent, until the first day of May in the Year of Our Lord one thousand seven hundred and ninety-eight; and that after the-said first day of May one thousand seven hundred and ninety-eight, all and every person or persons so committed shall have the benefit and advantage of the Laws relating to, or providing for, the liberty of the subjects in this Province.

VI. Provided always and be it enacted by the authority aforesaid, that nothing in this Act shall extend or be construed to invalidate or restrain the lawful rights and privileges of either Branch of the Provincial Parliament in this Province.

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RUSSELL TO PORTLAND.1

UPPER CANADA YORK NOVEMBER 19th 1797:

N°. 23

MY LORD DUKE,—I have the Honor to inform your Grace that Mr. Justice Powell2 has re-assumed the Functions of a Puisne Judge of this Province. But the Provincial Act of the 34t h of His Majesty, which establishes a Superior Court of Civil & Criminal Jurisdiction &c, having directed that the Chief Justice and two Puisne Judges shall preside in the Court of King’s Bench,3 and the actual presence of at least two Justices being consequently requisite to constitute the said Court; I have judged proper to continue the appointment, to the temporary Exercise of the Office of Puisne Judge untill His Majesty’s Pleasure be further known, which your Grace was pleased to signify your approbation of in a letter to Lieut-Governor Simcoe dated the 9t h of May 1795.4 For should either Mr. Chief Justice Elmsley5 or Mr . Justice Powell (who are the only Justices within the Province until a second Puisne Judge may be appointed) happen to be prevented by Sickness or other Causes from attending their Duty in Term time at this Place, (an event very possible while those Gentlemen continue to reside on the other Side of the Lake) full & complete Justice could not be administered and even altho they should both be on the Bench, it appears to be equally possible that a knotty Question of Law may arise, whereon they may each entertain a different opinion (as very nearly happened this last Term) in which case a Suspension of Justice must necessarily follow.

I presume therefore to hope that my Continuation of this temporary Appointment may receive your Graces approbation, as being the only measure I felt myself authorised to take for obviating the possibility of any such Inconvenience. I think it my Duty, however, to inform your Grace that upon my informing Mr. Chief Justice Elmsley that I had issued the usual Commission for that purpose, he was pleased to call upon me for the authority by which I had acted; to which Question I did not judge it to be consistent with the dignity of the Station which I have at present the Honor of filling in this Province to make any reply; but I beg leave to inclose for your Graces Information Copies of my letter to the Chief Justice and his Answer6

I have the Honor to be with the greatest Respect My Lord Duke Your Graces, Most Obedient & Most Humble Servant PETER RUSSELL

His Grace the Duke of Portland &c &c &c

1. From the copy in the Canadian Archives, Q. 284, page 16. 2. William Dummer Powell was one of the Loyalist pioneers of Upper Canada. He was born in Boston in 1755 and was educated in England and on the continent. He was called to the Bar at the Middle Temple in 1779 and in the same year came to Montreal where he began the practice of his profession. In 1789 he was appointed Judge of the Court of Common Pleas for the District of Hesse, a position which he held until 1794, when, on the formation of a new judicial system for Upper Canada, he was promoted to the position of puisne judge of the Court of King’s Bench 3. See page 146. 4. The removal of Chief Justice Osgoode to Lower Canada in 1794 left Mr. Powell as the only Judge of the Court of King’s Bench. Under these circumstances Lieut.-Governor Simcoe appointed Mr. Russell to the temporary exercise of the office of puisne justice. Trie Duke of Portland, in the letter here referred to, approved of the appointment until His Majesty’s pleasure be further known. See Canadian Archives, Q. 281, part 1, pages 23 and 263. 3. See page 212, note 3. 6. In the first of the enclosures, dated Nov. 5, 1797, Mr. Russell informs the Chief Justice that he has issued a commission constituting himself a puisne judge of the Court of King’s Bench during term. He requests permission to absent himself from the court for a few days but promises thereafter to attend whenever his presence may be required. The Chef Justice in his reply of the following day asks by what authority the commission has been issued and in what respect it differs from the one under which Mr. Russell has hitherto taken his seat. (See tho Canadian Archives, Q. 284, pages 19 and 20).

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PORTLAND TO RUSSELL.1

N°. 7. WHITEHALL 10. Jan: 1798.

SIR,—I have laid before The King your Letters numbered from 16 to 21 both inclusive.

In answer to the first, relative to the Fees arising from fixing the Great Seal of the Province, altho’ I do not find any Article in His Majesty’s Instructions to the Governor, Lieut. Governor or Person administering the Government of Upper Canada, immediately relative to it, yet I am entirely of opinion conformably to the Rule laid down in His Majesty’s other Colonies, that one moiety of the Fees should be paid to the Lieut. Governor, and the other moiety to the Person administering the Government in his Absence.—Agreeable to this Principle, and with a view of making a suitable Provision for the Person who, in the absence of the Governor or Lieut. Governor, executes the Office ad interim, you are also to consider yourself intitled to draw for one moiety of the Lieut. Governor’s Salary, during his Absence, to commence from the 1st of July last, Due Provision being thus made for you, as the Person executing for the time being His Majesty’s Government in Upper Canada, you will understand that you are not to execute (or to receive any Salary under pretence of executing) the Office of Puisne Judge as such a Circumstance would give occasion to suppose a connection between the judicial & executive Authority which require the greatest Caution to be preserved distinct & separate from each other.2

His Majesty is pleased to approve the decision of the Executive Council which establishes the number of the Council which shall form a Quorum except in the case stated3—As any three or more of the Members of the Executive Council are empowered, by The King’s Commission to the Governor, to do so solemn an Act, as to swear him into his Office, the above decision of the Council appears to have been founded on that Precedent.

I am, Sir, Your most obedient humble Servant PORTLAND

Mr. President Russell.

1. From the original in the Canadian Archives, G. 53, page 114. 2. Mr. Russell’s letter of Nov. 19th which reached England on the 2nd March, had not been received when this despatch of the Duke of Portland was written. On January 21st, 1798, Mr. Russell again wrote to the Colonial Secretary defending his action on the ground of the necessity of providing against any contingency which might suspend the course of justice in the Superior Court. On the 8th of June replying to Mr. Russell’s letter of November 19th, the Duke of Portland simply repeats the decision given in. his previous letter of January 10th. (See the Canadian Archives, Q. 284, pages 129 and 139). 3. See page 213.

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RIGHT OF LEGISLATIVE COUNCIL TO AMEND BILLS IMPOSING A TAX.

JOURNAL OF THE HOUSE OF ASSEMBLY, LOWER CANADA.1

Saturday, 5th May, 1798.

MR. Coffin from the Committee appointed to draw up reasons to be offered to the Legislative Council at a conference for disagreeing to some of the amendments made by the Legislative Council to the Bill intituled, ” An Act to amend an Act passed in the thirty-sixth year of His Majesty’s reign, intituled, ” An Act for making, repairing and altering the Highways and Bridges within this Province, and for other purposes,” reported that they had drawn up reasons accordingly, which they had directed him to report to the House; and he read the same in his place, and afterwards delivered them in at the Clerk’s table where the same were read, and are as follows, videlicet. * * * *

The Assembly cannot agree to the sixth amendment2 made by the Legislative Council, Press 7th, because the said amendment lays a charge upon the subject in addition to those provided by the Bill: and the laying, altering or changing any burthen or charge whatever upon the subject is the sole and inherent right of the Commons, from which the Assembly never can depart.

The Assembly agree to the seventh amendment made by the Legislative Council, Press 7, line 49.

The Assembly cannot agree to the eight amendment3 , made by the Legislative Council, Press 9; because the said amendment is a disposition of the public monies, contrary to the undoubted right of the Commons, from which the Assembly never can depart.

The Assembly cannot agree to the ninth amendment made by the Legislative Council, Press 10, because it is entirely dependent on the eighth amendment.

The Assembly decline offering any other reasons at this time, hoping that these

1. From the Journals of the House of Assembly of Lower-Canada.—Quebec: Printed by oider of the House of Assembly, and sold by John Nielson: MDCCXCVIII. 2. The first five amendments being of a clerical nature were accepted by the Assembly, The sixth amendment was as follows:— strike out clause 22D, and insert instead thereof— ” And be it further enacted by the authority aforesaid, that from and after the first day of January one thousand seven hundred and ninety-nine instead of the personal labour required under and by virtue of the said Act passed in the thirty-sixth year of His present Majesty, every male inhabitant of the cities of Quebec and Montreal respectively, living within the limits described by the Proclamation hereinbefore mentioned, of the age of eighteen years and under the age of sixty, not being bona fide an apprentice or menial servant, shall either in person, or by a sufficient substitute, work on the Roads or Highways on every day and at every place to be appointed by the Surveyor of the city or limits wherein he shall reside for any space of time not exceeding three days in every year, with such tools, at such time, subject to such penalties and with such exemptions as in the said Act are set forth, save that it shall not be required of such persons to bring horse or cart to such labour as aforesaid, and that it shall and may be lawful for such persons to compound in manner hereinafter mentioned, by paying the sum of one shilling and three pence currency for and in lieu of each days personal labour to which they may be liable.” ” Provided also, and it is hereby enacted that the Surveyors of the cities and limits aforesaid respectively, shall annually on the first Sunday in the month of June give public written notice at the Churches of the said cities of the time and place when and where persons inclined to compound for the said duty, may signify such their intention to the said Surveyor and all and every person signifying the same who shall then pay to the Surveyor or within the space of one Calendar month after the date of such public notice, pay to the Overseer of his division, such composition money as aforesaid shall be discharged from the performance of such duty, but in case the composition money is not paid within one month as aforesaid, the parties neglecting the same shall be considered as defaulters, and shall be liable to the same forfeitures as they who make wilful default. (Journals of the House of Assembly, Lower-Canada, 1798, page 169). 3. The eighth amendment was as follows:— strike out clause 30 and insert in lieu thereof— ” And whereas by the said mentioned Act it is provided that the Justices may divide the Cities and Parishes of Quebec and Montreal into such number of divisions as they shall judge necessary not exceeding six, and to allow to each Overseer a sum not exceeding Ten pounds; Be it enacted by the authority aforesaid, that it shall and may be lawful for the said Justices respectively to apportion a sum not exceeding Sixty pounds among the Overseers to be named for each division in such shares as to the said Justices shall appear to be just and reasonable. (Journals of the House of Assembly, Lower Canada, 1798, page 171).

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will be sufficient to induce the Legislative Council to desist from the said sixth, eighth and ninth amendments.1

JOURNAL OP THE LEGISLATIVE COUNCIL, LOWER CANADA.2

Tuesday 8th May 1798.

Tho Members convened were

The Chief Justice, Speaker,

Lord Bishop of Quebec.

Messrs. Dunn Baby DeLanaudiere Sir. Geo: Pownall Caldwell DeLotbiniere

The Honourable Mr. Dunn3 reports from the Committee appointed to draw reasons for this House insisting on their Amendments to the Bill intituled ” An Act to amend an Act passed in the thirty-sixth year of His Majesty’s Reign intituled, ” An Act for making, repairing, and altering the Highways and Bridges within this Province, and for other purposes.” that they had drawn reasons accordingly as follows. Reasons offered by the Legislative Council for insisting on the Amendments made by them to the Bill intituled, ” An Act to amend an Act passed in the thirty- sixth year of His Majesty’s Reign, intituled, “An Act for making, repairing, and altering the Highways and Bridges within this Province, and for other purposes.” The Legislative Council having taken into consideration the Reasons given by the House of Assembly at a Conference on Monday last, for their disagreeing to the Amendments made by the Legislative Council, to the Bill intituled, ” An Act to amend an Act passed in the thirty-sixth year of His Majesty’s Reign, intituled, “An Act for making, repairing and altering the Highways and Bridges within this Province, and for other purposes.” The Legislative Council do insist on their Amendments.

1st. Because altho’ the Legislative. Council are apprized of the privilege attributed by the Law and usage of Parliament to the Common’s House, in all Grants of subsidies or Parliamentary Aids, and in all Bills by which money is directed to be raised upon the subject, a privilege upon which the Legislative Council are not desirous of invading, but on the contrary are so scrupulous of trenching, that even in the Present Bill they have in more Instances than one surrendered their own Judgement, more especially in having acquiesced in the doubling the Assessment. Yet they deemed themselves authorized to make the Amendments objected to, because they go merely to diminish and not to add to a portion of Labour prescribed by an existing Act, to which the Legislative Council had given their concurrence, of course were parties to it and might therefore exercise a Judgement whether they would depart from their own Sanction entirely, or propose such a Temparament as they have offered.

2nd. Because they are not apprised of any precedent, nor has any been pointed out to them, where under similar circumstances, the House of Commons have objected to Amendments, and the House of Lords of the British Parliament (by whose proceedings the Legislative Council are content to govern themselves) have acquiesced in such objection.

1. The reasons submitted by the Committee were accepted by the Assembly and a conference was arranged with the Legislative Council. The reply of the Council is contained in the Journal of Proceedings for May 8th. 2. From the copy of the Journal of the Legislative Council, Canadian Archives, Q. 80, pt. 2, page 262. 3. See page 14, note 5.

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3rd. Because independently of the Question of Privilidge, the Legislative Council cannot, as the present Bill is framed, give up the principle of their Amendment.

The Legislative Council being convinced of the inconvenience and hardship arising from the Bill now in force, are of opinion, that these reasons are sufficient to prevent the Bill to amend the same, from being lost.

Which Report being read by the Clerk, was agreed to by the House.

JOURNAL OF THE HOUSE OF ASSEMBLY, LOWER CANADA.1

Wednesday, 9th May, 1798.

THE order of the day being read for taking into consideration the reasons offered by the Legislative Council for insisting on the amendments made»by them to the Bill intituled, “An Act to amend an Act passed in the thirty-sixth year of His Majesty’s reign, intituled, an Act for making, repairing and altering the Highways and Bridges within this Province, and for other purposes.”

The House proceeded to take the said reasons into consideration.

And the said reasons were again read.

Mr. T. Coffin moved, seconded by Mr. Bedard,

That this House doth insist upon their disagreement with the Legislative Council to the said amendments.

Mr. Grant moved in amendment, seconded by Mi.Berthelot, to strike out all the words after “that” and insert “the order of the day be discharged.”

The House divided upon the question of amendment,

Yeas 2 Nays 16

So it passed in the negative.

And the question being put upon the main motion, it was agreed to unanimously.—

RESOLVED, that this House doth insist upon their disagreement with the Legislative Council to the said amendments.

1. From the printed copy of the Journals of the Legislative Assembly, page 187.

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AN ACT FOR THE DIVISION OF UPPER CANADA INTO COUNTIES.1

IN THE THIRTY-EIGHTH YEAR OF GEORGE THE THIRD.

CHAP. V.

An ACT for the better Division of this Province.

(The Royal Assent to this Act was promulgated by Proclamation, bearing date January 1, in the year of our Lord 1800, and fortieth of his Majesty’s reign.)

For the better division of this Province,2 Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the legislative council and assembly of the Province of Upper Canada, constituted and assembled by virtue of, and under the authority of an Act passed in the parliament of Great Britain, 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,” and by the authority of the same, That the townships of Lancaster, Charlottenburg and Kenyan, together with the tract of land claimed by the St. Regis’ Indians, and such of the islands in the River Saint Lawrence as are wholly, or in greater part opposite thereto, shall constitute and form the county of Glengary.

II. And be it further Enacted by the Authority aforesaid, That the townships of Cornwall, Osnaburg, Finch and Roxburg, together with such of the islands in the River Saint Lawrence as are wholly, or in greater part opposite thereto, shall constitute and form the county of Stormont.

III. And be it further Enacted by the Authority aforesaid, That the townships of Williamsburg, Matilda, Mountain, and Winchester, with such of the islands in the River Saint Lawrence as are wholly, or in greater part opposite thereto, do together, constitute and form the county of Dundas.

IV. And be it further Enacted by the Authority aforesaid, That the townships of Hawkesbury, Longueil, with the tract of land in its rear, Alfred and Plantagenet, with such of the islands in the Ottawa River as are wholly, or in greater part opposite thereto, shall constitute and form the county of Prescott.

V. And be it further Enacted by the Authority aforesaid, That the townships of Clarence, Cumberland, Gloucester, Osgoode, Russell, and Cambridge, with such of the islands in the River Ottawa as are wholly, or in greater part opposite thereto, shall constitute and form the county of Russell.

1. From ” The Statutes of His Majesty’s Province of Upper Canada,” edition of 1802. A plan giving the division of the Province according to this Act was prepared by D. W. Smith, acting Surveyor General, Upper Canada. This plan was reproduced in the report of the Canadian Archives for 1891. 2. For the former division of the Province into counties see the Proclamation of 1792, page 77, and for the division into districts see page 146, note 2.

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VI. And be it further Enacted by the Authority aforesaid, That the counties of Glengary, Stormont, Dundas, Prescott, and Russell, do constitute and form the Eastern District.

VII. And be it further Enacted by the Authority aforesaid, That the townships of Edwardsburg, Augusta, Wolford, Oxford on the Rideau, Marlborough, Montague, and Gower, called North and South Gower, together with such of the islands in the River Saint Lawrence as are wholly, or in greater part opposite thereto, shall constitute and form the county of Grenville,

VIII. Andbeit further Enacted by the Authority aforesaid, That the townships of Elizabeth-Town, Yonge, (including what was formerly called Escot) Lansdown, Leeds, Crosby, Bastard, Burgess, Elmsley, and Kitley, together with such of the islands in the River Saint Lawrence as are wholly, or in greater part opposite thereto, do constitute and form the county of Leeds.

IX. And be it further Enacted by the Authority aforesaid, That the townships of Nepean, with the tract of land to be hereafter laid out into townships, between Nepean and a line drawn north sixteen degrees west from the north-west angle of the township of Crosby, until it intersects the Ottawa River, with such of the islands in the said river as are wholly, or in greater part opposite thereto, shall constitute and form the county of Carleton.

X. And be it further Enacted by the Authority aforesaid, That the counties of Grenville, Leeds, and Carleton do constitute and form the district of Johnstown.

XI. And be it further Enacted by the Authority aforesaid, That Howe Island, and so much of the present county of Ontario as is wholly, or in greater part opposite to the township of Pittsburg, be part of the said township of Pittsburg.

XII. And be it further Enacted by the Authority aforesaid, That Wolfe Island and Gage Island, and so much of the said county of Ontario as is wholly, or in greater part opposite to the township of Kingston, do constitute and form the township of Wolfe Island.

XIII. And be it further Enacted by the Authority aforesaid, That the residue of the said county of Ontario do constitute and form the township of Amherst Island.

XIV. And be it further Enacted by the Authority aforesaid, That the townships of Pittsburg, Kingston, Loughborough, Portland, Hinchinbroke, Bedford, and Wolfe Island, do constitute and form the county of Frontenac.

XV. And be it further Enacted by the Authority aforesaid, That the townships of Ernest Town, Fredericksburg, Adolphustown, Rickmond, Camden (distinguished by being called Camden East), Amherst Island, and Sheffield, do constitute and form the incorporated counties of Lenox and Addiogton.

XVI. And be it further Enacted by the Authority aforesaid, That the townships of Sydney, Thurlow, the tract of land occupied by the Mohawks, Hungerford, Huntingdon, and Rawdon, do constitute and form the county of Hastings.

XVII. And be it further Enacted by the Authority aforesaid, That the townships of Ameliasburg, Hallowell, Sophiasburg, and

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Marysburg, with such of the islands in the Bay of Quinte and Lake. Ontario, as are wholly, or in greater part opposite thereto, and such as were not formerly included in the county of Ontario, do constitute and form the county of Prince Edward.

XVIII. And be it further Enacted by the Authority aforesaid, That the counties of Frontenac, the incorporated counties of Lenox and Addington, Hastings, and Prince Edward, with all that tract of country which lies between the district of Johnstown and a line drawn north, sixteen degrees west from the northwest angle of the township of Rawdon, till it intersects the northern limits of the Province, together with all the islands in the Ottawa River, wholly, or in greater part opposite thereto, do constitute and form the Midland District.

XIX. And be it further Enacted by the Authority aforesaid, That the townships of Murray, Cramahe, Haldimand, Hamilton, Elnwick, Percy, and Seymour, with the peninsula of Newcastle, do constitute and form the county of Northumberland.

XX. And be it further Enacted by the Authority aforesaid, That the townships of Hope, Clarke, and Darlington, with all the tract of land hereafter to be laid out into townships, which lies to the southward of the small lakes above the Rice Lake, and the communication between them and between the eastern boundary of the township of Hope, and the western boundary of the township of Darlington, produced north sixteen degrees west, until they intersect either of the lakes, or the communication between them, shall constitute and form the county of Durham.

XXI. And be it further Enacted by the Authority aforesaid, That the townships of Whitby, Pickering, Scarborough, York, including its peninsula, Etobicoke, Markham, Vaughan, King, Whitchurch, Uxbridge, Gwillimbury, and the tract of land hereafter to be laid out into townships, lying between the county of Durham and the Lake Simcoe, do constitute and form the East Riding of the county of York.

XXII. And be it further Enacted by the Authority aforesaid, That the townships of Beverly and Flamborough, the latter divided into Flamborough East and West, so much of the tract of land upon the Grand River in the occupation of the Six Nation Indians, as lies to the northward of Dundas street, and all the land between the said tract and the East Riding of the county of York, with the reserved lands in the rear of the townships of Blenheim and Blandford, do constitute and form the West Riding of the county of York.

XXIII. And be it further Enacted by the Authority aforesaid, That Matchedash, Gloucester, or Penetangueshine, together with Prince William Henry’s Island, and all the land lying between the Midland District and a line produced due north from a certain fixed boundary (at a distance of about fifty miles north-west from the outlet of Burlington Bay) till it intersects the northern limits of the Province, do constitute and form the county of Simcoe.

Home District. XXIV. And be it further Enacted by the Authority aforesaid, That the counties of Northumberland, Durham, York, and Simcoe, do constitute and form the Home District.

XXV. Provided always, and it is hereby further Enacted, That when, and so soon as the said counties of Northumberland and Dur-

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ham shall make it satisfactorily appear to the governor, lieutenant governor, or person administering the government of this Province, that there are one thousand souls within the said counties, and that of the townships therein do hold town-meetings according to law,1 then the said counties, with all the land in their rear, confined between their extreme boundaries, produced north, sixteen degrees west, until they intersect the northern limits of the Province, shall, and are hereby^ declared to be a separate district, to be called the District of Newcastle. And the governor, lieutenant governor, or person administering the government of the Province, is hereby authorized upon such proof as aforesaid, to declare the same by proclamation any time within one year after the same shall be so established, as to him shall seem most fit.2

XXVI. And be it further Enacted by the Authority aforesaid. That so much of the township of Glanford as is now comprehended between the southern boundary of the township of Binbrook, and the boundary of the Six Nation Indians land, be added to the said township of Binbrook, and become part thereof.

XXVII. And be it further Enacted by the Authority aforesaid, That the townships of Clinton, Grimsby, Saltfleet, Barton, Ancaster, Glanford, Binbrook, Gainsborough, and Caistor, do constitute and form the First Riding of the county of Lincoln.

XXVIII And be it further Enacted by the Authority aforesaid, That the townships of Newark, Grantham and Louth, do constitute and form the second Riding of the County of Lincoln. Provided always That the town and township of Newark, now generally called West Niagara, be henceforth declared and called the town and township of Niagara respectively.

XXIX. And be it further Enacted by the Authority aforesaid, That the townships of Stamford, Thorold and Pelham, do constitute and form the third Riding of the County of Lincoln.

XXX. And be it further Enacted by the Authority aforesaid, That the townships of Bertie, Willoughby, Crowland, Humberstone, and Wainfleet, do constitute and form the fourth Riding of the of County of Lincoln.

XXXI. And be it further Enacted by the Authority aforesaid, That the tract of land on each side of the Grand River, now in the occupation of the Six Nation Indians, and laying to the southward and south-east of Dundas-street, do constitute and form the County of Haldimand.

XXXII. And be it further Enacted by the Authority aforesaid. That the said Counties of Lincoln and Haldimand, with such of the islands of this Province lying in the river Niagara, or Lake Erie, as are wholly or in greater part adjacent thereto, together with the Beach at the Head of Lake Ontario, between the outlet of Burlington Bay and the township of Saltfleet, and together with the promontory between the said Burlington Bay and Coats Paradise, do constitute and form the District of Niagara.

1. See the Act 33 Geo. III, cap. II, page 88. 2. In 1802 an Act was passed, 42 Geo. III, Chap II, giving to the District of Newcastle the same courts as were held in the other districts of the Province.

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XXXHI. And be it further enacted by the authority aforesaid, That the townships of Rainham, Walpole, Woodhouse, Charlotteville, Walsingham, Houghton, Middleton, Windham, and Townsend, together with Turkey Point, and promontory of Long Point, do constitute and form the County of Norfolk.

XXXTV. And be it further enacted by the authority aforesaid, That the triangular tract of land heretofore called Townsend Gore, be added to the township of Burford, and to become part thereof.

XXXV. And be it further enacted by the authority aforesaid, That the townships of Burford, Norwich, Dereham, Oxford upon the Thames, Blandford, and Blenheim, do constitute and form the County of Oxford.

XXXVI. And be it further enacted by the authority aforesaid, That the townships of London, Westminster, Dorchester, Tarmouth, Southwold, Dunwich, Aldborough, and Delaware, do constitute and form the County of Middlesex.

XXXVII. And be it further enacted by the authority aforesaid, That the Counties of Norfolk, Oxford and Middlesex with so much of this Province as lies to the Westward of the Home District, and the District of Niagara, to the Southward of Lake Huron, and between them and a line drawn due north from a fixed boundary (where the easternmost limit of the township of Oxford intersects the River Thames) till it arrives at Lake Huron, do constitute and form the district of London.

XXXVIII. And be it further enacted by the authority aforesaid, That the townships of Dover, Chatham, Camden, distinguished by being called Camden West, the Moravian tract of land, called Orford, distinguished by Orford North and South, Howard, Harwich, Raleigh, Romney, Tilbury, divided into east and west, with the township on the river Sinclair, occupied by the Shawney Indians, together with the islands in the lakes Erie and Sinclair wholly or in greater part opposite thereto, do constitute and form the County of Kent.

XXXIX. And be it further enacted by the authority aforesaid, That the townships of Rochester, Mersea, Gosfield, Maidstone, Sandwich., Colchester, Maiden, and the tracts of land occupied by the Huron and other Indians upon the Strait, together with such of the islands as are in lakes Erie, Sinclair, or the Straits, do constitute and form the county of Essex.

XL. And be it further enacted by the authority aforesaid, That the Counties of Essex and Kent, together with so much of this Province as is not included within any other district thereof, do eonsti* tute and form the Western district.

XLI. And be it further enacted by the authority aforesaid, That this act nor any part thereof, shall take effect until from and after the fourteenth day of February next.

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DOCUMENTS RELATING TO THE ENTBT OF THE MINUTES OF THE EXECUTIVE COUNCIL, LOWER CANADA.1

MINUTES OF EXECUTIVE COUNCIL RESPECTING CROWN LANDS.

Thursday. 20th September 1798.

At the Council Chamber in the Castle of Saint Lewis

Present

His Excellency General Prescott Governor.2

and

The Honorable— William Osgoode C.J. The Lord Bishop Hugh Finlay François Baby. & John Toung.— Esquires.—

The Entry of the Minutes of the last meeting of the Board (9th July last) being read—His Excellency requested that it might be remembered that the Order for recording the Report of the Committee of the 20th June3 (relative to the new Regulations then lately received through His Majesty’s Secretary of State, in conformity to the Instruction under His Majesty’s Royal Sign Manual bearing date at St James’s the 15th day of August 1797. communicated to the Board on the 11t h June last) was not voluntary on his part, but, on the contrary, that the Draft of the Minute which His Excellency on that day brought forward stood thus,—” His Excellency laid before the Board a Report of a Committee of the whole Council dated the 20th June last upon the Reference of the 11t h of the same month respecting the Wastp Lands of the Crown which was read and ordered to be filed; ” And, that it was purely in compliance with a request of the Board, that His Excellency had permitted the word ” filed ” to be struck out, and the word ” entered ” to be substituted in ita place.—

His Excellency could not but feel some degree of regret at the circumstance of that request having been made and complied with: His regret, His Excellency said, arose from this consideration, The Records of the proceedings relative to the granting 1. From the original in the Minutes of the Executive Council relating to Land Matters, Land Book D. Lower Canada, page 230. 2. General Robert Prescott was born in England in 1725. He was sent to the Barbadoes in 1793 and was in command of the troops which effected the reduction of Martinique in March, 1791. After the capitulation he was appointed civil governor of the Island. He was then transferred to Guadaloupe but later returned to Martinique where his wise government was effective in preserving order among the natives. On account of the threatened failure of his health lie returned to England in January, 1795. Lord Dorchester having asked perm:ssion to retire, General Prescott was selected as his successor. On January 21st, 1796, he was given a commission as Lieutenant-Governor of the Province of Lower Canada. He arrived at Quebec in June and on Lord Dorchester’s departure assumed the Government of the Province. A commission was issued on December 15th, 1796, constituting him Captain General and Governor-in-Chief of the Provinces of Upper and Lower Canada. During the course of his Administration serious differences arose between him and his Executive Council with the result that on the request of the Home Government be returned to Britain in July, 1799. Though he never again directed the Government of the Province he retained the position of Governor-in-Chief until the appointment of Sir James Craig in 1807. 3. See Land Book D, Lower-Canada, page 201.

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of the Waste Lands of the Crown, (by an old standing Order, perfectly conformable to His Majesty’s Royal Instructions, and therefore to be held in all cases inviolably sacred), were, what they undoubtedly ought to be, open for the information and satisfaction of all persons, concerned therein.1 It appeared to him, His Excellency observed that when on any subject there might happen to be a momentary difference of opinion between the Governor and His Council, it would be much better that their reasonings should be put, at least for a time, on special files to be opeji only to thp Governor and Members of the Council (or to such other particular individuals as might obtain special permission from the Governor or from some Member of the Council for that purpose) to the end that the sarnie might be reconsidered, whereby an union of opinion might take place previous to the recording than to record at once the different opinions so entertained. For, although His Excellency would in such eases always endeavor on his part, to consider the subject so fully before hand, as not to be afraid of submitting his opinion thereon to the judgment of the whole world; and although he would always be ready on his part, to correct by a future document, any mistake (all men being at times liable to error) that he might at any time discover in a prior one: yet (admitting likewise that the same dispositions should equally prevail in the Breasts of all the Members of the Council) His Excellency could see no use in entering upon record, opinions that were not coincident; at least, until they should be reconsidered.

The Reasons, His Excellency said, which induced him to prefer the putting of such different opinions, in all future cases, upon special files, was this, he cou’d see no good reason why any momentary difference of opinion, between the Governor and the Council should be open to the public; which must be the case in regard to the Land business if entered upon record. For, His Excellency said he could on no account whatever depart so far from the orders of his Royal Master, as to allow any of His Majesty’s Instructions relative to the granting of the Waste Lands of the Crown, or any of the proceedings had thereon, so far as the same shall be entered upon record, or placed of record upon the ordinary files, to be keep from the parties concerned.

His Majesty’s Royal Instructions, in order to avoid all causes of complaint with respect to partiality, strictly enjoin (in addition to any publication that might be made, ” by Proclamation or otherwise “) that all instructions which His Majesty has given or may hereafter give, ” relative to the passing Grants of Lands in conformity to the act passed in the thirty first year of his Reign, be entered upon record, for the information and satisfaction of all parties whatever that may be concerned therein.”2

The Instruction relative to causing ” a Publication to be made by Proclamation or otherwise”3 gives in some degree a discretionary power, to be exercised by those who might be entrusted with the administration of the Provincial Government; but His Majesty’s Royal Commands, that his instructions shall be entered upon record, and that all parties concerned shall have free access to those records, are in no degree discretionary, but in every respect positive.

Were the parties to have free access to the Records for the purpose merely of knowing His Majesty’s Royal Instructions considered by themselves, separate and distinct from the proceedings had thereon, such access could be of no possible avail to them : The instructions therefore, together likewise with the proceedings thereon, in which the Interests of individuals may be concerned, are necessarily included in His Majesty’s Royal Commands : And, His Excellency can, on no condition (at least on no condition short of an express permission from His Royal Master) allow His Majesty’s commands to be disobeyed.

His Excellency then informed the Board that he had received a Report of the Committee of the whole Council dated the 901 August, and delivered on the 1601 of

1. See page 23, note 2. 2. See Article 38 of the Instructions to Lord Dorchester, page 23. 3. See Article 37 of the Instructions to Lord Dorchester, page 23.

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the same month, upon the reference of the 9th July last.1 On perusing the Report, His Excellency said, he found that certain parts thereof contained opinions which he could not exactly coincide with; and he had therefore made certain remarks in writing, relative to the points which appeared to him in a different light from that in which they had appeared to the Committee; which together with the Report, he was about to lay before the Board.—

As His Excellency had not till now explained his reasons, with respect to the placing of any documents on special files; it was his intention in the present instance, to make such order as the Board might think proper to advise, whether to put the present Report together with his remarks thereon upon a special file as above defined, or to enter them upon record; and if the Board should not be prepared to favor him with their advice therein, he should order the Report and his remarks to be put on such special file for the present, and not recorded until further orders may be given thereon by the Governor; after the expiration of ten days from this time.—

His Excellency then laid the Report, together with the remarks he had made thereon in writing, before the Board; which being read and considered, the Chief Justice, in the name and on the behalf of the Members present, advised, that the same be entered; and His Excellency having given his word in manner abovementioned, Ordered the same to be entered of Records accordingly.—

MINUTES OP EXECUTIVE COUNCIL RESPECTING CROWN LANDS.2

Saturday 22nd December 1798.

At the Council Chamber in the Castle of Saint Lewis

Present

His Excellency General Prescott Governor

and

The Honorable

William Osgoode. C.J. The Lord Bishop Francis Baby Thomas Dunn James Monk. C.J.M. & John Young.

Esquires

Upon reading the Minute of the former proceedings, it being observed that the written answer given in by the Board on the 22nd of September last to the written paper referred to them by His Excellency on the 20th of September is omitted; The Chief Justice in the name of the Members assembled at the said Board humbly moves His Excellency that the said written answer be inserted in the Minutes.—

His Excellency observed in reply that he could not for his own part discover any good purpose tiiat could be answered by entering the paper alluded to in the Motion : he had indeed conceived that the intemperate manner in which it was drawn up (even were there nothing else) would have prevented any Member of His Majesty’s Council from wishing to see it on the Records of the Board.—

The paper alluded to did not perfectly correspond with the Definition contained in the prefatory part of the motion: No written paper had been referred by His

1. This report wa3 on a reference of His Excellency ” to consider of the most proper meanB of communicating to the Parties concerned His Majesty’s Gracious Intentions contained in the Regulations laid before the Board—respecting the waste lands of the Crown.” The report together with the Journal of the Committee and His Excellency’s observations follow in order in the Minutes of the Council. 2. From, the original minutes of the Executive Council, Land Book D, Lower Canada, page 293.

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Excellency on the 20tl1 of September last, for an answer on the part of the Board, in the manner which the prefatory part of the motion would seem to imply: the only thing that was on that day submitted by His Excellency for the consideration of the Board, was, Whether, after what he had expressly declared in the Minute, it was the opinion of the Board, that the Report of the Committee of the 9th of August and the Governor’s Remarks thereon should be put on a special file to be open only to the Governor and the Members pf the Council, or be entered in the Books which, by an old Order of the Board (perfectly conformable to His Majesty’s Royal Instructions) were declared to be open for the information of all persons concerned.—

Had His Excellency been apprized that such a motion was intended to be made, he would have been more fully prepared on the occasion: it happened however that he had in his Pocket, the Paper alluded to; together likewise with a brief Memorandum of some of the Reflexions that had occurred to his mind on reading it in September last,1 and by which he was then induced not to direct it to be entered with the rest of the Proceedings.—

The Gentleman who brought forward the Motion, had fallen into a great mistake in that part of his introductory observations wherein he supposed that the Governor had departed from an established practice, and had exercised an unauthorized and unusual discretion in omitting to direct the entering of the paper alluded to: had the Honorable Gentleman taken the trouble to inform himself, he would have found that the Governors of this Province (and probably of His Majesty’s other Provinces also) had always, at least whenever they thought proper, exercised the sole power of directing what papers should or should not be entered on the Minutes: he might easily have found instances in which Reports that the Members had been called upon to draw up, had been laid before the Board, and ordered at once to be put on the files, without submitting to the consideration of the Board, whether they should or should not be entered, and His Excellency cannot but think it exceedingly probable, that the Board may hereafter consider the motion which the Honorable Gentleman brought forward on the 9th of July last for preventing the same steps from being followed in the late instances, not to have been well judged. So much of the paper alluded to in the present motion as contained the answer to the question submitted to the consideration of the Board had been entered: Further than this His Excellency had not conceived to be either necessary or proper, particularly as it appeared to him to be more likely to increase that disesteem in which the proceedings of the Board were then already held than to remove it.

His Excellency was desirous that that disesteem should be removed: He was by no means voluntarily disposed to give an Order that appeared to him to have a tendency to increase it.

If however the Members of the Board entertained a contrary opinion, and were desirous of having the paper entered at large, His Excellency would certainly comply with their wishes in that respect, rather than suffer it to be for a moment supposed that he was actuated by any improper motive in refusing it a place on the Records: but if entered, the considerations which had induced him to omit ordering it to be entered before, must of course be entered with it.

His Excellency then handed to the Clerk, the paper alluded to in the motion, together likewise with the aforementioned Memorandum, which were read at the Board.

ORDERED by His Excellency, on the motion of the Board, that the said paper, together with His Excellency’s Observations thereon be entered on the Minutes.

1. The memorandum may be found in the Land Book D, Lower-Canada, page 199. It has aot been published here though its substance is embodied in the notes to the ” Paper ” submitted by the Chief Justice, page 231.

[Page 231]

(THE PAPER.)1

“Thursday 20th September 1798.

” In Council

“OPINION and advice of the Members present; they being “The Chief Justice “The Lord Bishop & Messrs ” Finlay “Baby & ” Young

“May it please Your Excellency,

“Your Excellency having been pleased to demand the advice of the Members at the Board, whether you should direct the Report referred to, together with Tour Excellency’s Remarks thereon, to be put upon a special filé or to enter them upon Record, the Members present humbly beg leave to observe to Tour Excellency—

“That the establishment of Special files, to be open only to the Governor and Members of the Council, or to such other particular individuals as might obtain special permission from the Governor or of some Member of the Council for that purpose, is a proceeding altogether novel; and it is a prudent maxim with all bodies that have been regulated by an ancient course of procedure to admit of no innovation unless the necessity thereof be cogent and the advantage manifest.—

” The Members apprehend that in the present case no such necessity exists, because in their judgement the reasons assigned for the measure are founded on a misconstruction. Your Excellency is pleased to state that you can on no account whatever depart so far from the orders of Tour Royal Master as to allow any of his Majesty’s Instructions, relative to the granting of the Waste Lands of the Crown, or any of the proceedings had thereon so far as the same shall be entered upan Record or placed of Record upon the ordinary Files to be kept from the parties concerned.2

” The Members present are apprized of no Order imposing such extensive communication. The Order cited is confined to the Royal Instructions merely: and was never understood by any of the Members present necessarily to extend to any Regulations, Directions, Orders of Reference or Reports of Committees of the whole Council. For a Royal Instruction is a well known Document of specific description and cannot be extended to or supposed to include any other proceedings.

“The Members present conceive that Tour Excellency’s zeal to shew full obedience to His Majesty’s Royal Commands has superinduced a fallacy in argument, by substituting the general Term Records for the specific term Royal Instructions. The Order does not mention all Records but the Royal Instructions upon Record. Otherwise if the Royal Instructions respecting Lands had been entered in the State Book, which was optional to the Governor, by this mode of reasoning, the Contents of the State Book would become liable to be equally open to the public.3

1. From the Land Book D, Lower Canada, page 296. 2. See page 228. 3. This contention, General Prescott observes, ” is just as fallacious as the argument which it is intended to support: were the premises admitted, they would not (preposterous as they are) support the conclusion pretended to follow from then ; it would by no means follow, even from the admission of those preposterous premises, that the contents of the State book’s should be open to the public; It would only follow that such of the Entries therein as contained the Royal Instructions relative to the Waste Lands and the proceedings appertaining thereto, should be open to the public. The preposterousness and absurdity of entering them in the same Books with the Matters of State .would be evident to everybody; and for this very reason were they entered in separate Books.” (Land Book D, page 301.)

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” The Members present so far from knowing of any positive Order, to the extent alluded to,1 conceive, that if any discretionary power be vested in the Executive Magistrate of this Province, to direct copies to be given of all the proceedings of Council relative to the Land business, such discretion ought to be very sparingly exercised, from the shameful abuse that has lately been made of it.

“It is with real concern the Members acquaint Tour Excellency that Hand-hills are posted up in all the conspicuous parts of this city, purporting that Extracts from the Minutes of Council containing Tour Excellency’s Order of Reference of the 11th of June respecting the Waste Lands of the Crown, the Committee’s Report thereon and Your Excellency’s speech in reply, are to be sold; and it appears that many hundred copies have been printed and dispersed. This is a scandal which, it is believed, never obtained in the most contentious of the former Colonial Governments in any periods of their discord. The Members! lament that it should prevail in Lower Canada and more especially that it should proceed from the Government- Press.

“When the Members present reflect on the painful sensations which must be excited in those of His Majesty’s Ministers who are more immediately connected with this Province that such disgraceful practices should have prevailed therein, they cannot but express their regret that such pain may be increased when they observe that from the concluding sentence in certain Remarks from the highest authority in this Country, it is more than probably this scandal will be repeated—the Members present are much concerned that the King’s Representative should think it necessary to conclude his Remarks with a menace so extraordinary,2 and that he should deem

1. In this connection Governor Prescott observes:— ” If any doubt could be entertained, whether the Books containing the Entries of the proceedings relative to the granting of the Waste Lands were or were not intended by the Executive Government of this Province to be open for the information and satisfaction of all parties concerned, such doubt would be at once cleared up, by the Entry contained in the Minutes of the 21st January, 1793, ordering an advertisement to be published (and which was accordingly published) in the Gazette, under the signature of the Clerk of the Board in the following words:— “Council Office, Lower Canada, 21st January, 1793. ” Final Orders remaining to be taken by His Excellency the Governor and the Executive Council, for reasons inserted in the Minutes of the Board, upon certain petitions for Grants of Parcels of the Waste Lands of the Crown. All Petitioners for Lands in this Province are hereby notified that the Minutes are open for daily inspection between the hours of Ten and Three.” It is perfectly evident from the abovementioned Advertisement as well as from the actual practice which prevailed both before and after, of giving copies of the Entries to such as desired them, that the Records of the Proceedings relative to the granting of the Waste Lands were considered in the same light as other public Records, open for the information and satisfaction of all persons concerned. If any Reports or other papers a– eared improper and unnecessary to be generally known, they were at that time put on the files without being entered on the Minutes. (Land Book D, Lower Canada, page 301). On November 9th, 1799, the question of access to the Minutes of the Land Board was considered and a new order issued as follows:— ” Whereas misconstructions have been passed on the true Intent and meaning of the Order of Council of the 21st January, 1793, regarding the Inspection of the Minutes of the Land Proceeding; and whereas great Frauds have been practised by offering official Copies of unconfirmed Reports as indubitable Titles to Land;—to obviate the same in future, it is ordered by His Excellency the Lieut.-Governor by and with the advice of the Executive Council, that the said order of the 21st January, 1793 be, and the same is hereby rescinded;— and it is further ordered, that all, and every Person may on their own behalf, or as Agents duly appointed for others, apply to and receive from the Clerk of the Executive Council, official Copies of each and every order or proceeding of the Executive Council respecting the Subject Matter of any Petition that may have been presented by them or their constituents or respecting any matter connected with or arising out of such Petition, when and as soon as such Proceeding shall be concluded and consummated and not otherwise. Which said Official Copies the Clerk of the Executive Council shall and he is hereby required to furnish to the Parties applying for the same upon Payment of the Customary and approved Fees.” (Land Book D, Lower Canada, page 361). 2. The Governor concluded his remarks on the Report of the Committee of Council of August 9th with, the observation that should the Council ” persist in endeavouring to support an error by running into another, the Governor will not consider himself blameable for any disesteem to which they may thereby be reduced, nor will he in that case hold himself answerable that such errors may not become exposed to the world.”—(Land Book D, page 292).

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so meanly of their understanding as to persuade himself it would produce any consequence.

” Upon the whole the Members are of opinion that the chief reason assigned for the proposing of this novelty, instead of being of cogent necessity does not even exist, therefore they cannot recommend its adoption: Por the order is imperative with regard to the Royal Instructions only, and not to all other Proceedings on Record. And should Tour Excellency be advised that you have a discretionary power to make them public, the Members present will hazard the imputation of being irregular, from a conviction that their Council is salutary, when they recommend it to Tour Excellency not to exercise that discretion for the present, but to countermand the Directions lately given, so far as they respect Orders of reference, Reports of the Committee of the whole Council, and other proceedings which in common prudence ought to be kept secret while they remain in deliberation, or while they partake of an adverse nature. The effect of such countermand will be to prevent the continuance of that reproach, which, for the credit of this Government the Members present do most sincerely deprecate.

“The Members present do therefore humbly advise that the customary form of Entry be used with respect to the Report, the Remarks and Papers accompanying them, without inserting the term Record, which is unusual and superfluous.

“By order (signed) ” Wm. OSGOODE. P.”

MINUTES OF THE EXECUTIVE COUNCIL.1

Monday. 25th March 1799.

At the Council Chamber in the Castle of Saint Lewis.

Present.

His Excellency General Prescott Governor.

and

The Honorable.

William Osgoode. C.J. The Lord Bishop. Hugh Finlay François Baby. Pierre Amable De Bonne Antoione Juchereau Duchesnay & John Young.

Esquires.

Read a Motion of the Chief Justice, in the name of the Members present in Council, on the 5 a January last, presented at the Board on that day; together with His Excellency’s observations thereon delivered this day.—

ORDERED that the motion and observations be preserved on the rues till further Order be made thereon.—

(THE MOTION)2

The Minute of the Proceedings of the last Council being read, It appears to the Members of the Board that the Observations stated to have been made by His Excel-

1. From the original Minutes of the Land Board, Land Book D, Lower Canada page 317 2. The Motion and Observations which follow were not entered in the Minutes of the Board but copies were enclosed in Prescott’s despatch to the Duke of Portland No. 100 of March 27th, 1799. See the Canadian Archives, Q. 82, pages 251-261.

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lency in Reply are in their manner somewhat irregular and in their matter not entirely founded.

The Board humbly apprehend it to be irregular to make written Remarks on any Observations that may have been orally delivered by a Member sitting in his place, for this obvious reason—Because the Minutes are framed to the intent of conveying authentic & unquestionable information to His Majesty of the Proceedings of His Executive Council. But verbal Observations (without reference to the present case) are liable to be misconceived by His Majesty’s Representative, or to be denied by the Party to whom they are imputed; whereas written documents are not liable to such impeachment.

Further it appears to the Board that the Position asserted by His Excellency that the Governors of this Province, had always, at least whenever they thought proper, exercised the sole power of directing what papers should or should not be entered on the Minutes is not only novel but tends to subvert the freedom and privileges necessarily incident to every deliberative body.

They are not apprized of the instances alluded to by His Excellency, and though frequent precedents were produced they would still contest the principle as being repugnant to fairness, to policy, and to the obvious ends of their Institution. They avow a responsibility to His Majesty under the solemn and sacred obligation of an Oath, but cannot imagine that any person of common discretion would knowingly subject himself to responsibility for his conduct, and at the same time” be debarred from the privilege of explaining his motives. They humbly conceive that the Spirit of British Polity, whether domestic or colonial, does in no case exact such unreasonable conditions from those who engage in civil duties.1

The Members present at the Board will always receive with the most submissive deference whatever observations His Excellency may be pleased to make in answer to their written opinions without presuming to reply; but they should hold themselves most culpably neglectful of their privileges if they omitted respectfully to apprize His Excellency that they do not concur in the Position that the Governors of this Province had always the sole power of directing what papers should or should not be entered on the Minutes.2

The Members present have therefore authorized the Chief Justice to submit these Observations to His Excellency, and have directed him to move, and he humbly does move that they may be inserted in the Minutes.

(THE OBSERVATIONS)

The Governor’s observations respecting the Motion brought forward by the Chief Justice on the part of the Members of the Board, January 5th 1799, desiring that a paper then delivered (containing objections to certain parts of the Contents of the Entry of the 22d of December preceding) might be entered on the Minutes.

The Members of the Board cannot but recollect that the Entry of the 22d. December 1798s alluded to in the Papers delivered, was made contrary to the Governor’s wishes ; the Motion for that Entry was brought forward without any previous notice, and was, on the part of the Governor altogether unexpected.

Any supposed irregularity therein, whether real or imaginary can be easily done away (without infringing on the ancient practice of the Board, or adopting any novel procedure) by expunging the entry altogether, and the Governor will direct it to be expunged accordingly, if thereunto requested by the Board.

1. For a future reference to this question see page 279. 2. See page 230. 3. See page 230.

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Although the Governor has hitherto complied with the wishes of the Board in regard to ordering Papers to be entered on the Minutes, yet he can by no means consider such compliance as a necessary duty on his part: on the contrary he is fully and clearly of opinion that where the Governor and the Council shall think differently, with respect to the propriety of entering any paper, the decision must rest with the Governor; and he believes this opinion will stand supported by the actual and constant practice of the Board, as far back as the Records extend.

It is worthy of Remark, that, in the paper delivered by the Honble Gentleman on the part of the Members of the Board, on the 22nd of September last (contained in the entry of the 22d of December) they express a great repugnance to innovations upon any ” ancient course of procedure :”

But in the present paper they seem to have lost sight of that regard for the ” Ancient course of procedure ” and declare that, ” though frequent precedents were ” produced, they would still contest the principle.” It is not easy to reconcile the different opinions which the Honorable Gentleman has at different times delivered on the part of the Members of the Board; and the Governor cannot but conceive that the Members must have given their acquiescence to the Opinions so delivered on sundry occasions, upon the credit of others, without actually examining into the real state of the case.

It is impossible to read and compare the different proceedings since the year 1794 without actual astonishment; and when these are further compared with the former proceedings, the astonishment becomes infinitely more increased.

The Governor cannot discover any good purpose that can be answered by his continuing to comply with the wishes expressed on the part of the Board, in regard to entering on the Records, opinions in which himself and the Council do not concur; and more especially where those opinions relate only to the Governor and the Council, without affecting the rights, properties or privileges of any other persons. Every good end that could result from such Entries, would be equally obtained by preserving the papers on Files until the differences of opinion might become reconciled, either by the reconsiderations of the Parties themselves or by the decisions of superior Authority.

The Governor therefore does not comply with the present motion for the Entry: but, to prevent any of the Members from supposing that he entertains any the smallest desire to suppress their opinions, he will order, And it is hereby accordingly ordered —That the Paper hereunto annexed, containing the objections of the Board to certain parts of the contents of the Entry of the 22a of December last, together with these Observations, be preserved on the Files, till further Order be made thereon.

(Signed) R. P.

A true Copy. Thos. Gary A. C. Ex. C.

Endorsed. In General Prescott’s No. 100 To His Grace the Duke of Portland of 27th March 1799.

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DELEGATION OF THE FUNCTIONS OF THE LIEUTENANT GOVERNOR, UPPER CANADA.

MINUTES OF EXECUTIVE COUNCIL.1

Council Chamber Thursday 22d 1799.

Present in Committee—

The Honble The Chief Justice in the Chair

The Honle Alexr Grant AEneas Shaw Peter Russell John McGill

The Chief Justice2 delivered the following Message from His Excellency the Lieut. Governor

The Lieutenant Governor3 takes the Earliest opportunity of informing the Honorable the Executive Council—that he is arrived in this Province, for the purpose of immediately taking upon himself the Administration of the Governmt.

He also avails himself of this opportunity to inform the Board, that His Majesty has been pleased to appoint him to Command his Troops in the two Canadas, during the absence of His Excellency General Prescott.

He foresees that the duties of each of those Stations, but particularly the latter, will make it either necessary, or highly expedient that he sha occasionally be absent from the Seat of Government and should sometimes visit the Lower Province sometimes the remoter parts of this—

The occasions which may call him to the Lower Province, he has reason to think will not last longer (than ’till next Spring, & perhaps not so long

He does not foresee however that his absence in either Province will be of such duration, as to make it necessary for him to appoint any Person to Administer the Government in the mean time, And he is the less inclined to adppt that Expedient, as he is satisfied himself, and trusts it will be equally apparent to the Honorable Board, that in Committing the reins of Government to another, tho even for so short a period, it will hardly be possible for him to Administer the Affairs of the Province which the King has entrusted to him, Upon the principles which his own Judgment suggests—and for which alone, he can consent to be responsible

In order however to prevent as much as possible any inconvenience that may arise from his temporary absence, he proposes to appoint a Committee of three Members of Council, to whom he will give such powers and instructions, and with whom he will take care to maintain so constant a Communication, as will he trusts leave nothing to be apprehended on the Subject.

With this view therefore and with the fullest confidence in the wisdom of the Board, and the most perfect reliance on its support & co-operation, the Lieutenant Governor requests that it will state to him the points for which it conceives that it will be necessary for him to make particular provision, and also to suggest to him what provision it thinks will be proper and adequate.

York 22 Augt. 1799—Signed—P.H.

1. From the original Minutes of the Executive Council, State Book B, Upper Canada, page 421. Although the month is not here given this minute contains the proceedings of the 22nd of August. 2. Pee page 212, note 3. 3. Lieut.-General Peter Hunter was born in Scotland in 1716. He served in the army during the Revolutionary War and was later stationed at Niagara as Colonel in Command of the 60th Regiment. In December, 1788, Lord Dorchester appointed him chairman of the Land Board of the District of Nassau. In 1790, he acted as Superintendent of the British Honduras. He was appointed Lieut.-Governor of Upper Canada in April 1799, and on General Prescott’s departure assumed command of the forces in the two Canadas. He died at Quebec after a very brief illness’, August 21st, 1805.

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MINUTES OF EXECUTIVE COUNCIL.1

Saturday 24th August 1799.

Present in Committee

The Honorable

The Chief Justice Alexr. Grant Peter Russell— John McGill

Chairman. Esqrs.

The Board resumed the Consideration of His Excellencys Message and the Chief Justice was pleased to Read the following Report

Council Office 24th Augth. 1799

Sir,—I have the Honour to inform your Excellency that in obedience to Tour Commands, I have communicated your Message of the 22d Instant to the Executive Council.

The Board begs leave to assure Tour Excellency that it heard with more than common pleasure of the appointment of a Gentleman to the Supreme Civil and Military Station in this Province who during his former residence in it had given such solid proofs of his good will towards it, as leaves no doubt that he will avail himself of every means which his present Situation puts in his power to advance its prosperity.

We are well aware, that the nature of Tour Excellencys Military appointment will occasionally require Tour absence from the Seat of Government, and from the Province itself. But as Tou are pleased to inform us, that those absences will be but of short duration, we shall gladly contribute all in our power to prevent any inconvenience that may arise, or be apprehended from them.

With this view we have taken into our most serious consideration the Subject referred to us, and have distributed under certain heads the points for which we conceive that it will be necessary for Tour Excellency to make provision, Suggesting ai the same time, the expedient, which we think may answer the purpose proposed.

Those heads appear to us to embrace whatever relates

1st to the Administration of Justice. 2d To the Revenue. 3rd To the business of the Land Granting Department 4th To such Subjects, not reducible under any of the former heads, as will require Tour Excellencys Signature, with or without the Solemnity of the Great, or the Privy Seal.

1st Under the head of the Administration of Justice may be comprehended the Commissions, Civil & Criminal, which it may be necessary to give to the Judges, & the Commissions of the Peace, which will be necessary for the several Districts into which the Province will be divided, when the new Bill takes effect.2 It will also be necessary to appoint New Sheriffs Coroners, Judges of the District Courts, Clerks of the Peace and Officers of the Surrogate Courts, as well as to issue new Commissions to the Old ones : all of which the Board thinks may be provided for, without much difficulty before Tour Excellencys departure.

2d Under the head of the Revenue, may be comprised the issuing of Money by the Receiver General, the issuing of Shops, Still, and Tavern Licences, by the Secretary, and the Auditing and approving of the Public Accounts.

363. From the original Minutes of the Executive Council, State Book B, Upper Canada page 424. 2. For this Act see page 222.

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With respect to the Authority under which the Receiver General is to issue the Public Money, we conceive it to be a point more immediately interesting to that Officer, than to the Board, we therefore content ourselves with saying that we will chearfully sanction any arrangement which Tour Excellency & he, may make on the Subject.

The issuing of Shop Still, and Tavern Licences may we conceive be very easily provided for by Tour Excellency’s signing them in blank, & leaving them, as has hitherto been the practice with the Secretary, under his accountable receipt.

With respect to the Confirmation or rejection by Tour Excellency of the accounts Audited and Approved by the Executive Council, we Apprehend, that as there will not be more than one Audit during the probable period of Tour Excellencys Absence, if Tour Excellency will take our assurance that we will not at that Audit allow of any charge which has not either been allowed before, or comes within some Settled, & recognized principle, We apprehend there can be no difficulty

3d On the Subject of the Land Granting Department the Board has for some time past felt an encreasing inclination not to dispose of any more of the Waste Lands of the Crown, on payment of fees, except where the faith of Government is pledged to do so, or where a considerable public advantage may be expected from it. The claims of the U E. Loyalists and their Children, which are founded on the Royal order, and those of the few individuals who have either received what in the Official phrase are called Appropriations, or what we esteem of equal validity, a promise that in bringing their families into the Province, they should receive donations of Land, are of the former kind. With respect to the claims of the Loyalists we have no choice: with respect to those of the other description as well as those who can have no claim, but what is founded on the advantage of introducing industrious & opulent Settlers into the Province, we cannot think that Your Excellency will feel much difficulty in trusting them to us, until Your return, because if we should be mistaken You will have an opportunity of rectifying the mistake when the Grant is tendered to You for signature. But exclusive of all this we have reason to think, that there are as many Grants in their way thro’ the different Offices of the Department, as will fully occupy it, until Your Excellencys return, Should however any considerable Number of them be ready for Signature before that period, we presume that the Committee which Your Excellency proposes to leave behind You, will not fail to concert such arrangements with Your Excellency as will prevent any material delay. We do not foresee any necessity for ordering further Surveys of the waste, and unlocated lands of the Crown to be made at present, but should any such arise it cannot be so pressing as not to allow an ample time for enquiring Your Excellency pleasure.

The last head to be considered is that of the instances not reducible to any general head, in which Your Excellencys Signature may be requisite, with or without the Great or the Privy Seal; We shall enumerate some of the more striking of them, and at the same time Mention, the Expedient which we conceive will prevent any inconvenience during Your absence

1st The Prorogation of the Legislature—This we apprehend may be provided for by Your Excellency, leaving behind You a proper Number of Proclamations signed in Blank—

2d The Attestation by Your Excellency of the Certificates of residence which are necessary in order to enable the different Officers of Government who are paid in Great Britain to receive their Salaries. In this we see no great difficulty, if Your Excellency will direct a Report to be made to You on that Subject by the Committee whom You will leave behind You.

3d The issuing of Marriage Licences. We see no reason why these may not be left in Blank with the Secretary under his accountable receipt, & an order from Your Excellency not to issue them without the sanction of the Committee.

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A variety of other services might perhaps be enumerated, but we believe none of any Magnitude have been omitted.

Having thus Stated to Your Excellency the several purposes for which provision must be made, and also suggested what we conceive the nature of that provision should be—permit us to address Your Excellency with that Sincerity which we conceive to be one of the first duties we owe You, and which we hope and trust is perfectly compatible with the profoundest respect both for Your Person and Your Situation.

There is Yet a point more important than any we have Mentioned, but for which we have not suggested any provision; because we know of none that can be adequate; We mean the general Superintendanee and Conduct of the Government of the Province in all its branches the inspection in detail, of all the Departments, the prevention of abuse: the detection & punishment of Misconduct,the maintenance of our external relations as well with the Indians as with the United States in Short, the whole of that which forms the Appropriate and incommunicable Prerogative and function of the Governor or Lieut Governor, & the possession of which is so much an Act of the peculiar and personal confidence of His Majesty, that it is to a certain degree withheld even from a President Administring the Government, and cannot in any degree be exercised by the Executive Council or any association of its Members. We do not Mention this to Your Excellency with a view of throwing difficulties in the way; but for the purpose which we shall take the Liberty to State: In our apprehension His Majestys Commission and Instruction to the Governor &c of this Province,1 from the Constitution of its Executive Power, and generally speaking may not be departed from. By that Commission and those Instructions the Eldest or such other Councillor as shall be thereunto expressly nominated is during the absence of the Governor to Administer the Government, and we conceive that it is not in the power of the Governor or Lieutenant Governor to make any arrangements inconsistent with this, without the sanction of the same authority from which this is derived. Should any thing of the kind be at any time attempted, we conceive it would be the duty of those in our Situation not to countenance it.

In our construction of that article of the Commission, and Instructions, we do not think that a momentary absence from the Province on a private and still less, on a public occation is within the Spirit and Meaning of the Royal pleasure : or that a casual overstepping of its limits, by the L* Governor even tho’ he should not be invested with a Military or any other character which might require it, would make it necessary for him to give the reins of Government out of his own hands—We conceive that the Article applies to that continued and indefinite absence which makes it impossible for the person so absent to Administer the Government but with great delay, trouble, & inconvenience such as can on no account be considered as compatible with the intention, and expectation of His Majesty—that the Lieutenant Governor should be resident; such an absence, in short as makes it of little consequence whether he Administers it from any other part of America or even from Europe itself.

It is difficult perhaps impossible, to draw such a distinct line on so delicate a Subject, as will afford a general rule; and it is fortunate for us, who tho’ Associated in very humble degiee, are still to a certain degree associated with Your Excellency in the Executive Government, that it is so—because it is equally difficult, & perhaps equally impossible to lay down any general rule which may not be made to comprehend within its letter some violent departure from its Spirit. Each case therefore must stand upon its own circumstances and it is from a most serious, and allow us to add, a most anxious consideration of all the circumstances of this, that we have found and rejoiced to find ourselves permitted by our duty to Him whose Servants

1. See the Commission to Lord Dorchester, page 12, and Article 65 of the Instructions to Dorchester as Governor of Upper Canada, page 48.

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we both are, to give to Your Excellency the Support, and co-operation which you require of us,—and of which we hope that the preceding pages will not be a displeasing earnest. We feel it at the same time to be a duty which we owe to ourselves, to Record in this solemn Manner, the particular principle on which we found our conduct, and on which we also rest our hope, that what is done on this occation, will never be considered as forming a precedent for any case which is not exactly similar, in all its circumstances. The principal is shortly this.—

We cannot allow ourselves to think that when His Majesty appointed Your Excellency, to the Command of the Troops in the Canadas during the absence of His Excellency General Prescott, it escaped him that the very nature of that Command would necessarily oblige You to be occationally absent from the Seat of Government, and to visit different parts of the two Provinces within Your Commission.

It is however plain to us, that His Majesty did not consider those absences as of the nature which would require the appointment of any person to administer the Civil Government until Your return,—because had such been the Case, the same paternal attention to the welfare of his People which suggested to him th3 Measure of appointing Your Excellency to Command the Troops during the absence of General Prescott, would also have shewn him the propriety of Nominating or at least directing Yr Excellency to Nominate some person to Administer the Civil Government during Your own—And as we have reason to believe, and indeed to know that His Majesty would have thought His Province perfectly safe, in the hands of the Person who immediately preceded Your Excellency,1 and who has been honored with the Royal approbation of his Services, but without any intimation that they would soon be again call’d for; From these circumstances we infer that in the opinion of His Majesty, your occational and temporary absences upon the business of Your Command, do not amount to the Case in which the Administration of the Civil Governmt by His especial Instruction and order is required to be committed to another.

Having thus discharged the duty which our consciences and our Judgements told us we owed to our Sovereign and to ourselves, in explaining and recording the reasons of our conduct in a situation Which tho’ new in point of fact, we conceive to be in point of principle, provided for by the Code which guides us as Members of the Executive Government—We tresspass no longer on Your Excellencys time than to repeat our assurance if we know ourselves You will on this, and on all other occations find us ready to co-operate to the utmost of our Strength with Your Excellency in all Your endeavours to promote the prosperity of the Province committed to Your Care.

I have the honour to be, Sir, Yr most obedient Servant Signed J. ELMSLEY C : J :

Adjourned

MINUTES OF EXECUTIVE COUNCIL.2 Sunday—1st September 1799.

At a Council held at the Chief Justices House—

Present.

The Chief Justice—Chairman The Honble Alexr Grant—Peter Russell AEneas Shaw and John McGill

1. Mr. Peter Russell who was at this time a member of the Executive Council. 2. From the original of the Minutes of the Executive Council, State Book B, Upper Canada, page 437.

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The Chief Justice produced and Read the following Message from His Excellency. The Lieutenant Governor returns his warmest thanks to the Honorable the Executive Council for its answer to his Message of the 22d Ultimo He thinks the Board has pointed out every purpose for which it will be necessary to make provision during his Absence and is satisfied that the mode of making that provision which the Board has suggested will be found equal to the occasion.1

He perfectly approves of the care which the Board has taken to rest its conduct on Constitutional grounds, by taking His Majesty’s Commission and Instructions to the Governor as its Guide.

Nothing now remains but to nominate the Persons who are to Compose the Committee, which he purposes to leave behind him, for the purpose of Maintaining an uninterrupted, communication between himself und the Seat of Government. He therefore nominates the three Senior Members Usually resident at York, (Viz) The Chief Justice,2 Mr. Russell3 and Mr. Shaw,4 or any two of them—with power to call in the assistance of Mr. McGill,5 in case of the unavoidable absence of any one of them, with whom he will take care to leave power & Instructions6 fully sufficient for any case that can be at present foreseen, or is likely to happen.7

York 318t August 1799. Signed P. H.

1. Writing to Lieut.-Governor Hunter July 24th, 1800, the Duke of Portland expresses the opinion that ” The measures you have taken to provide for the Civil Administration of the Province during such occasional absences from the seat of Government as your Military Duties may require, are perfectly proper.” (Canadian Archives, G. 53, page 349.) 2. See page 212, note 3. 3. See page 34, note 4. 4. Lieut.-Colonel Aeneas Shaw had served under Colonel Simcoe in the War of Independence. He was early selected by Simcoe for appointment in the service of Upper Canada. In 1793, he was made a member of the Legislative Council and in the following year was appointed to the Executive Council. He took a keen interest in the militia of the province). For several years he was in command of the Post at York and was a Captain of the Queen’s Rangers at the time of its reduction in 1803. His reduction to half pay compelled him to relinquish his seat as an ordinary member of the Executive Council although he continued to act without pay until 1807. In June, 1811, he was given the rank of Major General in the army. He died in 1814. 5. John McGill was a native of Scotland and emigrated to Virginia in 1773. During the Revolution he remained loyal to the Crown and gained distinction as an officer of the Queen’s Rangers. He acted as Commissary General at Quebec before the division of the: Province and later was appointed Commissary of Stores and Provisions for Upper Canada. He was made an honorary member of the Executive Council in 1796 and succeeded Colonel Shaw as an ordinary member in 1808. In 1797, he was given a seat in the Legislative Council. He was appointed Inspector General of Public Accounts in 1801 and Receiver General of the Province in 1813. He died in 1834. 6. A letter of Instructions, dated September 2nd, was left with the members of the Committee. In it Lieut.-Governor Hunter states:— ” The Instructions I have to give you, will lie in a very narrow compass when I inform you that it is not my intention to make the smallest alteration at present in anything that has been done before my arrival. My wish is, that everything during my absence, may go on as formerly, and that there be not the smallest cessation or interruption of the public business, except that which is necessarily and unavoidably occasioned by that absence. Should any inconvenience happen (‘though I confess I do not foresee any) from that circumstance, I will take all the blame on myself, and shall be happy to find that I am the only delinquent. Tho’ you are to consider yourselves all equally interested in the matters of your trust, yet I shall take it for granted that the Chief Justice will consider whatever relates to the Administration of Justice as more immediately within his care, as Mr. Russell will everything connected with the Reven ae. Should anything arise respecting the Militia or the Troops stationed m the Province, I trust that Lieut.-Colonel Shaw will pay it particular attention.” (Canadian Archives, Q. 286, pt. 2, page 402.) General directions are then given regarding specific questions of Administration. Separate instructions were given Mr. Russell, the Receiver General, authorizing him to say out monies under temporary warrants hearing the signature of two members of the committee (See State Book B, Upper Canada, page 446.) 7. The absence of the Lieut.-Governor in 1802 was the occasion for resort to the same practice. The Minutes of the Executive Council for July 19th contain a direction from the Lieut.-Uovernor that it is his pleasure that the standing committee of Council shall resume their powers agreeably to the original arrangement, excepting with this difference, that instead of calling in the assistance of the Honl. John McGill occasionally, he is added to the standing Committee of Council, to attend the Council Board at all times, and upon all occasions, when practicable.” (See State Book C, upper Canada, page 237.)

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PORTLAND TO MILNES.1

Lieut Govr Milnes,

&c. &c. &c.

WHITEHALL 28th Feb: 1800.

N° 6.

SIR

I sometime since received His Majesty’s Commands to signify His Pleasure to His Royal Highness the Duke of York, for the purpose of confining within its due limits the extent of the Military Authority in His Majesty’s North American Provinces, and I cannot but believe that by that Letter, a Copy of which you will receive inclosed, all future occasion of embarassment or uneasiness to any of His Majesty’s Civil Govrs in that District will be entirely prevented. If however my expectations should happen to be disappointed in that respect, I have His Majesty’s Commands to signify to you, that you are to consider the directions contained in that Letter in the same light as if they were addressed immediately to yourself, and you will take care to conduct yourself in exact conformity to them.—

I am &ca (Signed) PORTLAND.—

(ENCLOSURE, PORTLAND TO THE DUKE OF YORK.)2

WHITEHALL, 21st Feby 1800

SIR,—

By the Copy of His Majesty’s Instructns3 to the Govr, Lieut. Govr, or the Person administering the Government of Upper Canada for the time being, dated the 15th Decr 1796, which I herewith beg leave to lay before Your Royal Highness, it will appear to Your Royal Highness that the Person in whose hands the Executive Authority of Upper Canada is placed, is exclusively vested with the management of the Indian Department in that Province, and the recommendation of the Officers necessary to conduct it [subject to His Majesty’s approbation:] Your Royal Highness will also observe that the Instructions inclosed are formed so absolutely on that Principle, that the Power of giving any special Order with respect to that Department in case of any sudden emergency which may require it, is cautiously witheld from the Commander in Chief, and restricted to the Govr Genl in His Civil Capacity [should there be any such Officer as Govr Genl then in being] so that it will be evident to Your Royal Highness that no connection or intercourse whatever does or was intended to exist in this respect between the Departments of Commander in Chief of North America, and the Civil Government of Upper Canada: Your Royal Highness will therefore see the necessity I am under of representing to Your Royal Highness against the exercise of a Power, which I am persuaded has been inadvertently assumed

1. From the original copy in the Canadian Archives, G. 539, page 371. Robert Shore Milnes was born in England in 1746. He entered the army and secured a commission in the Royal Regiment of Horse Guards. In 1795, he succeeded General Prescott as Governor of Martinque but after a short period ill health compelled him to resign. In November 1797, he received a commission as Lieut.-Governor of Lower Canada and in 1799 was ordered to relieve General Prescott He arrived in Quebec in June and took the oath of office on the 30th of July. He was created a Baronet of the United Kingdom in February, 1801. In December, 1803, failing health compelled him to ask for leave of absence. In the following year this was granted, but he was unable to leave the country until August, 1805. He retained his commission as Lieutenant-Governor of the Province until November, 1808. 2. From the original copy m the Canadian Archives, G. 539, page 367. The Duke of York had been promoted to the post of Commander-in-Chief of the Army in April, 1798. 3. For the Instructions see page 189.

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By His Royal Highness The Duke of Kent in His Capacity of Commander in Chief of His Majesty’s Forces in North America,1 by the Appointment of a Person to the Office of Deputy Superintendt Genl of Indians, which was held by the late Col. McKee,2 and which is, as Your Royal Highness will observe by the Instructions above referred to, an Office in the Civil Establishment of Upper Canada, & distinctly in the appointment of the Civil Government of that Province.—

I forbear from troubling Your Royal Highness with a Detail of the Duties of the Office, or with the reasons which make it indispensibly necessary that it should be fill’d by a Person who is intimately conversant with the Interest, disposition, Language & customs of the Indians in that quarter of the World, because it will be evident to Your Royal Highness’s superior Judgement, that in this as well as in every other instance, the Administration of His Majesty’s Colonial Government cannot be carried on with Propriety, unless the Govrs, Lieut. Govre or Persons administering the same, are alone responsible for the exercise of that Authority which His Majesty has thought proper to place in their hands, that it is therefore absolutely necessary that their responsibility should in no degree be diminished by the interference of any other Person, the consequence of which would be to afford & hold out a ground of excuse or apology to be resorted to on the Part of the Governors in the Colonies for any Act of misconduct which they might commit in the administration of the Governments over which they preside.

Having felt it to be my duty to represent this case to the King, I have received His Majesty’s Commands to acquaint Your Royal Highness that it is His Majesty’s Pleasure that His Royal Highness the Duke of Kent should be forthwith informed that the Civil Concerns of all His Majesty’s North American Provinces, and the appointments to Civil Offices of every Description within the same can only be managed and recommended to, by the Persons administering the Civil Government therein, submitted to the King through that Department, with which His Majesty has directed them to correspond: and consequently that the Office lately held by Col. McKee is now, and must be considered to all intents and purposes as vacant, until His Majesty’s Pleasure with respect to Col. McKee’s Successor be signified to the Lt Govr of Upper Canada,3 whose duty it is to submit [in conformity to the inclosed instructions] thro’ one of His Majesty’s Principal Sectys of State, the Name of such Person, with an Acct of his Character & Services, as he shall esteem to be best qualified for fulfilling the duties of such Office, for His Majesty’s further directions therein. It being His Majesty’s opinion, that a strict & invariable adherence to these Commands of His” Majesty is indispensibly necessary to preserve the conduct & Management of the Public Service in its regular & established Course.—

I am [Signed] PORTLAND.

H. R. H. The Duke of York.

1. On May 17th, 1799, the Duke of Kent was appointed General and Commander-in-Chief of His Majesty’s Forces in North America. 2. On the death of Colonel McKee in January, 1799, Mr. Russell, as Administrator oí the Government, issued a commission temporarily vesting the office of Deputy Superintendent General of Indian Affairs in a committee consisting of James Baby, Alexander Grant and Thomas McKee. The Governor-in-Chief, General Prescott, recommended the appointment of Captain Claus, an officer trained in the Indian Department and grandson of Sir William; Johnson. On the basis of this recommendation and subject to His Majesty’s approval Caot Claus was appointed and undertook the duties of the office in March, 1799. In July the Duke of Kent appointed Colonel Connolly to succeed Colonel McKee and gave orders to supersede any other appointment which might have been made. A representation was made by Lieut.- Governor Hunter stating the circumstances of the case and asking that the original appointment be confirmed. See the letter of Hunter to the Duke of Portland, December 28th 1799 and its enclosures, Canadian Archives, Q. 287, pt. 1. page 18. 8. His Majesty’s approval of the appointment of. Captain Claus was communicated to Lieut-Governor Hunter by the Duke of Portland in his despatch of July 24th, 1800 See the Canadian Archives, G. 53, page 355.

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MILNES TO PORTLAND.1

Duplicate Quebec 13 May 1800

N°. 23

My Lord,

From your Grace’s dispatch N°. 62 and its Inclosure which I have this day had the Honor to receive, I conclude it is His Majesty’s Intention that the Indian Department in Lower Canada should, during the Absence of the Governor General, be under the Conduct and management of the Lieutenant Governor; at the same time I beg leave to submit it to your Grace whether it would not be proper that a Royal Instruction to this effect should be transmitted to me accompanied by an Order to the Commander in Chief in the two Provinces directing him to pay out of the Extraordinarios of the Army the Salaries of the several officers employed in the Indian Department in this Province upon receiving from the Person administering the Government a Certificate of such Salaries being due, and also that the Presents intended for the Indians in Lower Canada should be subject to the control and direction of the Person administering the Government who will of course make the necessary Requisitions on this account to the Lords Commissioners of His Majesty’s Treasury

I have the Honor to be, My Lord Your Grace’s—most obedt and most humb. Servt

ROBT. S. MLLNES.

His Grace The Duke of Portland Endorsed : Quebec 13th May 1800 Lieut. Govr. Milnes Duplicate.

ADDITIONAL INSTRUCTION RELATING TO INDIAN AEFAIRS, LOWER CANADA.3

(C.O. Quebec 1795—1800. Vol. 3.) In Secr of State’s despatch N°. 7 of 12. July 1800.

ADDITIONAL INSTRUCTION to the Governor, Lieutenant Governor, or the Person Administering the Government of Our Province of Lower Canada for the time being. Given at Our Court at Saint James’s the Sixteenth day of July 1800 in the Fortieth Year of Our Reign.—

Whereas We judge it to be conducive to the better Regulation of Our Concerns with the Indian Nations within Our Province of Lower Canada, that the same should be conducted by the Person exercising the Government of Our said Province for the time being; it is therefore Our Will and Pleasure that you do take upon you the Conduct and Management of Our Concerns with the said Indians within the Province of Lower Canada; and that you do from time to time give to all Persons whom it may concern such Directions for the due Execution of these Our Instructions a3 occasion

1. From the copy in the Canadian Archives, Q. 84, page 288. 2. See page 242. 3. From the copy in the Canadian Archives, M. 231. page 74. For a similar instruction relating to the Province of Upper Canada, see page 189.

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may require, such Directions nevertheless to be subject to any special Orders directed to you from such Person as shall at any time be constituted and appointed by Us to be Governor General of Our Provinces in North America.—And it is Our Will and Pleasure that all Persons holding Commissions in the Indian Department within Our Provinces of Lower and Upper Canada, so far as the same relates to the Province of Lower Canada shall follow such Orders and Directions as they shall from time to time receive from you in the Execution of this OUT Instruction, any thing in the said Commissions to the contrary notwithstanding.—And you are in case ot any vacancy in any Office or Place in the said Indian Department within Our Province of Lower Canada to transmit to Us by the first Opportunity through One of Our Principal Secretaries of State, the name of such Person, with an Account of his Character and services, as you shall esteem to be best qualified for fulfiling the Duties of such Office, for Our further Directions therein.

G. R.

REDISTRIBUTION ACT, UPPER CANADA.1

IN THE FORTIETH YEAR OF GEORGE THE THIRD.

CHAP. III.

An ACT for the more equal Representation of the Commons of this Province in Parliament, and for the better defining the Qualification of Electors.

[4th July 1800.]

FOR the better representation of the Commons of this Province in Parliament,2 Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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 futher provision for the Government of the said Province,” and by the authority of the same, That from and after the end of the present Parliament, the Representation of the Commons of this Province in the House of Assembly, shall be in manner and form following, that is to say:—

The Counties3 of Glengary and Prescott, shall be together Represented by two(a) Members.

The Counties of Stormont and Russel, shall be together Represented by one Member.

The Counties of Dundas, Grenville, Leeds, Frontenac, and Prince Edward, be each Represented by one Member.

1. From The Statutes of His Majesty’s Province of Upper Canada edition of 1818. The Provincial Statute, 48 Geo. III, Chap. XL, repealed eo much of this Act, ” as relates to the number of members to represent the Commons of this Province in the House of Assembly,” and increased the membership to twenty-five. Another Act of 1820 further increased it to forty. See ship to twenty-five. Another Act of 1820 further increased it to forty. 2. The existing basis of representation was determined by the Proclamation of 1792 dividing the Province into counties. See page 77. 3. For the boundaries of the various counties see the ” Act for the Division of Upper Canada into Counties,’ page 222.

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The incorporated Counties of Lenox and Addington, be together Represented by one Member.

The Counties of Hastings and Northumberland, be together Represented by one Member.

The County of Durham, the East Riding of the County of York, and the County of Simcoe, be together Represented by one Member.

The West Riding of the County of York, the first Riding of the County of Lincoln, and the County of Haldimand, be together Represented by two Members.

The second, third and fourth Ridings of the County of Lincoln, be together Represented by two Members.

The Counties of Oxford, Middlesex, and Norfolk, shall together be Represented by one Member.

The County of Kent, shall be Represented by one Member.

The County of Essex, shall be Represented by two Members.

II. And be it further enacted by the authority aforesaid, That no person shall be considered as qualified to vote, or shall vote at the ensuing election for a Member to Represent the Commons of this Province in Provincial Parliament, who shall have sworn allegiance to any Foreign State; or have been a stated resident in the Dominions of the same, unless such person shall have been previously and bona fide resident in this Province, or in some other of the Dominions of His Majesty, for, and during the term of four years then next preceding, and shall have taken the oath of allegiance to His Majesty; and that on any future Election, no such person or persons shall vote as aforesaid, until he or they shall have been previously and bona fide resident in this Province or in some other of His Majesty’s Dominions, for and during the term of seven years next preceding, and shall have taken the oath of allegiance to His Majesty.

ACT FOR THE FURTHER INTRODUCTION OF ENGLISH CRIMINAL LAW INTO UPPER CANADA.1

40 GEORGE III, CHAP. I.

An Act for the further introduction of the CRIMINAL LAW of ENGLAND in this Province,and for the more effectual PUNISHMENT of certain OFFENDERS.

[4th July, 1800.]

WHEREAS the Criminal Law of England was by an Act of the Parliament of Great Britain, 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, introduced and established as the Criminal Law of this Province: And whereas divers amendments and improvements have since been made in the same by the Mother Country, which it is expedient to introduce and adopt in this Province; Be it therefore

1. From “The Statutes of His Majesty’s Province of Upper Canada,” edition of 1818.

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enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” and by the authority of the same, That the Criminal Law of England, as it stood on the seventeenth day of September, in the year of our Lord, one thousand seven hundred and ninety-two, shall be, and the same is hereby declared to be the Criminal Law of this Province.

II. Provided nevertheless, That nothing herein contained shall be taken or construed to vary, repeal, or in any manner to affect any Ordinance of the late Province of Quebec, which may have been made since the said fourteenth year of His Majesty’s Reign.

III. And whereas the punishment of burning in the hand, when any person is convicted of felony within the Benefit of Clergy, is often disregarded and ineffectual, and sometimes may fix a lasting mark of disgrace and infamy on offenders, who might otherwise become good subjects and profitable members of the community; Be it therefore enacted by the authority aforesaid, That from and after thepassing of this Act, when any person shall be lawfully convicted of any felony within the Benefit of Clergy, for which he or she is liable by law to be burned or marked in the hand, it shall and may be lawful for the Court before which any person shall be so convicted, or any Court holden for the same place with the like authority, if such Court shall think fit, instead of such burning marking, to impose upon such Offender such a moderate pecuniary fine as to the Court in its discretion shall seem meet; or otherwise it shall be lawful, instead of such burning or marking, in any of the cases aforesaid, except in the case of manslaughter, to order and judge, that such offenders shall be once, or oftener, but not more than three times, either publicly or privately whipt; such private whipping to be inflicted in the presence of not less than two persons besides the offender and the officer who inflicts the same; and in case of female offenders, in the presence of females only; and such fine or whipping so imposed or inflicted instead of such burning or marking, shall have the like effects and consequences to the party on whom the same, or either shall be so imposed or inflicted, with respect to the discharge from the same or other felonies, or any restitution to his or her estates, capacities and credits, as if he or she had been burned or marked as aforesaid.

IV. Provided always, and be it further enacted by the authority aforesaid, That nothing in this Act contained, shall abridge, or deprive any Court of the powers now vested in it by law, of detaining and keeping in prison, for any time not exceeding one year, or imprisoning of committing to the House of Correction, or Public Work-house, offenders. to be kept to hard labor, for any time not exceeding one year, or of committing to the House of Correction, for any time not less than six months, or exceeding two years, any such ofEender as aforesaid; but that such offender may, if such Court shall think fit, after such burning or marking, or after such whipping or fine as shall by virtue

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of this present Act be inflicted or imposed instead thereof, be so detained or committed, and with such accumulated punishment, in case of escape from such House of Correction, or Work-house, as if this Act had never been made.

V. And whereas so much of the said Criminal Law of England, as relates to the transportation of certain offenders to places beyond the seas, is either inapplicable to this Province, or cannot be carried into execution without great and manifest inconvenience, Be it enacted by the authority aforesaid, That when any person shall be convicted of any crime, for which he or she shall be liable by law, to be transported, the Court before which such person shall be so convicted, or any Court holden for the same place, with the like authority, instead of the sentence of transportation, shall order and adjudge, that such person be banished from this Province, for and during the same number of years, or term for which he, or she would be liable by law to be transported, and do remove him, or herself therefrom within a space of time to be then fixed and declared by the Court, and which shall, in no instance be less than two days nor more than eight, including the day on which such sentence of banishment shall be passed.

VI. And be it further enacted by the authority aforesaid, That if any person on whom such sentence of banishment shall have been passed as aforesaid, or to whom His Majesty, His Heirs or Successors, shall hereafter be graciously pleased to extend the Royal Mercy upon condition of his, or her, leaving the Province for any term of years, or for life, shall be found at large in any part thereof without some lawful cause, after the time within which he, or she, shall have been so banished, or shall have so consented to leave the Province, and before the expiration of the term for which he, or she, shall have been so banished, or shall have so consented to leave the same, every such offender being thereof lawfully convicted, shall suffer death as in cases of felony, without benefit of Clergy; and such offender may be tried either before Justices of Assize, Oyer and Terminer or Gaol Delivery, for the District, County, or place where such offender shall be apprehended and taken, or where he, or she, may have received such sentence of banishment; and the Clerk of the Crown, Clerk of the Peace or other officer, having the custody of the records where such sentence of banishment shall have been pronounced,or the Register of the Province in the case of such conditional pardon as shall at the request of any person on His Majesty’s behalf, and without fee or reward, make out and give a certificate in writing, signed by him the said Clerk of the Crown, Clerk of the Peace or other officer, or by the said Register, respectively, containing the effect and substance, omitting the formal part of every indictment and conviction of such offender, and of the sentence of banishment, or of such conditional pardon respectively, to the Justices of Assize, Oyer and Terminer and Gaol Delivery, where such offender shall be indicted, which certificate shall be sufficient proof of such conviction and sentence of banishment, or of such conditional pardon respectively.

VII. Provided nevertheless, That nothing herein contained shall be construed in any manner to restrain, or prevent His Majesty, His Heirs or Successors, to grant an absolute and unconditional pardon to such offender, and to allow of his, or her return to this Province.

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MILNES TO PORTLAND.1

Duplicate Separate & Secret

QUEBEC 1 November 1800

MY LORD

On my first taking upon myself the administration of the Affairs of this Province I was extremely struck with the wavering state in which I found the Interests of Government. I have since been at much pains to discover the real Causes of this situation of things which I plainly saw lay deeper than, I believe, is generally supposed by His Majesty’s Ministers; and I am so forcibly impressed with a persuasion that this Subject ought to be attended to, that I feel it my Duty to lay before Your Grace, such Remarks as have occurred to me respecting it, in order that Your Grace may be fully apprized of the real State of the Country, and take such Measures as you may think fit to strengthen the Executive Power in Lower Canada.

However excellent in itself the new Constitution may be which His Majesty has graciously been pleased to grant to the Province, I conceive the Foundation of it must rest upon a due proportion being maintained between the Aristocracy and the lower Orders’ of the People, without which it will become a dangerous Weapon in the hands of the latter. Several Causes at present unite in daily lessening the Power and Influence of the aristocratical Body in Lower Canada : I cannot however but think that Measures might be adopted to counterbalance in some degree this Tendency, and I shall hereafter have the Honor to point them out to your Grace: but in order iu make myself clearly understood I must first explain what I consider to be the principal Causes by which the Influence of the Aristocracy in this Country has gradually been reduced to it’s present State.

The first and most important of these I am of opinion arises from the manner in which the Province was originally settled; that is, from the independent Tenure by which the Cultivators (who form the great Body of the People and are distinguished by the appellation of Habitants) hold their Lands; and on the other hand from the inconsiderable Power retained by those called the Seigneurs, and the little disposition they feel to encrease their Influence, or improve their Fortunes by Trade. Hence by degrees the Canadian Gentry have nearly become extinct, and few of them on their own Territory have the Means of living in a more affluent and imposing Style than the simple Habitants who feel themselves in every respect as independent as the Seigneur himself with whom they have no further Connexion than merely the obligation of having their Corn ground at his Mills, paying the Toll of a Fourteenth Bushel, which they consider more as a burthensome Tax than as a Return to him for the Lands conceded by his Family to their Ancestors for ever upon no harder Conditions than the obligation above mentioned, a trifling Rent, and that of paying a Twelfth to the Seigneur upon any transfer of the Lands.

The Second Cause which I apprehend tends to lessen the Influence of Government in this Province is, the prevalence of the Roman Catholic Religion and the Independence of the Priesthood:2 this Independence I find goes considerably further than what was intended by the Royal Instructions wherein it is particularly declared to be His Majesty’s Pleasure ” that no Person whatsoever is to have Holy Orders conferred upon him, or to have the Cure of Souls without a License for that purpose first had and obtained from the Governor” 3 &c. &c. But this Instruction has hitherto never

1. From the original copy in the Canadian Archives, Duplicate Despatches, Lower Canada. 2. For a discussion of this point by Sir James Craig see page 388. 3. See Article 44,Clause 2 of the Instructions to Lord Dorchester as Governor of Lower Canada, page 24.

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been enforced, by which means the whole Patronage of the Church has been thrown into the hands of the Roman Catholic Bishop, and all connexion between the Government and the People through that Channel is cut off, as the Priests do not consider themselves as at all amenable to any other Power than the Catholic Bishop.

A singular Instance lately occurred of this Independence: A Priest at Terrebonne near Montreal interfered in the most indecent manner in the late Election for the County of Effingham; he exerted all his Influence to prevent the Solicitor General from being chosen, and violently supported a Man who had been expelled from the last House of Assembly on account of his having been convicted of a Conspiracy, and who was consequently considered as a dishonored Person.1 Upon this man’s being chosen the Priest actually went so far as to perform High Mass in the Parish Church, to return Thanks as he termed it, ” for the reelection of this Martyr.” In justice to the Canadian Bishop I must add, that upon my Representation he did every thing which was proper to be done on the occasion.

Another Circumstance which has greatly tended to lessen the Influence of Government since the Conquest has arisen from the necessity which then existed of disembodying the Militia : but as I am by no means of Opinion, considering, the Circumstances which took place a few years since, that it would be either practicable or prudent to call out the Militia at this particular moment.2 I shall not enter further into this Subject at present, though I shall hereafter revert to the Militia even in its present State as a Means by which a certain degree of Influence might still perhaps be established in the several Parishes.

It may be unnecessary to observe to your Grace how much more important the above Facts are become since the establishment of the new Constitution. In the time of the French Government an Ordinance, issued in the name of the King, was sufficient to enforce the execution of any Measure that was deemed expedient without any discussion taking place upon the subject, or its entering into the Minds of the unlettered Habitants to doubt for a moment the propriety of the Measure.

But since the establishment of the present Constitution in the year 1792, the Case is very different every thing being previously discussed in the House of Assembly; and unless a certain preponderance can be maintained in that House (which at present is by no means as firmly established as I could wish) the Power of the Executive Government will insensibly become nothing.

Very few of the Seigneurs, as I have already hinted, have sufficient Interest to insure their own election or the election of any one to whom they give their Support in the House of Assembly, and the uneducated Habitant has even a better chance of being nominated (though he cannot perhaps sign his name) than the first Officer under the Crown : There was a moment when I even despaired of getting the Attorney General into the present Assembly;3 and though it is undoubtedly better composed than the last, it is far from being so respectable a Body as Government might wish. The Canadian Habitants are I really believe an industrious, peaceable and well disposed People; but they are, from their want of Education and extreme simplicity, liable to be misled by designing and artful Men, and were they once made fully sensible of their own Independence, the worst Consequences might ensue. They are in fact sole Proprietors of nearly all the cultivated Lands in Lower Canada.

The Seigneurs and Ecclesiastical Bodies to whom the Lands were originally granted having conceded the greater part of their Lands for ever, with little or no reserve, to the Cultivator in small Parcels of from One to Two Hundred acres retain-

1. In the election for the County of Effingham in July, 1800, Mr. Charles B. Bouc who had previously been expelled from the House of Assembly defeated the Solicitor General, Mr. Foucher. The Solicitor General, however, was returned for the County of York. In 1802 an Act was passed disqualifying Mr. Bouc from being elected to the Assembly. See page 294. 2. For the opinion of Sir James Craig on the state of the Militia in 1810, see page 398. 3. The Attorney General, Mr. Jonathan Sewell, was elected for the Borough of William Henry.

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ing only as I have already observed the Property and Profits of the Mills, a certain Proportion of their Produce which is sometimes paid in kind and in various ways, and the Lods et Ventes; and this Species of Property attached to the Seignorial Rights is by the ancient French Laws of Inheritance, which occasion frequent subdivisions of Property, in a few Generations become quite inconsiderable, whereby the Situation of the Seigneur has in many Instances been reduced below that of the Vassal. Each Habitant cultivates as much Land as he can manage with the Assistance of his own Family, and as is necessary for its support; and having thus within themselves from year to year all the Necessaries of Life, there cannot be a more independent Race of People, nor do I believe there is in any part of the World a Country in which Equality of Situation is so nearly established. Except in the Towns of Quebec, Montreal and Three Rivers, little or no difference is observable in the Affluence of the Canadians but what may in some Measure arise from the local Circumstances of more or less favorable Situation, a richer Soil, or a greater or less degree of exertion.

The Counties are divided into Parishes each Parish chiefly extending about Three Leagues along the Rivers St. Lawrence and Chambly, and to each of which there is a Parochial Church ; the principal Person in every Parish is in general the Priest and the next the Captain of Militia,1 and it is through the latter that any Business is transacted for Government.

Having endeavoured to give your Grace some insight into the actual State of this Country, which I could more fully enlarge upon if I was not apprehensive of intruding too much upon your time till I have received your permission so to do, I shall proceed to point out the means by which I imagine the Influence of Government might be immediately extended to the distant Parts of the Province, and though I am conscious this cannot be effected without a certain expence to the Mother Country, I consider that expence as inconsiderable when compared to the Sums it would require to quell any disturbance that might for want of timely precaution take place in the Province : The apprehension of such an Event though not immediate is strongly impressed on the Minds of some of the best Friends of Government.

I am well aware the chief Object to be depended upon to encrease the Influence of the Crown, will be by means of the Waste Lands ; and in that point of view the delay that has taken place in the Land Business is greatly to be regretted and it becomes an Object of peculiar importance to Government that no further delay may occur to prevent the clearing and settling of the immense Tracts that are now in the hands of the Crown undisposed of, as their being granted in free and common Soccage will in time (if judiciously granted) form in this Province a Body of People of the Protestant Religion that will naturally feel themselves more immediately connected with the english Government; but as this cannot be expected to have any immediate Effect, I am inclined to think that in the mean time much may be done first through the catholic Priests, and secondly by means of the Militia.

The present Catholic Bishop is extremely well disposed to Government;2 he is allowed by His Majesty Two Hundred Pounds per annum as Superintendent of the Romish Church; in addition to which he receives from Government a Rent of £150 pr annum for the use of the Bishop’s Palace at Quebec which is occupied by Public Offices :3 He has lately applied to me for an encrease of this Rent, signifying at the same time that his Income is very inadequate to his Situation and the Calls which

1. On the station and duties of the Captain of Militia see the Provincial Statute providing for the regulation of the Militia, 31 Geo. III , Chap. IV, and the Act amending this 36 Geo. III , Chap. XI. 2. Monseigneur Pierre Denaut was at this time the Roman Catholic Bishop of Quebec (The Superintendent of the Roman Catholic Church was not officially styled the Roman Catholic Bishop of Quebec until a later date.) See page 304, note 3. 3. Since 1792, the Legislative Council had assembled at the Bishop’s Palace. It continued to meet there until the transfer of the seat of government to Montreal in 1838.

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are made upon it, which I have reason to believe is a just Statement This Application offers an occasion of attaching the Canadian Bishop more particularly to Government, if by such an encrease of his appointments as His Majesty shall graciously be pleased to allow his Situation was made easy, at the same time requiring of him a strict attention to that part of His Majesty’s Instructions to the Governor which I have before mentioned.1

This I am of opinion would tend very much to increase that Consideration which the Priests themselves ought to feel, and to encourage in their Parishioners for the Executive Government, at the same time that it would ensure the cooperation of the Canadian Bishop: But in order to carry this point particular care must be taken to chuse a proper moment, and if the Bishop should be found decidedly averse to make the Sacrifice required of him, it ought perhaps to be defered till the Peace.

The Priests have a 26th of of all the Grain, which may be valued at Twenty Five, or Twenty Six Thousand Pounds a year, which alone must make their Influence very considerable, and especially as the Religious Bodies are in possession of nearly One Fourth of all the Seignorial Rights granted before the Conquest (excepting those of the Jesuits Estates latterly taken into the possession of the Crown) as will appear by the Inclosure.2

With regard to the Militia it will be more difficult to give Your Grace a clear and distinct Idea of the Mode in which I am inclined to think use may be made of this Body to support the Interesta of Government throughout the Province, and to disseminate Principles of loyalty amongst the Canadians in opposition to that spirit of democracy which has lately gained so much ground in many Parts of the World but fortunately has not at present made any material progress in Canada.

The Population of Lower Canada is computed at about One Hundred and Sixty Thousand Souls, Nine Tenths of whom reside in the Parishes before described, distinct from the Towns, and from these are drawn the Canadian Militia which amount to 37,904 between the ages of 16 and 60. In the Parishes here aluded to, there are 292 Captains of Militia who are chosen from among the most respectable of the Canadian Habitants (the Etat Major amounting to 16 being in general chosen from among the Seigneurs) and here it is necessary to inform your Grace how far under the dominion of France the Body of the People were regulated in all public Matters by the Officers of Militia; the Captains of Militia being the Persons employed to issue and enforce the public ordinances” and the Corvées, and who through the Authority thus delegated to them by Government possessed considerable Influence in their respective Parishes.

Although under His Majesty’s Government these Powers have in a great Measure been withdrawn, especially since the establishment of the new Constitution, there still remains in the minds of the Canadians a certain Consequence attached to the Character of Captain of Militia; and as I have before observed to your Grace, it is still customary on all public occasions to employ this useful Class of People to perform many Services for Government which they have hitherto done without other reward than merely that arising in their own Minds from the Honor and respectability of the Appointment; but this though sufficient to render it desirable is, as they feel, by no means an equal return for the considerable Portion of their time so employed: If then by means of an honorary and pecuniary reward, or by any Plan that may be approved of by the Executive Council, this Class of the Canadians could be brought to consider themselves as the immediate Officers of the Crown, and peculiarly attached to the Interest of Government, there is no doubt that such an Influence from the Circumstance of being equally diffused over the whole Province would effectually tend to keep alive among the great Body of the People that Spirit of Zeal

1. See page 249. 2. The enclosure gives the total amount of land granted prior to the conquest as 7,985,470 (arpents?). Of this 2,096,754 (arpents?) had been granted to the church.

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and Loyalty for monarchical Government which I believe to be natural to the Canadians, but which for the want of an intermediate Class to whom they can look up, and from their having no immediate Connexion with the Executive Power is in danger of becoming extinct.

That Loyalty is a lively principle in the Breasts of the Canadians I have no doubt, if I may judge from the expressions of satisfaction which are shewn by all Ranks whenever the Representative of His Majesty only passes through the Country : this I myself experienced (though at that time personally unknown) in the Your I lately made through the Province.

There are several other Means besides those I have already stated by which I am convinced, a proper Bias may be maintained in the Minds of the Canadians, so as I should hope would secure the Province against any internal Commotion or Disaffection, the Details of which I shall reserve until I shall receive your Grace’s Sanction to trouble you further on this head, particularly as in order to give your Grace a complete Idea of this Subject and the extent of my Plan it will be necessary to solicit your attention while I lay before you a Sketch of the relative Expences of the Civil Department of Lower Canada, and the Military Expenditure of the Cañadas, by which it will appear how little Proportion exists in the Expences of those Departments, and what a considerable aaving may hereafter accrue to Government if according to the Plan proposed, and by a more liberal allotment to the Civil Expenditure such an Influence could be attained over the Minds of the Canadians as might in the course of time not only secure the Province from any interior Commotion or disaffection, but likewise insure the cooperation of the Inhabitants in the Defence of the Province against the Attempts of a foreign Enemy without the aid of such, a considerable military Establishment as the Mother Country has hitherto maintained in this part of His Majesty’s Dominions.

The Deficiency of the Revenue, upon an average of the last Five years of the Civil Expenditure, amounts as will appear in the Paper I have the honor to transmit, to £12,000 pr annum,1 and the yearly Military expenses of the two Canadas, according to the best Information I can collect, to about £260,000/. This Expence would in the case of any Tumult or Insurrection in the Country, or of a War with the neighbouring States, most probably be double its present amount; and this Consideration alone shews how infinitely important it is to the Mother Country that your Grace should be made acquainted, while there is yet time, with every means by which the Influence of the Crown may be encreased, and the hands of the Executive Power strengthened. But there is another Consideration of perhaps greater importance than any above mentioned; could such an Influence be obtained throughout the Province by means of the Priests and the Captains of Militia as I have ventured to look forward to, that Influence when fully established might also he employed so as at all times to ensure a Majority in favor of Government in the House of Assembly, and to secure the election in that House of such Men as from their Education and Knowledge of Business are most likely to see the real Interests of the Province in their true light, and not to be deluded by the falacious Arguments of any popular Speaker from, giving their entire Support to the Executive Government. The defect of such an Influence over the Elections lessens the respectability of that Assembly in a very great degree, and partreularly as from the absolute Want which has so long existed of the Means of Education and the inability of the Canadians to support the Expence that would attend sending their Sons to the Mother Country for that purpose, there are at present scarcely any rising Men, and but few Men of talents among the Canadian Gentry.

From this and otíier Causes the Business of the House of Assembly is transacted

1. According to the statement enclosed by Milnes the average annual revenue for the frs-e years commencing in 1795 was £18,199, while the average expenditure, exclusive of the payments for the support of the Protestant Clergy, was £25,200.

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with so little System or regularity that the oldest Members are some times unable to form a judgment of what is likely to be the result of their deliberations on the most common Subjects.

While a due preponderance on the side of Government is so manifestly wanting in the Assembly it is considered by the Well wishers of Government as a fortunate Circumstance that the Revenue is not at present equal to the Expenditure, & your Grace will immediately see the necessity on this account of preserving, in appearance at least, that disposition in a greater or less degree, as there is reason to apprehend that in case the Province could be induced to Tax itself in a degree equal to the Calls of the Executive Government, the Right of regulation and control over the whole would probably be aspired to by the Assembly, which could not fail of producing the most injurious Consequences to the Colonial Government, rendering it from that moment dependent on the Will of a popular Assembly.1

The Burthen which is at present thrown upon the Mother Country will be fully compensated for whenever the Sums that shall arise from the Sale of the Waste Lands begin to come in, and particularly if (as appears by the Dispatch of the IS111 of July 1797 to Gen1. Prescott2 to have been in contemplation) it should be determined to appropriate the Monies arising from those Sales to the purchase of Stock in the English Funds, and the Interest of this Stock to go in aid of the Civil Expenditures of the Province in such manner as the Lords Commissioners of His Majesty’s Treasury may direct.

The Quantity of Land which from first to last will have have been at the disposal of Government is computed at about 150 Townships equal to Ten Million of Acres which have actually been applied for, including as is supposed the principal part of the ungranted Lands in Lower Canada that are deemed convenient for settlement and fit for cultivation.

Of the above about 35 Townships only are in contemplation to be granted on the original Terms proposed in the year 17928 consequently 115 Townships will remain for the future disposition of the Crown exclusive of the Church and Crown Reserves consisting of Two Sevenths set a part in the Townships already granted.

The Wealth, Power and Influence that must accrue to the Mother Country when those Lands become settled is an object of self evident magnitude, and must in time make a full return for whatever will be found necessary in the mean while to support and secure so valuable a Colony.

I flatter myself there can be no doubt that the liberality with which His Majesty has lately been pleased to provide the Means of Education in the Province4 will go a great way to secure the affection and loyalty of the rising Generation who would otherwise be in danger of imbibing Principles inimical to His Majesty’s mild and paternal Government by the necessity which has hitherto existed of their being sent to the neighbouring States for education. The respectable footing upon which the Protestant Church is about to be put in Quebec will likewise tend to encrease that Consideration which ought to prevail for the Established Church.5

When I began this Despatch I did not foresee the length into which I have been inevitably drawn, but I trust I shall stand excused in the opinion of your Grace by the motives that have actuated me in this research, and I may truly say I have no

1. For the extent to which this prophecy came true see page 366. 2. For this despatch see the Canadian Archives, Q. 78, page 311. 3. See the Proclamation relating to the granting of Crown Lands, page 60. 4. The Duke of Portland’s despatch, No. 7 of July 12th, 1800, expressed approval of a new policy for the establishment of free Public Schools and authorized the Lieutenant- Governor to make a generous expenditure for their support. The result was the founding in the following year of ” The Royal Institution for the Advancement of Learning.” See the Act 41 Geo. III , Chap. XVII, and also Sir James Craig’s reference to it at page 392. 5. Provision had recently been made for the erection of a Metropolitan Church at Quebec.

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other view than a full and consciencious discharge of all the Duties that belong to the Situation which His Majesty has been pleased to entrust to me.

I have the Honor to be My Lord Your Grace’s Most obedient and Most humble Servant

ROBT. S. MILNES.

The Duke of Portland &c &c &c

PORTLAND TO MILNES.1

Secret and Separate.

Dft. to

Lieut. Govr. Milnes.

WHITEHALL, 6 January 1801.

Sir,—The matters stated in Your Letter to me separate and secret of the 1st November are so highly important to the King’s Canadian Government that I shall make them the subject of the separate Dispatch.

The prevalence of the popular influence in Lower Canada seems to be attributed by you to three principal causes, vizt—first, the separate and unconnected Interests oí the Seigneurs and the Habitans, by which the latter are become totally independent of the former, and are not likely to be influenced by them in any respect—secondly —the Independence of the whole body of the Roman Catholick Clergy, who are accountable to no other authority than that of their own Bishop; and thirdly—the necessity there has been of disembodying the Canadian Militia, in consequence of that Country’s having been conquered by His Majesty’s Arms, and the inexpediency of their being called out under the present circumstances.

As the separate and unconnected situation of the Seigneurs and Habitans arises from the Established Laws and Usages of the Province in regard to the property held in these two descriptions of Persons, it is an evil certainly to be regretted; but I fear it will be very difficult, if not impossible, to remedy; and as the Canadian Gentlemen can derive no influence from their Landed possessions, it must necessarily be left to the particular exertions, ability and ambition of the Individual Seigneurs to emerge from their present State of insignificance—all that can be done in this respect, is to hold out motives for execution, and to give all possible encouragement in those instances where any disposition of the kind is found to exist2—but before I proceed

1. From the copy in the Canadian Archives, Q. 86, pt. I, page 3. 2. In a secret letter of June 10th. 1801, Lieutenant-Governor Milnes, in reference to this point, observes: ” At the time I offered my first Remarks on these heads to your Grace I did not foresee that any Circumstances could be looked forward to by which the remains of the Feudal System might in time be set aside by mutual consent of the Seignior and his Tenant: the further Information which I have gained on this subject in conséquence of the enquiries I was led to make previous to encouraging the bringing forward the Lots et Ventes Bill has led me to believe, as I have already hinted in a Letter on this Subject, that a Eemedy to the evils attending on the existing tenures may possibly result from that Act of the Legislature. It will be self evident to Your Grace that as long as the Lots et Ventes due to His Majesty remained unclaimed no one in His Majesty’s Censive could be expected to be desirous of these Dues being commuted, but as the regular payments may now be expected to take place from this time in consequence of the Act, it will become a desirable object with those who hold improvable property to agree to a commutation of those Fines in His Majesty’s Censive, and such a commutation, authorized by an Act of the Legislature taking place upon a liberal plan, and at the option of both parties, the effect will be found so beneficial that I have little doubt of its being by degrees generally adopted; by which means the feudal Tenure which has hitherto been an obstacle to the acquisition of Landed Property by Englishmen will be done away, and the Lands being then held in common Soccage, His Majesty’s English subjects will be induced to become purchasers of Extensive Tracts which are now possessed in small portions by Canadians and thereby an intermixture of English and Canadians will take place and ultimately an aristocracy of both may be formed.” (Canadian Archives, Q. 87 pt 1, page 93).

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further I can not help expressing to you my surprise that the establishment of the Canadian Battalion in Lower Canada, the principal object of which was to draw the Canadian Gentlemen from their Indolent and inactive habits and to attach them to the King’s service, should have met with no greater success1—had any eagerness been manifested in completing this Battalion, it might have been judged adviseable to form a second and third of the same sort in case the spirit and inclination of the King’s Canadian Subjects appeared to call for it

With respect to the Roman Catholiek Clergy being totally independent of the Governor, I must first observe that I am not aware of the causes that have led to a disregard of that part of the King’s Instructions, which require—”That no person whatever is to have Holy Orders conferred upon him or to have the care of Souls, without Licence first had and obtained from the Governor.”2 The resumption and exercise of that power by the Governor and the producing such a Licence requisite for admission to Holy Orders, I hold not only to be of the first importance, but so indispensably necessary, that I must call upon you to endeavour to effect it by every possible means which prudence can suggest—you will therefore readily conclude that I must see with pleasure your proposal for encreasing the Allowance to the Catholiek Bishop adopted almost to any extent,3 if it can prove the means of restoring to the King’s Representative in Canada that power and eonfcroul which are essentially necessary to his authority, and which is expressly laid down by the 44th Article of your Instructions above alluded to.

The third and last cause of the preponderance of the popular influence vizt, the situation of the Canadian Government with regard to its Militia appears to me to carry with it, its own Remedy; inasmuch as the Establishment itself is capable of being converted into an Instrument of considerable Weight and authority in the hands of the Executive Power, provided the measure I have to suggest should meet the opinions and sentiments of the Canadians themselves—according to your statement what sterns to be wanting is to put the Militia upon such a footing that its being called out shall be so much for the Interest and advantage of those that compose it as to render it favorable to the measure. With this view I have examined your Militia Acts of May 1794 and May 1796,4 and the particular in which they strike me as being defective is that they contain no Provision for the Annual Meeting of the Militia or even any part of it, except for two days in the year for the purpose of being mustered; what I would propose therefore is (in case of its meeting with the approbation of the Legislature) that a certain proportion of the Militia to be chosen by Ballot should1 be called out to be exercised for 3 weeks or a month in each year during which time the Officers and men who shall be called out should be allowed the same pay and subsistence as His Majesty’s Regular Troops—It would of course be provided that the men who should be chosen by Ballot in any one year, should not be ballotted for again until the residue of the militia should have been called out ; by which means all the Officers and men would take their regular tour of duty & partake of the advantages arising from their being called out.

The adoption of this part of our Militia Law (with such variations as local circumstances may call for) will necessarily require that another part of it should be

1. On this question Lieutenant-Governor Milnes remarks, ” I am unable to account to Your Grace for the little success which has attended on the establishment of the Canadian Battalions. When I left England I was given to understand that the Patronage of that Corps was considered to belong to the Civil Department, but Mr. Dundas’s Letter No. 2 of 16th February, 1794, to Lord Dorchester expressly mentions that it is His Majesty’s pleasure that His Lordship or the Commander-in-Chief for the time being should be the Colonel of the said Battalions, though at Halifax and I believe in the other Colonies, there is no doubt that the patronage of the Provincial Corps is vested in the Governor, and were it so here it might be a means of drawing out the Canadian Gentlemen. (Canadian Archives, Q. 87, pt. I, page 94.) 2. See Article 44 of the Instructions to the Governor of Lower Canada, page 24. 8. For Milnes’ proposal, see page 252. 4. See the Provincial Acts, 34 Geo. III. Chap. IV, and 36 Geo. III , Chap. XI.

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adopted, vizt, the permanent pay of an Adjutant to each Regiment and of a certain number of non-commissioned officers, fifes Drums as in the militia of this Kingdom.

In amending the Canadian Militia Bill in the manner I have suggested, Provision might also be made for such other Appointments as would be necessary during the time of the annual exercise of that portion of the Militia which may be called out. What the number and description of those appointments should be, must depend upon the number of militia men to be called out and must therefore be regulated on the spot.

You will understand that I am only stating the outline of such amendments to your Militia Laws, as I conceive to be most likely to secure the objecte you have in view, and to create and establish that interest and connection which should subsist between the Militia and the Executive Authority of the Province.1

Should you be of opinion that these amendments will meet with the concurrence of the Legislature, the sooner they are digested and put into proper form with the Assistance of the Executive Council and the Law Officers of the Crown, the better; and you will as immediately as possible transmit to me an Estimate of the additional Expence which will be created by them, in forming which Estimate I am confident you will take care to keep it as Low as the object to be attained by the adoption of the proposed amendments will allow of.

These leading points relative to the Roman Catholiek Clergy and the Militia being carried, every future step which is made in the settlement of the Province must, by making Grants of the Waste Lands of the Crown to Protestants upon the conditions, and subject to the Regulations now finally established and acted upon in the Land Granting Department necessarily tend to lessen the degree of popular influence which is at present possessed by that description of His Majesty’s Canadian subjects which constitutes so great a proportion of the inhabitants of the Province at large.

I need not add that I shall be anxious to receive your answer to this letter, as well as the further details which you promise to communicate to me.

I am &c. PORTLAND.

Endorsed. Secret & Separate Drat. To Lt. Govr. Milnes 6 January 1801.

MILNES TO PORTLAND.2

Duplicate N°. 47

QUEBEC, 16 April 1801.

My LORD,

Among other Bills passed this Session which I shall hereafter have the honor to transmit to Your Grace as soon as Copies can be prepared, there is one relating to the Lots and Ventes due to His Majesty which demands particular notice from me, I have therefore thought it necessary to lay before Your Grace the inclosed abstract (A)8 of that Bill for Your immediate information.

1. On this proposal Lieutenant-Governor Milnes observes: ” I am still of opinion that the Establishment of the Militia is capable of being converted into an instrument of considerable weight and Authority in the hands of the Executive Power, but how i a r the measure mentioned by Your Graee may be ventured upon or meet the opinions and sentiments of the Canadians, I am not competent yet to say in order to obtain all the Information which will be requisite on that head, I purpose viewing the Militia in their present state in. the course of this Month, and making myself acquainted with the officers.” (Canadian Archives, Q 87, pt I, page 95). 2. From the copy in. the Canadian Archives, Q. 86, pt. I, page 157. 3. See page 259.

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The very great importance of the subject and the circumstance of the Speaker of the Legislative Council Mr. Chief Justice Osgoode having thought it necessary to enter his protest against the Bill upon the Journals of the Legislative Council,1 induced me to refer the Bill for His Majesty’s Attorney General’s Report (B)2 thereon which I now likewise transmit : the able manner in which he has considered the subject leaves me little more to do than merely to subjoin my own opinion, and I feel it incumbent on me to declare that I not only coincide most fully in the opinion of the Attorney General that it is a measure in every respect of sound policy, but I consider its having been carried as a material step towards abolishing in this Province the Feudal Tenure.

How this Measure is likely to operate in the manner here alluded to Your Grace will find fully explained in the Report of the Attorney General. I shall not therefore take up Your Grace’s time by entering into a repetition on this part of the Subject. There is one consideration however that the Attorney General has not adverted to, which I regard as very important.

The Fines called Lots and Ventes being due comparatively speaking from a few Individuals only to His Majesty and the same Fines being paid by Ninety-nine persons in a Hundred to the different Seigneurs, and the two Seminaries at Quebecand Montreal, so long as they remained unclaimed on the part of the Crown any Tax which the Legislature should see fit to raise in the Province on the whole body of the People might have been deemed unjust, and evidently burthening the whole Province, in order to favor the few who happen to be within the Kings: Censive.

I must further add that since the Act has received the Royal Assent I have heard nothing which can make me regard it as unpopular; but should it be so considered by any of the persons from whom Mutation Fines are due, no unpopularity on Account of it can attach to the Executive Government as the Measure originated in the House of Assembly by whom Lord Dorchester’s Message (D) of the 29th of April 1794,3 (which was read in the House when this Business was brought Forward,) (E) was considered as giving His Majesty’s sanction to their Interference.4

I may mention that one of the Gentlemen who opposed the Measure in the Legislative Council, has readily consented to be in the Commission formed under the Act and which will be most respectably composed ; it will consist of Mr. Justice Dunn, Mr.’ Baby and Mr. Taschereau, Legislative Counsellors, Mr. Lester, a Member of the House of Assembly, and a fifth person, who is not yet made choice of.

In tho next Session of the Legislature it is probable a Bill will be introduced to commute the Lots and Ventes in His Majesty’s Censive, which could never have been accomplished whilst an Expectation was entertained that they would remain unclaimed, and this it is hoped will be a prelude to a similar commutation in the other Seigniories.

It is estimated that the sum which will be raised in the first Instance by the Bill will amount to upwards of Five Thousand Pounds, and that it will produce a considerable sum annually; the amount in the last year of the French Government 1759, was about Nine Hundred Pounds.5

I transmit to Your -Grace an Answer to (F)6 the protest of Mr. Osgoode signed by the Members of the Legislative Council who differed in opinion with him, and which they requested I would allow them to present to me.

Towards the close of the late Session a Bill was passed by the Lower House for

1. See page 262. 2. See page 264. 3. For this message, see page 262, note 2. 4. See the Journal of the Legislative Assembly for February 2nd, 1801. 5. See the Beport of General Murray on the state of the Government of Quebec. Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 42. 6. This reply is not reproduced but is embodied in substance in the notes to Mr. Osgoode’s protest.

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the Purpose of Appropriating the sum of £8,000/1 out of the Monies arising from the Quints Lots and Vente3 to complete the Building of the Court Houses at Quebec and Montreal, this Bill was perfectly similar to that which was passed during Governor Prescott’s administration for the purpose of appropriating £5,000/- arising from the Quints to the same object, and to which no objection was made at home. Mr. Osgoode who had voted for the former Bill now declared that he thought the Principle of it unparliamentary and unjustifiable, and upon this ground the Legislative Council were led to reject the one now proposed.

As there was not time to introduce a new Bill for the purpose of raising a Fund to defray the Expence of completing the Court Houses, the House of Assembly presented an Address praying that I would advance Four Thousand Pounds on this Account, and pledging themselves to make good the same ; and hence Your Grace will perceive that a considerable advantage is gained by the Crown, as the House will now be under the necessity of devising new means to raise this sum, and the whole of what arises from the Quints Lots and Ventes, except the £5,000/ appropriated by the Provincial Act of the 39th of the King, will go in aid of the General Expences of the Province.

I have the Honor to be My Lord, Your Grace’s most obedient and most humble Servant ROBT. S. MILNES.

His Grace The Duke of Portland &c. &c. &c.

P.S. I have the Honor to enclose to Your Grace a Quebec Gazette containing a Copy of my Speech to the two Houses on proroguing the Provincial Parliament.

Endorsed. Quebec 16th April 1801 Sir Robt. S : Milnes (Dup: N°. 47) (Original not received) R. 15th June. (Six Inclosures)

(ENCLOSURE)

ABSTRACT OF AN ACT INTITULED—” AN ACT FOE THE RELIEF OF PERSONS HOLDING LANDS ” OE IMMOVEABLE PEOPEETT OF HlS MAJESTY’S en roture, UPON WHICH Lods and Ventes OK MUTATION FINES ARE DUE.”2

The Preamble states, That the collection of the Lods et Ventes now due in the censive of His Majesty’s Domain, to a certain extent and under certain modifications, is just and expedient, but without limitation would be injurious in particular cases.

Therefore it is Enacted

1s t That the Governor, Lieutenant Governor or person administering the Government of this Province, may, by an Instrument under his hand and Seal at Arms appoint five persons to be Commissioners for the Execution of this Act—remove them, and appoint others in the place of such as shall be removed, or shall die or resign their trust.

1. See the Act 39, Geo. III , Chap. IX. foi granting additional duties to His Majesty and for appropriating the same towards defraying the expences of administration of Justice and the support of the Civil Government. 2 From the copy in the Canadian Archives, Q. 86, pt. I, page 163. The Act is 41 Geo. III, Cap. III.

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2ndly That the Governor &ca. may in like manner appoint a Clerk to the Commissioners with such salary as he may think reasonable, remove him, and appoint another in his stead , which Clerk shall receive for his Services no other recompence than such Salary.

3dly That the Commissioners and Clerk, before they act shall respectively take and subscribe before the Chief J ustice of this Province or any two of the puisne Justices of the Court of King’s Bench the Oath prescribed by the Act (here follows the form of the Oath, by which they swear that they will duly discharge the duties of their respective Offices) which Oath so taken shall be filed in the Office of the Secretary of the Province.

4thly That the Commissioners or any three of them shall be authorized to accept from all persons such pecuniary Composition for Lods et Ventes which shall be due by them to His Majesty, at the passing of this Act, for any Sale or Mutation equipollent to the Sale’of any Lands or immoveable property in this Province, held en roture of His Majesty, or which shall be payable to His Majesty and secured on such Lands or immoveable property in their possession, and make such relinquishment and remission on each of such Lods et ventes as they, or any three of them, according to the nature & circumstances of each case, shall think just and equitable :— Provided that the Commissioners shall not accept of any Composition, relinquishment or remission in cases where only Lods & ventes or mutation fine is due, or where upon the sale, or upon mutations equipollent to the sale of Land or immoveable property, held of His Majesty en roture a specific sum of money or any part of the price of purchase has been specifically reserved by contract in the hands of the Seller or purchaser to pay the Lods et Ventes; excepting nevertheless, those cases in which such Seller or purchaser shall establish to the satisfaction of the Commissioners, that at the time of passing the Act he was not worth more than four times the amount of the Lods & Ventes, for which such reservation was made.

5thly Provided also that all persons who served in defence of the City of Quebec, during the blockade thereof in the year 1775, and who were then proprietors of any house or houses or other buildings in the said City, or which any Lods et Ventes were then due to the Crown, and which were destroyed by fire or otherwise during such Blockade; such persons their Widows or heirs, who are now proprietors of the ground on which such houses &ca. were erected shall be entitled to the full and complete remission of such Lods & ventes so due.

6thly That the Receiver General shall be empowered and he is required, in all case3 where only one Lods & Ventes or mutation fine is due to make the customary abatement of one third; Provided that such Lods & Ventes be paid within twelve calendar months from the passing of the Act; if not paid within that period the whole amount to be recovered.

7thly That the Receiver General shall be authorized in all cases of sale or mutation equipollent to sale, where Lods S Ventes are due and have been specifically reserved by contract in the hands of the Seller or purchaser as aforesaid for which a Composition has not been accepted by virtue of this Act, to make the customary abatement of one third: Provided that such Lods and Ventes be paid to the Receiver General within twelve calendar months from the passing of this Act; if not so paid, the whole Amount to be recovered

Provided also that where such Lods & Ventes have been reserved in the hands of the Seller, His Majesty’s recourse for their recovery shall be by personal action against such seller only, without any recourse against his widow or heirs or against the unmoveable property upon which such Lods & Ventes are secured.

8thly That the Commissioners or any three of them shall have power to meet and sit from time to time when and where they shall find most convenient in the City of Quebec. And all persons shall be at liberty to deliver their Claims for relinquishment and remission upon any Lods & Ventes or mutation fines which, at the passing of the

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Act shall be due by such persons to His Majesty for any Sale or mutation equipollent to the sale of any Lands or immoveable property situate in this Province and held of His Majesty en roture, or which shall be secured to His Majesty on any such lands &ca. in the possession of such persons to the said Commissioners in writing to be held by them filed and preserved among their proceedings : that they shall have power to hear persons on their claims in person or by Attorney, to send their precept under their hands and seals for such Witnesses as they shall think necessary to examine, to call before them all Officers and other persons concerned in the management, collection or receipt of the casual or territorial Revenue of the Crown in this Province, and to examine the said Witnesses, Officers and other persons on Oath upon the subject matter of any Claim pending before them, with full power and authority to inspect, peruse and have Copies of all papers, records, maps, terriers, accounts, and other written documents relating to any such claims in the custody of any public Officer or Office, without paying any fee. That if any person shall swear falsly, upon his examination on Oath touching any such claim, to any matter which if sworn to in any of His Majesty’s Courts in this Province would have amounted to wilful and corrupt perjury, every such person being thereof convicted shall incur the penalties and forfeitures’ provided by the laws and statutes of this Province against such persons convicted of wilful and corrupt perjury.

9thly That the Commissioners or any three of them may allow such time for the payment of the pecuniary composition accepted by them to the Receiver General, as they shall think fit. And in all cases where a Composition is by them accepted, they shall grant a Certificate thereof in the form prescribed by this Act; (here the form of this Certificate is mentioned.) And at the foot or on the back of the said Certificate shall be subscribed or indorsed the following words (here follow these words whieh contain an acknowledgement on the part of the person paying the Lods & Ventes that the Lods & Ventes mentioned in the certificate are due, and his agreement to the composition accepted, and to the terms contained in the Certificate) which Certificate Subscription, and Indorsement shall be signed by three or more of the said Commissioners and by the person to whom such certificate shall be granted, in the presence of two lawful witnesses, who shall subscribe their names to the said certificate, and to the said Subscription or Indorsement: and that the said Certificate and subscription or Indorsement shall be executed double, and one part shall be delivered to the person in whose favor such certificate shall be given, and the other part shall be” kept by the Commissioners and filed and preserved among their proceedings; and upon payment of the sum in the said Certificate mentioned, in the time therein limited to the Receiver General of the Province, he shall at the foot or on the back of such certificate subscribe or indorse a Receipt therefor, which shall be in the words following (here follows the form of the Receipt) which said receipt shall be signed in the presence of two lawful witnesses; and such Certificate and receipt shall be entered at length of Record by the said Receiver General in a Book to be kept by him for that purpose; and such certificate and receipt being so executed and so entered of record, as aforesaid, shall effectually discharge as well the persons to whom the same have been granted as the unmoveable property to which the said Certificate and receipt relate, from all Lods and Ventes or mutation fines due to His Majesty upon the Sales or Acts equipollent to sales enumerated in such certificate—Provided that if the sum mentioned in the Certificate be not paid to the Receiver General wi h therein limited, the Certificate, after the lapse of such time shall be null and void, and all the Lods & Ventes, upon the several sales and acts equipollent to sales in the said Certificate mentioned shall be due without any deduction.

10thly That if any person shall falsly forge or counterfeit any such Certificate, or receipt as aforesaid, or cause or procure the same to be done, or act or Assist in doing the same, or shall counterfeit the signature or signatures of the said Commissioners, or of any or either of them, or of the Receiver General of this Province for

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the time being to any such Certificate or receipt, or shall alter or erase any authentic Certificate or Receipt made and executed by the said Commissioners, or by the said Receiver General respectively, or shall utter or publish as true, any such false forged, counterfeited, altered or erased Certificate or receipt, knowing the same to be such; every such person being thereof convicted in either of His Majesty’s Courts of Thing’s Bench in this Province, shall be adjudged guilty of felony.

11thly That the powers vested in the Commissioners shall continue and be in force for One year from the day on which it shall receive His Majesty’s Assent; at the expiration of which period the proceedings of the said Commissioners and all papers thereunto relating in their possession shall be by them delivered into the Office of the Clerk of the Papier Terrier of the King’s Domain in this Province, there to remain of Record.

12thly to be collected by virtue of this Act shall be accounted for to His Majesty through the Commissioners of His Majesty’s Treasury for the time being in such manner as His Majesty shall direct.

R. S. M.

Endorsed. A In Lieut. Governor Milnes’s N°. 47 To the Duke of Portland. (ENCLOSURE)

COPY OF MR. CHIEF JUSTICE OSGOODE’S PROTEST.1

Dissentient

1—Because although by Message from His Excellency Lord Dorchester, bearing date 29 April 1794 respecting the casual and territorial revenue, the House of Assembly were invited ” to relieve the subject by other duties not objectionable if raising the Lots & Ventes, Droit de Quint &ca up to the legal standard would prove oppression.2

1. February 27th was fixed for the second reading of the Bill relating to the collection of Lots de Ventes. A motion deferring the second reading of the Bill six months being defeated the Chief Justice filed the protest here given. The text is from the copy in the Canadian Archives, Q. 86, pt. I, page 172. 2. The. message from Lord Dorchester is as follows,—” The Governor has given directions for laying before the House of Assembly an account of the Provincial Revenue of tho Crown from the commencement of the New Constitution to the 10th January, 1794. First, the casual and Territorial Ecvemie as established prior to the Conquest which His Majesty has been most graciously pleased to order to be applied towards defraying the Civil Expences of the Province. This arises from various rights appertaining to the Crown, some of which are not now productive. The Governor doubts not but the House will bring forward measures to relieve the subject by other duties not objectionable, if raising the Lots et Ventes, Droit de Quint, &c., up to the legal standard would prove oppressive to the people. Secondly, the duties payable to His Majesty under the Act of the 14th year of his Reign, Chap. 88, on articles imported into the Province of Quebec, and on Licenses granted to persons for retaining spirituous liquors. As soon as the Provinces of Upper Canada and Lower Canada shall have passed Laws laying the same or other duties to an equal amount to those which are payable under this Act, and such Laws shall have obtained the Boyal Assent, the King’s Ministers will be ready to propose to Parliament a repeal of the Act above mentioned. Thirdly, the duties imposed by the Provincial Legislature, with the appropriation and balance. Fourthly, amount of Cash received, arising from fines and forfeitures imposed by the Courts of Justice. Fifthly, the Naval Officers Returns inwards since the division of the Province, which were originally intended as a check on the Customs, but seem not to answer the end proposed. The Governor relies on the Wisdom and Loyalty of the House, that while they select proper objects of Luxury for raising those aids, the public exigencies may require, they at the same time bring forward arrangements to prevent all irregularities from creeping into the receipt of the public revenue. The true measure of the burthen laid upon the people by any Tax or Duty being the gross sum taken out of the pocket of the subject on that account; this gross sum should fully appear; the aid given thereby to the State is the balance which remains in the public coffers, after all the expences occasioned in the collection are paid. More effectually to prevent any abuse from connecting itself with the receipt, the Governor

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to the people,” yet as no such duties have been imposed, the original right of the Crown to manage and regulate the collection of such Lods and Ventes to be applied towards defraying the Civil Expences of the Province remains unimpeached and incontrovertible.1

2. Because the right of collecting the lods et Ventes being clearly vested in the Crown, it is neither just nor seemly that either House of this Provincial Parliament should interfere in the directing or managing of such collection.2

3. Because in a Bill framed under similar circumstances with the present, in the 26th year of His Majesty’s Reign, the House of Commons of Great Britain did not presume to intermeddle until the matter had been recommended to them by a special message from the Crown, the import of which Message they have been careful to recite in the Preamble to the Bill, as constituting the authority under which they acted: But as no such message has been sent by the Executive power of this Province, no such recital can he made: the proceeding is therefore unauthorized, and may furnish a most dangerous precedent to posterity.3

4thly Because it being a point of much delicacy, more especially in a Colonial Government to determine how far it may be adviseable to acquiesce in a manifest assumption on the Executive power, it is therefore the peculiar and constitutional duty of the Aristocracy to withstand such a Measure in its earliest stage, and thereby Telieve the Royal Authority from the difficulty of deciding upon the exercise of an unpleasant part of the prerogative.4

5thly Because it is an established rule as well of decency as of policy that every Act of grace or remission emanating from the clemency or bounty of the Crown should originate from the Crown. But by the present Bill which from its title purports to be

recommends that no part of the burthen be suffered to be concealed under the name of Pees, Perquisites, Gratuities, &c, but that the whole of the monies drawn from the subject bo lodged in the public coffers, and proper compensation for the collection be openly issued therefrom by warrant under the signature of the Governor or Person administering the Government. That the House may better judge of the burthen laid on the people, and the aid granted to the State, the Governor has given direction that the annual accounts of the Provincial Revenue of the Crown be accompanied by Sixthly, a statement of the monies taken out of the pocket of the subject on this account; its progress and diminution before it is lodged in the public coffers, with the after diminution on account of the collection, that every circumstance of this important business may be constantly before their eyes ; that in the outset of the Constitution and its progress they may guard this important branch from those corruptions and abuses which have brought so many miseries on other nations. (Signed). D. G. At the Castle of St. Lewis in Quebec, 19th April, 1794. Journals of House of Assembly, 1794, page 280. 1. On the 27th of March a reply to the protest of the Chief Justice was addressed to Lieutenant-Governor Milnes by the Lord Bishop of Quebec, Hugh Pinlay, P. Baby, George Pownall and Henry Caldwell, members of the Legislative Council. See Q. 86, pt. I, page 199. With reference to the first ground of dissent the reply observes that:— ” Although before the Introduction of this Bill no effectual measures had been taken by the House of Assembly to relieve the subject by other duties not objectionable, if raising the Lots et Ventes, Droits de Quint, &ca up to the legal standard would prove oppressive to the people,” yet it was still open to them under the authority of My Lord Dorchester’s Message, to bring such Measures forward; and it may he presumed that as soon as they should so do, the Crown would suspend its ” right to manage and regulate the Collection of such Lots et Ventes to be applied towards defraying the Civil Expences of the Province” inasmuch as it would otherwise virtually resume the power it had given, and render the proceedings of the Provincial Parliament altogether nugatory.” (Canadian Archives, Q. 86, pt. I, page 199.) 2. On this point the members of Council considered that they “acting under the sanction of a Message from the Throne, and interfering no further in ” managing and collecting the Lots et Ventes,” than such interference appeared to them to be essential to the measures which they have been invited to pursue, feel no reason to apprehend that such interference will be deemed to be unjust and unseemly.” (Canadian Archives, Q. 86, pt. I, page 200.) 3. For the observations of the Attorney General on this point, see page 269. 4. The members of Council considered that ” they have least of all reason to fear the exercise of an unpleasant part of the prerogative,’ in a case where they feel themselves -actuated by the sincerest desire of fulfilling, to the best of their power, and their judgment, His Majesty’s benevolent and fraternal views for the good of his people.” (Canadian Archives, Q. 86, pt. I, page 203).

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a Bill of relief the Crown debtors will naturally transfer their gratitude from the Sovereign to whom it is due to those who have spontaneously brought forward the measure, namely, their representatives.1

Endorsed B In Lieut. Governor Milnes No. 47. (signed) WM. OSGOODE Speaker R.S.M.

(ENCLOSURE)

REPORT OF THE ATTORNEY GENERAL.2

MAY IT PLEASE YOUR EXCELLENCY

IN obedience to Your Excellency’s commands, directing me to lay before you my sentiments upon the Bill intituled, “An Act for the relief of persons holding Lands or unmoveable property of His Majesty, upon which Lods et Ventes or Mutation Fines are due,” I have the Honor to submit my opinion thereon for Your Excellency’s Consideration.

It is impossible for me in the first instance not to advert to the observations which have been publickly made, severely censuring His Majesty’s Servants who are members of the House of Assembly, for the support which they gave to the Bill; and I humbly hope that Your Excellency will be pleased to accept what I write not only as my opinion upon the Bill, but as a vindication of the vote which I gave in the House of Assembly.

Had I conceived that the House proceeded in the measure either “unjustly,” “impolitickly,” or ” unconstitutionally,” or that they interfered in the directing or management of the Revenues, without authority from the Crown, I certainly should have opposed the Bill in all its stages.

In my mind, the Bill was a Measure of sound policy, Just in its principles and constitutionally introduced, under the authority and with the approbation of the Executive Government, and therefore I gave it my support.

To judge of the policy, the motives which gave rise to the Bill must be stated. Eorty years have elapsed since the conquest, and yet the feudal System subsists in Canada, to the injury both of Government and its subjects.

To attempt to destroy this system at once, among a class of uninstructed people, D5 whom it is respected, would be folly in the extreme, but to proceed by degrees which will ultimately effect its abolition, is practicable.

Those who are acquainted with Canada must know of how much importance it is to unite the English and Canadian character, which never can be done unless they are brought together.

The Englishman detests the feudal tenure, and there can be no greater proof of it, than the present situation of the country, which has not more than fifty English tenants upon all the Seigniories though the population of the country is equal to

1. In reply to this the Council observes that:— ” The King’s gracious intentions, as they are disclosed in Lord Dorchester’s Message, have long been felt and understood by the Province; the proceedings of the Provincial Parliament are known to have been grounded solely upon that message, the people will naturally, therefore, carry their eyes to the Throne, the original source of the Grace they have received, and not ” to their Representatives,” who are the channels only, through which His Majesty has been pleased to cause it to flow. (Canadian Archives. Q. 86, pt. I, page 203.) 2. from the copy in the Canadian Archives, Q. 86, pt. I, page 175.

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two hundred thousand Souls and from the same circumstance very few indeed of the Seigniories are in the hands of English Landlords.

The first effect of an emancipation from the feudal Burthens, and the conversion of the tenures into free and common soccage would be to induce the English Gentlemen resident in Canada to become purchasers of large tractS, and the English Yeomanry and peasantry to become purchasers of smaller lots, in those very Seigniories in which they now refuse to settle. This is Evident from the anxiety which they now shew for the purchase of lots in the new Townships which are held in Eree and common Soccage, though they are far inferior in point of situation to the old Seigniories established on the Banks of the Saint Lawrence from ” Trois Pistoles ” to the “Point au Baudet.”

The necessary consequence of a conversion of tenure would be the intermixture of the English and Canadians throughout the different Seigniories of the Province, the introduction of reciprocal confidence, of the English Language, of the English System of Agriculture, and an assimilation of manners and pursuits. While Government would in the first instance where the Canadians are disaffected have the benefit of information and intelligence as to their conduct (of which the want has at all times been sensibly felt) and of that restraint which a body of resident English would impose upon them, and ultimately reap the solid advantages of a numerous and well affected militia, in the heart of the Country, and an increase of a certain & fixed annual revenue by way of commutation for the uncertain and unproductive return of the casual mutation fines.

These advantages are evident to those Members of the House of Assembly, with whom, as the tried friends of Government, I have always acted, but at the same time, it was thought, as I have stated, that the object ultimately in view could onlv be obtained by degrees :—that it was essential that the example should be set in the Seigniories which are immediately held of the Crown, to prove by facts the practicability of a conversion of tenures and the benefits arising from it; and that the example would be much more effectual if the conversion was asked of the Crown by its tenants as a favour.

In all Seigniories held immediately from the King, that is, en roture, one twelfth of the money paid for the purchase of any part, is by law due to His Majesty as a fine for the mutation of his vassal, and this fine is called a Lods & Ventes.

Though voluntary payments have been made, yet, from various causes, the Lods & Ventes, which have become due to His Majesty since the conquest have never been collected, and it was presumed by the Tenants that they never would be;—it was not therefore, to be expected that they would ask for a conversion of their tenure into free and common soccage, which, except as to the Lods & Ventes, would not essentially ameliorate their condition, or that they would solicit the commutation of the Lods Ventes, for an annual fixed tax upon their property, while they were convinced that the Lods & Ventes would never be asked. Eor this reason it was thought expedient that the Lods & Ventes due to His Majesty should be collected to convince the tenants that the Crown would not abandon a revenue which might be made extremelv productive, and which, as it had constantly existed in the Province from its earliest establishment, and was daily paid by the Tenants of every Seigniory holden mediately of the Crown to their immediate Lord, was a well known and established Tax, perfectly acquiesced in by the Inhabitants, and even respected as a remnant of their former system of Government. And as the Lands held immediately of His Majesty are principally situated within the City of Quebec,and in the hands of English Tenants who are chiefly Merchants and wholly averse to the payment of “Lods & Ventes,” considering it, as in fact it is, a tax of one twelfth upon the value of all improvements upon the Soil, and consequently as a check to every principle of industry, it was clear that once convinced that the Lods et Ventes would not be abandoned, they would be even clamorous for a commutation, and then the conversion of their tenure into free and common

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soccage, would be granted by Government at their request as a favour; for, without a conversion of the tenure, there can be no commutation of the Lods et Ventes.

Yet the collection of all the Lods & Ventes due to His Majesty could not be thought of, for the lots of land and houses of the lower Town of Quebec (which is entirely held en roture or in other words immediately of His Majesty) have since the conquest been so repeatedly bought and sold, that upon all, nearly the entire value, and upon a very great number more than the specific value of the lands and buildings, is due to the Crown for Lods et Ventes, and secured by a mortgage of preference upon the premises.

It certainly was impossible to doubt His Majesty’s Right of his sole authority to eollect & manage the Lods et Ventes, and nobody did doubt it. he was not only authorized by the law of conquest, but by the Statute of the 14 Geo : III c. 88. But as that Statute had enacted ” That the Territorial & casual revenues, fines, rents, and profits, which were reserved to, and belonged to His most Christian Majesty before and at the time of the conquest and Surrender of Canada to His Majesty’the King of Great Britain, should remain and continue to be levied, collected and paid in the same manner as if that act had never been made;”1 and as the Lods & Ventes were part of the Public Revenue before the conquest, and were appropriated by Bis Majesty so early as the year 1766 “for and towards defraying the necessary Expences of the Government of Quebec,”2 and again declared to be so appropriated in His Message to the House of Assembly of the 29th April 17943 and as the Lods & Ventes during the French Government were collected by the Crown, with the remission of one third only, it was doubted by some, if the Lods & Ventes were collected, under the sole authority of the Crown, whether more than one third could be legally remitted; and it was an undoubted fact that the collection of even two thirds of what was due would cause the inevitable ruin of that City of Quebec. For this reason, and for a much better, namely, for the purpose of relieving the Crown from the odium of enforcing the collection of a tax which in the King’s Seigniories was supposed to be abandoned, it was thought adviseable that they should be collected under the authority of an Act of the Provincial Parliament, to be enacted, however, with the previous and express approbation of His Majesty, as is usual in similar cases, in which His Majesty’s Interests are concerned.

Upon these several points Your Excellency was immediately consulted, and as you was pleased to approve of the Intentions which were held by His Majesty’s Servants, who were members of the House of Assembly, the next object for consideration was, the parliamentary mode of proceeding in the introduction of the Bill proposed, and whether any further Message, or other expression of His Majesty’s consent, authorizing the House to proceed to the consideration of the subject, than what was contained in the Message sent to the House of Assembly by Lord Dorchester on the 29th of April 1794 was necessary; and upon deliberation that message was thought sufficient, and it was also thought impolitic for the Government to recommend a Measure, which would necessarily be unpopular in the heart of His Government, the MetroPolis, without an absolute necessity, which did not appear.

With the best intentions therefore, to promote the Interests of His Majesty’s Service, and the welfare of His Government in Canada, the Bill was brought forward in the House of Assembly, and it is self-evident from the proceedings which were there had upon the Bill, that the House had no intention to claim the right of interfering, unauthorized, with the management or collection of the Lods & Ventes. The Message of Lord Dorchester was made the Basis of the whole proceedings, and

1. See the Quebec Revenue Act of 1774. Constitutional Documents, 1759-1791, Shortt and Doughtv, 1907, page 406. 2. See the Instructions from the Lords of the Treasury to the Receiver General of the Province of Quebec, March J0th 3766, contained in Journal B, of the Legislative Council, page 179. 3. See page 262, note 2.

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the first steps taken were a notice for the reading of that part of the message Tihieh relates to the Lods & Ventes, and a second motion to take it into consideration on a future day, when certain resolutions were adopted, grounded upon the Message, upon which resolutions the Bill in question was founded. All this appears from the entries on the Journal of the 2,6a1 January and 2nd of February last. Certain it is that ” a manifest assumption of the Executive Power”1 was never imagined. Had it been even conceived that the Bill, after the proceedings which had taken place could have been plausibly liable to such a construction, not only the peculiar friends of Government, but every member of the present House would have opposed it. The utmost which in truth can be imputed to the House is, that, in their Zeal for the abolition of the feudal Sjstem, the greater security of His Majesty’s Government, the increase of his Revenue, and the prosperity of the Province, and in their readiness to assume that odium which must otherwise have fallen upon the Executive Government, thpy have proceeded (not without a message from the Crown, as is said, but) upon a Message which those who are hostile to the Bill choose to consider as insufficient. Whether it be or be not sufficient is an enquiry to be decided only by the Message itself, and the papers which relate to it.

It must be recollected that at the time when the message was sent, the Revenue of the Crown was far less than the Expenditure for the support of the Civil Government; We had then just received from the liberality of His Majesty and the Parliament of Great Britain a constitution unexampled in the most favoured Colony, in all respects sufficient to enable us to tax ourselves, and the general object of the message was to remind us of these circumstances—to submit the then state of the Revenue, and to acquaint us1 with His Majesty’s Expectations that we should increase it, if not immediately to the amount of the Civil Expenditure, at least as far as we might then find it practicable, assuring us that His Majesty was willing that we should take the whole into consideration, even that part of the Revenue which was raised by Acts of the British Parliament. To these ends the message first states “That the Governor has given directions for laying before the House of Assembly an Account of the Provincial Revenue of the Crown from the commencement of the new Constitution to the 10th January 1794” consisting of “the casual and territorial Revenue of the Crown as established prior to the Conquest, which His Majesty had been most graciously pleased to order to be applied towards defraying the Civil Expences of the Province”—”the duties payable to His Majesty under the Act 14 Geo : III c. 88,” “the duties imposed by the Provincial Legislature,” and “the fines and forfeitures imposed by the Courts of Justice.” At the same time we are informed by the message ” that as soon as the Provinces of Upper and Lower Canada shall have passed Laws laying the same or other duties to an equal amount to those which are payable under the Act 14 Geo : IIIc. 88, and such laws shall have obtained the Royal Assent, the King’s Ministers will be ready to propose to Parliament a repeal of the Act above mentioned : ”

“That the Governor doubts not but the House will bring forward measures to relieve the subject, by other duties not objectionable, if raising the Lods et Ventes droit de quint &ca. up to the legal Standard would prove oppressive to the people,” and that some of the various rights appertaining to the Crown, from which the casual and territorial revenue proceed ” are not now productive,” and by reference to the Accounts which accompany this message we find that these unproductive rights are more particularly the droit de Lods et ventes and quint; and that the general deficiency of the Revenue is stated to be annually £16,106 .. 18..—.

The objects therefore to which the message related were the different branches of the Revenue, not only as to the future, but as to the state in which they then stood, particularly those which were unproductive, among which were the Lods & Ventes

1. See Article IV. of the Protest of Chief Justice Osgoode, page 263.

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from which the Crown had not realized anything from the time of the conquest, except the sum of one thousand three hundred and fifty one pounds nine shillings and five pence farthing, which is stated in the printed Report of the Committee of the whole Council to Lord Dorehester upon a reference relative to conversion of tenuresdated the 20th Octr. 1790 to have been received prior to the 1st of May 1788.1 The Message, however, did not specifically recommend any of the enumerated objects to the Consideration of the Legislature; but to the address which was voted by the House in consequence of the Message, the Governor was pleased to return an answer in the following words—” The important matters under your Consideration must necessarily prevent you at this time from entering into the examination and discussion of the objects which I have lately laid before you. They were brought forward at this season, that you might have leisure maturely to consider and weigh matters of such magnitude, and be the better prepared to take them up early in the next Session.”2 And this was taken by the House to be not only an Authority, but a direction to takeinto their consideration the various objects contained in the Message in all their relations not only to the future but to the state in which they then stood.

Accordingly on the 14th December 1795 it was resolved ” That this House will, on Tuesday the 3t h day of January next resolve itself into a Committee of the whole House to take into consideration that part of His Excellency the Governor’s message to this House on the 29th of April 1794 concerning the casual & territorial Revenue, and also the raising the Lods & Ventes, droit de quint, &ca. as is more particularly explained in the said Message.”

And to shew the sense in which the message was at that time understood by all ranks of people, two petitions from the Inhabitants of Quebee and of its suburbs werepresented to the House on the 8th January 1796, and referred to the Committee. In one of which the Petitioners prayed for ” a remittance of all the Seigniorial rights ” whatever, which they then owed to His Majesty’s Domain,” and in the other ” that ” all the Lods et Ventes due to His Majesty in the City and Suburbs of Quebec might be remitted.”

The Committee sat repeatedly during the Session from the 5th January to the 23rd of March, but after resolving ” That it was expedient to remit and relinquish the Lods & Ventes and quints, due to His Majesty, under certain circumstances, and that a Bill ought to be introduced for that purpose,” they found that they could not agree upon any general principle by which the numerous questions which the subjects of their resolutions presented could be determined, and they therefore suffered the Committee to expire and the whole matter was dropt. All these transactions passed immediately under the eye of His Excellency Lord Dorchester, without any censure or disapprobation expressed or implied on his part.

Things were in this situation when the Bill now in question was first proposeâ, and as the above precedent had never been conceived irregular, and the message for the reasons above cited seemed clearly to warrant it, the same course of proceedings * was adopted, and certainly they were constitutional, if the state of the Lods ê Ventes at the time when the message was sent was recommended to the consideration of the House, either by the Message itself or by the explanatory Answer of the Governor to the Address of the House of Assembly for the then state of the Lods & Ventes, necessarily refers to the quantum thereof then due, and as they were stated to be then unproductive, this as necessarily led to the enquiry why they were unproductive, and if any part of them could be realized for the increase of His Majesty’s Revenue, which was the general object to which the attention of the House was required, and

1. See page 27 of the Extract of the Proceedings of a Committee of the whole Council under the following Order of Reference relative to a Commission of the present Tenures in the Province of Quebec into that of Free and Common Soccage, Quebec, Neilson, 1790. The amount stated is there given as being taken from the Receiver General’s accounts for the thirteen years from 1st May, 1775. to 1st May, 1788. 2. See the Journals of the Legislative Assembly for May 2nd, 1794.

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which they were expected to effect by means least burthensome to His Majesty’s Subjects in general.

It is urged ” That in a Bill framed under similar circumstances in the 26th year of His Majesty’s Reign The House of Commons of Great Britain did not presume to intermeddle until the matter had been recommended to them by a special message from the Crown, and that the message wasi carefully cited in the preamble of the Bill, as constituting the authority under which they acted.”1 The Bill here alluded to appears to be the Act 26- Geo: III c. 87 intituled, ” An Act appointing Commissioners to enquire into the State and condition of the woods, forests and land Revenues belonging to the Crown, and to sell and alienate fee farm and other improveable rents.” How far this Act which relates to the “Revenue arising to His Majesty by rents of Lands or for fines of leases,” especially appropriated by an Act of Parliament (the I Geo: III c. 1) to the support of His Majesty’s Household and the honor and dignity of the Crown,” and the Bill in question which relates to the Lods & Ventes appropriated by His Majesty ” to the Civil Expences of the Province,” are to be considered as Bills framed under similar circustances, I do not wish to enquire, because many instances may be adduced of Acts passed in Great Britain which have sprung from Messages which are not therein recited, particularly the Act 9 Geo : II C. 35, which by the 9th Section enables the Lords of the Treasury (as the Bill in question enables the Commissioners) to remit certain debts due to the Crown, and because, I trust, it must be evident to every impartial mind, from the plain narrative of facts which I have stated, that the House of Assembly ” did not presume to intermeddle with the Lods & Ventes, “until the matter had been recommended to them by a special message from the Crown.”

If the conduct of the House of Assembly, or of the King’s Servants who are members of that House, should require a further vindication, it will be found in the Bill itself. The Bill leaves to the Crown the entire merit of every remission to be made, by vesting in the Governor the absolute appointment of the Commissioners, with power to change them as often as he thinks proper. It exempts no man whatever from the payment of Lods S Ventes now due, without the consent of the Crown, throught its own Commissioners; those persons excepted (and those only) who distinguished themselves in support of His Majesty’s Government in 1775. It takes nothing from the Crown; on the contrary, it enables His Majesty from a fund wholly unproductive, which has yielded nothing for forty years (except the above sum of £1351″ 9 ” 5 1/2 ) to realize in this year at least five thousand pounds, and probably more, without impeaching the rights of the Crown for the “future in the smallest degree; and ensures from the day of its passing an annual increase to His Majesty, by the collection of the Lods & Ventes in time to come, or the substitution ei a better tax by commutation.

All whjch is most respectfully submitted by Your Excellency’s most obedient & most humble Servant J. SEWELL, A.G.2 R.S.M

Endorsed C. In Lieut. Governor Milnes’s N°. 47 To the Duke of Portland. N°. 48.

1. See Article III. of the Protest of Chief Justice Osgoode, page 263. 2. Jonathan Sewell was horn in 1766 at Cambridge, Mass., and was educated in the schools of Bristol, England. In 1785, he came to New Brunswick and entered on the study

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MILNES TO PORTLAND.1

QUEBEC, 15th May 1801.

My Lord,

A transaction of a peculiar nature having occurred in the Executive Council, I deemed it incumbent upon me to refer the consideration thereof to a Committee of the whole Council, & although I have the satisfaction to find that their opinion exactly coincides with my own as to the Irregularity of the Proceeding in question, I feel that it is not only a matter of much Importance in itself, but that in a distant Colony, and under a Government composed like this of Persons differing in religious and political Sentiments, it may hereafter be of the utmost consequence to have this Point clearly understood; I therefore think it my Duty to transmit to Your Grace Copies of the several Documents, (A, B, C, D, E, F, G, H, I . ) 2 together with some other Particulars relative to the Subject, that the whole may come under Your Grace’s special consideration.

I shall now proceed to state that having on the second of February last received an Address (A) from the House of Assembly, praying that I would be pleased to order the proper Officers to proceed to the confection of the Papier Terrier of the immoveable property held en roture within the Censive of His Majesty’s Domain in this Province, and judging it expedient that such Papier Terrier (the nature of which I shall have the Honor to explain to Your Grace) should be completed, I called upon His Majesty’s Law officers for their opinion (B) as to the legal course to be taken for carrying this object into effect, and I afterwards referred it (C) to the consideration of a Committee of the whole Council, whether the means proposed by the Attorney and Solicitor General, or any other and what means were proper to be adopted for the confection of the Papier Terrier.

Upon a perusal of the Inclosure (D)3 Your Grace will observe that at the meeting of the Committee of the whole Council (the Chief Justice being in the Chair) to consider of the order of Reference above mentioned, the means proposed by the Attorney and Solicitor General were approved of, and the Chairman was directed to Report accordingly.

This Report appearing to be the unanimous decision of a Committee of the whole Council, I was surprised when it was laid before me, to observe at the foot of it a writing subscribed by Mr. Osgoode (E)4 containing a Protest on his part founded upon the supposition only of an Interference, and concluding by a direct Condemnation of a Measure which had previously been determined upon by His Majesty’s Government. This writing not being inserted in the Body of the Report, and consequently not sanctioned by the Signature of Mr. Osgoode as Chairman of the Committee, I could not consider it as regular or as making part of the Report, I therefore referred it (F) to a Committee of the whole Council for their Report whether it was intended that such

of law under Ward Chipman, He was called to the bar of Lower Canada in 1789. He was appointed Solicitor General and Inspector General of the Royal Domain in 1793. Two years later he was promoted to the office of Attorney and Advocate General. Prom 1796 until 1808 he represented the Borough of William Henry in the Legislative Assembly. In May, 1S08, he became Chief Justice of the Province and at the same time was appointed to the Executive and Legislative Councils. Prom January, 1809, until February, 1811, he acted as Speaker of the Legislative Council. His conduct as Chief Justice earned the displeasure of the majority of the Legislative Assembly, and in 1814, in company with Mr. Monk, Chief Justice of toe District of Montreal, he was impeached hy the House. The Privy Council considered that the charges were not established. Mr. Sewell resigned from the Executive Council in 1830, but was reappointed by Lord Durham, June 28th, 1838, and continued to act until November 2nd of the same year. He remained a member of the Legislative Council until March, 183S. He died at Quebec, November 12th, 1839. 1. Prom the copy in the Canadian Archives, Q. 88, pt. I, page 205. 2. The enclosures, A, B, C, F and H are not reproduced. They may be found at Q. 86» pages 211, 212, 215, 221 and 227. 3. See page 272. 4. See page 273.

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writing should accompany their former Report, and it was unanimously decided, as Your Grace will perceive by the Inclosure (G)1 that the writing above mentioned was brought forward without their Consent or knowledge, that every Member of the Committee had understood the Chief Justice to acquiesce in the Report as it was framed at the Table, and that they considered the writing as irregular and improper, as well as failing in decorum and Respect, and therefore recommended that it should be expunged from the foot of the Report.

The irregularity of the proceeding of the Chief Justice was such that in this point of view alone, the Committee would have deemed his Protest to be inadmissible : But in looking back into the minutes of the Executive Council since the establishment of the new Constitution in 1792, I find no Instance of a protest being entered on the Journals. I have therefore further to submit whether it may not be worthy the consideration of Your Grace how far it is proper that such a privilege should be assumed by the Members of this Board.

The Chief Justice in asserting his right to protest, founded it. principally on the Practice established in the House of Lords1, but it appears to me that the analogy does not hold good, the Executive Council being a Board of Secrecy and formed for the purpose of giving advice to His Majesty’s Representative, a powerdn any one individual member to protest, and have his Protest entered on the Minutes, could only tend to interrupt the Harmony which ought to exist in the different Branches of His Majesty’s Executive Government, as the momentary dissatisfaction of any one Member would by this means be kept alive and recorded to the Injury and Impediment of His Majesty’s Service, in as much as it might prevent the Governor from consulting the Council so often as he would otherwise wish to do.

When the subject was debated before me in Council (H)2 every Member then present, except the Chief Justice, appeared to be impressed with the idea that on the Executive Council this Privelege would only tend to the most injurious Consequences ; but I purposely avoided having the question brought to a decision, wishing first to obtain Your Grace’s directions thereon, as in the Royal Instructions freedom of Debate only is mentioned.

As far back as the year 1791, I find that Lord Dorchester so much disapproved of there appearing any division upon the Minutes, that he ordered the Clerk in Council, the Lieut. Governor also being present, to strike out the Minutes as irregular, an entry which had been made of the names of the Members who at a prior meeting had given their voices for and against a Measure then under consideration ;3 previous to that time, during the period between the administration of Sir F. Haldimand and Lt. Governor Hope, the proceedings of the Council seem not to have been attended to, as a number of Irregularities appear then to have taken place.

Before I close this Dispatch it may be proper to explain to Your Grace the nature of a Papier Terrier which is a Rental or Land Roll of Estates held of a Seignior en fief or en roture, in which is contained a description of those Estates, and of the Rents, Dues, Duties, Services and Seigniorial Rights, under which they are held by the respective Vassals or Tenants holding the same.

With respect to the Assertion brought forward in the Protest of Mr. Osgoode, denying the Right of the House to address the Governor on this subject, I shall only observe that the Attorney General was one of the Members who brought up the

1. See page 273. 2. See puge 227 Q. 86, pt. 2. 3. The Minutes of the Privy Council for the 4th of January, 1791, contain the following entry, ” On reading the minutes of the last Council day, viz., the 18th of November, His Lordship observed that the names of the Members called upon to give their Voices on the tsvo Orders respecting the Memorials of William and Thomas Taylor had been inserted in the Minutes, His Lordship ordered that the Statement of the Voices be struck out of the Minutes as irregular.” (Privy Council Book H, page 481.)

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address, a sufficient proof of his opinion respecting the regularity of the proceeding, and I have now the. Honor to inclose His Report (I) 1 on the Subject, which I referred to him in consequence of what had taken place.

I have the Honor to be, My Lord, Your Grace’s most obedient and most humble Servant, ROBT. S. MILNES

His Grace The Duke of Portland, &ca. &ca. &ca. Endorsed Quebec, 15th May 1801. Sir Rob: S. Milnes (N°. 48)

(Nine In closures) R. 15th June

(ENCLOSURE).

REPORT OF A COMMITTEE OF THE EXECUTIVE COUNCIL.2

To His Excellency Sir Robert Shore Milnes Bart., Lieutenant Governor of the Province of Lower Canada, &ca. &ca. &ca.

Report of a Committee of the whole Council, Present: The Chief Justiee, the Lord Bishop of Quebec, Messrs. Baby, Dunn, De Bonne, Lees & Young on Your Excellency’s order of Reference in Council of the 27th April last on the Report of the Attorney and Solicitor General respecting the legal Course to be taken for the Confection of the Papier Terrier and Censier of His Majesty’s Domain in consequence of an Address of the House of Assembly dated the 2ad Feby. 1801, and their Draft of a Commission for that end also their Report and Draft of a Proclamation relative to the Collection of the Quints due to His Majesty.

May it please Your Excellency,

The Committee having taken the said Document into their Consideration are humbly of opinion that the means proposed by the Attorney General and Solicitor General are proper to be adopted for the confection of the Papier Terrier and for enforcing payment of the Quints due to His Majesty, with such alterations in the Proclamation as upon reconsideration by the Law Officers of the Crown, may be deemed essential to give it adequate effect.

All which is humbly submitted to Your Excellency’s Wisdom.

By order

(sigd.) Wm. Osgoode, Chairman. Quebec R.S.M.

Council-Chamber, 1st May 1801. Endorsed D. Copy.

Report of a Committee of the whole Council on the means proposed by the Attorney and Solicitor General for the confection of the Papier Terrier. &ca.

In Lt. Governor Milnes’s N°. 48 To the Duke of Portland.

1. See page 274. 2. From the copy in the Canadian Archives, Q. 86, pt I, page 217. The report forms part of the Minutes of the Executive Council for May 5th, 1801.

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(ENCLOSURE).

PROTEST OF CHIEF JUSTICE OSGOODE.1

WHEREAS by the Documents communicated to the Committee it appears that the confection of the Papier Terrier and Censier is to be directed in consequence of an Address to His Excellency the Lieutenant Governor from the House of Assembly, and as a concurrence in such consequential direction may be inferred from the above Beport, I do protest against such Interference. For, His Majesty not having divested himself of the management of His Territorial Revenue, and as the said Address neither states authority nor inducement for their Interference, in my Judgment such interference was irregular, and therefore not calculated to meet with the sanction it has received.

(sigd.) Wm. Osgoode. R.S.M.

E Endorsed. Copy of the writing subjoined to the Report of a Committee of the whole Council respecting the legal course to be taken for the confection of the Papier Terrier. &ca.

In Lieut. Governor Milnes N°. 48 To the Duke of Portland.

(ENCLOSURE). REPORT OF A COMMITTEE OF THE EXECUTIVE COUNCIL.2

Council-Chamber, Quebec. Thursday, 7th May 1801.

The Committee according to adjournment; Present— Mr. Dunn, in the Chair, The Lord Bishop of Quebec, Messrs. Baby De Bonne and Lees.

The Committee proceeded to take into their most serious consideration Your Excellency’s Order of Reference, and thereupon unanimously report to Your Excellency that the writing subjoined to their Report dated the First Instant, and signed by the Chief Justice was brought forward without their consent or knowledge, that every Member of the Committee had understood the Chief Justice to acquiesce in the Report as it was framed at the Table, and consequently they could not but feel much surprise at the manner in which the said Writing or Protest was introduced.

1. From the copy in the Canadian Archives, Q. 86, pt. 2, page 219. 2. From the copy in the Canadian Archives, Q. 86, pt. 2, page 225. This report was presented on the 8th of May and was ” approved and ordered to he entered.” (State Book C, Lower Canada, page 183.) After the Beport of the Executive Council had been approved the Lieutenant-Governor drew attention to the protest of Mr. Osgoode which accompanied it. His Excellency then referred it to a Committee of the Whole Council ” to report whether it was intended by the Committee that such Writing should accompany the said Report, and whether the said Writing, as well from the subject matter thereof, which has no necessary connexion with the immediate Objects referred to the Committee, viz., (whether the means proposed by the Attorney and Solicitor General, or any other and what Means are proper to he adopted for the confection of the Papier Terrier, &c.) and which arraigns the Propriety of a Measure determined upon by His Majesty’s Government before those Objects were referred, as from the Mode in which it is introduced, can or ought to be received or admitted to be entered or filed with the Minutes of His Majesty’s Executive Council.” (Minutes of Executive Council, State Book C, Lower Canada, page 181.)

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The Committee humbly but decidedly offer it as their opinion that the said writing in its form and substance, as well as in the mode of its introduction is irregular and improper, that it is irrevalent to the immediate objects which had been referred for their Report; That in so far as it condemns a measure which had been previously determined upon by His Majesty’s Government, it fails in decorum and respect, and that it ought not to be received or admitted to be entered or filed with the Minutes of His Majesty’s Executive Council; they therefore humbly recommend that the said writing be expunged from the foot of the said Report.

All which is humbly submitted to Your Excellency’s Wisdom.

By Order (sd.) THOMS. DUNN, Chairman. R.S.M.

Endorsed. G. Copy.

Report of a Committee of the whole Council on the writing subjoined to their Report dated the 1st. may 1801.

In Lt. Governor Milnes’s N°. 48 To the Duke of Portland.

(ENCLOSURE).

REPORT OF THE ATTORNEY GENERAL.1

To His Excellency Sir Robert Shore Milnes Baronet, Lieutenant Governor of the Province of Lower Canada, &ca. &ca. &ca.

May it please Your Excellency,

In a letter which I received from M1. Secretary Ryland, on the 11th instant, it is stated that ” it had been suggested to Your Excellency that as the Papier Terrier & Censier of the Censive of His Majesty’s Domaine is to be made in consequence of the Address of the House of Assembly of the 2d. of february 1801, it will be irregular to proceed therein because His Majesty has not divested himself of the management of his territorial revenue, and because the Address neither states authority nor inducement for the interference of the House of Assembly “2 and I am thereby directed ” to report to Your Excellency my opinion upon this subject, with my reasons.”

The Address is a resolution of the House of Assembly in the following Words “Resolved that an humble address be presented to His Excellency the Lieutenant Governor praying His Excellency will be pleased to order the proper officers to proceed to the confection of the Papier terrier of the immoveable property held en roture within the Censive of His Majesty’s Domain in this Province; ” and to this Address Your Excellency was pleased to answer “that you would give the necessary ” Orders for the confection of the papier Terrier.” In what has been suggested to Your Excellency, it is averred, that it would be irregular to perform this promise made on the part of the Crown as there is irregularity (now first discovered) in the Address of the House of Assembly, in two points, namely, ” because it neither states an authority nor inducement.” But admitting (for a moment) that such omissions prove great irregularity in the Address, yet surely that irregularity cannot now justify the breach of the royal word, pledged after the Address was delivered. It is not, however, my intention to answer the suggestion on this ground; it will be my object (as I have

1. From the copy in the Canadian Archives, Q. 86, pt. 2, page 229. 2. See the Protest of Chief Justice Osgoode, page 273.

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no doubts of the regularity of the Address itself) to establish that and thereby to prove the regularity of all the subsequent steps necessary for carrying it into effect.

That it is regular for the House of Assembly to address the Crown, without any special authority, on any subject of public revenue, (especially for information) will not be denied, and for this reason the objections stated in the suggestion, namely, ” that His Majesty has not divested himself of the management of his territorial revenue, and that the Address neither states authority nor inducement ” seem necessarily to imply that the territorial revenue (of Lods & Ventes and Cens & rentes) is not in Canada a part of the public revenue, but a part of His Majesty’s privy purse; and therefore that the address should shew upon the face of it a sufficient authority from His Majesty to interfere, and in addition to such authority, an adequate inducement.

Now the confection (as it is termed in the French Law) of a Papier Terrier is barely the making up of a rent-roll of any Fief or Seigniory, and on such occasion the Seignior (whether he is the King or an individual) is authorized to summon the persons resident within the limits of the Fief or Seigniory, to declare by what title and under what terms they hold the lands which they possess; it is therefore an Act which tends solely to obtain information relative to the situation of a fief or Seignory. If therefore the Territorial Revenue of the lands held en roture of His Majesty, of which the Assembly have prayed that a papier terrier may be made, forms no part of the King’s Privy Purse, or Domaine propre du Prince as it is called in the Laws of this Province;—and if what is asked amounts only to information respecting the number of tenants on the public Domaine of the Crown, and the terms on which they hold their property; on what grounds can the respectful address of the House of Assembly of the 2d of february last, be called an ” interference,” or be denominated irregular ” ? And why should it be necessary for them (in a constitutional address to the Crown for information, relative to a part of the public revenue) to set forth the authority on which they proceed, or their inducement to the address, when no special authority in such cases is requisite, and when the object solicited being solely information, it is self evident that the want of such information is the inducement to the address.

It will therefore be my object to shew to Your Excellency in answer to what has been suggested that His Majesty’s casual and territorial revenue of cens et rentes, quints, and lods et ventes or mutation fines are not by the laws of this Province considered as any part of the privy purse, on the contrary that they are held to be part of the public revenue.

In France the property or domaine of the Sovereign was of two descriptions, the “Domaine de la Couronne” and the “Domaine propre du Prince;” the former was public revenue, inalienable;—the latter was his privy Purse, subject to his absolute disposal.

All Lands reunited to the Crown of France, and their profits or revenue, were, in particular, parts of the ” Domaine de la Couronne,” and every part of Canada was reunited to the Crown by the Edict of 1674 which revoked the West India Company to whom it had been previously granted. The words of that Edict are ” nous avons uni et incorporé, unissons et incorporons au domaine de notre Couronne toutes les terres & pays &ca.”1 From the commencement, therefore, of the Royal Government, Canada entire was made a part of the “Domaine de la Couronne,” and consequently all its revenues became the public revenues of the Crown of France.

An express reunion of the particular Fiefs now held by the Crown in Canada was not however necessary to make them part of the “Domaine de la Couronne” for by the law of France and Canada, if the King suffered his private property to be

1. See the “Edits, Ordonnances Royaux, Declarations et Arrets du Conseil d’Etat du Roi concernant le Canada,” edition printed by order of the Legislative Assemhlv of Canada, 1851, page 74.

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administered as part of the public funds during ten years, such property was absolutely re-united to the ” Domaine de la Couronne.”

“Les Biens (says Domat) acquis au Roi par des titres particuliers passent au Domaine (de la Couronne) lorsqu’ils ont été tenus & possédés de la même manière & aux mêmes conditions qu’il tient &possède les biens du Domaine. Ainsi tous les biens qui sont expressément consacrés, unis, & incorporés à la Couronne ou qui ont été tenus, & administrés par les Receveurs Officiers du Roi pendant dix ans & sont entrés en ligne de compte sont réputés & sont en effet des biens du Domaine Ces sont les termes de l’Article.2 de l’Ordonnance de Février 1566, sur le Domaine.”

It is certain that before the conquest, the Cens et rentes & lots et ventes in particular, which are all the profits which His Majesty derives from lands held of him en roture, were received by the Intendant or other Officers, and applied to the general Expences of the Province. The author of the Histoire Politique expressly enumerates them as forming a part of the finances or public revenues of the Province, under the French Government.a

That this was the fact is also apparent from the Report of General Murray of the 5th of June 1762, “upon the ancient Government and then state of the Province of Quebec” in which under the heads of public Revenues prior to the Conquest he enumerates “the King’s Ports,” “the duty on liquor imported” “the King’s Lods ” & Ventes & Cens et rentes ” “duties on dry goods imported and exported ” ” the droit ” d’aubaine ” ” de déshérence ” & ” d’épave.”1

The Lands in Canada held of the Crown of France en roture were by the Conquest and Cession transferred to the Crown of Great Britain, and they were shortly after recognized by His Majesty to be objects of public revenue, for by letters Patent under the great seal of England, dated the 10a of July 1765, Sir Thomas Mills was appointed the Receiver General & Collector of all “the royal patrimony, rents, revvenues, farms taxes, tythes, duties, imports, profits & casualties whatsoever, (the Revenue of the customs excepted) belonging to His Majesty, which then had arisen or might thereafter arise within the Province of Quebec.” And by his Instructions,2 to which the Commission refers, he is directed generally to apply the monies which he shall collect, ” for and towards defraying the necessary Expences of Government, ” and the necessary charges of managing the Revenue under his care,” and to remit home the surplus, ” in order that the same may be applied to the reimbursing the Public here (that is in Great Britain) the monies which have been necessarily advanced for the Province of Quebec.” (1)

And this appropriation of the Revenues, yielded by the lands held en roture of the Crown was afterwards confirmed by the Crown in the 6th Clause of the Act 14 Geo: III c. 88, which enacts “that the territorial and casual revenues, fines rents ” and profits whatsoever, which were reserved to, and belonged to, His Most Christian Majesty before and at the time of the Conquest & surrender thereof to His Majesty the King of Great Britain, shall remain and be continued to be levied collected and paid, in the same manner, as if that Act had never been made.”3

Accordingly the territorial and casual revenue of the lands held of His Majesty en fief & en roture which was received from the Conquest until the establishment of the new Constitution in 1792, was regularly applied to the public Expences of the Government; and on the 29th of April 1794, the Legislative Council and House of Assembly were by message from His Excellency Lord Dorchester4 informed that ” the

a Vide Histoire Politique Vol. 6, page 143. (1) Vide Mazeres collection of Papers, &ca, relating to the state of the Province of Quebec, p. 153 to 159.

1. See Constitutional Documents, 1759-1791. Shortt and Doughty, 1907, page 42. 2. The Instructions to the Receiver General are entered in the Minutes of the Legislative Council, Quebec, Book B, page 176. 3. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 408. 4. See page 262, note 2.

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casual and territorial revenue of the Province, His Majesty liad been most graciously pleased to order to be applied towards defraying the Civil Expences of the Province.” (1.) And since that time in the annual accounts of the Receipts and expenditure of the public revenue which are laid before both Houses of the Legislature the quints, lods & Ventes, and cens et rentes, which have been received, have been regularly entered and accounted for, as parts of the Public Revenue (2.)

I shall not trouble Your Excellency with any further observations to prove that the casual and territorial revenues of Cens & Ventes, quints, & lods & Ventes, are parts of the public revenue. And as to the remaining Argument, assigned to prove the irregularity of proceeding to the Confection of the papier terrier, namely, “because His “Majesty has not divested himself of the management of his territorial Revenue,”1 I cannot see in what manner it applies :—The fact is undoubted that the management of the territorial revenue is wholly in the hands of the Crown. But as I have before stated, the making of the papier terrier in no shape affects the Revenue, nor the management of the Revenue, it has nothing to do with either : And therefore it is impossible to suppose that the address is au interference, either with respect to the Revenue itself, or with respect to its management.

Before I conclude, I must request Your Excellency’s permission to refer to my report of the 4th of April last upon the Bill for the relief of persons holding lands or immoveable property of His Majesty en roture.2 In that Report I stated to Your Excellency, that the general object of the House of Assembly in their proceedings with respect to the Lods & Ventes was to effect a conversion of the present feudal tenures into free and common soccage. The whole of the resolutions upon the subject of lods & Ventes, passed in the House the same day, the 2nd of February, and the last which was the resolution for the address to Your Excellency, praying for the confection of the papier terrier, was meant to procure that information which with a view to His Majesty’s Interests, will be indispensibly necessary when the conversion of the tenures is taken into consideration at a subsequent Session,

After what I have already said, it is scarcely necessary to add, that T see not the smallest irregularity in proceeding to the confection of the Papier Terrier and Censier of His Majesty’s Domaine.

All which, nevertheless, is most humbly and respectfully submitted by

Your Excellency’s most obedient & most humble Servant

J. SEWELL. Attorney General.

Quebec, 15 May 1801 R.S.M.

Endorsed

I. Copy. Attorney General’s Report.

In Lieut. Govr Milnes’s No. 48 To the Duke of Portland.

(1) Vide Journals of the House of Assembly of 1794, p. 230 (2) Vide the Journals of the House of Assembly 1794, 1795, 1796, 1797, 1798, 1799 1800 & 1801, wherein these accounts are entered.

1. See the Protest of Chief Justice Osgoode, page 273. 2. See page 264 for this report.

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MILNES TO PORTLAND.1

Quebec 12th June 1801

N°54

MY LORD,—

In my Despatch N° 483 I had the Honor to refer to your Grace for His Majesty’s directions the admissibility of Protests in the Executive Council of this Province.

It is with regret that I have now to state that since I wrote that letter the subject has again been brought forward in Council, but having already entered largely into it, I may be excused by your Grace if at this time I merely relate what has subsequently taken place, and add a few observations on the Subject.

On a Summons of the only Council which has been held since that in which I approved the Report of the Committee of the whole Council on the(‘Writing subjoined by the Chief Justice to their former Report, Mr. Ryland the Clerk of the Council received about an hour before the Members met, a Letter from Mr. Osgoode, a Copy (A)3 of which I have the honor to transmit—inclosing a Dissent or Protest against the approval and order of entry made in the last Council respecting the before mentioned Report.

The inadmissibility of this Dissent or Protest was debated in the Council, the Majority of the Members appearing to be against its admission, Mr. Osgoode and Mr. Young only being for it. I however avoided a decision on the Subject by declaring to the Board that it was my Intention to send all the Documents relating to this Transaction home that they might be laid before his Majesty which, as your Grace will observe by the Inclosure (B)4 put au end to these unpleasant and distressing Debates.

I have since been led to examine more minutely the Minutes of former Councils and I may now assure Your Grace that there is not one Precedent of a Protest against the Proceedings or Orders of the Governor in Council Previous to the Establishment of the present Constitution when the Executive and Legislative Councils were blended together. Dissents were allowed to be introduced into the Reports of Committees, more particularly during the Administration of Lieut. Governor Hamilton and Hope, but since the year 1792 I can find but one Instance (C) of a dissent even in a Committee, and this is simply stating the name of the Person (Mr. Young) dissenting, at the Conclusion of the Chairman’s Report, and I am credibly informed it was admitted from some peculiar Circumstances foreign to this subject.5

Before the year 1792 there appears in the Council Book a peculiar Transaction which took place under Lord Dorchester’s Government. The Clerk having entered on the Minutes the Names of the Members who voted for and against an Order made by His Lordship in Council, at the next Meeting of the Board as Your Grace will see by the Transcript (D) His Lordship directed the names to be struck out,” and from this I am led to conclude that his Lordship considered it as a Principle that no Dissent from the Orders made by the Governor with the advice of the Majority of the Board could be allowed to appear. I find however one Instance (E) in which His Lordship on making an Order in Council respecting the Table of Fees on the 39th of August 1795 permitted the Words ” upon a Division ” to be entered in the Minutes, hut the names of the Members as they divided are not noticed.7

1. From the copy in the Canadian Archives, Q. 87, pt. 1, page 105. 2. See pace 270. 3. See page 280. 4 Se? prge £80, note 3. 5. The entry of the dissent referred to appears in the Minutes of the Committee of the Whole Council respecting the Public Accounts for ‘March 5th, 1796. It may be found in State Bofk B, Lower Canada, page 26?. 6. For the order of Lord Dorchester, see page 271, note 2. 7. The entry occurs in the Minutes of the Executive Council respecting Lands. See Land Book D, Lower Canada, page 43.

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It is proper for me to remark to Your Grace with respect to the second Reason assigned by the Chief Justice, in his last Protest, that there did not appear to be a Member when this Matter was debated in Council in my presence, except himself, who considered the Proceeding as adduced by him as bearing the Construction which he put upon it, that the right of protesting was not at all under the consideration of the Committee when they made their Remonstrance (F)1 to General Prescott, but merely the Right to have their Report on Matters referred to them, entered on the Minutes, which Right had been denied by the General, who asserted that the Governors of the Province had always exercised the sole power of directing what Papers ¡should or should not be entered on the Minutes.

I have had the Honor in my former Dispatch (N°. 48) to state to your Grace more generally how I then considered the Subject, and that no such Privilege as that of Protesting is given by the Royal Instructions, freedom of Debate and Vote only being mentioned as the allowed Right of the Members of the Executive Council.2 Under these Circumstances I could not but consider it as my Duty, not to admit of such an Innovation, but to transmit to Your Grace the whole subject matter, but on an occasion of such magnitude His Majesty’s pleasure might be obtained, and the point in question be henceforth perfectly understood.

I must again remark, that in a Colony differing both in Religious and Political opinion it may be of serious Consequence to admit the Privilege of Protesting, more particularly if it is considered that with the present constitution it may be more advisable to strengthen than to lessen the Power of the Person administering the Government, and I cannot but submit to your Grace that, without effecting any useful purpose, Protests are calculated to produce and maintain Dissensions between the Governor and Council, and would become a Means in the hands of the Members at variance with the Governor to impede the measures brought forward by him, & hence would arise a Disinclination on his part to refer matters to the Council. I may be permitted also to remark to your Grace that this Privilege may be the Occasion of the Suspension of Members, and the consequent necessity of a continual Explanation and reference to His Majesty’s Ministers.

I inclose a Copy (G)3 of a Letter from the Chief Justice announcing his Intention of returning by this Fleet to England which is the only official Information I have had of his being about to leave the Province.

I have the Honor to be, My Lord Your Grace’s most obedient and most humble servant

ROBT. S. MILNES

His Grace The Duke of Portland &c &c &c Endorsed: Quebec 12th June 1801 Sir R. S. Milnes R 20th July N°. 54 (seven inclosures)

1. See pagé 231. 2. See Article 9 of the Instructions to the Governor-in-Chief, page 16. 8. In this letter addressed to the Secretary to the Lieutenant-Governor, the Chief Justice states that he proposes availing himself of His Majesty’s leave of absence and asks that he be informed when he may receive His Excellency’s commands for England. See the Canadian Archives, Q. 87, pt. 1, page 130.

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OSGOODE TO RYLAND.1

Monday 25th May 1801 10 O’clock A.M.

SIR,

Herewith I transmit my dissent from the Approval and Order of Entry of the Report laid before the Board of Council on Friday the 8th of May,2 which I will beg of you to enter in the Council Book to be read at the next Meeting of the Board.3

I am, Sir with due Regard your very humble servt. WM. OSGOODE

H. W. RYLAND Esqr Clerk of the Executive Council

(COPY OF DISSENT)

From the Approval and Order of Entry of the Report laid before the Board of Council on Friday 8th May 1801

Dissentient—

1st because it appearing by the said Report that the Paper Writing referred tothe Consideration of the Committee by His Excellency the Lt. Governor which constitutes the Gorpus delicti has been expunged from the Proceedings and it further appearing by the said Report that the Paper Writing left by the Chief Justice with the Committee on the 6th May last which contained his justification has been suppressed, there remains only upon the Record, the Judgement of the Committee so that upon the face of the proceedings as transmitted to the Secretary of State the Party stands before His Majesty with his Crime unknown, his defence unheard, and his condemnation manifest, which is plainly subversive of the first principles of natural Justice.

2dly Because the said suppressed justification contained an extract from a paper now remaining of Record on the Files of the Council Office presented to His Excellency General Prescott from a Committee of the whole Council consisting of the Chief Justice, the Lord Bishop of Quebec Messra. Finlay, Baby, Dunn and Young in which they declare that “they avow a responsibility to His Majesty under the solemn and saered obligation of an Oath but cannot imagine that any person of

1. From the copy in the Canadian Archives, Q. 87, pt. 1, page 110. Herman Witsius Kyland was born in Northampton, England, in 1760. In 1781, he entered the service as Assistant Deputy Paymaster General to the Forces in North America and on the close of the War returned to England with Sir Guy Carleton. When Lord Dorchester resumed the Government of Lower Canada in 1793, Mr. Kyland accompanied him as Principal Civil Secretary. In 1796, he was appointed Clerk of the “Executive Council a position which he held until his death. In 1802, he succeeded Mr. Pinlay as Clerk of the Crown in Chancery. Mr. Kyland was one of the most zealous advocates of the claims of the English party and vigorously supported the policy of Sir James Craig. He was sent to England by Craig in 1810 on an important political mission which, however, proved to be unsuccessful. In December, 1811, he was appointed to the Legislative Council. His relations with Sir George Prévost were none too happy and in 1813 he resigned the office of Civil Secretary. He retained his position in the Legislative Council until March, 1838. He died at Beauport, July 20th, 2. Por this report see page 273. 3. At the meeting of the Executive Council, held on the 25th of May, the Chief Justice moved ” that the Dissent from the Approval and Order of Entry of the Keport laid before the Board of Council on Friday, the 8th of May last by him delivered to the clerk of the Council be entered on the Minutes of Council.” His Excellency then informed the Board ” that ae should defer putting the Question on this Motion till His Majesty’s pleasure respecting the Right of the Members to enter protests or Dissent on the Minutes of the Executive Council should be made known.” See the Minutes of the Executive Council, State Book C, Lower Canada, page 186

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common discretion would knowingly subject himself to responsibility for his Conduct and at the same time be debarred from the Privilege of explaining his motives: humbly conceiving that the Spirit of British Polity whether domestic or Colonial does in no case exact such unreasonable conditions from persons who engage in Civil Duties,”‘1 which declared and recorded opinions have in the prent (present) case been disavowed as well in the debate which took place as by the Result of the said Report, a Result which tends to take away the Priviledge of entering a Dissent or protest and to destroy a Right inherent in every Member of a Privy Council.

(signed) WM. OSGOODE R.S.M.

Endorsed : A.

Letter from the Chief Justice to the Clerk of the Executive Council inclosing his Dissent &c da : 25th May 1801

In Lt. Governor Milne’s N°. 54 To the Duke of Portland.

PORTLAND TO MILNES.2

Sir Robt. Shore Milnes Bart

Whitehall 13th July 1801

Sir,

I have had the honour to lay before the King your Letters numbered 48 and 49, with your separate and secret letter of the 26th of April.3

I have fully considered all the circumstances stated in those letters, and although in point of form, it would have been more correct if the object of Lord Dorchester’s message of April 1794, had been renewed by a Message from yourself as His Majesty’s Representative, yet I cannot have any doubt but that the proceedings of the Legislature in bringing forward the ” Act for the relief of Persons holding Lands of His Majesty en roture on which Lots & ventes are due,” were fully warranted by the Message of Lord Dorchester above alluded to, and that they were so understood at the time by His Majesty’s then actual Government in Lower Canada. I am, at the same time, willing to believe, from the general character and conduct of Mr. Osgoode, that his opposition to the Bill proceeded from laudable motives, and I cannot therefore but the more regret that the want of communication on his part should have prevented those steps from being taken, which, in a great measure, would have obviated his objections.

With respect to the policy of the measure, I consider it as declaratory of the Rights of the Crown, at the same time that it renders the exercise of those Rights under certain regulations more practicable and less burthensome to the Subject.

As to the pplication of the Sums arising from the exercise of those Rights, it is properly left to His Majesty to apply them to such of the Publiek Services of the Province as He shall judge most proper : and so far it is clear, that no Act is necessary for the application of those Sums.

The House of Assembly will of course repay, by such Ways and Means as they shall judge proper, the Loan of £4000 which you very properly advanced (in consequence of their Address) for the purpose of completing the Court Houses.

1. See the motion of the Chief Justice of January 5th, 1799, entered in the Minutes of the Executive Council for March 25th, 1799, page 233. 2. From the copy in the Canadian Archives, Q. 78A, page 164. 3. Milnes’ letter No. 48 is given at page 270. The secret letter of the 29th of March discusses the personal relations between the Lieutenant-Governor and the Chief Justice, but contributes nothing further to the constitutional issue.

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With respect to the question of entering Protests on the Minutes of the Executive Council which is discussed so much at large in N°. 48, and its Inclosures, it appears to me that no better rule can be laid down than that by which His Majesty’s Privy Council here is guided in similar cases.

Although the most unreserved liberty of Speech is allowed to all Members of that Board, in the same manner as it is granted to the Executive Councillors of Lower Canada by His Majesty’s Instructions,1 I have reason to believe, that not a single instance is to be found on the Minutes of the Privy Council (and occasions most certainly have not unfrequently occurred, and indeed must of necessity often occur) where the sentiments of the Members present diametrically differ from each other.

Having thus stated to you what appears to have been the invariable practice here in cases similar to that in which Mr. Osgoode’s Protest was entered, I think it unnecessary to enter into any discussion on the question of a right which has never been attempted to be exercised, nor has ever been laid claim to.

In answer to your letter inclosing a Memorial from the Attorney General of Lower Canada, together with several Papers in support of it, I am to acquaint you, that I do not disapprove of his being allowed, in addition to his regular Salary, such Fees for the future, as may be, either settled by Ordinance, or approved by a Report of the Council.

I am &c PORTLAND

REFERENCE TO THE ATTORNEY AND SOLICITOR GENERAL RESPECTING COURT OF KING’S BENCH.2

Castle of St. Lewis

Attorney & Solicitor

General

Quebec 22nd July 1801

Gentlemen

I am commanded by His Excellency The Lieutenant to desire your opinions upon the following Questions.—

1st. Can or Cannot a Criminal Term of the Court of King’s Bench for the District of Quebec be held under the Provincial Statute 34 III. C 6.—without the presence of the Chief Justice of the Province.3 2nd. If such a Term may be held without the presence of the Chief Justice of the Province, then of what persons under the above mentioned Statute must the Court in such a Case be constituted.— 3rd. If such a Term cannot be held without the presence of the Chief Justice By what means can the Defect thereof

I am &c H. W. RYLAND.

1. See Article IX. of the Instructions to the Governor-in-Chief, page 16. 2. From the original copy in the Letter Book of the Governor’s Civil Secretary, Canadian Archives, G. 428, page 276. 3. This situation was created by the departure of Chief Justice Osgoode.

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REPORT OF THE ATTORNEY GENERAL AND SOLICITOR GENERAL.1

Copy

To His Excellency Sir Robert Shore Milnes Bart. Lieutenant Governor of the Province of Lower Canada &c &c &c.

May it please your Excellency,

In obedience to the Commands of your Excellency we have now the honor of submitting our opinion upon the several questions contained in Mr. Secretary Ryland’s Letter of the 22nd Instant;

The 1st Clause of the Provincial Statute 34 Geo : III . c. 6.2 enacts that the Province of Lower Canada shall consist of three Districts; vizt. Quebec, Montreal and Three Rivers, and the second Clause is in the following words ” And be it further enacted by the Authority aforesaid, that there shall be constituted and erected in each of the aforesaid Districts of Quebec and Montreal respectively; a Court to be called the Court of King’s Bench; that the Court of King’s Bench for the District of Quebec shall consist of His Majesty’s Chief Justice for the said Province and three Puisne Justices; and the Court of King’s Bench for the District of Montreal shall consist of His Majesty’s Chief Justice of the said Court and three Puisne Justices ; and that the said Courts in the respective Districts aforesaid, shall have original jurisdiction, to take Cognizance of, hear, try and determine in the manner hereinafter enacted, all Causes as well Civil as Criminal, and where the King is a party, except those purely of Admiralty Jurisdiction and such as are, herein after excepted, and provided for the inferior District of Gaspé, as part of the said District of Quebec.”

By this clause the constitution of each Court is precisely declared and the several persons of whom the said Courts are respectively to consist, as well for the trial of Criminal as of Civil Causes, are expressly named.

The second Clause also declares as above stated “That the said Courts” that is the Courts of the two Districts thereby constituted, “shall in their respective Districts, hear, try & determine, in the manner therein after enacted, all Causes1 as well Civil as Criminal : ” and the third Clause accordingly afterwards declares the number of Judges by whom and the times at which Criminal Offences may be heard, this third Clause in these words ” And for the Administration of Justice in Criminal Cases, it is further enacted, by the authority aforesaid that there shall be held by two or more Justices of the said Court of King’s Bench, one of whom shall always be His Majesty’s Chief Justice of the Province, or the Chief Justice of the Court of King’s Bench at Montreal, within each of the aforesaid Districts of Quebec and Montreal, two Sessions of the Court of King’s Bench in every year, for the Cognizance of all Crimes and Criminal Offences, at the times and places hereafter mentioned, to wit, at the City of Quebec, the last ten days in the Months of March and September, and that every Juridical day during the said Sessions shall be a return day ”

But this third Clause must necessarily (as we conceive) be understood with relation to the Courts of the two Districts respectively, for it only defines the manner of hearing and determining Criminal Causes, which is mentioned in the second Clause; which manner of hearing and determining Criminal Causes, is by that Second Clause pre-declared to relate to the Courts of the two Districts respectively as thereby constituted. The enacting words of this second Clause (after declaring what persons shall constitute the Court of King’s Bench, in each of the said two Districts respectively) being ” that the said Courts in the respective Districts afore-

1. From the copy in the Canadian Archives, Q. 87, pt. 1, page 275. 2. See page 125.

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said shall have original jurisdiction to take Cognizance of, hear, try and determine in the manner herein after enacted, all Causes as well Civil as Criminal.”

It is certainly clear that the Chief Justice of Montreal can have no Jurisdiction in the Court of King’s Bench for the District of Quebec,1 unless he be one of the Justices of that Court, or, in other words one of the persons of whom that Court is by Law declared to consist; any construction therefore of the Act in question, by which it is held, that the Chief Justice of Montreal ean, with two Puisne Justices of the Court of King’s Bench for the District of Quebec, hold a Criminal Term of that Court, necessarily makes the Chief Justice of Montreal a constituent part of the Court of King’s Bench for the District of Quebec, and consequently declares that that Court consists of the-Chief Justice of the Province, the Chief Justice of Montreal, and three Puisne Justices, contrary to the positive terms of the second Clause, above recited ; which declares that, ” the Court of King’s Bench for the District of Quebec “shall consist of His Majesty’s Chief Justice of the Province and three Puisne Justices ” only.

It can only be implied from the ambiguity of the third Clause that a Criminal Term of the King’s Bench for the District of Quebec can be held without the presence of His Majesty’s Chief Justice of the Province and this in our opinion, cannot be, because the Act, with respect to the questions submitted is clearly a criminal Statute of the greatest magnitude; and all criminal Statutes must be construed strictly.

For these Reasons we are of opinion, that a Criminal Term for the Court of King’s Bench, for the District of Quebec, cannot be held under the Provincial Statute 34 Geo : ILT c. 6. without the Presence of ‘the Chief Justice of the Province. And that the Defect of such a Term can be legally supplied by Commissions of Oyer and Terminer and general Goal Delivery.

All which nevertheless is most humbly submitted to your Excellency great Wisdom by

Your Excellency’s M, o. & v. h. sts.

signed

J. SEWELL Atty. Genl. L.C. FOUCHER Solr Genl2 R S M.

Quebec 30th July 1801 Endorsed : Copy (5) 30th July 1801 Report of the Attorney and Solicitor General In Lieut. Gov1. Milnes’s N°. 61 to the Duke of Portland.

1. The suggestion had been made that a special commission should be issued authorizing the Chief Justice of Montreal to sit and preside in the criminal terms of tne Court of King’s, Bench for the District of Quebec. (See Canadian Archives, Q. 87, pt. 1, page 273.) 2. See page 342, note 2.

[Page 285]

Mr. RYLAND TO CHIEF JUSTICE MONK.1

Castle of St. Lewis Quebec 3rd Septr. 1801

Chief Justice Monk

Sir

I am commanded by His Excellency the Lieutenant Governor to acknowledge the receipt of your Letter of the 15th Ultimo.

His Excellency the Lieutenant Governor after mature reflection thinks it necessary that a Commission of Oyer and Terminer and General Goal Delivery should issue to Supply the defect of the next Term of the King’s Bench for this District directed to the Chief Justice of the Province the Chief Justice of Montreal and the Justices of the King’s Bench of Quebec the Two Chief Justices being of the Quorum. He is of opinion that the Act of the Legislature commonly called the Judicature Act has rendered this measure requisite and that a Special Court to Supply the accidental defect of a Criminal Term of the Court of King’s Bench ought to be composed of the characters to whom the Legislature has thought proper and necessary to entrust the execution of the Criminal Law and to no others and that the powers to be given to it ought to be as ample if Possible as those entrusted to the Court the want of which it is meant to Supply His Excellency therefore feels himself bound in duty to issue the Commission he has mentioned in the manner above stated and orders to this Effect will be immediately issued. At the same time His Excellency regrets that this measure will subject you to a duty inconvenient to yourself and in some degree repugnant to your feeling’s which it would therefore be his inclination to avoid imposing upon you but considering the measure to be necessary he finds himself restrained from permitting any Consideration to prevent the adoption of it.2

I am &c

H. W. RYLAND.

PROCEEDINGS RELATING TO THE EXPULSION OF MR. BOUC FROM THE HOUSE OF ASSEMBLY, LOWER CANADA.3

JOURNAL OF THE HOUSE OF ASSEMBLY OF LOWER-CANADA.

Monday, 31st March, 1800.

THE Order for taking into consideration the Copy of the Record of the Proceedings upon the Indictment, in the Court of King’s Bench, for the District of Montreal, against Charles Baptiste Bouc,4 Esq. a Member of this House; and also for the said

1. From the original copy in the Letter Book of the Governor’s Civil Secretary Canadian Archives, G. 428, page 298. 2. When it was decided to issue a Commission of Oyer and Terminer and General Gaol Delibery, Chief Justice Monk pointed out that Articles V. and VI. of the Judicature Act (See page 127) suspended the execution of Judgment until the approbation of the Lieutenant- Governor had been received and required from a majority of the Judges a detailed report of the more important cases which came before them. At the same time he expressed the hope that “Your Excellency will not find it requisite to place me under such a duty from the circumstance of the Chief Justice’s absence.” See the Canadian Archives, Q. 87, pt. 1, page 280. 3. From the Journal of the House of Assembly of Lower Canada for the years 1890 1801 and 1802. 4. Charles Bouc was elected for the County of Effingham in 1796 and again at the general election held in the summer of 1800. (See page 250 note 1).

[Page 286]

Mr. Bouc’s attending in his place, being read—the House proceeded to take the same into consideration.

And the said Copy of the Record of the said Proceedings in the Court of King’s Bench was read, and is as follows :1

* * * * * * * * * *

And the said Mr. Bouc attending in his place, pursuant to the said Order of the House of the 19th instant, he was heard in his defence, and afterwards withdrew.

Mr. Attorney General then moved to resolve, seconded by Mr. Lees, that it appearing to this House by the said record that Charles Baptiste Bouc, Esquire, a member of this House, upon the indictment in the Court of King’s Bench for the district of Montreal in this Province, exhibited against him, hath been convicted of the crime of conspiracy with sundry other persons unjustly and fraudulently to obtain of Etienne Dtouin divers large sums of money, the said Charles Baptiste Bouc be expelled this House.

* * * * * * * * * *

Mr. Grant moved, seconded by Mr. Papineau, in amendment to Mr. Attorney General’s motion, that the words ” be expelled this House,” be left out, and the following words substituted in their place: “be heard by his counsel at the Bar of this- ” House on Wednesday next at three o’clock in the afternoon.”

The House divided upon the question; Yeas 13 Nays 13

And Mr. Speaker gave the casting vote in the affirmative.

The main question as amended being then put a division again ensued which proved to be the same as the last mentioned, and the names being called for they were taken down as follows, viz.

Yeas.

Mr. Speaker, Messieurs Martmeau, Paquet. Begin, Durocher, Taché, Huot, Berthelot, Dumals, Grant, De Rocheblave, Bedard, Planté and Papineau.

Nays.

Messieurs T. Coffin, Cuthbert, Lees, N. Coffin, Menut, Black, Bernier, Allsopp, Auldjo, Fisher, Young, the Attorney General and Craigie.

And the same being carried in the affirmative.

RESOLVED, that it appearing to this House by the said record, that Charles Bte. Bouc, Esquire, a member of this House, upon the indictment in the Court of King’s Bench for the District of Montreal in this Province, exhibited against him, hath been convicted of the crime of Conspiracy with sundry other persons unjustly and fraudulently to obtain of Etienne Drouin divers large sums of money, the said Charles Baptiste Bouc, be heard by his Counsel at the Bar of this House on Wednesday next at three o’clock in the afternoon.

* * * * * * * * * *

1. The text of the record is omitted. The charge was that Charles Baptiste Bouc and others ” wickedly and maliciously devising and intending unjustly to empoverish, vex, oppress and aggrieve one Etienne Drouin, and also unjustly and unlawfully to obtain and acquire to themselves of and from the said Etienne Drouin divers large sums of Money did among themselves conspire, combine, confederate and agree falsely and without any reasonable or probable cause whatever, to charge and accuse the said Etienne Drouin with having fraudulently moistened and wetted a certain large quantity of Wheat.” Mr. Bouc was convicted of the charge and the judgment of the court was ” that the said Charles Baptiste Bow be imprisoned in the common gaol of the said district, during the space of three calendar months, that he do pay a fine of twenty pounds to our said Lord the King, and that he do find security for his good behaviour for f,he space of three years next after his discharge ”

[Page 287]

Wednesday, 2d April, 1800.

THE Order of the Day for hearing Counsel at the Bar, in behalf of Charles Baptiste Bouc, Esquire, a Member of this House, being read,

Mr. Bouc, with his Counsel Alexis Caron, Esquire, Attorney and Advocate at Law, appeared at the Bar accordingly; and Mr. Speaker having asked Mr. Bouc whether he would come within the Bar, and take his seat, he answered that he preferred to remain with his Counsel.

And Mr. Caron being, then heard in behalf of Mr. Bouc, they afterwards withdrew.

Mr. Attorney General then moved to resolve, seconded by Mr. Lees,

That this House, by their resolution of Monday last, having voted, that it appeared to this House, by a Record of the Court of King’s Bench, for the District of Montreal, then read, that Charles Baptiste Bouc, a Member of this House, upon an Indictment in the aforesaid Court exhibited against him, had been convicted of the crime of Conspiracy, with sundry other persons, unjustly and fraudulently to obtain of Etienne Drouin, divers large sums of money, the said Chhries Baptiste Bono be expelled this House.

Thereupon debates arose,

And Mr. Lees moved the previous question, seconded by Mr. Craigie, Shall the question be now put?

The House divided thereon, Yeas 19 Nays 10

Majority of nine in the affirmative.

Accordingly the main question was put, a division again ensued, Yeas 21 Nays 8

* * * * * * * * * *

So the same being carried by a majority of thirteen,

RESOLVED, that this House by their resolution of Monday last having voted, that it appeared to this House by a record of the Court of King’s Bench for the District of Montreal, then read, that Charles Baptiste Bouc, a Member of this House, upon an indictment in the aforesaid Court exhibited against him, had been convicted of the crime of Conspiracy, with sundry other persons, unjustly and fraudulently to obtain of Etienne Drouin, divers large sums of money; the said Charles Baptiste Bouc be expelled this House.

* * * * * * * * * *

Saturday, 24h January, 1801.

* * * * * * * * * *

THE order of the day for taking into consideration the Record of Proceedings in the Court of King’s Bench for the District of Montreal, upon an indictment against Charles Baptiste Bouc, Esquire, a member of this House, and the Proceedings and Resolutions of the last session of this House, in the months of March and April last, against the said Mr. Bouc being read—

The House proceeded to take the same into consideration.

And the said copy of the said Record, and the said Proceedings and Resolutions of this House were read.

Mr. Planté moved, seconded by Mr. Berthelot, that this House do now resolve itself into a Committee of the whole House to take the said proceedings into consideration.

[Page 288]

Mr. Solicitor General moved in amendment, seconded by Mr. Walker; that all the words of the motion except the word ” that ” be struck out, and the following substituted—”As it appears by the Record of the Court of King’s Bench for the district of Montreal, that Charles Baptiste Bouc, a Member of this House, upon an Indictment in the aforesaid Court exhibited against him, had been convicted of the crime of Conspiracy, with sundry other persons, unjustly and fraudulently to obtain of Etienne Drouin divers large sums of money—And whereas the said Charles Baptiste Bouc, in consequence thereof, was expelled during the last Session, that he be expelled this House.

Thereupon debates arose.

A Member in his place, informed the House that he was present at the last Election of Knights of the Shire to serve in this present Provincial Parliament, for the County of Effingliamj that he” is well acquainted with the person of Mr. Bouc, who is returned to serve for the said County, and that he is the same identical Charles Baptiste Bouc who was expelled this House during the last Session.

And the question being put, ” that the proposed amendment do pass ? ”

The House divided.

Yeas 26 Nays 9

So it was carried in the affirmative by a majority of seventeen.

Then the main question as amended, was put; a division of the House again ensued; and the names being called for, they were taken down and are as followeth; Videlicet.

Yeas, Messieurs Gouin, Baby, Bell, Coffin, Boss Cutlibert, the Solicitor General, Mr. Justice De Bonne, Mr. Justice Panel. Messrs. Boucher, Vigé, Perinault, Walker, Baymond, Caldwell, James Cuthbert, Hubert, The Attorney General, Messieurs Lees, Yoimg, Steel, Lester, Planté, Taschereau, Badgley, McGill, Menut, and Martineau.

Nays,

Messieurs Bedard, Berthelot, Menard, Poulain, Archanibault, Tettier, and Nadon. RESOLVED, that as it appears by a Record of the Court of King’s Bench for the District of Montreal, that Charles Baptiste Bouc, a member of this House, upon an Indictment in the aforesaid Court exhibited against him, had been convicted of the Crime of Conspiracy, with sundry persons, unjustly and fraudulently to obtain of Etienne Drouin fivers large sums of money —And whereas in consequence thereof, the said Charles Baptiste Bouc, was expelled during the last session—That he be expelled this House.

* * * * * * * * * *

Friday, 30th March, 1801.

* * * * * * * * * * *

Mr. Lees moved, seconded by Mr. Steel,

That the return of the Clerk of the Crown for a Member to serve in this House for the County of Effingham, be now read,

The House divided upon the question,

Yeas 14 Nays 1

And the same being carried in the affirmative,

The said Return was read accordingly.

[Page 289]

On motion of Mr. Lees, seconded by Mr. Huot,

ORDERED, that the proceedings of this House on the 2d day of April, 1800,1 relating to Charles Baptiste Bouc, be now read:

And the said proceedings were read.

ORDERED, that the proceedings of this House on the 24th day of January last relating to Charles Baptiste Bouc, be now read:

And the said proceedings were read.

Mr. Lees moved, seconded by the Attorney General to resolve that Charles Baptiste Bouc, a Member returned fo serve in this House for the County of Effingham, be expelled this House, for the reasons set forth in the Resolutions of this House of the 2d day of April, 1800, and of the 24th day of January last;

The House divided upon the question, and the names being called for, they were taken down as follows:

Yeas,

Messieurs Martineau, Taschereuu, Craigie, Vondenvelden, Menut, Young, Huot, Bocheblave, Gouin, Steel, Justice Panet, Caldwell, the Attorney General, Lester, Walker, Lees and McGill.

Nays,

Messieurs Berthelot, Pierre Bedard and Tellier.

RESOLVED, the Charles Baptiste Bouc, a Member returned to serve in this House for the County of Effingham, be expelled this House, for the reasons set forth in the Resolutions of this House of the 2d of April, 1800, and of the 24th day of January last.

* * * * * * * * * *

Friday, 12th February, 1802.

* * * * * * * * * *

Mr. Speaker informed the House, that the Return of the Clerk of the Crown in Chancery of a Member to serve in the present Provincial Parliament, in the place of Charles Baptiste Bouc, expelled this House, had been duly made and was upon the Table.

ORDERED, that the said Return be now read.

The said Return was accordingly read by the Clerk, and the same is as followeth, videlicet:

Office of the Clerk of the Crown in Chancery, Quebec, 12th February, 1802.

“By a Warrant from the Honorable Speaker of the House of Assembly, directed to the Honorable Hugh Finlay, Esqr. late Clerk of the Crown in Chancery, it did appear, that by the expulsion of Charles Baptiste Bouc, from the House of Assembly, a vacancy of one Member for the County of Effingham had happened in the said House; Whereupon a Writ signed by His Excellency Sir Robert Shore Milnes, Baronet, the Lieutenant Governor, did issue the first day of April last, for the Election of a Member or Representative to serve in Assembly in the room and stead of the said Charles Baptiste Bouc, so expelled as aforesaid : Now by the Return to the said Writ of Election, bearing date the thirtieth day of April last, it appears that the same Charles Baptiste Bouc, so expelled as aforesaid, had been chosen, and is now returned to Represent the said County of Effingham.

(Signed) HERMAN WITSIUS RYLAND. C.C. in Ch:

To Samuel Phillips, Esqr. Clerk of the House of Assembly for Lower-Canada.

* * * * * * * * * *

1. See page 295, note 2.

[Page 290]

Wednesday, 17th February, 1802.

MR. Mesnard and Mr. Bernier informed the House, that Mr. Bouc, Member for Effingham, had in their presence taken the oath, and attended at the door, and desired to be admitted to take his seat in this House.

* * * * * * * * * *

Mr. Coffin moved, seconded by Mr. Craigie,

That the Clerk of the Crown in Chancery do lay before this House, the Instrument of Indenture required by Law to accompany the Return made by the Returning Officer of the County of Effingham, to the Writ issued for the Election of a Member to represent the said County in the present Provincial Parliament.

Mr. Bedard moved in amendment to Mr. Coffin’s motion, that all the words after “moves,” be struck out, and the following substituted in lieu thereof, that Mr. Charles Baptiste Bouc to now introduced into this House”—and was seconded by Mr. Tellier. Whereupon Mr. Justice De Bonne moved, seconded by Mr. Coffin,

That this House do adjourn to Friday next.

The House divided upon the question.

Yeas 5 Nays 16

So it passed in the negative by a majority of Ten.

The Question upon the proposed amendment being put, it was agreed to unanimously, and the question on the main motion as amended being put, it was agreed to by the House.

RESOLVED, That Mr. Charles Baptiste Bouc be now introduced into this House.

Accordingly Mr. Berthelot, Mr. Vondenvelden and other members, introduced the said Mr. Charles Baptiste Bouc, and he took his seat in the House.

* * * * * * * * * *

Tuesday, 2Sd February, 1802.

* * * * * * * * * *

On motion of Mr. Berthelot, seconded by Mr. Tellier,

OEDEEED, That the proceedings of this House on the 2d day of April, 1800, relating to Charles Baptiste Bouc, Esquire, one of the Members of this House, be now read.

And the said proceedings were read.

ORDERED, That the proceedings of this House on the 23d and 24th of January, 1801, relating to the said Charles Baptiste Bouc, be now read.

And the said proceedings were read.

ORDERED, That the proceedings of this House on the 20th of March last,1 relating to the said Charles Baptiste Bouc, be now read,

And the said proceedings were read,

After which Mr. Bouc rose in his place and declared, that since the proceedings which have been now read, were had, he has procured the means of his Justification, and requested permission to submit the same to the House.

Mr. Coffin moved, seconded by Mr. Steel,

That the Clerk of the Crown in Chancery do lay before this House, the Writ, issued for the election of a Member to Represent the County of Effingham with the Instrument of Indenture required by the Act of the 40th. GEO. 3d. Chap.2 1st to accompany the same, and also such Return as may have been made to the said Writ by the Returning Officer of the County aforesaid.

1. See page 288. 2. Section la of this Act outlines the duties otf the returning officer in connection with the declaration of the result of the election.

[Page 291]

Mr. Bedard moved in amendment, seconded by Mr, Berthelot,

That all the words of Mr. Coffin’s motion after ” moves,” be struck out and the following substituted in lieu thereof, ” That the said Charles Baptiste Bouc, Esquire, be now heard in his place, upon the means ‘of Justification which he has to offer tothis House.”

Mr. Bedard then moved the previous question,

That the question be now put, which being agreed unto unanimously by the House,

The question upon the said amendment was put and the House divided. Yeas 11 Nays 13

So it passed in the Negative by a majority of two. And the main question being put, the House again divided, and the names being called for, were taken down and are as follows:

Yeas,

Messieurs Perinault, Craigie, Menut, Mr. Justice De Bonne, Messrs ‘Steel, Bell, Raby, Young, Rocheblave, McGill, Lester, Taschereau, Coffin, and Perrault.

Nays,

Messieurs Biais, Poulain, Boucher, Mesnard, Martineaw, Tellier, Paquet, Huot, Bedard, and Berthelot.

Majority of four in the affirmative.

ORDERED, That the Clerk of the Crown in Chancery do lay before this House, the Writ issued for the Election of a Member to represent the County of Effingham, with the Instrument of Indenture required by the Act of the 40th GEO. 3d. Chap. 1st. to accompany the same, and also such Return as may have been made to the said Writ by the Returning officer of the County aforesaid.

* * * * * * * * * *

Friday, 26th February, 1802.

THE House proceeded to take into consideration the last Writ and Return* thereon of a Knight Representative of the County of Effingham.

And the said Writ and Return, with the other Documents accompanying the same, were read;

The House being moved that the fourteenth section of the Provincial Act of 40th. GEO. III. Cap. 1st. as also the form No. 6, in the schedule annexed to the said Act, might be read,

The same were read.

Mr. Bedard moved to resolve, seconded by Mr. Berthelot,

That Charles Baptiste Bouc, Esquire, is duly elected a Knight to serve in this present Provincial Parliament, for the County of Effingham.

Mr. Coffin moved in amendment, seconded by Mr. Justice De Bonne,

That all the words after the word “Resolve” be struck out and the following substituted, “That Thomas Porteous, Esquire, Returning Officer for the County of “Effingham, do attend this House on the ninth of March next.”

The House divided upon the question, Yeas 8 Nays 13

So it passed in the negative by a majority of five.

The main question being put, it was unanimously agreed unto by the House. RESOLVED, That Charles Baptiste Bouc, Esquire, is duly elected a Knight to serve in this present Provincial Parliament, for the County of Effingham.

[Page 292]

On motion of Mr. Bedard, seconded by Mr. Berthelot,

ORDERED, That Thomas Porteous, Esquire, late Returning Officer at the last election of a Knight to serve in the Provincial Parliament for the County of Effingham, do forthwith make and send to the Clerk of the Crown in Chancery, a proper and perfect return of Charles Baptiste Bouc, Esquire, elected a Knight to serve in the said Provincial Parliament for the said County of Effingham; and that the Clerk of the Crown in Chancery do annex the same to the Writ returned by him the said Thomas Porfeous.

* * * * * * * * * *

Saturday, 27th February, 1802.

THE Order of the day being called for, the following business was claimed as a matter of Privilege, and, as such, proceeded upon in preference to the order of the day.

On motion of Mr. Bedard, seconded by Mr. Berthelot,

ORDERED, That the proceedings of this House on Tuesday last, relating to Charles Baptiste Bouc, Esquire, a Member of this House, be now read.

And the same were read accordingly.

Mr. Bedard moved, seconded^’by Mr. Berthelot,

That the said Charles Baptiste Bouc, Esquire, be now heard upon the means of justification which he has to submit to this House.

* * * * * * * * * *

RESOLVED, That Charles Baptiste Bouc, Esquire, be now heard upon the means of justification which he has to submit to this House.

Mr. Bouc was accordingly heard in his place, and read divers affidavits and written papers, some in English and others in Erench, but without translations accompanying the same; and declared that he had further means of justification to bring forward, and witnesses to be heard, if permitted to produce the same.

On motion of Mr. Young, seconded by Mr. Perrault,

ORDERED, That the affidavits and papers read by C. B. Bouc, as part of his justification, be brought up.

Accordingly nine papers were delivered in at the Table by Mr. Bouc,

ORDERED, That the said papers be translated,

* * * * * * * * * *

Monday, 22d March, 1802.

The order of the day that Charles Baptiste Bouc, Esquire, a Member of this House, be heard by his Counsel at the Bar and by himself in his place to make good all his means of Justification and produce all the witnesses which he may of right bring forward, being read—

The House proceeded to take the same into consideration,

And Mr. Bouc and his counsel being called,

Alexis Carrón, Esquire, Attorney and Advocate at Law, Counsel for Mr. Bouc, appeared at the Bar and was heard in his behalf, after which he withdrew,

The Attorney General moved to Resolve, seconded by the Solicitor General, That the said Charles Baptiste Bouc hath not availed himself of the Indulgence granted to him by the Resolve of the sixth instant,1 that he hath not made good any of his means of Justification nor produced any witnesses which of right he might have produced.

1. On March 6th, the Assembly had ordered that Mr. Bouc be heard at the Bar of the House ” to make good all his means of justification, and produce all the Witnesses, which he may of right bring forward.” Journals of the House of Assembly of Lower Canada, 1802. page 202.

[Page 293]

Thereupon Debates arose.

* * * * * * * * * *

And the main question being put the House again divided, which proving to be the same as the foregoing, it was accordingly resolved in the affirmative.

The Attorney General moved, seconded by the Solicitor General, to resolve, That the said Charles Baptiste Bouc, hath not shown any sufficient ground for any further extension of the Indulgence granted by the Resolve of this House of the sixth instant.

Debates again ensued,

* * * * * * * * * * *

And the main question being put the House again divided, which proving to be the same as the foregoing, it was accordingly resolved in the affirmative.

The Attorney General moved, seconded by the Solicitor General,

That the proceedings of this House of the 2d of April, 1800, of the 24th day of January, 1801, and of the 20th day of March, 1801, relating to the said Charles Baptiste Bouc, be now read,

The House divided thereon, Yeas 16 Nays 5

Majority of eleven in the affirmative,

And the said proceedings were read accordingly,

The Attorney General moved to Resolve, seconded by the Solicitor General, That Charles Baptiste Bouc, a Member returned to serve in this House for the County of Effingham, be expelled this House for the reasons set forth in the Resolutions of this House of the 2d day of April, 1800, of the 24th day of January, 1801, and of the 20th day of March, 1801, relating to the said Charles Baptiste Bouc; and that he be declared disqualified and incapable of sitting or voting as a Member of this House in this present Parliament.

* * * * * * * * * *

And the same being carried in the affirmative by a majority of eleven, RESOLVED, That Charles Baptiste Bouc, a Member returned to serve in this House for the County of Effingham, be expelled this House for the reasons set forth in the resolutions of this House of the 2d day of April, 1800, of the 24th day of January, 1801, and of the 20th day of March, 1801, relating to the said Charles Baptiste Bouc; and that he be declared disqualified and incapable of sitting or voting as a Member of this House, in this present Parliament.

The Attorney General moved, seconded by Mr. Solicitor General, For leave to bring in a Bill for disqualifying and restraining Charles Baptiste Bouc, from being elected and from sitting and voting as a Member of the House of Assembly1.

1. This resolution was adopted by a note of 15 to 7, and a bill was prepared in accordance therewith. On the- motion for the third reading of this bill on the 23rd March, it was moved in amendment that ” A Committee of five members, whereof three shall form a Quorum, be appointed to prepare and report a Bill, to disqualify and render incapable of being elected to sit or to vote as a Member of the House of Assembly, all persons who shall have been convicted, in a Court of Justice, of the crime of Conspiracy.” This amendment was defeated, and the Bill for the disqualification of Bouc was read a third time and passed. Journals of the House of Assembly of Lower Canada, 1802, page 330.

[Page 294]

AN ACT DISQUALIFYING CHARLES BOUC FROM BEING ELECTED TO THE HOUSE OF ASSEMBLY, LOWER CANADA.1

ANNO QUADRAGESIMO SECUNDO GEORGE III.

CAP. VII

An Act for disqualifying and restraining, Charles Baptiste Bouc, from being elected, and from Sitting and Voting as a Member of the House of Assembly.

(5th April, 1802.)

Preamble. WHEREAS, Charles Baptiste Bouc, late a Member of the House of Assembly of this Province, for the County of Effingham, upon an Indictment2 exhibited against him, in His Majesty’s Court of King’s Bench for the District of Montreal, was at the Session of the said Court of King’s Bench, begun and holden for the said District in the City of Montreal, for the trial of all Crimes and Criminal Offences, on Friday the first day of March, which was in the Year of Our Lord Christ, One thousand seven hundred and ninety nine, convicted of the Crime of Conspiracy, with sundry-others persons, unjustly and fraudulently, to obtain of one, Etienne Drouin, divers large sums of money, and in consequence of such conviction hath been, four times, expelled from the said House of Assembly.

Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Lower Canada, constituted and assembled by virtue of and under the authority of An Act passed in the Parliament of Great Britain 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 Government of the Province of Quebec in North America; ” and to “make further provision for the Government of the said Province,” And it is hereby enacted by the authority of the same, that the said Charles Baptiste Bouc, from and after the passing of this Act, shall be and he is hereby disqualified and rendered incapable of being elected, or of sitting or voting, as a Member of the said House of Assembly, until His Majesty shall be most graciously pleased to pardon, remit and release, the said Charles Baptiste Bouc, of and from the said conviction, and the legal consequences and effects thereof.

PLAN OF A BILL ERECTING A COURT OF CHANCERY IN UPPER CANADA.3

1. Whereas since the Division of the Province of Quebec into the two Provinces of Upper and Lower Canada many Cases have arisen and many more are likely to

1. From The Provincial Statutes of Lower Canada. 2. See page 286, note 1. 3. From the copy in the Canadian Archives, Q. 290, pt. 1, page 96A.

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arise in which no Relief or Redress can be had in a Court of Law.1 And whereas there is not as yet any Court of Equity in the said Province of Upper Canada—It is therefore become expedient and essential to the due Dispensation of Justice in such Cases that a Court of Equity should be forthwith established and it is deemed most conducive to the Benefit and Advantage of the said Province of Upper Canada that a Court of Chaneery should be erected and Constituted in the said last mentioned Province—

Be it therefore Enacted by The King’s most Excellent Majesty by and with the Advice and Consent of the Legislative Council and Assembly of the said Province of Upper Canada constituted and Assembled by Virtue of and under the Authority of An Act passed in the Parliament of Great Britain intitled ” An Act to repeal certain parts of an Act passed in the Fourteenth Year of His Majesty’s Reign intitled ” 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 and by the Authority of the same. That there be erected Constituted and established, And there is hereby erected constituted and established a Court of Chancery to be called and known by the Name and Stile of His Majesty’s Court of Chaneery for the Province of Upper Canada which shall be a Court as of Record possessing not only such Jurisdiction both ordinary and Extraordinary but also all such other Powers and Authorities as are incident to-His Majesty’s High Court of Chancery in England. And that the Chancellor who has been already appointed by His said Majesty for the said Province of Upper Canada2 and such Person or Persons as His Majesty His Heirs or Successors shall here after think proper from time to time to appoint shall be the Chancellor of the said Court hereby constituted and such Chancellor is hereby authorized to exercise all and every the same Power and Powers Authority and Authorities as now are or heretofore have been judicially exercised by the Lord High Chancellor of Great Britain3 or by the Lord Keeper or Lords Commissioners for the Custody of the Great Seal in His Majesty’s said High Court of Chancery in England and that the Great Seal of the said Province of Upper Canada shall be the Seal of the said Court hereby Constituted and that such Court may and shall issue all such Writs “and process and take Cognizance of and permit to

1. On this point Lieutenant-Governor Hunter in his letter enelo.sing the Bill observes:— ” From my arrival here down to the present time, constant Applications have been madn to me, for the establishing a Court of Equity, and the necessity for such a Jurisdiction is now become so urgent, that it cannot longer be delayed without manifest Injury to the Province. The Merchants and others both here and in the Lower Province have made their application for a Court of Equity, stating that they have considerable Sums of Money due to them upon Mortgages of Lands in this Province, and the Debtors knowing that there is no Juris diction in which those Mortgages can be foreclosed, avail themselves of that circumstance, and will not pay those Debts, or take any other step that Justice requires. Representation» are also made to me of a great number of Oases, in which Agreements have been entered into for the Sale of Lands, in which, in some of the Cases, the purchasers, and in others, the Sellers are unwilling to perform their Agreements, and the want of a Jurisdiction in which these Contracts could be enforced is much felt. There are also many Instances of people being totally unable to recover their share of the Effects of Eclations who are dead without Will, and great difficulties begin to arise upon Questions on Wills made here by illiterate people, and there are Cases also, in which Executors are unable to proceed in their Executorship for want of such a Court. It has also been represented to me, that Infant Children have been very much injured after the Death of their Father, by a Second Marriage of the Mother, for want of the Protection which a Court of this kind would afford them. To these general Classes of Cases, I have to state to Your Grace that many others are daily occurring, in which the Parties by Mistake apply to the Court of Kings Bench here for Relief, and receive foT Answer from that Court, that it cannot interfere, and that their Rights can only be discussed before an equitable Tribunal” See Hunter to Portland, No 31 of August 1st, 1801, Canadian Archives, Q. 290. pt. 1, page 88. For the ‘Constitution and Jurisdiction of the Court of King’s Bench, see pago 146. 2. It had been held by the Crown Officers that the Commission of the Governor, by delivery of the Seal, constituted him Chancellor of the Province. See Canadian Archives. Q. 310, page 31. 8. See the Observations on the Bill, page 298.

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be instituted and prosecuted in the same Court all such Causes Suits and proceedings and pronounce all such Orders Decrees and Judgements therein and proceed in all other Matters and Things in such manner and Course as shall be consistent with the proceedings of the said Court of Chancery of England so far as local Circumstances will in the Judgement of the said Court hereby Constituted admit of and that the said Court of Chancery of Upper Canada shall be holden in such City Town or place as the Legislative Council and Assembly for the said last mentioned Province do now or hereafter shall or may meet in for the Dispatch of Business.

2—And be it further Enacted by the Authority aforesaid that a Commission under the Great Seal of the said Province of Upper Canada shall issue to the Judge whom His said Majesty has already by his Sign Manual nominated and appointed1 or to such person or persons as His said Majesty His Heirs or Successors by his or their Signet or Sign Manual or by any other Ways or Means as to him or them shall seem meet shall hereafter from Time to Time nominate or appoint to be a Judge of the said Court hereby Constituted by which Commission such Judge or other person or persons so nominated or appointed shall be empowered and Authorized in the Absence of the Chancellor of the said Province from the said Court to sit in Judgement in the same Court and to pronounce all such Orders and Directions in all such Causes Suits and proceedings as shall or may at any time hereafter be depending in the said last mentioned Court as Justice may require (save and except only as hereafter mentioned) and all such Orders and Directions so to be pronounced as last aforesaid shall be as valid and effectual as if pronounced by or in the presence of and by the Authority and with the Approbation of the said Chancellor of the said Province and such Judge or other person or persons so to be nominated or appointed as last aforesaid shall and may exercise all and every the same power and powers Authority and Authorities as the said Chancellor of the said Province of Upper Canada could or might exercise if he was personally present in the said Court save and except that it shall not be competent to such Judge or other person or persons so to be nominated or appointed to pronounce any final Decree in any Cause which may be there depending but in the presence of and by the Authority and with the Approbation of the said Chancellor of the said Province for the Time being.

3—And be it further Enacted by the Authority aforesaid that in Case of the Death Sickness or Absence of the said Judge or other person or persons appointed or to be nominated or appointed by His said Majesty His Heirs or Successors as last aforesaid it shall and may be lawful to and for the said Chancellor of the said Province of Upper Canada to appoint and authorize any One or more of His Majesty’s Justices of his said Court of King’s Bench of Upper Canada to sit in Judgement in the said Court hereby Constituted during such Vacancy by ¿Death or during such Sickness or Absence as aforesaid and such Justice or Justices shall and may pronounce all such Orders and Directions and exercise all and every the same Powers and Authority as the said Judge or other person or persons so nominated or to be nominated by His said Majesty His Heirs or Successors as aforesaid could or might have done anything herein contained to the Contrary thereof in anywise notwithstanding.

4—And be it also Enacted that it shall and may be lawful to and for the Clerk of the Crown of the said Province of Upper Canada previous to the Appointment of a Register of the said Court to administer the Oath of Office to the said Chancellor of the said Province and also to the said Judge so appointed by His said Majesty as aforesaid.

5—And be it likewise Enacted by the Authority aforesaid that it shall and may be lawful to and for the said Chancellor of the said Province of Upper Canada to

1. Lieutenant-Governor Hunter had requested that, should the Bill be approved, a mandamus should be issued appointing Mr. Allcock a Judge of the Court of Chancery.

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appoint and remove at his pleasure such Officers of the said Court hereby Constituted as be in his Judgement and Discretion shall think necessary and essential to the due Administration of Justice in the same.1

6—And Whereas it will be indispensibly necessary that among other Officers an Aceomiptant General of the ‘said Court hereby Constituted should be appointed—Be it therefore further Enacted that from and after the Death or Removal of any Accomptant General of the said Court of Chancery of Upper Canada hereafter to be appointed all Monies and all Mortgages and Sureties Deeds and Writings vested in Mm or in his Hands at the Time of his Death or Removal in Trust for the Suitors of the said Court hereby Constituted and all Books of Accompts Papers and Instruments and all other Matters and Things touching or relating to the said Office of Accomptant General shall vest in the succeeding Accomptant General for the same Estates and Interests as such former Accomptant General had therein and subject to the same Trusts without any Assignment or Transfer Whatsoever and upon such Death or Removal of the said Accomptant General the Representative or Representatives of such Accomptant General so dying or being removed or any person or persons other than the succeeding Accomptant General shall not intermeddle with such Monies Effects Deeds Writings Matters or Things but the same and every part thereof shall be carried to the Accompt of the succeeding Accomptant General.

7—Provided always and be it further Enacted that before any Accomptant General shall enter upon the Duties of his said Office he shall enter into such Security with one or more Surety or Sureties for the due and faithful Discharge of the Duties of his said Office to such Amount and in such Manner as the said Court hereby constituted shall order and direct.

8—And be it likewise further enacted by the Authority aforesaid that if any person or persons shall from and after the passing of this Act Forge or Counterfeit or procure to be forged or counterfeited or shall willingly act or assist in the forging or Counterfeiting the Name or Hand of any Accomptant General Register or Clerk of the Report Office or of any other Officer of the said Court or of any other person or persons whomsoever to any Order Office Copy Certificate Report Entry or other Instrument or Writing whatsoever which shall have Reference to any Course Suit or proceeding of the said Court hereby Constituted or shall utter or tender any such Order Office Copy Certificate Report Entry or other Instrument or Writing whatsoever knowing the same or any Name Hand or Signature thereon appearing to be forged for and in order to the receiving or obtaining any of the Money or Effectsof the said Suitors of the said Court hereby Constituted every such person and persons so offending being thereof lawfully Convicted shall be and is bereby declared and adjudged to be guilty of Felony and shall suffer Death as in Case of Felony without Benefit of Clergy—

9—And be it further Enacted by the Authority aforesaid that all Orders Directions Judgements and Decrees hereafter to be pronounced in the said Court hereby Constituted Shall be Final in all Cases where the Matter in Controversy shall not exceed the Sum or Value of Five Hundred Pounds Sterling but in Cases where the Matter in Question shall relate to the taking or demanding any Annual or other Rent or any Fee or other such like Demand of a General or public Nature affecting future Rights of what Nature or Amount soever the same may be an Appeal shall lie from the final Decree of the said Court hereby Constituted to His Majesty in His Privy Council provided that within One Month from the pronouncing such final Decree or Judgement proper Security be given by the Appellant or Appellants to the Satisfaction of the said Chancellor or of the said Judge or other person so appointed as aforesaid that such Appellant or Appellants will within Twelve Months from the Date,of such Security effectually prosecute his her or their Appeal and Answer to

1. For a list of the officers suggested see page 299.

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the Condemnation and also pay such Costs and Damages as shall be awarded by His Majesty in His Privy Council in Case the said final Decree of the said Court hereby Constituted shall be affirmed and upon the perfecting of such Security all further Proceedings upon such final Decree shall cease and be stayed until the final Determination of such Appeal.

10—Provided also that it shall and may be lawful to and for the said Court of Chancery of Upper Canada to adopt such practical and other Regulations and to make such Orders touching all and every or any of the Matters and Things which can in anywise affect or relate to the proceedings or the Suitors or Officers of the said Court of Chaneery of Upper Canada and from Time to Time to vary Alter or change such Regulations and Orders as well as all and every or any the Regulations which have been heretofore made by any Statutes passed in the Parliament of Great Britain or any Order made by the said Court of Chancery of England touching or in any wise relating to or affecting the Suitors or Officers or the practice or proceedings of the said Court of Chancery of England as in the Judgement of the said Court hereby Constituted local Circumstances may require or as to such Court shall seem Meet and most conducive to the’due Administration of Justice.

11—And be it further Enacted that in time of actual War or where there may be Reason to suspect an Invasion of the Province from The Kings Enemies it shall and may be lawful for the Governor Lieutenant Governor or person Administring the Government by and with the Advice and Consent of the Executive Council to issue his Proclamation to remove the place of holding the said Court hereby constituted and to appoint and make known such other place within the Limits of the Province as shall be deemed most safe and Convenient for holding the same.

Endorsed:—Draught of Bill for the Establishing a Court of Chancery in Upper Canada.

In Lieut. Governor Hunter’s (No. 31) of 1st August 1801.

OBSERVATIONS ON A BILL ERECTING A COURT OF CHANCERY IN UPPER CANADA.1

Observations on the Bill proposed to be passed for Erecting a Court of Chancery and Detail of the practice intended to be adopted.

With respect to the Powers this Bill would give to the Court, it is submitted that from the nature of the Case, considering that the Country is new, that almost innumerable Circumstances will and must inevitably arise, which cannot be foreseen or provided for specifically, unless the Powers are so extended by general Terms, as to arm the Court with a competent Authority to adopt such Regulations as the Various Occasions, when they respectively arise may call for, the proceedings would soon be at a Stand. This Object has been attempted to be attained, by reference to the Powers judicially exercised by the Chancellor of England, which it has been conceived, will confer the necessary Authority and at the same time the Term judicially will confine the Powers of the Chancellor of Upper Canada, to the Decision of Causes and proceedings depending in -the Court, either in the Equitable Jurisdiction or the Petty Bag.

As to the Powers of the Judge, who is to sit with the Chancellor, or in his Absence without him, it was found difficult, and in the Comprehension of the Author of this Bill, impossible to specify them in any other Way, than by Reference to the Powers of the Chancellor here, with Restriction upon the Judge, that he should not

1. From the copy in the Canadian Archives, Q. 290, pt. 1, page 107. Certain parts of the text seem to indicate that the observations are by the author of the Bill, Mr. Justice Allcock.

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make any Decree but such as the Chancellor approved and that it should only be pronounced when the Chancellor sat in Court.

In this way of conferring that Power, it will stand nearly as it does at home, when a Judge sits for the Chancellor, with the difference only that the Judge here cannot make any Decree, by which it was imagined, that the Principle, which has generally been pursued in The Kings Colonies will be preserved, (Viz) that the Governor is the Chancellor,1 and the only Character who can finally decide upon the Rights of Parties resorting to the Court, and at the same time, would relieve the Governor from the necessity of giving his personal Attendance every time the Court muit necessarily sit, which might be much oftener than the many other Duties which occupy so much of his Time and Attention could possibly admit of.

As to all that part of the Bill, which relates to the Office of Accomptant General, it has been taken from the English Statute regulating that Office.

The Right of Appeal is made conformable to the Governors Instructions upon that Head, and the tenth Clause of the Bill was added to the whole, with the view of enabling the Court to Vary the Practice here in such Cases as has been regulated by English Statutes, and Rules and Orders of the Court of Chancery in England, where they cannot be pursued here, such as inserting advertisements in the London Gazette, giving Notiees upon the Royal Exchange, in Parish Churches &c &c. These are the general Objects the Bill has had in View, but the Author of it, after his best Labors, is very far from feeling in any degree confident, that it is what it ought to be, but he has this great Satisfaction that, before it passes into a Law, it may undergo the Inspection and Consideration of those, whose very superior Learning and Experience will enable them to correct, what may be found wrong in it, and to add that which, from want of a better knowledge of the Subject has escaped his Attention.

As to the Officers proposed to be appointed, and the Practice intended to be adopted—

Two Masters, an Accomptant General, Two Clerks in Chancery—One Examiner, One Register, a Serjeant at Arms and the Chancellor’s Secretary, are the Officers proposed to be appointed if the Court should be established—

These are Eight in Number—Before the Seven Years War, it seems, the Province of New York had a Court of Equity with this same Establishment, and with less, it is submitted, the proceedings could not be carried on.

There is already here a Master in Chancery, attendant on the Legislative Council, a Serjeant at Arms, the Receiver General of the Province might be the Accomptant General, and the Secretary of the Province might be the Chancellors Secretary.

These Officers are all to act without Salary, and be compensated by Fees to be taken from the Parties, whose Causes are prosecuted in the Court. As to the Fees, it is Conceived, that the general Powers the Bill would confer, would enable the Chancellor to ascertain a Fee Table, and make an Order of the Court authorizing the Officers to demand those Fees, and the Costs altogether will be kept within very moderate Bounds. They may be either ascertained under Your Graces Directions at home, or a Fee Table may be made out under the Authority of the Chancellor here, and made an Order of the Court.

In drawing out these Costs, the probable Amount and Value of the Subject Matters which may in general be depending in the Court, and the Ability of the Parties to pay those Costs, have been attended to. Regard has also been had to the Bill of Costs now allowed in the Court of King’s Bench here. The Chancery Costs have been put a little higher than the Kings Bench Costs here, but as they stand, if the Costs in Equity in England are referred to, it will be found, that those Costs are when compared with those very inconsiderable indeed.

1. See page 295, note 2.

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As to the Practice—Where the English Practice can be pursued, it will altogether be followed—and when it cannot, the best attention will be exerted to preserve, as much as possible, the principles of the Court of Chancery at home.

It is proposed, that the Solicitors of the Court here, should make all the Office Copies, and carry them to the Officer to be marked, so also that they should make out all the Processes of the Court, and carry them in the same way, for otherwise the Court could, not proceed without a greater number of Officers than it is proposed to appoint. If in the progress of the Business, it should be found indispensibly necessary, to add another Officer or two for inrolling the proceedings &c. it is intended to appoint one or more of those same persons before named, to discharge those Duties, in which Care will be taken, that the One Office shall not be incompatible with the other.

This material Object will also be attended to, that neither the Parties or the Practicers shall find it possible to protract Suits, so as to create Dissatisfaction in the Country on that Head, which can be effected only, it is conceived, by dismissing the Suit for want of Prosecution, after a shorter Lapse of Time from the last proceeding, than is practiced at home, and by attending to the two Masters Offices and preventing every unnecessary Delay there.

* * * * * * * * * *

Endorsed:—In Lieut-Governor Hunter’s (No. 31) of 1st August 1801.

ORDER IN COUNCIL RESPECTING A COURT OF CHANCERY FOR UPPER CANADA.1

AT THE COURT OF St. JAMES’S.

the 24th of March 1802.

L.S.

Present. The King’s most Excellent Majesty in Council.

Whereas there was this Day read at the Board a Report from the Right Honourable the Lords of the Committee of Council appointed for the Consideration of all Matters relating to Trade and Foreign Plantations, ‘dated the 16th Instant, in the words following vizt.

“YOUR MAJESTY having been pleased, by Your Order in Council of the 28th October last, to refer unto this Committee a Letter from the Right Honourable Lord Hobart,2 One of Your Majesty’s Principal Secretaries of State, to the Lord President of the Council, in the words following, vizt.

“My Lord,

” I have the Honour of transmitting for Your Grace’s Consideration, a Copy of a Letter from Lieutenant General Hunter, Lieutenant Governor of Upper Canada, with the Draft of a Bill for the Establishing of a Court of Chancery in that Province, together with a paper containing Observations thereupon.

1. From the copy in the Canadian Archives, Q. 293, page 155. 2. Lord Hobart, later the Earl of Buckinghamshire, was born in 17&0. He entered the army in 1776 and served in the American War. In 1784, he was appointed aide-de-camp and five years later Secretary to the Lord Lieutenant of Ireland. In 1787, he was elected to the Irish Parliament and soon became one of its prominent members. From 1788 to 179a he held a seat in the English Parliament. From 1793 to 1798 he was Governor of Madras. With the advent of the Addington Administration in 1801 control of Colonial Affairs was placed under the War Department and Lord Hobart became Secretary for War and the Colonies. For a brief period in 1805 he served in Pitt’s Administration and from February 1806 to May 1807, he was joint Postmaster in the Ministry of ” All the Talents.” From 1812 until his death in 1816 he was President of the Board of Control for Indian Affairs in the Liverpool Ministry.

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“The Lords of the Committee in Obedience to Your Majesty’s said Order of Reference, this Day took the said Draught of Bill, together with the Letter from Lieutenant General Hunter, and also the paper of Observations referred to in Lord Hobart’s said Letter, into their Consideration, and do agree humbly to report as their Opinion to Your Majesty, That the Institution of an Office of Judge of the Court of Chaneery, distinct from the Chancellor, is a matter of so novel a nature as not to be adopted but on very serious consideration.

” That the Governor of the Province of Upper Canada (for the time being) by his Commission, and the Powers incident to his Office is already vested with Sufficient Authority to exercise an Equity Jurisdiction to the full Extent pointed out in Lieutenant Governor Hunter’s Letter j 1 And the Lords of the Committee are of Opinion that the Right Honourable Lord Hobart should signify Your Majesty’s Pleasure to the Governor of Upper Canada for the Time being, to call for the Assistance of any of Your Majesty’s Judges or Law Officers of the Province, to whom he may deem it proper to apply, in framing Regulations and Forms for the Conduct of the Business and the Mode of Proceeding in a Court of Chancery.” And ” That it will be also proper that the said Governor for the time being, with the like Assistance, should frame a Table of Fees to be payable on the different Proceedings of the said Court, and on the Instruments issuing therefrom; and that such Table of Fees should be submitted to Your Majesty for Your Royal Approbation.”

His Majesty having taken the said Report into Consideration, was pleased, with the Advice of His Privy Council, to approve thereof, and to order, as it is hereby ordered, That the Right Honourable Lord Hobart, One of His Majesty’s Principal Secretaries of State, do receive His Majesty’s Pleasure for writing to the Governor of the said Province of Upper Canada accordingly.2

STEPH. COTTRELL.

Endorsed:—Order in Council. March 24th 1802 Court of Chancery in Upper Canada. Copy sent to Genl. Hunter 9th April 1802.

RIGHT OF THE CROWN TO NOMINATE PUBLIC OFFICERS.3

JOURNAL OF THE LEGISLATIVE ASSEMBLY.

Friday, 20th April, 1804.

Mr. Berthelot reported, that the managers on the part of this House, had been at the further conference desired by the Legislative Council, on the subject of their amendment to the Bill, intituled, “An Act for appointing Commissioners to treat with Commissioners appointed or to be appointed by the Province of Upper-Canada,

1. The commission to the Governor-in-Chief empowered him, on the advice of the Executive Council, ” to erect, Constitute and appoint such Court or Courts of Judicature or Public Justice within our said Provinces as you and they shall think fit and necessary for the hearing and determining of all Causes as well Criminal as Civil according to Law and Equity.” See page 11. 2. During the next several years the attention of the Home authorities was repeatedly directed to the importance of establishing a separate Court of Chancery. (See the Canadian Archives, Q. 299, page 140, Q. 305, page 113, Q. 310, page 31.) In 1807, the question again came before the Privy Council. By an order of August 2nd the Council reaffirmed the position taken in 1802, but in addition gave its approval to a table of fees payable on the different proceedings of the Court of Chaneery. (See the Canadian Archives, Q. 310, page 235.) Nothing however, was accomplished until 1837, when by the Provincial Statute 7, William IV, Cap. II, a Court of Chancery was constituted. 3. From the Journals of th House of Assembly of Lower Canada, 1804, page 392.

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for the purposes therein mentioned;”1 and had received from the managers on behalf of the Legislative Council, reasons in writing for not insisting on the amendment disagreed unto by this House; and he delivered’ the said reasons in at the Clerk’s Table, where they were read, and are as follows

“The Legislative Council is perfectly aware that there are instances in which it is conformable to Parliamentary usuage, to name in the Bill, the persons who are to carry it into execution2 : But it cannot assent to the proposition that every instance in which such a practice occurs, is to be considered as a proof that the House nominating has an exclusive privilege for that purpose: still less can it admit that the House of Commons in England, has any such a privilege in every case in which Revenue is concerned. If that had been the case, the Officers of the Treasury, the Exchequer, the Customs, the Excise and every other Branch of the Public Income, would from all time have been appointed by the House of Commons. It is the peculiar felicity of the British Constitution, that no material part of it stands upon the ground of usage only: whenever a practice not indifferent in itself has the sanction of prescription, it invariably has at the same time the sanction of reason and principle.”

“Under this head, the Legislative Council conceives that, as there is no principle of the Constitution more wise, so there is none more general than that the right of nomination to every situation of honor, profit or trust, is vested in the Crown. The Houses of Parliament have generally speaking no patronage whatever. They do not even nominate their own Servants, and but one of them has a right to elect its Speaker ; nor is it possible to read their History without having frequent occasion to remark how uniformly each has disclaimed every thing of the kind for itself, and refused it to the other. It may in short be laid down as a rule as general as any that relate to human transactions, that by the principles of the Constitution, the inferior Branches of the Legislature cannot nominate to any situation whatever in the detail of Government, but in cases in which it would be a solecism to leave the nomination to the Crown. On the subject of Revenue perhaps it is not too much to say, that the instance of appointing persons to enquire into the expenditure of public money, or the application of a public Fund, is the only one in which either House can Constitutionally claim a right of nomination or approbation.”

“But whatever may be the case, when the two inferior Branches of the Legislature are granting money to the irresponsable Sovereign, and providing against the misapplication of it by his responsible Ministers, the Legislative Council is of opinion that the instance now before the two Houses, is of a very different description, and to be governed by intirely different rules. The present Bill is neither for the purpose of granting supplies, nor of enquiring into the manner in which former grants have been expended. The object of it is wholly diplomatic: it is for the purpose of instituting a Negociation with a Country which has indeed the same Sovereign with ourselves, but enjoys a Legislature wholly independent of us. The result of that

1. The Bill after reciting the purpose of the measure enacted continued, ” that the Honourable James McGill and John Lees, John Eichardson, Joseph Papineau, Joseph Perinault, Maurice Blondeau, Louis Greg, fils, and Samuel Gerrard, Esquires, shall be and they are hereby constituted and appointed Commissioners on the part of this Province, who or any three of which are authorized and empowered to meet, treat, consult and agree with such Commissioners as are or may be appointed on the part of the Province of Upper Canada.” This section the Legislative Council amended so as to read ” that it shall and may be lawful to and for the Governor, Lieutenant-Governor, or person administering the Government of this Province for the time being, to nominate and appoint, under the Great Seal of this Province, such and so many persons as he shall think proper, not exceeding seven, nor less than three, to be Commissioners on the part of the Province to treat with Commissioners, appointed or to be appointed on the part of the Province of Upper Canada.” See the Journals of Assembly, 1804, page 310. 2. The first reason assigned by the Assembly for rejecting the amendment of the Council was that ” Because, in objects of the same nature of that of which the Bill is intended to provide, having relation to revenue only, it is conformable to Parliamentary usage, to name Commissioners in Bills sent from the Commons. See the Journals of the Legislative Assembly, 1804, page 330.

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negociation will be not a grant of Revenue or regulations for the application of Revenue, but a Treaty establishing the principles on which two independent Legislatures shall, during a given period, exercise their several rights of raising Revenue, so as not to throw unnecessary or impolitic obstacles in the way of the Commerce and Industry of each other, or of the Mother Country.”

“For this reason and without stopping to enquire how far, by the principles of the Constitution, an Act of the Legislature is necessary to enable His Majesty to treat with his own Subjects, the Legislative Council cannot but think that as the King, in all negotiations with external powers is the Representative of the Nation, the King alone has the right of selecting the persons to whom the exercise of so important a trust is to be delegated. In negociating with powers which are in the common acceptation of the term, Foreign, this right has never been disputed: and the recent instances of the Commercial Treaty with France and the Treaty of Amity and Commerce with the United States of America, distinctly shew that he wants no authority from the other Branches of the Legislature, to be able to bind them, even in matters of Revenue. The Canadas tho’ subject to the same Sovereign are in respect of their Legislatures as independent of each other as France and the United States are of Great Britain; and if a precedent be wanted, of two independent Legislatures under the same Sovereign the illustrious one of the Union between England and Scotland, is directly in point, and shews that the Crown in such a case has the sole nomination of those who are to conduct the Treaty, even tho’ Revenue be one of the Subjects of it.”

” With respect to the second head,1 on whicih the Assembly rests its claim to the right of nominating the Commissioners who are to carry the present Bill into execution, the Legislative Council cannot admit that a period of eleven years2 is sufficient to dispossess the Crown of the most important of its prerogatives and to vest it by prescription in the Assembly. The exercise of it by the Assembly during that period, proves nothing but the ease with which, at the introduction of a new System we may be misled by Analogies, which, when carefully examined, are found to afford inferences diametrically the reverse of those which we expected from them.”

” The Legislative Council has thus detailed the reasons of the amendment it has offered, because it conceives that the exclusive right of the Crown to nominate to every situation of honor, profit or trust, is one of the corner stones of the Constitution, and because it trusts that on reflection, the Assembly will see that it cannot encroach on tlie prerogative without eventual ruin to itself.”

“With a view however of giving to the Assembly an unequivocal mark of its desire to act on all occasions in harmony with it, and of the high opinion it entertains of the individuals whom the Assembly has selected, the Legislative Council withdraws its amendment. But it begs to be understood to do so, for this time only, and with a right of which it will assuredly avail itself, on every future occasion, of renewing and insisting on the present objection.”

1. The Assembly’s second reason for rejecting the amendment of the Council was that ” Because this mode having been adopted for the same purpose in four several Acts of the Legislature of this Province, in three successive Parliaments, and the objects proposed thereby having been attained in a satisfactory manner and without inconveniency, the Assembly doth not deem it expedient or necessary to deviate therefrom on the present occasion.” See the Journals of the Legislative Assembly, 1804, page 330. 2. Acts similar to this and for the same purpose had been passed in 1793, 1796, 1798 and 1800.

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THE CROWN AND THE ROMAN CATHOLIC CHURCH.1

REPORT OF A CONVERSATION BETWEEN ATTORNEY GENERAL SEWELL2 AND MONSEIGNEUR PLESSIS.3

To His Excellency Sir Robert Shore Milnes, Baronet, Lieutenant Governor of the Province of Lower Canada, &c &c &c

May it please Your Excellency,

I n obedience to your commands, I have the honor to report to your Excellency the conversation which passed yesterday between the Reverend M1 Plessis, Titular Roman Catholic Bishop of Canathe & myself, upon the present State of the Church of Rome. With the exception of some few remarks upon indifferent Subjects, otir dialogue was as follows.

Plessis. I have lately spoken to the Governor respecting the present situation of our Church, & he has referred me to you on the Subject.

Attorney Gen1 The Governor ha3 gwetni me permission to explain my own private Sentiments on the Subject to you; what I think you may ask, & I will answer candidly. But before I state what I have to say, let me observe that the object is of the last importance to your Church, & ( I admit also) important to the Government.—It is highly necessary for you to have the means of protecting your Church, To the Government to have a good understanding with the Ministers of a Church which it hSa® acknowledged by the Quebec Act, & at the same time essential to have them under its controul.—Let me also remark that the Government having permitted the free Exercise of the Roman Catholic Religion ought, I think, to avow its officers, but not however at the Expenee of the King’s Rigihts or of the Establyslied Church. You cannot expect nor ever obtaim any thing that is inconsistent with the rights of the Crown, nor can the Government ever allow to you what it denies to the Church of England.

Plessis. Your position may be correct. The Governor thinks the Bishop should act under the King’s Commission, & I see no objection to it.

Attorney Genl My principle is this, I would not interfere with you in concerns purely Spiritual, but in all that is temporal or mixed I would subject you to the King’s authority. There are difficulties, I know, on both sides; on one hand, the Crown will never consent to your emancipation from its power, nor will it ever give you more than the rights of the Church of England, which has grown with the Constitution, & whose power, restrained as it is, is highly serviceable to the general interests of the State; on the other hand, your Bishop will be loth to abandon what he conceives to be his right, I mean particularly, the nomination to Cures ; Yet that he must do so, for no such power is vested in the Bishops of England, & if permitted would be highly dangerous.4

1. From the copy in the Canadian Archives, Q. 97, page 175. This report is also published in Mr. Christie’s History of Lower Canada, Vol. VI, page 74. 2. See page 269, note 2. 3. Mgr. Joseph Octave Plessis, at this time the Coadjutor to the Bishop of Quebec was born at Montreal in 1763. He was educated at the Seminary of St. Sulpice at Montreal and at the Seminary of Quebec. . He was chosen to perform the duties of Secretary of the Diocese of Quebec in 1783, and three years later was admitted to the priesthood. In 1792, he was appointed curé of Quebec, and. in 1797 was selected as Coadjutor to Bishop Denaut. The attack on Rome and the imprisonment of Pope Pius VI. delayed his appointment as titular Bishop and it was not until April 1800, that he officially became Coadjutor of Quebec and Bishop of Canathe. On the death of Mgr. Denaut in 1806, Mgr. Plessis succeeded to the office of Bishop of Quebec. He was appointed to the Legislative Council of Lower Canada in 1818, and in his patent officially recognized as the Bishop of the Roman Catholic Church of Quebec. In this connection, it was stipulated, however, that Mgr. Plessis’ successors should not assume the title until their right to it had been recognized by His Majesty in some formal instrument. Bishop Plessis died at Quebec, December 4th, 1825. 4. See Article 44 of the Instructions to Lord Dorchester, page 24.

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Plessis. You said conceives to be his right, why so.

Attorney Genl The Statute of the 1s t of Eliz. cap. 1. made for the dominions which the Crown then had or might thereafter acquire explains what I mean. But I shall not conceal my opinion, it is that the Bishop has no power, and I shall be happy to shew you the grounds of this opinion at a future day, should any thing arise out of this Conversation.

Plessis.—I know the 1st of Eliz. but I confess I did not know that it was extended to the Dominions which the Crown might thereafter acquire.

Attorney Gen1 It certainly is—It was made at the time when England had most reason to be dissatisfied with the Roman Catholic Religion, immediately after the death of Mary:—it provided for the emancipation of all English subjects from the papal power in all times & places.

Plessis. Had Mary followed the advice of Cardinal Pole, the Statuts never would have been passed: she would not then have disgraced herself & her religion by her cruelties.

Attorney Genl Whether he influenced her or not, Mary’s conduct tended to establish the reformation most firmly, & happily to blend the Church & State of England as they are at present.

Plessis. How are (Curés) Rectors appointed in England?

Attorney Genl Where the King is patron, & he is of all livings not in the possession of individuals, by title, he presents to the Bishop, who, if there be no legal cause of refusal inducts the Clerk presented.—If there be cause, he certifies that cause to the King, & if the King is satisfied he presents another, but if not a Writ issues to the Bishop requiring him to certify his cause of refusal into fhe King’s Courts, who t ry the merits of the refusal & declare it good or bad according to law,— on this footing I would place your Church.

Plessis. The King then would become the Collator to every Benefice. The King of France was to Consistorial Offices, but not to Cures.

Attorney Genl He was to many Cures, but not to all, because many of his Subjects, lay as well as ecclesiastical characters, were the Patrons.

Plessis. The Bishop ought not to be obliged to certify his cause of refusal. In France, where the Patron was a layman, he was bound to present five Clerks successively before the Bishop was obliged to give any reason for refusing them. When the Sixth was presented, he was bound to assign the cause of his refusal. If the Patron was an Ecclesiastic, he shewed cause on! the presentation of the third.

Attorney Genl Neither of these rules extended to the King.—I think I can shew you that to your satisfaction. It would not be decent to refuse the presentation of the Sovereign, without cause, nor ought a Bishop ever to be ashamed of assigning the reason of his refusal in any case.

Plessis. Presentation by the Crown agrees with the tenets of the Church of England but not with ours.—It would be against our spiritual duty. Bishops in France have alwajo presented to the livings in their dioceses:—in the late concordat between the Sovereign Pontiff & Bonaparte, their right to present is recognized.

Attorney Genl As to Bonaparte & the Pope I will say nothing,—except that the former (thank God) is no example to us. But I formally deny that it is contrary to your tenets to receive a presentation from the Crown.—It was the daily practice in! France with respect not only to the Crown but even of private patrons of all descriptions. I am no Catholic, but my professional duty has led me to weigh well this objection according to your own principles. My answer is very short.—The Bishop ordains in the first instance, wbich qualifies the character for the living;—the Prelate & not the Crown makes the Priest: The Crown selects only from your own Priesthood the person whom it thinks fit for the Appointment, and if there be no cause of refusal the Bishop invests him with every thing necessary to enable him to perform the functions of his Cure.—The reciprocal selection of the person by the Bishop in

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the first instance for the Priesthood & of the Crown for the living in the second instance preserves a just balance between both.

Plessis. In our Church some orders qualify the individual to say Mass, others to confess, others for more.—

Attorney Genl I beg leave to interrupt you. When the Crown presents a person not admitted to orders sufficient for the appointment to which he is nominated, the Bishop has legal cause to refuse.

Plessis. If the King presents in all cases, the Bishop will never have the means of advancing a faithful pastor.

Atty Genl The Bishop once acknowledged as the head of his department will be that in fact.—You know the attention that ever has been & ever will be paid to the heads of departments ini our Government. The Bishop’s representation to the Governor in such a case would secure the promotion of the person he wished to promote.

Plessis. Your Bishop has certainly greater power.—The Gazette lately informed us that he had presented Mr Rudd to a living at William Henry.

Atty Genl The Gazette is certainly the King’s Paper, & its contents generally to be relied on, & that in this instance is the case. Mr Rudd has been appointed to William Henry, but it was the Governor, & not the Bishop, who presented him. Be assured that all livings in the Church of England in this Province are in the King’s gift.

Plessis. Governors do not always pay attention to the recommendations which they receive.—I remember Mr Chief Justice Osgpode complained heavily, that Mr Perrault had been appointed Prothonotary of the King’s Bench, contrary to his recommendation.

Atty Genl Mr Osgoode’s complaint confirms what I say.—The conduct observed towards him was an exception to a general rule, & therefore he complained.1

Plessis. Our general Church Government is aristocratic, but the Government of a Bishop in his diocese is monarchical. He has the power of enacting Reglemens which must be obeyed. You will not probably admit this position.

Atty Genl The power of a Bishop extends to enforcing by his Reglemens the general principles of Government adopted by the Church. He cannot legislate, he can only enforce obedience to what is already enacted,—to the Canons & to the Municipal laws of the Country.

Plessis That is true, but our Canons are different, materially different from your’s.

Atty Genl I cannot admit that. It was enacted in the Reign of our Henry the 8 a that the Canons then in force & not repugnant to the principles of the reformation should continue in force until a review of them should be made, which never has been accomplished, so that the Church of England is now governed by the Canions in force prior to the reformation, which form the greater & most essential part of the Canons which govern the Church of Rome.

Plessis. You state incorrectly;—your Church, for instance does not acknowledge the Canons enacted by the Council of Trent.

Atty Genl The Gallican Church certainly does not.

Plessis. Yet the Caniühs of the Council of Trent certainly were in force in France.

Atty Genl Yes, the greater part, but that was because the Kings of France enacted them in their Ordinances; On this head, you cannot suffer, for those Ordinances are at this moment component parts of the Municipal law of Canada.

Plessis. I once saw in the hands of Mr Ryland (the Governor’s Secretary) the King’s Instructions, in which it is said that no priest shall be removed from his

1. In Mr. Christie’s edition of this document a footnote is here added containing a remark by Mr. Ryland to this effect. “”Not correct; the appointment is entirely with the Governor.” Christie, Vol. VI, page 77.

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Cure, unless he bas been previously convicted, in some of His Majesty’s Courts, of felony.1 There may be many instances, in which a priest ought to be removed, who has not been guilty of felony. The difficulties would be less if the Bishop had a jurisdiction over his Clergy, an ” officialite,” which, perhaps, never would be granted.

Atty Gen2 I have already requested you to understand that in all I say I speak my own private Sentiments & no more. With this remark, I have no hesitation to say that the Government ought in policy to give the Bishop a Jurisdiction over his Clergy, subject always to the controuling power of the King’s, Bench, & to the operation of the Writs of Prohibition & Appeal. The Courts of the Bishops in England are subject to the King’s Bench.2

Plessis. If the Writ of Prohibition is similar to the ” Appel comme d’Abus ” in France, not a shadow of authority will remain to the Bishop. Every Act of a Bishop was ultimately held in France an abuse of his authority & constantly set aside in the Parliaments.

Atty Genl The Writ of prohibition is very different; from the ” Appel comme d’Abus.” By that all questions were re-examined, as well in fact as in law. The Writ of Prohibition is a prerogative Writ issued out of the King’s Bench to prevent the ecclesiastical & other inferior courts from proceeding in causes instituted before them ini which they have no Jurisdiction or in which they proceed contrary to law. To what the Court of Appeal should lie is a subject for consideration.

Plessis. You know that all Curés at present are removable at the pleasure of the Bishop. In the first establishment of this Colony it was otherwise, but afterwards upon the erection of the Seminary of Quebec, Monseigneur De la Val got it fixed as it is at present.3 If the King presents, the Cure ought to be removeable at the Bishop’s pleasure.

Atty Genl I think very different. The spirit of the Colonial Institution grants every Office during pleasure nominally, but that pleasure is well known to continue during good behaviour, & a rector in England is removeable only for misconduct. It seems expedient to me, that a Curé should know his parishioners well & consider himself as fixed among them. In times of difficulty a Cure long resident’with his flock can guide them better than a new comer. Mutual confidence is not the result of a short & transitory acquaintance : & without that nothing effectual can be dome by the pastor, at such a moment. I will tell you also frankly that Curés dependent upon the will of the Bishop would be little subject to the controul of Government. If this was the case, the situation of the Curé would not be enviable, nor could you expect that the better class of people would educate their Sons for the Church. Your Court of the Bishop would be perfectly unnecessary, & the presentation of the Crown an idle ceremony, if the Bishop could afterwards remove when he pleased.

Plessis. The situation of a Curé under such restriction would be better, then, than the situation of the Bishops of Canada at present. For myself, I have enough, I am in a Cure which gives me all I want, but Bishop Denaud4 is in poverty, holding a living & acting as a parish priest, in direct contradiction to the Canons.

1. Section 7 of Article 44 otf the Instructions to Lord Dorchester declares that incumbents shall hold their benefices ” during their good Behaviour subject, however, in case of any conviction for Criminal Offences, or upon due Proof of seditious Attempts to disturb the Peace and tranquility of Our Government to be deprived or suspended by you.” See page 25. Mr. Ryland, in a footnote quoted by Mr. Christie, states ” I have no recollection whatever of Mr. P’s ever having seen the King’s instructions in my hands. Nor, indeed, is there such an instruction as that here mentioned.” Christie. Vol. VI, page 78. 2. The text given by Mr. Christie is slightly different here. It reads, ” subject ———- to the operation of the writ of Prohibition, and an Appeal, to which the Courts of the Bishops in England are subject.” 3. See page 389 and 398. 4. See page 394, note 1.

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Atty Genl My mind upon that Subject is completely made up. The Government recognizes your religion, & making its officers officers of the Crown, should provide for them as for all others. The Bishop should have enough to enable him to live in a splendor suited to his rank, & the coadjutor a Salary in proportion.

Plessis. I do not wish to see the Bishop in splendor, but I wish to see him above want.—I do not wish to see him in the Legislative or Executive Council, but as an Ecclesiastic only, entitled to the rank which is due to him ini Society.

Atty Genl When I said splendor, I qualified the expression, by calling it ” a splendor suited to his rank.” I mean by that, that his income should be that of a Gentleman & equal to a proper expenditure. There is in fact no such thing as splendor in Canada.

Plessis. We mean the same thing. But there is a great delicacy in this matter. If the Bishop was pensioned & relinquished the right of nominating the Curés, the public would not hesitate to say that he had sold bis Church.

Atty Genl To stop the public clamour is an useless attempt. If matters of state were to be staid for fear of popular abuse, Government would be able to do but very little; the Governed but seldom approve. In our instance, if the matter is viewed as it ought to be viewed, the world must be satisfied that, instead of relinquishing a right you have in fact none to relinquish, you abandon] the shadow & receive the substance: surely, this is a sufficient answer to any vulgar declamation against a Bishop who makes) terms highly advantageous to his Church & must be satisfactory to himself.

Plessis. I don’t know, it is his affair.

Atty Genl There is one idea which I wish to suggest. If you ever mean to fix the officers of your Church upon any footing, this is the moment. The present Lieut Governor is a gentleman of most liberal principles, lie has been long enough in the Country to know all that relates to it, is well disposed to serve you, & is on the point of going to England where this matter must be settled.1

Plessis. I am well aware of- all this.—Whatever is to be done must be done now.

Atty Genl If I say what I ought not to say, you will excuse me, but I feel convinced that if you forego this opportunity, it will never return. It is your interest to avail yourself of the present moment, & make the best terms you can.

Plessis. You cannot say any thing which can either hurt or offend me.—I consider this as a free conversation on both sides, for effecting a very important object, which, without an unreserved communication, can never be effected.— AtP Genl I will not take up any more of your time at this moment.2

Plessis. I am much obliged by the time you have bestowed on me.—Something must be done, & tho’ we may differ in the detail, I think we shall not in the outline, and if we do differ we must be temperate, & ini that case we shall ultimately agree.—I am, however, but a Subordinate Officer, I must first write to the Bishop, & when I know his Sentiments I will wait upon you.

Atty Genl Do so, but pray keep in mind what I have said, that you never can obtain anything inconsistent with the prerogatives of the Crown, nor at all events any right that a Bishop of the Church of England does not possess.

1. Sir Robert Shore Milnes left Canada early in August, 1805. 2. A second discussion between Mgr. Plessis and the Attorney General took place on May 21st, but nothing material was added to the arguments brought out in the first conversation. For a report of this second discussion see Q. 97, page 188.

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All which is most respectfully submitted by, Sir, Your Excellency’s Most obedient & Most humble Servant J SEWELL Atty General Lower Canada. R S M

Quebec 26 April 1805 Endorsed: First Report of the Attorney General B In Lt Govr Milne’s N° 28 to the Earl Camden

PETITIONS FROM THE EASTERN TOWNSHIPS FOR REPRESENTATION, 1805.

MINUTES OF THE EXECUTIVE COUKCIL.1

Wednesday 31st July 1805

At the Council Chamber in the Castle of St. Lewis

Present His Excellency Sir Robert S. Milnes Bart. Lieutt. Governor The Lord Bishop of Quebec Honble François Baby Thomas Dunn John Lees Antoine Juchereau Duchesnay John Youngi Jenkin Williams John Craigie & Pierre Louis Panet Esqrs.

His1 Excellency then laid before the Board the Tenth and Eleventh Reports of the Special Committee of the Executive Council on State affairs,2 together with the Report of the Committee of the whole Council thereon.3

Approved and Ordered to be Entered.—

1. From the original Minutes in State Book D, Lower Canada, page 474. 2. Early in 1805, Sir Bobert Shore Milnes obtained leave of absence on condition of’his health requiring it. The prospect of his leaving the government made it necessary that all business before the Executive Council should be determined with as little delay as possible. Accordingly on the 18th of February, His Excellency was pleased to appoint the Lord Bishop of Quebec, Mr. Baby, Mr. McGill, Mr. Young and Mr. Craigie, or any three of them, to be a special Committee for examining into and reporting on all matters under Reference, preparatory to the final Eeport of the Committee of the whole Council thereon. See the Minutes of the Executive Council, State Book D, Lower Canada, page 391. 3. The report of the Committee of the whole Council consisted simply in a statement of concurrence with the report of the special committee.

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(Tenth Report of the Special Committee)

COUNCIL CHAMBER QUEBEC

Friday 26th July 1805

At a meeting of the Special Committee on State Affairs

Present

Honble Mr. Young in the chair The Lord Bishop of Quebec Mr. Baby & Mr. Craigie

The Committee resumed the consideration of Your Excellency’s order of reference on the Memorial and Petition of certain Inhabitants of the following Townships, now settling on the Tenure of Free and common Soccage: Vizt

Stanstead, Hatley, Barnston, Hereford, Compton, Ascott, Orford, Eaton, Newport, Brompton, Stoke, Westbury, Melbourne, Windsor, Dudswell, and Shipton, with an accompanying separate Petition from Persons in three of these: Several Points in these Petitions, appearing to the committee to require a legal opinion on the objects thereof, were submitted to the Attorney General—and his Report thereon accompanies the present.1—

These two Petitions consist of Eight Articles, praying for specific objects, and stating reasons for these applications.—

1st. The Petitioners pray, that one or more Counties may be erected in that part of the Province covered by these Townships, with the Privilege of returning members to represent them in the House of Assembly.—

2d. That the Boundary lines between the District of Three Rivers, and the other two Districts of Quebec and Montreal may be accurately run in the Field and known Boundaries established.—

3d. That Circuit Courts be granted to them for the trial of Causes not exceeding Twenty Pounds.—

4th. That the existing Road act, being inapplicable to their Situation & circumstances, may be modified, so as the Inhabitants of each Township may make choice annually of Persons amongst themselves, to lay out the necessary Public and bye- Roads, open and repair them, and build and uphold Bridges, with the Right of obliging each proprietor of Land—(crown & church lots excepted) to contribute towards the same.—

5th. That offices may be established in each County for the enregistration of all deeds of Sale, of acts, transferring or encumberrngi or in any way affecting the Rights to real property.—

6th. That a Custom House and port of Entry be established on the Line between the United States and this Province, or the Duties payable by Law, rescinded in their favor, for a certain period.—

7th. That a Protestant clergy be established and reside amongst them.—

8th. That Magistrates be appointed, as their population shall require, and the Militia organised by the appointment of officers.—

The committee in reporting to Your Excellency their opinion on these different objects, have in the first place to observe, That the situation of the Petitioners is in the opinion of the Committee such as to claim in a peculiar manner the attention & regard of His Majesty’s Government. Settled since the Constitutional Act of the 31st of the King on the Waste Lands of the Crown under a different Tenure from that which, then generally obtained in_ other parts of the Province of Lower Canada—no legislative provision has hitherto been made for their local circumstances, and for

1. For the Report of the Attorney-General see page 312.

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their Wants, which are dissimilar to those of His Majesty’s other Subjects in the Province, and as such cannot be expected to be equally considered or attended to by the Representative Body.—Under this view of the case, The Special Committee are induced humbly to submit whether in order to obtain for this class of His Majesty’s Subjects such relief in the premises as the Circumstances render necessary or expedient, it might not be advisable, His Majesty’s Representative should be authorised by His Majesty s Ministers, and instructed to recommend in strong Terms to the Legislature of the Province, the passing such Law or Laws on the subject as may be needful to secure to die Petitioners and others situated as they are, the full and free enjoyment of their property and civil Rights, in as far as may be consistent with, and without injuring the Rights of His Majesty’s otber Canadian Subjects.—

The objects which, in the opinion of the Committee most immediately and peculiarly claim Legislative Provision, are;

1st. ‘ The enabling the Petitioners and other settlers of the Waste Lands of the Crown to elect and return Members to serve in assembly.’—This class of persons did not exist and therefore could not be considered when a Division of the Province for the purpose of election of Members to serve in assembly, was made by Proclamation in 1792.1 And it seems reasonable and constitutional that they should now be authorised by Law to exercise this Privilege in proportion to their numbers and property.—

2dly. ‘ The fixing the Boundaries of the respective Districts of the Courts of Justice so as that the same may with certainty be known and at all times ascertained.’— The Committee are humbly of opinion that this measure is essentially necessary, and may best be affected by fixing by a Law, the Boundaries of the Districts, to correspond with such of the Limits of Townships as may be found adjoining to the present Boundaries of those Districts.—

3dly. ‘ The Establishment of Circuit Courts.’—These appear to be much wanted from the local position of the Petitioners, remote from the places where the courts of Justice are now held.—Altho’ His Majesty by His Prerogative may erect courts of Justice wherever he shall judge proper,2 yet the Committee are of opinion that it may be advisable to form these Courts, as are all the others in this Province, by act of the Legislature.—

4th. ‘ Provision for making and repairing the Public High Ways & Roads.’—The position of these new Settlements, the mode of allotment of the Lands, the Tenure, and the Reserves in the Townships, all contribute to render the present Road Act of the Province, utterly inapplicable to the Situation of the Petitioners, a different provision in this respect therefore appears indispensably necessary.—

5th. ‘ Offices for the enregistration of Deeds.’—The want of some establishment of this nature is already most sensibly felt, and appears urgently to require Legislative Provision.—On these two last objects it may not be improper to cite as an example the legislative provision made in respect thereof in the Province of Upper Canada,3 where the Tenure of the Lands and situation of the people are nearly the same as those of the Petitioners.—

The three other objects contained in the prayer of the Petitioners may in the opinion of the Committee be provided for without the intervention of the Legislature.—

6th. Of these the Sixth object—’The establishment of a new port of Entry, at or near the Lines or the relinquishment of Duties on Imports from the United States for a certain time.’—Although the committee are of opinion that all intercourse between the American States and this Province for the Importation of Goods, ought in policy to be discouraged and restrained, the situation of the new Settlers in that

1. For the Proclamation see page 72. 2. See the Commission of Lord Dorchester, page 11. 3. Registry offices had been established in Upper Canada in 1795. See the Provincial Statute, 35 Geo. III , Chap. V.

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part of the Province (many of whom come from the United States, bringing in with them property and effects, and having at present from the want of Roads & communication with the other parts of the Province, no other means olsupplying themselves with the goods & articles they stand in need of) appear to be such as to require for a time at least, that opportunity be offered for their doing under the sanction of Law, what must in all probability otherwise take place without it, at the risk of Seizure of the Goods or Articles so introduced.—The committee are therefore of opinion that for this purpose it may be expedient that a port of Entry be established chiefly with a view of accommodation to the new Settlers in that Quarter, under such Regulations as to Your Excellency may seem best suited to the circumstances of the case, Ss agreeably to the powers vested by Law in the Governor and council.—

7th. The Seventh object—’ The establishment of a Protestant clergy to reside in these new Settlements ‘—is undoubtedly of the very first importance.—Although a very long time will probably elapse before the Lands reserved as a provision for the maintenance of a Protestant clergy will be sufficiently productive to maintain clergymen in the different Townships—The Committee are happy to find from the information of the Lord Bishop of Quebec, that means actually exist through the Bounty of Government of placing one clergyman in this neighbourhood, whenever the Settlers shall shew themselves disposed to do what may be reasonably expected on their part, by engaging to build a decent place for divine Worship—a suitable residence for the clergyman—and to contribute towards his Support in as far as their faculties will permit: and presuming to rely upon the well known bounty of Government for the further promotion of so essential an object, The committee are humbly of opinion that the Petitioners might be apprized that such Settlers in the Townships as may come forward in a proper manner with suitable proposals as above stated, may look with confidence for a speedy attention to their Wants.—

8th. On the Eighth Object—’ The appointment of Magistrates and organization of the Militia.’—The Committee have only to observe that these objects appear to be worthy of that attention which they are assured they will receive from Your Excellency as soon. & as far as the circumstances will permit.1-

All which is nevertheless submitted to Your Excellency’s Wisdom.—

By order (Signed) JOHN YOUNG Chairman.

REPORT OF THE ATTORNEY GEKERAL.2

To the Honorable the Committee of the Executive Council, &a &a

GENTLEMEN,

I n obedience to the reference made by your order & communicated to me in a letter from the HonbIe J. Young, of the 2nd of April last, directing me to report my Opinion upon the subject matters of the 1st 3r d 5t h & 8th Articles of the Memorial of the Inhabitants of the Townships of Stanstead, Hatley &° dated the 6th of March, last, and presented by their Agents Oliver Barker, Jesse Pennoyer, & Charles Hyatt, to His Excellency the Lieut Governor, I have attentively considered the questions which these Articles suggest, & have now the honor of submitting my sentiments upon them to your consideration.

1. With reference to this point, Sir Robert Milnes reported that since the memorial was presented the Militia of the Townships had been organized and officers appointed under the command of Sir John Johnson to whom a commission as colonel had been given. See Milnes to Camden, August 1st, 1805, Canadian Archives, Q. 98, page 109. 2. From the copv in the Canadian Archives, Q. 98, page 123.

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I presume that my Opinion is required as to the legal means by which the objects pointed out by the Memorial may be attained & no more, and to these I shall therefore confine myself, abstaining from all enquiry into the expediency of the measures proposed which by His Excellency’s reference I humbly conceive is submitted exclusively to the Superior wisdom of the Committee.

Under this supposition, the questions which are offered to my consideration appear to me to be the following.

1st By what authority can new Counties be erected in this Province?

2ndly Inhabitants of the new Townships enjoy the privilege of sending Members to the Provincial Parliament? and by what authority can this privilege be granted to them?

3rdly Can they have the benefit of a Circuit Court within the limits of their respective Townships? and by what authority can these benefits be granted to them?

4thly Can they have the benefit of an Office for the registry of Deeds? and by what authority can this benefit be granted to them?

5thly What is the legal course to supply the want of Magistrates & subordinate Officers of Justice in Criminal Cases?

Upon the first Question, by what Authority can new Counties be erected in this Province?

By the fourteenth Section of the Act 31st Geo III.1 C. 31. passed in the Parliament of Great Britain, it was enacted, ” That for the purpose of electing the Members of Assemblies (in the Provinces of Upper & Lower Canada) it shall and may be lawful for His Majesty, his Heirs, or Successors, by an Instrument under his or their Sign Manual to authorize the Governor &° to issue a Proclamation dividing such Provinces into Districts, or Counties, or Circles, or Towns, or Townships, & appointing the limits thereof, & declaring and appointing the number of representatives to be chosen by each of such Districts or Counties, or Circles, or Towns, or Townships respectively,” and that such division of the said Provinces into Districts, or Counties, or Circles, & Towns, or Townships &° shall be valid and effectual to all the purposes of this Act, unless it shall at any time be otherwise provided by any Act of the Legislative Council & Assembly of the Province, assented to by His Majesty, his Heirs, or Successors.

Under this Authority, by a Proclamation issued by His Excellency General Clarke, on the 7th May 1792,2 the Province of Lower Canada was divided into Counties, So distinctly, that a bare perusal of the Proclamation evinces that there is no part of the Province which is not included within the limits of one or other of the Counties;— And the limits of every County being thus fixed by An Act of the Parliament of Great Britain, I am of opinion that they cannot now be changed without An Act of the Imperial Parliament, or an Act of the Provincial Parliament under the Proviso above cited.3

Upon the second Question, Can the Inhabitants of the new Townships enjoy the privilege of sending members to the Provincial Parliament? & by what Authority can this privilege be granted to them?

To be represented in the Provincial Parliament appears to be the great object of the Subscribers to the Memorial before me.

In that part of it which prays that new Counties may be established, they appear to solicit the creation of new Counties, in the expectation that Members would immediately be summoned of course to the House of Assembly from each of them. And this, as I have stated, without the Authority of an Act of Parliament cannot be done. I am however, of opinion that His Majesty may, by Letters Patent erect any of

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 698. 2. See page 72. 3. See the opinion of Sir James Craig on this point, page 396, and also of Sir Vicary Gibbs, page 406.

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the new Townships into Boroughs or Cities, & give them power to elect, and send Members to the Provincial Parliament—This was formerly done in Ireland & ” upon doubt conceived whether that form had sufficiently enabled the new Boroughs to send Burghesses, it was referred to all the Judges, and it was resolved by them all, but two, that it was sufficient.” And I do not conceive that such a proceeding here would in any way militate with the Letter or spirit of the 31. Geo. III. C. 31. for that Act does not limit the number of representatives to be summoned by His Majesty to the House of Assembly ; it only declares that they shall not be less than fifty, which is the number at present; nor do I conceive that the division of the Province into Counties, or the erection of the Cities of Quebec and Montreal, or the erection of the Boroughs of Three Rivers & William Henry, by the Proclamation of the 7th May 1792—can in any way affect the question. The former has indeed (as I have already explained) fixed the number of County Members & the latter has also fixed the number to be returned from the Cities of Quebec & Montreal, and from the two Boroughs of Three Rivers & William Henry. But this in my Apprehension is their entire effect.

Upon the Third Question,

Can they have the benefits of a Circuit Court within the limits of their respective Townships? and what Authority is competent to grant them these Benefits?

By the Provincial Statute 34. Geo. III. C. 6 1 the whole Province was divided into Three Districts, a Court of King’s Bench appointed for each, & a particular Circuit prescribed for the Judges of each Court in their respective Districts. It is, therefore clear, that, without the Authority of a new Act, neither the limits of the Districts, nor the powers of the Judges, with respect to Circuits, can be enlarged. At the same time, I beg leave to cite the following Section of the Act 14 Geo : III. C. 83.2

” And be it further Enacted by the Authority aforesaid, that nothing herein contained shall extend, or be construed to extend to prevent or hinder His Majesty, his heirs, or Successors, by his or their Letters Patent under the Great Seal of Great Britain from erecting, constituting, and appointing such Courts of Criminal, Civil, & Ecclesiastical Jurisdiction within and for the said Province, and appointing from time to time the Judges and Officers thereof, as His Majesty, his heirs, & Successors shall think necessary and proper for the circumstances of the said Province.”

For I am of opinion that under this Clause or rather by the Royal Prerogative (of which this Clause is merely declaratory, & which the Provincial Act 34 Geo : III. c. 6. or Judicature Act has by no means affected) His Majesty, by Letters Patent under the Great Seal of Great Britain, may erect as many Courts in the new Townships as in his Wisdom he may see fit, & grant to them a concurrent Jurisdiction with the King’s Bench for the administration of the Law of this Province, in all causes to the extent of 40/. ten Pounds or more.

Upon the fourth Question,

Can they have the benefit of an Office for the registry of Deeds? and by what authority can it be granted to them?

It is very certain that they may have the benefit of an Office for the registry of Deeds—whenever it shall please the Provincial Legislature to pass an Act for this purpose. But I am clearly of opinion that nothing short of An Act of the Legislature can grant it to them.

Upon the fifth Question,

What is the legal course to supply the defect of Magistrates and subordinate Officers of Justice in Criminal Cases ?

Every new Country experiences the want of Magistrates, nor can this defect be

1. See page 125. 2. The Quebec Act. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 405.

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supplied until the improved state of their Society furnishes a sufficient number of persons qualified by Education for this important trust.

If they have at present a sufficient number of persons who are qualified, a new Commission of the Peace may issue & is the legal course to supply this want. The subordinate Officers of Justice may be furnished by the appointment of Captains and other inferior Officers of Militia, who under the Ordoe 27 Geo : III. C. 6.1 are all Peace Officers : and where there are no Militia Officers the Magistrate may address his Warrant to any Individual by name, who, in consequence thereof, becomes a Peace Officer pro hac vice.

All which is, nevertheless most respectfully submitted by &c. J. SEWELL Attoy. General— R.S.M.

Quebec 10 May 1805 Endorsed. (B) Copy

The Attorney General’s Opinion for the Honble Committee of the Execuve Council, upon several Articles of the Memorial from the Inhabits, of Stanstead, Hatley &c.

Dated 10th May 1805.

In Lt. Governor Milnes’s N°. 31. To the Earl Camden

PROCLAMATION CONFERRING THE GOVERNMENT OF LOWER CANADA ON MR. DUNN.2

BY HIS EXCELLENCY SIR ROBERT SHORE MILNES, BARONET, LIEUTENANT GOVERNOR OF THE PROVINCE OF LOWER CANADA &ca &ca &ca.

WHEREAS OUR SOVEREIGN LORD THE KING, by Certain Letters Patent Under the Great Seal of Great Britain, bearing date At Westminster, the Fifteenth day of December, in the Thirty Seventh Year of His Reign,3 hath been pleased to declare, that in Case of the death, absence, removal or suspension of the Governor and of the Lieutenant Governor of this His Province of Lower Canada, the Oldest Member of the Executive Council of the Said Province, being a Natural born Subject of Great Britain or of Ireland, or of the Colonies and Plantations, Professing the Protestant Religion, and residing within the Said Province, Shall take Upon him the Administration and Government of the Said Province and Shall Execute His Majesty’s Commission of Governor of the Said Province, his Instructions thereon and the Several Powers and Authorities therein Contained, to All Intents and Purposes, as Others, His Majesty’s Governors, Lieutenant Governors and Persons administering the Government of His Majesty during such Absence and Until the further pleasure of His Majesty Shall be Known therein.

AND WHEREAS His Excellency Robert Prescott Esquire, Governor of the Said Province is Now by the Royal Permission Absent from this Province, And His Majesty hath been most Graciously pleased Also to permit me the Said Sir Robert Shore Milnes to Absent myself from the Said Provinice.

THEREFORE I have thought fit by and with the Advice of His Majesty’s Executive Council of and for the Said Province, to make Known by this Proclamation, the Will

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1997, page 505. 2. From the original in the Canadian Archives, Sundry Papers, Lower Canada, 1805. 3. The commission to General Prescott of this date is in the same terms as Lord Dorchester’s commission, page 5. On this point see page 12.

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and Pleasure of His Majesty in the Premisses, Unto All whom it doth or shall in any wise Concern.

AND THAT by reason of the Absence of His Excellency Robert Prescott Esquire, and of Me the Said Sir Robert Shore Milnes, from the Said Province, The Administration of the Government of the Said Province, from and After the departure of me the Said Sir Robert Shore Milnes from the Said Province, will devolve upon the Honourable Thomas Dunn Esquire.1—He the Said Thomas Dunn being the Oldest Member of His Majesty’s Executive Council of and for the Said Province of Lower Canada Who is A Natural born Subject of Great Britain, Professing the Protestant Religion.—And that He the Said Thomas Dunn, Under and by Virtue of the aforesaid Letters Patent will thenceforth take Upon him the Administration of the Government of this Province and Execute His Majesty’s Commission of Governor of the Said Province and the Royal Instructions thereon and the Several Powers and Authorities therein Contained to all intents and purposes as Other His Majesty’s Governors, Lieutenant Governors Or Persons Administering the Government during the Absence of His Excellency Robert Prescott Esquire and of me the Said Sir Robert Shore Milnes from the Said Province, and Until His Majesty’s further pleasure in the Premisses Shall be Known.

Of all which the Officers of His Majesty’s Government and All Others His Majesty’s Subjects in this Province And Generally All whom the Premisses shall or may in Any Wise Concern, Are hereby required to take Notice and govern themselves Accordingly.

GIVEN under my Hand and Seal at Arms at the Castle of Saint Lewis in the City of Quebec the Thirty first-day of July in the Forty fifth year of His Majesty’s Reign.

By His Excellency’s Command, Nath Taylor Dr Secy

ROBT S MILNES

AN ACT RESPECTING THE TRIAL OF CONTROVERTED ELECTIONS, UPPER CANADA.2

IN THE FORTY-FIFTH YEAR OF GEORGE THE THIRD.

GEORGE THE THIRD.

CHAP. III

An Act to Regulate the Trial of Controverted Elections, or Returns of Members to serve in the House of Assembly.

[Passed 2d March, 1805.

WHEREAS the present mode of decision in this Province, upon Petitions complaining of undue Elections, or Returns of Members to serve in the Parliament thereof, is defective, for want of those

1. See page 14, note 5. 2. From The Statutes of His Majesty’s Province of Upper Canada in North America, York, 1805. The proceedings in the trial of a contested election under this Act may be found on page 416. The provisions of this Act were repealed by the Statute of 4 Geo. IV, Cap. IV. The Statute of Lower Canada relating to the same subject is given at page 332.

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sanctions and solemnities which are established by Law in other trials, and is attended with many inconveniences :1

For remedy thereof, be it enacted by the King’s most excellent Majesty, by and with the advice, and consent of the Legislative Council, and Assembly, of the Province of Upper Canada, constituted and assembled, by virtue of, and under the authority of an Act, passed in the Parliament of Great Britain, intituled, “An Act to repeal certain parts of an Act, passed in the fourteenth year of his Majesty’s reign, intituled, “An Act to make 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,” and by the authority of the same, That every petition, complaining of an undue Election, or return of a Member, or Members, to serve in the House of Assembly, shall contain the grounds and reason of complaint, and in ease the Housa of Assembly, shall think such grcainds and reasons (if true) sufficient to make the election! void, a day and hour shall, by the said House be appointed, for taking the same into consideration, and notice thereof, in writing, shall be forthwith given by the Speaker, to the petitioners, and the sitting Member, or Members, or their respective agents, accompanied with am order to them to attend the House at the time appointed, either in person, or by their counsel or agents.

II. Provided always, That no such petition shall be taken into consideration within fourteen days after the same shall have been first read in the House by the Clerk, unless by consent of parties.

III. And he it further Enacted hy the Authority aforesaid, That at the time appointed for taking such petition into consideration, and after reading the order of the day for that purpose, the tion. House shall be cleared, an’d the Members thereof (excepting the Member or Members whose election shall be contested) with the Speaker, shall be sworn at the Table, well and truly to try the matter of the petition referred to them, and a true judgment give, according to the evidence; the Speaker shall then take the Chair, the doors shall be opened, and the petitioners, their counsel, or agent shall attend.

IV. And be it further Enacted by the Authority aforesaid, That the witnesses for the petitioners shall be ordered by the Speaker to retire without the House, and the petitioners, their counsel, or agent, shall call them in one by one, for examination, and each and every witness, as aforesaid, shall be sworn at the Bar of the House, and the names of the witnesses, for either party, shall be given in to the Clerk of the House, before they are sworn.

1. The petition against the election of Henry Alleoek for the East Riding of the Counties of York and the Counties of Durham and Simcoe in 1801, led the Legislative Assembly to consider the regulations for the trial of contested elections. Two rules were then adopted,—1st that all Petitions complaining of undue elections should be referred to a Committee of the Whole House. 2nd, that the House do appoint the time for hearing the petitions and that the Speaker do give notice of the time to the Parties. I n considering this petition the Assembly decided that witnesses should be neard without being sworn and that the evidence of the petitioners in a ease should be received. (See the Journals of the Legislative Assembly of Upper Canada for June 3rd and 10th.) During the succeeding four yeaTs no cases arose so that the procedure prior to this Act remained as in 1801.

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V. And be it further Enacted by the Authority aforesaid, That after the witnesses for the petitioners shall have been fully examined, the sitting Member, or Members, shall be requested by the Speaker, to make a defence, and the witnesses for the said sitting Member, or Members, shall be ordered to retire, shall be separately called in for examination, and shall be sworn in manner aforesaid; provided nevertheless, That whenever any Member of the House shall be a witness for either party, he shall not be obliged to retire, as aforesaid ; but he shall be sworn in his place.

VI. And be it further Enacted by the Authority aforesaid, That the said sitting Member, or Members, whose election shall be contested, as aforesaid, shall not be allowed to vote upon any question, which shall arise in the course of’the trial, or upon the determination thereof.

VII. Provided always, That no such determination as aforesaid, shall foe made, nor any question be proposed, unless there be a quorum of the House; and no Member shall have a vote on such determination, or any other question, or resolution, who has not attended during the whole of the trial.

VIII. And be it further Enacted by the Authority aforesaid, That the oaths by this Act directed to be taken, shall be administered by the Clerk of the House, and that any person who shall be guilty of wilful and corrupt perjury, in any evidence, which he shall give before the House, in consequence of the oath, which he shall have taken by the direction of this Act, shall, on conviction thereof, incur, and suffer the like pains and penalties, to which any other person convicted of wilful and corrupt perjury is liable, by the Laws and Statutes of this Province.

GRANT TO CASTLEREAGH.1

No. 14.

York, Upper Canada 14th March 1806.

My Lord,

It will be necessary for me to submit a short statement of the Revenue of this Province, for the better understanding the purport of an address of the House of Assembly and the Schedule of accounts to which it refers, with my answer thereto, which I have now the honor to transmit to your Lordship.

The Revenue of this Province arises in part from certain Duties, which previous to the eighteenth year of His Majesty’s Reign, had been imposed on the Province of Quebec by the authority of the British Parliament—and partly from Taxes and Duties imposed by the Legislature of this Province, together with an eighth part of the Duties laid on Goods imported into Lower Canada (under the authority of it’s Legislature) by virtue of an agreement between the two Provinces.2

1. From the copy in the Canadian Archives, Q. 304, page 10. Robert Stewart, Viscount Castlereagh, was born in 1769. His early political activities were centered in Ireland where, as chief secretary, he was largely instrumental in securing the passage of the TJnion Bill. From the union until his death in 1822 he held a seat in the Imperial Parliament. His services were of value to the Addington Ministry and in 1802 he was appointed President of the Board of Control for East India with a seat in the cabinet. He continued to hold this seat in Pitt’s Administration and in July, 1805, in addition was made Secretary of State for the War and Colonial Department. 2. The agreement which fixed on an eighth as the share of Upper Canada of the duties imposed by Lower Canada was originally formed in February, 1795. A new agreement was reached in 1797, but the division of the duties remained the same. This arrangement was continued by agreements of 1801 and 1805 and confirmed by special legislation in each province.

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From the Establishment of this Province, to the year 1803, the Taxes and Duties imposed by its Legislature, together with the eighth part of the Duties abovementioned, amounting to about Three thousand Pounds annually, were considered as solely at the disposal of the Parliament of this Province, and were, for the greater part, from year to year, appropriated by it for specific purposes within the same, the Residue of such Taxes and Duties remaining in the hands of the Receiver General, subject to future appropriations by the same authority.

In the year 1803, by direction of Lieutenant Governor Hunter, accounts of a nature similar to those stated in the beforementioned Schedule1 (being expences incidental to the administration of Justice and the Civil Government of the Province) were charged against and paid out of the above Residue in the hands of the Receiver General, without any appropriation by the Legislature of this Province for that purpose.

For two years, such charges were laid before that Legislature, and no complaint was made for the want of Parliamentary appropriation of the abovementioned Residue, so applied; When the Administration of the Government of this Province devolved on me, confiding in the Judgment and Ability of Lieutenant Governor Hunter, I did not feel myself at Liberty, in my Temporary situation, to discontinue what he had authorized.

In what manner the House of Assembly considered this matter at the last Session of the Legislature, the address sufficiently indicates; the answer given by me to that address, was, to the best of my Judgment, suited to the occasion.

The Language of that address is intemperate, especially when the Bounty of Great Britain to this Province is taken into consideration : But I should be sorry, if Your Lordship supposed, that the Members of the House of Assembly for the greater part are inimical to the measures of Government, they wish to do what is right, but sequestered from the World, and some of them not having had the benefit of a Liberal Education, they are ready to be too easily influenced by the persuasion of others, who, by their means, endeavor to perplex, if not to distress, the Administration of the Government of this Province.

I must however, respecting the subject of the address, candidly confess, and since the prorogation of the Legislature I have taken every means to be informed, that I cannot discover any authority by which the Governor, Lieutenant Governor, or person administering the Government, possesses the power of appropriating to specific purposes any part of the Revenue raised for this Province by the Acts of it’s Legislature, without the assent of that Legislature to such appropriation.

I therefore cannot help offering it to your Lordship, after the best consideration that I am able to give this subject, as my opinion, that matters should be put on the same footing as they were, from the Establishment of the Province to the year 1808, and that the Items of expenditure charged ira the year 1805, mentioned in the address of the House of Assembly, and stated in the Schedule should be withdrawn as charges against the Taxes and Duties imposed by Provincial authority ; this would give complete satisfaction, and I have little doubt, but that in such case, as in Lower Canada,2 the Legislature would appropriate a sum, according to it’s abilities, for the support of the Civil Government of this Province, out of the Revenue which is raised by its authority: I make this observation with the greater confidence, as One hundred Pounds Currency has last session of the Legislature been appropriated out of the Revenue for the payment of the Salaries due to the Sheriffs of the Eastern and Western Districts of this Province, which Salaries were not, nor ever had been, charged against that Revenue in the Public accounts.

1. For the schedule see the Canadian Archives, Q. 304, page 17. 2. See the Provincial Statute of Lower Canada, 35 Geo. III , Chap. IX, an Act providing for the charges of the Administration of Justice and for the support of Civil Government within the Province.

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I will, so soon as they can be prepared, transmit to your Lordship, the acts passed in the last Session of this Legislature—

I have the Honor to be, My Lord, With every sentiment of obedience and Respect, Your Lordships, Most Obedient and Most Humble Servant ALEXR. GRANT1 President Administering the Province of Upper Canada.

The Right Honble Lord Viscount Castlereagh One of His Majesty’s Principal Secretaries of State.

Endorsed:—Upper Canada 14th March 1806. Mr President Grant No. 14. R/9 July.

ADDRESS OF THE LEGISLATIVE ASSEMBLY TO PRESIDENT GRANT.2

To His Honor Alexander Grant Esquire President Administering the Government of the Province of Upper Canada &c, &c, &c.

May it please your Honor,

We His Majesty’s most dutiful and loyal Subjects the Commons of Upper Canada in Parliament assembled, have, conformably to our early assurance to your Honor, taken into consideration the Public Accounts of the Province; and have, on a due investigation of the same, to represent to you that the first and most constitutional privilege of the Commons has been violated in the application of Monies, out of the Provincial Treasury to yarious purposes, without the Assent of Parliament or a Vote of the Commons House of Assembly.

To comment on this departure from constituted authority and fiscal establishment, must be more than painful to all, who appreciate the advantages of our happy Constitution!; and who wish their continuance to the latest posterity: but however studious we may be to refrain from stricture—we cannot suppress the mixed emotion of our relative condition—we feel it as the Representatives of a free people—we lament i t as the Subjects of a beneficent Sovereign and we hope that you in your relation to both will more than Sympathize in so extraordinary an occurrence.

We beg leave to annex hereto a Schedule of the monies so misapplied, amounting to Six hundred and seventeen pounds thirteen shillings and seven pence and that you will not only order, this sum to be replaced in the Provincial Treasury, but will also direct, that no monies be issued thereout in future, without the Assent of Parliament or a Vote of the Commons House of Assembly.

Commons House of Assembly the first day of March One thousand eight hundred and Six—

(Signed) ALEXR. McDONELL, Speaker

1. See page 34, note 3. 2. From the original address in the Canadian Archives, Legislative Addresses and Messages, Upper Canada.

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REPLY OF PRESIDENT GRANT TO THE ADDRESS OF THE LEGISLATIVE ASSEMBLY.1

Gentlemen of the Commons House of Assembly.—

I learn with Regret from your Address of the 1st March, that a Degree of Dissatisfaction prevails ini the Commons House of Assembly, with respect to the application of a Sum of Money, Stated to amount to Six hundred and Seventeen Pounds, thirteen Shillings and Sevenpence. At the time of my Accession to the Administration of the Government, I found that various Items, similar to those in the Schedule accompanying your Address, had been charged against the Provincial Revenue and acquiesced in for two years preceding, and I directed the usual Mode to be followed in making up the Accounts which I ordered to be laid before you during the present Session. The Money in Question has been undoubtedly applied to Purposes useful and Necessary for the general Concerns of the Province. As I am however desirous to give every reasonable Satisfaction to the House of Assembly, I shall direct the Matter to be immediately investigated, and if there has been Error in Stating the Accounts, take Measures to have it corrected; and obviated for the Time to come.

(Signed) ALEXANDER GRANT, President.

York, Upper Canada 3d March 1806.

OPINION OF THE ATTORNEY AND SOLICITOR GENERAL ON THE ADDRESS OF THE LEGISLATIVE ASSEMBLY.2

Lincoln’s Inn. May 12th 1807.

Copy for Lt Govr Gore. June

My Lord

We had the Honour to receive your Lordship’s Letter dated the 6th of May 1807s transmitting to us a Copy of a Letter dated Upper Canada the 14th of March 1806 4 from the President of the Council then holding the Civil Administration of that Colony, containing an Address from the Assembly5 upon the subject of certain monies which had been appropriated out of the Provincial Revenue by order of the Lieutenant Governor—and also enclosing a Memorandum6 lately drawn up in London by M1 Justice Powell in explanation of the Proceedings to which the Address refers.

And stating that the Revenue of the Province arises partly from certain duties which previously to the 18th year of His Majesty had been imposed on the Province of Quebec by the Authority of the British Parliament subject to be applied to the purposes therein mentioned, by Warrant from the Lords Commissioners of the Treasury and the residue reserved for the future disposition of Parliament.

1. From a contemporary copy in the Canadian Archives, Legislative Addresses & Messages, Upper Canada. The reply of President Grant was referred to a Committee of the Whole House. The committee reported having passed a resolution but the Assembly, on the vote of the Speaker, refused to receive the report Parliament was prorogued on the same day so that no opportunity was given for further consideration of the address. 2. From the copy in the Canadian Archives, Q. 810, page 152. A copy of this opinion was transmitted to Lieutenant-Governor Gore on June 19th, 1807. See page 330. 3. This letter as at Q. 310, page 149. 4. See page 318. 5. See page 320. 6. For the memorandum see the Canadian Archives, Q. 304, page 22.

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And also containing an Extract from the Canada Act of the 31st of the King Cap. 81. Sect: 46 & 47.

And stating further that under this clause it was conceived by the House of Assembly of Upper Carnada, that no money arising from the said Duties could be issued, for the purposes of Government, in this Province, except under a previous appropriation, aad that the residue of all monies lying in the hands of the Receiver General, being the Produce of the said Duties, must be in the Custody of the said Receiver till Authority were given by the Legislature for him to issue it, or any part of it.

That in Opposition to this Construction of the said Act by the House of Assembly of Upper Canada, it was contended that when the produce of any Taxes were granted to the Crown, the said produce was disposeable by the Crown or its Representative for the purposes of the Province, subject to the subsequent revision and approbation of the House of Assembly, except as to such part of the produce of the said Duties as had been particularly appropriated by the Legislature—And requiring us to take the subject into consideration and report to Your Lordship for his Majesty’s information what directions it may be proper to furnish to the Lieutenant Governor upon the point in question.

We have accordingly taken the same into consideration, and whatever Opinion might have been entertained on this Subject, had it been left open to general reasoning, we think that in the present case the question is decided by the explicit Terms of the Canada Act of the 31st G. 3. ch. 31. Sect. 46, 7. by which it is enacted, ” that the net produce of all Duties which shall be imposed for the regulation of Navigation and commerce shall at all times hereafter be applied to and for the use of each of the said Provinces respectively, and in such manner only as shall be directed 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 such Province.”1

By this Clause we conceive it to be clear that the Application of the nett produce of the Duties to any purpose without the direction of a Law made by His Majesty, with the consent of the Legislative Council, and Assembly, is directly prohibited, and consequently that it would be acting in direct opposition to this statute to make such an unauthorized application, however proper the purposes might be to which the application might be made—

We submit therefore whether immediate directions should not be given to the Lieutenant Governor of the Province to assure the Assembly that in future the Canada Act above mentioned would be inviolably adhered to, and the produce of Duties applied only in the manner therein directed.

With respect to the past misapplication of such produce without the authority of the Legislature, we submit whether it may not be proper to direct the Amount thereof to be replaced at the disposal of the Legislature, accompanied however with an Intimation that as the purposes to which the money had been applied were purely provincial, and acquiesced in by the Legislature, it might not be improper to expect that the Commons House of Assembly would with the concurrence of the other

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 707.

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Branches of the Legislature sanction the past and provide in future for similar contingencies within the Province.1

We have the Honor to be My Lord, Your Lordship’s most Obedient humble Servants.

V. GIBBS THOs. PLUMER.

The Right Honble. Lord Castlereagh &c. &c.

Endorsed:—Lincoln’s Inn 12th May 1807. The Attorney & Solicitor General. Copy to Lt. Govr. Gore. 19th June 1807.

OBSERVATIONS ON THE GOVERNMENT OF CANADA BY JOHN BLACK.2

TO FIELD MARSHALL HIS ROYAL HIGHNESS DUKE OF KENT &ca. &ca. &ca.

…………………………………………………………………………….. ……………………….

The following observations are humbly submitted to your Royal Highness for the Information of His Majesty’s Ministers which I trust will shew that the existing laws and Constitution of His Majesty’s two Provinces of Upper & Lower Canada are unequal to the promoting of those subjects so necessary for the good of this Kingdom to which the Canadians are so well calculated essentially to contribute. By the Legislature of Lower Canada, the goods bound through that Province to Upper Canada are subjected to a Duty, notwithstanding they have each a separate Government, an Upper and a Lower House of Parliament to Legislate for themselves—this will ultimately lead to mischief although Lower Canada accounts to Upper Canada for their proportion.

The House of Assembly of Lower Canada is composed of Fifty Members, and notwithstanding the Government and Commerce of the Colony are in the hands of

1. Lieutenant-Governor Gore’s speech opening the parliament of 1807 contained the following reference to this subject. “I have ordered the proper Officer to lay the Provincial Accounts before you, and have given instructions that the unappropriated sums of money raised under the authority of this Parliament, taken out of the Provincial Treasury, and applied to the payment of certain public contingent expenses in the year 1805, as stated in the accounts laid before you during the last session of this Legislature, shall be replaced. I am, however, fully confident that you will unite with me in sentiments of loyalty and gratitude, while reflecting on the very liberal supplies annually aflorded to this Province by the bounty of Our Parent State for its necessary expenditures. And i t will be for the House of Assembly to consider whether some appropriation, of the Bevenue ought not to be made on its part to relieve (as far as its ret sources will permit) the Mother Country from the Burthen of the Contingent Expenses incidental to the support of the Civil Government, and the administration of Justice in this Province.” See the Journal of the House of Assembly of Upper Canada, 1807, page 5. On March 7th, 1806, a few days after the address had been passed, the Assembly resolved to relinquish the sum appropriated by Lieutenant-Governor Hunter without the consent of the other branches of the Legislature and an address to that effect was presented to the Lieutenant-Governor. 2. From the copy in the Canadian Archives, Q. 106, page 561. In the letter to the Duke of Kent which accompanied the ” Observations,” Mr. Black states that he has just returned to his native country after residing in British America for twenty-one years. Mr. Black represented the County of Quebec in the Legislative Assembly from 1796 to 1800. His letter to the Duke of Kent is endorsed ” Observations on the Government and Politics of Canada as presented to His Majesty’s Ministers in October 1st, 1806, and again in October, 1807.” The first part of the Observations is omitted because it deals entirely with the commerce of the colony.

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the English, still at the General Elections British Influence can never get more than Twelve Members returned who have to contend with the passions and prejudices of Thirty eight French; the majority of whom are by no means the most respectable of the King’s Canadian Subjects; the cause of this is the British Act of Parliament which gives to the Provinces their present Constitution—by that Act the following qualifications are required of the Electors (vizt.) in the” Cities of Quebec and Montreal, Rent to the Amount of ten pounds p. annum or real property to the Amount of five Pounds p. annum, and in all the Counties two Pounds property entitles them to a vote,1 but no qualification is required by the Said Act for the Candidate, by which means immediately ¡preceding all General Elections not only the nefarious & the Political Bankrupt, the Demagogue and the insiduous and Ambitious title of Friend of the People are all united in the Same Person, which makes the Country ring throughout into the word ” dont vote for an ” English-Man, dont vote for a ” Seignior, a ” Merchant, a ” Judge or a ” Lawyer, all of whom are represented to have an interest in Taxing and oppressing the poor, in consequence of which, a number of the representatives are contracted in their ideas & Education, and of course inadequate to judge of the propriety of enacting Laws which in critical Times prudence and foresight would dictate, such as the Alien Act, the suspension of the Habeas Corpus, or any other tending to strengthen His Majesty’s Government.

Another existing evil which I humbly submit to your Royal Highness is regarding the Government of the Militia in Lower Canada, the English and French Militia being kept in two distinct bodies, the one with the English, the other with the French word of Command, is as impolitic as absurd; for instance in Case of Insurrection Rebellion or Invasion by a Foreign Enemy, the Officer commanding His Majesty’s Forces would of course give the word of Command and in the English Tongue, a great proportion, however, of the aid in which under such circumstances the Country rerJoses speaks the same language and receives the same word of Command as the assailants, the consequences of such a system are not so difficult to forsee as they are to contemplate with Horror.

………………………………………………………………… ………………………

His Majesty’s Dominions in America in their present disjointed state are dangerously weak from the following reasons (vizt.) one province is not bound by Law to assist the other if attacked by an Enemy in case of Treason raising her standard in the Country, or if attacked from without by a Foreign Enemy, might not a misunderstanding take place between the General commanding the Kings Forces and the General commanding the Militia arising solely from this cause, similar to the differences which occurred in Sepr. 1759 amongst the French Officers, who were jealous of the Fame of General Montcalm and which contributed so much to the ultimate subjugation of the Province.

Your Royal Highness will perceive that one Colony in the event of an attack, as things are at present, not only receives no aid from the others, but by the misunderstanding which it is possible might arise between the General and Governor, they might even become hostile to each other at the moment of danger.

The Remedies which I would suggest for the Evils classed under the different Heads is to unite the Provinces of Upper and Lower Canada if it conveniently can be done, if not erect eight new Counties on the three Million acres of Land recently granted who would return two Members each—to make the Parliament sit for seven years in lieu of four years, and render a qualification necessary for every Member to the extent of at least one hundred and fifty pounds p Annum in landed property, or a permanent Salary to that amount—I should here wish to observe to your Royal

1. See Article XX. of the Constitutional Act, 1791, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 699.

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Highness, the impossibility the Country can prosper under the present constitution which draws forth a majority of the most inflamed of the worser order, whilst the qualification proposed would draw forth the Sense and Education of the Country.

The uniting the Provinces or erecting eight new Counties would bring the English considerably nearer the French in point of Number, and as it is but too evident in all Countries the Head of a Party will prostitutionally oppose His Majesty’s Government untill they are called into power or obtained some situation equal to their views.

By having a seven years Parliament Your Highness will perceive that the evil of,being obliged to provide for such scrambling Demagogues will more seldom occur; either uniting the two Provinces or erecting new Counties will add eight Members to the Legislative Council.

The Remedy for the evil complained of under the paragraph N°. 6 with humble duty and submission to Your Royal Highness seems to require a measure calculated to unite the interests of the different Provinces, which I conceive cannot be effected in any other way so well as by His Majesty’s Government appointing a Governor General and a Commander in Chief invested in the same person for the four Provinces with a Lieutent Governor in each Province to give or withold the Royal assent to the Laws, and Patronage would in that ease be equal to keeping the Parliament in order, by which means Laws would be soon made for the Provinces reciprocally to aid each other in time of danger, the Governor General and Commander in Chief I should conceive would be the proper person to receive all communications, Civil and Military Post Master General &°\ &ca. and should be Master of the Geography of the County, the English, French and German Languages, it is also necessary he should be well acquainted with the four Provinces and the Characters of those in power at present, with the Manners and Customs of the French and Germans also, if possible, as there are a considerable number of both in british America.

All of which is humbly submitted to Your Royal Highness who I hope will have the gracious and condescending Goodness to put a favorable construction on the humble efforts thus made for the good of my Country, for whose welfare Your Royal Highness is well acquainted how much I have suffered during these last twelve years and upwards and if I am so happy to give one single new Idea, I shall consider it the happiest moment in the Life of

Your Royal Highness’s, most devoted humble, and most obedient Servant JOHN BLACK, Paul Street, Finsbury Sqre.

9 Octr. 1806.

PROCEEDINGS RELATIVE TO THE PETITION AGAINST THE ELECTION OF JUSTICE THORPE.

JOURNAL OF THE LEGISLATIVE ASSEMBLY, UPPER CANADA.1

Monday, 9th February, 1807.

Prayers were read.

Read, the petition of Duncan Cameron, John Birkier, Alexander Wood, George Playter and sundry other Freeholders of the Counties of Durham and Simcoe and the East Riding of the County of York, setting forth the ineligibility of Mr. Justice Thorpe2 as a Member in this Honorable House, for the aforesaid Counties and Riding, which is as follows.

1. From the typewritten copy of the Journal of the House of Assembly of Upper Canada in the Canadian Archives. 2. Robert Thorpe had been a member of the Irish Bar. In November, 1802, he was appointed a Judge of the Supreme Couit of Prince Edward Island. In July, 1805, he was given a commission as Judge of the Court of King’s Bench for Upper Canada. As seen from the documents given above he was suspended from office on the recommendation of Lieutenant- Governor Gore. He was later appointed Chief Justice of Sierra Leone but his career here was even less happy than it had been in Upper Canada.

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To The Honorable the Representatives of the Commons of Upper Canada in Parliament assembled.

The Petition of the undersigned Freeholders of the East Riding of the County of York and Counties of Durham and Simcoe.

Most Respectfully Sheweth:—

That His Majesty’s Writ, bearing date the Twenty-first day of November now last past, did issue for the electing of a Knight to represent the East Riding of the County of York and the Counties of Durham and Simcoe in the Assembly of this Province in the place of William Weekes, Esquire, deceased.1

That William Allan, of York, Esquire, was duly appointed Returning Officer for the said Riding and Counties, and did, on the Twenty-ninth day of December, proceed to such election.

That Robert Thorpe, Esquire, one of His Majesty’s Judges in the Court of his Bench in this Province, and Thomas Barnes Gough, of York, Esquire, were the only candidates nominated by the respective Freeholders then and there present.

That Your petitioners previous to the closing of the poll, the election not being determined on view, did protest against the return of the said Robert Thorpe for the reasons and causes hereafter set forth.

That the said Robert Thorpe has been returned as a Member for the said Riding and Counties, he having a majority of votes, to wit, two hundred and sixty-eight, and the said Thomas Barnes Gough only one hundred and fifty-nine votes whereas Your Petitioners humbly conceive that the said Thomas Barnes Gough should have been returned Member of the said Riding and Counties for the reasons and causes following, to wit.

That the said Robert Thorpe, at the time of such election, was, and still is one of His Majesty’s Judges of the Court of his Bench in this Province.

That in England none of the Judges of the Court of King’s Bench, Common Pleas, Barrons of the Exchequer who have judicial places, can be chosen Knight, Citizen, or Burgess in Parliament.2

That having adopted in this Province the law of England as a rule of decision, the said Robert Thorpe was not then and now is not eligible in this Province to sit as a Member in Your Honorable House of Assembly, that in the attainment of such an object as Judge, who decides on the life, liberty and property of His Majesty’s subjects, must necessarily be liable to the frailties and passions incident to human nature, and may therefrom imbibe partialities, prejudices or prepossessions repugnant to and at war with the purity of the unsullied ermine, inimical to the independence and dignified administration of the law, and subversive of the free and constitutional liberties of His Majesty’s subjects.

That Your Petitioners have further to state with great deference to Your Honor-

1. William Weekes, the former member had been one of the leaders of the party opposed to the administration. On the occasion of a trial before Justice Thorpe of a suit in which he was interested, Weekes undertook to make a bitter attack on the government. This procedure in a Court of Justice was keenly resented by Weekes’ Counsel, Robert Dixon, and led to a duel with the result that Weekes was fatally injured. 2. Mr. Thorpe in an undated letter to Lieutenant-Governor Gore referring to this point says: ” I have anxiously considered if by any mode, I could with propriety decline being a member of the House of Assembly, and whether I look to England, or the Colonies, I can find no one authority to cover a manifest dereliction of principle. Judges are considered in the Legislature, for which reason many are created Peers and all Judges have sat in the Commons except such as are constitutionally to attend the Lords to assist when a Court of Justice. I have known a Chancellor of the Exchequer sit in his Court and Conduct all the business of Finance, the Master of the Rolls, the Judges of the Admiralty and Ecclesiastical Courts, the Chief Justice’s of Ely. Chester & the Welsh Judges, &c, &c, the Judges in Canada and in the other Colonies have constantly sat in the House of Assembly.” See the Canadian Archives, Q. 310. page 83. See also Castlereagh to Craig, Septeber 7th, 1809, private, page 364.

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able House that this procedure is unconstitutional, inasmuch as being an attempt to clothe, arm and blend in one person, the conflicting powers, authorities and jurisdiction of the Legislature and Judicial functions contrary to the spirit of good government and the immemorial usage and custom of the Commons of England, whose rules of conduct Your Honorable House has adopted as the criterion of your decisions, where not otherwise specially provided for.

Wherefore your Petitioners, conceiving that the said Robert Thorpe was not lawfully returned, and that Thomas Barnes Gough was duly elected, pray that the said return may be reformed and amended, and the name of Thomas Barnes Gough be inserted on the roll, and the name of Robert Thorpe erased therefrom. And as in duty bound your Petitioners will ever pray.

York, 4th February, 1807.

JOURNAL OF THE LEGISLATIVE ASSEMBLY.

10th February, 1807.

……………….

Agreeable to leave given the House then resolved itself into a Committee to go into the further consideration of the petition complaining of the undue return of Mr. Justice Thorpe as Member to represent the Counties of Durham, Simcoe, and the East Riding of the County of York.

Mr. Speaker left the Chair.

Mr. Cowan again took the chair of the Committee.

Mr. Speaker resumed the Chair.

Mr. Cowan reported that the Committee had gone through the consideration of the said Petition, which he was directed to report whenever the House should be pleased to receive the same.

The House then resolved that the Report he now received.

The Report was then unanimously received, and read by the Clerk at the Table, which Report is as follows.

Resolved, That it is the opinion of the Committee that the Petition of the Inhabitants of the Home District, complaining of the undue election of Mr. Justice Thorpe, does not contain sufficient grounds, if true, to make the election of the sitting Member for the Counties of Durham, and Simcoe and the East Riding of the County of York void.

The House accordingly resolved the same.1

GORE TO WINDHAM.2

No. 20.

York, Upper Canada, 13th March 1807.

Sir,

It is a sense of my Duty, in the situation I have the honor to be placed, and my regard for His Majesty’s Interest, and I will add, for the safety of this Province, that have induced me to trouble you with a tedious narrative, respecting the Character and Conduct of Mr. Justice Thorpe, one of His Majesty’s Judges of the Court of King’s Bench; the particulars I have recited are numerous, some of them at first view unimportant, but taken together, disclose in the fullest manner, circumstances respecting that Gentleman, and this Province, which I conceive it would be culpable

1. Later in the session a Bill was introduced ” to remove doubts respecting the eligibility of the Judges of His Majesty’s Court of King’s Bench to sit in the House of Assembly in this Province.” Its consideration was, however, deferred for three months. See the Journals of the House of Assembly for Upper Canada for March 4th, 1807. 2. From the copy in the Canadian Archives, Q. 306, page 59.

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in me to conceal, and I think it is highly necessary that you should be made acquainted with. I therefore with earnestness, solicit your attention, to the following statement.

Very soon after the arrival of Mr. Thorpe in this Province, his Public Conduct attracted the notice of all considerate men; “the Publication purporting to be an Address from the Grand Jury of the Home District (A)1 on the first Public exercise of his Functions as a Judge, evinced a strong disposition to make the Courts of Justice, the Theatres for Political harangues, and a subsequent one from the Petty Jury (B), (a thing heretofore unknown in this Country) afforded a sufficient proof of a desire in the Judge, to encourage Strictures on the Government from every discription of persons, however incompetent they might be to form any correct opinion upon the subject, or however foreign such a subject might be, from the occasion for which they were convened.2

………………………………………………………………………. ………………………………..

Mr Thorpe’s conduct, since he has been elected a Member of the House of Assembly,3 has been most inflammatory—And however it is to be lamented that the Government have not greater influence in the House of Assembly, for during the Session which has just closed, he had been unable to carry any one point, to embarrass the Government—He moved an Address, which was most insidious, and inflammatory, on the subject, of those Persons who had adhered to the Unity of the Empire—which was rejected—Im his proposal for vesting the Power of Appointing Trustees to the Public Schools, in the House of Assembly instead of the Lieutenant Governor, after a violent Declamation, and abuse of the Executive Government, he asserted, that it was privilege of The House of Assembly to nominate to office—in this attempt, he was supported by two only— And on a Question relating to the Duties, imposed by the 14th of the King, (which Mr Thorpe contended was at the disposal of the Provincial Legislature—) he stood alone ! amd I am happy to observe, that in the instance of a Judge of the Court of Kings Bench, making an attempt, to derogate from the authority of the British Parliament, he could not in a popular Assembly, prevail on a single person to join him, notwithstanding, his Pathetic allusions, to the Revolt of the American Colonies.

When the business of the Session was nearly concluded, an address was moved in the House of Assembly, to relinquish their claim to about six Hundred Pounds, which had been taken out of the Provincial Funds, and appropriated, by the late General-Hunter (to particular Colonial purposes—) without the concurrence of the other Branches of the Legislature,4 this measure was opposed by Mr. Thorpe with his usual violence, but without effect.

I have enclosed for your information, a statement of what passed at the first interview I had, by appointment with Mr. Justice Thorpe, soon after my arrival in this Province, and my remarks on what passed at that interview. (No. 1.5) however absurd, and malevolent, some part of Mr. Thorpes assertions may be, and however it betrays the Ignorance, and indecent warmth of that Gentleman,—these circumstances might be overlooked and forgiven, had his observations been reserved for my ear alone—but it is notorious, that M*. Thorpe upon all occasions, is anxious to introduce, and enforce those Topics, and that he has not only made them the constant subject of coraversation in all Companies, where he is admitted, but the Theme of his Declamation in the House of Assembly, and the Rule of his Political conduct.

1. See the Canadian Archives, Q. 306, pages 72 and 75 for the enclosures A and B. 2. The section of the letter which follows contains a criticism of Mr. Thorpe’s consent while on the circuit. 3. See page 825. 4. See page 823, note 1. 5. The enclosures (1) and (2) are to be found in the Canadian Archives, Q. 306, pages 99 and 106.

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Mr. Thorpe having accused the late Government of Peculation, I call’d upon him, to state to me in writing, the particular acts of Peculation that Government had been guilty of ; I transmit Mr. Thorpes answer, and my observations on his letter (No. 2).

Such, Sir, is the career, and such has hitherto been the conduct of a man, whose peculiar duty it is, to inculcate subordination; and to recommend, and enforce respect and submission to the Government—So has the confidence, and liberality of the British Government, been abused and perverted by some of its Officers in this Colony —and the friends of good order, have seen with regret and indignation, Persons sent into the Province with large salaries, and in high official Situations, industrious only in doing mischief ; spreading discontent amongst the Inhabitants—urging the Democratic Branch of the Constitution to the most extravagant assumptions of authority, and endeavouring by every means in their power, to Embarrass and weaken that Government, which they were sent to aid and support—Emissaries sent by am Enemy to seduce the affections of the People would be much less dangerous, their suggestions would be received with caution, and listened to with suspicion ; but when the Common People hear a Judge, declaiming openly against The Kings Government, and see him opposing all its measures, they cannot fail to think, that something must be wrong— little aceustom’d to that eccentricity of character, when honor, duty and even Interest, lie prostrated at the feet of vanity; it is impossible for them not to suppjose that this Conduct, must have some better foundation, than the working of a perverse self importance, determined at all hazards to be distinguished.

The above narrative I am sensible is long, and unpleasant; I have stated every circumstance from an anxiety, that you may not be misguided by a partial representation— The Documents to which I refer, speak for themselves, and authenticate my statement.

The next circuit commences early in August, when Mr. Thorpe will have another opportunity of disseminating his Opinions, I must therefore most earnestly request, that you will honor me with your Instructions relative to this Gentleman—

I have no hesitation in giving my opinion, that if His Majesty is pleased to permit Mr. Thorpe to retain his situation ini this Province, that the most serious evils may, be apprehended—Amd I ought not to conceal from you, that I have been urged, by the most respectable Gentlemen in the Colony, for the sake of Public tranquillity, to suspend Mr. Thorpe from his situation of Judge—this advice I have resisted, having time to receive your directions, before the commencement of the Circuit—And confidently relying on your support to maintain order, and authority in this Province.

I have the honor to be, Sir, with the greatest respect Your most Obedient Humble Servant

FRANCIS GORE, Lt. Governor.

The Right Honble. William Windham &c &c &c

Endorsed:—Upper Canada 13th March 1807. Lt. Govr. Gore No. 20 R/ 10 May. Twelve Inclosures.

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CASTLEREAGH TO GORE.1

Downing Street

N° 2

19 June 1807—

Sir,

Your Dispatches from N°. 10 to N°. 20 inclusive have been received and laid before the King.

The various particulars which you have stated of Mr. Justice Thorpe’s having exceeded his duties as a Judge, by mixing in the political parties of the Province, and encouraging an opposition to the Administration afford such well grounded reasons for believing that his continuance in office would lead to the discredit and disserviee of His Majesty’s Government, that I am commanded to signify to you His Majesty’s Pleasure that you do suspend Mr Thorpe from the Office of Judge in Upper Canada and measures will be taken for appointing a Successor. It is by no means intended, nor, I am sure, is it your wish that this measure should be extended beyond the limits of what I s necessary for His Majesty’s Service, and you will therefore intimate to Mr Thorpe that I hope I may be enabled to recommend him to some other professional situation under an assurance that he will confine himself to the duties of his Profession hereafter, and abstain from engaging in Provincial Party.2

…………………………………………………………………. ……………………………..

The Address of the Assembly3 relative to certain Monies which had been appropriated out of the Provincial Revenue by order of The Lieut: Governor with other papers upon this subject have been referred to the Attorney, and Solicitor General, and I herewith inclose a Copy of their opinion for your Information.4 I perceive by your letter N° 19 that you have pursued the course recommended by the Law Officers in that report; and I am happy to find that your proceedings on this occasion have produced a proper effect in the House of Assembly.

………………………………………………………………………

I have the Honour to be, Sir, Your Most Obedient, Humble Servant. CASTLEREAGH.

To Lieut: Govr. Gore. &c. &c. &c.

1. From the original despatch in the Canadian Archives, G. 55, pt. 1, page 115. 2. See page 325, note 2 3. See page 820. 4. See page 321.

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REDISTRIBUTION ACT, UPPER CANADA.1

IN THE FORTY-EIGHTH TEAR OF GEORGE THE THIRD.

CHAP. XI.

An Act for the better Representation of the Commons of this Province in Parliament, and to repeal part of an Act passed in the fortieth year of his Majesty’s reign, entitled “an Act for tht more equal representation of the Commons of this Province, and for the better defining the qualification of Electors.”

[Passed 16th March, 1808.

WHEREAS it is necessary to encrease the representation of the Commons of this Province in Parliament; Be it Enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of, and under the authority of an Act passed in the Parliament of Great Britain, intituled, “An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty’s reigm, 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,”, and by the authority of the same, That so much of an act passed in the fortieth year of his Majesty’s reign, entitled ” an Act for the more equal representation of the Commons of this Province in Parliament, and for the better defining the qualification of Electors,2 as relates to the number of members to represent the Commons of this Province in the House of Assembly, shall be repealed, and the same is hereby repealed accordingly.

II. And be it further enacted by the authority aforesaid, That from and after the end of the present parliament,3 the representation of the Commons of this Province in the House of Assembly, shall be in manner following, that is to say,4 That the county of Prescot shall be represented by one member; that the county of Glengary shall be represented by two members; that the counties of Stormont and Russell shall be represented by one member ; that the counties of Dundas, Grenville, Leeds, Frontenac and Prince Edward, except the Township of Ameliasburgh, be each represented by one member; that the incorporated counties of Lenox and Addington, be together represented by two members; that the county of Hastings, and the Township of Ameliasburgh, in the county of Prince Edward, be represented by one member ;v that the counties of Northumberland and Durham, shall together be represented by one member; the East Riding of the county of York and the county of Simcoe by one member; that the West Riding of the county of York shall be represented by one member ; that the first Riding of the county of Lincoln and the county of Haldimand shall be represented by two members, in manner following, viz. the townships of Saltfleet, Ancaster, Barton, Glanford and

1. From The Statutes of His Majesty’s Province of Upper-Canada, in North America. Printed by John Cameron, Printer to the King’s Most Excellent Majesty, York, Upper Canada, 1808. This Act was repealed by the Statute GO, Geo. III , Chap. II, which established a new basis of representation. See page 2. See page 245. 3. The fourth parliament was dissolved by a proclamation dated May 21st, 1808. 4. For the division of the Province into counties see the Act of 1798, page 222.

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Binbrook, with so much of the county of Haldimand as lies between Dundas Street and the Onondaga Village, (commonly called Bearsfoot) on the River Ouse, by one member, and the townships of Grimsby, Clinton, Gainsborough and Caistor, with so much of the county of Haldimand as lies between the Onondaga Village aforesaid and the mouth of the River Ouse, by One member; that the second riding of the Obunly of Lineóla shall be represented by one member; that the third riding of the county of Lincoln shall be represented by one member; that the fourth riding of the county of Lincoln shall be represented by one member, that the counties of Oxford and Middlesex be together represented by one member;-that the county of Norfolk shall be represented by one member; that the county of Kent shall be represented by one member ; that the county of Essex shall be represented by two members.

III. And be it further exacted oy the authority aforesaid, That no returning officer or officers who may be hereafter appointed, shall continue any election more than six days, but shall at the expiration of that time, close the poll, notwithstanding any law, usage or custom to the contrary.

AN ACT REGULATING THE TRIAL OF CONTROVERTED ELECTIONS, LOWER CANADA.1

ANNO QUADRAGESLMO OCTAVO GEORGII HI., C. 21.

An Act to regulate the Trial of controverted Elections or returns of Members to serve in the House of Assembly of Lower-Canada.

(14th April, 1808.)

WHEREAS it is necessary that provision be made for regulating the trial of controverted Elections or returns of Members, to serve in the House of Assembly of this Province.

Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Lower Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, 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,” and it is hereby enacted by the authority of the same, that after the end of the present Session of the Provincial Parliament, no petition complaining of an undue election or return of any Member to serve in the House of Assembly in this Province, shall be receivable, unless the same be presented to the House within fourteen days after the first meeting of the Legislature, ensuing the election or return complained of, and also, unless such Petition! be signed, by at least ten Electors of the County, City, Town or Borough in which the Election shall have been had, or if from an unsuccessful Candidate, shall be supported either in the same, or a distinct Petition, by the

1. From The Provincial Statutes of of Lower-Canada, Vol. IV, Quebec, printed by P. B. Desbarats. For the corresponding statute for Upper Canada, see page 316.

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signatures, (or marks certified by two witnesses,) of at least ten such Electors ; and every such Petition shall state the grounds and reasons of complaint and in case the House of Assembly, shall think such grounds and reasons, (if true) sufficient to make the Election void, a day and hour shall, by the said house, be appointed for taking the same into consideration, so that the space of twenty days at least, shall always intervene between the day of presenting such Petition, and the day appointed by the House, for taking the same into consideration, and notice therof, in writing, shall be forthwith given by the Speaker, to the Petitioners, (who shall by themselves, or some one of them, their* Counsel or Agent, attend at Quebec, for the purpose of being «erved with such notice,) and also to the sitting Member, with an order to them to attend and be heard at the Bar of the House, at the time appointed, either in person or by their Counsel or Agents, and such notice and order shall also be inserted by order of the Speaker, in the Quebec Gazette. Provided always, that such Petition may be taken into consideration at an earlier day, if the Parties shall consent thereto. Provided also, that the House may alter the day and hour so appointed for taking such Petition into consideration, and appoint some subsequent day and hour for the same, as occasion may require, giving to the respective parties the like notice of such alteration and order to attend on the said subsequent day and hour as aforesaid. Provided further, that whensoever the matters contained insuch Peti- tion, as above said, cannot be fully heard, tried and adjudged, at the same Session of Assembly, in which the same were begun, that the same may be continued and taken up, heard and adjudged upon, at the next meeting of the House of Assembly, in the same manner as if no prorogation had taken place.

II. And in order to prevent frivolous and vexatious Petitions. Be it further enacted by the authority aforesaid, that before any Petition against an election as above said, shall be brought up, or proceeded upon, in the House of Assembly, a Recognizance shall be ontered into before the Speaker of the House of Assembly,or before one of the Justices of the Court of King’s Bench, or Provincial Judge of the District, according to the form expressed in the Schedule hereunto annexed, to wit; the Petitioning Candidate, in the sum of thirty Pounds, and two other Petitioners in the sum of fifteen Pounds, each, and conditioned, that the Petitioners will appear and prosecute such aggrieved, such sum and sums of money, as the House of Assembly Petition, and will pay to such person or persons as may be thereby may award for costs and expences, that the parties, or any of them against whom the said Petition shall have been made, may be put to by reason of the said complaint, if the same should be adjudged frivolous and vexatious, or not founded on grounds sufficient to justify the Petitioners in having made the same. Provided always, that such Recognizances, as is herein before required, if taken before any such Justice of the Court of King’s Bench, or Provincial Judge as aforesaid, shall, by such Justice or Judge be certified and transmitted to the Speaker of the House of Assembly, so soon after as the same shall be taken as may be, and that no proceedings shall be had upon any such Petition as aforesaid, until such Recognizances shall be so certified and transmitted unto the said Speaker, in manner aforesaid.

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III. And be it further enacted by the authority aforesaid, that in the event of the Election or return complained of being declared void, then and in such case, the Petitioners shall recover from the Sitting Member whose Election or return shall be so declared void, (Provided such voidance arises from any Act done by or with the knowledge and consent of such sitting Member), the costs and expences awarded as above, that they or any of them shall have been put to in prosecuting their complaint, and in all cases of costs and expences so awarded by the House, the Speaker shall give a certificate thereof, and the same, if refused to be paid, shall be recoverable by action of debt, in the Court of King’s Bench or Provincial Court of the District or inferior District, wherein the Parties refusing to pay, may respectively reside.

IV. And be it further enacted by the authority aforesaid, that the Petitioners complaining of any Election or return, shall deliver to the Clerk of the House of Assembly, within a reasonable time, to be established by the Hpuse, before the day fixed as above said, for hearing the merits thereof, a list of such witnesses as they mean to produce on the trial ; and the sitting Member shall do the like ; and it shall be lawful for the Speaker of the House of Assembly, and he is hereby empowered and required, by Warrant under his hand and seal, directed to such person or persons as by him shall be specially appointed, to summon and require the attendance of the witness or witnesses, in such lists named, at the day and hour fixed for trial, to give evidence thereon, such day and hour to be mentioned in the said warrant; and it shall be incumbent upon the iperson or persons, at whose instance a Witness is summoned, and before it shall be obligatory upon such Witness to attend, according to such Summons, to advance to the said Witness, if by him required, a reasonable number of day’s expences at the rate of two shillings and six Pence per day, and also one Shilling per league, in going from and returning to hi» place of residence.

V. And be it further enacted by the authority aforesaid, that at the time appointed for taking such Petition into consideration, and after reading the order of the day for that purpose, the House shall be cleared, and the Speaker, with the Members thereof, (excepting the Member or Members whose election shall be contested,) shall be sworn at the table, well and truly to try the matter of the Petition referred to them, and a true Judgement give according to the evidence; the Speaker shall then take the Chair, the doors shall be opened, and the Petitioners, their Counsel or Agent shall attend at the bar.

VI. And be it further enacted by the authority aforesaid, that the Witnesses for the Petitioners and for the Sitting Member shall be ordered by the Speaker to retire without the House ; and the Petitioners, their Counsel or Agent, shall call their Witnesses in, one by one, for examination; and each and every Witness as aforesaid, shall be sworn at the bar of the House, before giving his evidence.

VII. And be it further enacted by the authority aforesaid, that after the Witnesses for the Petitioners shall have been examined, and all other evidence offered and allowed on their behalf gone through, the sitting Member or Members shall be required by the Speaker to make a defence, and the Witnesses for the said sitting Member or Members, shall be separately called in for examination, and shall be

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sworn in manner aforesaid. Provided always, that whenever any Member of the House shall be a Witness, he shall not be obliged to retire as aforesaid, but shall be sworn in his place.1

VIII. Provided always, and be it further enacted by the authority aforesaid, that in cases, wherein it shall appear that the expence of bringing Witnesses to the bar, would be considerable, it shall and may be lawful to and for the House of Assembly, to nomiiniate and appoint three Commissioners, (one of whom shall be Chairman) for the purpose of examining the Witnesses of the parties, at such time and at such place or places as in such reference shall be appointed, and the said Commissioners shall, before proceeding on the business of their said Commission, take and subscribe the following oath, (that is to say) ” I , A.B. do awear, that I will, without favour, affection or malice, and according to the best of my skill and knowledge, well and truly perform the duty of a Commissioner appointed to hear and examine the evidence which shall be brought before me by virtue of a reference, under the hand and Seal of the Speaker of the House of Assembly, upon a Petition, (here mention the names of the Petitioners or some of them,) according to the Rules, Regulations and Directions contained ini an Act passed in the forty eighth year of the Reign of King George the Third, intituled, “An Act to requlate the trial of controverted Elections or Returns of Members to serve in the House of Assembly of Lower Canada,” which oath the said Chairman of the said Commissioners having first taken and subscribed the same in the presence of the others, is hereby authorised and empowered to administer to the said other Commissioners; and such Commissioners shall sit every day, (Sundays and Holy days excepted,) from the hour of ten in the morning, till four in the afternoon, and shall not adjourn, for any longer time than twenty four hours, except in case of the death, sickness or unavoidable absence of one or more thereof, or except, in case of removal to another place of meeting; and the said Commissioners shall have authority and are hereby empowered, to appoint a Clerk, to take down in writing, minutes of all their proceedings, in an accurate manner, and of all such evidence as shall be given or produced before them, and the oppositions to such evidence ; which said Clerk shall be by them duly sworn so to do, and they shall proceed in examining upon oath, (which oaths they are hereby authorised to administer) all and every witness or witnesses in the above mentioned lists, who shall come before them; and the said Clerk shall make, or cause to be made, true copies of all such proceedings and evidence, and shall give one such copy to each of the parties interested, or his or their Agent, if the same shall be demanded, on being paid for every hundred words contained in the said copy, the sum of sixpence; and within1 ten days after the evidence before the said Commisioners shall be closed, the said Commissioners, or any two of them, shall cause a copy of the minutes of all their proceedings, and of the evidence to be made, and shall compare the same with such minutes, and then sign, and seal such copy, and shall transmit the said copy, so certified, to the Speaker of the House of Assembly, who shall, accordingly, communicate the same to the said House.

1. Articles V, VI, VII, have been adopted from the Act for Upper Canada, see page 317. Articles III, IV, V.

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IX. And be it further enacted by the authority aforesaid, that after a copy of the said proceedings and evidence and objections to the said evidence shall be received by the said Speaker, the said House shall appoint a day, for taking such proceedings, evidence and opinions of the said Commissioners, into consideration, and shall, on such day proceed to try and determine the merits of the said Petition, in such manner, as the House of Assembly are to proceed upon other controverted Elections, save and except, that the said House shall not call for, or receive any other or further evidence written, but the House shall determine on all such matters and things from the written minutes of the proceedings and evidence, before the said Commissioners, signed, sealed, certified, and by them transmitted as aforesaid, being first duly sworn before they shall proceed to take the merits of the same into consideration, on the day that shall have been so fixed. Provided always, that the said House, shall be at liberty to hear Counsel, for each of the parties.

X. And be it further enacted by the authority aforesaid, that the said Commissioners shall be, and hereby are empowered, by warrant under the hand and seal of their chairman, or of any two of them, directed to such person or persons as by him or them shall be specially appointed, to summon and require the attendance of the witness or witnesses, in the lists herein before mentioned, at the day and hour, and place fixed to give evidence thereon; which day and hour and place, shall be mentioned in the said warrant, and every person so summoned to appear and give evidence, who shall refuse or neglect to appear, (a reasonable number of days expences being first advanced to him, if required, at the rate of two shillings and six pence per day, and also one shilling per league, for each and every league, in going from and returning to his place of residence) or appearing, shall refuse to be sworn or give evidence before the said Commissioners, unless in cases of reasonable excuse, to be allowed of by the said Commissioners, or who shall be guilty of any contempt, or improper behaviour towards the said Commissioners, while sitting in the execution of their Commission, shall, each, forfeit and pay a sum, not exceeding twenty pounds, current money of this Province; and such penalty shall be recoverable before any two of His Majesty’s Justices of the Peace who are hereby authorised and required to hear and determine the same, in a summary manner, either by voluntary confession of the Party or Parties accused1, or upon the Oath of one or more credible Witness or Witnesses, other than the Prosecutor; and in case of non payment of such penalties, after conviction thereof, the same shall be levied by distress and sale of the offenders goods and chattels, by Warrant, under the hand and Seal of such Justices directed to any Peace Officer, and the overplus of the money so levied, (if any there be,) after deducting the Penalty and reasonable cost, shall be returned to the owner; and the one half of such penalties shall be paid to the Prosecutor, and the other half, into the hands of the Justices before whom the conviction shall have been had, to be by them transmitted to His Majesty’s Receiver General, for the use of His Majesty, to be applied toward the support of the Government of this Province, and shall be accounted for to His Majesty, through the Commissioners of His Majesty’s Treasury for the time being, in such manner and form as His Majesty shall direct.

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XI. And be it further enacted by the authority aforesaid, that the said Commissioners shall, each of them, be entitled to demand and for their services, the sum of fifteen Shillings, and the Clerk of the said Commissioners, ten Shillings for every day which they respectively shall have duly attended, during the execution of the said Commission, and ten shillings only for every day, which they respectively shall have been necessarily engaged in travelling from and to his or their usual place of residence, to or from the place or places of the meeting of the said Commissioners and the said Clerk; which said several sums, shall be paid to them, respectively, by the persons who entered into recognizances as above said, or any of them, upon a Certificate, under the hand of the Speaker of the House of Assembly, stating the sum or sums so payable, being to him or them produced.

XII. And be it further enacted by the authority aforesaid, that the Oaths by this Act directed to be taken, (those of the said Commissioners and of their respective Clerk and of the Witnesses brought before them excepted,) shall be administered by the Clerk of the House of Assembly, or in his absence by the Clerk Assistant, who is, and each of them are hereby authorised to administer the same; and that any person who shall be guilty of wilful and corrupt perjury, in any evidence which he shall give, before the said House, or before the said Commissioners, in consequence of the Oath which he shall have taken by the directions of this Act, shall, on conviction thereof, incur and suffer the like pains and penalties to which any person convicted of wilful and corrupt perjury, is liable by law.

XIII. And be it further enacted by the authority aforesaid, that no sitting Member, whose election shall be contested as aforesaid, shall vote upon any question, which shall arise in the course of the trial or upon the decision thereof. Provided always, that no such decision shall be had, nor any question touching elections be proposed, unless there be a Quorum of the House present, and no Member shall have a vote upon such decision, who shall not have attended during the examination of the Witnesses, who shall have been heard before the House themselves, and the hearing of the Parties by themselves or their Council.1

XIV. And be it further enacted by the authority aforesaid, that the Petitioners against an election or return, and the sitting Member or Members, shall, in a reasonable time, to be fixed by the House of Assembly, before the trial be proceeded upon, interchange, with each other, lists of the names of all such votes and voters to which either of the said Parties intend to object before the said House, and the grounds of their objections thereto, and of all such other matters and things as either of the said Parties, mean to insist upon or contend for, or to object to, before the said House.

XV. And be it therefore enacted by the authority aforesaid, that in all cases of non payment of cost and expences, incurred upon the trial of contested elections, before the House of Assembly, as also, of the allowances to the -said Commissioners, and their Clerk, the same and may be, respectively, recovered, by the Parties entitled thereto, by action of debt against the persons, respectively, entering into recognizance as aforesaid, or against the sitting Members, respectively,

1. Compare with Articles VI. and VII. of the Act for Upper Canada, page 318.

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according as the case may be, in the Court of King’s Bench, or other Court where debts of like amount are recoverable; in which action, it shall be sufficient for the Plaintiff or Plaintiffs to declare, that the Defendant or Defendants is or are indebted to him or them in the sum mentioned in the Certificate of the Speaker of the House of Assembly, by virtue of this Act; and the said respective Certificates of the said Speaker, shall be deemed full and sufficient evidence and support, of such action of debt; and the Party or Parties, in whose favor Judgment shall be given, in any such action, shall recover his or their costs.

Continuance XVI. And be it further enacted by the authority aforesaid, that of this Act. tki3 Act shall be in force to the first day of January which wiE be in the year of our Lord one thousand eight hundred and eleven, and from thence to the end of the then next Session of the Provincial Parliament and no longer.1

SCHEDULE.

Schedule Form of a Recognizance to be entered into before any Petition against an election or return of a Writ of election, can be proceeded upon.

Be it remembered that on the…………. day of……. in the year of our Lord…….. before me A.B. (Speaker of the House of Assembly) came C.D………… of and E.F. of………… and G.H. of……………… and severally acknowledged themselves to owe the following-sums, that is to say, the said C.D. the sum of………… and the said E.F. and G.H………. the sum of…………. each, to be levied on their respective goods and chattels, lands and tenements, to the use of our Lord the King, his Heirs and Successors, or to the use of the Parties who may appear to be aggrieved by a Petition, about to be presented to the House of Assembly, against the regularity of a certain election, held in the…………… for a representative, to serve in the said Assembly, (or against the return as the case may be,) in case the said C.D. shall fail in performing the conditions hereunder mentioned.

The condition of this recognizance is, that if the said C.D. shall duly appear before the said House of Assembly, at suclTtime or times, as shall be fixed by the said House of Assembly, for taking into consideration, a Petition, signed by the said C.D. and divers other persons, complaining of, (here specify the complaint, whether for an undue Election or an undue return, or for want of a return, that no return has been made upon an election concluded,) for the County, Town or Borough of…………….and shall appear before the said House, for trial of the said Petition, and if necessary at every subsequent Sessions of this present Assembly, and follow up the same, until a final determination thereupon, or until the same shall have been withdrawn by permission of the said House of Assembly; and shall also pay such costs, as the said House of Assembly shall resolve and adjudge to be paid to any person or persons aggrieved by the said

1. This Act was renewed in 1812 and again at different periods until 1836.

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Petition, then this Recognizance to be void, otherwise to be and remain of full force and effect.

Taken and acknowledged, before me, in pursuance of an Act passed in the 48th year of His Majesty, Geo. III., chap.

CD. (L.S.) E.F. (L.S.) G.H. (L.S.)

OPINION OF SIR JOHN NIOHOLL ON THE POWERS OF THE BISHOP OF QUEBEC.1

QUERIES

1st As by the Patent erecting the See and appointing the Bishop of Quebec, it is declared that the Bishop may confer Orders, may confirm and exercise all other Functions peculiar and appropriated to the office of a Bishop.

I apprehend, that the Functions here meant, taken with reference to the Patent, are those of the general superintendence by the Bishop of the conduct & discipline of his Clergy. J. N.

Your Opinion is desired with regard to the number nature and extent of these functions thus peculiar and appropriated to the office of a Bishop.2

The Canon & Ecclesiastical Laws, as received in England, and any Statutes relative to the Church of England. J. N.

2dly By the said Patent, spiritual & ecclesiastical Jurisdiction is given to the Bishop in the several Causes and Matters expressed in the Patent, and in no others, according to the Laws & Canons of the Church of England.3

Your Opinion is desired as to the extent of the meaning of the word Laws.

3dly By the said Patent the Bishop has ‘Power to appoint Commissaries, and by them or by himself to give Institution, to grant Licences to Curates, to visit all Churches, and Clergy of the Church of England, with all manner of Jurisdiction power and Coercion Ecclesiastical as may be required, & to call before him or them the Clergy aforesaid, and to enquire by witnesses to be sworn in due form of Law, and by all other lawful ways and Means by which the same may be most effectually done, concerning their Morals and Be- haviour: and to administer all such

1. From the copy in the Canadian Archives, Q. 108, page 142. Sir John Nicholl at this time held the position of King’s Advocate. He was appointed dean of arches and judge of the Prerogative Court of Canterbury in 1809, and in 1833 was promoted to the High Court of Admiralty. He died. August 26th, 1838. 2. See page 102. 3. See page 102.

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Oaths as are accustomed to be taken in Ecclesiastical Courts, & to punish and correct them by removal, deprivation, suspension, or other such Ecclesiastical Censure &c as they may be liable to according to the Canons and Laws ecclesiastical aforesaid.

I apprehend, that the Jurisdiction must be exercised in the same manner as in England.

The necessary Officers are the Judge, the Registrar, and the apparitor. J.N.

Your Opinion is desired whether this jurisdiction over the Clergy by the Bishop and his Commissaries is to be exercised according to all the technical forms which are observed in the Bishop’s and Chancellor’s Courts in England, and whether it is necessary that in Trials by the Commissary all the forms of Proceeding in such Courte must be used, & the usual Officers belonging to such Courts be appointed, and if so, what officers are necessary.

I do not exactly understand the Question, and therefore can only answer generally that the same measures must be resorted to as in England so far as^loeal Laws will allow. J . N .

Your Opinion is also desired, whether upon the deprivation of a Benefice, should the Clergyman deprived be refractory, what means remain to the Bishop to enforce deprivation.

None J. N.

Your Opinion is also desired, whether the Bishop of Quebec has in any instance whatsoever, and if so, in what, any jurisdiction over the Laity in Canada.

None J. N.

Whether he has any jurisdiction or power over any Dissenting Clergy not being Catholicks.

None—He is only to grant Certificates to the Governor in the Instances where such certificates are required.

J. N.

Whether he has any jurisdiction or power over Schoolmasters, and what; the power of licensing Schoolmasters being granted to the Governor, as appears by the enclosed Extract of his Instructions marked (1)2

None. J . N .

Whether the Bishop has any power of granting marriage Licences & to what extent, & in what cases, a Power of granting marriage Licences being granted to the Governor of the Provinces as may be seen by the Extract from the Governor’s Patent, herewith sent marked (2)3

By the 31st of the King. Cap. 31 sect. 38, it is enacted that within any Town-

1. See page 102. 2. The extracts from the Instructions are not enclosed here. See Article 52 of the Instructions to Lord Dorchester, page 27. 3. The instructions issued to Lord Dorchester in connection with the creation of a bishop’s See declared that ” it is nevertheless Our Will and Pleasure to reserve to you, the granting of Licenses for Marriages, Letters of Administration, and Probates of Wills, as heretofore exercised by you and your predecessors; and also to resume to you and to all others to whom it may lawfully belong, the Patronage and Right of Presentation to Benefis. This provision was incorporated in the Instructions of 1791. See Article 45, page 28.

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ship or Parish which is or may be constituted, the Governor & Council may establish one or more Rectories, and endow them with Lands, as therein:— but no provision is made by the Act for erecting and bounding Parishes, but by His Majesty’s Instructions to the Governor General, a Power is given to him by the advice of the Council to erect Parishes, as by the enclosed Extract (N°. 3)1 will appear.

As this cannot be done by the ecclesiastical authority at Quebec, I am not competent to answer the Question J. N.

Your Opinion is desired as to the mode which ought to be followed for erecting and bounding a Parish.

The same Answer. The Legislature alone can do this in England. I presume therefore that it must be done by the Legislative authority at Quebec. J. N.

And whereas the Act above mentioned gives a Power to erect one or more Rectories in the same Parish. Your Opinion is desired whether when a Parish is once formed, it can be divided into one or more Rectories and by what means or Instruments.

It is advisable to regulate these matters by the same authority that erects the Parish. If it is not so regulated, I apprehend that the Rights and Duties which by the Law of England belong ordinarily to a Parish, will arise. The Vestry will consist of the Parishioners, paying Rates. The Churchwardens are to be appointed in the same manner as in England.

When a Parish shall once be constituted, and a Rectory created & endowed therein and a Church built. Will the right of creating a vestry beincident to such a Parish? At what period will the Right commence? and who will have the Right to elect the Vestry? And when the Vestry is once elected, what powers will it be armed with? And will it have the power of electing Churchwardens, and obliging them to do the duty of Churchwardens? And will the Parish be obliged to keep the Church in repair, and the Rector to keep the Chancel? and will the Vestry have any and what powers to levy assessments or Rates for the above purposes & others which may be incident to a Vestry.

Dissenters I apprehend will have a Right to vote in Vestry & will be subject to pay to the Rates. J. N.

Will the Roman Catholicks or Dissenters of any such Parish to be created have a right to be Members of the Vestry? And if not, can they be bound by the Acts of the Vestry and obliged to pay the Assessments levied by them? If there be any Parishes erected by the Authority of the French Government, or of the Gallican Church, or the See of

1. The authority of the Governor with the advice of the Executive Council to erect parishes is contained in the Commission to the Governor. See page 8.

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I cannot venture to answer this question but must refer it to His Majesty’s other Law Officers. J. N.

Rome previous to the Provinces coming under the Dominion of His Majesty :

Is it competent for the Government and Council to alter the descriptions & boundaries of such Parishes, or to interfere with them in any degree, or at least so far as civil rights are concerned, it being enacted by the 14th of the King, C. 83. S. 8, that all Causes relative to Property & Civil Rights shall be determined according to the Laws & Customs of Canada.

I am not aware that the Jurisdiction would be extended by the appointment proposed; at the same time, considering the nature of the authority to be exercised, and that the Jurisdiction is (I presume) to be exercised over the whole Diocese, the appointment of a Chancellor seems to be adviseable, J. NICHOLL 23 April 1808

As the Bishop of Quebec represents that it would tend greatly to give authority to his Commissary were he raised to the dignity of an Archdeacon or a Chancellor, I am to desire you will report your opinion,

Whether & how far the Appointment of an Archdeacon or Chancellor (supposing His Majesty were pleased to authorize the same) would extend the Jurisdiction given to the Bishop by his Patent to be exercised by himself or his Commissary.

PRIVILEGE OF THE LEGISLATIVE ASSEMBLY, LOWER CANADA.

JOURNALS OF THE LEGISLATIVE ASSEMBLY.1

Tuesday, 16th February, 1808.

THE Honorable Mr. Justice De Bonne, in his place, informed the House, that one of the Members, while sitting in this House, on Saturday last, was called into the Ward Robe adjoining to this House, and that he was there served with a Writ of Summons, to appear in one of His Majesty’s Courts of King’s Bench, for the District of Quebec. Mr. Justice De Bonne therefore requested, that the Honorable Mr. Justice Foucher,2 who is the Member in question, will inform the House, whether his information is correct or not.

The Honorable Mr. Justice Foucher being thereunto required, acquainted the House, that on Saturday last, at five o’clock in the afternoon, being then in his place, in the House, and taking part in the debates, he was called by the Messenger Welling, who told him some one wanted him in the Ward Robe : that he went out immediately, and that outside the door of the House, the Messenger Welling, pointed at a man standing near the desk in the Wardrobe, whom he (Mr. Foucher,) did not know. That the man so pointed at, came within two paces of him, and put into his hands, two

1. From the Journals of the House of Assembly of Lower-Canada, Quebec, 1808. 2. Louis Charles Foucher was born in 1760 He became an advocate for the district of Montreal in 1787, and began the practice of law in Montreal. In 1795, he was appointed Solicitor General for the Province and in the following year was elected to the Legislative Assembly for the Western Division of Montreal. During the succeeding parliament he represented the County of York and in the fourth parliament the town of Three Eivers. In Jauuany, 1803, he was appointed a provincial judge for the District of Three Hivers, and in December, 1812, was promoted to the Court of King’s Bench for the District of Montreal. Charges of impeachment were laid against him by the Legislative Assembly in 1817 and he was temporarily suspended pending the decision of the case. The charges were not prosecuted by the Assembly and directions were given for his reinstatement. He died at Montreal on the 26th of December, 1829.

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papers, telling him he had orders to serve them upon him, and that they were two Summons at the Suit of Mr. Ezekiel Hart;1 Mr. Justice Foucher added, that the said Summons required his appearance before the Court of King’s Bench of this District, on Thursday the eighteenth instant, to answer to their contents.

On motion of Mr. Justice De Bonne, seconded by Mr. Berthelot.

ORDERED, That Augustus Welling, one of the Messengers of this House, do appear at the Bar of this House, to inform the Members thereof, what person it was, that on Saturday last desired him. to call Mr. Justice Foucher into the Ward Robe, and for what purpose.

Augustus Welling, Messenger to this House, appeared at the Bar accordingly, and being questioned by Mr. Speaker,

He acquainted the House, that a man) of the name of Johnston, desired him, on Saturday last, to call Mr. Justice Foucher out of the House: that he has seen the said Johnston receive Warrants from Masters of vessels, and convey sailors on board of ships, but cannot say whether he, Johnston, is a Bailiff or Constable; that he saw Johnston speak to Mr. Justice Foucher in the Ward Robe, but did not hear what passed between them.

He then retired.

On motion of Mr. Justice De Bonne, seconded by Mr. Berthelot,

ORDERED, That Mr. P. E. Deharats, French Translator to this House, do appear at the Bar of this House, to acquaint the Members thereof, who is the said Johnston, and give such other information that he may possess, touching the present enquiry.

Mr. P. E. Deharats, Fremeh Translator to this House, appeared at the Bar accordingly.

And being questioned by Mr. Speaker,

He acquainted the House, that he knows Johnston to be one of the Bailiff’s of the Court of King’s Bench, having had occasion to employ him in that capacity, that he saw the said Johnston speak to Welling the Messenger, in the Ward Robe, on Saturday last, and that Welling went into the House, and returned with Mr. Justice Foucher, into the Ward Robe, to whom Johnston spoke.

He then retired.

The Honorable Mr. Justice De Bonne, in his place, acquainted the House, that John Johnston, is one of the Bailiffs of the Court of King’s Bench, for the District of Quebec, and that there is no other Bailiff of the same name.

On motion of Mr. Justice De Bonne, seconded by Mr. Mondelet,

RESOLVED, That a Committee of seven Members, be appointed to search for precedents and report whether the Summons given by John Johnston, one of the Bailiff’s of the Court of King’s Bench, to a Member of this House, in the Ward Robe, during the sitting of the House, is a breach of the privileges of the Members of this House.

Monday, 29th February, 1808.

MR. De Saldberry, from the Committee appointed to search for precedents and to report whether the summons given by John Johnston, one of the Bailiffs of the Court of King’s Bench, to a Member of this House, in the Ward Robe during the sitting of the House, is a breach of the privileges of the Members of this House, reported, that in pursuance to the order of reference, the Committee had proceeded to search for precedents, and had framed a report thereon, which he was directed to submit to the House whenever it shall be pleased to receive the same.

1. See page 352, note 1.

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And he read the report in his place, and afterwards delivered it in at the Clerk’s Table, where it was again read, and is as followeth, vizt:

Your Committee in pursuance of your reference to them, upon the subject of a breach of privilege, regarding the summons of Mr. Justice Foucher, a Member for the Borough of Three-Rivers, which was served upon him in the Ward Robe, or Antichamber, being an appendage of the House, proceeded to read and consider the following Acts of the Parliament of Great-Britain, for restraining the privilege of Parliament, vizt:

12th and 13th, of William 3d, chap. 3d.1 4th, Geo: 3d, 33.2 10th, Geo: 3d, 50.3

Whereby it appears, that, previous to the passing of those Acts, no Member could be proceeded against, either by arrest or otherwise, for any debt due by him.

That since those restraining Acts, it has been lawful to institute suits against Members of Parliament for debts, by summons in lieu of arrest or mesne process as is the case in respect to unprivileged persons.

Your Committee further proceeded at different times, to make diligent search in the Journals of the Commons of Great-Britain for precedents, but being unable to find anything directly applicable to this particular case, are reduced to the necessity of reporting their opinion upon the whole circumstances, as to what would probably have been the decision of the Commons of Great Britain, if the fact had happened there.

The Act of William the 3d, before cited, which allows of the issuing of Summons against a Member of Parliament, establishes that the same be served, by leaving a copy thereof with the defendant, or at his house or lodgings or last place of abode.

Now it cannot be supposed that the Commons, hitherto so jealous of their privileges, could in cases of relaxation therefrom, ever intend to carry the same beyond the bounds of strict necessity, and consequently could not sanction the service of a Summons by leaving a copy of the same with the defendant, either in the Commons House of Parliament, or in any of the appendages or appointments thereto appertaining; because such a procedure so far from being necessary to the Plaintiff’s relief, would have gone to authorise the means of over awing a Member when in actual attendance upon his Parliamentary duty, and could not operate otherwise than an insult to the House, and restraint upon the freedom of its proceedings.

In this view of the case referred to your Committee, they cannot but consider the sending for Mr. Justice Foucher, a Member of the House, when attending in his place in the Assembly, and on his coming out into the Wardrobe (being one of the apartments thereof) serving on him a Summons, as an Insult to the House, and a breach of its privileges.

Tuesday, 8th March, 1808.

THE order of the day for taking into consideration, the report of the Special Committee appointed on the 16th February last, to search for precedents, and report, whether the Summons given by Johh Johnston, one of the Bailiff’s of the Court of King’s Bench, to a Member of this House, in the Wardrobe, during the sitting of the House, is a Breach of the privileges of the Members of this House, being read—

The House proceeded accordingly to take the said report into consideration.

And the said report was read throughout by the Deputy Clerk.

1. An Act for preventing any inconveniences that may happen by privilege of Parliament. 2. An Act for preventing inconveniences arising in cases of merchants, and such other persons as are within the description of the Statutes relating to bankrupts, being entitled to privilege of Parliament and becoming insolvent. 3. An Act for the further preventing delays of Justice by reason of privilege of parliament.

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Mr. De Salaherry moved to resolve, seconded by Mr. Mure,

That to send for a Member of this House, when in his place, attendant on the duties thereof, and on has withdrawing in consequence into an apartment thereof, or appendage thereto appertaining, to serve upon him, a Summons or other civil process, is a breach of the privileges of this House.

The House being moved that the information given by Mr. Justice De Bonne, and the succeeding entries relating thereto, on the 16th February last, be now read. The said information and entries were read accordingly.

Mr. Attorney-General moved, seconded by Mr. Taschereau, the previous question on Mr. De Salaberry’s motion, vizt:

Shall the question be now put?

The House divided, Yeas 19; Nays 3.

And the question being put upon the main motion.

The House again divided, and there being a majority of sixteen for the affirmative.

RESOLVED, That to send for a Member of this House, when in his place, attendant on the duties thereof, and on his withdrawing in consequence into an apartment thereof, or appendage thereto appertaining, to serve upon him, a Summons or other civil process, is a breach of the privileges of this House.

Mr. Richardson moved to resolve, seconded by Mr. Mure,

That John Johnston, a Bailiff of the Court of King’s Bench, in sending for Mr. Justice Foucher, a Member of this House, when attendant on his duty therein, and on his withdrawing in consequence into the Wardrobe or Antichamber thereof, having served upon him, a Summons, is guilty of a contempt and breach of the privileges of this House,

Whereupon, Mr. Attorney-General, seconded by Mr. Blackwood, moved the previous question, videlicit:

Shall the question be now put?

The House divided: Yeas 19; Nays 3.

The question was, accordingly put upon the main motion, the House again divided, and there being a majority of sixteen for the affirmative.

RESOLVED, That John Johnston, a Bailiff of the Court of King’s Bench, in sending for Mr. Justice Foucher, a Member of this House, when attendant on his duty therein, and on his withdrawing in consequence, into the Wardrobe or Antichamber thereof, having served upomi him, a Summons, is guilty of a contempt and breach of the privileges of this House.

Mr. Richardson moved to resolve, seconded by Mr. Mure.

That John Johnston, a Bailiff of the Court of King’s Bench, for such breach of the privileges of this House, be taken into custody by the Sergeant at Arms, and that Mr. Speaker do issue his Warrant accordingly.1

The House divided on the question: Yeas 19; Nays 3.

And there being a majority for the affirmative, it was Resolved accordingly.

1. On the following day a petition from Mr. Johnson was received by the Speaker in which the petitioner expressed sorrow for having, through ignorance of the privileges of the House, incurred the displeasure of the Assembly and prayed that the House would pardon his transgression. It was then resolved that no further proceedings be taken against Mr. Johnson.

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PROCEEDINGS RELATIVE TO THE IMPRISONMENT OF JOSEPH WILLCOCKS FOR CONTEMPT OF THE HOUSE OF ASSEMBLY, UPPER CANADA.1

JOURNAL OF HOUSE OF ASSEMBLY, UPPER CANADA.

Thursday, 18th February, 1808.

* * * * * * *

Captain Cowan rose up in his place, and did inform the House that an Honorable Member (W. Willocks).2 had made use of language out of doors derogatory to the honor and integrity of this Honorable House, and nearly in these words, “That the Members of the House of Assembly dared not to proceed in the prosecution they had commenced again him. Pie was sorry they did not continue it; it would have given him an opportunity of proving they had been bribed by General Hunter ; and that he had a Member of the House ready to come forward to give testimony to that effect.” The Gentlemen that were present were Titus Simmons, Samuel S. Willmott, Surveyor of Lands and Dr. James Glennon, Practitioner of Physic in this Town.

Upon motion of Mr. Sherwood, seconded by Mr. Clench,

Ordered, That the House do now resolve itself into a Committee of Privileges of the Whole House, to take into its consideration the said information.

The House according resolved itself into said Committee.

Mr. Speaker left the Chair.

Mr. Swazey was called to the Chair of the Committee.

Mr. Speaker resumed the Chair.

And Mr. Swazey reported to the House that the Committee had come to several Resolutions on the subject referred, which they had directed him to report to the

House whenever it would be pleased to receive the same.

Ordered, That the Report be now received.

And he read the Report in his place, and, having delivered in the same at the Table, it was again read throughout by the Clerk, and is as follows.

Resolved, That it is the opinion of this Committee that the expressions said to be made use of by Mr. Joseph Willcocks are false, slanderous, and highly derogatory to the dignity of this House.

Resolved, That it is the opinion of the Committee that the Speaker be authorized to send for any witness that he may think necessary, to be examined at the Bar of this House touching the information given to this House by Capt. Cowan a Member of this House, against Joseph Willcocks.

Resolved, That it is the opinion of the Committee that a day be fixed by the House for the trial of Mr. Joseph Willcocks, a Member of this House. The Solicitor General, seconded by Oapt. Cowan, moved that the House do concur with the Committee in their Resolutions just reported.

The House accordingly concurred in the said Resolutions.

Ordered, That the Clerk will give Mr. Willcocks a copy of the paper read by Capt. Cowan.

Oapt. Cowan moved, seconded by Mr. Solicitor General, that Saturday next be appointed for the day of trial of Mr. Joseph Willcocks.

Ordered accordingly.

1. From the type written Journal of the House of Assembly of Upper-Canada (for the year 1808. 2. Joseph Willcocks had been elected for the West Riding of York, the first Biding of Lincoln and the County of Haldimand to fill the vacancy caused by the death of Solomon Hill. He took the oath and was admitted to the House on the 26th of January, 1808.

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Mr. Willcocks moved, seconded by Mr. Rogers, that he be permitted to remain in his place during his trial, and that he be also permitted to put such interrogatories to the evidences as may seem to him necessary.

Which was ordered accordingly.

Saturday, 20th February, 1808.

* * * * * * *

Mr. Speaker informed the House that agreeable to the Order of this House he had issued his Summons, commanding the attendance of Titus Simons, Samuel S. Willmot, Surveyor of Lands, and Dr. Glennon, Practitioner of Physic in the Town of York, at the Bar of this House this day, at ten o’clock in the forenoon; to give evidence touching the information now before this House respecting Joseph Willcocks, one of its Members.

On motion of Mr. Solicitor General, seconded by Captain Cowan,

Ordered, That the proceedings of this House on the Eighteenth instant, relating to Joseph Willcocks, one of its Members, be now read.

The Proceedings were accordingly read.

Dr. Glennon was then called to the Bar, to give evidence touching the charge exhibited against Joseph Willcocks, a Member of this House.

Samuel S. Willmott was next called to the Bar, to give testimony touching the charges exhibited against Joseph Willcocks, a Member of this House.

The evidence on the part of the House was closed.

Mr. Willcocks, by permission, cross-examined the witnesses.

Mr. Willcocks moved, seconded by Mr. Sherwood, that he may be permitted to call such witnesses in his behalf as may seem to him necessary.

Permission was accordingly given him to examine such evidence as he thought necessary.

After the evidence on the part of Mr. Willcocks had been gone through :—

Captain Cowan moved, seconded by Mr. Sherwood, that it is the opinion of this House that Joseph Willcocks is guilty of the Charge alleged against him.

The House unanimously resolved the same.

Captain Cowan then moved, seconded by Mr. Sherwood, that Joseph Willcocks be taken into the custody of the Serjeant at Arms and be committed to the Common Gaol of this District.

Resolved unanimously, That Joseph Willcocks be committed to the Common Goal of the District, and that the Speaker do issue his warrant for that purpose. Mr. Speaker then read the Warrant which he signed by order of the House, and is as follows:—

Alexander McDonell, Esquire, Speaker of the Honorable the Commons House of Assembly.

To the Sheriff of the Home District, GREETING.

By virtue of the power and authority in me vested by the Honorable the Commons House of Assembly, you are hereby ordered and required to receive into the Common Gaol of your District the body of Joseph Willcocks, and him safely to keep until discharged by due course of law, the said Joseph Willcocks having been convicted of a contempt of the Commons House of Assembly.1

Given under my hand and seal at York, this 20th day of February, 1808.

(Signed) ALEX’R McDONELL, Speaker.

1. On Monday the 22nd of February, the Sergeant-at-Arms reported that Joseph Willcocks had been delivered into the custody of the sheriff of the district.

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Wednesday, 16th March, 1808.

……………….

Captain Cowan, seconded by Mr. McLean, moved that Joseph Willcocks be this day discharged from imprisonment, and that the Speaker do issue his warrant for that purpose.

The Speaker accordingly issued his Warrant, which is as follows.

Alexander McDonell, Esquire, Speaker of the Honorable the Commons House of Assembly,

To the Sheriff of the Home District, GREETING,

By virtue of the power and authority in me vested by the Commons House of Assembly.

You are hereby ordered and required to discharge from your custody this day Joseph Willcocks, Esquire, who was, on the Twentieth day of February last past, committed to the Gaol of the Home District, he having on that day been convicted of a contempt of the said House of Assembly; and for so doing this shall be your sufficient warrant.

Given under my hand and seal at York this Sixteenth day of March, 1808.

(Signed) ALEX’R McDONELL, Speaker.

OBSERVATIONS RELATIVE TO THE POLITICAL STATE OF LOWER CANADA, BY MR. RYLAND.1

There is reason to apprehend that the time is fast approaching when the House of Assembly of Lower Canada will become the centre of sedition, and a receptacle for the most desperate demagogues in the Province; nor does there at this moment appear to be any existing means, (except such as arise from the known vigour and ability of the Governor in Chief,) to counteract the projects which such a House of Assembly may form.

To remedy the evil it will require much wisdom, joined to a preponderating English influence, both in the2 Legislative and Executive Councils. It will equally require intelligence, firmness and capacity on the part of His Majesty’s Justices of the Provincial Courts of King’s Bench, who may eventually have to decide on points of the highest importance arising out of the wild, disorganizing pretensions of the Assembly.

Tt must be evident to every person who is acquainted with the actual state of things here, that neither the Bench nor the Councils, as they are at present composed, would be able to afford- an adequate check to a bold, systematical attempt on the part of the Assembly to obtain a mischievous preponderance in the Provincial Legislature; much less could those bodies be expected to co-operate in a general plan for assimilating the Colony in its religion, laws and manners, with the Parent State.

It is humbly suggested that, preparatory to measures of a more particular nature, it would be advisable to add eight or ten members to the Legislative Council, three or four of whom might be Canadians of the most respectable character and families, and the remainder Englishmen of the best stamp and abilities, that are to be found in the Province, and whose attendance might at all times be depended on. It may be well deserving the attention of Government to consider whether it would not be advisable to give a seat in the Council to two or more Military Officers of the higher ranks, holding staff appointments in the Province, that may be regarded as permanent.

597. The text of these Observations is taken from Interestinq Public Documents and Official Correspondence, illustrative of, and supplementary to the History of Lower Canada, published by Robert Christie, Montreal, 1855 and forming Vol. VI. of Mr. Christie’s History of Lower Canada. A note inserted by Mr. Christie states that this document was written in the month of Mav, 1808. 2. See the note on Mr. Ryland, page 280, note 1.

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It is suggested that the two senior Judges at Quebec,1 (who are both of them upwards of seventy-three years of age,) should be permitted to retire on pensions; that, in appointing their successors, the utmost care should be taken to select men of capacity and firmness; Englishmen whose natural ties and habits attach them to the laws and religion of the Parent State.*

By English is here meant persons born and educated in any part of His Majesty’s European Dominions.

With a view to the furtherance of the objects contemplated, it would be advisable to establish a corporation for the advancement of learning, agreeably to the Provisions of the Provincial Statute, 41 Geo. III , cap. 17,2 and to solicit His Majesty’s decision with respect to the Jesuits and the St. Sulpician Estates.†

It will be seen on a perusal of the Act above mentioned, that a most powerful means is thereby afforded for encreasing the influence of the Executive Government, and for gradually improving the political and religious sentiments of the Canadians. Connected with the above objects, the settlement of the waste lands of the Crown becomes a matter of the utmost consequence. The system of associated companies, which was adopted for this purpose in the year 1793, may now be considered as abandoned; but the Royal Instructions of August, 1807,3 to the present Governor in Chief, shew that it is not His Majesty’s intention to restrict or regulate the granting of the waste lands in any other way than that which was prescribed by the Instructions of 1791 to Lord Dorchester.

This being the case, and the project afterwards brought forward of selling the waste lands for the purpose of raising a revenue, having failed, it is to be presumed that the Governor and Executive Council are left at liberty to adopt such a system as they shall think proper, under the present Instructions, for encouraging the settlement of the country; and nothing would so effectually contribute to this end as an Act of the Imperial Parliament, empowering the Governor, with the advice of the Executive Council, in cases where the inhabitants of any township, (or several townships collectively, to be formed into counties or districts,) shall amount to a certain number of freeholders, (say one or two thousand, and upwards,) to issue a writ

* Mem. Subsequent experience hath deeply convinced me, that infinite advantage to the King’s interests would be obtained by ehoosing from among the practitioners at the bar at home, (and upon the recommendation of the Lord Chief Justice), not only the Provincial Attorney and Solicitor General, but the two Chief Justices (if two be necessary), and at least one-third of the Provincial Puisne Judges, the latter of whom should have seats in the Legislative (but not the Executive) Council. By this means the Crown might secure to itself the support of firm, able, upright and dignified characters, men attached by birth and education to the Parent State and to Monarchical principles, and there is no doubt but it would in the end be found infinitely less expensive to secure the services of such men by competent and liberal salaries than to incur the risk of having the Province revolutionized through the want of them. Above all things, however, care should be taken that these appointments may not degenerate into o job, and that the places be not chosen for the men, instead of the men being chosen for the places. Such a system of patronage would only render matters worse.—R. Quebec, 1815.4 † For particulars relative to the Jesuits and St. Sulpician Estates see subsequent correspondence.

1. Mr. Dunn and Mr. Williams were the senior Judges at Quebec. See page 14, note 5, and page 68, note 2. 2. This Act, ” An Act for the Establishment of Pree Schools and the Advancement of Learning in the Province,” authorized the Governor to appoint a ” Royal Institution for the Advancement of Learning.” This corporation was entrusted with the management of all estates appropriated to the schools of royal foundation and, subject to the approval of the Governor, with the formation of rules, orders and statutes of the schools. The appointment and removal of schoolmasters was vested in the Governor. 3. Por the Instructions to Sir James Craig see the Canadian Archives, M. 231, page 76. The instructions regarding the granting of the waste lands of the Crown remained the same as those issued to Lord Dorchester in 1791. See Articles 31 to 38 of the Instructions to Dorchester, page 21. 4. This memorandum by Mr. Ryland is inserted by Mr. Christie. 5. That note by Mr. Christie refers to the correspondence which follows in his volume relative to the appropriation of the income from the Jesuit and St. Sulpician Estates for the purposes of education.

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authorizing the election of a member to represent such township, county or district, in the Assembly. Such an Act would not only encourage the settlement of the waste lands, and attach the inhabitants of the townships to His Majesty’s Government, by enabling them to participate in the legislation of the Province, but it would provide an effectual check upon) the French or Roman Catholic party, which has at this time an alarming preponderance.

It may be here remarked that the English settlers in the townships are estimated at upwards of fourteen thousand, and that the division of the Province, pursuant to Lieutenant Governor Clark’s proclamation,1 (under the Canada Act of the year 1791,) for the purpose of regulating the election of members to serve in the Assembly, was made prior to the erection and settlement of the townships, and secure the election of two English members only throughout the Province, namely, one for the inferior District of Gaspé, and one for the Borough of William Henry, where the English inhabitants happen to have a majority of votes.*

It is hardly possible to attach too much importance to this subject, or to place it in too prominent a point of view, as i t shews the absolute necessity of an Act of the Imperial Parliament, if it is intended that there ever should be any thing like an English influence in the inferior branch of the Provincial Legislature, for it is not to be expected that a House of Assembly, made up as the present, will ever suffer a Bill to pass for the encouragement of English settlers, and much less one which would afford such settlers the means of representation in that House.

H.W.R.

An error, however, as to Gaspé, where the majority of voters have always been, and are, of French origin.—R.C.

REPORT ON THE DISADVANTAGES ARISING FROM THE ELECTION OF JUDGES TO THE LEGISLATIVE ASSEMBLY, LOWER CANADA.

JOURNALS OF THE HOUSE OF ASSEMBLY, LOWER CANADA.3

Wednesday, 10th May, 1809.

Mr. Bourdages, from the Committee, appointed to enquire if any, and what inconveniencies have arisen from Elections, where the Judges of this Province have offered themselves as candidates,4 reported; that in pursuance to the order of reference, the Committee had proceeded to make the said enquiry, and had framed a report thereon, which he was directed to submit to the House, whenever it shall be pleased to receive

1. See page 60. 2. A note added by Mr. Christie. 3. From the printed Journals of the House of Assembly of Lower-Canada. 4. I n the session of 1808, the Legislative Assembly considered the question of the wisdom of permitting judges to be elected to the Assembly and, in a Committee of the Whole House, resolved ” That it is the opinion, of this Committee, that it is expedient to declare, that the Judges of the Court of King’s Bench now established, the Provincial Judges of the Districts of Three Rivers, and of Caspé, and all Commissioned Judges of any Courts that may hereafter be established in this Province for the decision of Civil Causes, are incapable of being elected, or of sitting or of voting in the House of Assembly of any Parliament of this Province, as Knights, Citizens, or Burgesses, of any County. City, Borough or Town.” (Journals of the House of Assembly of Lower-Canada, 1808, page 158.) In accordance with this resolution a Bill was passed by the Assembly but was defeated by the Legislative Council. In the following session the question was again discussed with the result that a Coaimittee was appointed “to enquire if any, and what inconveniences have arisen from elections where the Judges of this Province offered themselves as Candidates, with power to send for persons and papers, and to report with all convenient speed.” (Journals of the House of Assembly of Lower-Canada, 1809, page 168.) See also Craig to Castlereagh, June 5, 1809, page 360. Several witnesses were examined by the Committee and their evidence, forming part of the report, may be found in Appendix No. 23 to the Journals of the Assembly for 1809. Following the adoption of the report of the Committee a Bill was introduced excluding Judges from the Assembly, but the House was dissolved before the Bill could be passed. For the Act of 1811 excluding Judges from the Legislative Assembly see page 420.

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the same: and he read the report in his place, and afterwards delivered it in at the Clerk’s table, where it was again read; and is as followeth; viz.1

* * * * * * *

From the foregoing testimonies, your Committee is of opinion, that many inconvenienses have arisen from a Judge of the District of Quebec,3 having proposed himself as a Candidate at the Election for the County of Hampshire, in 1796, and at the elections of the Upper Town and County of Quebec, in 1804, and at the last Election of the County of Quebec-, and that he was proposed as Candidate, to the Electors for the County of Northumberland in 1800, and last year.

And that these inconvenieneies are as follows:

1st. That the liberty of the Electors has been constrained. 2d. That the dignity of a Judge has been exposed. 3d. That the character of the said Judge who proposed himself as Candidate as above mentioned, and his reputation and integrity are suspected. 4th. That confidence in the administration of Justice has been diminished.

That it appears also to your Committee, that inconvenieneies have arisen from a Judge of Three Rivers proposing himself as a Candidate at the Election for the Borough of Three Rivers, in 1808,3 by which the dignity of the Judge was exposed.

That no inconvenieneies appear to your Committee to have arisen from a Judge of the district of Montreal* being proposed as a Candidate at the Election of the eastward of the City of Montreal, in one thousand eight hundred, but that the said Judge has since acknowledged, that great inconvenieneies might result from Elections, where Judges step forward as Candidates; and that he has declined ever since offering himself as a Candidate.

Signed Ls BOURDAGES Chairman.

PROCEEDINGS RELATING TO THE EXPULSION OF EZEKLEL HART FROM THE HOUSE OF ASSEMBLY OF LOWER-CANADA.5

JOURNALS OF THE HOUSE OF ASSEMBLY, LOWER-CANADA.

Friday, 29th January, 1808.

* * * * * * *

Mr. Berthelot acquainted the House, that Ezekiel Hart, Esquire, returned to represent the Borough of Three-Rivers, had taken the Oaths, and was waiting without the Bar to be admitted.

A Member having asked, whether Mr. Hart took the Oaths in the customary manner?

1. The first part of the report contains the minutes of evidence and is not reproduced. 2. Pierre Amable De Bonne, one of the Judges of the Court of King’s Bench for the District of Quebec had been a candidate at the election for the County of Hampshire in 1796. Mr. De Bonne had likewise been a member of the Executive Council since 1794. In the first Parliament of the Province he represented the County of York in the Assembly. From 1796 to 1864 he sat for Three Rivers and from 1804 to 1810 for the County of Quebec. He was defeated in the County of Northumberland in 1800. For the proceedings relating to the expulsion of Mr. DeBonne see page 370, and also Craig’s comments on the conduct of the Assembly in his address, page 371, and in his letter to Lord Liverpool, page 374. 3. Louis Charles Foucher, the Provincial Judge of the District of Three Rivers was a candidate in the election for the Borough of Three Rivers in 1808. See page 342, note 2. 4. Pierre Louis Panet, one of the Judges of the Court of King’s Bench for the District of Montreal, was elected to the Legislative Assembly for the Eastern Division of Montreal in 1800. 5. From the Journals of the House of Assembly of Lower-Canada for the years 1808 and 1809.

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Mr. Berthelot added, that Mr. Hart took the Oaths on the Bible, his head being covered.

Mr. Turgeon, informed the House, that he was present with Mr. Berthelot, when Mr. Hart took the Oaths, and that he did take the said Oaths in the manner described by Mr. Berthelot.

* * * * * * *

Monday, 1st February, 1808.

* * * * * * *

The House was moved, that the entry of the twenty-ninth of January last, respecting the application of Ezehiel Hart, Esquire, to be admitted to take his seat as a Member of this House for the Borough of Three-Rivers, be now read.

And the said entry being read accordingly.

Mr. Berthelot acquainted the House that in the information given by him on the twenty-ninth day of January last he said that Ezehiel Hart, Esquire, had taken the Oath and not the Oaths.

Upon motion of Mr. Attorney General, seconded by Mr. Justice de Bonne, RESOLVEDJ That it is the opinion of this House, that Ezekiel Hart, Esquire, returned to represent the Borough of Three-Rivers, hath mot taken the Oath in the customary manner.

ORDERED, That the Clerk Assistant of this House do furnish the said Ezekiel Hart, Esquire, with a Copy of the next preceeding resolution, to the end that he may thereupon pursue such further course in the premises as the law of Parliament may be found to require.

* * * * * * *

Friday, 12th February, 1808.

* * * * * * *

A petition of Ezehiel Hart, Esquire, returned to represent the Borough of Three- Rivers, was read by Mr. Mure, in his place.

Mr. Mure moved, seconded by Mr. Berthelot, that the said petition be now brought up.

The House was then moved, that the information given to this House, on the twenty-ninth day of January last, touching the manner in which Mr. Hart had taken the Oaths; with the resolution and order of the House on the said information, the first of February instant; as also the petition presented to this House, the ninth instant, from Thomas Coffin, Esquire,1 against the return of the said Ezekiel Hart, be now read.

The said information, resolution, order and petition, were read accordingly.

The question was now put, viz:

That the petition of Ezekiel Hart, Esquire, be brought up?

* * * * * * *

ORDERED, That the said petition be brought up.

The said petition was, accordingly brought up and read,

SETTING FORTH :—That to his deep regret, a resolve of this House has been communicated to him, expressive of the petitioners not having taken the Oath in the customary manner.

1. On the 9th of February, a petition was received from Mr. Coflin setting forth that Ezekiel Hart, being of the Jewish religion, was incapable of taking the oaths required and therefore of sitting and voting in the House of Assembly and that the votes given him at the election ought to be considered as null and void and requesting that the petitioner, having a majority of legal votes, be declared elected for the Town of Three Rivers.

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That on the 29th day of January last, he duly did take the Oath as prescribed by Statute 31st of his present Majesty, chapter 31st, Section 29th,1 to qualify the petitioner to a seat in this House.

That the said Oath was administered to the petitioner in a conscientious and lawful manner as directed by His Majesty’s Commissioners, and that the petitioner regards the said Oath on his part legal, binding and sacred to every purpose whatsoever.

That however sensible he is, that he has taken the Oath according to the true meaning of the Constitutional law of this Province, yet he will not object to have the same re-administered to him ia the usual form.

The petitioner therefore humbly solicits, that the House will be pleased to admit the petitioner to take his seat accordingly.

* * * * * * *

Wednesday, 17h February, 1808.

* * * * * * *

ORDERED, That the entries in the Journals touching the manner in which Ezekiel Hart, Esquire, (returned to serve in this House as a Member for the Borough of Three-Rivers) took the oath prescribed by the 31st of his present Majesty, chapter 31st, be now read—

And the said entries were read accordingly.

RESOLVED, That the manner in which the said Ezekiel Hart, Esquire, took the said Oath is that practised in Courts of Justice, when Oaths are administered to persons professing the Jewish religion.

RESOLVED, That this House do now receive information from the Members thereof, or any of them, touching their knowledge of the religious profession of Ezekiel Hart, Esquire.

Accordingly the House proceeded to receive the said information.

And Mr. Mure in his place, acquainted the House, that a few days ago, Mr. Hart informed him, personally, that he was brought up in the profession of the Jewish religion, and that he was still of that persuasion.

And Mr. Mondelet, in his place, acquainted the House, that in a recent conversation with Mr. Hart, the said Mr. Hart, told him, he could not deny that he was a Jew; that he had always professed, and did still profess the Jewish religion; and that this avowal on the part of Mr. Hart, was made since he has been soliciting to be permitted to take his seat in the House, and since he took the Oath.

And the Honorable Mr. Justice Foucher, in his place, acquainted the House, that to his certain knowledge, the said Ezekiel Hart, is a professed Jew; that he has attained this knowledge from having known him to be a Jew from the beginning of the year 1803. That he (Mr. Hart) follows the Jewish customs, and that in the Courts of Justice he never took the oath but in the form it is taken by Jews. Mr. Justice Foucher, further added, that as a Judge, he particularly knows the said Hart to be a Jew; as he had, lately, in person, pleaded before him, for certain privileges to which he conceived he had a right, to wit: that of not being summoned to appear in the Courts of Justice on Saturday, it being his Sabbath day, and that of the Jews.

RESOLVED, That it appears to this House, that Ezekiel Hart, Esquire, returned to serve in this House as a Member for the Borough of Three-Rivers, is of the Jewish profession of religion.

1. For a copy of the oath prescribed see Constitutional Documents, 1759-1791, Shortt and Doughty, 1907. page 701.

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RESOLVED, That the said Ezekiel Hart, Esquire, be heard at the Bar of this House, on Friday next, by himself or Council, if he shall see fit, on the legality of his pretentions to take his seat in this House, and to sit and vote therein, notwithstanding his being of the Jewish religion, and his having taken ,the Oath in the manner customary only for persons of that persuasion.1

ORDERED, That a copy of the Resolutions and information of this day, respecting the said Ezekiel Hart, Esquire, be furnished to him by the’ Deputy Clerk of this House.

* * * * * * *

Saturday, 20th February, 1808.

* * * * * * * *

The order of the day for the House to resolve into a Committee of the whole, to take into further consideration, the petition of Ezekiel Hart, Esquire, being read—

The House accordingly, resolved itself into the said Committee.

Mr. Speaker left the Chair,

Mr. Vigé took the Chair of the Committee;

Mr. Speaker resumed the Chair,

And Mr. Vigé reported, that the Committee had come to a resolution, which he was directed to report to the House, whenever it shall be pleased to receive the same.

ORDERED, That the report be now received.

And he read the report in his place, and afterwards delivered it in at the Clerk’s Table, where it was again read, and is as followeth, vizt:

RESOLVED, That it is the opinion of this Committee, that Ezekiel Hart, Esquire, professing the Jewish Religion, cannot take a seat, nor sit, nor vote in this House.

Mr. Justice Foucher moved, seconded by Mr. Cartier, that, the question of concurrence be now put upon the said resolution.

The House divided upon the question : Yeas 21 Nays 5

ORDERED, That the question of contcurrence be now put upon the said resolution. Accordingly, the said resolution was again read, and the question put thereon, The House again divided:

Yeas 21 Nays 5

So it was carried in the affirmative, and

RESOLVED, That Ezekiel Hart, Esquire, professing the Jewish Religion, cannot take a seat, nor sit, nor vote in this House.

* * * * * * *

Wednesday, 19th April, 1809.

* * * * * * *

Mr. Mondelet moved, seconded by Mr. Trestler, to resolve, that Ezekiel Hart, Esquire, returned as one of the Representatives of the Borough of Three-Rivers, to serve in the present Provincial Parliament, and who is now sitting in this House, is the same Ezekiel Hart, who was returned to serve in the Fourth Session of the Provincial Parliament, in the room of the late Honourable John Lees for the aforesaid Borough.

* * * * * * *

1. On the appointed day, Mr. Hart was heard at the Bar of the House and the Assembly resolved that on February 20th it would resolve itself into a Committee of the Whole House to further consider Mr. Hart’s petition.

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On motion of Mr. Bourdages, seconded by Mr. Jos. Turgeon;

ORDERED, That Mr. Mondelei’s motion, be amended as follows; viz:

After ” Resolve ” leave out all the other words and insert, ” that this House do now receive information, through the Members thereof, or any of them, whether Ezekiel Hart, Esquire, returned as one of the Members of this House, to sit therein,. in the room and stead of the late Honorable John Lees, is the same Ezekiel Hart who is returned as elected to serve in the present Parliament, and who has already taken his seat, as one of Representatives for the Borough of Three-Rivers, and the same who was declared incapable of sitting and voting during the last Session.

The question was now put on the main motion as amended, which was agreed to. ORDERED, that the House do now receive the said information.

The House accordingly proceeded to receive the said information:

And, Mr. Mondelet, and Mr. Bourdages, in their places, severally informed the House, that Ezekiel Hart, Esquire, returned as one of the Members of this House, to sit therein, in the room and stead of the late Honourable John Lees, is the same Ezekiel Hart who is returned as elected to serve in the present Parliament, and who has already taken) his seat, as one of the Representatives for the Borough of Three- Rivers, and the same who was declared incapable of sitting and voting during the last Session.

And Mr. Mure, in his place, informed the House, that Mr. Hart, who now sits in the House as a Representative for the Borough of Three Rivers, is the same Ezekiel Hart, Esquire, that was returned to serve in the last Provincial Parliament for the said Borough, in the place amjd stead of the late Honorable John Lees.

* * * * * * *

Mr. Mondelet now moved to resolve, seconded by Mr. Durocher;

That Ezekiel Hart, Esquire, who sits in the present Parliament as one of the Representatives of the Borough of Three Rivers, is the same Ezekiel Hart, who was returned as one of the Representatives of the said Borough, in the last Parliament, and was declared incapable of sitting and votingi in the last Session; as he professed the Jewish Religion.

The House divided on the question;

Yeas 35 Nays 5

So it was carried in the affirmative, and— RESOLVED, accordingly.

Friday, 5th May, 1809.

* * * * * * * *

The order of the day for reading the entries in the Journals, containing the information given to this House, on the 17th February 1808,1 concerning the Religion of Ezehiel Hart, Esquire, being read;

The said entries were accordingly read by the Clerk.

Mr. Mondelet moved, seconded by Mr. Robitaille, to resolve that the Members of this House, in whose presence Ezehiel Hart, Esquire, took the Oath, at the opening of the present Parliament, do inform the House, how he took the said Oath.

* * * * * * *

So it was carried in the affirmative; and,

RESOLVED, accordingly.

And the House proceeded to receive the said information

And Mr. Bourdages and Mr. Duchesnay, in their places, respectively acquainted the House, that they were present, when Ezekiel Hart, Esquire, one of the Repre-

1. See page 353.

[Page 356]

sentatives of the Borough of Three Rivers, did take the Oath: that the head of the said Ezehiel Hart, was uncovered, and his hand on a book. That when the said book was presented to Mr. Blackwood, one of the Members who was sworni with the said Ezehiel Hart, he, Mr. Blackwood, asked the Commissioners appointed to administer the Oaths to the Members, what book it was? that the said Commissioners answered; ” It is the New Testament”: that Mr. Blaôkwood said, it is very well; kissed the book, and presented it to Mr. Hart; who kissed it also.

Mr. Mondelet now moved to resolve, seconded by Mr. Martineau:

That Ezekiel Hart, Esquire, professing the Jewish Religion, as appears by the entry of the 17th February, 1808, in the Journals of the last Session, and, inasmuch, as he did at the opening of the present Session, take an Oath on the Holy Evangelists, which could not bind him, and did thereby profane the Religious institution thereof, cannot take a seat, nor sit, nor vote in this House.

Whereupon, Mr. Bedard moved in amendment, seconded by Mr. Papineau, to strike out all the words after, ” Religion,” and insert the following, ” cannot sit nor vote in this House.”

* * * * * * *

The question, was mow put upon Mr. Bedard’s proposed amendment; a division again ensued; and the names being called for, they were taken down as followeth; videlicet:

Yeas Messieurs Durocher, Joseph Turgeon, F. Roi, Delorme, Langlois, M. Caron, L. Turgeon, L. Roi, Bourdages, Huot, Planté, Bedard, Mondelet, Borgia, Papineau, Robitaille, Coffin and Martineau.

Nays Messieurs Moore, J. Cuthbert, Justice De Bonne, Gray, R. Cuthbert, Blackwood, The Solicitor General, and Mure.

So it was carried in the affirmative.

The question being put upon Mr. Mondelet’s motion, as amended, the House divided; and the division proving to be the same as the last; videlicet: Yeas 18 Nays 8

RESOLVED, that Ezekiel Hart, Esquire, professing the Jewish religion, cannot sit, nor vote in this House.1

* * * * * * *

MINUTES OF THE EXECUTIVE COUNCIL, LOWER CANADA.2

Wednesday 19th April 1809.

At the Council Chamber in the Governor General’s House Present His Excellency General Sir James H. Craig K.B. Governor in Chief The Honble The Chief Justice Thomas Dunn François Baby Pierre A. DeBonne John Young & Jenkin Williams Esqrs

1. On the 8th of May the Speaker was informed that there was a vacancy in the representation for the Borough of Three Rivers. The dissolution of Parliament removed the necessity for holding a bye-election and in the general election which followed Ezekiel Hart was not a candidate. 2. From the original Minutes of the Executive Council, Canadian Archives, State Book E, page 504.

[Page 357]

His Excellency proposed to the Board the following Queries—Vizt—

1st Under the Act of 31. Geo. 3d Chap. 31. is a Jew eligible to sit in the House of Assembly of this Province?

2d If he is eligible and the House should by Vote exclude him assigning no other reason but that he is of the Jewish Religion is it not the duty of the Governor to protect such Jew equally with every other Subject of His Majesty in the enjoyment of a just right?

3d Is it not the duty of the Kings Representative to prevent the House of Assembly from assuming a power beyond what is allowed them by that Act on which thejr existence is founded, and is not the declaring any person not to be eligible to serve in Parliament who is not so declared by that Act or the excluding or expelling such person when chosen an assumption of such power as is beyond what is so allowed them?

4th If the House persists in such a Measure by their own Vote and not by a Bill proposed to pass the two other branches of the Legislature is it not the duty of the Governor to dissolve them?

5th Should the House of Assembly attempt by Vote to expel any Member not convicted of any Crime or who has not been guilty of any breach of the Privileges of the House or conducted himself contrary to the rules of the House is not such person entitled to the protection of His Majesty’s Governor?

6th Can such protection be given by any other step than by a Dissolution?

After deliberation the same were referred for the consideration and report of a Committee of the whole Council.

Wednesday 10th May 1809.1

At the Council Chamber in the Governor General’s House

Present His Excellency Sir James H. Craig 3LB. Governor in Chief The Honble The Chief Justice The Lord Bishop of Quebec Thomas Dunn François Baby Pierre A. DeBonne John Young & Jenkin Williams Esqrs

His Excellency communicated to the Board the Report of the Committee of the whole Council in Answer to the Queries proposed for their Consideration on the 19th of April last.

Approved and ordered to be entered.

(The Report)

To His Excellency Sir James H. Craig KB. Captain General & Governor in Chief of the Province of Lower Canada &c &c &c

Report of a Committee of the whole Council—Present, The Honble the Chief Justice in the Chair, The Lord Bishop of Quebec, Mr Dunn, Mr. Baby, Mr. DeBonne, M1. Young and Mr. Williams—On His Excellency’s Reference, in Council, of the 19tb April last, of certain Queries relative to the eligibility of Jews to sit in the House of Assembly.

May it please Your Excellency,

The Committee is of opinion that a Jew may be elected to the House of Assembly

1. From the original Minutes of the Executive Council, Canadian Archives, State Book B, page 511.

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of this Province and may sit and vote upon taking the Oaths required by Law in the customary manner.

This opinion is founded upon the following Reasons—

By the Statute 13 Geo. II . Cap. 7 It is enacted that all Foreigners naturalised by that Act “shall be deemed adjudged and taken to be His Majesty’s natural born ” Subjects to all intents constructions and purposes whatsoever as if they and every ” of them had been or were born within the Kingdom ” and it is self evident from the second Section of this Act that Jews are comprehended within its intention. By the Statute 31 Geo III . Cap. 31. Sec. 2.1 it is enacted that there shall be in each of the Provinces of Upper & Lower Canada a Legislative Council and Assembly to be “composed and constituted in the manner therein after described.”

By the 14th Section of the same Act2 it is enacted that His Majesty may authorise the Governor by an Instrument under the Great Seal to Summon and call together an Assembly in and for the Province and the Statute then proceeds to declare how this Assembly is to be ” constituted and composed ” for which purposes the 14th 15th 16th 18th and 19th Sections provide for the division of the Province into Counties for the Appointment of Returning Officers and the issuing and execution of the Writs of Election. The 17th Section enacts that the number of Members shall not be less than fifty and the 20th having declared the qualification of the Electors It is by the 21st Section provided ” that no person shall be capable of being elected a Member to serve in the Assembly or of sitting or Voting therein who shall be a member of the Legislative Council or a Minister of the Church of England or a Minister Priest Ecclesiastic or Teacher either according to the rites of the Church of Rome or under any other form or profession of Religious Faith or Worship.”

By the 22d ” that no person shall be capable of being elected who shall not be of the full Age of Twenty-one years and a Natural born Subject of His Majesty or a Subject of His Majesty naturalised by Act of the British Parliament or a Subject of His Majesty having become such by the¡ Conquest and Cession of the Province of Canada.”

And by the 23d ” that no person shall be capable of being elected who shall have been attainted for Treason or Felony in any Court of Law within any of His Majesty’s Dominions or be within the description of persons disqualified by any Act of the Legislative Council and Assembly of the Province assented to by His Majesty His Heirs and Successors.”

Such therefore is the manner in which the Assembly is to be composed according to this Act and these being the only disqualifications it follows that any Candidate who has been naturalised by any Act of the British Parliament (and consequently a Jew naturalized by the Statute 13th Geo. II. Cap. 7.) or who is a natural born Subject (which the Son of a Jew so naturalised must be if born in the Province) who is not a Member of the Legislative Council nor a Minister of the Church of England nor a Minister Priest Ecclesiastic or Teacher either according to the rites of the Church of Rome or under any other form or profession of religious faith or Worship nor under Twenty one years of age nor attainted for Treason or Felony nor within any description of persons disqualified by an Act of the Provincial Parliament must be eligible to a Seat in the Assembly.

The Committee is further confirmed in this opinion by the 42d Section) of 31. of Geo. III.3 which enacts ” that whenever any Act or Acas 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” “every such Act or Acts shall previous to any declaration or signification of the King’s Assent thereto be laid

1, See the Constitutional Documents, 1759-1791, Shortt and Doughty 1907, page 695. 2. Ibid, page 698. 3. Ibid, page 705.

[Page 359]

before both Houses of Parliament of Great Britain.” The irresistible inference from this Section being that a disqualification to sit in the House of Assembly on account of any religious Tenets cannot be created without an Act of the Legislative Council & Assembly of the Province assented to by His Majesty with the concurrence of the Houses of Lords and Commons of the United Kingdom.

The Committee is of opinion that the Protection of His Majestys Governmt is equally due from Your Excellency to all His Majesty’s Subjects and that Your Excellency is bound as far as possible to prevent the House of Assembly from assuming a Power beyond what is allowed to them by the Constitution.

The Committee is also of opinion that the expulsion of any Member upon any Principle of ” general ” Disqualification not declared by the Act of the 31. Geo. III. Cap. 31, or by some Provincial Statute would be an Assumption of Power beyond what is allowed them by the former Statute—But

The Committee is also of opinion that it will not become the duty of Your Excellency immediately to dissolve the Assembly if by vote only they should expelí a Jew without assigning! any other reason except that he is of the Jewish Religion and that a dissolution if it should finally be adopted for such Cause only ought for the present to be suspended.

The Committee is of this opinion for the following among other reasons because in such case the House would act Judicially so that admitting them to be wrong they must be presumed to act from an error in Judgment and not corruptly unless the contrary is most manifest. It seems therefore to the Committee advisable before any steps whatever are taken that the error of their Proceedings should in point of Law be established by the opinions of the highest legal authority to which recourse can be had in England and be notified to the House by a Message recommending an Act disqualifying Jews or in some other shape if their Proceedings should by such opinions be proved ultimately to be erroneous a Wilful instance of a similar Expulsion after such Steps on the part of the Executive Government might under Circumstances make it the duty of the Governor to dissolve the House.

The Committee also find that Mr. Ezekiel Hart was by the last House of Assembly expelled ” because he professed the Jewish Religion in and for no other Cause so that the present House has the Sanction of a precedent expressly in point.

The Committee is of opinion that any Member expelled by the House of Assembly who is not legally disqualified or has not legally forfeited his Seat is entitled in common with all other Subjects who are unjustly aggrieved to the justice and protection of His Majesty’s Governmt so far as that can be extended to him without prejudice to the interests of the rest of His Majesty’s Subjects in general and they do not perceive that such protection can be given by any other step than a dissolution but upon the expediency of am immediate dissolution on account of such expulsion as is the particular object of Your Excellency’s present Reference the Committee humbly beg leave to refer to what they have before stated.

All which is most respectfully submitted to Your Excellency’s Wisdom.

By order (Signed) J: SEWELL Chairman

Council-Chamber Bishop’s Palace 9th May 1809.

1. See page 356.

[Page 360]

CRAIG TO CASTLEREAGH.1

N° 59.

Quebec 5th June 1809

My Lord,

Inclosed your Lordship will receive the Speeches which I thought proper to address to the Provincial Parliament both on the opening and closing of that Assembly and it is my duty now to lay before your Lordship the grounds upon which it was judged expedient that they, particularly the latter, should bear the Complexion which will not escape your Lordship’s observation.

In my dispatch N° 29,2 I gave your Lordship an Account of a party which exists here and which is far from inconsiderable in strength. It was with concern that I saw the number of Persons returned to the House of Assembly who might upon good grounds be looked upon as their adherents; and it was very early understood that they were preparing for the adoption of every Measure which they considered as likely to Embarrass Government and shew their own power & importance. Their first step was to elect Monsr Panet for their Speaker.3 This I have reason to believe was intended as a sort of experiment upon my temper & firmness; if I had rejected Mr Panet, they would have chosen another instrument equally adapted to their views while it would have served as a fair pretext for the ill humour that might be apparent in their further proceedings; and on the other hand if I admitted Mr Panet they supposed I could only do so under the influence of intimidation, and they should then consider themselves at liberty to go any lengths they pleas’d. Upon a little reflection I chose the latter alternative, I thought the refusal of Mons. Panet would be making him individually of more consequence than I wish’d to have the appearance of attaching to the whole of the Assembly, & I thought what I proposed to say to them in my Speech would do away the idea of my acting under the impression which they supposed, at the same time that under the conviction of the Spirit by which they were actuated, I was willing that, whatever took place, should arise solely from themselves, I therefore approved of Mr Panet on the principle of the choice being a matter which concerned themselves more than me.

1. From the copy in the Canadian Archives, Q. 109, page 134. Sir James Henry Craig was born in 1748. At the age of fifteen he was gazetted an ensign in the 30th Regiment. In 1774, he accompanied the 47th Regiment to America and was in the actions at Bunker’s Hill and Ticonderoga. In recognition of his services he was given the rank of major in the newly-formed 82nd Regiment. He served with this regiment in Nova Scotia, Penobscot and North Carolina. ,On the reduction of his regiment at the close of the war he was transferred to the 16th with the rank of Lieutenant-Colonel. In 1791, he was made Adjutant-General of the Duke of York’s army in the Netherlands and :n the same year was promoted to the rank of Major-General. In 1795, in conjunction with Major-General Alured Clarke, he effected the capture of the Dutch Colony of the Cape of Good Hope and remained in charge of the government of the colony until 1797. He next served as Commander of a Division of the Army in Quebec and on his return to England in 1802 was placed in command of the troops in the Eastern District. In 1805 he was given the rank of a local general in the Mediterranean and was placed in charge of an expedition which was to land in Italy and co-operate with a Russian army against Napoleon. These plaas were changed by the battles of Ulm and Austerlitz and Craig retired to Sicily. Ill health compelled him to return to England in March, 1806. In August, 1807, he was appointed Captain-General and Governor-in-Chief of Upper and Lower Canada. He resigned his government and returned to England in October, 1811. He died in London, January 12, 1812. 2. See the Canadian Archives, Q. 107, page 306. 3. Jean Antoine Panet was born at Quebec in 1751. He received his commission as notary in 1772, and as advocate in the following year. In 1792, he was elected to the Legislative Assembly for the Upper Town of Quebec. He continued to represent this constituency until 1808 and was again elected by it in May, 1814. From 1808 to 1814 he sat for the County of Huntingdon. Mr. Panet was elected as Speaker of the First Assembly in 1792. In January, 1794, he was appointed a Judge of the Court of Common Pleas for Quebec and was thus compelled to relinquish the Speaker’s chair. In the new commissions, issued in accordance with the Judicature Act of 1794, Judge Panet was assigned to the Court of King’s Bench, Montreal, but refused the appointment. He was elected Speaker of the Second Parliament and of each successive parliament until 1815. In January, 1815, he was appointed to the Legislative Council. He died at Quebec on the 17th of May of the same year.

[Page 361]

As I was well aware that great activity had been exerted by the leaders of this Party in dissimulating their principles over the Province, in which they had so far succeeded, that a Spirit of jealousy and Suspicion had shewn itself in several parts, insomuch, that a Person elected a Member, after using very unwarrantable Language with respect to the Views of the Government and of the English, did not scruple to say, that if an Englishman was elected for his Colleague, he would not attend the Parliament: I thought it right in my Speech upon opening the Session, to advert to the dangers and disadvantages to the Colony, that might arise from the prevalence of that Spirit, if permitted to gain ground;1 and this is the part to which I alluded, as supposing it would do away the Idea of my being any way apprehensive of their opposition, as it was a reflection, which however general it was made in the wording of it, was obviously levelled at them, and was generally so understood.

This however, altho’ it was taken up by them & produced some warm debates, had not the effect that I thought it would, & it very soon appeared, that they conceived themselves above all control, & were determined that their proceedings should be guided by their pleasure only setting aside even all consideration! for the Act of the Imperial Parliament under which they hold their Constitution & every power with which they are vested. My Speech upon closing them contains, almost, as complete a history of their proceedings, as I could give to your Lordship, were I to detain you by a more detailed Account, except that I did not think it necessary to allude to the indecent lengths to which their personal abuse of each other was carried neither did I advert to their treatment of their own Speaker to whom, the most violent and unbecoming Language was used, altho’ he on every occasion showed the most decided partiality towards them, and this altercation was carried so far, that on the very day, on which I so unexpectedly prorogued them, they were prepared to have voted him out of the Chair. Upon the same principle of these matters concerning themselves only, and not being regularly before me, I abstained from adverting to the extraordinary Circumstance, of a Member having attempted to continue sitting, and having declared that he saw no occasion for getting up, while a Message was delivering from me, altho’, such had been the invariable usage, and tho’ such was one of their own regulations. He was indeed over ruled, but the Circumstance did not meet the reprehension that ought to have attended it. Among their own violent and unjustifiable proceedings, they seem’d resolutely bent upon carrying their favorite points of expelling His Majesty’s Judges from the House,2 and having failed last Session in carrying thro’ an Act for rendering them ineligible, which was thrown out in the Legislative Council—by this time resolved to effect their purpose by a simple vote of their own, this motion, however, after a full fortnight’s altercation, was negatived by a small Majority: this favourite measure of theirs was founded entirely & solely, oni the determined animosity that they bear to Mr De Bonne, the only Judge who is in the House. I mean, however, this motive as only applying to the avowed Leaders of the party in the House, for I am aware that very many of the best meaning Men in the Province are of opinion that it would be better if the Judges were not under the necessity of counting the people, as they are obliged to on the occasion of their Elections. Upon the failure of this attempt to expel the Judges by vote, they brought in a bill again to render them ineligible, but they had not made any progress in it.

1. The speech of the Governor contained the following passage, ” These blessings will be unalterably insured by the diffusion of a spirit of harmony and concord, the cultivation of which is more especially called for, from those who have the happiness of the people at heart, from the peculiar circumstances of the different parts of which they are composed. If anything can intervene to blast the prospect before» us, it can be only the admission of causeless jealousies and suspicions, still more unfounded, and assuredly most unmerited, towards that government under the protecting and fostering care of which you have attain ad to your present state of felicity.” Journals of the House of Assembly, 1809, page 40. 2. See page 350, note 4.

[Page 362]

The next point which occupied their attention was the expulsion of a Mr Hart,1 a Jew, this they disposed of by a Vote “that Ezekiel Hart professing the Jewish Religion cannot sit or vote in this House ” On both these occasions they proceeded with the utmost violence, refusing to listen to any argument founded upon the Act of the 31st of His Majesty, & altho’ they did mot, as far as I can learn, explicitly deny the Supremacy of the British Parliament or the force of that Act, yet they openly declared that they were the sole & only Judges of their own proceedings, not to be controuled, or bound, by any other power. In the case of M* Hart they called only for evidence of the mode in which he had taken the Oath, which was proved to have been, precisely in the same manner, as every other Member had takern it. They did not call upon him to avow or deny his religion; they called for no evidence on the Subject, and for any thing that appears on the face of their minutes M1 Hart may be a Christian; nay indeed his having taken the Oaths on! the New Testament would, prima facie, carry the evidence that he is so; but even as a Jew, we are here decidedly, and the Executive Council to whom I submitted the Subject, was unanimously of opinion, that He is eligible, provided he takes the Oaths as required by the Acts of Parliament.2

In pursuing their plan of hostility towards the Judges, they appointed a Committee, to enquire if any, & what inconveniences, had resulted to the Public, on occasions where the Judges had been Candidates at Elections for Members of that House.3 This Committee was formed entirely of the most violent of the party and accordingly nothing could exceed the marked irregularity, partiality and injustice, of their proceedings: these were carried on in Secret, altho’ they had not been appointed with that intent; the testimony laid before them was entered very differently from the way in which it was given, every circumstance that had the slightest tendency to prove, that the Judges had not made use of the influence that might be supposed to arise from their Situation, was carefully suppressed, when it was possible to do so, but testimony of a contrary tendency, tho’ grounded upon hearsay, twice & thrice removed, was eagerly inserted with every exaggeration that it would admit of, and individual opinion at great length, without containing one particle of evidence, or one single fact that could come under that description, was a prominent feature in their report. This was such as was calculated and evidently intended to inflame the public Mind and excite discontent at the administration of Justice so far as it is connected with the Object under review, and it was smuggled into the House in direct Violation of their own regulations, without being previously read by the Chairman in his place, so that no opportunity was afforded to oppose its being received, while to complete the Climax of the irregularity & disregard to common decency, with which this whole Matter was conducted, they entered upon their Journals, the direct falsehood that the Report had been read by the Chairman in his place, when he presented it. I have entered more particularly into detail upon these Circumstances My Lord because they so strongly mark the Complexion of the House, otherwise I might, as I have already observed, have confined myself to the contents of my Speech as conveying all the Information that I dare say Your Lordship will think necessary. All this while publick business was completely at a stand, whilst Messages from me, on objects of importance to the publick Welfare, and Bills sent down to them from the Legislative Council for their Concurrence, lay on their table for Weeks equally disregarded & unattended to. In the five weeks which they had sat, they had in fact passed one Bill, for of the five that were presented to me, three were the mere renewal of annual Acts, to which they stood pledged by their

1. See page 351. 2. See the Report of the Executive Council, page 357. 3. See page 350.

[Page 363]

address, and the fourth being only to correct an error in a former Act, came equally under the description of requiring no discussion.

Altho’ there was nothing in their proceedings, so far as they had hitherto gone, that bore any appearance of particular opposition to His Majesty’s Government, or of personal hostility to myself yet it was impossible that I could view them with indifference. The Public Mind began to be much agitated, by far the greater part, were laughing at, or calling out shame upon them, but their partizans were busily employed in representing them as supporting the authority and importance of that part of the Legislature, on which the happiness and prosperity of the Colony must depend. I have ‘no reason to believe that these were very successfuU in their labours, but it became necessary to show their futility. It was greatly expedient to prevent the House from falling into the Contempt, to which, it was fast verging, altho’ it was not less so, to give a check to the ideas of omnipotence, by which they themselves appeared to be inspired. The Speaker, speaking in a Committee of the whole House, had said that I dare not dissolve them. Add to these considerations, that the expulsion of Mr Hart appeared to me to be in direct violation of An Act of the British Parliament, which I could not countenance, and on maturely reflecting on the whole, I determined not only to prorogue but to dissoh e them also. Having come to this determination I thought it might be as well to prevent their coming to some violent or absurd resolution, which was to be expected, if they had had any intimation of my intentions, and I took my measures so, that they had not the slightest suspicion of them, till the Salute was firing on my entrance into the House.

I am assured on all hands, and I have every reason to believe, that this measure has given very general satisfaction, the English part of the Community all view it as having become highly expedient not only from the conduct of the House that was Dissolved, but from the general tendency of all their proceedings for some time past, and even the thinking part of the Canadians, allow it to have been called for by the circumstances. Mr Panet has I believe said it is no more than they deserve. I am even taught to expect that the effect will most probably be that few or none of those who were at the head of the Party, will get in again, certain it is, at any rate, that it will be impossible to collect a house that can be worse composed, either as to good will or the information necessary for carrjing on the Public Business

I have the Honor to be My Lord Your Lordship’s most obedient humble Servant J. H. CRAIG

The Right Honble Lord Castlereagh &c &c &c

Endorsed : Quebec 5th June 1809 R/ 14 July Sir J. H. Craig N° 59 3 Inclosures

CASTLEREAGH TO CRAIG.1

Sir J. H. Craig N° 21

Downing Street 7th Septr 1809

Sir,

I received & laid before the King your letter of the 5th of June last2 detailing

1. From the copy in the Canadian Archives, Q. 97A, page 127. 2 See page 360.

[Page 364]

an account of the Causes which had led you to dissolve the Legislative Assembly of Lower Canada after a severe censure of their Conduct.

I have no doubt that in the Measure you have taken you have been solely influenced by a Sense of your Duty to His Majesty & as you represent that it is approved by the English Part of the Community & the sensible Part of the Canadians I shall entertain a hope that it may not be attended with any prejudicial effect. I am at the same time to impress on you this Counsel, that if any unfortunate difference shall arise hereafter between you & the Legislative Assembly which may render it necessary for you to advert to their Proceedings (which should always be done cautiously) & in consequence thereof to prorogue & dissolve them you will take care to use all such temperate & chosen Language as may not leave it in the Power of the Legislative Assembly- which may afterwards be chosen to question the Propriety of your sentiments as affecting their Privileges or the Constitution.1

I am to express to you His Majesty’s Approbation of your removing Mr Stuart from his office of Solicitor General and of your appointing Mr Bowen to succeed him: As Mr Uniacke the Attorney General will have arrived in1 the Province long before this letter reaches you, I shall trust you will receive every necessary assistance from his zeal and abilities.

I have the honor &c CASTLEREAGH

CASTLEREAGH TO CRAIG.2

Sir J. H. Craig K.B. Private

Downing Street 7th Sept: 1809

Sir,

Having written to you officially upon the Subject of your letter relating to the Dissolution of the Legislative Assembly, I think it at the same time right to express to you my private sentiments.

Nothing appears to me more difficult or delicate to manage than a Provincial Assembly constituted like that of Lower Canada, wherein almost all the Privileges of the House of Commons of Great Britain are claimed or exercised, where there exist little Means of influencing the Members and inducing them to coalesce with the Government, and wherein from the example of the American States, and the very nature of a popular Assembly, strong, active & turbulent Minds have great incitements and opportunities to raise themselves into imaginary or real Importance by opposing the Administration. And the Difficulty becomes thus great from another peculiar ^circumstance that there is no means whatever of pimishing an Assembly but by Dissolution, & that this Method when the conduct of the Assembly is popular, is sure to fail of success, and to increase the Evil it is intended to cure.

It is therefore of the utmost consequence to take care that in any difference which may arise between a Governor & a Provincial Assembly he should not advert to any particular proceeding of the Assembly, that is not clearly unconstitutional and illegal: And that, when the improper opposition arises from Discussions of a mixed nature, where they can plausibly plead their Privileges and Rights in favor of their Conduct, however improper;3 no future allusion to such Conduct should be made by the Governor on which the Assembly might fasten a Complaint.

The two Grounds of Complaint against the Assembly which you specify are their Proceedings for preventing Judges sitting in the Assembly, & for endeavouring to

1. For Craig’s defence of his conduct see his despatch to Lord Liverpool, page 372. 2. From the copy in the Canadian Archives, Q. 97A, page 129. 3. See the Proceedings of the House of Assembly on this question, page 365.

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expel a Member on the allegation of his being a Jew, altho’ he had taken the regular Qualification Oath on the Gospels.1

The first of these objects can never, as you admit, be considered in itself as an improper or illegitimate one to pursue, however the Motive giving rise to Discussion may be factious; nor am I by any means persuaded that the Regulation would be an unfit one in itself : And further when the Bill which they had passed, had been thrown out by the Legislative Council, the Assembly had a right, if they thought fit to appoint a Committee to examine the inconveniences which arose from Judges canvassing at Elections.

So again with regard to the Endeavours to expel Mr Hart for being a Jew, it was obvious that a real Jew could not sit in the Assembly, as he could not take an oath upon the Gospels—it was therefore competent to the Assembly to inquire whether Mr Hart had complied with all such Requisitions as might be legally necessary to prove his bona fide conversion to Christianity, and that he took the Oath without mental Reservation.

I state these Points, not from any doubt of the Assembly acting in the spirit you represent, but to shew, that supposing the next Assembly may meet with a similar Disposition & Temper to that for which you dissolved the last : It is probable they will renew the discussion of measures against which your Censure was pronounced & will make such assertions of their Rights of free Discussion and Debate as may lead to more Embarrassments than have yet arisen.

When you advert to the expressions in which you have conveyed your Sentiments of the Proceedings of the Assembly you may naturally suppose they have created some Sensation here, & that an anxiety has been expressed as to the particulars of the Conduct which could require such severe animadversion: I shall hope however that there will not be any public Discussion on the subject, as the Topics are of such a nature as might give the efforts of a Party hostile to you or to Government some advantage.

What I would therefore recommend is, in Case, on the Meeting of the New Assembly animadversions should be made on your Speech on the close of the last, that as you will not be wanting in that firmness Your Situation & character demand, so you will avoid any Expression, which can be construed as touching in any degree, upon their supposed Privileges & the general Freedom of Inquiry & Debate.

In regard to. the Measure of excluding Judges from a Seat in the Legislature there is no Repugnance felt here to the Measure, should you at any time see it right to acquiesce in it2—The Principle of exclusion here extends to what are called the 12 Judges & to them only; for the Welsh Judges, the Judge of the Admiralty’& Prerogative & the Master of the Rolls all sit in Parliament.

I have the honor &c CASTLEREAGH

RESOLUTIONS OF THE HOUSE OF ASSEMBLY, LOWER CANADA, RESPECTING ITS PRIVILEGES.3

JOURNALS OF THE HOUSE OF ASSEMBLY LOWER CANADA.

Saturday, 3d February, 1810.

Mr. Bedard moved, seconded by Mr. Blanchet, to resolve; that every attempt of the Executive Government, and of the other branches of the Legislature, against this

1. See pages 350 and 351. 2. The address of the Governor-in-Chief at the opening of the Session of 1810 contained a particular reference to the exclusion of judges and concluded thus—” I have to add thit, having received His Majesty’s Pleasure upon it, I shall feel myself warranted in giving His Royal Assent to any proper Bill for rendering His Majesty’s Judges of the Courts of King’s Bench, in future, ineligible to a seat in the House of Assembly in which the two Houses may concur.” (Journals of the House of Assembly of Lower-Canada, 1810, page 36.) For a statement of Craig’s opinion on the question see page 374. 3. From the Journals of the House of Assembly of Lower-Canada for the year 1810.

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House, whether in dictating or censuring its proceedings, or in approving the conduct of one part of its Members, and disapproving the conduct of the others, is a violation of the Statute by which this House is constituted;1 a breach of the privileges of this House, against which it cannot forbear objecting, and a dangerous attack upon the rights and liberties of His Majesty’s subjects in this Province.

Mr. Mure moved in amendment, seconded by Mr. Gugy, to leave out all the words after “resolve,” and insert the following, “that in the present situation of the Province, it is the duty of this House, to act with the utmost vigilance, in taking those necessary steps, to meet whatever event may arise out of the threatening aspect of our neighbours; and, by our unanimity, to meet every such attempt, to shew that we will not fall a willing or easy prey to any foreign power, having designs on our safety or tranquillity ; and that whatever can tend to destroy such an unanimity, ought to be carefully avoided, iar all our proceedings.”

The House divided on the question of amendment, Yeas 11, Nays 24.

So it passed in the negative.

The main question was now put ; the House again divided,……….

And there being a majority of thirteen for the affirmative, it was accordingly,

RESOLVED, that every attempt of the Executive Government, and of the other branches of the Legislature against this House, whether in dictating or censuring its proceedings, or in approving the conduct of one part of its Members, and disapproving the conduct of the others, is a violation of the Statute by which this House is constituted; a breach of the privileges of this House, against which it cannot forbear objecting, and a dangerous attack upon the rights and liberties of his Majesty’s subjects in this Province.”2

ADDRESS OF THE HOUSE OF ASSEMBLY OF LOWER CANADA TO THE KING.3

TO THE KING’S MOST EXCELLENT MAJESTY.

The most humble Address of the Assembly of Lower Canada, in Provincial Parliament convened.

We your Majesty’s most dutiful and loyal Subjects the Representatives of the Commons of Lower Canada, in Assembly met, humbly beg leave to approach your Majesty’s Throne, with hearts full of loyalty and gratitude.

We humbly beseech your Majesty to be assured of the sentiments of affection entertained by your Majesty’s Subjects of Lower Canada, and also to be persuaded that the people of this Colony, ever attached to their Sovereigns, will never be sur-

1. The speech of Sir James Craig on proroguing the previous parliament contained a severe criticism of the conduct of the Assembiy and likewise implied a censure on a part of its members. “To a considerable portion of the House of Assembly, my thanks are equally due. I trust they will believe, that 1 do them the justice of a proper discrimination, in the sense I entertain of their efforts, to avert that conduct, of which I have so much reason to complain. By this, Gentlemen, you have truly manifested your affection to His Majesty’s Government, andyour just estimation of the real and permanent interests of the Province ” Journals of the House of Assembly of Lower-Canada, 1809, page 308. 2. For Craig’s view of this speech on the prorogation see page 374. 3. From the Journals of the Mouse of Assembly of Lower-Canada for 1810, page 134. This address was prepared as the result of tie decision of the House of Assembly as expressed in the following resolutions :— ” Resolved, that the House of Assembly ought to vote, during this Session, the necessary sums for defraying the Civil Expences of the Government of this Province.” ” Resolved, that this House will vote, in this Session, the necessary sums for defraying the civil expences of the Government of this Province.” (Journals of the House of Assembly for February 10th, 1810.) Similar addresses were prepared to be submitted to Pie House of Lords and to the House of Commons.

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passed by any others within your Majesty’s Empire, in the sentiments of regard and affection which they feel for your sacred Person.

We humbly beg leave to express to your Majesty, the lively gratitude which we feel, on a recollection of all your Majesty’s favours, and on a view of the state of prosperity, to which this Province has attained, under your Majesty’s paternal Government, and the happy Constitution which has been granted to us by the liberality of your Majesty and of the British Parliament.

This state of prosperity is become such, as to enable us to engage to pay, in the course of the present Session of the Legislature, the Civil Expenditure of the Provincial Government, which has hitherto been chiefly defrayed by your Majesty: and this.” effect of our prosperity is the more gratifying to us, as your Majesty’s people of Great Britain have been so long burthened with the expences of a war, undertaken for the protection of every part of your Majesty’s vast Empire.

Under these circumstances, your Majesty’s Subjects in this Province feel themselves happy, in being now able to acquit themselves of an obligation imposed upon them by duty and gratitude.

ADDRESS OF THE HOUSE OF ASSEMBLY TO SIR JAMES CRAIG.1

To His EXCELLENCY

SIR JAMES HENRY CRAIG, Knight of the Most Honourable Order of the Bath, Captain General and Governor in Chief in and over the Provinces of Lower-Canada, Upper-Canada, Nova-Scotia, New-Brunswick, and their several Dependencies, Vice Admiral of the same, General and Commander of all His Majesty’s Forces in the said Provinces of Lower-Canada and Upper-Canada, Nova-Scotia, New-Brunswick, and their several Dependencies, and in the Island of Newfoundland, &c. &c. &c.

MAY IT PLEASE YOUR EXCELLENCY,

We His Majesty’s most dutiful and loyal subjects the Representatives of the Commons of Lower-Canada, in Provincial Parliament met, beg leave to inform your Excellency, that the House of Assembly has resolved to vote in this Session, the necessary sums for defraying all the Civil Expences of the administration of the Government of this Province, and humbly to request, that your Excellency may be pleased to transmit to His Majesty’s Ministers, to be presented to the King, the House of Lords, and the House of Commons, our most humble and dutiful Addresses of thanks, which we have now the honor of presenting to your Excellency.

REPLY OF SIR JAMES CRAIG TO THE ADDRESS OF THE HOUSE OF ASSEMBLY.2

Gentlemen,

The Addresses which you have presented to me, are all under such peculiar circumstances of novelty, that they have demanded and received a considerable degree of consideration from me.

The Constitutional usage of Parliament, fully recognized by the wisdom of the House of Commons of the United Kingdom, forbids all steps whatever on the part of the people towards grants of money upon public or private grounds, which are not

1. From the Journals of the House of Assembly of Lower-Canada for 1810, page 156. 2. From the Journals of the House of Assembly of Lower-Canada for the year 1810, page 218. The addresses prepared by the House of Assembly were submitted by Craig to the Executive Council together with his proposed reply. The Executive Council ordered ” that the answer be entered on the Minutes as containing the sentiments of the Board with respect to the Addresses in question.” (Minutes of the Executive Council, February 23rd 1810. Canadian Archives, State Book F, page 103.)

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recommended from the Crown; and although by the same Parliamentary usage, all grants and aids do originate in the Lower House, yet it is scarcely necessary for me to observe, that they are wholly ineffectual, without the concurrence of the Upper House. I must observe, also, that of Addresses to the House of Lords, or to the House of Commons, separately, by a single Branch of a Colonial Legislature, (as far as my information goes) no former example exists. And I must request you to notice, that the Address which I have now received from you, intended for the House of Commons of the United Kingdom, is made to a part only of that House.

For these reasons, I cannot but consider those Addresses to be unprecedented; to be imperfect in form ; to be founded upon a resolution,1 which, until it has received the concurrence of the Legislative Council, must be wholly ineffectual, (except as a spontaneous offer on the part of the Commons of Canada) that they are consequently premature; and I regret that I cannot, therefore, under the impression which I feel of my official duty, take upon myself to transmit them to His Majesty’s Ministers,2 I may add, that His Majesty’s Ministers are not the regular organs of communication with the Houses of Parliament, unless by His Majesty’s command; I could not, therefore, pledge myself for the delivery of these Addresses, were I to transmit them through that channel.

Under some of these considerations, I should equally feel myself bound, upon1 ordinary occasions, to decline transmitting any Addresses to His Majesty, that might be under circumstances similar to the present. But upon this occasion, and after mature deliberation, I think it right that it should be laid before him. I think it right, that, by an act of .their own, His Majesty should be informed of the good disposition, gratitude, and generous intentions of his subjects in this Province. I think it right, also, that His Majesty, by their own act, should be formally apprised of the ability, and of the voluntary pledge and promise, which the people of this Province, by this Address to their Sovereign, and by the resolution upon which it is founded1, have given to His Majesty, to pay the entire civil expenditure of the Province, when required so to do ; and consequently, without repugnance, demand from them the performance of this solemn undertaking on their part, whenever he may, in his wisdom, think it expedient so to do.

For these reasons, I shall transmit your Address to the King, as you have requested. I desire, however, that it may be distinctly understood, that as I ought not, by any act of mine, to compromise the rights of His Majesty, of the Imperial Government, or of the Legislative Council of this Province, so I do not, by this compliance with your request, concede to the Assembly of this Province, or admit that any step on their part, towards grants of money, which are not recommended by the Crown, can be Constitutional; or that any such step can be effectual, without the concurrence of the Legislative Council, and the final approbation of the King.

The expressions of affection and of gratitude, towards His Majesty and the two Houses of the Imperial Parliament, for the favors conferred on this Province, under which it has attained its present state of prosperity, which you so warmly and so explicitly profess in your Addresses, will not permit a moment’s doubt of the sincerity of your wishes to carry into complete effect the resolution which is the object of them. So commendable a purpose entitles you to every acknowledgement; and I cannot but lament exceedingly, that any circumstances should exist, which, under a sense of duty, have compelled me to express myself on the subject, in a way, that may carry with it, evem an appearance, however little intended, of opposing any check to the manifestation of the sentiments, under which, I persuade myself, you have acted.

1. See page 366, note 3. 2. It was the opinion of the Executive Council that “the Addresses to the Lords and Commons could not with propriety be so transmitted but that the Address to His Majesty although very incorrect and irregular in its nature might be submitted to His Majesty’s Most Gracious consideration.” (Minutes of the Executive Council, February 21st, 1818, State Book F, page 102.)

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BILL FOR THE APPOINTMENT OF A PROVINCIAL AGENT, LOWER CANADA.1

Bill, for appointing An Agent in the United Kingdom of Great Britain and Ireland to solicit the passing of Laws, and for transacting the public affairs of this Province.

WHEREAS it is absolutely necessary that the Inhabitants of this Province should have a person duly qualified in the United Kingdom of Great Britain & Ireland and fully empowered to solicit the passing of such Laws, and to transact such other publie matters as shall be committed to his care for the good of this Province. May it therefore be Enacted by the King’s most excellent Majesty by and with the advice and consent of the Legislative Council and Assembly of the Province of Lower Canada constituted and assembled by virtue of and under the authority of An Act passed in the Parliament of Great Britain 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;” and it is hereby Enacted by the authority aforesaid that——–Esquire be and he is hereby nominated and appointed Agent in the United Kingdom of Great Britain and Ireland for this Province for the purposes aforesaid; and the Members of His Majesty’s Legislative Council and the Speaker, and the Members of the Assembly for the time being resident in this Province be, and they are hereby empowered and appointed Commissioners for instructing and directing the said Agent pursuant to such directions and authorities as the said Commissioners shall, from time to time receive from the Majority of the Legislative Council and Assembly respectively when sitting. Provided nevertheless that the said Commissioners or any five of them, may from time to time in the intervals of Assembly, give to the said Agent in the United Kingdom of Great Britain and Ireland such further Instructions as they shall think fit, for the public service of this Province. Provided further that in case a difference of opinion should at any time happen between the two Bodies of Commissioners hereby appointed, wherein the” Majority of each of them adhere unanimously to their opinions that then the majority of each Body shall be, and are hereby Empowered to act separately; anything in this Act contained to the contrary in any wise notwithstanding.

And be it further Enacted by the authority aforesaid that any two of the Commissioners hereby appointed shall and may during the intervals of Assembly open all and every the Packets and Letters which from time to time shall or may come from the Agent for this Province directed to the Commissioners of Correspondence hereby appointed: And that as often as it shall or may be necessary during the intervals of Assembly, for the said Commissioners to meet for drawing up and transmitting of Letters in answer to such Letters or Packets received from the Agent, or for any other of the purposes and business herein before mentioned any five of the said Commissioners shall and may from time to time appoint a certain day for the meeting of all the Commissioners, always giving ten days notice by Public advertisement in the Public Newspapers, of the day appointed for such meeting; except in case of a dis-

1. From a certified copy of the Bill in the Canadian Archives, Sundry Papers of Lower- Canada, March, 1810. The House of Assembly had. prior to this time, considered the advisability of appointing a Provincial Agent. On April 14th, 1807, the House had resolved that ” it would be highly advantageous to have an Agent legally authorized, resident in Great Britain, for the purpose of attending to the interests of this Province when occasion might require.” (Journals of the House of Assembly, 1807.) On February 9th, 1810, this resolution was read in the House and leave was granted for the introduction of a Bill for the appointment of a Provincial Agent. The Bill had received its second reading and was before the Committee of the Whplo House when Parliament was prorogued. For Sir James Craig’s comments on the Bill see page 376.

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solution or prorogation of the Provincial Parliament for the time being, in which case the said Commissioners or any five of them may meet within six days after giving one days notice to all and every the several and respective Commissioners hereby appointed.

And be it further Enacted by the authority aforesaid that the Building in which the present Legislature is now convened in the City of Quebec, and no other, shall be the place of the meeting of the said Commissioners or any five of them, for transacting all the several matters & business, which the said Commissioners or any five of them, are hereby required empowered and authorised to transact.

And be it further Enacted by the authority aforesaid, that the Commissioners hereby appointed shall cause fair copies of all their proceedings which shall take place in pursuance of this Act, together with the names of the Commissioners present at each meeting, to be duly Entered in a Book to be kept for that purpose; which proceedings or any of them, shall be and they are hereby directed to be, laid before His Excellency the Governor in chief, the Lieutenant Governor or the person administering the Government of this Province for the time being during the Sessions of Parliament as often as the same shall be required: And the said Commissioners shall have no manner of fee, reward, or allowance, for their trouble and care in their transactions pursuant to this Act, the charge of a Clerk, Stationary and Advertisements only excepted.

And be it further Enacted by the authority aforesaid that the said Agent shall be paid at the rate of ——– per annum for such time as he shall continue Agent for his care and trouble in and about his transacting the Affairs of this Province in the United Kingdom of Great Britain and Ireland, and that the same shall be remitted to him by the Receiver-General for the time being, and from time to time when and so often as he shall be required so to do by the Commissioners herein before named, or any five of them, together with such charges and Disbursements as the Commissioners, or any five of them, shall find he may have reasonably expended in and about the Public business of this Province.

And be it further enacted by the authority aforesaid, that this Act shall continue and be in force for three years, from the passing thereof, and no longer.

PROCEEDINGS RELATING TO THE EXPULSION OF P.A. DEBONNE FROM THE HOUSE OF ASSEMBLY, LOWER-CANADA.1

JOURNALS OF THE HOUSE OF ASSEMBLY OF LOWER-CANADA.

Saturday, 24th February, 1810.

* * * * * * *

Mr. Bourdages moved to resolve, seconded by Mr. B. Panet, that P. A. DeBonne,2 being one of the Judges of the Court of King’s Bench, cannot sit nor vote in this House.

Mr. Blackwood moved in amendment, seconded by Mr. James Cuthhert, to leave out all the words after ” that ” and insert, “merchants, lawyers, notaries, sheriffs, justices of the peace, prothonotaries, and auctioneers, are not eligible to sit or vote in this House.”

The question being put on the said amendment, it passed unanimously in the negative.

Mr. Taschereau moved the previous question, seconded by Mr. Blanchet; viz.

That the question be now put?

1. From the Journals of the House of Assembly of Lower-Canada for 1810. 2 For an account of the proceedings which had been taken during this session on the question of excluding judges froan the Assembly see Craig’s letter to Lord Liverpool, page 374.

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The House divided, and the names being called for, they were taken down as follows :

Yeas,

Messrs. Huot, Bourdages, Taschereau, Lee, Borgia, Louis Roi, Robitaille, Meunier, Drapeau, Viger, Langlois, Bernier, Saint Julien, Bedard, Blanchet, B. Panet, J. L. Papineau, Durocher, and Beauehamp.

Nays,

Messieurs Mure, Duchesnay, Gugy, Blackwood, Bell, Badeaux, R. Cuthbert, Bowen, Gray, J. Cuthbert, McCord, Debattzch, Caron, Jones of Bedford, Dénéchau, and Jones, of Quebec.1

It was accordingly,

ORDERED, that the main question be now put.

And the main question being put, the House divided: Yeas 19 Nays 16

So it was carried in the affirmative.

RESOLVED, that P. A. DeBonne, being one of the Judges of the Court of King’s Bench, cannot sit nor vote in this House.

Mr. Bourdages moved to resolve, seconded by Mr. Lee, that the seat of P. A. DeBonne, one of the Members of the County of Quebec, is vacant.

The House divided on the question: Yeas 19 Nays 16

So it was,

RESOLVED, that the seat of P. A. DeBonne, one of the Members for the County of Quebec, is vacant.

SPEECH OF SIR JAMES CRAIG ON PROROGUING PARLIAMENT, 1810.2

Gentlemen of the Legislative Council, and Gentlemen of the House of Assembly,

I am come down here, for the purpose of proroguing the present Parliament— And, upon a mature consideration of the circumstances that have taken place, I am to inform you, of my determination of again referring to the sense of the people, by an immediate dissolution.

Called again to the unpleasant exercise of one of the functions of His Majesty’s prerogative with which I am entrusted, I feel it to be again expedient, that I should state to you, and that through you, which is indeed the only channel of communication that I have with them, the people may be distinctly informed of the motives by which I am actuated.

Whatever might be my personal wishes, or however strong might be my desire, that the public business should suffer no interruption, I feel, that, on this occasion, nothing is left to my discretion; it has been rendered impossible for me to act otherwise, than in the way I am proposing.

The House of Assembly has taken upon themselves, without the participation of

1. See Craig’s comment on the vote, page 375. 2. From the Journals of the House of Assembly of Lower-Canada for 1810, page 248. On Monday, February 26th, Sir James Craig reported to the Executive Council tho proceedings of the Assembly in the case of Mr. DeBonne and informed them of his intention hi prorogue Parliament. ” The Council being unanimously of opinion that the measure was expedient and necessary His Excellency read the Speech which he purposed making to the two Houses on the occasion. Some small alterations were suggested which His Excellency was pleased to adopt and the Speech was ordered to be entered on the Minutes.” (Canadian Archives, State Book F, page 109.)

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the other branches of the Legislature, to pass a vote, that a Judge of His Majesty’s Court of King’s Bench, cannot” sit, nor vote, in their House. However I might set aside the personal feelings which would not be unnatural in me, as to the mode in which this transaction has been conducted towards myself; there is another, and infinitely higher consideration, arises out of it, which I must not overlook.

It is impossible for me to consider what has been done, in any other light, than as a direct violation of an Act of the Imperial Parliament;—of that Parliament which conferred on you the Constitution, to which you profess to owe your present prosperity; 1 nor can I do otherwise than consider the House of Assembly as having, unconstitutionally, disfranchised a large portion of His Majesty’s Subjects, and rendered ineligible, by an authority which they do not possess, another not inconsiderable class of the community.

Such an assumption, I should, at any rate, feel myself bound by every tie of duty to oppose; but, ia consequence of the Expulsion of the Member for the County of Quebec, a vacancy in the representation for that County, has been declared; and it would be necessary that a new writ should issue, for the Election of another Member. That writ would be to be signed by me. Gentlemen, I cannot—dare not, render myself a partaker in a violation of an Act of the Imperial Parliament ; and I know no other way, by which I ean avoid becoming so, but that which I am pursuing.

When we met, I felt much satisfaction in the consciousness of having taken such steps, as I thought most likely to facilitate, indeed, I thought, would do away, every possible objection to a measure, that seemed to be wished for, and that, in itself, met my entire concurrence.2 But my objection, and the only objection that can, I think, exist HI the mind of any reasonable man, to the eligibility of the Judges, arises from the possible effect that may be produced by the necessity it puts them under of soliciting the votes of the Electors. No well-grounded objection can be offered to their sitting in the House, when they are elected. On the contrary, their talents and superior knowledge, must render them highly useful; and, were it not for other considerations, highly desirable Members. I cannot but exceedingly lament that a measure, which I consider as beneficial to the country, should not have taken effect. The people, however, in the disappointment of their expectations, will do me the justice to acquit me, of being the cause of it, as they must equally acquit me of being the cause that so little of the public business has been done.

CRAIG TO LIVERPOOL.3

Quebec 30th March 1810

Duplicate N° 6

My Lord,

In the short dispatch which I did myself the honor of writing to your Lordship,

1 See the Address of the House of Assembly, page 366. 2. See page 850, note 4» and also page 374. 8. From the copy in the Canadian Archives, Q. 112, page 98. Robert Banks Jenkinson, second Earl of Liverpool, was born in 1770. He was returned to Parliament in 1790, and was soon selected by Pitt for important duties in the House. On his father’s elevation to the Earldom in 1796 he became Lord Hawkesbury. He served at the foreign office in the Addington Ministry and on the return of Mr. Pitt in 1804 was transferred to the Home Office. He had previously been raised to the peerage and now became leader of the Government in the House of Lords. During the brief period of the Grenville ministry Hawkesbury led the forces of the opposition and assisted in the formation of the Portland cabinet in March. 1887, when he wag again placed in charge of the Home Office. He succeeded to the Earldom of Liverpool in 1808 and on the resignation of the Duke of Portland he took office with Mr. Percival in December, 1809. this time going to the foreign office. He remained here for a very brief period, later in the same month succeeding Lord Castlereagh as Secretary of State for War and the Colonies. He held this position during the lifetime of the Percival ministry. On Mr. Percival’s assassination, Lord Liverpool became Prime Minister in June, 1812, and, with the support of a strong Tory party retained office until the failura of his health forced him to resign in February, 1827. For the reply of Lord Liverpool to this despatch see page 407.

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on the 5th instant,1 I acquainted you with my having found myself under the necessity of dissolving the Provincial Parliament. It,is now my Duty, to enter into that detail on the subject, which may be necessary for His Majesty’s information. Referring Your Lordship to my dispatch N° 59 of 5th June 1809,2 with the view of directing your Lordship’s attention, more fully, to the Spirit that characterises these assemblies, I should avoid trespassing upon your Lordship’s time, by any otherwise adverting to the Dissolution of the former Parliament, were it not, that, I confess, I feel a little anxiety to be permitted to explain myself something further on the subject, under the presumption that I have beeru unfortunate in that respect, and that in consequence (I judge from His Lordship’s letters of 7th September)3 I have not been quite understood by Your Lordship’s Predecessor in the Department you now hold.

My view in the step I took of dissolving that Parliament, was the hope of getting a better one,4 and in this hope, it was indispensably necessary that the people who were to elect the new Parliament, should clearly understand the grounds, upon which, they were called on so soon again, to exercise that Right. It was only by setting before them the conduct which had occasioned the Dissolution, that I could expect they should feel a necessity, of choosing other Members. In England, such is the state of public information, so generally is the knowledge of every event that occurs diffused over the Country, and so well are the people accustomed to reason upon these events, that, should His Majesty feel himself called on to exert His Prerogative in the Dissolution of a Parliament, no necessity would exist, for his assigning his reason for so doing, they would be perfectly understood, they would be freely discussed by all ranks, and all parties: and, though faction might endeavour to prevent the Judgement of the people upon them, it could not however alter their true nature. Here, the case is totally different. So universal & profound a degree of ignorance pervades the whole country, that no one reads, for it is not one in a thousand that can read, the people know nothing but what they are told, and while the activity which so truly characterises the exertions of Democracy, has established an Orator in every parish, Government remains without the possibility of communicating with them:—some faint idea however exists among them of the importance of the Governor’s Speech.

There is generally a sort of anxious eagerness to hear what he says to Parliament, and of this, it was my desire to take advantage, to convey to them the information I wished them to have. On these grounds I penned my speech. It was strong, I allow, but it was calculated for the understanding of the people for whom it was in fact intended. With them your language must be most direct & plain, or it will not be understood, and it is only by being so, that any hopes can be entertained, of its not being distorted, by the Orators who will comment upon it. With regard to the House itself, I cannot conceive, that any Right or Privilege of theirs was invaded.5 I view the addressing a House, to whose existence I am putting a period, in a very different light, from the doing so while they are in activity. Nothing that I can then say can have any influence on a body, whose power is at an end; but in either case, if I am to speak, surely the House, in the exercise, or in the claim, of a supposed privilege are not to point out to me the terms in which I am to do it. I must hold the Language that His Majesty’s Interests appear to me to require, that I should hold. It may offend them, but that is my consideration. I am to calculate the inconveniences that may result from their being offended, and whether these, may be more detrimental to His Majesty’s Interests, than may be the advantage I look for to them from the conduct I am pursuing, and if the same Members are re-elected, we shall probably meet

1. This despatch does not appear in the correspondence of Sir James Craig in the Archives. 2. See page 360. 3. See page 364. 4. See page 368. 5. See page 366, and note 1 of same page.

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with some asperity on both sides, but it was in the express expectation, that it would have freed me from the necessity of meeting the same Members again, that I adopted that line, the firm footing, on which the leading Demagogues had established their influence was not then foreseen, nor was it by any means suspected to be so universal as it was found to be, and it is even now thought, that had the Elections ensued immediately, the effect I expected would have followed. Unfortunately it was judged more adviseable to wait, till the little ferment that might be supposed to exist, should be over, & the result was the direct contrary. Not only the same Members were generally re-elected, but so successful had they beeni in their exertions that their power was encreased, by the introduction of several more of the same stamp. This was the situation in which I met the new Parliament on 29th Jany. In the mean time, I had received Lord Castlereagh’s letter of 7th Septr by which I was authorized to assent to an act for the exclusion of the Judges,1 if I thought it proper to do so. My own opinion always went decidedly with the measure. In this Country in all Civil Suits, the Judges act alone, without the intervention of a Jury, except in some particular cases, where the parties desire a Jury, they are consequently Judges of the fact as well as of the Law, and much depends upon their discretion, especially in the inferior & Country Courts, where one Judge sits alone. The influence with respect to the Impression that may be on the Minds of am ignorant people, when they see a judge, with his Cap in his hands, soliciting a favor from them, is too obvious to require that I should remark upon it. This reasoning weighed with very many to be of the same opinion with me, but the Democratic party had taken it into their heads, that the retaining the eligibility of the Judges was an object of importance to Government; they had therefore, during the recess, most assiduously employed themselves in representing the exclusion of them, as a measure on which the salvation of the Country almost depended, and that it was opposed by Government for sinister views detrimental to the public good. It was in consequence become a sort of clamour in the Country. Finding thus that the measure was eagerly looked for, and thinking it myself a very proper one, I did not imagine there could be any objection, to my going a step beyond the permission given me by Lord Castlereagh’s Instructions, and instead of waiting to assent to the Bill, which might be presented to me, when it would be considered as a triumph on their part, & would be represented as an instance of the efficacy of the power possessed by the Assembly, which had forced Government to accede to their measures for the Public advantage, I thought it better to anticipate their views, & to take the credit of the measure to His Majesty’s Government, by myself recommending it, & announcing the permission I had received to accede to it. This certainly had a great effect on the public mind, tho’ it failed in its probable consequence that might have been looked for, in a return of confidence, and Harmony, on the part of the house. There was a moment indeed in which I thought this might have been expected, altho’ the Chagrin that was evident in the party, at finding themselves anticipated, led them to begin rather ungraciously, by one of them bringing in a Bill for disqualifying the Judges, before my Speech was reported by the Speaker. I attributed this however to its true cause, & I understand that their general Language & expressions of approbation, were such, that, contrary to the suggestions of the best informed of my friends, I really considered myself warranted in hoping that we should have gone on smoothly. This hope, however did not last long; they immediately passed a resolution, which alluded to the manner in which I had dissolved the last Parliament. It was as follows—” That every attempt of the Executive Government & of the other branches of the Legislature, against this House, whether in dictating or censuring its proceedings, or in approving the conduct of one part of its Members, & disapproving the conduct of the other, is a violation of the Statute by which this House is constituted, a Breach of the Privileges of this House, against

1. See page 364.

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which it cannot forbear objecting, and a dangerous attempt upon the rights & the liberties of His Majesty’s Subjects in this Province.1

As this was am abstract proposition, equally applying to the other branches of the Legislature: as it was not presented to me, and was not followed up by any other proceedings, I thought myself at liberty to pass it over without notice; and I considered it as a promising instance of their moderation, that their paper, which never yet failed in any opportunity that presented itself, for exciting disaffection or^sedition, did not publish this resolution.

Proceeding from this, in the Bill for incapacitating the Judges, they included in, it. the Provincial Judge of the inferior District of Gaspé, and they made it a part of the Bill that Judges now belonging to the House, should be incapable of sitting or voting from the passing of the Act. The Bill thus formed, went up to the Legislative Council, who amended it by omitting both these clauses, & returned it to the Lower House.

The extending the ineligibility to the Judge of Gaspé, had never been in contemplation, and was adopted now, solely because he was considered as an officer of Government, while the latter measure of the immediate expulsion of the Judges, who had seats, was taken upon the mere grounds of personal hostility towards Judge DeBonne,2 who was the only Judge in that predicament. For the indecency of this, they had the less excuse, because I had taken care they should be informed, indeed I had myself told the Speaker, it was my intention to recommend Mr DeBonne, to His Majesty, and to request that he would be graciously pleased to raise him to the Upper House.3

The House, upon receiving the Bill, as amended by the Council, burst into a flame of resentment & apparent indignation. The Language was violent, and went the length of asserting, that the Council had gone beyond its powers, they however proceeded to take the amendments into Consideration, in which they appear to have given up the exclusion of the Judge of Gaspé, but to have persisted in the Clause for the immediate expulsion of such Judges, as might be then in the House.

Pending, however, the discussion of these points, a Monsieur Bourdages one of the most marked demagogues of the set, had come down from the Country, and taken his seat, and his arrival seems to have added considerably to the violence of their measures. There are Three Bills, which are passed annually, one for making a temporary provision for the regulation of the Trade between this Province and the United States, another for the better preservation of His Majesty’s Government, & the third, ccmmonly called the Alien Act.

The two first of these Bills had actually passed both Houses before the arrival of Mr Bourdage;4 but upon the third being brought in, that Gentleman made a motion for deferring the Second reading till the 20th March, which motion passed as usual. The Judge’s Bill was returned with the Amendments from the Council on friday the 23d Feby. and on the same day the House went into a Committee to consider of those Amendments, reported progress, and asked leave to sit again on the morrow. On that day however previous to the Speaker leaving the Chair, Mr Bourdage made a motion in the following words ” that P. A. DeBonne being one of the Judges of the ” Court of King’s Bench cannot sit or vote in this House” this motion passed by 19 votes to 16 who were against it.5

Mr Bourdage’s second motion followed of course & passed by the same Majority. It was ” that the seat of P. A. DeBonne one of the Members for the County of Quebec

1. See page 866. 2. See pages 3.0 and 370. 3. Sir James Craig’s despatch ND. 9 of May 12th, 1810, recommends that Mr. DeBonne be appointed to the Legislative Council. The appointment never was made. 4. See page 445, note 2. 5. See page 371.

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is vacant.” The House then went into a Committee on the amendments made by the Council & reported to the House as I have already observed.

Upon the number who appear on each side,1 on this occasion & by which it would seem that the majority of the democratic party was only of three, I must observe, that altho’ that question was not expected yet it so happened that the whole strength of the party who acts against them chanced to be present, they could not have mustered another vote, & they amounted only to thirteen who could be depended upon; three of those who usually voted with the other party joined them on that occasion which made out their sixteen.

On Monday Morning I assembled The Executive Council, and asked their advice, when the opinions were unanimous as to the necessity of an immediate dissolution.2 I had previously prepared what I thought it right to say on the supposition of that measure being adopted and I submitted it to a very minute scrutiny; which it underwent in the wish of combining the two objects of moderation towards the House, and the information which it was on all hands agreed to be expedient to convey to the Country through that medium which, I must repeat, is the only channel of communication that exists between the Government & the people. The Parliament was prorogued on that day and dissolved by proclamation the following thursday.

During these proceedings with relation to the Judges two other objects had engaged the attention of the House, the first I shall mention, tho’ not the most important was the appointment of an Agent3 to reside in London to transact the business of the Colony; this was with the view of providing a more direct communication, as they supposed would be produced by it between them & His Majesty’s Ministers at home, than any they could have thro’ the Governor here This Bill however was of no consequence; I knew very well that the Legislative Council saw the attempt in its true light, & would never pass it, and the House had not yet come quite to the length of assuming the power of appointing An Agent for themselves only.

The other object which they had in view, was the taking upon themselves, the payment of the Civil Expenditure of the Province.4 This has been a favourite object with them for some years past, but they have been hitherto at a loss how to bring it about, without laying a direct tax on the Country which they have never dared to attempt: the present was thought a favourable opportunity on account of the expiring of the Act for raising the fund for building the Goals of Quebec & Montreal5 which will take place the 25™ March next, and by the renewal of which they proposed to obtain the necessary money or nearly so, while the complete ascendency which they have acquired over the Minds of their Countrymen, the present state of Europe, on which, they unquestionably bear a constant eye, and the consequent apprehensioto of any possible disturbance in this Country, which they suppose to exist on the part of Government, led them to believe they could carry anything through, which they chose to attempt, in consequence of the power and influence which, by this means, they expected to obtain.

Your Lordship will be enabled to form a more complete Judgement on this very important point, as I shall have occasion to transmit by this opportunity a statement of the Expence, and of the Revenue under all the various circumstances under which they stand. Here it may be sufficient to observe, that the Estimate of the former which I was prepared to have laid before the House, according to its desire, amounts to £45,475. 15. 10 and the amount of the collection of the last year of the duties specially appropriated towards the defraying that Expence, was £27,645. 1. 10 1/2 leaving a Balance which they would have had to provide for of about £17,830.

1. See the record of the vote, page 371. 2. See page 371, note 2. 3. See page 369. 4. See page 366. 5. This Act, 45 Geo. III , Cap. XIII, levied duties on certain imports and on goods sold by auction. It was to remain in force for a period of six years. See page 407.

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The proceedings of the House on this point were irregular in the extreme; their object was perfectly understood; they imagined that, by taking upon themselves the payment of the expence in question, they should do away the appropriation, and perpetuity of the duties now established by their own Acts, and that by a New Act, or rather by a vote of the House, for I really believe they expected to carry it through by that means only, without admitting of the participation of the other Branches of the Legislature, they should grant the whole only from year to year, assuming at the same time the entire controul & management of the payment of all the Salaries of the Officers of Government, of which they avowed their intention to regulate the amount on principles of more strict Economy, that these in future would have therefore to look up to them, who by that means would become the complete Masters of the Country.1 In pursuance of this object, they began by a vote, ” that the House of Assembly ought to vote the necessary sums for defraying the Civil expences of the Government of this Province.” and almost immediately after voted Addresses to His Majesty and to the two Houses of the Imperial Parliament separately ; In which they say, “that this House hath, in the present Session, taken upon itself all the Civil expences of the Government of this Province.2

In all this no notice whatever was taken of the Legislative Council, everything seemed to be studiously pointed out as the work of the House of Assembly only ; and so eager were they to accomplish their point, that they had actually voted that their Constituents should pay a large sum of money, without having taken one step to ascertain what the amount of that Sum would be; they had neither the Estimate of the Expenditure before them3 (for your Lordship will observe that their Address to me to obtain that Estimate was subsequent to the vote they had passed that they would pay its amount) nor had they any return of the Collection of the duties on which they depended for that payment; these irregularities were not however of any consequence, and altho’ under the advice of the Executive Council,4 I thought myself obliged to decline forwarding their Addresses to the two Houses of the Imperial Parliament, I should not have thought myself warranted in any otherwise interfering in the Business until it had come before me in its regular progress, and I had prepared to be laid before them the Estimate which they had required; I was thus waiting to see the shape in which it would come before me when their proceedings relative to the expulsion of the Judges put me under the necessity of closing the Session.

The grounds upon which I adopted the resolution of again dissolving the Parliament, and upon which His Majesty’s Executive Council supported me in my opinion as to the necessity of doing so, are sufficiently marked in my Speech on the occasion,5 a copy of which is before your Lordship. We were of opinion that the House assumed to itself a power which not only was not warranted, but a prohibition of which was clearly implied by an Act of the Imperial Parliament; and I said truly in my Speech what I felt in my Mind, when I informed them that I dare not render myself the partaker of such a step.

These my Lord were the Constitutional grounds upon which I acted, but considering the subject in a more extended view of political expediency, I have no hesitation in assuring your Lordship that I felt the strongest urgency for taking an immediate stand against the .strides of Democratical influence which were daily becoming more apparent & of which the House of Assembly was the direct organ. It appeared to me that it could only gather strength by any delay in the means to check its progress, nor was it possible to foresee the Lengths to which it might not go if encouraged by an acquiescence in the present attempt.

1. For another statement of this view see the despatch of Lord Dalhousie, page 2. See page 366. 3. See the Journals of the House of Assembly for February 13th. 1810. 4. See page 368, note 2. 5. See page 371.

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This Dissolution seemed to meet the general approbation of all thinking people. Addresses in very strong terms were (presented to me from the Cities of Quebec and Montreal, from Three Rivers, William Henry and from some of the Counties, and it was thought better this time to take advantage of what appeared to be the first impressioni, and to bring on the new Elections as early as the necessary forms would admit of: even the Leaders of the party seemed at first to be staggered at a measure which they certainly thought, and openly said, I dared not undertake & many of their followers were known to express themselves as wavering in their opinion as to the propriety of the lengths to which they had been led.

It was soon however seen that they had recovered themselves, and had resumed more than their usual activity; every pains was taken to seduce the public mind, the most false and scandalous reports were assiduously propagated, & the most seditious and inflammatory publications were universally spread thro’ the province which were read & commented upon by their Agents in every Parish. In these Government was grossly misrepresented & verified,1 the administration of Justice brought into Contempt, and a spirit of dissatisfaction, distrust and alienation excited tending to the most alarming consequences, Such as it became at last impossible any longer to disregard, and imperiously to call for the intervention of the Executive power. For the measures that have ensued in consequence of this necessity, I refer your Lordship to my Dispatch N° 52 a duplicate of which accompanies this.

I have the honor to be My Lord Your Lordship’s most obedient Humble servant J. H. CRAIG

The Earl of Liverpool &e &c &c Endorsed : Quebec 30 March 1810 Lt. Gen. Sir J. Craig N°. 6 R.

1. The text has been followed here. Vilified is probably intended. 2. The press of Le Canadien was seized and, under the authority vested in the Executive Council by the Act for the better security of His Majesty’s Government, the leaders of the popí lar party were arrested. For Craig’s despatch No. 5 see the Canadian Archives, Q. 112, page 56.

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PROCEEDINGS IN THE COURT OF KING’S BENCH RELATING TO THE IMPRISONMENT OF PIERRE BEDARD.1

IN THE CASE OF PIERRE BEDARD.

This day, A. Stuart2 moved for a Writ of Habeas Corpus, directed to the Keeper of the Common Gaol of the District of Quebec, to produce the body of Pierre Bedard, returnable within fourteen days, and filed the following Documents in support of his application:—

1st. A notice of Motion to the Attorney General, dated the day previous.

2nd. The following certified copy of Commitment:—

Province of Lower Canada to Wit.

To the Keeper of the Common Gaol of Quebec.

Whereas Pierre Bedard, of Quebec, Barrister at Law, stands charged before us upon oath, with treasonable practices, these are, therefore, in His Majesty’s name, to require and command you to receive the body of the said Pierre Bedard into your custody in the Common Gaol of this District, and him safely there to keep and detain until he shall thence be delivered in due course of law.

GIVEN under the Hands and Seals of us, THOMAS DUNN, FRANCOIS BABY and JOHN YOUNG, three of His Majesty’s Executive Council, of and for the said Province, at the City of Quebec, in the said Province, this 19th day of March, 1810, in the 50th year of His Majesty’s reign.

(Signed) “THOS. DUNN,” “F. BABY,” “JOHN YOUNG.”

(A true Copy.) (Signed) WILLIAM REID, Keeper.

3rd. The Quebec Gazette containing the prorogation of the Provincial Parliament by His Excellency Sir James Henry Craig then Governor-in-Chief, &c., on Monday the 26th February, 1810.

4th. The Quebec Gazette containing Proclamation, dated 1st March, 1810, dissolving the Provincial Parliament and calling a new Parliament, Writs to bear test the 12th March, 1810, and to be return-

1. From Stuart’s Reports of Cases Argued and Determined in the Courts of King’s Bench and in the Provincial Court of Appeals of Lower-Canada, page 1. Pierre Stanislas Bedard was born in 1762. He was educated at the Seminary of Quebec and received his commission as advocate in November, 1790. In 1792, he was elected to the first Parliament of Lower-Canada for the County of Northumberland which he continued to represent until 1808. In the general election of that year he was elected for the Lower Town of the City of Quebec and on April 21st, 1810, was returned for the County of Surrey. He was one of the recognized leaders oí the party in the House of Assembly which opposed the policy of Sir James Craig and was one of the founders and editors of Le Canadien. Articles pullished in this paper were considered by the Executive Council to be of a seditious character and orders were accordingly issued for Bedard’s ariest and imprisonment. Craig insisted on securing an apology from him as the condition of his release but Bedard steadily refused to admit that he had committed any ofience worthy of imprisonment and, in consequence, he remained in jail for months after his associates on Le Canadien had been liberated. His ease was taken up by the Assembly in 1811 and his release was demanded on the ground that the privileges of the House of Assembly were violated by his detention. (See page 420.) Bedard was one of the first to profit by the change in the policy of the administration which resulted from the appointment of Sir George Prévost as Governor. On the promotion of Olivier Perreault to the bench, Bedard was offered but declined the position of Advocate General tf the Province. In December, 1812, he was appointed Provincial Judge for the District of Three Rivers in succession to Justice Eoueher. He died, April 26th, 1829.° 2. Andrew Stuart was a brother of James Stuart who had been dismissed by Craig from the po it on of Solicitor General. (See page 361.) He represented the City of Quebec,—at first, the Low er Town and later the Upper Town,—from 1814 to 1834, and was one of the small group of English reformers which acted in concert with the French Canadian majority.

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able on Saturday the 21st day of April following, for every place but Gaspé.

5th. An Indenture, dated 25th October, 1809, by which it appeared that Pierre Bedard was returned as Member of the Provincial Parliament for the Lower Town of Quebec.

6th. An Indenture, dated March 27th, 1810, by which it appeared that the said Pierre Bedard was returned as a Member for the County of Surrey.

A. Stuart [in support of the Motion] said, that this application was grounded upon the proviso of the Provincial Act 43, Geo. III. c. 1, s. 6., which provides “That nothing in that Act should extend, or be construed to extend, to invalidate or restrain the lawful rights and privileges of either branch of the Provincial Parliament in this Province,” and that the question submitted to the Court was, whether this proviso embraced the present ease? and whether it does not destroy the force of the 4th clause, which enacts ” That such Writ of Habeas Corpus, or the benefit thereof, shall not be allowed „by such Court or Courts, Judge or Judges, to any person or persons detained in prison, at the time of his, her, or their application for such Writ of Habeas Corpus, by such Warrant of His said Majesty’s Executive Council as aforesaid, for such Causes as aforesaid, or any or either of them; and that in all and every case, where such Writ of Habeas Corpus shall be allowed, no Court or Courts, Judge or Judges, shall bail or admit to bail, the person or persons to whom such Writ of Habeas Corpus shall be allowed, if upon the return made to such Writ of Habeas Corpus at the expiration of fourteen days, from the day on which such Writ of Habeas Corpus ‘shall be so allowed, it shall appear that such person or persons shall be then detained in prison, by such Warrant of His said Majesty’s Executive Council, as aforesaid, for such causes as aforesaid, or any or either of them, any Law, Statute, Act or Ordinance to the contrary notwithstanding.”

The House of Assembly must, of necessity, have those privileges which are essential to its very existence. To ascertain what those privileges are, we must look to the House of Commons in] England, where the applicant would undoubtedly have beem entitled to his privilege. Parliamentary privilege, as to the freedom from arrest, not only exists during the actual sitting of Parliament, but extends to forty days after a dissolution. There are but three Cases to which it does not extend, Treason, Felony, and an actual breach of the peace. The charge against the applicant comes under neither of these descriptions. ” Treasonable practices” are not treason: they possess, indeed, some of the qualities of treason, but are entirely destitute of other essential qualities necessary to constitute treason. As for example, in the case of Sydney, among whose private papers were found some writings of a treasonable tendency; but they had neither beeni published, nor did any intention of publishing them appear. So also, in the case of a person preparing to make communications to the King’s enemies, without having taken any steps to carry his intention into effect. In both eases will be found ” treasonable practices,” but in both, the overt Act, absolutely essential to constitute treason, is wanting. ” Treasonable practices ” are certainly not Felony, nor do they amount to an actual breach of the peace. This is a commitment for ” treasonable practices,” and commitments must at all times be construed strictly. The offence cannot be constructive, it must be an actual breach of the peace. The,charge, therefore, not coming under any of the three exceptions, the applicant ought not to be barred of his privilege. The case of Wilkes is in point, who was arrested for having published an infamous and seditious libel, (a) He was brought before the Court of Common Pleas by a Writ of Habeas Corpus, and claimed the

(a) 2 Wils. 151.

1. The Statute 43, Geo. III , c. I, is a re-enctment of the Statute 37, Geo. III , c. VI. See page 215.

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privilege of Parliament: Lord Chief Justice Pralte (afterwards Earl Camden) was of opinion that he was entitled to his discharge, and discharged him. Upon the point of privilege, the applicant claims as well upon the ground of having been a Member of the late, as of having been elected a Member of the new Parliament. (b)

The Attorney General, (Uniacke,)1 contra. Before the Counsel for the applicant can avail himself of the argtument he has made use of, he must distinctly establish what are the privileges of the Members of the House of Assembly of Lower Canada. The present question is, whether am express Act of Parliament is to be evaded by extending to the Members of the Provincial Parliament, all the privileges of the Members of the Imperial Parliament? This cannot be the case; because it is no where to be found that such (privileges have .been extended to them :—nor have any such been given to them by the Constitutional Act. Every traitorous attempt is treason; nor is it necessary that treasonable designs should be ripe for execution, and have actually commenced their operation, to bring them under the denomination of treason ; nor does privilege any more extend to treasonable practices than to treason itself. The argument founded upon the case of Wilhes must fall to the ground. For the House of Commons solemnly disavowed the decision of the Court of Common Pleas in the very same year in which it had been made (1763) ; and the House of Peers, five days subsequent to the resolve of the Commons, passed a similar resolution. Of late years the privileges of the House of Commons have been much curtailed, and if the question before the Court were now raised in England, the applicant would, most certainly], not be allowed his privilege, (a) Indeed there is no instance of a Member being allowed privilege in a criminal case, neither is the charge against the applicant for a supposed or constructive offence. The Warrant of Commitment shews it to be a charge of ” treasonable practices ” upon oath, and this charge unquestionably includes a breach of the peace. It would surely be absurd to say, that in the case of a common assault upon an individual, a Member of the Legislature shall not be privileged, and yet,—that on a charge of “treasonable practices,” affecting the welfare and tranquillity of the whole population of a country, he may claim and have his privilege. The obvious intent of the privilege of Parliament is to protect a Member from the sufferance of wrong, not to enable him with impunity to commit wrong; ” it must not be used for damage to the Common Wealth.”

The Advocate General, (Perrault,)* on the same side. This question is not without difficulty. By the 4th Clause of the Statute 43, Geo. III . c, 1.2 all persons, accused of certain offences therein specified, are divested of the right to sue out a Writ of Habeas Corpus. The Counsel on the opposite side has fallen into an error in the application of the two authorities he has cited. The decision of the Court of Common Pleas, in the case of Wilkes, was against every principle of law, (a)* and was formally disclaimed by the British Parliament. The privilege of Parliament extends only to civil cases; there exists no precedent of the extension of it to indictable offences, of

(b) Holiday & al. v. Colonel Pitt (Strange, 985.) was cited to PTOTO that the privilege of Parliament extends to a certain period after a dissolution. Also 1 Siderfin 42. 1 HafcseH’s Precedents 163; and Bacon, under the ward privilege, to shew that a person already in custody is entitled to claim his privilege as soon as he is elected (a) 1. Hatsell, 200. and 5. Bacon 631—No. 4. (a*) 1 Black Com. 165-166 and 4.149.

1. Norman Fitzgerald Uniacke had been appointed Attorney General in June, 1809. His conduct in this position did not prove satisfactory and he was temporarily suspended from office in May, 1810. He was later reinstated and acted as Attorney General until February, 1825, when he was appointed a Judge of the Court of King’s Bench for the District of Montreal. 2. Olivier Perreault had held the position of Advocate General of Lower Canada since 1808. In January, 1812, he was made an honorary member of the Executive Council and in May of the same year was appointed a Justice of the Court of King’s Bench for the District of Quebec. He was appointed to the Legislative Council in May, 1817, and in 1822 became a regular member of the Executive Council.

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which description is the offence the applicant is charged with. The spreading false and malicious reports against the Government must be considered as a breach of the peace. The writing and publishing seditious libels, also, is an offence not entitled to privilege, which is taken away in all criminal cases. The case of Holiday v. Pitt, was entirely a civil case, and therefore not applicable to the present question. The Warrant of Commitment is sufficient proof that the offence with which the applicant is charged is an indictable offence, and is, therefore, sufficient ground for the Court to reject the present application for a Writ of Habeas Corpus.

Bowen1 on the same side. Should the argument in support of the motion be admitted, the House of Assembly might be composed of fifty traitors, and no remedy be had against them; it would be to say, that under the shield of privilege, might be found protection and security from the consequences of criminality. But before entering into the consideration of “what may he the privileges of the Provincial Parliament,” let us examine whether the applicant, at the time of his arrest, could be considered as a Member of that Parliament, or was entitled to claim any lawful privilege that may attach to that character. For this purpose it is neoesary to advert to dates. The prorogation of the Provincial Parliament took place on Monday, February 26th, 1810. The Proclamation, dissolving the House of Assembly, issued on Thursday, 1st of March. The Writs for a new election bear teste on Monday, March 12th. The arrest of the applicant was on Monday, March 19th, and he is said to have been elected one of the Members for the County of Surrey, on Tuesday, March 27th. It is very material to keep these dates in view, for the principles of this application are, that the applicant is entitled to obtain his Writ on two grounds. 1. As having been a Member of the late Provincial House of Assembly. 2. As having been elected a Member of the new Provincial House of Assembly. And, as such, entitled to his privilege. He ought not to succeed on the first ground, because, if we refer to English authorities, it will be found that the period after a session, during which a Member of Parliament is privileged, for the purpose of his return home from the performance of his public duty, is a reasonable time for that purpose, and not, as has been argued, forty days. And this was decided in the case of Martin, (a) The case cited of Holiday v. Pitt, only shews that the Members had privilage, after a prorogation or dissolution, so long as they were paid, that is to say, till they reached their own houses. Eigùteen days had elapsed between the dissolution of the late Parliament, and the arrest of the applicant; and can it be seriously argued that this was not a reasonable and sufficient time for him to go from the House of Assembly to his own house, when both are in the same city? If he could have claimed any privilege, therefore, it could only have been the privilege of a single day.—He must fail on the second ground also, because, at the time of his arrest, he was not a Member of any Parliament; and, consequently, the 4th Clause of the Provincial Act, cited by the Counsel for the applicant in opening his case, is in full force and effect, and is a perfect bar to his claim of those privileges referred to in the proviso, be they what they may. The case of Wilkes has been cited to shew, that as the applicant has

(a) See Martin’s case in 1586.

1. Edward Bowen was born in Ireland in 1786. He came to Canada in 1797 and entered on the study of law. Before receiving his call to the Bar in July, 1803, he had served as Clerk of the Crown for the District of Quebec and later as Deputy Clerk of the Crown for the Province. On the promotion of Jonathan Sewell to the bench in 1808. Bowen was given a provisional commission as Attorney General. The office of Solicitor General had become vacant by the dismissal of James Stuart in May, 1809, and, on the appointment of Uniacke as Attorney General in June of the same year, this position was offered to Bowen but refused On Uniaeke’s suspension in 1810, Bowen again acted as Attorney General. He was appointed a Justice of the Court of King’s Bench for the District of Quebec in May, 1812. From 1809 until his promotion to the bench he represented the borough of William Henry in the Housd of Assembly. He was appointed to the Legislative Council in October, 1821, and served as the last President of the Council under the Constitution of 1791. In 1849, he was appointed Chief Justice of the Superior Court of Lower Canada. He died, April 11th, 1866.

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been elected, since his confinement, a Member of the new Parliament, he is entitled to privilege. But the decision of the Court, in that case, has long ceased to be recognized as law; and was set aside by the Parliament itself. The privilege-of a Member of the House of Commons commences only at his election ; ” but if he be arrested, or taken in execution, before his election, he shall not have privilege.” (a) But, even here, the reference is only to civil suits: how then can it be contended that privilege exists, previous to election, in criminal cases? In England Members of Parliament are privileged from arrest in all cases, treason, felony, or breach of the peace only excepted, (b) The 6th Clause of the Statute 43, Geo.m . e. I,1 says, that “nothing in this Act shall invalidate or restrain the lawful rights and privileges of “either branch of the Provincial Parliament;”2 and the question necessarily arises, What are the lawful rights and privileges of the third branch of the Legislature of Lower Canada?—Are they, in every respect, the same with those immemorially enjoyed by the House of Commons in England3?—Most assuredly not. Where then shall we find them enumerated, or by what means can we trace them out? The Act of the 31st Geo. III . c. 37,4 by which the Legislature of Lower Canada was created, and by which our constitution is given to us, defines and limits that constitution. Will the Court admit that the Provincial Legislature is entitled, under that Act, to all the privileges of the Imperial Parliament? It is impossible. A Member of the Provincial House of Assembly can claim no privileges, but such as are there given him. In that statute is comprised our whole constitution; that statute forms our only charter.

A. Stuart, in reply.

When I first made this application to the Court, I was under a strong impression that, in point of law, it ought to be granted: and this impression has been matured to perfect conviction by the arguments adduced by the Counsel who have opposed the motion. They have founded their arguments on an assertion the most questionable. Thfy deny mat the Hoi se of Assemtiy has any privileges whatever; although those privileges have been constantly claimed and recognized,—are inherent in every Legislative body,—and are essential to its very existence. But it is said that they are (neither mentioned, or defined, in the Act of the 31st of the King. I know no reason why a more strict rule of construction should be applied to this statute than to any other ;—but I can conceive many strong ones why it should receive a more liberal construction than an Act which, perhaps, solely relates to and regulates mere private rights. It follows, à fortiori, that the British Parliament, in granting to this country a Provincial Legislature, granted also those necessary privileges without which that Legislature could have no political existence. It would be difficult, and Sir William Blachstone thought it would be inexpedient, to define with accuracy the extent of Parliamentary privilege. The privileges of the Imperial Parliament are not fixed by, nor to be found in any statute. The authorities, cited by the Attorney General from Hatsell, prove, what I have urged, the necessity of Members of Parliament being free to proceed to the performance of their public duties. If it were true that the House of Assembly have no privileges, it would be in the power of the other branches of the Legislature to annihilate it. And, if it have privileges, from whence can we derive so correct information of their nature and extent, as from the British House of Commons itself? But it has been said that, in England, a Member of the House of Commons, confined upon a charge of treasonable practices would not be entitled to privilege. The dictum of Sir William Blachstone, cited in support of this asser-

(a) 5. Bacon 631. (b) 4. Ins. 25.

1. See page 380, note 1. 2. See page 216. 3. For a dis ussion of the question of the Privileges of a Colonial Legislature see page 480. 4. The Act referred to is the Constitutional Act, 31 Geo. III , XXXI. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 694.

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tion, is contradicted by the decision of the Court of Common Pleas in Wilkes’s case, and by the law authorities referred to by Chief Justice Pratte. The Resolutions of the two Houses of Parliament, consequent upon this decision, were passed in times not the most calm ; and are not entitled to carry the same weight with them, that the decision of Chief Justice Pratte carries. ” Treasonable practices ” may exist, and yet the party not be guilty of an indictable offence. If the principle be admitted— that privilege never extends to any case of a criminal nature, why are treason, felony, and breach of the peace alone specifically excepted? If the Provincial Act of the 43rd of the King is to be construed in the manner contended for by the Counsel for the Crown, the proviso is altogether nugatory. The case of Martin has been cited, to shew that privilege extended to a reasonable time only, after a prorogation. In that very instance, twenty days were considered to be a reasonable time: yet it is cited as an authority to shew that eighteen days are more than a reasonable time. The case of Pitt incontrovertibly establishes that the privilege of Parliament extends as well to a certain period after a dissolution, as after a prorogation. I will conclude with repeating my former observation, that, in the present case, privilege is claimed upon the double principle of the applicant having been elected, and being at the present moment, a Member of the new Provincial Parliament as well as that he was a Member of the late Provincial Parliament.

Per Curiam.

SEWELL, CH. J. “We are fully satisfied that the motion cannot be granted. The facts which constitute the ease before us are few in number. The late Provincial Parliament was dissolved by Proclamation on the first of March last, and, by the same Proclamation a new Parliament was summoned to meet on the 21st of April. On the 19th of March Mr. Bedard was arrested, and committed to the common goal of this District, by a Warrant under the hands and seals of three Members of the Executive Council, for ” treasonable practices,”1 and the object of the motion before us, is to release him from confinement upon the grounds that he served in the last Parliament as a representative of the City of Quebec. That on the 27th of this present month, he was elected to serve in the same capacity for the County of Surrey in the new Parliament, and therefore that he is entitled to his discharge, by reason of his privilege as a Member of the House of Assembly. The commitment of Mr. Bedard is made under the authority of the Provincial Statute 43rd Geo. III . c. 1. which authorizes the detention of every person committed by Warrant, signed by three of the Executive Council, for High Treason, Misprison of High Treason, or “treasonable practices,” without bail or mainprize, during the continuance of the Act. It is, however, provided by the sixth Clause of this Statute, ” That nothing in the Act contained shall extend, or be ” construed to extend, to invalidate or restrain! the lawful rights and privileges of “either branch of the Provincial Parliament;”2 and it is contended that Mr. Bedard is within the letter of this exemption. But to bring this case within this proviso, it is obvious, that in the first instance he must be proved to be a Member of the Legislative Council, or of the House of Assembly; and, in point of fact, there is no evidence of either. We have nothingi, indeed, before us but two papers, which we are told are Indentures, executed between Mr. Bedard and the Electors of the City of of Quebec, and of the County of Surrey. I say “told,” because of this assertion ne proof whatever has been offered, nor is any thing adduced, from which the authenticity of these papers can in any way be inferred. In the case of John Wilkes there was a formal admission (a) on the part of the King’s Serjeants, that he was a Member of the House of Commons; and, upon that admission the proceedings of the Court of Common Pleas were founded. In this case there is no such admission, and

(a) 2. Wilson 151.

1. See page 379.

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as there is a total absence of every thing which, by law, we are permitted to receive as evidence of the fact upon which this claim of exemption is entirely built, w6 must necessarily, for this defect alone, reject the motion. I should be sorry, however, to have it supposed that this Court concedes what has been argued, viz., ” That there is privilege of Parliament against arrest for treasonable practices,” or to have it believed that we should hold ourselves bound by law, in an^ future instance, to admit a claim of privilege against arrest under circumstances similar to the present. The circumstances to which I allude, (assuming all facts to be as they have been stated,) are the arrest of Mr. Bedard eighteen days after the dissolution of the last Parliament and his Election to the new Parliament during his confinement. If Mr.Bedard was entitled to privilege upon the day of his arrest, (the 19th of March,) it is evident, (as he was not elected for the County of Surrey until the 27th day of March,) that his right to it must be solely founded on the fact of his having been a Member of the last House of Assembly; and if he was not entitled to privilege upon the day of his arrest, then, it is equally evident, that his claim to privilege must be entirely founded upon his election to the new Parliament. In England, the privilege from arrest is claimed and allowed to every Member of the House of Commons, ” veniendo, morando, et exinde ad propria redeundo,” (a) and extends to forty days after every prorogation, and to forty days before the next appointed meeting, (b) But although, to the effect which has been stated, there are several legal decisions, yet it does not appear that any precise period, for the duration of this privilege after a dissolution, has been fixed. Prynne is of opinion, that it continues for the number of days during which (after a dissolution) a Member formerly received wages; (c) and those wages were in proportion to the distance between his residence and the place where the Parliament was held, (d) Upon this principle, in the case of Holiday v. Pitt, (e) which has been cited at the bar, it was held by all the Judges that this privilege extends only to a convenient time after a dissolution, that is, to a sufficient time to onable the Member, with convenience, to return home. Now, the last Provincial Parliament met in Quebec, in, the very place for which Mr. Bedard was returned a Member, and in which he resides ; and as, therefore, it is impossible to say that he had not a convenient time for his return home, for transporting himself from one, to another, part of Quebec, between the first and the nineteenth day of March, it is clear that the day on which he was arrested was not within the period to which the privilege of the last Parliament extended.

Let us now examine whether this claim can be supported under the privilege of the new Parliament. There is certainly a material difference between the election.of an individual who is at large, and the election of one already in confinement, which is the present case. In the former instance, the electors, having chosen a free man, are without blame, and ought not to be deprived of his services by any act of his, to which the privilege of Parliament extends; in the latter they make choice of one who visibly is not in a situation to perform the services which theyi require of him, and they have, therefore, only themselves to blame if they are deprived of them. In England, again, upon these principles, it has been decided that the privilege of a Member of the House of Commons from arrest, commences at his election, (a) unless he has been arrested, or be in execution before his election, in which case it has also been decided, that he is not entitled to privilege, (b) Freedom from arrest, in all cases to which privilege legally extends, may be considered to be as indispensably necessary to the existence of a Provincial House of Assembly, as to an English House of Commons. But there is no principle upon which it should be admitted in this Province, under circumstances which are held in England to be such as must exclude

(a) 4. Ins. 46. folio edition. (d) Stat. 35. Hen. 8. c. 11. (b) 2. Lev. 72. (e) Strange 985, and Fort. 159. (c) 4. Pari. Writs. 68. (a) 4. Bacon, fol. ed. 233. (b) 2. Siderfin 42. E. in Parl. 12th March, 1592.

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it. It is argued that “there is privilege of Parliament from arrest for treasonable practices,” and to support this assertion it is contended that this privilege extends to all offences except treason, felony and breach of the peace, (which may be admitted) and that treasonable practices do not amount either to treason, to felony, or to breach of the peace. The Court is of opinion that ” treasonahle practices ” are within the meaning of the words ” breach of the peace,” and that the privilege from arrest does not extend to eases of this description. All indictable crimes (and all treasonable practices must be indictable) are held in law to be contra pacem domini regis; and upon this ground, in England, it is now understood that the claim or privilege does not comprehend the case of any indictable crime. Such being the opinion of the Court, we are not called upon to make any enquiry as to the distinction between treason and treasonable practices. It may be well, however, to observe, after what has been argued, that the precise import of the phrase ” treasonable practices ” has never been settled by any legal decision; and if by the word “practices” we are to understand “Acts,” it certainly will be difficult to mark the line of distinction. In the course of the argument, to shew that ” treasonable practices ” are entitled to privilege, the case of John Wilkes has been entirely relied on.. It has been said, that by this decision it was settled that a Member of Parliament charged with having written and published a seditious libel was entitled to privilege; and from thence it has been inferred that a Member, charged with ” treasonable practices,” must also be entitled to his privilege. Now, admitting this case for the present, to be law, it by no means follows because a seditious libel is entitled to privilege, that treasonable practices must also be entitled to it. If indeed, the latter was the minor offence of the two, it might be inferred; but this is not the case, for in point of fact, it is the major and not the minor offence. To constitute treason, there must be an actual design against the King or his Government in contemplation; and it is in this that it is distinguishable from sedition, which comprehends such offences (not being capital) as are of like tendency, but without any actual design against the King or his Government. A chargje therefore, of doing a thing seditiously cannot amount to a charge of high treason; since that which is seditious, and no more, can only partake of the nature of sedition. But, for the same reason, that which is treasonable must partake of the nature of treason, and consequently be a crime of greater magnitude than any act whieh is merely seditious. The case of Wilkes then’, if admitted to be law, proves that the privilege of Parliament extends thus far, that is, to seditious acts, but affords no proof whatever that it extends beyond them to ” treasonable practices.” But the decision in the ease of John Wilkes the Court cannot receive as law, because it has been solemnly disclaimed by both Houses of the British Parliament. The Judgment, in this well known case, (pronounced May 3rd, 1763,) at the first meeting of Parliament afterwards, was taken into the consideration of both Houses, and the discussion ended on the 29th Nov. 1763, in a joint vote, by which it was resolved, ” That the privilege of Parliament doth not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an offence.” (a) Let the order therefore be, ” that he take nothing) by his motion.”

WILLIAMS, J. I shall not touch upon all the points that have been so ably stated by the Chief Justice. In the case of Wilkes, it was the admission of the Counsel for the Crown, that established the fact of his being a Member. In the present case there is no such admission; nor is there any evidence before the Court that Mr. Bedard either was, or is, a Member of the Provincial Legislature. The decision of Lord Camden was, certainly not correct; nor can it be received as legal authority;—for tho offence with which Mr. Wilkes was charged was clearly an indictable offence.—

(a) Comm. Joura. 24-th Nov. 1763. Lords’ Journ. 29th Nov. 1783. Almon’s Deb. Com. for 1763.

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The Members of the House of Assembly of Lower Canada are, without loubt, entitled to the enjoyment of their lawful privileges, which ought not to be invalidated or restrained. But what are those privileges? They are those which are granted them upon the elaim made by their Speaker, at his presentation to the King’s Representative for approval, after his election to that office. The principal of which are ” freedom of Speech,” for the purpose of managing! their debates; and “freedom of person” during the Session of Parliament, and while going to and returning from thence, in order to enable them to perform their public duty there. I entirely agree in opinion with the Chief Justice that the motion cannot be granted.

KERR, J. I do not think it necessary to give any opinion upon the important questions raised in the course of the argument upon this motion. The first point submitted to our consideration, is whether the two Indentures supposed to be the returns of Mr. Bedard as a Member of the last House of Assembly and of the present, are sufficiently proved, or in other words, if his Counsel has offered legal evidence ot his being within the exception contained in the 6th Section of the Provincial Statute. I am entirely of opinion with the Chief Justice, that we have not evidence of his being a Member of the last, or of the present Parliament, and consequently, we have not now to decide whether a Member of the Assembly has his privilege in the case of “treasonable practices.” I will not follow this question then ab omnibus quaerenda, but should it come regularly before the Court, we must not shrink from the execution of our duty. It is sufficient for me to state, that I agree in opinion with the Court, that this Motion ought not to be granted.

Motion denied.

CRAIG TO LIVERPOOL1

Duplicate. N° 7

QUEBEC 1st May 1810.

MY LORD,

If my short dispatch N° 22 which I transmitted by way of New York has reached Your Lordship, you will be in some degree prepared to receive the Report on the State of this Province, which I conceive it to be my particular duty, under the events that have lately taken place, and the impression to which these have given rise in my mind, and in that of very many of the best informed persons here, to lay before His Majesty’s Government.

Aware of the important matter that must press upon His Majesty’s Ministers at this eventful crisis, and extremely unwilling to trespass upon them beyond what I feel to be indispensably necessary, it is with great regret that I perceive the extent to which my report is likely to run, I am fearful however, lest under any more contracted form, it should fail of conveying that compleat view, which I am desirous of submitting to your Lordship but, even in this desire, it shall be my endeavour to confine it more particularly, to those objects, by which the safety, the internal tranquility, and, above all, the political relation of the Province as dependant on the British Empire may be influenced.

In the consideration which may be given to the various objects, which I may feel myself called on to submit to your Lordship, I must request that the particular situation in which this Province stands, as being a conquered Country, may never be put out of view, and I claim that it may always be recollected that I speak of a Colony, the population of which, is usually estimated at 300,000 souls, and which, calculating upon the best data in our possession, I myself believe to exceed 250,000. Of these S50,000 souls about 20,000 or 25,000 may be English or Americans, the remainder

1. From the copy in the Canadian Archives, Q. 112, page 121. 2. This despatch is missing from the correspondence of Sir James Craig in the Canadian Archives.

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are French. I use the term designedly My Lord, because I mean to say, that they are in Language, in religion, in manner and in attachment completely French—bound to us by no one tie, but that of a Common Government, and on the contrary viewing us with sentiments of mistrust & jealousy, with envy, and I believe I should not go too far, were I to say with hatred.

This is the first point of view in which, whatever may have been the opinion hitherto, I do not hesitate to present them, tho’ under so perfect a consciousness of the consequences that might possibly ensue from it that I feel a moral obligation dwelling on my mind, on the occasion, from which I should shudder, if I did so, without a conviction of its being well founded.

So compleat do I consider this alienation to be, that on the most careful review of all that I know in the Province, there are very few whom I could venture to point out as [not] being tainted with it; the line of distinction between us is completely drawn. Friendship [and] Cordiality are not to be found—even common intercourse scarcely exists—the lower class of people to strengthen a term of contempt add Anglois—and the better sort with whom there formerly did exist some interchange of the common civilities of Society have of late entirely withdrawn themselves—the alledged reason is that their circumstances have gradually declined in proportion as ours have increased in affluence; this may have had some effect, but the observation has been made also, that this abstraction has taken place exactly in proportion as the power of the Prench in England has become more firmly established.1

* * * * * * *

Among the objects which I deem it necessary to bring to your Lordship’s view, it is impossible for me to overlook the Clergy, and the Religious establishments of the Country,2 the Act of the 14th of His present Majesty by which the free exercise of the Roman Catholic religion is granted to the Canadians, expressly adds the Condition that it shall be subject to the King’s Supremacy as established by the Act of the first Elizabeth3—but neither has this, or one Article of His Majesty’s Instructions to the Governors ever been attended to,4 the Appointment of the Bishop seems to have been conducted loosely, and with very little ceremony, the Council Books offer no other Document on the occasion, than that the person has taken the Oath pointed out by the Act of the 14th Geo. III in lieu of the Oath required by the Statute of the first year of the Reign of Queen Elizabeth, but without mentioning on what account he takes it;5 of late he has been designated on that occasion as Roman Catholic Bishop of Quebee, formerly he was only called Superintendant of the Romish Church.

Altho’ it does not appear upon the Records of the Council Board, or by any other Document, His Majesty does however nominate the Coadjutor, but this nomination appears to have been verbal. I observe in the Return of the offices of emolument of this Colony lately made to your Lordship’s Office, the Bishop says it is cum futura successions? how that can be, when it does not appear to be under any written document of any sort, I do not know, unless it be in the Pope’s subsequent confirmation, which always takes place, it is however of such weight, that the succession of the

1. In the portions of this despatch which are omitted Sir James Craig indulges in certain criticisms of the Canadians composing the majority in the Assembly which have no bearing on the constitutional issue. 2. The same question is discussed by Sir Robert Milnes in his despatch of November let, 1800, page 24.9. 3. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 403. 4. See Article 44 of the Instructions to Lord Dorchester, page 24. 5. For the entry in the Minutes of the Executive Council in connection with the succession of Mgr. Plessis, see State Book I, page 299. 6. In the return referred to the manner of appointment is given as “desired by the late R. R. Peter Denaut as his coadjutor cum futura successione, agreed as such by H. M. Gov ernor Gen. Robt, Prescott, 2nd September, 1797, confirmed by Bulls from the Holy See bearing the date of April 26th, 1800, promoted to the Cathol. Episcopal See of Quebec by the death of the said R. R. P. Denaut on the 17th of January, 1806, sworn before the President & Council the 27th of the same month.” (Canadian Archives, Q. III, page 31.)

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coadjutor to the Bishopric seems to be considered as a matter of course, at least there is no appearance of there ever having been any interference on the part of His Majesty’s Government.

This Bishop tho’ unknown to our Constitution and confirmed, if not appointed by a Foreign Power, has been suffered to exercise every Jurisdiction incident to the episcopal functions, he nominates to all the benefices of the Province, and removes at his pleasure from one living, to another, and it is not an unfrequent circumstance, for an offence, or a supposed offence, to be punished by a degradation from a good Cure, to one of lesser emolument. His Patronage is at least equal to that of the Government, & it is so perfectly at his pleasure, that Government has no other notice of it, than that he usually once a year delivers to the Governor a list of such changes as have taken place during the preceding twelve months; so complete does the Bishop consider his indépendance, & so cautious is he not to perform any act which might be construed into an acknowledgement of His Majesty’s Rights that if a Proclamation is issued for a Fast, or thanksgiving or any other object which involves it in an Act of the Church, He will not obey it as an emanation from the King, but He issues a mandate of his own to the same purpose, indeed, but without the least allusion to His Majesty’s authority, or the Proclamation which the Government has issued, In truth the Catholic Bishop tho’ unacknowledged as such, exercises now a much greater degree of authority than he did in the time of the French Government, because he has arrogated to himself every power which was then possessed by the Crown; The Arms of England are nowhere put up in the Churches.

With the Curés themselves, no direct communication from the Government exists in any shape, a numerous and powerfull body, dispersed in every corner of the Country, and certainly possessing a very considerable weight, and influence with the people, scarcely know, and are hardly known to the Government, no one Act of Government since it has been under my direction, has ever been addressed to a Curé, nor has any one instance of communication from a Curé ever reached me, perhaps an exception to the first part of this observation might be brought in my having in the desire of circulating the Speech I made to the Parliament when I dissolved it, directed a Copy to be sent to each of the Curés, the circumstance however will furnish no exception to the second part, for there did not occur a single instance of a Curé even acknowledging the receipt of it.

* * * * * * *

Their attachment to France is equally undoubted, and it is now even supposed to be not a little directed to the Person of Bonaparte, who since the concordat, is considered among them as the Restorer of the Roman Catholic Religion.

Of the Legislative Council it is not necessary to say much, it is certainly composed of every thing that is respectable in the Province, and I believe the Members to be on ajl occasions animated by the best intentions towards His Majesty’s Service, & the public good; It is an Object of great jealousy to the Lower House, who seem anxious to seize every opportunity of shewing the little respect in which they hold it, It is thought that an increase of numbers would add to their weight, at present they seldom exceed five or six in the House.

To a People circumstanced as I have described these to be, ignorant and credulous in the extreme, having no one common tie of affection, or union, viewing us with Jealousy, mistrust, and hatred, having separate & distinct Interests, It has been thought proper to give a share in the Government of the Country, by a House of Representatives, in which they must ever have the Majority; It is very far fiom my intention to question the liberal views on which the measure was originally founded, but it is my business to point out the consequences that have ensued from it.

Your Lordship is aware that tho’ the Constitutional Act has established a qualification for the Electors, there is none required in the Representation, I mean with respect to Property. The Numbers of English in the House has never exceeded 14 or 15,

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in the two last Parliaments there have been 12, in the present there are ten, some of these have of late come from a pretty low step in the scale of society, but in general they are composed of two, or three Avocats, about the same number of Gentlemen possessing Landed property, and the remainder of Merchants of Character & estimation; Upon the first establishment of the House, the few Canadian Gentlemen that existed in the Country stepped forward, and some were elected, but they soon found that nothing was to be gained by it, on the contrary, that their absence from home and their attendance at Quebec, during three months of the year, was given at an expence that very few of them could afford, and they gradually withdrew: now that some of them have attempted to resume the stations they abandoned, they have found it impossible; but at all times, their numbers were inconsiderable: the House has ever been as it is now, in great proportion as to the Canadian part, filled up with Avocats, and Notaries, shop-keepers, and with the Common Habitants, as they are called, that is, the most ignorant of Labouring farmers, some of these, can neither read nor write, In the last parliament there were two who actually signed the Roll by marks, and their were five more, whose signatures were scarcely legible, and were such as to shew that to be the extent of their ability in writing.

I know Lot whether the excessive ignorance of these people, be not more prejudicial than even any malevolence could be with which they could be supposed to be actuated, In the latter case one might at least expect, that there would sometimes be division among them, but at present they are compleatly in the hands of the party which leads the House, Debate is out of question, they do not understand it, they openly avow that the matter has been explained to them the night before, by such & such persons, and they invariably vote accordingly; It is in this manner at their nightly meetings which are held for the purpose, that every question is previously decided, and it is impossible that these people can ever be set right, for those who judge right, never meet them out of the House, they do not associate with them; There was lately in the House a Habitant, who uniformly voted on every occasion against the prevailing party, but with this single exception, I do not believe that during the three Sessions that have been held, since I came here, there has been an instance of one of the Members of that Class voting otherwise than with the general Mass, that is, as directed: I mention this in order to point out, the Compleat subjection in which these people are held, for if they made use of their own Judgement, it is impossible, but that during so long a period, some question must have arisen, on which there must have been a difference of opinion.

In such a House of Assembly as I have described, Your Lordship will easily perceive that it is impossibls that Government can possess any influence, they are certainly the most indépendant Assembly that exists, in any known Government in the world, for a Governor cannot obtain among them even that sort of influence that might arise from personal intercourse, I can have none with Blacksmiths, Miller3 & Shopkeepers, even the Avocats & Notaries, who compose so considerable a portion of the House, are generally speaking, such as I can nowhere meet, except during the actual sitting of Parliament, when I have a day of the week expressly appropriated to the receiving a large portion of them at dinner.

Of the Party who hid the House, I have already had occasion to speak in a former dispatch, and have been induced to enter into the Characters of a few of them; They consist mostly of a set of unprincipled Avocats, and Notaries, totally uninformed as to the Principles of the British Constitution or parliamentary proceedings, which they profess to take for their Model; with no property of any sort, having everything to gain, and nothing to lose by any change they can bring about, only any state of Confusion into which they may throw the Province:—That these People have gradually advanced in audacity, in proportion as they have considered the power of France as more firmly established by the Successes of Bonaparte in Europe is obvious to every one, and that they are using every endeavour to pave the way for a change of

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Dominion, and a Return under that Government, is the general opinion of all ranks with whom it is possible to converse on the Subject; Even the very few of the better sort of Canadians themselves who have sufficient information to be aware of the misery that would ensue on such an event, while the present Government exists in that Country, and who notwithstanding their natural affection towards what they still consider as their Mother Country ,would shrink from a Return under its rule at the moment, nevertheless confess the obvious tendency of the proceedings that are going on here; Unfortunately the great Mass of the people are completely infected, they look forward to the event, they whisper it among themselves, an I am assured that they have even a song among them, which points out Napoleon as the person who is to expel the English: with them the expectation is checked by no sort of apprehension, They are completely ignorant of the nature of the French System, they have not an idea that a change of Rulers would produce any alteration in their situation, and tho’ if you argue with them they are ready to admit that they are happy, and in a State of prosperity as they are, they do not conceive that they would not have been equally so had they remained Subjects of France.

It is scarcely possible to conceive the influence that the Ruling Party in the House has acquired among the people, or the lengths to which those have been carried by that influence, without the possibility of pointing out one act, by which they have been either injured, or oppressed, they have been taught however to look to His Majesty’s Government with the utmost Jealousy, and distrust, they avow it, and they publiekly declare, that no officer of the Crown is to be trusted, or to be Elected into the House, These, together with all English in general, and their own Seigneurs, are entirely proscribed; It is only in the Cities, and Boroughs, that they have any chance, there are only two instances, where long possession of very extensive property has enabled the holders to retain their seats, tho’ it has been in both Cases with the utmost difficulty. It is now to La Chambre, which is the usual expression, for they .never even mention the Council, that the people look up [on] as the Governors of the Country, and yet such is the extraordinary effect of old impressions, that ” de par le Roi,” at this moment would I believe be followed by immediate compliance, without once reflecting whether the order were warranted by Act of Parliament or contrary to it.

The great vehicle of communication between the leaders & the people nas been a paper called the Canadian,1 which has been published & industriously circulated in the Country for these three or four years past; the avowed object of this paper has been to vilify and degrate the officers of Government under the title of Gens en place, and to bring into contempt His Majesty’s Government itself, under the affectation of the supposed existence of a Ministère; The conduct of which was as much open to their animadversions as is thai of His Majesty’s Ministers at Home.

Every topick that is calculated to mislead & inflame the people has at times occupied the pages of this paper, nothing has been omitted. The various circumstances that brought on the abdication of James the 2a have been pointed out with allusions as applicable to the Government here, inferring a similarity in the occurrences of the present day; and as if to inspire them with that confidence that might be necessary in asserting their rights when the occasion should call for it. several Members were employed in narrating the actions of the wars of 47 & 56 in which Canadian prowess was held up in a very conspicuous point of view and their advantabes & victories dwelt upon in an emphatic manner, It need scarcely be added that the History was derived from a very partial & exaggerated source.

In considering the probability of these people having in view their return to their

1. The Mercury, the organ of the English commercial interests, had become particularly bitter against the French element in the Province with the result that the French Canadians in order to advocate the views of this party established in November, 1806, a weekly paper of their own, Le Canadien. Por the support which it gave the majority in the House of Assembly, Sir James Craig in March, 1810, saw fit to seize the press and arrest the proprietors of the paper. See page 878, note 2.

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own Government, it may be urged that they have been hitherto quiet & faithful subjects, during the long lapse of 50 years, in which it would rather be to be supposed that their old attachment should have gradually decreased, so that there should be the less likelihood of their assuming now a disposition, of which they have hitherto shown no indication; to all this however it may be replied, that no circumstance whatever has occurred to awaken their attachment to their Mother Country, nor have any pains ever been taken to produce such a change, their habits, language and religion, have remained as distinct from ours as they were before the Conquest. Indeed it seems to be a favourite object with them to be considered as [a] separate Nation; La Nation Canadienne is their constant expression, and with regard to their having been hitherto quiet & faithful subjects, it need only be observed that no opportunity has presented them an encouragement to shew themselves otherwise. From 1764 to 75 the Country was in a state of poverty and Misery, that would not for a moment admit of a thought of revolt in which they could expect no assistance, but even during that period there was a constant intercourse with France; Young Men who sought to advance themselves went to France, not to England, and some are now in the Province who during that period served in the French Army : during the American Rebellion it was a contest whether they should remain attached to the Crown of England, or become a part of the American Republic, and to say the best for them, their conduct did not manifest a very strong affection for the former, tho’ the force the Americans had in the Province was never such as to encourage them in an open display of any prediliction for the latter, which however, I do not believe they entertained: their object was to remain quiet; The French never turned their views this way; In 1794 a strong Jacobin party shewed itself,1 and was with difficulty kept under, but during all this period to which I have hitherto alluded they had no foreign assistance to look to, nor any head to direct them, to France they now direct their view for the former, and I am pointing out those who I fear are preparing to offer themselves for the latter, and certainly under the most formidable shape under which a head could be found.

But inependant of every view which may exist as to a change in their political relation with, as a dependant on, the British Empire, the composition of the House of Assembly as it now stands is to oe considered as it affects the public good, and the general prosperity of the Province, and these my Lord, I fear can never be promoted to any extent by it; Religious prejudices, Jealousy, and extreme ignorance all forbid the expectation, and these I am afraid must prevail among the Canadian part of it for a long period to come.

Questions directly of a nature to affect either the protestant, or the Roman Catholic Religion, have indeed never been brought before the House; but there are many that appear to be perfectly unconnected with the Subject, but which are nevertheless view’d by them either as affecting some temporal right of their Clergy or as having some remote tendency to promote the Establishment of the protestant interest, and to such it is vain to expect that they should for a moment listen; this has been exemplified in some remarkable instances, and that even in the Legislative Council, where in the ease of a Bill brought into that House, which did not seem to have the slightest relation to Religion, Canadian Gentlemen otherwise I am sure most perfectly disposed to promote the Public welfare, & who admitted the beneficial tendency of the proposed Act, nevertheless acknowledged they were withheld from giving their concurrence by what they conceived a paramount duty, and it is to be remarked that this question could by no construction whatever be supposed to affect any right of the Catholic Bishop, or of the Clergy.

How the Act for the Establishment of Public schools2 was permitted to pass has

1. S e page 121, note 1. 2. The Act 41 Geo. III. Cap. XVII. “An Act for the Establishment of Free Schools and the Advancement of Learning in this Province” See page 254, note 4.

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always been matter of surprize-indeed the present Bishop once observed in a very serious, and official conversation, “You say that our Church never sleeps, you will “allow however that we were asleep and very profoundly too, when we suffered that “Act to pass.” It is observable that the carrying the Act into effect, has very generally met with the opposition of the Cure of the Parish in which it has been proposed to establish a school.

The great object of their jealousy at this moment is, the progress of the Townships— that is, in fact the introduction of Settlers of any denomination but Canadians, as having a tendency, which of all others, they are most anxious to assert, to impede the complete Establishment of a Canadian Nation; These Townships are generally settled by Americans, a proportion of whom are Loyalists who were under the necessity of quitting their Country on the peace of 1784, but by far the greater Number are of Americans who have come in and settled upon those lands since that event, How far it may be good policy to admit of settlers of this description is another question, the Canadians however are loud in their Clamours against it; The circumstance of their being Americans, and the principles generally attributed to these, afford them the pretext, while the truth is, i t would be equally repugnant to the idea they entertain of their own Interests, and they would just have the same feelings upon it, were the tract in question in a progress of settlement from Britain and Ireland; tho’ in the latter ease, it is probable they would not venture openly to complain, as it is, the subject has been mentioned in the House of Assembly once, under the Idea of introducing an Act relative to it, and at another time, under that of addressing the King upon it. This jealousy has increased much since they are become more systematic in their operations, and will now totally prevent any measure that may be proposed for the benefit of that part of the Country; two years ago they passed An Act for the Establishment of a Turnpike road through a part of it,1 at present, no hopes are entertained of getting them to consent to another, tho’ it would be highly beneficial to the City of Quebec, & endeavours are using to carry it into effect by other means.

The common people as may be supposed understand nothing of the nature of the constitution that has been given them, or of that, of the House of Assembly for which they elect Members, except inasmuch as they begin to look up to them as the Governors of the Country; It is a fact, that in one part of the Province whole- Parishes have hitherto constantly declined giving any votes at all, they say, they do not understand it, but they suppose it is to tax them in the End; the cry of many of them now is, they wish La Chambre (the usual expression) at the Devil, they were very well before, and they have never had a moment’s peace since that took place.

I must repeat, my Lord, my regret, at the gpeat length to which my Dispatch has run, but it has occurred to me that it has been indispensibly necessary that I should support the opinions I am offering on the State of the Province by Arguments, and above-all, by a detail that would be inexpedient on any other occasion: It may not be useless in order to bring the whole under one view, that I should now present a summary of the various objects which it has been my intention to submit to the consideration of His Majesty’s Ministers, & to the support of which, the argument & detail to which I have alluded are meant to lead.

They are—1st That this is already a powerful Province in so far as depends upon numbers of Inhabitants, and that in the short period of 20 or 25 years these will probably exceed half a million.

2d That the great Mass of this population, indeed that proportion that admits of no balance from the other part, so far from being united to us by any bond of affection, views us with mistrust, jealousy and hatred.

3d That they are, and consider themselves as french, attached to that nation from identity of Religion, laws, language, and manners ; This is general, and runs thro’ all Ranks & descriptions, the exceptions as I believe being very few.

1. See the Act 48, Geo. III , Cap. XXXIIII.

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4th That this people immersed in a degree of ignorance that is scarcely to be exceeded, & credulous in the extreme are particularly open to the arts and delusions that may be practiced on them by factious, & designing Men.

5th That they are at this moment compleatly in the hands of a party of such factions and designing Men.

6th That the whole Proceedings of this Party are calculated to alienate the people from any attachment they might be supposed to entertain for a Government under which they cannot but confess they have enjoyed the most perfect security, liberty and prosperity, and to pave the way for their return to their ancient connection with that which they esteem their Mother Country.

7th That there is reason to fear that they have been successful in their attempts, and that the People do look forward to a change in their Government.

8th That the Clergy under the general influence of attachment to France are further from religious motives decidedly our Enemies.

9th That the Party who have the lead in the Country have also the compleat command of the House of Assembly, and are therefore placed in a situation particularlyfavourable to their views, and of consequence in the same proportion dangerous to His Majesty’s Interests.

10th That from the composition of the House of Assembly, it is likely that it will ever be in the hands of any party who may have a view in taking the direction of it ; & that Government possesses no influence by which such view, whatever it may be, can be counteracted.

11t h That from prejudice, jealousy & ignorance, it is little to be expected that the House as at present constituted will accede to measures that may advance the real prosperity of the Colony.

12th That the Government is equally destitute of all influence over the Clergy with whom it has scarcely a connection, and that this influence is entirely in the hands of an individual who holds his power under the confirmation at least of a foreign authority, which authority is now under the compleat direction of our inveterate Enemy.

Having thus my Lord, given you a Report on the actual state of this Province such as it appears to me, with the fidelity that I consider my duty to call for, and permit me to add with the frankness that I hope will not be thought otherwise than in that Duty, It may perhaps be looked for that I should assume an infinitely more difficult task, in the attempt to point out a remedy for the evils which I forsee as likely to result from that state as I have represented it, Upon this my Lord I must proceed with extreme hesitation, and I must earnestly request that any thing I venture to advance on the subject, may be viewed as offered with the utmost deference, to the very superior Judgement, and wisdom, to which it is submitted.

The first and most obvious remedy that presents itself, is to deprive them of the constitution, as they term it, that is of that representative part of the Government which was unquestionably prematurely given them—neither from habits, information or assimilation, with the Government of England, were they prepared for it, nor was this circumstance of their unprepared state unforeseen by many of the best informed of the Canadians themselves, who opposed its being granted to them. It was in fact brought about by the English part of the Inhabitants, who in their Enthusiasm for the Constitution which they so justly Esteemed as it exists in their own Country, could not conceive that any inconvenience, or any thing but happiness, and prosperity, could result from its establishment elsewhere. The since Catholic Bishop Denaud,1 a very worthy Man, observed at the time to an English Gentleman who was very warm

1. Mgr. Pierre Denaut was born in Montreal, July 20th, 1748. He was educated at Montreal and Quebec and received the tonsure in December, 1766. He was successively Curé of Boulanges and Longueuil and in 1794 was appointed coadjutor to Mgr. Hubert, the Bifehop of Quebec. On the death of Mgr. Hubert in 1797, Mgr. Denaut succeeded to the See. He died January 17th, 1806, and was succeeded by Mgr. Plessis.

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on the subject, (tho’ now quite the reverse) ” You do not know my Countrymen, they are not at all prepared for the Constitution you wish to give them, once let the rein loose, and be assured they will never know when to stop.”

I am perfectly aware my Lord of the delicaey of such a measure as is here alluded to, and of the possible difficulty that might attend it ; It is not however I assure your Lordship without giving the subject the utmost consideration in my power, or without giving due weight to the Importance of such an opinion, that I venture to say, that nothing short of that measure will afford just grounds of hope of retaining the province under the subjection of Britain, or of the preservation of its tranquility, & the furtherance of its prosperity; The first object will always be to a certain degree precarious, 250,000 people decidedly animated by a foreign attachment, must always be subjects of doubtful continuance. Time may possibly alienate that foreign attachment, but religion is one great bar to the hope, and no one step has ever yet been pursued that could foster the expectation: but however precarious our hold may be, is it not incumbent on us to do away a measure, of which the consequence was certainly not foreseen, but from which every facility, and every advantage is given to the attempt to deprive us of that hold; that Spirit of independence, that total insubordination among them, that freedom of conversation by which they communicate their Ideas of Government as they imbibe them from their Leaders, all which have increased wonderfully within these last five or Six Years, owe their origin entirely to the House of Assembly, and to the intrigues incident to Elections. They were never thought of before ; In the Assembly too, the leaders of any party who may have a revolution in view will always be found, and from them faction will ever spread ; The People are always taught to look up to the House on every occasion, and to consider it as the tutelary Genius that watches over the welfare of the Country, they will very soon consider obedience as a duty, and will be lead to Mutiny before they are aware that they are committing a Crime.

Having already observed to your Lordship, that I am aware of the delicacy, & difficulty of the measures alluded to, I have only on that head to add that here I do not think it would meet with much of the latter; The English are decidedly for it, among the Canadians themselves it is considered as far from improbable, nor is it without its partisans. That it would however occasion considerable clamour, and that attempts might be made to create disturbances upon the occasion, I have no doubt but for the latter, the people are at this moment unprepared, and a very little previous precaution would be sufficient to prevent serious danger.

Next to this great measure, that which is most generally looked up to, is the Reunion of the Two Provinces,1 so as to Balance the Canadian Party in the House.

1. On the question of union, Sir James Craig secured the opinion of a certain “Gentleman”of Lower Canada to whom this despatch was shown in confidence. The observations of this gentleman which were transmitted by Craig to Lord Liverpool on June 1st, are as follows :— ” I will not presume to say a word respecting the inci eased power of resisting an Enemy, which might arise from the consolidation of the Colonies—of that, Your Excellency is the sole Judge. But there cannot, I think, be any doubt, but that great strength would be derived to the Government, from the reunion. Neither could anything be so calculated to destroy, at once, the favourite wish and aim, of the Canadians, to keep themselves a distinct nation, to add a few Representatives from New Countries, would very little tend to produce this effect; and could not possibly obtain for the Government a Majority in the Assembly. This measure, moreover, tho’ it would not be very unwelcome to the Canadians, would not be so unwelcome, as depriving them of their Representation, because it might be conceived to proceed upon grounds of general policy, equally affpcting the Interests of both Provinces. It would have less the appearance of Punishment, it would be less humiliating and disgraceful, it would less hold them up to the world, as a people utterly unworthy of the benefits they have received. Without injuring the Commerce of this Province, it would materially benefit that of the other, and would entirely remove the danger to be apprehended, from a misunderstanding between the two Legislatures, on the subject of taxing articles of importation, &c., which, there seems reason to think, without this measure, cannot possibly long be avoided. That it would, in some respects, produce ” a heterogeneous mixture of Principles & Interests,” can-

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Of the success of this measure I confess I have doubts. It would produce a heterogeneous mixture of opposite principles & different interests, from which no good could be expected, and if it did not avert, I should apprehend it might accelerate the evil. I am more inclined to keep the Province of Upper Canada as a foreign, and distinct population, which may be produced as a resource against that of this Country in, ease of necessity, It must always be interested in opposing revolution of every sort here, the great distance and general poverty of the people, appear to me, further obstacles to such a measure scarcely to be overcome.1

It has been suggested that by a new Division of the Province new Counties might be formed in that part now distinguished by the general name of the Townships, from whence Members might be furnished with the same view of Balancing the Canadian Party:2 this seems to me more practicable, at least than the proposed re-union of the Provinces, besides being in itself a measure that is in some sort required in Justice to the Inhabitants, who begin to complain of not being represented: the Canadian part of the Electors so infinitely outnumber them tho’ confined to a much less extent of Country that they can never succeed, the only exception is the County of Bedford which is almost entirely composed of Townships, and from this County till the present election an English Member has usually been sent, on this occasion it is a Canadian Member, with this exception not one Member has ever been returned from this very large tract.

But without the intervention of the Imperial Parliament, conferring on the Governor, and Council the Powers of altering the existing division of the Counties, and making a fresh one in proportion to the increasing numbers of Inhabitants, it will be impossible to effect even this measure; no consideration could I am convinced

not be denied, but in no respect do the Inhabitants of Upper Canada differ more from the French Canadians, than do the New Settlers in the Lower Provinces, whose numbers a r e sq especially increasing, and who must necessarily make a part of the same Community with themselves. With regard to such Laws as respect property and Civil Rights, no greater difference prevails between the two Provinces, than between England and Scotland; with respect to religion, no greater than between England and Ireland. With respect to “distance ” surely there is no insurmountable difficulty even in the present state of things, intercourse is neither unfreqaent nor difficult. I consider Gaspé as much more foreign to us. The Inhabitants of Upper Canada appear to me, by no means, in a state of “general poverty ” on the contrary, I should call them rich, if a large supply of all the first necessaries of Life ; if plenty of Corn and Cattle ; if well cultivated farms ; good, substantial, large and even very handsome houses, extensive Orchards, and gardens, indicate rising prosperity in a, Country, there must be great reason to think that Upper Canada is becoming generallv very prosperous; there are large portions of i t which are undoubtedly so, and if there be at present a want of Specie in the Country, and some difficulty in conveying their produce to market, industry and enterprize are ignorantly encountering these evils, and a union with this Province, would I conceive greatly advance their success.” (Canadian Archives, Q. 112, page 210.) 1. I n reply to the observations in the note above on the prosperity of Upper Canada, Sir James Craig says:— “it is precisely the want of Specie to which I alluded, when I used the expression a man may have a very good farm, and property exactly in the state my friend desei’ibes, and he will be very comfortable, and may be said to be rich while he stays at home, but such a Ptate will not enable him to leave that home, and to go three or four hundred miles, to reside in a strange place, when the very circumstance of the Assembly to which he is going will tend to increase his expences for the common necessaries of Life. Another observation occurs in the fame paper, that the Inhabitants of Upper Canada, do not differ more from the Canadians, than the Inhabitants of the Townships, this is certainly just, and I am far from thinking that the bringing a number of the latter into the House will not on that very account of their difference in language, manners and indeed every other circumstance, be very inconvenient and create precisely that heterogeneous mixture that I have described, but still residing in the same Province, and their Interests being less apparently distinct from, and opposite to, those of the Canadians, I think their introduction would be less objectionable, than the other, indeed in either case, how a debate is to be carried on, or business to be done, when one-half the House does not understand the Language of tho other half, I cannot well conceive; at present all the English that are in the House speak French, and all their debates, under every disadvantage to these, if debates were of any consequence, are carried on in the Language.” 2. See page

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be offered to induce the present House, or any House that can be formed, to entertain the proposal for a moment.

Short of the decisive step of taking away the House altogether, one or other of these two measures either of reuniting the Provinces, or of forming a new division of the Counties1 seems to offer the only option, from which a hope can be entertained of rendering that House less capable of doing mischief; when I say this, I mean as offering the only expectation of ever effecting a Balance, to the Canadian Party, but under any shape in which it may be thought proper to continue the House, the enactment of a qualification with respect to the Representatives seems to be indispensably necessary, It really My Lord appears to me an absurdity, that the Interests of certainly not an unimportant Colony, involving in them, those also of no inconsiderable portion of the Commercial concerns of the British Empire, should be in the hands of six petty shopkeepers, a Blacksmith, a Miller, and 15 ignorant peasants who form part of our present House, a Doctor or Apothecary, twelve Canadian Avocats, and Notaries, and four, so far respectable people that at least they do not keep shops, together with ten English members compleat the List: there is not one person coming under the description of a Canadian Gentleman among them.

The qualification that I think best adapted to the circumstances of the Country, would be one hundred pounds Currency, clear annual revenue arising from Land actually the property of the person presenting himself, for twelve Calendar Months previous to the day of election, or two thousand pounds Currency in personal property clear of all debts or demands.

With respect to a qualification for the Electors, tho’ I am clear that such would be advantageous, and that the present one as established by the Constitutional Act2 is of little use, yet I feel much greater difficulty in proposing an, alteration, forty shillings yearly value of their lands, scarcely excluded one farmer in a thousand, in fact, nearly every head of a family possesses a farm, and every farm is of a value exceeding that amount; the farms in general run so nearly of the same value, or vary only on account of being in a more or less favorable part of the Province, that any qualification under the general average, would bear the right of suffrage very near where it now is, and if it were established at a higher rate, it might perhaps narrow the right below its fair limits ; It undoubtedly would be desirable that the very lower class should be excluded, but I think the number is not yet so great as to induce the risk of what would be a greater inconvenience, to effect their exclusion, for I should consider as such the reducing the number of Electors within too narrow bounds.

In the meantime however an opportunity appears to me to present itself by which much may be done towards keeping the House itself within proper bounds ; by shewing it, that its proceedings are watched, and that it will not be suffered to outstep those limits by which its subordination to the Imperial Parliament is established, while it would tend to manifest that subordination to the people, & perhaps lessen the confidence they may possess in their leaders, by shewing them that they are not all powerful, and that they may be in the wrong.

The House by rendering a certain class of His Majesty’s subjects ineligible to a seat, by a vote of their own,3 has clearly violated the Act of the British Parliament by which they themselves exist, and should this assumption of theirs be submitted to, they will successively vote every class of His Majesty’s servants to be ineligible, I do not speak this hypothetically My Lord, as what they may do, I mean it Literally

1. For the opinion of Mr. Sewell, when Attorney General, on this point see page 312. 2. The property qualification established by Article XX, of the Constitutional Act was the possession of property in the rural districts of the yearly value of forty shillings and in the towns of the yearly value of five pounds sterling or the payment for the rent of the dwelling house occupied of two pounds sterling per annum. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 699. 3. See the proceedings relating to the expulsion of Mr. DeBonne, page 370, and Sir James Craig’s comments in his speech on proroguing parliament, page 371.

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as what I firmly believe they will do. I have not a doubt that much good would result from a retaliatory act of the Imperial Parliament forbidding the Governor to permit the House to proceed to any business, of anv sort whatever, and directins him to prorogue, or dissolve them, as he may see occasion, whenever they attempt to proceed to any vote, or any other motion, except that of rescinding their resolve, and expunsine: it from their Journals, It would be done without a moment’s hesitation, It would teach them caution in future, and it would make them view their situation in a different light from what they do now.

This correction proceeding from Parliament would certainly be the most effectual ; If however from reasons which are beyond my competency in judging, it should not be thought advisable to move such a measure in the Imperial Parliament, It might perhaps be nearly as effectual, if I were authorized to recommend it in His Majesty’s Name, should His Majesty in His wisdom permit me so to do, In this case I presume the message to bo delivered would be prescribed to me, otherwise, I should express His Majesty’s confident hope & expectation that they would see the expediency of proceeding immediately, and in the first step to a measure required of them, upon every principle of Justice to the people, & of deference to the Imperial Parliament, and in the event of their attempting to enter on any other business whatever, or even admit of a motion other than what might be necessary for the purpose of carrying His Majesty’s recommendations into effect, I would immediately prorogue them, and should they show the same spirit of resistance a second time, which is not to be expected, I would dissolve them again. Should I adopt this course as of myself, under His Majesty’s instruction tho’ without His name, I fear it would produce infinite confusion and an endless controversy; they would certainly resist it in the first instance, how far they would carry their resistance it is impossible to say—but tho’ they might comply at last and probably would, they would accompany that compliance with resolutions and proceedings that would only tend to keep us at variance, and to impede all public business; and after all, the effect upon them, and upon the people, would fall infinitely short of what might be expected in either of the other ways to which I have alluded.

In adverting to the little means of influence that the Governor possesses, I am at a total loss how to propose any (except in the obvious instance to which I shall shortly allude) by which it may be increased. The Militia furnishes little or none,1 the great body of the officers, that is those of the Country Companies, is composed of Habitants, but a Shade removed above the others in intelligence, tho’ they are chosen from the most respectable among them. They are generally speaking the first to whom the Agents of the Party address themselves, and they are represented to me as among the most disaffected of the Province, as Credulous as their Comrades they listen to, and believe what is told them, while under the same infatuation of mistrust of every body of an Order higher than themselves, there are no means of disabusing them; I am certain if I were to dismiss every officer against whom information has been given me. I should change one third of the Militia of the Province.

Unfortunately My Lord, the great source of not only the most extensive but also of the most powerful and useful influence is in the hands of an individual who is himself as I am assured, (and that from no bad authority) at this moment a Suffragan of an Archiépiscopal See in France; I have already adverted to the power exercised by the Bishop in the appointment and removal at his pleasure of the Clergy of this province.

Upon careful enquiry into the subject, I find that previous to the conquest, the Bishop did exercise the right of appointment, In 1667 a Royal Edict gave the right of patronage to the Seigneurs or founders of the Church, but & subsequent Edict

1. See the opinion of Sir Robert Mimes on this question, page 350.

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of 16991 gave it to the Bishops, but in Order to render this matter more clear I shall enclose a Memorandum (A) given me on the subject by the Chief Justice.2

His Majesty’s Right to the nomination is clear and incontestable, so much so, that were a Habitant to refuse to pay his tythes, The Church might excommunicate him, but for want of that nomination, it is held that the Curé could not in any of His Majesty’s Courts of Law compel him to pay; The resumption of this right appears to me to be indispensable to any hope that may be entertained of retaining the dominions of the Colony, and this I confess seems to me also to be the moment for affecting that resumption; It may be accomplished now, twenty years hence it will be more difficult if not impracticable, but the truth is the danger presses, this influence is universally believed and I believe it myself, to be now silently working against us; I do not know that the proposed change would turn its current, but I am sure it would lessen the force of it very much.

The Person who at present exercises the Episcopal functions,8 is not I think of a turbulent disposition, but he is a Man of great ambition, and some art, I doubt whether the former is not such as to preclude any great hope of succeeding with him by a negotiation voluntarily to resign the Post he now holds, I am inclined to believe that he himself would prefer that his submission should bear the appearance of an Act of necessity, under the power of an Act of the Imperial Parliament, or of the just exercise of His Majesty’s Right, at the same time however if, whether it be accomplished by negotiation, or otherwise, He comes into it with a good grace, I Imagine it will be thought reasonable that his allowance should be increased, He has now only £200 a year, it would not be amiss to hint to him, that his Salary would be increased to the extent that His Majesty in the exercise of His Liberality might think proper to permit. On this very important subject, permit me My Lord to refer to a letter (B) from Sir Robt S. Milnes together with a Memorial (C) from the Bishop copies of which I enclose4; Erom some circumstances that occurred at that moment, no instructions were sent here in consequence, otherwise there is no doubt that the measure might have been effected.

As to the Curés themselves, it is understood that they are at present rather uneasy at the power exercised over them, and the obvious amelioration of their situation, would I think soon reconcile them to the change; It would be proper to give them a free hold in their livings, of which they could not be deprived unless it were in consequence of the sentence of the Bishop, who on a complaint against a Cure referred to him by the Government, should be empowered to call into his assistance his Grands Vicaires, and to examine into it, from which sentence however, the party

1. See the Edits, Ordonnances Royaux, Declarations et Arrêts du Conseil d’Etat du Roi concernant le Canada, Quebec, 1854, Vol. I, page 279. 2. The memorandum of Chief Justice Sewell is to this effect. ” In 1663, the establishment of the Seminary of Quebec was confirmed by His Most Christian Majesty, and by the letters patent of Confirmation it was provided that all the Livings in the Country should be served by the priests of the Seminary, that they should be appointed and removed at the pleasure of the Bishop, and for their Support all the Tythes in the Country were vested in the Seminary.(2) M Edits & Ordinances, Vol. I, page 27. I n 1667, the Tythes of each particular parish was by a Boyal Edict vested in the cure to the Exclusion of the Seminary, and the Curé was declared to be an incumbent for Life, by the same Edict. The Patronage of each Church and living in the Country was vested in the founder & where the Seigneur was willing as well as others in his Seigneurie to found a Church the Patronage was declared to be his in preference to all others.(3) (3) Edits & Ordinances, Vol. I, page 243 to 245. In 1699, another Royal Edict was issued which after reciting “That the Inhabitants of New Prance had not availed themselves of the permission given to them by the Edict of 1667, That no Churches had been founded and that the natural right of the Bishop to Erect Churches had been frustrated ” enacts ” That the Bishop may erect (faire Batir) Churches of Stone in all the parishes in which none are erected and that the Patronage of all such Churches should be vested in him.(4) (4) Edits & Ordinances, Vol. I, page 292. 3. Mgr. Plessis, see page 304, note 3. 4. Milnes to Camden, July 27th, 1885, with a memorial from Bishop Denaut, Q. 98, page 5.

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should have his appeal in His Majesty’s Courts, [it is thought that it would be dangerous to give him the right of enquiry into Complaints without their being referred to him by the Governmt, the removal from a living to a better, to be of course at the pleasure of the Crown, It must be recollected that the appointment of the Grands Vicaires, must also rest with the Crown, at present they are named by the Bishop without even the Ceremony of presenting them to the Governor.

The resumption of the Lands held by the Seminary at Montreal would in like manner tend to an increase of the influence of Government, and would to a certainty lessen that of the self created community, in whose possession they now rest, the right is incontestable, and they are so sensible of it, that they make a rule of dropping all claims by which the discussion might be brought into Court, The Majority of the present Members of the Institution are freneh emigrant Priests, and are not amongst the least dangerous persons in the Colony; the Person at the head of it particularly is of that description, a very able, but a very artful designing Man, whose predeliction for Erance is not doubted: the Estate under proper management would probably produce ten thousand pounds a Year, and four would be an ample allowance to them to carry on their Establishment; The Seminary of Quebec is also in the possession of large property, to which they have an undoubted Claim, and the» two together, form an ample provision for the Education of their Youth.

I will not detain your Lordship any further by a word more of apology for the extreme length of this dispatch, the occasion has seemed to me to require it, and I am yet sensible of the very deficient maimer in which I have treated the subject, which I have felt it to be my duty to undertake; to remedy this deficiency, I have confided my dispatch to Mr Ryland my Civil Secretary,1 this Gentleman has been in office here seventeen years, during the greater part of which, he has been in the Station he now holds under my administration. He possesses my entire confidence, and I am persuaded is most perfectly qualified to give every Information that your Lordship may desire, my motive indeed for sending him is that your Lordship may have a more perfect, & detailed account than it is possible to convey in a letter however long it may be.

I have the Honor to be My Lord Your Lordship’s most obedient humble Servant J. H. CRAIG.

Endorsed : Quebec 1st May 1810 Lt. Genl Sir J. H. Craig No 7 R/Inclosures

OBSERVATIONS OF CHIEF JUSTICE SEWELL ON THE UNION OF THE PROVINCES.2

Copy.

May it please your Excellency.

You have been pleased to call for my sentiments upon the present situation of Canada, and I have now the honor to submit them to your consideration and superior Judgment.

1. See page 286, note 1. 2. From the copy in the Canadian Archives, Q. 112, page 196. In transmitting this paper to Lord Liverpool, Sir James Craig remarks that ” there are few people in the Province who from long residence, a spirit of observation, and intimate knowledge of the people, is more competent to form a true judgment of the State of it, or to foresee the most effectual means of obviating the Evils to which it is liable.” (Canadian Archives, Q. 112, page 193.)

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The Political Evils which we labour under arise in my apprehension from two principal causes, 1st Erom French predilections in the great Mass of the Inhabitants, and 2dly From want of Influence and power in the Executive Government, from the former, arises that distinction between the Government and the People, which is daily and too visibly productive of mutual distrust, jealousies, and even enmity, and from the latter a total inability to produce the means by which the effects of that distinction may be counteracted. What must be the result, if things remain as they are is obvious, No hopes can be entertained, that French predilections can be obliterated from the minds of His Majesty’s Canadian Subjects, and if they be not counteracted, they will continue to augment until by some crisis, force will be required and the future state and condition of Canada will then be decided by a recourse to arms.

The great links of connection between a Government and its subjects are religious [religion,] Laws, and Language, & when Conquerors possess the same religion, and use the same Laws and the same Language as the Conquered, the incorporation of both into one political body is easily effected: But when they are at variance on these points, experience seems to have demonstrated in Canada, that it cannot at all be effected while this variance subsists. Obedience may be rendered by conquered subjects under such circumstances, Jbut it is the obedience of a Foreigner to a Government which in his estimation is not his own, and as he views it as an alien power, there is no attachment, no affection in his mind towards it, and consequently no disposition to unite with those who constitute the Government or its natural subjects. Every favor conferred is considered to be no more than what is due to them, or as a matter obtained from persons who would not have conceded so much if it had been possible for them to retain it. No Confidence exists, and he is in a continual belief, That more is meditated by the Government, in every of its measures, than meets his Eye. At the conquest of Canada, the conquerors were Englishmen & Protestants. They spoke the English Language & no other, they were attached to the English Laws, and fostered in their minds a natural antipathy against Frenchmen. The English Subjects of the present day who are settled in Canada, having no cause to be dissatisfied with the religion the Language or the Laws of their Mother Country, & having no cause to be better pleased with France than their Forefathers, are now precisely what the conquerors of Canada were; on the other hand the People of Canada at the Conquest were Frenchmen, and Roman Catholics, They spoke the French Language, and no other, they were attached to French Laws, & fostered in their minds a National antipathy against Englishmen, since that period. By the Statute 14, Geo. TIL c. 831 the Laws of France have been enacted, and declared to be the Laws of Canada. And the Roman Catholic Religion has been established in the Province, and as it has not been thought adviseable, by any Act of Parliament or other means to attempt the general introduction of the English Language, The French Tongue universally prevails, even in the Courts of Justice & in the Legislature, the Canadians therefore in those several Respects, are also precisely what they were at the conquest. They are still Frenchmen, their habits (the fruits of their Religion, & their Laws) are still the habits of Frenchmen, and so much in opposition to the habits of our own people, tho’ there is no intercourse between them; I fear I may add with truth that the antipathy of Canadians, and English Subjects against each other, is mutually as great as ever.

It seems, Sir, to me, impossible that the incorporation of two such Extremes can ever be effected, and to this I add, that no change in the Laws or religion of the Country can be even expected until the Majority of its inhabitants are Englishmen, in principle, and that while the number of English settlers remains so small in comparison to that of the Canadians, a change in Language, cannot be looked for,

1. The Quebec Act. See Constitutional Documents, 1759-1791 Shortt and Doughty, 1907, page 401.

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Yet the Province must be converted into an English Colony, or, it will ultimately be lost to England.

I am led from these considerations in the first instance to conceive it indispensably necessary to overwhelm & sink the Canadian population of English Protestants,1 and this I believe to be practicable; I do not mean that subjects can or ought to be procured from England to the extent required for this purpose, but they may, and I think ought to be procured from the neighbouring States, For although it may be feared by some that they would not be good Subjects, I have myself no such fears ; I believe that once settled in the Province they would have no wish to return to their former system of Government, an expectation justified by the conduct of those who are already settled in the country. It is besides only in the case of a War with the Northern States of America that the disaffection of such settlers is to be dreaded, and this is an event to be contemplated probably as a remote contingency. We should also remember that the great fear of the Northern States is the Existence of a nation of Frenchmen upon their Borders, and that in all probability the introduction of other settlers by appeasing this apprehension, by increasing our connections with them, and particularly our commercial intercourse, would have a tendency to pursue the good understanding which subsists at present for a longer course of years than otherwise might be expected, and possibly until the original Settlers shall be succeeded by a new Generation of British Born Subjects; But let the weight of these observances be what it may, such settlers it is certain would be the descendants of Englishmen, profess the same religion, and speak the same language, and would therefore be more easily assimilated, and become better subjects than those which we now possess, and if to people the Country with such Characters is to incur a risk, the risk incurred will be less than that which we must incur by suffering the Province to remain in its present state.

The Waste Lands of the Crown afford sufficient means for the accommodation of a much greater number of Settlers than is required, But their dispersion through the settled parts of the Country is desirable upon many accounts, and to effect this would require the aid of Parliament. All the Grants of the French Government were made under the feudal System, and all the lands so granted, are now so held by the Lords of the several Seigneuries in Canada, and their respective Tenants. To such Tenures all Englishmen and Americans have an utter aversion, and the consequence is that all the Seigneuries in the Province are entirely settled by Canadians, most of the Seigneurs however, would be glad, to take a fixed price for the fee simple of their farms, and in consideration of that Price to exonerate them from the payment of all rents, mistaken fines; and other feudal Burthens for ever. But as the Law now stands, this cannot be done, and an Act of Parliament for the conversion of Tenures similar to the Act which was formerly offered to the consideration of the Provincial Legislature would be required, and as such, an Act must necessarily proceed upon the principle of a mutual agreement between the Lord and the Tenant, and provide for the payment of the King’s Quint upon the purchase. It is evident that no Injury could accrue to the Tenant, to the Lord or to the Crown.

In the present state of the Legislature of Canada, three fourths of the House of Assembly are Canadians, and of that proportion of the whole nearly of the lowest Class,2 The fruits of Universal Suffrage, Four fifths of the whole also are Roman Catholics, and under the guidance of a Priesthood which is established by Law, but denies that the right of Supremacy is or can be vested in the Sovereign. From such a House, Laws calculated in principle to counteract French predilections or, to increase the Power or influence of the Crown must not be expected, and almost any alteration in

1. The copy in the Q. series has been followed. The reading obviously should be “by English Protestants.” 2. In the copy in the Canadian Archives the words ” of the ” are crossed out. Swell’s meaning is evidently that most of the Canadians elected are of the lowest class.

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it must necessarily be for the better. The Introduction of English Settlors of itself will increase the number of English Members but the augmentation of their number would be greatly promoted by an Act requiring a qualification as well for Members as for Electors. The Character of the Canadian is Idleness, and inactivity, of the English Settlers Industry and perseverance. The Canadians also divide their real property among their children in equal proportions ad infinitum, while the English Settlers observe an opposite Conduct, and almost universally place their younger sons upon new lands reserving the patrimonial Estate to the Eldest. Generally speaking therefore, the English Settlers will possess property of greater value than the Canadians, and if qualifications comparatively high are required, The nomination of Members to the Lower House will ultimately rest with the English Settlers. The Number also of Persons qualified to be Members will increase among them, while among the Canadians it will be diminished.

The present Exigencies of the Colony however require measures more immediately calculated to produce a change in the Legislature than those to which I have alluded, and in my mind, none would be more efficacious than an incorporate union of the two Provinces of Upper and Lower Canada under one Governor General, and one Legislature, leaving to the Upper Province its present Executive Government, but rendering it subordinate, and liable to the control of the Governor General, and to both, all laws in force in each respectively. At the time of the Union ; subject to such alterations, and regulations from-Time to Time, as circumstances to the Parliament of the United Kingdom, or to the Provincial Legislature of the United Provinces may appear to require. By the addition of the Representations of Upper Canada to the Legislature of this Province, The English Interest in the House of Assembly would be much increased, and it might be made to preponderate by diminishing the number of the Representatives for the Lower Province, and augmenting the Number for the Upper Province. The Importance, The respectability, and the weight of the Legislative Council, would be materially augmented, The Influence of the Roman Catholic Priesthood in the Legislature would be annihilated, The Strength, The Power, and The Resources of both Provinces would be consolidated. The Commercial Jealousies & dissatisfactions which have arisen from the peculiar geographical situation of the two Provinces, from the independence of their respective Legislatures, and the danger of their acting in opposition to each other, with those consequences (to this time prevented by temporary compacts between the two) would effectually be done away, The Influence of the Governor General would be augmented by an extensive patronage (which ought to be increased by every means) and the designs of the Imperial Government would be more easily carried into Execution in both Provinces, because there would be but one Legislature to consult.

It is obvious if a union of the two Provinces should be adopted, that some alteration in the Courts of Justice would be necessary. But as detail in the several matters upon which I write would carry me far beyond the bounds to which I am limited in a letter, I refrain from it in the present instance. As this however is a subject immediately within my own department, I shall beg your Excellency’s permission to refer to a report upon the Courts of Justice in this Province submitted by me when Attorney General to Sir Robert Milnes and dated.1

And to add that if it be thought expedient to erect a Court of King’s Bench in this Province with the Powers then pointed out, It would in my opinion be right to vest in the same Court, a Control to a certain extent over the Courts of the Upper Province.

Among the means to be adopted for encreasing the power, and influence of the Crown, I know of none which after those which I have mentioned, would be so immediately efficacious, as to increase the Patronage of the Governor resuming & exercising the King’s Right to appoint Incumbents to all the Roman Catholic Livings

1. This report has not been found.

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in Canada, under the sanction of a declaratory Act of the Imperial Parliament. But as His Majesty’s Right to make such appointments may be doubted, because antecedent to the conquest, that Right was vested in the then Roman Catholic Bishop of Quebec, I shall beg leave to lay before your Excellency the grounds upon which in my opinion it is now vested in His Majesty.

At the Erection of the Bishoprick of Quebec in 1670 after great contestations between the Courts of Versailles & of Rome, It was determined that the Bishop of Quebec should hold of, and be dependent upon the See of Rome, with the title of “Vicaire du St. Siege Apostolique ” [1] And in consequence of this agreement, though the Bishop was immediately nominated by the King of France he received from him a Commission, His powers were derived to him entirely from the Pope, and given by his Bulle upon which he was admitted to take the Oath of Allegiance and installed in his Bishoprick by Royal Letters Patent. [2]1

By the 6th Article of the Capitulation of Quebec “The Bishop was to exercise his functions with decency until the possession of Ganada should be decided,”1 And in the same spirit By the 29th and 30th & 31st Articles of the Capitulation of Montreal,3 &, the answers, every demand made for the continuation of the Bishops authority was rejected. Under the Capitulations therefore the exercise of the Episcopal Functions could not be claimed after the Treaty of 1763 by which the possession of Canada was decided. The Treaty of 1763 permits the Canadians “to profess the worship of their religion according to the rites of the Church of Rome as far as the Laws of Great Britain will permit.”4 And the Statute 14 Geo. III cap. 83— declares that they may have, hold, exercise and enjoy the free exercise of the Religion of the Church of Rome subject to the King’s supremacy declared and established by the Statute 1, Eliz. cap. 1.5 Since therefore the Titular Roman Catholic Bishop of Quebec according to the original Creation of the See of Quebec “holds of and is dependent upon the See of Rome,” and at this moment as heretofore derives his entire authority from the Pope, without any Commission or power whatever from His Majesty, It is now clear that the Statute of Elizabeth which is formally but unnecessarily recognized by the Statute 14th Geo. III Cap. 83, to be in force in Canada has annihilated, not only his power, but his office. The 16th Section having especially prohibited all exercise of the Popes authority, & of every authority derived from him not only in England, but in all the Dominions which the Crown then possessed or might thereafter acquire. Yet upon a point of so much importance I am desirous of strengthening my own opinion by that of others, and with your Excellency’s permission will therefore cite a paragraph from the Report of the Advocate General (Sir James Harriot) to His Majesty in the year 1773 upon the affairs of Canada. It is in these words “that the Benefices (in Canada) heretofore in the gift of the Bishop are vested in your Majesty only cannot be doubted in Law, because there being no Bishop by Law, The Patronage of the said Benefices is devolved to Your Majesty’s Crown of Course.”

I must state as alarming facts, that the education of all the Canadian Youth of the Country male and female, and of a considerable proportion of the English is

[1] Charlevoix 4 to Vol. 1 p. 406.” Repertoire de Jurisprudence Vol. 23, 512. Letters Patent of Sept. 1713, confirming the Chapter of Quebec,7 Secretary’s Office Register of the superior Council D. fol. 1. [2] See the proceedings upon the appointment of Bishop Pontbriand in 1741. Edicts 4 Ordinances, Vol. 1, p. 516.3

1. The notes (1) and (2) are Sewell’s. 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 6. 3. Ibid, page 25. 4. Ibid, page 66. 5. Ibid, page 403. 6. Chief Justice Sewell’s reference is to the edition of Charlevoix of 1774. 7. See the Edits, Ordonnances Royaux, Declarations et Arrêts du Conseil d’Etat du Moi. 8. Ibid, page 553.

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entirely in the hands of Roman Catholic conventual Institutions. That in the Seminary of Montreal every teacher is a native born subject of france and a Member of tiie Brotherhood of St. Sulpice. And that in the Seminary of Quebec—The last Superior was and the present is also a Native of France. Such Institutions in every Country are Nurseries of Bigotry and of Aversion to the Civil Power, with us in addition of these evils they are the foster parents of freneh Predilictions, and of a Natural Antipathy against England and her heretical Government.

Of these Establishments by far the most important and most extensive is the seminary of Montreal, whose entire property most unquestionably has been vested in ? the Crown since the period of the Conquest. It is not however necessary for me to enter into any proof upon this point, or to state the means by which this property can be resumed because it is not in my power to add anything to a Report upon the Subject submitted by me to Sir Robert Milnes dated 2a July 1804.

Nor will I trespass upon your Excellency’s time by any remarks upon the advantages to be derived from the influence of Government in the Education of the rising generation. I have only to observe that I enumerate the resumption of this property and the application of its Rents and issues to the purpose of Education throughout the Province under Masters appointed by the Crown, among the means by which French Predilictions may be prevented and the power and Influence of the Crown eventually increased.

In the course of this letter I have hitherto had the honor of offering to your Excellency’s consideration those objects only which constitute in my view the greater alterations and amendments in the Constitution, & Government of the Province, more immediately and indispensibly necessary, and a further detail of the whole with the measures which in my humble Judgment it will be right to adopt in the Execution of all, or any of them, I shall be ready to lay before your Excellency if at any time you should be pleased to direct me so to do.

I beg leave to add that much Injury to His Majesty’s Government, and to the public peace and tranquillity of the Province, may be prevented, by an Act of the Imperial Parliament to regulate printing & Printers in Canada similar to the English Statute of the 38^ Geo. III cap. 78.1

I have the honor to be with perfect Respect Sir Your Excellency’s most obedient most humble servant , (signed) J. SEWELL. J. H. C

His Excellency Sir J. H. CRAIG KB. Governor in Chief &c &c &c Endorsed : A Mr. Sewell’s Report In Sir J.H. Craig’s N°. 15 To the Earl of Liverpool

1. An Act foT preventing the mischiefs arising from the printing and publishing newspapers, and Papers of a like nature, by persons not known; and for regulating the Printing and Publication of such Papers in other Respects.

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OPINION OF SIR V. GIBBS ON THE PROPOSED CHANGE IN THE CONSTITUTION.1

1. Whether after the 31st of the King Cap: 31st2 entitled “An Act for making more effectual Provision for the Government of the Province of Quebec in North America “—The Parliament of the United Kingdom would be Warranted in making any Alteration in the Constitution of that Province, or of Upper Canada, as established by the said above recited Act?

Second—

2. Whether it would be competent to the Parliament of the United Kingdom, to Unite the Two Provinces of Lower & Upper Canada into One Government, with One Council & Assembly, and to make in that Case such further Regulations for the Government of the said Provinces as might appear to be expedient?

Third—

S. Whether, the Governor having in consequence of the 14th Sect;3 of the above recited Act, issued a Proclamation4 for dividing the Province of Lower Canada into Districts, Counties, Townships &e—and appointing the Limits thereof, and declaring and appointing the Number of Representatives to be chosen by each, of such District, County, Townships, &c. It would be lawful for the said or any future Governor, with or without the Authority of His Majesty, to make any new Division of the Districts, Counties, Township’s &e—& appoint new limits thereof, -& declare —Appoint the Number of Representatives otherwise than first proclaimed, without an Act of the Legislature of the Province & Assembly for that Purpose.

Endorsed: B Canada Answered on another Paper marked C.

1. I think that the Parliament of the United Kingdom would be warranted in making such alterations in the Constitution of the two Provinces of Upper & Lower Canada, established under the 31r t G. 3a c. 31 as the necessity of the Case, evidenced by the experience which we have had of that Constitution, may require,5 but it is to be expected that the ground of this necessity will be scrupulously enquired into & discussed by the Parliament here, & that any change which is effected, however necessary it may be, will create great dissatisfaction in the Provinces among those whose Power & Influence is controuled by it.

2. I think that it would be competent to the Parliament of the United Kingdom to unite the two Provinces of Upper & Lower Canada into one Government with one Council & Assembly, & to make in that Case such further Regulations for the Government of the said Provinces as may appear to be expedient.

3. I conceive that neither the present nor any future Governor can make any new Division of the Districts &c nor appoint new limits thereof, nor alter the number of Representatives which was originally fixed by the Proclamation issued under the 14th sect. of the 31 G. 3d. c. 31. It seems to me that the power given by that sect: can be exercized but once, & that when His Majesty has once authorized the Governor to exercize it, & he has exercized it accordingly, no alteration can be effected in the Division & Declaration which he has made, except by an Act of the Legislative Coun-

1. From the copy in the Canadian Archives, Q. 113, page 204. Writing to Sir James Craig on September 12th, 1810, Lord Liverpool says:— ” Having judged it advisable to state -for the opinion of His Majesty’s Attorney General several Questions arising out of the present situation of Afiairs in the Province of Lower Canada and connected with the Proceedings which have lately taken place there, I think it right to transmit for your Information a Copy of the Paper so referred, together with the Answers and opinion of the Attorney General thereupon. (Canadian Archives, Q 97A, page 177.) 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 694. 3. Ibid, page 698. 4. Por the proclamation see page 72. S.See also the opinion on this point of Mr. Sewell when Attorney General of the Province, page

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cil & Assembly of the Province with the Assent of His Majesty, or by an Act of the Parliament of the United Kingdom.

With regard to the two Questions proposed by Mr Ryland in his Memorandum which I have marked A I cannot say that the Papers published in Le Canadien, & upon which the Proceedings of the Council1 were founded, are such as fix upon the Publishers the charge of Treasonable Practices, & therefore it may be difficult strictly to justify the steps which have beeni taken against them, but the passages which are adverted to were certainly calculated to do much mischief in the Province, they might, I think, be prosecuted as seditious libels, & with the apprehensions which were entertained of the Effect of this Paper, it may have been excuseable to resort to means not strictly justifiable in Law for suppressing it.

V. GIBBS2 L. I. Augt 22d 1810

Endorsed: C. Answers to Queries in Papers marked B & A.

LIVERPOOL TO CRAIG.3

24th Mar. 1810 No 5 30th 6 1st May 7 10th 8 12th 9 17th 10 18th 11 31st 14 1st June 15 1st 3rd 16 4th 17 4th 18 6th 19 6th 20 8th 21 10th 22 10th 33 10th 24

No 7 Downing Street 12th Septr. 1810

Sir J.H. CRAIG K.B.

Sir,

Your dispatches of the dates and Numbers specified in the Margin have been received and laid before the King.

Having very fully discussed in a separate Dispatch the various important Topics more immediately connected with the present political Situation of the Province and being desirous that you should as early as possible be put in possession of the Sentiments of His Majesty’s Government with regard to the late Proceedings & apparent views of the Assembly, I shall reserve for separate consideration the State of its Ecclesiastical Establishments, both Protestant & Catholic, a Subject which no less requires the most serious & mature deliberation—

It is necessary however that I should reply to those observations you have offered on the Measure you expect the House will bring forward for the application of the Surplus of the Fund raised for the, erection of Gaols, and the Propositions already made in the House to provide for the future charge of the Civil Establishment of the Province.

Under any Circumstances, the motives of such an offer would require to be thoroughly scrutinized—in the present temper of the Assembly there can be no doubt that the object is t o increase the Powers of that Body by assuming the controul & direction of the Publick Supplies & Expenditure.

The Funds by which the Expences of the Colonial Government are supported, are fortunately at present little dependent on the Will or Caprice of the Assembly, &

1. See page 379. 2. Sir Vicary Gibbs, was born in Exeter in 1751. He studied at King’s College, Cambridge, and was admitted at Lincoln’s Inn in 1769. He was called to the bar in 1783, and took part in the trial of many cases of special importance. In 1795, he was appointed Solicitor General to the Prince of Wales, and in 1799 was advanced to the position of Attorney- General. In 1804, he was returned to Parliament and in the following year was appointed Solicitor General by Pitt and given the knighthood. Gibbs retired on Pitt’s death, but in 1807 accepted the office of Attorney-General under the Duke of Portland–a position which he held until his appointment to the Court of Common Pleas in 1812. He was promoted to the Privy Council in November, 1813, and in the Pebruary following became Chief Justice 3. From the copy in the Canadian Archives, Q. 97A, page 173. 4. See page 376.

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any attempt to provide, by Annual or temporary Acts, any Funds in lieu of those which, tho’ less in amount are of a fixed & permanent nature ought to be immediately resisted; And I can hardly suppose a Case in which it would be proper to agree to any innovation; of this kind without a previous reference home & the formal sanctum of the Crown.

A like reservation should be made in the event of any attempt to continue after the expiration of the present Provincial Act of 1805, the duties imposed on the importation of certain Articles for the purpose of creating a Fund for the erection of Gaols.

With respect to the application of the actual Supplies of that Fund, you must be aware of the strong objections which were urged against the Bill when it was first brought forward, and of the opposition made,1 whilst under the consideration of the Privy Council, to its receiving the Royal Assent. In consequence of the Discussions which at that time took place The Lords of the Council recommended the Instruction which was sent to the Governor not to consent without special directions from hence, to the Application by the Assembly of any Surplus which might remain after the Gaols should be completed. I shall therefore direct that this Subject be again referred to the consideration of the Privy Council; And in case any Act of Appropriation should be proposed in the Assembly before I am enabled to convey to you, their Lordships further opinion, it will I conceive be sufficient that the House should be informed that such restriction still continues in force; And you will observe upon reference to the Letter of the 16th April 1805 from the Clerk of the Council to this Department, that it was generally signified to the Parties interested that this restriction would be imposed.

……………………………………………………

I have &c LIVERPOOL.

LIVERPOOL TO CRAIG.2

Downing, Street 12th Sepr. 1810

Sir J. H. CRAIG Confidential

Sir,

Your dispatches have received all the ^ consideration to which they are entitled from the very important Information contained in them—And from the very clear and able manner in which you have discussed the different Topics connected with it. I proceed now to communicate to you the Sentiments of His Majesty’s Government, upon the Points which you have brought under their consideration, in the order in which they appear to arise.

It is much to be regretted that the Constitution established for the Province of Lower Canada, by the Act of the British Parliament of the year 1791. should appear to have so entirely disappointed the expectations of those who introduced it, & that the Conduct of the Assembly should afford such strong ground for concluding that the Constitution was not only repugnant to the established habits & prejudices of the Canadians, but likewise ill-calculated to produce those benefits to the English Settlers which they were led at the time to suppose would result from it.

But even supposing that His Majesty’s Government should feel the objections to the Constitution of Lower Canada, as established at present—and the Inconveniences which you describe to arise from it, as strongly as you do, yet it would be a question of great delicacy & difficulty, how far, under the present Circumstances it would be

1. See the Canadian Archives, Q. 97, pages 59 and 101. and Q. 99, pages 100 and 281. 2. From the copy in the Canadian Archives, Q. 97A, page 162.

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justifiable to interpose by the Authority of Parliament for the purpose of abolishing or even of altering it.

The Act of the 31s t of the King does not profess itself to be temporary or experimental— It contains in it no Clause, by which the Right of Parliament to alter the Constitution is specially reserved. It appears clearly from the 14th Clause,1 that it was the intention of Parliament that in ordinary cases at least, such alterations as Circumstances might render necessary should be made by the Assembly of the Province, in concurrence with the Council & Governor—And tho’ the Parliament of the United Kingdom under its right of general legislation for all parts of the Empire, must be considered as unquestionably possessing within itself, the inherent Right of altering the Constitution of any of its Colonies or Settlements, if it shall be found necessary for the safety or prosperity of the Empire, it would probably be thought by Parliament to require a very strong practical case, to justify the exercise of such a right in the case of Canada, after such an Act as that of 1791—And notwithstanding the Evil Spirit which has made its appearance, & is too evidently gaining ground m the Province notwithstanding the intemperate Proceedings of the Assembly on more than one occasion, His Majesty’s Government doubt very much whether upon the Information they at present possess, such a Special Case could at this time be laid before Parliament as would induce Parliament after having so recently established the Constitution, to interfere by its Authority for the purpose of altering it.

His Majesty’s Government are convinced that an Appeal on this Subject to ^Parliament, at the present time, would be highly inconvenient, and as it might even be attended with very mischievous consequences, They are clear that unless it should become absolutely & indispensably necessary, it ought to be avoided. This opinion receives additional weight from the consideration that such a diversity of sentiment appears to prevail amongst the best informed Persons in Canada as to the nature of the Reform which it would be most expedient to adopt, and as to the efficacy of the different Remedies if adopted.

In such a state of things, it would be in vain to calculate with any degree of confidence what might be the determination of Parliament—And the most fatal Effects might be produced in Canada from the ferment which would be excited by discussions in Parliament upon this Subject, if they were not followed by the most decisive and effectual Measures, & supported by such a general concurrence of opinion as might reasonably ensure a perseverance in them.

I come then to the next Question, What under the Circumstances above stated is the course most fitting to be adopted.

His Majesty’s Government have no difficulty in delivering it as their opinion that the most advisable course, if practicable would be to endeavour to obtain for Government by a frank exposition of the liberal & beneficial views of His Majesty, and by every Measure of conciliation—the support of the Assembly as at present constituted—His Majesty’s Government understand that the English Representatives in the Assembly, as far as their numbers extend, may be considered as generally favorably disposed towards Government—And they most earnestly recommend that every Endeavour should be used by personal communications, to conciliate the most moderate amongst the Canadians, & to reconcile them to the fair support of the Government against the violent designs of the disaffected and factious, as the best means of promoting the

1. This clause, after providing for the division of the provinces into disrticts and the appointment of returning officers enacts that ” such Division of the said Provinces into Districts, or Counties, oi Circles, and Towns or Townships, and such chosen by each of the said Districts, or Counties, or Circles, and Towns or Townships respectively, and also such Nomination and Appointment of Returning Officers in the same, shall be valid and effectual to all the Purposes of this Act, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province assented to by His Majesty, His Heirs or Successors.” (Constitutional Documents, 1759-1791, Shortt and Doughty, 1907. page 693

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Prosperity of the Province & of averting Measures to which Government may otherwise be indispensably compelled to resort.

If however every Effort of this nature should prove abortive they do not see that there exists any such necessary dependence of the Executive Government in Canada upon the House of Assembly, as need prevent your adopting consistently with the most strict & rigid adherence to every legal form—a firm, temperate but persevering resistance to all the Encroachments and usurpations of the Assembly.

It is provided by the 31st of the King that the Assembly should be called once every year,1 and it is impossible not to acknowledge that by such a Provision the Parliament intended to secure to the Colony the important Benefits which cannot fail to result from the Opportunity which is thereby afforded of collecting the Sentiments of the Community, & of providing by occasional legislation such Improvements as from time to time may be rendered necessary.

These are undoubtedly most important considerations which ought never to be lost sight of in the view which is to be taken of this Subject, but notwithstanding these considerations there does not exist any absolute necessity as in the case of the Parliament of the United Kingdom, that the Assembly should continue sitting, after it had been once convened.

It would indeed have been wholly inconsistent with the nature of a Colony, & its necessary connection with the Mother Country, that the Executive Government should have been placed in the same state of dependence upon a local Legislature, as most usefully subsists reciprocally between the Crown and the Parliament of the United Kingdom.

In Canada therefore, the Executive Government is not dependent upon the Assembly, either for the Supplies requisite for defraying the Expences of the Civil Government of the Province nor for the Military force essential for its security & protection.

The Military Force which is judged necessary for these purposes is provided from home, and I understand that the permanent Revenue of the Province, to-gether with what it has been usual to draw from the Military Chest is fully sufficient for all the Expences of the Civil Government.

The Executive Government therefore, in Canada, is in no way necessarily dependent upon the House of Assembly—All Laws to regulate the Commercial Intercourse between Canada & other parte of the World, may according to the Constitution, be passed by the Imperial Parliament.2

There may indeed be some Laws which have been passed by the Legislature of Lower Canada for a limited time, the Expiration of which, might prove inconvenient to the Government. With respect to the Alien Law,3 this observation applies only to a limited extent—for as long as the War continues, the Crown & its Representatives have a clear & undoubted Right by common Law, to send all alien Enemies out of the British Dominions, without the necessity of any Legislative Act for that purpose.

The Expiration of the Law for the safety of the King’s Government,4 by suspending the Habeas Corpus, might be some inconvenience, but it does not appear to be of a sufficient magnitude to counterbalance the advantages which would arise from the course of proceeding now proposed, compared with that of any other which has been hitherto suggested.

1. A tide XXVII. of the Constitutional Act of 1791, provided that the Legislative Council and Assembly “shall be called together Once at least every Twelve Calendar Months.” (Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 700.) 2. See Article XLVI. of the Constitutional Act of 1791, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 707. 3. See the Slatute 43 Geo. III. Cap. II. This Act was preceded by a temporary Act of 1794 which was renewed by successive parliaments until 1801. The Act of 1803 had been renewed yearly up to this time. 4. For this Act see page 215.

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With respect to Laws for internal Improvement, the want of them will be much to be regretted by the Government & by all who are interested in the welfare of the Province. The Inhabitants of the Province must feel, in the first instance, the inconvenience arising from the interruption of all Legislative Proceedings of this nature, and it is to be hoped that they will be led to ascribe it to its true cause—the factions andJntemperate Conduct of their own Representatives.

If this Sentiment once gains ground amongst the Inhabitants of the Province it may operate more powerfully than any other Measure ini bringing them to a due sense of their Interest & their duty.

His Majesty’s Government therefore altho’ they see much that is deeply to be regretted in this state of things, see no reason why the Executive Government should feel itself essentially embarassed in its course of Action upon the present occasion. If the Assembly on being convened annually, as by the Law is necessary, should adopt any violent or intemperate Proceedings, the Governor should prorogue or dissolve them.

That Prorogation or dissolution with whatever inconvenience it may be attended to the Province, must be ascribed to those whose misconduct rendered it necessary.

It will be of infinite importance that it should not be resorted to, till the cause of it should be evident to the whole Province—And the more active the friends of Government may be in endeavouring to bring forward useful, & therefore popular Measures—the more ground the Province in general will have to regret the Prorogation or dissolution of the Assembly. His Majesty’s Government earnestly recommend to you the Prorogation Tather than the dissolution of the Assembly, unless there is reason to believe from a change in the temper of the People, that a more favorable Assembly will be elected.

A Prorogation has equally the effect with a Dissolution of quashing every Proceeding of the Assembly—And it is not at all desirable that the Province should be kept in a continual state of ferment by Annual Elections, when by Law they are only necessary, once in four years.

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I have &c LIVERPOOL.

CRAIG TO RYLAND.1

Quebec, 9th November, 1810.

My dear Ryland,—

I wrote to you on the 6th, but a vile easterly wind having come on just as the Clifford was going to sail, I have the means of sending you another letter, which I am inclined to do, upon a subject which was communicated to me yesterday. I have seen the Memorial of the merchants trading to this country, which Mr. Atcheson was to present to Lord Liverpool in September.2 It is strong, though I am not at all disposed to say that it is more so than is required by the occasion. One copy only has been received here yet; Mr. McGillivray got it from his brother. It has been handed about

1. The text of this letter is taken from Christie’s History of the Late Province of Lower Canada, Vol. VI, page 166. 2. This memorial which is signed by the principal merchants interested in the Canadian trade after reviewing the condition of the colony, concludes:— ” Under these Circumstances and from the vital importance of the Colony to the Maritime Interests of Great Britain, your Memorialists appeal with great deference to your Lordship in the hope that His Majesty’s Government will take into their early consideration the political state of Lower Canada—that they will support His Excellency the Governor General in the measures he has been obliged to adopt; and that they will condescend to recommend to the favourable Consideration of the Imperial Legislature such Alterations in the Constitution of Lower Canada as will promote and secure the British Interests in that Province.” (Canadian Archives, Q. 113. page 216 )

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among the English, but is not yet public. Among them it is highly approved; but what will be the sensation when it comes to the knowledge of the opposite party, it is not difficult to foresee.

It has been communicated to me, that it is in contemplation, with the Committee of Merchants at this place and at Montreal, to present a petition to suspend the present constitution of this country, during the present war, and for five years after, during which period it should revert to its former Government by a Governor and Legislative Council. This exactly meets my idea; but in the sketch that has been as yet formed, they recommend an increase in the number of which the Legislative Council should be composed, and this increase, if carried to any extent, is what I think should be avoided. In the former case, the Council was to consist of not more than 23, or less than 17.1 I would not now have them more than 31, or at most 35. Several reasons weigh with me to be of this opinion; but the principal is, the extreme difficulty of filling it with proper people, beyond that extent, at least, without giving a preponderance to some “particular interest, which ought certainly to be avoided. A reasonable proportion of Canadians must also be of it, perhaps a third at least. Now, where shall we find more than a dozen of that class, who will not exert their utmost endeavours to clog the proceedings with difficulties. They may, indeed be over-ruled; but they will then clamour, and have recourse again to their parish orators to keep up the ferment. I do not find that in the last Legislative Council there was any President. Surely there should be one at the nomination of the Governor, either each Session, or during pleasure. The latter would give more dignity.

I think of calling Parliament together in December, letting them choose their Speaker, and then proroguing them immediately.2 However, I have not yet finally settled it. It will ensure beyond any controversy, the continuance of two temporary acts in existence, which expire on the first of January, or at the termination of the next Session, and I think it may be advisable to have it over before I receive any instructions, or before we get information of any measures which may be likely to be adopted at home, the consequence of which I can then consider at leisure, without being hampered by the necessity of calling them perhaps immediately, for you know they must at any rate be assembled before the 23rd February.

I have not yet made up my mind as to the question of simply proroguing them without saying anything, or telling them that having reported the extraordinary events that have taken place, I wait Her Majesty’s instructions. The former will be more expressive of alienation from them, the latter will be a little more conciliatory. Neither will prevent violent clamour and determined abuse.

Still without a line from you, although Kempt received a present from yon yesterday, which came by the Cumberland. Some accident has certainly happened t© the Argo. Adieu.

Yours, J. H. CRAIG.

P.S. The original of this goes by the Clifford, this by the Wilmot under the charge of Major Hëathcote. I have finally determined upon the measure of calling Parliament in December, the Proclamation will be out on Thursday.

1. See the Quebec Act, Constitutional Documents, 1759-1791 Shortt and Doughty, 1907. page 404. 2. The session opened December 12th, 1810, and continued until March 21st, 1811.

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OPINION OF CHIEF JUSTICE MONK ON THE POWER OF ERECTING PARISHES IN LOWER CANADA.1

MONTREAL, 10th August, 1810.

Sir,—

I have the honor to submit to Your Excellency my opinion upon the three several questions you have done me the honor to command.

In this opinion I have had occasion to state part of His Majesty’s Instructions in the year, 1775,2 to Governor Carlton, at the period of the passing of the Quebec Act; and beg leave to say they were made public and printed, by order of the House of Commons at the period of passing the Canada Act.

Question. 1.—In whom is the power of erecting Protestant Parishes in Canada, and what are the legal means by which such parishes may be erected?

Answer.—This power I conceive to be legally vested in His Majesty. And I am induced to believe, from a necessary implication upon the 38th and 39th sections of the statute of the 31 of the King, chap. 31,3 and the powers granted to Your Excellency by His Majesty’s Royal Letters Patent under the Great Seal of England, is conferred to Your Excellency, to be exercised by Letters Patent under the Great Seal of the Province upon advice of the Executive Council.

Question 2.—Is there a distinction with respect to the power of erecting them between Protestant and Roman Catholic parishes ; and if there is, in whom does the power rest of erecting the latter?

Answer.—The only distinction that in appearance of law can be offered in the case of Roman Catholic parishes, arises out of an ordinance passed by the Governor and Legislative Council of this Province, in the 31st year of His Majesty’s reign, intituled ” An Act or ordinance concerning the building and repairing of Churches, parsonage houses and Church yards.”4

If this ordinance should be considered as a part of the laws of this Province, it would most assuredly create a very great distinction between the erecting a Protestant and a Roman Catholic parish. To create a parish of the first description, there requires only the advice of His Majesty’s Executive Council, previous to Your Excellency’s exercise of the Royal prerogative, by Letters Patent, under the great seal of the Province. But to erect a parish of the latter description, a course of proceeding must be had, through the interposition of ” the bishop or superintendent of the Romish Churches for the time being,” and this may be, in a considerable degree, considered as a limitation to the Royal prerogative, and the legal supremacy of the crown, over all matters spiritual, ecclesiastical and temporal, within this part of His Majesty’s Dominions.

This point of Your Excellency’s reference, and the great importance of a legal question in His Majesty’s Courts, upon the legality or nullity of the above ordinance, impresses very considerable solicitude, in treating a subject of so much delicacy.

At passing-the Quebec Act, a restriction was created by the 15th Section. “That no ordinance touching religion shall be of any force or effect until the same shall have received His Majesty’s approbation.”

And the Royal instructions to the then Governor, respecting the due execution of the said Act, were made in the very terms of the above section; to which was added a general direction, in the following words : ” That all such ordinances “— to he made by the Governor with the assent of the Legislative Council— “be transmitted by you within six months after their passing, or sooner, if opportunity offers,

1. From the copy of the opinion published in Christie’s History of the Late Province of Lower Canada, Vol. VI, page 112 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 419. 3. Ibid, page 704, and also the commission to Dorchester, page 8. 4. See the Ordinance 31 Geo. III , Cap. VI. 5. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 405.

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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 abstracted in the margins, and accompanied with very full and particular observations upon each of them, that is to say, whether the same is introductive to a new law, or does repeal a law then before in being; and you are also to transmit in the fullest manner the reasons and occasions for enacting such ordinances, together with fair copies of the journals of the proceedings of the Council, which you are to require from the clerk of the said Council.”1

It is scarcely possible to suppose either that His Excellency the then Governor, did not clearly comprehend the extent of the legal operation the ordinance was intended to produce; and that it most essentially affected ecclesiastical and temporal rights, and was a law within the provisions of the 15th Section of the Quebec Act: nor is it to be supposed, that His Excellency, (assisted by a Chief Justice of the distinguished legal abilities of the late Mr. Smith,2) could have failed in due obedience to the Royal Instructions above stated, to have amply exposed the very great alterations that ordinance was in its operation to produce upon the actual laws of the Province, His Majesty’s just and essential supremacy over the ecclesiastical interest of His Majesty’s Government, and peculiarly those in which the Roman Catholic church was to be called into a participation with the crown, even by a restrictive power, over the execution of the laws of the Realm. And I am the more impressed with this belief, when I consider other highly important parts of the Royal Instructions “upon matters of ecclesiastical concern,”3 that most emphatically enjoined upon the Governor, a strict exertion of the King’s supremacy, to the exclusion of every power of the Church of Rome, by any of its ministers in this Province, not absolutely requisite for the exercise of a tolerated worship, which was alone .declared to be the boundary of political or legal claims, by His Majesty’s Roman Catholic subjects.

I beg leave further to observe that the ordinance above cited could not in any instance t e carried into effect, but through the sanction of the Governor; or persons by him legally delegated for that purpose. And I must presume, upon a measure of so much importance, that His Excellency neither personally nor by any delegated authority, (until the Royal approbation of the ordinance had been previously obtained) granted his sanction to the execution of a law, that in my humble opinion was made, if not in direct terms, yet in its consequences, repugnant to Acts of Parliament and the Royal Instructions* Nor do I confine my grounds of belief solely to the circumstances above stated. A provincial statute passed in 34th year of His Majesty’s reign ” for the division of the Province of Lower Canada for amending the Judicature thereof, and for repealing certain laws therein mentioned.”4

In the 8th Section of that Act,5 it is expressly declared that the ordinance above cited, of the 31 of His Majesty, chap. 6, ” for building and repairing churches, &c.,” shall not be by the said statute revoked or repealed; which carries at least, a legal implication of Legislative approbation; for it is to be observed, that this Provincial Statute was reserved in the terms of the Canada Act, chap. 31, sec. 22, for His Majesty’s approbation,6 and the Royal approbation was granted and publicly announced, in the terms of the law, by the Governor, Lord Dorchester’s proclamation, and messages to the two branches of the Provincial Parliament. Nor have the argu-

* 25 and 26 Hen. 8: 1 Eliz. ch. I ; 7 and 8 Will. 3, chap. 22; 14 Geo. 3 ch. 83, S. 15, 18; the Royal Instructions to Gov. Carleton, 3rd January, 1775.7

1. Ibid, page 422. 2. See page 14. 3. See Articles 20 and 21 of the Instructions to Governor Carleton in 1775. Constitutional, Documents, 1759-1791, Shortt and Doughty, 1907, page 425. 4. See page 125. This text as given by Mr. Christie has been followed in this sentence. 5. See page 128. 6. See page 125, note 1. 7. This note ia in the text as printed by Mr. Christie; it is evidently from the original opinion of Mr. Monk.

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ments for His Majesty’s presumed sanction to the above ordinance rested here; the Governor or Lieut Governor, delegated His Majesty’s power, vested in the Governor, to commissioners to carry the ordinance into effect; and proceedings have been had Hiereon, and ratified by a course of legal controversy in His Majesty’s Court’s, to effectuate the powers granted to the “Roman Catholic Bishop, or superintendent of the Romish Churches ” by the said ordinances.*

Whatever may be my opinion upon the legality or the nullity of the ordinance above stated, I cannot forbear to represent to Your Excellency that many endeavors have been made to draw the question into legal discussion and judicial determination; and that on all such occasions, I have perceived those attempts to have created very considerable agitation and reasonings, tending to excite the public mind in a manner highly prejudicial to the Royal prerogative, and the Constitutional Government of this Colony. Nor cam I entertain a doubt that any thing less than His Majesty’s direct and express interposition upon the subject, would prevent the prejudicial agitation which may in my mind, be expected through the medium of various sources, that from the late disturbed state of the Colony, Your Excellency must but too clearly comprehend. And I beg leave to add, that Your Excellency must fully perceive the serious import of a legal controversy, so novel in His Majesty’s Colonial Courts of Law; and upon a question that may involve so extensive and so animated an interest, in support of an Act of the Provincial Legislature, that by Roman Catholic subjects may be represented as indispensably requisite to the powers of “their Bishop,” and the free exercise of their religion, and that has subsisted and been acted upon, under circumstances so peculiar, and for so long a period of time; and the very great import of a colonial judicial determination—if such should be made— that this Act of the Governor and Legislative Council, so circumstanced, was a nullity in law.

Upon the latter part of Your Excellency’s second question, I have to submit to Your Excellency, that under the best consideration I have as yet been able to bestow OD the subject, I am induced to think that His Majesty’s supremacy in all matters ecclesiastical and spiritual—and of which the erecting of parishes I consider to be one— has not been revoked by the ordinances of the Governor and Legislative Council above stated, or in other words that that ordinance legally could not abrogate, limit or restrain, the highly important rights of the Crown, on the subject it most evidently was penned to produce; consequently, that the prerogative of the Crown to create Roman Catholic parishes, remains with His Majesty, to be legally exercised in the same manner as in respect to Protestant parishes.

Question 3.—”In the case of a Roman Catholic parish legally erected by the

* Vide Case in Appeal of Lavergne vs. Bertrand, Curé, et alia.1

1. The case of Lavergne vs. Bertrand, arose out of the following circumstances :—The Parish of Saint Antoine was erected by the King of Prance in 1722, and in 1800 was divided into the Parishes of Saint Antoine and Saint Leon le Grand under the Provisions of the Provincial Ordinance of 1791. (See Article VIII. of the Judicature Act, 129). Mr. Lavergne resided in the new Parish of Saint Leon and was asked by the Curé, Père Bertrand, to furnish the pain béni for the new church. Mr. Lavergne refused to do this claiming that the Parish of Saint Leon had not been legally constituted and an action was accordingly commenced to compel the defendant to furnish the pain béni to Mr. Lavergne as Curé of Saint Leon. The Court of King’s Bench for the District of Three Kivers decided in favour of the Curé and held that the parish had been properly erected. Mr. Lavergne appealed from this judgment and secured an order adding the Attorney Geaeral, representing the Crown, as an intervening party The Moyens d’intervention drafted by the Attorney General contain his arguments against the validity of the Ordinance of 1791. They were briefly that it was repugnant to 26 Henry VIII, c. I. and 1 Elizabeth, c. I . ; that it concerned religion and did not receive the Assent of the Crown; that it imposes a tax on the inhabitants of the several parishes of the Province and that it infringed on the rights of the Crown and was therefore ultra vires of the Provincial Legislature. The Attorney General did not discuss the question of the legal validity given this ordinance by the subseouent sanction of the Judicature Act in which express reference was made to its provisions. Por the Attorney General’s argument see Christie’s History of Lower Canada, Vol. VI, page 88. It would seem that an agreement was reached between the parties through the intervention of President Dunn and that the Court of Appeal was not called upon to decide the issue

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ordinance of 1722,1 and the desire of inhabitants of contiguous concessions to be annexed, and become part of such parish, what is the legal course to be followed to effect such annexation ? ”

Answer.—I perceive no sufficient legal distinctions to be taken between erecting a new parish, or enlarging one at present established under the ordinance of 1722, to vary the course of proceeding. I am therefore of opinion, that the same power should fee exercised, and the same course should be taken to accomplish the enlargement suggested, as would be exercised in creating a new Roman Catholic parish.

All which is most respectfully submitted by Your Excellency’s

Most obedient humble servant, J. MONK.

To His Excellency Sir J. H. Craig, KB., Governor in Chief, &c, &c.

PROCEEDINGS RELATING TO THE DISALLOWANCE OF THE ELECTION OF JAMES WILSON AND JOHN ROBLIN, UPPER CANADA.

JOURNAL OF THE HOUSE OF ASSEMBLY.2

Tuesday, 6th February, 1810.

* * * * * *

Mr. Gough moved, seconded by Mr. Secord, that the Petition of the Inhabitants of the Counties of Lennox and Addington and Prince Edward be now read.

The Petition was read accordingly, and is as follows.

To the Honorable the Representatives of the Province of Upper Canada, in the House of Commons assembled.

The Petition of the undersigned inhabitants, Freeholders of the United Counties of Lennox and Addington, and the County of Prince Edward, (except Ameliasburgh) in the Midland District.

Humbly Showeth,

That John Roblin and James Wilson, two of the Members returned as Representatives for the said Counties, have not teen duly and lawfully elected and chosen, inasmuch as the said John Roblin and James Wilson, at the time of their being returned as Members of the House of Assembly for this Province, then were, and for many years before, and still are public Preachers and Teachers in that Society or Community of people called Methodists.3 Your Petitioners therefore humbly represent that the said John Roblin and James Wilson are not eligible to seats, or to be returned as Members of the House of Assembly of this Province; and pray that the said John Roblin and James Wilson may not be permitted to hold seats in Your Honorable House, and that the same may be vacated.

And Your Petitioners, as in duty bound, will ever pray.

Adolphustown, 25th Jan’y, 1810.

(Signed) John Ferguson, Ebenezer Washburn, Reuben Bedell, Simeon Washburn, and Thirteen others.

* * * * * * *

1. See the Edits, Ordonnances Royaux, Declarations et Arrêts du Conseil d’Etat du Roi, edition of 1854, Vol. I, page 443. 2. From the certified type-written copy of the Journal of the House of Assembly of Upper-Canada for the year 1810 in the Canadian Archives. 3. Section XXI. of the Constitutional Act of 1791 declared Ministers, Priests, Ecclesiastics, or TeacheTs under any Profession of Religious Paith or Worship incapable of being elected to the House of Assembly. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 699.

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Monday, 12th February, 1810.

Prayers were read.

Agreeably to the Order of the Day the House resolved itself into a Committee, to go into the merits of the Petition of the Freeholders of the Counties of Lennox and Addington, and the County of Prince Edward, against the eligibility of Messrs. Roblin and Wilson holding their seats in the House.

Mr. Speaker left the Chair.

Mr. Lewis was called to the Chair of the Committee.

Mr. Speaker resumed the Chair.

And Mr. Lewis reported that the Committee had come to a resolution, which he was directed by the Committee to report, whenever the House should be pleased to receive the same.

Ordered, That the Report be now received.

The Report was accordingly received and accepted, and is as follows, viz. Resolved, That it appears to this Committee that there is sufficient grounds in the Petition of the Freeholders of the Counties of Lennox and Addington, and the County of Prince Edward, against John Roblin and James Wilson, to proceed to trial; and that the House do proceed to the trial of each separately.

* * * * * * *

Monday, 26th February, 1810.

* * * * * * *

Agreeably to the Order of the Day, the House went into the consideration of the Petition of the Inhabitants Freeholders of the Incorporated Counties of Lennox and Addington, and the County of Prince Edward (except the Town of Ameliasburgh), complaining that James Wilson, Esquire, the sitting Member representing the County of Prince Edward, (except Ameliasburgh) was not duly and lawfully elected and chosen.

In conformity to an Act passed in the First Session of the Fourth Provincial Parliament, entitled “An Act to regulate the Trial of Controverted Elections”1 the Speaker and the Members present were sworn by the Clerk at the Table.

Members present, The Speaker,

Thomas B. Gough, John McGregor, James McNabb, Crowell Wilson, Thomas Frazer, Joseph Willcocks, Henry Marcle, Benajah Mallory, Stephen Burritt, John Roblin, Matthew Elliott, Philip Sovereign, J. B. Baby, Thomas Dorland, Peter Howard, Levi Lewis, Allan McLean, David Secord, John Wilson, D. M. G. Rogers,

The Clerk then read at the Table the Petition of the Inhabitants, Freeholders of the United Counties of Lennox and Addington, and the County of Prince Edward (except Ameliasburgh.)

The Solicitor General came to the Bar as Counsel for James Wilson, Esquire, the sitting Member.

A place was allotted for him by the House within the Bar, but not to be a precedent hereafter,

1. See page 316.

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John McDonell, Esquire, Barrister at Law, of Counsel for the Petitioners of the Counties of Lennox, Addington and Prince Edward, complaining that James Wilson, Esquire, the sitting Member, was not duly and lawfully elected and chosen, came to the Bar.

A place was allotted for him by the House within the Bar; but not to be a precedent in the future.

* * * * * * *

Saturday, 3d March, 1810.

* * * * * * *

Mr. Rogers moved, seconded by Mr. Gough, that the House be cleared of strangers.1

The House was accordingly cleared of strangers.

The Door being opened:—

Mr. Burritt then moved, seconded by Capt. Elliott, that the House do now enter into the consideration of the Contested Election of James Wilson Esquire.

The House accordingly proceeded oni the merits of the Petition of the Freeholders of the County of Prince Edward (except Ameliasburgh) complaining of the undue return of James Wilson, Esquire, to represent that County in the House of Assembly.

The Solicitor General, of Counsel for James Wilson, Esq., the sitting Member, by permission of the House proceeded upon the defence in behalf of James Wilson Esquire.

To whom John MacDonell Esquire, Barrister at Law, by permission of the House replied.

After Counsel having been heard in support of the allegations set forth in the petition of the Freeholders of the County of Prince Edward, and that on the part of the Sitting Member, they were ordered to retire within the Bar.

The House then examined Mr. McNabb, a Member of this House, touching the merits of the said petition.

Mr. Rogers then moved, seconded by Mr. Gough, that John Dettor be examined by the House.

Which was ordered accordingly.

John Dettor was then called to the Bar and sworn.

Mr. Gough, seconded by Mr. McGregor, moved that the House do now resolve that it appears to this House that the Petitioners complaining of the undue election and return of James Wilson Esquire, the Sitting Member representing the County of Prince Edward, j(except Ameliasburgh) have proved the allegations of their petition; it being the opinion of this House that he comes within the contemplation of the twenty-first clause of an Act of the Parliament of Great Britain, passed in the thirty-first year of His Majesty’s Reign, entitled, “An Act to repeal certain parts of an Act, passed in the fourteenth year of His Majesty’s Reign entitled ‘ an Act to make further provision for the Government of the Province of Quebec, in North America, and to make further provision for the Government of the said Province,”2 and has therefore vacated his seat.

On Mr. Speaker having put the question, a division thereupon took place.

The names being called for they were taken down and are as follows.

1. See Clause III. of the Act of 1805, page 317. 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 699.

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Yeas.

MESSRS McNABB BURRITT FRAZER MARCLE ELLIOTT BABY GOUGH McLEAN C. WILSON SECORD McGREGOR

Nays.

MESSRS. J. WILSON HOWARD WILLCOCKS ROGERS ROBLIN LEWIS

Carried in the affirmative by a majority of five. The House accordingly resolved the same.

* * * * * * *

Wednesday, 7th March, 1810.

* * * * * * *

Mr. Gough, seconded by Mr. McGregor, moved, that it appears to this House that the Petition of the United Counties of Lennox and Addington, complaining of the undue election and return of John Roblin, Esquire, one of the Sitting Members, representing the said Counties, have fully proved the allegations of their petition, and that he is ineligible to a seat in this House.1

On Mr. Speaker having put the question a division) thereupon took place. The names being called for, they were taken down, and are as follows.

Yeas.

MESSRS BURRITT. MARCLE McGREGOR GOUGH BABY McLEAN McNABB SECORD C. WILSON SOVEREIGN ELLIOTT FRAZER

Nays

MESSRS J. WILSON HOWARD LEWIS ROGERS WILLCOCKS MALLORY

Carried in the affirmative by a majority of six; and the seat of John Roblin Esquire is accordingly become vacant.

1. The formal proceedings in the hearing of the petition against the election of Mr. Roblin were of the same character as in the case of Mr. Wilson and have been omitted.

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AN ACT DISQUALIFYING JUDGES FROM SITTING IN THE HOUSE OF ASSEMBLY OF LOWER CANADA.1

ANNO QUINQUAGESIMO PRIMO GEORGII III.

CAP. IV.

AN ACT for declaring Judges to be disabled and disqualifying them, from being elected, or from Sitting and Voting in the House of Assembly.

(21st March, 1811.)

WHEREAS it is expedient to make effectual provision for excluding Judges of His Majesty’s Courts of King’s Bench within this Province from being elected or sitting and voting in the House of Assembly of this Province, Be it therefore enacted by the King’s most Excellent Majesty, by and with the advice amd consent of the Legislative Council and Assembly of the Province of Lower Canada, constituted and assembled by virtue of and under the authority of An Act of the Parliament of Great Britain passed in the thirty first year of His Majesty’s Reign, 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 ” And it is hereby enacted by the authority of the same that from and after the passing of this act, no person who shall be a Judge of either of His Majesty’s Courts of King’s Bench within this Province, shall be capable of being elected or of sitting, or voting, as a Member of Assembly in any Provincial Parliament.

RESOLUTIONS OF THE HOUSE OF ASSEMBLY ON THE IMPRISONMENT OF PIERRE BEDARD.2

JOURNALS OF THE HOUSE OF ASSEMBLY, LOWER CANADA.

Monday, 24th December, 1810.

* * * * * * *

The order of the day, for the House to resolve itself into a Committee of the whole House, on the Message from His Excellency the Governor in Chief to this House, the thirteenth instant, intimating that Pierre Bedard, Esquire, elected to serve as a Member for the County of Surrey, was apprehended and committed for treasonable practices,3 being read;

The House resolved itself into the said Committee. Mr. Speaker left the Chair. Mr. Debartzch took the Chair of the Committee. Mr. Speaker resumed the Chair;

And Mr. Debartzch reported, that the Committee had come to several resolutions, which he was directed to submit to the House, whenever it shall be pleased to receive the same.

ORDERED, that the Report be now received.

And he read the Report in his place, and afterwards delivered it in at the Table, where the Resolutions were again read by the Clerk.

1. From the Provincial Statutes of Lower-Canada, 1811. 2. From the Journals of the House of Assembly of Lower-Canada, 1810-11. 3. For the Address of Sir James Craig see the Journals of the House of Assembly, 1810-11, page 36.

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The said Resolutions are as folioweth: videlicet;

RESOLVED, that it is the opinions of this Committee, that Pierre Bedard, Esquire, was one of the Representatives for the Lower Town of Quebec, in the last Provincial Parliament, at the time of its prorogation, on the twenty-sixth February last.

RESOLVED, that it is the opinion of this Committee, that the same Pierre Bedard, Esquire, was one of the Members of the last Parliament, as Representative of the Lower Town of Quebec, at the time of its dissolution, on the first of March last.

RESOLVED, that it is the opinion of this Committee, that by a Warrant1 issued from the Executive Council of this Province, signed by three Members of the said Executive Council, the nineteenth day of March last, by virtue of the temporary Act, intituled, “An Act for the better preservation of His “Majesty’s Government, as by law happily established in this Province,2 the said Pierre Bedard, Esquire, was, on the said nineteenth day of March, apprehended and committed for treasonable practices; and has always been, and still continues to be, detained in the Common Gaol of the District of Quebec, by virtue of the said Warrant.

RESOLVED, that it is the opinion of this Committee, that the same Pierre Bedard, Esquire, was elected on) the twenty-seventh of March last, and returned as one of the Knights Representatives for the County of Surrey, to serve in the present Provincial Parliament.

RESOLVED, that it is the opinion of this Committee, that the same Pierre Bedard, Esquire, is now one of the Members of this House for the present Parliament.

RESOLVED, that it is the opinion of this Committee, that the simple arrest and detention of any one of His Majesty’s Subjects, under and by virtue of the authority of the temporary Act of the Provincial Parliament, intituled, “An Act for the better preservation of His Majesty’s Government, as by ” law happily established in this Province,” does not bring him under the description of those who are declared incapable of being elected to serve in the House of Assembly, by the 28d Clause of the Act of the Parliament of Great Britain of the 31st year of His present Majesty, Chap. 31.3

RESOLVED, that it is the opinion of this Committee, that the provisions of the temporary Act, intituled, ” An Act for the better preservation of His Majesty’s Government, as by law happily established in this Province,” guarantees to the said Pierre Bedard, Esquire, the right of sitting in this House.

RESOLVED, that it is the opinion of this Committee, that an Humble Address be presented to His Excellency the Governor in Chief, to acquaint His Excellency that this House have taken into serious consideration His Excellency’s Message of the thirteenth instant, and have accordingly passed several Resolutions, which they conceive to be their duty to submit to His Excellency ; and that it is the wish, of this House, should His Excellency not deem it proper to lay before them any further communication on this

1. See page 379. 2. See page 215. 3. Clause 23 of the Constitutional Act of 1701 disqualified from election to the Assembly all persons ” who shall have been attainted for Treason or Pelony in any Court of Law within any of His Majesty’s Dominions, or who shall be within any Description of Persons disqualified by any Act of the Legislative Council and Assembly of the Province, assented to by His Majesty, His Heirs or Successors.”

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subject, that Pierre Bedard, Esquire, Knight Representative for the County of Surrey, may take his seat in this House.1

REPORT OF THE EXECUTIVE COUNCIL ON THE IMPRISONMENT OF PIERRE BEDARD.2

Thursday, 4th April 1811.

At the Council Chamber in the Castle of St. Lewis

Present

His Excellency General Sir James Henry Craig K.B. Governor in Chief The Honble The Chief Justice Thomas Dunn Francois Baby John Young Jenkin Williams & James Irvine Esqrs

His Excellency addressed the Board in the following manner—

Gentlemen,

In calling your attention to the Imprisonment of Mr Bedard, I am desirous of taking the Opportunity of offering a brief recapitulation of the several Circumstances that have attended it, with a View of leaving upon the proceedings of this Board, a Record of the Motives by which I have been actuated in the transaction.—

It is not necessary that I should advert to the occasion of this Gentlemen’s confinement, it must be perfectly in your recollection8; and I believe no Circumstance has since taken place to east a doubt on the expediency of the Measure. In the unanimity of the opinions by which it was effected, I felt confirmed in that which I had already formed, as to the necessity of Steps being immediately adopted, to check the Mischief with which we were threatened, for it must always be kept in view, that Mr Bedard’s detention was a Measure of precaution not of punishment to which he could be subjected only by. a decision of the Laws of his Country.—

Upon this principle, the other persons4 who were imprisoned at the same time with Mr Bedard, having expressed their Conviction of their error, I did not hesitate to consider their having done so as a sufficient Security for their not reverting to the same Conduct, and it appearing that the healths of both of them were in danger of being affecte’d by their Confinement, I was from that Circumstance the more readily induced to propose, and you concurred in their being released, upon giving Security for their forth coming, had it been judged necessary to call upon them.

Upon the same principle I have no doubt you would as readily have agreed with me in as early a liberation of M1 Bedard, but having laid before you a Petition which that Gentleman had presented to me,5 it did not appear to anyo ne of us to be

1. These resolutions were adopted by the House and a Committee was appointed to lay them before the Governor. Por a discussion of the political situation created by this incident see Craig to Liverpool, March 28th, 1811. The Canadian Archives, Q. 114, page 12. 2. From the Minutes of the Executive Council, State Book G, Lawer-Canada, page 3. 3. See page 379. note 1, and also the Minutes of the Executive Council for March 19th, 1810, State Book F, Lower Canada, page 140. 4. Jean Thomas Taschereau and Prançois Blanehet, both of Quebec were arrested at the same time as Bedard. On June 23rd. 1810, an order was given for the release of Blanehet on account of the condition of his health. Por the same reason, Taschereau was released on July 28th. In each case the prisoners were required to give surety for their good behaviour to the extent of £500. See State Book P, Lower Canada, page 248 and 250. 5. Por an account of the negotiations relating to the release of Bedard see Craig to Ryland, September 10, 1810, quoted in Christie’s History of the late Province of Lower Canada, Volume VI, page 154.

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of a nature to hold out the same expectation of his abstaining from the Conduct against which precaution was held to be necessary. As 1 did not think it proper toreturn any Answer to his Petition, my not doing so produced a sort of communication between him and Mr Foy,1 to which it does not seem necessary to advert any further, than as regards the mode in which it concluded. It appearing to me that he was desirous of knowing what was expected from him, I sent for his Brother a Curé who I understood was in Town, and in the presence of one of the Members of the Board now present, I authorized him to acquaint his Brother with the motives that had induced his Confinement, and that looking only to the Security of His Majesty’s (government, and the Public tranquility, I had no wish that it should continue one moment beyond what was required by those objects, that the moment he expressed a sense of his error in what he had done, I should consider that as a sufficient Security for his not returning to the same dangerous course, and would immediately propose his enlargement to you. His reply thro’ the same Channel was couched in íespectful terms, but declined admitting an error of which he did not feel that he had been guilty. Mr Bedard having been re-elected into the Provincial Parliament, it was not difficult to foresee that his imprisonment would become a subject of discussion when that Assembly met, it therefore became also a subject of serious consideration on my part, the result of which was, a determination to pursue a line of Conduct, to the particulars of which it is not necessary here to advert, as it would be only anticipating an Account of them which I shall have occasion shortly to give, and in which I can only use the very words which I should otherwise now employ. You are all aware of the part taken by the House of Assembly on the occasion, I had already been furnished with a Copy of the Resolutions2 into which they had entered, and was in the daily expectation of their being presented, when I received an Application from one of the leading Members, that I would admit him to a Conference; this was the Elder Mr Papineau, Member for Montreal, and the subject was these veiy Resolutions. It would be irrelevant to my present object to refer to our Conversation, any otherwise than as it drew from me my final determination, and the motives on which that determination was founded; which I gave to him in the following Words, no consideration Sir, shall induce me to consent to the liberation of Mr Bedard at the instance of the House of Assembly, either as matter of Right, or of favor, nor will I now consent to his being enlarged on any terms, during the sitting of the present Session ; and I will not hesitate to inform you of the motives by which I have been induced to come to this Resolution! ; I know that the general language of the Members has encouraged the Idea which universally prevails, that the House of Assembly will release Mr Bedard, an Idea so firmly established that it may be said to be universal in the Province; the time is therefore come, when I feel that the Security, as well as the dignity of the King’s Government, imperiously require that the People should be made to understand the true limits of the rights of the respective parts of the Govemmentt, and that it is not that of the House of Assembly to Rule the Country.

In rendering this account of my conversation with Mr Papineau, in so far as relates to the subject in question, I have laid before this Board, the true grounds on which I have hitherto acted in it, to which I may add, that I have thought it necessary further to abstain from taking any Measures towards the enlargement of Mr Bedard, till the several Members should have reached their respective homes,3 when it should appear to be impossible by any misrepresentation of theirs, for them to ascribe it to the interference of the Assembly.

These objects being now perfectly accomplished, and a pretty general tranquility

1. Mr. Lewis Poy held the position of Assistant Secretary to the Governor-in-Chief and was acting as Chief Secretary during the absence of Mr. Ryland. 2. See page 420. 3. The Assembly was prorogued on March 21st, 1811.

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reigning in the Province, I submit to your consideration, whether the time be not arrived, at which it is proper to put an End to the Confinement of Mr Bedard.

After deliberation it was unanimously agreed by the Board that Mr Bedard should be enlarged, and that the following Warrant1 should be issued for his release. And also that the Bonds given by Frs Blanchet, I. T, Taschereau2 and Charles Lefrancois, for their appearance at the City of Quebec to answer to the charges for which they stood confined, and to all and every Information and Indictment which by reason of the Matters for which they so stood confined or any of them should on the part of Our Sovereign Lord the King be exhibited against them whenever they should be called upon & required so to do, and in1 the mean time to keep the Peace and be of good behaviour to all His Majesty’s liege Subjects should be Cancelled.

OPINION OF THE LAW OFFICERS OF THE CROWN ON THE RIGHT OF PRESENTATION TO ROMAN CATHOLIC LIVINGS, LOWER CANADA.3

May it please Your Lordship.

We are honored with Your Lordship’s Commands of the 16th of May 1811 transmitting the Dispatches received from Sir Robert Milnes, Lieutenant Governor, and Sir James Craig, Governor of the Province of Lower Canada, with their respective Inclosures, together with several other Documents, in reference to the subjects of those Dispatches.

And Your Lordship is pleased to request that we would take the same into our immediate consideration, and report to Your Lordship our opinion upon the points arising out of them.

First, “whether the Right of Presentation to vacant Roman Catholic Livings, ini the Province of Lower Canada be in the Crown”?

And secondly, ” whether the Crown has not the Right of Property in the Estates of the St. Sulpicians commonly called the Seminary Estates of Montreal?

In obedience to Your Lordships directions, we have considered the several Papers submitted to us, and cannot but observe with regret that questions of so much importance should have been left so long in a state of doubt and uncertainty, and that for so many years, a sort of possessory Title should seem to have been tolerated, which if not consistent with the legal right, it may now be difficult from long continuance to disturb.—

Confining ourselves however to the mere Question of Right, we are of opinion on the first point, that so much of the Patronage of Roman Catholic Benefices, as was exercised by the Bishop of Quebec, under the French Government has of Right devolved to His Majesty.

In forming this opinion, we have endeavoured to trace the nature of that Patronage, and it’s dependence on the Sovereign Power, to which His Majesty has succeeded by right of Conquest and by Treaty.

It appears from the Acts and Edicts of the French Government relative to Canada, that the Patronage of Cures in general was left to the Bishop.

But out of this general condition was excepted by Royal Edict the Patronage of Founders of Churches (a) and the right of nominating to particular Benefices which were vested ini certain Communities.

Such Patronage may still belong to Individuals, who retain a Capacity to exercise it under the Capitulation and Treaty.

(a) Edict 1667 recited in the Edict of 1669 Vol. 1, Pa 293.

1. For the warrant see State Book Q, Lower Canada, page 10. 2. See page 422, note 4. 3. From the copy in the Canadian Archives, Q. 115, page 176.

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We notice the condition of such Benefices, as a distinction arising out of the general Question, and also as shewing that the Right of Patronage under the French Government, was dependent in some measure on the Sovereign, and cannot be considered to have been vested in the Bishop by virtue of Rights or Powers derived solely from the Pope. If however the Right be supposed to have originated from the Pope, we think the same consequence would result from the Extinction of the Papal Authority in a British Province.— For we are of opinion that Rights of this Nature from whichever source derived, must in Law and of necessity be held to devolve on His Britannic Majesty, as the legal successor to all Rights of Supremacy as well as juf Sovereignty, when the Papal Authority together with the Episcopal Office became extinct at the conquest by the Capitulation (a) and Treaty (b) and the Statute 1 Eliz. Cap 1 s. 16. as specially recognized in the Act (c) for the Government of Canada.

We think therefore, that so much of the Patronage of Roman Catholic Benefices as was exercised by the Bishop under the French Government is now vested in His Majesty.

…………………………………………………………..

We have the Honor to be My Lord, Your Lordship’s most obedient humble servants

CHR. ROBINSON V. GIBBS THOs . PLUMER.

Doctors Commons July 3d, 1811. The Earl of Liverpool &c. &c. &c. Endorsed: Report of the Law Officers 3a. July 1811 On the assumption of the patronage of the Romish Church of Quebec &c. &c N°. 294.

PROCEEDINGS RELATIVE TO THE RIGHT OF THE LEGISLATIVE ASSEMBLY OF UPPER CANADA TO COMMIT TO JALL FOR BREACH OF PRIVILEGE.1

JOURNALS OF THE LEGISLATIVE COUNCIL.

Monday March 2nd 1812

A Deputation from the House of Assembly being announced, it was admitted and brought up and delivered at the Bar of this House a Message in the following words—

“Mr . Speaker,”

” We are directed by the House of Assembly, to inform The Honorable Legislative Council, that the House of Assembly have Resolved that The Honorable Thomas Scott,2 Chief Justice of this Province, has been guilty of a Breach of the Privileges

(a) Art. 7. (b) Art. 4. 10G. 3, c. 88.

1. From the copy of the Minutes of the Legislative Council contained in the Minutes of the Executive Council, March 17th, 1812. State Book P, Upper Canada, page 56. 2. Thomas Scott was born in Scotland in 1746. He was employed by Lord Dorchester in 1788, in connection with the Jesuits Estates in Que. He was called to the English Bar in 1793 and in 1801 was appointed Attorney General of Upper-Canada. He became Chief Justice of the Province in 1804.

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of the House of Assembly, by discharging from the Gaol of this District, the Body of Robert Nichol, who was Committed by them for a Breach of Privilege.1 And that the House of Assembly request the Honorable Legislative Council to proceed in that Case as the nature of the Case requires.”

(Signed) “Sam1 Street” ” Speaker ”

” Commons House of Assembly ” “29th February 1812″

The Deputation being withdrawn The Speaker2 reported the same—The Honorable The Chief Justice thought proper to enter into the following Explanation of his Conduct:—

The Chief Justice is bound by his Office to grant Habeas Corpus and to discharge the Prisoner if the Commitment appears on the Warrant to be illegal.

To enable the Judges to decide on the Legality of a Commitment, it was the Law of the Land that every Commitment should contain upon the face of it, the Cause. The High Court of the King and Council having neglected in some Orders of Commitment to insert the special Cause, and the Judges scrupling to relieve by Habeas Corpus at Common Law, on account of the High Dignity of the Court in which the King himself sat in Person ; a Statute was passed in the 16th of Oar. 1st whereby it is Enacted that the Judges shall grant Habeas Corpus in all Commitments by His Majesty in Council, and if upon the Return it does not appear to be for Just and Legal Cause they shall (under heavy Penalties) Bail or Discharge.

Since this Statute it has become part of the Law and usage of Parliament that all Warrants of Commitment by the House of Commons do specify the Cause and recite the particular Privilege of Breach whereof the Party has by the House been adjudged Guilty, and also the specific Order of the House of his Imprisonment.

Without such adjudication and Order by the House the Speaker has no Authority, and his Authority must be shewn in order to render his Warrant valid.

It appears by Warrants of the Speaker of the House of Commons in England at Two different periods with an’ Interval of Forty years, that the Usage of the House of Commons is conformable to the Exigence of the Statute with respect to the High Court of the King in Council—These Warrants shew distinctly the particular Privilege violated—The Judgement of the House upon the Charge—The time when that adjudication was made— The Order of the House for the specific

1. Robert Nichol was appointed in 1810 a Commissioner for the Application of monies voted by the Assembly for the repair of highways in the District of London. He received the monies appropriated too late in the season to apply the total amount and brought the balance to York to deposit with the Receiver General. The Receiver General, however, would not accept the money and Mr. Nichol was compelled to carry it over to the following year. When the Assembly’s Committee came to examine the public accounts no statement was available regarding the monies expended by Mr. Nichol. Without examination of Mr. Nichol the Assembly resolved that ” the Commissioners of Highways for the London District have abused their office by the misapplication of the Monies committed to their care, and that Three Hundred Pounds rests in the Hands of Mr. Robert a Commissioner, no part of which appears to have been applied to Public Uses.” These resolutions which were published by Joseph Willcocks with comments ieflecting on the honour of Mr. Nichol seriously effected his credit as a Merchant and brought forth a reply addressed to William Halton, the Secretary to the Lieutenant-Governor which contained the following reference to the Assembly:— ” Experience has however convinced me, that no integrity of Heart, nor rectitude of eonduct, are a defence against malevolence and Detraction, and that actions the most upright and disinterested may be misrepresented when Individual Characters are to be sacrificed, and Party purposes to be gained.” (State Book P, Upper Canada, page 52.) This letter which was brought before the House of Assembly was considered a Breach of the Privileges of the House and the Speaker was ordered to issue a Warrant for the Arrest of Mr. Nichol. Mr. Nichol was brought before the House and was committed to jail for a breach of privilege on the warrant of the Speaker. The prisoner then applied to the Chief Justice for a writ of Habeas Corpus and was released for the reasons here given by Chief Justice Scott. 2. Chief Justice Scott was also Speaker of the Legislative Council

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punishment, and the date of that Order.—Whereupon and not otherwise the Speaker can require the detention of the Offender in Custody of any Gaoler.

This reasonable proceeding shews a Charge, a Trial, an Adjudication, a Sentence, and an Award of Execution from all which the Court or Judge can decide if it is Legal or not.

From the Copy of the Return on the Writ of Habeas Corpus sued out by Mr. Nichol it does not appear of what nature was the Breach of Privilege Charged, how, when, or where he had been adjudged Guilty—Or that his Imprisonment was Ordered by the House.

The Warrant under which Mr. Nichol was detained1 appeared in all respects as the Personal Act of Mr. Street, under his Seal supposing Authority vested in him Personally by the House of Assembly.

Such an Authority cannot be delegated—Whatever Powers the House of Assembly may have to decide upon their own Privileges it must be exercised by the House itself as a House, and not by their Speaker in his own Person—And as The Chief Justice had-only the Return of the Habeas Corpus before him wherein that Warrant was inserted, and that Warrant being most materially defective he was bound to Discharge the Prisoner. No Question therefore respecting Privilege could arise.

On Motion made and seconded the House resolved itself into a Committee of the whole House to take the Message of the Commons House of Assembly into Consideration.

House in Committee—Mr. McGill in the Chair—

The Speaker resumed the Chair—

The Chairman reported that the Committee had taken the said Message into Consideration and had agreed to some Resolutions therein which they recommend to the adoption of the House—-ORDERED that the said Report be accepted, and on Motion made and seconded, the said Resolutions were Ordered to be Engrossed and Read as follows—(to wit)

The Resolution of the Commons House of Assembly of the 29tk February 1812 brought up to this House by Message being Read—

It is Considered that this House disclaim any right to interfere with the Proceedings of the Chief Justice in the exercise of his Judicial Functions—But The Honorable the Chief Justice, as Speaker of this House having thought proper to enter into an Explanation of his Conduct in the matter stated in the aforesaid Resolutions—It is ordered; That the Explanation so given shall be entered upon the Journals of this House, and a Copy thereof sent to the Commons House of Assembly.

Legislative Council Chamber March 2nd 1812

1. The following is a copy of the warrant. Copy. Samuel Street, Esquire, Speaker of the Honourable Commons, House of Assembly, To the Sheriff of the Home District, Greeting:— By Virtue of the Power and Authority in me vested by the Honourable the Commons House of Assembly, You are hereby Ordered and Required to receive into the Common Gaol of your District the Body of Robert Nichol and him safely keep during the Pleasure of this House, the said Robert Nichol having been. Convicted of a Breach of Privilege of the Commons House of Assembly. Given under my Hand and Seal at York, this Twenty-sixth day of Pebruary, One thousand eight hundred and twelve. (Signed) SAMUEL STREET, L.S. Commons House of Assembly, Speaker. 26th Pebruary, 1812. A true copy. (Signed.) JOHN BEIKIE, Sheriff.

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PROCEEDINGS IN THE HOUSE OF ASSEMBLY RELATIVE TO THE EXERCISE OF THE POWER OF IMPRISONMENT BY THE EXECUTIVE COUNCIL, LOWER CANADA.

JOURNALS OF THE HOUSE OF ASSEMBLY.1

Monday, 11th May, 1812.

………………….

Mr. Bedard reported, that the managers had been at the conference agreed upon with the Legislative Council, and had received from their managers their reasons for disagreeing to the amendments made by this House to the Bill intituled, ” An Act further to continue the Acts therein mentioned, for the better preservation of His Majesty’s Government, as by law happily established in this Province.2

And he read the said reasons in his place, and afterwards delivered them in at the Clerk’s table, where they were again read.

The said reasons are as followeth, videlicet.

To the first amendment made by the House of Assembly, the Legislative Council doth agree.

To the third amendment the Legislative Council doth agree, with the following amendment, videlicet. Press 1, line 16th, leave out the word “May” and in lieu thereof, insert June; to which amendment the Legislative Council desire the concurrence of the Assembly.

To the fourth and sixth amendments, the Legislative Council doth agree.

To the second and fifth amendments, the Legislative Council doth not agree.3

Because, these amendments diminish the security of the subject, by taking the execution of the Act from the Members of the Executive Council, who are all responsible for their conduct within the limits of the Province, and amenable to His

1. From the Journals of the House of Assembly of Lower-Canada, 1812, page 568. Pierre Bedard and his associates of Le Canadien had been imprisoned on a warrant of three members of the Executive Council by virtue of the act for the better preservation of His Majesty’s Government. The Proceedings in Bedard’s case brought the House of AssemVy to a realization of the extensive powers which that statute vested in the Executive Council and accordingly when, inthe session of 1813, the Act appeared for renewal the Assembly proposed radical changes designed to limit the power of the Executive Council. The position of the Assembly is stated in the following amendment proposed to the bill passed by the Legislative Council: ” Provided always, and be it further enacted by the authority aforesaid, that the dispositions and provisions of the said Act for the better preservation of His Majesty’s Government, as by Law happily established in this Province, shall only have effect in cases of arrests and imprisonment which shall be made by virtue of a Warrant signed by the Governor, Lieutenant- Governor, or person administering the Government of this Province for the time being, and from no other person; and that no Warrant of His Majesty’s Executive Council in this Province, shall be required to authorize the Courts of Justice, or Judges, to admit to bail the persons so imprisoned by virtue of the Warrant of the Governor, Lieutenant- Governor, or person administering the Government of the Province for the time being, or to bring them to trial, but that the Warrant of the Governor, Lieutenant-Governor, or person administering the Government of this Province, shall be required and be sufficient for that purpose; and whatever in the Acts aforesaid applies to the Warrant of His Majesty’s Executive Council, signed by three Counsellors, shall apply only to the Warrant of the Governor, Lieutenant-Governor, or person administering the Government of this Province. Provided always, and bo it further enacted by the authority aforesaid, That nothing contained in the said before recited Acts, shall be construed to extend to give power to imprison or detain any Member of either House of the Provincial Parliament in this Province, by virtue of and under the authority-of the said acts.” Journals of the House of Assembly, paie 200. The Legislative Council refused to accept these amendments of the Assembly and a conference was arranged in which the position of the two Houses was stated. The conference proved ineffective in reaching an agreement and the Act was permitted to expire. 2. See page 215. 3. The amendment quoted above to which the Council took particular exception appears as the fourth in the list of amendments made by the Assembly. In the list of amendments contained in the Journals of the Assembly the logical order is not followed. The amendment quoted above, which contained the provisions considered particularly objectionable by the Legislative Council, appears as number four. The order of the amendments was evidently changed before fchey reached the Legislative Council.

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Majesty’s Provincial Courts of Law in all Civil actions, and placing it entirely in the hands of the Governor, who is not responsible for his conduct within the limits of his government, nor amenable to His Majesty’s Provincial Courts of Law, in any Civil action whatever.

Because, these amendments vest the power of accusation, of commitment, and of trial, and the dispensation of mercy in one and the same hand, contrary to the first principles of the Constitution, which is that of a limited Monarchy, and in further diminution of the security of the subject.

Because, these amendments take from His Majesty’s Executive Council, the powers which by the several Acts for the better preservation of His Majesty’s Government, have been annually, and exclusively, entrusted to them, from the year 1797, until this day; no enquiry into their conduct having been instituted, no evidence whatsoever of the facts upon which that conduct was founded being before the Legislature, and no opportunity or means of defence being afforded them; thereby, in the opinion of the Legislative Council, implying a censure upon the Executive Council, collectively, for their conduct in the execution of the high trust committed to them by those Acts, and tending to diminish the confidence of His Majesty’s Subjects in a body of men who are appointed to be the advisers of the Crown by the King himself, and who constitute the first Court of Judicature within the Province.

Because, the amendments, in their consequences, are dangerous to His Majesty’s Government, under all circumstances, in a moment of special danger; for if by reason of any consideration, the Bill when passed should not be executed when its execution is necessary, that security which it provides for, cannot be attained, while on the contrary, if it be executed, the odium which invariably attends the execution of such Acts, will attach exclusively to the King’s Representative, to the prejudice of his constitutional influence in the Government.

Because, as in the Parent State, that which is supposed to be exceptionable in the conduct of public affairs, cannot be imputed to the King, so in a Colony it ought not to be imputable to the Governor; such imputations tend equally in both cases, to destroy the constitutional independence of the Executive Power, and, in the latter, have a further tendency to bring into disrepute that authority of which the Governor is the immediate representative, and of which the bulk of the Colonists have no knowledge but through the medium of his acts.

And because, these amendments go to impute all that may be thought exceptionable in the execution of the Bill to the Governor exclusively, contrary to sound policy, as they respect the Province, to the interests of the Mother Country as they relate to the Empire, and to the tenor of the great constitutional maxim, ” The King can do no wrong.”

On motion of Mr. Pierre Bedard, seconded by Mr. Mure ;

RESOLVED, That this House will, to-morrow, take the said reasons into consideration. 1

* * * * * * *

Saturday, 16th May, 1812.

Mr. Viger, from the Committee appointed to prepare reasons to be offered to the Legislative Council, for which this House doth persist in its amendments to the Bill sent down by the Legislative Council, intituled “An Act further to continue, the Acts therein mentioned for the better preservation of His Majesty’s Government as by Law happily established in this Province;” reported, that the Committee had prepared reasons accordingly; which he was directed to submit to the House when-

1. The bill and amendments were again considered by the House of Assembly on May 15th, and a committee appointed to prepare reasons to be offered for persisting in the amendments made to the Council’s bill. The report of this committee is here given.

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ever it should be pleased to receive the same: and he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, where it was again read.

The reasons contained in the said Report, are as followeth, viz.

1st. The Governor is not less responsible than the Executive Counsellors for his conduct towards individuals who might have suffered from the abuse of the authority with which they are invested by the amendments. It is true the remedy would be delayed, but it would be more certain. With respect to this Country, the Court of Appeals,1 which is the last resort in this Province, and the Executive Council, being one and the same thing, several of the Judges of the Court of King’s Bench are at the same time Members of the Executive Council, although it appears at first view, to have an equiponderance therein, in the exercise of the authority with which the Council is invested by the Act under its present form,2 without the amendments, the practice of it should be a non-entity, and ought to be previously considered as such in the public opinion.

2d. The re-union of opposite powers granted by the amendments in the person of the Governor, is not so strongly marked as it is in the Act without the amendments, even supposing it to be carried, to the extent that the reasons of the Honorable Legislative Council appear to decide. But, in the first place, the Governor, by the amendments, judges merely as the Executive Council, under the Act without the amendments, of the necessity of imprisoning, for the actual security of the Government, an individual accused or suspected. The powers given to the Governor by the amendments do not extend further. But the Governor will not be found, at least in the first instance, to sit in .Civil Process amongst the number of Judges, upon the persons who might be imprisoned, as if complaints were made, as has been the case in this Country, with many Executive Counsellors, under the Act without the amendments.

Neither the Act or amendments directs the process, it comes under the Common Law. It is carried on by the Crown Officers, who are charged with the same, it has nothing to do with the Act or amendments; it is the same with everything else. On the contrary, under the Act without the amendments, there is, in the persons who are charged with its execution, a re-union of powers, much more incompatible, since they are most of them placed at the same time in the Legislative Council,0 and the Members thereof are not numerous, besides, all of them are the sole Members of the Court of Appeals, and in a great measure, are those who administer Justice in the Criminal and Civil Courts.4

It is necessary to observe, that in the case where this Province shall be threatened with invasion on the part of the neighbouring States, the sole desire of preventing even the possibility of interior danger, and of which the House of Assembly has nothing to point out the existence, and upon which they have no facts which might direct or induce them to renew, under a new form, a law ever dangerous in its principles, and which may become the more so in its effects, if prudence is not observed, both in the passing and execution thereof.

3d. If the Executive Council has enjoyed, since 1797, the powers invested in them under the Act without the amendments, it is not a reason they should be¡ continued, from the moment it was perceived, that the ^principles of that law were vicious; and this reason is sufficient to justify the House of Assembly, upon general principles. With respect to practical principles, the events and circumstances did not

1. Por the constitution of the Court of Appeals see page 14. 2. See page 215. 3. The text of the Journals of the House of Assembly has been followed here but it is obviously the Executive Council and not the Legislative Council to which the reference is intended. 4. The Court of King’s Bench of each of the districts of Quebec and Montreal consisted of a Chief Justice and three judges. In addition to the two chief justices three of the judges of the Court of King’s Bench were members of the Executive Council.

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give the House of Assembly an opportunity, and put them in the situation of making a mature examination of the inconveniences which the law under its original form, might occasion. An inquiry cannot be necessary, upon facts of public notoriety. It is sufficient, upon a measure of public utility and security, to have a general knowledge of facts, and an examination of the general effects which the events have produced, and which have given rise to claims or complaints, to enable the House of Assembly to decide upon the question of experience: It is for the House of Assembly to judge, whether these general effects, in their connexion with the existence of a law, have answered the views of the Legislature, as they have a right to judge of the principles which form the basis of the law itself.

‘ Because, in the mother Country, what is conceived reproachable in the conduct of publie affairs, cannot be attributed to the King, because it would tend to destroy that Constitutional Independence of the Crown, necessary to the balance of power in her free and liberal Constitution, it does not follow, that these principles are equally applicable, and they ought not to be so to Governors of Colonies. The inviolability guaranteed to the King should belong to him, because the Constitution, for the preservation of tranquility and the public good, not having made him personally responsible for his conduct, it seems, therefore, the Law will presume no wrong where it has provided no remedy. From that, it may be inferred, that a Governor may be accused before his superiors, that he is not vested with the same inviolable power as the King, to whom he is always responsible.—The responsibility under which persons are held, to whom the Sovereign delegates the exercise of a part of his authority, does not destroy the independence of the Crown, according to that great Constitutional Maxim, the King can do no wrong, is true and salutary, applied to him alone, as it would be false and dangerous if applied to his servants, however elevated their stations may be.

The House, in vesting solely in the Governor the execution of the Act in question, and in giving him a proof of the opinion they entertain, that he will exercise with prudence, the powers vested in him, if it should become necessary to use the same, which, after all, only tends to admit the principle, that the Imperial Parliament has given, when it invested the Lord Lieutenant of Ireland as full authority as the present Act gives the Governor of this Province; the House therefore conceives they can persist in their amendments, without affecting the principles of the Constitution.

It is true, that the loyalty of the Inhabitants of this country, and their submission to the laws, render unnecessary such strong and coercive measures as those adopted in Ireland: also the House, in confiding the execution of the Act to the Governor alone, conceives they have provided, as far as is necessary, for the security of the Government, and at the same time it lessens the fears which the public would have, if they saw so extensive an authority left to individuals whom tihey would find in all the tribunals of the Province, and with which individuals a thousand daily occurrences may connect them, or place them at a distance more frequently than it would happen with the Governor.1

1. The reasons here reported received the assent of the House and were accordingly adopted.

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OPINION OF CHIEF JUSTICE MONK ON THE DECLARATION OF MARTIAL LAW.1

Martial Law.

Question :

Can Martial Law be declared in so qualified, or modified a manner, as to operate only upon such part of His Majesty’s Subjects, as are necessarily called upon to take arms; or may be acting offensively against the public safety? Or will it be indispensably requisite, in the declaration of Martial Law, expressly to close all His Majestys ordinary Courts of Justice; And reduce the wholecivil Government to a Military Law; and Military Courts, or Courts Martial, for adjudging upon Crimes and Offences of every degree: And also of Civil rights, where special Circumstances may permit such enquiry & determination?

Answer.

It will be proper to,offer the legal reasons, which have induced the answer to the above questions. And in this, previously to consider, What is Martial Law. By what authority created. And when it may be legally exercised. As, from that view of the subject, it will be concluded; that under the existing Circumstances of the Province of Lower Canada, Martial Law, in the Un-qualified sense above stated, cannot constitutionally be proclaimed; And the Kings Courts thereby shut, against every dispensation of Justice by the established course of administering the Civil or Criminal Law. And that, a Constitutional and legal exercise of Martial Law, should only operate in a qualified degree.

Martial Law may be considered as an exercise of the Royal prerogative, over the Subjects, for their safety and protection, and the support of the Monarchy. It is, enforcing upon the subjects generally, a rule of Conduct, to govern those arrayed, for Military duties. This prerogative so exercised made part of the Monarchs necessary rights, at a period when Constitutional Laws, by the English Parliament, for the government of the Militia of the Kingdom, were inadequate to produce a sufficient and effective array, and discipline of the National force, in times of war, that menaced or arrested the existence of social order.

It may be viewed as a part of the Royal prerogatives, arising with the. Military Tenures of the Kingdom. But which, hath fell into disuse, with the abolition of those Tenures. And the Parliamentary establishment of rules and orders for the discipline & Government of the regular Forces, and Militia of the Kingdom, may be considered to have superceded the exercise of the ancient TÍ. Hales. Hist. prerogative in that respect… —

of Com. Law. p. At those Ancient periods when the exercise of this prerogative was enforced; the King, with the assistance of His Constable, and Marshal, digested and enforced, Rules and orders for the due order and discipline of Officers and Soldiers, with penalties on Offenders. And this was considered, the Martial Law; made known

1. From the original in the Monk Papers, Canadian Archives. See page 118, note 2.

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by the Royal Proclamation!. But these rules and orders were extended Only to matters of Arms, and matters of War.

It was considered that the necessity of Government order and discipline in An Army, was the Only ground upon which the right stood. And it may be proper to state, in the words of a Great Law writer upon the subject, whose legal opinion has been followed by others, equally eminent.

That ” this indulged Law [for it was considered in reality, not a Law, but something indulged, rathar than allowed as a Law] was only to extend to members of the Army, or to those of the Opposite army, and never was so much indulged, as intended to be executed, or exercised upon others^ for, others who were not listed under the army, had no colour of reason to be bound by Military Constitutions, applicable only to the army whereof they were not parts; but they, were to .be ordered and governed according to the Laws to which they were subject, though it were a time of War.”

Having stated what Martial Law is held to be, and how exereised. It only remains to consider the Time, and Circumstances, under which it anciently, could be enforced. And being a law of necessity growing out of a state of imminent danger to the Monarchy, and the subjects, from hostile impressions by declared enemies, or internal convulsions of the State it could only be promulgated and enforced when such Circumstances should arise, to impel the declaration.

These Circumstances appear to be such a state of War upon the Country, as necessarily must prevent the subjects from any other attention than that, of self defence, by Arms, under Military array. And this principle in respect to foreign enemies, appears equally applicable, when the state is convulsed, by internal causes, proceeding to insurrection, and Open Rebellion.—

The necessity and Justice of declaring Martial Law must rest with the power in which the Constitution has placed the right.

The power delegated by His Majestys Letters Patent to the Governor is,

” To declare Martial Law, in time of invasion, or at other times, when by Law it may be executed.”1

If Martial Law be restricted in its Operation to the subjects under. Military duties, for defence of the Monarchy and the Kings subjects; in what respect can it be considered as necessarily shutting the ordinary Courts of Justice, where under existing Circumstances in any part of the Colony, they can openly and freely perform the functions for which they have been established?

And if Martial Law be declared can i t legally operate upon any other part of the Kings Subjects than such as by express statutes, have been subjected to that Law?

Can it be supposed, that by a declaration of Martial Law, the several provincial statutes expressly made, in the contemplation of governing the Subjects, by military order and discipline; “for Security of the Province, at the periods of War, invasion, or imminent danger thereof, insurrection or other pressing exigencies” should be thereby repealed?

1. See page 9

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Will it be considered that the Governor by such a declaration of Martial Law, may legally hold the above statutes as repealed ? And that he has a right under the Kings prerogative, to establish other rules and orders, other ” articles of War ” for discipline and Government of the subjects arrayed, under those Laws? or wholly to disregard those Laws, as ineffectual, and by other compulsory means, to array and discipline the Kings subjects, in a manner that may be considered more adequate to the purposes of defence and secure Government?

These important questions force themselves upon the mind that contemplates, in a Military point of view, the legal effects of proclaiming the Law Martial over the Province.

It appears to be of serious moment, deliberately to weigh the effects, likely to be produced, by an exercise of this part of His Majestys prerogative, delegated to the Governor of the Colony: That Constitutional and legal principles should support the right declared, & Enforce obedience to the End to which it may be directed.

If it be made a question [as appears to be involved in that of Un-qualified Martial Law] whether the Governor has not a right to exercise His Majestys full prerogative, and suspend every Civil Commission and authority in the Kings Government, at a period when the exigencies of the state may require. I am unprepared to say how far His Majestys Instructions may have controuled or restrained him in this respect.

But even supposing they have not. Yet I cannot consider it a legal and indispensable Consequence, that a declaration of Martial Law must necessarily induce, an express exercise of the highest powers of the prerogative—by suspending the whole civil functions of the Kings Government, and the Rights of His Majestys Subjects under the established Laws, at a time, or in a place, where such rights can be preserved by the usual administration of Justice.

And I consider that this Law when Simply so declared, would operate on every subject, and in every part of the Province where legally it could, and no further. That this operation would be limited to Subjects who were called to Military service and duties. ” To matters of Arms, and matters of War.” That in a legal sense it is a law of necessity, but a law modified, or qualified. And if necessary to be declared, should be suffered to produce the effects which, should alone attend, a Simple declaration of the Law Martial. But by no means, to superinduce what may not be indispensably necessary; Namely, an exercise of the prerogative that expressly and in Terms, should shut His Majestys Courts of Law; where the Circumstances of the Colony from actual invasion, and war, do not unavoidably produce that Consequence.

J. MONK.

Montreal July 8. 1812.

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PROCLAMATION DECLARING LIMITED MARTIAL LAW, UPPER CANADA.1

B Y MAJOR GENERAL FRANCIS DE ROTTENBURG, COMMANDING HIS MAJESTYS FORCES IN THE PROVINCE OF UPPER CANADA—

A PROCLAMATION—

Whereas it is necessary for the public Safety that the most efficacious means should be used for supplying the Port of Prescott with Provisions; and Whereas it has been represented to me by the officer commanding that Port that though the Johnstown and eastern Districts abound with every Article of Provisions and forage, there is great Reluctance on the part of the Inhabitants thereof in furnishing the necessary Supplies. I do hereby declare that as far as relates to procuring Provisions and forage Martial Law shall be in Force throughout the said Johnstown and eastern Districts, and the same is hereby declared to be in force and acted upon accordingly. Given under my Hand and Seal, at District Head Quarters; at Kingston, this 22 November 1813— (Signed)

FRANCIS DE ROTTENBURG Major General Commanding.

RESOLUTION OF THE HOUSE OF ASSEMBLY, UPPER CANADA, REGARDING MARTIAL LAW.2

HOUSE OF ASSEMBLY, Upper Canada 19th February 1814

Resolved. That the Proclamation issued by Major General De Rottenburg as the officer commanding his Majesty’s forces in this Province, dated “District Head Quarters the 22d day of November last at Kingston declaring Martial Law to be in force throughout the Johnstown and Eastern Districts so far as relates to the procuring of Provisions and Forage was and is arbitrary & unconstitutional, and contrary to and subversive of the established Laws of the Land”—

1. From a contemporary copy in the Powell Papers in the Canadian Archives. Other proclamations of a similar character were issued in various districts of the province as necessity arose. In September, 1813, a proclamation was issued by Major General Procter to the following effect— Headquarters, Sandwich, 13th September, 1813. His Excellency Sir George Prévost, Governor-in-Chief, having authorized the officer commanding the troops in the Upper Province to execute Martial Law in such district or part thereof in which it may be found advisable to resort to that measure, I do hereby by virtue of the authority above mentioned proclaim and direct that the same shall immediately take effect as far as supplying the wants of the troops under mv command or the sending away or apprehending all traitorous or disaffected persons may render expedient. Henry Procter, Major-General, Com’g the Right Division. 2. From a contemporary copy in the Powell Papers in the Canadian Archives. A memorandum addressed to Major General de Rottenburg in the handwriting of the Hon. William Dummer Powell and signed ” A Lover of Justice ” contains the following reference to this resolution. ” Having heard that a vote of censure on the subject of your proclamation, regarding the supply of Provisions, in the Johnstown and Eastern Districts, had passed the House of Assembly, I thought it might be advisable for you to notice it, and took the liberty to desire Mr. Levius Sherwood, the mover, to obtain permission of the House to transmit to you an official copy of the Resolution. This decency was rejected and I now enclose a true but unofficial Copy,, received from Mr. Boyers, who promises that if the next motion to address the Prince Regent on the subject should be carried, he will solicit from the Hojuse such a notification to you as may enable you to meet it .” The Journal of the House of Assembly for Pebruary 19, 1814, copied in 1856 from the original in London does not contain any reference to de Rottenburg’s proclamation.

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DRUMMOND TO BATHURST.1

N° 6.

Kingston, Upper Canada, 5th April 1814.

My Lord,

Upon my arrival in this Province, Martial Law so far as related to the procuring of provisions and forage for the Garrisons of Kingston and Prescott, was in force in the Midland, Johnstown, and Eastern Districts; a measure to which Major General de Rottenburg found himself under the necessity of resorting, not only from the very low state to which the supplies in those Garrisons were reduced, but the evident reluctance on the part of the Inhabitants in furnishing these supplies, although the most liberal prices had been offered.

Learning however, upon my assuming the command, that the measure had created much discontent, and thinking as the winter was just commencing, when the roads are rendered practicable, and which is the season when the produce is generally brought to market, that the necessity of enforcing it would cease to exist, I was induced to revoke it.2.

The House of Assembly during its late Session in March,3 passed a vote of censure on Major General de Rottenburg, for having resorted to a measure in their view unconstitutional; not withstanding which, I am sorry to inform Your Lordship, I have since been constrained, by the most imperious necessity to recur to it; there being at one time lately, in this Garrison, at which alone a daily issue of nearly five thousand Rations takes place but sixteen Barrells of Flour in store: It is now in Operation througliout the Province, the Officer at the head of the Oommissiariat, having strongly urged its absolute necessity, as otherwise the necessary supplies could not on any terms be obtained.

I have taken care to give particular orders that the Officers and Agents of that Department, employed in collecting those supplies, should observe the greatest moderation, and use their best endeavours to conciliate the people: and with a view of Acting on the most liberal and just terms between the Government and them, have directed the Magistrates of each District in full Assembly, to fix upon a fair price to be paid for every Article furnished.

As it is highly probable however, that a vote of censure similar to that passed on Major General de Rottenburg, will, in the next Session, be passed upon me, for having resorted to a measure without which the Troops could not possible have been subsisted, and in which I had the full concurrence of His Excellency the Governor General, I have to request Your Lordship will afford me the satisfaction of knowing whether the Charge by the House of Assembly, of the Act being unconstitutional, can be substantiated, or if on the contrary in continuing to enforce it should the same necessity exist,4 I shall receive the sanction and support of His Majesty’s Ministers

I have the honor to be, My Lord, With great respect, Your Lordship’s Most Obedient humble Servant. GORDON DRUMMOND.5 President.

The Rt. Honble Earl Bathurst, &c. &c. &c.

1. From the copy in the Canadian Archives, Q. 318, pt. 1, page 65. 2. Major-General de Rottenburg’s proclamation of November 22, 1813, was revoked by General Drummond on January 25, 1814. 3. See page 435, note 2. 4. Lord Bathurst’s reply, see page 441. 5. Sir Gordon Drummond (1772-1854) entered the army in 1789 and in 1794 was appointed Lieutenant-Colonel of the 8th Regiment. With this regiment he served in the Netherlands, the West Indies and in Egypt. He returned to England in 1804 and in May of the following year was placed in command of a division in Jamaica. In 1808, Drummond was appointed to the Staff in Canada and at the time of the outbreak of the war with the United States was

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OPINIONS OF JOHN B. ROBLNSON IN THE CASE OF EMPEY VS. DOYLE.1

ROBINSON TO LORING.

Ancaster June 2nd 1814

Sir!

I have the honor to acknowledge the receipt of your letter respecting the suit commenced against Mr Doyle, Clerk in the Commissariat2—It did not come veri expeditiously and required not a little consideration to answer— Nothing, I think, can be clearer than that M? Doyle should not eventually suffer by an Act so authorised as his is stated to be— But in what manner his acts are to be defended requires to be thought of with deliberation—

It was certainly ill-judged in Genl De Rottenburg to issue his proclamation3 in his civil character of President, because in that capacity he possessed no right, or power which could give it sanction— But had the measure been even as consistent as possible, and had the proclamation appeared as the Act of the Commander of the forces, the case would not be substantially changed—for that it must have been unconstitutional, however salutary, or necessary is a plain assertion that admits not of argument— It follows, therefore, that the proclamation can be no legal justification to Mr Doyle, and should the Government order the Crown Officers openly to defend the suit against him, or take an ostensible interest in it, it will be reducing itself to an awkward dilemma, avowedly espousing what it has no right to enforce, and endeavouring to protect where it has not the power—

Courts of Law have no discretion in taking or refusing to take cognizance of matters brought before them—while they are open, they must act by known rules, and with the operation of these, nothing less than the Legislature can interfere—The

second in command to Sir George Prévost. He assumed the Government of Upper Canada in succession to the Baron de Rottenburg in December, 1813, and was in command of the British troops during the campaign of 1814 in the Niagara district. He was appointed Governor-in-Chief of Upper and Lower Canada in December, 1814, and took the oath as administrator of the Government of Lower Canada, April 1, 1815. Soon afterwards he asked to be relieved of his command though he was not permitted to retire until May, 1816, when he was succeeded as administrator by Major General John Wilson. 1. From the originals in the Canadian Archives, Sundry Papers of Upper Canada. John Beverley Robinson (1791-1863), son of Christopher Robinson, was born at Berthier, Quebec. He was educated at Dr. Strachan’s school at Kingston and in 1807 began the study of law in the office of D’Arcy Boulton, Solicitor General of Upper Canada. He served in the Niagara campaign of 1812″ as lieutenant in the 3rd regiment of York Militia and was under fire at the battle of Queenston Heights. The death of Lieutenant-Colonel Macdonnell, the Attorney General of the Province, at Queenston and the imprisonment of Mr. Boulton at Verdun in Prance, left the Government without the services of its regular law officers. Robinson was appointed acting Attorney General and served as sole law officer of the Crown during the remaining period of the war Mr. Boulton, who was released, on the restoration of peace, was promoted to the office of Attorney General while Robinson succeeded in Pebruary, 1816, as Solicitor General. In 1818, on Boulton’s appointment to the Bench, Robinson became Attorney General of the Province. He represented York in the Assembly from 1821 to 1829 and was recognized as the leader of the Government party. In 1829, he succeeded Sir William Campbell as Chief Justice of the Province and was at the same time appointed to the Executive and Legislative Councils. He acted as president of the Executive Council until 1832 and as speaker of the Legislative Council until 1838. On the union of the provinces judicial officers were separated entirely from political appointments and the activity of the Chief Justice was confined more particularly to the work of the Court of Queen’s Bench. He was made a C.B. in 1850 and four years later created a baronet of the United Kingdom. On his retirement from the Court of Queen’s Bench” in 1862, he was appointed to the less arduous post of President of the Court of Error and Appeal, a position which he retained until the time of his death. 2. Edward Doyle was in charge of the commissariat at Cornwall when the American army approached that post late in the year 1813. On account of the scarcity of flour, Doyle took advantage of Major General de Rottenburg’s proclamation of November 22 ” by sending Parties to the Parm houses in the neighbourhood to thresh the wheat found in their Barns and sending it to the Mills to be manufactured into Plour for the use of His Majesty’s Troops.” (The Canadian Archives, chap. 118, page 98.) An action for trespass was brought against him by Jacob Empey and Doyle appealed to the Government to conduct his defence. 3. Seo page 435.

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authority under which Mr Doyle in his subordinate situation did the Act complained of, and the urgent necessity of that Act which must be evident to all the people of the District where the cause is to be tried should go much in mitigation of damages, but cannot do more—they cannot legalize the Act even in. him—

I consider this suit as of great importance in a political view— Men discontented, and malignant like Mr Empey, and M1 Sherwood1 may be found in many parts of this Province, and this Action may be followed by many others as well for Acts committed under General De Rottenburg’s administration, as for those now daily, and necessarily resorted to2—If therefore by any silent arrangement between Mr Empey, and Mr Doyle, the matter can be compromised, and the question left at rest, I think it desirable to be done—otherwise Mr Doyle should be instructed to make the best defence he can to the Action, and to employ both for conducting his suit, and managing his defence at the trial the best counsel he can procure, and if at last he fails he should at all events be relieved from the judgment, and costs— But by no means would I recommend that his defence should be made the cause of Government, and I think the reasons will appear obvious to His Honor the President— I believe cases are not unfrequent in England where the Admiralty in this manner indemnify naval Officers against Acts illegally committed but necessary for the service, without attempting to defend them as Acts done under public authority— It is necessary that Mr Doyle should receive instructions from you to make his defence without delay, by applying to some Attorney of the District to enter his appearance and put in his plea, or if His Honor thinks it nevertheless proper to order me to undertake his defence— I would require to have immediate notice of such intention, that no advantage may be taken by the other party—

I have the honor to be Sir! Your Most Obt Servant

JNo B ROBINSON Actg Atty Genl

R.R. Loring Esquire Secy to His Honor the President &c &c &c

ROBINSON TO LORING.

York June 28th 1814—

Sir!

I had the honor of receiving your last communication respecting the action of trespass against E. Doyle-, in which were some remarks of the Commissary General on that subject—

Tho’ I have no opportunity of referring to a Lieutenant Governor’s Commission of this Province I doubt not that such a clause is inserted. I suppose, of course it must be.3

Upon this subject I deliver my sentiments with diffidence. It is a great constitutional question and to determine it recourse’ must be had to the first principles of our Government.

1. Levins P. Sherwood (1777-1850) was acting as counsel for Mr. Empey. He was called to the bar in 1803 and was returned to the sixth parliament in 1812 for the county of Leeds. On his motion, the Assembly in 1814 passed the resolution of censure on Major General de Rottenburg for his proclamation introducing material law. (See page 435, note 2). He did not have a seat in the seventh parliament but was again returned for Leeds in 1820 and was elected Speaker of the House of Assembly. He was appointed a ludge of the Court of King’s Bench in 1825. At the time of the readjustments in the Executive Council of Upper Canada in anticipation of the union, Judge Sherwood retired from the bench in order to permit of the promotion of C. A. Hagerman. He was appointed to the Legislative Council of the united provinces in 1841 and became its first speaker. 2. Other actions of a similar character were instituted. See Robinson’s report of November 21st, 1814, page 439. 3. The commission of the Lieutenant-Governor authorized him ” to exercise and perform all and singular the powers and directions contained in Our Commission to Our said Captain General and Governor-in-Chief.” See Simcoe’s commission, page 55, on the commission of Lord Dorchester, page 9.

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But I think the existence of such a clause in the King’s Commission to his Lt Governor, can make no difference in the present question— The meaning of it, as it appears to me, is to authorise, or perhaps more properly to direct the Lt Governor of this colony in times of great emergency to supersede the civil law— upon grounds of public safety—and this authority is his justification to his Government for adopting the measure. But it cannot legally indemnify him, or those acting under him— for, really, the King is but one branch of the Legislature, and cannot dispense with the law of the land. This conviction induces me to say that the Proclamation however issued (wanting the authority of parliament) is no legal justification, tho’ an equitable defence—that it cannot be pleaded in bar to the action tho’ it may be urged in mitigation of damages.

However it is, indeed, rather an argument about words— I can only appear as Mr Doyle’s Attorney in a civil case— I have the same right to defend him as any body else has, and whether the Government pays for the defence, or Mr Doyle is an arrangement, known to nobody, and at all events totally immaterial—

The letter formerly enclosed by me to you for Mr Doyle will answer the purpose at present

I have the honor to be Sir! Your most Obedt humble Servant JN° B ROBINSON Actg. Atty Genl

To/ Capt Loring Civil Secy to His Honor The President— Endorsed:— 28 June 1814 Actg Atty General’s opinion on the case of Mr Doyle.—

ROBINSON TO MCMAHON.

York Novr 21st 1814.

Sir/

You may recollect that, in answer to a letter from me on the subject of the Alien Act, you mentioned that measures were taken which promised to be more successful than those first adopted in procuring returns of the persons liable to forfeitures under that Act— I proposed in my letter that, if His Honor would authorize it, I would immediately issue Commissions for such persons as had come officially within my knowledge—

This part of my letter you omitted to answer—perhaps it escaped you—however no further delay need, I think have place respecting such persons, and His Honor, I presume will sanction the proceeding immediately.

The short stay of His Honor here did not afford me an opportunity of engaging his attention to a matter which I think of very considerable importance, and which I hinted at in a letter before your departure from the Niagara frontier—

You then requested I would, when it was convenient write you on the subject, as it was probable I might not see His Honor on his way to Kingston— I will now do so.

The result of the several actions I was instructed to defend I have briefly reported to you,1 except, I believe, that of Empey ag* Doyle. In that case a

1. Robinson’s reports on these cases have not yet been found among the papers in the Canadian Archives.

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Demurrer has been filed to my Special Plea of Justification under Genl De Rottenburgh’s proclamation, and in arguing that demurrer, the very important question of the legality of that Proclamation, and whether it can justify, and protect the Agents under it will have to be discussed, and decided, (next term).

At the trial I made no defence, lying by to take advantage of an omission on the part of the Plaintiff which at all events will entitle me to a new trial— I knew that a year’s delay was much wished, and had I entered on my defence I must have waived the objection which will now procure that delay.

Bue whatever may be the result, ultimately, of this action,1 and altho’ I have certainly been most fortunate in warding off hitherto several vexatious attacks of that nature, the same success is not always to be looked for, and it is most important that some general remedy should be provided to prevent future anxiety, and indeed to protect the Government from the constant embarrassment of perplexing law-suits, and from a certain and not inconsiderable expenee in defending their agents, and themselves.

This remedy can be derived only from an act of Parliament, which our Provincial Legislature, I fear, would not be found sufficiently liberal to give. It therefore strikes me, and I have thought long, and seriously upon it, that recourse should be had without delay to the Parliament at home—and a bill may, probably be procured during the next Session which will answer this valuable purpose.

The Bill, or a skeleton of it should be drawn up here2—the purport of it should be that in any action now pending, or hereafter to be brought in this Province, on producing a certificate under the seal of the Governor that the act complained of was necessary for the public service, in defence of the Country, and on proof that reasonable amends have been tendered such Action shall upon application to the Court of King’s Bench of this Province be stayed.

I merely suggest very imperfectly the object—many provisions are necessary— I have in my own mind descended more to particulars, and think a bill might be prepared to meet the exigence in every point—

On this subject I wished to have spoken to His Honor with more particularity than I can well do in this manner— However the arrival of the Attorney General (Mr Boulton) will render this, and the matter first mentioned in my letter, more properly his care, and I hope some good may grow out of the suggestion I have taken the liberty to make, for at present the situation of Government, and those who are to defend it’s necessary deviations from the rigid letter of the law is not a little awkward, and unpleasant.

His Honor will most probably deem it proper to submit this matter to His Council whose advice may best direct on a subject so important—

I have troubled you with what occurred to me, and His Honor will give it what consideration it may seem to merit.

I have the honor to be Sir Your most Obedt Humble Servant JNo. B ROBINSON Actg Atty Genl

To Edwd McMahon Esqr Actg Secy

Endorsed:— 21 Novr 1814 Letter.

From J.B. Robinson Esq A Atty General.

1. The case was brought to trial and a verdict and costs for damages awarded to Empey for the sum of £112,10s. Robinson in May, 1815, recommended that the total amount, £140 6s, 4d. should be paid by the Commissary at Cornwall. 2. There is no record of this bill having been prepared

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BATHURST TO DRUMMOND.1

No 12. Downing Street 23d Augt 1814

Sir,

Your several Dispatches to N° 16. of the 9th of June inclusive have been received and laid before The Prince Regent.

The most material point to which you advert is the Resolution2 passed by the House of Assembly, declaring the measure resorted to by Major Genl, de Rottenburg of enforcing Martial Law so far as related to the procuring of Provisions and Forage for the use of His Majesty’s Troops, to be unconstitutional: and the proceedings which you had reason to apprehend would be instituted, in consequence of your having found it necessary also to adopt similar measures.

The authority delegated by His Majesty to his representative upon this point, is so full and conclusive that I am at a loss to understand upon what grounds the Assembly have thought fit to question the exercise of it under the actual circumstances of the Province. If however any well founded doubt had existed, the necessity of the Case was certainly sufficiently urgent to warrant such a degree of responsibility on the part of the acting Governor, and I can have no hesitation in removing any apprehension you may have entertained with respect to the support which under such circumstances will be afforded to you by His Majesty’s Government.

I n the event therefore of Prosecutions being entered against the Officers or Agents employed in carrying into execution the Orders you had found it expedient to issue; and the result of the trials proving as you apprehended, unfavourable to the Individuals against whom the Suits may be brought; in all cases where the Verdict shall be found in any degree proportionate to the loss or damage sustained, His Majesty’s Government are fully disposed to *make good the same, according to the just and liberal principle which you have so properly laid down in the directions you have given to the Magistrates in each District, to fix a fair price to be paid upon all articles discovered.* In any case however where the warmth of popular feeling may lead to a Verdict to such an extent as will admit of Appeal, it will be proper to refer it to the decision of a higher tribunal.

……………………………………………………..

I am, Sir Your most obedient Humble Servant. BATHURST

Major General Drummond &c. &c. &c.

OPINION OF JUSTICE POWELL ON THE DECLARATION OF MARTIAL LAW.4

Lt.-Gov. Gore:—

You will judge, my dear Sir, of the unpleasant predicament in which the judges are placed by this order of things. Would it not be possible through some channel

1. From the original in the Canadian Archives, G. 57, page 70. 2. See page 435. 3. SOP page 436. 4. From the original manuscript in the Powell Papers. This document is represented by Lieut.-Colonel E. Crulkshank in Part IV. of the Documentary History of the Campaigns upon the Niagara Frontier, page 227. 1a. William Dummer Powell (1755-1834) was born in Boston and educated in England and on the continent He returned to America in 1772, spending three summers in. Canada and reading law during the winters with the Attorney General of Massachusetts. On the outbreak of war he went to England and continued his study of law. Without being called to the bar he came to Canada in 1779 and in August of

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less formal than the President to procure the opinion of the Crown Lawyers in England on this point? It seems to me that Mr. Gordon1 might suggest an appeal from the office on the correspondence already had with the Secretary of State. The laws of England are in full force in this Province under the operation of the 31 Geo. 3d.

The Grand Charter, the Bill of Rights, the Habeas Corpus, are considered to have the same weight here as in England.

The English Lawyers hold commissions to execute Martial Law independent of the Mutiny Act to be illegal since the Bill of Rights, even to the Government of an armed force, unless perhaps in so great a state of anarchy as to impede the ordinary course of justice universally. The limited operation of Martial Law granted by a late statute in Ireland whilst the Courts of Common Law were open is affected by the statute itself to be considered to be a relaxation of the prerogative to execute Martial Law in times of rebellion and invasion, and the act contains a saving clause for that prerogative here. Yet the extent of it is undefined. Does it extend to substitute the will of the General in the absence of other justice in all cases in respect of all subjects, or is it limited to the armed force and its followers, and as substitute for penal law only? Perhaps it may conduce to sound judgment on the effect of this clause in the Governor’s Commission2 to know that by the Provincial Law every man from 16 to 60 is a soldier, not excepting legislative councillors, judges, or the magistrates, and in case of invasion are liable to be called out and subjected to Martial Law. In such a state of things, all magistrates and ministers of the law and ordinary administrators of justice, being subordinate to military command, that property and persons not immediately connected with the armed force must be kept in a state of anarchy, without resort to any justice, unless the Government by his dictatorial power can constitute councils of military affairs or courts martial to hear complaints and afford remedy, either by advice to him or by themselves as commissioners. It is obvious that such was assumed to be the effect of proclaiming Martial Law the only time it had been heretofore executed in Canada, as Sir Guy Carleton, immediately after proclaiming Martial Law on the invasion by the rebels in 1775,8 supplied in his own person as Governor the functions of magistrate and issued his own warrant for the apprehension of a person charged with suspicion of High Treason, which he could only have done in contemplation of all other civil authority being suspended by the operation of Martial Law as well in regard of persons not in arms as those engaged in aims, for the government of whom only by fair construction of the clause in the commission he was authorized to execute Martial Law.

The Proclamation of Martial Law for limited and specific purposes, as by Major- Genl De Rottenburg’s proclamation,4 being erroneously supposed by the Secretary of State to have been issued as President, is declared by Earl Bathurst as a power indubitably sanctioned by the King’s Commission.5 The Judges cannot bring them-

that year was licensed to practise as an advocate in the Province of Quebec. In 1783, he went to England and was called to the English bar, but returned to Canada in 1785, and resumed his practice of law at Montreal. He was entrusted by Lord Dorchester with several commissions in connection with the correction of abuses in the loyalist settlements above Montreal and in 1789 was appointed a judge of the Court of Common Pleas for the District of Hesse with headquarters at Detroit. On the organization of the judicial system of Upper Canada in 1794, Powell was made a judge of the Court of King’s Bench. He was appointed an honorary member of the Executive Council of Upper Canada in September, 1808, and in the following year succeeded as a regular member. He succeeded Thomas Scott as Chief Justice of the Court of King’s Bench in 1816 and was appointed a member and later Speaker of the Legislative Council. He retired from the bench in 1825. 1. Adam Gordon was one of the officials of the Colonial Department in London and acted as special agent for the Canadian provinces. 2. See page 9. 3. Martial law was declared by Sir Guy Carleton in June, 1775. See Carleton to Dartmouth, June 28, 1775. The Canadian Archives, Q. 11, page 201. 4. See page 435. 5. See page 441.

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selves to be of that opinion or to consider a justification of trespass under such a proclamation an excuse, therefore it is important that the fullest consideration should be given to the subject at home and the Judges be enlightened by legal opinions, or that their actual opinions should be communicated to the Commander of the Forces by His Majesty’s Secretary of State, and it would be more expedient to do this without an appeal to the Court of the King in Council.

RESOLUTIONS OF THE HOUSE OF ASSEMBLY, LOWER CANADA, RELATING TO THE AUTHORITY OF THE COURTS OF JUSTICE.1

JOURNALS OF ASSEMBLY LOWER CANADA.

Wednesday, 2 February, 1814.

* * * * * * *

Mr. Dênéchau, from the Committee of the whole House, to whom it was referred to consider the powers and authorities exercised by the Courts of Justice, in this Province, under the denomination of Rules of Practice, reported, according to order, the resolutions of the Committee.

And he read the report in his place, and afterwards delivered it in at the Clerk’s table, where the resolutions were again read, and are as followeth, viz.

RESOLVED, That it is the opinion of this Committee, that the Legislative power, in this Province, is exclusively vested in His Majesty, and in the Legislative Council and Assembly, to whom only, in the said Province, it belongs to make laws for the welfare and good Government of the said Province.

RESOLVED, That it is the opinion of this Committee, that the laws, usages and customs of Canada, secured and confirmed to the Inhabitants of this Province, by the Act of the Parliament of Great Britain, in that behalf made, can, in no respect, be altered, changed or modified, except by the authority of the Legislature of this Province.

RESOLVED, That it is the opinion of this Committee, that the power and authority of His Majesty’s Courts of Justice, in this Province, are purely judicial, and that no alteration of the said Laws can be made by the Judges of the said Courts, without the most criminal breach of their duty, and a violation of their oaths of office.

RESOLVED, That it is the opinion of this Committee, that by certain regulations, under the name of “Bules and Orders of Practice,” made by the Court of Appeals of this Province, on the 19th day of January, 1809, and still in force, the said Court of Appeals, of which Jonathan Sewell, Esquire, Chief Justice

1. From the Journals of the House of Assembly of Lower-Canada, Wednesday, Pebruary 2, 1814. The resolutions reported by the Committep were approved by the House of Assembly and, on motion of Mr. James Stuart, a committee was appointed to examine particularly the Rules of Practice of the Courts of Justice, in this Province : ” report in detail, on the principal points wherein they are contrary and repugnant to the Laws of the land, and to enquire into any circumstances that may appear to them material, relatively to the said Rules of Practice, and the practice of the said Courts; and that the said Committee do also report their opinion as to the course which it is expedient to pursue, for vindicating the authority of the Legis lalure, and repressing such abuses of Judicial Power, and that the said Committee be empowered to send for persons, records and papers.” The report of this special committee which included a series of thirty-six resolutions specifying the cases in which the courts exceeded this authority, constitutes appendix E to the Journals of the House of Assembly for 1814. The report concluded thus:—”The written constitution which this Province owes to the justice and liberality of the Parliament of Great Britain, not having established any Tribunal before which abuses, such as are the subjects of this Report, can be brought judicially; your committee^respectfully submit their opinion, that it is expedient to bring them under the consideration of His Majesty’s Government in England, in such form as the wisdom of the House may prescribe, in order that justice may be done to His Majesty’s faithful subjects in this Province.”

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of this Province, was, and still is President, hath exercised a Legislative authority, and established rules, affecting the civil rights of His Majesty’s Subjects, contrary to, and subversive of the Laws of this Province.

RESOLVED, That it is the opinion of this Committee, that His Majesty’s Court of King’s Bench, for the District of Quebec, in which Jonathan Sewell, Esquire, as Chief Justice of this Province, presides, by certain regulations, under the name of “Mules and Orders of Practice,” made in the term of October, 1809, and still in force, hath exercised a Legislative authority, and established rules affecting the civil rights of His Majesty’s Subjects, contrary to, and subversive of the Laws of this Province.

RESOLVED, That it is the opinion of this Committee, that His Majesty’s Court of King’s Bench, for the District of Montreal, of which James Monk, Esquire, is Chief Justice, by certain regulations under the name of “Bules and Orders of Practice/’ made and published in the term of February, 1811, and at subsequent times, and still in force, hath exercised a Legislative authority and established rules, affecting the civil rights of His Majesty’s Subjects, contrary to, and subversive of the Laws of “this Province.

RESOLVED, That it is the opinion of this Committee, that an arbitrary and unconstitutional authority hath, by the said regulations of the said Courts, been exercised, in respect of the Attornies and officers of the said Courts, by declaring them guilty of the crime of ” contempt ” in certain cases, to which the said Courts have in their discretion, thought fit to apply that crime;1 and by subjecting them to severe prosecutions and penalties, to which they were not liable, by the Law of the land.

RESOLVED, That it is the opinion of this Committee, that by the said regulations, His Majesty’s Subjects are, in certain cases, unjustly and illegally debarred from the prosecution and defense of their rights, in the said Courts, unless they previously make deposits of money,2 not required by Law to be made, whereby the benefit of the Laws, and the administration of Justice are denied to His Majesty’s Subjects, except on conditions prescribed by the said Courts, with which many of them may be unable to comply.

RESOLVED, That it is the opinion of this Committee, that by the said regulations, rules of Prescription, contrary to law, and destructive of the just and legal rights of His Majesty’s Subjects, are, in certain cases, established.

RESOLVED, That it is the opinion of this Committee, that the said Courts, by the said regulations, have attributed to themselves an extraordinary and unprecedented authority of making spontaneous and unsolicited determinations in a cause, which are stiled ” orders and judgments ex officio,” whereby

1. Section 10 of the Rules of Practice of the Provincial Court of Appeals declared that “every Prothonotary who without lawful cause, shall refuse or neglect to make return of any Writ of Appeal, which shall be issued in auy Suit, and by ihim be received within the period thereby allowed for the return thereof, shall be deemed and taken to be guilty of a contempt of this court.” The Rules of Practice of the Court of King’s Bench for the District of Quebec specified certain offences which were to be considered as “contempts” of court and ordered “that every wilful and unlawful breach of an Order or Rule of Practice of this Court (for which no fine or other specific punishment is provided in the body of such other Rule) shall be taken and considered to be a Contempt of Court.” 2. The eighth section of the Rules of the Court of Appeals declared ” That no Writ of Appeal from any interlocutory or definitive Judgment given in the Court of King’s Bench for the District of Montreal, or in the Court of King’s Bench for the District of Three Rivers shall”issue in any suit until the party Appellant in such Suit shall have deposited in the hands of the Clerk of this Court, the sum of four pounds, to defray the postage of the record in such Suit, and the overplus, if any there be shall by the Clerk of this Court be paid to such Appellant on demand.

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Justice is refused to both parties, in a cause, and the said Courts blend and confound the offices of party and Judge, in the same persons.1

RESOLVED, That it [is] the opinion of this Committee, that the powers assumed by the said Courts, are inconsistent with, and subversive of the constitution of this Province; are calculated to deprive His Majesty’s Canadian Subjects, of their Laws; must render the enjoyment of liberty and property altogether insecure and precarious, and give to the Judges an arbitrary authority over the persons and property of His Majesty’s Subjects in this Province.

HEADS OF IMPEACHMENT OF JONATHAN SEWELL.2

HEADS OF IMPEACHMENT OF JONATHAN SEWELL, ESQUIRE, CHIEF JUSTICE OF THE PROVINCE OF LOWER-CANADA, BY THE COMMONS OF LOWER-CANADA, IN THIS PRESENT PROVINCIAL PARLIAMENT ASSEMBLED, IN THEIR OWN NAME, AND IN THE NAME OF ALL THE COMMONS OF THE SAID PROVINCE.

FIRST.—That the said Jonathan Sewell, Chief Justice of the Province of Lower Canada, hath traitorously and wickedly endeavoured to subvert the Constitution and established Government of the said Province, and instead thereof, to introduce an. arbitrary tyrannical Government against Law, which he hath declared by traitorous and wicked opinions, counsel, conduct, judgments, practices and actions.

SECONDLY.—That, in pursuance of those traitorous and wicked purposes, the said Jonathan Sewell, hath disregarded the authority of the Legislature of this Province, and in the Courts of Justice wherein he hath presided and sat, hath usurped powers and authority which belong to the Legislature alone, and made regulations subversive of the Constitution and Laws of this Province.

THIRDLY.—That the said Jonathan Sewell, being Chief Justice of this Province, and President of the Provincial Court of Appeals, in pursuance of the traitorous and wicked purposes aforesaid, did, on the nineteenth day of January, in the year of our Lord one thousand eight hundred and nine, make and publish, and cause to be made

1. The seventeenth section of the Rules of Practice held that every suit in which reasons of appeal were not filed within one month from the date of the return of the writ of appeal should be considered to have been deserted by the appellant and could be dismissed upon motion on the part of the respondent or ” by the Court ex officio without such motion, as may happen.” 2. From the Journals of the House of Assembly of Lower-Canada, 1814, Appendix P. After the adoption of the report of the Special Committee of the Assembly on the Rules of Practice of the Courts of Justice, the following resolutions were passed by the House on motion of Mr. Stuart and Mr. Lee. Resolved, That Jonathan Sewell, Esquire, Chief Justice of this Province, be impeached on the said report, and the resolutions of the House thereupen, and also on the resolutions of the House of the fourth instant, respecting the authority exercised by the Courts of Justice, under the denomination of Rules of Practice. Resolved, That James Monk, Esquire, Chief Justice of the Court of King’s Bench, for the District of Montreal, be impeached on the said report, and the resolutions of the House thereupon, and also upon the resolutions of the House, of the fourth instant, respecting the authority exercised by the Courts of Justice, under the denomination of Rules of Practice. Resolved, That a Committee of five Members be appointed, to prepare Heads of Impeachment against the said Jonathan Sewell, Esquire, and the said James Monk, Esquire, on the said report and resolutions, and also an humble representation to His Royal Highness, the Prince Regent, conceived in such terms as may be proper to bring respectfully under the consideration of His Royal Highness, the said Heads of Impeachment in the humble hope that measures may thereupon be taken to afford means of obtaining justice, for His Majesty’s Subjects, in this Province, on the said Heads of Impeachment. Ordered, That Mr. Stuart, Mr. Bourdages, Mr. Papineau, Mr. Lee, and Mr. Larue, do compose the said Committee. Resolved, That the said Committee have power to add such Heads of Impeachment, as may appear just and proper, and that they have power to send for persons, records and papers. Journals of the House of Assembly, Lower-Canada, 1814, page 268.

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and published, by the Court of Appeals, various regulations, under the name of “Bules and Orders of Practice,1 repugnant and contrary to the Laws of this Proince, whereby the said Jonathan Sewell, wickedly and traitorously, in so far as in him lay, endeavoured and laboured to change, alter and modify, and to cause to be changed, altered and modified, by the said Court of Appeals, the Laws of this Province, which he was sworn to administer, and assumed legislative authority, and by the said regulations imposed illegal burthens and restraints upon His Majesty’s subjects in the exercise of their legal rights, and attributed to the said Court unconstitutional and illegal powers and authority, altogether inconsistent with the duties of the said Court, and subversive of the liberty and just and legal rights of His Majesty’s subjects in this Province.

FOURTHLY.—That the said Jonathan Sewell, being Chief Justice of this Province, and as such presiding in His Majesty’s Court of King’s Bench for the District of Quebec, in pursuance of the traitorous and wicked purposes aforesaid, did, in the Term of October, in the year of our Lord one thousand eight hundred and nine, make and publish, and cause to be made and published, by the said last mentioned Court, various regulations, under the name of “Bules and Orders of Practice,” repugnant and contrary to Law, by which regulations the said Jonathan Sewell, in so far as in him lay, endeavoured and laboured to change, alter and modify, and cause to be changed, altered and modified, by the said last mentioned Court, the Laws of this Province, which he was sworn to administer, and assumed legislative authority, and by the said regulations imposed illegal burthens and restraints upon His Majesty’s subjects in the exercise of their legal rights, and thereby attributed to the said last mentioned Court unconstitutional and illegal powers and authority, altogether inconsistent with the duties of the said Court, and subversive of the liberty and just and legal rights of His Majesty’s subjects in this Province.

FIFTHLY.—That the said Jonathan Sewell, being such Chief Justice and President of the Provincial Court of Appeals, as aforesaid, and as well by the duties as the oaths of his Offices, bound to maintain, support and administer the Laws of this Province, and award justice to His Majesty’s subjects, according to the said Laws, hath nevertheless, in contempt of the said Laws, and in violation of his said duty and oaths, set aside the said Laws, and substituted his will and pleasure instead thereof, by divers unconstitutional, illegal, unjust and oppressive rules, orders and judgments, which he hath made and rendered, to the manifest injury and oppression of His Majesty’s subjects in this Province, and in subversion of their most important political and civil rights.

SIXTHLY.—That the said Jonathan Sewell, being Chief Justice, as aforesaid, and also Speaker of the Legislative Council of this Province, and Chairman of His Majesty’s Executive Council therein,2 did, by false and malicious slanders against His Majesty’s Canadian Subjects, and the Assembly of this Province poison and incense the mind of Sir James Craig, being Governor in Chief of this Province, against them, and mislead and deceive him in the discharge of his duties as such Governor, and did, on the fifteenth day of May, in the year of our Lord one thousand eight hundred and nine, advise, counsel, and induce the said Sir James Craig, being Governor in Chief as aforesaid, and being under the influence of the false and pernicious suggestions of the said Jonathan Sewell, as aforesaid, to dissolve the Provincial Parliament, without any cause whatever, to palliate or excuse that measure; and did also counsel, advise, and induce the said Sir James Craig, to make and deliver on that occasion a Speech, wherein the Constitutional rights and privileges of the Assembly of Lower

1. See page 443. 2. See page 269, note 2.

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Canada were grossly violated, the Members of that body insulted, and their conduct misrepresented.1

SEVENTHLY.—That the said Jonathan Sewell, being such Chief Justice, Speaker of the Legislative Council and Chairman of the Executive Council as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, and intending to oppress His Majesty’s Subjects and prevent all opposition to his tyrannical views, did counsel and advise the said Sir James Craig, being Governor in Chief as aforesaid, to remove and dismiss divers loyal and deserving Subjects of His Majesty from Offices of profit and honour, who were accordingly so removed and dismissed, without the semblance of reason to justify it, but merely because they were inimical, or supposed to be inimical, to the measures and policy promoted by the said Jonathan Sewell, and in order, in one instance, to procure the advancement of his brother.2

EIGHTHLY.—That the said Jonathan Sewell, in order in the strongest manner to mark his contempt for the liberties and rights of His Majesty’s Subjects in this Province, and his disrespect for their Representatives, and for the Constitution of this Province, did in the Summer of the year one thousand eight hundred and eight, among other removals and dismissals from office as aforesaid, counsel, advise, and induce the said Sir James Craig, being Governor in Chief, as aforesaid, to dismiss Jean Antoine Panet? Esquire, who then was and during fifteen years preceding, had been, and still is Speaker of the Assembly of Lower Canada, and in the full enjoyment of the esteem and confidence of his Country, from His Majesty’s Service as Lieutenant Colonel of a Battalion of Militia, in the City of Quebec, without any reason to palliate or excuse such an Act of injustice.

NINTHLY.—That the said Jonathan Sewell, being such Chief Justice, Speaker of the Legislative Council, and Chairman of the Executive Council as aforesaid, regardless of the dignity and duties of his high offices, and in pursuance of his traitorous and wicked purposes aforesaid, did, by an undue exercise of his official influence, in the month of March in the year of our Lord one thousand eight hundred and ten, persuade and induce Pierre Edouard Desbarats, Printer of the laws of this Province, to establish a News Paper, under the name of the ” Vrai Canadien.”4′ to promote his factious views, and for the purpose of calumniating and vilifying part of his Majesty’s Subjects, and certain Members of the Assembly of this Province, who were obnoxious to the said Jonathan Sewell, into which paper the said Jonathan Sewell caused to be introduced various articles containing gross libels on part of His Majesty’s Subjects, and on’the Assembly of Lower Canada: and that the said Jonathan Sewell did compromit the honour and dignity of His Majesty’s Government, by pledging its support to the said Paper, and holding out assurances of its favour to those by whom the said Paper might be conducted and supported.

TENTHLY.—That the said Jonathan Sewell, being such Chief Justice, Speaker of the Legislative Council and Chairman of the Executive Council as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, and intending to extinguish all reasonable freedom of the Press, destroy the rights, liberties and security of His Majesty’s Subjects in this Province, and suppress all complaint of tyranny and

1. For Sir James Craig’s speech and the reply of the Assembly, see page 366. The decision of Lord Bathurst on the accusation contained in this article is given on page 464. 2. James Stuart, the chairman of the committee appointed to draw up the articles of impeachment was dismissed from the office of Solicitor General of the Province by Sir James Craig, in May, 1809. In the following month the vacancy was filled by the appointment of Stephen Sewell, brother of the Chief Justice. The reasons for Stuart’s dismissal are set forth in Craig’s despatch to Lord Castlereagh of June 1, 1809. The Canadian Archives, Q 109, page 128. 3. See page 360, note 3. 4. Le Vrai Canadien was the organ in particular oí the Prench Canadian party which under the leadership of Judge De Bonne supported the administration. The paper did not last beyond a year.

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oppression, did in the month of March in the year of our Lord one thousand eight hundred and ten, counsel, advise, promote and approve the sending of an armed Military force to break open the dwelling House and Printing Office of one Charles Le François,1 being one of His Majesty’s peaceable Subjects in the City of Quebec, and there arrest and imprison the said Charles Le François, and seize and bring away forcibly a Printing Press, with various private papers; which measure of lawless violence was accordingly executed, and the said Press and papers have since remained deposited in the Court House in the City of Quebec, with the knowledge and approbation, and under the eye of the said Jonathan Sewell.

ELEVENTHLY.—That the said Jonathan Sewell, being such Chief Justice, Speaker of the Legislative Council and Chairman of the Executive Council of the said Prov-* ince, in pursuance of his traitorous and wicked purposes aforesaid, with the intention of oppressing individuals supposed to be suspicious of his character and views, and inimical to his policy, and for the purpose of ruining them in the public estimation, and preventing their re-election as Members of the Assembly of Lower Canada, did counsel, advise, promote and approve the arrest of Pierre Bedard, François Blanehet, and Jean Thomas Taschereau, Esquires,2 upon the false and unfounded pretext of their having been guilty of Treasonable Practices, whereby they might be deprived of the benefit of Bail, and by means of the influence derived from his high offices, under the Government, caused them to be imprisoned on the said charge, in the common Gaol of the District of Quebec, for a long space of time, and at length to be discharged without having been brought to a trial.

TWELFTHLY.—That the said Jonathan Sewell, availing himself of the influence of his said Offices, in pursuance of his traitorous and wicked purposes aforesaid, and in order to mislead the Public, deceive His Majesty’s Government, and obtain pretexts for illegal and oppressive measures, instigated and promoted various acts of tyranny and oppression similar to those last mentioned, in other parts of the province, whereby divers individuals upon the false pretext of having been guilty of treasonable practices were exposed to unjust prosecutions, imprisoned and oppressed, and one of them François Corbeil, being old and infirm, was by the rigour of Ms imprisonment deprived of life, and whereby general alarm and apprehension were excited in His Majesty’s Subjects.

THIRTEENTHLY.—That the said Jonathan Sewéll, being Chief Justice, Speaker of the Legislative Council, and Chairman of the Executive Council as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, on the twenty first day of March, in the year of our Lord one thousand eight hundred and nine, being a time when profound tranquillity prevailed in the province, and when no murmurs were heard, or discontents felt, other than those produced by the tyrannic and oppressive measures previously adopted by the advice of the said Jonathan Sewell, and when the loyalty of His Majesty’s subjects and their attachment to his Government were, nevertheless, unimpaired, did maliciously, traitorously, and wickedly infuse into the mind of the said Sir James Craig, being Governor in Chief, as aforesaid, the most false and unfounded suspicions and alarms, respecting the disposition and intentions of His Majesty’s Canadian subjects; and did counsel, advise, and induce the said Sir James Craig, to issue a Proclamation,3 extraordinary and unprecedented as well

1. Charles Le François was the proprietor of Le Canadien newspaper which was suppressed by Sir James Craig. Por Craig’s account of the proceedings see the Canadian Archives, Q. 112, page 56. 2. Pierre Bedard, Praneois Blanehet and J. T. Taschereau were arrested by Craig on account of their connection with Le Canadien. Por an account of the proceedings against Bedard, see page 379. 3. The proclamation in question was issued on March 1st, 1810, not 1809 as here stated, and was published in The Quebec Gazette of March 22. In it reference was made to the campaign being pursued by Le Canadien and to the arrest of the parties interested in the paper. The proclamation was designed to influence the elections which were then being held and contained a reply to the charges made by Le Canadien.

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in style as in matter, wherein the arbitrary, unjust, and oppressive imprisonment of the said Pierre Bedard, François Blanchet, and Jean Thomas Taschereau, was referred to in such manner, as might induce a belief of their Guilt, and excite the greatest odium against them, and wherein such statements were made as implied that the Province was in a state approaching open insurrection and rebellion, whereby the character of His Majesty’s Canadian subjects was most falsely calumniated, great injustice done to private individuals, and foreign states may have been drawn, and there is the greatest reason to believe from subsequent events were drawn, into a belief of such disloyalty in His Majesty’s Canadian subjects as would render the Province an easy conquest.

FOURTEENTHLY.—That the said Jonathan Sewell, being such Chief Justice as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, did labour and endeavour, by means of his official influence, to extend and confirm the unfounded imputations made, and alarm excited by the said Proclamation, and in the Term of the Court of Criminal Jurisdiction held in the said month of March, one thousand eight hundred and nine, read the said Proclamation in open Court, for the purpose of influencing the minds of the Grand and Petit Juries, in the exercise of their respective duties.1

FIFTEENTHLY.—That the said Jonathan Sewell, being such Chief Justice, Speaker of the Legislative Council, and Chairman of the Executive Council as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, hath laboured and endeavoured to produce in His Majesty’s Government an ill opinion of His Majesty’s Canadian Subjects, with a view to oppress them, and favour the progress of American influence in this Province, and hath traitorously and wickedly abused the power and authority of his high offices, to promote the advantageous establishment of Americans, being Subjects of the Government of the United-States of America, in this Province, and to pave the way for American predominance therein, to the great prejudice and injury of His Majesty’s Canadian Subjects, and with a view to the subversion of His Majesty’s Government.

SIXTEENTHLY.—That the said Jonathan Sewell, influenced by a desire to accelerate a political connexion of this Province, with part of the United-States of America, and to deprive His Majesty’s Canadian Subjects of their present Constitution and Laws, did in or about the month of January, in the year of our Lord one thousand eight hundred and nine, enter into a base and wicked confederacy with one John Henry,2 an adventurer of suspicious character, for the purpose of sowing and exasper-

1. The proclamation was read on the opening of the criminal court for the District of Quebec in March, 1810. The grand jury, in their presentment, observed that they had behelo ” with the deepest eoncern and regret, Publications issuing from the Press, and industriously circulated throughout the Province, which, under the specious pretence of zeal for the Rights of the People have a manifest tendency to vilify and traduce the whole Administration of the Government in this Province, and to poison the minds of His Majesty’s subjects with distrust, jealousy and disaffection; more particularly a periodical paper entitled Le Canadien, and a paper addressed, ” A tous les Electeurs au Bas Canada” signed “Votre Ami Sincère.” See the Quebec Gazette, March 29, 1810. 2. John Henry had been engaged by Sir James Oraig t» conduct a secret enquiry into the condition of opinion in the New England States. The purpose of the mission is learned from Craig’s letter of instructions to Henry, of Pebruary 6, 1809. The Principal object that I recommend to your attention is the endeavour to maintain the most accurate information of the true state of afiairs in that part of the Union which from its wealth, the number of its inhabitants and the known intelligence & ability of some of its leading men must naturally possess a very considerable influence over, and will indeed probably lead the other Eastern States of America in the part that they may take at this important crisis In the general Term which I have made use of in describing the object which I recommend t a your attention, it is scarcely necessary that I should observe I include the state of the public opinion both with regard to their internal politics & to the probability of War with England, the comparative strength of the two great Parties into which the Country is divided and the views and designs of that which may ultimately prevail.” The instructions concluded with directions regarding the means of transmitting Teports

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ating dissention among the Subjects of the Government of the said United-States, and producing among them insurrection and rebellion, and a consequent dismemberment of the union, and in furtherance of the objects of the said confederacy, did, by artful and false representations, counsel, advise and induce Sir James Craig, being Governor in Chief of this Province, to send the said John Henry on a mission to the said United States, whereby the attainment of the views of the said Jonathan Sewell was to be promoted, and the said Jonathan Sewell became and was a channel for the correspondence of the said John Henry, respecting his mission aforesaid : by which conduct the said Jonathan Sewell hath exposed His Majesty’s Government to imputations reflecting on its honour, and hath rendered himself unworthy of any place of trust under His Majesty’s Government.

SEVENTEENTHS.—That the said Jonathan Sewell being such Chief Justice, Speaker of the Legislative Council, and Chairman of the Executive Council as aforesaid, hath laboured and still doth labour to promote disunion and animosity between the Legislative Council and Assembly of this Province, and hath exerted his influence as Speaker as aforesaid to prevent the passing, in the said Council, of Salutary Laws, which had been passed in the said Assembly, and hath during the present war with the United-States of America fomented dissention among His Majesty’s Subjects in this Province, and endeavoured, by various arts and practices, to prevent a reliance on the Loyalty and Bravery of His Majesty’s Canadian Subjects, and produce a want, of confidence in the administration of His Majesty’s Government, and thereby weaken its exertions.

All which crimes and misdemeanors, above mentioned, were done and committed by the said Jonathan Sewell, Chief Justice of the Province of Lower Canada, whereby he the said Jonathan Sewell, hath traitorously and wickedly and maliciously laboured to alienate the Hearts of His Majesty’s subjects in this province from His Majesty, and to cause a division between them, and to subvert the constitution and Laws of this Province, and to introduce an arbitrary and tyrannical Government, contrary to his own knowledge, and the known Laws of this province : and thereby he the said Jonathan Sewell, hath not only broken his own oath but also, as far as in him lay, broken the King’s oath to his people, whereof the said Jonathan Sewell, representing His Majesty in so high an Office of Justice, had in this province the custody: For all which the ‘said commons do impeach the said Jonathan Sewell; hereby reserving to themselves the liberty of exhibiting at any time hereafter any other accusation or impeachment against the said Jonathan Sewell, and adopting such conclusions and prayer upon the premises, as law and Justice may require.

HEADS OF IMPEACHMENT OF JAMES MONK.1

HEADS OF IMPEACHMENT OF JAMES MONK„ ESQUIRE, CHIEF JUSTICE OF HIS MAJESTY’S COURT OF KING’S BENCH FOR THE DISTRICT OF MONTREAL, IN THE PROVINCE OF LOWER-CANADA, BY THE COMMONS OF LOWER-CANADA, IN THIS PRESENT PROVINCIAL PARLIAMENT ASSEMBLED, IN THEIR OWN NAME, AND IN THE NAME OF ALL THE COMMONS OF THE SAID PROVINCE.

FIRST.—That the said James Monk, Chief Justice of His Majesty’s Court of King’s Bench for the District of Montreal,2 in the Province of Lower-Canada, hath traitorously and wickedly endeavoured to subvert the Constitution and established Govern-

” I request to hear from you as frequently as possible and as Letters directed to we might excite suspicion, it may be as well that you should put them under cover, to Mr. Richardson, and as even the addressing Letters always to the same person might attract notice, I recommend you sometimes addressing your Packet to the Chief Justice here, or occasionally though seldom to Mr. Ryland, but never with the addition of his official description.” See Canadian Archives, Q. 109, page 254. 1. From the Journals of the House of Assembly, Lower-Canada, 1814, Appendix G. 2. See page 118, note 2.

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ment of the said Province, and instead thereof to introduce an arbitrary tyrannical Government, against Law, which he hath declared by traitorous and wicked opinions counsels, conduct, judgments, practices and actions.

SECONDLY.—That in pursuance of those, traitorous and wicked purposes, the said James Monk hath disregarded the authority of the Legislature of this Province, and in the Courts of Justice wherein he hath presided and sat, hath usurped powers and authority which belong to the Legislature alone, and made regulations subversive of the Constitution and Laws of this Province.

THIRDLY.—That the said James Monk, being Chief Justice of the said Court of King’s Beiich for the District of Montreal, and President of the Provincial Court of Appeals,1 in causes appealed from the Court of King’s Bench for the District of Quebec, in pursuance of the traitorous and wicked purposes aforesaid, did, on the nineteenth day of January, in the year of our Lord one thousand eight hundred and nine, make, consent to, concur in, approve and publish, and caused to be made and published, by the said Court of Appeals, various regulations, under the name’of “Bules and Orders of Practice,” in the Provincial Court of Appeals, repugnant and contrary to the Laws o* this Province, whereby the said James Monk wickedly and traitorously, in so far as in him lay, endeavoured and laboured to change, alter and modify, and cause to be changed, altered and modified, by the said Court of Appeals, the Laws of this Province, which he was sworn to administer, and assumed legislative authority, and by the said Regulations imposed illegal burthens and restraints upon His Majesty’s subjects in the exercise of their legal rights, and attributed to the said Court unconstitutional and illegal powers and authority, altogether inconsistent with the duties of the said Court, and subversive of the liberty and just and legal rights of His Majesty’s subjects in this Province.

FOURTHLY.—That the said James Monk, being Chief Justice of the said Court of King’s Bench for the District of Montreal, as aforesaid, in pursuance of the traitorous and wicked purposes aforesaid, did, in the term of February, in the year of our Lord one thousand eight hundred and eleven, make and publish, and cause to be made and published by the said last mentioned Court, various Regulations, under the name of ” Rules and Orders of Practice,” repugnant and contrary to the laws of this Province, by which Regulations the said James Monk, in so far as in him lay, endeavoured and laboured to change, alter and modify, and to cause to be changed, altered and modified, by the said last mentioned Court, the Laws of this Province, which he was sworn to administer, and assumed Legislative authority, and by the said Regulations, imposed illegal burthens and restraints upon His Majesty’s Subjects, in the exercise of their legal rights, and thereby attributed to the said last mentioned Court unconstitutional and illegal powers and authority, altogether inconsistent with the duties of the said Court, and subversive of the liberty, and just and legal rights of His Majesty’s Subjects in this Province.2

FIFTHLY.—That the said James Monk, being such Chief Justice and President of the Court of Appeals as aforesaid, and as well by the duties as the oaths of his offices bound to maintain, support and administer the laws of this Province, and award Justice to His Majesty’s Subjects, according to the said laws, hath, nevertheless, in contempt of the said laws, and in violation of his said duties and oaths, set aside the said laws, and substituted his will and pleasure instead thereof, by divers unconstitutional, illegal, unjust and oppressive Rules, Orders and Judgments, which he hath made and rendered, to the manifest injury and oppression of His Majesty’s Subjects in this Province, and in subversion of their most important political and civil rights.

1 See page 136, note 2. 2. See the resolutions of the House of Assembly on the authority assumed by the courts- Page 444.

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SIXTHLY.—That the said James Monk, being such Chief Justice as aforesaid, in pursuance of his traitorous and wicked purposes aforesaid, hath, in the exercise of his Judicial powers, openly and publicly ascribed to the said Court of King’s Bench, the power of altering, changing and modifying the laws of this Province, and hath alleged and declared, that such power had been recognized by all the Judges of the land in the Provincial Court of Appeals, and on such his false, traitorous and wicked opinions and declarations, hath founded judgments of the said Court.

SEVENTHLY.—That the said James Monk, being such Chief Justice as aforesaid, and bound by the laws of this Province to protect and maintain the personal liberty of His Majesty’s Subjects, and relieve them from illegal and unjust imprisonment, hath, nevertheless, contrary to his duty, and in contempt of the said laws, denied Writs of Habeas Corpus to persons legally entitled to them, and thereby deprived His Majesty’s Subjects of their dearest and most important rights, and hath wilfully oppressed them.

EIGHTHLY.—That the .said James Monk, being such Chief Justice as aforesaid, hath, in certain cases, promoted, counselled and advised Criminal Prosecutions, and hath afterwards exercised his Judicial powers, as such Chief Justice, and hath sat in Judgment upon such Prosecutions.

All which crimes and misdemeanors abovementioned, were done and committed by the said James Monk, Chief Justice of the Court of King’s Bench for the District of Montreal, whereby he the said James Monk hath traitorously, wickedly and maliciously laboured to alienate the hearts of His Majesty’s subjects in this province from His Majesty, and to cause a division between them, and to subvert the constitution and laws of this province, and to introduce an arbitrary and tyrannical Government, contrary to his own knowledge, and the known laws of this province: And thereby he the said James Monk hath not only broken his own oath, but also, as far as in Mm lay, hath broken the King’s Oath to his people, whereof the said James Monk, Esquire, representing His Majesty in so high an office of Justice, had in the said District of Montreal, the custody.

For all which the said commons do impeach the said James Monk, hereby reserving to themselves the liberty of exhibiting at any time hereafter any other accusation or impeachment against the said James Monk, and adopting such conclusions and prayer upon the premises as law and Justice may require.

ADDRESS OF THE HOUSE OF ASSEMBLY TO THE PRINCE REGENT.1

To His ROYAL HIGHNESS THE PRINCE REGENT.

May it please Your Royal Highness,

WE His Majesty’s most dutiful and Loyal Subjects, the Commons of Lower Canada, in Provincial Parliament assembled, do acknowledge with gratitude the many and great advantages which have been conferred on this Province by His Majesty’s wise and just Government. Among these, we have reason to assign the first place to the Excellent Constitution, which has been imparted to His Majesty’s Canadian Subjects, whereby their civil and political rights have been secured, and constitutional means provided for the investigation of abuses and grievances, which might, if permitted to continue without remedy, prove not less injurious to His Majesty’s Government, than to the interests of His Subjects.

It would have been gratifying to His Majesty’s faithful Commons, if they could have assured Your Royal Highness, that the beneficent intentions of His Majesty’s Government towards them had been realized in the conduct of its Officers, but, unfortunately, it has become our painful duty humbly to represent to Your Royal High-

1. From the Journals of the House of Assembly of Lower-Canada, 1814, Appendix H.

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ness that, in consequence of abuses of authority, which have been committed by the principal officers in the administration of Justice, the rights of His Majesty’s faithful subjects in this province have been violated in the most essential points.

During the present Session of the Provincial Parliament, the attention of His Majesty’s faithful Commons has been directed to the exercise of an authority assumed by the Courts of Justice, under the denomination of “Rules of Practice,”1 and we have been alarmed to find, that under that name the Courts of Justice have arrogated to themselves powers which belong exclusively to the Legislature, and have made regulations repugnant and contrary to law. These powers have been so extensively ana injuriously exercised as to affect the civil rights of His Majesty’s subjects in the most important points, and in some instances in the most oppressive manner; and would, if continued, deprive His Majesty’s subjects in this province of their constitution and Laws, and subject them to the arbitrary will and pleasure of the Judges.

We His Majesty’s Faithful Commons have found that these abuses of authority have, since the appointment of Jonathan Sewell, Esquire, to be Chief Justice of this Province, originated in the Provincial Court of Appeals, in which (such is its vicious and defective Constitution) that Gentleman and James Monk, Esquire, Chief Justice of the Court of King’s Bench for the District of Montreal, respectively preside on appeals from the judgments of each other, in the Courts of Original Jurisdiction. In January 1809, those Gentlemen concurred in framing Rules of Practice for the Court of Appeals, in which the illegal assumption of authority complained of was exercised, and having thus pledged the Court of last resort for the maintenance of that assumption, they afterwards in the Courts of original Jurisdiction, in which they respectively preside, assumed like authority, and made unconstitutional, illegal and oppressive regulations in those Courts, which they concur in maintaining, and to which their united influence gives entire effect, to the subversion of the Constitution and of the Laws of the Land.

However anxious we have been to direct our undivided attention to measures, which might strengthen His Majesty’s Government in this Province, and increase its energies, for the defence of the Province against the Enemy, we could not postpone the consideration of abuses of such enormous magnitude, which, if not corrected, would deprive the Inhabitants of this Province of all the advantages for the preservation of which, against the open attacks of the Enemy they have already incurred, and are still determined to incur the greatest sacrifices. We His Majesty’s Faithful Commons have therefore been under the necessity of reducing into specific charges, under the name of Heads of Impeachment, the criminal conduct which we impute to the said Jonathan Sewell and James Monk, Esquires, and these embrace other crimes and misdemeanours of those public Officers, for which His Majesty’s Faithful Commons hold them responsible.

I n what relates to the said Jonathan Sewell, Esquire, we have felt it to be our duty, when arraigning his judicial conduct, to charge him also with various acts of tyranny and oppression in the administration of the Government of this Province, and with measures injurious to the honour and interest of His Majesty’s Government, of which we believe, and will prove, him, by his pernicious counsels, to have been the author.

Having investigated and ascertained the abuses and grievances which are the subjects of complaint, and founded determinate accusations on them, We, His Majesty’s Faithful Commons, have done all to which we are competent, for the attainment of justice: it is only from the power of His Majesty’s Government, that we can hope for relief and redress, and our confidence in the justice and wisdom of your Royal Highness, assures us, that our humble appeal to that power will not be ineffectual.

1. See the resolution of the House of Assembly, page 444.

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Wherefore, we His Majesty’s Faithful Commons of this Province, most respectfully beg leave to be permitted to lay at the feet of Your Royal Highness, the grounds of our complaint and accusation against the said Jonathan Sewell and James Monk, Esquires, and pray that in consideration of the premises they may be removed from their respective Offices, and that the authority of His Majesty’s Government may be interposed in such way as, in Your Royal Highness’s wisdom, may appear necessary for bringing them to justice.

The above representation referred to in the Report of a Special Committee, dated the 26th February, 1814.

(Signed) J. STUART, Chairman.

PROCEEDINGS LN THE PROVINCIAL PARLIAMENT ON THE ARTICLES OF IMPEACHMENT.

JOURNALS OF THE HOUSE OF ASSEMBLY.1

Saturday, 26th February, 1814.

* * * * * * *

Mr. Stuart, from the Committee appointed to prepare an Address to His Excellency the Governor in Chief, to inform His Excellency of the proceedings of this House, against Jonathan Sewell and James Monk, Esquires, and to pray, that His Excellency will be pleased to transmit the Heads of Impeachment against them, and the Representation to His Royal Highness the Prince Regent, to His Majesty’s Ministers, that they may be laid before His Royal Highness, and to represent to His Excellency the necessity of suspending the said Jonathan Sewell and James Monk, Esquires, from their offices, until His Majesty’s pleasure may be known, and that His Excellency will be pleased to suspend them accordingly, reported, that the Committee had prepared the draft of an Address, accordingly, which he was directed to submit to the House; And he read the report in his place, and afterwards delivered it in at the Clerk’s table, where the Address was again read, and is as followeth, viz.

TO HIS EXCELLENCY SLR GEORGE PREVOST, BARONET,

Captain-General and Governor in Chief in and over the Provinces of Lower-Canada, Upper-Canada, Nova Scotia, New-Brunswick, and their several Dependencies, Vice- Admiral of the same, Lieutenant-Generdl and Commander of all His Majesty’s Forces in the said Provinces of Lower-Canada and Upper-Canada, Nova-Scotia, and New- Brunswick, and their several Dependencies, and in the Islands of Newfoundland, Prince Edward, Cape Breton and Bermuda, &c. &c. &c.

MAY IT PLEASE YOUR EXCELLENCY,

WE His Majesty’s most dutiful and loyal Subjects, the Commons of Lower- Canada, in Provincial Parliament assembled, beg leave to inform Your Excellency, that we have found ourselves constrained, by a sense of duty, to direct our attention to certain abuses of a dangerous nature, in the Courts of Justice, in which Jonathan Sewell, Esquire, Chief Justice of the Province, and James Monk, Esquire, Chief Justice of the Court of King’s Bench, for the District of Montreal, respectively preside, and to high offences committed by them, upon all which we have framed Heads of Impeachment against the said Jonathan Sewell and James Monk, Esquires, and an humble representation to His Royal Highness the Prince Regent, which we have now the honor of presenting to Your Excellency, and pray that Your Excellency will

1. From the Journals of the House of Assembly of Lower-Canada, page 340.

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be graciously pleased to transmit them to His Majesty’s Ministers, to be laid before His Royal Highness the Prince Regent.

Considering the nature of the charges which it has been our duty to exhibit against the said Jonathan Sewell and James Monk, Esquires, we deem it incumbent upon us, most respectfully to represent to Your Excellency, that it is not consistent with the honor of His Majesty’s Government, or the interests of His Subjects, that the said Jonathan Sewell and James Monk, Esquires, do continue in the execution of their respective offices, while the said charges are depending against them, and we humbly pray, that Your Excellency will be graciously pleased to suspend them from their said offices, until His Majesty’s pleasure may be known.

Mr. Stuart moved to resolve, seconded by Mr. Lee, that this House doth concur in the said Address.

The House divided upon the question. Yeas 14 Nays 4

So it was carried in the affirmative, and

RESOLVED, accordingly.

JOURNALS OF THE HOUSE OF ASSEMBLY.

Thursday, 3d March, 181k-1

At the hour appointed, Mr. Speaker and the House went up to the Castle of Saint Lewis, with the Address of this House, to His Excellency the Governor in Chief.

And being returned:

Mr. Speaker reported, that the House had attended upon His Excellency the Governor in Chief, with their Addresses, to which His Excellency was pleased to make the following answer:

” I shall take an early opportunity of transmitting to His Majesty’s Ministers, your Address to His Royal Highness the Prince Regent, together with the articles of accusation, which have been preferred by you against the Chief Justice of the Province, and the Chief Justice of the District of Montreal; but I do not think it •expedient to suspend the Chief Justice of the Province, and the Chief Justice of the District of Montreal, from their offices, upon an Address to that effect from one branch of the Legislature alone, founded on articles of accusation, on which the Legislative Council have not been consulted, and in which they have not concurred.”

On motion of Mr. Stuart, seconded by Mr. Papineau,

RESOLVED, That the charges exhibited by this House against Jonathan Sewell and James Monk, Esquires, were rightly denominated Heads of Impeachment.”

On motion of Mr. Stuart, seconded by Mr. Lee,

RESOLVED, That it is the unquestionable constitutional right of this House, to offer its humble advice to His Excellency the Governor in Chief, upon matters affecting “the welfare of His Majesty’s subjects, in this Province, without the concurrence of the Legislative Council.

RESOLVED, That it is peculiarly incumbent on this House to investigate abuses, calculated to deprive His Majesty’s Subjects of the benefit of their constitution and laws, and of the pure administration of Justice, and that in bringing under .the view of His Excellency the Governor in Chief, the gross abuses and high offences referred to in the Address to His Excellency, this House hath performed the first and most essential of its duties, to the people of this Province.

1. Ibid, page 388.

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RESOLVED, That it is the indubitable right of this House, to exhibit accusations, to which it is constitutionally competent, without consulting or asking the concurrence of the Legislative Council, and that in framing and exhibiting the Heads of Impeachment referred to in the Address to His Excellency the Governor in Chief, this House hath exercised a necessary and salutary power, vested in it by the constitution.

RESOLVED, That His Excellency the Governor in Chief, by His said answer to the Address of this House, hath violated the constitutional rights and privileges of this House.1

* * * * * * *

JOURNALS OF THE HOUSE OF ASSEMBLY.2

Thursday, 17th March, 1814.

* * * * * * *

On motion of Mr. Lee, seconded by Mr. Gauvreau,

RESOLVED, That the claim of the Legislative Council, to alter or amend money Bills, is contrary to parliamentary usage in this¡ Province and in England.

RESOLVED, That the exercise of the said claim, during the late and present Sessions, tends to render the Constitution of this Province ineffectual, for the purposes for which that Constitution was granted, and to deprive His Majesty’s Canadian Subjects of the benefits thereof.

RESOLVED, That the claims of the Legislative Council, touching the Heads of Impeachment against Jonathan Sewell and James Monk, Esquires,3 are not founded on the Constitutional Law, or any analogy thereto; tend to prevent notorious offenders belonging to that body, from being brought to Justice, and to maintain, perpetuate and encourage an arbitrary, illegal, tyrannical and oppressive power over the people of this Province.

RESOLVED, That while the people of this Province continue to make every exertion to repulse the enemy, they ought also to bestow their attention, through their representatives, upon any plots which may be framed, by criminal and interested individuals, for depriving them of their rights and liberties, and for overthrowing the Constitution and Government, as they are by law happily established in this Province.

* * * * * * *

1. On the 8th of March, the censure of the House of Assembly was modified by the following motion which was carried by a vote of 12 to 9. Monday, 7th March, 1814. “Mr. Lee moved to resolve, seconded bv Mr. Bellet, that notwithstanding the perversa and wicked advice given to His Excellency the Governor-in-Chief, on the subject of the constitutional rights and privileges of this House, and the endeavours of, evil disposed advisers, to lead him into error, and to embroil him with His Majesty’s faithful Commons of this Province, this House has not, in any respect, altered the opinion it has ever entertained, of tho wisdom of His Excellency’s administration of the Government, and is determined to adopt the measures it had deemed necessary for the support of the Government, and the defence of the Pinvince.” Journals of House of Assembly, Lower-Canada, 1814, page 408. 2. From the Journals of the House of Assembly, Lower-Canada, 1814, page 480. After the Heads of Impeachment had been adopted by the Assembly the House resolved that it was expedient that an agent should be appointed for vthe purpose of prosecuting the charges and selected Mr. James Stuart for this position. A clause was therefore inserted u a bill renewing a former revenue act appropriating the sum of Two thousand pounds to cover Mr. Stuart’s expenses The bill as amended by the Legislative Council was not acceptable to the Assembly and accordingly was lost. See page 457. 3. See page 459.

[Page 457]

RESOLUTIONS OF THE LEGISLATIVE COUNCIL ON THE RIGHT OF THE HOUSE OF ASSEMBLY TO APPOINT A SPECIAL AGENT FOR THE PROVINCE.1

Council Chamber Monday 28th February

The Members convened were, The Lord Bishop of Quebec The Honble Messra. Baby Hale Duchesnay Cuthbert Ryland Blackwood McGillivray.

It was moved to resolve,

That the matters contained in the Address of the Assembly to His Royal Highness the Prince Regent,2 now read are not such as have a peculiar and exclusive relation to that House but such as materially affect the interests of the Province at large. That an Address to the Throne by one Branch alone of the Provincial Parliament upon any subjects of General Colonial interests or policy in which the other Branch is equally concerned is unconstitutional and dangerous, necessarily tending to produce discord in Councils, dissension and disorder;

That this House was constitutionally entitled to expect that the Address of the Assembly to His Royal Highness the Prince Regent would not have been concluded upon by the Assembly without its concurrence;

That the said Address appears to this House to cover an attempt on the part of the Assembly to appoint an Agent for this Province3 without the concurrence of this House, whose right to give or to withhold such concurrence the Assembly itself recently recognized by the Bill which they sent up to this House on the 10th February instant entituled “An Act for appointing an Agent in the United Kingdom of Great Britain and Ireland “4 which at the time of presenting the said Addresá was still pending in this House;

1. From the copy in the Canadian Archives, Q. 127, page 300. 2. Early in the session an address was prepared for presentation to the Prince Regent representing ” the state of distress to which this Province is reduced, through the extraordinary efforts it has made, and sacrifices it has undergone, in supporting the War, which, without speedy relief, threatens the ruin of agriculture, general distress, famine, and the depopulation of the country, besides dooming it to pass under the odious yoke of its Enemy and beseeching His Royal Highness to vouchsafe such remedy and relief thereto, as may appear adequate to the emergency.” For the Address of the House of Assembly see the Journals, page 158. 3. After the adoption of the Address the House of Assembly resolved that it should be presented to the Prince Regent by Pierre Bedard and a motion was passed directing that an address should be prepared requesting the Governor to advance the sum of three thousand pounds to Judge Bedard. Subsequently, however, the Assembly requested the Governor to appoint a messenger for the purpose of presenting the address and that the suim of one thousand pounds—wh ch the Assembly promised to pay—should be advanced to defray the expenses of the messenger so appointed, Sir George Prévost, in reply, informed the Assembly that ” whenever a sum of money shall be appropriated by the Legislature, for tnat purpose,” he would take into his consideration the nomination of a messenger or messengers for transmitting the Address of the Assembly.” See the Journals of the House of Assembly, 1812, pages 276, 278 and 314. The House of Assembly, however, undertook to add a clause to the revenue bill of the session making a special appropriation for the expenses of the messenger with the result that tho entire bill was lost. See page 482. 4. The bill here referred to, appointing Pierre Bedard as agent of the Province was passed by the Assembly on Pebruary 8th and sent to the Legislative Council on the 10th. On the following day, a message was sent by the Assembly to the Council, ” to invite their Honours to join a second person to Pierre Bedard, Esquire, to be agent for this Province and

[Page 458]

That the said Address does not contain nor consist with the sentiments of this House upon the several matters to which it relates;

That the application of any sum or sums of money under the pretext of defraying the expences of the person or persons who shall be the bearer or bearers of the said Address to England, without the concurrence of this House would be a manifest and alarming violation of one of its most important rights, calculated to effect it’s total extinction as a constituent branch of the Legislature of this Province; and utterly subversive of that grand principle of the constitution—that the Collective body of the Legislature alone can dispose of the public money of the Province;

That this House will not concur with the Assembly in making provision for the reimbursement of any sum or sums of money that may be applied out of the Public Revenue of this Province for defraying the expences of the Bearer or Bearers of the said Address, because, in the Judgment of this House, there is no necessity for a special Messenger for the purpose of conveying that Address; because applications to His Majesty’s Government which are of a public import can only be properly and constitutionally conveyed through the medium of the Governour of this Province; and because the House has had no intercommunity with the Assembly, in their Address ;—

That this House views, with equal astonishment and concern, the acquiescence of His Excellency the Governour in Chief in the vote of the Assembly which requests him to appoint a Messenger for the purposes above mentioned. An Acquiescence which they cannot but consider to be an unequivocal abandonment of the rights of this House and a fatal dereliction of the first principles of the constitution;1—

The Question of concurrence being put upon each of the above resolutions, severally, and a debate having ensued upon the last,—they were all passed in the Affirmative.

Endorsed. 11.

MEMORIAL OF THE JUDGES OF LOWER CANADA ON THE SUBJECT OF THE IMPEACHMENT OF THE CHIEF JUSTICES.2

To His EXCELLENCY SIR GEORGE PRÉVOST BARONET, Captain General and Governor in Chief in and over the Provinces of Lower Canada, Upper Canada, Nova Scotia, New Brunswick, and their several Dependencies, Vice Admiral of the same, Lieutenant General and Commander of all His, Majesty’s Forces, in the said Provinces of Lower Canada and Upper Canada, Nova Scotia and New Brunswick and their several Dependencies and in the Islands of Newfoundland, Prince Edward, Cape Breton and Bermuda &ca &ca &ca

MAY IT PLEASE YOUR EXCELLENCY

We His Majesty’s dutiful and loyal subjects the Executive Council, Judges in the Court of Appeal, & the puisne Judges of the Court of King’s Bench for the District of Quebec, and of the Court of King’s Bench for the District of Montreal, in

to acquaint their Honours that the House of Assembly will concur in their nomination.” (Journals of the House of Assembly, page 208.) The reply of the Legislative Council was contained in a special message of Pebruary 21st. The Council observed that the Bill to which the message of the Assembly referred was a t the time of the delivery of the message in the possession of the Legislative Council and desired that the Assembly in future, ” will take no notice of the subject matter of any bill of which the Legislative Council shall be possessed, until the Legislative Council shall desire a conference thereon, with the Assembly.” (Journals of the House of Assembly, 1812, page 288.) 1. For Sir George Prevost’s opinion of this resolution see page 464. 2. From the original in the Canadian Archives, Sundry Papers, Lower Canada, Pebruary 26, 1814.

[Page 459]

the Province of Lower Canada,1 deeply sensible of the reproach that has been thrown upon the Judicature of this Country, by the late Resolutions of the Assembly, and affected more especially by that proceeding, which, altho’ we are united with His Majesty’s Chief Justices in the guilt that is imputed, has disjoined us from them in the Impeachment of that guilt; and most earnestly desiring to share with them, whatever severity of animadversion may be thought due to measures, in which we unanimously and cordially concurred, intreat Your Excellency to have the goodness to lay our Memorial upon this subject, together with the Resolutions of the Assembly, and the proceedings of that House thereon, before His Royal Highness the Prince Regent.

Quebec 26 February P Quebec 1814.

Ol. Perrault Edw. Bowen. John Richardson M. Ex. C Montreal

Signed on their behalf & by their authority John Young.

Isaac Ogden J.K.B. Montreal James Reid J.K.B. Montreal Charles Louis FOucher J K B Montreal

A.L. Juchereau Duchesnay J. Kerr Ross Cuthbert John Mure

Thoms. Dunn F: Baby John Young J Williams James Irvine

RESOLUTIONS OF THE LEGISLATIVE COUNCIL ON THE IMPEACHMENT OF THE CHIEF JUSTICES.2

Province of Lower Canada,

Legislative Council. Die Martis 2a Martii 1814.

Resolved,

That by the Criminal Law of England, and of this Province no man can be charged with, or impeached of any Crime or Criminal Offence, but by an Inquest of the Country, the cases excepted in which an Information on the part of the Crown may be filed.

Resolved,

That the lawful Inquest of every County, District or Government by whose Ministry any Subject of His Majesty is charged with or impeached of any Crime or Criminal Offence; however chosen or appointed, represents, for the purpose of such charge or Impeachment the entire Community of the people of the County district or Government in which such subject is so charged or impeached; and acts on their behalf and in their Right.

Resolved,

That the right to charge or impeach any Officer or Officers of His Majesty’s Government, in this province, with or for any Crime or Criminal Offence, or misdemeanor in Office (if any such right exists in this Province), is by Law vested in the entire Community of the people of this Province.

Resolved,

1. The question of the impeachment had already been officially brought before the Executive Council by Sir George Prévost. On Pebruary 28th, the Council was asked to report on the wisdom of acceding to the request of the House of Assembly for the suspension of the chief justices and on the expediency or furnishing the accused with the heads of impeachment previous to their being transmitted to His Majesty’s Government. The Council reported that they had equally with the chief justices ” so strong a Bias on their Minds as must take away all weight or importance from their judgment in this Matter, and were they, in compliance with Your Excellency’s Commands to declare their opinion which under other circumstances, it would have been their bounden Duty to do, it might lead Your Excellency into Error, and thus prove of most pernicious Consequence to His Maiesty’s Government.” 2. From the copy in the Canadian Archives, Q. 127, page 238.

[Page 460]

That the right to charge or impeach any Officer or Officers of His Majesty’s Government in this Province with, or for any crime, Criminal Offence, or misdemeanor in Office doth not vest nor can be vested in any one part of the people of this Province more than in another, but is vested in the whole, collectively, generally and equally. Resolved,

That since the right to impeach any Officer or Officers of His Majesty’s Government in this province with or for any Crime, Criminal Offence or Misdemeanor in Office doth’ not vest in any one part of the people of this province more than another but is vested in the whole collectively, generally and equally, the right to charge any Officer or Officers with or for any Crime, Criminal Offence or Misdemeanor in Office doth not nor can exclusively exist in the representatives of any one part of the people of this province nor can by them be exercised without the participation of the remainder.

Resolved,

That the Members of this House are a component part of the people of this province.

Resolved,

That the Members of this House being appointed by the Crown for Life, do sit , and vote in the provincial parliament in their own right and are not represented in the Assembly.

Resolved,

That the Assembly of this Province, inasmuch as the Members of this House are a component part of the people of this Province, and are not therein represented, are the representatives of a part only of the people of this province.

Resolved,

That every charge or Impeachment of the Assembly alone, is a charge or Impeachment of a part only of the people of this Province.

Resolved,

That every charge or Impeachment by the Assembly alone, being a charge or Impeachment by a part only of the people of this province, no charge or Impeachment of any Officer or Officers of his Majesty’s Government in this province with or for any Crime, Criminal Offence or Misdemeanor in Office can by the Laws and Constitution of this province be exhibited by the Assembly alone, nor without the participation of this House.

Resolved,

That the Imperial Parliament of the United Kingdom of Great Britain and Ireland is the true and perfect representative of the entire Community of the people of the said United Kingdom.

Resolved,

That the. right to charge or impeach any Officers of His Majesty’s Government with or for any Crime, Criminal Offence or Misdemeanor in Office is by the Law and Constitution of the United Kingdom of Great Britain and Ireland vested in the entire Community of the people of the said United Kingdom but is exercised on their behalf and in their right by the House of Commons alone to the Exclusion of the House of Lords.

Resolved,

That the right of hearing and determining all Impeachments exhibited in the- United Kingdom of Great Britain and Ireland, by the people of the said United Kingdom by the Ministry of the House of Commons is by the Law and Constitution of tho said United Kingdom vested in the House of Lords to the exclusion of the House of Commons, and of every other Tribunal.

Resolved,

That the exclusive right of hearing and determining all Impeachments exhibited

[Page 461]

in the Uuited Kingdom of Great Britain and Ireland by the people of the said United Kingdom by the Ministry of the House of Commons being vested in the House of Lords, the House of Lords is thereby and thereby only excluded from all participation in voting or exhibiting any such Impeachment, the Offices of accuser and Judge being totally incompatible.

Resolved,

That the right of hearing and determining Impeachments exhibited in this province by the people of this Province is not vested in the Legislative Council of this Province and that the Legislative Council is not therefore excluded from a participation in voting or Exhibiting any such Impeachment.

Resolved,

That the Impeachment of the Honourable Jonathan Sewell His Majesty’s Chief Justice of this Province by the Assembly alone is an illegal and alarming assumption of power on the part of the Assembly.

Resolved,

That the Impeachment of the Honourable James Monk, Chief Justice of His Majesty’s Court of King’s Bench for the District of Montreal by the Assembly alone is an illegal and alarming Assumption on the part of the Assembly.

Resolved,

That the said Impeachments of the Honourable Jonathan Sewell, and of the Honourable James Monk by the Assembly alone, tend in their immediate Consequences to deprive this House of its lawful rights and privileges, to give the Assembly an ascendency and controul over this House which is entirely incompatible with the due exercise of its Legislative powers, to render the Judges of this province and all other Officers of the Crown in this Province dependent on the Assembly, and thereby endanger not only the right administration of Justice in this province but the right administration of His Majesty’s Provincial Government in General.

Resolved,

That this House doth solemnly protest against the said Impeachments of the Honourable Jonathan Sewell and of the Honourable James Monk by the Assembly alone and against all proceedings whatever, which have been and shall be had on the said Impeachments or either of them.

Resolved,

That an humble Address be presented to His Royal Highness The Prince Regent, beseeching His Royal Highness that he will be graciously pleased to permit His Majesty’s Faithful Subjects the Legislative Council of Lower Canada humbly to lay before the Throne the preceding Resolutions and that he will be further pleased to take the Resolutions aforesaid into His Royal Consideration and thereon to grant such relief in the premisses as to His Royal Highness in his great wisdom shall seem meet and expedient for the security of the Rights of the Legislative Council, and of His Majesty’s Provincial Government in general, and for the Welfare of this Province in future.

Resolved,

That an humble Address be presented to His Excellency the Governor in Chief requesting him to lay the foregoing Resolutions, and the humble Address of this House to His Royal Highness The Prince Regent at the foot of the Throne in such way as he may judge to be most proper.

Attest Wm Smith Clerk of the Legislative Council of the Province of Lower Canada. Endorsed— In 144.

[Page 462]

PREVOST TO BATHURST.1

Quebec 18th March 1814.

My Lord,

………………………………………………………………….

It is with regret I have also to acquaint Your Lordship that a very productive Revenue Bill which yielded during the last year nearly £20.000, together with the appropriation of £20.000 to His Majesty to aid in carrying an the War, and a like Sum for the use of the Militia have been lost in consequence of the Assembly having annexed to the Bill two exceptionable appropriations in which they knew the Council mould not concur, and which consequently occasioned their rejection of the Bill.2

The time of the House of Assembly has been engrossed almost the whole of the Session by the consideration of the power and authority exercised by His Majesty’s Court of Justice in this Province under the denomination of Rules of Practice;3—

The attention of the House was called to this subject principally by Mr Stuart the former Solicitor General who had been dismissed from his Office during Sir James Craig’s Administration,4 and whose personal Animosity towards the two Chief Justices, and particularly towards Mr Sewell, has shewn itself too strongly in the course of the proceedings against those Gentlemen to leave a doubt upon the mind of any unprejudiced person with regard to his motives on this occasion;— Through his influence with some of the leading Canadian Members, who had been induced to consider Mr. Sewell as the author or adviser of the conduct pursued towards the Canadians during the former Administration, a party sufficiently strong was obtained in the House, to vote for the Resolutions which have passed, and for the Address and Articles of Impeachment which followed upon them;— It is necessary however to observe to Your Lordship that this did not take place without an opposition on the part of all the English Members present in the House;— The whole number which voted upon the different questions did not exceed twenty five, being but half the Representation, and out of that number the Impeachment was finally carried by a Majority of nine only;— In the other stages of the Proceedings the minority knowing that their opposition would be unavailing, seldom voted, and only did so in the last instance that it might appear upon the face of the Journals who were the Persons that supported the measure.

Amongst them Your Lordship will find the names of several who had conceived themselves aggrieved by the treatment they had received before I assumed the Government ;— From this circumstance as well as from the nature of the Articles of the Impeachment, it is very evident that the whole of these proceedings have originated in personal pique and party spirit.

The Addresses to His Royal Highness the Prince Regent from the Executive Council and Judges of the Courts of King’s Bench,5 and from the Legislative Council with the Resolutions of that body;6 all which followed almost immediately upon the Proceedings above mentioned and which I have transmitted to Your Lordship in my Dispatches N°. 145 & N° 146; will strongly evince to Your Lordship the sense entertained, by the highest and most respectable Servants of the Crown and by the first authorities in the Country, of the nature of those proceedings.

It is but common Justice to the characters of the two Gentlemen against whom such serious Charges have been preferred to assure Your Lordship, that during the

1. From the cony in the Canadian Archives, Q. 127, page 266. 2. The bill referred to provided for the renewal of the Revenue Act of 1811, 51 Geo. III, cap. 1. The Assembly added to this bill appropriations for the expenses of agents to present a special address of the Amenably and to prosecute the charges of impeachment. See page 457, note 3, and page 456, note 2. 3. See page 443. 4. See page 447, note 2. 5. See page 458. 6. Pee page 459.

[Page 463]

period of my residence in this Province,—now nearly three Years, I have never from any quarter, until the present accusation was made, heard a suggestion against their integrity or ability in the discharge of the duties of, their high Stations, which I have every reason to suppose they have filled with great credit to themselves, and great advantage to the Public, by the due and impartial Administration of Justice in the Province ;

Previous to my receiving the Address of the Assembly1 with their Address to the Prince “Regent and the Articles of Impeachment accompanying it, I had submitted the subject of the suspension of the Chief Justices, as well as the propriety of furnishing them with Copies of the Articles of Impeachment, to the Executive Council who made the Report, a Copy of which is herewith transmitted.2

As, notwithstanding this Report, I knew the opinion of each Member of the Council to be against the suspension, and in favour of supplying the Chief Justices with Copies of the Charges, I did not hesitate,— my own sentiments agreeing with their opinion— to make to the Address of the Assembly the Answer a Copy of which, together with a Copy of their Address3 I herewith transmit;—which Answer as Your Lordship will perceive by referring to the 63d page of the printed Proceedings which I have transmitted gave rise to the violent and intemperate resolutions, on the part of the House, which followed.

In order however to distinguish between me and those whom the Assembly were pleased to term my evil disposed advisers they immediately afterwards passed the Resolutions of which I enclose a Copy.4

The appropriation of Two thousand pounds to defray the expences of the Agent appointed by one of these Resolutions was one of the appropriations annexed to the Revenue Bill before mentioned and which occasioned it’s rejection by the Council. It is, I understand, the intention of Mr Stuart in consequence of his nomination by the House, to proceed to England to support the Articles of Impeachment, and it is said, but I do not know that there are grounds for the Report, that some of the Party have subscribed to bear his Expences.5

The Chief Justices have been furnished with Copies of the Articles of Impeachment and of the proceedings upon them; and Chief Justice Sewell having strongly solicited for leave of absence in order to proceed to England for the purpose of making his defence should he be called upon for that purpose I have granted him leave of absence for six months, and he will embark by the first opportunity after the opening of the Navigation.6

During the Session an Address was voted and prepared by the Assembly to His Royal Highness the Prince Regent upon the State of the Province;7—A Copy of this Address which I now transmit to Your Lordship was sent to me, and I was afterwards addressed by them to transmit their Address to His Royal Highness by such Messenger or Messengers as I might be pleased to appoint for that purpose, and to order an Advance of a sum not exceeding One Thousand pounds Currency to defray the expences of the said Messengers and that the House would make it good;—

Fearing lest the- verbal Answers which I had given to this Address might be misunderstood by the Assembly I sent the written Message, of which I transmit a Copy;8 Shortly afterwards the Council addressed me in order to obtain Copies of

1. See page 454. 2. For the report of the Executive Council see page 459, note 1. 3. See I1 age 455. 4. See page 456, note 1. 5. S uart, however, did not prosecute the charges against the chief justices. 6. For the arguments advanced by Chief Justice Sewell in support of his claim to be furnished with a copy of the articles of impeachment see the Canadian Archives, Q. 130, pt. 3, page 614 7. See page 457, note 2.

[Page 464]

the Addresses of the House to His Royal Highness the Prince Regent and to.myself with my Answers, as they had been refused access to the Journals of the Assembly.— And the same being furnished to them they passed the resolutions,1 A Copy of which I also transmit to Your Lordship and the last of which I can only account for from a total misunderstanding on the part of the Council of my intentions, as it must be evident to Your Lordship from the terms of the answer that I did not mean even to take into my consideration the nomination of a person to present the Address of the House to His Royal Highness the Prince Regent until the three Branches had concurred in an Appropriation for that purpose.

The appropriation of the sum of one thousand pounds for defraying the expences of these Messengers was the other exceptionable appropriation annexed to the Revenue Bill to which I have before alluded, and the Assembly in consequence of it’s rejection by the Council have not thought proper to present the Address to His Royal Highness the Prince Regent in order that it might be transmitted.

I have thus detailed to Your Lordship at length the principal proceedings of the late Session, during which so much of intemperate Spiri.t has been manifested and so constant a disagreement between the two Branches, that I have been happy to avail myself of the opportunity which the termination of the period of four years for which the Assembly was called together has afforded me of recurring to the sense of the people for the choice of new Representatives.

The Provincial Parliament will be dissolved by Proclamation on the 31st. instant and the writs for the new one made returnable the 13th. May next.

From the ineffectual opposition made by the English Members to the proceedings in the last and preceding Sessions of the late Parliament, few, if any of them will be induced again to offer themselves as Candidates, and I imagine nearly the whole of the next Representatives will be Canadians.2

Notwithstanding the measures which the late Assembly have adopted I have no reason to distrust their Loyalty or attachment to His Majesty’s Person and Government;— The loss of the Revenue Bill and of the Appropriations they had made for the Public Service are, I know, matters of sincere regret to many of them, and I am not without hopes that I shall find the next Assembly well disposed to make good the grants of the former one and to give me their cordial support in the Administration of the Government.

I have the honour to be My Lord Your Lordship’s most obedient humble Servant GEORGE PREVOST.

The Right Honble. Earl Bathurst &ca. &ca. &ca.

BATHURST TO PREVOST.3

Sir G. Prevost N°. 72.

Downing Street 12 July 1814

Sir,

Your Dispatches to No. 160 inclusive,, with the Exception of N°. 153 have been received and laid before The Prince Regent

The Success which has marked the opening of the Campaign both in Upper & Lower Canada has again called forth from His Royal Highness the Expression of that approbation of thé Conduct of the Officers and men engaged, which I have so

1. See page 457. 2. See Prevosfs later report confirming this opinion, page 467. 3. From the copy in the Canadian Archives, Q. 136A page 37.

[Page 465]

frequently had occasion to communicate to you in former Dispatches— But while His Royal Highness contemplates with the highest satisfaction these proofs of the Union and Cordiality which subsist between those engaged in the Military & Naval .Service of the Province, He cannot, without deep regret, view the late Proceedings of the House of Assembly of the Lower Province as calculated to excite disunion among H. M’s Subjects, & to paralyze the operations of the War at a moment when it id most necessary that they should be prosecuted with Vigour- The short time which has elapsed since the receipt of those dispatches has precluded me from bringing under His Royal Highness’s Consideration those discussions and disputes in whiph the House of Assembly has been engaged— But altho’ I am thus prevented from adverting to those charges against the Judges, which relate to the Rules of Practice established by them, I cannot avoid availing myself of the earliest opportunity of expressing the entire disapprobation of H. M’s Government of those articles of accusation, whieh impute to the advice of Mr Sewell & MF Monk, such of the acts of Sir Jas. Craig as the Assembly consider to be improper or illegal.1 H.M.’s Govt never can admit so novel & inconvenient a Principle as that of allowing the Governor of a Colony to be divested of his responsibility for the acts done during his administration or permit him to shield himself under the advice of any Persons, however respectable, either from their character or their Office— nor can I believe that the House of Assembly will, upon more dispassionate Consideration, deem such a principle (the admission of which is implied in the charges that have been made by them) as likely either to give additional security to their own privileges, or to- the Rights and Liberties of their Constituents.2

…………………………………………………..

I have the honor &c BATHURST

PREVOST TO BATHURST.3

Private

Head Quarters, Chazy. State of New York 4th Sept. 1814

My Lord

I have to acknowledge the honor of Your Lordships private dispatch of the 12th July which reached me the 28th. Ultimo.

The divisions between the two Houses of Legislature and the intemperate proceedings of the House of Assembly alluded to in Your Lordship’s Letter may and probably will in part be renewed at their next meeting, but however such proceedings are to be deprecated, I by no means apprehend from their renewal the evil consequences anticipated by Your Lordship, or the want of that support from the House of Assembly which the Loyalty and attachment of His Majesty’s Canadian Subjects have hitherto procured for me.

Amidst all the Contests which have taken place between the two Branches of the Legislature, it is but Justice to the House of Assembly to say that I have invariably found a disposition on their part to forward the Views of Government by promoting the measures I have submitted for their consideration, and when those measures have failed of being carried through, it has been more owing to differences between the House and Council upon points of privilege and of a personal nature, than from any desire on the part of the former to embarrass the Government, or to withhold that assistance I was entitled to expect from them. At my first meeting of the Provincial

1. See page 448. 2. This question is more fully discussed by Lord Bathurst in his despatch of July 12th, 1815. See page 469. 3. From the copy in the Canadian Archives, Q. 128, pt. 1, page 208.

[Page 466]

Legislature after my arrival in the Province, I plainly saw that I could not rely upon the strength of the English Party in the House for effecting those measures I might wish to carry through it.

That party being in numbers not more than one fifth of the representation and having from the support it had given to the strong measures of the late Administration, lost its former influence in the House and become objects of jealousy and distrust to the whole of the Canadian Interest, I was sensible that by conciliating the- Canadian Representatives I could alone hope to succeed in the accomplishment of any object I might have in view (and which required the Aid of the Assembly) for the furtherance of the public service in this Colony.

I therefore early after I assumed the Government gave my attention to cultivatethe good will of this class of His Majesty’s Subjects in the Province, and by occasionally bringing them forward when favorable opportunities offered, and when they had a right to expect their interests and pretensions should be consulted, by making them partake of the patronage before almost exclusively bestowed upon the English Subjects,1 and by an attention to the Catholic Clergy and more particularly to its Head, I succeeded in gaining the confidence of the People generally which has since strongly manifested itself in the readiness with which the House of Assembly in the different Sessions that have met since my residence in Lower Canada, have given intomy views and supported the measures I have submitted to them.

The leading Members of the late House were those who suffered severely, and as they conceived unjustly by their imprisonment under the former Administration2 ; it was therefore to be expected that emboldened by the notice which had been taken of them, as soon as they began to feel their own consequence and power in being able to influence the proceedings of the Assembly, they would naturally be desirous to makethat power felt by those whom they thought the Authors of their ill treatment. The Chief Justice having become particularly obnoxious to them, from the part he was supposed to have taken in it, as Sir James Craig’s principal Adviser, they readily entered into Mr. Stewart’s views and united with him in the proceedings which havetaken place against the two Chief Justices, and which being resisted on the part of the Council occasioned most of the Contests that occurred between the two Branches during the last Session.

I am not however aware that in my former Reports to Your Lordship on thissubject I have any where intimated that these contests had at all affected the cordiality which subsisted between the House and myself, or had induced then! to withdraw the confidence they had before reposed in me— in stating to Your Lordship my expectation of a more favorable disposition of the new Assembly I had merely in viewtheir renewal of the revenue Act and appropriations which had been lost by the differences between the two Branches during the last Sessions, as several of the leading Canadian Members had assured me of their regret in having allowed those differences to interfere with the public service— The Proceedings against the Chief Justices and the Contests to which they had given rise, as well as the other differences between the two Houses appearing to me to be common to all Colonial representations and such as had before frequently occurred in His Majesty’s other Provinces, where Constitutions nearly similar existed, I confess I felt no serious alarm from even a prospect of a renewal of those differences, of any embarrassment to His Majesty’s Government, or any encrease of the difficulties of my situation. I was aware that in a neighbouring Province (Nova Scotia) the like proceedings of impeachment had’ been instituted by the Assembly against the Judges in that Colony, that the same had

1. A conspicuous example of Prevost’s use of the patronage was afforded by his appointment of Pierre Bedard, who had been imprisoned by Craig, to the position of Judge of the Provincial Court for the District of Three Rivers.

2. See page 428.

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been resisted on the part of the Council, and yet sustained by His Majesty who had thought fit to direct the Impeachment to be heard before the Privy Council1—that the Judges having been fully acquitted of the charges preferred against them, remained in their Offices for many years afterwards with credit to themselves and to the satisfaction of the ipeople, and that the Province had continued in peace and free from similar contentions ever since— as I thought it not unlikely that the same course might be pursued by His Majesty’s Government on the present occasion which I felt confident would result in a similar acquittal, I looked forward to the termination of our late differences as the consequence, and such I cannot but think would be the case unless other views and dispositions influence the ruling party in the Assembly beyond those by which I consider them to be actuated. The Canadian Members returned to serve on the present House are for the most part the same persons who composed the last, and it is highly probable that the Characters which took the lead in the former will continue to lead in this;—these Leaders are chiefly Lawyers, men who as it appears to me as merely seeking an opportunity to distinguish themselves, as the Champions of the Public for the purpose of gaining popularity and who are endeavouring to make themselves of consequence in the eyes of Government in the hope of obtaining employment from it— some of them held Offices conferred upon them by myself and all of them I have reason to think was it necessary to purchase their Services would be willing to barter them— several of the most respectable English Members of the late House as I have already intimated to Your Lordship would probably be the case have declined becoming Members of the new;2—other English Members have however been elected, but the whole English representation bearing so small a proportion to the Canadian, their support alone, supposing them all united would not afford any effective aid to the Government.

From what I have said on this subject Your Lordship will perceive that it is not probable there can be more than one party in the present Assembly, and that almost wholly Canadian, with the power as being in fact nearly the whole House of effecting whatever their Leaders may think proper to propose; with regard to their general principles and disposition, I cannot bring myself to think that they are either at present or likely soon to become hostile to His Majesty’s Government— the support I have hitherto met with from the Assembly, I still confidently look forward to and from the characters both of the old and new Members I trust I shall not be disappointed in my expectations of finding a majority willing to promote whatever measure I may propose for the good of the Public Service.

I am aware that a different opinion prevails on this head with some highly respectable Officers of His Majesty’s Government in this Country and that by them the most criminal and corrupt views and motives are ascribed to the Leaders of the Canadian Party; that the late proceedings are considered as a proof of their wish and intention to lower in the public opinion all the constituted authorities, and thus by lessening the respect and attachment of the People to the Government to prepare the way for whatever change may be proposed.

1. As early as 1787, a case arose in Nova Scotia which resulted in the impeachment of two of the 3udges. Before a committee of the House of Assembly charges of misconduct were made by two attorneys against Isaac Desehamps and James Brenton, the assistant justices of the Supreme Court of the Province, with the result that the Lieutenant Governor was requested to institute an inquiry into the conduct of the judges. A report of the statements of the Attorneys making the charges was submitted to the Council of the province and the Lieutenant Governor reported that while the case required more deliberate consideration the more serious charges appeared to be without foundation. In 1790, the Assembly presented articles of impeachment against the two judges and asked that the judges be suspended. On the advice of the Council, Lieutenant Governor Parr refused to comply with this request of the Assembly. The articles of impeachment were then transmitted to the British Government and referred to a committee of the Privy Council which reported in favour of the judges. See Beamish Murdoch, A History of Nova Scotia, Vol. III. 2. See page 464.

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This may possibly be true with regard to some few Members of the House, altho’ I very much doubt it,—but as respects the Majority I conceive is unfounded, and that their Loyalty and attachment are sufficiently strong to be proof against any such attempts to seduce them;—

I am however free to confess to Your Lordship that a continuance for any great length of time of similar contests between the two Houses, to those which have lately embroiled them, marked by the same unyielding dispositions, as have been manifested on both sides, might by preventing their agreement on any subject, materially impede the Public Service very much, embarrass the Government in accomplishing those objects which would require Legislative interference, and finally weaken the loyalty and attachment of the people,—> For the prevention of these evils I see no other means more effectual than a perseverance in the conciliatory course I have already adopted with regard to the Canadians, together with an encrease to the numbers of the Legislative Council : By introducing into it men of firmness and moderation who at the same time that they would not give way to any open and marked infringement of the constitution, would occasionally yield to the reasonable wishes and views of the Lower House, the present heat and animosity subsisting between the two Branches might perhaps be in a great measure allayed and more cordiality and agreement take place in their future proceedings.— But I do not think that the exercise of the power given to His Majesty of the 31st., Geo : 3d.1 of making the Office of Councillor hereditary and conferring upon them titles of honor would in the present state of the Country be attended with any good effect— An hereditary and ennobled Legislative Council would be viewed by the Assembly with more jealousy and distrust than even the present one,—particularly as it would be extremely difficult to find amongst the Canadians characters sufficiently respectable upon whom that distinction might be conferred. To add to the present Council is however absolutely necessary and it is therefore my intention shortly to propose to Your Lordship the names of such persons as I think may be safely called to that House and who would form not only an accession of strength to it, but give it a character more likely to obtain the confidence of the Assembly than the present one.—

I have thus detailed to Your Lordship at length my sentiments upon the points contained in Your Letter, I am happy to think that you will have an opportunity of comparing them with those which you will probably receive upon the same subject from an able and enlightened Officer of this Government, the Chief Justice who must before this time have reached England2—his prejudices which I know to be strong will not perhaps allow him readily to subscribe to all my Opinions, but I am confident he will honestly and conscienciously give you all the information he can afford respecting the Politics of this Country, and from our united Statements, Your Lordship will be able to form a tolerably correct estimate of our situation, and of the best means of improving it.

I have the honor to be N My Lord Your Lordship’s Most Obedient and most humble Servant GEORGE PREVOST

To The Right Honble Earl Bathurst &ca. &ca. &ca. Endorsed. Chazy, State of New York 4th. Sept. 1811 Lt. Genl. Sir G. Prévost Private R. 9th. October

1. See the Constitutional Act of 1791, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 696. 2. See page 463.

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BATHURST TO DRUMMOND.1

Downing Street 12th. July 1815

Sir,

In my despatch of the 12th. July 19142 I had the honour of acknowledging the Receipt of certain Charges preferred by the House of Assembly of Lower Canada against The Chief Justice of the Province, and The Chief Justice of The Court of King’s Bench for the District of Montreal.

I at that time conveyed to Sir George Prévost the opinion of his Majesty’s Government, as to such of those Charges, as related to acts done by a former Governor of the Province, which the Assembly assuming to be improper or illegal, imputed by a similar assumption to the Advice given to The Governor by The Chief Justices— On those Charges, as I then stated, no enquiry could be necessary, for none could have been instituted without the Admission of the Principle, that the Governor of a Province might at his own discretion divest himself of all responsibility on points of political Government. I could not believe, that the House of Assembly of Canada could on Reflection suppose, that any Governor of the Province, who had improperly dismissed some public Officers, or arrested others who had promoted the views of His Majesty’s Enemies in the Province, or given just rise to the suspicion of The United States by the improper employment of Spies within their Territory;3 would be allowed to plead in his vindication, that his mind had been poisoned and incensed by the Slanders of the Judges, or his Conduct guided by their pernicious Counsel— It is impossible however not to add, that in this Case there is no reason to suppose that Sir James Craig’s Conduct was such as to need any, still less this, vindication. The House of Assembly never pretended, either during his life, or during the long Interval which has succeeded his Death, to make any Charge against that Officer, or to question the propriety of his Administration of the Government, nor do they appear to have discovered that the acts, now complained of, were illegal, until it was thought they might be brought in aid of an accusation against The Chief Justice arising out of Circumstances totally distinct—

With a view therefore to the general Interests of the Province, and even to the just Privileges of The House itself, His Royal Highness was pleased to refer for Consideration to The Lords of The Privy Council only such of the Charges brought by The House of Assembly, as related to the Rules of Practice established by the Judges in their respective Courts, these being points upon which, if any Impropriety has existed, The Judges themselves were solely responsible—

I have now the Honor of transmitting to you the Result of this Investigation, which has been conducted with all that attention and solemnity, which the Importance of the subject required, and which I have to desire that you will take the earliest opportunity of communicating to The House of Assembly4—-In making that Communication to The House, you will not fail to express the Regret, with which His Royal Highness has viewed their late proceedings against two Persons, who have so long and so ably filled the highest judicial Offices in the Colony; a circumstance the more to be deplored, as tending to disparage in the Eyes of the inconsiderate and ignorant, their Character and Services and thus to diminish the Influence to which

1. From the original in the Canadian Archives, G. 7, page 40. 2. See page 464. 3. See page 449. 4. See page 472, note 3.

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from their Situation and their uniform propriety of Conduct they are so justly entitled,

I have the Honor to be,

Sir, Your most obedient, humble Servant, BATHURST

Lieut General Sir Gordon Drummond K.C.B. &c &c &c

DECISIONS OF THE PRIVY COUNCIL IN THE CASE OF THE IMPEACHMENTS.1

AT THE COURT AT CARLTON HOUSE, THE 29TH JUNE, 1815. (L.S.)

PRESENT

His ROYAL HIGHNESS THE PRINCE REGENT,

His Royal Highness the Duke of York. His Royal Highness the Duke of Cumberland, Archbishop of Canterbury, Lord President, Lord Privy Seal, Duke of Montrose, Lord Chamberlain, Marquis of Winchester, Marquis Wellesley, Marquis Camden, Lord Steward, Earl of Chesterfield, Earl of Harrington, Earl of Buckinghamshire, Earl of Chatham, Earl of Liverpool, Earl of Chichester, Earl of Mulgrave, Lord Charles Bentinck, Viscount Palmerston, Viscount Melville, Viscount Sidmouth, Viscount Jocelyn, Viscount Castlereagh, Lord George Beresford, Lord Arden, Mr. Wellesley Pole, Mr. Bathurst, Mr. Long, Mr. Chancellor of the Exchequer.

WHEREAS there was this day read at the board a report from a committee of the Lords of his Majesty’s most honourable Privy Council,2 dated the 24th of this instant, in the words following viz.

“Your Royal Highness having been pleased, by your order in council of the 10th of December last, in the name and on the behalf of his Majesty, to refer unto this committee a letter from Earl Bathurst, one of his Majesty’s principal Secretaries of State, to the Lord President of the Council, transmitting copy of a letter from Sir George Prévost, dated Quebec, the 18th of March, 1814,3 forwarding an address of the House of Assembly of Lower Canada to your Royal Highness, with certain articles of complaint, therein referred to, against Jonathan Sewell, Esq. his Majesty’s Chief

1. From the printed enclosure in the foregoing despatch, the Canadian Archives, G. 7, page 46. 2. The Committee of the Privy Council consisted of the Lord President, Earl Bathurst, Lord BUenborough, Sir William Scott, the Master of the Rolls, Sir John Nicholl, Lord Chief Justice Gibbs and the Lord Chief Baron. 3. See page 462.

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Justice of the Province of Lower Canada, and James Monk, Esq. Chief Justice of the Court of King’s Bench for the district of Montreal; and also transmitting a memorial from the Executive Council Judges in the court of Appeal, and of the puisne Judges of the Court of King’s Bench for the district of Quebec, and of the Court of King’s Bench for the district of Montreal, in the said province of Lower Canada, praying to be included in the examination and decision of the said articles of complaint, together with a petition from the said Jonathan Sewell, Esq.; in which letter the said Earl Bathurst requests that so much* of the said complaints of the House of Assembly, as relate to the rules of practice stated to have been introduced by the said ehief justices into their respective courts, may be submitted to your Royal Highness, in Council, in order that, if such rules shall be found to have been introduced, it may be decided whether in so doing the said chief justices have exceeded their authority: the Lords of the Committee, in obedience to your Royal Higthness’s said order of reference, have taken the said letter and its inclosures into consideration, and having received the opinion of his Majesty’s Attorney and Solicitor-General, and been attended by them thereupon, and having maturely deliberated upon the complaints of the said House of Assembly, so far as they relate to the said rules of practice, their Lordships do agree humbly to report as their opinion to your Royal Highness, That the rules, which are made the subject of such complaint of the said House of Assembly of Lower Canada, against the said chief justices, Jonathan Sewell, Esquire, and James Monk, Esquire, which, their Lordships observe, were not made by the said chief justices, respectively, upon their own sole authority, but by them, in conjunction with the other judges of their respective courts, are all rules for the regulation of the practice of their respective courts, and within the scope of that power and jurisdiction with which, by the rules of law, and by the colonial ordinances and acts of legislation, these courts are invested, as consequently that neither the said chief justices, nor the courts in which they preside, have, in making such rules, exceeded their authority, nor have been guilty of any assumption of legislative power.”

His Royal Highness the Prince Regent, having taken the said report into consideration, was pleased, in the name and on the behalf of his Majesty, and by and with the advice of his Majesty’s Privy Council, to approve thereof; and to order, as it is hereby ordered, That the said complaints, so far as they relate to the said rules of practice, be, and they are hereby dismissed this board.1

(Signed) JAMES BULLER.

1. Chief Justice Sewell was apprehensive lest the decision of the Government might be interpreted as applying only to the charges relating to advice given to the Governor and to the Rules of Practice and asked that all doubts as to the scope of the decisions should be removed. Lord Bathurst, in a letter to Mr. Sewell of July 27, 1815, stated that ” the charges not specifically adverted to in my letter, appeared to be, with one exception, of too little importance to require consideration, and that (the one against Mr. Monk, which charges him with having refused a writ of habeas corpus) was, as well as all the other charges which are not founded on the Rules of Practice, totally unsupported by any evidence whatever.” The Canadian Archives, G. 7, page 49.

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BATHURST TO DRUMMOND.1

Separate & Confidential

Downing Street 12th July 1815

Sir

I transmit to you by the present mail a copy of the decision to which the Privy Council have come after a full investigation of the charges brought by the House of Assembly of Lower Canada against the Chief Justices Mr Sewell and Mr Monk so far as they related to points for which the Judges were responsible. As it is not improbable that the same spirit which led the assembly to bring forward those charges in the first instance may induce them to urge them or similar charges at some future period I deem it necessary to furnish you with instructions for your guidance in such a case, and I have therefore to desire that in the event of this question being again agitated and your having reason to believe that it will meet with a favorable reception in the House, you should forthwith dissolve the assembly before it shall have proceeded to embody its resolutions in the shape of specific charges.2

I have the honor to be Sir Your most obedient Humble Servant BATHURST

Lieut General Sir Gordon Drummond K.C.B. &c &c &c

RESOLUTIONS OF THE HOUSE OF ASSEMBLY ON THE DECISION IN THE CASE OF THE IMPEACHMENTS.3

JOURNAL OF THE HOUSE OF ASSEMBLY, LOWER CANADA, SATURDAY, 24TH FEBRUARY, 1816.

* * * * * * *

The order of the day, for the House in Committee, on the Report of the Special Committee to whom was referred the Message from His Excellency the Administrator in Chief, relating to the Order in Council on the Impeachments against the Honorable the Chief Justices, being read; The House resolved itself into the said Committee. Mr. Speaker left the Chair. Mr. Dénéchau took the Chair of the Committee. Mr. Speaker resumed the Chair;

1. From the original in the Canadian Archives, G. 7, page 70. 2. See page 473. 3. From the Journals of the House of Assembly, Lower-Canada, 1816, page 340. In accordance with Lord Bathurst’s instructions Drummond communicated the decision of the Privy Council to the House of Assembly by a special message of Pebruary 2nd. (See the Journals, page 96.) A special committee was then, appointed ” to report their opinion on the most expedient manner of proceeding thereon.” On Pebruary 23rd, this committee reported that the matters be disclosed, The said Report is as followeth:— Your Committee having maturely deliberated upon the order of reference is of opinion, that the matters disclosed in the said Message, will render necessary an humble representation and Petition to His Royal Highness the Prince Regent, upon the subject; and that the great importance of the matters involved in the said Message, make it advisable that tho wisdom of the House should be consulted, and its sense taken preparatory to such Representation and Petition.” (Journals of the House of Assembly, 1816, “page 320.) On the following day the House resolved itself into a committee to consider the above report of the special committee and prepared the resolutions here given which were adopted by the House.

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And Mr. Dénéchau reported, that the Committee had come to several Resolutions, which he was directed to submit to the House, whenever it shall be pleased to receive the same.

ORDERED, That the Report be now received.

And he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, where it was again read.

The Resolutions contained in the said Report are as followeth:

RESOLVED, AS the opinion of this Committee, that this House, acting in the name of the Commons of Lower-Canada, in its proceedings relative to the Impeachments of Jonathan Sewell, Esquire, Chief Justice of the Province, and James Monk, Esquire, Chief Justice of the Court of King’s Bench for the District of Montreal, was influenced by a sense of duty, by a desire to maintain the Laws and Constitution of this Province, and by a regard for the public interest, and the honor of His Majesty’s Government.

RESOLVED, AS the opinion of this Committee, that the Commons of Lower-Canada were entitled to be heard, and to have an opportunity of adducing evidence in support of their Charges against the said Jonathan Sewell and James Monk, Esquires.

RESOLVED, AS the opinion of this Committee, that the resistance and opposition of the Legislative Council, of which the said Jonathan Sewell and James Monk, were and are Members, to the right of the Commons of Lower- Canada, to exhibit the said Charges, and the obstructions subsequently interposed to the prosecution of them, prevented this House from being represented by an Agent to maintain and support the said Charges.1

RESOLVED, AS the opinion of this Committee, that this House has always been, and is desirous, of an opportunity of being heard on the said Charges, and of supporting them by evidence, and hath reason to lament that no such opportunity hath hitherto been offered to them.

RESOLVED, AS the opinion of this Committee, that an Humble Representation and Petition, on the behalf of the Commons of this Province, to His Royal Highness the Prince Regent, be prepared, appealing to the justice of His Majesty’s Government, and praying that an opportunity may be afforded to His Majesty’s dutiful Commons of this Province, to be heard upon and maintain the said Charges.2

DRUMMOND TO BATHURST.3

Duplicate No. 107

Castle of St Lewis Quebec 27th Feby 1816

My Lord,

Since I had the honour of Addressing Your Lordship on the 12th of this Month,4

1. Ses page 4S6, note 2. 2. A committee was subsequently appointed to prepare a representation in accordance with this resolution but its proceedings were cut short by a dissolution when the House met on the 26th. In dissolving parliament, Sir Gordon Drummond delivered the following address :— ” The House of Assembly has again entered on the discussion of a subject on which the decision of His Royal Highness the Prince Regent, in the name and on the behalf of His Majesty, has already been communicated to them ; and while I deeply regret that the Assembly should have allowed any consideration to overbear the respect which His Royal Highness’s decision claimed, I feel it my duty to announce to you my determination- to prorogue the present Parliament, and to resort to the sense of the People, by an immediate Dissolution.,” (Journals of the House of Ass”mbly. 1816. pa¡re 348.) 3. From the original duplicate in the Canadian Archives, Duplicate Despatches, Lower Canada. 4. For a copy of this despatch see the Canadian Archives, Q. 136, page 28.

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so intire a turn has taken place in the proceedings of the House of Assembly, that, it is with infinite regret I have to acquaint Your Lordship, I have been compelled, in obedience to the Instructions contained in Your Lordship’s Secret and confidential Despatch of the 12th July,1 to dissolve the Provincial Parlament.

In my Despatch of the 12th inst, I informed Your Lordship that the Message by which I had communicated to the Assembly the pleasure of His Royal Highness the Prince Regent, on the subject of certain charges preferred by that House against the Chief Justices, had been productive of nothing more than a call of the House for the 14th.

At that time I had not the least reason to anticipate any troublesome or disagreeable result from the measure,— on the contrary, good grounds were given me to suppose, that the consideration of the Message would be dropped in the Special Committee which I knew would be appointed for its reference.

On the 14th. a special Committee was, as I expected, named for the consideration of the Message. It consisted of seven Members, and it was pretty well understood they never meant to report.

On the 21st however Mr. James Stuart, the chief instigator of the Charges, (who until then had been absent) and another Member2 were added to the Committee. I now began to be apprehensive of what would follow. On the 23d. the Committee reported that it was advisable that the sense of the House should be taken whether the matter disclosed in the Message did not render it necessary that another Petition and Representation should be presented to His Royal Highness The Prince Regent on the subject.

The sense of the House was accordingly taken on the 24th. when the Resolutions of which I have the honour to inclose herewith, a copy, were passed.3

Finding therefore that the House was again bringing forward, and urging the same charges, I felt it my duty, pursuant to Your Lordship’5 instructions, to dissolve the Provincial Parliament before the .manifest intentions of the Assembly could be effected; which I trust will nieet Your Lordship’s approbation.

This measure was certainly unlooked for, or the Schemes of this branch of the Legislature would have been less openly produced, and more warily agitated; for the natural ill consequences of the dissolution, to the Interests of the Province, cannot but be most severely felt, owing to the very distrustful system followed for years past by the Assembly, of passing Acts, for one year only.

The Province will suffer so much from the temporary stagnation that must necesarily ensue, e’re the operations of the next Parliament can have come to its Aid, that I should reasonably trust, the Assembly would from a regard to its interests alone, be careful of again compelling His Majesty’s Government to have recourse to the same expedient.

With such a composition however as the late headstrong Assembly and indeed several preceding ones, it is impossible to form ought but vague conjectures; and in event of the same Members, or a majority of them, being unhappily returned to serve again, I should not feel warranted in holding out to your Lordship much hope of amendment.

It has evidently been the design of the Assembly in the late Session, to attend to no business, with a view of perfecting it, until they had again brought forward their charges against the Chief Justices, setting at naught the decision of His Royal Highness the Prince Regent thereon. Your Lordship will find this observation fully verified when I inform you that altho’ a Month elapsed between the opening and closing of the Session, yet one Act only was passed, and that of a nature, comparatively speaking, unimportant.

1. See page 472. 2. Mr. Bourdages. 3. See page 472.

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I will now give Your Lordship a few instances of the arrogant pretensions of this Body,— pretensions which if not determinedly opposed to their extinction, will not fail to lead to consequences the most disastrous to the Interests of the Mother Country.

Shortly after the opening of this Session, I learnt, that under a Resolution of the House passed in the Session of 1815 ;1 the Clerk had made an appointment of a -certain person ” to be their Law Clerk, with a suitable salary ” ; and it appeared to be the intention of the House to address me, for the purpose of fixing the amount of that Salary, intimating at the same time, that the Sum of 200 pr . annum would be a, proper stipend.

Finding this glaring attempt at infringement of the Prerogative of the Crown unlikely to succeed, The House did not think it expedient to send me the projected Address, but continued to employ the Person as a Law Clerk, intending to remunerate him largely, and charge it as a contingent expense of the House.

Now I must acquaint Your Lordship that in their anxiety to have this person (a Mr Christie) as their Law Clerk, of their own appointment, for which he was not ~to be indebted to the Crown, or to consider himself as its Officer, more was meant, than met the eye.

I have good cause to believe it was their intention to employ this Mr Christie, who is a young Lawyer, as their Printer, for which this 200 pr annum was to be a consideration, if indeed the tendency of this person to bring into contempt, by every means in his power, His Majesty’s Government, wanted that inducement.

It happens that the Press that was used some years ago in printing the Paper •called ” Le Canadian “,2 the Printer whereof, and others concerned in it, were arrested and put into confinement during the Administration of the late Sir James Craig,— this very Press is now in the hands of some of the most violent and factious Members «of the Assembly, and was to have been conducted and superintended by the person, who in consequence of their appointment of him as a Law Clerk, would thus have been considered their devoted Servant.

The necessity of such an Officer as Law Clerk in the House of Assembly, will not appear to Your Lordship very great, when I inform you that a large portion of the Members are Lawyers; still as the Legislative Council, who really were in want of professional Assistance, had, upon their address praying for such an appointment received that aid, I should not have hesitated to comply with the wishes of the House of Assembly, had they thought proper to submit them to me.

Your Lordship will I fear think me trespassing upon your time, in the length of this communication, but on so important a subject, I feel it my duty to give Your Lordship every information which may enable you to form a just opinion of the Material of which this House of Assembly is composed, and what is to be expected from the conduct of those, of similar construction hereafter.

A Bill having been introduced this Session for granting a salary to their Speaker a Member very properly observed, that as the Prince Regent’s pleasure had not yet

1. On March 14, 1815, the House resolved “that it is expedient that a Law Clerk should ne appointed, for the purpose of preparing Bills and other Law Papers for this House duiing the present Parliament, and that the sum of two hundred pounds per annum should be allowed to the said Clerk, to commence from the 1st of November next.” When the Assembly convened on January 26th, 1816, the Speaker reported that the Clerk of the House had appointed Robert Christie to be Law Clerk and the appointment was thereupon approved. Robert Christie, the historian of Lower Canada, was a native of Nova Scotia. He was admitted to the bar of Lower Canada, and, as here indicated, became allied with the majority in the House of Assembly. Later, however, he became a supporter of Lord Dalhousie’s administration and was elected to the House of Assembly for the county of Gaspé. He was accused by the Assembly of having used his influence with Lord Dalhousie to secure the dismissal of several members of the House from the office of justice of the peace and on these grounds was expelled from the House. He was repeatedly re-elected but was not permitted to take his seat by the majority in the House. He represented the county of Gaspé in the Assembly of the United Province from 1841 to 1854. 2. See page 378, note 2.

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been received, upon the former Bill, it would be better not to enter upon a discussion of the present one,—at all events until some communication had been made to the Governor on the subject.

To this, a Mr. Sherwood, born I believe, but certainly brought up, in the United States of America, but who for some years has resided in Canada, replied, as nearly as possible, in the following terms ; ” that opinions were offered to that House qualified by considerations to which he attached little consequence,— It was of no moment whether the former Bill was assented to or not,— he had great objections to the former Bill— it had limited the Salary of the Speaker to the period of th& Session, and seemed intended to impress him that it was at the good pleasure of Authority to deprive him of it, or to continue it :— that he spumed at debasement by references, where there was no necessity, The public purse was with that House to dispose of, and a prerogative never never to be ceded. He only knew of one King, the King of Great Britain,—neither Governors nor Ministers stood in his estimation other than as responsible officers, whose actions came within the notice of that House:— some people might consider Ministers as Saints, the point of view in which they stood before him was very different.”

This Mr. Sherwood formerly lived in Upper Canada, and was a Member of the Assembly in that Province, when I understand he pursued the same line of conduct. On the breaking out of the late War, he removed to Lower Canada, to avoid serving in the Militia of the Upper Province, which in the part of the Frontier where he resided, was liable to be called out en masse, at a moments warning.1

The conduct of Mr. Papineau,2 the Speaker of the Assembly I cannot but point out as so particularly reprehensible, that I shall feel it my duty to remove him from a situation he holds under Government, vizt. Judge Advocate of Militia. On all occasions has this Gentleman manifested a marked contempt towards the Government, and not only countenanced but also upheld by the influence of the chair in the House, those who sought to undermine its interests, and just powers.

So far did the Speaker carry this contempt, as wholly to omit, (when the attendance of the House was commanded in the Legislative Council Chamber,) paying that respect which it was his particular duty to testify, to His Majesty’s Representative. He retired in the most abrupt’ and insulting manner, without offering the smallest obeisance to the Throne, (which was particularly remarked by the Members of the Legislative Council) and with a low expression of derision on his countenance, that tho’ not easily described, was visible to all present, and no doubt with the vulgar and ignorant was esteemed spirited conduct.

The following will afford Your Lordship a specimen of the sentiments of Mr. Papineau: He most strenuously advocated and supported all the Resolutions, and on the subject of a Message I sent to the Assembly, to make provision for a trifling sum which I had directed to be advanced on the emergency of the occasion, for making repairs indispensably necessary to one of the Goals, The Speaker observed ” That the most shameful abuses had existed in the manner of paying money, without first obtaining the consent of Parliament, and that until the Commons made a determined resistance, their political influence would never be established.—that in future when any new situation might be created, the salary as well as the Person to hold it, should be mentioned in the body of the Act, and thus the Commons would have those men in power who the People chose, and no longer be subject to have favour-

1. Samuel Sherwood represented the county of Grenville in the House of Assembly of Upper Canada from 1800 until 1808. He was elected to the Assembly of Lower Canada for the county of Effingham in 1814 and again in 1816. Proceedings were taken against him in 1816 for the publication of a libellous article in Le Spectateur Canadien. 2. Louis Joseph Papineau had been first returned to the House of Assembly in 1808 by the county of Kent. From 1814 until 1830 he represented the western division of the city of Montreal. He was elected Speaker of the House in January, 1815, in succession to J. APanet.

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ites in situation—that the nomination of Commissioners which had hitherto been left to the Governor, should no longer be permitted.”

In direct defiance of that part of the Message in which was explained to the Assembly the grounds on which His Royal Highness could not admit of the principle that a Governor might divest himself of responsibility on the plea of advice given him, Mr Stuart said ” that the necessity of a responsibility on the part of any Executive Counsellor who might advise acts which might be thought oppressive, was such, that every exertion should be made to bring the thing about, for without it there was no safety; for if shielded by the decision in question An Executive Counsellor could with impunity advise measures of an oppressive nature, The Governor not being amenable to any Court in the Country, and the delinquents in question not being amenable to any but a Tribunal in England, which had decided without hearing, there must be an end of everything.”

Mr. Lee1 another very turbulent member, and chief proprietor of the Press mentioned in a foregoing part of this Despatch, then said “that the House had seized a favorable moment when the Arms and resources of the Province were necessary for its defence, to suspend those grants (the” Army and Militia Bill) until they had carried the measure, which their just complaint had every title to :— that the charges relating to the Rules of practice were so clearly stated as to be within the comprehension of the weakest mind, yet without hearing, it had been decided that they were unfounded,, and that the Rules were such only as were authorized to be made by the Act.”

On the introduction of the Bill for the Speaker’s Salary, Mr Stuart observed that the Bill was regularly introduced, to defer therefore the discussion of it, because a former Bill was hung up, perhaps for ever, was no reason.”

Notwithstanding all this debate, still as there were a number of Country Members, poor ignorant people, who might naturally dread to insult the high authority by which the decision on the Charges against the Chief Justices had been given, a great deal of finesse and management was made use of by the factious party, to persuade these ignorant Members that they had nothing to fear from the authorities insulted.

As much pains were taken to force upon the House a belief that they were convinced of the magnitude of the evils complained of, and that it was incumbent on them to persist in supporting former measures.

Thus my Lord I have endeavoured to give you a clear view of the Actual State of the Interests of Great Britain, and of the estimation in which the authority of the Mother Country is held in the House of Assembly of this Province.

The Picture is an alarming one, but I have felt it to be my duty to bring it before Your Lordship’s consideration, in its true light.

I have the honor to be My Lord Your Lordship’s Most obedient humble Servant

GORDON DRUMMOND

The Right Honble The Earl Bathurst &ca &ca &ca

1. Mr. Thomas Lee had represented the county of Northumberland since 1809. He was later elected for the lower town division of the city of Quebec.

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RESOLUTIONS OF ASSEMBLY, LOWER CANADA, RE CONSTITUTION OF PROVINCIAL COURTS.1

Mr. Dénéchau, from the Committee of the whole House, to take into consideration the existing constitution of the several Courts of Justice, both Criminal and Civil, in this Province,2 and to consider the means by which the same may be ameliorated, and the dispensation of justice rendered certain and uniform through all parts of this Province, reported, according to order, the Resolutions of the Committee; and he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, wherethe Resolutions were again read, as followeth, videlicet:

RESOLVED, AS the opinion of ¿his Committee, that the present constitution of the Provincial Courts,3 is ill calculated for administering the Laws with that certainty, uniformity and dispatch, so essential to the preservation of the lives, liberties and property of all classes of His Majesty’s Subjects within the Province of Lower-Canada.

RESOLVED, AS the opinion of this Committee, that it is expedient and necessary to change the constitution of the existing Courts of Appeal, and of the three Courts of King’s Bench having original jurisdiction for the cognizance of Criminal and Civil Pleas, within each of the Districts of Quebec, Montreal and Three-Bivers, respectively, and to establish in lieu thereof, a moreuniform Provincial Court of Appeals, one Court of King’s Bench for the cognizance of Criminal Pleas, throughout the whole Province, and one Court of Law for the cognizance of Oivil Pleas throughout the same.4

RESOLVED, AS the opinion of this Committee, that it is expedient and necessary that a Superior Court of Oivil Jurisdiction, to be called the Court of Appeals for the Province of Lower-Canada, be constituted and erected, and be composed of His Majesty’s Chief Justice of the ‘Province, and of four Associate Justices, with Salaries sufficient to enable them to maintain the independence of their station, who, or any three of whom, shall have an Appellate Jurisdiction, and may take cognizance of, hear, try and determine, all causes, matters or things, appealed, or-to be appealed, from all Civil Jurisdictions and Courts, wherein an Appeal by Law is or may be allowed.

RESOLVED, AS the opinion of this Committee, that it is expedient and necessary that a Superior Court of Criminal Jurisdiction, to be called the Court of King’s Bench for Criminal Pleas, of and for the Province of Lower-Canada, be constituted and erected, and be composed of the Chief Justice of the Province, and the four Associate Justices of the Court of Appeals, so to be established as aforesaid, who, or any three of whom, shall have Original Jurisdiction to take cognizance of, hear, try and determine, all Crimes and Criminal Offences, committed within the said Province of Lower-Canada, conformably to the existing Laws.

RESOLVED, AS the opinion of this Committee, that it is expedient and necessary that a Court of Law for Civil Pleas, of and for the Province of Lower-Canada, be

1. From the Journals of the House of Assembly, Lower-Canada, 1815, page 374. 2. The committee here referred to was formed by resolution of the 27th February, 1815, and was ordered “to consider the best means to secure the independence of the Puisne Judges, and their undivided attention to the dispensation of justice.” Journals of the House of Assembly. Lower Canada. 1815. page 276. 3. For the Act constitting the provincial corts of Lower Canada, see page 125. 4. In the old province of Quebec and in the province of Lower Canada prior to 1794, a distinc made between civil and criminal jurisdiction in the organization of the courts, the Court of Common Pleas dealing with civil cases and the Court of King’s Bench with criminal cases. (See Constitutional Documents, Shortt and Doughty. 1907, pp. 464 and 471.) By the Judicature Act of 1794 the Court of Common Pleas was abolished and the Court of King’s Bench entrusted with the trial of both criminal and civil cases. Already this organization was being found unsatisfactory and the principle laid down in these resolutions was in later years adopted at the basis for the reconstitution of the judicial system of the province.

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constituted and erected, and be composed of eight Puisnes Justices, with Salaries sufficient to enable them to maintain the independence of their station, who, or any two of whom, in each of the said Districts of Québec, Montreal and Three-Rivers, shall have Original Jurisdiction, and may take cognizance of, hear, try and determine, all Causes of a Civil nature, and where the King is a party, (those purely of Admiralty Jurisdiction excepted) conformably to the existing Laws of this Province of Lower-Canada.

RESOLVED, AS the opinion of this Committee, that it is expedient and necessary, that of the Judges of the said Court for Civil .Pleas, of and for the Province of Lower-Canada, three of the said Judges shall be particularly nominated and appointed to reside within the District of Quebec, three to reside within the District of Montreal, and two of the said Judges to reside within the District of Three-Bivers, each and every of whom shall nevertheless have a concurrent right, and be at all times competent, in case of necessity, to assist in the said Court for Civil Pleas in the several Districts of the said Province.

RKSOIVED, AS the opinion of this Committee, that an Humble Address be presented to His Royal Highness the Prince Regent, praying that he would be graciously pleased to give instructions to the Governor in Chief, to sanction a Bill carrying into effect the Humble Resolutions of this House.

CONSTITUTION OF THE COURT OF APPEALS, LOWER CANADA.1

Copy.

2 Lincolns Inn 16th Novr 1815

My Lord

We have had the honor to receive your Lordship’s Letter of the 2d Ult° transmitting to us a Letter from Lieut General Sir Gordon Drummond dated Quebec the 22d July last,2 stating that doubts have arisen whether the Honorary Members of the Executive Council are entitled to act as Judges in the Court of Appeals, and referring to certain Acts of the British and Colonial Legislatures on the subject. Your Lordship by the Command of His Royal Highness The Prince Regent is pleased to desire that we will take the same into our consideration and report to you our opinion of the Case as stated by General Drummond.

I n obedience to your Lordship’s commands we have considered the same, and have the honor to report that there is no distinction in the Terms of the appointments of the regular and the Honorary Members of the Executive Council, except that the latter cannot attend unless specially summoned, and are not to receive any Salary for their attendance. The Oath administered to both, and the functions to be performed by both when the latter are summoned are the same, and no distinction is pointed out or alluded to in the Statute of the 31st Geo 3d or the Colonial Statutes; we therefore think that Honorary Members of the Executive Council when summoned are duly qualified to sit as Members of the Court of Appeals.3

We have the honor to be &C Signed W. GARROW S. SHEPHERD

Earl Bathurst &c &c True copy of a Copy Robert R. Loring Secy.

1. From the original in the Canadian Archives, Sundries, Lower Canada, 1814. 2. For this despatch see the Canadian Archives, Series Q., vol. 132, page 254. 3. In connection with the appointment and powers of the- honorary members of the Executive Council, see the correspondence of Lord Dorchester, pp. 170 et seq.

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OPINION ON THE PRIVILEGES OF THE HOUSE OF ASSEMBLY AND ON THE CASTING VOTE OF THE SPEAKER OF THE LEGISLATIVE COUNCIL.1

2 Lincoln’s Inn 30th December 1815

My Lord,

We have had the honor to receive your Lordship’s letter of the 20th Instant, transmitting to us two papers containing questions which have arisen on the construction of the Act of 31st Geo : 3rd Chap. 31. respecting the Government of Canada ; and desiring us to take the same into our consideration, and to report to you our opinion thereupon in point of Law; we have accordingly considered the same, and as to the questions stated in the paper No. 12 which we have returned with our report, first ” Whether by the several Clauses referred to the Assembly of Lower Canada is entitled to any privileges under that Statute,” we beg to report to your Lordship that we consider the Members of the Assembly of Canada entitled to such Privileges as are incidental to, and necessary to enable them to perform, their functions in deliberating and advising upon, and consenting to laws for the peace, welfare & good Government of the Province.

In answer to the second question, “Whether the Assembly is entitled to all the Privileges to which the House of Commons of the imperial Parliament are entitled under their own peculiar Law, the Lex Parliamentaria ”

We beg to report, that we think they are not so entitled. The Privileges of the High Court of Parliament composed of the King, The Lords spiritual, and temporal, and Confinons of the Realm, are founded on the antient law and Custom of Parliament and we conceive arise from the supremacy, or as it is sometimes called, the omnipotence of this High Court, when the Parliament or great Council of the Nation thus composed sat together in one Assembly; Tho’ the period when the two houses separated in their sittings, is not ascertained, yet whenever that event took place, each house retained certain privileges and powers; The Lords the judical power; the Commons the power of accusation and impeachment, and to both remained the right to pass bills of Attainder, and of pains and penalties to be assented to or rejected by the King, and each retained the original right of asserting, deciding upon, and vindicating the mighty privileges of their separate houses, but still we apprehend as constituent parts of our great Council or High Court of Parliament by virtue of their united Supremacy. To measure by this standard the privileges of Legislative Assemblies created either by the King’s Charter, or by Act of Parliament, for the purpose of enacting Laws for the peace, welfare & good Government of any particular Colony, or district, part of the Dominions of the Crown of the United Empire, would be to give to subordinate bodies the mighty power of supremacy. The King, by his charter, could not, we apprehend, grant such powers, and tho’ Parliament might, if it should deem it expedient, bestow them, yet unless it has so specifically done, such powers cannot belong to them as incident to their Creation and Constitution. If these powers and privileges belong to colonial Legislatures as arising from or by analogy to the Law & custom of Parliament, they must belong as well to the Legislative Council3 as to the House of Assembly, and then the judicial power in the last resort upon matters arising in the Colony, would be in the Legislative Council; the right to impeach would be in the House of Assembly; and the right to try & adjudge such impeachment would belong to the legislative Council; they would each have a power with the assent of his Majesty to enact Bills of Attainder, and of pains and penalties ; it is however clear that by the Statute the Legislative Council have no judicial powers, belonging to them, neither

1. From the copy in the Canadian Archives, Series Q., vol. 134-1, page 127. 2. See page 483. 3. This position was maintained at the time of the impeachment of Justice Foucher, see page 513.

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have the House of Assembly any power of Impeachment in the legitimate sense of the word, however they may use the term in any accusation or complaint they may make, either to his Majesty in Council or in any petition they may present to the Parliament of the United Empire.1

This claim to possess the same privileges as belong to the House of Commons has sometimes been asserted by certain colonial assemblies, as was done in the year 1764 by the House of Assembly of Jamaica, but we apprehend it has never been admitted or recognized, tho’ in that particular instance it appears to have been thought expedient, so far to comply with their complaint, as to direct the succeeding Chancellor of the Island to vacate and annul the proceeding which had given offence to the House of Assembly. That the House of Assembly of a Colony is not entitled to the same privileges, nor has the same power in vindicating them as belong to the House of Commons of the imperial Parliament has been the opinion of very great and eminent Lawyers in former times.— Such was the opinion of the late Lord Camden,2 when Attorney General, as expressed in these words, ” Our house of Commons stands upon its own laws, the lex Parliamenti, whereas Assemblies in the Colonies are regulated by their respective Charters, Usages, and the Common Law of England, and will never be allowed to assume those privileges which the house of Commons is entitled to justly here upon principles that neither can nor must be applied to the Assemblies of the Colonies.” Such appears also to have been the opinion of Lord Mansfield3 & Sir Richard Lloyd,4 and the same is to be collected from an opinion given by Sir Simon Harcourt5 and Sir Edward Northey6 in the year 1704, and from the opinions of other persons of Eminence, on Oases on which this question has individually arisen. Thirdly, it is enquired, if the House of Assembly are not entitled to the privileges founded upon the lex Parliamentaria to what extent they are entitled? We beg leave to observe that as no particular privilege is stated, as that, to which claim is now made, it is difficult to give a precise answer to this question, or to point out the privileges to which they are by Law entitled, otherwise than by giving a general outline.—

The House of Assembly of Upper Canada has not existed long enough to have established privileges by usage; the Act of Parliament has not delineated any, and we therefore conceive the outline to comprize and to be confined to such only as are directly & indispensably necessary to enable them to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution. We mention some of these as examples; personal liberty, eundo, redeundo et morando, or freedom from arrest, in civil Cases ;* a power to commit for such Acts of contempt in the face of the House of Assembly as produce disturbance and interruption of their proceedings,8 the freedom of debate upon the subjects of the Laws to be enacted or considered; they think also they, would have the power of

1. See the statement of Sir Geo. Prévost in connection with the impeachment of Sewell and Monk, page 462 and also the Resolutions of the House of Assembly, page 443. 2. Charles Pratt, first Earl of Camden became Attorney General on the elder Pitt’s accession and later became Chief Justice of the Court of Common Pleas. 3. William Murray, first Earl of Mansfield succeeded Pelham as Attorney General to the Duke of Newcastle’s Administration, and later became Lord Chief Justice of the Court of King’s Bench. 4. Sir Riehard Lloyd, D.C L., admiralty advocate, 1674-85; chancellor of the dioceses of Landaff and Durham, Judge of the High Court of Admiralty, 1685. 5.’Simon, first Viscount Harcourt, succeeded Sir Edward Northey as Attorney General on 25th April, 1707, but resigned that office on 12th February, 1708. He was re-appointed to succeed Sir James Montague on 19th September, 1710. 6. Sir Edward Northey held the office of Attorney General from 1701 to 1707 and from 1710 to 1718. 7. In this connection see the proceedings relating to the arrest of John Young, supra page 162 et seq., and also the argument and judgment on the application for the release of Pierre Bedard, supra, page 420 et seq. 8. See the proceedings in the House of Assembly, Upper Canada, relating to the action of Chief Justice Scott in liberating Robert Nichol after he had been arrested on a warrant issued by the Speaker of the House of Assembly.

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expelling a Member convicted by any competent Tribunal of a crime of an infamous nature, and as to this latter instance, we are warranted by an opinion of Lord Mansfield and Sir Richard Lloyd in the year 1755.1 The right of regulating and ordering their own proceedings in their Assembly consistently with the Statute must necessarily be incident to them, and as to the privilege of deciding upon the right of sitting either in legislative Council, or the house of Assembly, this can no longer be a question of privilege, because such right is in certain cases given by the 31st of Geo : 3d Ch. 31 to the Legislative Council as to their Members2 and is enacted by the Provincial Statute of the 48a1 Geo. 3d Chap. 21s as to the houses of Assembly.

As to the question stated in the paper N° 24 which we have also returned with this Report, ” whether the course of proceeding therein described is the legal course of proceeding in the legislative Council of Lower Canada under the Statute of the 31st of Geo. 3rd Ch. 31,” we beg to report to your Lordship that we conceive the true meaning of a casting vote to be that of a second vote given to some Member of the constituted body in case there shall be an equality of votes including such members original vote: the phrase however is also in common parlance used as descriptive of the vote of some particular member or officer of such Body, who by its constitution has no vote in the original deliberation or decision of the question proposed, but whether it is to be understood in one sense or the other must be decided by the Charter or Act of Parliament constituting the body, if it be extant ; or by antient & immemorial usage if no such Charter or Act earn be found :—The ancient and immemorial usage of the house of Commons, manifesting the Law & Custom of Parliament, is the foundation of the practice of the Commons’ House of Parliament, which does not, and cannot apply to the Legislative Council of Canada—To decide the present question, resort must be had to the Act of the 31st Geo. III Ch. 31, for neither in the regulation of their own proceedings, nor in any other respect can the Legislative Council act against the provisions of that Statute. If the Parliament had meant that the person who should be appointed Speaker should be thereby deprived of any of his rights or franchises as an individual Member, and should not vote unless the other Members (exclusive of himself) were equally divided, we are of opinion the Statute would have been penned in very different terms ; there is nothing in the Clause referred to which divests the Speaker of any of the rights belonging to him as a Member of the Legislative Council separate and distinct from the Office or Character of Speaker. Tho’ the Legislative Council is not confined to any definite number yet it may frequently happen that the number of which it is composed, or the number which may attend, will be an even number; Upon such occasion if the Speaker were excluded from giving an original vote, a majority might exist on a question on which he might think with the minority, and by that means he would be deprived of the exercise of his right or franchise. To prevent the inconvenience of equal division, when his vote is included, it was, that the Statute gave the casting Tfote to him on an equality of Voices,—and we are of the opinion that the giving the casting vote in terms was meant to give a vote or power of voting superadded to his original vote as an abridgement or in derogation of his original and inherent right of voting as Member. We therefore report to your Lordship that we are of opinion that the proceeding stated

1. See the proceedings in the House of Assembly, Lower Canada, relating to the expulsion of Charles Bouc, page 285. 2. See Constitutional Act, section 12, Constitutional Documents, Shortt and Doughty, 1907. p. 697. 3. See page 332. 4. See page 484.

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in the paper N° 2 is the legal course of proceeding, and that the Legislative Council has put a right construction on the Act of Parliament.

We have the honor to be My Lord, Your Lordship’s most obedient Servants

W GARROW,1 S. SHEPHERD2

To the Right Honorable Earl Bathurst

N° 1.

By the second section of the Schedule 31 Geo. III. Cap. 31, It is enacted, ” That his Majesty, his Heirs or successors, shall have power during the continuance of this Act, by and with the advice and consent of the Legislative Council and Assembly of such Provinces,” (Upper and Lower Canada respectively) to make “Laws for the peace, welfare & good government thereof, such Laws not being repugnant to this Act.”

By the 27th Section of the same Statute, It is enacted ” That the said Legislative Council and Assembly in each of the said Provinces, shall be called together once at least in every twelve Calendar Months, and that every Assembly shall continue for four years from the day of the return of the Writs for chusing the same; and no longer, subject nevertheless to be sooner prorogued or dissolved.”

And by the 28üx Section, it is enacted, ” That all questions which shall arise in the said Legislative Councils or Assemblies, respectively, shall be decided by the majority of voices of such Members as shall be present, and in all cases where the Voices shall be equal, The Speaker of such Council or Assembly, as the case shall be, shall have casting Voice.”

These are all the Clauses of the Statute That relate directly or indirectly, to the Authority, Power, Rights or Privileges of the Assembly of Lower Canada, or of its members; yet under these Clauses, That Assembly claims all the Privileges, to which the House of Commons of the Imperial Parliament is entitled, and exercises them, as often as opportunities occur for that purpose.

Questions.

Is the Assembly of Lower Canada entitled to any Priviledges under these Clauses of the Statute? Are they entitled, to all the Priviledge to which the House of Commons, of the Imperial Parliament, are entitled, under their own peculiar Law, The Lex Parliamentaria ? And if not, To what Extent are they Entitled?

Endorsed: N° 1

1. Sir William Garrow was born on the 13th April, 1760. He was admitted a student at Lincoln’s Inn in 1778 and called to the bar in 1783. He succeeded Sir Thomas Plumer as Solicitor General to Lord Liverpool’s Administration in 1812, and was appointed Attorney General on 4th May, 1813. In 1814 he also received’the appointment of Chief Justice of Chester. He was admitted to the Privy Council on 22nd Pebruary, 1832, and died on 24th September, 1840. 2. Sir Samuel Shepherd was born on 6th April, 1760. In July, 1776, he entered the Inner Temple, and on the 23rd November, 1781, was called to the bar. He was appointed Solicitor General to the Crown in 1813 and in 1817 Attorney General. He refused in 1818 the Offices of Chief Justice of the courts of King’s Bench and Common Pleas. In 1819 he accepted the post of Lord Chief Baron of the Court of Exchequer for Scotland and became member of the Privy Council on 23rd July of the same year. He died in 1840.

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N° 2.

By the 28th Section of the Statute 31 Geo. III. cap 31, It is enacted, with respect to the Legislative Councils and Assemblies of the Provinces of Upper and Lower Canada—as follows, viz ” That all questions which shall arise in the said Legislative Councils or Assemblies respectively, shall be decided by the Majority of Voices of such members as shall be present, and that in all cases where the voices shall be equal, The Speaker of such Council or Assembly, as the case shall be, shall have a casting Voice.”

In the Assembly of Lower Canada The Speaker according to the usage of the English House of Commons has never voted until there was what is commonly called a ” Tye ” and he has then given his Vote. But in the Legislative Council, the Speaker according to the practice of the House of Lords has always in the first instance given his Vote as a member, and afterwards in case of a ” Tye ” has given his casting Voice, declaring the question to be decided in favor of the side for which he voted.

This mode of proceeding in the Legislative Council, was continued until the last Session of the Provincial Parliament, when its legality being doubted by some members, It was dismissed and declared by a resolution of the House to be the legal course of proceeding, under the above mentioned Statute.

Question.

Is this the legal course of proceeding in the Legislative Council of Lower Canada under the above mentioned Statute.

Endorsed : N° 2.

PROCEEDINGS RELATIVE TO THE APPOINTMENT OF A PROVINCIAL AGENT, LOWER CANADA.1

JOURNALS OF THE HOUSE OF ASSEMBLY.

Saturday 18th February, 1815

Mr. Bruneau, from the Committee2 of the whole House, to whom it was referred to consider the necessity of having an Agent or Agents residing in Great Britain, for the purpose of attending to the interests of this Province, reported, according to order, the Resolutions of the Committee : and he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, where the Resolutions were again read, as followeth :

RESOLVED, That it is the opinion of this Committee, that it is necessary for the inhabitants of this Province, that a person fitly qualified, be appointed an Agent near His Majesty’s Government in the United Kingdom of Great Britain and Ireland, for the purpose of soliciting the passing of Laws, and for the transacting of such public matters, as shall be from time to time committed to his care, for the good of the said Province.4

RESOLVED, That it is the opinion of this Committee, that the concurrence of the Honorable the Legislative Council, in the said Resolution, be desired.

1. From the Journals of the House of Assembly, Lower Canada, 1815. 2. The House Tesolved itself into a Committee of the Whole on 31st January, 1835, for the purpose of considering ” the necessity of having an Agent or Agents, residing in Great Britain, for the purpose of attending to the Interests of this Province.” The committee reported on 17th Pebruary, that they had prepared resolutions which were the same as those here given. Journals of the House of Assembly, Lower Canada, 1815, pp. 96, 198, 210. 3. The Legislative Assembly had already frequently proposed the appointment of a provincial agent and the powers which it proposed to confer on the agent may be seen from the bill prepared in 1810. See page 369.

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On motion of Mr. Lee, seconded by Mr. Bruneau,

ORDERED, That the question of concurrence be now separately put upon the said Resolutions.

Accordingly, the said resolutions were again severally read, and the question of concurrence being separately put thereon, they were agreed to by the House.

RESOLVED, That this House doth concur with the Committee, in the said Resolutions.

ORDERED, that Mr. Lee do carry the said Resolutions to the Legislative Council.

Friday, 3d March, 1815.

A Message from the Legislative Council by Mr. Smith, Master in Chancery :

Legislative Council, Thursday, 2d March, 1815.

RESOLVED, That in the opinion of this House, the Governor, Lieutenant Governor, or Person Administering the Government of this Province for the time being, is the fit and constitutional channel of communication between the Legislative Bodies in this Province, and His Majesty’s Government in the United Kingdom of Great Britain and Ireland.

RESOLVED, Therefore, that this House doth not concur in the measure proposed in the Message of the Assembly of the eighteenth February last.

ORDERED, That the Master in Chancery do go down to the Assembly with the Resolution of the twenty-third of February last, and the Resolution of this day.

Monday, 20th March, 1815.

Mr. Lee, from the Committee to whom was referred the Written Message from the Legislative Council, of the second instant, upon the Resolution of this House, communicated to them, relative to an Agent for this Province, to be appointed to reside in the United Kingdom of Great Britain and Ireland, in order to solicit the passing of Laws, and attend to the interests of this Province, reported, that the Committee had enquired into the object of the said Message, and had come to an opinion thereon, which ha was directed to submit to the House, whenever it shall be pleased to receive the same: and he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, where the said Report was again read, as follows :

Your Committee took into its serious consideration the contents of the Message from the Legislative Council, delivered to this House on the third instant.

Your Committee is of opinion, that the Governor is the proper ana constitutional channel of communication between the Legislative Bodies in this Province, and His Majesty’s Government in the United Kingdom of Great Britain and Ireland, but that it does not follow that the Province ought to be deprived of an Agent resident in Great Britain to solicit the passing of Laws, and attend to the interests of the province at the seat of the Imperial Government.

Your Committee has had occasion to recur to the usages of the British Colonies, and among others that of the Island of Jamaica. It is observed, that in the last mentioned Colony, Laws are passed from time to time for that purpose; and the Bills which have been introduced into this House, are Copies of the Act to appoint an Agent for the Island of Jamaica. It does not appear that the Imperial Government, or the Branches of the Legislature in that Island, have ever held that it is a contravention of the principles of the Colonial Governments, to have an Agent resident in the United Kingdom.

The necessity that the Colonies should have an Agent, will appear evident, if it be considered that each Branch of the Colonial Legislature has a right to Petition the Branches of the Imperial Legislature; a right which is common to all His Majesty’s Subjects. Although the Governor may transmit the Petitions of the respective

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Branches of the Legislature, to the Foot of the Throne, he cannot without much difficulty and inconvenience transmit those to the House of Lords and House of Commons, and he could not support them himself before those Houses, nor solicit the passing of Laws, nor conduct many affairs which can only be conducted by a person himself resident in Great Britain. By whom then can this be done, unless by an Agent resident therein?

The Colonial Legislature would otherwise, in certain cases, be deprived of the right of petitioning, and always restrained in its exercise; which would also be the case with respect to the Imperial Legislature, in the exercise of its undeniable privilege of receiving and hearing Petitions from the Colonies—a thing not to be supposed:— and all measures tending to deprive the Colonies of that right of petitioning, and the Imperial Parliament of receiving the Petitions, would be high infringements of the lights of the Imperial Parliament, and of the rights of the Colonial Legislatures.

But a peculiar and pressing necessity exists that the Province of Lower-Canada Should have an Agent resident in Great Britain, to allay the uneasiness of its Inhabitants; more especially at the present moment, inasmuch as they fear that endeavors are now making to prejudice against them the Imperial Government and the British Nation, and to effect a change in the free Constitution which British wisdom has conferred upon them, by means of an union of the two Canadas, of which the Language, Laws and Usages, totally differ.1—That uneasiness will cease whenever they shall have an Agent resident in England. The obstacles encountered by this House, in the prosecution of the Impeachments against Jonathan Sewell and James Monk, Esquires, afford additional reason for the nomination of an Agent for the Province.2

On motion of Mr. Lee, seconded by Mr. Gauvreau,

RESOLVED, That an Humble Address be presented to His Excellency the Governor in Chief, praying His Excellency to be pleased to represent to His Royal Highness the Prince Regent, the desire of the Inhabitants of this Province to have an Agent resident in the United Kingdom, and the expediency of their having an Agent so resident, and to pray His Royal Highness to be pleased to give instructions to the Governor of this Province, to recommend to the Provincial Legislature the appointment of such an Agent.

DRUMMOND TO BATHURST.3

Castle of St. Lewis Quebec 6th March 1816

Duplicate N° 111.

My Lord

With reference to my Dispatches of the 27th & 28th Ult° N°s 107* & 108,5 I have now the honour to acquaint Your Lordship that with the advice and consent of the Executive Council of this Province, I issued my Proclamation on the 29a Ult°. dissolving the Provincial Parliament and calling a new one, the Writs to bear test the 8th Instant and to be returnable on the 25th April

1. The contest between Sir James Craig and the House of Assembly had indicated clearly the possibility of a political deadlock, and the union of the two Canadian provinces was seriously considered as a means of avoiding such an issue. The question of union is discussed by Sir James Craig in his despatch to Liverpool May 1st, 1810, and forms the subject of a special opinion of the Chief Justice, see pages 395 and 400. 2. See page 456, note 2. 3. From the contemporary copy in the Canadian Archives, Duplicate Despatches, Lower Canada, 1816. 4. For Sir Gordon Drummond’s despatch No. 107, see page 473. 5. For Sir Gordon Drummond’s despatch No. 108 of Peb. 26, 1816, see Duplicate Despatches Lower Canada, 1816.

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I before represented to Your Lordship my apprehensions, that necessary as this measure certainly was to arrest the proceedings of the Assembly who were thus flying in the face of the Government, and displaying the utmost contempt for its authority, still in event of the same Members or a Majority of them being again returned to serve in Parliament, little or no alteration in their sentiments or conduct was to be expected.

The Advertizements of two of the Candidates which I herewith transmit, will1 convince Your Lordship that this opinion was not formed without sufficient grounds.

As it would be wholly useless in such a case to call together the ensuing Parliament for Dispatch of Business, I shall feel it my duty to await Your Lordship’s Instructions for my further guidance in event of the same line of conduct being persevered in by the House of Assembly, in again bringing forward and urging charges on which the decision of His Boyal Highness the Prince Regent has already been “Communicated to them.

I must therefore request Your Lordship’s earliest consideration on this Subject, and

Have the honor to be My Lord Your Lordship’s Most Obedient Humble Servant GORDON DRUMMOND.

The Right Honble The Earl Bathurst &c &c &c

BATHURST TO SHERBROOKE.1

Downing Street 31st May 1816.

Sir,

Since I last had the honor of addressing you I have received Sir Gordon Drummond’s dispatch of the 27th February3 announcing the reasons f°r which he had felt himself compelled to dissolve the Assembly and reporting the general temper of that body.

His Majesty’s Government cannot conceal from themselves that if the succeeding Assembly should be animated with a spirit similar to that displayed in the late proceedings of their predecessors it will be in vain to expect from them that attention to the interests of the Province which might under other circumstances be looked for from them or those votes of Money which are indispensible to the carrying on the public Service. Under these circumstances it becomes a matter of necessity to ascertain as far as possible the Amount of Revenue which is placed at the disposal of the Crown independent of the Bills annually passed by the Legislature and to retain at the disposal of Government all Eunds whether derived from these or other sources of which the Crown is now legally in possession. I am therefore to desire with a view to the former object that you will as soon as possible furnish me with a statement of the

1. The advertisements tere referred to are those of Pierre Bruneau to the electors of the Lower town of Quebec, and Peter Brehaut to the electors of the county of Quebec, asking support as a vindication for their action in voting for the resolutions which brought about the prorogation of the Assembly. 2. From the original despatch in the Canadian Archives., G 8, page 75. 3. See page 473.

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permanent Revenue of the Province1 and the ordinary and extraordinary charges upon it and that you would until further directions from hence forbear to act upon my dispatch of the 10th May in which I directed you to transfer to the Trustees of the Royal Institution for the advancement of Learning the Estates which formerly belonged to the Order of Jesuits.2 Eor although His Royal Highness The Prince Regent is most anxious to add to the means of promoting the education of His Majesty’s Subjects in Canada by the appropriation of the produce of these Estates in the manner already pointed out to you yet the necessity of providing for the other necessary expences of the Province in the event of the Legislature declining that duty, compels His Royal Highness to retain at his disposal the Eunds which he was under other circumstances prepared altogether to abandon and which he is not the less desirous of appropriating annually to the purposes of education whenever the Legislature shall previously provide for the current expences of the Year.—Should the conduct of the succeeding Assembly correspond with that of the Assembly so recently dissolved you will of course see the necessity of not defraying from the Funds remaining at the disposal of the Crown any charge for which the Legislature have hitherto been in the habit of specially providing by annual Grants ; as it will be for His Majesty’s Government hereafter to decide upon a review of the whole actual charge of the Colony compared with the means of defraying it how far the charges for which provision has heretofore been annually made are proper to be defrayed out of the permanent Revenues of the Crown.

I have the Honor to be Sir, Your most obedient Humble Servant BATHURST.

Lt General Sir John C. Sherbrooke G.O.B. &c &c &c

BATHURST TO SHERBROOKE.3

Downing Street 7th June 1816

Sir,

Upon your arrival in Canada your attention will naturally be directed to the causes which led to the dissolution of the Assembly of the Province by Sir Gordon Drummond4 and it appears desirable that you should at the same time be in possession of the views of His Majesty’s Government on this subject in order to regulate your future conduct towards that body.

Although His Majesty’s Government are always averse to the exercise of this Prerogative of the Crown in any case in which it can with safety be dispensed with yet

1. A classification of the revenue of the Crown may be found in Lord Dorchester&#82#8217;s message to the Provincial Legislature of April 29, 1794. See page 262, note 2. 2. Frequent representations had been made to the British government by Bishop Mountain on the absence of adequate facilities for the education of the youth of the province. The Boyal Institution for the Advancement of Learning had been formed in 1802 for the purpose of establishing a system of public instruction. This corporation was closely allied with the Church of England and in consequence was unable to secure appropriations from the House of Assembly. It was therefore under the necessity of appealing to the governor for aid from the crown ‘revenues and, as here indicated, Lord Bathurst had decided to appropriate for its use the lands known as the Jesuit Estates. For Lord Bathurst’s despatch of May 10th, 1816;, see Canadian Archives G. 8, page 65. 3. From the original despatch in the Canadian Archives, G. 8, page 79. 4. For Sir Gordon Drummond’s statement of the causes of the dissolution, see page 473.

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they have felt no hesitation in giving to Sir Gordon Drummond’s conduct in this particular instance the sanction of their entire approbation. Eor the Resolutions passed by the House of Assembly on the 24th Eeby 18161 being no less than an inculpation of the High Tribunal to which their complaints had been regularly submitted for decision it was necessary to mark in the most signal manner the impropriety of a proceeding the only effect of which could be to perpetuate feuds and animosities by reviving complaints already pronounced to be groundless by the only competent Tribunal. Should the new Assembly adopt the same measures or be animated by a similar spirit of resistance to the authority of His Royal Highness The Prince Regent in Council, His Majesty’s Government, feel that you may again be compelled to resort to the same exercise of the Royal Prerogative in order to maintain the rights and dignity of the Crown. But while any other mode appears to you to exist of resisting the attempts of the Assembly either in this or in other instances not so immediately affecting the Royal Prerogative you will avoid resorting to the extreme measure of a dissolution.— Hitherto His Majesty’s Government have had a constant resource on ordinary occasions in the firmness and temper of the Legislative Council nor is there any reason to doubt that they will continue as far as in them lies to counteract the more injudicious and violent measures of the House of Assembly. It is therefore on every ground most desireable that you should avail yourself of their assistance for the purpose of checking those proceedings of the Assembly which you may consider objectionable rather than to bring either your authority of that of His Majesty’s Government into immediate conflict with that body and thus to give them a pretext for refusing to the Crown the supplies necessary for the Colonial Service.

I have the Honor to be Sir, Your most obedient Humble Servant BATHURST

Lt General Sir J. C. Sherbrooke G.C.B. &c &c &c

SHERBROOKE TO BATHURST.2

Castle of St. Lewis Quebec 15th July 1816

Separate Duplicate.

My Lord.

On my arrival here I received communication of Your Lordship’s dispatch of the 12th July 1815,3 marked ” Separate and confidential ” instructing Sir Gordon Drummond under particular circumstances to dissolve the Assembly; And having given to it the serious and attentive consideration it deserves, I feel it my duty to submit to Your Lordship the sentiments which have arisen in my mind on a perusal of it, and to request to be informed from Your Lordship how far I am to consider It as applying to the Government of my conduct under similar circumstances.

It is not for me my Lord to remark on the risque of embarassment and the possible evils that may arise from restraining the discretion of a Governour in those delicate and difficult circumstances which must often occur in the management of a popular Assembly; and in which, if left to himself, he might find means from his knowledge of the

1. These resolutions contain a criticism of the Articles of Impeachment against Chief Justice Sewell and Chief Justice Monk, which were disposed of, see page 472. 2. From the contemporary copy in the Canadian Archives, Duplicate Despatches, Lower Canada. 3. For this despatch see page 472.

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views and characters of the different parties to carry to carry on the Public business without coming to extremities; These considerations, I am persuaded, had been fully weighed by His Majestys Government before they in their wisdom gave that instruction to which I have alluded,—and by the very imperative terms of which I should have conceived myself debarred of all choice or discretion, if it had been addressed to me.

But, as at present situated, I feel myself entitled to bring before Your Lordship’s view, that the measure adopted by Sir Gordon Drummond in consequence of that, command,—if it was intended to have its effect by changing for the better the Representation of the lower House, has entirely failed in its operation as far as I have been able to learn since my arrival; and not only so but has in no small degree aggravated the evil by causing much irritation both among the Representatives and in the country; and by leading to the general re-election of the same members, or, in those few instances where a change has taken place, it is believed to be for the worse, by the exclusion of the most moderate of the Canadian members of the former House.

I cannot here avoid submitting to Your Lordship my humble opinion, that, in this Country, where! there is no room for the exertion of a Salutary government influence such as exists in England the strong measure of a dissolution must in almost all possible circumstances of the country produce rather evil than advantage; And can never have that effect which may be given to it in England by the exertion of the different means that may be brought into action there for the correction of popular opinion and for securing to the Crown a stronger influence in Parliament.

But notwithstanding this opinion, which, with the most respectful deference, I thus submit to Your Lordship, you will not doub/t that I shall be ready to carry into full execution the strongest measure that His. Majesty’s Government shall think proper to prescribe.

There does not appear any necessity for calling together the Assembly before the usual period,—at the commencement of the winter ; And I shall hope to receive before that time the pleasure of His Majesty’s Government, (if it should still be thought necessary to give specific instructions) as to the course I am to pursue in case the House of Assembly recur as there is scarcely a doubt that they will, to the subject which has lately led to a dissolution of that body.

I have the honour to be My Lord Your Lordship’s Most obedient humble servant J. C. SHERBROOKE.

The Right Honourable The Earl Bathurst.

BATHURST TO SHERBROOKE.1

Duplicate Confidential

Downing Street 30th Sept1 1816.

Sir,

I have the honor to acknowledge the receipt of your dispatch of the 15th July marked separate relative to the instructions given to Sir Gordon Drummond in the preceding year for the dissolution of the Assembly.

1. From the original despatch in the Canadian Archives, G. 8, page 146.

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You will before this time have received the dispatch which I addressed to you upon this subject on the 313t May last1 and you will have observed how much I coincide in your opinion as to the advantage of withholding this exercise of the Royal Prerogative in every case in which it is possible either to carry on the public business by means of the existing Assembly or to devise any other means of counteracting their factious and irregular proceedings. The ground of my instruction to Sir Gordon Drummond was the belief founded upon information received from persons well acquainted with the circumstances of the Province that it would be possible in time of Peace to defray from the permanent Revenue of the Province without assistance from the Legislature the necessary expences of the Civil Government and that consequently it would not be necessary to keep the Assembly in Session if when met they were disposed to recur to the subjects which have already been considered and decided by His Royal Highness The Prince Regent in Council. The whole policy of repeated prorogations or dissolution turns upon this point for I entirely concur with you in opinion that under present circumstances there is but little reason to expect in the first instance an improvement in the composition of the Assembly from the measure of a General Election. If therefore you shall be of opinion either that the Session of the Assembly cannot be dispensed with or that you possess means of counteracting the effects of their intemperate violence when met you will consider yourself at full liberty to exercise your own discretion as to a recurrence to prorogation or dissolution.

I have the Honor to be Sir, Your most obedient Humble Servant BATHURST.

Lt General Sir J. C. Sherbrooke G.C.B. &c &c &c

PROPOSED CHANGE OE LAND TENURE.

(MEMORIAL OF JOHN CALDWELL.)2

To the Right Honourable the Earl of Bathurst, One of His Majesty’s Principal Secretaries of State, &c, &c., &c.

The Memorial of John Caldwell, Esq., of the Province of Lower Canada, humbly represents,

That Your Memorialist holds under His Majesty several Tracts of Lands in Seigneurie in the aforesaid Province.

That Your Memorialist is extremely desirous of settling the aforesaid Lands with persons who might be induced to emigrate thither from this Country.

That the circumstance of those Lands being held by feudal tenure and necessarily subject to feudal obligations from which no conventional agreement can legally free them, forms an insuperable bar to any persons from the United Kingdom becoming Settlers thereon.

That Your Memorialist has been advised that the only method practicable to answer the desirable purpose of converting the Tenure of the aforesaid Lands into that of free and common soccage would be by Your Memorialist being permitted to surrender those Lands to the Crown and His Majesty being graciously pleased to regrant the same to him in free and common soccage.

That should His Majesty be graciously pleased to approve of such method Your Memorialist would beg leave to resign into His Majesty’s hands such parts of the

1. See page 487. 2. From the Canadian Archives, Series G. 8, page 210.

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Seigneurie of St. Etienne and Gaspé as have not been granted in concession by Your Memorialist or his predecessors.

That the above named Seigneuries consist together of about forty thousand French Arpents1 of which not more than Four Thousand are under Settlement.

Your Lordship’s memorialist therefore prays that such instructions may be given to His Majesty’s Governor General of the Canadas as may enable your Memorialist to carry into effect the object which he has stated.

And your Memorialist will ever pray.

JOHN CALDWELL.2

London, April 5, 1816.

BATHURST TO DRUMMOND.3

Downing Street, May 4, 1816.

SIR,—Herewith I have the honour to transmit to you the Copy of a Memorial which has been addressed to me by Mr. Caldwell. His Majesty’s Government having acceded to the request contained in it, you will be pleased to take the necessary steps for receiving back from Mr. Caldwell on the part of the Crown, and afterwards regranting to him in the manner proposed, the Lands alluded to in his Memorial.

I have, &c, Your most obedient humble servant, BATHURST.

Lt. General Sir Gordon Drummond &c. &c. &c. &c.

COCHRANE TO CHIEF JUSTICE SEWELL.4

CASTLE OF ST. LEWIS, QUEBEC, August 3, 1816.

SIR,—I am directed by His Excellency the Governor in Chief to inclose to you a dispatch which he has received from the Earl Bathurst, together with a memorial from John Caldwell, Esqle praying permission to surrender to the Crown certain lands therein specified, held by him in Seigneurie, and that they may be regranted to him in free and Common Socage ; on which Memorial Lord Bathurst has directed His Excellency to take the necessary steps for receiving^back on the part of the Crown and regranting to Mr. Caldwell in the manner proposed, the Lands alluded to by him ; and I am to desire that you will lay these papers before a Committee of the Whole Council for their report and opinion on the mode which it may be advisable to adopt for carrying into effect these commands of His Royal Highness the Prince Regent. His Excellency is also desirous that you should at the same time call the attention of the Committee to the gracious appropriation made by His Majesty of the Casual and Territorial Revenue as established prior to the conquest (of which the Droit de Quint forms a part) to the purpose of defraying the Civil Expenses of the Province; which appropriation was formally recognized in the Message of Lord Dorchester on the 29th April, 1794, to the Provincial Legislature.5

1. The arpent de Paris is equivalent to about one-sixth of an English acre. 2. John Galdwell, only son of Henry Caldwell was appointed Receiver General of Lower Canada and became eleventh seigneur of Lauzon on the death of his father in 1810. He was appointed a member of the Legislative Council in 1812. 3. From the Canadian Archives, Series G, 8, page 208. 4. From the Canadian Archives, Series G. 8, page 235. 5. For the message of Lord Dorchester of the 29th April, 1794, see page 262, note 2.

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His Excellency thinks it proper that the Committee in framing their report on the present reference should take this solemn relinquishment on the part of the Crown, into consideration, in order that they may be enabled to state their opinion whether it forms an obstacle to His Majesty’s taking upon himself, without a Legislative Act, to change the tenure of lands originally granted en Seigneurie; and which are now Subject to the payment of the Quint as aforesaid, appropriated towards defraying the Civil Expenses of the Province.

Should the Committee be of opinion that His Majesty still possesses the power of authorizing his Representative to receive back lands originally granted en Seigneurie, and to reconvey them to the present proprietors by a grant in free and common Socage.—His Excellency desires that the Committee will then consider how such new grant would operate on those parts of the said lands that had previously been conceded to Individuals en roture, whether a Droit de Quint would be payable to the Crown for the conceded part of the Seigneurie upon sale of the whole Seigneurie, or of the conceded part only; And, if so, by what rule, or authority, the proportion of alienation fine to be paid, is to be established.

His Excellency further desires to have the opinion of the Committee as to the mode in which the change of tenure is to be effected,—whether simply by a record in the King’s papier temer or by an instrument under the Great Seal; if by the latter mode, whether it must be considered as a new grant,—and whether it would be affected by the 36t t Clause of the British Statute 31, Geo. 3, Cap. 31.1

His Excellency not having as yet been able since his arrival2 to inform himself on these several points, it will be satisfactory to him to receive as full and conclusive a Report upon them as the Committee shall be enabled to form.

I have the honour to be, sir, With respect, your most obedient humble servant, ANDREW WM. COCHRAN,3 ‘ Assistant secretary.

1. Clause 36 of the Constitutional Act of 1791 made provision for the appropriation for the support of a protestant clergy of land equal in value bo one seventh of the Crown Lands granted from time bo time. If the re-granting of lands formerly held by feudal tenure were to be considered as new grants the question of the right of the protestant clergy to obtain its share naturally became of great importance. 2. Sir John Sherbrooke was appointed Governor in Chief in March, 1816, but did not arrive at Quebec until July 12. He book the oath of office on the same day. 3. Andrew William Cochran was born at Windsor, N.S., in the year 1792. He attended King’s College, Windsor, of which his father Rev. Wm. Cochran was vice president. He held the office of assistant civil secretary during the administration of Sir Geo. Prévost and Sir Gordon Drummond and that of civil secretary under Sir J. C. Sherbrooke and the Earl of Dalhousie, which position he filled with distinguished credit. Previous to the suspension of the constitution he was law clerk of the Legislative Council and from 1827 to 1841 was a member of the Executive Council. Subsequently he was made a judge of the Court of Queen’s Bench. He died on 11th July, 1849.

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REPORT OF A COMMITTEE OF THE EXECUTIVE COUNCIL.1

To His Excellency Sir John Goape Sherbrooke, G.C.B., Captain General and Governor in Chief of the Province of Lower Canada, &c., &c., &c.

Report of a Committee of the whole Council Present, The HonMe The Chief Justice of the Province in the Chair, Mr DeBonne, Mr Irvine, Mr Duchesnay, Mr Perceval, Mr Mure and MrJustice Pereault on Your Excellency’s Reference of a Dispatch from the Earl Bathurst transmitting a Memorial from John CaldwelL. Esqr, praying that he may be permitted to surrender to His Majesty certain Lands, heretofore granted in seigneurie for the purpose of their being regranted to him in free and common socage.

May it please Your Excellency

Whereas Your Excellency hath been pleased to call for the opinion of this Committee in a Letter from Mr Secretary Cochran, addressed to the Chairman of this Committee, dated the 3d August, 1816, in the Words following:

(Here follows the letter immediately preceding.)

The Committee having taken into their most serious Consideration the aboverecited Reference of Your Excellency, have now the Honour, after several meetings, humbly to submit their’Report and opinion thereon.

Your Excellency appears to have been struck with the Consequences that must naturally result from the Change of Tenure proposed, and the Committee have thereby been impressed the more deeply with the Importance of the Subject, and induced to investigate the more deliberately those Difficulties which in their opinion cannot be adjusted in a manner consistent with the Interests of His Majesty’s Subjects in ,this Province but by Legislative Interference.

The gracious appropriation which His Majesty has made of the Casual and Territorial Revenue (of which the Droit de Quint forms a part) towards defraying the Civil Expenses of the Province, officially communicated by Lord Dorchester’s Message of the 29™ April, 1794,2 to the Legislative Council and Assembly, induced the Legislature to pass an Act for regulating the Collection of the arrears of Mutation Fines. due to His Majesty8 which Act finally received the Royal Assent and might be urged as a Proof of His Majesty’s gracious Intentions witihi respect to the appropriation of that Branch of the Provincial Revenue. But this Committee cannot venture to decide whether, in strict Right, the Laws antecedent to the Conquest, and which are now in force, regulating the Tenure of Lands held en Fief et Seigneurie, together with the Solemn Relinquishment on the Part of the Crown announced to the Provincial Parliament by Lord Dorchester’s Message form an obstacle to His Majesty’s taking upon himself to change the Tenure as prayed for by Mr Caldwell; yet the Committee conceive it to be their Duty to offer to Your Excellency as their opinion, That the Royal Word of His Majesty was so far pledged to His Subjects in this Province, by the Message above mentioned, that the Committee cannot “see how this obstacle can be removed without the Concurrence of the Provincial Legislature, more especially as Mr Caldwell, in his Memorial, offers no Equivalent, and as the Earl Bathurst, in his Dispatch, does not make mention of any Compensation for the Mutation Fines which would thus be lost to the Province.4

1. From the Canadian Archives State Book I, Lower Canada, page 17. 2. See page 262, note 2. 3. See Statutes Lower Canada, 1799. Cap. X, sec. XI. 4. The amounts of the Droit de Quint for the two previous years were as follows:— 1814, £ 369—15—7. 1815, £ 687—2—3. and for the year, 1816, £ 247—10—0.

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From the Nature of the Tenure in free and common Socage, the Quint could be exacted only on the sale of those Parts of the Property already conceded en roture; and it would cease to be payable on the Part which had been relinquished to the Crown and regranted in free and common Socage.

With respect to the Authority for regulating the Proportion of Mutation Fine that would, afterwards, be payable ; it must, in the humble opinion of the Committee, be regulated by the Legislative Body.

Having already taken the Liberty to express their Sentiments with respect to the necessity for Legislative, Interference, the Committee cannot hesitate respectfully to suggest, that neither a Record in the Papier Terrier, nor a Grant under the Great Seal (as practised with regard to the Waste Lands of the Crown) would alone give sufficient Validity to the proposed Reconveyance, under a new Tenure, of Lands originally granted en seigneurie.

With respect to the concluding Enquiry, “Whether such new Grant would be affected by the 36 Clause of the British Statute 31st Geo. III , Cap 31?” They do not perceive in this Clause, nor in the Royal Instructions1 for granting Waste or Crown Lands, any Provisions that apply to Lands which having heretofore been granted en Seigneurie should be relinquished to the Crown for the Purpose of being regranted in free and common Socage. But that which strengthens the opinion that such a Change of Tenure was not by that Act contemplated for this Province, in so far as relates to the Lands held under the Tenure aforesaid, is, that by the 43d, 44th and 45tl1 Clauses of the same Act,2 special Authority is given for a Change of Tenure in the Upper and Lower Provinces as far as respects Lands only which after the passing of that Act might be granted in the said Provinces; and hence it may fairly be inferred that the Concurrence of the Legislature is absolutely necessary thereto in both the said Provinces; especially in the Lower, where nearly all the Lands that had been granted antecedent to the Conquest; and previous to the passing of that Act, and infinitely the greater part of those which are at present under Cultivation throughout the Province, are held under the Tenure first mentioned.

The Committee think it necessary to observe, That there are some Rights of Individuals which, in their opinion, might be affected by the proposed change of Tenure, amongst the Principal of which are those which arise from Hypothèques or Mortgages, general or special on Seigneurial Property. And, unless Public and Legal Means are provided to meet such a Change of Tenure, it is to be apprehended that not only the Grantees or Purchasers at second hand, in free and common Socage, but even the Mortgagees themselves might be deprived of their Rights.

In obedience to Your Excellency’s Commands the Committee have thought it their Duty to enter thus fully into a Question so important and interesting to all His Majesty’s Subjects in this Province, and as further information is contained in a Report of the Council for the Province of Quebec, made in the year 1790 upon a similar Question, they hereunto annex a Copy of that Report.

1. See the Article of Instruction to Lord Dorchester, Articles 33 et seq. infra, page 21. 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 706. Clause 44 provided that any person holding land in Upper Canada and having power of alienation could surrender such, lands bo His Majesty by petition to the governor, or lieutenant governor and receive a fresh grant in free and common soccage.

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Upon the whole the Committee are humbly of opinion, that it would bo advisable to submit the entire question to the Reconsideration of His Majesty’s Ministers.1

All which is most respectfully submitted to Your Excellency’s Wisdom.

Executive Council Chamber, Quebec, 16 August, 1816.

By order,

J. SEWELL, Chairman.

Lt. General Sir J. C. Sherbrooke, G.C.B.

OPINION OF CHIEF JUSTICE SEWELL ON THE CHANGE OF TENURE OF LAND.2

QUEBEC, 20th August, 1816.

SIR,—In obedience to the Commands of Your Excellency I have the honor of submitting the substance of the reasons urged by me before Your Excellency in Council, in vindication of the opinion entertained by me upon the application of Mr. Caldwell to surrender the Seigneuries of St. Etienne & Gaspé into the hands of the Crown and for a re-grant of the same in free and common soccage.

There appears to my mind to be in this application nothing but what is perfectly consistent with that liberty in the disposition of property, whch experience has shown to be most advantageous to all Governments, unless therefore there is positive law to prevent it ; it ought I think to be allowed, and I am humbly of opinion that there is no law to prevent it.

The grounds of this opinion are as follow :—

1st. Antecedent to the Conquest in the year 1759, it was lawful for the Crown of France to accept a surrender of any lands which had been granted by the Sovereign, and upon the resumption of such lands it was also lawful for the Crown of France to re-grant the same,—and although it is not perhaps Material to the argument which, I hold, yet I will add, that I conceive the Crown in such cases (if the lands surrendered were wild & uncultivated) might have regranted them in Franc Aleu, that is freed from every reditus and from all feudal burthens—(Denizart Edition of Le Camus Verb. Franc Aleu) or upon a fixed & certain but perpetual reditus (Chopin 11d, 493 & 494).

2d. Independant of the rights of the Crown of England, His Majesty acquired by the Conquest & Cession of Canada, the rights of the Crown of France in this respect—

3d. Lands consequently may be surrendered to His Majesty and may be regranted, and the Statute 31, Geo. III C. 31, Sec. 43, having enacted—

“That in every case, where lands shall be hereafter granted within the province of Lower Canada, and where the Grantee thereof shall desire the same to be granted in free & Common Soccage, the same shall be so granted,” His Majesty (if he sees fit to re-grant, and the person to whom such re-grant is to be made, praya that his grant may be so made in free & common socage which is the case of Mr. Caldwell) not only may, but must grant in free and Common Socage. But against this very plain Statement, it is objected—

1st. That by the Statute 31, Geo. III , Cap. 31, Sec. 44 surrenders in Upper Canada are specially provided for while the Act is silent as to Lower Canada.

1. The report of the committee of the Executive Council together with the special opinion of the chief justice was transmitted by Sherbrooke to Lord Bathurst in his despatch No. 22 dated August 24, 1816. See the Canadian Archives, series Q. 137, page 133. 2. From the Candian Archives, Series Q. 137, page 141.

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2dly. That by Lord Dorchester’s Message to the provincial Legislature of the 29th April 1794 the Casual & Territorial revenue of all lands holden of the Crown under every description of Tenure ” was ordered to be applied towards defraying the Civil expences of the Province.”

To the first of these objections, I answer that it is founded on a mistaka, the a!*11 Clause of the English Statute 31 Geo., Cap. 31, having provided only for surrenders made by persons not having any Legal Titles to Lands held by them, & consequently having in fact nothing to surrender—Viz. for persons holding lands, under certificates of occupation i.e., under bare permissions at will, to cultivate— so’that surrenders of Lands granted stand in both Provinces on the same footing.

To the second objection I answer—

That by the British Statute 14, Geo. III , Cap. 83. It is enacted that the Casual & Territorial revenue of Canada “should remain, & be continued to be, levied, collected and paid, in the same manner, as if that Act had never been made.” That is that this revenue “should remain” as if the Act had never been made, and should also, be continued to be levied, collected and paid as if the Act had never been made,” and it does therefore remain charged upon all property which by law may be subject to it, but at the same time the prerogative of the Crown with respect to such property remains also in the same manner as if the Act had never been made, because the prerogative cannot be affected without express words, for that purpose. If therefore it be true that the Crown of France might ante-cedent to the Conquest have accepted a surrender of Lands wild & uncultivated but holden under a feudal Tenure & have re-granted the same in Franc Aleu or on a certain perpetual reditus this is now the prerogative of His Majesty which the Message cannot have affected, because certainly it cann°t have contradicted the provisions of this Statute.—But I answer also to this objection—That this Message is (at the utmost) an appropriation of the Casual & Territorial revenue which His Majesty may receive from the property of the Ciown, & not a relinquishment of that property, or of any rights which he may posse-» over it. The Message states ” That the Governor lays before the Assembly Accounts of the provincial revenue of the Crown from the commencement of the New Constitution to the 10th of January 1794;” being “First the Casual and Territorial revenue which His Majesty has been most graciously pleased to order to be applied towards defraying the Civil Expences of the province,” An order given in the Spirit of the Statute 18, Geo. III , C. 12, which appropriates the Taxes levied in the Colonies for the regulation of Commerce by British Acts of Parliament to the use of the Colony in which they are raised, and unless therefore it be possible to say that this Statute appropriating the revenue which may be received from duties imposed for the regulation of trade by British Acts of Parliament, has relinquished the rights of the Imperial Parliament over the imposition & regulation of the duties which produce that revenue; It cannot be said that His Majesty by the Message which contains a similar appropriation of his Casual & Territorial revenue, and no more has relinquished his rights over the property, which produces this last mentioned revenue. The Committee in their Report have also stated that difficulties might occur in case of a surrender & re-grant if there should be at the time of the surrender any Mortgages upon the Lands surrendered—To which I answer, can not in my belief purge such Mortgage, & that the land in my opinion, would pass to the Crown & and from the Crown to the next Grantee, charged with the whole.

The Committee have also referred to a report of a Committee of the whole Council of the year 1788 upon a Change of Tenure in which it is stated to have been their opinion, that a Legislative Act would be necessary to enable the Crown to grant in free & Common soccage to which I answer, that such a Legislative Act, has since been passed & that by 43 Section of the British Statute 31 Geo. III , Cap. 31. it is not only enacted as I have stated, that in all future Grants the Crown ” may” but ” must ” grant in free & Common soccage if the Grantee requires it.

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To what I have said, I added in Council, that the whole of the revenue arising from Seigneuries in the province from the year 1791 to 1816 did not exceed £12,000 according to the Accounts annually laid before the Assembly.

That the Change of Tenure would increase the population by enabling the Seigneurs to sell their lands (which they cannot now do,) or to lease them at a fixed reditus without fines upon Mutations or other Casual charges.

That the Seigneurs would immediately become really men of property & form an Aristocracy of landed interest—English, Scotch & Irish Farmers would be induced to cultivate the Wastes of the present Seigneurs, by being enabled to obtain land free from the feudal burthens—and a better system of Agriculture would thus be introduced,— A spirit of industry would also be excited, because the improvements of the Tenant would enure to his own benefit without the depreciation of the Mutation Fine or the consequences of feudal restraints, & the Crown would be amply compensated for the loss of the Quints by the Taxes paid by the New Settlers & the augmented means of defence afforded to the province by an increased population.

Being upon these grounds of opinion that the directions contained in the dispatch of Earl Bathurst, respecting the surrender of the Seigneuries of St. Etienne & Gaspé (which are yet in a wild & uncultivated state,) and, a regrant of the same to Mr. Caldwell in free & common socage, are clearly founded in law, and are politically expedient in an eminent degree, I could not coincide in the statement made by the Committee in support of their report, though at the same time, I readily acquiesced, in the propriety of submitting the measure Jo the reconsideration of His Lordship in consequence of the opinion entertained by the Committee.

I have the honor to be &c.

(Signed) J. SEWELL.

His Excellency Sir J. 0. Sherbrooke, K.G.C.B. &c &c &c

OPINION OF LAW OFFICERS ON CHANGE OF TENURE OF LAND.1 2 Lincoln’s Inn, 22d January, 1817.

My Lord,

We have the honor to receive your Lordship’s letter dated the 18th Instant transmitting to us the Copy of a dispatch addressed by Your Lordship to the Governor of Canada, and of the reply which has been received from Sir J. Sherbrooke relative to the power of the Crown to accept the surrender of lands granted to Individuals, in Canada for the purpose of regranting them in free and common soccage and your Lordship is pleased to desire that we will take the same into our consideration and report to your Lordship our opinion whether there is either under the Statute of the 31 Geo : 3rd Cap 31, or under the Law originally prevailing in the province as referred to in the minutes of the executive Council, any legal objection to changing the Tenure of Land in Canada in the manner recommended.

In obedience to your Lordship’s Commands we have considered the same and we beg leave to observe that if it was intended to change the Tenure of any lands without the consent or desire of the persons possessing such lands or at once to effect a general alteration of Tenure, there is no doubt that it could not be done without an Act of the legislative bodies with the assent of his Majesty, but the question is whether, if

1. From the Canadian Archives, Series G. 9, page 31.

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lands are surrendered to his Majesty and thereby become revested in the Crown, His Majesty may not by virtue of his prerogative grant such lands to be holden by a tenure different from that by which they were formerly holden (provided the tenure on which they are so regranted be one which is lawful in the province). That a man ^holding of the Crown may surrender his land to the Crown of whom he holds we conceive to be clear and also that the Crown may regrant them upon such terms or tenure recognized by law as shall seem fit, unless restrained by some law or act of Parliament. Looking at the British Acts which relate to, the province of Canada we do not find any such restriction of the Royal Prerogative as applicable to this Case. By the 14th Geo. 3d, Ch. 83,1 the Title under which any lands were then holden was not to be affected by that Act but was to remain as if the Act had never passed. But by the same Act a power to grant Lands in free and common Soccage by the Crown is recognized, because after the eighth Section has directed that the laws of Canada shall be the rule of decision in all matters of controversy relative to property and civil rights, the 9th Section provides that such provision shall not extend to any lands that have been or may be granted by His Majesty in free and common Soccage. This Statute imposes no restraint on the ordinary rights of the Crown, but merely, leaves all subsisting tenure unaffected by that Statute. There is by the 43d Section of the 31st Geo. 3rd, Ch. 31, a restriction of the prerogative as to the tenure on which lands shall be granted in Upper Canada because by that Section his Majesty can only grant lands in free and common Soccage, and all the consequences which follow such tenure by the law of England must follow such tenure in U : Canada.

With respect to the province of lower Canada there is also a partial restriction upon the prerogative as to granting Lands to be holden by any other Tenure than free and common Soccage—namely where the Grantee shall desire to have them granted in free and common Soccage there they must be so granted. These provisions however do not affect the right of His Majesty to accept a surrender of lands holden in Seigneurie and to grant such Land in free and common Soccage, tho’ they compel his Majesty in certain cases to grant them” to be holden by such last mentioned tenure. The 44th Section does not apply at all to this Case, and neither enables nor restrains his Majesty as to any powers of granting Lands in Liower Canada, but relates to the giving good and valid Grants of Lands in Upper Canada, helden under an incomplete or informal Title by a mere Certificate of occupation. We do not consider that the message of Lord Dorchester2 as far as we collect the contents from the papers could be deemed restrictive upon the prerogative of the Crown to accept a Surrender of Lands holden in Seigneurie or to grant such Lands after they have been revested in the Crown in free and common Soccage.

The 36th3 Section of the 31st Geo. 3d, Ch. 31, does not in terms or by inference impose any restriction in the prerogative of the Crown to accept a Surrender of Lands holden in Seigneurie and to regrant them in free and common Soccage, but we think it would be necessary that at the time of such new Grant proportionable allotments should be made of other Land for the Support of the protestant Clergy equal in value to the seventh part to be specified in the new grant, for the regulations of that Clause are general and would apply to grants of lands which had become revested in the Crown by surrender as well as to lands which had never before been granted. It is stated by the Chief Justice, and not disputed by the executive Council that the King of France before the conquest of Canada might have accepted a surrender of lands and have regranted them, and indeed it would have been extraordinary if such had Siot by the law.4 His Majesty of course must have the same power and tho’ the

1. See the Quebec Act, Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 404. 2. See page 262, note 2. 3. This section of the Constitutional Act relates to the appropriation of the clergy reserves. 4. See the report of the chief justice, Q. 337, page 141 (supra, page 496).

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King of France might not have had power to grant in free and common Soccage, if such tenure had not existed in Canada by the laws then in force (upon which we do not venture to form any opinion) yet his Majesty having power to grant in free and common Soccage and being bound so to grant at the request of the grantee, if he grants at all, we humbly report to Your Lordship that there does not appear to us to be any legal objection to his Majesty’s accepting a Surrender of lands holden in Seigneurie, and regranting them in free and common Soccage either under the Statute of 31st Geo: 3d, Ch. 31, or under any law which prevailed originally in the Province before the Conquest.

We have the honor to be, My Lord, Your Lordship’s most obedt humble Servants, W. GARROW. S. SHEPHERD.

The Right Honble Earl Bathurst.

SHERBROOKE TO BATHURST.1

Castle of St, Lewis, Quebec, 20th May, 1817.

My Lord,

I have the honour of receiving Your Lordship’s Dispatch No. 68, in answer to mine No. 22, on the Subject of resuming to the Crown certain Lands “of Mr. Caldwell, held en Seigneurie, and regranting them to that Gentleman in free and Common Soccage.

On this Subject there appears to have been some misapprehension of the question which I wished to bring under the consideration of His Majesty’s Government, which was not whether the Crown has the right of regranting in free and Common Soccage, lands resumed from a tenure en Seigneurie, but whether such change of tenure by abolishing, with respect to such lands, the Droit de Quint, which was given over to the Province by Lord Dorchester’s Message, would not be in some degree an infringement of the pledge so given by Government; or whether a Mode could be devised of giving to the Province an equivalent for the Droit de Quint so merged and lost to it by such change of tenure.

I beg leave to suggest that it might prevent further difficulty or misapprehension to refer the Law Characters who might be again consulted on this question, to the letter which I directed to be written to the Chairman of the Council, here,2 to bring the matter before them, and which is transcribed at full length in the Commencement of the report of Council, of which a Copy accompanied my former dispatch on this Subject.

I have the honor to be, My Lord, Your Lordship’s most obedient humble Servant, J. C. SHERBROOKE.

The Right Honourable The Earl Bathurst, &c. &c. &c.

1. From the Canadian Archives, Series Q. 144, page 17. 2. See page 492.

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BATHURST TO SHERBROOKE.1

Downing St. 31st Augt. 1817.

Sir

Having referred to the consideration of His Majesty’s Law Officers your dispatch of the 20th May2 last respecting the opinion given by them in January last on the subject of accepting the surrender of certain Lands of Mr. Caldwell’s held in Seigneurie and regranting them in Free and Common Soccage I now transmit to you the Copy of a letter from the Attorney and Solicitor General and have the honor to acquaint you that for the reasons therein stated I am of opinion that it would not be expedient to change the tenure of Lands now holden in Seigneurie.

I have the Honor to be, Sir, Your most obedient Humble Servant, BATHURST.

Lieut. General Sir J. C. Sherbrooke, G.C.B.

Copy.

SECOND REPORT OF LAW OFFICERS ON THE PROPOSED CHANGE OF TENURE.3

Serjeant’s Inn, 1st Aug., 1817.

My Lord,

We have had the Honor to receive your Lordships letter of the 14th July 1817 referring to an opinion of the 22nd of January last4 relative to the power of the Crown to accept the surrender of Lands held in Seigneurie in Canada for the purpose of regranting them in free and common Soccage, and transmitting to us an inclosed letter from Lieut General Sir John Sherbrooke requesting to be informed whether such change of tenure by abolishing with respect to such Lands, the Droit de Quint, which was given over to the Province by Lord Dorchester’s Message, would not Be in some degree an infringement of the pledge so given by Government or whether a mode could be devised of giving to the Province an equivalent for the Droit de Quint so merged and lost to it by such change of tenure; and desiring that we will take the case into our consideration and report to your Lordship for the information of His Royal Highness The Prince Regent our opinion whether His Majesty is precluded by the declaration made in Lord Dorchester’s Message to the Provincial Legislature on the 29th April, 1794 from changing the tenure of Land granted in Seigneurie which are now subjected to the payment of the Quint appropriated towards defraying the Civil expences of the Province without a Legislative Act to, that effect.

We beg leave to state to your Lordship that in the opinion which His Majesty’s Law Officers gave to your Lordship on the 22nd January last they confined themselves to the consideration of the power of His Majesty to accept a surrender of Lands holden in Seigneurie and regrant them in free and common Soccage, without any Legislative enactment, enabling him to do so, that appearing to them to be the point then proposed for their consideration: But the question now presented by the Governor’s letter is of a very different nature. It is not a question upon the right of the

1. From the Canadian Archives, Series G. 9, page 217. 2. See page 500. 3. See the Canadian Archives, Series G. 9, page 212. 4. See page 498.

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Crown so to alter the tenure, but upon the propriety of such an exercise of His Majesty’s prerogative whereby the Province will be deprived of one of the sources of Revenue towards defraying its Civil expenses with which it was furnished by the appropriation of the Revenue arising from the Droit de Quint,1 as communicated in Lord Dorchester’s Message—and upon this point we think that Lord Dorchester’s Message did give an expectation to the Province that this part of His Majesty’s Revenues would be continued to be applied to the defraying their Civil expenses, and that to take from them this source of Revenue without their Assent or without providing an equivalent would be an infringement of what they might fairly consider a pledge or assurance on the part of the Crown—We are not aware that His Majesty can in any yay give to the Province an equivalent, out of any other of his Revenues to siipply the deficiency that would arise from changing the tenure of the Lands from that of Seigneurie to Free and Common Soccage; and if any source of Revenue to be so applied is to be created in the Province it must be by a Legislative Act; and the consent of the Province to an abolition of the Droit de Quint could only be manifested by such an Act or by any Address of the two Houses to His Majesty for that purpose—We think therefore that tho’ His Majesty is not precluded in point of Law by Lord Dorchester’s Message from changing the tenure of the Lands yet that such change of tenure without the consent of the Provincial Legislature expressed as before mentioned or without an equivalent provided would be an infringement of the pledge given by Government in that Message and that in that point of view His Majesty is precluded without such consent or equivalent from so changing the tenure of the Lands.

We have the Honor to be, &c, (Signed) S. SHEPHERD. B. GIFFORD.

SHERBROOKE TO BATHURST.2

Quebec 10th March 1817.

N° 100.

My Lord

In compliance with an Address of the House of Assembly of this Province I have the honour of transmitting to Your Lordship herewith an Address3 of that body to His Royal Highness the Prince Regent together with the Articles of Accusation therein referred to, against O. Foucher, Esquire, one of the Justices of the Court of King’s Bench for the District of Montreal, as the same are contained in the inelosed Certified Copy of the proceedings of that -House upon the said Accusations in order that the same may be laid before His Royal Highness according to the desire of the House.

I avail myself of this occasion to call Your Lordship’s particular attention to some of the circumstances attending these proceedings on which it is of much moment that I should be favoured with your Lordship’s Instructions.—

Having from time to time in the course of the investigation of Mr. Foucher’s Conduct obtained Communication of the Evidence laid before the Committee, I foresaw the result must be an Impeachment and an Address for his Suspension; But Sir George Prévost having on similar occasions where the Chief Justices were impeached declined to suspend them because the Council had not concurred in the proceeding of the House, I felt a difficulty as to the course I should pursue in the case of an Address for the suspension of Mr. Foucher coming from the House alone, I therefore obtained

1. See page 494, note 4. 8. From the Copy in the Canadian Archives, Duplicate Despatches, Lower Canada 1817 3. See page 506.

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from them a communication of their proceedings to the Council in order that they might have an opportunity of concurring in the Accusations; But finding that they were not disposed to do this, I considered it the best way of avoiding difficulties both with the House and Council to act upon my own responsibility by directing Mr. Foucher, under the authority vested in me by my Commission, and before the Assembly came forward with their address for his Suspension, to abstain from the exercise of his judicial functions until the pleasure of His Royal Highness The Prince Regent on the subject should be known.

In the adoption of this intermediate course I was the more confirmed by the consideration that if I should accede to the desires of the House for the Suspension of Mr. Foucher either as an Act of prerogative or a matter of right they might expect a similar course to be pursued on certain accusations pending before them against Mr. Chief Justice Monk, or on any others which they may bring against the Chief Justice of the Province; and as the presence of the Chief Justices is essential to the holding of the Oriminal Courts in the Province their suspension could not but lead to the interruption of the whole course of Criminal Justice; If anything could have added to my conviction on this point it would have been the doubt I entertained [and in which Your Lordship will find by the Address of the Council transmitted in my dispatch N° 101,1 that they participated] as to the right of Assembly to impeach without seeking the concurrence of that body.

Fortified by these reasons I made to the Assembly the Answer of which, as well as of their Address, Your Lordship will find at the close of the printed proceedings a Copy. From the whole circumstances the questions that arise are these

Whether His Majesty’s Government consider the Assembly alone competent to impeach without the concurrence of the Legislative Council, and whether in the event of another Impeachment either separate or conjunct, I am to consider myself authorized or obliged on an Address to that effect from either House or both, to suspend the party accused ; and on these two points I have in the most particular manner to request that Your Lordship will favour me with instructions as it is far from improbable that I may be under the necessity of acting upon one or the other of them in the next Session when the Proceedings now commenced against Mr. Monk2 will probably be brought forward again and carried to some conclusion.—

I have the honour to be< My Lord Your Lordship's Most obedient humble Servant J. C. SHERBROOKE.

The Right Honourable The Earl Bathurst &c &c &c

1. The address of the Legislative Council is published at page 507. 2. Mr. Monk on the 19th February, 1817, was charged with contempt of the House of Assembly for not producing certain papers in connection with the charges against Louis Foucher. He was found guilty on the 21st February and committee to the common gaol. On the 22nd February the Sergeant at Arms reported that " he had lodged the body of Samuel Wentworth Monk, one of the joint Prothonotaries of the Court of King's Bench for the District of Montreal, in the Common Gaol of the District of Quebec, and that he now holds the Gaoler's Receipt for the body of the said Samuel Wentworth Monk." Journals of the Legislative Assembly, Lower Canada, 1817, pp. 462, 476 and 486.

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ARTICLES OF IMPEACHMENT OF JUSTICE FOUCHER.1

25th January, 1817.

JOURNALS OF THE HOUSE OF ASSEMBLY, LOWER CANADA.

Mr. Cuvillier,2 in his place, charged Louis Charles Foucher, Esquire, one of the Puisne Justices of the Court of King’s Bench for the District of Montreal, with sundry high crimes and misdemeanors, and presented to the House several articles of accusation and impeachment against the said Louis Charles Foucher. Esquire; and the said articles of accusation and impeachment, were delivered in at the Clerk’s Table, and read, and are as f olloweth, viz :

FIRST CHARGE—That the said Louis Charles Foucher, being a Judge of His Majesty’s Court of King’s Bench for the District of Montreal, in the Province of Lower-Canada, and also a Judge of His Majesty’s Court of King’s Bench for the District of Three-Bivers, in the same Province,3 hath diregarded the duties of those high and important offices, and contrary to his oath, hath perverted the course of justice in the said Courts, and rendered his judicial power subservient to the views of individuals whose interests he has been desirous of promoting.

SECOND CHARGE.—That the said Louis Charles Foucher, being as aforesaid, a Judge of His Majesty’s Court of King’s Bench for the said District of Montreal, and also a Judge of His Majesty’s Court of King’s Bench for the said District of Three- Bivers, hath disregarded those high offices, and hath disqualified himself from discharging with impartiality the duties imposed on him by those offices, by giving counsel to individuals respecting their supposed rights to be prosecuted and defended before the said Courts, of which he was and is Judge, aa aforesaid, and by preparing pleadings and papers for them, in the prosecution and defence of such supposed rights, and hath afterwards awarded judgment, or concurred in awarding judgment, in favour of the persons to whom such advice and assistance was given, upon and in respect of such supposed rights.4

THIRD CHARGE.—That the said Louis Charles Foucher, being such Judge of His Majesty’s Court of King’s Bench for the said District of Montreal, did, in or about the month of January, one thousand eight hundred and fourteen, counsel and advise one Pierre Ignace DaUlebout, an intimate friend of the said Louis Charles Foucher, upon and in respect of a certain action to be brought in His Majesty’s said Court of King’s Bench for the District of Montreal, by the said Pierre Ignace DaUlebout, against one Etienne Duchesnois, and did draw and prepare the Declaration to be used by the said Pierre Lgnmce DaUlebout in the said action, which Declaration, so drawn and prepared by him, he the said Louis Charles Foucher, put or caused to be put into the hands of an Attorney, related to, and intimately connected with him, to be used in the said action, and the said Declaration was in fact used in the said action, which was afterwards brought in the Term of the said Court holden in February, in the year aforesaid; and the said Louis Charles Foucher did exercise judicial power, and set in judgment in the action so brought as aforesaid, respecting which he had given counsel and assistance as aforesaid, and did himself prepare and caused to be entered in the said action, an interlocutory Judgment, whereby certain exceptions made and filed by the said Etienne Duchesnois, to the said action, were overruled; and did afterwards,

1. From the Journals of the Legislative Assembly, Lower Canada, 1817, page 130. 2. Augustin Cuvillier since 1814 had represented the County of Huntingdon in the House of Assembly. The County was divided by the redistribution act of 1829, and from 1830 to 1834 he represented the County of Laprairie. Cuvillier was recognized as one of the ablest and most influential leaders of the French Canadian majority in the House of Assembly. He was elected to the first parliament of the United Provinces for the County of Huntingdon and was chosen as the first Speaker of the united parliament. 3. Justice Foucher had been appointed Provincial Judge for the District of Three Rivers in 1803, and was promoted to the Court of King’s Bench for the District of Montreal in. 1812. 4. For evidence brought before the Special Committee in connection with this charge see Appendix I, Journals of the Legislative Assembly, Lower Canada, 1817.

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though he had been absent at the hearing of the cause, send for and procure to be sent to him, the Record, Papers and proceedings in the said action, and did thereupon draw up the final Judgment to be entered in the said action, in favour of the said Pierre Ignace Daillebout, and caused and procured the said final Judgment to be entered in the said action, in favour of the said Pierre Ignace DaUlebout, without having heard the parties in the said action, to t h e manifest perversion of law and justice, and in gross violation of the duties of the said Louis Charles Foucher, as s poli Judge as aforesaid.1

FOURTH CHARGE.—That the said Louis Charles Foucher, being such Judge is aforesaid, hath, in violation of his duty, advised one Jean Baptiste Normand, noon and in respect of enforcing a Judgment recovered in His Majesty’s said Court of King’s Bench, for the District of Montreal, by the said Jean Baptiste Normand against Austin Cuvillier; and hath given assurances to the said Jean Baptiste Normand, of the support to be afforded to h im by the said Louis Charles Foucher, as such Judge as aforesaid, in the prosecution of the said means, and of the success with which he would cause them to be attended.2

FIFTH CHARGE.—That the said Louis Charles Foucher, being such Judge as aforesaid, hath acted in a manner disgraceful to the said office, and hath been guilty of conduct destructive of the public confidence in the administration of justice, by counselling, advising, and affording assistance, to persons engaged in differences which had become, or were about to become, the subjects of judicial investigation and determination, by him, as Judge as aforesaid, and by assuring them of his favour, and of the success he would cause them to obtain.

SIXTH CHARGE.—That the said Louis Charles Foucher, being such Judge as aforesaid, hath been guilty of partiality and gross misconduct, in the discharge of his judicial functions, and had brought discredit in the administration of justice.3

1. For evidence brought before the Special Committee in connection with this charge see Apoendix I, Journals of the Legislative Assembly, Lower Canada, 1817. 2. For evidence brought before the Special Committee in connection with this charge see Appendix I, Journals of the Legislative Assembly, Lower Canada, 1817. 3. The charges herein contained were refrrred to a committee of the House of Assembly with instructions to examine and take evidence thereon. The resolutions were as follows: RESOLVED, AS the opinion of this Committee, that in the year one thousand eight hundred and eleven, (Louis Charles Foucher, Esquire, being the Provincial Judge of the Court of King’s Beneh for the District of Three-Rivers) an Information, in the nature of a Civil Suit, was exhibited and filed, on the part and in behalf of our Sovereign Lord the King, and in support of the rights of the Crown, against one Pierre Ignace Daillebout. That the said Louis Charles Foucher, being in the habits of intimacy and friendship with the said Defendant, Pierre Ignace DaUlebout, drew up a Plea for him, in his (the said Louis Charles Foucher’s) hand writing, and delivered it to one of the Officers of the said Court, ordering him to copy it, which was done; and the said copy, signed by the said Pierre Ignace DaUlebout, was filed, and now stands of Record in the Cause. That the said Louis Charles Foucher afterwards sat at a Judge upon the Bench in said Court, upon the” Trial of the said Cause, and assisted in giving Judgment against His Majesty.—That the said Louis Charles Foucher, in this respect, has been guilty of gross malversation, eofrupt practice, and injustice; and has violated his Oath of Office, swerved from his duty to his Sovereign, and has been guilty of conduct tending to disgrace the administration of justice in Lower-Canada. RESOLVED. AS the opinion of this Committee, that in the year one thousand eight hundred and fourteen, the said Louis Charles Foucher, being then one of the Judges of the Court of King’s Bench for the District of Montreal, made the Draft of a Declaration in a Cause instituted in the said Court by one Pierre Ignace DaiVebout, against one Ftienne Duchesnois, and sent the said Draft of a Declaration, by the said Pierre Ignace Daillebout, to one Janvier Domptail Lacroix, an Attorney, and Barrister at Law, of Montreal, and also an intimate friend and relation of the said Louis Charla Foucher-, That the said Lacroix brought an action, in which he used the said Draft of a Declara, tion, and obtained Interlocutory Judgments, in favour of the said Pierre Ignace Daillebout, and also obtained final Judgment in favour of the said Pierre Ignace Daillebout, for the sum of seventy-five pounds six shillings and fiv9 pence, with costs of suit That the said houis Charles Foucher drew up the said Interlocutory Judgments which now appear of Record in the hand writing of him, the said Louis Gharlts Foucher who also assisted in rendering the final Judgment. That the said Louis Charles Foncher, in this respect, has been guilty of gross malversation, corrupt practice, and in,

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PROCEEDINGS RELATING TO THE IMPEACHMENT OF JUSTICE FOUCHER.1

ADDRESS OF THE HOUSE OF ASSEMBLY.

TO HIS ROYAL HIGHNESS THE PRINCE REGENT.

WE His Majesty’s loyal and faithful subjects, the Commons of Lower-Canada, in Provincial Parliament assembled, most respectfully beg leave to approach Your Royal Highness, and to represent to Your Royal Highness, that Louis Charles Foucher, Esquire, one of the Judges of His Majesty’s Court of King’s Bench for the District of Montreal, has been accused before us of High Crimes and Misdemeanors, in his capacity of Judge as aforesaid; and that, after a patient and diligent examination of witnesses, the testimony of whom we now transmit, we have unanimously adopted several Resolutions, as Articles of Complaint against the said Louis Charles Foucher, Esquire, which are hereunto annexed.2

The impartial administration of justice, one of the most important privileges of our fellow subjects in the United Kingdom, as declared by our revered and beloved Sovereign, hath been, by the said Louis Charles Foucher, swerved from, in various instances referred to in the said Resolutions.

The Criminal Law of England, and the free Trial by Jury , in Criminal Cases, has been granted to His Majesty’s loyal subjects of Lower-Canada, by the wisdom and justice of the British Parliament; and they would be deprived of the security for reputa-

justice; and has violated his Oath of Office, swerved from his duty to his Sovereign, and has been guilty of conduct tending to disgrace the administration cf justice in Lower- Canada. RESOLVED, AS the opinion of this Committee, that in the year one thousand eight hundred and fifteen, the said Louis Charles Foucher, then being one of the Judges cf the Court of King’s Bench for the District of Montreal, held alone a Court, called the Inferior Term of the Court of King’s Bench. That in the said Court, the Said Louis Charles Foucher was guilty of great oppression, towards Charles Porteous, Esquire, Barrister at Law, threatening illegally and unjustly to suspend him, without any reasonable cause, and at the same time using insulting, abusive, and extravagant language, ‘ unworthy of a British Judge upon the Bench, such as “Hold your tongue:” “Your question is stupid:” “You tell a falsehood:” “What you say is false:” “It is a falsehood, and I do not hesitate to say, in open Court, and in the face of the public, that I do not understand that you should come here to tell a falsehood:” ” I am only accountable to myself for my conduct: I am the Representative of the King: I do not hesitate to say, that upon the Bench I am greater than His Majesty, becausa His Majesty himself comes to my tribunal to be judged.” The said Louis Charles Foucher then proceeded, with anger, to give Judgment against the Client of the said Charles Porteous, refusing, at the same time, to hear his Witnesses—That the said Louis Charles Foucher, in this respect, has been guilty of gross malversation, corrupt practice, and injustice; and has violated his Oath of Office, swerved from his duty to his Sovereign, and has been guilty of conduct tending to disgrace the administration of justice in Lower- Canada. RESOLVED, As the opinion of this Committee, that in the month of May, one thousand eight hundred and fourteen, the said Louis Charles Fouchen, alone, held a Court, called the Inferior Term of the Court of King’s Bench for the District of Montréal; and the said Louis Charles Foucher rendered a final Judgmnt in favour of a Plaintiff, one Susanne La Haie, against a Defendant, one Louis Cousineau. And afterwards the said Louis Charles Foucher caused the said Judgment to be erased and scratched out from the Register; and in the month of September following, the said Louis Charles Foucher rendered a second- final Judgment in the same Cause, which Judgment was in favour of the said Defendant, Louis Cousineau, and dismissed the action of the said Plaintiff, Susanne La Haie. And on several other occasions, the said Louis Charles Foucher, has caused Records to be altered, erased, and scratched out.—That the said Louis Charles Foucher, in this respect, has been guilty of gross malversation, corrupt practice, and injustice; and has violated his Oath of Office, swerved from his duty to his Sovereign, and has been guilty of conduct tending to disgrace the administration of justice in Lower-Canada. Journals of Assembly, Lower Canada, 1817, p. 539. 1. From the Journals of the Legislative Assembly, Lower Canada, 25th February, 1817, page 548. 2. The evidence against Justice Foucher is to be found in the Appendix I. to the Journals of the House of Assembly, Lower Canada, 1817.

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tion, liberty and life, which the Criminal Law of England, and the free Trial by Jury, are calculated to afford, if a Judge destitute of uprightness, should be allowed to act.

That as by the Municipal Laws of this Province, the greater number of Civil Suits are tried by the Court without the intervention of a Jury, the sole security for the property of His Majesty’s loyal subjects in this Province, is to be found in the integrity of the persons to whom the administration of justice is confided.

Wherefore, we, His Majesty’s faithful Commons of this Province, most respectfully beg leave to be permitted to lay at the feet of Your Royal Highness, the grounds of our complaint against the said Louis Charles Foucher, Esquire, and pray, that in consideration of the premises, he may be removed from his Office, and that the authority of His Majesty’s Government may be interposed, in such way as in Your Royal Highness’s wisdom may appear necessary, for bringing him to justice.

ADDRESS or THE LEGISLATIVE COUNCIL.1

To HIS ROYAL HIGHNESS THE PRINCE REGENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND.

MAY IT PLEASE TOUR ROYAL HIGHNESS,

We, His Majesty’s most dutiful and loyal Subjects the Legislative Council of the province of Lower Canada in provincial parliament assembled, do most humbly represent to Your Royal Highness that certain Articles of Complaint and Accusation for high Crimes and Misdemeanors have been voted by the Assembly of this Province against Louis Charles Foucher Esquire one of the Judges of His Majesty’s Court of King’s Bench for the District of Montreal, and an Address of the Assembly has also been voted to be laid before Your Royal Highness with the said Articles and praying that the said Louis Charles Foucher be removed from his Office.

In these proceedings We have had no participation in any shape, the Resolutions of the Assembly not having been submitted to Us for concurrence, nor has the accused been at all heard in his defence, or had any communication of the charges against him other than what the public papers or private Information may have conveyed. We therefore do not presume to give any Opinion upon the innocence or guilt of the accused.

Under all the circumstances of the case however, We consider it our bounden duty humbly to submit to Your Royal Highness the serious consequences which are likely to result if the claim of the Assembly be sustained. That claim extends to the right of passing Articles of Accusation without limitation and without controul in this Province; either when voted after the hearing only of ex parte Testimony without notification to the accused of Complaint against him, or in the absence of all Testimony, as hath already been practised.

If such a right in the Assembly shall be established, and that Articles of Complaint and Accusation by that House neither require any concurrence in the Legislative Council previously to being submitted to Your Royal Highness ; nor can be adjudged upon by this House, or any other Tribunal constituted or to be constituted in this Province; then every public Officer being liable to be compelled at his own expense to go to England before being heard at an immense distance from the place of residence of

1. From the Journals of the Legislative Council of Lower Canada, for March 1, 1817. In transmitting this address Sir J. C. Sherbrooke observes, ” Upon the points which this Address will bring under the Consideration of His Majestys Government I earnestly entreat that I may be favoured by Your Lordship with such instructions as may serve for a guide to me in future in judging of the pretensions of the two Houses on these disputed matters.” (Sherbrooke to Bathurst, March 10, 1817, No. 101, Duplicate Despatches, Lower Canada, in the Canadian Archives.)

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his exculpatory Witnesses must henceforth feel, himself wholly at the mercy of the Assembly and thereby become disqualified from an independent and faithful discharge of Official duty.

We therefore humbly beseech Your Royal Highness not to inflict any punishment, upon the said Louis Charles Foucher Esquire one of the Judges of His Majesty’s Court of King’s Bench for the district of Montreal in consequence of the Articles of Complaint exhibited against him by the Assembly of this Province, until such Articles of Complaint shall have been submitted to the consideration of this House, and this House shall have concurred therein, and such Articles of Complaint after such submission and concurrence shall have been heard and determined in such Tribunal as Your Royal Highness shall be pleased to appoint for that purpose ; or until such Articles of Complaint without such submission and concurrence shall have been Heard and determined in due Course of Justice in this House, under such Commission as Your Royal Highness shall see fit to issue for that purpose with such powers and Limitations as to Your Royal Highness shall seem meet.

Signed By Order J. SEWELL, Speaker.

RESOLUTIONS OF THE HOUSE OF ASSEMBLY.1

Friday, 21st March, 1817.

RESOLVED, that the claims of the Legislative Council, touching the accusations or complaints brought by this House against Louis Charles Foucher, Esquire, are not founded on the Constitutional Law, or any analogy thereto, tend to prevent offenders out of the reach of the ordinary tribunals of this country, from being brought to justice, and to maintain, perpetuate and encourage, an arbitrary, illegal, tyrannical and oppressive power over the people of this Province.

MEMORIAL OF JUSTICE FOUCHER.2

A SON EXCELLENCE

SIR JOHN COAPE SHERBROOKE, Chevalier de la Grande Croix du très honorable ordre militaire du Bain, Gouverneur en chef des Provinces des Haut et Bas Canada, Nouvelle Ecosse, Nouveau Brunswick, et de leurs dépendances,, &c, &c &c.

La très humble Supplique de Louis Charles Foucher, un des Juges Puisnés de la Cour du Banc du Roi pour le District de Montréal, dans la Province du Bas Canada. Qu’il plaise à VOTRE EXCELLENCE,

Votre Suppliant a reçu par Mr. le Secrétaire la signification du désir de VOTRE EXCELLENCE, qu’il eût à s’abstenir de ses fonctions de Juge, Et ayant considéré cette

1. From the Journals of the Legislative Assembly, Lower Canada, 1817, page 920. 2. From the original memorial in the Canadian Archives, Duplicate Despatches, Lower Canada, 1817. In transmitting this memorial, Sir John Sherbrooke observes, ” Mr Foucher has also made application for leave of absence to proceed to England for the purpose of vindicating his Character before His Majesty’s Government but this I have not thought it proper to grant him, as the address of the Legislative Council, which I transmitted to Your Lordship on the tenth March last, will have brought under the consideration of His Majesty’s Government the expediency of constituting that Body a Tribunal for the trial of Mr Foucher in this Country. It is far from my wish either to recommend or oppose such a measure but I think it proper to state that a trial in England would in my opinion be ruinous to Mr. Foucher whose1 fortune I understand is not such as to enable him to support the great expense to which such a proceeding would subject him by the necessity of the personal appearance there of both himself and his Witnesses.” (The Canadian ATehives, Duplicate Despatches, Lower Canada, 1817).

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intimation comme un ordre péremptoire, il s’est empressé de s’y soumettre, malgré qu’elle répugnât à ses sentimens d’honneur et d’intégrité, qui l’ont toujours dirigé dans l’exercice de plus de quinze ans, de ses fonctions Judiciaires.

Votre Suppliant prie respectueusement VOTRE EXCELLENCE de lui permettre quelques observations sur les procédés sans exemple, et (comme il les envisage) inconstitutionnels, qui ont eu lieu à l’occasion des accusations portées contre lui devant la Chambre d’Assemblée, ainsi que sur le mode adopté par cette Chambre pour les consacrer. Mais auparavant il importe de faire connoître à VOTRE EXCELLENCE que la personne1 qui a produit et mis en avant les accusations dont il s’agit, étoit et est membre de la Chambre, et que cette même personne est l’ennemi déclaré du Suppliant; qu’un comité de la Chambre a été nommé pour informer sur ces accusations et en faire rapport : que la personne qui a porté les accusations a fait elle-même les poursuites devant le comité, et a produit tels individus que bon lui a semblé, et qu’elle savoit bien être déjà disposés à devenir témoins volontaires contre lui.

Votre Suppliant n’a reçu aucune notification des dites accusations on ne lui a pas fourni l’occasion d’être entendu, ni de transquestionner les personnes examinées; et ces personnes ont donné des témoignages (si on peut toutefois qualifier de témoignages de telles déclarations) sans avoir été liées préalablement par l’obligation et la solennité d’un sern-ent: elles ont ainsi débité tels contes ou telles histoires qu’il leur a plû et dont une grande partie avoit été déjà concertée et méditée dans des sentimens de haine et de vengeance contre votre suppliant ainsi qu’il peut le démontrer.

Or, c’est d’après de tels témoignages que le Comité a assumé sur lui de faire un rapport à la Chambre, et de lui présenter des résolutions conformes : et, cette Chambre au mépris de l’usage et de la pratique observés en pareil cas, sans avoir fait parvenir à Votre Suppliant aucune notification, ou avis quelconque, n’a pas hésité le moindrement à adopter les résolutions proposées, et elle a voté une adresse à VOTRE EXCELLENCE pour la prier de vouloir bien suspendre votre suppliant des fonctions qu’il avoit l’honneur d’exercer comme l’un des Juges de la Cour du Banc du Roi.

Votre Suppliant conçoit humblement qu’étant né Sujet Britannique il a (quoique vivant dans la Province du Ras Canada) autant de droits et de privilèges, qu’aucun autre des Sujets de Sa Majesté vivans dans la Grande Bretagne: Or, dans ce puissant Royaume, dont tous les autres peuples envient la sage législation, nul individu ne peut être mis en Jugement, ou condamné sans être entendu; son procès doit être instruit et jugé devant un Tribunal compétent ; il ne peut être déclaré convaincu que sur des témoignages légaux, suffisans et donnés solennellement sous l’obligation et la sainteté du Serment.

Votre Suppliant demande aussi la permission d’exposer à VOTRE EXCELLENCE que dans des accusations de la même nature qui seroient portées en Angleterre, quoique par la Chambre même des Communes, SA MAJESTÉ ne prendroit aucune measure pour Tévoquer ou suspendre un Juge, sans lui procurer l’occasion d’être entendu et de pouvoir réfuter ces accusations.

Quoique l’on puisse dire qu’il n’existe pas dans cette Province de Jurisdiction néanmoins Votre Suppliant (bien que la reflexion doive, seron lui, soffrir nécessairevers laquelle FOTRE EXCELLENCE puisse le renvoyer pour y subir une procédure légale, et qu’ainsi la seule voie qui paroisse lui être ouverte soit une application à SA MAJESTÉ en Conseil, pour revendiquer son Honneur & sa réputation injustement compromis, néanmoins Votre Suppliant (bien que la reflexion doive, selon lui, soffrir, nécessairement à la pensée de VOTRE EXCELLENCE) ne peut s’empêcher de faire remarquer la déplorable situation ou se trouvent les Juges de SA MAJESTÉ et les autres Officiers dans cette Province, si la seule ressource qu’ils peuvent avoir en pareilles circonstances, est

1. See page 504, note 2.

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un application à SA MAJESTÉ en Angleterre; en ce que les dépenses qu’entraine nécessairment une telle application sont infiniment onéreuses, et en ce qu’il est évidemment impossible de faire comparoitre leurs témoins en Angleterre. Or, Votre Suppliant soumet humblement à VOTRE EXCELLENCE si la réserve de cette seule et unique ressource n’équivaut pas à un déni formel de Justice.

C’est pourquoi Votre Suppliant a recours à VOTRE EXCELLENCE, et tout en protestant contre les mesures inconstitutionnelles adoptées par le Comité de la Chambre en portant les accusations susdites, il affirme que les témoignages produits contre lui reposent sur des faussetés ou sur de faux exposés ; et il est prêt à le prouver par plusieurs témoins et documens officiels. En sa qualité de Sujet Britannique il croit avoir le droit incontestablement acquis d’être entendu et jugé avant que d’être déclaré coupable.

u n conséquence Votre Suppliant prie humblement VOTRE EXCELLENCE de vouloir bien instituer et nommer quelque Jurisdiction ou quelque Tribunal compétent dans cette Province (s’il n’y en existe pas encore) devant lequel Votre Suppliant puisse comparoitre et établir son innocence: Car il aime à croire que VOTRE EXCELLENCE a dans ses pouvoirs actuels, des moyens suffisans pour lui procurer l’occasion de se défendre ici, c’est à dire de se justifier.

Dans tous les cas, Si VOTRE EXCELLENCE ne Jugeoit pas à propos de lui taeiliter une enquête dans ce pais, qu’il lui plaise au moins différer la transmission au Pied du Trône, des accusations de la Chambre contre lui, pour le mettre à portée d’y joindre quelques défenses, telles imparfaites qu’elles seroient nécessairement, à raison des circonstances extraordinaires ou il se trouveroit.

Enfin si Votre Suppliant ne pouvoit pas prévenir que les accusations de la Chambre fussent transmises isolées à SON ALTESSE ROYALE, Le Prince Régent Qu’il plaise à VOTRE EXCELLENCE y joindre au moins sa présente et humble Supplique, afin que ces accusations isolées ne puissent faire naître contre lui. aucuns préjugés, quoiqu’il aie la ferme confiance que de pareilles accusations isolées Et ex parte n’en pourront jamais faire élever, surtout devant le Trône Royal, Source de toute justice.

Et Votre Suppliant plein de reconnoissance ne cessera de prier pour la conservation des jours précieux de VOTRE EXCELLENCE.

L. C. Foucher.

Montréal le 8 mars 1817.

BATHURST TO SHERBROOKE.1

Duplicate N°. 115

Downing Street 7 July 1817

Sir,

I have not failed to bring under the consideration of The Prince Regent your dispatches of the dates and numbers specified in the Margin in which you communicate the proceedings of the House of Assembly against L. 0. Foucher Esq1 one of the Justices of the Court of Kings Bench, the Address which the Legislative Council had in consequence of his impeachment thought it necessary to submit to His Royal Highness, and the anxiety of Mr Foucher that the charges against him should be brought to an early decision. In considering these communications His Royal Highness has been most anxious

1. From the original despatch in the Canadian Archives, G. 9, page 192. 2. See page 502. 3. See page 507, note 1. 4. See page 508, note 2

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to devise some mode of investigating the conduct of Mr Foucher which while it shall ensure a correct adjudication of the charges brought against him shall be as little burthensome as possible either to the party accused or to those by whom the accusation is preferred. His Royal Highness acquiesces entirely in the sentiments expressed by the Legislative Council as to the inconvenience of conducting such an investigation in this Country, since such a measure would in any case entail a heavy expenee, most unjust to the parties if it be to be defrayed by them, and most burdensome to the public if ultimately charged to the Colony. I am therefore to signify to you the Pleasure of His Royal Highness, that in this and in all similar cases of impeachment by the Legislative Assembly the adjudication of the charges preferred against the party accused, shall be left to the Legislative Council. Under such an arrangement His Royal Highness feels no disposition to question the right of the Assembly tosubmit Articles of Impeachment against any individual whose public i conduct may appear to them deserving of animadversion1 nor does His Royal Highness see any objection in such case to a compliance with the Address of the Assembly for the suspension of the obnoxious individual since the means of’ascertaining the validity of the Charges being at hand, the party accused can sustain but little injury from a temporary suspension if innocent, and if ultimately pronounced to be guilty the advantage of an immediate suspension is unquestionable.

You will therefore communicate to the House of Assembly and to the Legislative Council the decision of His Royal Highness and His confident expectation that they will each so discharge the important duties which will under this arrangement respectively devolve upon them as to give complete satisfaction to all classes of His Majesty’s subjects in the Province.2

I have the Honor to be Sir, Your most obedient Humble Servant BATHURST.

Lieut General Sir J. 0. Sherbrooke, G.C.B. &c &c &c

1. On the question of the strict constitutional right of impeachment see the opinion of the Law pincers of the Crown, page 512. 2. This decision was not communicated to the House of Assembly for the reasons set out by Sir J. C. Sherbrooke, in his despatch of January ÏOth. See page 531.

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[Copy]

REPORT OF THE LAW OFFICERS ON PROCEDURE IN CASES OF IMPEACHMENT.1

To His Excellency Sir John Ooape Sherbrooke Knight Grand Cross of the Most Honourable Military Order of the Bath, Captain General & Governor in Chief in and over the Province of Lower Canada Vice Admiral of the same, etc. etc. etc.

MAY IT PLEASE YOUR EXCELLENCY.

In obedience to the Commands of your Excellency, We have taken into Consideration the three points contained in the report of His Majesty’s Executive Council for this Province, upon the Dispatch of Earl Bathurst of the 5th of July under the No. 115, respecting the impeachment of Mr Justice Foucher.

First ” Can or cannot the Legislative Council legally take cognizance of the ” Articles of Charge and impeachment, preferred by the Assembly, and in other future “Cases, without a Commission for that purpose?”

Upon the first point, We are of opinion that, as the general question contained in this point admits at least of a considerable doubt, the safest course to be pursued will be, to authorize the Legislative Council, by Commission, to take cognizance of the Articles of Charge and impeachment preferred by the Assembly against Mr Justice Foucher.

” 2nd If a Commission be necessary, must it issue as a general Commission for all Cases; or must a separate Commission in each particular Case be issued?

Upon the second point We have the Honor to submit to your Excellency that, tho’ by a Clause contained in Your Excellency’s Commission it would appear that a power is given generally to your Excellency, “with the advice of the Executive Council of the Province, to erect such Courts of Justice within the Province as your Excellency and the Privy Council shall think necessary, [subject only to the provisions contained in the Statute 31s t Geo. 3. C. 31s t and to any Instructions which your Excellency may receive under His Majesty’s Signet or Sign Manual, or by His Majesty’s Order in Council.”]2 yet in our humble opinion it will be more expedient to issue a Separate Commission for this particular Case—

“3rd Must the Commission in either Case be issued under the Great Seal of the Province, or under the Great Seal of the United Kingdom ” ?

Upon the third point, having taken into Consideration the Clause contained in Your Excellency’s Commission, to which We have already alluded, We have the honor to give it as our opinion that a Commission may legally issue under the Great Seal of the

1. From the copy in the Canadian Archives, Q. 148, part I, page 15. Lord Bathurst’s despatch of July 7th, 1817, was referred by Sir J. C. Sherbrooke to the Executive Council who advised a reference to the Law Officers of the questions which are answered in this report. See the Minutes of the Executive Council, State Book, page 295. 2. The extract here given is not a true quotation from the Instructions to Lord Dorchester. See page 11.

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Province, for the purpose under Consideration; and that such Commission will be a due Execution of the power vested in your Excellency.—

We have the honor to be etc.

[Signed] NORMd F. GERALD UNIACKE.1

Atty. Genl

[Signed] CHARLES MARSHALL

Sol. Genl.

[Signed] GEORGE PTKE2

Ad. Genl.

Quebec 22d October 1817.

SEPARATE OPINION OF THE ATTORNEY GENERAL.3

(Copy).

Quebec 27 Novr 1817

Sir,

I have the honor to inclose you the draft of the Commission4 for the trial of Mr Justice Foucher the Advocate General does not sign it for reasons that will be transmitted by him to His Excellency the Governor in Chief.

The Commission proposed to be issued is in the nature of that issued in England for the trial of a Peer in the Court of the Lord High Steward upon Indictment and it is to be observed that this is a Commission for a trial upon impeachment—While I am of opinion that this Commission if issued will in point of Law stand upon some strong grounds I must beg leave to add that I do not think it expedient that a Commission should issue at this stage of the Proceedings, nor do I think that that course would be carrying into the effect the intentions of His Majesty’s Government to the extent contained in the dispatch of The Earl Bathurst.5

When His Majesty’s Government feels no disposition to doubt the right of impeachment in the Commons of Lower Canada it is evident that the power to try is supposed to exist in the Legislative Council—Were a Commission to issue for the trial of an impeachment made by the Commons of Lower Canada I do not see how that right can hereafter be doubted and I should therefore think that no step ought to be taken in the Colony putting beyond all future question that right of impeachment unless the power to try in all future Cases is in the Spirit of the dispatch secured to the Legislative Council.

I have the honor to be &c

(Signed) NORMD F GERALD UNIACKE Atty-Genl

The Honourable Jonathan Sewell &c &c &c

1. See page 381, note 1. 2. George Pyke first entered the public service under Sir John Wentworth in Nova Scotia, in 1799. Soon after this he came to Lower Canada and in 1802 he was appointed Joint Prothoinotary of the Court of King’s Bench for the District of Quebec. He resigned this appointment three years later and returned to his practice at the bar. In 1804 he was elected to the House of Assembly for the County of Gaspé and was re-elected during each election until 1814. He was appointed Advocate General of the Province in 1812, and in 1816 became law clerk to the Legislative Council. During the illness of Mr. Justice Ogden in 1818 Pyke was appointed temporarily to the Court of King’s Bench for the District of Montreal and two years later he became a regular judge of the Court. 3. From the copy in the Canadian Archives, Q. 148, part 1, page 27. 4. Por the draft of the commission see page 518. 5. See page 511.

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SEPARATE OPINION OF THE ADVOCATE GENERAL.1

To His Excellency Sir John Sherbrooke Knight Grand Cross of the most Honorable Military Order of the Bath, Captain General and Governor in Chief of the Province of Lower Canada etc. etc. etc.

May it please your Excellency.

Not having signed the draft of a proposed Commission constituting a Court for the trial of Louis Charles Foucher Esqr under Charges of accusation made against him by the House of Assembly of this Province I take the liberty most humbly to submit to your Excellency the motives which have actuated and the reasons which have induced me on the present occasion not to concur in adopting the draft which has been submitted for Your Excellency’s consideration.

It does appear to me after all the research I have been able to make on the subject that no step will be necessary to be taken on the part of His Majesty’s Govvernment previous to the Communication or Message which under the dispatch of Earl Bathurst of the 5t:tl July last2 your Excellency may deem expedient to make and send to the Legislative Council and Assembly in the Ensuing Session of the Provincial Parliament,3 as, upon such communication it will remain with those two Branches by conferences or otherwise to adopt those measures which are essential to a correct investigation of the Charges before the Legislative Council and thereby give effect to the privileges which His Royal Highness the Prince Regent has been graciously pleased to recognize in those two Branches of the Provincial Parliament. In thus conceding to the one branch a right to accuse and to the other a right to investigate I do not consider that His Royal Highness has in any manner waived or intended to waive any prerogative of the Crown, or the right to remove from office any individuals holding situations during pleasure; as, should the charges after due investigation by the Legislative Council be declared well founded, His Majesty will still retain the same right of exercising his pleasure in regard to the accused officer which he now holds, with however this advantage that the Crown will be better informed as to the truth of the charges than upon a simple accusation without such investigation.—

The two Branches of the Legislature will no doubt receive Your Excellency’s Communication with the respect due to the high Source from which it proceeds and will enter upon the Investigation with a proper regard to the rank and privileges they respectively hold and possess under the constitution of the Colony; nor can I at this moment anticipate any difficulty that can arise in the prosecution of the authorized investigation which may not be obviated by an act of the two Houses sanctioned by your Excellency.

I would beg leave to state to your Excellency that under the constitutional act [31 : Geo. 3. c. 31.] neither the Legislative Council, or the House of Assembly is vested with any Judicial Powers;—Articles of Impeachment cannot therefore be preferred and tried in this Country as before the King in the Imperial Parliament,—The House of Lords having the Inherent and immemorial right to try all persons impeached by the House of Commons and proceeding therein according to the law and custom of Parliament;— no such inherent or immemorial right being possessed by the Legislative Council nothing but an act of the Imperial Parliament could give them such a right ;4—

Indeed it would appear to have been omitted in the constitutional act as not being

1. From the copy in the Canadian Archives, Q. 148, part 1, page 29. 2. Por this despatch see page 510. 3. Such a communication was not however made. Por Sir John Sherbrooke’s reasons for taking such a course see page 531. 4. See also the opinion of the British Law Officers, page 480.

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necessary and as inconsistent with the dependence of the Colony upon the Mother Country which it is so much the interest of both to preserve,—and as calculated to secure to the Officers of His Majesty’s Government a protection from the possibility of Colonial Persecution;—Those Officers hold their situations in the Colony during pleasure; they are appointed by and are the servants of the Crown, and may be suspended or removed from office whenever the Crown may think proper;—Such is the situation of Mr Foucher who might at the present moment be removed from office by an exertion of the prerogative;—it would therefore seem to be the undoubted right of the Crown to use this Prerogative in such way as to His Majesty may seem best conducive to the Public good and at the same time give security and every just protection to his servants.

His Royal Highness has therefore in the exercise of this prerogative thought proper to declare, ” that in this and in all similar cases of Impeachment by the Legislative Assembly the adjudication of the charges preferred against the party accused shall be left to the Legislative Council ;—and that under such an arrangement His Royal Highness feels no disposition to Question the right of the Assembly to submit articles of Impeachment against any Individual whose public conduct may appear to them deserving of animadversion.”1

His Royal Highness has thus graciously devised a mode of investigation the least burthensome to the accusers and accused, but in so doing has not given a power to the Legislative Council as it would appear to me to proceed to trial and punishment, but to adjudge whether the charges which may be submitted to them by the Assembly are or are not well founded to the end that upon such adjudication the ultimate dismissal from or continuance in office of the accused Individual may be determined by His Majesty.—

Aware, may it please Your Excellency, of the importance of the subject I have endeavoured to discharge my duty to your Excellency by avoiding a hasty consideration and opinion,—and I cannot view the dispatch of Earl Bathurst in any other light consistent with my ideas of the principles of constitutional Law, than in the manner before submitted to your Excellency;—nor does it appear to me that the Crown can issue a Commission for the trial of persons impeached;—Such an accusation is purely parliamentary and cannot take any other than a Parliamentary course; the right of accusation in the one Branch is founded upon the right of trial in-the other; they are so united that they cannot constitutionally be separated;—the strict right of Impeachment does not therefore in my humble apprehension exist in the Colonial Assembly; this privilege alone exists in the Commons of the United Kingdom, and through that body the accused Individual might be impeached before the King in Parliament;—I do not conceive the charges of the Provincial Assembly to be strictly and legally articles of Impeachment, but to have been considered by His Royal Highness merely as a complaint on the part of the Assembly to the Crown, of an improper exercise and abuse of the duties of Office in one of its servants and praying for redress by his removal from office;—and thereupon His Royal Highness with that sense of justice so strongly marked in every line of the dispatch of Earl Bathurst has been anxious to devise a mode of investigation of the charges against Mr Foucher and has in his wisdom adopted that, which, while it affords relief to all parties, is eminently calculated to preserve as much as possible and as constitutionally he could the honour of the Provincial Parliament by directing that the investigation of the charges or complaint should be left to the Legislative Council,—not as a Court for the trial and punishment of the accused but as a body entitled to participate in all matters agitated in the Provincial Parliament and as the .Branch best calculated from its rank in the constitutional scale to inform the conscience of His Majesty of the truth of the charges or complaint of the Assembly.—

1. This is a quotation from Lord Bathurst’s despatch of July 7, 1817, see page 511.

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It is obvious that the Imperial Parliament may give to the Assembly the right of Impeachment and to the Legislative Council the right of trial as fully as it is possessed by the Lords and Commons of the United Kingdom, but the expediency of such a eoncession might be well doubted;—and if I might be allowed respectfully to submit my sentiments to your Excellency upon the Subject I must declare that I do not consider that it would be sound policy to adopt such a course as it would tend to weaken the ties of the Colony to the Mother Country and render the former more independent of the latter than the welfare safety and general interests of the Empire will admit; The relative situation of the Colony to the Country which fosters and protects it must never be lost sight of; one concession is only the fore-runner of a claim for others; and the consequences which would result from such concessions would more fully occur to your Excellency’s mind than I could possibly represent them.

The draft of a Commission which has been submitted for your Excellency’s consideration is the first of it’s kind; as it is for the trial of an Individual under what has been styled articles of Impeachment; now it cannot be found that the Crown has ever interfered by Commission in cases of Impeachment, except so far as regards the appointment of a Lord High Steward to preside at the trial, who, as Hawkins observes must be a peer of England, ” as no one under the degree of nobility is capable of so honourable a Post,”—and this officer is now appointed by Special Commission pro hâc vice which recites that the appointment is made upon the application of the Lords, as will appear to Your Excellency on reference to the Commission in the case of Lord Lovat [9th Vol. of State Trials, p. 622.]—the words being, ” and for as much as the Lords Spiritual and Temporal in our present Parliament assembled have most humbly besought us that we would vouchsafe to appoint a Steward of Great Britain for this time,” Thus far His Majesty appoints, as of right, an officer to preside but does not create a Court or vest in the Lord High Steward any Judical functions ;—nor can the Crown stop the Proceedings on an Impeachment by granting a Pardon to the accused.—

In Foster, Your Excellency will find the following remark, ” In the trial of a Peer indeed for a capital offence, it hath been usual to appoint a Lord High Steward during the trial, and until Judgment is given, for the sake of order regularity and dignity ;— ” But this appointment does not alter the constitution of the Court,”—and he further adds that ” Such an Officer is usually though not necessarily appointed.”1

The proposed Commission therefore only resembles that issued during the recess of Parliament to the Lord High Steward for the trial of an Indictment found by a Grand Jury of a County and returned into the ordinary Courts against a Peer of the realm for treason or felony or misprision of either and which is removed by certiorari; None but Peers can be thus tried and only for the offences above mentioned, as in cases of misdemesnors they have no such privilege but are tried in the ordinary Courts and according to the course of the Common Law.

There exists therefore no precedent for the proposed Commission, and where none exists I should be strongly inclined to doubt its legality; from the well known principle that,the King cannot grant any new Commission which is not warranted by ancient precedents, however necessary it may seem and conducive to the Public Good. [3. Hawk, p. 3.]—and from the observation of Lord Coke in treating upon Justices of Oyer and Terminer. ” That all Commissions of new invention are against Law until they have allowance by Act of Parliament. [4. Inst. 163]

Indeed it does not appear from the dispatch of Earl Bathurst to have been a measure contemplated or deemed necessary by His Royal Highness the Prince Regent; —for the power of investigating the charges, it would seem, has alone been authorized, and which the Crown for the reasons before submitted to your Excellency would have

1. See also on this point the opinion of the Judges of the Court of King’s Bench for Quebec, page 527.

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a right to direct and authorize in the exercise of the Prerogative quo ad its officers, against whom complaints have been preferred.

Before it has been ascertained whether the House of Assembly [admitting for a moment the right of Impeachment in that Body,] will submit it’s Charges to the Legislative Council, it would seem at any rate to be risquing too much to issue a Commission which might become nugatory in its effect;—as a primary consideration would appear to me necessary whether the execution of such a Commission can be enforced; And I feel confident that Your Excellency would not be disposed to give an opportunity to either branch of the Legislature to call in question the authority of the King’s Commission.

Certain privileges have been conceded, and it is for the two houses to give effect thereto by discharging the important duties which will thus respectively devolve upon them;—If they will not accept the tendered privileges and give effect to the arrangement and mode of investigation devised by His Royal Highness it will induce him to adopt such other mode of investigation as in his wisdom he may deem right.

It has been observed that the proposed Commission like that issued to a Lord High Steward upon an Indictment, is in the nature of a Commission of Oyer and Terminer; —and it must be admitted that they do in some particulars agree;—But a view of the two Commissions is only necessary to decide upon the wide difference between them and that a power to issue Commissions of Oyer and Terminer, does not imply a power to erect a Court similar to that of the Lord High Steward : whose proceedings are not according to the course of the Common Law which is that which governs the Proceedings in the King’s ordinary Courts of Justice;—It is certainly essential that the course to be adopted should be strictly legal and correct, as any error can only give rise to future and endless difficulties, disturb the Peace of the Colony,—and occasion great trouble and embarrassment to His Majesty’s Government.

I must request your Excellency’s pardon for this lengthy and I am afraid imperfect explanation of my motives and reasons for declining to concur in the proposed draft;— I have conceived it my duty fully to disclose them, and do most respectfully submit them for your Excellency’s consideration,

and have the honour to be etc. etc. etc.

[Signed] GEORGE PTKE Ad. Genl. L.C,

Quebec 1st Decr 1817

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DRAFT COMMISSION FOR THE TRIAL OF JUSTICE FOUCHER.1

GEORGE THE THIRD by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the Faith

To our much beloved and faithful The Honourable Jonathan Sewell Speaker of our Legislative Council of our Province of Lower Canada, a Member of our said Legislative Council, and Chief Justice of our said Province;

To our much beloved and faithful the Right Reverend Father in God Jacob Lord Bishop of Quebec, another Member of our said Legislative Council;

To our much beloved and faithful Thomas Dunn & (naming each of the Legislative Counsellors) and to all others to whom these presents shall come or may in any wise concern,

Greeting—

WHEREAS Louis Charles Foucher, Esquire, one of the Justices of our Court of King’s Bench of and for our District of Montreal in our said Province of Lower Canada, before Us, by the Assembly of our said Province, in the name of the said Assembly and of all the Commons of our said Province, In our Provincial Parliament of our said Province, hath been and is and Stands impeached and accused of divers high Crimes and misdemeanours, by him the said Louis Charles Foucher committed & perpetrated:—

We considering that Justice is a most excellent virtue, and being willing that the said L. C. Foucher should in our Legislative Council of our said Province according to the Criminal Law of that part of our United Kingdom of Great Britain and Ireland called England and of our said Province (a) be heard, sentenced, and adjudged, touching and concerning the said high Crimes & misdemeanours whereof he stands impeached and accused as aforesaid: and that all other things which are necessary in this behalf should be in due manner done and executed; and very much confiding in the Fidelity, Prudence, provident circumspection, and Industry (a) of you the said (such member or members as may be selected to fill the office of Steward) have by and with the advice of our Executive Council of and for our said Province of Lower Canada for this cause ordained constitute and assigned and hereby do ordain constitute and assign you the said………………………. our Justice Commissioner and Steward (b) of in and for our said Province of Lower Canada to bear, execute, and exercise for this time the said office, with all things to the said office in this behalf due and belonging: and the said high crimes and misdemeanours whereof the said L. C. Foucher so as aforesaid stands impeached and accused, to hear and determine by the Oaths of good and lawful men, being Members of our said Legislative Council of our said Province of Lower Canada, as to Justice doth belong according to the Criminal Law of that part of our United Kingdom of Great

1. From, the copy in the Canadian Archives, Duplicate Despatches, Lower Canada, 1818. 2. Simon, Lord Loval, was impeached by the House of Commons in 1746, the charges arising out of his alleged connection with the Scottish rebellions of 1743 and 1745 The trial took place in Westminster Hall in March, 1747, and the proceedings are reported in State Trials, (Ed. of 1813) Vol. XVIII, page 530. The commission to the Chancellor, Lord Hardwieke, as Lord High Steward may be found at page 541.

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Britain and Ireland called England and of our said Province of Lower Canada (c) and therefore We command you the said …………………….our Justice Commissioner and Steward as aforesaid that you diligently set about the premises, and for this> time do exercise and execute with effect all those things which belong to the said office, and which are required in this behalf (d)

And by the tenor of these Presents We do Command and do give and grant unto you the said ……………………….our Justice ,Commissr and Steward as aforesaid full and sufficient power and authority at certain days and times during the now next ensuing Session of our said Provincial Parliament and at a place certain within our City of Quebec in our said Province of Lower Canada (which you the said our Justice Commissioner and Steward as aforesaid and you the said (naming all the rest of the Legislative Counsellors) (e) in our said Legislative Council for the purposes before and hereafter mentioned shall appoint (a) the said high crimes and misdemeanours whereof the said L. 0. Foucher so as aforesaid is and stands impeached and accused, and the articles of accusation con- eerning the said L. C. Foucher adopted by the said Assembly of our said Province, and by the said Assembly unto us presented and pre- ferred, and by which, before us, the said L. C. Foucher in our said Provincial Parliament, of the high crimes and misdemeanours aforesaid hath been and is and stands impeached and accused, and each and every of the said Articles of accusation, and the matter thereof (b), To hear and determine by the Oaths of good and lawful (6) men, being Members of our said Legislative Council of our said Province of Lower Canada as to Justice doth belong (c) according to the Criminal Law of that part ot our United Kingdom of Great Britain and Ireland called England and of our said Province of Lower Canada:—

Further the Articles of accusation aforesaid against and concerning the said L. C. Foucher so as aforesaid adopted and so as aforesaid presented and preferred unto us by the said Assembly of our said Province, which We have this day sent unto and delivered into the Custody and Keeping of our trusty and well beloved William Smith Esqr. our clerk of our said Legislative Council by precept under the hand and Seal of you the said………………………. our Justice Commissioner and Steward as aforesaid to him the said William Smith for that purpose directed (d) to send for, and the same with all things thereunto relating from the Custody and Keeping of the said William Smith to remove and bring before you the said our Justice Commissioner and Steward as aforesaid & thereupon to proceed: Further—the said L. C. Foucher before you to Summon and to convene and cause to appear, and him the said L. 0. Foucher thereupon to hear and to ccmpel to answer unto the aforesaid articles of accusation and unto the matter thereof, and unto all things touching and concerning the said high Crimes and misdemeanours whereof he thereby is and stands accused and impeached as aforesaid—Further—our much beloved and faithful the Legislative Counsellors of our said Province of Lower, Canada hereinbefore mentioned, that is to say E. F. &c &c and all and each and every of them, by whom, and by whose Oaths

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the truth in this behalf touching and concerning the matter of the said articles of accusation and the said high Crimes and misdemeanours whereof the said L. C. Foucher is and stands impeached and accused as aforesaid, may be the better known before you the said …………………………..our Justice Commissioner and Steward aforesaid by the ministry of our trusty and well beloved William Ginger, our Sergeant at Arms of our said Legislative Council, by precept under the hand and Seal of you the said ………………………….our Justice Commissioner and Steward as aforesaid to him the said William Ginger for that purpose directed (h) to summon convene and cause to appear at ‘days and times during ‘ now next ensuing Session of our said Provincial Parliament and at ‘ place within our said City of Quebec which you’ said A. B. &G &G (all ‘ an) in our said Legislative Council for ‘ purposes hereinbefore and hereafter mentioned shall so as aforesaid appoint—and lastly the truth in this behalf touching and concerning the matter of the said articles of accusation and the said high crimes and misdemeanours, whereof the said L. 0. Foucher is and stands impeached and accused as aforesaid being by such ways methods and means as aforesaid known and declared by Verdict (e) to proceed therein to Judgment, and, if need be to sentence and execution against the said L. C. Foucher, as to Justice doth belong according to the Criminal Law of that part of our United Kingdom of Great Britain and Ireland called England, and of our said Province of Lower Canada (d)

And we do hereby Command and Strictly enjoin you the said ………………..(all the Legislative Counsellors) and each and every of you, that at the days and times during the now next ensuing Session of our said Provincial Parliament, and at the place within our said City of Quebec which you the said (all ‘ Counsellors) in our said Legislative Council for the purposes hereinbefore and hereinafter mentioned, shall appoint you and each and every of you do attend to act respectively in form aforesaid in the premises (b)

And we do also hereby Command and Strictly enjoin our said trusty and well beloved William Smith our Clerk of our said Legislative Council as aforesaid that at the days and times and at the place which for the purposes hereinbefore and hereinafter mentioned shall in manner and form aforesaid he appointed he do also attend, and that the aforesaid Articles of accusation against and concerning the said L.C. Foucher so as aforesaid by us sent unto & delivered into the Custody & Keeping of him the said William Smith with all things thereunto relating, he do then and there bring and deliver unto you the said our Justice Commissioner & Steward as aforesaid, when thereunto required (c)

And we do also hereby Command and Strictly enjoin our said trusty and well beloved William Ginger our Sergeant at Arms of our said Legislative Council, that at the days and times and at the place which; for the purposes hereinbefore and hereinafter mentioned, shall in manner and form aforesaid be appointed, he do also attend, and that then and there he do execute and perform all and every those things which unto his office do appertain in this behalf to be done (d)

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And lastly, We do also hereby Command and Strictly enjoin all others our Officers, Ministers, Servants & Subjects whomsoever that in the due execution of the premises & of these presents they and every one of them, in all things, be aiding and assisting to the utmost of their power, unto you the said……………. …………………..our Justice Commissioner and Steward as aforesaid and unto you the said (naming the rest of the Counsellors) respectively as becometh (a)

In testimony whereof We have by our express Command caused these our Letters to be made Patent and the Great Seal of our said Province of Lower Canada to be hereunto affixed and the Same to be entered of Record in our Register’s Office of Enrolments in our said Province

Witness our trusty &c

Our Draft

[Signed] N. E. GERALD UNIACKE

Atty Genl

[Signed] CHARLES MARSHALL

Sol1 Genl

Quebec 26 Novr 1817

OPINION OF THE LAW OFFICERS OF THE CROWN ON QUESTIONS SUBMITTED BT THE EXECUTIVE COUNCIL.

OPINION OF THE ATTORNEY GENERAL AND SOLICITOR GENERAL.1

1st. Has the Legislative Council the native and inherent Jurisdiction of the House of Lords for the trial of impeachments by the Commons of Lower Canada ? We are of opinion that the Legislative Council has not the native and inherent Jurisdiction of the House of Lords for the trial of impeachments by the Commons of Lower Canada.

2a Can the Crown by Commission give to the Legislative Council the native and inherent Jurisdiction of the House of Lords, so as thereby to enable each Member to sit as Judge both of Law and fact ?

We are of opinion that the Crown by Commission cannot give to the Legislative Council the native and inherent Jurisdiction of the House of Lords, so as thereby to enable each Member to sit as a Judge both of Law and fact.

[Signed.] NORMd F. GERALD UNIACKE Atty Genl.

[Signed.] CHARLES MARSHALL Solr. Genl.

Quebec 1st December, 1817.

OPINION OF THE ADVOCATE GENERAL.

Question. Has the Legislative Council the native and inherent Jurisdiction of the House of Lords for the trial of impeachments by the Commons of Lower Canada ?

Answer. The right in the Legislative Council to try must be coeval with that of the House of Assembly to impeach, the one it would appear to me is a necessary consequence of, and cannot exist without the other; But by the Constitutional Act (31 Geo. 3. c. 31) neither the one right nor the other is vested in those two Branches ; the right of impeachment in the true and legal sense of the word only exists in the Commons of the United Kingdom, and not in the Colonial Assembly. Any complaint therefore on the part of the Assembly of improper conduct in any public Officer can only be by Petition to the Throne, and the right to direct an Investigation of the Subject

1. From the original opinion in the Canadian Archives, Sundry Papers, Secretary of State, Lower Canada, 1817.

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matters of the Complaint will be in the Crown, but no Court can be created for the trial thereof, as such complaint cannot be deemed a legal accusation.

Question. Can the Crown by Commission give to the Legislative Council the native and inherent Jurisdiction of the House of Lords so as thereby to enable each Member to sit as a Judge both of Law and fact?

Answer. It does not appear that the Crown can issue such a Commission.

Quebec 1 Decr 1817.

[Signed.] GEORGE PTKE Ad. Genl. L.C.

REPORT OF EXECUTIVE COUNCIL ON THE ISSUING OF A COMMISSION FOR THE TRIAL OF JUSTICE FOUCHER.1

Tuesday 18th November 1817

At the Council Chamber in the Castle of St Lewis

Present

His Excellency Sir John Coape Sherbrooke G.O.B. Captain General and Governor in Chief &c——&c——&c——

The Honble

The Chief Justice Mr Young Mr Irvine Mr Duchesnay Mr Perceval Mr Perrault and Mr Smith

His Excellency laid before the Board a Dispatch from the Earl Bathurst dated the 5th day of July last,2 together with the Draft of a Commission3 prepared by the Law Officers of the Crown for the Trial of Mr. Justice Foucher.

And His Excellency referred the same to the consideration of a Committee of the whole Council in Order that he might receive their Advice as to the Measures most proper to be pursued in Order to enable him in this Instance to carry the Commands of His Royal Highness the Prince Regent into effect.

REPORT OF THE JUDGES OF THE COURT OF KING’S BENCH ON THE TRIAL OF JUSTICE FOUCHER.

REPORT OF THE JUDGES OF THE COURT OF KING’S BENCH, MONTREAL.4

(Copy)

Montreal 29m Decr—1817

Sir,

We have to request that you. will express to His Excellency the Governor in Chief that We have considered His Excellency’s reference upon the Subject of Mr Justice

1. From the original minutes of the Executive Council, State Book I, Lower Canada, page 280. 2. See page 510. 3. See page 518. 4. From the Copy in the Canadian Archives, Q. 148, part 1, page 47. The draft commission prepared by the Attorney General and Solicitor General was submitted by Sir John Sherbrooke to the Judges of the Court of King’s Bench together with the opinions of the Law Officers and their opinion was requested on the method of procedure and the validity of the commission.

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Foucher’s trial communicated by your letter of the 13th instant with the several inclosures, and with all deference submit our opinion—

That the Legislative Council of this Province of Lower Canada is not by the Constitution thereof vested with the power or authority of trying and determining the impeachment made by the House of Assembly against Mr Justice Foucher3—And as it has been directed by the Crown, that in this and all similar cases of impeachment by the Legislative Assembly, the adjudication of the charges preferred against the party shall be left to the said Legislative Council, We are of opinion, that this power may and ought to be communicated and transferred in this instance to that Body, by. Commission under the Great Seal of the Province—

Having examined the draft of the Commission2 submitted to Us for transferring the above Powers and authorities to the said Legislative Council, We humbly submit, that, in our opinion, the said Commission does not sufficiently convey to the said Council the requisite authority in this behalf in as much as the said Commission purports to establish a Court of the High Steward, in which according to the course and practice in England he alone is Judge in all points of Law and practice and the Peers there (as the Councillors to be Summoned here) are merely triers and judges of the fact ; by this Commission the sole right of judicature will be vested in the High Steward, Whereas we conceive, that according to the meaning and intention of Earl Bathurst’s dispatch,8 this power should be given to the whole Legislative Council in such manner as to assimilate that Body to the Court of Peers in Parliament, in which every Peer present at the trial voteth upon every question of Law and Fact and the question is carried by the Major Vote; and although in this Court a High Steward may be appointed for the Order and regularity of the proceedings, yet he is not absolutely necessary for the validity thereof; and when appointed he acts only as a Speaker or Chairman and Votes as any other Peer, or Member of the Court.—

We are therefore of opinion that the Commission in question should be drawn from such precedents as will convey this equal power and authority to the Legislative Council collectively; and in case they shall see necessary to apply for the appointment of an High Steward, for the order and regularity of their proceedings, it might be thereupon granted to them.—

We at the same time submit, how far it might be advisable in order to facilitate the course of proceedings to be had upon any similar or other impeachments, which may at any time hereafter be made by the Legislative Assembly against any person, that an act of the Provincial Legislature should be obtained to vest and establish in the Legislative Council the right to try and determine all such impeachments and to regulate the proceedings to be had thereon.

We are, Sir, &c (Signed) J. Monk Ch. Just. (Signed) J. Ogden, J.B.R. (Signed) Js Reid J.K.B.

A. W. Cochran Esqr &c. &c.

1. See page 504. 2. See page 518. 3. See page 510.

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REPORT OF THE JUSTICES OF THE COURT OF KING’S BENCH, QUEBEC.1

To his Excellency Sir John Coape Sherbrooke G.C.B. Captain General & Governor in Chief in and over the Provinces of Lower and Upper Canada &c &c &c.

May it please your Excellency—,

I n Obedience to your Excellencys Commands, We have taken into our Consideration, The Draft of the Commission prepared by his Majestys Attorney and Solicitor General, to enable The Legislative Council to hear and determine, The articles of Impeachment exhibited by the Assembly against Mr. Justice Foucher. And having also taken into our Consideration, The Despatch of Earl Bathurst which on the behalf of his Royal Highness The Prince Regent directs That the Charges preferred by this Impeachment against Mr. Foucher shall be left to the Adjudication of the Legislative Council—

The. References which have been thereupon made by your Excellency to his Majestys Executive Council and to the Attorney Solicitor and Advocate General, and their respective answers and reports thereon; We are upon the whole of Opinion, That a Commission under the great Seal of this Province conformable to the Draft, prepared by the Attorney and Solicitor General, and Submitted to Us, Is the proper and the legal course for carrying the commands of His Royal Highness the Prince Regent in this behalf into Effect.

The Subject upon which your Excellency by your Reference, has been pleased to call for our Sentiments, is one of Novelty and very great Importance, and as we conceive it to be our duty for these reasons, to lay before your Excellency the ground of the Opinion whichWe submit, We shall with your permission proceed to state them. The Introduction of the Criminal Law,of England, into Canada, was one of the Effects of the Conquest of that Province by his Majestys Arms, and its establishment Was confirmed by the 11t h Clause of the British Statute 14 Geo. 111. Cap. 83 commonly called The Quebec Act, in these Words— ” Whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it have been sensibly felt, from an Experience of More than Nine years during which it has been uniformly administered; Be it therefore Enacted &c, 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 “2

The Criminal Law of England, And The Criminal Law of Canada is therefore one and The same System, And in this System the following are clear Propositions— viz— That an Impeachment is an Accusation for some Criminal Offence, and that a Commoner cannot be impeached for any other offence3 Than a misdemeanour.4

That all Judicial Jurisdiction emanates from the Crown and that all Judges must therefore derive their Authority from the King, mediately or immediately.5

That The King by his Prerogative, may erect what Courts he pleases for the due administration of the Law and in what place He pleases,6 especially where, no Jurisdiction exists for ¿the Trial of the Offence, for which He erects his Court,7 It being however provided That He cannot by his Commission establish a Court in derogation of any of his Superior and permanent Tribunals,8 nor empower a Court erected by

1. From the copy in the Canadian Archives, Q. 148, part 1, page 50. 2. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907. page 404. 3. The notes above-the line are given in the original opinion of the Judges of the Court of King’s Bench. 4. 4th Commentaries, 259. Woodson’s Lectures, Vol. 2, 601. 5. Bacon’s abridgment, Vol. 4, p. 171, Prerogative D. 6. Comyn’s Digest Prerogative, Q. 28, Vol. 6, p. 46. 7. 4th. Institutes, 164-3, Leach Hawkins, p. 33. 8. Cokes Bepts., 9th, p. 118-6 Lord Sanehard’s case, 111 Leach Hawkins, p. 26.3.

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his Commission Solely to proceed in any other Way than According to the Common Law—1

That Therefore in all Courts of Criminal Jurisdiction erected solely by the Kings Commission, The Trial-must be by Jury, That is to say That in such Courts, The same persons cannot by the Commission be authorized to decide both the Law and the fact, on the Contrary, That in Courts so erected, a part must alone decide the fact— Ad quastionem Juris respondent Judicies, Ad quastionem facti respondent Juratores, is a general and fundamental Maxim of the Common Law—2

As these propositions are equally Principles of Law in England and in Canada, It would necessarily follow, If the State of Things and of Facts in both Countries were the same, That the result of them when applied in practice to a case of Impeachment, would also in each be the same, But the State of Facts and of things in England and in Canada being essentially dissimilar, The result in the Latter differs from the result in the former.

In England every impeachment by the Commons must necessarily be tried in the House of Lords and no Commission (Not even a Commission for the appointment of a Lord High Steward) is required to enable that august Body to take Cognizance of such accusations—

But this is the case in that Kingdom because the House of Lords is possessed of an Inherent Judicial Jurisdiction, which it derives from the Aula Regis of which The ” Barronnes Majores ” were a constituent part2 And as this Jurisdiction is exercised by that Body, upon the ground of immemorial Usage, which presupposes a Law by which it has been vested in that House. To which the Sovereign has given his Assent. or a Grant of some description from the Crown made under the Authority of some Law to warrant it, It is a Jurisdiction emanating, either mediately or immediately from the Crown— The House of Lords therefore sits as a Court of Law, as well as a Legislative Body, It is in fact the Supreme Tribunal of the Kingdom, ” The Court of the King in Parliament ” and during the Sessions it holds and exercises an Original Jurisdiction over all accusations for Misdemeanors preferred by Impeachment against any of His Majestys subjects, and All Accusations for Felony preferred by Indictment, against its own Members; with a general Appellate Jurisdiction in Error, as Exercised by the Aula Regis.4

The Exercise of that part of the Royal Prerogative which authorises the King ” to erect what Courts he pleases for the due Administration of the Law and in what place he pleases, has therefore in England been rendered, not only unnecessary, but has been and yet is limited by the Erection of the Aula Regis and the Inherent Jurisdiction of the House of Lords, which has proceeded from that Erection—It is because the King cannot by his Commission, “establish a Court in derogation of any of his Superior or permanent Tribunals” That No Commission has been issued in England for the Trial during a Session of Parliament of any Impeachment—The Supreme Tribunal of the House of Lords ” The Court of the King in Parliament ” opens with every Session and continues open until the Parliament is prorogued, And during this period no other Court could or can, under the Authority of any Commission issued by the Crown for The Trial of any Impeachment be opened or sit for that purpose—If it were otherwise such a Commission would derogate from the Kings Superior and permanent Tribunal of the House of Lords, And its operation would be in direct Opposition to the Established Maxim ” I n praesentia Majoris cessât Potestas Minoris”5

But from these facts it does not follow That an Impeachment by the Assembly

1. 2d. Ventris, 33, Hobart. 63-4 Justut, 165. 2. Jenkins Centuries, 7th Century, 18th Case Pol. Ed. p. 285. Cokes Bepts., 8th Part, 1550, Astrays Charge, p. 4. 3. Bacon’s abridgment, 1,583, Pol. Ed. Gilberts Forum Bomanum, pp. 2 ans. 8. Beeves History of the English Law, Vol. 11, pp. 61, 62 and 63. 4. The authorities under 232h. 5. See Gilberts Forum Bomanum. p, 3, as to the Aula Begis in particular.

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of Lower Canada cannot be had in that Province, under the Authority of the Kings Commission in the Legislative Council during a Session of the Provincial Parliament, or, That it can be then & there Tried without a Commission—It is true That during the Trials, The Assembly being prorogued is in the same situation that the House of Commons are during the recess in England and as in consequence of a prorogation neither the House of Commons in England nor the Assembly in Canada, can during the recess appear to prosecute in any Court. No Commission has been or can be Executed in any Interval of this discription, either in England or in Canada; But with respect tp the period of the Sessions, during which the Assembly of course can appear to prosecute, If it be true That in England it is the peculiar Inherent and exclusive Jurisdiction of the House of Lords which prevents the Exercise of The Royal Prerogative and the issuing of Commissions for the Trial of Impeachments during a Session, And if it be also true that the Legislative Council are not possessed of the peculiar inherent & exclusive Jurisdiction of the House of Lords (which we shall proceed to show) It must unavoidably follow until it is proved That there is some other legal Impediment to the Exercise of the Royal Prerogative in this respect That the King may in this Province issue a Commission for the Trial according to Law of persons charged with Misdemeanors by Impeachments exhibited by the Assembly In Consequence of the general principle which We have stated, and which in Canada if there be no such Inherent Jurisdiction in the Legislative Council is unlimited viz. ” That the King by his Prerogative may erect what Courts he pleases for the due Administration of the Law and in what place he pleases, especially where no jurisdiction Exists for the Trial of the offence for which He erects his Court ”

A principle distinctly recognised by the 17th Section of the Quebec Act. 14 Geo. 111. c. 83 Which enacts ” That nothing herein contained shall extend or be construed to extend to prevent or hinder his Majesty his Heirs and Successors by his or their letters patent under the great Seal of Great Britain from erecting constituting and appointing such Courts of Civil, Criminal and ecclesiastical Jurisdiction within and for the said Province of Quebec and appointing from Time to Time the Judges and Officers thereof as his Majesty his Heirs and Successors shall think necessary and proper for the Circumstances of the Province,1 and particularly applicable to the State of the Province, in which no Jurisdiction exists for the Trial of offences charged against Individuals by the Impeachments of the Assembly—

We admit, That if an Impeachment by the Assembly be tried in the Province, it must be tried in the Legislative Council. For as An Impeachment is an accusation on the part of the entire Commons of the Province, all persons resident therein except the Governor and the members of the Legislative Council are obviously parties to the prosecution as Accusers and consequently incompetent to try,2 But we say, That inasmuch as the Legislative Council is not possessed of the Inherent Jurisdiction of the House of Lords, His Majesty by his Commission in the nature of a Commission of Oyer and Terminer may and must enable the Legislative Council to take cognizance of and to determine the articles of Impeachment exhibited against Mr Justice Foucher by the Assembly—And this appears to us to be warranted by the course pursued in England to enable the House of Lords to take cognizance of matters which it ought to decide, but which, for want of its Inherent Jurisdiction, at the Time such course is required, it cannot otherwise take cognizance—

We have stated that in England No Commission has even been or could be issued for the Trial during the Session of Parliament of any impeachment or Indictment nor of any impeachment during a recess, and we have also stated the causes, Why Com-

1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 3907, page 404. 2. See the Statute, 25 Ed. III , Stat. 5. At the time of the impeachment of Chief Justice Sewell and Chief Justice Monk, ix. 1814, this contention was used as the basis of an argument against the right of the House of Assembly to exhibit articles of impeachment.

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missions have not at such Times respectively been issued for these purposes—That is to say, Because during the Session The Inherent Jurisdiction of the House of Lords defeats the Commission—and because during the Recess the Commons cannot appear to prosecute—We have now to derive That When these causes do not exist, The House of Lords even in Matters of its own proper Cognizance does sit by virtue of the Kings Commission, We allude to the Various Cases of Peers who have been tried in the Recess upon Indictments for Felony which being at the Kings suit are prosecuted by the Attorney General who can at all Times appear for that purpose

In these Instances the Lords have always sat under the Authority given by the Commission issued for the appointment of the Lord High Steward, which says Mr. Justice Foster, is but a Commission in the “Nature of a Commission of Oyer & Terminer ‘n consequently as in England a Commission for the Trial of a Peer indicted for Felony may issue in the Recess because in that Interval The Inherent Jurisdiction of the House of Lords does not exist to prevent it, and the prosecutor can appear to prosecute— So in Canada by parity of Reason, A commission may in like manner be lawfully issued for the Trial of a project in the Legislative Council during the Sessions, impeached by the Assembly, Because in Canada during the Sessions, There is no jurisdiction Existing in the Legislative Council to prevent it and the Assembly who are the prosecutors can then appear to prosecute.

We proceed now to show ” That the legislative Council are not possessed of the ” peculiar inherent and Exclusive Jurisdiction of the House of Lords under which that “House takes cognizance of Impeachments without a Commission,” and as this is a point upon which his Majestys Attorney and Solicitor General and all the Judges agree2 We shall state our reasons for our opinion on this head, more succinctly Than we otherwise should have done

We hold this opinion,

1st Because the Judicial Authority of the House of Lords, is derived from the Aula Regis— and not from its Legislative Character.

2d Because by the Letter of the Statute 31. Geo. III. 31. The Legislative Council is constituted a Legislative Body solely and is not invested with any Judicial Authority. 3d. Because according to the principles of the Constitution, The Legislative and Judicial Powers are distinct and inconsistent with each other, and as such should be vested in different hands ; so that Judicial power or Jurisdiction in either House of the Provincial Legislature cannot be -inferred by Implication, from the Statute (31 Geo. III. c. 31.)

4th Because the Legislative Council, have solemnly and unanimously resolved “That the right of hearing and determining impeachments exhibited in this Province by the People of this Province is not vested in the Legislative Council3 upon which we may be permitted to observe That it is a resolution similar to that of the House of Lords in 1330; upon the case of Simon de Beresf ord and other Commoners, who having been “At the Kings Suit”, then recently tried by the peers of the Realm for Treason It was by them Resolved, ” That though they had for this Time proceeded (at the Kings suit) to give judgment upon those that were no peers, hereafter these judgments should not be drawn into example or consequence so that they should be called upon to Judge others than their peers contrary to the Law of the Land5 Upon which Sir Mathew Hale has observed in his ” Jurisdiction of the House of Lords ” That it was certainly as solemn a declaration by the Lords as could be made less than an Act of Parliament, and is as high an Evidence against the Jurisdiction of the Lords to try or Judge a Commoner in a Criminal cause (at the suit of the King) as

1. Poster, p. 148. 2. See pages 521 and 523, and also the opinion of the British Law officers of the Crown, page 480. 3. Printed Journals of the Legislative Council, Anno, 1814, p. 73. 4. This resolution was passed at the time of the impeachment of the Chief Justice, see page 461. 4. 4th Hastell, 67.

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can possibly be thought of. 1st Because done by way of declaration to be against Law, and 2dly Because it is a declaration by the Lords in disaffirmance of their own Jurisdiction1

5th Because in Conformity to the principle of the above resolution of 1814, ‘ The Legislative Council in the Case of Mr. Justice Foucher have confirmed their previous declaration, by their address to his Royal Highness the Prince Regent, in which they pray that the articles of complaint against him exhibited by the Assembly may be heard and determined in due course of Justice in the Legislative Council ” under such Commission as his Royal Highness shall see fit to issue for that purpose, with such powers and limitations as to His Royal Highness shall Seem meet—2

Lastly—Because the Assembly by Impeaching Mr. Justice Foucher, not to the Legislative Council but to the King, and by their Address praying “That the Authority of His Majestys Government” may be interposed in such way as in the Wisdom of His Royal Highness the Prince Regent may appear necessary for the bringing him to Justice3 The Legislative Council by their above mentioned resolution and Address—And the Crown by its Commission empowering the Legislative Council to take Cognizance of the Impeachment of Mr. Justice Foucher—jointly put a Construction upon the Constitutional Act 31. Geo. III. Cap 31 to this Effect, viz—That no judicial power was given by that Act to the Legislative Council, but that such power may be given by Commission from the Crown—and—That the Inherent Jurisdiction of of the House of Lords is not vested in that Body—Which of less than an Act of the Provincial Parliament is at least, a joint Parliamentary declaration by the Three Branches of the Provincial Legislature not only as to the Effect of the Statute 31 Geo. 111. cap. 31. but as to the Ability of the Legislative Council to try without a commission, and to try with a Commission from the Crown, but little if at all inferior to a declaratory Statute.

The Draft of the Commission4 submitted to us, provides for the same course of proceeding under it in the Legislative Council as is pursued in England in the House of Lords, when the Peers sit for Trials by virtue of the Kings Commission and not of their inherent Jurisdiction, and this we take to be correct—The Quebec Act has declared That the Criminal Law of England shall be observed in this Province ” in the method of Trial ” which implied of course That there must be a Jurisdiction legally competent to any method of Trial which may happen to be proposed before that method can be adopted—Where there is no Jurisdiction there can be no Trial whatever, And where the Jurisdiction in which a Trial may be had is not competent to a particular method of Trial, That particular method of Trial cannot be pursued because as to it, There is no Jurisdiction—If therefore the Legislative Council have not the inherent Jurisdiction of the House of Lords, There can be no Trial before them according to the course of that Inherent Jurisdiction, For as the principle does not Exist The Accessory cannot follow; But on the contrary If an offence cognizable in the Legislative Council be brought to Trial in that House under a Commission from the Crown It follows as we conceive That since the Law of England is to be observed in the method of Trial, The course of proceeding must be such as is used in England on Trials in the House of Lords, when that House is not in the Exercise of its inherent Jurisdiction but sits for Trial by Commission from his Majesty. And this again is strictly conformable to the principle which we have stated vizt. ” That in all Courts of Criminal Jurisdiction ” erected by the Kings Commission, The Trial must be by Jury That is to say that in ” such Courts The same persons cannot by the Commission be authorised to decide both ” the Law and the Fact on the contrary That in Courts so erected, a part, must alone

1. Hales Jurisdiction of the House of Lords, Cap. 16, p, 92, 4th Hastell, 285. 2. Printed Journals of the Legislative Council, Anno., 1817, pp. 116, 117. 3. Printed Journal of the Assembly, Anno., 1817, p. 550. 4 See page 518.

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” decide the Law and a part must alone decide the Fact “—For although each Peer of the House of Lords when that House is in the exercise of its inherent Jurisdiction possesses the extraordinary power (derived from the Aula Regis) of deciding both the Law and the Fact, Tet when it Sits for Trial under the Authority of the Kings Commission The Power of deciding The Law is vested exclusively in the Lord High Steward, and the power of deciding the Fact exclusively in the rest of the Peers— And this division of Powers, is the principle effect of the Commission submitted to us—

We do not apprehend it to be necessary for us to enter further into the Consideration of this part of the subject before us; And to what we have said we shall only add—That your Excellency being empowered by his Majestys Commission under the Seal of England to erect such Courts as you may see fit to erect with the Advice of the Executive Council Your issuing of the Commission in question with such Advice under the Great Seal of this Province appears to us sufficient

The Court thus Constituted will mediately be erected under the Great Seal of England and by his Majesty, In whom the Quebec Act as before observed, recognises the Prerogative of Erecting under the Great Seal of England such Courts as he may see fit to erect in Canada—We beg leave to refer to two Reports of Sir Philip Yorke and Sir Clement Wearg—And of Sir Dudley Ryder………………………….

by which this part of our Opinion appears to be fully corroborated (18)—It may however be more expedient that it should be issued under the great Seal of England.

All which nevertheless is most respectfully submitted—

(Signed) J. SEWELL Ch. Just. ” OL. PERRAULT J.B.R. ” EDWD BOWEN. J.B.R.

Quebec January 1818— 18. See Chalmers. Opinions Vol. 1, p. 222 and 2d. 238, No. 5 and 240, No. 6.

Endorsed :— Report of the Justices of the Court of Kings Bench of Quebec on the Case of Mr. Justice Foucher. Jany 1818.

REPORT OF THE EXECUTIVE COUNCIL ON THE TRIAL OF JUSTICE FOUCHER.1

Saturday 3rd January, 1818.

MINUTES OF THE EXECUTIVE COUNCIL.

At the Council Chamber in the Castle of St Lewis.

PRESENT

His Excellency Sir John Coape Sherbrooke, G. C. B. Captain General and Governor in Chief, &c, &c, &c. The Chief Justice The Honble Mr Young. Mr Irvine. Mr Perceval. Mr Perrault. and Mr Smith.

1. From the original, Minutes of the Executive Council, State Book; Lower Canada, page 294.

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His Excellency submitted to the Board whether considering the difference of opinion which exists with respect to the Mode of carrying into execution the Instructions contained in the Earl Bathurst’s Dispatch of the 5th July last,1 it would not be advisable to refer the subject of the Impeachment of Mr Justice Foucher again to the Consideration of His Majesty’s Ministers previous to making a Communication respecting the same to the Two Houses of Provincial Parliament, in order that positive and explicit Instructions may be given for the formation of the Tribunal by which the charges preferred by the Assembly against Mr Justice Foucher are to be adjudged.

Whereupon the Board unanimously advised that the whole of the Subject including the opinions of the judges and of the King’s Law officers should be transmitted to the Secretary of State previous to any Communication being made to the Legislative Council and the House of Assembly of the Purport of His Lordship’s Dispatch.

SHERBROOKE TO BATHURST.2

most secret & confidential

Quebec 10th January, 1818.

My Lord,

Your Lordship having signified in your dispatch N° 1153 the intention of His Royal Highness the Prince Regent to leave in future to the Legislative Council, under the circumstances therein stated the trial of all future Impeachments by the Assembly, I conceive it my duty, in a separate communication to call your Lordship’s particular attention to the evils which may arise if it is either left to the discretion of the Governor, or made compulsory on him, to permit in all cases such trial to take place without previous reference to the King’s Government, For,—this important privilege being once given to the Council,—if it be left to the Governor of the Colony to judge in what cases they shall be allowed to exercise it, there will be frequently a risque of his being embroiled with the Legislature;—and if it be compulsory on him there will be then the still greater danger of Impeachments being brought to the assembly and adjudged by the Council from party feelings in both those bodies;—when it would have been highly desireable that such proceedings should have been checked before coming to trial;—I would therefore most strongly recommend that it should be a particular instruction to the Governor, in each case of an Impeachment by the Assembly to transmit such Impeachment, before submitting it to Council, to His Majesty’s Government that they may judge of the expediency of permitting it to .be brought to trial before that body.

I have the honour to be My Lord Your Lordship’s Most Obedient humble Servant

J. C. SHERBROOKE.

The Right Honorable The Earl Bathurst

1. See page 510. 2. From the copy in the Canadian Archives, Q. 148, part 1, page 8. 3. See page 510.

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SHERBROOKE TO BATHURST.1

Secret & Confidential.

Quebec 10th January 1818

My Lord,

Immediately on the receipt of Your Lordship’s dispatch No. 115 authorizing the trial of Mr Justice Foucher before the Legislative Council I proceeded to take measures for carrying these commands of His Royal Highness the Prince Regent into effect;— and it is with regret that I find myself now under the necessity of informing your Lfordship that unforseen difficulties have arisen which can only be removed by the further interposition of the Authority of His Majesty’s Government.

Having referred the matter to the consideration of the Executive Council I received from them the report of which I transmit Your Lordship a copy marked A. and, on the recommendation therein contained I called for, and received the report of the law officers of the Crown on the questions submitted by Council, of which report, as well as the draft of a Commission submitted by the Attorney and Solicitor General copies are also enclosed marked respectively B & 0/—together with copy marked D of the explanatory letter of the Attorney General stating his objections to the measure on the score of expediency;—and copy marked E,8 of the Advocate General’s separate report containing his dissent from both the other law Officers as to the tenour and form of the Commission—

Notwithstanding this difference of opinion the Council on considering the draft submitted and receiving the answers of the three law officers to further queries put to them,4 (of which and of their replies copies are also inclosed—marked respectively F. & G.—recommended as your Lordship will observe in copy of their report herewith transmitted marked H.B that the Commission, as drafted, should issue without further reference to the King’s Government—

Finding however that the measure proposed, having become matter of public report, was likely to encounter much opposition; and that from personal animosities it would probably become a party question, I deferred moving in it until on the meeting of the Legislature I should be able to ascertain the Spirit in which it would be received by them.

I n the mean time however that every possible light might be given to the subject I referred the matter to the Judges of Montreal and Quebec and received from them the opinions of which I transmit Your Lordshiep copies marked I. & K.8—And I request Your Lordships particular attention to these papers, as in them you will find stated and discussed the principal legal points which have created the existing difficulty.—

When the Provincial Parliament was about assembling I found there would be a determined and violent resistance in the Legislative Council to the Commission as proposed,—and the knowledge of this, joined to the force of the objections urged by the Judges of Montreal determined me,with the concurring recommendation of Council as contained in their final report of which copy is enclosed marked L.7—not only to refer the matter to Your Lordship for further and specific instructions ; but also to abstain from communicating to the Provincial Parliament those I had already received;8 For

1. From the copy in the Canadian Archives, Q. 148, part 1, page 8. 2. See pages 512 and 518. 3. See page 514. 4. See page 521. 5. See page 522. 6. See page 522. 7. See page 529. 8. See the Instructions regarding communicating to the House of Assembly the decision of the Prince Regent to refer the adjudication of the articles of impeachment to the Legislative Council, page 532.

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‘though I was convinced that I could have carried the measure through with a strong hand,—yet when I reflected that the advantage to be expected from its success would only be in the speedy relief of Mr Foucher,—and considered on the other hand the disadvantage of risking a violent and irritating contest for the purpose of forcing the measure.—and the danger of establishing so important a precedent when such a difference of opinion existed about it among the highest legal authorities of the country, I could not but think it better to wait for fresh instructions before I pushed the matter further.

When Your Lordship weighs the considerations that have thus influenced my conduct I feel convinced you will not impute to me any wish to shrink from responsibility or to shelter myself behind your Authority in a case not particularly requiring the delay of such a reference, and as it is of importance, that that delay should be as short as possible, I trust that Your Lordship will favour me with an early answer, on the different legal points that arise out of the inclosed papers,—and will arm me with such further Authority as shall enable me to silence all doubts and questions, and to carry into effect the intentions of His Majesty’s Government for the trial of Mr Foucher ;—

I have the honour to be My Lord Your Lordship’s Most Obedient humble Servant J .C. SHERBROOKE.

The Right Honourable The Earl Bathurst.

BATHURST TO SHERBROOKE.1

N° 158

Downing Street, 8th April. 1818.

Sir,

I have received and laid before The Prince Regent your secret and confidental dispatch of the 10th Jany in which you state the difficulties which had arisen in carrying into effect His Royal Highness’s Commands with respect to Mr Foucher’s Impeachment and: the reasons which induced you again to refer the subject for further instructions.

His Royal Highness has been pleased to express his entire approbation of the discretion which you exercised in forbearing to make any communication to the Provincial Parliament until the opinions of the legal authorities in the Province and the doubts to which they naturally gave rise had been submitted to the consideration of His Royal Highness.

You must be perfectly sensible that the only object which The Prince Regent has had in view during the whole of this transaction has been- to place the question of Impeachment by the Legislative Assembly upon such a footing as to lead to an adequate and early investigation of the charges made, with as little inconvenience to the parties, and especially to the accused in the ultimate event of his acquittal, as circumstances would admit, and it was with this view alone that His Royal Highness was pleased to direct an investigation of Mr Foucher’s conduct in the Province before the Legislative Council in preference to the more regular though dilatory and onerous course of bringing the parties before the Privy Council in this Country.

The difficulties however which have been urged against such a mode of investigation, and the little probability of its giving satisfaction to those more immediately

1. From the original despatch in the Canadian Archives, G. 10, page 32.

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concerned, have induced His Royal Highness to prescribe another mode of proceeding ; and I am Commanded to instruct you to acquaint the Legislative Assembly that His Royal Highness considers it most adviseable that they should proceed to adduce without delay such documentary evidence as they consider adequate to support the charges which they have brought against M* Foucher. That it is further His Royal Highness’s Pleasure that Copies of such charges, together with the proofs of them, should be submitted to Mr Foucher for his reply, and that his defence should be communicated to the Assembly for their rejoinder, and that the whole of the documents should then be transmitted to this Country for the adjudication of His Royal Highness in Council You will however caution the Assembly against the introduction into that rejoinder of any new matter as the consequence would necessarily be to retard the decision of. the Privy Council, until the Party accused had an opportunity afforded of replying His Royal Highness is aware that an investigation conducted upon these principles might in ordinary circumstances be supposed to give an imperfect view of the merits oftheease ; but when His Royal Highness considers on the other hand the heavy expense which would be incurred by the Province in bringing before the Privy Council the parties and their several Witnesses, the inconvenience not only to the individuals concerned but also to the public interests of the Colony of withdrawing from it for a considerable period persons who would be more or less concerned in the Administration of its affairs, and above all when His Royal Highness considers that the Acts which would in all probability form the grounds of impeachment against any individual would be more than ordinarily susceptible of complete documentary proof, His Royal Highness is not disposed to give any weight to such an objection.

At the same time however The Prince Regent is anxious not to withhold either from the Assembly or from the party accused by them, the” most satisfactory means of investigating the accusation and His Royal Highness has therefore instructed me to give you a still further latitude on this point.

Lf the course which has been thus prescribed for your adoption should not be deemed satisfactory you will consider yourself authorized to permit the appointment of a Committee of the House of Assembly to conduct their accusation against Mr Foucher before the Privy Council and will direct Mr Foucher’s personal appearance to answer to the charge. In giving this permission however you will distinctly understand that this course of proceeding must not be adopted unless the Assembly previously engage to make good the fair expences which may be incurred as well in the prosecution and defence of the Suit as in the removal of the parties from Canada to England and their return to the Province and that it be also clearly understood that His Royal Highness will not require the presence of any Members who may be so selected to appear on behalf of the Assembly before the Privy Council, unless they proceed to England with their own entire concurrence.

In leaving it however open to you to recommend this latter course to the adoption of the Assembly I am to express to you His Royal Highness’s decided opinion that it should only be resorted to in the event of your considering it absolutely necessary, in order to remove more serious objection, and to preserve that harmony in the Province which has so happily prevailed under your Administration.1

I have the Honor to be, Sir, Your most obedient Humble Servant BATHURST.

Lt General Sir John C. Sherbrooke G.C.B. &c. &c. &c.

1. The decision of the British government contained in this despatch was communicated to the House of Assembly in the following session. See the Journals of the House of Assembly, 1819, page 65.—February 8, 1819.

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RICHMOND TO BATHURST.1

N°41

Quebec 18th May 1819.

My Lord—

I have the honor to transmit to Your Lordship the Address from the Legislative Council to me on the subject of the Impeachment of Mr Justice Foucher, together with a Memorial from the Judge.

What course is intended by the House of Assembly I know nothing further than that they have declined to proceed upon it in the way pointed out by His Royal Highness the Prince Regent’s Instructions contained in Your Lordship’s Dispatch N° 115. I am therefore very desirous of knowing the decision of His Royal Highness Tho Prince Regent’s Ministers as to the steps to be taken should this be again agitated which in all probability it will in the next Session.

With regard to my own opinion I am free to confess I consider the House of Assembly by their mode of proceednig to have abandoned the Impeachment altogether, and consequently that in fairness to Mr Justice Foucher he should be called upon to resume his functions in conformity to the Prayer of His Memorial.

I have the honor to be My Lord Your Lordship’s Most Obedient humble Servant RICHMOND.2

The Right Honorable The Earl Bathurst. K.G. &c &c &c

ADDRESS OF THE LEGISLATIVE COUNCIL ON THE POWERS OF THE HOUSE OF ASSEMBLY.3

To His Grace Charles Duke of Richmond Lennox and Aubigny Knight of the Most Noble Order of the Garter, Captain General and Governor in Chief in and over the Provinces of Lower Canada, Upper Canada, Nova Scotia and New Brunswick and, their several dependencies, Vice Admiral of the same General and Commander of all His Majesty’s Forces in the said Provinces of Lower Canada, Upper Canada, Nova Scotia and New Brunswick and in the Islands of Newfoundland, Prince Edward, Cape Breton & Bermuda, &c &c

May it please Your Grace :

We, His Majesty’s most dutiful and loyal Subjects the Legislative Council of Lower Canada in Provincial Parliament assembled, having given the most serious

1. From the Canadian Archives, Duplicate Despatches, Lower Canada, 1819. 2. Charles Lennox, fourth Duke of Richmond was born in 1764. While a captain in the Coldstream Guards he gained considerable notoriety in 1789 by fighting a duel with the Duke of York. Following this he changed his captaincy for a colonelcy in the 35th Foot. His promotion in the army was rapid and by 1814 he had attained the rank of general. From 1790 until 1806 he represented Sussex in the House of Commons, and in that year, on the death of his uncle he succeeded to the title. In 1807 he was appointed lord lieutenant of Ireland and retained this post until 1813, when he removed with his family to Brussels. He did not take a very prominent part in the campaign against Napoleon although he was with Wellington at Waterloo. In 1818 he received the appointment of Governor-in-Chief of the Canadian provinces. He met a tragic death near Richmond, Ontario, in the following year as the result of an attack of hydrophobia supposedly caused ,by the bite of a pet dog some weeks previous. 3. From tke Minutes of the Legislative Council for Lower Canada, for February 26,1819.

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consideration to Your Grace’s Message of the 8m February instant communicating the Instructions received from The Prince Regent1 as to the Manner in which His Royal Highness’s Commands respecting the proceedings of the Assembly against Mr Justice Foucher are to be carried into effect, humbly request that Your Grace’s permission to represent the situation in which the Legislative Council now feels itself placed in relation with the Assembly, a situation which we cannot help viewing with uneasiness. The Assembly have for gome years exercised the undisputed right of impeachment and having of late been permitted to make the appropriations required for the payment of the Civil List of the Province, that Body is now in the full enjoyment and exercise of the two most important privileges of the House of Commons of the Imperial Parliament while in the scale opposed to influence and power so preponderating, the Legislative Council have no other weight than the negative upon the taxes and appropriations originating in the Assembly and even this passive privilege cannot be exercised without closing the sources of those supplies which the Crown has demanded. Thus the Balance so essential to the very existence of the Constitution is destroyed.

We beg leave also to represent the situation of Mr Justice Foucher who has now been two years under a suspension of his Judicial functions; unheard in his own Justification ; and the measure of suspension not having been disapproved by His Royal Highness the Prince Regent the term of it must now unavoidably be still protracted to a period very indefinite which will bear with peculiar hardship upon the Individual and cause delay in the Administration of Justice in the District of Montreal.

These consequences were anticipated by the Legislative Council in the last Session of the Provincial Legislature, but they were then deterred from proceeding in the case of Mr Justice Foucher under the decision of His Royal Highness the Prince Regent communicated in the Message of the late Governor in Chief of the 2nd March 1818/ by the positive assurance that His Excellency’s health would thereby be affected and that even his life might be endangered.

We therefore now most earnestly entreat Your Grace to intercede with His Royal Highness the Prince Regent that the Legislative Council may enter upon the exercise of the acknowledged privilege of adjudicating in the case of Mr Justice Foucher and in all similar cases of impeachment by the Assembly the charges preferred against the party accused, according to the Rules, Usage and custom of Parliament, and further we humbly submit for His Royal Highness’s Consideration that the Act of Parliament of Great Britain passed in the 31st year of His Majesty’s Reign cap. 31, affords to His Royal Highness the means of giving to the Legislative Council the additional weight in the political scale so indispensible to restore the Balance between the different branches of the Provincial Legislature, and so well calculated to bind them and their descendants by the strongest ties of Gratitude and affection to the Crown of Great Britain and to assimilate as far as circumstances will permit, the Constitution of this important Colony to that of the Parent state.

Legislative Council. Friday 26th February 1819.

1. See Lord Bathurst’s despatch, page 510. 2. The message here referred to states that, ” in this (Justice Poucher) and all similar cases otf Impeachment by the Assembly the adjudication of the charges preferred against the party accused, shall be left to the Legislative Council.” Journals of the House of Assembly, Lower Canada, 1818, page 145.

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BATHURST TO RICHMOND.1

N°39

Downing Street 10 July 1819.

My Lord,

I have the Honor to acknowledge the receipt of Your Grace’s dispatch of the 18th 2 May last transmittieng a Memorial from the Legislative Council relative to the Impeachment of Mr Justice Foucher.

His Royal Highness has been pleased to approve of Mr Foucher being reinstated to the exercise of his Judicial functions considering that the Assembly have by their non prosecution of the Articles of impeachment against him, virtually abandoned the which they had in the first instance made against him.

But in directing you to reinstate Mr Foucher I am further to signify to You the pleasure of His Royal Highness that if the Assembly should in their next Session either revive the former or prefer new charges against Mr Foucher and evince a disposition to prosecute them without unreasonable delay, Your Grace should in this, as Sir John Sherbrooke did in the former instance accede to any address of the Assembly for the temporary Suspension of Mr Foucher until the charges can undergo investigation.3

I have the honor fo be My Lord Your Grace’s most obedient Humble Servant BATHURST.

General His Grace The Duke of Richmond K.G. &c &c &c

1. From the original despatch in the Canadian Archives, G. 10, page 236. 2. See page 534. 3. As distinctly pointed out by Sir John Sherbrooke the suspension of Justice Poucher was not the result of an address of the House of Assembly but was in consequence of the request of the Governor-in-Chief preferred for the purpose of avoiding the necessity of ac ting om an address from the House of Assembly. See the despatch from Sir John Sherbrooke, Marck 10th, 1817, page 502.

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ACT RESPECTING ELIGLBTLITT OF PERSONS TO BE RETURNED TO THE LEGISLATIVE ASSEMBLY.1

CHAP. IX.

As Act to repeal an Act passed in the thirty-fifth year of His Majesty’s Reign, entitled, ” An Act to ascertain the ELIGIBILITT of PERSONS to be Returned to the HOUSE of ASSEMBLT,” and also to repeal an Act passed in the fiftyfourth year of His Majesty’s Reign, entitled ” An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty’s Reign, entitled ‘An Act to ascertain the eligibility of persons to be Returned to the House of Assembly,” and to make further and more effectual provision for securing the free dom and constitution of the Parliament of this Province.

[Passed 1st April, 1818.]

WHEREAS, it is most desirable that the eligibility of persons Preamble, to be proposed as Candidates for the Representation of the several Towns, Ridings and Counties in the Province, in the Commons House of Assembly, should be clearly and expressly defined: and whereas the provisions of an Act passed in the thirty-fifth year of His present Majesty’s Reign, entitled ” An Act to ascertain the eligibility of persons to be returned to the House of Assembly” and also of an Act passed in the fifty-fourth year of His Majesty’s Reign, entitled ” An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty’s Reign, entitled, “An Act to ascertain the eligibility of persons to be returned to the House of Assembly,”2 have not attained that object; Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, entitled, “An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty’s Reign, entitled, ‘ An Act for the making more effectual provision for the Province of Quebec in North America, and to make further provision for the Government of the said Province,” and by the authority of the samq, That from and Repealed, after the passing of this Act, each of the said Acts respectively shall be and the same are hereby repealed.

II. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, no person or persons, of what condition soever, having been a bona fide resident in any coun- try not being under His Majesty’s Government, or who shall have taken the oath of allegiance to any other State or Power, shall be eligible to be proposed, chosen or elected, as a Representative or Representatives of any City, County, Riding or Borough, or other of any description now or hereafter sending a Representative

1. From the Statutes of His Majesty’s Province of Upper Canada, 1818. 2. See page 194.

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or Representatives to the House of Assembly of this Province, until such person or persons shall have resided in this Province for and during the space of seven years next before the election at which any such person or persons shall be proposed, elected or chosen as a Representative or Representatives as aforesaid.

III. And be it further enacted by, the authority aforesaid, That if any person or persons as aforesaid, not having resided in this Province for seven years as aforesaid, shall propose or offer himself or themselves as a candidate or candidates to become a Representative or Representatives of any County, City, Riding or Borough, or other place now or hereafter sending a Representative or Representatives, and shall be thereof convicted by the oath of one credible witness, shall forfeit and pay the sum of two hundred pounds, to bé recovered by any person who shall sue for the same, in His Majesty’s Court of His Bench in this Province, by action of debt, bill, plaint or information, wherein no essoigne, privilege, protection or wager of Law shall be allowed, and only one imparlance.

IV. And be it further enacted by the authority aforesaid, That if any person or persons as aforesaid, not having resided in this Province for seven years as aforesaid, whether such person or persons shall have proposed or offered him or themselves as a candidate or candidates or not for any County, City, Riding or Borough, or other place of any description now or hereafter sending a Representative or Representatives to the House of Assembly of this Province as aforesaid, shall presume upon such choice or election to obtrude or present himself or themselves into the said House as a Representative or Representatives as aforesaid, he or they shall forfeit and pay the sum of forty pounds, over and besides the foregoing penalty, if such person or persons shall have incurred the same, for every day that he shall so obtrude or present himself or themselves, to be recovered by any person or persons who shall sue for the same in His Majesty’s Court of His Bench, by action of debt, bill, plaint or information, wherein no essoigne, privilege, protection or wager of Law shall be allowed, and only one imparlance.

V. And be it further enacted by the authofity aforesaid, That from and after the passing of this Act, no person or persons, of what condition soever, shall be eligible to be proposed, chosen or elected as a Representative or Representatives of any County, City, Riding, Borough or other place of any description, now or hereafter sending a Representative or Representatives to the House of Assembly of this Province, unless he shall be possessed of an unincumbered freehold, in lands or tenements, in fee simple, in this Province, to the assessed value of eighty pounds, lawful money of this Province.

VI. Provided always, and be it hereby enacted by the authority aforesaid, That every person who, from and after the passing of this Act, shall appear as a candidate, or shall by himself or any others be proposed to be elected to serve as a Member for any County, City, Riding, Borough, or any part or place now or hereafter sending a Member to the House of Assembly of this Province, shall, and he is hereby enjoined and required, upon reasonable request

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to him to be made, at the time of such election, or before the day prefixed in the writ of summons for the meeting of Parliament, by any other person who shall stand a candidate at such election or by any two or more persons having a right to vote at such election, take a corporal oath, in the following form, or to the following effect : ” I A. B. do swear, that I truly and bona fide have such a freehold estate, over and above all incumberances that may effect the same, and am otherwise qualified according to the provisions of Law, to be elected and returned to serve as a Member in the Commons House of Assembly, according to the tenor and true meaning of the Act of Parliament in that behalf, and that I have not obtained the same fradulently for the purpose of enabling me to be returned Member to the Commons House of Assembly of this Province, so help me God.”

VII. And be it further enacted by the authority aforesaid, That if any of the said candidates, or persons proposed to be elected as aforesaid, shall be guilty of false swearing in such oath, such candidate or candidates, or person or persons as aforesaid, shall on conviction thereof, receive and suffer the like pains and penalties to which any other person convicted of wilful and corrupt perjury is liable by the Laws and Statutes of this Province.

VIII. And be it further enacted by the authority aforesaid, That the oath aforesaid, shall and may be administered by the Sheriff for any such County as aforesaid, or by the Mayor, Bailiff, or other Officer or Officers for any County, City, Borough, Riding, Place or Places aforesaid, to whom it shall appertain to take the poll or make the return at such election for the same County, City, Borough, Riding, Place or Places respectively, or by any two or more Justices of the Peace within this Province, and the said Sheriff, Mayor, Bailiff or other Officers, and the said Justices of the Peace respectively, who shall administer the said oaths, are hereby required to certify to taking thereof, into His Majesty’s Court of His Bench within three months after the same, under the penalty forfeiting the sum of two hundred pounds, to be recovered with full costs of suit, by action of debt, bill, plaint or information, in His Majesty’s Court of His Bench in this Province, and if any of the said candidates or persons proposed to be elected as aforesaid, shall wilfully refuse upon reasonable request to be made at the time of the election or at any time before the day upon which such Parliaby the writ of summons is to meet, to take the oath hereby required, then the election and return of such candidate shall be void.

IX. And be it further enacted by the authority aforesaid, That no fee or reward shall be taken for administering any such oath, or making, receiving, or filing the certificate thereof, except two shillings and six-pence for administering the oath, and five shillings for making the certificate, and five shillings for receiving and filing the same, under the penalty of one hundred pounds to be forfeited by the offender, and recovered as aforesaid.

X. And be it further enacted by the authority aforesaid, That Distribution of one moiety of all fines and penalties that shall be incurred under this penalties.

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Act shall be immediately paid into the hands of the Receiver General for the use of His Majesty, His Heirs and Successors towards the support of the Civil Government of this Province, and shall be accounted for to His Majesty, His Heirs and Successors, through the Lords Commissioners of His Majesty’s Treasury for the time being, in such manner and form as His Majesty, His Heirs and Successors shall please to direct, and the other moiety to the person who shall sue for the same.

RIGHT OF HOUSE OF ASSEMBLY TO INITIATE ALL MONEY BILLS.

Journals of the House of Assembly, Upper Canada.1

Thursday, 12th March, 1818.

The House met. Prayers were read. The minutes of yesterday were read. Mr. Robinson,2 seconded by Mr. MeNabb, moved that the Bill do now pass, and that it be intituled “An Act to make further provision for regulating the trade between this Province and the United States of America, by Land or Inland Navigation.” Which was carried, and the Bill signed.

* * * * * * *

Mr. Robinson, of the Committee to carry up to the Honourable the Legislative Council the Bill intituled ” An Act to make further provision for regulating the trade between this Province and the United States of America, by Land or Inland Navigation,” and to request their concurrence thereto, reported they had done so.

Thursday, 19th March, 1818.

* * * * * * *

Mr. Jones, seconded by Mr. Burwell, moved that it be resolved that as the amendments made by the Honourable the Legislative Council to a Bill sent up from this House, intituled ” An Act to make further provision for regulating the trade between this Province and the United States of America,” interfered with the undoubted and exclusive right inherent in the House of Commons of raising, levying and appropriating money, this House are of opinion that the said interference is a high breach of its privileges.

Which was ordered.

Mr. DuTand, seconded by Mr. Cotter, moved that Messrs. Jones and Hatt be a Committee to carry up to the Honourable the Legislative Council the resolution of this House upon the subject of its Privileges.

Which was ordered.

Saturday, 21st March, 1818.

* * * * * * *

Mr. Baldwin, Master in Chancery, brought down from the Honourable the Legislative Council the following Resolutions.

Resolved, that in making amendments to a Bill sent up from the Commons House of Assembly, intituled ” An Act to make further provision for regulating the trade between this Province and the United States of America ” this House acted upon the principle that its concurrence was necessary to pass the same, which it could not, in the exercise of its judgment and discretion, without amendment.

Resolved, That the Commons House of Assembly having hitherto rejected all Conference on the subject of Money Bills, no course remains to the Legislative Coun-

1. From the certified typewritten copy of the Journal of the House of Assembly of Lower Canada for the year 1818 in the Canadian Archives. 2. See page 437, note 1.

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cil but implicitly to submit to its judgment and reason, or to reject wholly the offered Bill; unless the House of Commons will continue as it has heretofore in many cases done, even during the present Session, to reject the amendments of the Legislative Council without notice, and re-enact the matter, so as to receive the concurrence of the other branches of the Legislature.

Resolved, That this House does not consider the necessary amendments to a Money Bill as a breach of the Privileges of the Commons House of Assembly; nevertheless as it is so considered by that House in the said Resolution, the Legislative Council will forbear all amendments to Bills for raising or levying money, and merely withhold its assent to the same.1

Mr. Jones, seconded by Mr. Burwell, moved that the House do now resolve itself into a Committee, to take into consideration the Resolutions sent down by the Honorable the Legislative Council.

Which was carried, and Mr. Casey took the Chair of the Committee. The House resumed. Mr. Casey reported progress, and obtained leave to sit again on Monday.

Monday, 23rd March, 1818.

* * * * * * *

Report of the Committee on the Resolutions of the Hon. the Legislative Council in. answer to a Resolution of the Commons House of Assembly on the subject of Privilege.

To the Honorable the Commons of Upper Canada, in Provincial Parliament assembled.

Your Committee, in obedience to Your Honorable House, having maturely considered the Resolutions referred to them, most respectfully submit to Your Honorable House the following Report.

That the said Resolutions are not satisfactory to Your Committee, and

1st, because the said Resolutions claim for the Honorable House, upon the principle that its concurrence is necessary to pass all Bills, the exercise of its judgment and discretion in making amendments to Bills imposing burthens upon the people of this Province, to which the Commons House of Assembly have never, as Your Committee find by numerous Parliamentary Proceedings, assented; for as all charges or burthens whatsoever upon the people of right begin with the Commons, so, they cannot be altered or changed by the Honorable the Legislative Council.

2nd, Because the Honorable the Legislative Council show a disposition to trench upon the Privileges of, Your Honourable House, by citing as precedents the conciliatory acts of the Commons in cases where they have rejected the amendments made by that Honorable House to money Bills, and re-enacted the subject matter so as to receive the concurrence of the other branches of the Legislature, wherever the same could, by strained construction, be admitted for the best interests of the Province.

3rd, Because the Honorable the Legislative Council deny that their amendments made to the Bill sent up from Your Honorable House intituled “An Act to make further provision for regulating the Trade between this Province and the United States of America,” or any other money Bill, are a breach of the Privileges of Your Honorable House; which Your Committee can prove by numerous precedents to be a high breach of its privileges, it being the undoubted, sole and exclusive right of Your Honorable House to commence all Bills granting aids or supplies to His Majesty, and imposing any charge or burthen whatsoever upon the people, and to direct, limit, and appoint in such Bills the ends and purposes, considerations, limitations and qualifications thereof; such grants, limitations and dispositions or appropriations

1. For the opinion of the House of Assembly on this promise see page 546.

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ought not to be interfered with by amendments in the Legislative Council, but that the said Legislative Council ought to pass all or reject all without diminution or alteration.

JONAS JONES, Chairman of the Committee.

House of Assembly, 23rd March, 1818.

Resolved, that the Commons have never questioned the principle either of constitutional right of necessity of the concurrence of the Legislative Council in passing Bills, but do insist that the exercise of its judgment and discretion on all Bills granting aids and supplies to His Majesty, or imposing burthens upon the people is by uniformly acknowledged precedent confined to assent without making any amendments, or to the rejecting totally such Bills; and that the admission of a contrary principle upon the pari of the Commons would be surrendering a constitutional right always exercised by this House, and from time immemorial by the Commons of Great Britain, which this House wll never consent to.1

Resolved, that the foregoing resolution is equally applicable to meet the reasoning of the first part of the second resolution of the Legislative Council, and that in all cases when this House have rejected amendments of the Legislative Council without notice, and re-enacted the matter so a