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 Miln