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6-7 EDWARD V((. SESSIONAL PAPER No. 18 A. 1907
v?^
DOCUMENTS
RELATING TO
THE CONSTITUTIONAL HISTORY OF CANADA
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
CANADIAN ARCHIVES
DOCUMENTS
RELATING TO
THE CONSTITUTIONAL HISTORY OF CANADA
1759-1791
Selected and Edited with Notes by ADAM SHORTT
AND
ARTHUR G. DOUGHTY
Printed by Order of Parliament
SECOND AND REVISED EDITION BY THE HISTORICAL DOCUMENTS PUBLICATION BOARD
PART I
OTTAWA
PRINTED BY J. de U TACHfc PRINTER TO THE KINGS MOST
EXCELLENT MAJESTY
1918
XL II
m
pt.i
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
THE HISTORICAL DOCUMENTS PUBLICATION BOARD
ADAM SHORTT, Chairman
ARTHUR G. DOUGHTY, Dominion Archivisl
HON. THOMAS CHAPAIS, Legislative Council, Que.
PROF. CHARLES W. COLBY, McGill University PROF. GEORGE M, WRONG, University of Toronto
6-7 EDWARD VII.
SESSIONAL PAPER No. 18
A. 1907
TABLE OF CONTENTS
Page
Preface to Second Edition ix
Introduction xi
^Articles of Capitulation, Quebec, Sept. 18, 1759, French Text 1
Articles of Capitulation, Quebec, Sept. 18, 1759, English Translation 5 ■•
^Articles of Capitulation, Montreal, Sept. 8, 1760, French Text 7
Articles of Capitulation, Montreal, Sept. 8, 1760, English Translation 25
Commission as Judge to Jacques AUier, January 6, 1760, French Text 36
Commission as Judge to Jacques Allier, January 6, 1760, English Translation 37
Placard from His Excellency, Gen. Amherst, Sept. 22, 1760, French Text 38
Placard from His Excellency, Gen. Amherst, Sept. 22, 1760, English Translation 40
Proclamation of Governor Murray, Establishing Military Courts, Oct. 31, 1760, French
Text 42
Proclamation of Governor Murray, Establishing Military Courts, Oct. 31, 1760, English
Translation 44
l^General Murray's Report on the State of the Government of Quebec, June 5, 1762 47—*
CCol. Burton's Report on the State of Government of Three Rivers, April, 1762 81
^General Gage's Report on the State of Government of Montieal, March 20, 1762 91
Treaty of Paris, Feb. 10, 1763. French Text 97
Treaty of Paris, Feb. 10, 1763, English Translation 113
I'apers relating to the Establishing of Civil Government in the Teiritories ceded to Britain ^
by the Treaty of 1763:
Egremont to Lords of Trade, May S, 1763 127
Lords ol Trade to Egremont, with Report, June 8, 1763 131
Egremont to Lords of Trade, July 14, 1763 147
Lords of Trade to Egremont, with Representation, Aug. 5, 1763 ISO
Halifax to Lords of Trade, Sept. 19, 1763 153
Lords of Trade to Halifax, Oct. 4, 1763 156
Proceedings in Privy Council, Oct. 5, 1763 157
Report on Commissions for Governors, Oct. 6, 1763 159
Halifax to Lords of Trade, Oct. 8, 1763 163
4 Proclamation of Oct. 7th, 1763 163 —
Earl of Egremont to Governor Murray, Aug. 13, 1763 168
Passing Governor's Commissions, Oct. 7, 1763 170
Additional Clauses in New Commissions, Nov. 4, 1763 170
Commission appointing James Murray, Captain General an^ Governor in Chief of the
Province of Quebec. Nov. 21, 1763 173
Instructions to Governor Murray, Dec. 7, 1763 181 —
Ordinance of Sept. 17. 1764, Establishing Civil Courts 205
Governor Murray to Earl of Halifax, Oct. 15, 1764 210
Presentments of the Grand Jury of Quebec, Oct. 16, 1764 212
Statement by French Jurors in reference to the foregoing Presentments, Oc"-. 26, 1764,
French Text 216
Statement by French Jurors in reference to the toiegoing Presentments, Oct. 26, 1764,
English Translation 219
Address of French Citizens to the King regaiding the Legal System. Jan. 7. 1765, French
Text 223
Address of French Citizens to the King regarding the Legal System. Jan. 7, 1765, English
Translation 227 -
Ordinance of Nov. 6, 1764 229
Governor Murray to Lords of Trade. Oct. 29. 1764 231
[Petition of the Quebec Tradeis to the King 232
Petition of the London Merchants to the King 235 Report of Attorney and Solicitor General re Status of Roman Catholic Subjects, June 10,
1765 236-
Report of Committee for Plantation Affairs re Ordinances and Constitutions by the Gov-
> ernor of Quebec. Sept. 2. 1765 237
\ Representation of the Board of Trade to the King. Sept. 2. 1765 247
Ordinance of July 1, 1766, to Altei and Amend Ordinance of Sept. 17, 1764 249
-^Ordinance of July 26, 1766, in addition to Ordinance of Sept. 17, 1764 250
QRef>ort of Attorney and Solicitor General (Yorke and DeGrey), regarding the Civil Govern-
f"^ ment of Quebec, April 4, 1766 251
\ Considerations on the Expediency of Procuting an Act cf Parliament for the Settlement
\ of the Province of Quebec, by Francis Maseres, 1766 257 •"
Irving to the Lords of Trade. Aug. 20, 1766 269
Petition of Seigneurs of Montreal to the King, Feb. 3, 1767. French Text 270
Petition of Seigneurs of Montreal to the King. Feb. 3, 1767, English Translation 272
Commission of Chief Justice William Hey, Sept. 25, 1766 273
Lieut.-Governor Carleton to Earl of Shelbume, Oct. 25, 1766 276
vi CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Remonstrance of Members of Council to Lieut.-Governor Carleton, Oct. 13, 1766 277
Lieut.-Governor Carleton's reply to Remonstiance of Members of Council 278
280 281
^atLieut.-Govemor Caileton to General Gage. Feb. IS, 1767
^ Earl of Shelburne to Lieut.-Governor Caileton, June 20, 1767.
•^Lieut.-Governor Caileton to Earl of Shelburne, Nov. 25, 1767 281
Resolution of Pi ivy Council as to Information Required Concerning the Province of Que- bec, Aug. 27, 1767 285
, Eail of Shelburne to Lieut.-Governor Carleton, Dec. 17, 1767 287
^Lieut.-Governoi Carleton to Earl of Shelburne, Dec. 24, 1767 288
Diaught of an Ordinance Relating to French Land Tenures 292 -
Lieut.-Governor Carleton to Eail of Shelburne, Jan. 20, 1768 294
Earl of Hillsborough to Lieut.-Governoi Caileton, March 6, 1768 297
^Lieut.-Governor Caileton to Earl of Shelbuine, Apiil 12, 1768 299
^instructions to Governor Caileton, 1768 301—
Earl of Hillsborough to Governor Caileton, Oct. 12, 1768 325
^Governor Carleton to Eail of Hillsborough, Nov. 20, 1768 325
I ^A Diaught of an Intended Report of the Honourable the Governor in Chief and the Coun- \ cil of the Province of Quebec, to the King Concerning the State of the Laws and the
\ Administration of Justice in that Province, by Francis Maseies 327-
"~ Attorney General Maseies" Criticism of Governor Caileton's Report on the Laws of the
Province, 1769 370 —
~ Repoit of Lords Commissioners for Trade and Plantations Relative to the State of the
Province of Quebec, July 10. 1769 377
Appendix to Report of Lords Commissioners for Trade and Plantations 393
Report ot Committee of the Council on Administration of Law by Justices of the Peace,
Sept. 11. 1769 395
An Ordinance for the More Effectual Administration of Justice, and for Regulating the
Courts of Law in the Province, Feb. 1, 1770 401 -
Petition for a General Assembly , 417 -
^ Petition for the Restoration of French Law and Custom, French Text 419
I Petition for the Restoration of French Law and Custom, English Translation 421 -
'~- Additional Instruction to Governor Caileton, 1771 422 *
Eail of Hillsborough to Lieut.-Governor Cramahe, July 3, 1771 423
"Report of Solicitor General Alex. Wedderburn, Dec. 6, 1772 424
Abstract of such Regulations in Solicitor General's Report as may be established by Act.
of Parliament, Dec. 6, 1772 432
Abstract of such Regulations as the Legislature may carry into Execution 434
— Report of Attorney General Edward Thurlow, Jan. 22, 1773 437
Plan of a Code of Laws for the Province of Quebec, Reported by the Advocate General,
James Mariiott, 1774 440 —
Lieut.-Governor Cramahe to Earl of Dartmouth, June 22, 1773 484
Eeu-1 of Dartmouth to Lieut.-Governor Cramahe, Dec. 1, 1773 485
Francis Maseres to Earl ot Dartmouth, Jan. 4, 1774, with Proceedings of Quebec Com- mittee 486
Letter of Committee of English Inhabitants to Maseres 490
Lieut.-Governor Cramahe to Eail of Dartmouth, Dec. 13, 1773 491
Petition to Lieut.-Governor Cramahe for an Assembly, Nov. 29, 1773 493.»
Lieut.-Governor's Reply, Dec. 11, 1773 495
Petition to the King, for an Assembly, Dec. 31, 1773 495-
Memorial from Quebec to Earl of Dartmouth, Dec. 31, 1773 498
Memorial from Montreal to Earl of Dartmouth, Jan. 15, 1774 501
Earl of Dartmouth to Lieut.-Governor Cramahe, May 4, 1774 503
Lieut.-Governor CramahS to Earl of Dartmouth, July IS, 1774 503
» Petition of French Subjects to the King, Dec. 1773. French Text 504
^WPetition of French Subjects to the King, Dec. 1773, English Translation 507 -
Memorial of French Subjects in Support of their Petition, French Text 508
Memoiial of French Subjects in Support of their Petition, English Translation 510 -
Case of the Biitish Merchants Trading to Quebec, May, 1774 512 ^
Lord Mansfield's Judgment in Campbell vs. Hall, 1774 522
Maseres to the Lord Chancelki. April 30, 1774 531 ■
Memoranda and Draughts of Bills Relating to the Subject of the Quebec Act, 1774:
, Memorandum of Government ot Quebec 533 i
First Draught of the Quebec Bill S3S
I Second Draught of the Quebec Bill S36 j
Proposed Extension of Provincial Limits 541
Third Draught of the Quebec Bill 543
Notes on Third Diaught of Quebec Bill 548
The Clause Concerning Religion in the Third Draught ^ 549
Lord Hillsborough's Objections to Third Draught of Quebec Bill 551
Earl of Dartmouth's Reply to Lord Hillsborough 554
The Quebec Bill, as Returned from the Commons 554
Things which must of necessity be Considered and Definitely Settled if the Bill is
passed, French Text 561
Things which must of necessity be Considered and Definitely Settled if the Bill is
Passed, English Translation 564
Queries re Government of Quebec 568
I
TABLE OF CONTENTS vii SESSIONAL PAPER No. 18
(The Quebec Act, 14, Geo. Ill, cap. 83 570 1'
Quebec Revenue Act, 14, Geo. Ill, cap. 88 576
f An Act for amending and explaining an Act to establish a fund towards further defraying I
/ the charges of the Administration of Justice, and support of the Civil Government 1
I within the Province of Quebec 580 I
Governor Carleton to Earl of Dartmouth, Sept. 23, 1774 583 /
General Gage to Governor Carleton, Sept. 4, 1774 583 1
Governor Carleton to General Gage, Sept. 20, 1774 584 j
Earl of Dartmouth to Governor Csu-leton, Dec. 10, 1774 585 )
Governor Carleton to Earl of Dartmouth, Nov. 11, 1774 586/
Petitions for the Repeal of the Quebec Act, Nov. 12, 1774: (
To the King 589W
To the Lords 591 1
To the Commons 592/
Instruction to Governor Carleton, 1775 5944
Plan for the future management of Indian Affairs, referred to in the 32nd article of the
foregoing Instructions 614
Instructions relating to Trade and Navigation 620
Additional Instructions, March 13, 1775 636
Additional Instructions, Nov. 14, 1775 636
Draught of an Ordinance for Establishing Courts of Justice, May 1, 1775 637
Governor Carleton to General Gage, Feb. 4, 1775 660
Earl of Dartmouth to Governor Carleton, June 7, 1775 663
Governor Carleton to Earl of Dartmouth, June 7, 1775 663
Lieut.-Governor Cramahe to Earl of Dartmouth, Sept. 21, 1775 667
Chief Justice Hey to the Lord Chancellor, Aug. 28, 1775 668
Commission for a Court of Appeals, Aug, 1, 1776 672
Commission for a Court of Civil Jurisdiction, July 23, 1776 674
Governor Carleton to Lord Germain, Sept. 28, 1776 675*^
Governor Carleton to Lord Germain, May 9, 1777 676
Ordinances passed by the Legislative Council, Jan. to April, 1777 678
An Ordinance for Establishing Courts of Civil Judicature in the Province of Quebec, Feb.
25, 1777 697
An Ordinance to Regulate the Proceedings in the Courts of Civil Judicature in the Prov- ince of Quebec, Feb. 25, 1777 682
An Ordinance for Establishing Courts of Criminal Jurisdiction in the Province of Quebec,
March 4, 1777 690
Plan for a Chamber of Commerce for the City and District of Quebec, April 3, 1777. . . . 692
Petition of Merchants for Repeal of Quebec Act, April 2, 1778 694 ^
Instructions to Governor Haldimand, April 15, 1778 696
Carleton's Dismissal of Chief Justice Livius, March 2, 1779 698
Additional Instruction, March 29, 1779 ■ 704
Additional Instruction, March 29, 1779 70S
Additional Instruction, July 16, 1779 706
Opinion of Members of Council on Executing the Instructions of 16th July, 1779 707
Governor Haldimand to Lord Germain, Oct. 25, 1780 711
The Lords of Trade and Plantations to Haldimand, April 10. 1781 722
Ordinance re Proceedings of Courts, Feb. 5, 1783 725
Treaty of Paris, 1783 726 -
Additional Instructions to Haldimand, July 16, 1783 730
Additional Instruction, May 26, 1785 733
Additional Instruction, July 25, 1785 734
Governor Haldimand to Lord North, Oct. 24, 1783 735
Governor Haldimand to Lord North, Nov. 6, 1783 738
Hugh Finlay to Sir Evan Nepean, Oct. 22, 1 784 '. 739
Petition for House of Assembly, Nov. 24, 1 784 742 -^
Plan for a House of Assembly, Nov., 1784 753
Objections to Petition of November, 1784, French Text 754
Objections to Petition of November, 1784, English Translation 758
Address of Roman Catholic Citizens to the King, French Text 762
Address of Roman Catholic Citizens to the King, English Translation 765
A Draught of a Proposed Act of Parliament for the Better Securing the Liberties of His
Majesty's Subjects in the Province of Quebec, April, 1786 767
Petition of Sir John Johnson and Loyalists, April 1 1, 1785 , 773
Lieut.-Governor Hamilton to Lord Sydney, April 20, 1785 777
Ordinance Establishing Trial by Jury. April 21, 1785 780
Lieut.-Governor Hope to Lord Sydney, Nov. 2, 1785 793
Memorial of British Merchants Trading to Quebec, Feb. 8, 1786 796
Letter from Merchants of Montreal, Nov. 2, 1785 801
Letter from .Merchants of Quebec, Nov. 9, 1785 803
Lord Sydney to Lieut.-Governor Hope, April 6. 1786 80S
Lord Sydney to Col. Joseph Brant, enclosed in foregoing 809
Lord Sydney to Lieut.-Governor Hope, April 6, 1786 810
Memoranda for Instructions, July 28. 1786 811
Plan of General Directions for Sir Guy Carleton, 1786 812
Draught of Particular Instructions to Carleton, 1786 813
viii TABLE OF CONTENTS
6-7 EDWARD VII., A. 1907
Instructions to Lord Dorchester, Aug. 23, 1786 816
Additional Instructions, March 21, 1787 837
Additional Instruction, Aug. 25, 1787 838
Chief Justice Smith to Sir Evan Ncpean, Jan. 2, 1787 841
Hugh Finlay to Sir Evan Nepean, Feb. 13, 1787 843
Hugh Finlay to Sir Evan Ncpean, March 15, 1787 845
Draughts of an Ordinance framed by Chief Justice Smith, March 12, 1787 847
Extract from Proceedings of Council, March 26, 1 787 854
Ordinance re Proceedings of Civil Courts, April 30, 1787 858
Ordinance re Criminal Courts, April 30, 1 787 862
Lord Sydfiey to Lord Dorchester, Sept. 20, 1787 863
Lord Dorchester to Lord Sydney, June 13, 1787 865 «
Minutes of Council upon State Business from the 24th of October, 1786, to the 2nd of
June, 1787 869
♦ Memorial of The Judges, May 1, 1787 873
' Report of the Committee of the Council Relating to the Courts of Justice 874
Memorandum of the Council 886
List of Jurors 891
A Paper by Judge Panet, French Text 892
A Paper by Judge Panet, English Translation 896
Another Paper by Judge Panet, French Text. 894
Another Paper by Judge Panet, English Translation 898
Report of the Committee of Council Relating to Commerce and Police, 1 787 899
Report of the Merchants of Quebec by their Committee 902
Copy of a Petition to Lord Dorchester from New Subjects at Quebec. French Text 910
Copy of a Petition to Lord Dorchester from New Subjects at Quebec, English Translation 911 Letter from the Committee of Council on Commerce and Police to the Merchants of
Montreal 913
Answer to foregoing Letter 914
Report of the Merchants of Montreal by their Committee 915
Copy of a Letter Accompanying the above Report 920
Copy of an Address to Lord Dorchester from New Subjects at Montreal, French Text. ... 921 Copy of an Address to Lord Dorchester from New Subjects at Montreal. English Trans- lation 923
Letter Addressed to the Magistrates of Quebec, from the Committee of Council 925
Letter from the Magistrates of Quebec to the Committee of Council in answer to the fore- going Letter 926
Letter to the Merchants at Three Rivers, from the Committee of Council 929
An Answer to the Foregoing Letter 929
Representation of New Subjects at Three Rivers to the Governor and Council, French
Text 930
Representation of New Subjects at Three Rivers to the Governor and Council, English
Translation 934
Report of the Committee of the Council upon Population, Agriculture and the Settlement
of the Crown Lands, 1787 937
Letter from the Magistrates at Cataraqui to Sir John Johnson 942
Letter from the Magistrates at New Oswegatchee to Sir John Johnson 945
Lord Dorchester to Lord Sydney, June 13, 1787 946
" Petition of the Western Loyalists, April 15, 1787 949
Memorial of Merchants Trading to Quebec, Feb. 4, 1788 952
Patent Creating New Districts, July 24, 1788 953
" Lord Sydney to Lord Dorchester, Sept. 3, 1788 954
^Lord Dorchester to Lord Sydney, Nov. 8, 1 788 958
^Hugh Finlay to Sir Evan Nepean, Feb. 9, 1789 960
Ordinance of 1789 re Proceedings in the Courts of Civil Judicature 963
^Lord Grenville to Lord Dorchester, Oct. 20, 1789 969
-Discussion of Petitions and Counter Petitions re Change of Govermnent in Canada 970
^Lord Grenville to Lord Dorchester, Oct. 20, 1789 987
First Draught of Constitutional Bill, 1 789 992
"Lord Dorchester to Lord Grenville, Feb. 8, 1790 1002
Second Draught of Constitutional Bill, 1790 1006
Boundary between Quebec and New Brunswick 1017
Chief Justice Smith to Lord Dorchester, Feb. 5, 1790 1018
Proposed Additions to New Canada Bill for a General Government, Feb. 8, 1790 1020
Clause re Trial of Criminal Offences, Feb. 8, 1 790 1024
Lord Grenville to Lord Dorchester, June 5, 1791 1024
Lord Dundas to Lord Dorchester, Sept. 16, 1791 1028
The Constitutional Act of 1791 1031
Index 1053
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
PREFACE TO SECOND EDITION
In issuing the second edition of the Constitutional Documents, 1759- 1791, it has been found necessary to divide the volume into two parts. This is owing partly to the additional documents included, but chiefly to the improved form in which it is printed. While the original plan of the work, as indicated in the introduction, has not been departed from, a few additional documents and some extensions of the notes have been found desirable. .
A few documents, not available at the time of printing the first edition have since been discovered. Among these the most important are the Report of the Board of Trade of September 2nd, 1765 (p. 237) and the Dis- cussion of Petitions and counter-Petitions re Change of Government in Canada (p. 970), referred to in the despatch of Grenville to Dorchester of 20th October, 1789 (p. 969). Since the first part of this edition was printed, the full text of Lord Thurlow's report has been discovered in the Archives of the Court House of Montreal. While it is to be regretted that it was not discovered in time to be included in this issue, it may be observed that the abridgment of it which is given (p. 437), as taken from Christie's History of Lower Canada, contains nearly all that is essential in Thurlow's argu- ment. The portions omitted are chiefly summaries of the earlier documents submitted to the Law Officers as the bas-s for their report, and which are reproduced in full in the earlier portion of this work. In the latter part of the report, certain portions of Thurlow's argument were omitted by Christie, but the most important sections are given in full. In any case, the full text may now be consulted, either at the Court House, Montreal, or at the Archives in Ottawa.
Among the new documents introduced is the Draught of an Ordinance for establishing Courts of Justice in the Province of Quebec, 1775. This is given as indicating "His Majesty's Gracious Intentions with respect to the plan of Judicature that is to be established." It is of special interest, with reference to the policy of the Quebec Act, on the one hand, and, on the other, the actual line of development in the administration of justice
ter the Quebec Act. The Commissions for a Court of Appeals and for a
urt of Civil Jurisdiction, in 1776, which serve to fill the gap in the admin- tion of justice during the invasion of Canada, are also new documents.
The rather important constitutional issues involved in the dismissal of Chief Justice Livius having been dealt with in the first edition chiefly in
tensive foot-notes, it was deemed advisable to give in full the Report of
e Committee of Council to which was referred the whole case. This is iven at p. 698. Growing out of this situation was the action taken by
vemor Haldimand in withholding from the Council certain articles of
X CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
his Instructions which he was directed to lay before them. The review of his conduct on this and other matters by the Lords of Trade and Planta- tions, in 1781, is also given in full as essential to an understanding of the issues raised (see p. 722). Among the papers received since the issue of the first edition, two documents, "A Plan of General Instructions for Sir G. Carleton" and "Draught of Particular Instructions to Carleton," leading up to the General Instructions of 1786, are also included as throw- ing light upon these important instructions.
Apart from some necessary changes and extensions in the foot-notes, the only other important alterations will be found in the references to the Journals of the Legislative and Executive Councils of Quebec. When the first edition was prepared the only copies of the Minutes of Council available were those in the "Q" series, which were given in the Minutes as sent from Canada to England and preserved in the Public Record Office. Within the past few years, however, the original Minute Books of the Councils were discovered in Canada among the records of the Governor General's Office, and have been transferred to the Public Archives. The text of all extracts from the Minutes, as given in the Constitutional Documents, has been read and revised from these originals. In consequence, the references have been changed to conform to the new sources. At the same time the former references to the "Q" series are also retained in order to preserve connection with quotations which have been made from the first edition of this work. Similar observations will apply to certain petitions, etc., the originals of which have lately come to light and are now deposited in the Archives. In each case, while the text is revised in accordance with the originals, references are given to the copies as formerly known, as well as to the originals recently discovered. The two parts in which the original volume now appears are paged consecutively, hence the table of contents in the first part and the index in the second part refer to the whole work.
6-7 EDWARD VII. SESSIONAL PAPER No. 18. A. 1907
INTRODUCTION
Already the accumulation of materials relating to Canadian history secured by the Canadian Archives is very voluminous, and of such range and value that it will henceforth be impossible to make any considerable con- tribution to Canadian history without drawing upon these resources.
Now that these collections are adequately housed in a separate build- ing, it is possible for all who wish to consult them to do so with facility and comfort. However, in a country of such vast extent as Canada, it requires both time and means for more than a very limited number to avail them- selves of these valuable accumulations at first hand. Hitherto, also, the pressing demands of the more immediate needs of life leave, for most, little leisure for the cultivation of those studies connected with the origin and significance of our national institutions, the right comprehension of which may have an important bearing on the future stability of national life.
In order that the character of the records accumulated by the Archives department may be made known to the public, and that the advantages to be derived from an acquaintance with these materials may be equally shared by teachers, students and citizens of Canada generally, in all parts of the country, it has been considered advisable to select and publish in a connected form, a number of the more important and representative docu- ments relating to specific features of Canadian national development. The present volume is the first of a short series which will embody the lead- ing documents relating to Canadian constitutional history. The collection is intended to furnish, in the shape of authentic copies of original documents, a survey of the gradual development of the Canadian system of government and of the various forces which, in co-operation or conflict, had much to do with determining the lines along which our destiny as a nation was to be unfolded. It has been sought to make the series of documents suffi- ciently full and representative of all the constituent elements and interests of the country, to furnish a basis for an intelligent and independent judg- ment on the part of those making a careful study of them; while the notes and references will enable the leader to follow the natural connections of the documents with each other and with a still wider lange of first hand mate- rials, most of which will also be found in the collections of the Canadian Archives.
This first volume contains only documents relating to the central portion of Canada known at the time as the Province of Quebec, between the period of the Cession and the passing of the Constitutional Act in 1791. In order to present a natural historical development of the constitution the documents are arranged as nearly as possible in chronological order. They consist of both primary and secondary materials. The primary docu-
3dJ CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
ments are preceded and followed by a number of closely related papers, such as petitions, reports, letters and proceedings indicative of the forces which prepared the way for the more formal expressions of the general policy or system of government. These in turn are followed by other secondary documents showing the practical consequences of the adoption of this or that policy or system of government.
The documents and papers may be classified as follows, the first two sections covering the central or pivotal documents.
I. Terms of Capitulation and Treaties, determining the limits of the colony and the conditions under which it was ceded or held.
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. Such ordinances or laws passed by the local legislative body as prescribe, under the authority of Royal Proclamations or British Statutes and Instructions to the Governors, the courts of law and the general system of justice to be administered in the colony.
V. Special reports, of a more or less official nature, from various Boards, or servants of the Crown in Britain or Canada, setting forth the actual con- ditions of the country from a constitutional point of view, and proposing lines of policy or necessary changes in the constitution of the country.
VI. A body of miscellaneous papers furnishing the connecting links and general constitutional atmosphere of the central documents of the foregoing classes. These consist of
(o) Petitions and counter-petitions expressing the wishes and aspirations of the inhabitants of the country, or of those in Britain having special interests in Canada, as to the form of government, the system of laws, and the general administration of justice.
{b) Minor reports from the Governors and other officials in the , colony, Memorials and Proceedings setting forth the political condition of the country. Minutes of Council and Reports of Committees of Council relating to the system of government or administration.
(c) Correspondence, official, semi-official, or private, between the Canadian Governors and the British Secretaries of State, and between these and others occupying official or at least influential positions in Canada or Britain, discussing, shaping, or advising as to the policy of government, or the condition and wishes of the people.
In considering the documents presented under these various classes, the question of most interest to those wishing to make use of the volume will relate to the principle or principles upon which the documents here given were selected from the general mass of materials bearing upon the constitu-
INTROD UCTION xiii
SESSIONAL PAPER No. 18
tional development of Canada during the period covered. In answering this question we may take up the sections in order.
The documents which fall within the first three classes leave very little room for choice, as they are limited in number and definite in character. The first section includes the Capitulations of Quebec and Montreal, and the two Treaties of Paris of 1763 and 1783. Section II includes the Procla- mation of 1763, the Quebec Act and the Constitutional Act. Section III includes the Commissions and Instructions to Governors, etc. In order to economize space, since the Commissions cover, though only in a partial degree, much the same ground as the Instructions, samples only are given to indicate their nature. Special features, such as Dorchester's Commission in 1786 to be Governor and Commander-in-Chief in all the British North American Colonies, are fully indicated in the correspondence and notes. Where the Instructions to one Governor are continued for his successor with little or no alteration, they are not repeated in full, only the alterations or additions being given. However, where important changes in policy were being discussed or had taken place, as in 1768, 1775, and 1786, the Instructions are given in full, even though considerable sections of them remain unchanged, it being important at such periods to see the relation of the old to the new elements. This section includes also various addi- tional or special Instructions which were issued to the Governors during their periods of Office.
Section IV covers the series of Provincial Ordinances from 1764 to 1789, establishing the Provincial Courts and prescribing, subject to the British Statutes and Instructions, the system of law and procedure to be observed therein.
In Section V there is more choice of materials, though there is little difficulty in determining which are the most essential documents, as that is largely indicated by the importance attached to them alike at the time and afterwards, as evidenced by the repeated References to them in the other documents and correspondence of the period. The only difificulty here has been in procuring authentic copies of all the documents of this description referred to. Though the great majority of these reports have been discovered among the State Papers, or in other authentic form, a few of them have not as yet been secured. The Reports of Carleton and Hey in 1769 have not yet been found, though the substance of the former is fairly well indicated in the criticism of it made by Mr. Maseres (see p. 258). This indicates that the Governor had simply recapitulated in the Report his views as frequently expressed to the Home Government in his correspondence with the Secretaries of State, Lords Shelburne and Hills- borough. It has also been impossible up to the present to trace among the State Papers the reports on the Government of Quebec made by Solicitor-General Wedderburn and Attorney-General Thurlow, in 1772 and 1773, though a supplement to the Solicitor-General's report containing its essential features has been found among the Dartmouth Papers. We have
i
xiv CANADIAN A RCHl VES
6-7 EDWARD VII., A. 1907
therefore been constrained to take these papers in their incomplete form from Christie's History of Lower Canada. Vol. I. The Report of the Board of Trade of September 2nd, 1765, cited in another report of the same date, given at p. 171 and referred to in note 3 on the same page, as not having been discovered, has since come to light in a volume lately received at the Archives but as yet uncalendared. It will be found in Volume Q — 18A, p. 131. These are practically the only cases in which we have failed to trace the more essential documents of this class.
The reports in this Section, beginning with that of Murray in 1762, and ending with the series of Reports of 1787, where they are of a general nature, naturally contain much material which has but little direct bearing on constitutional questions. However, where the report is homogeneous and not too voluminous, as in the case of Murray's, it has been produced iti full that the reader may be enabled to obtain a general survey of the con- ditions of the Colony. In other cases, where the report is very extensive and is the product of a series of committees dealing with different sections of the colonial interests, as in the case of the Report of 1787, only those sections are given which have a more direct bearing on the constitutional problems of the country. At the same time the general character of the whole report is sufficiently indicated, and references are given which will enable any one who may be interested in them to follow up the portions omitted.
It is among the documents classified under Section VI, that there is the largest and most miscellaneous mass of materials from which to make choice, and here the principle of selection is naturally a matter of considerable importance, for much necessarily depends upon the judgment of the editor. Inasmuch as feeling ran high at various stages during this period, and ques- tions of racial and national institutions, feudal privileges and vested inter- ests, commercial enterprise and immigration, military versus civil power, and autocratic versus democratic government were deeply involved; and inasmuch as many of the questions then raised for the first time have per- sisted as matters of vital interest in Canadian politics and British colonial policy, it is highly necessary that the principles on which the selection of the supplementary documents has been made should be fully understood. Obviously, whatever the final judgment on any of these issues, it is quite indispensable in a volume of this description that all the representative interests in the Colony, all the essential claims made and policies advo- cated, should be fairly and adequately presented in their own terms, as far as the documents are available. The first process was to sift out from the general documents of the period and set apart for further consideration all those having either a direct or an indirect bearing upon the constitutional issues of the period. Then from these were selected for publication (a) Those which were specially referred to in the primary documents, or were used in shaping them; {b) Those petitions and memorials which were most frequently referred to either by friends or opponents as repre-
INTRODUCTION xv
SESSIONAL PAPER No. 18
Aenting the wishes of the various sections of the people interested in the itonstitution of Canada ; (c) Those despatches and letters passing between /Canada and Britain which originated ideas and policies afterwards followed up, or which most fully discussed the issues then before the country, and which were most frequently referred to afterwards as expressing the views of the persons or groups vitally interested in the measures proposed or adopted; {d) Such minor documents as were intimately connected with or obviously throw light upon the more important ones, and contribute to a better understanding of them.
By following these principles of selection it was found that the docu- ments arranged themselves in a natural and connected order of development, and furnished in great measure their own standards for selection. As a consequence of this arrangement, we have been able to include the great majority of the papers referred to in the primary and secondary documents, including the petitions, memorials and official correspondence. Hence, with the assistance of the notes and supplementary references, if the docu- ments are read consecutively, they will be found to gradually unfold a closely connected and intelligible story of the leading constitutional issues and of the factors, personal and corporate, determining the constitutional development of Canada during a very critical and highly controversial period in our national history.
1^^ It has been regarded as beyond the scope of a volume of this descrip- tion to take notice of the voluminous discussion in periodicals, pamphlets, and historical treatises dealing with the issues here presented whether from a partisan or impartial point of view. However valuable much of this material may be, it is plainly to be treated as supplementary reading. The object of this volume is simply to furnish the more central and essential ^fccumentary bases, alike for original and independent judgment and for ^^K intelligent estimate of all other judgments, whether contemporary or ^^Bbsequent.
The most essential portion of the supplementary reading consists of the Debates in the British Parliament connected with the passing of the Quebec Act and the Constitutional Act. These are naturally too volumi- nous to be included in their entirety. To make selections from them, and especially from the Debates on the Quebec Act, which would be satisfactory to all parties would prove a very difficult if not impossible undertaking. References to the Debates are given in the notes, and as they are available in every fairly equipped library, they may be consulted in their complete form by practically all who care to make a serious study of these matters.
The notes throughout the volume are entirely devoted to furnishing necessary concrete inforniation as to the documents themselves, the con- necting links between them, or the supplementary documents which throw additional light on the questions in hand. No attempt however has been made to pass judgment upjon the issues involved, or to give an interpreta- tion of the documents themselves. The functions of the notes may thus
xvi CA NADIAN ARCHl VES
6-7 EDWARD VII., A. 1907
be classified as follows : (a) To furnish the necessary references to the som ^ of the documents which are reproduced; (6) To furnish references, eith within or without the present volume, to all other papers referred to in tht documents here reproduced; (c) To provide references to other first-hand materials, and to give quotations from them, where not too extensive, as to the essential links connecting or explaining the documents which have been selected and reproduced; (d) To indicate the official positions held by the leading parties between whom the correspondence which is given had taken place.
A number of the central and more formal documents, such as Capitu- lations, Treaties, and Instructions have already appeared in various forms, though not always in authentic versions. Others hare appeared in volumes which are now very difficult to obtain and are rarely to be met with in Canada outside of a few of the best equipped libraries. A large part of the volume, however, consists of important documents which have not hitherto been published, and the very existence of a number of which was hardly suspected. These throw much new light on some of the most essential features of Canadian constitutional history.
In every possible case documents are taken from the most authentic- sources available, and are reproduced exactly as they are found, without any attempt to correct even the most obvious errors of spelling, punctuation or grammatical form. It is evident that any uncertainty due to slips and errors in the original documents would only be increased were it understood that attempts had been made to amend them.
The majority of the papers here reproduced are contained in the Canadian Archives, and consist of copies from the originals in the Public Record Office in London. In some cases, however, the papers in the Public Record Office are themselves duplicates which were furnished at the time of framing the originals. In almost every case these documents have been again carefully compared with the originals before being reproduced in this volume, and the proof has been read by Mr. R. Laidlaw and MissM. Robert- son.
It will be observed that the papers are drawn mainly from three series, which are designated by the letters Q, B, and M. This method of classi- fication was originally adopted by the Canadian Archives as an arbitrary though convenient mode of reference, otherwise these letters have no special significance. The index to the volume was prepared by Miss M. Robertson of the Archives Branch.
Adam Shortt Arthur G. Doughty
6-7 EDWARD VII.
SESSIONAL PAPER No. 18
A. 1907
DOCUMENTS RELATING TO THE CONSTITUTIONAL HISTORY OF CANADA
1759-1791
ARTICLES OF CAPITULATION, QUEBEC.
La Capitulation deman- die d'autre part a ete ac- cord^e par Son Excellence General Townshend Brig- adier des armees de sa Ma- jeste Britanique en Ameri- que de la Maniere & aux conditions exprimtes cy dessous
Articles de Capitulation demand^s Par M'' de Ramzay Lieutenant Pour Le Roy Commandant Les hautes et Basse Ville de Quebec Ch°' de L'ordre Royal & Militaire de S' Louis k Son Excel- lence Monsieur Le General des troupes de Sa Majeste Britannique.
' The Articles of Capitulation of Quebec as here given are taken from a photographic re- production of the original document, signed by Admiral Charles Saunders, Brigadier General George Townshend and M. de Ramesay, which was enclosed in Townshend's despatch to Pitt of the 20th Sept.. 1759, giving the official account of the capture of Quebec. The despatch and the enclosed Articles of Capitulation are preserved in the Public Record Office, London, in Vol. 88 of the papers relating to 'America and the West Indies." In his despatch General Townshend thus alludes to the Capitulation: — ' The l?"" at noon before we had any Battery erected or could have had any for 2 or 3 days. A Flagg of Truce came out with proposals of Capitulation, which I sent back again to Town allowing them four Hours to capitulate or no farther Treaty. * * The French Officer returned at night with Terms of Capitulation which with the Admiral were consider'd, agreed to, and signed, at 8 in y« morning y 18"" instant. The Terms you find we granted will I flatter myself be approved of by his Majesty considering y« Enemy assembling in our Rear, & what is far more formidable The very Whet & Cold Season which threatened our Troops with Sickness & the fleet with some Accident. It had made our Road so bad we could not bring up a Gun for some time, add to this y* advantage of entring y Town with the walls in a Defensible State, and y* being able to put a Garrison there strong enough to prevent all Surprise. These I hope will be deem'd a sufficient Consideration for granting y« them. Terms 1 have the Honour to propose to you.'
Admiral Saunders, in a letter to Pitt at the same time, also states, 'I enclose you a Copy of the Articles of Capitulation.' Negotiations for the capitulation appear to have commenced immediately after the battle of the Plains on the 13th of September, as Montcalm addressed a letter to Townshend on that day, in which he acknowledged that he was compelled to surrender. On the I4th, M. de Ramesay received a communication from the British Commander referring to the arrangements for carrying out the truce; but the death of Montcalm which occurred on the same day seems to have interrupted the proceedings. There are several variations in the wording alike of the French text and of the English Translation, or version of the Articles of Capitulation, as given by different authorities. Some of these are from French sources, others from English. As indicative of the variations in British official sources we may take the follow- ing versions of the introductory clauses of the Capitulation:
Articles de Capitulation demandces par M' de Ramzay Lieutenant pour le Roy, Commandant les Hautes et Basses Villcs de Quebec, Chevalier de I'Ordre Royal et Militaire de S' Louis, a Son Excellence Monsieur le General des Troupes de Sa Majeste Britannique: La Capitulation de- mandee d'autre Part a ete accordfe par Son Excellence General Townshend, Brigadier des Armes de Sa Majeste Britannique en Amerique, de la Maniere et aux Conditions exprimies cy-dessous:
(Papers relative to the Province of Quebec, ordered to be printed 2l8t April 1791. Copied in Canadian Archives, Q. 62 A, Pt. 1, p. 103.)
ARTICLES DE CAPITULATION
Demandee par M. de Ramsay, Lieutenant pour le Roi, commandant les Hautes et Basse- villes de Quebec, Chef de l'ordre militaire de St. Louis, a son Excellence Ic General des Troupes de sa Majeste Britannique. — "La Capitulation demandee de I'autre part, a ete accordee par son Excellence I'Amiral Saunders, et son Excellence le General Townshend, &c. &c. &c. de la maniere et condition pxprimee ci-dessous."
(Capitulations and Extracts of Treaties Relating to Canada: with His Majesty's Proclama- tion of 1763, establishing the Government of Quebec, p. 3. Printed by Willian Vondenvelden, Law Printer to the King's Most Excellent Majesty, 1797.)
CANADIAN ARCHIVES
La garnison de la ville Compos6e des troupes de terre de marinne et matelots sortiront de la ville avec armes et Bagages Tambour Battant me- che allum^e avec deux pieces de Canon de france Et douze Coups atirer pour chaque piece Et sera Embarqu6 . le plus Commodement possible pour etre mise en france au premier port.
Accords en mettant les armes Has.
accord6 —
accords —
accord^ —
6-7 EDWARD VII., A. 1907
Article Premier
M' de Ramzay demande Les honneurs de la guerre Pour sa Garnison & qu'EUe soit ramen^e k L'arm6e En suret6 par Le Chemin Le plus Court, avec armes, bagages, six pieces de Canon de fonte, Et deux mortiers ou obusiers et Douse coups k tirer par piece.
Art. 2.
Que Les habitans soient Conserves dans La possession de leurs maisons, biens, effets et privileges.
Art. 3.
Que Les dits habitans ne pourront etre recherch^s pour avoir porte Les armes k la deffense de la ville, attendu qu'ils y ont 6t6 forces & que les habitans des Colonies des deux couronnes y servent Egalement comme Milices.
Art. 4.
Qu'il ne sera pas touchy aux effets des officiers & habitans absens.
Art. 5.
Que les dits habitans ne seront point transfer^, ni tenus de quitter Leurs maisons Jusqu'^ ce qu'un traits definitif entre S. M. T. C. & S. M. B. aye regl6 leur etat.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
6. Art. 6.
libre Exercice de la Religion Romaine, sauves gardes accordees a toutes personnes Religieuses ainsi qua M' Leveque qui pourra venir Exercer Libre- ment et avec Defence Les fonctions de son Etat lorsqu'il le Jugera a propos jusqu'a ce que la possession du Can- ada ayt 6t6 Decid6e entre Sa Majesty B. et S. M. T. C.
accord^ —
accord^ —
accord^ —
Que L'Exercice de La relHgion Catho- lique apostolique & romaine sera con- serve, que L'on Donnera des sauve gardes aux maisons des Ecclesiastiques, relligieux & relligieuses particuliere- ment k Mg' L'EvSque de Quebec qui, rempli de zele pour La relligion Et de Charite pour le peuple de son Diocese desire y rester Constamment, Exercer Libr6ment & avec La Decense que son Etat et les sacres mysteres de la relligion Catholique Apostolique & Romaine, Exigent, son Authority Episcopale dans La ville de Quebec Lorsqu'il Jugera k propos, Jusqu'^ ce que la possession Du Canada ait Et6 decid^e par vn traits Entre S. M. T. C. & S. M. B.
Art. 7.
Que L'artillerie & les Munitions de guerre seront remises de bonne foy et Qu'il en sera Dress6 un Inventaire.
Art. 8.
Qu'il En sera un pour Les Malades, bless6s, Commissaire, Aumoniers, Me- decins, Chirurgiens, Apoticaires & au- tres personnes Employes au service des hopitaux Conformement au trait6 d'6- change du 6. fevrier 1759. Convenu Entre Leurs M. T. C. & B.
Art. 9.
Qu'avant de livrer La porta & I'en- tr6e de La ville aux troupes Angloises, leur general voudra bien remettre quelques soldats pour Etre mis en sauve gardes Aux Eglises, couvents & principales habitations.
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
10. Art. 10.
accord^ — Qu'il sera Permis au Lieutenant de
Roy commandant dans La ville de Quebec d'Envoyer Informer M' Le Marquis de Vaudreuil Gouverneur Ge- neral de La reddition de La place, Com- m'aussi que Ce General pourra Ecrire au Ministre de france pour L'en In- former.
11. Art. 11.
accord^ — Que La presente Capitulation sera
Execut6e suivant sa forme & teneur sans qu'elle puisse Etre sujette k Inexecution sous pretexte de represailles ou D'vne Inexecution de Quelque Capitulation precedente.
Le present trait6 a 6t6 fait et arrets Double entre Nous au Camp devant Quebec le 18" Septembre 1759.
Cha: SAUNDERS. Geo: TOWNSHEND. DeRAMESAY.
CONSTITUTIONAL DOCUMENTS 5
SESSIONAL PAPER No. 18
(Translation)^
ARTICLES OF CAPITULATION
Demanded by Mr. de Ramsay, the King's Lieutenant, commanding the high and low Towns of Quebec, Chief of the military order of St. Lewis, to His Excellency the General of the troops of His Britannic Majesty. — "The Capitulation demanded on the part of the enemy, "and granted by their Excellencies Admiral Saunders and General "Townshend, &c., &c., &c., is in manner and form hereafter expressed."
I.
Mr. de Ramsay demands the honours of war for his Garrison, and that it shall be sent back to the army in safety, and by the shortest route, with arms, baggage, six pieces of brass cannon, two mortars or howitzers, and twelve rounds for each of them. — "The Garrison of the town, composed of "Land forces, marines and sailors, shall march out with their arms and "baggage, drums beating, matches lighted, with two pieces of french cannon, "and twelve rounds for each piece; and shall be embarked as conveniently "as possible, to be sent to the first port in France."
II.
That the inhabitants shall be preserved in the possession of their houses, goods, eifects, and privileges. — "Granted, upon their laying down their arms."
III.
That the inhabitants shall not be accountable for having carried arms in the defence of the town, for as much as they were compelled to it, and that the inhabitants of the colonies, of both crowns, equally serve as militia. — "Granted."
That the effects of the absent officers and citizens shall not be touched. -"Granted."
V.
That the inhabitants shall not be removed, nor obliged to quit their houses, until their condition shall be settled by their Britannic, and most Christian Majesties — "Granted."
' The French text of the Articles of Capitulation being the official one, there is no author- itative English version. The English text here given follows that contained in "Capitulations and Extracts of Treaties Relating to Canada." already cited, and which corresponds to the French text there given. This version, as regards the British concessions, is practically identical with that contained in Knox's "Historical Journal of the Campaigns in North America." Vol. II. p. 87, as also in the "Annual Register" for 1759, p. 247. The version contained in "Papers Relative to the Province of Quebec," of 1791, differs slightly from these.
6 , CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
VI
That the exercise of the Catholic, Apostolic and Roman religion shall be maintained; and that safeguards shall be granted to the houses of the clergy, and to the monasteries, particularly to his Lordship the Bishop of Quebec, who, animated with zeal for religion, and charity for the people of his diocese, desires to reside in it constantly, to exercise, freely and with that decency which his character and the sacred offices of the Roman religion require, his episcopal authority in the town of Quebec, whenever he shall think proper, until the possession of Canada shall be decided by a treaty between their most Christian and Britannic Majesties. — "The free exercise "of the Roman religion is granted, likewise safeguards to all religious persons, "as well as to the Bishop, who shall be at liberty to come and exercise, freely "and with decency, the functions of his office, whenever he shall think proper, "until the possession of Canada shall have been decided between their "Britannic and most Christian Majesties."
VII.
That the artillery and warlike stores shall be faithfully given up, and that an inventory of them shall be made out. — "Granted."
VIII.
That the sick and wounded, the commissaries, Chaplains, Physicians, Surgeons, Apothecaries, and other people employed in the service of the hospitals, shall be treated conformably to the cartel of the 6th of February, 1759, settled between their most Christian and Britannic Majesties. — "Granted."
IX.
That before delivering up the gate and the entrance of the town to the English troops, their General will be pleased to send some soldiers to be posted as safe-guards upon the churches, convents, and principal habita- tions.— "Gran ted . ' '
X.
That the King's Lieutenant, commanding in Quebec, shall be permitted to send information to the marquis de Vaudreuil, Governor General, of the reduction of the place, as also that the General may send advice thereof to the french Ministry. — "Granted."
XL
That the present capitulation shall be executed according to its form and tenour, without being subject, to non-execution under pretence of reprisals, or for the non-execution of any preceding capitulations. — "Granted."
CONSTITUTIONAL DOCUMENTS 7
SESSIONAL PAPER No. 18
Duplicates hereof taken and executed by, and between us, at the camp before Quebec, this 18th Day of September, 1759.
CHARLES SAUNDERS, GEORGE TOWNSHEND, DE RAMSAY.
ARTICLES OF CAPITULATION, MONTREAL.^
Copie:
Toute la Garnison de Montreal doit mettre bas les Armes, et ne
Articles de Capitulation Entre Son Excellence Le General Amherst Com- mandant en Chef Les Troupes & Forces de Sa Majesty Britanique En L'Ameri- que Septentrionale, Et Son Excellence Le M'" de Vaudreiiil, Grand Croix de L'Ordre Royal, et Militaire de S' Louis, Gouverneur et Lieutenant G6n6ral pour Le Roy en Canada.
Art: 1" Vingt quatre heures apres La Signa- ture de la prdsente Capitulation, Le
' The Articles of Capitulation of Montreal as here given, are taken from the copy enclosed in the despatch of General Amherst to Pitt, dated "Camp of Montreal," 8"" Sept., 1760, as contained in Vol. 93 of the papers relating to "America and the West Indies," in the Public Record Office. Another text is given in the "Capitulations and Extracts of Treaties Relating to Canada." 1797. In his despatch to Pitt, Gen. Amherst thus silludes to the circumstances of the capitulation; — "7"" in the morning two Officers came to an advanced Post with a Letter from the Marquis de Vaudreuil, referring me to what one of them, Le Colonel Bouguinville, had to say." (Proposing a truce for a month.) "The conversation ended with a Cessation of Arms 'till twelve o'clock, at which time the Proposals came. I returned mine, and wrote to the Marquis de Vaudreuil, this was followed by another letter from the Governour, I sent my Answer; I then received a Letter from Monsieur de Levis which I answered. The Troops lay on their Arms at Night, and soon after day I had a Letter from the Marquis de Vaudreuil, which I an- swered, and sent Major Abercrombie into Town, to bring me the Articles of Capitulation, signed by the Marquis de Vaudreuil of which I have .sent him a duplicate, signed by me. and Colonel Haldimand with the Grenadiers and Light Infantry of the Army has taken possession of a Port and will proceed tomorrow in fulfilling the Articles of Capitulation. • * * I enclose to you. Sir, a Copy of the Articles of Capitulation with Copys of all the Letters that have passed for your information of the whole Transaction."
An account of the proceedings connected with the Capitulation of Montreal, from the French side, is given in a document entitled "Suite de la Campagne en Canada"; 1760, in the "Collection de Documents Relatifs i I'Histoire de la Nouvelle-France." Quebec, 1885, vol. IV,. pp. 304-6. From this, among other French documents relative to this event, we learn that on the evening of Sept. 6th, the Marquis de Vaudreuil summoned the leading officers of the land and marine forces to meet at his quarters to discuss the general situation and consider terms of capitulation which had been drawn up and which were read by the Intendant Bigot. "The impossibility of any longer maintaining a successful resistance was generally acknowledged, and M. de Bou- gainville was commissioned to propose to General Amherst, on the morning of the 7th, a general cessation of hostilities, awaiting possible news of a peace between the two countries. But, should Amherst not agree, he was authorized to propose the terms of capitulation which had been read before the council of war. The 7th was occupied with these negotiations, the sub- mission of the French terms, and the reception of General Amherst's reply. During the evening of that day there took place a vigorous interchange of views verbal and written, between the Chevalier de Levis and his chief officers, on the one hand, and the Marquis de Vaudreuil. on the other, in which the officers strenuously objected to the conditions imposed by Amherst and ad- vocated a desperate resistance in the hope of securing better terms for the army. Vaudreuil, however, refused to sacrifice the general welfare ot the colony in a futile support of the profes- sional pride of the officers. Hence, notwithstanding his vigorous protests, Levis was ordered to submit to the terms pre.scribed by Amherst. Although Vaudreuil appears to have acted Jor the beat, his course was severely criticized by the French Court at the time.
CANADIAN A RCHI VES
Servira point pendant la presente Guerre ; im- mediatement apr^s la Signature de la pre- sente, les Troupes du Roy prendront posses- sion des Portes, et pos- teront les Gardes ne- cessaires pour main- tenir le bon Ordre dans La Ville.
Toutes ces Troupes ne doivent point servir pendant la presente Guerre, et mettront pareillement les Armes bas; le Reste est Ac- cord6.
Accords.
6-7 EDWARD VII. A. 1907
G6n6ral Anglois fera prendre par Les Troupes de Sa Majesty Britanique, possession des portes de La Ville de Montreal et La Garnison Angloise ne poura y Entrer qu'aprfes L'Evacuation des Troupes Francoises.
Art: 2 Les Troupes et les Milices qui seront en Garnison dans La Ville de Montreal, En Sortiront par la porte de avec
tous les honeurs de la Guerre, Six pieces de Canon, et Un Mortier, qui seront Charges dans Le Vaisseau ou Le Mar- quis de Vaudreiiil Embarquera, avec dix Coups k tirer par piece. II En sera Use de meme pour la Garnison des trois Rivieres pour les honeurs de la Guerre.
Art: 3 Les Troupes et Milices qui seront en Garnison dans le Fort de Jacques Car- tier, Et dans L'Isle S** Helene, & Autres Forts, seront traitt^e, de meme Et auront les memes honeurs; Et ces Troupes Se rendront a Montreal, ou aux 3 Rivieres, ou k Quebec, pour y Estre toutes Em- barqu^es pour le premier port de Mer en France, par le plus Court Chemin. Les Troupes qui sont dans nos postes Sitii^s sur Nos Frontieres, du Cost6 de L'Accadie, au Detroit, Michilimakinac, et Autres postes, joiiiront des memes honeurs et seront Traitt^es de meme.
Art: 4 Les Milices, apres Estre Sorties des Villes et des Forts et Postes Cydessus, retourneront Chez Elles, sans pouvoir Estre Inquiettees, Sous quelque pre- texte que ce soit, pour avoir port^ Les Armes.
J
CONSTITUTIONAL DOCUMENTS
SESSIONAL PAPER No. 18
Ces Troupes doivent comme les Autres, met- tre bas les Armes.
Refus6.
C'est tout ce qu'on peut demander sur Cette Article.
Les Malades et Bles- ses seront Trait6 de meme que Nos propres Gens.
Art: 5 Les Troupes qui Tiennent la Cam- pagne Leveront leur Camp, Marcheront, Tambour battant, Armes, bagages et avec leur Artillerie, pour Se joindre k La Garnison de Montreal, Et auront en tout le meme Traitement.
Art: 6 Les Sujets de Sa Majeste Britanique Et de Sa Majesty Tres Chretienne, Sol- dats, Miliciens, ou Matelots, qui auront D6sert6s, ofl Laiss6 Le Service de leur Souverain, et port6 Les Armes dans L'Amerique Septentrionale Seront de part et d'autre pardon6s de leur Crime; lis seront respectivement rendus k leur patrie; Sinon lis resteront chacun ou lis sont, sans qu'ils puissent Estre recher- ch6s ni Inquiettes.
Art: 7 Les Magazins, L'Artillerie, Fusils, Sabres, Munitions de Guerre et g6n6rale- ment tout ce qui apartient ^ S. M. T. C. Tant dans les Villes de Montreal et 3 Rivieres, que dans les Forts et Postes Mention^s en L'Article 3, Seront Livres par des Inventaires Exacts, aux Comis- saires qui seront pr6pos6s pxjur les r^gevoir au Nom de S.M.B. — II sera remis au M'' de Vaudreiiil des Expedi- tions en bonne forme des d: Inventaire.
Art: 8 Les Ofificiers, Soldats, Miliciens, Mate- lots, et Meme Les Sauvages detenus pour CausedeleursBlessures,oiiMaladie, tant dans les hopitaux que dans les Maisons particulieres, Jouiront des pri- vileges du Cartel, et Traitt6s Cons^qua- ment.
10
CANADIAN ARCHIVES
Le premier Refus6 — II n'y a point eu des Cruautes Commises par les Sauvages de N6tre Armte: Et le bon Ordre sera main- ten u.
Repondu par L'Ar- ticle precedent.
Le Marquis de Vau- dreuil, Et tous ces Mes- sieurs seront Maitres de leurs Maisons, et s'Embarqueront des que les Vaisseaux du Roy seront prets k faire Voile pour I'Eu- rope: Et on leur ac- cordera toutes les Com- modit^s qu'on pourra.
Accords ; Except^ les Archives qui pouront Etre necessaires pour
6-7 EDWARD VII., A. 1907
Art: 9 Le G6n6ral Anglois S'Engagera de renvoyer chez Eux Les Sauvages Indiens, Et Moraigans qui font Nombre de Ses Arm6es, d'abord apr6s La Signature de La presente Capitulation, Et Cependant pour prdvenir tous d^sordrfs de la part de Ceux qui ne Seroient i)as partis, II sera donn6 par le G6n6ral des Sauve- Gardcs aux personnes qui En deman- deront, tant En Ville que dans les Cam- pagnes.
Art: 10 Le G6n6ral de Sa Majeste Britanique garentira tous desordres de la part de Ses Troupes; Les assujettira k payer les domages qu'Elles pouroient faire, tant dans les Villes que dans les Campagnes.
Art: 11 Le G6n6ral Anglois ne poura obliger Le M'' de Vaudreiiil de Sortir de la Ville de Montreal avant le Et
on ne poura Loger personne dans Son h6tel Jusques k Son depart M. Le Ch" Levis Comandant Les Troupes de Terre; Les Ofificiers principaux, Et Majors des Troupes de Terre et de la Colonic, Les Ingenieurs, Officiers d'Ar- tillerie, et Comissaire des Guerres, res- teront pareillement a Montreal jusqu'au d. Jour, Et y Conserveront leurs Loge- mens. II En Sera Us6 de meme a L'Egard de M. Bigot Intendant, des Comissaires de La Marine, Et Officiers de plume dont mon d: S. Bigot aura besoin : Et on ne poura Egalement Loger personne k L'Intendance avant Le de- part de Cet Intendant.
Art: 12 II sera destine pour le passage en droiture au premier port de Mer en france, du M'' de Vaudreiiil, Le Vais-
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
11
le Gouvernement du pais.
Ce que Le Roy pou- roit avoir fait k ce Su- jet, sera Ob^i.
Accord^ : Except^ que M. Le M'» de Vaudreiiil, et tous les Officiers de quelque Rang qu'ils puissent 6tre Nous remettrons de bonne foy toutes les Cartes et plans du Pais.
Accord^; avec la mSme reserve que par
seau Le plus Comode qui Se trouvera: II y sera pratique Les Logemens Neces- saires pour Lui, Mad* La Marquise de Vaudreiiil, M. de Rigaud, Gouverneur de Montreal, Et La Suitte de ce G6n6ral. Ce Vaisseau sera pourvfl de Subsistances Convenables aux depens de Sa M** Britanique, Et Le M'" de Vaudreiiil Emportera avec Lui Ses papiers, Sans qu'ils puissent Estre Visites, Et II Em- barquera Ses Equipages, Vaisselle, ba- gages, Et Ceux de Sa Suitte. —
Art: 13 Si avant 06 apr^s L'Embarquement du M'" de Vaudreiiil, La Nouvelle de la paix arrivoit, Et que par Le Traittd Le Canada resta k Sa M« T. C. Le M'" de Vaudreiiil reviendroit h Quebec, ou k Montreal: — Toutes Choses rentreroient dans leur premier Estat sous la domina- tion de Sa M'* T. C. Et La pr^sente Capitulation deviendroit Nulle et sans Effet quelconques.
Art: 14 II sera destin^ deux Vaisseaux pour le passage en France de M. Le Ch°' de Levis, des Officiers principaux, Et Estat Major G6n6ral des Troupes de Terre; Ingenieurs, Officiers d'Artillerie, Et Gens qui sont k leur Suitte. Ces Vaisseaux seront Egalement pourvfls de Subsis- ances; II y sera pratiqu6 Les Logemens necesaires. Ces Officiers pouront Em- porter leurs papiers, qui ne Seront point Visites; Leurs Equipages et Bagages. — Ceux de Ces Officiers qui Seront Marias auront La Liberty d'Emmener avec Eux leurs Femmes et Enfans, Et la Subsis- tance leur Sera fournie.
Art: 15. II En Sera de meme destin6 Un pour Le passage de M' Bigot Intendant et de
12
CANADIAN ARCHIVE
I'Article precedent.
Accord^ — .
Accord^ — .
6-7 EDWARD VII., A. 1907
Sa Suitte, dans lequel Vaisseau, II sera fait les am6nagemens Convenables, pour lui, Et les personnes qu'il Emmenera. II y Embarquera Egalement Ses papiers, que ne Seront point Visites, Ses Equi- pages, Vaisselle, et bagages, et Ceux de Sa Suitte. Ce Vaisseau Sera pourvfl de Subsistances Comme II est dit Cy devant.
Art: 16 Le G6n^ral Anglois fera aussi fournir pour M. de Longueiiil Gouverneur des 3. Rivieres, pour les Estats Majors de La Colonie, Et Les Comissaires de La Marine, Les Vaisseaux necessaires pour se rendre En france, Et le plus Comode- ment qu'il Sera possible; lis pouront y Embarquer Leurs Families Domestiques, bagages, et Equipages; Et la Subsis- tance leur Sera fournie pendant la Traver- s6e sur un pied Convenable, aux d^pens de Sa M" Britanique.
Art: 17 Les Officiers et Soldats, Tant des Troupes de Terre, que de La Colonie, ainsi que les Officiers Marins et Matelots, qui se trouveront dans la Colonie, seront aussi Embarques pour France, dans les Vaisseaux qui leur Seront Destinfe, En Nombre Sufisant, et Le plus Comode- ment que faire se poura . . . Les Officiers de Troupes et Marins, qui seront maries pouront Emmener avec Eux leurs Fa- milies; Et tous auront La Liberte d'Em- barquer leurs Domestiques et Bagages, Quant aux Soldats et Matelots, Ceux qui Seront Maries pouront Emmener avec Eux Leurs Femmes et Enfans, Et tous Embarqueront leurs Havre Sacs et Ba- gages.— II Sera Embarque dans ces Vais- seaux Les Subsistances Convenables et sufisantes aux d6pens de Sa M'^ Brita- nique.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
13
Accord^ — .
Accord^ — .
Accord^ — .
Accord^, mais f'ils ont des papiers qui concernent le Gouver- nement du pais, lis doivent Nous les re- mettre.
Art: 18 Les Officiers, Soldats, et tous Ceux qui sont k la Suitte des Troupes, qui auront leurs Bagages dans les Campagnes, pouront les Envoyer Chercher avant leur depart. Sans qu'il leur Soit fait aucun Tort, ni Empeschement.
Art: 19
II Sera fourni par le G6n6ral Anglois un Batiment d'hopital pour Ceux des Offi- ciers, Soldats & Matelots, blesses ou Malades, qui seront En Estat d'Estre transport's En france, Et la Subsistance Leur Sera Egalement fournie aux d'pens de Sa M'* Britanique:
II En Sera Use de meme h. L'Egard des Autres Officiers, Soldats, et Matelots, bless6s, ou Malades, aussitost qu'ils Seront r'tablis . . . Les Uns et les Autres pouront Emmener Leurs Femmes, En- fans, Domestiques, et Bagages; Et les d: Soldats et Matelots ne pouront Etre Sollicit6s, ni forces h prendre parti dans Le Service de Sa M'^ Britanique.
Art: 20 II Sera Laiss6 un Comissaire, et un Ecrivain de Roy pour avoir Soin des hopitaux, et Veiller k tout ce qui aura raport au Service de Sa M'* Trfes Chre- tienne.
Art: 21 Le General Anglois fera Egalement fournir des Vaisseaux pour Le passage en france des Officiers du Conseil Superieur, de Justice, police, de L'Ami- raut6, et tous Autres Officiers ayant Comissions oii Brevets de Sa M" Tres Chretienne, pour Eux, leurs Families, Domestiques, et Equipages, Comme pour les Autres Officiers: Et La Subsistance leur Sera fournie de meme aux d'pens de Sa M'^ Britanique.
14
CANADIAN ARCHIVES
Tous Ceux dont les Affaires particulieres exigent qu'ils restent dans le pais, et qui en ont la permission de M. Vaudreiiil, seront per- mis de rester Jusqu'a ce que leurs Affaires soient termin^es.
Accord6.
Tout ce qui se trouve dans les Magazins des- tines k L' Usage des Troupes, doit 6tre de- livr6 au Commissaire Anglois pour les Trou- pes du Roy.
6-7 EDWARD VII., 1907
II leur Sera Cependant Libre de rester dans la Colonie, S'ils le Jugent apropos, pour y arranger Leurs Affaires, ou de Se retirer En france, quand bon Leur Semblera.
Art: 22 S'il y a des Officiers Militaires dont les Affaires Exigent leur presence dans la Colonie Jusqu'a L'Annte prochaine, lis pouront y rester, apr6s En avoir eu La permission du M'' de Vaudreuil, Et sans qu'ils puissent Estre r6put6s Prisoniers de Guerre.
Art: 23 II sera permis au Munitionaire des Vivres du Roy, de demeurer en Canada Jusqu'a L'Ann6e prochaine pour Estre En Estat de faire face aux dettes qu'il a Contract^es dans la Colonie, relative- ment k Ses fournitures; Si n6antmoins II pr^fere de passer En france cette Annee II sera oblige de Laisser Jusques k L'Ann6e prochaine Une personne pour faire Ses Affaires. Ce particulier Con- servera et poura Emporter tous Ses papiers. Sans Estre Visit^s . . . Ses Comis auront La Libert6 de rester dans La Colonie, ou de passer en France, Et dans ce dernier Cas, Le passage et la Subsis- tance leur Seront Accord6s Sur les Vais- seaux de Sa M" Britanique, pour Eux, Leurs families, et leurs bagages.
Art: 24 Les Vivres et Autres aprivisionement qui se trouveront En Nature dans les Magasins du Munitionaire, Tant dans les Villes de Montreal, et des 3. Rivieres que dans les Campagnes, Lui Seront Conserves, Les d: Vivres Lui aparte- nant et Non au Roy, Et II lui Sera
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
15
Accord^.
Accord^ pour ce qui peut appartenir k la Compagnie ou aux par- ticuliers, mais Si Sa Majesty Tres Chretien- ne y a aucune part, Elle doit Stre au profit du Roy.
Accord^, pour le Li- bre Exercise de leur Religion. L'Obligation de payer la Dixme aux Pretres, dependra de la Volont6 du Roy.
Loisible de les Vendre aux frangois ou aux Anglois.
Art: 25 Le passage En france Sera Egalement accord^ sur les Vaisseaux de Sa M" Britanique, ainsi que la Subsistance, k Ceux des Officiers de la Compagnie des Indes qui Voudront y passer, Et lis Emmeneront leurs families domestiques et bagages . . . Sera permis k L'Agent principal de la d«: Compagnie, Supos6 qu'il Voulut passer en france de Laisser telle personne qu'il Jugera apropos Jusques k L'Ann6e prochaine, pour terminer les Affaires de la d". Comp'»: et faire le recouvrement des Sommes qui lui sont dues. L'Agent principal Conservera tous les Papiers de la d* Compagnie, Et lis ne pouront Estre Visites.
Art: 26 Cette Compagnie Sera mainteniie dans la propriety des Ecarlatines et Castors qu'Elle peut Avoir dans La Ville de Montreal; II n'y Sera point touchy. Sous quelque pr^texte que ce Soit, Et II Sera donnd k L'Agent principal les facilit^s Necessaires pour faire passer Cette Ann6e En france Ses Castors Sur les Vaisseaux de Sa M" Britanique, En payant le fret sur le pied, que les Anglois le payeroient.
Art: 27 Le Libre Exercice de la Religion Ca- tolique, Apostolique et Romaine Subsis- tera En Son En tier; En Sorte que tous Les Estats et les peuples des Villes et des Campagnes, Lieux et postes Eloign6s pouront Continuer de S'assembler dans les Eglises, et de frequenter les Sacre- mens, Comme Cy devant. Sans Estre
16
CANADIAN ARCHIVES
Accord^ —
Accord^, Except^ ce qui regarde 1' Article Suivant.
Refusd.-
C'est Article est com- pris sous le precedent.
6-7 EDWARD VII., A. 1907
Inquietds, En Aucune Maniere directe- ment, ni Indirectement.
Ces peuples seront Obliges par le Gouvernement Anglois k payer aux prestres qui en prendront Soin, Les Dixmes, et tous les droits qu'ils avoient Coutume de paydr sous le Gouverne- ment de Sa M" tres Chretienne.
Art: 28 Le Chapitre, Les Prestres, Curds et Missionaires, Continueront avec Entiere Libertd leurs Exercises et fonctions Curiales dans les paroisses des Villes et des Campagnes.
Art: 29 Les Grands Vicaires Nomds par le Chapitre pour administrer le Dioceze pendant la Vacance du Siege Episcopal, pouront demeurer dans les Villes ou paroisses des Campagnes, Suivant qu'ils le Jugeront a propos. lis pouront En tout Temps Visiter les differentes parois- ses du Dioceze, avec les Ceremonies Ordinaires, Et Exercer toute La Juris- diction qu'ils Exergoient sous la domi- nation frangoise. — lis Joiiiront des mt- mes droits En Cas de Mort du futur Evesque, dont II sera parld k L'Article Suivant.
Art: 30 Si par Le Traittd de paix, Le Canada restoit au pouvoir de Sa M" Britanique, Sa M'^ Tres Chretieiie Continueroit a Nomer L'Evesque de La Colonic, qui Seroit toujours de la Comunion Romaine, et Sous L'Autoritd duquel les peuples Exerceroient La Religion Romaine.
Art: 31 Poura Le Seigneur Evesque Etablir dans le besoin de Nouvelles paroisses, Et pourvoir au rdtablissement de Sa
CONSTITUTIONAL DOCUMENTS
\1
SESSIONAL PAPER No. 18
Accordd.
Refus6 Jusqu'a ce que le plaisir du Roy soit Connu.
Accord^.
Cathedrale et de Son Palais Episcopal; Et II Aura En Attendant la Libert^ de demeurer dans les Villes, ou paroisses, Comme II le Jugera Apropos. — II poura Visiter son Dioceze avec les Ceremonies Ordinaire, Et Exercer toute La Juris- diction que son predecesseur Exergoit sous la domination francoise; sauf a Exiger de Lui Le Serment de fidelit6, ou promesse de ne rien faire, ni rien dire Contre Le Service de Sa M" Britanique.
Art: 32 Les Comunautds de filles Seront Con- serv^es dans leurs Constitutions et pri- vileges. Elles Continiieront d'Observer leurs regies — Elles seront Exemptes du Logement de Gens de Guerre, Et II Sera fait deffenses de Les Troubler dans Les Exercices de piet6 qu'Elles pratiguent, ni d'Entrer chez Elles; On leur donnera meme des Sauves Gardes, Si Elles En demandent.
Art: 33 Le precedent Article Sera pareille- ment Execute h L'Egard des Comunaut6s des Jesuites et Recolets, et de la Maison des prestres de S' Sulpice k Montreal; Ces derniers et Les Jesuites Conser- veront Le droit qu'ils ont de Nomer k Certalnes Cures et Missions, Comme Cy devant.
Art: 34
Toutes les Comunaut^s, Et tous les prestres Conserveront Leurs Meubles, La propriety, Et L'Usufruit des Sei- gneuries, Et Autres biens que les Uns et les Autres possedent dans la Colonic, de quelque Nature qu'ils Soient, Et Les d: biens seront Conserves dans leurs privileges, droits, honeurs, et Exemp- tions.
18
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
lis seront les maitres de disposer de leurs biens, et d'en passer le produit, ainsi que leurs personnes, et tout ce qui leur appartient, En france.
Accord6.
Accordd comme par L'Article 26.
Art: 35
Si Les Chanoines, Prestres, Mission- aires, Les Prestres du Seminaire des Missions Etrangeres Et de S* Sulpice, ainsi que les Jesuites et Les Recolets, Veulent passer En france, Le passage leur sera Accord6 sur les Vaisseaux de Sa Majest6 Britanique; Et Tons auront la Libert^ de Vendre, En total ou partie, Les biensfonds, Et Mobiliers qu'ils possedent dans la Colonie, soit aux fran- cois, ou aux Anglois, sans que le Gouver- nement Britanique puisse y mettre le moindre Empeschement ni Obstacle.
lis pouront Emporter avec Eux, ou faire passer En france Le produit de quelque Nature qu'il soit, des d* biens Vendus, en payant Le fret, Comme II est dit k L'Article 26.
Et Ceux d'Entre Ces Prestres qui Voudront passer Cette Ann6e, Seront Nouris pendant La Travers^e aux d€- pens de Sa M" Britanique, Et pouront Emporter avec Eux leurs bagages.
Art: 36 Si par Le Traitt6 de Paix, Le Canada reste k Sa M** Britanique, Tous Les Francois, Canadiens, Accadiens, Comer- gant, et Autres personnes qui Voudront se retirer En france. En Auront la per- mission du G6n6ral Anglois qui leur procurera le passage. — Et N^antmoins Si d'icy k Cette decision II Se trouvoit des comergans frangois oii Canadiens, ou Autres personnes qui Voulussent passer En france, Le G6n6ral Anglois Leur En donneroit Egalement la permis- sion Les Uns et les Autres Emmeneront avec Eux leurs families domestiques et bagages.
Art: 37 Les Seigneurs de Terres, Les Officiers Militaires et de Justice, Les Canadiens,
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
19
C'est au Roy k dis- poser de Ses Anciens Sujets: en attendant lis Jouiront des m6mes privileges que les Capa- diens.
Accord^, Except^ k regard des Acadiens.
Tant des Villes que des Campagnes, Les francois Etablis ou Comergant dans toute I'Etendue de La Colonic de Can- ada, Et Toutes Autres personnes que ce puisse Estre, Coriserveront L'Entiere paisible propriet6 et possession de leurs biens, Seigneuriaux et Roturiers Meubles et Immeubles, Marchandises, Pelleteries, et Autres Effets, mSme de Leurs bati- mens de Mer; II n'y Sera point touchd ni fait le moindre domage, sous quelque pr^texte que ce Soit: — II leur Sera Libre de les Conserver, Loiier, Vendre, Soit aux Frangois, ou aux Anglois, d'En Emporter Le produit En Lettres de Change, pelleteries Especes Sonantes, ou autres retours, Lorsqu'ils Jugeront k propos de passer en franca, En payant le fret, Comme k L'Article 26.
lis Jouiront aussi des pelleteries qui sont dans les postes d'En haut, & qui leur apartiennent, Et qui peuvent mSme estre En Chemin de se rendre k Mon- treal. Et k cet Effet, II leur Sera permis d'Envoyer d^s cette Ann^e, ou la pro- chaine, des Canots Equip6s pour Cher- cher Celles de ces pelleteries qui auront rest^es dans ces postes.
Art: 38 Tous Les peuples Sortis de L'Accadie qui se trouveront en Canada, y Compris les frontieres du Canada du Cost6 de L'Accadie, auront Le mSme Traitement que Les Canadiens, et Jouiront des mSmes privileges qu'Eux.
Art: 39 Aucuns Canadiens, Accadiens, ni Fran- cois, de Ceux qui sont presentement en Canada, et sur les frontieres de La Co- lonie du Cost6 de L'Accadie du Detroit, Michilimakinac, et Autres Lieux et Postes des pays d'Enhaut, ni les Soldats Marias et non Marias restant en Canada,
2i
20
CANADIAN ARCHIVES
Accord6, k la reserve du dernier Article qui a deji 6t6 refus6.
lis deviennent Sujets du Roy.
R6pondu par les Ar- ticles precedents, et particulierement par le dernier.
6-7 EDWARD VII., A. 1907
ne pouront Estre port^s, ni Transmigr6s dans les Colonies Angloises, ni en L'Ancienne Angleterre, Et lis ne pou- ront Estre recherch6s pour avoir pris Les Armes.
Art: 40 Les Sauvages ou Indiens Allies de Sa M** tres Chretienne Seront maintenus dans Les Terres qu'ils habitent, S'ils Veulent y rester; lis ne pouront Estre Inquiet6s Sous quelque pr6texte que ce puisse Estre, pour avoir pris les Armes et Servi Sa Ma'* tr^s Chretienne. — lis auront Comme les Frangois, la Libert^ de Religion et Conserveront leurs Missionaires. — II sera permis aux Vi- caires g6n6raux Actuels Et k L'Eveque, lorsque Le Siege Episcopal Sera rempli, de leur Envoyer de Nouveaux Mis- sionaires Lorsqu'ils Le Jugeront Neces- saire.
Art: 41 Les francois, Canadiens, Et Accadiens, qui resteront dans La Colonic, de quel- que Estat et Condition qu'ils Soient, ne Seront, ni ne pouront Estre forces a prendre les Armes Contre Sa M" tres Chretienne, ni Ses Allies, directe- ment, ni Indirectement, dans quelque Occasion que ce Soit. Le Gouverne- ment Britanique ne poura Exiger d'Eux qu'Une Exacte Neutrality.
Art: 42 Les francois et Canadiens Continiie- ront d'Estre Gouvern6s Suivant La Cou- tume de Paris et les Loix et Usages Etablis pour ce pays; Et lis ne pouront Estre Assujettis k d'Autres Impots qu'a Ceux qui Estoient Etablis sous la do- mination frangoise.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER. No. 18
21
Accord^ avec la re- serve ddja faite. —
II en est de meme de cet Article.
Accord6. —
Accord6. —
Art: 43 Les papiers du Gouvernement reste- ront sans Exception au pouvoir du M'' de Vaudreiiil, Et passeront en france avec lui. Ces papiers ne pouront Estre Visites sous quelque pr^texte que ce Soit.
Art: 44 Les papiers de L'Intendance, des Bureaux du Controle de La Marine, des Tr^soriers Ancien et Nouveau, des Magazins du Roy, du Bureau du Do- maine et des forges S' Maurice, resteront au pouvoir de M. Bigot Intendant, Et lis Seront Embarqu^s pour france dans le Vaisseau ou II passera. Ces papiers ne Seront fx)int Visites.
Art: 45 Les Registres et Autres papiers du Conseil Superieur de Quebec, de la Prevost6 Et Amiraut6 de la mSme Ville, Ceux des Jurisdictions Royales des trois Rivieres et de Montreal; Ceux des Jurisdictions Seigneuriales de la Colonic; Les Minutes des Actes des Notaires des Villes et des Campagnes, Et g^ndrale- ment Les Actes & Autres papiers qui peuvent Servir ci Justifier L'Estat et la fortune des Citoyens, resteront dans La Colonic dans les Greffes des Jurisdictions dont Ces papiers dependent.
Art: 46. Les Habitans et N6gocians Jouiront de tous les privileges du Comerce aux mSmes faveurs Et Conditions accord6es aux Sujets de Sa Majesty Britanique, tant dans les pays d'Enhaut que dans L'Interieur de La Colonic.
22
CANADIAN ARCHIVES
Accord^, Except 6 Ceux qui auront 6t6s faits Prisonniers.
Accord6. —
Accord^.
6-7 EDWARD VII., A. 1907
Art: 47 Les Negres et panis des deux S6xes, resteront En leur quality d'Esclaves, en la possession des frangois et Canadiens k qui lis apartiennent; II leur Sera libre de les garder k leur Service dans la Colonic, oil de les Vendre, Et lis pouront aussi Continuer h. les faire Elever dans la Religion Romaine. —
Art: 48 II Sera permis au M'" de Vaudreiiil, aux Officiers g6n6raux et Superieurs des Troupes de Terre; Aux Gouverneurs et Etats Majors des differentes places de la Colonic; Aux Officiers Militaires et de Justice, Et k toutes Autres personnes qui Sortiront de la Colonic, ou qui sont deja absents, de Nommer et Etablir des pro- cureurs pour Agir pour Eux Et en leur Nom, dans I'administration de leurs biens Meubles et Immeubles, Jusqu'a ce que la paix Soit faite. Et si par le Traitt6 des deux Courones Lc Canada ne rentre point Sous La domination fran- Qoise, Ces Officiers, ou Autres personnes, ou procurcurs pour Eux, auront L'agre- ment de Vendre leurs Scigneuries, Mai- sons, et Autres biensfonds, Leurs Meu- bles et Effets, &ca, d'En Emporter, ou faire passer Le produit en france, Soit En Lettres de Change, Especes Sonantes, pelleteries, ou Autres Retours, Comme II Est dit k L'Article 37.
Art: 49 Les habitans et Autres personnes qui auront Soufert quelque domage En leurs biens, Meubles ou Immeubles rest6s k Quebec Sous la foy de la Capitulation de Cette Ville, pouront faire leurs repre- sentations au Gouvernement Britanique qui leur rendra La Justice, qui leur Sera due Contre qui II apartiendra.
\
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
23
Accord^. —
On Aura Soin que les Sauvages, n'insulte aucun des Sujets de Sa Majesty Tr^s Chr6tien- ne.
Repondu par L'Ar- ticle 11«
Accord^.
Accord^
Art: 50 Et Dernier La presente Capitulation Sera In- violablement Execut^e En tous Ses Articles, de part et d'autre et de bonne foy, Non obstant toute Infraction et tout autre pr6texte par Raport aux pr6cedentes Capitulations, et Sans pou- voir Servir de r6pr6sailles.
Art: 51 Le G4n4ral Anglois S'Engagera, En Cas qu'il reste des Sauvages, apr^s La Redition de Cette Ville, k Emp^cher qu'ils n'Entrent dans Les Villes et qu'ils n'Insultent en Aucune Maniere, Les Sujets de Sa M" Tr^s Chr6tienne.
Art: 52 Les Troupes et Autres Sujets de Sa M" Tr^s Chretienne, qui doivent passer En france, Seront Embarqu^es Quinze Jours au plus tard, apr^s La Signature de la pr6sente Capitulation.
Art: S2) Les Troupes et Autres Sujets de Sa M'* tr^s Chretienne, qui devront passer En france, resteront Log^es, ou Camples dans la Ville de Montreal, Et Autres postes qu'Elles occupent pr6sentement Jusqu'au moment ou Elles seront Em- barqu^es pour le depart. — II sera n6ant- moins Accord6 des passeports k Ceux qui En auront besoin, pour Les differens Lieux de la Colonie pour Aller Vaquer h. leurs Affaires.
Art: 54 Tous les Officiers et Soldats des Troupes au Service de France qui Sont prisonniers k la Nouvelle Angleterre, et faits En Canada, Seront renvoy^s Le plustost qu'il Sera possible En france, ou II Sera Traitt6 de leur Rangon, ou Echange, Suivant Le Cartel; Et Si
24
CANADIAN ARCHIVES
Accord^ k la reserve de ce qui regarde les Acadiens.
Fait au Camp de- vant Montreal ce 8* Septembre 1760
6-7 EDWARD VII., 1907
quelques Uns de Ces Officiers avoient des Affaires En Canada, II leur Sera permis d'y Venir.
Art: 55 Quant aux Officiers de Milices aux Miliciens, et aux Accadiens qui sont prisoniers k la Nouvelle Angleterre, lis Seront renvoy6s Sur leurs Terres.
fait a Montreal le 8 Sep* 1760
VAUDREUIL.
JEFF: AMHERST endorsed : Copy —
Articles of Capitulation — Granted to the Marquis de Vaudreiiil. — 8"" Sep' 1760.
CONSTITUTIONAL DOCUMENTS 25
SESSIONAL PAPER No. 18
{Xranslation.y
ARTICLES OF CAPITULATION
Between their Excellencies Major GENERAL AMHERST, Commander in Chief of his Britannic Majesty's troops and forces in North-America, on the one part, and the Marquis de Vaudreuil, &c. Governor and Lieut- tenant-General for the King in Canada, on the other.
Article 1st.
Twenty-four hours after the signing of the present capitulation, the British General shall cause the troops of his Britannic Majesty to take pos- session of the Gates of the town of Montreal; and the British Garrison shall not enter the place till after the French troops shall have evacuated it. — "The whole Garrison of Montreal must lay down their arms, and shall "not serve during the present war. Immediately after the signing of the "present capitulation, the King's troops shall take possession of the gates, "and shall post the Guards necessary to preserve good order in the town."
Article I Id.
The troops and the militia, who are in Garrison in the town of Mont- real, shall go out by the gate of Quebec, with all the honours of war, six pieces of cannon and one mortar, which shall be put on board the vessel where the Marquis de Vaudreuil shall embark, with ten rounds for each piece; and the same shall be granted to the Garrison of the Three Rivers, as to the honours of war. — "Referred to the next article."
Article IIId.
The troops and militia, who are in Garrison in the Fort of Jacques Cartier, and in the Island of St. Helen, and other forts, shall be treated in the same manner, and shall have the same honours; and these troops shall go to Montreal, or the Three Rivers or Quebec; to be there embarked for the first sea port in France, by the shortest way. The troops, who are in our posts, situated on our frontiers, on the side of Acadia, at Detroit, Michilimaquinac, and other posts, shall enjoy the same honours, and be treated in the same manner. — "All these troops are not to serve during the "present war, and shall likewise lay down their arms, the rest is granted."
Article IVth The Militia after evacuating the above towns, forts and posts, shall return to their habitations, without being molested on any pretence what- ever, on account of their having carried arms. — "Granted."
' As in the case of the Articles of Capitulation of Quebec, the English version of the Articles of Capitulation of Montreal, here given, follows that in "Capitulations and Extracts of Treaties Relating to Canada," 1797. Other versions with slight variations are to be found in Knox's "Journal" Vol. II., p. 423, in "Documents Relative to the Colonial History of the State of New York," Vol. X., p. 1107, and in the "Annual Register" for 1760, p. 222,
26 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Article Vth
The troops, who keep the field, shall raise their camp, drums beating, with their arms, bagage and artillery, to join the garrison of Montreal, arid shall be treated in every respect the same. — "These troops, as well as the "others, must lay down their arms."
Article VIth
The Subjects of his Britannic Majesty, and of his most Christian Ma- jesty, Soldiers, Militia or Seamen, who shall have deserted or left the service of their Sovereign, and carried arms in North -America, shall be, on both sides pardoned for their crime; they shall be respectively returned to their country; if not, each shall remain where he is without being sought after or molested. — "Refused."
Article VII.
The Magazines, the artillery, firelocks, sabres, ammunition of war, and, in general every thing that belongs to his most Christian Majesty, as well in the towns of Montreal and Three Rivers, as in the forts and post mentioned in the Third article shall be delivered up, according to exact Inventories, to the commissaries who shall be appointed to receive the same in the name of his Britannic Majesty. Duplicates of the said Inventories shall be given to the Marquis de Vaudreuil. — "This is every thing that can "be asked on this article."
Article VIII.
The Officers, Soldiers, Militia*, Seamen and even the Indians, detained on account of their wounds or sickness, as well as in the hospital, as in private houses, shall enjoy the privileges of the cartel, and be treated accordingly. — "The sick and wounded shall be treated the same as our own people."
Article IX
The British General shall engage to send back, to their own homfes, the Indians, and Moraignans, who make part of his armies, immediately after the signing of the present capitulation, and, in the mean time, the better to prevent all disorders on the part of those who may not be gone away, the said Generals shall give safe-guards to such persons as shall desire them, as well in the town as in the country. "The first part refused." — "There "never have been any cruelties committed by the Indians of our army: "and good order shall be preserved."
Article X
His Britannic Majesty's General shall be answerable for all disorders on the part of his troops, and shall oblige them to pay the Damages they
CONSTITUTIONAL DOCUMENTS 27
SESSIONAL PAPER No. 18
may do, as well in the towns as in the country. — "Answered by the pre- "ceding article."
Article XI
The British General shall not oblige the Marquis de Vaudreuil to leave
the town of Montreal before and no person shall be
quartered in his house till he is gone. The Chevalier de Levis, Commander of the land forces and colony troops, the Engineers, Officers of the Artillery, and Commissary of war, shall also remain at Montreal till the said day, and shall keep their lodgings. The same shall be observed with regard to M. Bigot, Intendant, the Commissaries of Marines and writers, whom the said M. Bigot shall have occasion for, and no person shall be lodged at the Intendant's house before he shall take his departure. — "The Marquis de Vaudreuil, and all these gentlemen, shall be masters of their houses, and "shall embark, when the King's ship shall be ready to sail for Europe; "and all possible conveniences shall be granted them."
Article XII
The most convenient vessel that can be found shall be appointed to carry the Marquis de Vaudreuil, M. de Rigaud, the Governor of Montreal, and the suite of this General, by the straitest passage to the first sea port in France; and every necessary accommodation shall be made for them. This vessel shall be properly victualled at the expence of his Britannic Majesty: and the Marquis de Vaudreuil shall take with him his papers, without their being examined, and his equipages, plate, baggage, and also those of his retinue. — "Granted, except the archives which shall be necessary for the Government of the country."
I
Article XIII
If before, or after, the embarkation of the Marquis de Vaudreuil, news of Peace should arrive, and, that by treaty, Canada should remain to his most Christian Majesty, the Marquis de Vaudreuil shall return to Quebec or Montreal; every thing shall return to its former state under the Dominion of his most Christian Majesty, and the present capitulation shall become null and of no effect. — "Whatever the King may have done, "on this subject, shall be obeyed."
Article XIV
Two ships will be appointed to carry to France, le Chevalier de Levis,
, the principal officers, and the staff of the Land forces, the Engineers, officers
I of Artillery, and their domestics. These vessels shall likewise be victualled,
and the necessary accommodation provided in them. The said officers
shall take with them their papers, without being examined, and also,
28 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
their equipages and bagage. Such of the said officers as shall be married, shall have liberty to take with them their wives and children, who shall also be victualled.— Granted, "except that the Marquis de Vaudreuil and all "the officers, of whatever rank they may be, shall faithfully deliver to us "all the charts and plans of the country."
Article XV
A vessel shall also be appointed for the passage of Mr. Bigot, the Intendant, with his suite; in which vessel the proper accommodation shall be made for him, and the persons he shall take with him: he shall likewise embark with him his papers, which shall not be examined: his equipages, plate, baggage and those of his suite: this vessel shall be victualled as be- fore mentioned. — "Granted, with the same reserve, as in the preceding "article."
Article XVI
The British General shall also order the necessary and most convenient vessels to carry to France M. de Longueuil, Governor of Trois Rivieres, the staff of the colony, and the Commissary of the Marine; they shall embark therein their families, servants, baggage and equipages, and they shall be properly victualled, during the passage, at the expence of his Britannic Majesty. — "Granted."
Article XVII
The officers and soldiers, as well as of the Land-forces, as of the colony, ^ and also the Marine Officers, and Seamen, who are in the colony, shall be likewise embarked for France, and sufficient and convenient vessels shall be appointed for them. The Land and sea officers, who shall be married, shall take with them their families, and all of them shall have liberty to embark their servants and baggage. As to the soldiers and seamen, those who are married shall take with them their wives and children, and all of them shall embark their haversacks and baggage; these vessels shall be properly and sufficiently victualled at the expence of his Britannic Majesty. —"Granted."
Article XVIII
The officers, soldiers and the followers of the troops, who shall have their baggage in the fields, may send for it before they depart, without any hindrance or molestation. — "Granted."
Article XIX
An hospital ship shall be provided by the British General, for such of the wounded and sick officers, soldiers and seamen as shall be in a con-
CONSTITUTIONAL DOCUMENTS 29
SESSIONAL PAPER No. 18
dition to be carried to France, and shall likewise be victualled at the expence of his Britannic Majesty. It shall be the same with regard to the other wounded and sick officers, soldiers and sailors, as soon as they shall be recovered. They shall have liberty to carry with them their wives, children, servants and baggage ; and the said soldiers and sailors shall not be solicited nor forced to enter into the service of his Britannic Majesty. — "Granted."
Article XX
A Commissary and one of the King's Writers, shall be left to take care of the hospitals, and whatever may relate to the service of his most Christian Majesty. — "Granted."
Article XXI
The British General shall also provide ships for carrying to France the officers of the supreme council, of justice, police, admiralty, and all other officers, having commissions or brevets from his most Christian Majesty, for them, their families, servants and equipages, as well as for the other officers: and they shall likewise be victualled at the expence of his Britannic Majesty. They shall, however, be at liberty to stay in the colony, if they think proper to settle their affairs, or to withdraw to France whenever they think fit. — "Granted, but if they have papers relating to the Govem- "ment of the country, they are to be delivered up to us."
Article XXII
If there are any Military officers, whose affairs should require their presence in the colony till the next year, they shall have liberty to stay in it, after having obtained the permission of the Marquis de Vaudreuil for that purpose, and without being reputed prisoners of war. — "All those whose "private affairs shall require their stay in the country, and who shall have "the Marquis de Vaudreuil's leave for so doing, shall be allowed to remain Iflkill their affairs are settled." ».
^^p The Commissary for the King's provisions shall be at liberty to stay m Canada till next year, in order to be enabled to answer the debts he has contracted in the colony, on account of what he has furnished; but, if he should prefer to go to France this year, he shall be obliged to leave, till next year, a person to transact his business. This private person shall preserve, and have liberty to carry off, all his papers, without being inspected. His clerks shall have leave to stay in the colony or go to France; and in this last case, a passage and subsistence, shall be allowed them on board the ships of his Britannic Majesty, for them, their families, and their baggage. — ' 'Gran ted . "
Article XXIII
30 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Article XXIV
The provisions and other kind of stores, which shall be found in the Magazines of the commissary, as well in the towns of Montreal, and of the Three-Rivers, as in the country, shall be preserved to him, the said provi- sions belonging to him, and not to the King; and he shall be at liberty to sell them to the French and English. — "Everything that is actually in the "magazines, destined for the use of the troops, is to be delivered to the "British commissary, for the King's forces."
Article XXV
A passage to France shall likewise be granted, on board of his Britannic Majesty's ships, as well as victuals to such officers of the India company as shall be willing to go thither, and they shall take with them their families, servants and baggage. The Chief agent of the said Company, in case he should chuse to go to France, shall be allowed to leave such person as he shall think proper till next year, to settle the affairs of the said Company, and to recover such sums as are due to them. The said chief agent shall keep possession of all the papers belonging to the said company, and they shall not be liable to inspection. — "Granted."
Article XXVI
The said company shall be maintained in the property of the Ecarla- tines and Castors, which they may have in the town of Montreal ; they shall not be touched under any pretence whatever, and the necessary Licences shall be given to the Chief Agent, to send this year his Castors to France, on Board his Britannic Majesty's ships, paying the freight on the same footing as the British would pay it. — "Granted, with regard to what may "belong to the company, or to private persons; but if his Most Christian "Majesty has any share in it, that must become the property of the King."
Article XXVII
The free exercise of the Catholic, Apostolic, and Roman Religion, shall subsist entire, in such manner that all the states and the people of the Towns and countries, places and distant posts, shall continue to assemble in the churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly. These people shall be obliged, by the English Government, to pay their Priests the tithes, and all the taxes they were used to pay under the Government of his most Christian Majesty. — "Granted, as to the free exercise of their religion, the "obligation of paying the tithes to the Priests will depend on the King's "pleasure."
^B CONSTITUTIONAL DOCUMENTS 31
SESSIONAL PAPER No. 18
Article XXVIII
The Chapter, Priests, Curates and Missionaries shall continue, with an entire liberty, their exercise and functions of cures, in the parishes of the towns and countries. — "Granted."
m
Article XXIX
The Grand Vicars, named by the Chapter to administer to the diocese uring the vacancy of the Episcopal see, shall have liberty to dwell in the towns or country parishes, as they shall think proper. They shall at all times be free to visit the different parishes of the Diocese with the ordinary ceremonies, and exercise all the jurisdiction they exercised under the French Dominion. They shall enjoy the same rights in case of the death of the future Bishop, of which mention will be made in the following article. — "Granted, except what regards the following article."
Article XXX
If by the treaty of peace, Canada should remain in the power of his Britannic Majesty, his most Christian Majesty shall continue to name the Bishop of the colony, who shall always be of the Roman communion, and
Inder whose authority the people shall exercise the Roman Religion. — Refused."
Article XXXI
<
The Bishop shall, in case of need, establish new parishes, and provide br the rebuilding of his Cathedral and his Episcopal palace; and, in the ean time, he shall have the liberty to dwell in the towns or parishes, as e shall judge proper. He shall be at liberty to visit his Diocese with the ordinary ceremonies, and exercise all the jurisdiction which his predecessor exercised under the French Dominion, save that an oath of fidelity, or a promise to do nothing contrary to his Britannic Majesty's service, may be required of him. — "This article is comprised under the foregoing —
Article XXXII
The communities of Nuns shall be preserved in their constitutions and rivileges; they shall continue to observe their rules, they shall be exempted 3m lodging any military; and it shall be forbid to molest them in their eligious exercises, or to enter their monasteries: safe-guards shall even be Jven them, if they desire them. — "Granted."
Article XXXIII
The preceding article shall likewise be executed, with regard to the smmunities of Jesuits and Recollects and of the house of the priests of
32 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
St. Sulpice at Montreal; these last, and the Jesuits, shall preserve their right to nominate to certain curacies and missions, as heretofore. — "Re- "fused till the King's pleasure be known."
Article XXXIV
All the communities, and all the priests, shall preserve their moveables, the property and revenues of the Seignories and other estates, which they possess in the colony, of what nature soever they be; and the same estates shall be preserved in their privileges, rights, honours, and exemptions. — "Granted."
Article XXXV.
If the Canons, Priests, Missionaries, the Priests of the seminary of the foreign Missions, and of St. Sulpice, as well as the Jesuits, and the Recollects, chuse to go to France, a passage shall be granted them in his Britannic Majesty's ships, and they shall have leave to sell, in whole, or in part, the estates and moveables which they possess in the colonies, either to the French or to the English, without the least hindrance or obstacle from the British Government. — They may take with them, or send to France, the produce of what nature soever it be, of the said goods sold, paying the freight, as mentioned in the XXVI th article; and such of the said Priests, who chuse to go this year, shall be victualled during the passage, at the expence of his Britannic Majesty; and they shall take with them their baggage.— "They "shall be masters to dispose of their estates and to send the produce thereof, "as well as their persons, and all that belongs to them to France."
Article XXXVI.
If by the treaty of Peace, Canada remains to his Britannic Majesty, all the French, Canadians, Acadians, Merchants and other persons who chuse to retire to France, shall have leave to do so from the British General, who shall procure them a passage: and nevertheless, if, from this time to that decision, any French, or Canadian Merchants or other persons, shall desire to go to France; they shall likewise have leave from the British General. Both the one and the other shall take with them their families, servants, and baggage. — "Granted."
Article XXXVII
The Lords of Manors, the Military and Civil officers, the Canadians as well in the Towns as in the country, the French settled, or trading, in the whole extent of the colony of Canada, and all other persons whatsoever, shall preserve the entire peaceable property and possession of the goods, noble and ignoble, moveable and immoveable, merchandizes, furs and other effects, even their ships; they shall not be touched, nor the least damage
CONSTITUTIONAL DOCUMENTS 33
SESSIONAL PAPER No. 18
done to them, on any pretence whatever. They shall have liberty to keep, let or sell them, as well to the French as to the British; to take away the produce of them in Bills of exchange, furs, specie or other returns, whenever they shall judge proper to go to France, paying their freight, as in the XXVIth Article. They shall also have the furs which are in the posts above, and which belong to them, and may be on the way to Montreal; and, for this purpose, they shall have leave to send, this year, or the next, canoes fitted out, to fetch such of the said furs as shall have remained in those posts.— "Granted as in the XXVIth article."
Article XXXVIII
All the people who have left Acadia, and who shall be found in Canada including the frontiers of Canada on the side of Acadia, shall have the same treatment as the Canadians, and shall enjoy the same privileges. — "The "King is to dispose of his ancient Subjects: in the mean time, they shall "enjoy the same privileges as the Canadians."
Article XXXIX
None of the Canadians, Acadians or French, who are now in Canada, and on the frontiers of the colony, on the side of Acadia, Detroit, Michilli- maquinac, and other places and posts of the countries above, the married and unmarried soldiers, remaining in Canada, shall be carried or transported into the British colonies, or to Great- Britain, and they shall not be troubled for having carried arms — "Granted, except with regard to the Acadians."
Article XL
The Savages or Indian allies of his most Christian Majesty, shall be maintained in the Lands they inhabit; if they chuse to remain there; they shall not be molested on any pretence whatsoever, for having carried arms, and served his most Christian Majesty; they shall have, as well as the French, liberty of religion, and shall keep their missionaries. The actual Vicars General, and the Bishop, when the Episcopal see shall be filled, shall have leave to send to them new Missionaries when they shall judge it necessary. — "Granted except the last article, which has been al- "ready refused."
Article XLI
The French, Canadians, and Acadians of what state and condition soever, who shall remain in the colony, shall not be forced to take arms against his most Christian Majesty, or his Allies, directly or indirectly, on any occasion whatsoever; the British Government shall only require of them an exact neutrality. — "They become Subjects of the King."
S4 CANADIAN ARCHIVES
6-7 edward vii., a 1907
Article XLII
The French and Canadians shall continue to be governed according to the custom of Paris, and the Laws and usages established for this country, and they shall not be subject to any other imposts than those which were established- under the French Dominions. — "Answered by the preceding "articles, and particularly by the last."
Article XLIII
The Papers of the Government shall remain without exception, in the power of the Marquis de Vaudreuil and shall go to France with him. These papers shall not be examined on any pretence whatsoever. — "Granted, "with the reserve already made."
Article XLIV
The papers of the Intendancy, of the offices of Comptroller of the Marine, of the ancient and new treasurers, of the Kings magazines, of the offices of the Revenues and forges of St. Maurice, shall remain in the rower of M. Bigot, the Intendant; and they shall be embarked for France in the same vessel with him; these papers shall not be examined. — "The same as "in this article."
Article XLV
The Registers, and other papers of the Supreme Council of Quebec, of the Pr6vot6, and Admiralty of the said city; those of the Royal Juris- dictions of Trois Rivieres and of Montreal; those of the Seignorial Juris- dictions of the colony; the minutes of the Acts of the Notaries of the towns and of the countries; and in general, the acts, and other papers, that may serve to prove the estates and fortunes of the Citizens, shall remain in the colony, in the rolls of the jurisdictions on which these paper depend. "Granted."
Article XLVI
The inhabitants and Merchants shall enjoy all the privileges of trade, under the same favours and conditions granted to the subjects of his Britan- nic Majestv, as well as in the countries above, as the interior of the colony. — "Granted."
Article XLVII
The Negroes and panis of both sexes shall remain, in their quality of slaves, in the possession of the French and Canadians to whom they belong; they shall be at liberty to keep them in their service in the colony or to sell them; and they may also continue to bring them up in the Roman Religion. — "Granted, except those who shall have been made prisoners."
CONSTITUTIONAL DOCUMENTS 35
SESSIONAL PAPER No. 18
Article XLVIII
The Marquis de Vaudreuil, the General and Staff Officers of the land- forces, the Governors and Staff officers of the different places of the colony, the Military and Civil officers, and all other persons who shall leave the colony, or who are already absent, shall have leave to name and appoint Attornies to act for them, and in their name in the administration of their effects, moveable and immoveable, until the peace; and, if, by the treaty between the two crowns, Canada does not return under the French domin- ions, these officers, or other persons, or attornies for them, shall have leave to sell their manors, houses, and other estates, their moveables and effects, fife, to carry away or send to France, the produce thereof, either in bills of exchange, specie, furs or other returns, as is mentioned in the XXXVIIth Article.— "Granted."
Article XLIX
The inhabitants, and other persons, who shall have suffered any damage in their goods, moveable or immoveable, which remained at Quebec, under the faith of the capitulation of that city, may make their representa- tions to the British Government, who shall render them due justice against the person to whom it shall belong. — "Granted."
Article L. and last.
I
l^f The present capitulation shall be inviolably executed in all its articles, and bon& fide, on both sides, notwithstanding any infraction, and any other pretence, with regard to the preceding capitulations, and without making use of reprisals. — "Granted."
m
I
POSTSCRIPT
Article LI
The British General shall engage, in case any Indians remain after the surrender of this town, to prevent their coming into the towns, and that they do not, in any manner, insult the subjects of his Most Christian Majesty. — "Care shall be taken that the Indians do not insult any of the subjects "of his Most Christian Majesty."
Article LI I
The troops and other subjects of his Most Christian Majesty, who are to go to France, shall be embarked, at latest, fifteen days after the signing of the present capitulation. — "Answered by the Xlth Article."
36 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Article LIII
The Troops and other subjects of his Most Christian Majesty, who are to go to France, shall remain lodged and incamped in the town of Montreal, and other posts which they now occupy, till they shall be embarked for their departure: passeports, however, shall be granted to those who shall want them, for the different places of the colony, to take care of their affairs. —"Granted."
Article LIV
All the officers and soldiers of the troops in the service of France, who are prisoners in New-England: and who were taken in Canada, shall be sent back, as soon as possible, to France, where their ransom or exchange shall be treated of, agreeable to the cartel ; and if any of these officers have affairs in Canada, they shall have leave to come there. — "Granted."
Article LV As to the officers of the Militia, the Militia, and the Acadians, who are prisoners in New-England, they shall be sent back to their Countries. Done at Montreal, the 8th of September, 1760.
"VAUDREUIL."
Granted except what regards the Acadians. Done in the Camp before Montreal, the 8th September, 1760.
"JEFFERY AMHERST."
COMMISSION AS JUDGE TO JACQUES ALLIERi
Par son Excellence Monseigneur Jacques Murray Brigadier General et Commendant en chef des Troupes de sa Majest6 Britannique dans le Fleuve St Laurent Gouvernement de Quebec et des pays conquis — •
Etant necessaire pour le bien et I'avantage des habitants des paroisses de Berthier et suivantes jusqu'^ Kamouraska inclusivement et maintenir
' This appointment is apparently the first formal step taken, beyond the city of Quebec where, as we find. Colonel Young had been appointed civil and criminal judge, towards the regular administration of law within the conquered territory. Wolfe had issued several proclamations or manifestoes to the people below Quebec, promising protection to life and property on con- dition that they should lay down their arms; but before the capture of the city these had little effect. After the capitulation of Quebec, General Monckton, upon whom the command devolved in succession to Wo/fe, published a manifesto permitting the inhabitants to return to their farms on giving up their arms and taking the oath of fidelity. These conditions most of the people in the villages and districts tributary to Quebec complied with. Writing to Pitt, October 8th, 1759, General Monckton explained that, owing to wounds received at the capture of Quebec, the surgeons had urged him to go south for the winter. He had therefore appointed "Brigadier Murray to act as Governor and Colonel Burton (who is second in Command) as Lieutenant Governor untill His Majesty's Pleasure be known, to which I have added the following very necessary Staff: —
A Town Major
2 Town Adjutants for the upper & Lower Towns.
A Secretary.
A paymaster of the publick works.
A Barrack Master.
A Boat Master, to take care of the flatt bottomed Boats and floating Batteries, with some few others of inferior Rank, as Assistants.
As General Wolfe had appointed a Provost Marshal and had delayed giving him a Warrant only for the want of a Form, he being a very necessary officer here, I have given him a Warrant to act as such untill His Majesty's Pleasure be known." A. and W. I., vol. 88.
CONSTITUTIONAL DOCUMENTS* 37
SESSIONAL PAPER No. 18
la police et le bon ordre dans les dites paroisses, d'y 6tablir . . . justice. Ayant reconnu la bonne vie et moeurs et capacity en fait de justice de M. Jacques Allier, I'avons nomm6 et nommons juge civil & criminel, pour exercer dans les dites paroisses la justice sauf I'appel en la ville de Quebec devant le colonel Young juge civil et criminel en dernier ressort de la dite ville et pais conquis. Pour par mon dit Sieur Allier, jouir de la dite charge, aux charges, droits et honneurs et prerogatives y attaches — Ordonnons au dit Sieur Allier de recevoir les dites commissions sous peine de d6sob6is- sance apr^s avoir prSt6 le serment entre nos mains sur les Saints Evangiles de s'acquitter en foi Sme et conscience des devoirs de sa charge.
En foy de quoi nous avons sign6 ces presentes k icelles fait apposer le cachet de nos armes et contresigner par notre secretaire, — h. Quebec — le seize Janvier— mil sept cent soixante —
(Sign^) L. S. JAS. MURRAY.
Par Monseigneur
H. T. Cramahe—
(Translation.)
By his Excellency James Murray, Brigadier General and Commander in Chief of His British Majesty's troops in the River St. Lawrence, Govern- ment ^f Quebec and the conquered territory.
It being found necessary for the wellbeing and profit of the inhabitants of the parish of Berthier and those lying beyond as far as Kamouraska in- clusive, and for the maintenance of the police and good order in the said parishes, to establish Courts of justice therein, and knowing well the ex- emplary life, sound morals and capacity for the administration of justice of Mr. Jacques Allier, we have appointed and hereby do appoint him civil and criminal judge to execute justice in the aforesaid parishes — save in the matter of appeal in the town of Quebec before Colonel Young, the civil and criminal judge in final appeals of the aforesaid town and conquered territory. And that the said Sieur Allier may enjoy the said office with the fees, emoluments, rights, honours and prerogatives thereto appertaining — We order the said Sieur Allier to receive the said commissions under penalty of disobedience, after having taken oath between our hands on the Holy Gospels to perform the duties of his office with all loyalty, zeal and con- science.
In witness whereof we have signed these presents and have set to them the seal of our coat of arms, and have caused them to be countersigned by our secretary at Quebec,- the sixteenth of January — one thousand seven hundred and sixty.
(Signed) JAS. MURRAY.
By Monseigneur
H. T. Cramahr.
38 • CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
PLACART DE SON EXCELLENCE MONSIEUR LE G£n£RAL
AMHERSTi
Par Son Excellence JEFFERY AMHERST, Ecuyer, marechal de camp. Commandant en chef Les troupes et forces de Sa Majesti le Roy de la grande Bretagne dans L'amerique Septentrionale, et son Gouverneur General pour la Province de Virginie, &fc., dfc, &fc.
SgAvoiR faisons, que nous avons constitu6 et 6tabli Monsieur Gage, Brigadier des arm6s du Roy, Gouverneur de la ville de Montreal et de ses d6pendances: et que nous avons pareillement Stably Monsieur Burton, Colonel des troupes de Sa Majesty, Gouverneur des trois Rivieres et de ses Ddpendances.
Que tons les habitants du Gouvernement des trois-Rivieres qui n'ont pas encore rendu les armes ayent k les rendre aux Endroits nommes par Monsieur Burton.
Que pour D'autant mieux maintenir Le bon ordre et La police dans Chaque paroisse ou District, il Sera rendu aux officiers de milice leurs armes; et si par La suite il y avoit quelques-uns des habitants qui Desireroient en avoir, ils devront en demander la permission au Gouverneur, sign6e par le dit Gouverneur ou ses subd616gu6s, afin que L'officier des troupes, commandant au District ou ces habitants seront r^sidens, puisse sgavoir qu'ils ont Droit de porter les armes.
Que par nos instructions les gouverneurs sont autoris^s de nommer ci tous employs vacans dans la milice, et de d^buter par signer des commissions en faveur de Ceux qui en ont derniferement joui sous Sa Majest6 tres- Chr6tienne.
Que pour terminer autant qu'il sera possible tous differens qui pour- roient survenir entre les habitants k I'amiable, les dits Gouverneurs sont enjoints D'autoriser l'officier de milice Commandant dans chaque paroisse, ou District, d'6couter toutes plaintes, et si elles sont de nature qu'il puisse les terminer, qu'il ait k le faire avec toute La droiture et Justice qu'il con-
' Immediately after the capitulation of Montreal General Amherst took measures for the establishment of a provisional military government, with summary courts of justice, until the ultimate fate of the country should be determined.
The French Division of the Province into three administrative Districts of Quebec, Three Rivers, and Montreal, was retained. In a despatch to Pitt, dated Quebec, October 4th, 1760, (A. and W. I., vol. 99) Amherst detailed his proceedings, from the day following the capitulation of Montreal. Though most of the measures reported were purely military, yet we have the following items as to civil administration. "15"" • * • sent Officers with Detachments to the several Villages, to take in the Arms, and to administer the Oath of Allegiance."
"16"" I appointed Col: Burton Governor of Trois Rivieres,"
"igth • * • I gave an Order for the Militia of the Town and Suburbs to give up their Arms and take the Oath of Allegiance to morrow, as soon as Monsieur de Vaudreuil is embarked."
"22"' I appointed B' General Gage Governor of Montreal."
On the 22nd he also issued the proclamation or ordinance given above, which is not however enclosed in the despatch but is taken from "Memoires de la Society Historique de Montreal," 1870, Part V, vol. I, p. 150. A similar proclamation was issued by Amherst in September for use in the District of Montreal. It is dated September, 1760, A. and W. I., vol. 94. Towards the close of the despatch to Pitt he thus refers to the measures taken; "I have fixed the form of Government that I judged would be easiest and best till "the King's Pleasure is known and if it meets with His Majesty's Approbation, I shall be very happy." See also note to the next document.
i
CONSTITUTIONAL DOCUMENTS 39
SESSIONAL PAPER No. 18
vient; S'il n'en peut prononcer pour lors il doit renvoyer les parties devant I'officier des troupes Commandant dans son district, qui sera pareillement autoris4 de decider entre eux, si le cas n'est pas ass6s grave pour exiger qu'il soit remis devant le gouvemeur meme, qui, dans ce Cas, comme en tout autre, fera rendre Justice o\X elle est due.
Que les troupes, tant dans les villes que dans leurs Cantonnemens sont nourries par le Roy en nature, et qu'il leur est ordonn^ expressement de payer tout ce qu'elles achetent de I'habitant en argent Comptant et esp^ces sonnantes.
Que tout propri6taire des Chevaux, de Charettes, ou autres voitures qui seront employes, soit par les troupes, ou autres, seront 6galement pay^s en Esp^ces sonnantes pour Chaque Voyage, ou par Journ^e qu'ils auront 6te ainsy employes, et Cela suivant Le tarif et sur le pied de dix schellings argent de la nouvelle York, par jour, pour chaque Charette ou traineau portant un millier pezant; et une Joum6e de Cheval k raison de trois schel- lings D'york.
Les Maitres des postes auront attention de ne louer ny fournir, a qui que ce soit, sans un ordre par Ecrit de nous, ou des Gouverneurs Gage, Murray, et Burton, ny chevaux, ny caliches appartenantes aux Bureaux des dites postes, et Ceux k qui il en sera fournis comme ci-dessus, payeront pour un cheval a raison de 17 sols, argent de la nouvelle york, par chaque trois milles angloises ou lieue de France; Ceux qui prendront cheval et
Ill^che payeront le double, mais il leur sera permis d'y aller k deux personnes. Que le peu de secours que le Canada a regu de la France depuis deux nnees, I'ayant 6puise de Bien de rafraichissement et de n^cessaire. Nous irons pour le bien commun des troupes et de I'habitant recommand6 par OS lettres aux differens gouverneurs des Colonies angloises les plus proximes du Canada d'afficher et publier des avis k leurs Colons pour se transporter icy avec toutes sortes de denrdes et de rafrachissemens, et nous nous flattons qu'on ne tardera pas de voir remplir ce Projet; et, lorsqu'il Le sera, un chacun en sera instruit pour qu'il puisse y participer au prix courant et sans impots.
Le Commerce sera Libre et sans impots a un chacun, mais les Com- mergants seront tenus de prendre des passeports des gouverneurs, qui leur seront exp6di6 gratis.
Comme il est expressement enjoint aux troupes de vivre avec I'habitant en bonne harmonic et intelligence, nous recommandons pareillement k I'habitant de recevoir et de traiter les troupes en fr^res et Concitoyens. II leur est encore enjoint d'^couter et d'obdir tout ce qui Leur sera ordonn6 tant par nous que par leurs Gouverneurs, et Ceux ayant droit de nous et de Luy; et tant que les dits habitants ob^iront et se conformeront aux dits ordres, ils jouiront des mesmes privileges que les enciens sujets du Roy, et ils jjeuvent Compter sur notre protection.
Voulons Et entendons que notre pr6sent ordonnance soit lue, publi6e et affich^e fes lieux accoutum6s.
40 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Fait k Montreal, le 22 7bre. 1760, Sign6e de notre main et scell^e du sceau de nos armes.
(Sign6), JEFFERY AMHERST.
(Translation). PLACARD FROM HIS EXCELLENCY GENERAL AMHERST.
By His Excellency Jeflfery Amherst, Esquire, Field Marshal, Com- mander in Chief of the troops and forces of His Majesty the King of Great Britain, in North America, and His Governor General for the Province of Virginia, etc., etc., etc.
Be it known, that we have constituted and appointed Mr. Gage, Brigadier of the King's armies, Governor of the town of Montreal and of its dependencies; and that in like manner we have appointed Mr. Burton, Colonel of His Majesty's troops. Governor of Three Rivers and its de- pendencies.
That all the inhabitants of the Government of Three Rivers who have not yet given up their arms, are to give them up at the places named by Mr. Burton.
That for the better maintenance both of good order and police in each parish or district, their arms shall be delivered up to the ofificers of militia; and if thereafter there shall be any of the residents who desire to have them, they must ask for a permit from the governor, to be signed by the said governor, or by his subdelegates, so that the officer of the troops, commanding the district in which these persons are residing, may know that they have the right to carry arms.
That according to our instructions, the governors are authorized to nominate to all posts vacant in the militia, and may begin by signing commissions in favour of those who have lately enjoyed such posts under His most Christian Majesty.
That in order to settle amicably as far as possible all differences which may arise amongst the inhabitants, the said governors are charged to authorise the officer of militia commanding in each parish or district, to hear all complaints, and if they are of such a nature that he can settle them, he shall do so with all due justice and equity; if he cannot decide at once, he must send the parties before the officer commanding the troops in his district, who shall in like manner be authorised to decide between them, if the case is not sufficiently serious to require its being brought before the Governor himself, who in this, as in every other case, shall ad- minister justice where it is due.
That the troops, in the towns as well as in their cantonments, are provided for by the King in kind, and that it is expressly ordered that they shall pay for all that they buy from the inhabitants in ready money and specie.
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CONSTITUTIONAL DOCUMENTS 41
SESSIONAL PAPER No. 18
That all proprietors of horses, carts or other vehicles who shall be employed, either by the troops, or others, shall likewise be paid in specie for each journey, or by the day, when they shall have been thus engaged, and the latter shall be according to the tariff and at the rate of ten shillings, money of New York, per day for each cart or sleigh carrying a thousand pounds weight, and a horse by the day at the rate of three York shillings.
Masters of posts shall be careful neither to let out nor furnish to any one soever, without a written order from us, or from the Governors Gage, Murray, or Burton, either horses or carriages belonging to the offices of the said posts, and those to whom they shall be furnished, as above stated, shall pay for a horse at the rate of 17 cents, money of New York, for every three English miles or French league; those who shall take a horse and car- riage shall pay double, but two persons shall be allowed to go in it.
That the meagre support which Canada has received from France for the past two years having exhausted her wealth, her supplies, and her necessaries, we have for the common good both of the troops and the hab- itant, given orders in our letters, to the different governors of the English colonies nearest to Canada, to post up and publish notices to their colonists to repair hither with all sorts of provisions and supplies, and we flatter ourselves, that we shall see this project carried out without delay; and, as soon as it is done, everyone will be notified so that he may have his share in it, at the current rates, and without duty.
Trade will be free to everyone without duty, but merchants will be obliged to take out passports from the governors, which will be furnished them gratis.
As it is specially enjoined on the troops to live with the habitants in harmony and good fellowship, we likewise recommend the habitant to receive and treat the troops as brothers and fellow-citizens. It is further enjoined upon them to hearken to and obey all that is commanded them, whether by us or by their governors, and those having authority from us and them ; and so long as the said habitants shall obey and conform to the said orders, they shall enjoy the same privileges as the ancient subjects of the King, and they may rely on our protection.
We desire and require that our present ordinance be read, published and fKJsted in the usual places.
Given at Montreal, the 22 7ber 1760, signed by our hand and sealed with the seal of our arms.
(Signed,) Jeffery Amherst.
42 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Ordinance Establishing Military Courts.*
Delapart de Son Excellence, Monsieur Jacques Murray, Gouverneur
de Quebec, &.c.^
Notre principalle Intention ayant 6t6 dans le Gouvemement Qu'il a plfl k Sa Majesty Britannique de nous confier de faire rendre la Justice a ses Nouveaux sujets, tant Canadiens que frangois Etablies dans la villa et coste de ce Gouvernement : Nous avons crfi egalement Necessaire d'6tablir la forme de proceder, de fixer le jour de nos Audiances, ainsi que ceux de notre Conseil Militaire que nous avons 6tablis en cette ville afin que chacun puisse sy conformer dans les affaires qu'ils auront a faire Juger en nos audiances ou celles que nous Jugerons ndcessaires de renvoyer aud. Conseil: A ces causes Nous avons regl6 et ordonne, regions et ordonnons par le present Reglement ce qui suit.
Art. 1"
Toutes plaintes ou affaires d'interets civils ou Criminels, nous seront faites par placets ou Requetes adressantes k Nous les quels seront remises N^antmoins a M. M. Cramah6 Notre Secretaire qui les r6pondra pour que les Assignations soient ensuitte donnas par le premier huissier aux parties adverses aux fins de comparaitre pour d^ffendre en notre audiance suivant les Delays marqufe eu egard a la distance des lieux.
Les Jours de nos audiances seront le Mardi de chaque semaine depuis dix heures du matin Jusques a Midi et se teindront en notre hotel a com- mencer Mardi prochain 4 Novembre.
Les placets ou Requestes qui auront €t€ r^pondues par notre Secretaire dans la forme expliqu6 par I'art. 1" signiffi6 aux parties adverses et le delay de I'assignation expires seront remise k notre secretaire la veille de I'audiance, c'est a dire le Lundi pour I'audiance de Mardi sans quoy elles ne seront point Jug6s, et Remise a la prochaine audiance.
i
Les parties adverses qui auront quelques papiers ou ^critures servant a la deffense de leur cause seront pareillement tenus de les remettre a notre
> The general system of justice and administration established by Amherst and Murray was approved by the King through the Earl of Egremont, successor to Pitt as Secretary of State, in a despatch to Amherst, December 12th, 1761. This system continued until the introduction of civil government in 1764, and its general character is summarized in the preamble to the Ordin- ance of 20th September, 1764, which confirmed the judgments given in the military courts.
• From "Registre de la cour militaire" folio I. Vol. I. Quebec.
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CONSTITUTIONAL DOCUMENTS 43
SESSIONAL PAPER No. 18
secretaire la veille de I'audience sinon sera fait droit sur la demande de la Partie.
Sy les parties assignes n'ont aucune 6criture a produire, elles seront tenus de comparoir en notre audiance au Jour de I'assignation, soit en personne ou par procureur, sinon il ne sera donn6 aucun deffaut, et sera pareillement et sera pareillement fait droit sur le seule assignation qui leur aura et6 donn6 afin deviter la Longueur des procedures et la Multiplicity des frais.
Si la trop grande quantity d'affaires ne pouvoit permettre de les Juger toutes dans une seule audiance elles seront remises a la prochaine et les pairties tenues dy comparoir sans autre assignation.
Les Jugements qui seront rendus en notre hotel a I'audiance seront executes sans appel et les parties contraintes dy satisfaire suivant ce qui sera prononc6e a I'exception des affaires que nous Jugerons de Renvoyer au Conseil Militaire, pour estre Jugfe, les quelles seront remises a un des Conseillers que nous nommerons qui en fera son Raport au Conseil pour sur iceluy estre fait droit a qui il Appartiendra.
t
8»
Le Conseil de Guerre s'assemblera les Mercredi et Samedi de chaque semaine et se tiendra en la maison deM.de Beaujeu rue St. Louis.
I
9»
Les Jugements rendus en notre audiance ainsi que les arrets Militairea seront Merits sur le Registres par le Greffier que nous avons Commis pour cet effet, et les expeditions par luy d61ivr6s aux parties.
10»
Tout ce que dessus sera 6x6cut6 tant pour la ville que pour les campa- gnes a I'exception N6antmoins des diff6rents que les habitants des Costes pourroient Avoir entr'eux pour raison de Clostures, Dommages, ou autres cas provisoires, dont nous renvoyons la connoissance au comd' de la troupe dans chaque coste qui les Jugera sur le champ, sauf I'appel au Conseil Militaire sy le cas y 6choit et quil y ait matiere.
Et sera le present Reglement lue public et affich6 tant dans les lieux et endroits accoutumfe de cette ville, que dans chaque Costes de ce gouverne- ment, a ce que personne n'en pretendent cause d'ignorance, et ayt a s'y
44 CANADIAN ARCHIVES
6-7 EDWARD VII.. A. 1907
conformer. Interdisons toutes autres Cours et Jurisdictions, qui auroient put etre etablies tant dans la ville, que dans les fauxbourgs et Campagnes. Fait et donn6 sous notre seel et le contreseing de Notre Secretaire, a Quebec le 31 S^" 1760.
"J A. .Murray. "Par Son Excellence.
"H. T. Cramah6."
(Translation.)
By His Excellency Mr. James Murray, Governor of Quebec, etc.
Our chief object having been, in the government which it has pleased His Majesty to entrust to us, to ensure the administration of Justice to his new subjects, Canadian as well as French, settled in the town and neigh- bourhood of this Government, we have likewise thought it necessary to establish the form of procedure ; to fix the day for our audiences, as well as those of our military council, which we have established in this town: ■ to the end that every one may conform to it, in the causes that they may require to have judged at our courts, or such as we may think necessary to send to the said Council. For this reason, we have ruled and ordered by the present regulations as follows:
I't Article
All compliants, or matters of civil or criminal interest shall be brought before us by petitions, or requests, addressed to us, which shall, however, be delivered to M' H. Cramah6, our secretary, who shall return them, so that the summons may then be delivered to the defendants by the first bailiff, so that they may appear to defend themselves in our Court, at the time appointed, regard being paid to the distance of the places.
2^ Article
The Court days shall be Tuesday in each week, from ten in the morning till noon, and they shall be held at our residence, beginning with next Tuesday, the 4*'' of November.
3"^ Article
The petitions, or requests which shall have been returned by our sec- retary, in the manner explained in the first article, having been served on the defendants, and the term allowed in the summons having expired, shall be re-delivered to our secretary, on the day before the hearing, that is to say, on the Monday, for the hearing of Tuesday: failing this, they shall not be judged, but shall be postponed till the next sitting.
1
CONSTITUTIONAL DOCUMENTS 45
SESSIONAL PAPER No. 18
4*'' Article
The defendants, who shall have any papers or writings available for the defence of their cause, shall likewise be obliged to deliver them to our secretary, on the day before the hearing, otherwise judgment will be given on the demand of the plaintiff.
5"" Article
If the parties summoned have no writing to produce they shall be ob- liged to appear at our Court, on the day fixed, either in person or through an attorney, otherwise no plea will be allowed them for default, and in like manner judgment will be given, on the single summons which shall have been served on them, in order to avoid long lawsuits, and the increase of costs.
e"' Article
If the excessive amount of business does not allow the judging of all cases at a single sitting, they shall be postponed till the next one, and the parties shall be obliged to appear, without other summons.
7"" Article
8"^ Article
oai
I „._.„....„„.,.,..„..,...,„
I^Bhall be executed without appeal, and the parties shall be compelled to give
satisfaction according to what shall be decreed, with the exception of such
I^H^ises as we may think fit to send to the Military Council to be tried; which
I^Hhall be delivered to one of the Councillors whom we shall name, who will
make his report to the Council, so that judgment may be given on the same
rhim to whom it shall belong. The Council of War shall assemble on the Wednesdays and Saturdays oi each week, and shall be held in the house of M. de Beaujeu, rue St. Louis.
9"" Article
Judgments given in our Courts, as well as the military decrees, shall be inscribed on the register, by the registrar whom we have appointed for this purpose, and copies delivered by him to the parties.
10"' Article
All the above shall be executed, as well for the town as for the country; with the exception however of disputes that the habitants of the district may have amongst themselves, with respect to enclosures, damages, or other provisional cases, of which we authorize the commandant of the troops to
46 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
take cognizance in each locality and try summarily, reserving appeals to the Military Council, if the case pertains thereto, and there is reason for it.
And the present regulation shall be read, published and posted in the usual places and precincts of this town, as well as in every part of this govern- ment, that no one may urge the plea of ignorance, and that all shall be compelled to conform to it; and we interdict all other courts and jurisdic- tions which may have been established as well in the town, as in the suburbs and country.
Executed and given under our seal, and countersigned by our secretary, at Quebec, the 31" October, 1760.
(Signed) J a. Murray. By His Excellency,
(Signed) H. T. Cramah6.
CONSTITUTIONAL DOCUMENTS 47
SESSIONAL PAPER No. 18
GENERAL MURRAY'S REPORT OF THE STATE OF THE GOVERN- MENT OF QUEBEC IN CANADA JUNE 5th, 1762.i
My Lord, — In obedience to his Majesty's Commands signified in Your Lordship's dispatch to Sr. Jeffery Amherst of the 12th December last I have the honor to transmit the following account of His Majesty's Gov- ernment of Quebec and dependancies thereof; however deficient it may prove Your Lordship may be assured it has been my earnest desire, as it is my constant study to fulfil my Royal Masters intentions.
The better to effect the same, and in order to state the several inter- esting matters of this Report in the clearest light, I shall divide the whole under the following heads.
1st — Return of His Majesty's Forces in His Government of Quebec and dependancies thereof.
2nd — State of the Fortifications
3rd — State of the Government under the French Administration.
4th — ^The Revenues and Expenses.
5th — Church Government.
6th — Indian Nations.
7th — Nature of the Soil and its produce.
8th— Population.
9th— Trade.
10th — Character of the People.
I shall subjoin some remarks pointing out the Errors of the Ancient ^ystem, and wherein by my own observations and the best information have been able to procure, there is room for alterations or amendments.
Quebec General and Staff Officers
The Honorable James Murray, Esqr. Governor.
The Honorable Lieut' Colo' Maitland DiA.:G: Governor Murrays leave the Southern Colonies. Lieut' Colo' Irving, Deputy Quarter Master General. Hector Theop" Cramartie, [Cramah6] Secretary to the Governor, Lieut' Mills, Town Adjutant. Captain Malone, Barrack Master. Captain Cosnan, Town Major. Governor Murrays leave to England for the recovery of his Health.
Zachariah Thompson, Captain of the Ports.
' In the despatch of Lord Egremont to Sir Jeffrey Amherst of 12th Dec 1761, in which the King approves of the system of military government established in the districts of Quebec, Three Rivers, and Montreal, he instructs him to send, for His Majesty's information, a full account of the newly acquired countries. In response to this command communicated to Murray, Burton, and Gage, we have this and the two following Reports, which were transmitted to the Government by Sir Jeffrey Amherst. These Reports were among the documents submitted to the Board of Trade for their information in preparing a plan of government for the territories ceded to Britain by the Treaty of Paris of 1763. See p. 130.
48 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Engineers
Captain Lieut* Spry
Lieut' Montresor
Captain Holland, Assistant,
Established
Officers of His Majesty's Hospital
Mr. Francis Russell, Chief Surgeon. Mr. Field
»» »» 1 I Mates
Mr. Mabane
N-B" Mr. Zachariah Flitner, Provost Martial.
Benjamin Gable — Hangman.
2. State of The Fortifications. — Quebec. The natural situation of the ground which the present front of the fortification is built upon to- wards the land, is very disadvantageous. Cape Diamond is nearest the River S' Laurence, and is likewise the highest ground, from whence there is a continued slope, sometimes very quick, toward the River S' Charles, in consequence of which the walls not being built upon a level, but humouring the nature of the ground, the flanks of the Bastions cannot defend their opposite faces in a proper manner, for the flanks of the higher Bastions, must fire below the horizontal line, as the flanks of the lower ones must throw theirs above it. To remedy this defect, the French built two Counter guards or Fausse-brays with Casemated flanks, before the right face and flanks of Laglaciere Bastion, and the left face and flank of Bastion S' Louis; this however introduced another inconvenience, of which they appeared sensible when Mons' de Levis besieged the Town in 1760, as He directed his fire to this place, which had such an effect, the rubbish of the Wall filling the Counter guard, and that from the lower the ditch, that an easy ascent might have been very soon made to the breach.
The high grounds before Cape Diamond and Laglaciere Bastions com- mand all the lower fortifications toward the River S' Charles, and batteries for battering in breach may be erected at any distance, as the walls are high and seen in many places to the bottom of the Ditch, there being no covered way or outworks and even the counterscarp wall not well finished, neither can a covered way be constructed, but at a great expense, on account of the scarcity of Earth and irregularity of the ground, besides that it must be crowded with traverses to prevent its being enfiladed.
To make up in some measure the want of outworks, in the Winter 1759, I erected a line of Blockhouses within musquet shot of the capital wall to secure the body of the place against surprises, such outworks are proof against Musquetry only.
The Walls are built of an irregular unwrought stone and in many places the work is very badly executed as was sufficiently visible from the effect of the fire from the French batteries in 1 760.
CONSTITUTIONAL DOCUMENTS 49
SESSIONAL PAPER No. 18
The Gates are ill placed and not defended. S* Louis Gate is so near the right face of the Bastion of the same name, that it is beneath its fire, and the opposite flank can have but very little fire on it, that of S' Johns has the same fault, being too near the left flank of S' Johns Bastion.
The Palace gate is not much better constructed, and in general this whole front of the place, which indeed is the only fortified one, is enfiladed from the other side of the River S' Charles.
The Wall from Bastion Lapotasse to Palace gate, is pierced with loop holes, and is good in its kind. The Barracks which are built against it being also provided with loop holes serve as a second fire. This Wall is continued to K and is built upon a Rock.
From K to L is a very bad stockade on the top of an accessible rock, with one small stockaded place of arms. This is the part of the Town most exposed to a coup de main.
From L to T there is a high Wall with a wooden gallery behind it, to serve as a banquette, and beneath it is a sally port to communicate with the lower Town.
From T to the saut au Matelot is a wall begun but carried no higher
than Man is able to step upon it, there are some plat-forms for Cannon
and Mortars. From M to M {sic) is the Royal Battery commanding the
River S' Laurence and built upon an inaccessible rock adjoining to the
: Bishop's palace, part of which was taken in during the late siege to defend
[the communication from the lower to the higher Town, which was also
[defended by some Cannon planted at O.
From O to P takes in Fort S' Louis and a nine gun battery; it is by ^nature inaccessible except two small paths shewn in the plan. Fort S' Louis is of no defense being the remains of the earliest fortifications erected there.
I From P to Q the Citadel or Redoubt of Cape Diamond, is a quick or rather steep ascent, defended by a stockade only. Betwixt this Redoubt and the Bastions of La Glaciere and Cape Diamond is a commanding grownd overlooking the whole Town and Fortifications. This grownd I judge very proper for the construction of a Citadel.
From Q to R the same sort of stockade is continued, and from R to Cape Diamond there is a Wall with loop-holes, defended by two small flanks with Cannon. The rocky hill under these parts is very high, but accessible and in many places cover'd with brush, by the help of which small parties might advance to the very stockades.
The lower Town is only cover'd by a Stockade and some batteries; The Batteries marked q are to defend the road and annoy the shipping in passing the Town. The Batteries t, are for the same purpose. They serve likewise to flank the lower Town and the other Batteries.
From the above report and annexed Plan' it appears that the Enceinte of Quebec is very large and would require a very strong Garrison to defend
> Plan not given.
50 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
it tho properly fortified . . . That at present it is open on two sides, has no out works not even a cover'd way nor hardly a ditch, for the foot of rotten walls is to be seen from most of the Environs at the distance of 500 Yards. That the whole Rampart is enfiladed from the other side of the River S* Charles, and that in its present situation, with a Garrison of 3,000 Men it is not proof against a well conducted Coup de Main. Any temporary works that can be added, would be of little signification, as matters now st and ; and to fortify the place upon the old plans is by no means adviseable, the situation never can be render'd strong, and the attempt must cost an
immense sum I therefore am of opinion that if His Majesty shall
think proper to be at the expense of strengthening Quebec, the most effectual method will be to erect upon the rising ground of Cape Diamond, a Citadel which will answer every purpose of the Towns being strongly fortified, may be defended 4 months at least by a small garrison, awe the Inhabitants, whose fidelity in case of an attack we cannot for some Years rely on, and secure our Magazines. The Ground I propose for this Citadel commands the whole Town and is commanded no where from the Country; in short it possesses every advantages to be wished for, and at a small expense may be fortified, as the Inhabitants of the Country and the Troops in the time of peace may contribute their labor towards it gratis ; to this the form- er can have no objection as they were on all occasions formerly liable to Military services and were all allow'd only provisions.
I order'd Captain Holland to take an accurate survey of the ground and have the honor herewith to transmit the several plans he has drawn in consequence.
I cannot slip the opportunity of recommending this Gentleman to Your Lordship's notice — He came to this Country in 1756, and ever since the siege of Louisbourg I have been myself a witness of his unwearied endeavors for the King's service, in a word. He is an industrious brave Officer, and an intelligent Engineer, in which capacity he would be desirous, and deservedly merits to be advanced.
Jacques Cartier
This is a small facine fortification upon Cape Sant6, begun by the French during the Campaign in 1759, but not completed 'till the retreat of their Army after the action of the IS**" September. — This post served them as a frontier all that ensuing winter, commands the River Jacques Cartier, towards which from the situation of the Ground, it is extremely strong, but it is not capable of the least resistance, if attacked on the other side — It is of no use to us at present, as it no where commands y* main River.
Deschambeaux
About four leagues above the Jacques Cartier, is the point Des Cham- beaux — This place may be fortified to very good advantage, and in my
te
m
i
CONSTITUTIONAL DOCUMENTS 51
SESSIONAL PAPER No. 18
opinion, is the strongest and most important post in the Country. It naturally divides the whole into two parts, is the only road or avenue from lower to upper Canada, on this side of the S' Laurence, and commands the rapids of Richlieu; by erecting batteries on the small island of that name, and some fortifications on the South shore the passes by Land and by Water may be rendered equally difficult, which is better explained by the survey and plan of the fortifications hereto annexed.
3. — State of the Government under the French Administration.
The Governor General was Chief in all Military, and the Intendant in all Civil, affairs; The latter superintended the justice, police and finances of the Government, he heard and judged definitively in all trifling causes; appeals from the inspector of Highways were referred to his decision; he issued regulations for the police of Town and Country, and emitted his ordonnances, fixing a price upon all kinds of provisions at his will and pleasure.
For the easier administration of justice, He commissioned three sub- delegates, residing at Quebec, Montreal, and Three Rivers, who took cognizance of such matters as were not very intricate, but from their judgments the parties might appeal to the Intendant.
The Prev&te of Quebec was a Court of Justice, composed of a Lieu' General, a Lieutenant particulier, a procureur du Roy or Kings Attorney; they judged all matters Civil in the first instance, and all appeals from their ntence were brought before theX^ounseil Superieur, the PrevSte likewise took cognizance of appeals from the private jurisdictions, which could be carried from this Court before the Conseil Superieur.
In capital crimes, or such as deserved severe penalties, the Lieu' General called into his assistance two of the most eminent Lawyers, but still their sentence could not be carried into execution, untill the same was confirmed by the Conseil, at which seven of the members at least must be present.
Attending this Court were six Notaries public a Clerk and six Huissiers, of which one was Cryer.
The Governments of Trois Rivieres and Montreal had each their Lieu' eneral, a Kings Attorney, Clerk Notaries and Huissiers.
From these several Courts, appeals were brought before the Conseil Superieur, established at Quebec, composed of a first Counsellor who gen- erally presided and eleven others, of which one or two were priests, these never were present in Criminal matters; The other Officers attending this Court were an Attorney General, a Chief Clerk, and a premier Huissier.
At Quebec was also a Court of Admiralty, consisting of a Lieu' General, Commission'd by the high Admiral of France, a King's Attorney, a Clerk and Huissier, this Court took cognizance of Maritime affairs, and appeals from thence were carried before the Conseil Superieur.
52 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
There was also an Inspector of the High Roads or Grand Voyer, who had the regulation of all matters relative to them, difficulties which arose from this Officers regulations were decided by the Intendant.
The only Laws were the Kings Edicts or the Arrets of his Council of
j State, register'd at the Council Superieur, and the Intendants ordonnances —
In matters of property they follow'd the customs of Paris, but in marriage
settlements they were at liberty to follow the Custom of any other province
in that Kingdom.
The age of Majority was fixed at 25, but at 18 or upon marriage, the Council granted them Letters of emancipation, which intitled them to enter immediately into the enjoyment of the moveable and incomes of their estates — Guardians were chosen by an assembly of seven of the nearest relations of the minors, and for want of these, of so many of their friends. — A public act is drawn out, of this transaction, which is register'd and the person elected is sworn to administer faithfully.
Fiefs. — 1'* The tenure of Lands here is of two sorts The fief or seig- neuries — ^These lands are deemed noble, on the demise of the possessor, his eldest son inherits one half, and shares with the other Children in the remainder, if any of these die without posterity, the Brothers share the portion of the deceased, exclusive of their sisters; The purchasers of these fiefs enter into all the privileges and immunities of the same, but pay a fifth of the purchase money to the Sovereign who is Lord of the Soil. By Law the Seigneur is restricted from selling any part of his Lands that is not clear'd, and is likewise obliged (reserving a sufficiency for his own domain) to concede the remainder to such of the Inhabitants as require the same at an annual rent not exceeding one sol, or one half penny sterling for each Arpent (a) in superficies. The Seigneurs have had the right of Haut, Moyenne et basse justice on their several fiefs, but this was attended with so many abuses and inconveniences that the inferior jurisdictions were mostly disused.
Terre en Roture. — 2^ The Lands conceded by the Seigneurs is the second sort of tenure, and these are called terres en roture. — ^The property is en- tirely in the possessors, and the rent they pay can never be raised upon them. They can sell it as they please, but the purchaser is obliged to pay a twelfth part of the purchase money to the Seigneur. The Children of both sexes share equally in those Lands, but if upon a division the several parts are found unequal to the subsistence of a family they are obliged to sell to one another: By Law no man can build upon a piece of Land of less extent than one Arpent and a half in front, upon a depth of 30 or 40. This was done with a view to promote cultivation, and to oblige the In- habitants to spread. Edicts have been published from time to time, to reunite to the Crown such Lands, as were not settled within a term of years prescribed, the last of these was published in 1732, a copy of which is annexed. (No. 1.)
(o) An Arpent consists of ten perches each 1 8 feet French measure.
CONSTITUTIONAL DOCUMENTS S3
SESSIONAL PAPER No. 18
The Canadians are formed into a Militia for the better regulation of which, each parish in proportion to its extent and number of inhabitants, is divided into one, two, or more Companies, who have their proper Officers, Captains, Lieutenants, Ensigns, Majors, Aide Majors, Sergeants, etc., and all orders or public regulations are addressed to the Captains or Command- ing Officers, who are to see the same put in execution. From these com- panies detachments are formed, and sent to any distance and in 1759 and 1760 the whole were in arms for the defence of their Country.
Observations. — The Intendant's fixing a price upon provisions at his own will and pleasure, was liable to much abuse, for tho' the Country was abounding with all kind of grain, yet under pretence that a large quantity was wanted for the Kings service, repeated levies were made upon the in- habitants, through every part of the province, proportionably to what it was supposed they could spare, the Intendant paying such price as he pleased to set upon it, great part of which grain was afterwards exported by his emissaries to the French Islands, and when a scarcity was appre- hended, they sold the remainder to the public at an advanced price.
Under the pretence of a scarcity of black Cattle, and before the British
Troops had made any impression upon the Colony, Horses were killed
and served to the Troops, probably to excuse the exorbitant charge
for all kind of provisions purchased on the Kings account, for notwithstand-
^^ ing the waste made by two contending Armies, and that the French Troops
[^■lived entirely upon the Country for near two Years, we have the strongest
^^ occular proof, there was no occasion to have recourse to this expedient,
^^ if the Kings officers had not meant it as a Cloak for their Knavery.
^^H 2^ — ^The members of the Courts of Justice were mostly natives of old
^^ France, and minded more their own affairs than the administration of justice.
^^ Their decisions were therefore not much respected ; and indeed for success
I^Bthe parties generally depended more upon the favour of the protection of
^^Hthe great, than upon the goodness and justice of their cause.
^^B S"* — Tho' the Governor General, the Bishop and the Intendant, were
y^ by their several Offices, Presidents of the Council, and that heretofore
they used to be present at their deliberations, in latter times they never
^^ honor'd it with their presence, a circumstance that contributed much to
^■the general disesteem, into which this part of the judicature had fallen.
^B 4 — The Office of Grand Voyer or Inspector of the High roads, under
IBproper regulations and restrictions seems to be highly necessary for the
care and benefit of the interior Commerce.
5 — The Canadians mostly of a Norman Race; are, in general, of a ^**^ litigious disposition; The many formalities in their procedures and the •w*^ multiplicity of Instruments to be drawn up upon every occasion, seems to encourage this disposition — ^A short and well digested Code, by laying aside many of these, may in a great measure serve to correct it.
6"" — Fixing the age of Majority as in other parts of his Majestys dominions, is an innovation that could not fail of being agreeable to the
54 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Youth, as the freedom of building where they see convenient, and upon such extent of ground, as they think proper, would be acceptable to all people in general and promote new establishments, especially the Fisheries in the lower parts of the River and Gulph of S* Laurence.
4. Revenues and Expence of the Government under the French
Administration
Tho' I should properly give a state of the Revenues and expense of the Government of Quebec only, yet the whole under the French administration was so blended together it does not appear practicable to separate the same, and have therefore collected here all that has come to my knowledge on this head, without distinction of Governments. 1" — Five ports, (a) part of the Kings domaine which were under the immediate management of the director General of it; He furnished them at the Kings expense with the Merchandize and effects proper for the Indian Trade or Fisheries which were carried on at these several ports and received from thence likewise on the Kings account the Furs, Oil, Fish or other produce of the same.
They had been farmed but the Lease expired in 1756, they were adver- tised and no one bidding for them on account of the War, the Intendant lest the Indians should quit their usual haunts, ordered them under the foregoing management, which continued untill our arrival, tho' the expense far exceeded the produce.
Sterling about I here set them down at the highest rent paid for them when farm'd, under the £291:13:4 French Government 7,000
2^ Duty on Liquors imported
£0 0 10 Wine by the Hogshead, 12
£0 1 8 Rum by the Hogshead 24
1 Veldt or measure of 2 Gallons of
Brandy 1 4
i Ordinary wine bottled p' Bottle 1
I5 Bottled sweet wine p Bottle 3
5 Eau de Vie de Liqueur p. Gallon. ... 10 £8,018 2 3 These several duties produced in 1757 192,434 14 0
3^ Lots and Ventes. This arises from the
sale of Houses and Lands en roture, upon those in the King's possession. The purchaser paying him a twelfth as his immediate Lord.
£921 13 11§ This produced in 1757 22,120 15
(o) Five ports— Tadousac, Chicotini, Mai baye. Islet de Feremie, Sept Isle.
\
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
4*'' Cent et Rentes, or Ground Rents of
Houses built on the King's Lands in the City and Suburbs of Quebec. These are very trifling as they let to the individuals for no more than six derniers, one Sol six derniers, trois sols six derniers or 5 Sols per annum. These were collected in 1759 for 29 £93 2 9 Years together and produced only. .
55
h
ia
S**" Duty (b) on dry goods imported.
£3,363 18 3| This produced in 1757
a Tariff was fixed regulating
what each species of goods was to pay, those that were trifling were valued, and paid 3 p' Cent of their Valuation. N.B". — Cordage of all sorts. Salt and produce of the Fisheries, and other Trade in the River S' Laurence were exempted from this duty.
6"' Duty on dry goods exported (a)
£1 ,601 15 OJ This produced in 1757
There was a Tariff (b) likewise for these in which all kinds of Furs were in- cluded as the East India Company had the exclusive privilege of buying and exporting all the Beaver of the Country paying the owner 4 Livres a pound for the green or winter Beaver, and one livre 10 sols for Parchment or Summer Beaver, the Company paid the King a duty of 3 p' Cent for the quantity exported according to the above rate.
Duty on the exportation of Moose Deerskins — This duty was of two Livres p' Skin, and was the first es- tablished in the Colony. The ex- portation of this Article has been
2,235 6 2
80,733 18 4
38,422 1 5
(6) No 2.
(a) All sorts of provisions of the growth of Canada, Goods for the Indian Trade in the lower parts of the River. Horses, Shipping Country built, Timber of all kinds, and Salt Herringslwere exempted from this Duty.
56
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
considerable, but was of late Years much diminished. £56 3 4 In 1757 it produced
8^.
|
£562 |
2 |
|
552 |
2 |
|
578 |
7 |
|
552 |
2 |
|
570 |
17 |
|
569 |
8 |
|
578 |
16 |
|
571 |
7 |
|
572 |
11 |
|
563 |
13 |
. . . .In 1749, a Tax was laid upon every House within the City and Suburbs of Quebec for repairing the Barracks and keeping the same in order. The reparation was made by the Officers of Justice and a deputy from the Trade approved by the Governor General and the Intendant.
8i In 1749 it amounted to
6 « 1750 « to
6 « 1751 « to
6 " 1752 " to
6 « 1753 " to
4 « 1754 " to
3 " 1755 " to
1 " 1756 " to
6 " 1757 « to
4 « 1758 « to
It is pretty remarkable that notwith- standing the Tax was levied from the Year 1749, inclusive, the King's Edict ordering the same to be raised from the ensuing January is dated only in June 1763.
Besides the foregoing there were cer- tain casual duties, such as —
1" Droit d'Aubaine — a Foreigner dying intestate and without Children the King succeeded to his Estate.
2°** Droit de Desh6rences. Likewise to Estates which fall to persons under monastic vows, and therefore incap- able of inheriting, or to persons ille- gitimate who dye without posterity and intestate.
3"^ Droit d'Epaves — ^Where Whales or wrecks are drove ashore above the high water mark, all expences first deducted, the King had one third, the High Admiral another and the person who saved it the remainder.
£1,348 0 0
|
13,491 |
3 |
9 |
|
13,351 |
0 |
0 |
|
13,881 |
0 |
0 |
|
13,351 |
0 |
0 |
|
13,701 |
0 |
0 |
|
13,666 |
0 |
0 |
|
13,891 |
10 |
0 |
|
13,713 |
10 |
0 |
|
13.741 |
0 |
0 |
|
13,528 |
0 |
0 |
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
57
|
£8,018 |
2 |
3 ' |
|
921 |
13 |
111 |
|
3,363 |
18 |
3| |
|
1,601 |
15 |
0| |
|
56 |
3 |
4 |
|
£13,961 |
12 |
m |
The Receipts in 1757 stood thus.
To raised on Liquors imported 192 ,434 14 0
" " on the Lots and Vents 22,120 15 2
" " on dry goods imported 80,733 18 4
" " on d° exported 38,442 1 5
" " on Moose Deer Skins ex- ported 1,348 0 0
Total .._3335,079 8 11
523 2,719
10
3
ExPENCE OF Government 1757
By duties paid on Liquors imported for
the Kings account
By sundry Contingent expenses
3,242 13 9
The particulars of this sum were
1" Expences of Criminal Suits, appre- hending and guarding criminals, Ex- pences of Evidence, etc., 26,004 13 2 This article of expence varied every Year more or less, it seldom exceeded the above and has been as low as 10,000.
2^ Maintenance of Foundlings and Bastards Children of the Three Gov- ernments at the rate of 10 Liv. p' Month 18,511 6 8. This likewise varied, one Year it amounted to 24,000.
3'' Public Works and High Roads 9,494 15. This also varied. It has often exceeded 12,000.
4"" Expence of Public Prisons and sub- sistence of Prisoners 11,249 15 2. This article exceeded the usual ex- pence on account of the English Prisoners.
By the Cantine of the Troops in the 653 5 3| Three Garrisons
This was a Douceur allow'd the Staff of each Garrison. The Town Major made out rolls of the Soldiers of each Garrison and these were certified by
12,564 0 0 65,260 0 0
77,824 0 0
15,678 7 2
58 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
the Comptroller of the Marine. It was supposed three half pints of Wine p' day were imported for their allowance the duty on the amount of which was returned by the receiver General.
This perquisite was shared among the Governors who had one half of it the Staff divided the other half.
Proportion of the several Governments in 1757.
Quebec 8,063 3 7
Montreal 6,122 0 0
Trois Rivieres 1 ,493 3 7
By allowed the Attorney General for making out a State of the Kings 41 13 4 Rents 1 ,000 0 0
By Duties paid on goods imported for 923 6 11 the Kings account 21 ,160 6 3
By Salaries of Officers and other ex- pences attending the receipt of the 1 ,540 1 6§ Kings Revenues 36,961 17 1
£6,401 0 10 153,625 0 6
This last article comprehends, 1"* (a) The Salaries of Clerks, Land- waiters and other Revenue Officers 27,792 11 6. 2^ Usual (b) gratifications 1,270. 3*^ By sundry other expenses, trifling
' Repairs of Office • 200 0 0
House rent of D° 4,000 0 0
Fuel for D" 1,450 0 0
Repair of Canoes 400 0 0
Stationery 999 0 0
Salary of the Clerk of the Treasurer
General of the Marine 600 0 0
To a Gauger 250 0 0
(o) A list of these for 1758, is annexed N". 3. That for 1757 did not come into our hands.
(6) This article of gratification was to reimburse the Governor and other Officers, what it
was supposed they paid for duties The Governor General received of this 600 25 : 0:0
The Intendant 450 18 : IS : 0
Governors Secretary 75 3:2:6
Intendants D" 145 6 : 10 : 0
1270 53 : 7:6
CONSTITUTIONAL DOCUMENTS
59
SESSIONAL PAPER No. 18
The foregoing expences were not always the same and were paid upon the Intendants orders, and by his direc- tions in which they differed from the following which was called Etat du Roy du Domaine, and was the Es- tablishment paid by a Yearly order from the King signified by his War- rant signed in Council and which generally amounted to 114,000 Livres or there abouts.
Etat du Roy du Domaine
By expences of Forts and Garrisons Governor General as Governor of the Town and Castle of
125 0 0 Quebec 3,000 0 0
157 1 85 Pay (c) and Provisions of
the Garrison 3,770 0 0
20 0 0 Fuel of D" 480 0 0
75 0 0 Lieut' du Roy 1,800 0 0
50 0 0 Town Major 1 ,200 0 0
33 6 8 Captain of the Gates 800 0 0
460 8 4i
Montreal
125 0 0 Governor (fl) 3,000
54 3 4 Pay of the Garrison 1,300
83 6 8 Lieut' (6) du Roy 2,000
50 0 0 Town Major 1 ,200
Trois Rivieres
125 0 0 Governor 3 ,000
54 3 4 Pay of the Garrison 1,300
75 0 0 Lieut' du Roy 1,800
50 0 0 Town Major (c) 1 ,200
1,077 1 8
11,050 0 0
7,500 0 0
7,300 0 0 25,850 0 0
(c) As no Garrison was kept either at Quebec, Montreal or Trois Rivieres the above were perquisites to the several Governors.
(a) This Officer had by way of gratuity from the Marine Chest 1000 Livres and J p' Cent from the East India Company on the Beavor they exported amounting to about 1500 more.
(6) The Lieutenants du Roy had each 1800 Livres, the Senior of these had a gratuity of 200 besides, the Lieut' of Montreal was the senior in 1757.
(c) The Town Major had a perquisite of 2 Barrels of Powder each for the use of their Gar- litons, but as they did not exist, they received each in lieu thereof from the Storekeeper 250 Livres. Each Gov' also paid bis Town Major 100 Livres for signing the Rolls.
60 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
By paid to Religious uses 112 10 0 To the Clergy {d) and in aid of
building Churches 2 , 700
333 6 8 To the Chapter of Quebec 8,000
83 6 8 To the support id) of superan-
uated Priests or Missionaries 2,000 316 13 4 As a supplement (d) to Cures of
Poor Parishes 7 ,600
554 3 4 To the Jesuits for their Missions and a Professor of Hydrog- raphy 13,300
To the RecoUets of Quebec 1 , 200
To the Convent of Ursulines. . . 1 ,500 To the Convent of the Hotel
Dieu 7,500
83 10 0 To the Convent of the Hospital
General 2,000 45,800 0 0
|
50 0 |
0 |
|
62 10 |
0 |
|
12 10 |
0 |
At Montreal
83 10 0 To the Hospitalieres 2 ,000
125 0 0 To the Fillesde la Congregation 3,000 By the Salaries of Officers of Justice 20 16 8 To the first Conseiler of the
Conseil Superieur (e) 500
To 10 others at 450 each (/).... 4 , 500
To the Attorney General 1 ,500
To the Greffier 700
To the Huissier 100 12 ,300 0 0
|
187 10 |
0 ' |
|
62 10 |
0 ' |
|
29 3 |
4 ' |
|
4 3 |
4 ' |
3,498 5 0 83,950 0 0
'I
Salaries of the Officers of Prev6te of Quebec.
29 3 4 Lieut' Gen.' Civil and Criminal
{g) 700
25 0 0 Lieutenant Particulier 600
12 10 0 Proceureur du Roy 300
4 3 4 Greffier 100 1,700 0 0
(d) (d) (d) These were distributed by the Bishops. («) Of late Years he had a Gratuity of 450"" from the marine.
(/) There was a vacancy of one this Year. The Salary of Three Eldest had of late Years been augmented with a gratuity to each of 150 Livres also from the Marine.
(,g) This officer had of late Years obtained an addition of 300 Livres out of the Marine fund.
CONSTITUTIONAL DOCUMENTS
SESSIONAL PAPER No. 18
Montreal
18 5 0 Lieutenant Gen' Civil 450
10 8 4 Proceurer du Roy 250
Trois Rivieres
18 5 0 Lieutenant Gen» Civil 450
10 8 4 Proceurer du Roy 250
Salaries of the Officers of Police
25 0 0 To the Grand Voyer (a) 600
20 16 8 To the Prevost des Marechaux
de France (&) 500
12 10 0 To an exempt under Him 300
29 3 4 To4 Archers (c) 175 Livres each 700
13 15 0 To a Hangman 330
3,728 6 8
By expenses of the Hospital at Quebec
50 0 0 Salary to a Pysician 1,200
50 0 0 First Surgeon 1,200
33 6 8 Second Surgeon 800
25 0 0 Midwife 600
By Sundry extraordinary expences
41 13 4 Publication of the decrees of
Council 1,000
4 3 4 Expences of Fuel (d) in y* Coun- cil room 100
8 6 8 Travelling Charges of the Arch- ers 200
20 16 8 Allow'd the Bishop in lieu of
Duties paid by him 500
61
700 0 0
700 0 0
2,430 0 0
89,480 0 0
3,800 0 0
1,800 0 0
(a) This Officer had likewise an allowance of 10"' p' diem extraordinary when upon his duty. If the Inhabitants applied to -him to make out roads for their own private advantage they were at all the expenses attending the same.
(b) This Officer likewise had an allowance of T"" 10" p' diem travelling charges when out upon the execution of his office.
(c) These were severally allowed 3"' p' diem when sent in pursuit of Deserters or other Criminals.
(rf) This was a perquisite to the Lieutenant General and as the firing would have cost three times as much, the Intendants supplied the same out of the King's Yard.
62 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
By paid to the Establishment of
Louisberg, a Pension to the
Count of Gac6 son to the
Marquis of Matignon in lieu
of some land taken into the
50 0 0 Kings hands 6,000
333 6 8 D° to the Religious Brothers of
la Charite 8,000
62 10 0 D" to the Nuns of La Congre- gation 1,500
SO 0 0 D" to 4 Councellorsat300 each 1,200 16 13 0 D° to the Proceureur General
All at same place 400 17 , 100 0 0
83 6 8 By a pension to a Botanist at
Louisiana 2,000 0 0
4,757 10 0 Total of the Etat du Roy. 114,180 0 0
The Salary and Perquisites of the Governor General
£500 0 0 From the Marine Funds appointments. 12,000 125 0 0 From D° allowance for freight of neces- saries from France 3 ,000
125 0 0 From the Domaine as private Gov' of
Quebec 3,000
157 1 8 From D" Pay of the Garrison 3 , 770
25 0 0 From D° in lieu of what he paid for
duties 600
From the Marine a Company of Guards Call'd the Carabineers to attend him. They had usually two or three, and public or state days they found people enough to com- plete the number. — ^They consisted of
58 6 8 A Captain at 1,400
41 3 4 Lieutenant 1,000
25 0 0 Ensign 600
233 15 0 17 Private at 27"' pr Month 5,610
From the E. Indian Comp^ a present of 2 p' C on all the Beaver exported by them, valuing the whole upon an average of 2"" p' pound. This varied every Year but upon a medium may 250 0 0 be set down 6 ,000
I
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
His share of the Cantine as set down above. 167 19 2 This Hkewise varied in 1757 it produced
For Belts of Wampum presented by the Savages to the Governor at the sev- eral Conferences he had with the dif- ferent tribes which Belts he sent to the Kings stores to be worked up into another Form, and for which the 83 6 8 King paid him
63
1,792 2 6
4,031
2,000
41,011
500 125
18
|
187 |
10 |
0 |
|
SO |
0 |
0 ] |
|
50 |
0 |
0 ] |
The Salary and Perquisites of the Intendant
0 0 From the Marine appointments 12,000 0 0 From D° allowance for Freight
of necessaries from France. . . 3,000 5 0 From the Domaine in lieu of
duties he paid 450
From the E. India Comp'' a pres- ent of one and a half per C on all the Beaver exported by
them at a medium 4,500
From the Marine allowance for
a Secretary 1 , 200
From D° for a Gardiner 1 ,200
930 15 0
From the foregoing it appears that the Country duties raised in 1757 together with the other Revenues belonging to the King produced that Year
13,961 12 10^ the sum of
From which deducting the Etat du Roy amounting to 114,180. And the expenses ordered on this side by the Intendant 11,158 10 S\ 153,624 10 6
22,350
335,079 8 11
2,803 2 5 J Remained a surplus of.
267,804 10 6 67,274 18 5
lich surplus when there was any, was paid by the Receiver General of the Kings domaine, into the hands of the Commis of the Treasurer General
64 CANADIAN ARCHIVES
6-7 EDWAR5 VII., A. 1907
of the Marine as an addition to that Fund, out of which all the general expences were paid. Such as the Subsistence and provision of the eight Battalions, Forty Companies of Marines and Detachment of Royal Artillery serving in Canada, the officer of the naval Yard of Quebec, and in short all the ordinary and extraordinary expences attending the Military and Civil Government of Canada the officers of the Court of Admiralty only excepted, who were paid by the High Admiral of France.
The expence of Government in this Country was formerly very moder- ate, for a series of Years to that of 1726, it never exceeded 360,000 Livres; the two ensuing ones it was advanced to about half a Million, on account of the Colonies being at War at that time, with the Indian nation of Renards. From this period it gradually increased to a Million, and from the breaking out of the war with Great Britain in 1744, till peace was concluded with her in 1748, the annual expence amounted to about 2 Millions.
In the month of August in that very Year the late Intendant M' Bigoe came over, the expences have ever encreased and to 1753 inclusive did not amount to less than three, four, or five Millions every Year.
In 1754 Bills were drawn on France for 6,000,000
1755 5,500,000
1756 8,000,000
1757 12,000,000
1758 24,000,000
1759 30,000,000
1760 The Intendant was directed not to exceed two Million four hundred thousand Livres and drew only for 1,300,000 To the above is to be added the Paper Money remaining in the Country, andfor which no Letters of Exchange have been drawn. . . 22,000,000
4,533,333 6 8 108,800,000
Of the whole upon the most moderate 3,333,333 6 8 computation, at least 80 Millions are still owing
The manner of transacting the business is thus. The Intendant for every expence emitted the ordonnances, which passed current with his bare signature only, one of which, (No 4.) is annexed to shew the nature of it; in August notice was given to the proprietors, to bring into the Treasury within the Month of September, and untill the lO"* of October, the Ordon- nances in their possession, for which they took the Treasurers receipt, and commenced drawing the Letters of Exchange, which continued fifteen or twenty days, or till the navigation was shut up.
From the Year 1740, to that of 1746 Letters of Exchange were drawn only for three fourths of the value brought into the Treasury; these indeed
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payable in 6, 7, 8, or 9 months, when they were duly discharged, the re- maining fourth was reimbursed the proprietors, by a Card Money, of which there is to the amount of near a Million still existing in the Colony.
From 1746, to 1752, Letters of Exchange were drawn for the full sum brought into the Treasury and were all made payable sometime within the ensuing Year.
But the expences having encreased considerably orders were given to to divide those of the Year into three equal parts payable in 1, 2, or 3 Years. This was put in execution in 1753, but the very Year following another ar- rangement took place; only one fourth part was made payable in the course of the ensuing Year, one half two Years after that and the remaining fourth in three; and this Method was ever after observed 'till the Year 1760. By this means a great number of those drawn in the preceding Years, were not come in course of payment, when the Kings Arret of October 1759 sus- pended payment entirely
NB° the Clerks of the Marine and other Officers employ'd in that department, having left the Country it has not been possible to procure certain accounts of the expences of that branch.
Throughout these calculations and in every other part of this Report, The French Livre to avoid Fractions is esteemed at ten pence Ster''.
Observations.
1" I had the Honor to inform the Lords of the Treasury very fully of the state of the Kings ports, in a Letter to M' Martin their Secretary, of the 7"' November last, at the same time that I transmitted all accounts relative thereto by M' Ainslie whom I intrusted with the management of them until I could receive instructions from home, I am thoroughly per- suaded the proposal I therein made to their Lordships of selling them to the highest bidder, for a Term of Years, is the surest expedient to make them profitable to His Majesty.
2 — The duty on Liquids will ever bring in a considerable sum, for tho' the Canadians in general are not much given to drunkenness. Yet Men, Women and Children are used to drink a certain quantity of strong Liquors, the severity of the Climate having probably introduced this practice. By the great improvement likely to be made in the Fisheries the consumption of these will considerably increase.
3 — ^As the Canadians seem thoroughly reconciled to the use of British made Corn spirits, the consumption thereof could suffer no diminution, from a moderate duty upon the same of 6'' p' Gallon, and that of Rum or New England Spirits might be raised to a Shilling, this would check the im- portation of the latter and favor that of the former, that the Revenue may not suffer by this measure, it will be necessary to prevent any attempts which may be made of smuggling by the Lakes while they are navigable as well as when they are to be travelled over with carriages. — The like precaution
<56 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
will be necessary to be taken for the lower part of this River, which abounds with little bays. Creeks, and Rivers favorable for such practices, as detri- mental to the fair Trader as to the state itself.
4*'' — As there have been few or no purchases made since we have been in possession of Canada, the people having no money and being uncertain of their fate, the Lots et Vents, have produced nothing considerable; when a settlement takes place this branch of the Revenue will probably receive a large encrease.
5 — The tax upon Houses in the City and Suburbs of Quebec for the support of the Barracks, could not be levied upon the Inhabitants since the Town has been in our possession, as great part of it was in ruins, and many of these who were formerly wealthy have been reduced to great distress thereby, besides that it might prove a disencouragement to the rebuilding it.
6 — As probably it may be thought right, not to receive the duties on dry goods, a Tax upon Horses might be introduced in lieu thereof, it would serve also to restrain a piece of luxury the people of this Country are too apt to run into, in that respect, and prove a means to encourage the breed of horned Cattle of which at present by the unavoidable waste of War, they are very short, besides, as Cattle must be housed here for a long time during the Winter, the Horn'd kind are fodder'd with more ease, less cost, and afford a double utility.
T"" — The small salaries given by the French Government to the Civil Officers in general made them neglect their duty and wreck their invention to cheat and trick both King and People ; This was carried to such a length that many instances may be cited of clerks and men in petty Offices with Yearly Salaries of only Six or Eight Hundred Livres, raising to themselves in the compass of three or four Years Fortunes of three or four hundred thousand.
8. — Before I close this article I must add that the duty on Wine may be easily revived without distressing the people or lessening the consumption, as there is no doubt that an additicJnal one may be raised hereafter upon spirits. But it must be observed, /that the lighter the burthens are laid at present upon the people, the more it will ingratiate their new Masters, the more it will enable them to repair their past losses and the sooner they will be in a condition to contribute a proper portion to the public expences.)
5th
Church Government. The Bishop.
When the Bishoprick of Quebec was first established in 1674, the See was endowed by Louis the 14"* with the Revenues of two Abbacies, those of Benevent and L'Estrees; about 30 Years ago the Bishop then finding it
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difficult, considering the distance, to recover the revenues of them by consent of Louis the 15"' resigned the same to the Clergy of France, to be united to a particular revenue of theirs stiled the yEconomats applied to the aug- mentation of small livings. In consideration of which the Bishop of this See has ever since received 8,000 Livres out of the said Revenues. A few Years before the late Bishops death, the Clergy of France granted him for his life only a further pension of 2000 Livres. The Bishop had no estate whatsoever, except his palace in Quebec destroyed by our Artillery, a Garden and the Ground rent of two or three Houses adjoining it and built upon some part of the land.
Tlie Chapter of Quebec.
The Chapter consists of a Dean and twelve Canons; Their revenue consisted of an Abbacy in France which brought them in about 4000 Livres and a pension from the King of Eight Thousand paid out of the Domaine. The whole was divided into fourteen shares of which the Dean had two.
There is one vacancy in the Chapter, the present Dean the Abbd de la Corne, a Canadian and five of the Canons are in France.
Parish of Quebec.
The Town and Suburbs form but one parish which is very extensive and is served by a Cure and two Vicars under him. The Church is Parochial as well as Cathedral, no part of it is left standing but the bare walls; a Chapel of ease in the lower Town was likewise burnt during the Siege. The people at present perform their devotions in the Chapels of the several religious communities. Some part of the Lordship of Quebec is the property of the Cathedral or parish Church, stiled here La fabrique and is appro- priated to the repairs of it; a dispute subsists between the Chapter and the seminary about the nomination of the Cur6, the affair was to have been judged by the King but was still undetermined.
The Jesuites.
They possess a large commodious House, a handsome Chapel and a spacious Garden within the upper Town, the House and Chappel suffer'd a good deal from our artillery, but might be easily repaired; no other place in the Town being so proper, it has and is still made use of as a Magazine of Provisions. For this reason it was necessary to dislodge the Fathers the first Winter, less their turbulent and intriguing genius should prompt them to play some trick which might have proved fatal in the critical situation of affairs and which they could perhaps have easily compassed had they been suffer'd to reside in the House. After the capitulation of Montreal they were readmitted and conveniently lodged in one wing of it and have freely consented to His Majesty making use of the remainder.
I
68 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Their particular province is the instruction of Youth and the Missions of the Savages, the King allow'd them on account of the latter, 13,300 Livres.
They have a very large estate in the Country and hold some lands in the Town en Roture, but are Lords of very large tracts in this Government, and of very considerable ones in the other two. They possess in that of Quebec the best part of the large and rich parish of Charlebourg, that of Lorette and most of S' Foix. By the best accounts their revenues cannot be short of 30,000 Livres p' annum and most probably exceed it; of which in this Government about Eleven Thousand. They have only two Missions here, one to the Hurons at Jeune Lorette near Quebec, the other to the Montaignais at Tadousac and Chicoutimi. The whole number in Quebec Govern"* the two Missionaries included is 9. The Superieur is nominated in France and holds the Office generally six Years.
The Recollets.
This is an order of Mendicant Friars who possess nothing of their own but a House and Garden in the upper Town. They had a piece of ground in the suburb of S' Rock on which they formerly had a house and church, which has been abandoned for some Years. A small part of the In- tendants buildings is erected upon a piece of this Land, in consideration of which under the French Government they were paid fifty Louis a Year from the Marine by way of charity as they can receive no rents. They acted as Chaplains to the Army, and at the several Forts or posts and failure of regular Clergy served the vacant Curds.
They have a provincial Commissary resident here, who superintends the whole order in Canada, sent from France and changed every three Years. The present one has discharged it twice, on account of the War. They have
in this Government
Fathers 10
As Servants or Brethren 9 19
Seminary of Quebec.
These are Secular Clergy: Their institution is to educate the Youth and fit them for the priesthood. They have a large House and Chapel in the City of Quebec, both in a ruinous condition ever since the siege of 1759. It is a dependance upon the seminary for Foreign Missions at Paris, who nominate the superiors and directors of that of Quebec, but their estates are not entirely distinct; besides the Island of Jesus in the Government of Montreal, they px)ssess part of the Lordship of Quebec & the whole extent of the country from the Saut de Montmorenci to the Riviere du Goufre in the Bay of S' Pauls inclusively and the Island of Coudres. This immense tract does not bring them in very considerably, their great Revenues in these parts arising from the two large Farms in the Parish of S' Joachim,
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SESSIONAL PAPER Do. 18
where before the breaking out of the war, they had between three and four hundred head of Cattle ; on their estate in the Bay of S' Pauls they discover'd some Years ago a Lead mine, the Veins which have been tried are slight, but two Germans who were brought over to the Country, on account of the like discoveries in the upper Country, examined this and thought it worth working; the War has prevented making further Essais upon it. The income of their estate in this Government may be estimated at about 9,000 Livres p' Annum. They consist at present of only the Superior and four directors.
Convent of the Hotel Dieu of Quebec.
This is a community of women, particularly instituted for the care of the Sick ; They had been in good circumstances but their House having been entirely consumed by Fire, a few Years ago, they are considerably indebted for the rebuilding of it.
■, This house has two distinct estates and Purses, the one belonging to the ■Community, the other to the Poor — The former owes about 108,000 to different Artificers, and for sums borrowed towards rebuilding the Convent. They have a Rent charge upon the Hotel de
1^^ Ville at Paris which brings them in 1330 Livres
^^H A Seigneurie in Charlebourg with estates &
^^H gardens in this Town 3500
^^■' For its share of the 7500 p'' by the King. .. .. 3000 7830
l^» They keep some pretty large Farms in their hands Cultivated by their domesticks, out of the produce whereof they are at present chiefly subsisted.
Number of Nuns 36
^H The Poor have a charge on the Hotel de Ville at Paris
^^B Foundation of a Dutchess D'Aiguillon. . . 646 12 0
H The Lordship of S' Augustine 1 ,200 0 0
'^^ Their other estates in the suburb of Quebec including a small one in the
Island of Orleans produce about 500 0 0
Their part of the Kings bounty was 4,000 0 0
6,346 12 0 They are not at present in circumstances to take in any.
Convent of the UrsuUnes at Quebec.
This is likewise a community of Women, their institution is for the education of Young Girls.
They have a Rent charge on Hotel de
Ville at Paris 1,400 0 0
A Farm in Normandy 950 0 0
70 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
The Lordship of Portneuf in this Coun- try and S' Croix, about 772 0 0
Their other estates in and about Town
about 960 0 0
Nuns 38. 4,082 0 0
The chief estate of this community consists in their Boarders, and a number of little ingenious works, for which there is a great demand, by means of which they are enabled to live very decently and comfortably.
The General Hospital near Quebec.
This is a community of Women, they have a Foundation for taking care of Thirty Invalids, Idiots or Incurables, which they are at present in no condition to fulfil, their revenues being no way equal to the expence, and as a large sum is owing them by the King of France for the sick of his army. In the time of the French they were allowed rations for as many of the above as they took in and a pension of 2,000 Livres. The Ladies of this community are of the best Families in Canada and by the presents they were continually receiving from them they were chiefly enabled to subsist; That revenue is now at an end, as the Gentry in general are at present in the most distressed circumstances.
They owe a very large debt contracted in a good measure for the support of the sick Officers and Soldiers of the French Army. The French King owes them a large sum, sufficient to discharge it, but they must be reduced to the utmost beggary and distress if he does not; The sale of all their houses and Lands will scarce be sufficient to satisfy their Creditors. Their whole estate in this Country does
not bring them in at the most above . 5 , 000 Livres. A rent on the Hotel de Ville at Paris. ... 1 , 800 6 , 800'
Their Number Nuns 33
Invalids 33 66
Les Filles de la Congregation
This was an institution for teaching Young Girls to read and write; they take the vows but are not cloister'd and go abroad about their affairs. They are poor. However besides what they possess in the other two Governments they had a House in the lower Town destroy'd by our Artillery, j one at Point au Tremble and one with a small Farm at S' Famille in the Island of Orleans.
Their number at present in this Government 4
This Government is divided into 50 Parishes some of which are small, and not thoroughly inhabited as Yet: For want of regular Clergy, several of the Recollets serve Cures, and in some places one Cur6 serves two, the whole
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is under the inspection of a Vicar General at present, during the vacancy of the See.
Obsetvations
1" The Canadians are very ignorant and extremely tenacious of their Religion, nothing can contribute so much to make them staunch subjects to his Majesty as the new Government giving them every reason to imagine no alteration is to be attempted in that point.
2 . . . Care was taken under the former Government to keep up a great part of the Clergy French, especially the dignified part: To prevent the further importation of these, it would be necessary to encourage the natives to engage in the profession, which cannot be so well done, except the See is filled up, as without a Bishop there can be no ordination: some difficulty will attend this, as it is unendow'd tho' hereafter means may be found of making up this deficiency.
S"*. . .A like difficulty occurs in relation to the Chapter, their number indeed might be reduced by letting the vacancies lye dormant, if some provision cannot be made for them as will hereafter be proposed.
4"". . .An expedient to assist the people in rebuilding their great Church, would much ingratiate their new Masters with them.
/ S"". . .The Jesuites are neither loved nor esteemed in general, and this order may be easily removed whenever the Government shall think proper without giving offence, out of part of their Estate provision might be made for the Bishoprick, and Chapter which would ease the Crown of further expences on that head.
6"" The Recollets is an order of Mendicants, as they depend upon chari- ty for subsistence, they are careful not to give offence ; probably should they find the Inhabitants upon the present change, cool towards their Order, they will of themselves seek a better living somewhere else.
7"" The Seminary educates the Youth, and fits them for Orders, it will be necessary to preserve and encourage this House on that account, and it is to be observed, this was the only Religious House or order, that heretofore did not participate of the French King's Bounty.
8"" As to the communities of Women they are much esteemed and espected by the People, the narrowness of their circumstances will probably prevent their being filled up so easily as in former times; when the Canadians become a little more reconciled to British customs and Government, it nay not be amiss under colour of serving those communities in their dis- ressed situation, to restrict the admission of any under a certain sum; his regulation with another fixing a certain age, under which no vows to )e taken, would probably soon reform the worst abuses of such institutions.
9"'. . .There are some few French Protestants in this Country who no loubt will be willing to remain, it would be a great comfort to these, if a I!hurch was granted for their use, and some French Clergyman of sound
72 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
sense and good Character, with a tolerable salary, was invited to settle among them, such an establishment may be attended with the further good consequences of enticing many of their Brethren in France, to come and enjoy that religious liberty, after which they so ardently sigh, amidst a people sprung from the same origin, speaking the same language, and fol- lowing the same Customs. It may likewise be conducive towards bringing about a Reformation, by slow degrees and must at least prove to the Cana- dians there is nothing in our Holy Religion repugnant to Virtue or Morality.
gth
Indian Nations residing within the Government
In order to discuss this point more clearly I shall first take notice of the Savages on the North shore of the River S* Laurence from the Ocean upwards, and then of such as inhabit the South side of the same River, as far as the present limits of the Government extend on either side of it.
1*' The Savages on the North shore. The first to be met with on this side are the Esquimaux, these are the wildest and most untamable of any, and are emphatically stilled by the other Nations, Savages. They never dress their food but eat fish rotted in the Sun and drink the oil it produces. Travellers represent them hardy, active and expert navigators: In the sum- mer they come with their whole Families in Chaloups to fish in the streights of Belisle, these they leave in the Bays, and go out themselves to a consider- able distance in Canoes made of skins wherein they sew themselves up. Their clothes and sails of their Vessels are made of the skins of wild beasts; They are reckoned treacherous, and have had many encounters with the French and Canadians employ'd on the fisheries in those parts. Their Language is not understood but a few words they make use of nearly re- semble the dialect of some of the most northern European Nations. A few here have trafficked with them and made a considerable advantage by it, but they never agreed well together; any trade with the Esquimaux however must be precarious; The Coast is rocky and difficult of access, the season for navigation short, and the risks too great to entice adventurers; they have never been known to come on this side of La Forteau.
2^ — ^The Montagnais or Monsonies inhabit a vast tract of Country from Labrador to the Saguenay; they are again distinguished into those who live in the inland parts call'd Nascapies, and the inhabitants of the water side, for this reason stilled Chuchouxlapishouets. They take as many differ- ent names as they have Villages but are all the same people, and speak the same language. As in the interior parts of the Country there are many Lakes and Rivers which communicate with Hudson's bay, the former often trade on that side, which the latter also would have been obliged to do, if
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SESSIONAL PAPER No. 18
the interruption caused by the War, had continued for any time, tho' from the more convenient situation, they would have ever reverted to those who were Masters of the River S' Laurence, those are the mildest and most tractable of all Savages and never enter into War. Tho their country is extensive their number is inconsiderable; From Labrador to Mingan the Traders do not reckon more than from Eighty to one Hundred Families, and of those who resort to the King's Posts, there may be about 220 Families in all, but as their habitations are easily moved they are ever changing and shifting from one place to another.
A Jesuit Missionary meets them at Tadousac when they come there for the trade and he resides in the neighbourhood all the Year.
3"*. . .The most civilized of all the Indians in this part of the World are the Hurons settled at a little Village called Jeune Lorette about 3 leagues from Quebec. These are called Roman Catholicks and are a decent well behaved people, it is now many Years since they removed there from their ancient habitations about Lake Huron or Erie, are settled upon lands belonging to the Jesuites, and live in much the same manner as the Cana- dians. They have excellent good Houses, Cultivate their own lands and live upon the produce: In the Hunting season they go into the woods and hunt themselves or traffic with the more remote Indians for their Pelletries. Some of the Elders have been so tenacious of their Mother tongue, they hardly speak a word of French, but most of the Younger ones speak it tolerably well; indeed it has ever been the policy of the French Government to make them retain that and as much of their ancient customs as possible, that they might prove of greater use to them in case of war with other nations, at the same time they endeavour'd to attach them to their Interest by every tie. A Missionary resides among them, they have a neat Chapel, where divine service is constantly performed at which all the Savages assist with a punctuallity and decorum worthy of imitation by more en- lightened people; They seem to be well satisfied with the change of Masters, and were so particularly pleased at their Village having been spared during the Winter 1759, tho' forced by the French to abandon it, that they never could prevail on them to act with any degree of vigor against us. They have at present but 32 Warriors and the whole Village, Men, Women and Children are short of 100. Their number is decreased at least one half within these forty Years, and the Tribe would by this time have been almost extinguished but for the supplies they got by captures in War, and the sale of unhappy infants whose Parents chose to conceal their own shame at the expence of such iniquitous bargains.
2* Savages upon the South Shore
These have wandered about the Country so very much and have been so unsettled by the continued Wars and frequent revolutions that have happen'd in this part of the Continent, it is hard to give any tolerable
74 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
account of them at this time. By the best informations we have been able to collect, the Miamies were settled, and some are still, about thgBay des Chaleurg, and upon the Coast and Bays in the Gulph, they are not at present numerous. In_1759 about one hundred of them joined the French.
The Kanibas and Malecites, inhabit about the Rivers S' John and Pentagouest; their Language and that of the Abenakies is pretty nearly alike, and the three Nations are a good deal intermixed. The latter were settled about Narantsauc and Panaouansk^, now wander about the South shore, and range the woods as they find it best answer their purpose, with those of the same tribe at S' Francois and Beaconcourt in the Government of Trois Rivieres, it is computed they may amount to twelve or fifteen hundred families and in 1759 about 600 fighting Men of these Nations joined the French army near Quebec.
Under the French these were the only Indians who resorted to this place, where they received from the Government presents of Powder, Shot, Vermillion and other trifles; in time of War Clothing and Provisions.
Montreal was the chief seat of the Fur-trade and the greatest concourse of remote and back Indians or of those who traded with them, was there. There the Governor General used to meet and confer with their Chiefs and all business relative to them was mostly transacted.
From the Governor of Montreal therefore Your Lordship will certainly get fuller and better accounts on this head than I can possibly give, (a)
I have and ever shall be attentive, that due justice as far as in my power shall be done to them ; few Complaints have as yet been made, when there have been any they have met with instant redress.
7 th Nature of the Soil and its Produce
With a very slight cultivation all sorts of grain are here easily produced, and in great abundance, the inhabitants are inclinable enough to be lazy, and not much skilled in Husbandry, the great dependancies they have hither- to had on the Gun and fishing rod, made them neglect tillage beyond the requisites of their own consumption and the few purchases they needed, the Monopolies that were carried on here in every branch, made them careless of acquiring beyond the present use, and their being often sent on distant parties and detachments, to serve the particular purposes of greedy and avaricious Men without the least view to public utility, were circum- stances under which no country could thrive; As they will not be subject to such inconveniences under a British Government, and being necessarily deprived of arms they must of course apply more closely to the culture of their Lands.
The mines already discover'd, and the mineral and sulphurous waters in many parts of this Country leave no room to doubt, nature has been bounti-
(a) No. S. Extract of a Letter giving some account of the Trade of the upper Country.
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SESSIONAL PAPER No. 18
ful to it in this respect, and that further discoveries and improvements are likely to be made with regard to these, whenever it becomes more populous. Notwithstanding the waste of war, which they have much more severely felt from their pretended friends, than from their declared foes, the Country will abound in three or four Years with all kind of provisions, sufiicient not only to answer their home consumption, but even to export if a Market can be procured.
Observations
1". . .They grow both Hemp and Flax in some parts of the Country, and many of the Lands are well cultivated for this Production. It will be right to turn the thoughts of the people towards the cultivation of this article, so essential to Great Britain and for which she annually pays great sums to Foreigners, a few premiums properly disposed of, some Germans and Russians skilled in raising and preparing the same and encouraged for that purpose to become settlers here may in a short time greatly improve s most useful branch of Agriculture. 2"*. .This will be one means of employing the Women and Children during the long winters in breaking and preparing the flax and Hemp for exportation, will divert them from manufacturing coarse things for their own use, as it will enable them to purchase those of a better sort manufac- tured and imported from Great Britain.
m
Population
The present state of population may be easily seen by the annexed (a) Account of the number of people in this Government taken about a twelve month ago.
There is great reason to believe this Colony has been upon the decrease in this respect for near twenty Years past, the Wars which they have been almost constantly carrying on, the strictness with which Marriages within a certain degree of consanguinity were forbidden except by dispensation, the obliging Strangers inclined to engage in that state, previously to prove their not being married before, and the prohibition of intermarriages between protestants and Roman Catholics were so many bars to the prop- agation of the Species, these difficulties are now in a good measure removed; the men are an active, strong, and healthy race, the Women are extremely prolifick and in all human probability the next twenty Years will produce a vast increase of People.
(o) N' 6, p. 81.
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Trade
The French bent their whole attention in this part of the World to the Fur Trade, they never enter'd heartily or with any spirit into the fish- eries; most of what was done in this way was by adventurers from the ports of France; some Fish indeed Lumber and provisions were exported to the French islands. Had this trade been opened and agriculture promoted here with any degree of warmth, this branch of Commerce must have become both valuable and extensive but it was monopolized into the hands of a few, by the connivance and management of the Chiefs, the sole view of these being to enrich themselves by every means. The interest of the State could not fail to be sacrificed upon all occasions.
By the best accounts we can procure, the value of Furs exported in the Year 1754 and 1755 taken from the Duties paid thereon stood thus
lb. s d
£64,495 4 71 (6) in 1754 1,547,885 11 0
52,735 8 4 (c) in 1755 1,265,650 0 0
But the most intelligent Traders here estimate the exportation of this one article to have amounted one Year wilji another to near £140,000 Sterling p' annum.
The exportation of these two Years apparently falls very short of this estimation, but it is probable a considerable quantity was run, for the value of imports amounted
£216,769 4 9^ (d) in 1754 to 5,202,461 15 0
75,560 8 9|... The Exports of the same Year to. . 1,813,450 11 0
£141,208 16 0 Ballance against the Colony would con- sequently appear 3,389,011 4 0
which carries with it no degree of probability but a strong presumption, that in this as indeed in every other branch the publick was ill served; such of their custom house books as have come into my hands, are so con- fused and irregular, that even the late M' Farrant sent by the Lords of the Treasury to enquire into the commercial state of this Country tho' sensible and skill'd in transactions of the like nature, could collect little information from them.
The French East India Company had the sole privilege of exporting Beaver, for this purpose the Company had an agent at each Government as Director and a Comptroller, a stated price was paid for it (a) four Livres a pound for the green or winter Beaver and one livre ten sols for the Parche- ment or summer one. The Companies officers gave their receipt for the quantities brought into their Storehouses these became current in the
(6) No. 7, shewing the species of Fur and Quebec price; (c) N» 7: D" p. 81. ^
(</) N" 8. Imports and Exports of 1754, p. 81. (^- •
(a) The Company deducted 5 p' Cent on the aboverprice from the Seller. *
I
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Colony as cash, and in October the Agents drew Bills of Exchange on the Company for the amount of receipts brought into their Office which were ever held in more esteem than those drawn on the Royal Treasury.
The provinces of New York and Philadelphia now share with Canada a great part of the Fur Trade formerly in the hands of the French, but that proportion of it, which the Quebec government enjoy'd must remain here unalterably.
The foregoing is an attempt to sketch the trade of Canada, while sub- ject to French Government, but under the full enjoyment of His Majesty's mild and gentle administration, its commerce must flourish to a far greater extent.
1" A Most immense and extensive Cod Fishery can be established in the River and Gulph of S' Laurence, and may in time prove an inexhaustible source of wealth and power to Great Britain; Settlements may be formed in the neighbourhood of the best fishing places to which the industrious and intelligent in that branch may be invited and encouraged to repair; rich tract of country on the South side of the Gulph will in consequence e settled and improved, a Port or Ports established and furnished with ery material requisite to repair Ships, that have suffer'd by stress of eather or the difficulties attending navigation in such narrow seas, a point uch wanted which will lessen the risks, and considerably increase the rofits of the Commerce of this Colony.
It is further to be observed that the Fish caught upon these coasts d in the bays, far exceed the bank Cod and fetch an advanced price in foreign markets; The fishermen being on the spot will commence fishing e very instant the season permits and will continue to the very last of it hereby at least two Months will be gained to the trade, which are just ow a heavy expence to it, without producing the least profit to it.
2"* Next to the Cod in importance is the Whale fishery which can be carried on to the greatest advantage in the River S' Laurence with less risk and expence than in any other seas, where the animals resort; Under this head may be placed the seal and sea-Cow fisheries of which there is a pro- digious abundance, and an immense (sic) of oil and Whale-bone may be annually exported to Great Britain.
S"* . . There are several small rivers on the Coast of Labrador abounding with vast quantities of salmon; this if followed with spirit and industry, might very soon become a considerable object to the British Trader.
4"". .His Majesty's Yards may by the best accounts be supplied with masts from Chamblie, at a much cheaper and easier rate than from New England. By the latter a tedious Land carriage of several miles and the immense falls of a most rapid river over which they must be rafted and where many are lost must greatly enhance the value of this useful and neces- sary branch of Naval Stores; whereas by the former with little or no risk at a proper season there is an easy water carriage for them all the way to Quebec, the fx)rt for shipping them to Europe.
78 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
5"". .Tho' as has been before observed, this province must now share the Fur Trade, which she formerly possessed under the French Government, with the neighbouring Colonies, Yet that which was carried on with the different nations inhabiting the northern Coast of Canada, must still remain with her; she may likewise hereafter regain a great part of that with the upper Country, on account of the more easy conveyance.
It is likewise probable that this very branch may be much farther extended, than ever it was under the French, by reason of the superior diligence and application of the British Traders.
It must be allowed the French were laudable in restraining the vent of Spiritous Liquors to the Savages beyond a certain quantity: by this means many broils were avoided, for they are fond to excess of everything strong and are all mad in their intoxication.
6*'' . . . Raising hemp and flax for which the lands are in many places extremely proper must be an object of the most serious consideration, And I must repeat here, how useful this must prove to the end of promoting agriculture, of employing the Women and Children during the tedious winter months, and of procuring in a short time a vast exportation of that useful commodity for which the returns will be made in British Manu- factures.
T"*. . .As the Country abounds every where with oak, Ash, Hickory, Walnut, Birch, Beech, Maple and other hard woods, which by experience are known to Yield the most Salts, the article of Pot-ash so much demanded in our Manufactures, may be easily produced and soon become an object of consequence; The essais for this purpose which have been made in our other Colonies and have miscarried, ought not to discourage an attempt in this. The high price of Labor; the Woods being in many parts remote from Water carriage, and the greater encouragement for growing and export- ing provisions to the West Indies, have been so many obstacles to the making of Pot-ash in our Colonies, whereas provisions here must be very cheap in a few Years, for the navigation being closed six months out of the twelve this Country- can never vie with our Southern Provinces in the West India trade; besides the country being settled close to the River side, the con- veyance of the Commodity to the Port where it is to be shipped, will be both cheap and easy it will likewise be a means to employ the men all Winter in the business of Felling and drawing of Wood which time they chiefly dedicate to idleness and smoking.
10"'
Character of the People
The Canadians may be ranked under four different classes 1'' The Gentry or what they call Nobility 2d The Clergy 3^ The Merchants or trading part
CONSTITUTIONAL DOCUMENTS 79
SESSIONAL PAPER No. 18
4"' The Peasantry or what is here stilled, Habitant.
1" The Gentry. These are descended from the Military and Civil officers, who have settled in the Country at different times and were usually provided for in the Colony Troops; These consisted formerly of 28 after- wards 30 and had been lately augmented to 40 Companys. They are in general poor except such as have had commands in distant posts where they usually made a fortune in three or four Years. The Croix de S' Louis quite completed their happiness. They are extremely vain and have an utter contempt for the trading part of the Colony, tho' they made no scruple to engage in it, pretty deeply too, whenever a convenient opportunity served; They were great Tyrants to their Vassals who seldom met with redress, let their grievances be ever so just.
This class will not relish the British Government from which they can neither expect the same employments or the same douceurs, they enjoyed under the French.
2^ The Clergy. Most of the dignified among them are French, the rest Canadians, and are in general of the lower class of People, the former no doubt will have great difficulty to reconcile themselves to us, but must drop off by degrees. Few of the latter are very clever, however the Ecclesi- astical state was once composed entirely of natives, they would soon become easy and satisfied, their influence over the people was and is still very great, but tho' we have been so short a time in the Country, a difference is to be perceived, they do not submit so tamely to the Yoke, and under sanction of the capitulation they every day take an opportunity to dispute the tythes with their Cur^s.
These were moved from their respective parishes at the Bishops pleasure, who thereby always kept them in awe, it may not be perhaps improper to adopt the same Method, in case His Majesty should think right, for the sake of keeping them in proper subjection, to nominate them himself or by those who act under his authority.
It is not improbable that the Jesuites warned by their late disgraces in the dominions of these Potentates who seemed to favor them the most, and apprehending the like or worse treatment from those they stiled Heretics will chuse to dispose of their Estates and retire, as they may possibly find some difficulties to get purchasers the Government might buy their Lands at an easy rate and dispose of the same to many good purposes.
S"* The Traders of this Colony under the French were either dealers in gross or retailers, the former were mostly French and the latter in general natives of this Country all of whom are deeply concerned in the letters of Exchange many are already gone to solicit payment and few of those who have any fund of any consequence in France will remain here.
4"' . . . . The 4"' Order is that of the Peasantry, these are a strong healthy race, plain in their dress, virtuous in their morals and temperate in their living: They are in general extremely ignorant, for the former government would never suffer a printing press in the Country, few can read or write,
80 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
and all receive implicitly for truth the many arrant falsehoods and atrocious lies, Industriously handed among them by those who were in power.
They took particular pains to persuade them, the English were worse than brutes, and that if they prevailed, the Canadians would be ruled with a rod of Iron, and be exposed to every outrage, this most certainly did not a little contribute, to make them so obstinate in their defence. However ever since the Conquest, I can with the greatest truth assert, that the Troops have lived with the Inhabitants in a harmony unexampled even at home, I must here, in justice to those under my command in this Government, observe to Your Lordship, that in the Winter which immediately followed the reduction of this Province, when from the Calamities of War, and a bad harvest, the inhabitants of these lower parts were exposed to all the horrors of a famine, the Ofificers of every rank, even in the lowest generously contributed towards alleviating the distresses of the unfortunate Canadians by a large subscription, the British Merchants and Traders readily and cheerfully assisted in this good work, even the poor Soldiers threw in their mite, and gave a days provisions, or a days pay in the month, towards the fund, by this means a quantity of provisions was purchased and distributed with great care and assiduity to numbers of poor Families, who, without this charitable support, must have inevitably perished; such an instance of un- common generosity towards the conquered did the highest honor to their conquerors and convinced these poor deluded people, how grosly they had been imposed upon; the daily instances of lenity, the impartial justice which has been administer'd, so far beyond what they had formerly experi- enced, have so alter'd their opinion with regard to us, I may safely venture to affirm for this most useful Order of the state, that far from having the least design to emigrate from their present habitations into any other of the French Colonies, their greatest dread is lest they should meet with the fate of the Accadians and be torn from their native Country.
Convinced that this is not to be their case and that the free exercise of their religion will be continued to them once Canada is irrecoverably ceded by a Peace the people will soon become faithful and good subjects to His Majesty, and the Country they inhabit within a short time prove a rich and most useful Colony to Great Britain.
Before this report is closed it will not be improper to observe to Your Lordship how impossible it is to ascertain exactly what part of North America, the French stiled Canada, no Chart or Map whatever having fallen into our hands or public record of any kind to shew what they understood by it.
However it is to be hoped, the limits on this side at least will need no canvassing nor admit of any dispute
Should I be able to procure farther lights relative either to those limits or the several other matters contained in this Report worthy of notice. You may be assured they shall be forthwith transmitted to Your Lordships,
I
CONSTITUTIONAL DOCUMENTS 81
SESSIONAL PAPER No. 18
happy if my labors can any way conduce to His Majesty's Service, or the good of my Country.
1 have the Honor to be with great truth and regard
My Lord, — Your Lordships, most obedient and most faithful humble Servant JA : MURRAY Quebec 6"" June 1762.
Papers refer' d to in this Report^
N« 1 Kings Arret of the \S^ March 1732 directing the letting of the Lands granted already within a certain time limitted on pain of forfeiture.
2 Tariff of Duties on Imports and Exports
3 List of Revenue Officers in Canada the Year 1758 with
their Salaries.
4 Ordonnance current for 1"" : 10' or about 7§ Sterling.
5 Extract of a Letter to Governor Murray giving some account of the India trade in the Upper Country.
6 Number of souls in the Government of Quebec 1761. 7*'' Quantity of Furs exported in 1754 with the Quebec prices
of the several species. 8 Imports and Exports in 1754 Seven Plans Project for Building a Citadel.
COL. BURTON'S REPORT OF THE STATE OF THE GOVERNMENT OF THREE RIVERS.2
The Government of Trois Rivieres lyes upon the River S' Lawrence, between the two Governments of Quebec, and Montreal.
Length
It Extends about Eighty Miles along the Shore of the River, which in its Course Divides it into two Departments, the North beginning a little above a place Called Les Grondines, which Divides it from the Government of Quebec, & goes up as far as the River Chicot, where it Ends; and the South Department beginning between S' Jean, & S' Pierre les Bequets, Ending with the upper part of Yamasca Bay.
Breadth
It Runs to the Southward as far as Nova Scotia, Newhampshire, & the Massachusetts, to which Countries Several Rivers of this Government
" The papers here mentioned do not accompany the Report as preserved in the Public Record Office.
'See note p. 47.
82 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Afford a short passage, especially those of Nicolette, & Biencour, which run up within five or six miles of the source of Kennebeck River, and that of S' Francois, navigable for Canoes to the Portage, which is six miles over, You then Enter a branch of the Connecticut River. To the Northward, this Government stretches thro' an Immense Tract of Country, as far as Hudson's Bay; and the same Nations that trade with the Company settled there, used formerly to bring their Furs into this Government thro' the Rivers of S' Maurice & Batiscan.
Notwithstanding the Factory settled at Hudson's Bay, and the Posts at Tadousac, & Chicoutimi up the Saguenay, the easy Navigation of those Rivers especially that of Batiscan, Induces several of the Indians, Called T^tes de Boulle to Come down even now to this Government every spring.
State of the Country
All the Lands in this Government, as well as thro' all Canada, are Divided into Seigneuries, & mannors, granted by the Crown of France to different people, upon certain conditions, such as settling them within a limitted time, paying Hommage at Every Change of Seigneur, and part of the purchase in case of Sale, as also Reserving to the Crown the right of cutting timber for building of Ships, or Erecting Fortifications. The Seigneurs are likewise obliged by the said Grants to Report to the Governor Whatever mines may be Discovered in their respective Seigneuries, as all mines found in Canada are the King's Property. In general these Seigneuries run Four or six Miles in front; and six or nine deep from the Banks of the River S* Lawrence so that many Lands are yet in the hands of the Crown, on the back of those that are Granted.
The Seigneurs had by their Original Grants the power of naming Judges & Administring Justice, even in Capital Cases, thro' their Districts; but Custom has Abolished those too great privileges, tho' the Powers for it are yet extant, in the hands of the Seigneurs: However all suits are now Carried before the proper Tribunals named & established by the Crown. The Habitations are for the most part settled along the banks of the River S' Lawrence, or up the Rivers & Rivulets that fall into it, and are seldom Carried up higher than five or six Miles. There are in this Govern- ment Eighteen Parishes, viz'
North Shore South Shore —
S' Anne, S' Pierre Bequets
S' Marie, Gentilly
Riv" Batiscan Biencour
C6te Batiscan Nicolette
Champlain Bay S' Antoine
Cape Magdalaine S' Francois
Trois Rivieres Yamasca
Point du Lac
I
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CONSTITUTIONAL DOCUMENTS 83
SESSIONAL PAPER No. 18
Machiche, Riv' du Loup. Maskinonge
These seven last Parishes, viz'. Du Lac, Machiche Riv"" du Loup, and Maskinong^ on the North Shore; Nicolette; Bay S' Antoine, S' Francois, & Yamasca on the South, are settled round Lake S' Pierre, which is formed by the Spreading of the Water of the River S' Lawrence, the Bottom muddy, the Water Shallow, one & Twenty miles in Length, and about ten in Breadth; the Channel is not above thirteen feet deep, but the bottom of so soft a mud, that a Vessell drawing Fourteen feet may plough through it, it Abounds with many sorts of Excellent Fish.
The Town of Trois Rivieres which is the Capital lays in the Centre of this Government, as also at an Equal Distance from Quebec, & Montreal; it is built upon the North Shore of the River S' Lawrence, and Consists of- about One Hundred Houses a Parochial church, a Convent of Ursuline Nuns, & Another of Recollet Priests.
State of the Fortifications
l|^'
There was no other Fortification in this Town, than the Governors House, which is Stockaded round, and Commands by its Situation the Town & Country about it, Untill the siege- of Quebec in 1759. When they Erected Batteries in several Parts of the Town, made an Irregular Intrench- ment on that side of it which looks towards the River S* Lawrence; and rew up Lines flanked with two Redoubts, in the Common that lyes to the Westward towards Montreal.
State of Defence
This place is at present in no state of Defence, the French having Ne- glected from their Imaginary Security to pay the least Attention to Forti- fying it, & suffered the Inhabitants to build their Houses upon the low Ground near the Common, which is liable to be overflowed Every Spring, rather than take advantage of the high Situation upon which part of the Town is built, whereas they might have secured to themselves at a very little Expence, Safe & convenient Magazines for Stores & Provisions, which the equal Distance fronj Quebec & Montreal, & the proximity to the Iron Mines & Forges that lay behind this Town seem to have pointed out.
Products of the Soil
The Laziness of the people, & the alluring & momentary Advantages they reaped from their Trafifick with the Indians in the Upper Countrys, & the Counterband Trade they Carried on with the English Colonies, have hitherto prevented the progress of Husbandry, so that out of very near One Hundred Thousand of Acres of Land, granted by the Seigneurs of the
84 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
different Parishes, there are not sixteen Thousand under Cultivation, whereof hardly Five Thousand have been Employed for sowing of Wheat, which for many years past have not been sufificient for supplying the Inhabitants of this Government with Bread; and has obliged them to pro- cure Yearly from the Governments of Montreal, or Quebec, several Thou- sand Bushellsof Wheat, in Exchange for Fish, Oats, & Tobacco. The Soil tho' light & sandy in some Parishes produces in general, good Crops of Wheat, Oats, Pease, & all sorts of Vegetables. Tho' the Lands are not near so well Cultivated as they might be. Fruit trees such as Apples, Pears, & Plumbs, have been often planted in this Government, but don't thrive — The Inhab- itants attribute it to a Stratum of marie that lyes within a foot, or fourteen inches from the surface, which Occasions the Tree to Decay, as soon as the Root touches it. In the sandy Parts of this Government, musk & water melons are produced in great abundance, good of their kind, and with very little trouble. The difficulty for some years past for procuring To- bacco, from the English Colonies, has encouraged the Inhabitants of this Government to Cultivate it, by which means many of their Corn Fields have been turned to that use, and those Lands greatly Impoverished.
State of the Revenue of this Government
This Government has hitherto brought nothing into the French King's Coffers. There was formetly a Regular Office for buying of Beaver Settled at Trois Rivieres, in the same manner, and with the same priviledges & Restrictions as those of Montreal, and Quebec. But the Advantage which the Inhabitants found in Carrying their Packs to either of the above mentioned Towns, where they could supply themselves with what Goods they wanted, encouraged them to Venture, disobeying the orders given to the Contrary, and of Course rendered the produce of that office, so trifling that after some Years it was joined to that of Quebec.
The only Branch of the Revenue remaining in this Government, is the Kings Dues & Rights, Amounting to a twelfth part of the Price in Case of Sale or Exchange of such Lands, or Houses, as lye upon his De- mesnes; as also a fifth Part of the Price of Sale or Exchange of all Seigneuries & Mannors, as being Lord Paramount of all the Lands & Estates in Canada, of which Dues a third part was always remitted, thro' the King's Pleasure. The produce of which Branch has likewise failed from the want of a Com- missary in this Government to Inspect, and look into it. — N.B. There was only One Person called Receiver-General of the King's Demesnes in this Colony, who Resided at Quebec, from the distance, & the want of a Deputy in this Government, the Inhabitants had all the opportunitys they could wish, to sink the King's Dues.
Former Management Rejected all but one Article
Indeed no part of the Former Management seems worthy of Adoption, but that of the King's Rights and Privileges, as every other Branch of the
CONSTITUTIONAL DOCUMENTS 85
SESSIONAL PAPER No. 18
Ancient Administration, has been the most powerful means of stopping the progress of this Colony.
ExPENCES OF THIS GOVERNMENT
The Expencesof this Government cannot be Easily Calculated, as the most material Branch depended upon the probity of the Governors, In- tendant, and Keeper of the King's Stores, as also the variable Circumstances of more or less Indians being Employed or visiting this Government; for which purpose there was at Trois Rivieres a Considerable Magazine of Provisions, & Dry Goods of all sorts, Wholly Intended to Supply the wants of Indians living in this Government marching thro' it, or Coming to Trade; the Expence of which Amounted some Years to two or three Hundred Thousands of French Livres, others less. Another branch, but of a Clearer nature was the Sallaries of the People upon the Staff in this Govemm* & are as follows.
French Livres.
To a Governor 6 , 000 : —
Lieut Governor 2 , 000 : —
Town Major 1 , 500 : —
Town Adjutant 1 , 100:—
And in the Civil Branch.
To a Lieut. General or Chief Judge 600:—
King's Attorney 300: —
a Taylor 600:—
Lastly the King was pleased to Grant every Year, to the two Religious Houses of Ursulines & RecoUets in the Town of Trois Rivieres, a Gratifica- tion not exceeding Twelve Hundred Livres for both Houses; and His Majesty was likewise at the Expence of paying for the Board of such Bastard Children, as were Declared to, and Registered by the King's Attorney, All which Expences were paid Half Yearly by the Treasury at Quebec.
Advantages derived to the French
To all Appearances the French Derived no advantages from this Government, and utterly neglected, or abused such as they might have Improved, or profited by.
The most Material which they Abused was that which might arise from the Iron mines & Forges settled about seven Miles behind the Town of Trois Rivieres, up the River S' Maurice.
This Establishment Consists of one Furnace and two Forges built upon a little Rivulet, whose water never freeses; it Discharges itself into the River S' Maurice, from whence the Iron may be easily Conveyed to any Magazine at Trois Rivieres in Batteaux, and from thence in Vessells to Montreal or Quebec. There are besides a large Stone House for the Man- agers & other wood Buildings for the People Employed at the Works.
86 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
The Mine that has hitherto supplied the forges lays very near the sur- face of the Earth, in a low marshy Ground seven or Eight miles from them, There has hitherto been no Road made to it, as they used to fetch the Ore in Sledges during the Winter Season; but a good One may be easily made.
The Iron made from this Ore, is so Excellent in its Quality, that in a late tryal made by order of His Excellency General Amherst, it was found greatly superior to any made in America, and even Exceeds that Imported from Sweden.
This Mine was opened in the Year 1732, and Granted in 1736 to a Company, whom the King Assisted with a Loan of about 3000 pounds sterling. Theyo bliged themselves to Afford what Iron the King might have occasion for, at two Dollars and a half the hundred weight; Whereas this Iron in Barrs never sold for less than five or Six Dollars in this Colony Their own Extravagance; and the low price of Iron Stipulated for between them and the King, was the reason some Years after of their giving up the Grant, and Declaring themselves unable to Repay the Loan they had bor- rowed from His Majesty.
In 1742 the King took back the Grant, and kept the Forges in his own hands, which from that time were put entirely under the Direction of the Intendant.
The Works were then Carried on in a Larger scale, the mine produced ore in great plenty; and in the Year 1746 the single Furnace built there returned one Million Eleven Hundred Thousands five Hundred & Twenty three pounds weight of Cast Iron which produced Five Hundred Thousand Weight of pure Iron, besides a large Quantity of Stoves & Pots, Notwith- standing All This, the great number of useless People employed there, such as a Director, a Comptroller, a Contractor for Provisions & forage. Several Overseers in Chief, a Chaplain &ca, at large sallaries; the little attention paid to the Improvement of the Lands to procure Oats & Hay. Which was always bought at a great Distance, and at a Considerable expence, & besides the Fraud of the Intendants, by whom all the acco'^ of that Branch were settled; rendered that Establishment rather burthensome than profitable to the Crown. All the Buildings, Machinary, & Tools are now in a most Ruinous Condition, and require a thorough Repair. But the natural Advantages still Remain, viz' the mine itself, to which may be added another yet untouched, laying about three miles from the Forges, on the other side of the River S' Maurice, the Woods about that Establish- ment, a Quarry of Limestone, absolutely necessary for the Melting of the Ore, Eight miles up the River S' Maurice; and lastly the Rivulet upon which two more Forges & a Furnace may be easily built without any In- cumbrance to Each other; All which Advantages may certainly be greatly Improved to the Advantage of the Crown, by Supplying His Majesty's Navy with proper Iron for Ship Building.
Tho' this Government is Extremely well timbered, with proper Wood for building of Ships, & for Masts, yet the greater Facility of supplying
CONSTITUTIONAL DOCUMENTS 87
SESSIONAL PAPER No. 18
the Navy with those Materials from Lake Champlain makes that Article less valuable. The Lands have been tryed & found Equal to produce plentiful! Crops of Hemp & Flax — Rope walks might be Established, in many Parishes of this Government, and an office at Trois Rivieres for buying of Hemp or Ropes.
The Woods Abound with Pine Trees that would Afford great Plenty of Pitch, and all sorts of Gums; as also with Maple & Plane Trees, from which the Inhabitants, at the breaking up of the Frost, draw a great quantity of Syrup, and by boiling make a Coarse kind of Sugar for their own Use. Much more of this kind of Sugar might be made, should it be thought proper to Encourage it.
STATE OF POPULATION
The same Reasons mentioned above, which have hitherto prevented the progress of Husbandry, have also stoped the Encrease of people. The greatest part of the young men, allured by the Debauched and Rambling Life, which always Attend the Indian Trade in the Upper Countrys, never thought of settling at home, 'till they were almost wore out with Diseases, or premature old age.
The Number of Regular Troops in this Government, will be seen by Annexed Return N" \.
The Number of Canadian Inhabitants with a Distinct Column of the Number of those that are able to Bear Arms, by the Return N° 2.
The Number of Acres granted by Seigneurs, the property of the Lands, with the Number & Species of Cattle upon them, by the Return N" 3.
The Number of Christenings, Marriages, & Burials, since the latter part of the Year 1760, to April 1762, by the Return N° 4.
DISPOSITION OF THE INHABITANTS
The Inhabitants & Chiefly the Peasantry seem very happy in the Change of their Masters. They are protected in the free Exercise of their Religion; they begin to feel that they are no longer Slaves, but that they do Enjoy the Full Benefit of that Indulgent & Benign Government which Constitute the peculiar felicity of all, who are Subjects to the British, Empire. -^
None have hitherto, to my knowledge emigrated from this Government; And at present there seems no grounds to fear the emigration of any of them. The Gentry are the only People, who may perhaps Intend to Remove, if the Country should Remain Under the Government of Great Britain. In general, they Chuse not to Speak upon the Subject, as they still flatter themselves with tacit & Distant hopes of the Country being Returned to its former Masters.
R. BURTON.
88
N" 1.
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
A Return of the British Forces Quartered in the Government of Trois Rivieres April the S"" 1762.
|
Regi- ments |
Companies |
Officers Present |
||||||
|
Place where Quartered |
Commission'd |
Non Commission'd |
Effective Rank |
|||||
|
ta a •3 0. a U |
GO 0 3 |
S s S 1 |
E a s 5 Q |
&File |
||||
|
Trois Rivieres .... Masquinonge and Machiche S' Anne & Cham- plain |
44th 46"" 46"> 46th |
Captain Hervey Captain Treby. Captain Legge. Captain Arnot. Capt. Johnston Total |
i" 1 1 |
2 2 1 1 1 |
2 2 2 3 3 |
1 2 1 2 2 |
73 69 60 59 |
|
|
S' Francois |
59 |
|||||||
|
3 |
7 |
5 |
12 |
8 |
320 |
44th Regiment — Captain William Hervey Major of Brigade; one Serjeant recommended; one Serj' one Drummer on Party.
46. Regiment — Captain Alexander Johnstone at Quebec, with leave of General Amherst, one Serjeant on Party.
R. BURTON
Colonel —
<
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
89
I I
I
N" 2.
Return of the Canadian Inhabitants settled in the Town & Government of Trois Rivieres in April 1 762 — ■
|
Names of Parishes |
House Keepers |
Married women & widows |
Males unmar- ried & Chil- dren |
Females unmar- ried & Chil- dren |
Male Ser- vants |
Female Ser- vants |
Men able to Bear Arms |
Total of the People. |
|
Les Trois Rivieres Point du Lac Machiche Riviere du Loup. Masquinong^ |
114 46 106 104 65 110 57 57 95 63 27 33 58 58 98 35 48 31 11 |
130 44 110 97 62 117 52 51 84 60 30 33 44 49 95 35 49 29 11 |
148 66 176 152 112 161 90 94 122 65 44 70 110 80 153 60 72 45 18 |
168 73 164 141 94 153 111 67 123 84 44 69 85 85 154 79 71 35 28 |
59 2 9 22 2 20 16 5 12 1 1 14 17 3 6 6 30 15 3 |
S3 1 2 4 3 12 14 S 10 6 2 0 'I I 18 18 1 |
136 53 153 88 62 149 70 67 111 66 35 53 60 64 65 54 65 40 0 |
672 232 567 500 338 573 |
|
S' Francois Baye S' Antoine . . Nicolette |
340 279 446 |
|||||||
|
Becancour Jentilly S« Pierre |
279 148 219 |
|||||||
|
S" Anne |
326 |
|||||||
|
S** Marie |
283 |
|||||||
|
Riviere Batiscant. Batiscant Champlain Cape Magdaleine. Forges S' Maurice |
513 223 288 174 72 |
|||||||
|
Total |
1217 |
1182 |
1838 |
1948 |
243 |
184 |
1391 |
6.472 |
N.B. There are besides in this Government Three Indian Villages, one at Becancour; Another at S' Frangois both of Abenakis; and the last at Pointe du Lac of Algonquins, Containing about 500 Men Women & Children — Besides Forty Five Families of Acadians, amounting to very near Two Hundred people hutted in different places of this Government — .
From the Registers of the Secretary's Office at Trois Rivieres, the S*" of April 1762.
J. BRUYERE. Sec'"
0
90
CANADIAN ARCHIVES
6-7 EDWARD VII., 1907
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CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
91
No 4.
Return of the Number of Christenings, Marriages, & Burials in the Government of Trois Rivieres from September 1760, to April 1762.
Names of Parishes
Christenings
Male
Female
Mar- riages
Burials
Male
Female
Les Trois Rivieres
Pointe du Lac
Machiche
Riviere du Loup
Masquinonge
Vamasca
S' Francois
Bay S' Antoine
Nicollette
Becancour
S« Pierre
S" Anne
Batiscant et Riviere Batiscant.
Champlain et Jentilly
Cap Magdaleine
Total.
38 8 35 19 11 24 21 13 16 18 18 38 38 16 8
36 10 30 23 13 32 20 16 19 14
8 33 32 18
3
19
4 12 18 11 26
7 14 19 21
8 19 21 12
4
27
7
31
7
7
11
18
7
5
2
3
25
20
8
4
321
307
215
182
34
5
13
5
3
20
17
8
7
4
5
21
12
14
3
171
Thus the Number of Births in this Government have during the above mentioned time. Exceeded that of Burials by 275 —
From the Registers of the Secretary's Office at Trois Rivieres — ^April the 6"> 1762—
J. BRUYERE. Sees' Endorsed :-Colonel Burton Report of the State of the Government of Trois Rivieres in Canada
April. 1762: in S' J. Amherst's of June 15, 1762. No 20.
GENERAL GAGE'S REPORT OF THE STATE OF THE GOVERN- MENT OF MONTREAL
Montreal, March 20*'', 1762.
Sir, I have already Acknowledged the Receipt of a Copy of the Earl of Egremont's Letter to you of the 12"" Dec', and I take this opportunity to return you my Answers thereto. Assuring you, that I have lost no Time in collecting the best Information of Every thing Contained in that Letter that I could possibly procure.
I feel the highest Satisfaction, that I am able to inform you. That during imy Command in this Government, I have made it my Constant Care
92 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
and Attention, that the Canadians should be treated agreeable to His Majesty's kind & humane Intentions. No Invasion on their Propertys, or Insult on their Persons have gone unpunished. All Reproaches on their Subjection by the Fate of Arms, Revilings on their Customs or Country, and all Reflexions on their Religion have been discountenanced and forbid.
No Distinction has been made betwixt the Briton & Canadian but equaly regarded as Subjects of the same Prince. The Soldiers live peace- ably with the Inhabitants, & they reciprocaly acquire an affection for each other. I have notwithstanding, made known His Majesty's Pleasure on these Particulars to the Several Commanders of Corps, that every Individual may be acquainted therewith, which will, no Doubt, Add the greatest Weight to the Orders & Directions which have been already given. And you may be Assured that Troops who have ever shewn the most Ardent desires, to Advance the Interest of their Sovereign, and paid the most exact Obedience to his Commands, will vye with each other in Broth- erly Love and Affection to the Canadians, over whom. His Majesty has extended his Royal Favor, & Protection. The Indians have been treated, on the Same principles of Humanity, They have had immediate Justice for all their Wrongs, and no Tricks or Artifices have hitherto been attempted, to defraud Them in their Trade.
I send herewith a Return, (N" 1) of the present State of the Troops & Artillery in this Government, As to the Fortifications, except Fort W" Augustus, which may at present be in a good state of Defence, the rest having only been calculated to repel sudden Invasions of Indians, are of Course, of small consideration. The City of Montreal is surrounded by a high Wall ramparted and flanked; the Parapet about Three feet thick a natural Defence from the River S' Lawrence on one side, on the other, a Ditch mostly faced. Upon a Height within the City, is a small square work of wood, compleated since the Capitulation, provided with a few pieces of Artillery, & capable of containing Seventy or Eighty Men. The Fort of Chambl6, is an Antient Stone Castle, flanked with Tours, in which are Port-Holes, for small pieces of Ordnance, no Ditch or Outwork.
You will also receive herewith, a General Return, (N° 2), of the State of this Government, for the year 1761, Comprehending the Number of its Inhabitants, Cattle &ca. The State of Population, Quantity of Acres Cultivated and Quantity of Grain sown, for the particulars of all which, I referr you to the Return.
The Soil produces all sorts of Summer grain, in some parts of its Gov- ernment, the Wheat is sown in Autumn. Every kind of pulse & other vegetables; to which I may add, some Fruits, viz' Apples Pears Plumbs Melons, &ca. Cyder is made here, but as yet in Small quantitys. In general, every Fruit tree, hardy enough to withstand the severity of the Winter, will produce in the summer, which affords sufficient Heat, to bring most kinds of Fruit to Maturity.
CONSTITUTIONAL DOCUMENTS 93
SESSIONAL PAPER No. 18
The Profits, which the French King drew from the Government of Montreal, unconnected with the other two Governments, of Trois Rivieres & Quebec, proceeded from the sale of certain Trading Posts in the Indian Country, From the Money paid for permits, to trade at others, which were called Free Posts, from the King's own Trade, at those called the King's Posts. And from the Droit de Quint, &f Droit d'Echange. In Return (N" 3) you will find these several posts particularly ascertained, with the annual Profits which might have accrued from the two first. It is impossible to ascertain, what were the Profits & Losses upon the French King's own Trade; No Doubt, that Trade well managed, would have produced consid- erable gains; but from the Number of Commissaries & Factors employed, who have made very large Fortunes for themselves; and the immense profusion of Presents, made to the Indians; I must conclude, His Majesty gained very little from the Commerce.
The Lands have all been granted, on Feudal Tenures, from thence;
The King's Droit de Quint, df Droit d'Echange. The first is a Fifth, of all
Monies that shall be received, on the sale of Seigneuries or Lordships.
The Latter, a Fifth of the value of all Lordships exchanged, & a Twelfth
of the value of all Copyhold Estates, that shall be exchanged. The Right
of Exchange however, did not belong to the French King, either in the City
or Island of Montreal; It having been granted to the priests of the Seminary
of S' Sulpice, who are Temporal Lords of that Island. And enjoy the
privilege of the Exchange, as well the City as the rest of the Island. The
French King generally remitted a Third of his Dues on these sales & Ex-
ianges, whose Revenues from hence, might amount, Communibus Annis,
about Three Thousand Livres. I have Supported His Majesty's Right
these fines of Alienation remitting the Third, according to old Custom.
lis Year by an Accident, They have amounted to Nine Thousand Livres.
Immediately after we became Masters of this Country, all Monoplys
^ere abolished, and all Incumbrances upon Trade were removed. The
Traders chose their posts, without the obligation of purchasing them,
id I can by no means think, The French Management, in giving exclusive
rants of trade, at particular posts, for the sake of the sale thereof; or the
lie of permits to trade at the free posts, worthy our Imitations. The
tidians of course paid dearer for their goods, & the Trade in General,
lust have been injured by Monoplys. The Traders were alone at the posts
liey had purchased, where no person in Authority had the Inspection
"bf their Conduct; & committed many abuses, for which the Indians could
get no Redress; And it has happened, that the Indians had murdered
the Traders & plundered their Effects; by which the French have been
drawn into wars at a very great Distance, and at a great Expense. The
French also found a very great Inconvenience in this kind of Trafifick, from
the Loss of men to the Colony.
Nothing was more Common, than for the Servants, whom the Mer- chants hired to work their Boats, & assist in their Trade, thro' a long
/
94 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Habit of Indian Manners & Customs, at length to adopt their way of Life, to intermarry with them, & turn Savages. Several Edicts have been published to prevent this but notwithstanding, there are now some Hun- dreds amongst the distant Indians, who I do not suppose will ever return to their Country. Tho' the Trading Posts were by this means multiplied, and from thence appears to have increased the Trade, in reality, unless in a few Instances, these Monopolizers brought no Addition of Commerce into Canada, as they for the most part traded with Indians, who would otherwise have carried their Furrs to the great Marts of Michillimakinac and Detroit, so that in Effect, they were only Forestallers of the Market. Besides the Inconveniences which I have mentioned, to have attended the sale of Posts & Permits, I conceive this matter to be so liable to abuse, thro' Receivers, Jobbs, & Perquisites, that it would bring but little into His Majesty's Coffers. And that the surest & easiest way to encrease His Majesty's Revenue from the Pelletry will be the laying such Dutys only on its Importation, as shall be thought Advisable.
To remedy the Inconveniencies & abuses, which both the English & French have suffered, thro' the management of the Indian Trade; I know no better method, than to assign a certain Number of Posts in the distant Country, to which only, the Traders should be allowed to traffick, and to abolish ail the little posts.
And I am of opinion the Five Posts hereafter mentioned, will enable His Majesty's subjects to trade with almost every Nation of Indians, that has yet been discovered, and that have been accustomed to Trade with the French, viz* Kanamistigoua on Lake Huron, Michillimakinac Baye des Puants in Lake Michigan. The Detroit, and Houilliatanon on the Ouabache.
A small Detachment of Troops with proper Officers should be in each of these Posts, And the officers Authorized, either solely by themselves, or assisted by such other persons as may be found in the posts, to exercise a Judicial power — The Vast distance some of the above Posts are from the Inhabited Country, would alone make this circumstance highly neces- sary, and the advantages that would arise from it, are very apparent The Insolence of the Indians will be checked, by the Presence of the Troops. The Tricks & Artifices of the Traders to defraud the Indians will meet with Instant Punishment which cannot fail to make the Indians conceive, the highest Opinion of Our Integrity & His Majesty's good Inclination towards them, and by these means, all Disputes and Quarrells with the Savages will be prevented. I can devise no better plan for Carrying on the Trade in the distant Countrys, than the above; or by which, any Regulation concerning the Trade that shall be made, can ever be observed, and Supported.
Paper (N° 4) contains the particular Dutys upon the Merchandize imported into Canada, and upon the exports of the Pelletry, Also a Compu- tation of all the Revenues the French King enjoyed, Communibus Annis,
I
Ill
Wt
CONSTITUTIONAL DOCUMENTS 95
SESSIONAL PAPER No. 18
from the whole Province of Canada comprehending at an average, Exports & Imports, Sale of Posts, & all Emoluments whatever, which were received in Canada on the King's Account, I referr you likewise to the same paper r the annual expence of Canada to the French, in Time of Peace. You ill observe amongst the Exports that the Beaver, which was the exclusive Trade of the India Company, paid no Duty. Nor am I able to send you any good acco", whether the French King drew any Profits from the Beaver, or other Pelletry, on its arrival in the Ports of France; or what advantages The Crown of France reaped from the Exclusive Trade of Beaver, granted to the India Company. There are no persons here who can give me any clear Information in those particulars.
The only immediate Importance & advantage the French King derived from Canada was the preventing the Extension of the British Colonys, The Consumption of the Commodities & Manufactures of France, and the Trade of Pelletry. She had no Doubt, views to future Advantages, That this Country might in Time supply her, with Hemp, Cordage, Iron, Masts,
i: generaly all kinds of Naval Stores. The people in general seem well enough disposed towards their new [asters. The only Causes of Dislike which I can discover, proceed from the . lar of losing their paper Money, and the Difference of Religion, I understand anada to be on the same Footing in Respect of this money, as all the French Colonys; and if France pays any of them, I don't see how she can avoid paying the Bills of Exchange drawn from Canada, in the same pro- portion as she pays the rest. It is the Canadians only who would be sufferers by an exception, as Canadian Bills, to a very large amount are the possession of French Merchants, and the rest may be sent to France, no body be able to distinguish which is French, or which Canadian Property. The people having enjoyed a free & undisturbed Exercise of their Religion, ever since the Capitulation of the Country; Their fears in that particular are much abated, but there still remains a Jealousy.
It is to be hoped, that in time this Jealousy will wear off: and certainly - It this, much will depend upon the Clergy, Perhaps Methods may be Uund hereafter, to Supply the Cures of this Country with Priests well ffected. But whilst Canada is stocked as she now is, with Corps of *riests detached from Seminarys in France, on whom they depend, and to rhom they pay obedience It is natural to conceive. That neither the Priests, or those they can influence, will ever bear that Love and Affection to a
iritish Government, which His Majesty's Auspicious Reign would other- ise engage from the Canadians, as well as from his other Subjects. No Persons have left this Government to go to France, except Those, ho held Military and Civil Employments under the French King. Nor do apprehend any Emigration at the Peace being perswaded that the present Inhabitants will remain under the British Dominion. I perceive none preparing to leave the Government, or that seem inclined to do it; unless it is a few Ladys whose Husbands are already in France, and they propose
96 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to leave the Country when Peace is made, if their Husbands should not rather choose to return to Canada.
As I cannot discover that the Limits betwixt Louisiana & Canada were distinctly described, so as to be Publickly known, I can only inform you, what were generally believed here, to have been the Boundaries of Canada & give you my own Opinion, which is drawn from the Trade that has been Constantly carried on, by the Canadians, under the Authority, and permission of their several Governors. From hence I judge, not only the Lakes, which are Indisputable, but the whole Course of the Mississippi from its Heads to it's Junction with the Illinois, to have been comprehended by the French, in the Government of Canada.
The People of Louisiana carry their Trade up the Missouri River, and I can't find that the Traders from that Province, ever went higher up the Mississipi, than the mouth of the Illinois River, on the Contrary, the Traders from Canada, did constantly trade above the Illinois, from their Posts on Lake Michigan, even up to the River S' Croix, and the Falls of S* Anthony, And it was the Trade alone of the Mississipi Indians, which made the Post of the Baye des Puants, so very advantageous. The Illinois River, tho' formerly in the District of Canada, was after some Disputes betwixt the Governors, annexed to Louisiana. A South Easterly Line, drawn from the portage, betwixt the Illinois River and the waters which run into Lake Michigan will bring you to the post of Houilliatanon upon the Ouabaches fourscore Leagues down that River ; Computing from that part, where the Boats are Launched, after crossing the Portage of the Miamis. This was the last Trading Post belonging to Canada on that side, & was certainly the Boundary of Canada on that side. About sixty Leagues below this Post, is the Post of Vincennes, which was served by the Traders of Louisiana, and of Course, was the Boundary of that Province. This is the best information I can procure you concerning the Limits, and what I have described to you, are thought to be the real Boundaries betwixt the two Provinces.
As I have answered the several Particulars of Lord Egremont's Letter, after having made the best Enquiry I shall think myself happy if the Acco' I send you, shall in any Shape contribute to Your transmitting to His Majesty the exact State of his Province of Canada. I am with great Regard & Esteem.
Sir, your most obedient most humble servant,
THO". GAGE. His Excellency
S' Jeffery Amherst. Endorsed: Major General Gage, 20"" March, 1762, in S'. J. Amherst's of May 12"', 1762. No 38.
J
CONSTITUTIONAL DOCUMENTS 97
SESSIONAL PAPER No. 18
TREATY OF PARIS 1763.»
F. O. State Papers. Treaties
February lO"- 1763.— Definitive Treaty of Peace and Alliance between Great Britain France and Spain, concluded at Paris, with the Seperate Articles thereunto belonging.
Au Nom de la Tr^s Sainte & Indivisible Trinity, Pere, Fils, & Saint Esprit. Ainsi soit il.
Soit notoire k Tous Ceiix, qu'il appartiendra ou peut appartenir, en Maniere quelconque.
II a plfl au Tout Puissant de repandre I'Esprit d'Union & de Concorde sur les Princes, dont les Divisions avoient port6 le Trouble dans les quatre Parties du Monde, & de leur inspirer le Dessein de faire succeder les Douceurs de la Paix aux Malheurs d'une longue et sanglante Guerre, qui, apr^s s'etre elevee entre L'Angleterre & La France, pendant le Regne du Serenissime & Tres Puissant Prince Georges 2. par la Grace de Dieu Roy de la Grande Bretagne, de glorieuse Memoire, a 6t6 continued sous le Regne du Serenissime & Tr^s Puissant Prince Georges 3. Son Successeur, & s'est communiqu^e dans ses Progres h I'Espagne & au Portugal ; En Consequence, Le Serenissime & Tr^s-Puissant Prince Georges 3., par la Grace de Dieu Roy de la Grande Bretagne, de France, et d'Irlande, Due de Brunswick & de Lunebourg, Archi-Tresorier & Electeur du Saint Empire Romain; Le Serenissime & Tres Puissant Prince, Louis 15. par la Grace de Dieu Roy Trds Chretien — Et Le Serenissime & Tres Puissant Prince Charles 3. par la Grace de Dieu Roy d'Espagne, & des Indes, aprds avoir pos6 les Fondemens de la Paix dans les Preliminaires sign^s le 3: Nov*"™ dernier k Fontainebleau ; Et le Sgj-me ^ Tr^s puissant Prince Dom Joseph 1" par la Grace de Dieu Rov de Portugal & des Algarves, apr^s y avoir accede; Ont resolfl de consommer sans Delai ce grand & important Ouvrage; A cet Effet les hautes Parties Contractantes ont nomm6 & constitue Leurs Ambassadeurs Extraordinaires & Ministres Plenipotentiaires respectifs; Savoir, Sa Sacr6e Majesty Le Roy de la Grande Bretagne, Le Tr^s illustre & tr^s excellent Seigneur, Jean, Due & Comte de Bedford, Marquis de Tavistock &c.. Son Ministre d'Etat, Lieutenant General de Ses Arm6es, Garde de son Sceau Priv6, Chevalier du Tr^s Noble Ordre cle la Jarretiere, & Son Ambassadeur Extraordinaire & Ministre Pienipotentiaire pr^s de Sa Majesty Tr^s Chretienne; Sa Sacr6e Majest6 Le Roy Tres Chretien, le tr^s illustre & tr^s excellent Seigneur, Cesar Gabriel de Choiseul, Due de Praslin, Pair de France, Chevalier de ses Ordres, Lieutenant General de ses Armtes, & de la Province de Bretagne, Conseiller en tous ses Conseils, et Ministre & Secretaire d'Etat, & de ses
' The French text of the treaty as here given is taken from a series of photographs repro- ducing the original treaty as preserved in the Public Record Office, among the State Papers of the British Foreign Office, in the section "Treaties," vol. 123.
98 CANADIAN ARCHIVES
6-7 EDWARD VII., 1907
Commandemens & Finances; Sa Sacr^e Majestd Le Roy Catholique le tres illustre & tres excellent Seigneur Dom Gerom Grimaldi, Marquis de Grimaldi, Chevalier des Ordres du Roy Tr^s Chretien, Gentilhomme de la Chambre de Sa Majesty Catholique avec Exercice, & Son Ambassadeur Extraordinaire pr^s de Sa Majesty Tr^s Chretienne; Sa Sacr6e Majesty Le Roy Tr^s Fidele, le tr^s illustre & tihs excellent Seigneur, Martin de Mello & Castro, Chevalier prof^s de I'Ordre de Christ, du Conseil de Sa Majest6 Tr^s Fidele, & Son Ambassadeur & Ministre Plenipotentiaire aupr^s de S. M** Tr^s Chret"'; Lesquels, aprds s'6tre duement communique leurs Plein pouvoirs en bonne Forme (& dont les Copies sont transcrites k la Fin du present Traits de Paix) sont convenus des Articles, dont**** la Teneur s'ensuit.
Article 1
II y aura une Paix Chretienne, universelle, & perpetuelle tant par Mer que par Terre, & une Amiti6 sincere & constante sera retablie entre Leurs Majest6s Britannique, Trds Chretienne, Catholique, & Tr^s Fidele, & entre leurs Heritiers, & Successeurs, Royaumes, Etats, Provinces, Pays, Sujets, & Vassaux, de quelque Qualite et Condition qu'Ils soient, sans Exception de Lieux, ni de Personnes, en sorte que les Hautes Parties Contractantes apporteront la plus grande Attention k maintenir entr'Elles & leurs dits Etats & Sujets cette Amiti6 & Correspondance reciproque, sans permettre dorenavant, que de Part ni d'autre on commette aucunes Sortes d'Hostilit^s par Mer ou par Terre, pour quelque Cause ou sous quelque Pretexte que ce puisse Stre; Et on evitera soigneusement tout ce qui pourroitaltereril'avenir rUnion heureusement retablie, s'attachant au contaire ^se procurer recipro- quement en toute Occasion tout ce qui pourroit contribuer k leur Gloire, InterSts, & Avantages mutuels, sans donner aucun Secours ou Protection directement ou indirectement k ceux, qui voudroient porter quelque Prejudice k I'une ou k I'autre des dites hautes Parties contractantes. II y aura un Oubli general de tout ce qui a pfl Itre fait ou commis avant ou depuis le Commencement de la Guerre, qui vient de finir. •
Article 2
Les Trait6s de Westphalie de milsix cent quarante huit, ceux de Madrid entre les Couronnes de la Grande Bretagne & d'Espagne de mil six cent soixante sept, & de mil six cent soixante dix, les Trait^s de Paix de Nimegue, de mil six cent soixante dix huit, & de mil six cent soixante dix neuf, de Ryswick de mil six cent quatre vingt dix sept, ceux de Paix & de Commerce d'Utrecht de mil sept cent treize, celui de Bade de mil sept cent quatorze, le Trait6 de la triple Alliance de La Haye de mil sept cent dix sept, celui de la quadruple Alliance de Londres de mil sept cent dix huit, le Traits de Paix de Vienne de mil sept cent trente huit, le Traits Definitif d'Aix la Chapelle de mil sept cent quarante huit, & celui de Madrid entre les Couronnes de la
Article 3
CONSTITUTIONAL DOCUMENTS 99
SESSIONAL PAPER No. 18
Grande Bretagne, & d'Espagne de mil sept cent cinquante, aussi bien que les Trait^s entre les Couronnes d'Espagne & de Portugal du 13. Fevrier mil six cent soixante huit, du 6. Fevrier mil sept cent quinze, & du 12. Fevrier mil sept cent soixante un, & celui du 11. Avril mil sept cent treize entre la France & le Portugal, avec les Guaranties de la Grande Bretagne; servent de Base & de Fondement k la Paix, & au present Trait6; & pour cet Effet ils sont tous renouvell^s & confirm6s dans la meilleure Forme, ainsi que tous les Trait^s en general, qui subsistoient entre les hautes Parties contractantes avant la Guerre, & comme s'ils ^toient inserts ici M6t ci M6t, en sorte qu'ils devront Stre observes exactement k I'avenir dans toute leur Teneur, & religieusement executes de Part & d'autre dans tous leurs Points, auxquels il n'est pas deroge par le present Trait6, nonobstant tout ce qui pourroit avoir 6te stipule au contraire par aucune des Hautes Parties contractantes; Et toutes les dites Parties declarent, qu'EUes ne permettront pas qu'il subsiste aucun Privilege, Grace, ou Indulgence contraires aux Trait6s ci- dessus confirmes, k I'Exception de ce qui aura 6t6 accord^ et stipule par le
l^r Tous les Prisonniers faits de Part & d'autre tant par Terre que par
Mer, et les Otages enlev^ ou donnas, pendant la Guerre, et jnsqu'i ce Jour,
seront restitufe sans Rangon dans six Semaines au plus tard, k compter
du Jour de I'Echange de la Ratification du present Trait6, chaque Couronne
soldant respectivement les Avances, qui auront 6t6 faites pour la Subsistance
& I'Entretien de ces Prisonniers par le Souverain du Pays, oil lis auront 6t6
detenfls, conform^ment aux Regfls & Etats constates & autres Titres
autentiques, qui seront fournis de Part & d'autre. Et il sera donn6 reci-
proquement des Suret^s pour le Payement des Dettes, que les Prisonniers
I auroient pQ contracter dans les Etats, oil lis auroient 6t6 detenfls, jusqu'^
I leur entiere Liberty. — Et tous les Vaisseaux, tant de Guerre que marchands,
I qui auroient 4t6 pris depuis I'Expiration des Termes convenfls pour la
Cessation des HostiIit6s par Mer, seront pareillement rendCls de bonne
Foy, avec tous leurs Equipages, & Cargaisons; Et on procedera k I'Execution
de cet Article immediatement apres I'Echange des Ratifications de ce Trait6.
Article 4
Sa Majesty Tr^s Chretienne renonce k toutes les Pretensions, qu'Elle a form^es autrefois, ou pO former, k la Nouvelle Ecosse, ou I'Acadie, en toutes ses Parties, & la garantit toute entiere, & avec toutes ses Depen- dances, au Roy de la Grande Bretagne. De plus, Sa Majesty Tr^s Chre- tienne cede & garantit k Sa dite Majesty Britannique, en toute Propriety, le Canada avec toutes ses Dependances, ainsi que I'lsle du Cap Breton, & toutes les autres Isles, & C6tes, dans le Golphe & Fleuve S' Laurent, & generalement tout ce qui depend des dits Pays, Terres, Isles, & C6tes,
100 CANADIAN ARCHIVES
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avec la Souverainet6, Propriety, Possession, & tous Droits acquis par Trait6, ou autrement, que le Roy Trds Chretien et la Couronne de France ont eus jusqu'i present sur les dits Pays, Isles, Terres, Lieux, C8tes, & leurs Habi- tans, ainsi que le Roy Tr^s Chretien cede & transporte le tout au dit Roy & i la Couronne de la Grande Bretagne, & cela de la Maniere & d" la Forme la plus ample, sans Restriction, & sans qu'il soit libre de revenir ^us aucun Pretexte contre cette Cession & Garantie, ni de troubler la Grande Bretagne dans les Possessions sus-mentionn6es. De son Cot6 Sa Majesty Britannique convient d'accorder aux Habitans du Canada la Libert^ de la Religion Catholique; En Consequence Elle donnera les Ordres les plus precis & les plus effectifs, pour que ses nouveaux Sujets Catholiques Remains puissent professer le Culte de leur Religion selon le Rit de I'Eglise Romaine, en tant que le permettent les Loix de la Grande Bretagne.-Sa Majest6 Britannique convient en outre, que les Habitans Frangois ou autres, qui auroient et€ Sujets du Roy Tres Chretien en Canada, pourront se retirer en toute Sflret^ & Liberty, oil bon leur semblera, et pourront vendre leurs Biens, pourvQ que ce soit k des Sujets de Sa Majesty Britannique, & transporter leurs Effets, ainsi que leurs Personnes, sans Stre genes dans leur Emigration, sous quelque Pretexte que ce puisse gtre, hors celui de Dettes ou de Proems criminels; Le Terme limite pour cette Emigration sera fix6 a I'Espace de dix huit Mois, k compter du Jour de I'Echange des Ratifications du present Trait6.
Article S
Les Sujets de la France auront la Liberty de la PSche, & de la Secherie, sur une Partie des C6tes de I'lsle de Terre-Neuve, telle qu'elle est specific par I'Article 13. du Trait6 d'Utrecht, lequel Article est renouvelle & con- firm6 par le present Traits, {k I'Exception de ce qui regarde I'lsle du Cap Breton, ainsi que les autres Isles & CStes dans L'Embouchure et dans le Golphe S* Laurent;) Et Sa Majesty Britannique consent de laisser aux Sujets du Roy Tres Chretien la Liberty de pecher dans le Golphe S' Laurent, k Condition que les Sujets de la France n'exercent la dite Peche, qu'^ la Distance de trois Lieiies de toutes les Cotes appartenantes ci la Grande Bretagne, soit celles du Continent, soit celles des Isles situ^es dans le dit Golphe S' Laurent. Et pour ce qui concerne la Peche sur les C6tes de risle du Cap Breton hors du dit Golphe, il ne sera pas permis aux Sujets du Roy Tr^s Chretien d'exercer la dite P6che, qu'^ la Distance de quinze Lieues des C6tes de I'lsle du Cap Breton; Et la Peche sur les C6tes de la Nouvelle Ecosse, ou Acadie, et par tout ailleurs, hors du dit Golphe, restera sur le Pied des Trait^s anterieurs.
Article 6
Le Roy de la Grande Bretagne cede les Isles de S' Pierre & de Miquelon, en toute Propriety, k Sa Majesty Trds Chretienne, pour servir d'Abri aux
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PIcheurs Fran5ois;tt Sa dite Majesty Tr^s Chretienne s'oblige k ne point fortifier les dites Isles, k n'y 4tablir que des Batimens civils pour la Com- modity de la P6che, & k n'y entretenir qu'une Garde de cinquante Hommes pour la Police.
Article 7
Afin de retablir la Paix sur des Fondemens solides & durables, & ^carter pour jamais tout Sujet de Dispute par Rapport aux Limites des Territoires Britanniques et Frangois sur le Continent de I'Amerique, il est convenfl, qu'a I'avenir les Confins entre les Etats de Sa Majeste Britannique & ceux de Sa Majest6 Tr^s Chretienne en cette Partie du Monde, seront irrevocablement fix6s par une Ligne tir6e au milieu du Fleuve Mississippi depuis sa Naissance jusqu'i la riviere d'Iberville, & de \k par une Ligne tir6e au milieu de cette Riviere & des Lacs Maurepas & Pontchartrain jusqu'i la Mer; Et k cette Fin le Roy Tr^s Chretien cede, en toute Propriety, & garantit k Sa Majeste Britannique la Riviere & le Port de la Mobile, & tout de qu'Il possede, ou a dfl posseder, du Cot6 gauche du fleuve Missis- sipi, k I'exception de la Ville de la Nouvelle Orleans, & de I'lsle dans laquelle Elle est situ6e, qui demeureront k la France; Bien entiendfl, que la Navigation du Fleuve Mississippi sera ^galement libre tant aux Sujets de la Grande Bretagne comme k ceux de la France, dans toute sa Largeur, & toute son Etendiie, depuis sa Source jusqu'k la Mer, et nommement cette Partie, qui est entre la susdite Isle de la Nouvelle Orleans & la Rive droite de ce Fleuve, aussi bien que I'Entr^e & la Sortie par son Embouchure. II est de plus stipule, que les Batimens appartenants aux Sujets de I'une ou de I'autre Nation ne pourront etre arret^s, visit^s, ni assujettis au Payement d'aucun Droit quelconque. — Les Stipulations inser^es dans I'Article 4. en Faveur des Habitans du Canada auront Lieu de m6me pour les Habitans des Pays ced6s par cet Article.
Article 8
Le Roy de la Grande Bretagne restituera k la France les Isles de la Guadeloupe, de Mariegalante, de la Desirade, de la Martinique, & de Belle-Isle; Et les Places de ces Isles seront rendiies dans le meme Etat, oCl Elles ^toient, quand.la Conquete en a 6t6 faite par les Armes Britanniques; Bien entendfl, que les Sujets de Sa Majest6 Britannique, qui se seroient 6tablis, ou ceux qui auroient quelques Affaires de Commerce k regler dans les dites Isles & autres Endroits restitu^s k la France par le present Trait6, auront la Libert6 de vendre leurs Terres, & leurs Biens, de regler leurs Affaires, de recouvrer leurs Dettes, & de transporter leurs Effets, ainsi que leurs Personnes, k bord des Vaisseaux qu'il leur sera permis de faire venir aux dites Isles, & autres Endroits, restitu6s comme dessus, & qui ne ser- viront qu'k cet Usage seulement, sans 6tre gen6s k Cause de leur Religion, ou sous quelqu'autre Pretexte que ce puisse €tre hors celui de Dettes ou
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de Proems criminels. — Et pour cet Effet le Terme de dix-huit Mois est accord^ aux Sujets de Sa Majestd Britannique ci compter du Jour de I'Echange des Ratifications du present Traitd. — Mais comme la Libert6, accord^e aux Sujets de Sa Majest6 Britannique, de transporter leurs Personnes & leurs EfTets sur des Vaisseaux de leur Nation pourroit Stre sujette h. des Abus, si Ton ne prenoit la Precaution de les prevenir, il a 6t6 convenfl expresse- ment, entre Sa Majest6 Britannique & Sa Majesty Tr^s Chretienne, que le Nombre des Vaisseaux Anglois, qui auront la Libert^ d'aller aux dites Isles & Lieux restitu6s k la France sera limit6, ainsi que le Nombre de Ton- neaux de chacun, qu'ils iront en lest, partiront dans un Terme fix6, & ne feront qu'un seul Voyage; Tous les EfTets, appartenants aux Anglois, devant 6tre embarqu6s en mime Tems. II a ete convenfl en outre, que Sa Majest6 Tres Chretienne fera donner les Passeports necessaires pour les dits Vais- seaux; que, pour — plus grande Surety, il sera libre de mettre deux Commis ou Gardes Frangois sur chacun des dits Vaisseaux, qui seront visit^s dans les Atterages & Ports des dites Isles, & Lieux, restitu6s k la France; Et que les Marchandises, qui s'y pourront trouver, seront confisqu6es.
Article 9
Le Roy Tr^s Chretien cede & garantit k Sa Majesty Britannique, en toute Propriety, les Isles de la Grenade & des Grenadines, avec les memes Stipulations en Faveur des Habitans de cette Colonie, inser6es dans I'Article 4. pour ceux du Canada; Et le Partage des Isles, appellees neutres, est convenfl et fix6 de maniere que celles de S' Vincent la Dominique, & Tabago, resteront, en toute Propriety, k la Grande Bretagne, & que celle de S'" Lucie sera remise k la France pour en jouir, pareillement en toute Propri6t6. — Et les hautes Parties contractantes garantissent le Partage ainsi stipule
Article 10
Sa Majest6 Britannique restituera k la France I'lsle de Gor6e, dans I'Etat, oil EUe s'est trouvee, quand Elle a ete conquise; Et Sa Majeste Tr^s Chretienne cede, en toute Propriet6, et garantit au Roy de la Grande Bretagne la Riviere de Senegal, avec les Forts & Comptoirs de S' Louis, fie Podor, & de Galam, & avec tous les Droits & Dependances de la dite Riviere de Senegal.
Article 11
Dans les Indes Orientales La Grande Bretagne restituera k la France, dans I'Etat ofl ils sont aujourd'hui, les dififerens Comptoirs, que cette Couronne possedoit tant sur la C6te de Choromandel & d'Orixa, que sur celle de Malabar, ainsi que dans le Bengale, au Commencement de I'Ann^e mil sept cent quarante neuf ; Et Sa Majesty Tr^s Chretienne renonceg^ toute Pretension aux Acquisitions, qu'Elle avoit faites sur la C6te de Choro-
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mandel, & d'Orixa, depuis le dit Commencement de rAnn6e mil sept cent quarante neuf. — ^Sa Maj** Tr^s Chretienne restituera, de son Cot6, tout ce qu'Elle pourroit avoir conquis sur la Grande Bretagne dans les Indes Orientales pendant la presente Guerre, & fera restituer nommement Natal & Tapanouly dans I'lsle de Sumatra. Elle s'engage de plus k ne point eriger de Fortifications, & ^ ne point entretenir de Troupes dans aucune Partie des Etats du Subah de Bengale. — Et afin de conserver la Paix future sur la C6te de Choromandel & d'Orixa, les Anglois & les Frangois reconnoitront Mahomet Ali Khan pour legitime Nabob du Carnate, & Sala- bat Jing pour legitime Subah de Decan; Et les deux Parties renonceront k toute Demande ou Pretension de Satisfaction qu'Elles pourroient former k la Charge, I'une de I'autre, ou k celle de leurs Allies Indiens pour les Depre- dations ou Degats commis soit d'un Cot6, soit de I'autre pendant la Guerre.
Article 12
L'Isle de Minorque sera restitute k Sa Majest6 Britannique, ainsi que le Fort S' Philippe, dans le meme Etat od ils se sont trouv^s, lorsque la Conqu6te en a etd faite par les Armes du Roy Trds Chretien, & avec TArtillerie, qui y etoit lors de la Prise de la dite Isle & du dit Fort.
Article 13
La Ville & le Port de Dunkerque seront mis dans I'Etat fix6 par le dernier Trait6 d'Aix la Chapelle, & par les Trait^s anterieurs; — La Cunette sera d^truite immediatement apr^s I'Echange des Ratifications du present Trait6, ainsi que les Forts & Batteries, qui defendent I'Entrde du Cot6 de la Mer; Et il sera pourvfl en m§me Terns k la Salubrity de I'Air & k la Sant6 des Habitans par quelqu'autre Moyen k la Satisfaction du Roy de la Grande Bretagne.
Article 14
La France restituera tous les Pays, appartenants k I'Electorat d'Ha- novre, au Landgrave de Hesse, au Due de Brunswick, & au Comte de la Lippe Buckebourg, qui se trouvent, ou se trouveront, occup^s par les Armes de Sa Majestd Tr^s Chretienne; Les Places de ces differens Pays seront rendues dans le m^me Etat oil Elles 6toient, quand la ConquSte en a et6 faite par les Armes Francoises; Et les Pieces d'Artillerie, qui auront et6 transport^es ailleurs, seront remplac6es par le mSme Nombre de mgme Calibre, Poids, & Metal.
Article 15
En Gas que les Stipulations, conteniies dans I'Article 13, des Preli- minaires ne fussent pas accomplies lors de la Signature du present Traits, tant par Rapport aux Evacuations k faire par les Armies de la France
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des Places de Cleves, de Wesel, de Gueldres, & de tous les Pays, apparte- nants au Roy de Prusse, que par Rapport aux Evacuations k faire par les Armies Britannique & Frangoise des Pays, qu'Elles occupent en West- phalie, Basse-Saxe, sur le Bas-Rhin, le Haut Rhin, & dans tout I'Empire, & ^ la Retraite des Troupes dans les Etats de Leurs Souverains respectifs, Leurs Majest6s Britannique & Tr^s Chretienne promettent de proceder de bonne Foy, avec toute la Promptitude que le Cas pourra permettre, aux dites Evacuations, dont lis stipulent rAccomplissement parfait avant le quinze de Mars prochain, ou plut6t, si faire se peut. — Et Leurs Majest^s Britannique & Tres Chretienne s'engagent de plus, & se promettent, de ne fournir aucun Secours, dans aucun Genre, k Leurs Allies respectifs, qui resteront engages dans la Guerre d'Allemagne.
Article 16
La D6cision des Prises, faites en Terns de Paix par les Sujets de la Grande Bretagne sur les Espagnols, sera remise aux Cours de Justice de rAmiraut6 de la Grande Bretagne, conformement aux Regies Stabiles parmi toutes les Nations, de sorte que la Validity des dites Prises entre les Nations Britannique & Espagnole sera decid^e & jug^e, selon le Droit des Gens, & selon les Trait6s, dans les Cours de Justice de la Nation, qui aura fait la Capture.
Article 17
Sa Majest6 Britannique fera demolir toutes les Fortifications, que ses Sujets pourront avoir erig6es dans la Baye de Honduras, & autres Lieux du Territoire de I'Espagne dans cette Partie du Monde, quatre Mois apr^s la Ratification du present Traits ; Et Sa Majesty Catholique ne permettra point, que les Sujets de Sa Majesty Britannique, ou leurs Ouvriers, soient inquiet^s ou molest^s sous aucun Pretexte que ce soit, dans les dits Lieux, dans leur Occupation de couper, charger, & transporter, le Bois de Teinture ou de Camp^che; Et pour cet Effet lis pourront bStir, sans Emplchement, & occuper sans Interruption, les Maisons & les Magazins, qui sont neces- saires pour Eux, pour leurs Families, & pour leurs Effets; Et Sa Majest6 Catholique leur assure par cet Article I'entiere Jouissance de ces Avantages, & Facult6s sur les Cotes & Territoires Espagnols, comme il est stipul6 ci-dessus, immediatement apr^s la Ratification du present Trait6.
Article 18
Sa Majest6 Catholique se desiste, tant pour Elle que pour ses Suc- cesseurs, de toute Pretension, qu'Elle peut avoir form6e en Faveur des Guipuscoans & autres de ses Sujets au Droit de p6cher aux Environs de I'lsle de Terre-Neuve.
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Article 19
Le Roy de la Grande Bretagne restituera k I'Espagne tout le Territoire qu'Il a conquis dans I'lsle de Cuba, avec la Place de la Havane; Et cette Place, aussi bien que toutes les autres Places de la dite Isle, seront rendiies dans le meme Etat, oii Elles etoient, quand Elles ont 6t6 conquises par les Armes de Sa Majeste Britannique: Bien entendfl, que les Sujets de Sa Majesty Britannique, qui se seroient 6tablis, ou ceux qui auroient quelques Affaires de Commerce k regler, dans la dite Isle, restituee a I'Espagne par le present Traits, auront la Libert^ de vendre leurs Terres, & leurs Biens, de regler leurs Affaires, de recouvrer leurs Dettes, et de transporter leurs Effets ainsi que leurs Personnes a bord des Vaisseaux, qu'il leur sera permis de faire venir k la dite Isle, restitute comme dessus, & qui ne serviront qu'k cet Usage seulement, sans etre gen6s k Cause de leur Religion, ou sous quelqu'autre Pretexte que ce puisse itre, hors celui de Dettes ou de Proems criminels; Et pour cet Effet le Terme de dix huit Mois est accord^ aux Sujets de Sa Majest6 Britannique, k compter du Jour de I'Echange des Ratifications du present Traite. — Mais comme la Libert^, accord^e aux Sujets de Sa Majest6 Britannique de transporter leurs Personnes & leurs Effets sur des Vaisseaux de leur Nation, pourroit etre sujette ci des Abus, si Ton ne prenoit la Precaution de les prevenir, il a 6t6 convenfl expressement entre Sa Majeste Britannique & Sa Majesty Catholique, que le Nombre des Vaisseaux Anglois, qui auront la Libert^ d'aller k la dite Isle restitute k I'Espagne, sera limits, ainsi que le Nombre de Tonneaux de chacun, qu'ils iront en lest, partiront dans un Terme fix6, & ne feront qu'un seul Voyage; Tous les Effets, appartenants aux Anglois, devant 6tre embarqu6s en mSme Terns. — II a 6te convenfl en outre, que Sa Majesty Catholique fera donner les Passeports necessaires pour les dits Vaisseaux; que, pour plus grande Suretd, il sera libre de mettre deux Commis ou Gardes Espagnols sur chacun des dits Vaisseaux, qui seront visit6s dans les Atterages et Ports de la dite Isle restitute k I'Espagne et que les Marchandises, qui s'y pourront trouver, seront confisqudes.
Article 20
En Consequence de la Restitution stipul6e dans I'article precedent, Sa Majesty Catholique cede et garantit, en tout Propriety, k Sa MajestS Britannique, la Floride, avec le Fort de S* Augustin, & la Baye de Pensacola, ainsi que tout ce que I'Espagne possede sur le Continent de I'Amerique septentrionaie, k I'Est, ou au Sud Est, du fleuve Mississippi, & generalement tout ce qui depend des dits Pays & Terres, avec la Souverainet6, Propriety, Possession, & tous Droits acquis par Traits ou autrement, que Le Roy Catholique & la Couronne d'Espagne, ont eus jusqu'i present sur les dits Pays, Terres, Lieux, & leurs Habitans; Ainsi que Le Roy Catholique cede & transporte le tout au dit Roy & ^ la Couronne de la Grande Bretagne, & cela de la Maniere & de la Forme la plus ample; Sa Majesty Britannique
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convient de son Cot6 d'acccorder aux Habitans des Pays ci-dessus cedfe la Liberty de la Religion Catholique; En Consequence Elle donnera les Ordres les plus expr^s & les plus effectifs, pour que ses nouveaux Sujets Catholiques Romains puissent professer le Culte de leur Religion selon le Rit de I'Eglise Romaine, en tant que le permettent les Loix de la Grande Bretagne: Sa Majest6 Britannique convient en outre, que les Habitans Espagnols, ou autres qui auroient et6 Sujets du Roy Catholique, dans les dits Pays, pourront se retirer en toute Suret6 et Libert^, oil bon leur semblera et pourront vendre leurs Biens, pourvfl que ce soit cl des Sujets de Sa Ma- jest6 Britannique, & transporter leurs Effets, ainsi que leurs Personnes, sans #tre gen^s dans leur Emigration, sous quelque Pretexte que ce puisse fitre, hors celui de Dettes ou de Proems criminels; Le Terme, limits pour cette Emigration, 6tant fix6 k I'E^pace de dix-huit Mois, k compter du Jour de I'Echange des Ratifications du present Trait6. — II est de plus stipul6, que Sa Majestd Catholique aura la Faculty de faire transporter tous les Effets, qui peuvent Lui appartenir, soit Artillerie, ou autres.
Article 21
Les Troupes Francoises & Espagnoles evacueront tous les Territoires, Campagnes, Villes, Places, & Chateaux, de Sa Majesty Tr^s Fidele, en Europe, sans Reserve aucune, qui pourront avoir ete conquis par les Arm6es de France & d'Espagne, & les rendront dans le mSme Etat oil lis 6toient, quand la ConquSte en a et6 faite, avec la m6me Artillerie, & les Munitions de Guerre, qu'on y a trouv6es; Et k I'Egard des Colonies Portugaises, en Amerique, Afrique, ou dans les Indes Orientales, s'il y 6toit arrive quelque Changement, toutes Choses seront remises sur le m6me Pied, oil Elles 6toient, et en Conformity des Trait^s precedens, qui subsistoient entre les Cours de France, d'Espagne, & de Portugal, avant la presente Guerre.
Article 22
Tous les Papiers, Lettres, Documens & Archives, qui se sont trouv6s dans les Pays, Terres, Villes, & Places, qui sont restitu^s, & ceux apparte- nants aux Pays ced6s, seront deliverfe, ou fournis, respectivement, & de bonne Foi, dans le mime Tems, s'il est possible, de la Prise de Possession, ou au plus tard, quatre Mois apr^s I'Echange des Ratifications du present Traits, en quelque Lieu que les dits Papiers ou Documens puissent se trouver.
Article 23
Tous les Pays, & Territoires, qui pourroient avoir et6 conquis, dans quelque Partie du Monde que ce soit, par les Armes de Leurs Majest^s Britannique & Tr^s Fidele, ainsi que par celles de Leurs Majestds Tr6s Chretienne & Catholique, qui ne sont pas compris dans le present Trait6,
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ni k Titre de Cessions, ni a Titre de Restitutions, seront rendfls sans Diffi- cult^, & sans exiger de Compensation.
Article 24
Comme il est necessaire de designer une Ep6que fixe pour les Restitu- tions & les Evacuations h faire, par chacune des Hautes Parties Contrac- tantes, il est convenfl que les Troupes Britanniques & Frangoises complet- teront, avant le quinze de Mars prochain, tout ce qui restera h. executer des Articles 12 & 13 des Preliminaires, signes le 3 Jour de Novembre pass6, par Rapport i I'Evacuation k faire dans I'Empire, ou ailleurs. — L'Isle de Belle-isle sera 6vacu6e six semaines aprfes I'Echange des Ratifications du present Traits, ou plutot si faire se peut. — La Guadeloupe, la Desirade, Mariegalante, la Martinique, & S" Lucie, trois Mois aprfe I'Echange des Ratifications du present Trait6, ou plut&t, si faire se peut. — La Grande Bretagne entrera pareillement au Bout de trois Mois apr^s I'Echange de Ratifications du present Trait6, ou plut6t si faire se peut, en Possession de la Riviere & du Port de la Mobile, & de tout ce qui doit former les Limites du Territoire de La Grande Bretagne duCot^ duFleuve de Mississip- pi, telles qu'elles sont specifi6es dans I'Article 7.. — L'Isfe de Gor^e sera 6vacu6e par La Grande Bretagne trois Mois apr^s I'Echange des Rati- fications du present Trait6; — Et L'Isle de Minorque par La France k la mSme Ep6que, ou plut&t si faire se peut; — Et, selon les Conditions de I'Article 6, La France entrera de mSme en Possession des Isles de S* Pierre & de Miquelon, au Bout de trois Mois apr^s I'Echange des Ratifications du present Traits. — Les Comptoirs aux Indes Orientales seront rendfls six Mois apr^s I'Echange des Ratifications du present Trait6, ou plut6t si faire se peut. — La Place de la Havane avec tout ce qui a et6 conquis dans risle de Cuba, sera restitute trois Mois apr^s I'Echange des Ratifications du present Traits, ou plut6t si faire se peut; Et en m6me Tems La Grande Bretagne entrera en Possession du Pays ced6 par I'Espagne selon I'Article 20. — Toutes les Places & Pays de Sa Majest6 Trte Fiddle en Europe seront restitu^s immediatement apr^s I'Echange des Ratifications du present Traits ; Et les Colonies, Portugaises, qui pourront avoir et6 conquises, seront restitutes dans I'Espace de trois Mois dans les Indes Occiden tales, & de six Mois dans les Indes Orientales, aprfe I'Echange des Ratifications du present Traits, ou plut6t si faire se peut. — ^Toutes les Places, dont la Resti- tution est stipul6e ci-dessus, seront rendues avec I'Artillerie, & les Muni- tions, qui s'y sont trouv6es lors de la ConquSte. — En Consequence de quoi les Ordres necessaires seront envoy6s par chacune des Hautes Parties Contractantes avec les Passeports reciproques pour les Vaisseaux, qui les porteront, immediatement apr^s I'Echange des Ratifications du present Traits.
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Article 25
Sa Majest6 Britannique, en sa Qualit6 d'Electeur de Brunswick Lunebourg, tant pour Lui que pour ses Rentiers & Successeurs, & tous les Etats & Possessions de Sa d" Majest6 en Allemagne sont compris & garantis par le present Traits de Paix.
Article 26
Leurs Sacr^es Majestfe, Britannique, Trfes Chretienne, Catholique, & Tr^s Fidele, promettent d'observer sincerement & de bonne Foy tous les Articles, contenfls & 6tablis dans le present Trait6; Et EUes ne souffriront pas, qu'il y soit fait de Contravention directe ou indirecte par leurs Sujets respectifs; Et les susdites Hautes Parties Contractantes se garantissent generalement & reciproquement toutes les Stipulations du present Trait6.
Article 27
Les Ratifications solemnelles du present Trait6, expedites en bonne & diie Forme, seront 6chang6es, en cette Ville de Paris, entre Les Hautes Parties Contractantes dans I'Espace d'un Mois, ou plutdt s'il est possible, k compter du Jour de la Signature du present Trait6.
En Foy de quoi Nous soussign6s, Leurs Ambassadeurs Extraordinaires & Ministres Plenipotentiaires avons sign6 de Notre Main, en leur Nom, & en Vertu de nos Plein pouvoirs, le present Trait6 Definitif, & y avons fait apposer le Cachet de Nos Armes.
Fait k Paris le dix de Fevrier mil sept cent soixante trois.
Bedford C.P.S. Choiseul due de Praslin. el Marq' de Grimaldi.
P) P} {'-^■j
ARTICLES SEPARfeS
Quelques uns des Titres, employ6s par les Puissances Contractantes, soit dans les Pleinpouvoir^, et autres Actes, pendant le Cours de la Negotia- tion, soit dans le Preambule du present Traits, n'etant pas generalement reconnus, il a 6t6 convenu, qu'il ne pourroit jamais en resulter aucun pre- judice pour aucune des dites Parties Contractantes, et que les Titres, pris ou omis, de part et d'autre, k I'Occasion de la dite Negociation, et du present Traits, ne pourront etre cit^s, ni tir^s k Consequence.
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II a 6t6 convenu et arrets que la Langue Frangoise, employee dans tous les Exemplaires du present Traits, ne formera point un Exemple, qui puisse etre allegu6, ni tir6 k consequence, ni porter prejudice, en aucune Maniere, k aucune des Puissances Contractantes; Et que Ton se conformera, a I'avenir, k ce qui a 6t6 observ6, et doit etre observe, k I'egard, et de la Part, des Puissances, qui sont en usage, et en Possession, de donner, et de recevoir, des Exemplaires, de semblables Trait^s, en une autre Langue que la Fran- goise. — Le present Trait6 ne laissant pas d'avoir la mgme Force et Vertu, que si le susdit Usage y avoit 6t6 observe.
Quoique le Roy de Portugal n'ait pas sign6 le present Traits definitif, Leurs Majest^s Britannique, Tr^s Chretienne, et Catholique reconnoissent n^anmoins, que Sa Majest6 Tr^s Fidele y est formellement comprise comme partie contractante, et comme si elle avoit expressement Sign6 le dit Trait6; n Consequence, Leurs Majest^s Britannique, Tr^sChretienne et Catholique, I'engagent respectivement et conjointement avec Sa Majest6 Tr^s Fidele, fde la fagon la plus expresse et la plus obligatoire, k I'Execution de toutes, et chacune des clauses, conteniies dans le dit Trait6, moyennant Son Acte ^■d'Accession.
^B Les presens Articles separ^s auront la meme Force, que s'ils etoient ^Bnser6s dans le Trait6.
^H En Foy de quoi nous Soussign^s Ambassadeurs Extraordinaires et ^^Ministres Plenipotentiaires de Leurs Majestes Britannique, Tres Chretienne, et Catholique, avons Sign6 les presens Articles separds, et y avons fait apposer le Cachet de Nos Armes.
Fait k Paris le Dix de Fevrier Mil sept cent soixante et trois.
BedfordC. P.S. Choiseul due de Praslin. el Marq' de Grimaldi.
l^de
I L.S. I I L.S. I I L.S. I
GEORGIUS R.
Georgius Tertius, Dei GratiS, Magnse Britannise Franciae, et Hibernise Rex, Fidei Defensor, Dux Brunsvicensis et Luneburgensis, sacri Romani Imperii Archi-Thesaurarius, et Princeps Elector &c» : Omnibus et singulis ad quos prsesentes hae Literae pervenerint, Salutem: Cum ad Pacem per- ficiendam inter Nos, et Bonum Fratrem Nostrum Regem Fidelissimum ex una Parte, et bonos Fratres Nostros Reges Christianissimum et Catholicum, ex altera, quae jam, signatis apud Fontainebleau Die Mensis currentis
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Tertio Articulis Preliminariis, feliciter inchoata est, eamque ad Finem exoptatum perducendam, Virum aliquem idoneum ex NostrS Parte, plenS Auctoritate munire Nobis 6 Re visum sit; — ^Sciatis quod Nos Fide, Judicio, atque in Rebus maximi Momenti tractandis Usu ac SolertiS, perdilecti et perqu^m Fidelis, Consanguinei, et Consiliarii Nostri, Johannis Ducis et Comitis de Bedford, Marchionis de Tavistock, Baronis Russel de Cheneys, Baronis Russel de Thornhaugh; et Baronis Rowland de Streatham, Exer- cituum Nostrorum Locum tenentis Generalis, Privati Nostri Sigilli Custodis, Comitatuum Bedfordiae et Devoniae Locum tenentis, et Custodis Rotulorum, Nobilissimi Ordinis Nostri Periscelidis Equitis, et Legati Nostri Extraor- dinarii et Plenipotentiarii apud Bonum Fratrem Nostrum Regem Christinis- simum plurimum confisi, Eundem nominavimus, fecimus constituimus et or- dinavimus, quemadmodum per praesentes, nominamus facimus constituimus et ordinamus, verum, certum, et indubitatum Ministrum, Commissarium, Deputatum, Procuratorem, et Plenipotentiarium Nostrum, dantes Eidem, omnem, et omnimodam Potestatem, Facultatem, Authoritatemque, necnon Mandatum generale, pariter ac speciale, (ita tamen ut generale special! non deroget, nee ^ contr^) pro Nobis et Nostro Nomine, un^ cum Legatis, Commissariis Deputatis, et Plenipotentiariis Principum quorum interesse poterit, sufficienti itidem Potestate atque Authoritate instructis, tam singulatim ac divisim, quam aggregatim ac conjunctim, congrediendi et colloquendi, atque cum Ipsis de Pace firm& et stabili, sincer&que Amicitia et ConcordiS, quantocius restituendis, conveniendi, tractandi, consulendi, et concludendi, idque omne quod ita conventum et conclusum fuerit, pro Nobis, et Nostro Nomine, subsignandl, atque Tractatum, Tractatusve, super ita conventis et conclusis, conficiendi, omniaque alia quae ad Opus supra dictum feliciter exequendum pertinent, transigendi, tam amplis Modo et Formi, ac Vi, Eflectuque pari, ac Nos, si interessemus, facere, et prsestare possemus; Spondentes, et in Verbo Regio promittentes, Nos omnia et singula quaecunque k dicto Nostro Plenipotentiario transigi et concludi contigerit, gratum, ratum, et acceptum, omni meliori Modo, habituros, neque passuros unqam, ut in toto, vel In Parte, k quopiam violentur, aut ut eis in contrarium eatur. In quorum omnium majorem Fidem et Robur Praesentibus, Manu NostrS Regii signatis, Magnum Nostrum Magnse Britanniae Sigillum appendi fecimus. Quae dabantur in Palatio Nostro Divi Jacobi Die Duodecimo Mensis Novembris Anno Domini Millesimo Septengentesimo Sexagesimo Secundo, Regnique Nostri Tertio.
Louis, par la Grace de Dieu, Roi de France et de Navarre, k tous ceux qui ces presentes Lettres verront, Salut. comme les Preliminaires sign^s k fontainebleau le troisieme novembre de I'ann^e derniere, ont pos6 les fon- demens de la Paix retablie entre nous et notre Tr^s cher et tr^s am6 bon frere et Cousin le Roi d'Espagne d'une part, et notre Tr^s cher et tr^s am^ bon frere le Roy de la Grande Bretagne, et notre Tr^s cher et tr^s am^
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bon frere et Cousin le Roi de Portugal de I'autre, nous n'avons efl rien plus h, ccEur depuis cette heureuse 6poque, que de consolider et affermir de la fagon la plus durable un si salutaire et si important ouvrage par un Trait6 solemnel et definitif entre nous et les dittes Puissances. Pour ces causes et autres bonnes considerations k ce nous mouvans, nous confiant entierement en la capacity et experience, zSle et fidelity pour notre service de notre Tr^s cher et bien am6 Cousin Cesar Gabriel de Choiseul, Due de Praslin, Pair de france, Chevalier de nos Ordres, Lieutenant General de nos Armies et de la Province de Bretagne, Conseiller en tous nos Conseils, Ministre et Secretaire d'Etat et de nos Commandemens et finances, nous I'avons nomm6 Commis et depute et par ces presentes sign6es de notre main, le nommons, commettons et d^putons notre Ministre Plenipotentiaire, lui donnant plein et absolu pouvoir d'agir en cette quality et de conferer, negotier, Traiter et convenir conjointement, avec le Ministre Plenipotentiaire de notre Tr^s cher et Tr^s Am6 bon frere le Roi de la Grande Bretagne, le Ministre Plenipotentiaire de notre Tr^s cher et tr^s Ame bon frere et cousin le Roi d'Espagne et le Ministre Plenipotentiaire de notre Tr^s cher et tr^s Amh bon frere et Cousin le Roi de Portugal, revetus de Pleinpouvoirs en bonne forme, arreter conclure et signer tels articles,, conditions, conventions, declarations. Traits definitif, accessions et autres actes quelconques qu'Il Jugera convenables pour assOrer et affermir le grand ouvrage de la Paix; le tout avec la meme liberty et autorit6 que nous pourrions faire nous-memes, si nous y 6tions presens en personne, encore qu'il y eflt quelque chose qui requit un mandement plus special qu'il n'est contenu dans ces presentes; Promettant en foi et parole de Roy, d'avoir agr6able, tenir ferme et stable
■ Toujours, accomplir et executer ponctuellement tout de que notre dit Cousin le Due de Praslin aura stipul6, promis et sign6 en vertu du present
pleinpouvoir sans jamais y contrevenir, ni permettre qu'il y Soit contrevenu pour quelque cause et sous quelque pretexte que ce puisse etre, comme aussi d'en faire expedier nos Lettres de ratifications en bonne forme et de les faire delivrer pour etre echang6es dans le tems dont il Sera convenu. Car
■ tel est notre Plaisir. En temoin de quoi nous avons fait mettre notre seel k ces presentes. Donn6 k Versailles le Septieme jour du mois de fevrier I'an de grace mille sept cent soixante trois et de notre Regne le quarante huitieme, sign6 Louis et sur le repH, Par le Roi, le Due de Choiseul. Scell6 du grand sceau de cire jaune.
Don Carlos, por la Gracia de Dios.Rey de Castilla, de Leon, de Aragon, de las dos Sicilias, de Jerusalem, de Navarra, de Granada, de Toledo, de Valencia, de Galicia, de Mallorca, de Sevilla, de Cerdgna, de Cordova, de Corcega, de Murcia, de Jaen, de los Algarbes, de Algecira, de Gibraltar, de las Islas de Canaria, de las Indias Orientales y Occidentales, Islas y Tierra
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firme del Mar Oceano; Archiduque de Austria; Duque de Borg6na, de Bra- bante, y Milan; Conde de Absburg, de Flandes, del Tirol y Barcelona; Sen6r de Vizcaya, y de Molina &c»: Por quanto haviendose, concluido y firmado en el Real sitio de Fontainebleau el Dia tres de Noviembre del presente An6, y cangeadose las respectivas Ratificaciones el veinte y dos del mismo mes por Ministros autorizados a este Fin, los Preliminares de una Paz solida y duradera entre esta Corona, y la de Francia de una Parte, la de Inglaterra y la de Portugal de Otra; en los quales se promete venir luego k un tratado Definitivo, estableciendo y arreglando los Puntos Capi- tales sobre que ha de girar ; y respecto a que del mismo modo que concedi mi Plenopoder para tratar, ajustar, y firmar los mencionados Preliminares a vos Don Geronimo Grimaldi, Marques de Grimaldi, Caballero de la Orden de Santi Spiritus, mi Gentil-hombre de Camara con Ejercicio, y mi Emba- jador Extraordinario al Rey Christianissimo, Se necessita que a Vos, u & otro le conceda para tratar, ajsustar, y firmar el mencionado prometido tratado Definitivo de Paz: Por tan to estando vos el citado Don Geronimo Grimaldi, Marques de Grimaldi en el parage necessario y teniendo yo cada dia mas Motivos para fiaros esta, y otras tales Importancias de mi Corona, por vuestra acrisolada Fidelidad y zelo, Capacidad y Prudencia; he venido en constituiros mi Ministro Plenipotentiario y en concederos todo mi Pleno- poder para que en mi Nombre y representando mi propria Persona, Trateis, Arregleis, convengais y firmeis dicho tratado Definitivo de Paz, entre mi Corona y la de Francia de una Parte, la de Inglaterra y la de Portugal de Otra, con los Ministros que estuvieren autorizados igual y especialmente por BUS respectivos Soberanos ad mismo Fin:dando, como doi des de ahora por grato y rato todo lo que assi Trateis Concluyais y firmeis; y ofreciendo baso mi palabra Real que lo observar6 y cumplir6, lo har6 observar y cumplir como si por mi mismo lo huviesse tratado, concludo, y firmado. En fe de lo qual hize expedir el presente firmado de mi Mano, sellado con mi Sello secreto, y refrendado de mi infrascrito Consejero de Estado, y mi Primer Secretario del Despacho de Estado y de la Guerra. En Buen Retiro a Diez de Deciembre de mil setecientos Sesenta y dos.
Firmado = Y0 EL REY.
Y mas abajo = RICARDO WALL.
endorsed: Definitive Treaty, and Three Separate Articles, between His Majesty, the Most Christian King, and the Catholick King, dated Paris Feb'" 10"' 1763.
i I
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(Translation.)^
The definitive Treaty of Peace and Friendship between his Britannick Majesty, the Most Christian King, and the King of Spain. Concluded at Paris the 10th day of February, 1763. To which the King of Portugal acceded on the same day. (Printed from the Copy.)
In the Name of the Most Holy and Undivided Trinity, Father, Son, and Holy Ghost. So be it.
Be it known to all those whom it shall, or may, in any manner, belong,
It has pleased the Most High to diffuse the spirit of union and concord among the Princes, whose divisions had spread troubles in the four parts of the world, and to inspire them with the inclination to cause the comforts of {jeace to succeed to the misfortunes of a long and bloody war, which having arisen between England and France during the reign of the Most Serene and Most Potent Prince, George the Second, by the grace of God, King of Great Britain, of glorious memory, continued under the reign of the Most Serene and Most Potent Prince, George the Third, his successor, and, in its progress, communicated itself to Spain and Portugal: Consequently, the Most Serene and Most Potent Prince, George the Third, by the grace of God, King of Great Britain, France, and Ireland, Duke of Brunswick and Lunen- bourg. Arch Treasurer and Elector of the Holy Roman Empire; the Most Serene and Most Potent Prince, Lewis the Fifteenth, by the grace of God, Most Christian King; and the Most Serene and Most Potent Prince, Charles the Third, by the grace of God, King of Spain and of the Indies, after having laid the foundations of peace in the preliminaries signed at Fontainebleau the third of November last; and the Most Serene and Most Potent Prince, Don Joseph the First, by the grace of God, King of Portugal and of the Algarves, after having acceded thereto, determined to compleat, without delay, this great and important work. For this purpose, the high contract- ing parties have named and appointed their respective Ambassadors Extraordinary and Ministers Plenipotentiary, viz. his Sacred Majesty the King' of Great Britain, the Most Illustrious and Most Excellent Lord, John Duke and Earl of Bedford, Marquis of Tavistock, &c. his Minister of State, Lieutenant General of his Armies, Keeper of his Privy Seal, Knight of the Most Noble Order of the Garter, and his Ambassador Extraordinary and Minister Plenipotentiary to his Most Christian Majesty; his Sacred Majesty the Most Christian King, the Most Illustrious and Most Excellent Lord, Csesar Gabriel de Choiseui, Duke of Praslin, Peer of France, Knight of his Orders, Lieutenant General of his Armies and of the province of Britanny, Counsellor of all his Counsils, and Minister and Secretary of State, and of his Commands and Finances; his Sacred Majesty the Catholick King, the
' The English version of the Treaty of 1763 is taken from the Collection of Treaties compiled by the Hon. Charles Jenkinson, afterwards Lord Liverpool, and which appeared under the following title:— "A Collection of all the Treaties of Peace, Alliance, and Commerce, Between Great-Britain and other Powers. From the Treaty signed at Munster in 1648, to the Treaties •igned at Paris in 1783. By the Right Hon. Charles Jenkinson. In three Volumes." The [Treaty of 1763 is contained in Vol. Ul, pp. 177-197.
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Most Illustrious and Most Excellent Lord, Don Jerome Grimaldi, Marquis de Grimaldi, Knight of the Most Christian King's Orders, Gentleman of his Catholick Majesty's Bedchamber in Employment, and his Ambassador Extraordinary to his Most Christian Majesty; his Sacred Majesty the Most Faithful King, the Most Illustrious and Most Excellent Lord, Martin de Mello and Castro, Knight professed of the Order of Christ, of his Most Faithful Majesty's Council, and his Ambassador and Minister Plenipoten- tiary to his Most Christian Majesty.
Who, after having duly communicated to each other their full powers, in good form, copies whereof are transcribed at the end of the present treaty of peace, have agreed upon the articles, the tenor of which is as follows:.
Article I. There shall be a Christian, universal, and perpetual peace, as well by sea as by land, and a sincere and constant friendship shall be re established between their Britannick, Most Christian, Catholick, and Most Faithful Majesties, and between their heirs and successors, kingdoms, dominions, provinces, countries, subjects, and vassals, of what quality or condition soever they be, without exception of places or of persons : So that the high contracting parties shall give the greatest attention to maintain between themselves and their said dominions and subjects this reciprocal friendship and correspondence, without permitting, on either side, any kind of hostilities, by sea or by land, to be committed from henceforth, for any cause, or under any pretence whatsoever, and every thing shall be carefully avoided which might hereafter prejudice the union happily re-established, applying themselves, on the contrary, on every occasion, to procure for each other whatever may contribute to their mutual glory, interests, and advantages, without giving any assistance or protection, directly or in- directly, to those who would cause any prejudice to either of the high contracting parties: there shall be a general oblivion of every thing that may have been done or committed before or since the commencement of the war which is just ended.
II. The treaties of Westphalia of 1648; those of Madrid between the Crowns of Great Britain and Spain of 1667, and 1670; the treaties of peace of Nimeguen of 1678, and 1679; of Ryswick of 1697; those of peace and of commerce of Utrecht of 1713; that of Baden of 1714; the treaty of the triple alliance of the Hague of 1717; that of the quadruple alliance of London of 1718; the treaty of peace of Vienna of 1738; the definitive treaty of Aix la Chapelle of 1748; and that of Madrid, between the Crowns of Great Britain and Spain of 1750: as well as the treaties between the Crowns of Spain and Portugal of the 13th of February, 1668; of the 6th of February, 1715; and of the 12th of February, 1761; and that of the 11th of April, 1713, between France and Portugal with the guaranties of Great Britain, serve as a basis and foundation to the peace, and to the present treaty : and for this purpose they are all renewed and confirmed in the best form, as well as all the general, which subsisted between the high contracting parties before the war, as if they were inserted here word for word, so that
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they are to be exactly observed, for the future, in their whole tenor, and religiously executed on all sides, in all their points, which shall not be dero- gated from by the present treaty, notwithstanding all that may have been stipulated to the contrary by any of the high contracting parties: and all the said parties declare, that they will not suffer any privilege, favour, or indulgence to subsist, contrary to the treaties above confirmed, except what shall have been agreed and stipulated by the present treaty.
III. All the prisoners made, on all sides, as well by land as by sea, and the hostages carried away or given during the war, and to this day, shall be restored, without ransom, six weeks, at least, to be computed from the day ot the exchange of the ratification of the present treaty, each crown respectively paying the advances which shall have been made for the subsistance and maintenance of their prisoners by the Sovereign of the country where they shall have been detained, according to the attested
eceipts and estimates and other authentic vouchers which shall be fur- ished on one side and the other. And securities shall be reciprocally ven for the payment of the debts which the prisoners shall have contracted the countries where they have been detained until their entire liberty, d all the ships of war and merchant vessels which shall have been taken :nce the expiration of the terms agreed upon for the cessation of hostilities sea shall likewise be restored, bond fide, with all their crews and cargoes: d the execution of this article shall be proceeded upon immediately ter the exchange of the ratifications of this treaty.
IV. His Most Christian Majesty renounces all pretensions which le has heretofore formed or might have formed to Nova Scotia or Acadia
all its parts, and guaranties the whole of it, and with all its dependencies, ;o the King of Great Britain: Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts in the gulph and river of St. Lawrence, and in general, every thing that depends on the said countries, lands, islands;" and coasts, with the sovereignty, property, possession, and all rights ac- quired by treaty, or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, lands, islands, places, coasts, and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King, and to the Crown of Great Britain, and that in the most ample manner and form, without
triction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. His Britannick Majesty, on his side, agrees to grant, the liberty of the Catholick religion to the inhabitants of Canada : he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French
w
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inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to the subjects of his Britannick Majesty, and bring away their effects as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions: The term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty.
V. The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the island of Newfoundland, such as it is specified in the Xlllth article of the treaty of Utrecht; which article is renewed and confirmed by the present treaty, (except what relates to the island of Cape Breton, as well as to the other islands and coasts in the mouth and in the gulph of St. Lawrence:) And his Britannick Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the gulph of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said gulph of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton, out of the said gulph, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton ; and the fishery on the coasts of Nova Scotia or Acadia, and every where else out of the said gulph, shall remain on the foot of former treaties.
VL The King of Great Britain cedes the islands of St. Pierre and Macquelon, in full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen; and his said Most Christian Majesty engages not to fortify the said islands; to erect no buildings upon them but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police.
VIL In order to re-establish peace on solid and durable foundations, and to remove for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America; it is agreed, that, for the future, the confines between the dominions of his Britannick Majesty and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the river Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Pontchartrain to the sea; and for this purpose, the Most Christian King cedes in full right, and guaranties to his Britannick Majesty the river and port of the Mobile, and every thing which he possesses, or ought to possess, on the left side of the river Mississippi, except the town of New Orleans and the island in which it is situated, which shall remain
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to France, provided that the navigation of the river Mississippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and expressly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its mouth: It is farther stipulated, that the vessels belonging to the subjects of either nation shall not be stopped, visited, or subjected to the payment of any duty whatsoever. The stipulations inserted in the IVth article, in favour of the inhabitants of Canada shall also take place with regard to the in- habitants of the countries ceded by this article.
VIII. The King of Great Britain shall restore to France the islands
of Guadeloupe, of Mariegalante, of Desirade, of Martinico, and of Belleisle;
and the fortresses of these islands shall be restored in the same condition
they were in when they were conquered by the British arms, provided
that his Britannick Majesty's subjects, who shall have settled in the said
islands, or those who shall have any commercial affairs to settle there
or in other places restored to France by the present treaty, shall have
liberty to sell their lands and their estates, to settle their affairs, to recover
their debts, and to bring away their effects as well as their persons, on board
essels, which they shall be permitted to send to the said islands and other
places restored as above, and which shall serve for this use only, without
being restrained on account of their religion, or under any other pretence
whatsoever, except that of debts or of criminal prosecutions: and for this
purfMDse, the term of eighteen months is allowed to his Britannick Majesty's
» subjects, to be computed from the day of the exchange of the ratifications
l^ftof the present treaty; but, as the liberty granted to his Britannick Majesty's
'^"subjects, to bring away their persons and their effects, in vessels of their
nation, may be liable to abuses if precautions were not taken to prevent
them; it has been expressly agreed between his Britannick Majesty and his
I Most Christian Majesty, that the number of English vessels which have leave to go to the said islands and places restored to France, shall be limited, as well as the number of tons of each one; that they shall go in ballast; shall set sail at a fixed time; and shall make one voyage only; all the effects belonging to the English being to be embarked at the same time. It has been farther agreed, that his Most Christian Majesty shall cause the neces- sary passports to be given to the said vessels ; that, for the greater security, it shall be allowed to place two French clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said
I ^-islands and places restored to France, and that the merchandize which shall ^■be found therein shall be confiscated. ^B IX. The Most Christian King cedes and guaranties to his Britannick ^■Majesty, in full right, the islands of Grenada, and the Grenadines, with the same stipulations in favour of the inhabitants of this colony, inserted in the IVth article for those of Canada: And the partition of the islands called neutral, is agreed and fixed, so that those of St. Vincent, Dominico,
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and Tobago, shall remain in full right to Great Britain, and that of St. Lucia shall be delivered to France, to enjoy the same likewise in full right, and the high contracting parties guaranty the partition so stipulated.
X. His Britannick Majesty shall restore to France the island of Goree in the condition it was in when conquered: and his Most Christian Majesty cedes, in full right, and guaranties to the King of Great Britain the river Senegal, with the forts and factories of St. Lewis, Podor, and Galam, and with all the rights and dependencies of the said river Senegal.
XL In the East Indies Great Britain shall restore to France, in the condition they are now in, the different factories which that Crown possessed, as well as on the coast of Coromandel and Orixa as on that of Malabar, as also in Bengal, at the beginning of the year 1749. And his Most Christian Majesty renounces all pretension to the acquisitions which he has made on the coast of Coromandel and Orixa since the said beginning of the year 1749. His Most Christian Majesty shall restore, on his side, all that he may have conquered from Great Britain in the East Indies during the present war; and will expressly cause Nattal and Tapanoully, in the island of Sumatra, to be restored; he engages farther, not to erect fortifications, or to keep troops in any part of the dominions of the Subah of Bengal. And in order to preserve future peace on the coast of Coromandel and Orixa, the English and French shall acknowledge Mahomet Ally Khan for lawful Nabob of the Carnatick, and Salabat Jing for lawful Subah of the Decan; and both parties shall renounce all demands and pretensions of satisfaction with which they might charge each other, or their Indian allies, for the depredations or pillage committed on the one side or on the other during the war.
XII. The island of Minorca shall be restored to his Britannick Majesty, as well as Fort St. Philip, in the same condition they were in when conquered by the arms of the Most Christian King; and with the artillery which was there when the said island and the said fort were taken.
XIII. The town and port of Dunkirk shall be put into the state fixed by the last treaty of Aix la Chapelle, and by former treaties. The Cunette shall be destroyed immediately after the exchange of the ratifica- tions of the present treaty, as well as the forts and batteries which defend the entrance on the side of the sea; and provision shall be made at the same time for the wholesomeness of the air, and for the health of the inhabitants, by some other means, to the satisfaction of the King of Great Britain.
XIV. France shall restore all the countries belonging to the Electorate of Hanover, to the Landgrave of Hesse, to the Duke of Brunswick, and to the Count of La Lippe Buckebourg, which are or shall be occupied by his Most Christian Majesty's arms: the fortresses of these different countries shall be restored in the same condition they were in when conquered by the French arms; and the pieces of artillery, which shall have been carried elsewhere, shall be replaced by the same number, of the same bore, weight and metal.
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XV. In case the stipulations contained in the Xlllth article of the preliminaries should not be compleated at the time of the signature of the present treaty, as well with regard to the evacuations to be made by the armies of France of the fortresses of Cleves, Wezel, Guelders, and-of all the countries belonging to the King of Prussia, as with regard to the evacuations to be made by the British and French armies of the countries which they occupy in Westphalia, Lower Saxony, on the Lower Rhine, the Upper Rhine, and in all the empire; and to the retreat of the troops into the do- minions of their respective Sovereigns : their Britannick and Most Christian Majesties promise to proceed, bond fide, with all the dispatch the case will permit of to the said evacuations, the entire completion whereof they stipulate before the 15th of March next, or sooner if it can be done ; and their Britannick and Most Christian Majesties farther engage and promise to each other, not to furnish any succours of any kind to their respective- allies who shall continue engaged in the war in Germany.
XVL The decision of the prizes made in time of peace by the subjects of Great Britain, on the Spaniards, shall be referred to the Courts of Justice of the Admiralty of Great Britain, conformably to the rules established among all nations, so that the validity of the said prizes, between the British and Spanish nations, shall be decided and judged, according to the law of nations, and according to treaties, in the Courts of Justice of the nation
►who shall have made the capture. XVI L His Britannick Majesty shall cause to be demolished all the fortifications which his subjects shall have erected in the bay of Honduras, and other places of the territory of Spain in that part of the world, four months after the ratification of the present treaty; and his Catholick Ma- jesty shall not permit his Britannick Majesty's subjects, or their workmen, to be disturbed or molested under any pretence whatsoever in the said places, in their occupation of cutting, loading, and carrying away log-wood ; and for this purpose, they may build, without hindrance, and occupy, without interruption, the houses and magazines necessary for them, for their families, and for their effects; and his Catholick Majesty assures to them, by this article, the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated, immediately after the ratification of the present treaty.
XVIII. His Qatholick Majesty desists, as well for himself as for his successors, from all pretension which he may have formed in favour of the Guipuscoans, and other his subjects, to the right of fishing in the neigh- bourhood of the island of Newfoundland.
XIX. The King of Great Britain shall restore to Spain all the territory which he has conquered in the island of Cuba, with the fortress of the Havan- nah; and this fortress, as well as all the other fortresses of the said island, shall be restored in the same condition they were in when conquered by his Britannick Majesty's arms, provided that his Britannick Majesty's subjects who shall have settled in the said island, restored to Spain by the
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present treaty, or those who shall have any commercial affairs to settle there, shall have liberty to sell their lands and their estates, to settle their affairs, recover their debts, and to bring away their effects, as well as their persons, on board vessels which they shall be permitted to send to the said island restored as above, and which shall serve for that use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts or of criminal prosecutions: And for this purpose, the term of eighteen months is allowed to his Britannick Majesty's subjects, to be computed from the day of the exchange of the ratifications of the present treaty: but as the liberty granted to his Britannick Majesty's subjects, to bring away their persons and their effects, in vessels of their nation, may be liable to abuses if precautions were not taken to prevent them; it has been expressly agreed between his Britannick Majesty and his Catholick Majesty, that the number of English vessels which shall have leave to go to the said island restored to Spain shall be limited, as well as the number of tons of each one; that they shall go in ballast; shall set sail at a fixed time; and shall make one voyage only; all the effects belong- ing to the English being to be embarked at the same time : it has been farther agreed, that his Catholick Majesty shall cause the necessary passports to be given to the said vessels ; that for the greater security, it shall be allow- ed to place two Spanish clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said island restored to Spain, and that the merchandize which shall be found therein shall be confiscated.
XX. In consequence of the restitution stipulated in the preceding article, his Catholick Majesty cedes and guaranties, in full right, to his Britannick Majesty, Florida, with Fort St. Augustin, and the Bay of Pensa- cola, as well as all that Spain possesses on the continent of North America, to the East or to the South East of the river Mississippi. And, in general, every thing that depends on the said countries and lands, with the sover- eignty, property, possession, and all rights, acquired by treaties or other- wise, which the Catholick King and the Crown of Spain have had till now over the said countries, lands, places, and their inhabitants; so that the Catholick King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample manner and form. His Britannick Majesty agrees, on his side, to grant to the inhabitants of the countries above ceded, the liberty of the Catholick religion; he will, consequently, give the most express and the most effectual orders that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the Spanish inhabitants, or others who had been subjects of the Catholick King in the said countries, may retire, with all safety and freedom, wherever they think proper; and may sell their estates, provided it be to his Britannick Majesty's subjects, and bring away their effects, as well as their persons,
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without being restrained in their emigration, under any pretence whatsoever, except that of debts, or of criminal prosecutions: the term limited for this emigration being fixed to the space of eighteen months, to be computedj/ from the day of the exchange of the ratifications of the present treaty. It is moreover stipulated, that his Catholick Majesty shall have power to cause all the effects that may belong to him, to be brought away, whether it be artillery or other things.
XXI. The French and Spanish troops shall evacuate all the territories, lands, towns, places, and castles, of his Most faithful Majesty in Europe, without any reserve, which shall have been conquered by the armies of France and Spain, and shall restore them in the same condition they were in when conquered, with the same artillery and ammunition, which were found there: And with regard to the Portuguese Colonies in America, Africa, or in the East Indies, if any change shall have happened there, all things shall be restored on the same footing they were in, and conform-
_ably to the preceding treaties which subsisted between the Courts of France, Spain, and Portugal, before the present war.
XXII. All the papers, letters, documents, and archives, which were jund in the countries, territories, towns and places that are restored, id those belonging to the countries ceded, shall be, respectively and bond ie, delivered, or furnished at the same time, if possible, that possession
taken, or, at latest, four months after the exchange of the ratifications the present treaty, in whatever places the said papers or documents nay be found.
XXIII. All the countries and territories, which may have been con- uered, in whatsoever part of the world, by the arms of their Britannick
ind Most Faithful Majesties, as well as by those of their Most Christian « and Catholick Majesties, which are not included in the present treaty, either under the title of cessions, or under the title of restitutions, shall be restored without difficulty, and without requiring any compensations.
XXIV. As it is necessary to assign a fixed epoch for the restitutions and the evacuations, to be made by each of the high contracting parties, it is agreed, that the British and French troops shall compleat, before the 15th of March next, all that shall remain to be executed of the Xllth and Xlllth articles of the preliminaries, signed the 3d day of November last, with regard to the evacuation to be made in the Empire, or elsewhere. The island of Belleisle shall be evacuated six weeks after the exchange of the ratifications of the present treaty, or sooner if it can be done. Guadeloupe, Desirade, Mariegalante Martinico, and St. Lucia, three months after the exchange of the ratifications of the present treaty, or sooner if it can be done. Great Britain shall likewise, at the end of three months after the exchange of the ratifications of the present treaty, or sooner if it can be done, enter into possession of the river and port of the Mobile, and of all that is to form the limits of the territory of Great Britain, on the side of the river Mississippi, as they are specified in the Vllth article. The island
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of Goree shall be evacuated by Great Britain, three months after the ex- change of the ratifications of the present treaty; and the island of Minorca by France, at the same epoch, or sooner if it can be done: And according to the conditions of the Vlth article, France shall likewise enter into pos- session of the islands of St Peter, and of Miquelon, at the end of three months after the exchange of the ratifications of the present treaty. The Factories in the East Indies shall be restored six months after the exchange of the ratifications of the present treaty, or sooner if it can be done. The fortress of the Havannah, with all that has been conquered in the island of Cuba, shall be restored three months after the exchange of the ratifications of the present treaty, or sooner if it can be done: And, at the same time, Great Britain shall enter into possession of the country ceded by Spain according to the XXth article. All the places and countries of his most Faithful Majesty, in Europe, shall be restored immediately after the ex- change of the ratification of the present treaty : And the Portuguese colonies, which may have been conquered, shall be restored in the space of three months in the West Indies, and of six months in the East Indies, after the exchange of the ratifications of the present treaty, or sooner if it can be done. All the fortresses, the restitution whereof is stipulated above, shall be restored with the artillery and ammunition, which were found there at the time of the conquest. In consequence whereof, the necessary orders shall be sent by each of the high contracting parties, with reciprocal passports for the ships that shall carry them, immediately after the exchange of the ratifications of the present treaty.
XXV. His Britannick Majesty, as Elector of Brunswick Lunenbourg, as well for himself as for his heirs and successors, and all the dominions and possessions of his said Majesty in Germany, are included and guar- antied by the present treaty of peace.
XXVI. Their sacred Britannick, Most Christian, Catholick, and Most Faithful Majesties, promise to observe sincerely and bond fide, all the articles contained and settled in the present treaty; and they will not suffer the same to be infringed, directly or indirectly, by their respective subjects; and the said high contracting parties, generally and reciprocally, guaranty to each other all the stipulations of the present treaty.
XXVII. The solemn ratifications of the present treaty, expedited in good and due form, shall be exchanged in this city of Paris, between the high contracting parties, in the space of a month, or sooner if possible, to be computed from the day of the signature of the present treaty.
In witness whereof, we the underwritten their Ambassadors Extra- ordinary, and Ministers Plenipotentiary, have signed with our hand, in their name, and in virtue of our full powers, have signed the present definitive treaty, and have caused the seal of our arms to be put thereto. Done at Paris the tenth day of February, 1763.
Bedford, C.P.S. Choiseul, Due de PrasUn. El Marq. de Grimaldi.
(L.S.) (L.S.) (L.S.)
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Separate Articles
I. Some of the titles made use of by the contracting powers, either in the full powers, and other acts, during the course of the negociation, or in the preamble of the present treaty, not being generally acknowledged; it has been agreed, that no prejudice shall ever result therefrom to any of the said contracting parties, and that the titles, taken or omitted on either side, on occasion of the said negociation, and of the present treaty,
L shall not be cited or quoted as a precedent.
T II. It has been agreed and determined, that the French language made
use of in all the copies of the present treaty, shall not become an example
t which may be alledged, or made a precedent of, or prejudice, in any manner, any of the contracting powers; and that they shall conform themselves, for the future, to what has been observed, and ought to be observed, with
I regard to, and on the part of powers, who are used, and have a right, to give and to receive copies of like treaties in another language than French; the present treaty having still the same force and effect, as if the aforesaid custom had been therein observed. III. Though the King of Portugal has not signed the present definitive Ireaty, their Britannick, Most Christian, and Catholick Majesties, acknowl- edge, nevertheless, that his Most Faithful Majesty is formally included therein as a contracting party, and as if he had expressly signed the said treaty: Consequently, their Britannick, Most Christian, and Catholick Majesties, respectively and conjointly, promise to his Most Faithful Majesty, in the most express and most binding manner, the execution of all and every the clauses, contained in the said treaty, on his act of accession.
The present Separate Articles shall have the same force as if they were inserted in the treaty.
In witness whereof, We the under-written Ambassadors Extraordinary, and Ministers Plenipotentiary of their Britannick, Most Christian and Catholick Majesties, have signed the present separate Articles, and have caused the seal of our arms to be put thereto. Done at Paris, the 10th of February, 1763.
Bedford, C.P.S. Choiseul, Due El Marq. de
(L.S.) de Praslin. Grimaldi.
(L.S.) (L.S.)
tHis Britannick Majesty's full Power. — ;eorge r. George the Third, by the grace of God, King of Great Britain, France nd Ireland, Defender of the Faith, Duke of Brunswick and Lunenbourg, Arch-Treasurer, and Prince Elector of the Holy Roman Empire, &c. To all and singular to whom these presents shall come, greeting. Whereas, in order to perfect the peace between Us and our good Brother the Most Faithful King, on the one part, and our good Brothers the Most Christian
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and Catholick Kings, on the other, which has been happily begun by the Preliminary Articles already signed at Fontainebleau the third of this month; and to bring the same to the desired end, We have thought proper to invest some fit person with full authority, on our part; Know ye, that We, having most entire confidence in the fidelity, judgment, skill, and ability in managing affairs of the greatest consequence, of our right trusty, and right entirely beloved Cousin and Counsellor, John Duke and Earl of Bedford, Marquis of Tavistock, Baron Russel of Cheneys, Baron Russel of Thorn- haugh, and Baron Rowland of Streatham, Lieutenant-general of our forces, Keeper of our Privy Seal, Lieutenant and Custos Rotulorum of the counties of Bedford and Devon, Knight of our most noble order of the Garter, and our Ambassador Extraordinary and Plenipotentiary to our good Brother the Most Christian King, have nominated, made, constituted and appointed, as by these presents, we do nominate, make, constitute, and appoint him, our true, certain, and undoubted Minister, Commissary, Deputy, Procurator and Plenipotentiary, giving to him all and all manner of power, faculty and authority, as well as our general and special command (yet so as that the general do not derogate from the special, or on the contrary) for Us and in our name, to meet and confer, as well singly and separately, as jointly, and in a body, with the Ambassadors, Commissaries, Deputies, and Pleni- potentiaries of the Princes, whom it may concern, vested with sufficient power and authority for that purpose, and with them to agree upon, treat, consult and conclude, concerning the re-establishing, as soon as may be, a firm and lasting peace, and sincere friendship and concord; and whatever shall be so agreed and concluded, for Us and in our name, to sign, and to make a treaty or treaties, on what shall have been so agreed and concluded, and to transact every thing else that may belong to the happy completion of the aforesaid work, in as ample a manner and form, and with the same force and effect, as We ourselves, if we were present, could do and perform; engaging and promising, on our royal word, that We will approve, ratify and accept, in the best manner, whatever shall happen to be transacted and concluded by our said Plenipotentiary, and that We will never suffer any person to infringe or act contrary to the same, either in the whole or in part. In witness and confirmation whereof We have caused our great Seal of Great Britain to be affixed to these presents, signed with our royal hand. Given at our Palace at St. James's, the 12th day of November, 1762, in the third year of our reign.
His Most Christian Majesty's Full Power.
Lewis, by the grace of God, King of France and Navarre, To all who shall see these presents, Greeting. Whereas the Preliminaries, signed at Fontainebleau the third of November of the last year, laid the founda- tion of the peace re-established between us and our most dear and most beloved good Brother and Cousin the King of Spain, on the one part, and
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our most dear and most beloved good Brother the King of Great Britain, and our most dear and most beloved good Brother and Cousin the King of Portugal on the other, We have had nothing more at heart since that happy epoch, than to consolidate and strengthen in the most lasting manner, so salutary and so important a work, by a solemn and definitive treaty between Us and the said powers. For these causes, and other good consider- ations. Us thereunto moving. We, trusting entirely in the capacity and ex- perience, zeal and fidelity for our service, of our most dear and well-beloved Cousin, Caesar Gabriel de Choiseul, Duke of Praslin, Peer of France, Knight of our Orders, Lieutenant General of our Forces and of the province of Britany, Counsellor in all our Councils, Minister and Secretary of State, and of our Commands and Finances, We have named, appointed, and de- puted him, and by these presents, signed with our hand, do name, appoint, and depute him our Minister Plenipotentiary, giving him full and absolute wer to act in that quality, and to confer, negociate, treat and agree intly with the Minister Plenipotentiary of our most dear and most beloved Brother the King of Great Britain, the Minister Plenipotentiary of ur most dear and most beloved good Brother and Cousin the King of pain and the Minister Plenipotentiary of our most dear and most beloved good Brother and Cousin the King of Portugal, vested with full powers, in good form, to agree, conclude and sign such articles, conditions, conven- tions, declarations, definitive treaty, accessions, and other acts whatsoever, that he shall judge proper for securing and strengthening the great work of
Keace, the whole with the same latitude and authority that We ourselves light do, if We were there in person, even though there should be something 'hich might require a more special order than what is contained in these resents, promising on the faith and word of a King, to approve, keep firm and stable for ever, to fulfil and execute punctually, all that our said Cousin, the Duke of Praslin, shall have stipulated, promised and signed, in virtue of the present full power, without ever acting contrary thereto, or permitting any thing contrary thereto, for any cause, or under any pretence whatsoever, as also to cause our letters of ratification to be expedited in good form, and I to cause them to be delivered, in order to be exchanged within the time that H shall be agreed upon. For such is our pleasure. In witness whereof, we have caused our Seal to be put to these presents. Given at Versailles the 7th day of the month of February, in the year of Grace 1763, and of our reign the
I forty-eighth. Signed Lewis, and on the fold, by the King, the Duke of Choiseul. Sealed with the great Seal of yellow Wax. bf
His Catholick Majesty's full Power.
Don Carlos, by the grace of God, King of Castille, of Leon, of Arragon, if the two Sicilies, of Jerusalem, of Navarre, of Granada, of Toledo, of Valencia, of Galicia, of Majorca, of Seville, of Sardinia, of Cordova, of Corsica, of Murcia, of Jaen, of the Algarves, of Algecira, of Gibraltar, of
H^CorsK
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the Canary Islands, of the East and West Indies, Islands and Continent, of the Ocean, Arch Duke of Austria, Duke of Burgundy, of Brabant and Milan, Count of Hapsburg, of Flanders, of Tirol and Barcelona, Lord of Biscay and of Molino, &c. Whereas preliminaries of a solid and lasting peace between this Crown, and that of France on the one part, and that of England and Portugal on the other, were concluded and signed in the Royal Residence of Fontainbleau, the 3rd of November of the present year, and the respective ratifications thereof exchanged on the 22d of the same month, by Ministers authorised for that purpose, wherein it is promised, that a definitive treaty should be forthwith entered upon, having established and regulated the chief points upon which it is to turn : and whereas in the same manner as I granted to you, Don Jerome Grimaldi, Marquis de Grimaldi, Knight of the Order of the Holy Ghost, Gentleman of my Bed-chamber with employment, and my Ambassador Extraordinary to the Most Christian King, my full " power to treat, adjust, and sign the before-mentioned preliminaries, it is necessary to grant the same to you, or to some other, to treat, adjust, and sign the promised definitive treaty of peace as aforesaid: therefore, as you the said Don Jerome Grimaldi, Marquis de Grimaldi, are at the convenient place, and as I have every day fresh motives, from your approved fidelity and zeal, capacity and prudence, to entrust to you this, and other-like concerns of my Crown, I have appointed you my Minister Plenipotentiary, and granted to you my full power, to the end, that, in my name, and repre- senting my person, you may treat, regulate, settle, and sign the said defini- tive treaty of peace between my Crown and that of France on the one part, that of England and that of Portugal on the other, with the Ministers who shall be equally and specially authorised by their respective Sovereigns for the same purpose; acknowledging, as I do from this time acknowledge, as accepted and ratified, whatever you shall so treat, conclude, and sign; promising, on my Royal Word, that I will observe and fulfil the same, will cause it to be observed and fulfilled, as if it had been treated, concluded, and signed by myself. In witness whereof, I have caused these presents to be dispatched, signed by my hand, sealed with my privy seal, and counter- signed by my under-written Counsellor of State, and first Secretary for the department of State and of War. Buen Retiro, the 10th day of December, 1762.
(Signed) I THE KING.
(And lower) Richard Wall
I
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PAPERS RELATING TO THE ESTABLISHMENT OF CIVIL GOV- ERNMENT IN THE TERRITORIES CEDED TO BRITAIN BY THE TREATY OF 1763.»
{Egremont to Lords of Trade)
Whitehall May 5*^ 1763.
Lords of Trade
My Lords
His Majesty having brought the Negotiation with France & Spain to a happy Conclusion, and having given the necessary Orders for carrying into Execution the several Stipulations of the late Treaty, is now pleased to fix His Royal Attention upon the next important Object of securing to His Subjects, and extending the Enjoyment of the Advantages, which Peace has procured.
His Majesty therefore, upon the same Principle of SoUicitude for the Interests of His Colonies, which engaged him in a just & necessary War, in support of their Rights, and obliged him to insist on such Terms of Peace as he thought peculiarly calculated for the future Security of that important Object, directs me to transmit to Your Lordships herewith the Definitive Treaty of Peace; and I am commanded to signify to Your Lordships His Majesty's Pleasure, that You do, without Loss of Time, take into Your most serious Consideration, those Articles which relate to the Cessions made by their Most Christian & Catholick Majesties, & that You do report Your Opinion.
By what Regulations, the most extensive Commercial Ad- vantages may be derived from those Cessions, and
How those Advantages may be rendered most permanent & secure to His Majesty's Trading Subjects.
The Means of arriving at these desireable Ends, will perhaps be most distinctly pointed out, by considering, separately, the several Cessions stipulated by the Articles of Peace and examining the different Circumstances by which each Cession becomes more or less susceptible of the great Advantages of Commerce & Security above mentioned.
No'rth America naturally offers itself as the principal Object of Your Lordships Consideration upon this Occasion, with regard to which, I shall first obey His Majesty's Commands in proposing to Your Lordships some general Questions, before
' This and the following papers contain an account of the steps talcen by the British Govern- ment to provide a suitable constitution and policy of administration for Canada and the other recently acquired territories in North America. They furnish the basis for the Proclamation of Oct. 7th, 1763, as also for the Commission and the Instructions of the same date, given to General James Murray as Governor of the Province of Quebec. The papers are copied from the originals in the Public Record Office, and are, except where noted, from the aeries "America and the West Indies." The first is from vol. 268, p. 93.
i
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I proceed to desire You will furnish that Information, which His Majesty expects from Your Lordships, with regard to the Northern or Southern Parts of this Continent considered separ- ately.
The Questions which relates to North America in general, are, 1" What New Governments should be established & what Form should be adopted for such new Governments ? and where the Capital, or Residence of each Governor should be fixed ? 2<iiy What Military Establishm' will be sufficient ? What new Forts should be erected ? and which, if any, may it be expe- dient to demolish ? Murray's re- 3diy j^ ^h^j Mode least Burthensome and most palatable
port said to _ . '^
be inclosed in to the Colonies Can they contribute towards the Support of the July 1762. Additional Expence, which must attend their Civil & Military E^emont°in Establishment, upon the Arrangement which Your Lordships A & w. I. shall propose ?
apparently Under the first of those Heads, Viz' What new Governments
missing. shall be established ? It will be proper to examine, what Privi-
ledges are reserved to His Majesty's New Subjects by the Terms
of their Capitulations; I therefore send Your Lordships herewith
the Capitulation of Quebec & Montreal.
a'"^'i"26 ^^ "^^y ^'®° ^^ ^ proper Object of Consideration, how far it is
1762. In expedient to retain, or depart from the Forms of Government
letter'^to which His Most Christian Majesty had established in those
Tune'^762 '^ Colonies; and in order to furnish Your Lordships with those
enclosure No.Lights, which may enable You to form a just Opinion on this
Vol. 97. ' Head, I send herewith Copies of the several Reports of Gov"
Murray Burton & Gage.
Gage's--En- The Second Question, which relates to the Security of North
38 March 20, America, seems to include Two Objects to be provided for; The
herst's to 'first is, the Security of the whole against any European Power;
Egremont of yj^g j,gxt is the Preservation of the internal Peace & Tranquility
A. & w. I. of the Country against any Indian Disturbances. Of those Two
Objects, the latter appears to call more immediately for such
Regulations & Precautions as Your Lordships shall think proper
to suggest &c*.
Tho' in order to succeed effectually in this Point, it may become necessary to erect some Forts in the Indian Country, with their Consent, yet His Majesty's Justice & Moderation inclines Him to adopt the more eligible Method of conciliating the Minds of the Indians by the Mildness of His Government, by protecting their Persons & Property & securing to them all the Possessions, Rights and Priviledges they have hitherto enjoyed, & are entitled to, most cautiously guarding against any Invasion or Occupation of their Hunting Lands, the Posses-
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SESSIONAL PAPER No. 18
Canada & Newfound- land.
I
Florida.
sion of which is to be acquired by fair Purchase only; and it has been thought so highly expedient to give them the earliest and most convincing Proofs of His Majesty's Gracious and Friendly Intentions on this Head, that I have already received and transmitted the King's Commands to this Purpose to the Governors of Virginia, the Two Carolinas & Georgia, and to the Agent for Indian Affairs in the Southern Department, as Your Lordships will see fully in the inclosed Copy of my Circular Letter to them on this Subject.
Having thus executed the King's Commands, with regard to such Questions as relate to North America in general, I am to signify to Your Lordships His Majesty's further Pleasure that You do take into Consideration the following Queries, which concern some parts of that Continent in particular.
The first and most important Object is the Fishery, with regard to which Your Lordships will furnish all the Lights you possibly can in order to shew, —
Whether the French had made any Incroachments with regard to the Fishery, contrary to what is stipulated, on this Head by the Treaty of Utrecht ?
How-those Incroachments may be most easily prevented by such timely Precautions, as may most effectually obviate all Disputes between the Subjects of both Crowns, in those Parts & preserve Peace & Tranquility there for the future.
What Inconvenience or Disadvantage may arise to His Majesty's Northern Colonies, or to the Fishery in those Parts, from the Vicinity of S* Pierre & Michelon, ceded to France, under certain Restrictions by the 6* Article of the Definitive Treaty ? And by what Precautions may that Inconvenience be most effectually guarded against, either with respect to Our Fishery, or a Contraband Trade with Our Colonies.
Can Your Lordships furnish any Lights with regard to the Climate or Soil of the Inland Parts of Florida, which tho' hitherto neglected and useless, are said to be extremely fertile ?
Is there any Reason to believe that the Mouth of the Cata- hocke River is, or might be easily made Commodious for Shipping, or, that a Harbour may be found in the Southern Parts of the Peninsula of Florida ? What particular Advantages might arise from such a Harbour, or from that of Pensacola or Mobile, or from any other, on that part of the Coast of North America lately ceded to His Majesty, which bounds the Gulph of Mexico to the North.
The general Queries with regard to North America, having taken in all the Points of Information wanted, relative to the Louisiana & the Illinois, I shall only add, that His Majesty
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desires to have Your Lordships Opinion whether any immediate Advantages may be derived from the free Navigation of the Mississippi, and how they are to be improved & extended ?
Having thus gone thro' the several Points relative to N. America, upon which His Majesty desires to have the Opinion of Your Lordships, the obvious Application of most of the same Queries to the other Cessions made to His Majesty by the Peace, makes it unnecessary to repeat them, it will be sufficient therefore to desire that Your Lordships will report for His Majesty's Information, Your Opinion, with regard to the most effectual Means of improving and securing the Commercial Advantages, which may be derived from the Conquered Islands and from Senegal. With regard to the latter I am to inform Your Lord- ships, that His Majesty has thought proper to accept the Pro- posal of the African Committee made in the Petition of which I send You Copy inclosed, and Orders are already given to the Governor of Senegal to have a Detachment under a proper Officer to keep Possession of that Place till the African Committee shall be prepared to take Possession thereof. Your Lordships will re- port Your Opinion of this Arrangement, and suggest whatever may occur to You for the Advantage of this Part of the African Trade.
In Order to supply Your Lordships with all the Materials in my Office, which can in any Shape assist You, in making Your Report as ample, and as satisfactory as possible, I inclose here- with Copies of Accounts transmitted by the King's Command from Colonels Scott & Worge, as also the Capitulation of Martin- ico, Grenade having surrendered under the same Terms, which had been granted to that Island.
As it must require some time to examine & deliberate upon the several Points which are referred to Your Lordships in this Letter, it is the King's Pleasure, that without waiting to make a full Answer to the whole You do, as soon as possible, report your Opinion upon such Points as shall appear to you most pressing that proper Directions may be given, without Loss of Time, with regard to the Arrangements immediately necessary for the New Acquisitions.
I am &c.
EGREMONTi
» Charles, Earl of Egremont succeeded Wm. Pitt as Secretary of State for the Southern Department, Oct. 9th, 1761. At this time there were two Principal Secretaries of State, one for the "Northern" and the other for the "Southern" Department, these distinctions referring to the division between them of British foreign affairs in Europe. The American Colonies came under the attention of the senior secretary, being usually the secretary for the Southern Depart- ment. In Jan. 1768, a third Secretary of State was appointed to take charge of Colonial affairs; but, with the virtual loss of the American Colonies, this office was abolished in 1782. There- after a new division was made into the Home and Foreign Departments. The colonies came un- der the care of the former department until 1801, when they were transferred to that of the Sec- retary for War, a new department established in 1794. From 1801 to 18.S4 this department was known as that of the Secretary of State for War and the Colonies.
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endorsed: Dra' to the Lords of the Trade May S"' 1763 Letter of Reference concerning the Advantages procured by the Treaty of Peace, — the Regulations proper to be made relating to the Indians & the Establishment of New Governments in the ceded Provinces & Islands — Directing them to point out , the necessary Arrangements. —
with an Inclosure
N" 7.—
Enclosure in letter of 5 May 1763 — '
Definitive Treaty
Capitulation of Quebec, in B. Gen' Townshend's Sept. 20.
1759 Capitulation of Montreal, in Gen' Amherst's of Sep' 8. 1760. Gov' Murray's Report. Quebec June 5. 1762 1 transmitted Gov' Burton's Report. Trois Rivieres Apr. 1762|-by S' Jeff. Gen' Gage's Report. Montreal. March 20. 1762 j Amherst. Capitulation of Martinico. in Gen' Monckton's of Feb. 9. &
27. 1762 Gov' Scott's Letter. Grenada. July 7. 1762 Gov' Scott's Report. Grenada. Jan^ 19. 1763. Gov' Worge's Report. Senegal Jan'' 11. 1762. Mem' of Committee of Merchants trading to Africa, &
Estimate Circular, March 16., to Gov" of Virginia, Two Carolinas,
& Georgia, & Agent for S° District of Indians, endorsed: List of Papers sent to Board of Trade — May 5:
1763.
Inclosure in N° 7 —
Lords of Trade to Egremont, with Report:
Whitehall June 8. 1763.
My Lord, — Having, in Obedience to His Majesty's Com- mands, signified to Us by your Lordship's Letter of the 5*** of May last, prepared Our Representation upon such of the Points, thereby referr'd to Our Consideration, as appear to Us the most pressing, We beg leave to inclose Our said Repre-
J The enclosures mentioned in this list are not found with the letter of Sth May; but those relating to Canada are already given in this volume.
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sentation to your Lordship, & desire you will be pleased to lay it before His Majesty.
We are
My Lord, Your Lordship's most Obedient and most humble Servants Shelburne SoAME Jenyns Ed: Eliot E"* Bacon John Yorke Geo: Rice Orwell
Bamber Gascoyne Earl of Egremont, One of His
Majesty's Principal Secretaries of State endorsed: June 8"^ 1763
Lords of Trade To the Earl of Egremont with an Inclosure (Report on Acquisitions in America) AN°8.
Enclosure in letter from the Lords of Trade to Egremont, ^"' June
1763.
N° 12 L.S. > To the King's most Excellent Majesty
May it please Your Majesty,
Having received Your Majesty's Commands, signified to Us by a Letter from the Earl of Egremont, dated May 5"" 1763, to take into Consideration, without loss of Time, those Articles of the late Definitive Treaty of Peace, which relate to the Cessions made by France and Spain, and to report Our Opinion by what Regulations the most extensive Advantages may be derived from them, and those Advantages rendered most permanent and secure to Your Majesty's trading Subjects; And Your Majesty having further directed Us with regard to North America in general, to point out, what new Governments it may be necessary to establish, with the Form most proper for such Governments, and the Places most convenient for the
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Capitals; What Military Establishments will be sufficient for that Country; What new Forts it may be proper to erect, and what (if any) to demolish; And by what Mode of Revenue, least burthensome and most palatable, the Colonies can contri- bute to the Additional Expence of such Civil and Military Establishments: And Your Majesty having commanded that, particularly As to Canada and Newfoundland, after furnishing every Information in our Power relating to the Fishery, We should consider the Encroachments made by the French in this Article, contrary to the Stipulations in the Treaty of Utrecht, and give our Opinion by what Means such Encroachments may be prevented in future, and any Inconvenience which may arise from the Vicinity of S' Pierre and Micquelon, may be most effectually guarded against. — That in respect to Florida, We should report upon it's Produce, the Situation of it's Harbours, and Rivers, with the Benefits which may arise from the free Navigation of the River Mississippi; — ^That in regard to the Is- lands conquered in the West Indies, and Senegal on the Coast of Africa, We should state the means which appear to Us most effectual for securing and improving the Commercial Advantages which may be derived from them; — But that upon the whole, it was Your Majesty's Pleasure (as some Time would be required to examine and deliberate on the several Points referred to Us) that We should, as soon as possible, report to Your Majesty Our Opinions on such of them as appear to Us most pressing, in order that Directions may be given without loss of Time:
In Obedience to Your Majesty's Commands, We have taken the several Points referred to Us into our most serious Consider- ation, and are of Opinion that We shall best comply with Your Majesty's Intention and Directions by stating particularly the Advantages which severally result to Your Majesty's Colonies and the Commerce of Your Subjects by the Cessions stipulated in the late Treaty, and then submitting Our humble Opinion to Your Majesty of the Means, which appear to Us immediately necessary to be put in Execution for securing and improving those Advantages.
Many of the particular Questions contained in the Refer- ence will receive a particular Answer under one or other of those general Heads, and such as do not. We shall beg Leave, in Obedience to Your Majesty's Direction, to reserve for a future Report, when We may be better enabled to give Your Majesty Information upon such Points.
The most obvious Advantages arising from the Cessions made by the Definitive Treaty are. The exclusive Fishery of the River S' Laurence on all the Coasts in the Gulph of S* Laurence
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and all the Islands in that Gulph. From all these Fisheries Your Majesty's Subjects were hitherto entirely excluded; partly by the express Stipulations of the Treaty of Utrecht by which Cape Breton, S' Johns and the other Islands in the Gulph were dismember'd from Nova Scotia and ceded to France, partly by the Claim immediately set up by France to the whole Southern Shore of the Gulph under pretence that it had never made a part of Nova Scotia, but had always been considered as a seperate District of New France. In consequence of this Claim and of the Possession instantly taken of that Territory by the French, which till the late War they were permitted to retain, they established their most Valuable Fisheries in the different and most convenient Bays of that Country, as well in respect to Catching and Curing of Fish and fitting out Boats, Shallops and other Vessels, as to raising Provisions at the cheap- est Rates. From all these Circumstances this Fishery upon the Coasts of the Gulph and of the Islands in the Gulph of S' l.aurence, well known by the Name of La Peche Sedentaire, has ever since been deemed one of the most valuable parts of the French Fishery and We have reason to conclude from the Spirit and Industry which Your Majesty's Subjects have shewn ever since the Reduction of Louisbourg that it will become equally valuable in their Hands, especially when We consider that, the Fish- ery of the River S' Laurence consisting of Whales, Seals, Sea-Cows &ca has been in the short Period since the taking of Quebec, carried to a much greater Extent by your Majesty's Subjects, than ever it was by the French, during their Possession of Canada. This Claim, and the Possession in consequence of it, of thel whole Southern Coast of the Gulph of S' Laurence, from the! Streights of Canceau to Cape Roziere, at the Mouth of the River, appears to Us to have been the chief Encroachment made by the French in Violation of the Stipulations in the Treaty of Utrecht; But the Monopoly of the Fishery which they endeavoured to establish upon this Encroachment was greatly strengthened by other Circumstances. By suffering the whole of Nova Scotia (the Fort of Annapolis excepted) to remain entirely in the Possession of French Inhabitants from the Treaty of Utrecht to the Year 1749, Your Majesty's Subjects were dis- couraged and prevented from availing themselves of the ad- vantageous and abundant Fishery which might have been carried on upon that part of the Coast of Nova Scotia expressly and exclusively reserved to them in the Treaty of Utrecht, for the french constantly excited the Indians to disturb the Fishermen that resorted thither; And by their Possession of the whole Coast of Labrador, they not only carried on an extensive Trade
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with the Esqulmeaux Indians in Oyl, Furs &ca. (in which they allowed Your Majesty's Subjects no Share) but by the Vicinity of the Eastern Part of that Coast, to that part of Newfoundland, (where a permissive Right of drying their Fish, only during the Fishery Season was granted by the Treaty of Utrecht) They assumed in some Measure an Exclusive Right to the Navigation in the Streights of Bellisle.
These several Encroachments, will, We apprehend, entirely cease, on the one Hand, by the compleat Settlement of Your Majesty's Colony of Nova Scotia, according to it's true and ancient Boundaries, and on the other by the Annexation of the Labrador Coast to the Government of Newfoundland, and by the faithfuU Execution of those Instructions, which Your Ma- jesty has been pleased to give to Your Governor of that Island. With respect to the Islands of S* Pierre and Miquelon, We do not apprehend that any great Advantages can result to the French Fishery, or great Inconvenience to that of Your Majesty's Subjects by the Possession of them according to the Terms of the Treaty; We do not imagine they are fitted to restore or revive that Branch which the French call La Peche Sedentaire, and of which they have been deprived by the Cessions, not only as these Islands are without Wood, either for Firing or for any sort of Naval Construction, but as they are utterly incapable of producing Provision sufficient for the Consumption of any considerable Number of Inhabitants. And as to any Con- veniences of Drying and Curing such Fish upon those Islands, as may be caught upon the Banks of Newfoundland during the Banking Season, It appears, by what Information We have had, that the best Fish so caught may be earlier and more conveniently dryed upon that part of Newfoundland, where a permissive Right for so doing during the Season was granted as well by the Treaty of Utrecht, as by the late Treaty. It seems, therefore, only to remain, that proper Precautions be taken against any Contraband Trade, which may be carried on from those Islands by any of the Ships of Your Majesty's Subjects trading thither or otherwise. To prevent which Your Majesty's Governor - of Newfoundland should be instructed to employ the utmost Vigilance with regard to all such Trade during his Continuance upon the Station, and to give express Directions to the Officers of the Garrisons and the Magistrates in their several Departments that in his Absence they should have the utmost Attention to this Object, and to put the Laws against contraband Trade into strict Execution, for which purpose it will be necessary to establish in that Government a Court of
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Vice Admiralty or some other Jurisdiction competent to the Cognizance and Punishment of Breaches of the Acts of Trade.
The next obvious Benefit acquired by the Cessions made to your Majesty is the Fur & Skin Trade of all the Indians in North America. The first of these Articles before the present Cession, was enjoyed by the French almost entirely; The only part left in the Hands of Your Majesty's Subjects, being that carried on by the Exclusive Company of Hudson's Bay, and a very inconsiderable Quantity through the Province of New York. This Trade was acquired in virtue of the Possession which they had taken (contrary to the Stipulations of the Treaty of Utrecht) of all the Lakes in North America, communicating with the River S' Laurence, tho' the circumjacent Territory avowedly belonged to the six Nations of Indians, Acknowledged by the French to be Your Majesty's Subjects in that Treaty, and by virtue of the Claim which they afterwards set up and were suffered to maintain for a long time of forcibly excluding Your Majesty's Subjects from any Navigation in those Lakes. But this Trade which the French with the utmost Industry had carried to the greatest Extent, by means of numerous well chosen Posts and Forts sufficient, as well to overawe as to supply all the Indians upon that immense Continent, is now fallen intirely and exclusively into the Hands of Your Majesty's Subjects and may be secured and communicated to all Your Majesty's Colonies according to the Industry of each, by means of those Posts and Forts with proper Regulations for the Trade with the Indians, under the Protection of such a Military Force as may preserve their Tranquility, not only against Indian Incursions but be ready for their Defence against any European Attack. — The Skin Trade was Chiefly in the Hands of Your Majesty's Subjects in the Southern Colonies even previous to the Cessions, but was often disturbed and interrupted by the frequent Incursions of Indians incited by the French — As these Circumstances no longer exist, a great Extension and Improvement of that Article may likewise be expected.
Another obvious Advantage of the Cession, will be the supplying of all the Indian Tribes upon the Continent of North America with European Commodities immediately through the Hands of English Traders. — This Article, if not wholly engrossed by the French, was possessed by them in the greatest Degree, and was of so much Importance that the Traders of New York chose rather to supply the Inhabitants of Canada with English Goods and Manufactures fit for the Indian Trade, than to risque the Loss of what they esteemed so valuable a Branch, by at- tempting a direct Trade with the Indians themselves. And
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this strange Principle was adopted by many of the Merchants of London, as appeared upon a Hearing on that Subject before Your Majesty's Board of Trade in 1721.
Another Advantage attending the late Treaty is the secure settling of the whole Coast of North America, as it's produce may invite, or Convenience for Settlement may offer, from the Mouth of the Mississippi to the Boundaries of the Hudson's Bay Settlements, with the whole Variety of Produce which is capable of being raised in that immense Tract of Sea Coast, either by the Industry of Emigrants from Europe, or from the Overflowing of Your Majesty's ancient Colonies — previous to the late War, Nothing is more certain than that many of Your Majesty's ancient Colonies appeared to be overstock'd with Inhabitants, occasioned partly from an extremely increasing Population in some of those Colonies, whose Boundaries had become too narrow for their Numbers, but chiefly by the Monop- oly of Lands in the Hands of Land Jobbers from the extravagant and injudicious Grants made by some of Your Majesty's Gover- nors, whereby a great many of Your Majesty's industrious Subjects were either forced into Manufactures, being excluded from planting by the high Price of Land (A Situation which they otherwise would have preferr'd) or forced to emigrate to the other Side of the Mountains, where they were exposed to the Irruptions of the Indians as well as the Hostilities of the French. And though, on the one Hand, Your Majesty's Prov- ince of Nova Scotia according to it's true and just Boundaries, and on the other, that of Georgia, would have contained many more of Your Majesty's Subjects than were in this disagreable Situation, and more advantageously for the Trade and Interest of Your Kingdoms, Yet the Hostilities which the French con- trived to excite at first, by the Indians in their Alliance, and at last by regular Troops in Nova Scotia, and a Dread of the like Calamities on the Side of Georgia from the Indians and Spaniards, have hitherto prevented the salutary progress of these new Settle- ments, and the happy Consequences which otherwise might have been expected from them.
We have already mentioned the great Scope and Room which there is for beneficial Settlements in the Article of Fishery in Nova Scotia, another great Advantage however of the late Treaty, producing Strength to Your Kingdom and Riches to Your Subjects, is the future Supply which the new Acquisitions will afford of Naval Stores, more particularly that of masting for the Royal Navy, and of that Species of Timber and Wood commonly called Lumber, so essential to the Commerce and Cultivation of the Sugar Colonies, both which Articles are to
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be found in great Quantities, and with peculiar Advantage and Convenience in the Province of Canada, upon Lake Cham- plain, and in those Parts of Nova Scotia, the exclusive Possession of which is now confirmed to Your Majesty, and this Benefit arising from the Treaty is of the greatest Consideration, as the Supply of Masting and Stores for the Royal Navy from America had been almost entirely stop'd by bad Management and Waste committed in Your Majesty's Woods in New England and New York and the Price of Lumber had been greatly enhanced from the Necessity of procuring it at a greater Distance from the Ocean, and from convenient Ports of Shipping.
In the Province of Georgia and tlie Neighbouring Florida Commercial Advantages of a still more valuable Nature will probably follow the secure Extension of Settlement, which will be attained by the Cession of Florida, and the End which will be thereby put to Interruptions from the Indians. For there can be no Doubt, that Indigo, Silk, Cotton, and many of the Commodities now found in the West Indies only, may be raised in these Climates. An Object which will prove a strong Temp- tation to the Settlement of those Territories.
A capital Advantage highly deserving Your Majesty's Attention is the Increase of the Trade of Sugar, Coffee, Cotton and other Indian Products by the speedy Settlement and Culture of the new acquired Islands. — It is a known Truth, that the Prod- uce of our West India Islands has hitherto been but barely sufficient to answer our growing Consumption in the first of these valuable Articles, and that as these Islands were all, excepting Jamaica, intirely cultivated, additional Territory was therefore become absolutely necessary to this Branch of Trade, which may be extended to a very great Degree if those new Islands are speedily settled.
The last advantageous Consequence arising from the Ces- sions which We shall now lay before Your Majesty is that of securing the whole Gum Trade on the Coast of Africa from a Monopoly in the Hands of the French by means of the River Senegal as well as the Acquisition of a considerable Share of the Slave Trade formerly in their hands, with a Variety of other Articles which there is great reason to believe may be obtained by the prosecution of further Discoveries on that River.
Having thus stated the most obvious Advantages resulting from the Cession made to Your Majesty by the late definitive Treaty, We submit to Your Majesty, as Our humble Opinion, that they can only be secured and improved by an immediate Establishment of regular Governments, in all such Places, where planting and Settlement, as well as Trade and Commerce
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are the immediate Objects. For in order to invite new Settlers to risque their persons and Property in taking up new Lands, as well as to secure the old Inhabitants in the Enjoyment of those Rights and Priviledges reserved to them by the Treaty, such regular Government appears, both from Reason and Experience, of absolute Necessity. And it seems likewise necessary for the same reasons, as well as to secure Your Majesty's Sovereignty and the Publick Tranquillity, that a large Military force should be kept up in each Government, 'till by the increase of Inhabi- tants, each Colony shall be enabled to maintain their own Gov- ernments by their own internal Force. But as no such regular civil Government is either necessary or indeed can be established, where no perpetual Residence or planting is intended; It will there be sufficient to provide for the free Trade of all Your Majesty's Subjects under such Regulations, and such Adminis- tration of Justice as is best suited to that End. Such We apprehend to be the case of Newfoundland, where a temporary Fishery is the only Object, and this We suppose has been the reason, which induced Your Majesty to annex the Coast of Lab- rador to that Government: Such is the case of Senegal and the Principle upon which we suppose Your Majesty thought proper to put that River and Country under the Administration of the African Committee. And such we apprehend will be the Case of that Territory in North America which in Your Majesty's Justice and Humanity as well as sound Policy is proposed to be left, under Your Majesty's immediate Protection, to the Indian Tribes for their hunting Grounds; where no Settlement by planting is intended, immediately at least, to be attempted; and consequently where no particular form of Civil Government can be established. In such Territory we should propose, that a free Trade with the Indian Tribes should be granted to all Your Majesty's Colonies and Subjects under such Regu- lations as shall be judged most proper for that End, and under the protection of such Military Force, to be kept up in the differ- ent Posts & Forts in the Indian Country as may be judged necessary, as well for the Protection of Trade and the good Treatment of the Indians as the Mamtenance of Your Majesty's Sovereignty and the general defence of North America.
We shall defer at present entering into any particulars, as to the number of Troops which it may be necessary to main- tain for this purpose. The Number, and Situation of the Posts and Forts, and the Regulations proper to be established for a free Trade from all Your Majesty's Colonies into the Indian Country; 'till by further Information from Your Majesty's Commander in Chief of America, and from Your Majesty's
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Agents for Indian Affairs, We shall be enabled to make a more full and particular Report upon so interesting and important a Subject. And We apprehend that no such Delay can be attended with very material Inconvenience, since, if Your Majesty shall be pleased to adopt the general proposition of leaving a large Tract of Country round the great Lakes as an Indian Country, open to Trade, but not to Grants and Settlements, the Limits of such Territory will be sufficiently ascertained by the Bounds to be given to the Governors of Canada and Florida on the North and South, and the Mississippi on the West; ' and by the strict Directions to be given to Your Majesty's
several Governors of Your ancient Colonies for preventing their making any new Grants of Lands beyond certain fixed Limits to be laid down in the Instructions for that purpose. And We apprehend that in the mean time the Security of this Trade will be sufficiently provided for by the Forts already erected, and such Garrisons as Your Commander in Chief may, at his Discretion, think proper to keep in them.
But that no time may be lost in finally settling this import- ant point of the Indian Country, it will be absolutely necessary that immediate Orders be sent as well to Your Majesty's Com- mander in Chief of America as to Your Agents for Indian Affairs, that without delay they furnish every Information in their power on this Subject, and that they be directed to correspond directly with Your Majesty's Board of Trade for this purpose.
Canada, Florida and the new acquired Islands in the West Indies appear to Us to be the Places where Planting, perpetual Settlement and Cultivation ought to be encouraged and conse- quently where regular Forms of Government must immediately be established.
Canada as possessed and claimed by the French consisted of an immense Tract of Country including as well the whole Lands to the westward indefinitely which was the Subject of their Indian Trade, as all that Country from the Southern Bank of the River S' Lawrence where they carried on their Encroachments.
It is needless to state with any degree of precision the Bounds and Limits of this extensive Country, for We should humbly propose to Your Majesty that the new Government of Canada should be restricted, so as to leave on the one hand, all the Lands lying about the great Lakes and beyond the Sources of the Rivers which fall into the River S' Lawrence from the North, to be thrown into the Indian Country, and on the other hand, all the Lands from Cape Roziere to Lake Champlain, along the Heights where the Sources of the Rivers rise, which
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fall into the Bay of Fundy and Atlantic Ocean, to be annexed to Nova Scotia and New England in such a manner as upon any future directions after particular Surveys have been made shall appear most proper, If this general Idea shall be approved the future Bounds of the new Colony of Canada will be as follows.
On the South East it will be bounded by the high Lands which range across the Continent from Cape Roziere in the Gulph of S' Laurence to that point of Lake Champlain above S' Johns which is in Latitude 45 Degrees North; which high Lands separate the heads of the Rivers which fall into the great River S* Lawrence from the heads of those which fall into the Atlantick Ocean or Bay of Fundy. On the North West It will be bounded by a Line drawn South from the River S' Johns in Labrador by the heads of those Rivers which fall into the River S' Lawrence as far as the East end of Lake Nipissin upon the Ottowa River, and on the South West by a Line drawn due West to the River S' Lawrence from that point on Lake Champlain which is directly opposite to where the South Line falls in and so cross the said River S' Lawrence and pursuing a North West Course along the Heights where the Rivers rise, that fall into the Ottowa River, to be continued to the East end of Nipissin Lake where the North Line terminates.
In order however that Your Majesty may judge with the greater precision of the Limits of Canada as above described and also of those We shall propose for Florida, and of the Country we think right to be left as Indian Territory, We humbly beg leave to refer to the annex'd Chart' in which those Limits are particularly delineated, and of which Your Majesty will have a clearer Conception than can be conveyed by descriptive Words alone.
The Advantage resulting from thisrestrictionofthe Colony of Canada will be that of preventing by proper and natural Boundaries, i/ as well the Ancient French Inhabitants as others from removing & settling in remote Places, where they neither could be so conveniently made ameanable to the Jurisdiction of any Colony nor made, subservient to the Interest of the Trade & Commerce of this Kingdom by an easy Communication with & Vicinity to the great River S' Lawrence. And this Division by the heights of Land to the South of the River S* Lawrence will on the one hand leave all Your Majesty's new French Subjects under such Government, as Your Majesty shall think proper to continue to them in regard to the Rights & Usages already secured or
' The Report was accompanied by a printed map of Nortli America by Eman. Bowen, Geographer to His Majesty, and engraved by John Gibson, on which the boundaries were marked.
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that may be granted to them. On the other hand, the rean- nexing to Nova Scotia all that Tract of Land from Cape Roziere along the Gulph of S* Lawrence with the whole Coast of the Bay of Fundy to the River Penobscot, or to the River S* Croix will be attended with this peculiar Advantage, of leaving so extensive a Line of Sea Coast to be settled by British Subjects; and all the new Settlers upon this Tract of Land will with greater facility be made amenable to the Jurisdiction of Nova Scotia than to that of Canada; and upon the same Principle, It will likewise be necessary to reannex the Islands of Cape Breton and S' John's to the Government of Nova Scotia.^
And here. We cannot help offering it as Our humble Opinion that the utmost Attention should immediately be given to the Speedy Settlement of this Tract of Country and that Instructions be prepared for Your Majesty's Governor for that purpose, with particular regard to such Officers & Soldiers who have served so faithfully & bravely during the late War and who may now be willing to undertake such new Settlements under proper Conditions.
It is obvious that the new Government of Canada, thus bounded, will, according to the Reports of Generals Gage, Murray and Burton, contain within it a very great number of French Inhabitants and Settlements, and that the Number of such Inhabitants must greatly exceed, for a very long period of time, that of Your Majesty's British and other Subjects who may attempt Settlements, even supposing the utmost Efforts of Industry on their part either in making new Settle- ments, by clearing of Lands, or purchasing old ones from the ancient Inhabitants, From which Circumstances, it appears to Us that the Chief Objects of any new Form of Government to be erected in that Country ought to be to secure the ancient Inhabitants in all the Titles, Rights and Privileges granted to them by Treaty, and to increase as much as possible the Number of British and other new Protestant Settlers, which Objects y We apprehend will be best obtain'd by the Appointment of a Governor and Council under Your Majesty's immediate Com- mission & Instructions. But the particular Regulations and Provisions to be adapted to the different Circumstances and Situation of this as well as Your Majesty's other new Acquisitions, will more properly and distinctly come under Your Majesty's Consideration in the Draught of the Commission and Instruc- tions to be prepared for each Governor, than in this first general Report.
' It will be observed that Nova Scotia, or Acadia, still included the territory afterwards erected into the separate Province of New Brunswick. The island of St. Johns, here mentioned , is now Prince Edward Island.
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It will however be necessary that a large military Force be kept up 'till the number of British Inhabitants and new Settlers be very considerably increased, as well to secure the Obedience and Fidelity of the ancient French Inhabitants as to give full Protection & Security to the new British Settlers.
Canada was, under the French, divided into the three Governments of Quebec, Montreal and Trois Rivieres, but the Residence of the chief Governor was at Quebec, and the two other Governments had each a Lieutenant Governor only, subordinate to the Governor in Chief, and we should humbly propose that the same Method be continued under the new Govemm*; not only as by this means the Administration of Justice and of Commerce will be less embarrass 'd, but that a less proportion of military Force will be requisite to be main- tained and be more easily applicable against all external or internal Disturbances.
Florida and that part of Louisiana to the eastward of the Missisippi, both which Tracts are ceded to Your Majesty by the late Treaty, may be compared to Canada, in respect to Extent of Territory, and the number of Indian Tribes, with which they have immediate Communication, but in other re- spects, they seem entirely different. The number of settled Inhabitants, either French or Spaniards, we apprehend, has never been considerable, and there is little probability, from the Facility of their Removal, that any of them will remain, after the Cessions are compleated, tho' we are of Opinion, as well from this Circumstance of their Paucity, as with a view to the immediate Settlement of the Country, that every Expedient should be used, to induce as many to remain as can be prevailed upon. —
The Produce of Canada, with its Trade, the Navigation of the River S' Lawrence, with its Communication to the great Lakes of North America, are, from authentick Information, in many particulars tolerably well understood; but we are sorry it is not in our power, either from any materials in our Office, or from any other to be depended upon, to give Your Majesty fhat certain Information we could wish either with regard to the Coast, Harbours and Rivers of Florida, or as to the Variety of Produce which there is the greatest probability may be raised in that extended Country. We shall therefore content ourselves with suggesting at present, that whenever a Government is established in this Country, Instructions should be given for surveying with all possible Accuracy, as well the Sea Coast and places fit for Harbours as the internal Country and Rivers, particularly of that part which lies between the great
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Mountains and the Missisippi, of which there are not extant any Charts or Accounts on which we can depend, for which purpose it will be necessary that a proper number of able and skilfuU Surveyors be appointed.
The great Tract of Sea Coast from S' Augustine, round Cape Florida, along the Gulph of Mexico, to the Mouth of the Missisippi makes it, we apprehend, indispenseably necessary that this Country should be divided into two distinct Govern- ments, and, for the present, the Chief Residence of the Governor of the one should be at S*Augustine, with orders to give particular Attention to Cape Florida, (as that Cape commands the whole Navigation from the Bay of Mexico) the Residence of the other at Pensicola, with particular Instructions regarding the Missisippi the free Navigation of which ought, we apprehend, to be most accurately understood, not only in respect of that River being the future Boundary betwixt Your Majesty's Dominions, and those of the French, but as this River by its Communication with the Ohio, the Illinoris &c^ is of the utmost Importance to all Connection with the Indian Nations and the only Outlet to the great internal Trade, which may be carried on amongst them.
If it shall be thought proper to divide Florida into two distinct Governments, they may be distinguished by the names of East and West Florida and may be bounded as follows,
East Florida to be bounded by the Coast of the Atlantick Sea from Cape Florida to the North Entrance of S' John's River, on the East; by a Line drawn due West from the North Entrance of S' John's River to the Catahowche or Flint Rivers, on the North; and on the West and South West by that part of the Coast of the Gulph of Mexico, which extends from Cape Florida to the Mouth of the Catahowche River, and from thence follow- ing the Course of the said Rivers to where the North Line falls in.
West Florida to comprehend all the Sea Coast of the Gulph of Mexico, extending West from the Catahowche River or Flint River towards the Missisippi, asfaras Your Majesty's Territories extend, and stretching up into the Land as far as the 31" Degree of North Latitude, which. We humbly apprehend, is as far North as the Settlements can be carried, without interfering with Lands claimed or occupied by the Indians.
By this Plan of Division, which is formed with a view to make the two Colonies as distinct as possible, by establishing a natural Line of Separation between them, and by giving to each a due proportion of the natural Advantages and Conveniencies of Commerce and Navigation, a large Tract of Land lying between the North Boundary Line of East Florida and the River
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Alatamaha, the present South Boundary of Georgia, which has hitherto been unoccupied, as to any permanent Settlement, either by Your Majesty's Subjects or those of Spain, remains to be put under some proper Establishment: and we think it cannot in any respect be better disposed of, than by putting it under the Jurisdiction and within the Government of Georgia, By this means the principle Obstacles, which have hitherto impeded the Progress of that advantageous and well regulated Colony, will be removed, and its Settlements extended to the great Benefit and Advantage of the Mother Country.
With respect to the Form of each of these Governments, We are of Opinion, that in regard to their being Infant Settle- ments the most suitable will be that of a Governor and Council, by Your Majesty's Commission, with Instructions adapted to the most quick and speedy Settlement of these Countries. But a considerable military Force must be likewise kept up in these Governments, as well in respect to the neighbourhood of the French and Indians, as to the Security of the Settlers, till their numbers enable them to have Security by their own internal Force.
The chief Object of the new acquired Islands in the West Indies, being that of extending West Indian Products of all kinds, as quickly as possible, to the Benefit of the Trade of Your Majesty's Kingdoms; And such Extension being impossible to be obtain'd but by the means of a very large Capital immedi- ately to be laid out by Settlers in the Purchase of Negroes and Erection of Buildings, it is obvious that Security in this is more peculiarly to be attended to, and that as all those Islands, the Grenadaes excepted, which are inhabited by French, are almost entirely uncleared and uncultivated. It is equally obvious, that this Security cannot be obtained for some time at least but by the means of regular Troops — and We are clearly of opinion that this is so necessary, that We do not believe any Persons of sufficient Stock will be found willing to hazard the Capital necessary for a Sugar Plantation in any of these Islands without it. — The next Circumstance necessary to the Establish- ment of general Security is that of the regular Administration of Justice under a civil Government, the only Form of which that can be adapted to the present Situation of these Islands is. We apprehend, by a Governor and Council, under Your Majesty's immediate Appointment. But all particulars relative to it will best come under Your Majesty's Consideration, when We receive Your Orders to prepare the Commission and Instruc- tions for the Governor.
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We are of Opinion that the erecting all these Islands into one general Government, with a subordinate Lieutenant Gover- nor in each, as is now practised in the Leeward Islands, will be better adapted, as well to the purposes of Civil Government as to the Application of military Power to the Protection of the whole, than either the separating of them into distinct Govern- ments, or leaving those of S' Vincent, Dominico and Tobago under the Commission of the Governor of Barbadoes. — For, by this means, the military Force will be best applied to the general Security, especially if their relative Situation be such as we are inform'd it is, that there is an easy Communication from y* one to the other, even of those which appear to be most remote. — ^Their being subject to one Government for the present will likewise contribute best to the carrying most speedily into Execution those Instructions, which will be necessary, as well for surveying those Lands as for dividing them into Lotts proper for Sugar Plantations or other Products, and for granting such Lotts to such Persons as shall be willing to undertake the Settlement of them, either upon Sale, Lease or gratuitous Grants as Your Majesty shall think most proper to direct. — By this Disposition not only Your Majesty's Orders will go thro* the Channel of one Person, but one Person will be responsible for the due Execution of them.
Having thus given our humble opinion in general as to the Government, which it may be necessary for Your Majesty to establish in Canada, Florida and the West Indies, We should now conclude this point, reserving all other particulars relative to it to be offer'd to Your Majesty's Consideration in the Draughts of y" Commissions and Instructions for the respective Governors, which must necessarily be prepared, if Your Majesty shall approve the general Proposition, but our Duty and the Experience of our Office, as well as the Authority of our Pre- decessors, oblige Us on this Occasion to make one other general Observation, which We humbly submit to Your Majesty.
That if all the Governors of Your Majesty's Colonies are not for the future obliged to constant Residence, as well as all subordinate Officers whatsoever, particularly in these new Governments, and appointed in such manner as to be removeable at Your Majesty's Pleasure there will be no proper Security either for the due Execution of their Offices upon the spot, or for their furnishing in a regular and punctual manner such Information to Your Majesty's Boards and Offices in this King- dom, as is absolutely necessary for Your Majesty's Service.j and for the Security and Improvement of Your old as well as' new Colonies; and, We apprehend, it was upon a Conviction
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of this Truth, that when the Governments of Georgia and Nova Scotia were lately erected, all the new Officers then created, were appointed in this manner.*
It now only remains that, in Obedience to Your Majesty's Commands, We should give our Opinions upon the mode of Revenue least burthensome and most palatable to the Colonies, whereby they can contribute to the additional Expence, which must attend the Civil and Military Establishments adopted on the present Occasion, but on this point of the highest Import- ance, it is intirely out of our Power to form any Opinion, which We could presume to offer for Your Majesty's Consideration, as most of the Materials necessary to form a just and accurate Judgement upon it, are not within the reach of our Office. Such as can be procured shall be collected with all possible Dispatch, and shall at any time be laid before Your Majesty, in such manner as You shall please to direct.
All which is most humbly submitted,
Shelburne
SOAME JeNYNS
Ed: Eliot Whitehall 1 E<* Bacon
June 8"", 1763 J John Yorke
Geo: Rice Orwell Bamber Gascoyne
Egretnoni to the Lords of Trade?
Whitehall, July 14*'' 1763.
Lords of Trade
My Lords, — Your Report, dated the 8"" of last Month, having been laid before the King, and His Majesty having taken the Same into Consider- ation; I am, in Consequence thereof, to acquaint your Lordships, That the King approves the Erecting Three New Governments in N" America, under the Denominations your Lordships propose, of Canada, East Florida, and West Florida; But, with regard to the Limits of these Governments, as described in the Report, and marked out in the Chart thereunto annexed ; Altho' His Majesty entirely concurs in your Lordships Idea, of not per- mitting any Grant of Lands, or New Settlements to be made, for the present,
' Referring to the custom which had grown up, and which was the occasion of much com- plaint in the American Colonies, of granting to Court favourites and others lucrative offices in the colonies, the claims to which were treated as proprietary rights, but the duties of which were sometimes neglected altogether, or were discharged by inferior and poorly paid deputies lent out by the patentees. See Instructions to Governor Murray, sec. 24. See p. 189.
• A. and W. I., vol. 268. p. 205.
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beyond the Bounds proposed by your Lordships; Yet the King thinks, that great Inconveniences might arise, from so large a Tract of Land being left, without being Subject to the Civil Jurisdiction of some Governor, in Virtue of His Majesty's Commission, under the Great Seal of Great Britain; And that, (besides the Difficulties there might be, for Want of such a Civil Jurisdiction, in bringing to Justice Criminals, & Fugitives, who may take Refuge in that Country,) Their not being included within some estab- lished Government might, in Time to come, furnish Matter of Dispute, with Regard to the Property; And other Powers, who might hereafter find Means of Access to those Countries, might take Possession thereof, as derelict Lands: The King therefore is of Opinion, that, in the Commission for the Governor of Canada, all the Lakes, viz', Ontario, Erie, Huron, Michigan, and Superior, should be included, with all the Country, as far North, & West, as the Limits of the Hudsons Bay Company, and the Mississippi; And also that all Lands whatsoever, ceded by the late Treaty, and which are not already included within the Limits of His Majesty's ancient Colonies, or intended to form the Governments of East and West Florida, as described in your Lordships Report, be assigned to the Govern- ment of Canada, unless your Lordships should suggest any other Distribu- tion, which might answer the purpose more effectually; On which Matter your Lordships will lose no Time in making a Report to His Majesty.'
Having thus informed your Lordships of the King's Intentions, with regard to the Extent of the New Governments to be erected in North America; I am now to repeat to you. That His Majesty entirely concurs in your Lordships Idea, of not permitting, for the present, any Grant of Lands, or New Settlements, beyond the Bounds proposed in your Report; And that all the Countries, beyond such Bounds, be also, for the present, left unsettled, for the Indian Tribes to hunt in; but open to a free Trade for all the Colonies: And the King would have the Instructions to the Three New Governors in North America, formed so, as to contain the strongest Injunctions and Restrictions for this Purpose: — And His Majesty having been pleased to appoint The Hon*"'" James Murray to be Governor of Canada ; Francis Grant Esq' to be Governor of East Florida; and George Johnstone Esq' to be Governor of West Florida; I am to signify to your Lordships, the King's Pleasure, that you do, forthwith, prepare, to be laid before His Majesty for His Approbation, Draughts of Commissions, and Instructions, for the said Three Governors, agreable to the King's Intentions communi- cated to you in this Letter, and to the Form of Government, proposed by your Lordships, of a Governor and Council by the King's Commission; Adapting the Instructions to the different Circumstances and Situation of the respective Countries; And your Lordships will insert an Instruction to the said Governors of Canada, and of East and West Florida, to cause accurate Surveys to be made, of the Countries under their Government.
' The reasons for not following the plan suggested are given in the reply of the Lords of Trade, of Aug. Sth, which follows this letter.
J
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With regard to the ancient Colonies; I am to acquaint your Lordships, that the King approves the extending the Limits of Georgia in the Manner you suggest; as also the Additions, your Lordships propose to be made, to Nova Scotia; and, in Case such Addition to Georgia, and Nova Scotia, shall make it necessar>' to issue New Commissions to any of the present Governors in N° America, your Lordships will prepare Draughts thereof, for the King's Approbation : And your Lordships will also prepare Draughts of such Instructions, as shall be necessary, for the several Governors of the ancient Colonies, for preventing their making any New Grants of Lands beyond certain fixed Limits to be therein laid down for that purpose; And in these Instructions, as well as in Those for the New Governors, your Lordships will insert a Clause directing most particular Regard to be had, in the granting of any Lands, to such Officers and Soldiers, more especially Those residing in America, who have served so faithfully, and bravely, during the War, and who may now be willing to undertake any New Settleemnts under proper Conditions.
His Majesty thinks it highly proper, that the Agents for Indian Affairs should correspond with your Lordships, in regard to the Indian Country, and should transmit such Information on this Subject, as your Lordships shall require from them ; for which purpose you will send them the necessary Orders and Instructions; But, with regard to the Commander in Chief of His Majesty's Forces, the King thinks, that His Correspondence should remain, as it has hitherto done, with the Secretary of State; who will not fail to communicate to your Lordships all such Informations, & Lights, as he shall, from time to time, furnish, relative to the State of the new Acqui- sitions in America; And as soon as your Lordships shall be able, from such Information, to make a more full and particular Report, as to the Number of Troops necessary to be maintained in the several Governments, and Posts, in America; and that the King shall have taken His Resolution thereupon; the Secretary of State will signify the same to the Commander in Chief: And, in the mean Time, I shall acquaint him, with your Lordships general Idea, that a large Military Force should be kept-up in the New Governments; and such Garrisons, as he shall, in his Discretion, think proper, in the Forts already erected, and proposed to be kept up, for the Security of the Indian Trade.
Having now gone thro' the several Points, relative to North America, I come to the new acquired Islands in the West Indies; On which Subject I have only to inform your Lordships, that the King approves your Proposal of Erecting all These Islands, viz* Grenada and the Grenadines; S'. Vincent; Dominico; and Tobago; into one general Government; with a subordinate Lieutenant Governor in Each, as is now practiced in the Leeward Islands, under the same Form of Civil Government by a Governor and Council: — And His Majesty having been pleased to appoint Robert Melvill Esq. to be Governor of the said Islands; Your Lordships will prepare, to be laid before the King for His Approbation, the Draught of a Commission, and
ISO CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Instructions, for the said Gentleman, adapted to the Situation & Circum- stances of the same: But as the Islands of S' Vincent, Dominico, & Tabago, as well as S* Lucia, ceded to France by the Definitive Treaty, are all included, by Name, in the Commission of the Governor of Barbados ; your Lordships will consider, whether it may not be necessary to dismember the said Islands from that Government, by a New Commission to the Governor, or by some other legal Method.
It is farther His Majesty's Pleasure, that your Lordships should forth- with take into your Consideration, and report, what Methods shall appear, to you, the most reasonable, and also the most frugal, for the peopling, and settling, the New Governments, with useful and industrious Inhabitants, either from such of His Majesty's Colonies, That may be overstocked with Inhabitants, or from any Foreign Parts.
I am &c.
EGREMONT endorsed: Dra*. to the Lords of Trade.
July 14"' 1763. Letter of Reference concerning the Extent & Settlement of the new Govern- ments. All the Indian Country ought to be included under some civil Jurisdiction, tho' no Grants of Lands or Settlements to be permitted beyond certain Limits — And concerning Commissions & Instructions to be prepared for the New Governors. —
No. 9 A. Lords of Trade to Egremont.^
Whitehall
August S"" 1763 My Lord, — Having prepared an humble Representation to His Majesty upon that part of Your Lordship's Letter of the H**" of July last which acquaint us with His Majesty's Pleasure that all the Country therein describ'd should be assign'd to the Government of Canada, unless we should suggest some other Distribution which might more effectually answer His Majesty's Intention with respect to those Lands, We beg Leave to inclose to Your Lordship our said Representation desiring you will be pleased to lay it before His Majesty —
We are My Lord Your Lordship's
Most obedient and most humble Servants, ORWELL SHELBURNE
BAMBER GASCOYNE ED: ELIOT
GEO: RICE E^rl of Egremont one of His Majesties Principal Secrys of State. Endorsed: Aug' 5"" 1763 R 6t'>
Lords of Trade with an Inclosure.
' This reply from the Lords of Trade, with its enclosure are not contained in the A. and W. L series "Canada," vol. L They are taken from Canadian Archives Q. 1, p. 109.
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SESSIONAL PAPER No. 18
To The King's Most Excellent Majesty.
May it please Your Majesty.
In Obedience to Your Majesty's Commands contained in a Letter from the Earl of Egremont, dated the 14"' of July last signifying to Us Your Majesty's Most gracious Approbation of Our Idea, that that large Tract of Country bounded by the Mississippi and the Limits of the Hudson Bay Company on the one hand and on the other by the Limits of Canada, East and West Florida and His Majesty's ancient Colonies, should for the present be made subject to no grants of Lands nor to any Settlements. But acquainting us, that it was Your Majesty's Pleasure, that it should be put under some civil Jurisdiction, by a Commission under the Great Seal of Great Britain, so as to prevent any Objection, which might be formed, as to the Property of it, or its being considered as abandoned or direlict, or it's becoming a refuge for Criminals and Fugitives, and for these Reasons, that the whole of this Territory should be inserted in the Commission of the Governor of Canada, and assigned to that Government, unless we should suggest to Your Majesty some disposition which would answer these Purposes more effectually and directing us on this Matter to lose no time to report to Your Majesty.
We have taken this important Subject into our most serious Consider- ation and do most humbly concurr in Your Majesty's Opinion, of the pro- priety of putting this Country under a particular Government, by a Com- mission under Your Great Seal, with a most precise Description of its Boun- daries, in Order to ascertain the actual possession of its property, and with such Powers as may be necessary, as well to maintain and secure the free Exercise of the Indian Trade, which it is proposed all Your Majesty's Subjects shall enjoy within it, under proper Regulations, as to prevent its becoming a Refuge to Criminals and Fugitives. — But at the same time, we beg Leave to submit to Your Majesty, the following Objections which have occurred to us, against the annexing this Country to any particular Government, especially to that of Canada —
1" We are apprehensive that, should this Country be annexed to the Government of Canada, a Colour might be taken on some future Occasion, for supposing that Your Majesty's Title to it, had taken it's Rise, singly from the Cessions made by France, in the late Treaty, whereas Your Majesty's Title to the Lakes and circumjacent Territory as well as to the Sovereignty over the Indian Tribes, particularly of the Six Nations, rests on a more solid and even a more equitable Foundation ; and perhaps nothing is more necessary than that just Impressions on this Subject should be care- fully preserved in the Minds of the Indians, whose Ideas might be blended and confounded, if they should be brought to consider themselves as under the Government of Canada —
2"* We are apprehensive as the whole of this Country would become subject to the Laws of a particular Government or Province, it would give
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that Province such superior Advantage in respect to the whole of the Indian Trade, which Your Majesty in Your Justice and Wisdom has determined to leave as open as possible, to all Your Subjects, as might controul and ob- struct it to the Prejudice of Your other Colonies —
S"* If this great Country should be annexed to the Government of Canada, we are apprehensive, that the Powers of such Government could not be carried properly into execution, either in respect to the Indians or British Traders, unless by means of the Garrisons at the different Posts and Forts in that Country, which must contain the greatest Part of Your Majesty's American Forces and consequently the Governor of Canada would become virtually Commander in Chief or constant and inextricable Disputes would arise, between him, and the commanding Officers of Your Majesty's Troops —
If these Objections should appear of Weight to Your Majesty, We would humbly propose, that a Commission under the Great Seal, for the Govern- ment of this Country, should be given to the Commander in Chief of Your Majesty's Troops for the time being adapted to the Protection of the Indians and the fur Trade of your Majesty's subjects; And We submit to your Majesty whether any Inconveniencies would arise, from such Commission, which would not equally arise from a like Commission to a Governor of any of Your Majesty's particular Colonies —
But as the Instructions to such Governour, if Your Majesty should approve of this Proposition, would require a great Variety of Information, both with respect to the Management of the Indian Tribes and Trade, which can only be had from Your Majesty's Commander in Chief, and Your Agents for Indian Affairs, We would further submit, whether the issuing such Commission and Instructions, may not be delayed; 'till by the receipt of such Information, which Your Majesty has been graciously pleased to direct, We are enabled to make a full and particular Report on that very important subject. — And we flatter Ourselves, that no such delay will pro- duce any bad Consequences, either in Respect to this Country's being considered as direlect, while Your Majesty's Troops are in the actual possession of every Post and Fort formerly enjoyed by the French, or in respect of Criminals and Fugitives, taking refuge in this Country with Im- punity, as this may be easily prevented by an Instruction to the present Commander in Chief, empowering and directing him to send back all such Persons to their respective Colonies —
In the mean time We humbly propose that a Proclamation be immedi- ately issued by Your Majesty as well on Account of the late Complaints of the Indians, and the actual Disturbances in Consequence, as of Your Majesty's fixed Determination to permit no grant of Lands nor any settle- ments to be made within certain fixed Bounds, under pretence of Purchase or any other Pretext whatever, leaving all that Territory within it free for the hunting Grounds of those Indian Nations Subjects of Your Majesty, and for the free trade of all your Subjects, to prohibit strictly all Infringements
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SESSIONAL PAPER No. 18
or Settlements to be made on such Grounds, and at the same time to declare Your Majesty's Intentions to encourage all such Persons who shall be in- clined to commence new Settlements from Your old Colonies, together with all foreign Protestants, coming by themselves or with such Undertakers, in Your new Colonies of East and West Florida or your old Colony of Nova Scotia with particular regard to be shewn to those Officers and Soldiers, more especially those residing in America, who have so faithfully and bravely distinguished themselves, during the War, by allowing; Five thousand Acres lying together to every Field Officer; Three thousand Acres to every Captain, Two thousand five hundred Acres to evei-y Subaltern or Staff Officer; One hundred Acres to every non-commission Officer, and Fifty Acres, to every private Man ; in such parts as they shall chuse, on condition that they shall personally apply for and reside upon them subject to such terms of Cultivation, as your Majesty shall think proper to impose on all Persons undertaking such Settlements, which Encouragements may be also extended to reformed Commission Officers in Your Majesty's Navy in Case Your Majesty shall judge it reasonable and expedient. 1^ All which is most humbly submitted
SHELBURNE ED. ELIOT GEO: RICE ORWELL Whitehall BAMBER GASCOYNE
Aug* S"" 1763 Endorsed Aug' 5th 1763
R 6th Lords of Trade Report concerning the Lands to be reserved for the Indians — Proposing that a Commission under the Great Seal be given to the Commander in Chief, for the Government of that Country — with objections to the annexing them to any Province — and Proposing an immediate Proclamation concern- ing Indian Lands —
Inclosure in N° 10
Halifax to the Lords of Trade^
S« James's Sept' IQ"- 1763. Lords of Trade.
My Lords, — Having laid before the King Your Lordships, Representation of the 5"" of August last, transmitted to the late Earl of Egremont in your Letter of the same Date, I am com- manded to acquaint Your Lordships that His Majesty, upon Consideration of the Reasons therein set forth, is pleased to lay aside the Idea of including within the Government of Canada, or of any established Colony, the Lands which are to be reserved, 'A. and W. L, vol. 268, p. 217.
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for the present, for the Use of the Indians. And His Majesty thinks proper to direct that the Extent of the Commission, which Your Lordships are to prepare for the Hon*"'* James Murray, shall be exactly such as is marked out in your first Report of the 8"" of June last, and in the Map thereto annexed, under the Denomination of Canada. That such Government be described in the Commission, as comprehending all such Part of Canada on the North Side of the River S' Lawrence, and all such Parts of His Majesty's antient Colonies of Nova Scotia, New England, and New York, on the South Side of the said River, as lie within the Limits above mentioned, and that It be called the Province of Quebec.
His Majesty approves Your Lordships' Proposition of issuing immediately a Proclamation, to prohibit for the present, any Grant or Settlement within the Bounds of the Countries in- tended to be reserved for the Use of the Indians; and to declare the Encouragement, which His Majesty, in his Royal Bounty, is graciously pleased to give to reduced Officers, and Soldiers, who served in North America, during the late War, and are desirous of settling in the Colonies. But His Majesty is of opinion, that several other Objects, of much Importance to his Service, might, with great Propriety, be provided for at the same time: And that the speedy Settlement of the new Colonies might be promoted ; the Friendship of the Indians more speedily and effectually reconciliated, and Provision be made for pre- venting Inconveniences, which might otherwise arise from the Want of Civil Jurisdiction in the interior, and reserved Countries, by extending such Proclamation to the following Purposes, viz'
To make known the Establishment and Limits of the four new Colonies, and the Additions made to the Governments of Newfoundland, Nova Scotia, and Georgia.
To declare the Constitution of the new Governments, as established for the present, & intended in future, and the general Powers which the Governors will have of granting Lands within Them.
To prohibit private Purchases of Lands from Indians.
To declare a free Trade for all His Majesty's Subjects with all the Indians, under Licence, Security, and proper Regulations. —And
To impower all Military Officers and Agents for Indian Affairs, within the reserved Lands, to seize such Criminals, and Fugitives, as may take Refuge in that Country, and to send them to be tried in any of the old Colonies (if That can legally be done) or else to that Government, from which They respect- ively fled.
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SESSIONAL PAPER No. 18
It is therefore His Majesty's Pleasure, that Your Lordships do immediately prepare, and transmit to me the Draught of such a Proclamation as may extend to the several Points above- mentioned. — But, with respect to One of Them, namely the Encouragements to be offered to reduce Officers, and Soldiers, I am to acquaint Your Lordships, that His Majesty's Intentions are. To grant to such reduced Officers only, as have served in North America during the late War, and to such private Soldiers only, as have been, or shall be, disbanded in America, and are actually residing there, the following Quantities of Land, in any of the Colonies on the Continent, upon the usual Reservation of Quit-Rents, after the Expiration of ten Years, and upon sure Terms of immediate Settlement, & Cultivation ; viz' To every Person having the Rank
of a Field Officer 5,000 Acres
To every Captain 3,000
To every Subaltern or Staff Officer 2,000 To every non-commissioned Officer 200
To every private Man 50
His Majesty is also graciously pleased to offer the like Quantities of Land, upon the same Terms, to such reduced Officers of his Navy, of like Rank, as served on board his Ships of War in North America, at the time of the Reduction of Louisbourg, and Quebec in the late War.
I am farther to acquaint Your Lordships, that, as it is of the greatest Importance, that the General Plan, upon which His Majesty's Subjects are to carry on a free Trade with all the Indians of North America, should be established as soon as pos- sible. His Majesty expects that Your Lordships will avail Your- selves of every Information in Your Power, and lay before Him, with all possible Dispatch, a System of Regulations for that purpose.
As to the Commission proposed in Your Lordships', Report of the 5"" of August to be given to the Commander in Chief of His Majesty's Forces, for the government of the interior Country, if upon Experience, & future Information, it shall still appea'r to Your Lordships to be expedient, & practicable, You will be pleased to prepare, and lay it before His Majesty.
I am &c.,
DUNK HALIFAX.i endorsed: Sept' 19"" 1763, Dra^
' George Dunk, Earl of Halifax, succeeded Hon. George Grenville as Secretary of State (Northern Department) Oct. 14th, 1762. On Aug. 21st, 1763, the Earl of Egremont died sud- denly from apoplexy and the Earl of Halifax temporarily took over the duties of the department, being formally transferred to the Southern Department about Sept. 9th. He was succeeded In the Northern Department by the Earl of Sandwich.
156 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
To the Lords of Trade
Letter of Reference concerning the extent of the new Provinces — The Lands to be reserved for the use of the Indians by Proclamation — A free Trade with the Indians under proper Licences & Regulation — ^The Lands to be granted to Re- duced Officers and Soldiers — And a Commission proposed to be given to the Commander in Chief for the Government of the Interior Country.
Lords of Trade to Halifax.^
Whitehall October 4*'> 1763.
My Lord, — In obedience to His Majesty's Commands, signified to us by Your Lordship's Letter of the IQ'*" of last Month, we have prepared, and herewith transmit to your Lordship, the Draught of a Proclamation, conformable to the Directions contained in your Lordship's Letter; And having laid the said Draught before His Majesty's Attorney General, He has reported to us, That, the same is agreeable to Law, and to the usual Form of Proclamations.
We have only to observe to your Lordship, that, in order to save time, we have fixed the Limits of East Florida according to Our Letter to your Lordship of the 28*'' of last Month, pre- suming that our Opinion, mentioned therein, will be approved of by His Majesty.
We beg leave further to add, That as it appears to us, upon a Revision of the Report of this Board of the S*"" of June last, That, it will be expedient for His Majesty's Service, and give Confidence and Encouragement to such Persons as are inclined to become Settlers in the new Colonies, That an im- mediate and public Declaration should be made of the intended permanent Constitution and that the power of calling Assemblies should be inserted in the first Commissions, We have therefore drawn the Proclamation agreeable to this Opinion, and have prepared the Commissions accordingly; and we humbly hope Our Conduct herein will meet with His Majesty's approbation, as we conceive, that any temporary Power of making Ordinances and Regulations, which must of necessity be allowed to the Governors and Councils before Assemblies can be called, as well
1 A. & W. I., vol. 268, p. 227.
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SESSIONAL PAPER No. 18
as the mode of exercising that Power, will be better inserted in the Instructions, which we are now preparing. — We are
My Lords
Your Lordship's most obedient and most humble Servants
Hillsborough E"* Bacon John Yorke. Orwell R* Honble Earl of Halifax
endorsed: October 4. 1763 Board of Trade
R4th
Inclosing the Proclamation relative to America, and Observ- ing that it will be better to insert, in the Instructions preparing for the Governors of the New Provinces, any temporary Power of making Ordinances & Regulations which may be allowed to the Governors & Councils, than in the first Commissions. 20*** An Inclosure.
B. N" 5.
ft
^^^„
PROCEEDINGS IN THE PRIVY COUNCIL.'
At the Court at S' James's
the S*"" day of October 1763. Present The King's Most Excellent Majesty &c. &c.
reiative"to°" Whereas there was this day read at the Board a Draught
the settling of a Proclamation prepared by the Lords Commissioners for
the ^^ew
Governments Trade and Plantations relative to the erecting within the ApprovecL^"~Countries and Islands ceded and confirmed to His Majesty by the late Definitive Treaty, four distinct and separate Govern- ments by the Names of Quebec, East Florida, West Florida Grenada, and declaratory of the Constitution of the said New Colonys, of the encouragements to be given to reduced Officers and Soldiers and the Regulations to be observed in respect to the Indian Commerce and Country — His Majesty taking the said Draught of a Proclamation into His Royal Consideration, was pleased with the advice of His Privy Council to- approve
'Privy Council Register; Geo. Ill, p. 100,
158 CANADIAN ARCHIVES
6-7 EDWARD VII., 1907
thereof, and to Order, as it is hereby Ordered that the Right Mem°'thir" Honourable the Earl of Halifax, One of His Majestys Principal Prociama- Secretarys of State do cause the said Draught of a Proclamation signed by (which is hereunto annexed) to be prepared for His Majesty's SdK Royal Signature.-
the T"" Ins'. Whereas there was this day read at the Board a Representa-
Seals tion from the Lords Commissioners for Trade and Plantations,
be'^prepared setting forth that His Majesty having been graciously pleased
WeS^io^fda *° approve a Plan for the erecting and establishing four Civil
Quebec and Governments in the Islands and .Territories in America, ceded
das— to His Majesty by the late Definitive Treaty, and it appearing
to be necessary and expedient that a Publick Seal should be
prepared for Sealing all publick Instruments in each of those
Governments agreeable to the Method practiced and established
in all other His Majesty's Colonies in America; The said Lords
Commissioners therefore propose that Directions may be given
to prepare with all possible Dispatch a Draught of a Seal for
each of the said Governments conformable to the following
Descriptions Viz* —
For the Province of Quebec
On the One side His Majestys Effigies, pointing to a Chart of that Part of America through which the River of S' Lawrence flows, including the Gulph and with this Legend or Motto under- neath, Extensae gaudent agnoscere Metae; and this Inscription around the Circumference, Sigillum Provincial nostrse Que- becensis in America; and on the Reverse His Majesty's Arms, Crown, Garter, Supporters and Motto with this Inscription round the circumference, Geo. III. Dei Gratia Magnae Britan- niae, Franciae et Hibernise Rex, Fidei Defensor Brunsvici et Luneburgi Dux, Sacri Romani Imperii, Archi Thesausarius et Elector. Comfronsfor Upon reading this day at the Board a Representation* the Gov" of from the Lords Commissioners for Trade and Plantations dated Florida! the 4"' of this Instant together with Draughts of Commissions ^^^1"'°"''^ prepared by them for the Honourable James Murray, Esq' to Grenadas. ^g Governor of Quebec, James Grant Esq' to be Governor of East Florida, George Johnstone Esq' to be Governor of West Florida, and Robert Melvill Esq' to be Governor of Granada, Dominico, S* Vincent and Tobago — It is Ordered by His Majesty in Council that the said Representation and Draughts of Commissions Be, and they are hereby referred to the Right Honourable the Lords
* This Representation is quoted in the Report of the Lords of the Committee upon the Drafts of Commissions for the Governors of Quebec, &c., 6th October, 1763.
a Commee
i
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
159
of the Committee of Council for Plantation Affairs to consider tlie same and Report their Opinion thereupon to His Majesty at this Board —
REPORT ON COMMISSIONS FOR GOVERNORS.^
N- 9 A. AT THE COUNCIL CHAMBER WHITEHALL
the 6^^ day of October 1763—
Quebec, East Florida, West Florida and the Granadas
By the Right Honourable the Lords of the Committee of Council for Plantation Affairs &c".
Present Earl of Sandwich Earl of Hillsborough'
SeSthe Earl of Halifax
Lords of the Your Majesty having been pleased by Your Order in Coun- upon Drafs cil of the S"* of this Instant to referr unto this Committee a sions'tor'the Representation from the Lords Commissioners for Trade and Gov" of Plantations, setting forth, "that in Obedience to Your Majesty's Commands signified to them in a Letter from the late Earl of Egremont dated the H"" July, last, they have prepared Draughts of Commissions for the Honourable James Murray Esq' to be Governor of Quebec, James Grant Esq' to be Governor of East Florida, George Johnston Esq' to be Governor of West Florida, and Robert Melvil Esq' to be Governor of Grenada, Dominico and Tobago — That in the Description of the Govern- ments of Quebec, East Florida, and West Florida they have conformed to the Limits and Bounds which your Majesty has been pleased to direct and approve, and as they conceived it to be Your Majesty's Royal Intention, that the Form and Constitution of Government in these new Colonies, should be as near as may be similar to what has been established in those Colonies, which are under Your Majesty's immediate Govern- ment, they have therefore prepared these Commissions accord- ingly, by which the Governors are impower'd and directed so soon asjJTR Cirrnmstanres of the Colonies will admit thereof, tQ_summon and call General Assemblys of the Freeholders in their respective Governments in such Manner as is practised in Your Majesty's other Colonies; That they have omitted in these Commissions any Power that it may be necessary to grant to the Governors and Councils of Your Majestys said new Colonies to make Temporary Regulations until
' Privy Council Register, Geo. Ill, p. 112.
' Wills, Earl of Hillsborough, succeeded the Earl of Shelbume as President of the Board of Trade, Sept. 9th. 1763.
160 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
"Assemblys can be called, because they were of Opinion that an "immediate and publick Declaration of the intended permanent "Constitution, and an Insertion in the first Commissions of the "Power of calling Assemblys so soon as the Circumstances will "admit, is expedient for Your Majesty's Service, and will give "Confidence and Encouragement to such of Your Majesty's "Subjects, as shall incline to settle in your said new Colonies, "and because such Power of making temporary Regulations may "be given in the General Instructions which they shall prepare "and lay before Your Majesty with all possible Dispatch. — "That there are in the Commissions to the Governors of Your "Majesty's other Colonies some Clauses respecting the Power "of suspending and comptrolling the Council, but as they conceive "these Matters may be more properly and regularly provided "for in the Instructions under those Articles which direct the "Nomination of the Council, ascertain their Authority and point "out their Duty and Methods of Proceedings, they have there- "fore omitted these Clauses in the present Draughts in order "to insert them in the Instructions — "
The Lords of the Committee in Obedience to Your Majestys said Order of Reference this day took the said Representation and Draughts of Commissions into their Consideration, and are of opinion, that in order to make the said Commissions agreeable to the Instructions to be given to the said Governors the following Addition should be made to each of the said Commissions at the End of that Article whereby the said Gover- nors are empowered to make Grants of Land — ^Viz'
"Provided the same be made comformable to the Instruc- "tions herewith delivered to you, or to such other Instructions "as may hereafter be sent to You under Our Signet and Sign "Manual, or by Our Order in Our Privy Council. — " And the Lords of the Committee having accordingly caused the said Addition to be made in each of the said Draughts do agree humbly to lay the same so amended before Your Majesty for Your Royal Approbation
Your Majesty having been pleased by Your Order in Council of the 5"" of this Instant to referr unto this Committee a Repre- sentation from the Lords Commissioners for Trade and Planta- tions setting forth, "that in Obedience to Your Majesty's Com- mands signified to them by a Letter from the Earl of Halifax, dated the 27"" of last Month they have prepared, and humbly lay before Your Majesty, the Draught of a Commission appoint- ing Montagu Wilmot Esq' Governor of Nova Scotia, in which Draught they have so described the Northern and Eastern Limits of this Province, as to make it conformable to what
CONSTITUTIONAL DOCUMENTS 161
SESSIONAL PAPER No. 18
has been already approved in respect to the Southern boundary of the Province of Quebec, and to comprehend the Islands of Cape Breton and S' Johns,' that they have also made the River S' Croix the Boundary to the Westward, for, although it be true that the ancient Limits of this Province, as it was possessed by France under the Treaties of Breda and Ryswick and ceded to Great Britain by the Treaty of Utrecht under the Name of Report'^uDon Acadia, did extend as far West as the River Pentagoet or Penobs- the Draught cot, yet as it appears to have been determined in the Year 1732, for Montagu upon a full examination of the Claims of the Province of the to'be°Gov?' Massachusets Bay, as well by the Attorney and Sollicitor General, as by this Board, and finally by His Majesty in Council, that the said Province had a right of Jurisdiction and property under the Limitation of the Charter, to the Country between the Rivers Sagadehock and S' Croix, and as in consequence of this Examination, the Instructions given to Colonel Dunbar, and to the Governor of Nova Scotia to make Settlements within that Tract were revoked, and it was Ordered that the Province should not be disturbed in the possession they claim to have of this Country it does not appear to them that this question is for the present open to a New Discussion: But as they con- ceive there are many material circumstances in favour of Your Majesty's Right to the Country as far Westward as the River Penobscot which were not stated in the Case laid before the /Attocoey and Sollicitor General in 1732, upon which Case their Opinion and the Dicision of the Council were founded, they do not think it adviseable that this Restriction of the Western Bounds of Nova Scotia to the River S' Croix should pass without some reservation of Your Majesty's Right to the Country between that River and Penobscot, being entered upon the Coun- cil Books; And they rather humbly proposed this to Your Majesty, as it may be a means of hereafter removing any Objec- tion which may be taken on the part of the Province of Massa- chusets Bay to the Southern Line of Quebec, as far as it concerns their Northern Limits, for if such Objection should be made, and it should appear upon examination they have any just ground of Complaint, it will be in Your Majesty's power to make them a reasonable Compensation, by allowing their Jurisdiction to extend as far Eastward as the River S' Croix, between which and the River Penobscot they have lately made some consider- able Settlements."
The Lords of the Committee in Obedience to Your Majestys said Order of Reference this day took the said Representation and Draught of a Commission into their Consideration, and being
[• Now Prince Edward Island.
162
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
These boundaries are the same as those des- cribed in Montagu Wilmot's Com" dated 21. Nov. 1763.
of Opinion that Your Majesty's Right to the Country between the River S' Croix, and the River Penobscot (the ancient Limits of the said Province) ought to be reserved in a more publick manner than by an Entry in the Council Books, do there- fore propose that the following alteration should be made in the said Draught of a Commission for that purpose. Viz* After the Appointment of Montagu Wilmot to be Captain General and Governor in Chief in and over the Province of Nova Scotia, the description of the Boundarys of the said Province to be left out, and the following words inserted in lieu thereof "Which "we have thought proper to restrain and comprize within "the following limits — Viz': to the Northward, Our said Province "shall be bounded by the Southern Boundary of Our Province "of Quebec as far as the Western extremity of the Bay des Chal- "eurs; To the Eastward by the said Bay and the Gulph of S' "Lawrence, to the Cape or Promontory called Cape Breton in "the Island of that Name including that Island, the Island of "S' Johns, and all other Islands within Six Leagues of the Coast; "To the Southward by the Atlantick Ocean from the said "Cape to Cape Sable, including the Island of that Name, and all "other Islands within forty Leagues of the Coast, with all the "Rights, Members and Appurtenances whatsoever thereunto "belonging; And to the Westward altho' Our said Province "hath anciently extended, and doth of Right extend as far as "the River Pentagouet or Penobscot, it shall be bounded by a "Line drawn from Cape Sable across the Entrance of the Bay "of Fundy, To the mouth of the River S* Croix, by the said "River to its source, and by a Line drawn due North from thence "to the Southern Boundary of Our Colony of Quebec." And their Lordships are further of Opinion that it will be proper to make the following Addition at the end of the Article empower- ing the said Governor to make Grants of Lands Viz' "Provided "the same be made conformable to the Instructions herewith "delivered to you, or to such other Instructions as may hereafter "be sent to you under Our Signet and Sign Manual, or by "Our Order in Our Privy Council."
The Lords of the Committee have therefore caused the said alteration and Addition to be made in the said Draught of a Commission accordingly, and do agree humbly to lay the same before Your Majesty for Your Royal Approbation —
i
CONSTITUTIONAL DOCUMENTS 163
SESSIONAL PAPER No. 18
Halifax to Lords Commissioners for Trade and Plantations
B. N° 5.—
S' James's Oct. 8, 1763. Lords Commiss" for Trade & Plantations —
Voi*'268 ' ^^ Lords, — Having laid before the King your Lordships
p. 261 1763 Letter of the 6"" instant with the Dra' of a Proclamation therein inclosed, and His Majesty having been pleased to approve the said Draught, & to order it to be printed, & passd under the great Seal, in the usual Form, I send your Lordships herewith a number of printed Copies of the said Proclamation & am to signify to your Lordships His Majesty's Pleasure that you should transmit them to the Governors of His Majesty's several Colonies & Plantations in America & to the Agents for Indian Affairs.
I am, &c.,
DUNK HALIFAX, endorsed: October 8. 1763.
Dra' to Board of Trade Signifying the King's Pleasure that they should transmitt Copies of the Proclamation to the Governors of the Colonies & the Agents for Indian Affairs. —
BY THE KING.'
A PROCLAMATION George R.
WHEREAS We have taken into Our Royal Consideration theextensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris, the 10th Day of February last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America,^ may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought
' Taken from the text as contained in the "Papers Relative to the Province of Quebec," 1791, in the Public Record Office. Copied in the Canadian Archives Q 62 A, pt. I., p. 114.
' The attitude of the Home Government at this time, on the subject of immigration, the kind of immigrants to be favoured, and even the need of an outlet for surplus population on the part of some of the older colonies in America, may be gathered from a report of the Lords of Trade, Nov. 5, 1761, upon the proposal to transport a number of Germans to the American Colonies after the peace. They point out that as "regards colonies possessed before the war, the increase of population is such, 'as scarce to leave room in some of them for any more inhabitants.' The encouragement and advantages of the less populated southern colonies are such as to induce sufficient migration without burdening the public. Our own reduced sailors and soldiers would be more proper objects of national bounty, and better colonists, than foreigners, whose ignorance of the English language, laws, and constitution cannot fail to increase those disorders and that confusion in our Government, which the too great migration of people from Germany has already fatally introduced in some of our most valuable possessions." Calendar of Home Office Papers of the Reign of George III. 1760-1765. No. 349.
164 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
fit, with the Advice of our Privy Council, to issue this our Royal Proclama- tion, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under our Great seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as fol- lows, viz.
First — ^The Government of Quebec bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipissim; from whence the said Line, crossing the River S* Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River S' Lawrence from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of S' Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River S' Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of S' John.
Secondly — The Government of East Florida, bounded to the West- ward by the Gulph of Mexico and the Apalachicola River; to the Northward by a Line drawn from that part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary's River, and by the course of the said River to the Atlantic Ocean; and to the Eastward and South- ward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast.
Thirdly — The Government of West Florida, bounded to the South- ward by the Gulph of Mexico, including all Islands within Six Leagues of the Coast, from the River Apalachicola to Lake Pontchartrain ; to the Westward by the said Lake, the Lake Maurepas, and the River Mississippi; to the Northward by a Line drawn due East from that part of the River Mississippi which lies in 31 degrees North Latitude, to the River Apalachi- cola or Chatahouchee; and to the Eastward by the said River.
Fourthly — The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and the Islands of Dominico, S* Vincent's and Tobago.
And to the end that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the adjacent Islands, We have thought fit, with the advice of our said Privy Council, to put all that Coast, from the River S* John's to Hudson's Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the care and Inspection of our Governor of Newfoundland.
CONSTITUTIONAL DOCUMENTS 16S
SESSIONAL PAPER No. 18
We have also, with the advice of our Privy Council, thought fit to annex the Islands of S' John's and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia.'
We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia all the Lands lying between the Rivers Alata- maha and S* Mary's.
And whereas it will greatly contribute to the speedy settling our said new Governments, that our loving subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof. We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Con^ sent of the Members of our Council, summon and call General Assemblies* / - within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which . are under our immediate Government; and We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies; and in the mean Time, and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies! may confide in our Royal Protection for the Enjoyment of the Benefit! of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respect- ively to erect and constitute, with the Advice of our said Councils respect- ively. Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council.
We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies, upon the Continent full Power and Authority to settle and agree
' Nova Scotia would thus include the three present maritime provinces of Nova Scotia New Brunswick, and Prince Edward Island.
' With reference to the reasons given and provisions made for calling Assemblies in the new Provinces, see Report of the Lords of Trade, Oct. 4th, 1763, p. 156, also report of the Lords of the Committee of Council for Plantation Affairs, Oct. 6th, 1763, p. 159. See also the Commission to Hon. James Murray to be Governor of Quebec, p. 175, and the Instructions to Governor Murray, sec. 11, p. 185.
166 CANADIAN ARCHIVES
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with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands, Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such mode- rate Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Gran- tees, and the Improvement and settlement of our said Colonies.
And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and Approbation of the Conduct and bravery of the Officers and Soldiers of our Armies, and to reward the same. We do hereby command and impower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North America, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz.
To every Person having the Rank of a Field Officer. 5, 000 Acres.
To every Captain 3,000 Acres.
To every Subaltern or Staff Officer 2,000 Acres.
To every Non-Commission Officer 200 Acres.
To every Private Man 50 Acres.
We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants.^
And whereas it is just and reasonable, and essential to our Interest, and .the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. — ^We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of
' On Oct. 13th, 1763, the Earl of Halifax wrote to the Attorney General, inquiring "as to the means which should be used to nullify the doubtfulness of a paragraph in H. M's proclamation, which makes it appear that only those officers which served both at Louisbourg and Quebec are entitled to grants of land, such not being Mis Hajesty's intention." Calendar of Home Office Papers, 1760-1765, No. 1036. ^ L I!
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SESSIONAL PAPER No. 18
Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
And, We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or with- in the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid ;
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
And whereas great Frauds and Abuses have been committed in pur- chasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Coun- cil strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where. We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be in- clined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be pur- chased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to
168 CANADIAN ARCHIVES
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give for that Purpose; And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of Our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
And we do hereby authorize, enjoin, and require the Governors and Commanders in Qiief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
And we do further expressly enjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Terri- tory, and to send them under a proper guard to the Colony where the Crime was committed of which they stand accused, in order to take their Trial for the same.'
Given at our Court at St. James's the T"" Day of October 1763, in the Third Year of our Reign.
GOD SAVE THE KING
EGREMONT TO GOVERNOR MURRAY.*
Whitehall, Aug' IS"" 1763. Gov Murray.
Sir, I take great Satisfaction in acquainting you, that His Majesty has been graciously pleased to confer on you the Government of Canada, over which Country you have already presided so long with such Applause,
' The Earl of Halifax, in a letter to the Secretary at War, March 11, 1765, directing him to prepare and bring into ParUament a bill to extend the Mutiny Act to North America, points out that there are many posts in that country which are not under any civil jurisdiction, and that therefore the additions to be made to the 60th clause of the Mutiny Act are very necessary. This is especially so since, in the Proclamation of Oct. 7th, 1763, while provision is made for apprehending and bringing to justice such criminals as might take refuge at these posts, yet no mode is established for the punishment of crimes committed at those posts, or in the reserved territories. See Calendar of Home Office Papers 1760-1765, No. 1671
• This is a portion of a letter from the Secretary of State, the Earl of Egremont, to Governor Murray. The remainder of the letter refers to the priest Le Loutre who had formerly occasioned much trouble in Acadia, and also to claims for lands granted to the late French Governor, Vau- dreuil, in western Canada. Copy, from Public Record Office, in Canadian Archives, Q. 1, p. 117.
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SESSIONAL PAPER No. 18
that The King is persuaded this appointment will be received by His new subjects as a singular mark of His Majesty's Royal attention to their Welfare & Happiness.
The necessary Commission & Instructions for you, on this occasion, which are preparing by the Board of Trade with all Dispatch, will be for- warded to you as soon as possible, and as they will contain very full Direc- tions, not only with regard to the Form of Government to be established in Canada, but to your Conduct in every particular; I have no new Orders to transmit to you at present; But His Majesty thinks it very material, ' that you should be apprized, that He has received Intelligence, which give some reason to suspect, that the French may be disposed to avail Themselves of the Liberty of the Catholick Religion granted to the Inhabitants of Canada, in order to keep up their Connection with France, and, by means , of the Priests, to preserve such an Influence over the Canadians, as may/ induce them to join, whenever Opportunity should offer, in any attempts \ to recover that Country; It therefore becomes of the utmost Consequence i to watch the Priests very narrowly, and to remove, as soon as possible, I any of them, who shall attempt to go out of their sphere, and who shall busy themselves in any civil matters: For tho' The King has, in the 4"" Article of the Definitive Treaty, agreed to grant the Liberty of the Catholick Religion to the Inhabitants of Canada; and tho' His Majesty is far from enter- taining the most distant thought of restraining His new Roman Catholick Subjects from professing the Worship of their Religion according to the Rites of the Romish Church: Yet the Condition, expressed in the same Article, must always be remembered, viz': As far as the Laws of Great Britain permit, which Laws prohibit absolutely all Popish Hierarchy in any of the Dominions belonging to the Crown of Great Britain, and can only admit of a I Toleration of the Exercise of that Religion; This matter was clearly under-! stood in the Negotiation of the Definitive Treaty; The French Ministers proposed to insert the Words, comme ci-devant, in order that the Romish Religion should continue to be exercised in the same manner as under their Government; and they did not give up the Point, 'till they were plainly told that it would be deceiving them to admit those Words, for The King had not the Power to tolerate that Religion in any other Manner, than as far as the Laws of Great Britain permit: These Laws must be your guide in any Disputes that may arise on this Subject; But, at the same Time, that I point out to you the necessity of adhering to Them, and of attending with the utmost Vigilance to the Behaviour of the Priests, The King relies on your acting with all proper Caution & Prudence in regard to a matter of so delicate a Nature as this of Religion; And that you will, as far as you can, consistently with your Duty in the Execution of the Laws, & with the Safety of the Country, avoid every Thing that can give the least unneces- sary Alarm, or Disgust, to His Majesty's new Subjects.
« * * * * « -*
I am &•
Endorsed: Dra' to Governor Murray EGREMONT.
Aug' 13"" 1763,
170 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907 PASSING GOVERNORS' COMMISSIONS.^
At the Court at St. James's
the 7*'' day of October 1763 Present The King's most Excellent Majesty — &c &c— F^theG^" UP°" reading this day at the Board a Report from the Right of Quebec, Honourable the Lords of the Committee of Council for Plantation West Fiorida,AfIairs dated the 6"' of this Instant humbly offering to His mdc^^"^^ Majesty for His Royal Approbation four Draughts of Commis- App*. sions prepared by the Lords Commiss" for Trade and Plantations
for the Honourable James Murray Esq' to be Governor of Quebec, James Grant Esq' to be Governor of East Florida, George John- stone Esq' to be Governor of West Florida, and Robert Melvill Esq' to be Governor of Grenada, Dominico, S' Vincent and To- bago— His Majesty taking the same into Consideration is pleased with the Advice of His Privy Council to approve of the said Draughts of Commissions (which are hereunto annexed) and to order as it is hereby Ordered that the Right Honourable the Earl of Halifax one of His Majestys Principal Secretarys of State do cause Warrants to be prepared for His Majestys Royal Signature in order to pass the said Commissions under the Great Seal of Great Britain. — Nova Scotia Upon reading this day at the Board a Report from the Right
Commission Honourable the Lords of the Committee of Council for Planta-
for Montagu
Wiimot to be tion Affairs, dated the 6"" of this Instant humbly offering to
Appd His Majesty for His Royal Approbation a Draught of a Commis-
' sion prepared by the Lords Commiss" for Trade and Plantations
for Montagu Wiimot Esq' to be Captain General and Governor
in Chief of His Majestys Province of Nova Scotia in America —
His Majesty taking &c'' ut Antea. —
ADDITIONAL CLAUSES IN NEW COMMISSIONS.^
4th November 1763 Present The Kings Most Excellent Majesty &c. &c —
Georgia
provhig^an Whereas there was this day read at the Board a Report of His
Instrument Majestys Attorney General dated the 29"" of last Month to-
for extendmg , . , , , i •
the Southern gether With a Draught of an Instrument prepare d by him lSb— "^ revoking such part and so much of the Commission appointing
' Copied from Privy Council Register. Geo. III., p. 117. • Copied from Privy Council Register. Geo. III., p. 139.
CONSTITUTIONAL DOCUMENTS .171
SESSIONAL PAPER No. 18
Wri htTe-'" J^n^^s Wright Esq' to be Governor of the Province of Georgia yoking that bearing date the 4"" day of May 1761, which doth any way 1761 is dated relate to or concern the Limits and Bounds of the said Province, 1764 "^^ and appointing new* Bounds and Limits to the said Province whereby the Southern Boundary Line is extended to the most Southern Stream of a certain River called S' Mary —
o" 20^1311™° ^'^ Majesty taking the same into Consideration, is pleased
1764 quoting with the Advice of His Privy Council to approve of the said the River Draught of an Instrument (which is hereunto annexed) and to melnion^ed^is Order, as it is hereby Ordered, that the Right Honourable the ^e ^uthern Earl of Halifax One of His Majestys Principal Secretarys of
State do cause a Warrant to be prepared for His Majesty's
Royal Signature in order to pass the said Instrument under the
Great Seal of Great Britain. — JV^CoJ-''" Upon reading this day at the Board a Letter from M' micons Attorney General to the Right Honourable the Earl of Halifax,
the Atty one of His Majestys Principal Secretaries of State, praying that making'an ^^ Addition should be made to the Clause in the Commissions AddUion to for the Governors of Quebec, Grenada, East Florida, and West relative to Florida relative to the granting Lands — It is Ordered by His Land3'."Ref'' Majesty in Council that the said Letter and addition (which to a Commee ^re hereunto annexed) Be, and they are hereby Referred to the
Right Honourable the Lords of the Committee of Council for
Plantation Affairs to consider the same and Report their Opinion
thereupon to His Majesty at this Board
At the Council Chamber Whitehall the ll"" day of November
1763—
By the Right Honourable the Lords of the Committee of
Council for Plantation Affairs — C^^ht^' Your Majesty having been pleased by Your Order in Council
Report for of the 4"' Instant to referr unto this Committee a Letter from Addition to M' Attorney General to the Right Honourable the Earl of theCo^'" Halifax one of Your Majestys Principal Secretarys of State SreGov"'^ f proposing that the following Addition may be made to the Nova Scotia, Clause in the Commissions (approved by Your Majesty in Coun- Kat Florida, cil on the 7"" of last Month) for the Governors of Quebec, Grenada, MdTth^'Gre-^ East Florida, West Florida, and Nova Scotia relative to the nada'8 Granting Lands — ^Viz'
the Granting "Which Instructions, or any Articles contained therein,
*~ "or any such Order made in Our Privy Council, so far as the same
"shall relate to the Granting of Lands, as aforesaid, shall from
"time to time, be published in the Province, and entered of
*The boundaries here described agree with those given in Wright's Commission of 24 Jan. 1764.
m CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
"Record, in like manner as the said Grants themselves are "hereby directed to be Entered." —
The Lords of the Committee in Obedience to Your Majestys said Order of Reference this day took the said Letter and addition into their Consideration, and being of Opinion that the same is proper and necessary, do therefore agree humbly to Report, that it may be adviseable for Your Majesty to cause the said Addition to be inserted in all the aforementioned Commissions accordingly.
11"' Nov. 1763—
Comnattee '^^^ Lords of the Committee, in Obedience to Your Majestys
Report upon said Order of Reference, this day took the said Representation liSrucons° and Draughts of Instructions in their Consideration, and finding ol'^Quebecr" ^^^* ^^^ ®^^^ Draughts of General Instructions contain all East Florida, those Articles usually given to the Governors of Your Majesty's West Florida , .. „,. ,ti. -i i-,
and the American Colonies and Islands respectively, which are necessary rena as. j^^^ ^^^ applicable to these New Governments, together with such others as appear to tend to promote the Settlement and Improvement of them. And that the Draughts of Instructions for the observance of the Acts of Parliament for the encourage- ment and Regulation of Trade and Navigation are exactly conformable to the Instructions given to the Governors of Your Majestys other American Colonies and Plantations. — Their Lordships do therefore agree humbly to lay the said Draughts of Instructions before Your Majesty for Your Royal Approbation.
AT THE COURT AT ST. JAMES'S
the 14"" day of Novemr 1763
Present
The King's most Excellent Majesty &c. &c.
Upon reading at the Board a Report from the Right Honour- able the Lords of the Committee of Council for Plantation Affairs dated the ll"" of this Instant upon considering a Letter from M' Attorney General to the Right Honourable the Earl Commissions °^ Halifax One of His Majesty's Principal Secretaries of State Order for proposing that the following Addition may be made to the Clause Addition to in the Commissions (approved by His Majesty in Council on thlne'w"Gol" the 7"' of last Month) for the Governors of Quebec, Grenada, Commicona East Florida, West Florida and Nova Scotia relative to the
relative to . , i t- »
the Granting granting Lands — ^Viz'
Appd^ "Which Instructions, or any Articles &c — "
CONSTITUTIONAL DOCUMENTS 173
SESSIONAL PAPER No. 18
And'the Lords of the Committee being of opinion that the said Addition is proper and necessary to be made in the said Commissions, His Majesty this day took the same into Consider- ation, and was pleased with the Advice of His Privy Council to approve thereof and to order as it is hereby Ordered, that the Right Honourable the Earl of Halifax one of His Majesty's Principal Secretarys of State, do cause the said Addition to be inserted in all the aforementioned Commissions accordingly —
COMMISSION OF CAPTAIN-GENERAL & GOVERNOR IN CFIEF OF THE PROVINCE OF QUEBEC.'
George the Third by the grace of God of Great Britain France and Ireland King Defender of the Faith and so forth ; To our Trusty and well beloved James Murray Esquire, Greeting.
Commission -^r^^ reposing especial trust and Confidence in the prudence,
Captain- Courage and loyalty of you the said James Murray, of our especial
Governor in grace, Certain Knowledge and meer motion, have thought fit
Province''^ to Constitute and appoint, and by these presents, do Constitute
and appoint you, the said James Murray to be our Captain
General and Governor in Chief in and over our Province of
Quebec in America.
o°Sfe'^^^' Bounded on the Labrador Coast by the River Saint John,
Province and from thence by a line drawn from the head of that River
through the lake Saint John to the south end of Lake Nepissin,
from whence the said line Crossing the River Saint Lawrence and
Knor^is^o act*^^ '^'^^ Champlain in Forty five Degrees of Northern Latitude,
according to passes along the high lands which Divide the Rivers that empty
and direc- themselves into the said River Saint Lawrence from those which
Commission ^^" '"^^ t^*^ ^^' ^"^ also along the north Coast of the Bay des
& according Chaleurs and the Coast of the Gulfts of Saint Laurence to Cape
to the Kings . . , ."^
Instructions Rosieres, and from thence. Crossing the mouth of the River Saint Lawrence by the west end of the Island of Anticosty terminates at the aforesaid River Saint John.
Together with all the Rights members, and appurtenances whatsoever thereunto belonging.
And we, do hereby require and Command you to do and execute all things in due manner that shall belong to your said Command and the Trust we have reposed in you, according to the several powers and Directions granted or appointed You by this present Commission and the instructions and authorities herewith given unto you. Or by such other powers instructions or authorities'; as shall at any time hereafter be granted
' Copied from the Register of Commissions in the office of the Secretary of State, Canada.
y
174
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Governor
Those ap- pointed by 1. Geo. 1.
or appointed under our Signet and Sign Manual, or by our Order in our Privy Council, and according to such reasonable laws and statutes as shall hereafter be made and agreed upon by you with the advice and Consent of the Council and Assembly of our said Province under your Government, in such manner and form as is herein after expressed.
And our will and pleasure is that You the said James Murray Seen by the "^^ ^^*^^ ^^^ publication of these our Letters patent, and after the appointment of our Council for our said province in such manner and form as prescribed in the instructions which you will herewith receive, in the first place take the oaths appointed to be taken by an act passed in the first Year of the Reign of King George the First Intitled (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 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 Intitled (an act for preventing Damages which may happen from Popish recusants) and likewise that you take the oath usually taken by our Governors in other Colonies for the due execution of the Office & Trust of our Captain General and Governor in Chief in and over our said province, and for the due & impartial administration of justice; and further that you Oath of Office|.^jjg ^}^g Oath required to be taken by Governors of the Planta- tions to do their utmost that the several laws relating to Trade oWrve the ^^'^ Plantations be duly observed: which said oaths and Declara- laws relating tions our Council of our said Province, or any three of the mem- Piantations. bers thereof, have hereby full power and authority, and are hereby required to tender and administer to You. —
All which being duly performed you shall yourself administer to each of the members of our said Council, and to the Lieutenant Governors of Montreal & Trois Rivieres the said Oaths, men-
Declaration
against pop- ery Stat 25 Car: 2<i
Trois Rivieres
Oaths to be taken by the Counsellors & Lieut'
Governors of tioned in the said Act Intitled (an act for the further Security of Montreal & pjj^ Majggt-y'g person & Government and the succession of the Crown in the Heirs of the late Princess Sophia, being protestants, and for extinguishing the hopes of the pretended Prince of Wales, and his open and secret abettors) and also Cause them to make and subscribe the aforementioned Declaration, and also shall administer unto them the usual Oaths, for the due execution of their places and trust.
And We do further give and grant unto you the said James
Murray full power and authority from time to time, and at any
^'^"iTthorize' time hereafter by Yourself, or by any other to be authorized by
Power to
I
I
CONSTITUTIONAL DOCUMENTS 175
SESSIONAL PAPER No. 18
admfnister to y°" '"' ^^'^ behalf, to administer and give the Oaths mentioned
any person in in the said act (for the further security of His Majesty's Person
the Oaths and Government and the Succession of the Crown in the Heirs of
Itat'^'c^oT th^ '^t^ Princess Sophia being Protestants, and for extinguishing
I- the hopes of the pretended Prince of Wales and his open and
secret abettors) to all and every such person and persons as you
shall think fit, who shall at any time or times pass into our said
Province or shall be resident or abiding there.
k^T&'use ^""^ ^^ ^° hereby authorize and Impower you to keep and
the pubiick use the Publick seal, which will herewith be delivered to you,
or shall be hereafter sent to you, for sealing all things whatsoever
that shall pass the Great seal of our said Province.
And we, do hereby give and grant unto you the said James an assembh^' Murray full power and authority with the advice and Consent of of the Free- our said Council to be appointed as aforesaid, so soon as the Situation and circumstances of our said Province under your Government will admit thereof, and when & as often as need shall require, to summon and call General Assemblies of th^ Freeholders and Planters, within your Government, in such; manner as you in your Direction shall- judge most proper, or according to such further powers. Instructions, and authorities as shall be at any time hereafter granted or appointed you under our Signet and Sign Manual, or by our Order in Our Privy Council.
And our will and pleasure is. That the persons thereupon Srs of^s'uch ^"'y Elected by theMajor Part of the Freeholders of the respective assembly parishes, or precincts, and so returned, shall before their sitting take the Oaths the oath mentioned in the said act intitled (an act for the Further Itet^'" Geof security of his Majesty's person & Government and the succes- _ '• sion of the Crown in the Heirs of the late princess Sophia being
protestants, and for extinguishing the hopes of the pretended dediation Prince of Wales and his open and secret abettors) as also make
against and subscribe the foremen tioned declaration: Which oaths &
popery i , •
declaration you shall Commissionate fit persons under the pub- lick sea! of that our province, to tender and administer unto them and. untill the same shall be so taken and subscribed, no person shall be Capable of sitting though Elected.
And we do hereby declare that the persons so Elected &
Ske^i^ws Qualified shall be called the Assembly of that our province of Quebec; and that you the said James Murray, by & with the advice and Consent of our said Council and Assembly, or the major part of them, shall have full power & authority, to make, Constitute or Ordain, Laws Statutes & ordinances for the publick peace, Welfare, & good Government of our said province, and of the people and Inhabitants thereof, and such others as
176 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
shall resort thereunto and for the benefit of us our heirs & suc- pugnantto cessors: which said Laws Statutes and Ordinances are not to be
the Laws of repugnant, but as near as may be agreeable, to the laws & Great Britain V , . ,_. , , _ ^ . .
Statutes of this our Kingdom of Great Britain.
Provided that all such Laws Statutes and Ordinances of made'to'be" ^^^at nature or Duration soever they shall be within three months transmitted or sooner after the making thereof, Transmitted to us, under our within three Seal of our said province for our approbation or disallowance of the same, as also duplicates thereof by the next Conveyance. — And in Case any, or all of the said Laws Statutes and Ordin- ances not before Confirmed by us, shall at any time be disallowed and not approved, and so signified by us, our Heirs, and Succes- by'the^King^ sors, under our, or their Signet and sign Manual, or by order of they shall our, or their privy Council, unto you the said James Murray or
thenceforth , /-^ i • /-^, • r r • , • r i •
become void to the Commander in Chief of our said Province for the time
being; Then such and so many of the said Laws, Statutes, and
Ordinances, as shall be so disallowed, and not approved, shall from
thence forth cease determine and become utterly void and of no
effect, anything to the contrary thereof notwithstanding
Governor ^'^^ *° *^^ ^'^^ that nothing may be passed or done by our
shall have a said CouHcil or Assembly, to the prejudice of us, our Heirs
voice against and Successors, We will and ordain that you the said James
and AssembyMu''''^y' shall have, and enjoy a Negative Voice in the making
and passing all laws, Statutes and ordinances as aforesaid ; and
that you shall and may likewise from time to time, as you shall
judge necessary, adjourn, prorogue or dissolve all General
assemblies as aforesaid
tbTconsent ^^^ ^^' ^° ^^ these presents give and grant unto you,
of the Council the said James Murray, full power and authority, with the advice
Courts of & Consent of our said Council, to Erect, Constitute and Establish,
ju icature g^,}^ ^j^j gQ jjiany Courts of Judicature and publick Justice within
our said province under your Government as you & they shall
think fit and necessary, for the hearing & determining of all causes
as well Criminal as Civil according to Law and Equity and for
awarding execution thereupon, with all reasonable & necessary
powers, authorities. Fees, and priviledges belonging thereunto:
Conmibsion- ^^ ^'^° *° appoint and commissionate fit persons in the several
ate fit personsparts of your Government to administer the oaths mentioned
to admmister :, . ., ■,•,,/ r ir, • <■
the Oaths in the aforesaid act Intitled (an act for the further security of ltet°:'"'V,eo^ His Majesty's person & Government, and the succession of the ciarat'ion''^' ^^own in the Heirs of the late Princess Sophia being protestants popery to and for extinguishing the hopes of the pretended Prince of Wgingto Wales, and his open and secret abettors) as also to Tender & such Courts administer the aforesaid declaration to such persons belonging to the said Courts as shall be obliged to take the same.
CONSTITUTIONAL DOCUMENTS 177
SESSIONAL PAPER No. 18
And We do hereby grant unto you full power and authority
P°y^''*°^^to constitute and appoint judges, and in Cases requisite Com-
Commiss" of rnissioners of Oyer & Terminer, Justices of the peace, Sherrififs
Tereiiner, and Other necessary Officers and ministers in our said Province
the't^?cef ^o"" t^^ better administration of Justice, and putting the Laws
Sheriffs & in Execution; and to administer or cause to be administered
of jusUce— unto them such oath or Oaths as are usually given for the due jf
Execution and performance of Offices & places and for clearing
the truth in Judicial Causes.
And We do hereby give and grant unto you full power and
authority, when you shall see cause, or shall Judge any Offender
or Offenders in Criminal matters, or for any Fines or Forfeitures
"^T'li Crime'^"^ unto US, fit Objects of our Mercy, to pardon all such offenders
and remit all such offences. Fines and Forfeitures; Treason
and Willful murder only excepted; In which cases you shall
likewise have power upon Exterordinary Occasions to Grant
Reprives to the offenders untill and to the intent our Royal
pleasure may be Known therein.
And We do by these presents Give and Grant unto you
full power and authority to Collate any person or persons to any ♦ ^«
^Uatin'to Churches, Chappels, or other Ecclesiastical Benefices within t„
Ecclesiastical our Said province, as often as any of them shall happen to be ^^i,. Benefices . ,
void. 4e^
And We do hereby give and grant unto you, the said James
Murray, by yourself, or by your Captains and Commanders
by you to be authorized, full power & Authority to Levy, Arm,
power ^to ^ Muster Command, and Employ all persons whatsoever, residing
and Employ within our Said province, and as occasion shall serve them to
Enemies march. Embark, or Transport, from one place to another for the
Rebels.*' resisting and withstanding of all enemies, pirates, & Rebels
both at land and sea: and to Transport such Forces to any
of our Plantations in America, if necessity shall require for
Defence of the same against the invasion or attempts of any
of our Enemies; and such Enemies, pirates & Rebels, if there
should be occasion, to pursue and prosecute in or out of the limits
of our said province ; and if it shall so please God, them to vanquish,
ecute^Martial^PP'^^'^^^d and take; and being taken, according to law to put
Law in time to death, or Keep and preserve alive, at your discretion: and
to execute Martial Law in time of Invasion, War, or other times,
when by Law it may be executed and to do and execute all and
every other thing and things which to our Captain General &
Governor in Chief doth, or of right ought to belong.
ower wth '^"^ We do hereby give and grant unto you full power
the Consent and authority, by and with the advice and Consent of our said Couiudl, to Council, to Erect, Raise, and build in our s^id province, such
178 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Sc'castles"' ^^'^ ^° many Forts, Platforms, Castles, Cities, Borroughs, Towns, and Fortifications, as you, by the advice aforesaid, shall Fortify & judge necessary: and the same or any of them, to Fortify fhem'with ^""^ Furnish with Ordnance, ammunition, and all sorts of arms, Arms &c., fit and necessary for the security & defence of our said province: moUsh or And by the advice aforesaid, the same again or any of them, to them.— ^ Demolish or Dismantle as may be most Convenient, —
And for as much as divers Mutinies & Disorders may hapjien pcmer^in Y^y persons Shipped and Employed at sea during the time of to appoint War: And to the end, that such as shall be shipped and Employed other Officers at sea during the time of War may be better governed and ordered: to grant thlmWe hereby give and grant unto you the said James Murray, Commissions full power and authority to Constitute and appoint Captains, the Law Lieutenants, Masters of Ships, and other Commanders & officers, cording to Commissions to execute the Law Martial during the time of t^Stat: 22 War, according to the Directions of an act passed in the Twenty Second year of our late Royal Grand Father, intitled (an act for amending Explaining and Reducing into an act of Parliament, the Laws relating to the Government of His Majesty's Ships, Vessels, and Forces by Sea) and to use such proceedings, author- ities, punishments, Corrections and Executions upon every Offender or Offenders, who shall be mutinous, Seditious, Dis- orderly, or any way unruly either at Sea or during the time of their abode or residence in any of the ports, Harbours, or Bays in our said Province, as the Case shall be found to require, according to Martial Law and the said Directions during the time of War as aforesaid. — This shall Provided that nothing herein Contained shall be Construed
not affect any °
seamen or to the enabling you, or any by your authority, to hold plea, on board or have any Jurisdiction, of any offence, Cause, matter or thing, ^Soned^by Committed or done, upon the High sea, or within any of the hav- the Ad- ens Rivers, or Creeks of our said province, under Your Govern-
miralty, when ^ . ,-^ , t •
they Commit ment, by any Captam, Commander, Lieutenant, Master,
either mi the Officer, Seaman, Soldier, or person Whatsoever, who shall be
High ^.'^oj; in actual service and pay, in or on board any of our ships of War,
Creeic or or Other vessels, acting by immediate Commission or Warrant
from our Commissioners for executing the office of High Admiral
of Great Britain, or from our high Admiral of Great Britain
for the time being; under the seal of our Admiralty. But that
such Captain, Commander, Lieutenant, Master, Officer, Seaman,
or Soldier, or other person, so offending shall be left to be
perso'nsshaii Proceeded against and Tried, as their offences shall require.
be tried eithergither by Commission under our Great seal of this Kingdom,
sions under as the Statute of the Twenty eight of Henry the Eight directs,
of Great *^ Of by Commission from our said Commissioners for Executing
CONSTITUTIONAL DOCUMENTS 179
SESSIONAL PAPER No. 18
^o^dfngto" *^ ^^^^ °^ H'S^ Admiral of Great Britain, or from our High the Stat. 28 Admiral of Great Britain for the time being according to the Commission aforementioned Act Intitled (an act for amending, explaining admiralty ^"^ reducing into one act of parliament, the Laws relating to ^^cording to the Government of His Majesty's Ships, Vessels, and Forces by Geo. 2. Sea) and not otherwise. —
Provided Nevertheless that all disorders and misdemeanors offences Committed on shore by any Captain, Commander, Lieutenant, Committed Master, Officer, Seaman, Soldier, or other persons whatsoever these persons belonging to any of our Ships of War, or other Vessels acting by tried & immediate Commission or Warrant from our Commissioners for punished executing the Office of High Admiral of Great Britain, or from our
P according to . . °. . . .
laws of the High admiral of Great Britain for the time being; under the seal fhe'^offence^ of our admiralty, may be Tried and punished, according to the committed '^^^ ^^ ^^^ place where any such disorders, offences, and mis- demeanors shall be Committed on shore, notwithstanding such offender be in our actual service, and Born in our pay on board any such our ships of war, or other vessels acting by immediate
I Commission or Warrant from our Commissioners for Executing
the Office of High Admiral of Great Britain, or from our Admiral of Great Britain for the time being as aforesaid; so as he shall not receive any protection for the avoiding of Justice for such offence Committed on shore from any pretence of his being employed in our service at sea. Siirconsent ^^^ °^^ Further will & pleasure is that all publick monies
of the raised, or which shall be raised, by any act hereafter to be rnade
to dispose of within our said province, be issued out by Warrants from you, money for ^V ^^^ ^'^h the advice & Consent of our Council as aforesaid '^^^"PP""^*^ for the support of the Government & not otherwise. — Government. And We likewise give and grant unto you full power and power with authority, by and with the advice & Consent of our said Council rfUi'c'^^cii''^ ^^tt'^ ^^'^ agree with the inhabitants of our said province tnant for such lands. Tenements and Hereditaments as now are or here- after shall be in our power to dispose of, and them to grant to any person or persons upon such terms, and under such mod- erate Quit Rents, services, and acknowledgements to be there- upon reserved unto us, as you with the advice aforesaid shall think fit: which said grants are to pass and be sealed by our The grants pub'ick seal of our said province ; and being entered upon tt 'l>''br*^k Record by such officer or Officers as shall be appointed thereunto,
«eai, and to shall be good and effectual in the Law against us, our Heirs and
be regis- c
tered. buccessors. —
These grants Provided the same be conformable to the Instructions
must be made . . . .
conformably herewith delivered to you, or to such other instructions as may
Instruction, hereafter be sent to you under our Signet & Sign Manual
180 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
or by our order in our Privy Council, Which instructions, or any articles Contained therein, or any such order made in our Privy Instructions Council, SO far as the same shall relate to the Granting of Lands th^'granting ^® aforesaid, shall from time to time be published in the province of Lands and Entered of record, in like manner as the Said Grants them- published, selves are hereby Directed to be entered.
And We do hereby give you the said James Murray full power with power & authority to order Fairs, Marts, & Markets, and also of^the°°^"' such and so many Ports, Harbours, Bays, Havens, and other Couiidl, to places for the conveniency and Security of shipping, and for the & markets, better loading & unloading of goods & Merchandizes, in such wharfs. and so many places as, by and with the advice and Consent
of our said Council, shall be thought fit and necessary. — cfviilT" ^^ We do hereby require & Command all Officers and
military, and Ministers Civil & Military, and all other inhabitants of our
all other . , r. . , , ,.
inhabitants said Province, to be obedient, aiding, and assisting unto you,
vince?^e°to the said James Murray in the Execution of this our Commission,
be aiding and and of the powers & Authorities therein Contained, and in Case assistmg to ^
the Governor of your Death or Absence from our said province & Government,
ecution of his to be obedient, aiding and assisting as aforesaid to the Com-
&°in'caS'°o" zander in Chief for the time being, to whom we do therefore
the death or by these presents, give and grant all and singular the powers
the Govemor.and Authorities herein Granted, to be by him Executed & En-
mander in"' joyed during our pleasure or untill your Arrival within our
Chief for the said province, tune being. '^
And in Case of your Death or absence from our said province,
our will and pleasure is, that our Lieutenant Governor of Mon-
Cwnmande^ treal or Trois Rivieres, According to the priority of their Com-
in Chief of missions of Lieutenant Governors, do Execute our said Commis-
the Province . • i „ , .,••,. • i
in case of the sion With all the powers and authorities therein mentioned as sencecTf^he' aforesaid, and in Case of the Death or absence of our Lieutenant Governor. Govemor of Montreal and Trois Rivieres from our said province, and that there shall be no person within our said province appointed by us to be Lieutenant Governor or Commander in Chief of our said province. Our Will and pleasure is, that the Eldest Counsellor, who shall be at the time of your Death or absence, residing within our said province, 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 same manner to all intents and purposes, as other our Governor or Commander in Chief should or ought to do in Case of your Absence, or untill your Return, or in all Cases untill our further pleasure be Known therein. —
CONSTITUTIONAL DOCUMENTS 181
SESSIONAL PAPER No. 18
And We do hereby declare, ordain and appoint, that you
of'ca^Sn ^^^ ®^'^ James Murray, shall and may hold Execute and Enjoy
General and the Office & place of our Captain General, and Governor in
Chief to be Chief in and over our said Province of Quebec, and all the
dt^ng"^ Territories depending thereon, with all and singular the powers
Kings and authorities hereby Granted unto you, for & during our
will and pleasure. In Witness Whereof, We have Caused these
our Letters to be made patent. Witness our Self at Westminister
the Twenty first Day of November, in the fourth Year of our
Reign.
By Writ of privy Seal (Signed)
YORKE & YORKE.
Recorded at the Treasury Chambers Whitehall the 28"* Day of November 1763
(Signed)
T. TOMKYNS
Recorded in the Registry Office in Quebec the 7^^ Day of June 1766
(Signed),
J. GOLDFRAP D.Reg
INSTRUCTIONS TO GOVERNOR MURRAY.'
George R.
Instructions to Our Trusty and Wellbeloved James Murray,
Esq.', Our Captain General and Governor in Chief in and (L.S.) over Our Province of Quebec in America, and of all Our
Territories dependent thereupon. Given at Our Court
I at S* James's the Seventh Day of December 1763 in the
r Fourth Year of Our Reign.
1. With these Our Instructions You will receive Our Commission pnder Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and over Our Province of Quebec in America, bounded on the Labrador Coast by the River S' John, and from thence by a Line d/awn from the Head of that River through the Lake S* John to the South End of the Lake Nipissin ; from whence the said Line crossing the River S' Lawrence and the Lake Champlain in forty five Degrees of North Latitude, passes along the High Lands, which divide the Rivers that empty themselves into the said River S' Lawrence, from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs and the Coast of the Gulph of S* Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River S' Lawrence by. the West
'Copy from Public Record Office, Col. O. Plantations, 1763-1766: in Canadian Archives, M. 230, p. 1.
182 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
End of the Island of Anticosti, terminates at the aforesaid River of S* John: You are therefore to take upon You the Execution of the Office and Trust We have reposed in You, and the Administration of Government, and to do and execute all Things in due manner that shall belong to your Command, according to the several Powers and Authorities of Our said Commission under Our Great Seal of Great Britain, and these Our Instruc- tions to You, or according to such further Powers and Instructions as shall at any Time hereafter be granted or appointed You under Our Signet and Sign Manual, or by Our Order in Our Privy Council.
2. And You are, with all due Solemnity, to cause Our said Commission to be published at Quebec, which We do appoint to be the Place of your Residence and the principal Seat of Government, in the Districts of Montreal and Trois Rivieres, and in such other parts of your Government as You shall think necessary and expedient, as soon as possible ; which being done, . You are in the next place to nominate and establish a Council for Our said Province, to assist You in the Administration of Government, which Council, is, for the present, to be composed of the Persons, whom We have appointed to be Our Lieutenant Governors of Montreal and Trois Rivieres, Our Chief Justice of Our said Province, and the Surveyor General of Our Customs in America for the Northern District, and Eight other Persons "-^ to be chosen by You from amongst the most considerable of the Inhabitants of, or Persons of Property in Our said Province; which Persons so nomin- ated and appointed by You as aforesaid (Five of which We do hereby appoint to be a Quorum), arp to be Our Council for Our said Province, and to have and enjoy all the Powers, Privilege and Authority usually exercised and enjoyed by the Members of Our Councils in Our other Planta- tions, and also such others as are contained in Our said Commission under Our Great Seal of Great Britain, and in these Our Instructions to You; and they shall meet together at such Time or Times, Place or Places,
as You, in your Discretion, shall think necessary and expedient: It is never- theless Our Will and Pleasure, that the said Chief Justice, or Surveyor General of Our Customs, shall not be capable of taking the Administration of the Government upon the Death or Absence of You Our Governor, or the Commander in Chief for the Time being.
3. And You are forthwith to call Our said Council together, or such of them as can be conveniently assembled, and to cause Our said Commis- sion to You to be read at such Meeting; which being done, You shall then take yourself, and also administer to Our Lieutenant Governors respectively, and to the Members of Our said Council, the Oaths mentioned in an Act, passed in the first Year of the Reign of His Majesty King George the First, 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 also to make and subscribe, and cause them to make and subscribe the
CONSTITUTIONAL DOCUMENTS 183
SESSIONAL PAPER No. 18
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 Recusants." And You and every one 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 Reign of King William the Third to be taken by Governors of Plantations, to do their utmost that the Laws relating to the Plantations be observed.
4. And You are forthwith to transmit unto Our Commissioners for Trade and Plantations, in order to be laid before Us for Our Approbation or Disallowance, the Names of the Members of the Council so to be ap- pointed by You, as aforesaid; as also a List of the Names and Characters of Eight other Persons in Our said Province, whom You judge properly qualified to serve in that Station; to the End that, if any of the Persons appointed by You, as aforesaid, shall not be approved and confirmed by Us, under Our Signet and Sign Manual, the Place or Places of such Persons so disapproved may be forthwith supplied from the said List, or otherwise, as We shall think fit.
5. And if it shall at any time happen, that, by the Death, Departure out of Our said Province, Suspension of any of Our said Councillors, or otherwise, there shall be a Vacancy in Our said Council, Our Will and Pleasure is, that You signify the same to Our Commissioners for Trade and Plantations by the first Opportunity, that We may, under Our Sign Manual, constitute and appoint Others in their Stead; to which End, You are, whenever such Vacancy happens, to transmit to Our said Com- missioners, in order to be laid before Us, the Names of three or more Persons, Inhabitants of Our said Province, whom You shall esteem best qualified for such Trust.
6. But that Our Affairs may not suffer for want of a due Number of Councillors, if ever it shall happen, that there be less than Seven residing in
)ur said Province, We do hereby give and grant unto You, the said James lurray, full Power and Authority to chuse as many Persons out of the rincipal Inhabitants of Our said Province, as will make up the full Number |f the Council to be Seven, and no more; which Persons, so chosen and appointed by You, shall be, to all Intents and Purposes, Councillors in jr said Province,'»till either they shall be confirmed by Us, or, by the lomination of Others by Us, under Our Signet and Sign Manual, Our said Council shall have Seven or more Persons in it.
7. And it is Our Will and Pleasure, that You do, and You are hereby authorized and impowered to suspend and remove any of the Members jf Our said Council from sitting, voting, and assisting therein, if You shall find just Cause for so doing; (and also in like manner to suspend my of Our Lieutenant Governors of Our said Province from the Execution >f their Commands), and to appoint Others in their Stead, until Our
184 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Pleasure shall be known, It is nevertheless Our Will and Pleasure that You do not suspend or remove any of the Lieutenant Governors of Our said Province respectively, or any of the Members of Our Council, when they shall have been confirmed by Us, as aforesaid, without good and sufficient Cause, nor without the Consent of the Majority of the said Council, signified in Council, after due Examination of the Charge against such Lieutenant Governor, or Councillor, and his Answer thereunto; and in case of Sus- pension of any of them. You are to cause your Reasons for so doing, together with the Charges and Proofs against such Person, and his Answer thereunto, to be duly entered upon the Council Books, and forthwith to transmit Copies thereof to Our Commissioners for Trade and Plantations, in order to be laid before Us; nevertheless if it should happen, that You should have Reasons for suspending any of the said Persons, not fit to be com- municated to the Council, You may in that Case suspend such person without the Consent of said Council; but You are thereupon immediately to send to Our Commissioners for Trade and Plantations, in order to be laid before Us, an Account of your Proceedings therein, together with your Reasons at large for such Suspension, as also your Reasons at large for not communicating the same to the Council; and Duplicates thereof by the next Opportunity.
8. Whereas We are sensible, that effectual Care ought to be taken to oblige the Members of the Council to a due Attendance therein, in order to prevent the many Inconveniencies that may happen from the Want of a Quorum of the Council, to transact Business as Occasion may require; It is Our Will and Pleasure, that if any of the Members of Our said Council shall hereafter absent themselves from the said Province, and continue absent above the Space of six Months together, without Leave from You, or from Our Commander in Chief of Our said Province for the time being, first obtained under your or his hand and seal; or shall remain absent for the Space of one Year, without Our Leave given them under Our Royal Signet and Sign Manual, their Place or Places in the said Council shall immediately thereupon become Void; and that, if any of the Members of Our said Council, then residing in the Province under your Government, shall hereafter wilfully absent themselves, when duly summoned, without a just and lawful Cause, and shall persist therein after Admonition, You suspend the said Councillors so absenting themselves, till Our further Pleasure be known, giving Us timely Notice thereof: And We do hereby will and require You, that this Our Royal Pleasure be signified to the several Members of Our Council aforesaid, and entered in the Council Books of the Province under your Government, as a standing Rule —
9. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite; as likewise all such others, from time to time, as You shall find convenient for Our Service to be imparted to them.
CONSTITUTIONAL DOCUMENTS 18S
SESSIONAL PAPER No. 18
10. You are to permit the Members of Our said Council to have and enjoy Freedom of Debate and Vote, in all Affairs of public Concern that may be debated in Council.
11. And whereas it is directed, by Our Commission to You under Our great Seal, that so soon as the Situation and Circumstances of Our said Province will admit thereof, You shall, with the Advice of Our Council, summon and call a General Assembly of the Freeholders in Our said Province ; You are therefore, as soon as the more pressing Affairs of Government will allow to give all possible attention to the carrying this important Object into Execution: But, as it may be impracticable for the present to form such an Establishment, You are in the mean time to make such Rules and Regulations, by the Advice of Our said Council, as shall appear to be necessary for the Peace, Order and good Government of Our said Province, taking Care that nothing be passed or done, that shall any ways tend to affect the Life, Limb or Liberty of the Subject, or to the im- posing any Duties or Taxes; and that all such Rules and Regulations be transmitted to Us, by the first Opportunity after they are passed and made, for Our Approbation or Disallowance. And it is Our Will and Pleasure, that when an Assembly shall have been summoned and met, in such manner as You, in your Discretion, shall think most proper, or as shall be hereafter directed and appointed, the following Regulations be carefully observed in the framing and passing all such Laws, Statutes and Ordinances, as are to be passed by You, with the Advice and Consent of Our said Council and Assembly; Viz*
That the Style of Enacting the said Laws, Statutes and Ordinances be by the Governor, Council, and Assembly, and no other; —
That each different Matter be provided for by a different Law, without including in one and the same Act such Things as have no proper Relation to each other; —
That no Clause be inserted in any Act or Ordinance, which shall be foreign to what the Title of it imports; and that no perpetual Clause be part of any temporary Law; —
That no Law or Ordinance whatever be suspended, altered, continued, revived, or repealed by general Words; but that the Title and Date of such Law or Ordinance be particularly mentioned in the enacting part; —
That no Law or Ordinance, respecting private Property, be passed without a Clause suspending it's Execution, until Our Royal Will and Pleasure is known; nor without a Saving of the Right of Us, Our Heirs and Successors, and of all Bodies politic and corporate, and of all other Persons, except such as are mentioned in the said Law or Ordinance, and those claiming by, from, and under them; and before such Law or Ordinance is passed. Proof must be made before You, in Council, and entered in the Council Books, that public Notification was made of the Party's Intention to apply for such Act in the several Parish Churches, where the Lands in Question lie, for three Sundays at least successively
18 6 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
before any such Law or Ordinance shall be proposed ; and You are to transmit, and annex to the said Law, or Ordinance, a Certificate under your hand, that the same passed through all the Forms abovementioned ; —
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, or Ordinance shall be directed; and that a Clause be inserted, de- claring, that the Money arising by the Operation of the said Law, or Ordi- nance shall be accounted for unto Us in this Kingdom, and to Our Com- missioners of Our Treasury, or Our High Treasurer for the time being, and audited by Our Auditor General of Our Plantations, or his Deputy; —
That all such Laws, Statutes and Ordinances be transmitted by You within three Months after their passing, or sooner, if Opportunity offers, to Our Commissioners for Trade and Plantations; that they be fairly abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is intro- ductive of 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 enacting such Laws, or Ordinances, together with fair Copies of the Journals of the Proceedings of the Council and As- sembly, which You are to require from the Clerks of the said Council and Assembly.
12. And to the end that nothing may be passed or done to the Prejudice of the true Interests of this Our Kingdom, the just Rights of Us, Our Heirs and Successors, or the Property of Our Subjects; it is Our express Will and Pleasure, that no Law whatever, which shall in any wise tend to affect the Commerce or Shipping of this Kingdom, or which shall any ways relate to the Rights and Prerogative of Our Crown, or the Property of Our Subjects, or which shall be of an unusual or extraordinary Nature, be finally ratified and assented to by You, until You shall have first trans- mitted a Draught of such Law, and shall have received Our Directions thereupon, unless You take care, that a Clause be inserted, suspending and deferring the Execution thereof, until Our Pleasure is known concerning the same.
13. And whereas Laws have formerly been enacted in several of Our Plantations in America for so short a time, that Our Royal Assent or Re- fusal thereof could not be had before the Time, for which such Laws were enacted, did expire; You shall not give your Assent to any Law, that shall be enacted for a less Time than two Years, except in Cases of imminent Necessity, or immediate temporary Expediency; and You shall not reenact any Law, to which Our Assent shall have been once refused, without express Leave for that purpose first obtained from Us, upon a full Repre- sentation by You to be made to Our Commissioners for Trade and Planta- tions, in order to be laid before Us, of the Reasons and Necessity for passing
CONSTITUTIONAL DOCUMENTS 187
SESSIONAL PAPER No. 18
such Law; nor give your Assent to any Law for repealing any other Law, which shall have passed in your Government, and shall have received Our Royal Approbation, unless You take Care that there be a Clause inserted therein, suspending and deferring the Execution thereof, until Our Pleasure shall be known concerning the same.
14. And We do particularly require You to take Care, that fair Books of Accounts of all Receipts and Payments of all Publick Money be duly kept, and the Truth thereof attested upon Oath ; and that all such Accounts be audited, and attested by Our Auditor General of Our Plantations, or his Deputy, who is to transmit Copies thereof to Our Commissioners of Our Treasury, or to Our High Treasurer, for the time being; and that You do, every half Year or oftener, send another Copy thereof, attested by yourself, to Our Commissioners for Trade and Plantations, and Dupli- cates thereof by the next Conveyance; in which Books shall be specified every particular Sum raised or disposed of, together with the Names of the Persons to whom any Payment shall be made; to the end We may be satisfied of the right and due Application of the Revenue of Our said Province, with the Probability of the Increase or Diminution of it under every Head and Article thereof.
15. And whereas the Members of several Assemblies in the Plantations have frequently assumed to themselves Privileges no ways belonging to them, especially of being protected from Suits at Law during the Term they remain of the Assembly, to the great Prejudice of their Creditors and the Obstruction of Justice; and some Assemblies have presumed to adjourn themselves at Pleasure, without Leave from Our Governor first obtained; and Others have taken upon them the sole framing of Money Bills, refusing to let the Council alter or amend the same; all which Practices are very detrimental to Our Prerogative; If therefore You find, that the Members of the Assembly of Our Province of Quebec insist upon any of the said Privileges, You are to signify to them that it is Our express Will and Pleasure, that You do not allow any Protection to any Member af the Council or Assembly, further than in their Persons, and that only during the Sitting of the Assembly; and that You do not allow them to adjourn themselves otherwise than de die in diem, except Sundays and Holy-days, without Leave from You, or the Commander in Chief for the time being, first obtained; It is also Our further Pleasure, that the Council have the like Power of framing Money Bills as the Assembly.
16. And whereas by Our aforesaid Commission under Our Great Seal of Great Britain, You are authorized and impowered, with the Advice and Con- sent of Our Council, to constitute and appoint Courts of Judicature and Justice; it is therefore Our Will and Pleasure, that You do, as soon as possible, apply your Attention to these great and important Objects; and that, in forming the necessary Establishments for this purpose. You do consider what has taken place in this respect in Our other Colonies in America, more particularly in Our Colony of Nova Scotia.
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17. And whereas it is for the Ease, Satisfaction and Benefit of all Our Subjects, that Appeals should be allowed, in all Civil Causes, from the Courts in Our Plantations ; it is therefore Our Will and Pleasure, that, when the several Courts and Offices necessary for the Administration of Justice shall have been settled, appointed and confirmed, in Consequence of the Power vested in You by Our Commission under Our Great Seal and by these Our Instructions, You do, as near as different Circumstances will admit, conform yourself to the Regulations prescribed in the Instructions given to Our Governor of Nova Scotia in respect to such Appeals, Copies of which Instructions are hereunto annexed.
18. You are, with the Advice and Consent of Our Council in the Province under your Government, to take especial Care to regulate all Salaries and Fees belonging to Places, or paid upon Emergencies, that they be within the Bounds of Moderation, and that no Exaction be made on any Occasion whatsoever; as also that Tables of all Fees be publickly hung up in all Places where such Fees are to be paid ; and You are to transmit Copies of all such Tables of Fees to Our Commissioners for Trade and Plantations, in order to be laid before Us.
19. It is Our express Will and Pleasure , that You do, by the first Opportunity, and with all convenient Speed, transmit unto Us, by Our Commissioners for Trade and Plantations, authentic Copies of all Acts, Orders, Grants, Commissions or other Powers, by Virtue of which any Courts, Offices, Jurisdictions, Pleas, Authorities, Fees and Privileges have been settled or established, for Our Confirmation or Disallowance; and in case all or any of them shall, at any time or times, be disallowed and not approved, then such and so many as shall be so disallowed and not approved, and so signified by Us, shall cease, determine, and be no longer continued or put in Practice.
20. You shall not appoint any Person to be a Judge or Justice of the Peace, without the Advice and Consent of the Majority of the Members of Our Council, present in Council; nor shall You execute yourself, or by Deputy, any of the said Offices; and it is Our further Will and Pleasure, that all Commissions, to be granted by You, to any Person or Persons to be Judges or Justices of the Peace, or other necessary Officers, be granted during Pleasure only.
21. You shall not displace any of the Judges, Justices of Peace, or other Officers or Ministers, without good and sufficient Cause, which You shall signify in the fullest and most distinct manner to Our Commissioners for Trade and Plantations, in order to be laid before Us, by the first Oppor- tunity after such Removals.
22. And whereas frequent Complaints have heretofore been made of great Delays and undue Proceedings in the Courts of Justice in several of Our Plantations, whereby many of Our good Subjects have very much suffered; and it being of the greatest Importance to Our Service, and to the Welfare of Our Plantations, that Justice be every where speedily and duly
CONSTITUTIONAL DOCUMENTS 189
SESSIONAL PAPER No. 18
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 author- ized to preside. Justice be impartially administered; and that in all other Courts, established within Our said Province, all Judges, and other Persons therein concerned, do likewise perform their several Duties without any Delay or Partiality.
23. You are to take Care, that all Writs be issued in Our Name through- out the Province under your Government.
24. Whereas there are several Offices in Our Plantations granted under the Great Seal of Great Britain, and Our Service may be very much preju- diced by reason of the Absence of the Patentees, and by their appointing Deputies not fit to officiate in their Stead; You are therefore to inspect such of the said Offices as are in the Province under your Government, and to enquire into the Capacity and Behaviour of the Persons exercising them, and to report thereupon, to Our Commissioners for Trade and Plantations, what you think fit to be done or altered in relation thereunto; and you are, upon the Misbehaviour of any of the said Patentees or their Deputies, to suspend them from the Execution of their Office, till you shall have repre- sented the whole Matter unto Us, and received Our Directions therein; And in case of the Death of any such Deputy, it is Our express Will and Pleasure, that You take Care that the Person appointed to execute the Place, until the Patentee can be informed thereof and appoint another Deputy, do give sufficient Security to the Patentee, or, in case of Suspension, to the Person suspended, to be answerable to. him for the Profits accruing during such Interval by Death, or during such Suspension, in case We shall think fit to restore the Person suspended to his Place again. It is neverthe- less Our Will and Pleasure, that the Person executing the Place during such Interval by Death or Suspension, shall, for his Encouragement, receive the same Profits as the Person dead, or suspended did receive; And it is Our further Will and Pleasure, that, in case of a Suspension of a Patentee, the Person appointed by you to exercise the Office during such Suspension, shall receive a Moiety of the Profits which would otherwise become due to such Patentee, giving Security to such Patentee to be answerable to him for the other Moiety, in case We shall think fit to restore him to his Office again; And it is Our further Will and Pleasure, that you do countenance and give all due Encouragement to all Our Patent Officers in the Enjoyment af their legal and accustomed Fees, Rights, Privileges and Emoluments, occording to the'true Intent and Meaning of their Patents.
25. You shall not, by Colour of any Power or Authority hereby or otherwise granted, or mentioned to be granted unto you, take upon you to give, grant or dispose of any Office or Place within Our said Province, which now is or shall be granted under the Great Seal of this Kingdom, or to which any Person is or shall be appointed by Warrant under Our Signet and Sign Manual, any further than that you may, upon the Vacancy of any such
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Office or Place, or upon the Suspension of any such Officer by You, as afore- said, put in any fit Person to officiate in the Interval, till you shall have represented the Matter unto Our Commissioners for Trade and Plantations, in order to be laid before Us, as aforesaid, (which You are to do by the first Opportunity,) and till the said Office or Place be disposed of by Us, Our Heirs or Successors, under the Great Seal of this Kingdom, or until some Person shall be appointed thereto by Warrant under Our Signet and Sign Manual, or Our further Directions be given therein.
26. And whereas several Complaints have been made by the Surveyor General, and other Officers of Our Customs in Our Plantations in America, that they have frequently been obliged to serve as Jurors, and personally to appear in Arms whenever the Militia is drawn out, and thereby are much hindered in the Execution of their Employments; Our Will and Pleasure is, that You take effectual Care, and give the necessary Directions, that the several Officers of Our Customs be excused and exempted from serving on any Juries, or personally appearing in Arms in the Militia, unless in case of absolute Necessity, or serving any parochial Offices, which may hinder them in the Execution of their Duty.
27. And whereas the Surveyor General of Our Customs in the Planta- tions are impowered, in case of the Vacancy of any of Our Offices of the Customs by Death, Removal, or otherwise, to appoint other Persons to execute such Offices, until they receive Directions from Our Commissioners of the Treasury, or Our High Treasurer, or Commissioners of Our Customs, for the time being; but in regard the Districts of Our said Surveyors General are very extensive, and that they are required at proper times to visit the Officers in the several Governments under their Inspection; and that it might happen that some of the Officers of Our Customs in the Province under your Government may die, at the Time when the Surveyor General is absent in some distant Part of his District, so that he cannot receive Advice of such Officer's Death within a reasonable Time, and thereby make Provision for carrying on the Service, by appointing some other Person in the room of such Officer who may happen to die ; therefore, that there be no Delay given on such Occasion to the Masters of Ships or Merchants in their Dispatches, it is Our further Will and Pleasure, in case of such Absence of the Surveyor General, or if he should happen to die, and in such Cases only, that, upon the Death of any Collector of Our Customs within Our said Province, You, or, in your Absence, our Lieutenant Governor or Com- mander in Chief, shall make Choice of a Person of known Loyalty, Experi- ence, Diligence and Fidelity, to be Employed in such Collector's room, for the Purposes aforesaid, until the Surveyor General of Our Customs shall be advised thereof, and appoint another to succeed in such Place, and that further Directions shall be given therein by Our Commissioners of Our Treasury, or Our High Treasurer, or by the Commissioners of Our Customs, for the time being, which shall be first signified; taking care that You do not, under any Pretence of this Instruction, interfere with the
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Powers and Authorities given by the Commissioners of Our Customs to the said Surveyors General, when they are able to put the same in Execution.
28. And whereas We have stipulated, by the late Definitive Treaty of/ Peace concluded at Paris the 10th Day of February 1763, to grant the Liberty' of the Catholick Religion to the Inhabitants of Canada, and that We will consequently give the most precise and most effectual Orders, that Our new Roman Catholick Subjects in that Province may profess the Worship of their Religion, according to the Rites of the Romish Church, as far as the Laws of Great Britain permit; It is therefore Our Will and Pleasure, that you do, in all things regarding the said Inhabitants, conform with great Exactness to the Stipulations of the said Treaty in this respect.
29. You are, as soon as possible, to summon the Inhabitants to meet together, at such Time or Times, Place or Places, as you shall find most convenient, in order to take the Oath of Allegiance, and make and subscribe the Declaration of Abjuration mentioned in the aforesaid Act passed in the first Year of the Reign of King George the First, 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 extin- guishing the Hopes of the pretended Prince of Wales, and his open and secret Abettors; which Oath shall be administered to them by such Person or Persons as you shall commissionate for such. Purpose; and in case any of the said French Inhabitants shall refuse to take the said Oath, and make and subscribe the Declaration of Abjuration, as aforesaid. You are to cause them forthwith to depart out of Our said Government.
30. And it is Our further Will and Pleasure, that all such Inhabitants, professing the Religion of the Romish Church, do, at all such Meetings, or at 1 such other Time or Times as You shall think proper, and in the Manner you I shall think least alarming and inconvenient to the said Inhabitants, deliver ' in upon Oath an exact Account of all Arms and Ammunition, of every Sort in their actual Possession, and so, from time to time, of what they shall receive into their Possession, as aforesaid.
31. You are as soon as possible to transmit to Us, by Our Commissioners for Trade and Plantations, an exact and particular Account of the Nature and Constitution of the several Religious Communities of the Romish Church, their Rights, Claims, Privileges and Property, and also the Number, Situation and Revenue of the several Churches heretofore established in Our said Province, together with the Number of Priests or Curates officiating in such Churches.
32. You are not to admit of any Ecclesiastical Jurisdiction of the See ) of Rome, or any other foreign Ecclesiastical Jurisdiction whatsoever in the [ Province under your Government.
33. And to the End that the Church of England may be established both in Principles and Practice, and that the said Inhabitants may by De- grees be induced to embrace the Protestant Religion, and their Children be brought up in the Principles of it; We do hereby declare ittobeOur Intention,
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when the said Province shall have been accurately surveyed, and divided into Townships, Districts, Precincts or Parishes, in such manner as shall be hereinafter directed, all possible Encouragement shall be given to the erecting Protestant Schools in the said Districts, Townships and Precincts, by set- tling, appointing and allotting proper Quantities of Land for that Purpose, and also for a Glebe and Maintenance for a Protestant Minister and Pro- testant School-Masters; and you are to consider and report to Us, by Our Commissioners for Trade and Plantations, by what other Means the Pro- testant Religion may be promoted, established and encouraged in Our Province under your Government.
34. And You are to take especial Care, that God Almighty be devoutly and duly served throughout your Government, the Book of Common Prayer, as by Law established, read each Sunday and Holyday, and the blessed Sacrament administered according to the Rites of the Church of England.
35. You are not to prefer any Protestant Minister to any Ecclesiastical Benefice in the Province under your Government, withouta Certificate from the Right Reverend Father in God the Lord Bishop of London, of his being conformable to the Doctrine and Discipline of the Church of England, and of a good Life and Conversation; And if any Person hereafter preferred to a Benefice shall appear to you to give Scandal, either by his Doctrine or Man- ners, you are to use the best Means for his Removal.
36. You are to give Orders forthwith, that every Orthodox Minister within your Government be one of the Vestry in his respective Parish, and that no Vestry be held without him, except in case of Sickness, or, after Notice of a Vestry summoned, he omit to come.
37. And to the End that the Ecclesiastical Jurisdiction of the Lord Bishop of London may take place in Our Province under your Government, as far as conveniently may be. We do think fit, that You give all Counte- nance and Encouragement to the Exercise of the same, excepting only the collating to Benefices, granting Licences for Marriage, and Probates of Wills, which We have reserved to You, Our Governor, and to the Com- mander in Chief of Our said Province for the Time being.
38. And We do further direct, that no Schoolmaster, who shall arrive in Our said Province from this Kingdom, be henceforward permitted to keep School, without the Licence of the said Lord Bishop of London; and that no other Person now there, or that shall come from other Parts, shall be admitted to keep School in your Government, without your Licence first obtained.
39. And You are to take especial Care, that a Table of Marriages, established by the Canons of the Church of England, be hung up in all Places of publick Worship, according to the Rites of the Church of England.
40. And it is Our further Will and Pleasure, that, in order to suppress, as much as in you lies, every Species of Vice and Immorality, You forthwith, do cause all Laws already made against Blasphemy, Profaneness, Adultery, Fornication, Polygamy, Incest, Profanation of the Lord's Day, Swearing
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and Drunkenness, to be vigorously put in Execution in every part of your Government; And that you take due Care for the Punishment of these, and every other Vice and Immorality, by Presentment upon Oath to be made to the Temporal Courts, by the Church Wardens of the several Parishes, at proper Times of the year to be appointed for that Purpose; and, for the further Discouragement of Vice, and Encouragement of Virtue and good living, (that by such Examples the Infidels may be invited and persuaded to embrace the Christian Religion), You are not to admit any Persons to publick Trusts and Employments in the Province under your Government, whose Ill-Fame and Conversation may occasion Scandal.
41. And whereas it is stipulated by the aforesaid Treaty concluded at Paris the 10"" Day of February 1763, that the French Inhabitants, or Others, who have been Subjects of the Most Christian King in Canada, may retire with all Freedom and Safety wherever they shall think proper, and may sell their Estates, provided it be to Our Subjects, and bring away their Effects, as well as their Persons, without being restrained in their Emigration under any Pretence whatsoever, except that of Debts, or criminal Prosecu- tion, and that the Time limited for the Emigration shall be fixed to the Space of Eighteen Months, to be computed from the Day of the Exchange of the Ratifications of the Treaty; You are therefore in all things to conform your- self to this Stipulation, and to take care, that sucTi of the French Inhabitants as intend to remove within the Time limited, be not obstructed or impeded, provided they, do not sell their Estates to Others than His Majesty's Sub- jects, and that, so long as they remain under your Government, they do in all things conform thereto in like manner as Our other Subjects.
42. And it is Our further Will and Pleasure, that all and every the French Inhabitants in Our said Province, who are now possessed of Lands within the said Province, in Virtue of Grants or Concessions made before the signing of the Preliminary Articles of Peace on the third Day of Novem- ber 1762; do, within such limited Time as you in your Discretion shall think fit, register the several Grants, or other Deeds or Titles, by which they hold or claim such Lands, in the Secretary's Office; which said Grants, Deeds or other Titles, shall be entered at large in the said Office, so that the particular Quantity of Land, it's Site and Extent, the Conditions upon which it is granted, either as to Rents, Services, or Cultivation, may appear fully and at length.
43. And in case it shall appear, upon a strict and accurate Examina- tion of the said Grants and Title Deeds, to be taken in such manner as You shall think proper, that any of the Grantees, or Persons claiming Lands under such Grants and Title Deeds, are in Possession of more Land than is contained within such Grants or other Concessions; or that the Terms and Conditions, upon which the Lands were granted, have not been complied with, agreeable to what is stipulated in such Grants or Con- cessions; It is Our Will and Pleasure, that you forthwith represent the same to Us, by Our Commissioners for Trade and Plantations, to the End
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that you may receive such Directions thereupon, as the Nature and Cir- cumstances of the Case shall appear to require.
44. And whereas i t is necessary, in order to the advantageous and effectual Settlement of Our said Province, that the true State of it should be fully known; You are therefore, as soon as conveniently may be, to cause an accurate Survey to be made of the said Province by such able and skilful Person as is or shall be appointed for that Service, who is to report to you in writing, for your Judgment in the Measures which you may in general pursue for the making of Settlements, not only the Nature and Quality of the Soil and Climate, the Rivers, Bays and Harbours, and every other Circumstance attending the natural State of it; but also his opinion, in what manner it may be most conveniently laid out into Counties, and to annex to his Report a Map of such Survey, with the several Divisions proposed marked upon it: But as the Making such Survey will be a Work of great Length, You are in the meantime to carry on Settlements upon that Plan, which shall appear to you to be most expedient from the best Information You can collect.
45. And whereas it has been found by Experience, that the settling Planters in Townships hath .very much redounded to their Advantage, not only with respect to the Assistance they have been able to afford Each other in their civil Concerns, but likewise with regard to the Security they have thereby acquired against the Insults and Incursions of neigh- bouring Indians, or other Enemies; You are therefore to lay out Townships of a convenient Size and Extent in such Places, as you, in your Discretion, shall judge most proper. And it is Our Will and Pleasure, that each Township do consist of about Twenty Thousand Acres, having, as far as may be, natural Boundaries extending up into the Country, and compre- hending a necessary Part of the River of S' Lawrence, where it can be con- veniently had.
46. You are also to cause a proper Place in the most convenient Part of each Township, to be marked out for building a Town sufficient to contain such a Number of Families as you shall judge proper to settle there, with Town and pasture Lots convenient to each Tenement, taking Care, that the said Town be laid out upon, or, as near as conveniently may be, to some navigable River, or the Sea Coast; And you are also to reserve to Us proper Quantities of Land in each Township for the following Purposes, viz.; For erecting Fortifications, and Barracks, where necessary, or for other military or naval Services, and more particularly for the Growth and Production of Naval Timber, if there are any Wood-Lands fit for that Purpose.
47. And it is Our further Will and Pleasure, that a particular Spot, in, or as near each Town as possible, be set apart for the building a Church, and four Hundred Acres adjacent thereto allotted for the Maintenance of a Minister, and two Hundred for a Schoolmaster.
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48. And you are to give strict Orders to the Surveyors, whom you shall employ to mark out the said Townships and Towns, to make Returns to you of their Surveys as soon as possible, with a particular Description of each Township, and the Nature of the Soil within the same.
49. And You are to oblige all such Persons as shall be appointed to be Surveyors of the said Lands in each Township, to take an Oath for the due Performance of their Offices, and for obliging them to make exact Surveys of all Lands required to be set out.
50. And whereas nothing can more effectually tend to the speedy settling Our said Colony, the Security of the Property of Our Subjects, and the Advancement of Our Revenue, than the disposing of such Lands as are Our Property upon reasonable Terms, and the establishing a regular and proper Method of proceeding with respect to the passing of Grants of such Land; It is therefore our Will and Pleasure, that all and every Person and Persons, who shall apply to You for any Grant or Grants of Land, shall, previous to their obtaining the same, make it appear before you in Council, that they are in a Condition to cultivate aud improve the same, by settling thereon, in Proportion to the Quantity of Acres desired, a sufficient Number of White Persons and Negroes; And in case you shall, upon a Consideration of the Circumstances of the Person or Persons applying for such Grants, think it adviseable to pass the same, in such Case You are to cause a Warrant to be drawn up, directed to the Sur- veyor General, or other proper Officers, impowering him or them to make a faithful and exact Survey of the Lands so petitioned for, and to return the said Warrant within six Months at furthest from the Date thereof, w th a Plot or Description of the Lands so surveyed thereunto annexed ; Provided that you do take Care, that before any such Warrant is issued, as aforesaid, a Docquet thereof be entered in the Auditor's and Register's Office: And when the Warrant shall be returned by the said Surveyor, or other proper Officer, the Grant shall be made out in due Form, and the Terms and Conditions required by these Our Instructions be particularly and expressly mentioned in the respective Grants. And it is Our Will and Pleasure, that the said Grants shall be registered within six Months from the Date tliereof in the Register's Office there, and a Docquet thereof be also entered in Our Auditor's Office there, in Case such Establishment shall take Place in Our said Province, or that, in Default thereof, such Grant shall be void; Copies of all which Entries shall be returned regularly, by the proper Officer, to Our Commissioners of Our Treasury and to Our Commissioners for Trade and Plantations, within six Months from the Date thereof.
5L And whereas great Inconveniences have arisen in many of Our Colonies in America from the granting excessive Quantities of Land to particular Persons, who have never cultivated or settled it, and have thereby prevented Others more industrious from improving the same; in order there- fore to prevent the like Inconveniences for the future. You are to take
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especial Care, that in all Grants to be made by you, by and with the Advice and Consent of Our Council, to Persons applying for the same, the Quantity be in Proportion to their Ability to cultivate; And you are hereby directed to observe the following Directions and Regulations in all Grants to be made by you; Viz'
That one hundred Acres of Land be granted to every Person being Master or Mistress of a Family, for himself or herself, and fifty Acres for every white or black Man, Woman or Child, of which such Person's Family shall consist, at the actual Time of making the Grant; and in case any Person applying to you for Grants of Land shall be desirous of taking up a larger Quantity than the actual Number of Persons in his or her Family would intitle such Persons to take up; it is Our Will and Pleasure, and you are hereby allowed and permitted, to grant unto every such Person or Per- sons, such further Quantity of Land as they may desire, not exceeding one Thousand Acres over and above what they are intitled to by the Number of Persons in their respective Families; — Provided it shall appear to you, that they are in a Condition and Intention to cultivate the same; and pro- vided also, that they do pay to the Receiver of Our Quit Rents, or to such other Officer as shall beappointed to receive thesame, the Sum of five Shillings only for every fifty Acres, so granted, on the Day of the Date of the Grant; —
That all Grantees be subject to the payment of two Shillings Sterling for every Hundred Acres, to commence at the Expiration of two years from the Date of such Grant, and to be paid yearly and every Year, or in Default of such payment, the Grant is to be void ; —
That every Grantee, upon giving Proof that he or she has fulfilled the Terms and Conditions of his or her Grant, shall be entitled to another Grant, in the Proportion and upon the conditions abovementioned ; —
That for every Fifty Acres of Land accounted plantable, each Patentee shall be obliged, within three years after the Date of his Patent, to clear and work three Acres at the least, in that part of his Tract which he shall judge most convenient and advantageous; or else to clear and drain three Acres of swampy or sunken Grounds, or drain three Acres of Marsh, if any such be within the Bounds of his Grant; —
That for every Fifty Acres of Land accounted barren, every Patentee shall be obliged to put and keep on his Land, within three years after the Date of his Grant, three neat Cattle; which Number he shall be obliged to continue on his Land, until three Acres for every Fifty be fully cleared and improved; —
That if any Person shall take up a Tract of Land, wherein there shall be no Part fit for present Cultivation without manuring and improving the same, every such Grantee shall be obliged, within three years from the Date of his Grant, to erect on some part of his Land one good Dwelling- House, to contain at least twenty Feet in Length, and sixteen Feet in Breadth; and also to put on his Land the like Number of three neat Cattle for every fifty Acres; —
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That if any Person, who shall take up any stony or rocky Grounds not fit for planting or pasture, shall, within three years after the passing of his Grant, begin to employ thereon, and so continue to work, for three years then next ensuing, in digging any Stone Quarry or other Mine, one good and able Hand for every hundred Acres of such Tract, it shall be accounted a sufficient Cultivation and Improvement; —
That every three Acres, which shall be cleared and worked, as aforesaid, and every three Acres, which shall be cleared and drained, as aforesaid, shall be accounted a sufficient Seating, Planting, Cultivation and Improve- ment, to save for ever from Forfeiture Fifty Acres of Land in any Part of the Tract contained within the same Patent; and the Patentee shall be at Liberty to withdraw his Stock, or to forbear working in any Quarry or Mine, in Proportion to such Cultivation and Improvement, as shall be made upon the plantable Lands, or upon the Swamps, sunken Grounds and Marshes, which shall be included in the same Patent; —
That when any Person, who shall hereafter take up and patent any Lands, shall have seated, planted and cultivated, or improved the said Land, or any part of it, according to the Directions and Conditions above- mentioned, such Patentee may make Proof of such Seating, Planting, Cultivation and Improvement in the general Court, or in the Court of the County, District or Precinct, where such Lands shall lie, and have such Proof certified to the Register's Office, and there entered with the Record of the said Patent, a Copy of which shall be admitted, on any Trial, to prove the seating and planting of such Land; —
And lastly, in order to ascertain the true Quantity of plantable and barren Land contained in each Grant hereafter to be made within Our said Province, you are to take especial Care, that, in all Surveys hereafter to be made, every Surveyor be required and enjoyned to take particular Notice, according to the best of his Judgment and Understanding, how much of the Land so surveyed is plantable, and how much of it is barren and unfit for Cultivation; and accordingly to insert in the Survey and Plott by him to be returned into the Register's Office, the true Quantity of each kind of Land.
52. And it is Our further Will and Pleasure, that in all Grants of Land to be made by You, as aforesaid, regard be had to the profitable and un- profitable Acres, so that each Grantee may have a proportionable Number of one Sort and the other; as likewise that the Breadth of each Tract of Land, to be hereafter granted, be one Third of the Length of such Tract; and that the Length of each Tract do not extend along the Banks of any River, but into the main Land, that thereby the said Grantees may have each a convenient Share of what Accommodation the said River may afford for Navigation or otherwise.
53. And whereas it hath been represented to Us, that many Parts of the Province under your Government are particularly adapted to the Growth and Culture of Hemp and Flax; It is therefore Our Will and
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Pleasure, that, in all Surveys of Land for Settlement, the Surveyor be di- rected to report, whether there is any, or what Quantity of Lands contained within such Survey, fit for the Production of Hemp and Flax; And you are to take particular Care to insert a Clause in every Grant of Land, where any part thereof is fit for such Production, obliging the Grantee annually to sow a proportionable Part of his Grant with Hemp or Flax Seed.
54. And whereas it hath been further represented to Us, that a great part of the Country in the Neighbourhood of Lake Champlain, and between that Lake and the River S' Lawrence, abounds with Woods producing Trees fit for Masting for Our Royal Navy, and other useful and necessary Timber for Naval Construction; You are therefore expressly directed and required to cause such Parts of the said Country, or any other within your Government, that shall appear upon a Survey to abound with such Trees, and shall lye convenient for Water Carriage, to be reserved to Us, and to use your utmost Endeavour to prevent any Waste being committed upon the said Tracts, by punishing in due Course of Law any Persons who shall cut down or destroy any Trees growing thereon; and you are to consider and advise with Our Council, whether some Regulation that shall prevent any Saw Mills whatever from being erected within your Government, without a Licence from you, or the Commander in Chief of Our said Province for the Time being, may not be a Means of preventing all Waste and Destruction in such Tracts of Land as shall be reserved to Us for the Purposes aforesaid.
55. And whereas it appears from the Representations of Our Governor of the District of Trois Rivieres, that the Iron Works at S' Maurice in that District are of great Consequence to Our Service; It is therefore Our further Will and Pleasure, that no part of the Lands, upon which the said Iron Works were carried on, or from which the Ore used in such Works was procured, or which shall appear to be necessary and convenient for that Establishment, either in respect to a free Passage to the River S' Lawrence, or for producing a necessary Supply of Wood, Corn and Hay, or for Pasture for Cattle, be granted to any private Person whatever; and also that as large a District of Land as conveniently may be, adjacent to and lying round the said Iron Works, over and above what may be necessary for the above Purposes, be reserved for Our Use, to be disposed of in such manner as We shall hereafter direct and appoint.
56. And whereas it is necessary, that all Persons who may be desirous of settling in Our said Province, should be fully informed of the Terms and Conditions, upon which Lands will be granted in Our said Province; You are therefore, as soon as possible, to cause a Publication to be made, by Proclamation or otherwise, as you in your Discretion shall think most adviseable, of all and every the foregoing Terms, Conditions and Regulations of every kind, respecting the Grants of Lands; in which Proclamation it may be expedient to add some short Description of the natural Advan-
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tages of the Soil, and Climate, and it's peculiar Conveniences for Trade and Navigation; and you are to take such Steps as you shall think proper for the publishing such Proclamation in all the Colonies in North America.
57. And it is Our further Will and Pleasure, that all the foregoing Instructions to you, as well as any which You may hereafter receive, relative to the Form and Method of passing Grants of Lands, and the Terms and Conditions to be annexed to such Grants, be entered upon Record, with the Grants themselves, for the Information and Satisfaction of all Parties whatever, that may be concerned therein.
58. And it is Our further Will and Pleasure, that you do consider of a proper and effectual Method of collecting, receiving and accounting for Our Quit Rents, whereby all Frauds, Concealment, Irregularity or Neglect therein may be prevented, and whereby the Receipt thereof may be effec- tually checked and controlled; And if it shall appear necessary to pass an Act for the more effectually ascertaining, and the more speedily and regularly collecting Our Quit Rents, you are to prepare the Heads of such a Bill, as you shall think may most effectually conduce to the procuring the good Ends proposed, and to transmit the same to Our Commissioners for Trade and Plantations, in order to be laid before Us for Our further Directions therein.
59. And it is Our further Will and PleasurCj that the Surveyor General, or such other Person or Persons as you shall think proper to appoint, do, once in every year or oftener as Occasion shall require, inspect the State of all Grants of Lands made by you, and make report thereof to you in Writing, specifying whether the Conditions therein contained have or have not been complied with, or what Progress has been made towards fulfilling the same; and you are annually to transmit Copies of such Reports to Our Commissioners for Trade and Plantations. •-''
60. And whereas Our Province of Quebec is in part inhabited and possessed by several Nations and Tribes of Indians, with whom it is both necessary and expedient to cultivate and maintain a strict Friendship and good Correspondence, so that they may be induced by Degrees, not only to be good Neighbours to Our Subjects, but likewise themselves to become good Subjects to Us; You are therefore, as soon as you con- veniently can, to appoint a proper Person or Persons to assemble, and treat with the said Indians, promising and assuring them of Protection and Friend- ship on Our part, and delivering them such Presents, as shall be sent to you for that purpose.
61. And you are to inform yourself with the greatest Exactness of the Number, Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of their Lives, and the Rules and Constitutions, by which they are governed or regulated. And You are upon no Account to molest or disturb them in the Possession of such Parts of the said Province, as they at present occupy or possess; but to use the best means You can for conciliating their Affections, and uniting them to Our Government,
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reporting to Us, by Our Commissioners for Trade and Plantations, whatever Information you can collect with respect to these People, and the whole of your Proceedings with them.
62. Whereas We have, by Our Proclamation dated the seventh day of October in the Third year of Our Reign, strictly forbid, on pain of Our Displeasure, all Our Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands reserved to the several Nations of Indians, with whom We are connected, and who live under Our Protection, without Our especial Leave for that Purpose first obtained; It is Our express Will and Pleasure, that you take the most effectual Care that Our Royal Directions herein be punctually complied with, and that the Trade with such of the said Indians as depend upon your Government be carried on in the Manner, and under the Regulations prescribed in Our said Proclamation.
63. You are to use your best Endeavours in improving the Trade of those Parts, by settling such Orders and Regulations therein, with the Advice of Our said Council, as may be most acceptable to the Generality of the Inhabitants. And it is Our express Will and Pleasure, that you do not, upon any Pretence whatever, upon pain of Our highest Displeasure, give your Assent to any Law or Laws for setting up any Manufactures and carrying on any Trades, which are hurtful and prejudicial to this King- dom; and that You do use your utmost Endeavours to discourage, dis- countenance and restrain any Attempts which may be made to set up such Manufactures, or establish any such Trades.
64. Whereas by the S"" and 6"' Articles of the Treaty of Peace and Neutrality in America,* concluded between England and France the 6**^ 16 Day of November 1686, the Subjects and Inhabitants of each Kingdom are prohibited to trade and fish in all Places possessed, or which shall be possessed by the other in America; and if any Ships shall be found trading contrary to the said Treaty, upon due Proof the said Ships shall be con- fiscated; but in case the subjects of either King shall be forced by Stress of Weather, Enemies, or other Necessity into the Ports of the other in America, they shall be treated with Humanity and Kindness, and may provide themselves with Victuals, and other Things necessary for their Sustenance, and the Reparation of their Ships, at reasonable Rates; pro- vided they do not break bulk, nor carry any Goods out of their Ships, exposing them to Sale, nor receive any Merchandize on board, under Penalty of Confiscation of Ship and Goods; It is therefore Our Will and Plea- sure, that You signify to Our Subjects under your Government the Purport and Intent of the abovesaid two Articles; and that you take particular Care, that none of the French Subjects be allowed to trade from their said Settlements to the Province under your Government, or to fish upon the Coast thereof. '
• This Treaty of London, had reference only to the dominions of the two Crowns in America- It is given in full in Collection de Documents Relatifs d VHistoire de la Nouvelle-France. Vol. !■ p. 372.
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65. And it is Our Will and Pleasure, that You do not dispose of any Forfeitures or Escheats to any Person, until the Sheriff, or other proper Officer, have made Enquiry, by a Jury upon their Oaths, into the true Value thereof, nor until you have transmitted to Our Commissioners of Our Treasury, and to Our Commissioners for Trade and Plantations, a particular Account of such Forfeitures and Escheats, and the Value thereof. And you are to take Care, that the Produce of such Forfeitures and Escheats, in case We shall think proper to give You Directions to dis- pose of the same, be duly paid to Our Treasurer or Receiver General of Our said Province, and a full Account transmitted to Our Commissioners of Our Treasury, or Our High Treasurer for the Time being, and to Our Commissioners for Trade and Plantations, with the Names of the Persons to whom disposed.
66. And whereas Commissions have been granted unto several Persons in Our respective Plantations in America for the trying of Pirates in those Parts, pursuant to the Acts for the more effectual Suppression of Piracy; and by a Commission already sent to Our Province of New York, Our Governor there is impowered, together with Others therein mentioned, to proceed accordingly in Reference to Our said Province; Our Will and Pleasure is, that you do use your best Endeavours to apprehend all Persons whatever who may have been guilty of Piracy within your Government, or who having committed such Crimes at other Places, may come within your Jurisdiction; and until We shall think proper to direct the like Com- mission to be established for Our Government of Quebec, You are to send such Pirates, with what Proofs of their Guilt You can procure or collect, to Our Governor of New York to be tried and punished under the Authority of the Commission established for those Parts.
67. And whereas you will receive from Our Commissioners for exe- cuting the Office of High Admiral of Great Britain and of Our Plantations, a Commission constituting you Vice Admiral of Our said-' Province; You are hereby required and directed carefully to put into Execution the several Powers thereby granted to you.
68. Whereas great Inconveniences have happened heretofore by Mer- chant Ships and other Vessels in the Plantations wearing the Colours borne by Our Ships of War, under Pretence of Commissions granted to them by the Governors of the said Plantations, and, by trading under those Colours, not only amongst Our own Subjects, but also those of other Princes and States, and committing divers Irregularitys, they may very much dishonor Our Service; For preventing thereof You are to oblige the Commanders of all such Ships, to which you shall grant Commissions, to wear no other Colours than such as are described in an Order of Council of the seventh of January 1730, in relation to Colours to be worn by all Ships and Vessels, except Our Ships of War.
69. And whereas there have been great Irregularitys in the manner of granting Commissions in the Plantations to private Ships of War, You
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are to govern yourself, whenever there shall be Occasion, according to the Commissions and Instructions granted in this Kingdom; But you are not to grant Commissions of Marque or Reprizal against any Prince or State, or their Subjects, in Amity with Us, to any Person whatsoever, without Our special Command.
70. Whereas We have been informed that, during the time of War, Our Enemies have frequently got Intelligence of the State of Our Plantations by Letters from private Persons to their Correspondents in Great Britain, taken on board Ships coming from the Plantations, which has been of dangerous Consequence; Our Will and Pleasure therefore is, that you signify to all Merchants, Planters and Others, that they be very cautious, in time of War, whenever that shall happen, in giving any Accounts by Letters of the public State and Condition of Our Province under your Government; And you are further to give Directions to all Masters of Ships, or other Persons to whom you may entrust your Letters, that they put such Letters into a Bag, with a sufficient weight to sink the same im- mediately in Case of imminent danger from the Enemy; And you are also to let the Merchants and Planters know, how greatly it is for their Interest that their Letters should not fall into the Hands of the Enemy, and therefore that they should give like Orders to Masters of Ships in relation to their Letters; And you are further to advise all Masters of Ships, that they do sink all Letters, in case of Danger, in the Manner before mentioned.
7L And whereas, in Time of War, the Merchants and Planters in Our Plantations in America did correspond and trade with Our Enemies, and carry Intelligence to them, to the great Prejudice and Hazard of Our said Plantations; You are therefore by all possible Methods to endeavour to hinder such Trade and Correspondence in Time of War.
72. And You are to report to Us, by Our Commissioners for Trade and Plantations, —
What is the Nature of the Soil and Climate of the Province under your Government. If it differs in these Circumstances from Our other Northern Colonies, in what that Difference consists ? And what beneficial Articles of Commerce the different Parts of it are capable of producing ?
What Rivers there are, and of what Extent and Convenience to the Planters ?
What are the principal Harbours; how situated, of what Extent; and what is the Depth of Water, and Nature of the Anchorage in each of them ?
What Quantity of Land is now under actual Improvement and Settle- ment ? What are the chief Articles of Produce and Culture; the annual amount of the Quantity of each; and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation, Rent, or Personal Service ?
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What is the Quantity, Nature and Property of the Land uncultivated ; how much of it is capable of Culture; and what part thereof is private Property ?
What is the Number of Inhabitants, Whites and Blacks, distinguishing each ? What Number of the Former is capable of bearing Arms, and what Number of the Latter is annually necessary to be supply'd in proportion to the Land cultivated ?
What was the Nature, Form and Constitution of the Civil Govern- ment; what Judicatures were there established, and under what Regula- tions did the French Inhabitants carry on their Commerce ?
73. You are from time to time to send unto Us, by Our Commissioners for Trade and Plantations, as aforesaid, an Account of the Increase and Decrease of the Inhabitants, Whites and Blacks, and also an Account of all Persons born, christened and buried.
74. Whereas it is absolutely necessary, that We be exactly informed of the State of Defence of all Our Plantations in America, as well in relation to the Stores of War that are in each Plantation, as to the Forts and Forti- fications there ; and what more may be necessary to be built for the Defence and Security of the same; You are as soon as possible to prepare an Account thereof with relation to Our said Province in the most particular manner; And You are therein to express the present State of the Arms, Ammunition and other Stores of War, belonging to the said Province, either in public Magazines, or in the Hands of private Persons; together with the State of all Places, either already fortified, or that you judge necessary to be fortified for the Security of Our said Province; And you are to transmit the said Accounts to Our Commissioners for Trade and Plantations, as also a Duplicate thereof to Our Master General or principal Officers of Our Ordnance; Which Accounts are to express the Particulars of Ordnance, Carriages, Balls, Powder, and other Sorts of Arms and Ammu- nition in Our public Stores, and so from time to time of what shall be sent you, or bought with the public Money, and to specify the Time of the Disposal, and the Occasion thereof: And You are half yearly to transmit a general Account of the State of the Fortifications and Warlike Stores, specify'd in the manner above mentioned.
75. You are from time to time to give an Account, what Strength your Neighbours have by Sea and Land, and of the Condition of their Plantations, and what Correspondence You keep with them.
76. And in case of any Distress of any other of Our Plantations, You shall, upon Application of the respective Governors thereof unto you, assist them with what Aid the Condition and Safety of Our Province under Your Government can spare.
77. If anything shall happen, which may be of Advantage or Security to Our Province under your Government, which is not herein, or by your Commission provided for. We do hereby allow unto you, with the Advice and Consent of Our Council, to take Order for the present therein, giving
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unto Our Commissioners for Trade and Plantations speedy Notice thereof, in order to be laid before Us, that you may receive Our Ratification, if We shall approve the same: — 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.
78. And whereas We have, by the second Article of these Our Instruc- tions to you, directed and appointed that your chief Residence shall be at Quebec; you are nevertheless frequently to visit the other parts of your Government, in order to inspect the Management of all public Affairs, and thereby the better to take Care, that the Government be so administered, that no disorderly Practices may grow up contrarjr^o Our Service and the Welfare of Our Subjects.
79. And whereas great Prejudice may happen to Our Service, and the Security of the Province, by your Absence from those Parts, You are not, upon any Pretence whatsoever, to come into Europe, without having first obtained Leave for so doing from Us under Our Sign Manual and Signet, or by Our Order in Our Privy Council ; Yet nevertheless in case of Sickness, You may go to South Carolina, or any other of Our Southern Plantations, and there stay for such Space as the Recovery of your Health may absolutely require.
80. And whereas We have thought fit by Our Commission to direct, that in case of your Death or Absence, and the Death or Absence of Our Lieutenant Governors of Montreal and Trois Rivieres, and in Case there be at that time no Person within Our said Province, commissionated or appointed by Us to be Commander in Chief, that the Eldest Councillor, who shall be at the time of your Death or Absence, or at the Death or Absence of Our Lieutenant Governors, as aforesaid, residing within Our said Province under your Government, shall take upon him the Administra- tion of Government, and execute Our said Commission and Instructions, and the several Powers and Authorities therein directed; It is nevertheless Our express Will and Pleasure, that in such Case the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that purpose; And that he shall not remove or suspend any of the Members of Our Council, nor any Judges, Justices of the Peace, or other Officers Civil or Military, without the Advice and Consent of at least Seven of the Members of Our said Council, nor even then without good and suffi- cient Reasons for the same, which the said President is to transmit, signed by himself and the rest of Our said Council, to Our Commissioners for Trade and Plantations, by the first Opportunity in order to be laid before Us.
81. And whereas We are willing in the best manner to provide for the Support of the Government of Our Province aforesaid, of which You are Governor, by setting apart sufficient Allowances to such as shall be Our Governor or Commander in Chief, residing for the time being within the
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same; Our Will and Pleasure is, that when it shall happen that you are absent from Our said Province, One full Moiety of the Salary, and all Per- quisites and Emoluments whatsoever, which would otherwise become due unto You, shall, during the time of your Absence, be paid and satisfied , unto Our Commander in Chief, who shall be resident within Our said Prov- ince for the Time being; which We do hereby order and allot unto him for his Maintenance, and for the better Support of the Dignity of that Our Government.
82. And You are upon all Occasions to send unto Our Commissioners for Trade and Plantations only, a particular Account of all your Proceedings, and of the Condition of Affairs within your Government, in order to be laid before Us: provided nevertheless, whenever any Occurrences shall happen within your Government of such a Nature and Importance as may require Our more immediate Directions by One of Our Principal Secretaries of State and also upon all Occasions and in all Affairs wherein you may receive Our Orders by One of Our Principal Secretaries of State, you shall in all such Cases transmit to Our Secretary of State only an Account of all such Occurrences, and of your Proceedings relative to such Orders : —
G. R.
ORDINANCE ESTABLISHING CIVIL COURTS.^
An ORDINANCE, for regulating and establishing the Courts of Judicature, Justices of the Peace, Quarter-Sessions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province.^
Whereas it is highly expedient and necessary, for the well governing of His Majesty's good Subjects of the Province of Quebec, and for the speedy and impartial Distribution of Justice among the same, that proper Courts of Judicature, with proper Powers and Authorities, and under proper Regula- tions, should be established and appointed:
His Excellency the Governor, by and with the Advice, Consent and Assistance of His Majesty's Council, and by Virtue of the Power and Author- ity to him given by His Majesty's Letters Patent, under the Great Seal of Great-Britain, hath thought fit to Ordain and Declare; and his said Excel- lency, by and with the Advice, Consent and Assistance aforesaid, Doth hereby Ordain and Declare,
That a Superior Court of Judicature, or Court of King's Bench, be established in this Province, to sit and hold Terms in the Town of Quebec,
' The text of this ordinance is taken from, "Ordinances, Made for the Province of Quebec, by the Governor and Council of the said Province, since the Establishment of the Civil Govern- ment. Quebec, 1767." This has been compared with the copy in the Canadian Archives, vol. Q 62 A, pt. 2. p. 500.
' This and the other ordinances of the period were passed under the authority of the Pro- clamation of Oct. 8th, 1763, together with the Commission and Instructions given to Governor Murray. Civil Government was not formally established in Canada until Aug. 10th, 1764. This was due to the terms of the Treaty of Paris, of 10th Feb., 1763, which specified that eighteen months were to be allowed for those French-Canadians who cared to leave the country to do so.
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twice in every Year, viz. One to begin on the Twenty-first Day of January, called Hillary Term, the other on the Twenty-first Day of June, called Trin- ity Term.
In this Court His Majesty's Chief-Justice' presides, with Power and Authority to hear and determine all criminal and civil Causes, agreeable to the Laws of England, and to the Ordinances of this Province; and from this Court an Appeal lies to the Governor and Council, where the Matter in Contest is above the Value of Three Hundred Pounds Sterling; and from the Governor and Council an Appeal lies to the King and Council, where the Matter in Contest is of the Value of Five Hundred Pounds Sterling or upwards,
In all Tryals in this Court, all His Majesty's Subjects in this Colony to be admitted on Juries without Distinction.'
And His Majesty's Chief-Justice, once in every Year, to hold a Court of. Assize, and General Goal-Delivery, soon after Hillary Term, at the Towns of Montreal^ and Trois-Rivihres , for the more easy and convenient Distribution of Justice to His Majesty's Subjects in those distant Parts of the Province.
And whereas an inferior Court of Judicature, or Court of Common- Pleas,* is also thought necessary and convenient, It is further Ordained and Declared, by the Authority aforesaid, That an inferior Court of Judicature, or Court of Common-Pleas, is hereby established, with Power and Authority, to determine all Property above the Value of Ten Pounds, with a Liberty of Appeal to either Party, to the Superior Court, or Court of King's-Bench, where the Matter in Contest is of the Value of Twenty Pounds and upwards.
All Tryals in this Court to be by Juries,' if demanded by either Party; and this Court to sit and hold two Terms in every Year at the Town of
' The first Chief Justice of Canada was William Gregory, appointed in 1 764.
• Accompanying the copy ef this ordinance sent to the Home Government, were certain explanatory observations, in which Governor Murray states his reasons for introducing various features. On this clause his observation is as follows:^"As there are but Two Hundred Pro- testant Subjects in the Province, the greatest part of which are disbanded Soldiers of little Pro- perty and mean Capacity, it is thought unjust to exclude the new Roman Catholic Subjects to sit upon Juries, as such exclusion would constitute the said Two hundred Protestants perpetual Judges of the Lives and Property of not only Eighty Thousand of the new Subjects, but likewise of all the Military in the Province; besides if the Canadians are not to be admitted on Juries, many will Emigrate; This Establishment is therefore no more than a temporary Expedient to keep Things as they are until His Majesty's Pleasure is known on this critical and difficult Point." Q 62 A, pt. 2, p. 500.
' Governor Murray's observation: — "We find, which was not at first apprehended, that the Court of Assize proposed to be held at Montreal Twice every year, will be attended with too much Expense to the Crown, and therefore that Establishment shall be corrected." Ibid, p. 502.
* Governor Murray's observation: — "The Court of Common Pleas is only for the Canadians; not to admit of such a Court until they can be supposed to know something of our Laws and Methods of procuring Justice in our Courts, would be like sending a ship to sea without a Compass; indeed it would be more cruel — the ship might escape. Chance might drive her into some hospit- able Harbour, but the poor Canadians could never shun the Attempts of designing Men, and the Voracity of hungry Practitioners in the Law; they must be undone during the First Months of their Ignorance; if any escaped, their Affections must be alienated and disgusted with our Government and Laws" Ibid. p. 502.
' Governor Murray's observation: — "It is necessary to Observe that the few British Traders living here, of which not above Ten or Twelve have any fixed Property in this Province, are much dissatisfied because we have admitted the Canadians on Juries; the Reason is evident, their own Consequence is thereby bounded. But the Practitioners in the English Law have probably put them out of Humour with the Court of Common Pleas (which they are pleased to call un- constitutional:) Ibid. p. 503.
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Quebec, at the same Time with the Superior Court, or Court of King's- Bench. Where the Matter in Contest in this Court is above the Value of Three Hundred Pounds SterHng, either Party may (if they shall think proper) appeal to the Governor and Council immediately, and from the Governor and Council an Appeal lies to the King and Council, where the Matter in Contest is of the Value of Five Hundred Pounds Sterling or upwards.
The Judges in this Court are to determine agreeable to Equity, having Regard nevertheless to the Laws of England, as far as the Circumstances and present Situation of Things will admit, until such Time as proper Ordinances for the Information of the People can be established by the Governor and Council, agreeable to the Laws of England.
The French Laws and Customs to be allowed and admitted in all Causes in this Court, between the Natives of this Province, where the Cause of Action arose before the first Day of October, One Thousand Seven Hun- dred and Sixty-four.
The first Process of this Court to be an'Attachment against the Body.
An Execution to go against the Body,_Lands or Goods of the Defendant.
^Canadian Advocats, Proctors, &c.'may 'practise in this Court.
And whereas it is thought highly necessary for the Ease, Convenience and Happiness of all His Majesty's loving Subjects, That Justices of the Peace should be appointed for the respective Districts of this Province, with Power of determining Property of small Value in a summary Way, It is therefore further Ordained and Declared, by the Authority aforesaid, and full Power is hereby Given and Granted to any one of His Majesty's Justices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sum of Five Pounds current Money of Quebec, and to any two Justices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sum of Ten Pounds said Currency, which Decisions being within, and not exceeding the aforesaid Limitation, shall not be liable to an Appeal ; and also full Power is, by the Authority aforesaid. Given and Granted, to any three of said Justices of the Peace to be a Quorum, with Power of holding Quarter-Sessions in their respective Dis- tricts every three Months, and also to hear and determine all Causes and Matters of Property which shall be above the Sum of Ten Pounds, and not exceeding Thirty Pounds current Money of Quebec, with Liberty of Appeal to either Party to the Superior Court, or Court of King's-Bench : Aiui it is hereby Ordered, That the aforesaid Justices of the Peace do issue their Warrants, directed to the Captains and other Officers of the Militia in this Province, to be by them executed, until the Provost-Marshal, legally
' Governor Murray's observation; — "We thought it reasonable and necessary to allow Canadian Advocates and Proctors to practice in this Court of Common Pleas only (for they are not admitted in the other Courts) because we have not yet got one English Barrister or Attorney who understands the French Language." Ibid. p. 504. See also, in connection with this and the previous note, Murray's letter to the Lords of Trade, Oct. 29th, 1764, p. 231 and the petition oi the Quebec Traders to the King, p. 232
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authorised by His Majesty, shall arrive, and other inferior Officers be ap- pointed for that Purpose; all Officers, Civil and Military, or other His Majesty's loving Subjects, are hereby commanded and required to be aiding and assisting to the said Justices and Officers of Militia in the due Execution of their Duty. And it is further Ordered and Directed, by the Authority aforesaid, That two of the said Justices of the Peace do sit weekly in Rota- tion, for the better Regulation of the Police, and other Matters and Things in the Towns of Quebec and Montreal, and that the Names of the Justices who are to sit in each Week, be posted up on the Door of the Session-House by the Clerk of the Peace, two Days before their respective Days of Sitting, that all Persons may know to whom to apply for Redress.
And whereas there are not at present a sufficient Number of Protestant Subjects, resident in the intended District of Trois-Rivieres, qualified to be Justices of the Peace, and to hold Quarter-Sessions, It is therefore further Ordained and Declared, by the Authority aforesaid, That from henceforth this Province shall be divided into two Districts, to be known and called by the Names of Quebec and Montreal, for the Time being, and until there may be a competent Number of Persons settled at or near Trois-Rivieres, duly qualified to execute the Office of Justices of the Peace, and the Power of holding such Quarter-Sessions above-mentioned, or until His Majesty's Pleasure be known in that Behalf ; and that the said two Districts be divided and bounded by the River Godfrey on the South, and by the River St. Maurice on the North Side.
And whereas it is thought very expedient and necessary, for the speedy and due Execution of the Laws, and for the Ease and Safety of His Majesty's Subjects, That a sufficient Number of inferior Officers should be appointed in every Parish throughout this Province; It is therefore Ordered, by the Authority aforesaid. That the Majority of the Householders, in each and every Parish, do, on the Twenty-fourth Day of June, in every Year, elect and return to the Deputy-Secretary, within fourteen Days after such Election, six good and sufficient Men to serve as Bailiffs' and Sub-Bailiffs in each Parish, out of which Number the King's Governor, or Commander in Chief for the Time being, with the Consent of the Council, is to nominate and appoint the Persons who are to act as Bailiffs and Sub-Bailiffs in each Parish ; and such Nomination or Appointment is to be notified by the Depu- ty-Secretary to the respective Parishes, and also published in the Quebec- Gazette, some Time in the last Week in August in every Year; and the said Bailiffs and Sub-Bailiffs, so nominated as aforesaid, are to enter upon, and begin to execute their respective Offices on the Twenty-ninth Day of Sep- tember in every Year.
No Person to be elected a second Time to the same Office, except the whole Parish has served round, or that those who have not, are laid aside for some material Objection, which must be supported by Proof: But that
•Governor Murray's observation: — "We called them Bailiffs, because the Word is better understood by the New Subjects than that of Constable." Ibid. p. 510.
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there may never be an entire Set of new Officers at one Time, but that those who remain may be able to instruct those who enter into Office, one of those Persons who served as Sub-BaiHffs in each Parish, to be elected and nomi- ated Bailiffs of said Parish the ensuing Year.
If a Bailiff dies in his Office, the Governor, or Commander in Chief, will nominate one of those returned by said Parish to serve as Sub-Bailiffs for the Remainder of the Year; and when a Sub-BaiHff happens to die in Office, the Bailiffs shall assemble the Parish upon the next publick Feast Day insuing his Decease, who shall proceed to elect and return, as aforesaid, another Sub-Bailiff.
The Election of Bailiffs and Sub-Bailiffs for this present Year, to be on the Twentieth Day of October; their Names to be returned immediately after the Election: Their Nomination will be notified and published by the Deputy-Secretary as soon as may be, and they shall enter upon, and begin to execute their respective Offices, on the First Day of December, but all Elections, &c. after this Turn, shall be upon the Days and Times above- mentioned and appointed for that Purpose.
The Bailiffs are to oversee the King's High-ways and the publick Bridges, and see that the same are kept in good and sufficient Repair; to arrest and apprehend all Criminals, against whom they shall have Writs or Warrants, and to guard and conduct them through their respective Parishes, and convey them to such Prisons or Places as the Writ or Warrant shall direct: They are also to examine all Bodies that are exposed, and on whom any Marks of Violence appear, in Presence of five reputable House- holders of the same Parish, whom he is hereby impowered to summons to inspect the same, and report in Writing the State and Circumstances thereof to the next Magistrate, that a further Examination may be made therein if necessary; but this to be done only where the Coroner cannot by any Possibility attend, which in this extensive Province may frequently happen.
Where any Disputes happen concerning the Breaking or Repairing of Fences, upon Complaint made to the Bailiff, he shall summons the Defen- dant, who is to choose three indifferent Persons, and the Plaintiff three more, and these six, the Bailiff presiding, to decide the Dispute; from their Sentence either Party may appeal to the Quarter-Sessions; the Person found in Fault to pay One Shilling and no more, to the Person who shall draw up the Decision.
These Bailiffs to be sworn into their Office by the next Justice of the Peace, as soon as may be after their Nomination as aforesaid, and the said Oath to be returned to the next Quarter-Sessions by such Justice.
GIVEN by His Excellency the Honourable JAMES MURRAY, Esq.; Captain-General and Governor in Chief of the Province of Quebec, and Terri- tories thereon depending in America, Vice Admiral of the same. Governor of the Town of Quebec, Colonel-Commandant of the Second Battalion of the Royal American Regiment, &c. &c. In Council, at Quebec, the 17th of
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September, Anno, Domini, 1764, and in the Fourth Year of the Reign of our Sovereign Lord GEORGE the III, by the Grace of God of Great-Britain, France, and Ireland, KING, Defender of the Faith, &c. &c.
J A: MURRAY. By Order of His Excellency in Council, J. Gray, D. Sec'"
Governor Murray to the Earl of Halifax.^
Quebec IS"* Oct' 1764
My Lord When the Commission His Majesty had been gratiously pleased to honor me with as Governor of this Province arrived at Quebec, The Gentlemen who had till then acted as Lieu* Governors of Montreal and Trois Rivieres chose Still to Continue so in their Military Capacitys, and declared I could have no Command over the Troops in their respective Districts.*
The Regard I have for my Royal Masters Service which must ever make me Studious to Obviate, any real or possible Motive of Dissagreement, amongst his officers, induced me to Wave a Right which appeared to myself plain, incontestable, and indeed necessary for the Governor of this Province; I however laid the same before the Commander in Chief, and at the same time sent him a Coppy of my Military Commission, as Governor of the Town and Dependencies of Quebec, Coppys of the Letters which have pass'd on this Occasion, I have the honor to lay before your Lordship; And as I plainly forsee M' Gage' means, to divest me of all Military Authority, I should be Deficient in my Duty was I not to represent to your Lordship the Inconveniencys to His Majestys Service, which in my Opinion, must neces- sarily happen from Such a Step.
It must be allowed that without a Military Force this lately Conquerd Province cannot be Govern'd, there doeth not exist in it above One hundred protestant Subjects exclusive of the Troops, And by my instructions of these hundred Protestants must be composed the Magistracy, But what Force, what weight, can such a Magistracy have, unless the Supreme Magistrate has the Disposition of the Military Force; if he has not, it is to be apprehended that the People will be oppressd by the Soldiery, that the Civil Governor, and his Officers, will become Contemptable, and in place of being the means of preserveing order, and .promoteing the happiness of
' From Public Record Office, as copied in Canadian Archives, vol. Q 2, p. 206.
' The friction which developed between Murray at Quebec and Gage and Burton at Montreal and Three Rivers, and afterwards Burton and Haldimand at these places, is evidenced in numerous letters between these officers and with the Home Government, as given in various volumes of the Haldimand Papers, e. g. B 1, B 2, B 6, B 9, and in Q 2, in Canadian Archives.
• In Aug. 1763, upon Sir Jef. Amherst being granted leave to return to Britain, Maj. Gen. Gage was appointed, for the time. Commander in Chief of the Forces in America. In Sept., 1764, Sir Jef. Amherst having decided not to return to America, Gen. Gage received his regular Commission as Commander in Chief. See Calendar of Home Office Papers, 1760-1765, Nos. 967 & 1449.
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the Subject, they may from the Natural Jealousy that such an Establishment will produce become the bane of Peace, As the weak efforts they will of course make in Support of their Authority, can be productive of Nothing but Vexation, and Confusion.
The Canadians are to a man Soldiers, and will naturally conceive that he who Commands the Troops, should govern them; I am convinced at least it will be easyer for a Soldier to introduce and make palateable to them Our Laws, and Customs, than it can be for a Man degraded from the Profession of Arms; It may be impertinent to say more on a Subject I think so obvious, I have only therefore to entreat your Lordship may be assured that this Remonstrance proceeds from Nothing, but the desire, and Anxiety I have to execute the trust reposed in me, with Propriety, and to the Satis- faction of His Majesty, and his Servants.
I by no means think it right. That the Governor of Quebec should be upon the American Staff. His Appointments are no doubt Sufficient to Support the Dignity of his Office, and the Occupations of it, will necess iryly require his immediate Attendance in the Province, Whereas that of the General Officers of this Establishment will beyond a doubt be necessary in the upper Countrys, where the Posts to watch the Indians, and to regulate the Trade with them will be established ; All I plead for is the necessity of having the Disposition of the Troops destined for the Security of the Province intrusted to my care, that they may pay me the usual Comple- ments, and receive from me the Parole; I doe not even desire to interfere with the CEconomy of those Troops, that may be left to the Senior Officer in the Province or the nearest Brigadier upon the Staff. If however for reasons I do not forsee, His Majesty shal think it expedient that no Civil Governor in America shal have any Military Command, I have only to Lament my Singular ill fortune, in being the first Man upon the Spot with his Regiment, and that in his own Garrison too, who was Commanded by a Junior Officer, in a Country where he had the honor to exert his Military facultys to the Satis- faction of His Royal Sovereigns.'
I have the honor to be with the utmost Truth and Regard My Lord, Your Lordship's most Oblidged, most Obedient, and most
faithfull humble Servant
JA: MURRAY To the Right Hpn'''"
The Earl of Hallifax
' In another letter to Halifax. Oct. 30, 1764, complaining of tfie interference of Gage and Burton, Murray attributes their attitude to jealousy of his promotion to be Governor of Quebec, and suggests that Burton should be removed from his command at Montreal. Replying to his representations, Halifax informs Murray, in his despatch of Jan. 12, 1765, that no change is to be made in the system of military commands in North America, but that Burton had l^n in- structed not to interfere in civil affairs. See Canadian Archives vol. Q 2, pp. 337 & 342.
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PRESENTMENTS OF THE GRAND JURY OF QUEBEC
Presentments of Oct' Sessions made at a Continuance thereof by Ad- journment held at the Sessions house in the City of Quebec the 16*'' Oct' 1764 by the Grand Jury in, and for the said District represent.
1. That the Great Number of inferior Courts estabHsh'd in this province with an intention to administer Justice are tiresome litigious and expensive to this poor Colony as they very often must be attended with the disagree- able necessity of appeals and of course of many exorbitant fees.
2'^ The Great number appointed Justices of the Peace out of so few men of Character legally qualified, and fit to be trusted with determining the liberty and property of his Majesty's Subjects to serve their Country as Jurors, is Burthensome and not practised in other Infant Colonys like this. It can answer no good end, to waste mens time, in attending on Courts where no man is upon the Bench qualified to explain the Law, and sum up the Evidences to the Jury, to prevent its being misled by the Barristers.
4. That in the Southern Colonies, where men qualified to serve the publick are scarce, there are no Jurys calld but when the Chief Justice of the province presides, therefore neither the Lives nor Libertys of his Majesty's Subjects, nor any property above the value of 3£ Sterl* are left finally to the decision of the Justices of the Peace, and for the easy and speedy dis- patch of Justice there are Annually held three Courts of Common pleas and Two of Sessions or assizes, where Jurys are summon'd in Rotation from the different parts of the province and return'd by Ballots, Yet we are of opinion from the present state of this Colony it would be reasonable to Authorize any three of his Majesty's Justices of the Peace finally to determine the fate of any sum not exceeding Ten pounds without Jury or appeal.
5. We represent also as a very great grievance that tlje market places are converted into Hutts, Stalls &c. for Nurserys of Idlers, who would out of Necessity be employ'd in several Branches of Industry, such as Fishing Farming Sec* if not permitted contrary to good policy to occupy and infest the publick Ground.
6. Giving away and turning the Kings Batterys Docks and Wharfs into private property, or suffering them to be so occupy'd, are great Griev- ances to the Inhabitants of this province.
7. We recommend the exertion of the Laws of the Mother Country for the due observance of the Sabbath that the same may not longer be profaned, by selling, buying keeping open shops. Balls, Routs, Gaming or any other Idle Divertions, for the better accomplishing of which, a Learned Clergyman of a moral and exemplary Life, qualified to preach the Gospel in its primative purity in both Languages would be absolutely necessary.
8. From the sense of the nature of Oaths administred to Jurys as also of the consequences of the matters that may occur for discussion, We in
' Canadian Archives; Dartmouth Papers, vol. 1, p. 29. It will be observed that the criticism is largely directed against certain features of the Ordinance of Sept. 1 7, 1764.
CONSTITUTIONAL DOCUMENTS 213
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Justice to Ourselves and our fellow subjects, are resolved never more to sit as Jurors at any Court where some man sufficiently versed in the Law does not preside.
9. We represent that as the Grand Jury must be consider'd at present as the only Body representative of the Colony, they, as British Subjects, have a right to be consulted, before any Ordinance that may affect the Body that they represent, be pass'd into a Law, And as it must happen that Taxes be levy'd for the necessary Expences or Improvement of the Colony in Order to prevent all abuses & embezlements or wrong application of the publick money.
10. We propose that the publick Accounts, be laid before the Grand Jury, at least twice a year to be examined and Check'd by them and that they may be regularly settled every Six months before them, which practice strictly adhered to, will very much prevent the abuses and confusion, too common in these matters.
1 1 . An Ordinance' pass'd by the Gov' in Council confirming and rend- ring valid all Decrees of the different military Councils erected in this pro- vince before the establishm* of the Civil Law' may be amended by allowing an Appeal to any of the Civil Courts, if the matter decided in any of the Military Courts exceed the sum of Ten pounds.
12. The Ordinance made by the Governor and Council for establishing Courts of Judicature in this province- is grievous and some Clauses of it, We apprehend to be unconstitutional, therefore it ought forthwith to be amended to prevent his Majesty's Subjects being aggrieved any longer thereby.
13. proper regulations regarding the measurement & quality of Fire wood are wanted as well as the following articles. Viz'
For regulating Carts and Carriages of every kind.
For clearing and keeping clean the public streets Docks and Landing
places. For sweeping Chimnies to prevent accidents by Fire. For establishing a publick protestant school and a Poor house.
14. For suppressing gaming houses, in particular that of the Quebec Arms kept by John King in the lower Town, which we have been informed has been very particularly countenanced; and which we ourselves present, from our own Knowledge as a notorious nusance, and prejudicial to the Industry and Trade of this City.
15. Also for the preventing for the future any abuses Arising from (and for the amending of) that well intended order for carrying Lanthorns in the night time, that regular people going about their Lawful Business
' For this ordinance see "Ordinances, Made for the Province of Quebec, by the Governor and Cinmcil &c. Que., 1767." p. 16.
'This is the Ordinance of Sept. 17, 1764, given at p. 205.
214 CANADIAN A RCHI VES
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without giving Disturbance to the pubHck quiet, may not be liable to Imprisonments, by Sentrys Serjeants or Officers.
James Johnston, Foreman
|
John Lymburner |
Sam' Sills |
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J..- »^^*^ .* |
DUMOND >• |
• Perrault •*- |
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-^^iS*^"^' |
John Danser |
Poney It |
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^ A r"*"^ |
Charest > |
Alex" McKinzie |
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TaCHET "It |
Phil. Payn |
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Sam' Duncan |
Thos. Story |
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Peter Faneiul |
Gilbert McRanddle |
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Geo. Fralton -t |
A Dumas. |
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Dan' Bayne |
BoisseaIt * |
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Tho" Aylwyn |
Amiott * |
That. Among the many grievances which require redress this seems not to be the least, that persons professing the Religion of the Church of Rome do acknowledge the supremacy and jurisdiction of the Pope, and admit Bulls, Briefs, absolutions &c» from that see, as Acts binding on their Con- sciences, have been unpannelld, en Grand and petty Jurys even where Two protestants were partys, and whereas the Grand Inquest of a County City or Borough of the Realm of Great Britain, are obliged by their Oath to present to a Court of Quarter Sessions or assises, what even appears an open violation of the Laws and Statutes of the Realm, any nusance to the subjects or Danger to his Majesty's Crown and dignity and Security of his Dominions. We therefore believe nothing can be more dangerous to the latter than admitting such persons to be sworn on Jurys, who by the Laws are disabled from holding any Office Trust or Power, more especially in a Judicial Capacity, with respect to which above all other, the Security of his majesty, as to the possession of his Dominions and of the subject as to his Liberty, property and Conscience is most eminently Concern'd.
That. By the Definitive Treaty the Roman Religion was only tolerated in the province of Quebec so far as the Laws of Great Britain admit, it was and is enacted by the S"* Jam' 1" Chap' 5"" Section 8"" no papist or popish Recusant Convict, shall practice "the Common Law, as a Councellor, "Clerk, Attorney, or Sollicitor nor shall practice the Civil Law, as Advocate "or proctor, nor practice physick, nor be an apothecary, nor shall be a Judge, "Minister, Clerk or Steward of or in any Court, nor shall be Register or "Town Clerk or other Minister or Officer in any Court, nor shall bear any "office or charge, as Captain, Lieutenant, Serjeant, Corporal, or Antient "Bearer or Company of Soldiers nor shall be Captain, Master, or Governor, "or bear any office of Charge, of or in any Ship, Castle or Fortress, but be "utterly disabled for the same, and every person herein shall forfeit one "hundred pounds; half to the King and half to him that shall sue." We there- fore believe that the admitting persons of the Roman Religion, who own the authority, supremacy and Jurisdiction or the Church of Rome, as Jurors,
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SESSIONAL PAPER No. 18
is an open Violation of our most sacred Laws and Libertys, and tending to the utter subversion of the protestant Religion and his Majesty's power authority, right, and possession of the province to which we belong.
That — so many Gentlemen of the Army and in actual service exercising any Judicial Authority, to be unconstitutional nothing but necessity by the want of a sufficient number of subjects qualify'd for the purpose, can excuse, even in a new Country, such an unwarrantable incroachm^nt on the establish'd maxims of a British Government.
The foregoing Representations of Grievances abuses and nusances, we the Grand Jurors of the District of Quebec, believe it our indispensable duty to make from the nature of Our Oath and charge, and from the infor- mations presented to us, as well as what occurs to our own observations, and do strongly recommend the same for redress to all those who by their Sacred Oath, are bound to redress them.
Ja' Johnston Foreman . Tho* Story ^ Jn" Lymburner
,Alex' McKinzie -Phil. Payne
^ Sam' Sills , Peter Farneuil
Sam' Duncan ^Jn" Danser
Dan' Bayne -Gilbert McRandall
-Geo. Fulton .A. Dumas
,Tho" Alwin
'As the presentment made by the protestant members of the Jury, wherein the impannelling of Roman Catholicks upon Grand petty Juries, even where two protestants are the parties, is complained of. As this very presentment has been openly & ungenerously used as a handle to set his Majesty's old & new Subjects at varience in this province, we cannot help endeavour* to set the public right in this particular in which they have been so grossly imposed on: What gave birth to this presentmt. was the following short, but pithy Paragraph, in the Ordinance of the l?"" Day of Sept' last.
"In all Tryalls in this Court all his Majesty's Subjects in this Colony to be admitted on Juries without any distinction:" This is qualifying the whole province at once for an Office which the best & most sensible people in it are hardly able to discharge: It then occur'd to the Jury that was laying a Subjects life, liberty & property too open, & that both old & new Subjects might be apprehensive of the consequence from the unlimited admission of Jurymen His Majesty's lately acquired Subjects cannot take it amiss, that his ancient subjects remonstrate ag' this practice as being contrary to the laws of the realm of England, the benefit of which they think they have a right to, nor ought it to give offence when they demand that a protestant Jury should be impannelled when the litigating parties are protestants such
' This document is not dated, but it was evidently prepared some time after the former presentments as it replies to criticisms passed upon them.
216 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
were the real motives of the Presentment, and we can aver that nothing further was meant by the quotation from the Statute.
That the subscribers of the presentment meant to remove every Roman Catholick from holding any office or filling any public employment is to all intents and purposes a most vile groundless insinuation & utterly inconsistent: Sentiments & intentions such as these we abhor, & are only sorry that principles do not allow us to admit Roman Catholicks as Jurors upon a cause betwixt two protestants; perhaps theirs hold us in the same light in a Case betwixt two Catholicks, and we are very far from finding fault with them, the same liberty that we take of thinking for ourselves we must freely indulge to others.
STATEMENT BY FRENCH JURORS IN REFERENCE TO THE. FOREGOING PRESENTMENTS.'
Charrest, Amiot, Tachet, Boisseaux, Poney, Dumont, & Perrault nouveaux Sujets, Grand Jur6s dans les districts de Quebec ayant demand6s a S. E" en Conseil la Traduction en Frangois de deux Deliberations faites en Anglois en la Maison du Trois Canons tous les Jurds Assembl6e dont une Sign6e 16™° Oct" present Mois des requerants ainsi que des autres Jur6s et I'autre Sign6e des Jur6s Anciens Sujets entendant I'Anglois seulement; et les ayant obteniies, ils se sont cru obliges de dire le part qu'ils avoient dans les articles qui composent la premiere Deliberation.
lis commencent par dire qu'avant la Signature de cette Deliberation il y avoit eu Plusieurs Assemblees, ou II avoit €t€ question de faire Plusieurs Coupons de Representations sur des feuilles volantes et dont les requerants n'ont eu connoissance que d'une Partie et dont Plusieurs entre celles dont ils ont eu connoissance avoient etes abattues et rejett6es par les Requerants que de toutes les feuilles il fflt fait un Precis indubitablement, et que lors qu'il fut fait, il nous fflt offert pour le Signer sans qu'il nous fflt interpret^, mais seulement. Id en Anglois, que sur la Representation qui flit faite par quelqu'uns de nous, afin qu'il nous fflt Ifl, il nous fut repondu que ce precis n'etoit que le Resum6, des Coupons des Articles proposes et Acceptfe dans les Seances dernieres et que le Tems pressoit pour les Porter, et que c'etoit fort inutile.
lis vont done d'etailler la part qu'ils ont dans ces differents Articles qui composent cette Deliberation.
1 Article. Non seulement nous n'avons eu aucune connoissance de cet Article, mais meme nous nous serious opposd de toutes nos forces k cette proposition comme contraire aux InterSt des Colons nouveaux Sujets de S. M. et comme oppos6 au Sage Arrgt du Gouverneur et conseil qui voyant la necessity d'etablir une Jurisdiction ou les Nouveaux Sujets, pussent trouver an Azile pour y 6tre jug6s, de francois k francois suivant les Usages, Anciens, et dans leur Langue a 6t6 encore sollicit6 depuis par une
' Canadian Archives; Dartmouth Papers, vol. I, p. 40.
CONSTITUTIONAL DOCUMENTS 217
SESSIONAL PAPER No. 18
Requ6te de nommer le Juge de cette Jurisdiction, et que les Requerans avoient sign6s eux memes comme Citoyens; outre la facility qu'ils auront a etre Jugfe dans cette Jurisdiction, ils gagneront plus de la moiti6 des frais. 2. 3. 4. Art" Nous n'avons point compris ces Articles si ils nous ont et6 interpretes, et nous ignorons ce qui ce passe dans les differentes Colonies, nous n'avons eu garde de proposer aucuns Changemens de tallies dans ces Articles.
5. Nous avons entendu que les Maisons en bois, et Etaux, dans le March6 etoient contraires a la bonne Police et quelles etoient des Occasions d'incendies.
6. Nous avons propose k I'occasion des Quais et Chantiers qu'ils fussent destines a I'usage et la facility du Commerce Nous pensons que quant aux Batteries qu'elles ne sont point de notre District.
7. Nous avons entendfl cette Article en partie et seulement a I'occasion de I'observation du Dimanche. Mais il ne nous a absolument point 6t6 expliqu6 la Proposition d'avoir un Ministre pour precher dans les deux langues I'Evangile.
8. Nous n'avons aucunes Connoissances que cet Article aye 6t6 mis en Deliberation.
9 & 10. Ces deux Articles ne nous ont point 6t6s interpret6s et nous ne sommes point assez prevoyant pour prendre des Mesures, qui nous parrissent encore fort eloigntes par I'esperance ou nous sommes, qu'il ne sera question d'aucune Imp6t dans cette Colonie.
11. Nous n'avons point entendu tout cette Article ainsi qu'il est ex- pliqu6, nous avons meme fait sentir, combien la Proposition de diminuer la Cour des Appels etoit prejudiciable k la Colonie, en ce que cela ouvriroit une vaste Carriere a des nouveaux proems; que les affaires pass6es avoient et^es jugtes suivant la circonstance de Tems, et que les Preuves qui pour- roient avoir servies aux jugemens pourroient ne plus exister, ce qui change- roit les AfTaires de face; cependant Nous Signames sur ce qu'il Ton nous dit, que cet Article etoit soumis a la volonte du Gouverneur et de son Conseil; et le S. Tachet en fit la Restriction sur une feuille volante restee en dep6t, et comme Minutte; nous n'avons point entendu d'ailleurs que Ton proposa de demande une si forte diminution sur les Appels, il n'etoit question que de demander seulement un Amendement.
12. Cet Article ne nous a pas 6t6 particip6 et nous jugeons qu'il n'a ktk propose que par ce qu'il est dit dans cette ordonnance,' que les Avocats Canadiens, nouveaux Sujets de S. M. pourroient exercer, cette ordonnance nous paroit d'autant plus equitable qu'il est naturel pour les nouveaux Sujets Canadiens de se servir de Personnes qu'ils entendent et de qui lis Sont entendus, avec d'autant plus de Raisons qu'il n'y a pas un Avocat An- glois qui s^ache la langue frangoise, et avec lequel il ne falut un Interprette, qui ne rendroit presque jamais le vrai Sens de la Chose, d'ailleurs en quelques
« The ordinance of Sept. 1 7, 1 764. See p. 205.
218 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
frais exorbitans ne se verroient pas constitu6 les Parties sans cette sage ordonnance qui fait la Tranquillity des families.
13. Nous avons une parfaite Connoissance des Articles qui en compose une Partie, comme la Proposition d'^tablir des Reglemens pour la Mesure du Bois, pour le Charetiers et Voiturages de toutes espaces, le moyen d'entretenir les Rues nettes, les Places publiques, et le quais, pour le Rammouage des Chemin^s k fin de prevenir les Accidents du feu, c'est k ces seuls Articles auxquels nous avons d6f6r6 notre consentement, et notre situation presente ne nous a pas permis d'etendre nos soins plus loins.
14. II n'a €t€ question de parler des Maisons de Jeu que dans une conversation vague, et nous n'avons pas cru que Ton parla assez serieuse- ment pour que cela meritat de deliberer, si on proposeroit de les denoncer comme Maisons suspectes, et particulierement celle du Nomme Roy, k qui aucuns de nous ne pent faire de crime de la Protection que lui accordenl ceux qu'il a le Talent de bien Servir; au reste nous fflmes dans le cas de dire dans la conversation qui si Ton jouoit k des Heures indues, et a des Jeux proscrits par la Police, que cette Article pourroit etre represent^ comme pernicieux k la jeunesse, et au Commerce, mais nous n'avons absolument eu aucune Connoissance que cet Article fut dans la deliberation que nous avons sign6e.
15. Nous n'avons point entendu cet Article dans le Sens ou il est expos6, il s'en faut bien nous n'ignorions point que c'etoit k la demande et a la Sollicitation de la Ville, et pour la Suret6 d'icelle que I'ordre de porter les Lanternes avoit €t€ obtenu, et nous croyons qu'il est encore de la seuretd de la Ville, et du bon ordre de sen servir, nous avons mSme repondu dans ce Gout en franjois k une lettre du Gouverneur de cette Province, ce dernier Jour de notre Seance, sur ce qu'il proposoit d'etablir des Lanternes publiques, si le Coflt n'en eut point €t6 considerable, plusieurs de nos Confreres I'ont lu quoique en frangois et nous ont dits qu'ils repondoient dans le meme sens de leur C6t6 en Anglois.
Nous congevons ais6ment qu'k fin d'6viter la Cacafone a I'avenir, que les Jures Canadiens ne doivent donner leurs Sentiments qu'apres la Tra- duction en langue francoise des Objets sur lesquels on le leur demandera.
Par la connoissance que nous les G"* Jur6s Canadiens nouveaux Sujets de S. M** avons Id en langue francoise de la Representation que nos Confreres les Anciens Sujets grand Jures, ait faits k la Cour de Seance, & deux Sign6e, aux fins de nous exclure de I'avantage de servir nous et les Notres, notre Patrie, et notre Roy; se faisant une Conscience de nous Croire inhabilles a Posseder aucun employ, n'y meme a repousser et combattre les Ennemies de S. M** nous representons la Dessus.
Que S. M** etant instruite que tons les Sujets qui composent cette Province etoient Catholiques les a crfls habilles en la d.'qualite a preter le Serment de Fidelitd, et capable par cette Raison de pouvoir etres admis a 8tre utilles k leur Patrie de la fagon dont on les y croiroit propres, ce seroit mal penser de croire que les Canadiens Nouveaux Sujets ne peuvent servir
CONSTITUTIONAL DOCUMENTS 219
SESSIONAL PAPER No. 18
leur Roy, ni comme Sergent, ni comme Officiers; ce seroit un Motif bien humiliant, et bien decourageant pour des Sujets libres et assoissi6s aux Avantages de la Nation, et au Prerogative, ainsy que s'en est expliqu6 S. M. nous avons depuis plus de six Mois des Officiers Canadiens Catholiques dans le pais d'Enhauts, et Nombre de Volontaires pour y aides a repousser les Ennemis de la Nation' et celui qui s'expose librement a verser son Sang au Service de son Roy et de la Nation, ne peut il pas etre admis dans les charges ou il peut egalement servir la Nation et le Publique comme Jure, des qu'il est Sujet, le 3® de Jacques premier Chap. 5. Sec. 8 ne Regarde que les Catholiques qui pourroient veni dans le Royaume, et il n'y eut jamais de loix dans aucun Royaume sans exception, *avoit preuve dans le terns que I'Angleterre assorieroit aux prerogatives de la Nation une Colonie de Catho- liques, si nombreuse ou si en I'avoit prevu, la loix vouloit elle en faire des esclaves, nous pensons differement que nos Confreres; et si nous etions dans I'opinion ou ils sont, nous aurions assez de Confiance dans la Bont6 du Roy pour croire qu'il accorderoit k tout le Nombreux peuple de cette Colonie le delai suffisant, pour en sacrifiant tous leurs biens, aller, Grater la Terre, dans desespoir, ou en les regardant comme Sujets, ils pourroient mettre leur Vie, et celle de leur Enfants k la Crie de I'injustice, ce qu'ils ne pourroient faire en restant icy, priv6s des Employs, ou charges en qualites de Jures.
La Douceur d'un Gouvemement actuel nous a fait oublier nos pertes, et nous a attach^ a S. M. et au Gouvernement, nos Confreres nous font envisager notre Etat comme celui d'Esclaves; les veritables et fideles Sujets du Roy peuvent ils le devinir.
Ce qui nous fait conclure aux Protestations que nous faisons contre nos Signatures de la deliberation du Seize du Courant, en tout ce qu'elles pourroient nous prejudicier. fait a Quebec le 26« Octo', 1 764.
BONNEAU, PeRRAULT
Tachet, Charest, Amiot Peney Damont.
{Translation)
Charrest, Amiot, Tachet, Boisseaux, Poney, Dumont & Perrault new Subjects, Grand Jurors in the districts of Quebec, having demanded from His Excellency in Council the Translation into French of two Presentments written in English in the House of the Three Canons, all the Jurors being assembled, one of which presentments of the 16th of the present month of October, was signed by the petitioners along with the other jurors, and the other was signed by the jurors who were ancient subjects under- standing English alone, and having obtained the same, they consider
'Referring to the French-Canadian troops which Governor Murray was partially successful in raising, under the volunteer system, for the purpose of assisting in the suppression of the Indian uprising at Michillimakinak and elsewhere, under Pontiac. See Canadian Archives Bouquet Papers; Haldimand Papers, vols. B 2, B 6, B 9; also Q 2.
* Some line must have been omitted here, for as it is, it is not Sense.
220 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
themselves bound to declare the part which they had taken in the articles which compose the first Presentment.
They begin by saying that before the Signature of this Presentment, there had been many sessions, where the question had been discussed by making Several Drafts of Presentment on loose sheets, and of these the petitioners had knowledge of only a part while many of those, with the contents of which they were acquainted, had been modified or rejected by the Petitioners; that a Summary certainly had been made of all the papers, and that after it was made, it was offered to us for Signature, with- out being interpreted, but was read in English only, that when it was re- quested by some of us, that it should be read to us, the answer was that this summary was only a R6sum6 of the Drafts of the Articles which had been proposed and accepted during the late Sessions, that time pressed for their presentation and that it was very unnecessary.
They intend therefore to set forth the part which they have had in the different Articles which compose this Presentment.
1. Article. Not only had we no knowledge of this Article, but we should certainly have opposed this proposition with all our might, as being contrary to the interests of His Majesty's New Subjects in the Colony, and as being opposed to the wise ordinance of the Governor and Council, who, seeing the necessity of establishing a Court of Justice where the New Subjects should be able to find a Sanctuary in which they might be judged as Frenchmen by Frenchmen, according to Ancient Customs, and in their own Tongue, has since been requested in a Petition to name the Judge of this Jurisdiction and which the Petitioners themselves have signed as Citizens; for besides the convenience that it would be to them to be judged in this Jurisdiction, they would save more than half the costs.
2, 3, 4, Art". We did not understand these Articles if they were interpreted to us, and as we are ignorant of what is going on in the different Colonies, we have no interest in proposing any particular alterations in these Articles.
5. We understand that wooden Houses and Stalls in the Market are contrary to good Policy, and are sometimes the Causes of Fires.
6. We have suggested with regard to the Quays and Dockyards that they should be allotted for the use and convenience of Trade. As to the Batteries we do not consider that they appertain to our Department.
7. We have heard this Article in part, and only in connection with Sunday observance. But the Proposal of having a Minister to preach the Gospel in both languages has certainly not been explained to us.
8. We have no Knowledge that this matter has ever been brought up for Consideration.
9 & 10. These two Articles have not been explained to us, and we are not sufficiently far-seeing to pay attention to Measures which at present appear to us very remote, owing to the hope which we entertain that no question of Taxation for this Colony will arise.
CONSTITUTIONAL DOCUMENTS 221
SESSIONAL PAPER No. 18
11. We have not understood this whole Article as it is explained. We have even demonstrated how prejudicial to the Colony, was the Prop- osition to diminish the Court of Appeals, in that it would open a wide road to new lawsuits, that past cases had been settled according to the circum- stances of the Time, and that Proofs which might have been valid for judgments then, could no longer be in existence, which would completely change the aspect of Things; however, accepting what we were told, that this Article was subject to the Will of the Governor and His Council, we subscribed to it and the S. Tachet made a note of the reservation on a loose sheet, which was left at the office, as a Minute. Moreover we had not heard that a request for such a large reduction on the Appeals was asked for, it having only been a question of asking for an Amendment.
12. This Article has never been communicated to us, and we imagine it was only proposed, because it is stated in that ordinance, that Canadian Lawyers, New Subjects of H. M. might practise. The ordinance appears to us the more equitable, in that it is only right that the new Canadian Subjects should employ Persons whom they understand, and by whom They are understood, all the more because there is not one English Lawyer who knows the French Language, and with whom it would not be necessary to employ an Interpreter who would scarcely ever give the exact meaning of the Matter in hand. And further, without this wise regulation which ensures the Tranquillity of domestic affairs would not the opposing Parties find themselves involved in exorbitant expense ?
13. We are thoroughly familiar with the Items which form a Part of this Article, such as the Proposal to establish Regulations for the Measur- ing of Wood, for Carters and Vehicles of every description, for the best method of keeping the Streets, public Squares, and Docks clean, and for the Sweeping of Chimneys to prevent Accidents by fire. We have given our consent solely to these Items, and our present situation does not allow us to extend our care in other directions.
14. There has been no question of discussing Gaming Houses except in desultory conversation, and we did not suppose it had been spoken of seriously enough to make it worth while to consider, if it was proposed to denounce them as suspicious Houses, especially that of the said King, to whom none of us can attribute as a crime the Protection which is granted him by those whom he has the Faculty of Serving so well. Besides this we did happen to say in conversation that if they were playing at unseasonable Hours, and at Games proscribed by the Police, then this Article might repre- sent it as danger6us to youth and to Trade, but we have absolutely no knowledge that this Article was in the Presentment which we have signed.
15. We did not understand this Article in the Sense in which it is ex- plained. Of course we were aware that it was at the request and Solicitation of the Town, and for the safety of the same, that the order to carry Lanterns had been obtained, and we believe that it certainly would conduce to the security of the Town and to good order to carry it out. We have replied
222 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to this Effect in French to a letter from the Governor of this Province, on the last Day of our Session, at which time he proposed to establish public lamps, if the Cost was not excessive. Although written in French, many of our Fellow-members read it, and have told us that they on their side replied to the same effect in English.
We quite realize that in order to avoid Confusion in the future, Cana- dian Jurors should give their Opinions only after the Subjects on which it is asked have been translated into the French Language.
In view of the knowledge that we, the G"* Jurors, Canadian new Sub- jects of H. M. have, — having read it in the French tongue, — of the Pre- sentment which our confreres, the Ancient Subjects, Grand Jurors, have made at the Court of Session, and of the two Subscriptions, with the in- tention of excluding us from the privilege of serving ourselves and Our as- sociates, our Country and our King, pretending that they conscientiously believe us to be incapable of holding any office or even of repulsing and fight- ing the Enemies of H. M'^ We make the following statement.
That H. M'y being informed that all the Subjects forming this Province were Catholics still believed them capable as such of taking the Oath of Loyalty, and therefore fit to be admitted to the service of their Country, in such a way as they shall be thought qualified for. It would be shameful to believe that the Canadians, New Subjects, cannot serve their King either as Serjeant, or Officers, it would be a most humiliating thought, and very discouraging to free Subjects who have been admitted to the Privileges of the Nation, and their Rights, as explained by H. M. For more than six Months we have had Catholic Canadian Officers in the Upper Country, and a Number of Volunteers aiding to repulse the Enemies of the Nation ; and cannot a man who exposes himself freely to shed his blood in the Service of his King and of the Nation be admitted to positions where he can serve the Nation and the Public as a Juror, since he is a subject? The 3"''' of James I. Chap. 5, Sec. 8, only refers to Catholics who may enter the Kingdom, and as there has never been any law in any Kingdom without some exception* was a proof that in time England would admit to the National rights so numerous a Colony of Catholics, or if this had been foreseen, that the Law would seek to make them slaves. We think differ- ently from our confreres, and even if we were of their opinion, we should have enough Confidence in the King's Goodness to believe that he would grant all the Numerous people of this Colony sufficient respite to depart, though at the sacrifice of all their possessions, and in desperation cultivate the Ground, in some place, where being considered as Subjects, they and their Children might lead their Lives sheltered from Injustice. This they could never do here were they deprived of all Offices, or positions as Jurors.
The Leniency of the existing Government has made us forget our losses, and has attached us to H. M. and to the Government; our fellow
• Some line must have been omitted here, for as it is, it is not sense.
CONSTITUTIONAL DOCUMENTS 223
SESSIONAL PAPER No. 18
citizens make us feel our Condition to be that of Slaves. Can the faithful
and loyal Subjects of the King be reduced to this ?
This ends the Protest that we make against the use of our Signatures
on the Presentment of the Sixteenth instant, in every point in which they
might be prejudicial to us. Done at Quebec the 26th October, 1764.
Perrault, Bonneau, Tachet, Charest,
Amiot, Peney,
Damont.
ADDRESS OF FRENCH CITIZENS TO THE KING REGARDING THE LEGAL SYSTEM'
Au Roi
La veritable gloire d'un Roy conquerant est de procurer aux vaincus le meme bonheur et la m€me tranquility dans leur Religion et dans la Pos- session de leurs biens, dont ils joiiissoient avant leur deffaite: Nous avons joiii de cette Tranquility pendant la Guerre mSme, elle a augment^e depuis la Paix faitte. He \o\\k comme elle nous a 6t6 procur^e. Attaches k notre Religion, nous avons jure au pied du Sanctuaire une fidelity inviolable k Votre Majeste, nous ne nous en sommes jamais ^cartds, et nous jurons de nouveau de ne nous en jamais ^carter, fussions nous par la suitte aussy malheureux que nous avons 6t6 heureux; mais comment pourrions nous ne pas I'etre, apres les Temoignages de bont6 paternelle dont Votre Majest6 nous a fait assurer, que nous ne serions jamais troubles dans I'exercise de notre Religion.
II nous a parii de m6me par la fagon dont la Justice nous a 6t6 rendiie jusqu'^ pr&ent, que I'intention de Sa Majest6 6toit, que les Coutumes de nos Peres fussent suivies, pour ce qui 6toit fait avant la Conquete du Canada, et qu'on les suivit k I'avenir, autant que cela ne seroit point con- traire aux Loix d' Angle terre et au bien g6n6ral.
Monsieur Murray, nomm6 Gouverneur de la Province de Quebec k la satisfaction de tous les Habitans, nous a rendu jusques k present k la Tgte d'un Conseil militiare toute la Justice que nous aurions pfl attendre des personnes de Loi les plus 6claires; cela ne pouvoit 6tre autrement; le Desinteressement et I'Equit^ faisoient la Baze de leurs Jugements.
Depuis quatre ans nous jouissons de la plus grande Tranquility; Quel bouleversement vient done nous I'enlever ? de la part de quatre ou Cinq Persones de lloy, dont nous respectons le Caractere, mais qui n'enten- dent point notre Langue, et qui voudroient qu'aussit6t qu'elles ont parl6, nous puissions comprendre des Constitutions qu'elles ne nous ont point encore expliqu^es et aux quelles nous serons toujours prSts de nous sou- mettre, lorsqu'elles nous seront conniies; mais comment les Connottre, si elles ne nous sont point rendiies en notre Langue ?
' Canadian Archives; B 8, p. 121.
224 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
De 1^, nous avons vu avec peine nos Compatriotes emprisonnfe sans 6tre entendus, et ce, k des fraix considerables, ruineux tant pour le debiteur que pour le Cr6ancier; nous avons vu toutes les Affaires de Famille, qui se d^cidoient cy-devant a peu de frais, arrgt6es par des Personnes qui veulent se les attribuer, et qui ne savent ny notre Langue ni nos Coutumes et ci qui on ne peut parler qu'avec des Guin6es k la Main.
Nous esperons prouver k Votre Majesty avec la plus parfaite Sou- mission ce que nous avons Ihonneur de luy avancer.
Notre Gouverneur k la Tete de son Conseil a rendu un Arret^ pour I'Etablissement de la Justice, par lequel nous avons vu avec plaisir, que pour nous soutenir dans la D6cision de nos affaires de famille et autres, il seroit etabli une Justice inf^rieure, oil toutes les Affaires de Francois k Frangois y seroient decid6es; Nous avons Vu que par un autre ArrSt,* pour eviter les Procfes, les affaires cy-devant d6cid6es seroient sans appel, k moins qu'elles ne soient de la Valeur de trois Cents Livres.
Avec la mSme Satisfaction que nous avons vu ces Sages R^glements avec la mSme peine avons nous vu que quinze Jures Anglois contre Sept Jur6s nouveaux Sujets, leur ont fait souscrire des Griefs en une Langue quils n'enjtendoient point contre ces memes R6glements; ce qui se prouve par leurs Protestations et par leurs Signatures qu'ils avoient donn^es la veille sur une RequSte pour demander fortement au Gouverneur et Conseil la Stance de leur Juge, attendu que leurs Affaires en souffroient.
Nous avons vu dans toute I'amertume de nos Coeurs, qu'apres toutes les Preuves de la Tendresse Paternelle de Votre Majesty pour ses nouveaux Sujets ces mSmes quinze Jur^s soutenus par les Gens de Loy nous proscrire comme incapables d'aucunes fonctions dans notre Patrie par la difference de Religion; puisque jusqu'aux Chirurgiens et Apothicaires (fonctions libres en tout Pays)en sont du nombre.
Qui sont ceux qui veulent nous faire proscrire ? Environ trente Marchands anglois, dont quinze au plus sont domicili6s, qui sont les Proscrits ? Dix mille Chefs de famille, qui ne respirent, que la soumission aux Ordres de Votre Majest6, ou de ceux qui la representent, qui ne connoissent point cette pr6tendue Libert^ que Ton veut leur inspirer, de s'opposer a tous les R6glements, qui peuvent leur 6tre avantageux, et qui ont assez d'intelligence pour Connoitre que leur Inter^t particulier les conduit plus que le Bien public —
En Effet que deviendroit le Bien General de la Colonie, si ceux, qui en composent le Corps principal, en devenoient des Membres inutiles par la difference de la Religion ? Que deviendroit la Justice si ceux qui n'entendent point notre Langue, ny nos Coutflmes, en devenoient les Juges par le Ministere des Interpr^tes ? Quelle Confusion ? Quels Frais mercenaires n'en r&ulteroient-ils point ? de Sujets prot6g6s par Votre Majest6, nous
' The ordinance of Sept. 17th, 1764. See p. 205.
2 The ordinance of Sept. 20th, 1764. See "Ordinances, made for the Province of Quebec, &c." 1767.
CONSTITUTIONAL DOCUMENTS 225
SESSIONAL PAPER No. 18
deviendrons de v6ritables Esclaves; une Vingtaine de Personnes, que nous n'entendons point, deviendroient les Maitres de nos Biens et de nos Interets, plus de Ressources pour nous dans les Personnes de Probit6, aux quelles nous avions recours pour I'arrangement de nos affaires de famille.etquiennous abandonnant, nous forceroient nous memes k pr^ferer la Terre la plus ingrate a cette fertile que nous possedons.
Ce n'est point que nous ne soyons pr€ts de nous soumettre avec la plus respectueuse obeissance k tous les R^glements qui seront faits pour le bien et avantage de la Colonie; mais la Grace, que nous demandons, c'est que nous puissions les entendre: Notre Gouverneur et son Conseil nous ont fait part de ceux qui ont 6t6 rendus, ils sont pour le Bien de la Colonie, nous en avons temoign^ notre reconnoissance ; et on fait souscrire h. ceux qui nous representent, comme un Mai, ce que nous avons trouv6 pour un Bien!
Pour ne point abuser des Moments precieux de Votre Majeste, nous finissons par I'assurer, que sans avoir connu les Constitutions Angloises, nous avons depuis quatre Ans goflt6 la douceur du Gouvernement, la goute- rions encore, si Mess" les Jur6s anglois avoient autant de soumission pour les decisions sages du Gouverneur et de son Conseil, que nous en avons; si par des Constitutions nouvelles, qu'ils veulent introduire pour nous rendre leurs Esclaves, ils ne cherchoient point k changer tout de suite I'ordre de la Justice et son Administration, s'ils ne vouloient pas nous faire discuter nos Droits de famille en Langues etrang^res, et par 1^, nous priver des Personnes ^clair^es dans nos Coutumes, qui peuvent nous en- tendre, nous accommoder et rendre Justice k peu de frais en faisant leurs Efforts pour les empecher mSme de conseiller leurs Patriotes pour la diffe- rence de Religion, ce que nous ne pouvons regarder que comme un Interet particulier et sordide de ceux qui ont sugger6 de pareils principes.
Nous supplions Sa Majesty avec la plus sincere et la plus respectueuse soumission de confirmer la Justice, qui a et6 etablie pour deliberation du Gouverneur et Conseil pour les Frangois, ainsy que les Jurds et tous autres de diverses Professions, de conserver les Notaires et Avocats dans leurs Fonctions, de nous permettre de r^diger nos Affaires de famille en notre Langue, et de suivre nos Coutumes, tant qu'elles ne seront point Contraires au Bien general de la Colonie, et que nous ayons en notre Langue une Loy promulgu^e et des Ordres de Votre Majestd, dont nous nous d^clarons, avec le plus inviolable Respect,'
' Apparently in consequence of these representations, an additional instruction to Murray was framed and sent in the latter part of 1764, although the exact date is not given. As con- tained in the Dartmouth. Papers, it appears as follows: —
1764. Instructions to Murray. That the misconstruction of the proclamation of 7th October, 1763, be removed and that in making provision for the due and impartial administra- tion of justice that there shall extend to all "subjects in general the protection and benefit of the "British laws and constitution in all cases where their Lives and Liberties are concerned. But "shall not operate to take away from the native Inhabitants the Benefit of their own Laws and ||Customs in Cases where Titles to Land, and the modes of Descent, Alienation and Settlement "are in Question, nor to preclude them from that share in the Administration of Judicature, "which both in Reason and Justice they are intitled to in Common with the rest of our subjects." The proposed instructions with notes of alterations suggested. The instructions as finally sent are in the Colonial Office. Canadian Archives, Dartmouth Papers, M 383, p. 50.
226
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Les plus fiddles Sujets Amiot — ^Jur6 J. Labroix (or Lauroix)
Boreau — Jur6 Perrault Ch" reg' Tachet — Jur6 Charest — ^Jur6 Perrault — Jur6
Lorrande Du Perrin (or Duperrin) Gueyraud Laurain
Voyer (or Voyez) Chretien
F. Valin P. Goyney
Bellefaye (or Bellefincke) Voyer (or Voyez)
Rey
Boiret P*" Superieur du Marchand
Seminaire Dumond, Jur6 Isel Becher. Cur6 de
Quebec Etesanne fils ayn6 Conefroy
Robins
LeFebure
Soupiran
Rousseau
Petrimouly
Larocque
Launiere
Alx« Picard
Ginnie
Boileau
Delerenni
Liard (orLard)
(Dubarois or)
Dubaril, Chirurg" Chartier de Lotbiniere Asime F. Duval Hec. Keez Huquet Schindler La Haurriong Lerise Panet,
Endorsed. Quebec.
Copy of the Adress of the principal Inhabitants of Canada to the
King, relative to the Establishment of Courts of Justice, and the
Presentment of the Grand Jury.
Original sent to His Majesty. Read Jan"- 7, 1765.
J. Lemoyne Jean Amiot
Bertran (or rem)
Gauvereau
Carpentier (or Charpe-
niser) Coocherar (or eer) Vallet Duttock Meux Vrosseaux H. Parent Ferrant Boireux
Dusseil (or Dufiel) H. Loret
Berthelot (or elole) Arnoux Neuveux Laroche Th. Caroux Guichass
Le Maitre Lamorille Franc Ruilly Jean Baptiste Dufour Portneuf (or Borneuf)
L. D. Dinnire (or ere) Thomas Lee (or Lee)
Soulard Parroix Riverin Liard fils — F' Dambourg^s Messuegu6 L. Dumas Robins Fil Redout Fromont Fl. Cuynet Gigon
Dennbefrire Paul Marchand Duvonuray Sanguineer
Jacques Hervieux neg' de Au. Bederd
Montreal Guy de Montreal J. Ferroux S. J' Meignot
Le C* Dupre I'aisne S. George Dupr6 G' des Milice de Mon- treal
CONSTITUTIONAL DOCUMENTS 227
SESSIONAL PAPER No. 18
(Translation) To THE King
The true Glory of a Victorious King consists in assuring to the van- quished the same happiness and the same tranquillity in their Religion and in the possession of their property that they enjoyed before their defeat. We have enjoyed this Tranquillity even during the War, and it has increased since the establishment of Peace. Would that thus it had been secured to us! Deeply attached to our religion, we have sworn at the foot of the altar, unalterable fidelity to Your Majesty. From it we have never swerved and we swear anew that we never will swerve therefrom, although we should be in the future as unfortunate as we have been Happy: but how could we even be unhappy after those tokens of paternal affection by which Your Majesty has given us the assurance that we shall never be disturbed in the Practice of our Religion.
It has seemed to us indeed from the manner in which Justice has been administered among us up to the present time, that it was His Majesty's Intention that the Customs of our Fathers should be adhered to, so that what was done before the Conquest of Canada should be adhered to in the future in so far as it was not opposed to the Laws of England, and to the public good.
Mr. Murray, who was appointed Governor of the Province of Quebec to the satisfaction of all its inhabitants, has up to the present time, at the head of a Military Council administered to us all the justice that we could have expected from the most enlightened jurists. This could hardly have been otherwise. Disinterestedness and Equity being the basis of their decisions.
For four years we enjoyed the greatest tranquillity. By what sudden stroke has it been taken away through the action of four or five jurists, whose character we respect, but who do not understand our language, and who expect us, as soon as they have spoken, to comprehend legal constructions which they have not yet explained, but to which we should always be ready to submit, as soon as we become acquainted with them, but how can we know them, if they are not delivered to us in our own tongue ? \
It follows, that we have seen with grief our fellow citizens imprisoned', without being heard, and this at considerable expense ruinous alike to debtor and creditor; we have seen all the family affairs, which before were settled at slight expense, obstructed by individuals wishing to make them profitable to themselves, who know neither our language nor our customs and to whom it is only possible to speak, with guineas in one's hand.
We hope to prove to your Majesty with all due submission the state- ments which we have the honour to lay before him.
Our Governor, at the Head of his Council, has issued an ordinance for the Establishment of Courts, by which we were rejoiced to see, that
228 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to assist us in the settlement of family and other matters, a Lower Court of Justice was to be established where all cases between Frenchman and Frenchman could be decided. We have seen that by another ordinance, to avoid lawsuits, cases decided by this court should be without appeal, unless they were of the value of three Hundred Livres.
In proportion to the greatness of our Joy on seeing these wise regula- tions, was the distress with which we discovered that fifteen English Jurors as opposed to seven Jurors from the new Subjects had induced the latter to subscribe to Remonstrances in a language which they did not understand against these same Regulations. This is proved by their Remonstrances and Signatures of the evening before, in a Petition in which they urgently beg the Governor and his Couiicil that their Judge may hold a sitting as their affairs were suffering for want of it.
With deep bitterness in our hearts we have seen, that after all the proofs of Your Majesty's Paternal Affection for your new Subjects, these same fifteen Jurors, with the assistance of the Lawyers have proscribed us as unfit, from differences of Religion, for any office in our country; even Surgeons and Apothecaries (whose professions are free in all countries) being among the number.
Who are those who wish to have us proscribed ? About thirty English ^ merchants, of whom fifteen at the most, are settled here. Who are the Proscribed ? Ten thousand Heads of Families who feel nothing but sub- mission to the orders of Your Majesty, and of those who represent you, who do not recognize as such this socalled Liberty with which the other party desire to incite them to opposition to all the Regulations which might be to their advantage, and who have enough intelligence to see that these persons are guided by their own Interest rather than the public good.
And in fact what would become of the general prosperity of the Colony, if those who form the principal section thereof, become incapable members of it through difference of Religion ? How would Justice be administered if those who understand neither our Language nor our Customs should become our Judges, through the Medium of Interpreters. What confusion, what Expenditure of Money would not result therefrom ? Instead of the favoured Subjects of Your Majesty, we should become veritable Slaves; a Score of Persons whom we do not know would become the Masters of our Property and of our Interests; We should have no further Redress from those equitable Men, to whom we have been accustomed to apply for the settlement of our Family Affairs, and who if they abandoned us, would cause us to prefer the most barren country to the fertile land we now possess.
It is not that we are not ready to submit with the most respectful obedience to all the Regulations which may be made for the Wellbeing and Prosperity of the Colony, but the favour which we ask is that we may be allowed to understand them. Our Governor and his Council have
CONSTITUTIONAL DOCUMENTS 229
SESSIONAL PAPER No. 18
instructed us concerning those which have been already issued. They are for the good of the Colony, we have shown our Gratitude for the same, and yet now we are made to represent as a hardship by those who are speak- ing in our name, what we have found to be a benefit.
That we may not further encroach upon Your Majesty's Precious Time, we conclude by assuring You, that without knowing the English Constitution we have during the past four years, enjoyed the Beneficence of the Government, and we should still enjoy it, if Mess" the English Jurors were as submissive to the wise decisions of the Governor and his Council, as we are; if they were not seeking by new regulations, by the introduction of which they hope to make us their slaves, to change at once the order and administration of Justice, if they were not desirous of making us argue our Family Rights in a foreign tongue, and thereby depriving us of those Persons, who from their knowledge of our Customs, can understand us, settle our differences, and administer Justice at slight expense; using every effort, on the plea of the difference of Religion, to prevent them even from acting as Counsel for their fellow countrymen. This we can only regard as due to the base anxiety for their own interests of those who have suggested such Principles.
We entreat Your Majesty with the deepest and most respectful sub- mission to confirm the system of Justice which has been established for the French, by the deliberations of the Governor and Council, as also the Jurors and all others of different professions, to maintain the Notaries and advo- cates in the exercise of their functions, to permit us to transact our Family ^^ Affairs in our own tongue, to follow our customs, in so far as they are ^Hiot opposed to the general Wellbeing of the Colony, and to grant that a ^H.^w' may be published in our Language, together with the Orders of Your ^■kdajesty, whose most faithful Subjects, we do, with the most unalterable ^Hlespect, hereby declare Ourselves. ^P The most faithful Subjects.
ORDINANCE OF NOV. t'^ \16A}
An ORDINANCE, For quieting People in their Possessions, and fixing the
Age of Maturity.
4 Whereas it appears right and necessary, to quiet the Minds of the People, in Regard to their Possessions, and to remove every Doubt respect- ing the same, which may any Ways tend to excite and encourage vexatious Law-Suits; and until a Matter of so serious and complicated a Nature, fraught with many and great Difficulties, can be seriously considered, and such Measures therein taken, as may appear the most likely to promote the Well-fare and Prosperity of the Province in general. His Excellency, by and with the Advice and Consent of His Majesty's Council, Doth hereby
' "Ordinances, made for the Province of Quebec, by the Governor and Council, &c. "Que. 1767, p. 18.
I
230 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Ordain and Declare, That until the tenth Day of August next, the Tenures of Lands, in Respect to such Grants as are prior to the Cession thereof, by the definitive Treaty of Peace, signed at Paris the tenth Day of February, One Thousand Seven Hundred'and Sixty-three, and the Rights of Inherit- ance, as practised before tha(t Period, in such Lands or EfTec"S^ of any Nature whatsoever, according to the Custom of this Country, shall remain to all Intents and Purposes the same, unless they shall be altered by some declared and positive Law; for which Purpose the present Ordinance shall serve as a Guide and Direction in all such Matters, to every Court of Record in this Province; Provided that nothing in this Ordinance contained shall extend, or be construed to extend to the Prejudice of the Rights of the Crown, or to debar His Majesty, His Heirs or Successors from obtain- ing, by due Course of Law, in any of His Courts of Record in this Province, according to the Laws of Great-Britain, any Lands or Tenements, which at any Time hereafter may be found to be vested in His Majesty, his Heirs or Successors, and in the Possession of any Grantee or Grantees, his, her, or their Assigns, or such as claim under them, by Virtue of any such Grants as aforesaid, or under Pretence thereof, or which hereafter may be found to have become forfeited to His Majesty, by Breach of all or any of the Conditions in such Grants respectively mentioned and contained.
And be it Ordained and Declared, by the Authority aforesaid. That from and after the first Day of January, One Thousand Seven Hundred and Sixty-five, every Person arrived at the Age of Twenty-one compleat Years, shall be deemed for the future of full Age and Maturity agreeable to the Laws of England, and shall be entituled to take full Possession from that Time of every Estate or Right to him belonging ; in Consequence thereof to sue for the same, or bring to Account the Guardians, or other Persons who may have been entrusted therewith.
GIVEN by His Excellency the Honourable JAMES MURRAY, Esq.; Captain-General and Governor in Chief of the Province of Quebec, and Ter- ritories thereon depending in America, Vice Admiral of the same. Governor of the Town of Quebec, Colonel-Commandant of the Second Battalion of the Royal American Regiment, &c., &c. In Council, at Quebec, the 6th Day of November, Anno, Domini, 1764, and in the Fifth Year of the Reign of our Sovereign Lord GEORGE the III, by the Grace of God, of Great-Britain, France and Ireland, KING, Defender of the Faith, &c., &c.
JA. MURRAY. By Order of His Excellency in Council, H. Kneller, D.C.C.
i
CONSTITUTIONAL DOCUMENTS 231
SESSIONAL PAPER No. 18
GOVERNOR MURRAY TO THE LORDS OF TRADE.*
Quebec 29*"' Oct' 1764 My Lords
The inclosed papers will shew you the situation of affairs here and how necessary it is for me to send M' Cramah6 to London^ that your Lordships may have the most Minute and Clearest Ace' of every thing relating to this Province. An immediate Remedy seems necessary. To any thing I can write doubts may arise and misrepresentations may be made (which I find too frequently to be the case) the necessary delay to clear up such Doubts and misrepresentations by letters, may be dangerous. M' Cramah6 will answer every purpose, if properly attended too, he is thor- oughly informed of all I know, no Man has the good of this Colony more at heart, no Man is more zealous for the Kings service and certainly there doth not exist a Man of more Integrity and Application.
Little, very little, will content the New Subjects but nothing will satisfy the Licentious Fanaticks' Trading here, but the expulsion of the Canadians who are perhaps the bravest and the best race upon the Globe, a Race, who cou'd they be indulged with a few priveledges w* the Laws of England deny to Roman Catholicks at home, wou'd soon get the better of every National Antipathy to their Conquerors and become the most faithful and most useful set of Men in this American Empire. ^H I flatter myself there will be some Remedy found out even in the Laws ^■for the Relief of this People, if so, I am positive the populer clamours in i^^England will not prevent the Humane Heart of the King from following ^^Kts own Dictates. I am confident too my Royal Master will not blame '^~the unanimous opinion of his Council here for the Ordonnance establishing the Courts of Justice,* as nothing less cou'd be done to prevent great numbers from emigrating directly, and certain I am, unless the Canadians are ad- mitted on Jurys, and are allowed Judges and Lawyers who understand their Language his Majesty will lose the greatest part of this Valuable people.
I beg leave further to represent to your Lordship that a Lieu* Governor at Montreal is absolutely necessary, that Town is in the Heart of the most populous part of the Province, it is surrounded by the Indian Nations and is one Hundred and Eighty miles from the Capitol, it is there that the most opulent Priests live, and there are settled the greatest part of the French Nobless, consequently every intrigue to our disadvantage will be laid
' Canadian Archives; vol. Q 2, p. 233.
' Mr. H. T. Cramah4 had been Civil Secretary for the District of Quebec, from the time that Gen. Murray had been appointed Lt. Governor, after the Conquest. When Canada, following the example of the older colonies, desired to appoint an agent in London, Mr. Cramahfi was nominated for the position, in Feb. 1764. The appointment, however, was apparently not made. When civil government was established, in Aug, 1764, Mr. Cramah^ became a member of the first Council of the Province.
" This letter and the following petitions incidentally reveal the very strained relations, ex- tending to personal bitterness, which existed between Governor Murray and the British com- merciaT element in the colony, and which led to the Governor's recall.
* The ordinance of Sept. 17th, 1764. See p. 205.
232 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
and hatched there, The expence of a Lieu* Governor will be a Trifle, I am positive for some years it will not exceed what will be necessary to procure intelligence in that District, This will be saved if a Man of Author- ity, Diligence and Observation is at the Head of it on the Spots and I do from the Zeal I have for his Majestys Service and the conviction of my heart, declare, that M' Cramahe is the fittest man I know to fill that place; I am at least certain no body can be appointed who will be more agreeable to the new Subjects
I have the Hon' to be with the greatest truth & regard.
My Lords,
Y' Lordships' mo. Ob*, &"•. The Lords of Trade & Plant", (Signed) JA: MURRAY
P.S. I have been informed that Mess" Will" Mackenzie Alex' Mckenzie and Will" Grant have been soUiciting their Friends in London to prevail upon your Lordships to get them admitted into his Majesty's Council of this Province. I think it my Duty to acquaint your Lordships that the first of these Men is a notorious smugler and a Turbulent Man, the second a weak Man of Little character and the third a conceited Boy. In short it will be impossible to do Business with any of them
(signed) JA: MURRAY The Lords of Trade & Plantations
PETITION OF THE QUEBEC TRADERS.*
To the King's Most Excellent Majesty
The Humble Petition of Your Majesty's most faithful and loyal Subjects, British Merchants and Traders in behalf of themselves and their fellow Subjects, Inhabitants of your Majesty's Province of Quebec
May it please Your Majesty.
Confident of Your Majesty's Paternal Care and Protection extended even to the meanest and most distant of your Subjects, We humbly crave your Majesty's Gracious Attention to our present Grievances and Distresses
We presume to hope that your Majesty will be pleased to attribute our approaching your Royal Throne with disagreeable Complaints, to the Zeal and Attachment we have to your Majesty's Person and Government, and for the Liberties & Priviledges with which your Majesty has indulged all your Dutifull Subjects.
Our Settlement in this Country with respect to the greatest part of us; takes it's date from the Surrender of the Colony to your Majestys Arms; Since that Time we have much contributed to the advantage of our Mother
• Canadian Archives; vol. B 8, p. 6.
CONSTITUTIONAL DOCUMENTS 233
SESSIONAL PAPER No. 18
Country, by causing an additional Increase to her Manufactures, and by a considerable Importation of them, diligently applied ourselves to Investi- gate and promote the Commercial Interests of this Province and render it flourishing
To Military Government, however oppressive and severely felt, we submitted without murmur, hoping Time with a Civil Establishment would remedy this Evil
With Peace we trusted to enjoy the Blessings of British Liberty, and happily reap the fruits of our Industry: but we should now despair of ever attaining those desirable ends, had we not Your Majesty's experi- enced Goodness to apply to.
The Ancient Inhabitants of the Country impoverished by the War, had little left wherewith to purchase their common necessaries but a Paper Currency^ of very doubtfull Value: The Indian War* has suspended our Inland Trade for two years past, and both these Causes united have greatly injured our Commerce.
For the redress of which we repose wholly on your Majesty, not doubt- ing but the Wisdom of your Majesty's Councils will in due time put the Paper Currency into a Course of certain and regular Payment, and the Vigour of Your Majesty's Arms terminate that War by a peace advantageous and durable.
We no less rely on your Majesty for the Redress of those Grievances we suffer from the Measures of Government practised in this your Majesty's Province, which are
The Deprivation of the open Trade declared by your Majesty's most gracious Proclamation, by the Appropriation of some of the most com- modious Posts' of the Resort of the Savages, under the Pretext of their being your Majesty's private Domain.
The Enacting Ordinances Vexatious, Oppressive, unconstitutional, injurious to civil Liberty and the Protestant Cause.
Suppressing dutifull and becoming Remonstrances of your Majesty's Subjects against these Ordinances in Silence and Contempt.
The Governor instead of acting agreeable to that confidence reposed in him by your Majesty, in giving a favorable Reception to those of your Majesty's Subjects, who petition and apply to him on such important Occasions as require it, doth frequently treat them with a Rage and Rude- ness of Language ^nd Demeanour, as dishonorable to the Trust he holds of your Majesty as painful to those who suffer from it.
His further adding to this by most flagrant Partialities, by fermenting Parties and taking measures to keep your Majesty's old and new Subjects
' This paper currency was issued by the Intendants under the French Regime, and especially by the last of them, the notorious Bigot. Its redemption by the French Govenunent wag at this time the subject of special negotiations.
' Pontiac's Rebellion.
• For the previous condition of these posts, see Mjirray's Report of 1762, p. Si.
234 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
divided from one another, by encouraging the latter to apply for Judges of their own National Language.
His endeavouring to quash the Indictment against Claude Panet (his Agent in this Attempt who laboured to inflame the Minds of the People against your Majesty's British Subjects) found by a very Worthy Grand Inquest, and causing their other judicious and honest Presentments to be answered from the Bench with a Contemptuous Ridicule.
This discountenancing the Protestant Religion by almost a Total Neglect of Attendance upon the Service of the Church, leaving the Protes- tants to this Day destitute of a place of Worship appropriated to themselves.
The Burthen of these Grievances from Government is so much the more severely felt, because of the natural Poverty of the Country; the Products of it been extremely unequal to support its Consumption of Imports.
Hence our Trade is miserably confined and distressed, so that we lye under the utmost Necessity of the Aids and Succours of Government, as well from Our Mother Country as that of the Province, in the Place of having to contend against Oppression and Restraint.
We could enumerate many more Sufferings which render the Lives of your Majesty's Subjects, especially your Majesty's loyal British Subjects, in the Province so very unhappy that we must be under the Necessity of removing from it, unless timely prevented by a Removal of the present Governor.
Your Petitioners therefore most humbly pray your Majesty to take the Premises into your gracious Consideration, and to appoint a Governor over us, acquainted with other maxims of Government than Military only; And for the better Security of your Majesty's dutiful and loyal Sub- jects, in the Possession and Continuance of their Rights and Liberties, we beg leave also most humbly to petition that it may please your Majesty, to order a House of Representatives to be chosen in this as in other your Majesty's Provinces; there being a number more than Sufficient of Loyal and well affected Protestants, exclusive of military Officers, to form a competent and respectable House of Assembly; and your Majesty's new Subjects, if your Majesty shall think fit, may be allowed to elect Protestants without burdening them with such Oaths as in their present mode of think- ing they cannot conscientiously take.
We doubt not but the good Effects of these measures will soon appear, by the Province becoming flourishing and your Majesty's People in it happy. And for your Majesty and' your House your Petitioners as in Duty bound shall ever pray, &ca &ca
Sam' Sills John Danser.
Edw"* Harrison Ja* Jeffry.
Eleaz' Levy Ja' Johnston.
Ja' Shepherd Tho' Story.
CONSTITUTIONAL DOCUMENTS 235
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John Watmough. Dan* Bayne.
John Ord. John Purss.
Geo. Allsoopp. Alex' McKenzie
W" Mackenzie. Geo. Measam
B Comte. J" A. Gastineau
Peter Faneuil. Ph. Payn. Geo. Fulton.
PETITION OF THE LONDON MERCHANTS.*
To the Kings most excellent Majesty. —
The humble Petition of your Majesty's most dutiful Subjects, the Merchants and others now residing in London Interested in and trading unto the Province of Canada in North America, on behalf of themselves and others trading to and Interested in the said Colonys by way of Supple- ment to the Petition hereunto annexed Intitled the humble Petition of your Majesty's most faithful and Loyal Subjects British Merchants and Traders in behalf of themselves and their fellow Subjects Inhabiting your Majesty's Province of Quebec
May it please Your Majesty,
We whose names are hereunto subscribed do most humbly certify to your Majesty that Several of us have in our possession a Variety of Original Letters from divers of our Friends and correspondents now residing in Canada and whose names are not subscribed to the Address annexed which confirm the truth of the several Allegations contained in the said Address. We do verily believe the said Allegations to be true and doubt not but in due time shall be enabled to prove the same when your Majesty in your great wisdom shall think proper to direct.
And from the said Original Letters in our possession we do likewise believe that the said Address would have been signed by almost all your Majesty's British as well as French subjects in Canada but for fear of incurring the displeasure and resentment of such of your Majesty's Officers and Servants as may deem themselves reflected upon thereby.
We therefore most humbly join with our fellow Subjects of Canada in their Petition to your Majesty and further most humbly pray.
That the Government of those your Majesty's Dominions may be at least put upon the same footing with the rest of your Majesty's American Colonies or upon any other footing that may be thought Essential for the preservation of the Lives Liberties and Properties of all your Majesty's
' Canadian Archives; vol. B 8, p. 10.
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most faithfull Subjects as well as for the increase and support of the Infant Commerce to and from that Part of the World.
And Your Petitioners as in duty bound shall ever pray &c. &c. &c.
Capel & Osgood Hanbury, James Bond,
John Buchanan, Mildred & Roberts
David Barclay & Sons Barnards & Harrison,
Anthony Merry. Nash Eddowes & Petrie,
Lane & Booth Webb & Sampson,
Bissons & Metcalfes, Brindleys Wright & Co.
J'' Masfen, Jn" Liotard & Giles Godin,
Crafton & Colson Gregory Olive
Wal' Jenkins & C", Neate & Pigon,
Pooley & Fletcher, Rich"* Neave & Son
Wakefield Willett & Pratt. John Strettell
John Cartwright, Isidore Lynch & Co. Mauduit Wright & C"
REPORT OF ATTY. AND SOL. GEN. RE STATUS OF ROMAN CATHOLIC SUBJECTS.!
To the Right Honourable the Lords Commissioners for Trade and Plan- tations.
May it please your Lordships >
In Obedience to your Lordships Commands Signifyed to me by M' Pownall's Letter of the 7 Instant, directing us to consider, and Report to your Lordships our Opinion, whether His Majesty's Subjects, being Roman Catholicks, and residing in the Countries, ceded to His Majesty, in America, by the Definitive Treaty of Paris, are, or are not subject, in those Colonies, to the incapacities, disabilities, and Penalties, to which Roman Catholicks in this Kingdom, are subject by the Laws thereof;
We have taken M' Pownall's Letter into our Consideration, and are humbly of Opinion, that His Majesty's Roman Catholick Subjects residing in the Countries, ceded to His Majesty in America, by the Definitive Treaty of Paris, are not subject, in those Colonies, to the Incapacities, disabilities, and Penalties, to which Roman Catholicks in this Kingdom are subject by the Laws thereof.
All which is humbly submitted to Your Lordships Consideration
FL' NORTON W-" DE GREY Lincolns Inn 10*'' June 1765 Endorsed: — Copy of the Attorney and SoUicitor Generals Report
• Canadian Archives, Dartmoutii Papers; M 383, p. 69. •
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REPORT TO THE LORDS OF THE COMMITTEE FOR PLANTATION AFFAIRS, ON SEVERAL PAPERS RELATIVE TO ORDIN- ANCES & CONSTITUTIONS MADE BY THE GOVERNOR OF QUEBEC.
To the Right Honble the Lords of the Committee of His Majesty's most Honble Privy Council for Plantation Affairs.'
My Lords,
His Majesty having been pleased by an Order in His Privy Council to direct this B"* to consider and report to your Lordship's our Opinion upon several Papers, which were humbly laid before His Majesty, relative to the Ordinances and Constitutions made and established by His Majesty's Governor of the Colony of Quebec in consequence of the Powers vested in Him by His Majesty's Commission and Instructions, We have, in Obedience to His Majesty's Commands taken these Papers into our Consideration, but before we enter into a particular Examination of them, and of the Ordin- ances and Constitutions to which they refer, it may not be improper for the better understanding thereof, to state to your Lordship's, what was the Mode and Form under which the several Governments in Canada were Administered from the Time of the Conquest to the publication of the present Commission, and also what is in general the form of Government approved of and Established, since it has been erected into one entire _ Colony by the name of Quebec.
Before the Establishment of the present Constitution, His Majesty's new Subjects in Canada, consisting of upwards of 80,000 Inhabitants, professing the Religion of the Romish Church, were entirely under military Government, the civil Government and Courts of Justice, which existed under the French Dominion were laid aside, & Justice was administered by Courts consisting of military Officers, which His Majesty's Governors had established by their own Authority for the Trial and Decision of all Matters of a civil as well as criminal Nature & which Establishments are stated to have been approved by one of His Majesty's Secretary's of State; but whether these military Courts were governed in their proceedings by the Laws of England, or by the Laws and Customs that subsisted in Canada before the Conquest, or by what other Rules, does not appear from any Papers before us.
By the Form of Government now established the civil Constitution of Quebec, like all other Coloniesoinder His Majesty's immediate Govern- ment, and which do not depend upon particular Charters, arises out of, and is regulated by His Majesty's Commission & Instructions to His Governor, by which Commission and Instructions the Governor is auth- orized to appoint a Council, consisting of the Officers of Government, (who by their Offices are usually Members of the Councils in other Colonies)
' Canadian Archives; Q. 56 p. 83; also Q. 18 A p. 131.
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together with Eight other of the principal Inhabitants of the Province, which Council is to assist the Gov with their Advice in all matters of State, and is also constituted a distinct branch of Legislature, and impowered jointly with the Governor and an Assembly of Freeholders, which he is directed to summon and call together, so soon as the Circumstances of the Colony will permitt, to frame and enact Laws for the Welfare & good Government of the said Colony, under the like Regulations & Restrictions prescribed in other Colonies; & untill such complete Legislature can be formed, the Governor is authorized, with the Advice & Consent of the Council, to make and pass such temporary Ordinances as shall be necessary & proper for the good Governm'. of the Colony; Provided the said Ordin- ances are not repugnant, but as near as may be agreeable to the Laws of England, and do not extend to affect the Life, Limb or Property of His Majesty's Subjects, or to the levying any Duties or Taxes (His Majesty's Governor is further impowered by a particular Clause in his Commission to erect, constitute & establish, with the Advice and Consent of the Council, such & so many Courts of Judicature & publick Justice, with all reasonable Powers, Authorities, Fees & Privileges, as he and they shall think neces- sary for the hearing & determining all Causes as well criminal as civil, according to Law, & Equity, & for awarding Execution thereupon and by an Article in His Instructions he is Directed, in forming these Estab- lishments, to consider, what has been approved and settled in other Colonies; and more particularly in that of Nova Scotia, the situation & Circumstances of which did, at the time of Establishing Courts of Justice therein, bear a near Resemblance to the situation & circumstances of Quebec.
This Power of erecting Courts of Justice, thus lodged in the Governor and Council, has ever been vested in, and exercised by the Governors and Councils of all Colonies upon their first Establishment, and was more particularly necessary & proper in the Case of the Colony of Quebec as the Governor and Council, by being upon the spot, might obtain such Infor- mation as would Enable them to judge what Methods of proceeding in such Courts of Justice would be best suited to the Canadian Laws and Customs in respect to their property, to which in good Policy we think a due regard ought to be had in all Cases, where they are not inconsistent with the funda- mental Principles of the Laws of England.
Whether this Power, as well as such others as we have stated to have been vested in His Majesty's Governor by His Commission and Instructions, have or have not been properly exercised, depends upon a consideration of those Acts & proceedings, which followed the Promulgation of that Form of Government His Majesty has thought fit to Establish for this Colony; which Acts and Proceedings we beg leave to lay before your Lordships, so far as they have relation to the matters contained in the said Papers referred to us — ^And in obedience to His Majesty's Command humbly represent Our Opinion to y'. Lordship's thereupon.
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The Establishment, which did of course and necessity immediately follow the Promulgation of the Governor's Commission, was that of a Council, which took place on the 13th of August last, & was composed of those Officers of Government, who are constituted of that Body Ex Officio by the Gov". Instructions, & of eight other Persons, whose names are mentioned in the annexed List transmitted to us by the Governor, to which he has added the Character & Qualifications of each member, expressing to us at the same Time in his Letter, which accompanied this List, the great Difficulties & Inconveniences he laboured under in forming this, as well as every other civil Establishment from the Paucity of British- born Subjects, & from their consisting entirely either of military Persons or Merchants, whom Duty or temporary Interest had led hither, & who could only be considered as Passengers, very few of them having any Property in the Province.
Under this Circumstance represented by the Governor, the Choice which he has made, must be submitted to your Lordship's; & if your Lordship's see no Objection, none occurrs to us to His Majesty's being graciously pleased to establish this Council by His Royal Mandamus to the Governor.
Immediately after the Appointment of the Council, the Governor with their Advice and Consent, issued Commissions of the Peace, a Measure that appears to us to have been necessary, and that the Commissions themselves are proper and constitutional.
As to the Qualification of the several Persons, in whom the Governor has thought fit to vest this Jurisdiction, it would be as irregular, as it is impracticable, to enter into an Examination of them here. We see no Reason to doubt, that the Governor has on this occasion made Choice of such as were best qualified for this Office, nor can we think that, under the Circumstances of the Inhabitants as represented by him, any attention ought to be given to those vague and in many respects ill founded Objections stated in some of the Papers, which we humbly laid before His Majesty, and which appears to us, considering those Circumstances, to be as unjust, as they are uncandid and indecent.
The next important and necessary Object of the Governor's attention was the carrying into Execution those Parts of his Commission and Instruc- tions, by which he is authorized and required to erect and establish so many Courts of Justice and Judicature, as he should think necessary for the hearing and determining ajl Causes, as well criminal as civil, and for awarding Execution thereupon, and as the Ordinance made and published by the Governor and Council for that purpose does conclude, in the Consideration of it, not only every Question stated in the Papers referred to us by His Majesty, but also almost every important Proposition that regards the immediate welfare of His Majesty's Subjects in that Colony, it will be our Duty to lay before your Lordships the Observations that have occurred to us upon a full mature and impartial Examination of the Ordinance
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itself; of the Remarks made upon it and transmitted to us by His Majesty's Governor; and of the Objections to it stated by an Agent appointed for that purpose by His Majesty's principal trading Subjects resident at Quebec.
The Courts of Judicature and the Jurisdictions established by this Ordinance,* a copy of which is hereunto annexed are as follows, Viz*. —
First — A Superior Court of Judicature or Court of King's Bench, in which the Chief Justice appointed by His Majesty is to preside, and to sit and hold Forms at Quebec twice in every Year, with Authority to the said Court to hear and determine all criminal and civil Causes, agreeable to the Laws of England, allowing Appeals to the Governor and Council when the Matter in Contest is above the Value of three hundred Pounds Sterling.
Secondly — A court of Assize and general Gaol Delivery to be held by the Chief Justice once in every Year at the Towns of Montreal and Trois Rivieres.
Thirdly — An inferior Court of Judicature or Court of Common Pleas to be held at Quebec at the same Times when the Superior Courts sits, with Jurisdiction to try and determine all Property above ten Pounds without limitation, with Liberty of Appeal to the Superior Court, when the matter in Contest is of the Value of twenty Pounds and upwards, and to the Governor and Council in cases where the Matter in Contest amounts to three hundred Pounds: all Trials in this Court to be by Juries, if required by either Party, and the Judges to determine agreeable to Equity, having regard nevertheless to the Laws of England.
Fourthly — For the Trial of Matters of Property of a small Value in a summary way by Justices of the Peace in the several Districts a Power is given to any one Justice to hear and determine without Appeal all Causes to the Amount of five Pounds; to any two Justices to hear and finally deter- mine without Appeal all Causes to the Amount of ten Pounds, and to three Justices to hear and determine in the Quarter Session all Matters of Pro- perty above ten Pounds, and not exceeding thirty Pounds, with Liberty of Appeal to the Superior Court of King's Bench.
Fifthly — For keeping the Peace and executing the Orders of the Justices in respect to the Police, every Parish is to elect once a Year six Persons to serve as Bailiffs, out of which number the Governor is to nominate and appoint the Persons who are to act in that Capacity in each Parish.
The Duty of these Officers is to inspect the High Ways and publick Bridges, and to see they are kept in Repair, to arrest and apprehend Crim- inals against whom they have Writs or Warrants, to act in the Character of Deputy Coroners, and to decide in a summary way upon all Disputes con- cerning the breaking or repairing of Fences.
This, may it please Your Lordships is the general Plan and outline of this Establishment.
But before we enter into a particular Examination of these several Judicatures and Jurisdictions separately considered, it may not be improper
' Ordinance of Sept. 17. Page 205.
I
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to observe to your Lordships that in the Gov", remarks upon the sev'. provisions of this ordinance there is a note upon that part of it which Directs the holding Courts of Assize at Montreal in the following words, viz'.
"We find which was not at first apprehended that the Court of Assize "proposed to be held at Montreal twice in every Year, will be attended "with much Expence to the Crown, and therefore that Establishment "shall be cancelled."
This remark we find by the proceedings of the Gov'. & Council has been represented, by them to refer to another Ordinance pince promulgated directing that all Giand and Petty Jurys to be summoned to serve at any Court of Record, Court of Assize & gen'. Gaol Delivery shall be summoned & returned from the body of the Province at large which Ordinance tho' purporting to be a Gen'. Regulation was however plainly intended to remove from Montreal to Quebec the trials of those persons charged with the violent assault & wounding Mr. Walker of Montreal and therefore we shall leave it to His Majesty's Judgm'. & decision upon the Circumstances of that case which we have already humbly submitted to His Majesty and shall return to the consideration of the Genl. Ordinance of the 17th of Sept upon which it may not be improper to make a short observation or two.
First. Upon some erroneous general Principles, which seem to have been adopted by those who framed this Ordinance:
Secondly. Upon the very loose and imperfect manner in which it is drawn.
The principal error by which the Framers of this Ordinance seem to have been misled, is, that the native Canadians are under such personal Incapacity, and their Laws and Customs so entirely done away, as that they cannot be admitted either as Suitors or Advocates to participate in common with the rest of His Majesty's Subjects of the Advantages of that System of Justice in respect to Matters of Property, for the Administration of which the Superior Court seems to have been instituted, for though they are admitted to serve indiscriminately as Jurors in this Court, yet it is evident from the express mention of the peculiar Privileges they are to Enjoy in the inferior Court, that it is intended neither that their Customs and Usages in Questions of Property should be allowed of in the Superior Court, nor themselves be admitted to practice therein as Proctors, Advo- cates or Attornies.
This Distinction and Exclusion seem to us to be as inconsistent with true Policy, as it is unwarrantable upon the Principles of Law and Equity, which do not, we apprehend, when Canadian Property acquired under the French Government is concerned, operate against the Admission in a Court of Justice, of such Laws and Customs of Canada as did heretofore govern in cases relative to such Property: Neither do we conceive what foundation there is for the Doctrine, that a Roman Catholick, provided he be not a Recusant convict is incapable of being admitted to practice ia those Courts
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as a Proctor, Advocate or Attorney even independent of Y". opinion of His Majesty's Attorney and Solicitor General in a late Report made to us, a Copy of which is hereunto annexed, that Roman Catholics &c. in Canada are not subject to any of the Incapacities, Disabilities or Penalties to which Roman Catholics in this Kingdom are subject by the Laws thereof.'
As to the manner in which the said Ordinance appears to have been Drawn up, which is the second Question which has Reference to it in the general Consideration, it is our Duty to observe, that it is in many Parts so far from having that Accuracy and Precision that ought to have been particularly attended to in the framing an Ordinance of so great Import- ance, and upon the Construction of which the Life, Liberty and Property of the Subject depend, that it is very Deficient even in those common Forms and modes of Expression, that are Essential and necessary in Laws of the most trifling signification, and the want of which has frequently been esteemed a sufficient Ground of Repeal.
Whether these obvious Defects in the manner of framing this Ordinance are to be attributed to the Neglect or the Inability of the Officers in the Law Departments of this Colony, we cannot take upon us to say; but from whatever cause it proceeds, it is a Circumstance of very great Importance to the Welfare and Interest of the Colony, & does in our Opinion merit your Lordships Animadversion; for as your Lordships will have seen already from the Powers vested in His Majesty's Governor, to what a great Variety of Difficult and important Objects they apply, it must necessarily occur to your Lordships, that a great deal depends upon the Industry, Vigilance and Ability of those Officers, with whose Concurrence he must Act, and upon whose Advice and Assistance he must in great measure depend, in forming the various Establishments incident to a new Colony.
Having said thus much with regard to the general Principles of this Ordinance & the imperfect manner in which it is framed, we shall proceed to submit to your Lordships as briefly as possible the Observations, which have occurred upon the several Parts of it, as they relate to the particular Judicatures and Jurisdictions thereby established.
The Objections stated to the Constitution & Jurisdiction of the Super- ior Court or Court of King's Bench, are,
First — That there is no Qualification prescribed for the Jurors. Secondly — That there is no Provision made in respect to Bail in matters bailable by the Laws of England, or for securing to the Subject the Right he has to a Writ of Habeas Corpus.
Thirdly — That as by this Ordinance all Persons are to serve as Jurors indiscriminately, an entire Jury of Canadians may be impannelled, in Cases where the matter in Question is between a British-born Subject and a Canadian.
As to the first of these Objections, it does not appear, that the Quali- fication of Jurors (if proper in itself) was necessary to be provided for by
' See Report of Norton and De Grey, p. 236.
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this Ordinance; but we submit to your Lordships, whether such a Measure, though recommended by the Practice here, as well as in the other Colonies, is not of doubtful Policy in the Colony of Quebec, where so few of the British- born Subjects have any Freehold, and who would consequently by such a Regulation be excluded from serving on Juries.
With respect to the second Objection we cannot but be of Opinion, that the Laws of this Kingdom relative to Bail and Writs of Habeas Corpus, which we conceive have been adopted in all the other British Colonies, ought to be made a part of the fundamental Constitutions of the Colony of Quebec.
The third Objection does also appear to us to be equally well founded, for although we think, that whatever tends to perpetuate a Distinction between British born Subjects and Canadians, (which Juries de Mediatate certainly do) ought to be avoided as much as possible, yet under the present Circumstances of this Province, we are of Opinion, it would have been advisable to have enacted, that in all Cases where the Action lay between a British-born Subject and a Canadian, an equal number of each should have been impannelled upon the Jury, if required by either Party.
The great Objection stated to the Constitution of the Inferior Court of Common Pleas is its having a Jurisdiction in Matters of Property, without any Limitation as to the Amount of the Value of the Actions cognizable in that Court, and it is alleged, that the necessary consequence of this will be, that all Matters of property will be tryed and adjudged in this Department, and thereby the Influence and Authority of the Superior Court in great measure set aside.
In whatever light this Objection is considered, the Weight of it must stand confessed; and when we consider, that no Provision is made for the Appointment and Support of proper Judges in this Court, and that such Judges will therefore be probably men of very little Knowledge and Experi- ence in the Laws, it does appear to us, that such a Constitution and Juris- diction is highly improper, a fundamental Defect in the Ordinance sub- mitted to your Lordships consideration, and makes it unnecessary for us to trouble your Lordships with the many other Objections, that might otherways be stated to the particular Regulations prescribed for this Court; which, however well intended for administering to the Canadians that Justice in Matters relating to their Property, which it was erroneously supposed they could not be admitted to obtain in the Superior Court, is however, we conceive, unconstitutional, and would be grievous to the Subject.
As to the Jurisdiction in Matters of Property given by the Ordinance to the Justices of Peace, in their several Districts, it does not appear to us in the general Plan and Policy of it to be liable to Objection being conform- able to what has been adopted and approved in other Colonies; but we think such Jurisdiction is extended to cases of too great Consequence and Value to be decided by such a Judicature, especially in those Instances where no Appeal is allowed.
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These, may it please your Lordships, are the principal and fundamental Errors and Defects in the constitution of the Courts and Jurisdictions established by this Ordinance; and if the Objections shall appear to your Lordships to be well founded, we trust your Lordships will not hestitate to advise His Majesty to signify His Royal disallowance of the Ordinance in Question.
The Consideration, which necessarily follows the Presumption that His Majesty will think it advisable to annul this Ordinance, leads to that Form and Constitution of Judicature, which it may be proper to substitute in the place of it; but before we submit to your Lordships such general Propositions as have occurred to us upon this important Con- sideration, it is our Duty to request your Lordship's attention to one other Ordinance published by the Governor and Council of Quebec, which in the matter of its Provisions is connected with that for establishing the Courts of Justice, and is referred to in the Papers which are the Ground of this Report.
This Ordinance is intituled "An Ordinance for ratifying and confirming "the Decrees of the several Courts of Justice established in the Districts "of Quebec, Montreal and Trois Rivieres, prior to the Establishment of "civil Government throughout this Province upon the 10th Day of August "1764,"! and it enacts, that all the Orders, Judgments or Decrees of the Military Council of Quebec and of all other Courts before the Establishment of civil Government shall stand approved, ratified and confirmed, except in Cases where the Matter in Dispute Exceeded the Sum of £300 Sterling; in which case an Appeal is allowed to the Governour and Council, provided such Appeal be entered within two months, and in cases where the matter in dispute amounts to five hundred pounds, an Appeal may be further prosecuted before His Majesty in Council; WHEREUPON, we beg leave to observe to your Lordships that however necessary or advisable it might have been to make some Regulation of this kind, with a view to preventing litigious and vexatious Suits, yet when we consider the Nature & Constitu- tion of the Courts'* whose Decrees are thus confirmed and ratified, we can by no means approve of that Confirmation being extended to Decisions of Matters of Property to so large an amount as £300; and we think that the time allowed for Appeals in Matters of Property of a greater Value is much too limitted, especially as there are none of the usual Exceptions with respect to Infants, absentees. Persons non Compos mentis, or under other natural Disabilities; and therefore we must recommend to Your Lordships His Royal Disallowance of this Ordinance.
We shall now beg leave to lay before Your Lordships a general Sketch or outline of such a System of Judicature, as we conceive may be reasonable and proper for the Colony of Quebec, in case His Majesty shall think it advisable to abrogate the Constitution framed by the Governor and Council : and, if Your Lordships shall upon mature consideration approve of this Sketch, as a Ground of a more complete Plan, we conceive such Plan may
'Given in "Ordinances, Made for the Province of Quebec, &c., 1767."
'See Proclamation of Governor Murray establishing Military Courts, pp. 42 and 44.
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be carried into Execution, either by Instruction to His Majesty's Governor to frame an Ordinance agreeable thereto, or by directing His Majesty's Servants in the Law Departments here to prepare the Draught of an Ordinance for that Purpose, to be transmitted to the Governor, and finally ratified and passed by him, agreeable to the Powers contained in his Com- mission under the Great Seal.
The propositions we offer to Your Lordship's Consideration are as follows, viz'
That for the Administration of Justice and Equity under this Con- stitution, the following Courts should be established, viz' First — ^A Court of Chancery consisting of the Governor and Council, who should also be a Court of Appeals, conformable to the directions of His Majesty's Instructions, and from whom an Appeal would lye to His Majesty in Council.
Secondly — A Superior Court of Judicature, having all the Powers, Juris- dictions and Authorities of the Court of Kings Bench, Common Pleas, and Court of Exchequer in Westminster Hall, in which Court a Chief Justice, appointed by His Majesty during Pleasure, should preside, and be assisted by three puisne Judges.
That this Court, as well as the Court of Chancery, should sit at the Town of Quebec, and be governed in their sittings and Times of meeting by the Terms observed in Westminster Hall, or if that shall be found inconvenient by such others as shall be best adapted to the Situation and Circumstances of the Colony.
That the Chief Justice and the Assistant Judges shall hold a general Court of Assize, Oyer and Terminer, and general Gaol Delivery 4 Times in the year in the Town of Quebec, and shall also once in the Year, or oftner, if thereunto Authorized by special Commission from the Governor, hold Courts of Assize, nisi prius. Oyer and Terminer, and Gaol Delivery at the Towns of Montreal and Trois Rivieres, in like manner and with the like Authority used and exercised in respect to the Circuit Court and Courts of Nisi Prius, and Assizes in this Kingdom, and that in order to render this Establishment more effectual and complete and to facilitate such other Regulations as may be hereafter expedient in matters of general Govern- ment, the Province of Quebec should be divided into three Counties, of which the Towns of Quebec, Montreal and Trois Rivieres to be the Capitals, and that a Sheriff be annually named by the Governor for each County, with the like Authorities and Powers belonging to that office in this Kingdom.
That for the speedy and summary Trial of Matters of Property to a small amount, the Justices of the Peace in the several Parishes and Districts have authority in their general Quarter sessions finally to determine all cases of Property, where the Title to Lands is not in question, above the sum of 40 shillings and not exceeding the sum of ten Pounds and where the value of the Matter in dispute exceeds £5 Sterling to be tried by a Jury if either party requires it.
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That two Justices of the Peace have Authoiity in their petty Session finally to determine in all Cases of Property, where the Title of Lands is not in question, and where the value of the matter in dispute does not exceed 40 shillings.
That in all Courts thus proposed to be established the Canadian Subjects shall be admitted to practice, as Barristers, Advocates, Attornies and Proctors under such Regulations as shall be prescribed by the Court for Persons in general under those descriptions.
That in all cases where any Rights or Claims founded upon any Trans- actions & Events prior to the Conquest of Canada shall come in question, the several Courts shall admit and be Governed in their proceedings by the French Usages and Customs, which heretofore have prevailed in Canada, in respect to such property.
That to render these Provisions effectual, Care should be taken, that not only the Chief Justice, but also the puisne Judges should understand the French Language; and that one of those Judges at least should be well versed in the French Customs and Usages above mentioned.
As to the peculiar Jurisdiction of such Courts as we have recommended, the nature of their Process and the Rules of their Proceedings, it would ill become us to attempt to suggest either what they should be, or by what Authority established: Whoever His Majesty shall think proper to entrust with the framing those acts or Ordinances, by which these Constitutions, if approved, are to be established, will be the best Judges of what will be necessary and proper in these Respects,* and therefore we have Only to add, that we hope that, by such a Form of Constitution and Judicature, the Peace and Happiness of that Colony, which has been unfortunately inter- rupted, will be restored, His Majesty's natural born Subjects assured of the Enjoyment of their Rights and Privileges to their full Extent, and the minds of the new Canadian Subjects relieved from that anxiety and uneasiness, so strongly yet so Dutifully expressed in their Address to His Majesty^; and which Anxiety and uneasiness appears to us to have been entirely excited by the extraordinary Proceedings of the Grand Jury of the District of Quebec, whose conduct in publickly arrainging' in an irregular Presentment, the Justice and Policy of Acts of Government passed under His Majesty's Authority, and submitted to His Decision, and the Assuming Powers belonging only to Legislature, does appear to us to have been indecent, unprecedented and unconstitutional.
All of which is most humbly submitted.
DARTMOUTH SOAME JENYNS Whitehall \ JOHN YORKE
Sep'. 21. 1765 J J. DYSON.
Indorsed. Quebec.
'For the action taken on these recommendations, see Ordinance of July 1st, 1766, p. 249; Ordinance of July 26th, p. 250; and Report of Yorke and De Grey, p. 251. 2 Page 223. •Page 212.
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SESSIONAL PAPER No. 18
Report to the Lords of the Committee for Plantation Affairs, on several papers relative to Ordinances & Constitutions made by the Governor of Quebec. Sepr. 2^, 1765.
REPRESENTATION OF THE BOARD OF TRADE, TO THE KING'S MOST EXCELLENT MAJESTY.*
May it Please Your Majesty,
Our Predecessors in Office having in a Report to the Lords of the Committee of Your Majesty's most Honourable Privy Coun- cil of the 30"" of May last, submitted to their Lordships considera- tion, a Plan for the Regulation of Ecclesiastical affairs in Quebec, and we having in a like Report to their Lordships of this Day's Date^ submitted Our Opinion and Propositions in respect to the Constitutions of Judicature, and other Civil Establishments in that Province, it appears to us that their Lordships have now before them, for their Consideration and decision, all those matters regarding the Constitution and form of Government, B"o'f'T '" both Ecclesiastical and Civil, *which are of the greatest Impor- Canada tance in the present State of that Colony, and upon which the Welfare of Government and the Happiness of Your Majesty's Subjects there depend.
Two great and important Considerations do yet however remain to be submitted to Your Majesty; Viz*
First, — ^The Propriety of calling a General Assembly, consisting of the Governor, the Council, and a House of Repre- sentatives, of which third Estate the situation and Circumstances of the Colony have not hitherto been thought to admit.
Secondly, — ^The repeated Complaints made by many of Your Majesty's Subjects there, and by the Principal Merchants trading to that Colony here, of Oppression and Misconduct in Your Majesty's Governor.
Upon the first of these Propositions, the only Objecti6n to which, as we conceive, must arise out of the Present State of the Province, the Bulk of the Inhabitants of which being Roman i'^g^'jj" Catholicks cannot, under the Regulations* of your Majesty's Commission, be admitted as Representatives in such an Assembly; We beg leave to represent, that if the whole Province was to be divided into three Districts or Counties, of which the Cities of Quebec and Montreal, and the Town of Trois Rivieres were to be
' Canadian Archives; B 8, p. 12. The marginal notes refer to variations in the text in other copies of this document in the Public Record Ofifice. » Page 237.
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248
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*Power in B.^T. 15.
*Estate in
Haldim
copy.
•toTin
Haldimand
copy.
the Capitals, We apprehend there would be found a sufficient number of Persons in each County qualified to serve as Repre- sentatives, and in the Choice of whom all the Inhabitants of such County might join; seeing that we know of no Law by which Roman Catholicks, as such, are disqualified from being Electors.
Such a Measure would, we submit give great Satisfaction to your Majesty's New as well as the Natural-Born Subjects; every Object of Civil Government, to which the limited Powers* of the Governor and Council cannot extend, would be fully answered ; and above all, that essential and important one, of establishing by an equal Taxation a permanent and Constitutional Revenue, answering to all the exigencies of the State,* upon such an Esti- mate as your Majesty, shall, with the Advice of your Servants, direct to be laid before them.
As to what regards the Complaints exhibited against Your Majesty's Governor, they relate to such a Variety of Circum- stances and Facts, of which we neither have, nor can have suffi- cient Information here, and do* refer themselves so much to the General State of Publick Measures there, that we are humbly of Opinion, thafit will be most advisable, as well in regard to the Publick Interest, as in Justice to all Parties, that the said Com- plaints should be transmitted to Your Majesty's Governor, with Directions to return to this Kingdom, in order to give Your Majesty an Account of the State of the Colony ;i and that in the mean time a proper person should be authorized to administer Government there, under the Character and with the appointment of Lieutenant Governor
Which is most humbly submitted.
DARTMOUTH
Signed SOAME JENYNS Whitehall 2»d Sep'' 1765.
JOHN YORKE J. DYSON
'On Oct. 24th, 1765, General H. S. Conway, who had succeeded the Earl of Halifax a- Secretary of State for the Southern Department, July 12th, 1765, wrote to Murray that, in con- sequence of representations of disorders in the colony, he was to prepare to return to give an account of the Province. On April 1st of the following year he was formally recalled. He departed from Canada on the 28th of June, 1766, leaving Col. P. Aemilius Irving, President of the Council, as acting Governor until the arrival of Col. Guy Carleton. See Canadian Archives, Q 2, p. 464. and Q 3, pp. 14 & 173.
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SESSIONAL PAPER No. 18 / '7^>^
An ORDINANCE, To alter and amend an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, passed the Seventeenth Day of September 1764.^
Whereas by an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, made and passed the Seventeenth Day of September, 1764, Intitled, An Ordinance for regulating and establishing the Courts of Judicature in this Province; His Majesty's has most graciously been pleased to signify His Royal Will and Pleasure therein, by an additional Instruction' to His said Excellency the Governor, "That the Welfare and "Happiness of His loving Subjects in this Province, which will ever be Ob- "jects of His Royal Care and Attention, do require that the said Ordinance "should be altered and amended in several Provisions of it, which tend to "restrain His Canadian Subjects in those Privileges they are intituled to "enjoy in common with his natural born Subjects:" And therefore it is His further Royal Will and Pleasure, That it should be declared, And by His Honour the President of His Majesty's Council, by and with the Advice, Consent and Assistance of His Majesty's Council of this Province, and by the Authority of the same. It is hereby Ordained and Declared, That all His Majesty's Subjects in the said Province of Quebec, without distinction, are intituled to be impannelled, and to sit and act as Jurors, in all Causes civil and criminal cognizable by any of the Courts or Judicatures within the said Province.
And for the more equal and impartial Distribution of Justice, Be it further Ordained and Declared, by the Authority aforesaid. That in all civil Causes or Actions between British born Subjects and British born Subjects, the Juries in such Causes or Actions are to be composed of British born Subjects only: And that in all Causes or Actions between Canadians and Canadians, the Juries are to be composed of Canadians only; and that in all Causes or Actions between British born Subjects and Canadians, the Juries are to be composed of an equal Number of each, if it be required by either of the Parties in any of the abovementioned Instances.
And be it further Ordained and Declared, by the Authority aforesaid. That His Majesty's Canadian Subjects shall and are hereby permitted and allowed to practice as Barristers, Advocates, Attornies, and Proctors, in all or any
' "Ordinances, made for the Province of Quebec, by the Governor and Council of the said Province. &c." Quebec. 1767. p. 72. Given also in Canadian Archives. Q 62 A 2. p. 515.
'The additional instruction here referred to runs as follows: — "Additional Instructions to Our trusty and well beloved the Honorable James Murray Esquire, Our Captain General & Governor in Chief in and over Our Province of Quebec and the Territories depending thereon in America. Given at Our Court at St. James's the Day of
"We having taKen into Our Royal Consideration the Ordinance enacted & published by you, on the 1 7"' day of Sep' 1 764 for Establishing Courts of Judicature in Our Province of Quebec; & it appearing to Us that the Welfare and Happiness of Our loving Subjects there, which will ever be Objects of our Care & Attention, do require, that the said Ordinance should be altered & amended in several Provisions of it, which tend to restrain Our Canadian Subjects in those Privileges they are entitled to enjoy in common with our Natural born Subjects; It is therefore Our Royal Will & Pleasure. & you are hereby directed & required, forthwith upon the Receipt of this our Instruction, to Enact and Publish an Ordinance, declaring that all Our Subjects in our said Province of Quebec, without Distinction, &c." The remainder is given in the ordinance. This instruction was approved in Council, 17th Feb., 1866. See Canadian Archives. Dartmouth Papers, M. 383, p. 152.
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of the Courts within the said Province, under such Regulations as shall be prescribed by the said Courts respectively for Persons in general under those Descriptions.
And be it further Ordained and Declared, by the Authority aforesaid, That this Ordinance shall continue in Force until His Majesty's Pleasure be further known herein ; and that so much of the said Ordinance of the said Seventeenth of September, 1764, as is not hereby altered and changed, shall and is hereby declared to be temporary only.
GIVEN by the Honourable PAULUS ^MILIUS IRVING, Esq; President of His Majesty's Council, Commander in Chief of this Province, and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of Quebec, this 1st Day qf July, in the Sixth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Sixty- six.
P : ^MIs. IRVING. By Order 6i the Commander in Chief of the Province,
Ja. Potts, D.C.C.
An ORDINANCE, In Addition to an Ordinance -of His Excellency the Governor and Council of this Province, of the Seventeenth of September, 1764, intituled, "An Ordinance for regulating and establishing the Courts of "Judicature in this Province."^
Whereas it has been often complained of, That there being no more than two Terms in the Year, appointed for holding His Majesty's Supreme- Court of Judicature, and Courts of Common-Pleas within this Province, is a Delay in obtaining Justice, and a great Prejudice to publick Credit; for Remedy whereof, Be it Ordained and Declared, by His Honour the Presi- dent and Commander in Chief of this Province, by and with the Advice, Consent and Assistance of His Majesty's Council, and by Authority of the same, It is hereby Ordained and Declared, That a new Term is by Virtue of this Ordinance established and added to the two former Terms, called Hillary and Trinity Terms, which said new Term shall be called Michaelmas Term, and shall commence and be held yearly, for the Dispatch of publick Business in the said Supreme Courts and Courts of Common-Pleas respectively, on every Fifteenth Day of October, with the same Number of Return Days there- in as is practised in the said two other Terms, called Hillary and Trinity Terms, with the same Liberty of appealing from the Judgments therein to be given, and all other Rights and Privileges as is and are established by an Ordinance of His Excellency the Governor and Council of this Province, of the Seventeenth of September, 1764, Intituled, "An Ordinance for regula- ting and establishing the Courts of Judicature in this Province," or by any other Ordinance in Addition to or in Amendment or Explanation thereof: And all Writs and Process whatsoever hereafter to be lawfully and regularly
' "Ordinances, made for the Province of Quebec, &c." 1767. p. 79. Given also in Canadian Archives, Q. 62 A pt. 2, p. 518.
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sued out of any of the said Courts, and made returnable the first or any other Return-Day of the said Term, called Michaelmas, by this Ordinance established, are hereby declared to be good and valid.
GIVEN by the Honourable PAULUS ^MILIUS IRVING, Esq; President of His Majesty's Council, Commander in Chief of this Province, and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City 0/ Quebec, this 26th Day 0/ July, in the Sixth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Sixty- six.
P : ^MIs. IRVING. By Ordier of the Commander in Chief of the Province, JA. Potts, D.C.C.
REPORT OF ATTORNEY AND SOLICITOR GENERAL REGARD- ING THE CIVIL GOVERNMENT OF QUEBEC.^
To The Right honble the Lords of the
Committee of Council for Plantation affairs. My Lords, — In humble obedience to your Order of the IQ**" of Novem' last wherein it is recited, that his Majesty having been pleased, to refer to your Lordships several memorials and Petitions from His Majesty's Sub- jects in Canada as well British as French, complaining of several of the Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature, and other Civil Constitutions; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report' made thereupon by the Lords Commrs for Trade and plantations dated the 2'' Sept' last and finding that the said Lords Commrs had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, That the said Memorials Petitions, and Reports (which were there- unto annexd) should be referr'd to Us, to consider and Report Our Opinion, and observations thereon, together with such alterations to be made in what is proposed in the said Report of the Lords Commrs for Trade and plan- tations, and such other regulations & propositions, as we should think fitt to suggest for the forming a proper plan of Civil Government for the said province of Quebeck; and to that end we were directed to take into our Consideration such parts of the annex't report of Governor Murray,' upon the state of the said province as relate to the Civil Government thereof whilst the same was Annex'd to the Crown of France, And were also required to send for Lewis Cramah^* Esq' Secretary to Governor Murray and Fowler Walker Esq' Agent for the said Province of Quebec, who were Order'd to attend us from time to time, to give us such further Lights and information as might be requisite for the purpose aforementioned.
'Canadian Archives, Dartmouth Papers, M 383, p. 170.
' See p. 237.
•See p. 51.
*See note 2, p. 231.
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We have perused the several papers referr'd to us, together with the said two Reports and have also been attended by the Gentlemen named in your Order; and upon the whole matter, beg leave humbly to submit to your Lordships such Reflections as have occurred to us in the Course of that imperfect consideration, which we have been Able at this Busy Season of the year to give to the Great subject of the Civil Government of Quebec and the propositions made by the Lords Commrs of Trade and plantations.
My Lords, it is evident that Two very principal sources of the Disorders in the province have been. 1" The attempt to carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Canadian Advocates or Sollicitors to Conduct their Causes, nor Canadian jurors to give Verdicts, even in Causes between Canadians only. Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgement; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them.
The second and great source of disorders was the Alarm taken at the Construction put upon his Majesty's Proclamation of Oct. T"" 1763. As if it were his Royal Intentions by his Judges and Officers in that Country, at once to abolish all the usages and Customs of Canada, with the rough hand of a Conqueror rather than with the true Spirit of a Lawful Sovereign, and not so much to extend the protection and Benefit of his English Laws to His new subjects, by securing their Lives, Libertys and propertys with more certainty than in former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Descent Alienation and Settlement, which tend to confound and subvert rights, instead of supporting them.
1" To the first of these Evils the Order made by your Lordships on the IS"" of Nov last founded on the Report of the Lords Commrs of Trades and plantations, requiring the GoV & Commander in Chief of the province (by an additional Instruction) to Publish an Ordinance for admitting Canadian Jurors, in the several Cases therein express'd, and for permitting Canadian Advocates, Attorneys, and Proctors, under proper regulations, provides an adequate Remedy.^
2"* To the Second Evil the Lords Commrs of Trade and plantations by their Report, have apply'd themselves with great Care, ability and Judgement, to suggest Remedys, by pointing out the defects in the late Ordinance of Sepf 1764 and reforming the Constitution of Justice; We concur with their Lord'"' in the objections made to the Ordinance; And upon the several articles of the Plan laid Down in that report, the following observations Occur to Us, both for the Confirmation and Improvement of them.
' See Ordinance of July 1st., 1766; p. 249.
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SESSIONAL PAPER No. 18
1" The first Article proposes a Court of Chancery consisting of the Gov' and Council, who shall also be a Court of Appeals, from whom an appeal will lie to the King in Council ; By this Article the Lords of Trade very rightly mean to Invest the Gov' and Council with Two different Jurisdictions; The One as a Court of Equity, to give relief originally in that Capacity the other as a Court of Errors, to review in the second Instance the Judgements of the Court of Common Law, mentioned in the next Article.
2"* The Second Article proposes a Superior Court of Ordinary Jurisdic- tion, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Justice should preside. Assisted by three puisne Judges; These are required to be conver- sant in the French Language, and that one of them particularly should be knowing in the French usages.
This proposition appears to us well conceive'd ; and we submit to your Lordships, whether it may not be adviseable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learning, Integrity and Conduct, who may prove of the greatest assistance to English Judges. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethren. The new Judge of Vice Admiralty for America has appointments of £800 per Annum.
3"> The Third Article relates to Terms for the sitting of the Superior Court at Quebec, either according to the Terms appointed at Westminster, or as may be more convenient. This matter must be accommodated to the Seasons, Climate and convenience of the people in their Tillage and other General employments, therefore it seems proper to be left to the future Judgement of the Gov' Chief Justice, and Principal servants of the Crown, entrusted with the Government of the province and ought to be fix'd by Ordinance.
4"" The Fourth Article proposes four Sessions of Assize, Oyer and Ter- miner, and Goal Delivery at Quebec, with like special Commissions, once or oftener in the year at Trois Rivieres and Montreal. We submit to your Lordships, that it may be unnecessary to lay down any particular Rules for holding four Sessions in the manner mentioned at Quebec; because all Civil and Criminal Causes arising in that District may be tried at Bar in Term time, or (as the legal Expression is) in Bank By Order of the Judges, or under the General powers of the supreme Court, As to the Circuit Courts to be held once, ©r perhaps twice in the year (which seems better) at Trois Rivieres and Montreal, We. think, that it may be proper to require that the Judges shall continue in each of those places, at the least, for a Certain Number of Days to give time and opportunity for the resort of partys and the convenient Dispatch of Business, in like manner as was done by Henry the 8"" in estab- lishing the Courts of Great Sessions for Wales, and by the Parliament in his late Maj*» Reign, when the Circuit Courts were settled for Scotland.
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S*"" The Fifth Article recommends the Distribution of the province into three Countys or Districts, of which, Quebec, Montreal and Trois Rivieres shall be the three Capital Towns, and that an Annual sheriff shall be named for each.
We are humbly of opinion that this Distribution of the province is more natural and convenient than the plan lately followed by the Governor and Council, and it will be more agreeable to the People, as it is conformable to their Antient Division of the Country. But considering the difficulty of procuring English and protestant sheriffs, especially at Trois Rivieres (where at present only Two persons who are half pay Officers reside thus qualified) it may deserve consideration whether such Sheriff should not serve longer than one year, till such time as the gradual increase of Inhabitants may facilitate an Annual Rotation; or whether the Annual Sheriff of Quebec may not also serve that office for Trois Rivieres This will oblige him, to appoint two Deputys or under Sheriffs, that is one for each District, And if this method be taken, the Sheriff may be made an Annual Officer, because Quebec can afford sufficient number of proper persons to supply the Rotation, and Montreal, (it is agreed) Can do the like.
6*'' The Sixth Article proposes to give the Justices of Peace in the three several Districts, at their General Quarter Sessions, Power to determine finally all causes not exceeding the value of Ten pounds (the Title to Lands not being in Question) with a Jury where it exceeds Five pounds and without one where it falls under that sum, it gives also to Two Justices in Petty Sessions, similar Authority in similar cases, where the value of the matter in dispute is not more than Forty Shillings. The latter Authority appears to us well proposed ; but we submit, whether it may not be better to reserve the Jurisdiction in matters exceeding that value as far as Ten pounds to be determined in Quebec, By proceeding in nature of the Civil Bill in Ireland before the Judges of the superior Court, or by proceeding in Nature of the summary Bench; Actions at Barbadoes, and in like manner in the Circuit Courts at Trois Rivieres and Montreal twice in the year; The value of Ten pounds is considerable in such a Colony and the reputation of the Justices of Peace is, as yet scarce enough establish 'd for such a Jurisdiction ; Under this Article We beg leave to suggest that in the Commission of the Peace for each District it may be useful and popular and endear his Majesty's Government to his new Subjects; if one or Two Canadians should be appointed Justices, with the others who are British, particularly if Protestants can be found fit for that Office.
y"" The seventh and last point mentioned in the Report of the Lords of Trade, on which we shall observe, is that Article wherein they propose, that in all Cases where Rights and Claims are founded on events prior to the Conquest of Canada the several Courts shall be Govern'd in their proceedings, by the French usages and Customs which have heretofore prevailed in respect to such property.
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This proposition is undoubtedly right, as far as it goes, in respect of Cases which happen'd, antecedent to the Conquest; but we beg leave to take Occasion from hence, to enlarge a little on this subject of the Rule of Judgement to be observed in the Courts of Quebec as it is of the greatest moment to the honor and Justice of the Crown, and to the Peace and prosperity of the Province.
There is not a Maxim of the Common Law more certain than that a Conquer'd people retain their antient Customs till the Conqueror shall declare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence; and therefore wise Conquerors having provided for the security of their Dominion, proceed gently and indulge their Conquer'd subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained the force of Laws, It is the more material that this policy be persued in Canada; because it is a great and antient Colony long settled and much Cultivated, by French Subjects, who now inhabit it to the number of Eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by his Majesty in this province will answer all the ends of their trust, both as to the King and to the people, if their conduct in Judicature be modell'd by the following General Rules.
1" First in all personal actions grounded upon Debts, promises. Con- tracts and Agreements, whether of a Mercantile or other nature, and upon wrongs proper to be compensated in damages, to reflect that the substantial maxims of Law and Justice are every where the same. The modes of proceeding and Trial, and perhaps in some degree also the strict Rules of Evidence may vary, but the Judges in the province of Quebec cannot materially err, either against the Laws of England, or the antient Customs of Canada ; if in such Cases they look to those substantial maxims.
2^ Secondly in all suits or Actions relating to Titles of Land, the Descent, Alienation, Settlements and incumberances of Real property, We are humbly of opinion, that it would be oppressive to disturb without much and wise deliberation and the Aid of Laws hereafter to be enacted in the province the local Customs and Usages now prevailing there; to introduce at one Stroke the English Law of Real Estates, with English modes of Conveyancing Rules of Descent and Construction of Deeds, must occasion infinite confusion and Injustice. British Subjects who purchase Lands there, may and ought to conform to the fix'd local Rules of Property in Canada, as they do in particular parts of the Realm, or in the other Dominions of the Crown. The English Judges sent from hence may soon instruct themselves by the assistance of Canadian Lawyers and intelligent Persons in such Rules, and may Judge by the Customs of Canada, as your Lordships do in Causes from Jersey by the Custom of Normandy; It seems reasonable also, that the rules for the Distribution
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of personal property in Cases of Intestacy and the modes of assigning and Conveying. It should be adhered too for the present.
3"* Thirdly in all suits entertained before the GoV and Council, as a Court of Chancery or Equity, it is obvious, that the General Rules of Law and Justice must be the same as in the other Courts, according to the sub- ject matter of the suit with this difference only, that the relief is more compleat and specific and adapted to supply the Defects, or allay the Rigor of those Rules.
4"^ Fourthly in Criminal Cases, whether they be Capital Oflfences or misdemeanors, it is highly fitting (as far as may be) that the Laws of England be adapted in the Discription and Quality of the offence itself, in the manner proceeding to charge the party to Bail or detain him. The Certainty, the Lenity of the English Administration of Justice and the Benefits of this Constitution will be more peculiarly and essentially felt by his Majesty's Canadian Subjects, in matters of Crown Law, which touch the Life, Liberty and Property of the Subject, than in the conformity of his Courts to the English Rules of Real and Personal Estates.
This Certainty and this Lenity are the Benefits intended by his Majesty's Royal proclamation, so far as concerns Judicature. These are Irrevocably Granted and ought to be secured to his Canadian subjects, according to his Royal Word. For this purpose it may not be improper upon the appointment of a new Gov' with a new Commission revised and Consider'd by your Lordships, to direct that Governor to publish an explanatory proclamation in the Province, to quiet the minds of the People as to the true meaning of the Royal proclamation of Ocf 1763 in Respect to their local Customs and usages, more especially in Titles of Land and Cases of Real property.
S"" Fifthly in Rules of process and the Practice of the Courts. We beg leave to suggest, that it may be expedient to order the new Chief Justice,' with the assistance of the other Judges, to be appointed and the Attorney General of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, and the convenience of the Suitors. The Forms of proceeding out to be simple easy and as summary and expeditious as may consist with the advancement of right and the protection of Innocence, useful hints may be taken not only from the supreme Courts of Westminster, but from the practice of the Courts
' On Feb. 5th, 1766, an official notice from the Secretary of State was sent to Chief Justice Gregory, stating that in consequence of his conduct His Majesty had no further occasion for his services and that Mr. Wm. Hey was appointed to succeed him. On the 17th of the same month, an oi?icial notice was sent to the Governor of Quebec that Hey had been appointed to succeed Gregory as Chief Justice, and directing that he should be invested with the office. See Q 3, pp. 1 & 2. For Key's Commission as Chief Justice, see p. 273.
2 On March 6th, official notice from the Secretary of State was sent to Geo. Suckling that there being no further occasion for his services as Attorney General, Mr. Francis Maseres is appointed to succeed him. On March 18th official notice was also sent to the Governor of Quebec, of the appointment of Maseres in the place of Suckling. See Q 3, pp. 3 & 4.
Of Gregory and Suckling Murray reported, that "our chief Judge and Attorney General are both entirely ignorant of the Language of the Natives, are needy in their Circumstances and tho' perhaps good Lawyers and Men of integrity, are ignorant of the World, consequently readier to Puzzle and create Difficultys then remove them." Q 2, p. 378.
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in Wales, and from many of the Colonys. Some time will be necessary, before such a plan can be framed and experience alone can perfect it. As soon as they shall have prepared it, the Governor and Council may enact it by an Ordinance and transmit the same in the accustomed manner, to be laid before his Majesty for his Royal approbation. All which is humbly submitted &c*
C. YORKE W" DE GREY April U"" 1766
Endorsed: — Report of the Attorney and Sollicitor General, relative to the Civil Government of the province of Quebec. 13"" May 1766.
Read at the Committee and the Board of Trade Order'd to prepare a draught of an additional Instruction thereupon &c.
No 9
CONSIDERATIONS ON THE EXPEDIENCY OF PROCURING AN ACT OF PARLIAMENT FOR THE SETTLEMENT OF THE PROVINCE OF QUEBEC (BY BARON MASERES) LONDON PRINTED IN THE YEAR MDCCLXVI.i
The Difficulties that have arisen in the government of the province of Quebec, and which are likely still to occur in it, notwithstanding the best intentions of those who are intrusted by His Majesty with the administration of affairs there, are so many and so great that the Officers, whom His Majesty has been pleased of late to nominate to the principal departments in that government, cannot look upon them without the greatest uneasiness and apprehension, and despair of being able to over- come them without the assistance of an act of Parliament to ground and justify their proceedings. Two nations are to be kept in peace and harmony, and moulded, as it were, into one, that are at present of opposite religions, ignorant of each others language, and inclined in their affections to different systems of laws. The bulk of the inhabitants are hitherto either French from old France, or native Canadians, that speak only the French language, being, as it is thought, about ninety thousand souls, or as the -French represent it in their Memorial, ten thousand heads of families. The rest of the inhabitants are natives of
' Francis Maseres was appointed Attorney General of the Province of Quebec early in March 1766, though his Commission, as issued at Quebec under the authority of Governor Carleton, is dated Sept. 25th, 1766. These "Considerations" were written by Maseres before he went to Quebec, and are of interest not only for the points with which they deal, but in comparison with other important papers afterwards published by him and relating to the question of the govern- ment and laws of the Province of Quebec. Representative examples of his later proposals and discussions are included in this volume.
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Great Britain or Ireland, or of the British dominions in North- America, and are at present only about six hundred souls; but, if the province is governed in such a manner as to give satisfaction to the inhabitants, will probably every day increase in number by the accession of new settlers for the sake of trade and planting, so that in time they may equal or exceed the num- ber of the French. The French are almost uniformly Roman Catholics: there were only three protestant families among them at the time of the conquest of the province; and probably that number is not much increased among them, as no endeavours have been used for their conversion. But, what is more to be lamented, is that they are violently bigotted to the Popish religion, and look upon all Protestants with an eye of detestation. This unhappy circumstance has been, and is still likely to be, a ground of enmity and disunion between the old and new inhabitants. The French insist, not only upon a toleration of the public worship, but on a share in the administration of Justice, as jury-men and justices of the peace, and the like, and on a right, in common with the English, of being appointed to all the offices of the government. The English, on the contrary, affirm, that the laws of England made against the Papists ought to be in force there, and consequently that the native Canadians, unless they think proper to turn Protestants, ought to be excluded from all those offices and various branches of power, and in some degree they seem to be supported in this opinion by a part of the governor's commission; I mean that part which enables him to call and constitute a general assembly of the free-holders and planters of the province: for it is there expressly provided, that no person elected to serve in such an assembly, shall sit and vote there till he has subscribed the declaration against Popery prescribed by the statute 25. Car. 2 which would effectually exclude all the Canadians. Sri RomTn"^ The grounds upon which the French demand a toleration Catholic Qf (-he Catholic religion, are partly the reasonableness of the thing itself, they being almost universally of that religion, and partly the stipulation made on that behalf in the fourth article of the definitive treaty of peace, and which is expressed in these words : "His Britannic Majesty on his side agrees to grant the liberty "of the Catholic religion to the inhabitants of Canada; he will "consequently give the most effectual orders that his new "Roman Catholic subjects may profess the worship of their "religion, according to the rites of the Romish church, as far "as the laws of Great Britain permit."
These last words, "as far as the laws of Great Britain permit," render the whole stipulation in favour of this toleration
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very doubtful; for it may reasonably be contended, that the laws of England do not at all permit the exercise of the Catholic religion.
For in the first place, these words seem to refer to some degree of toleration of the Catholic religion, already actually subsisting in some part of the British dominions, and by virtue of the laws of Great Britain; and if so, they convey no right to any toleration at all, because no degree of toleration is already actually allowed by the laws of Great Britain in any part of the British dominions.
2'"^, Supposing these words not to refer to any toleration of the Catholic religion now actually subsisting by virtue of the laws of Great Britain, but to mean only such a degree of toleration as (though it does not actually subsist in any of the British dominions by virtue of the laws of Great Britain, yet) may subsist without a breach of the laws of Great Britain, yet still there will be great reason to think that the laws of Great Britain do not permit this toleration in any degree. For in the first place, the stat. of 1 Eliz. cap. i. for restoring the suprem- acy in ecclesiastical matters to the Crown, expressly extends to all the Queen's future dominions, as well as to those belonging to the Crown at the time of making the act. The words of the 16"' section are as follows: "Be it enacted, &"., that no foreign "prince, person, prelate, &° spiritual or temporal, shall at any "time hereafter use or exercise any manner of power or jurisdic- "tion, spiritual or ecclesiastical, within this realm, or within "any other your Majesty's dominions, or countries, that now "be, or hereafter shall be, but shall be clearly abolished out of "this realm, and all other your highness's dominions for ever." And in the next section, all this ecclesiastical jurisdiction or supremacy, is united and annexed for ever to the Crown. It is clear therefore that the King is, by the laws of Great Britain, supreme head of the church in the province of Quebec, as well as in England itself. Now it is the very essence of Popery, that the Pope, and not the King, is supreme in all spiritual matters. Consequently this essential article of Popery cannot, by virtue of the stipulation in the definitive treaty, be tolerated; but all appeals to the Pope, all exercises of ecclesiastical authority in Quebec, by the Pope, or his legates, or any other person com- missioned by him, all nominations to benefices, or to the bishoprick of the province, (which is a power the Pope has hitherto exercised, at least so far as to approve the bishop before he entered upon the functions of his office) must now be illegal and void.
But this act goes a great deal further; for it requires all ecclesiastical persons whatsoever, and likewise all lay-persons
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holding temporal offices, or employed in the service of the Crown, and likewise all persons holding lands of the Crown, and doing homage for them, to take the oath of supremacy to the Queen, or her successors, under pain of losing their benefices, or temporal ' offices, &" and this not only in the realm of England, but in
any of the Queen's highness's dominions. So that by this part of the act, all the Canadian clergy, and a great part of the laity, might be required to take the oath of supremacy, which it is well known the most moderate Catholics cannot take, it being contrary to the fundamental article of their religion; for the difference between the moderate Catholics and the more furious and zealous Papists, who are mostly guided by the Jesuits, consists principally in this circumstance, that the latter ascribe to the Pope an unlimited power in temporal as well as spiritual matters, and affirm that he may depose kings, and absolve subjects from their allegiance, and do other the like extravagant mischiefs; whereas the former deny his temporal, and acknow- ledge only his spiritual supremacy.
It is true indeed, this oath of supremacy is taken away by the Stat. 1 Will. cap. 8. But another shorter oath of supremacy, (containing a mere denial of the Spiritual, or Ecclesiastical power of the Pope, or any other foreign Prince, and which is therefore*) equally contrary to the sentiments of all Roman- Catholics, is appointed to be taken in its stead, and by the same persons, and under the same penalties, as before.
It appears therefore, from the statute 1. Eliz. cap. i. alone, without considering any other of the laws against Popery, that the exercise of the Popish religion cannot be tolerated in the province of Quebec, consistently with the laws of England; and consequently that it cannot be tolerated there at all by virtue of the stipulation of the definitive treaty above-mentioned, because that stipulation has an express reference to the laws of England.
Further by the next act in the statute-book, or stat. 1 Eliz. cap. ii. for the uniformity of common-prayer and service, it is enacted, "That every minister of a parish-church, &° within "this realm of England, Wales, and marches of the same, or "other the Queen's dominions, shall be bound to use the book of "common-prayer, and shall use no other service, under pain of i "incurring certain heavy penalties."
By this act, the mass is prohibited in all parish-churches in all her Majesty's dominions.
*The words in parenthesis do not appear in the manuscript copy in the Canadian Archives Q 56 1, pp. 124-151, but are given in a printed version published in 1809.
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This act does not indeed say expressly, as the former does, that it shall extend to all her Majesty's dominions that hereafter shall be, as well as those that at present are, belonging to the Crown of England. But there is reason to believe it meant so; or at least there is room for doubt. And if it does mean so, the mass is prohibited by it in the province of Quebec.
Upon these reasons we may conclude, that the exercise of the Catholic religion cannot, consistently with the laws of Great Britain, be tolerated in the province of Quebec.
Yet that it should be tolerated is surely very reasonable, and to be wished by all lovers of peace and justice and liberty of conscience.
By what authority then shall it be tolerated ? this is the only question that remains. Shall the King alone undertake to tolerate it ? will it be adviseable that he should exercise, though for so good an end, a power of dispensing with the laws ? will it not give room to a thousand censures and odious reflections and comparisons ? The authority of Parliament seems to be a much safer foundation to establish this measure upon, in a manner which neither the new English inhabitants of the province can Contest, nor the French Catholics suspect to be inadequate. S"Law"'°^ The next great difficulty that occurs, is the settlement of the laws, by which the province of Quebec is for the future to be governed. The law upon this subject seems to be this; 1st, That the laws of the conquered continue in force till the will of the conqueror is declared to the contrary; this follows from the necessity of the case, since otherwise the conquered provinces would be governed by no laws at all. 2dly, That after the declaration of the will of the conqueror, the conquered are to be governed by such laws as the conqueror shall think lit to impose, whether those are the old laws by which they have been governed before, or the laws by which the conquerors are governed themselves, or partly one, and partly the other, or a new set of laws different from both. 3dly, That by the conqueror is to be understood the conquering nation, that is,
I in the present case, the British nation; that consequently by
the will of the conqueror is to be understood the will of the British nation, which in all matters relating to legislation is Expressed by the King and Parliament, as in all matters relating to the executive power it is expressed by the King alone; that therefore the Parliament only have a power to make laws for the province of Quebec, or to introduce any part of the laws of Great Britain there, or to delegate such a power of making or introducing laws to any other hands, notwithstanding it may happen that in fact such a power may inadvertently have been
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delegated to the governor and council of the province by a private instruction of the King alone. For if the contrary doctrine were true, that the King alone had the whole legislative power in the province of Quebec, it would follow, that not only all the conquered Canadians, but all the new English settlers there, would become slaves or subjects to an absolute and arbitrary government, the moment they set their foot there. The King might introduce the severest laws, and most cruel punishments, the inquisition, the rack, and the wheel, and might make all his subjects there, both old and new, tenants at will of their lands and other property, and tax them in any degree whensoever he thought fit. He might keep a standing army there, without consent of Parliament, and raise money to pay them by his own authority, and with such an army, a prince of James II's. disposition, might oppress the liberties of the other adjoining colonies, or even of Great Britain itself. These are dreadful consequences, but follow clearly from such a doctrine; for which reason the doctrine itself ought not to be maintained. The other opinion, that the conquered people, when once ceded to the Crown of Great Britain, are thereby admitted to be British Subjects, and immediately intitled to participate of the liberties of other British Subjects, and are therefore to be governed according to the rules of the limited monarchy of Great Britain, by which the executive power is vested solely in the King, but the power of making laws and raising taxes in the King and Par- liament, is a much safer and more reasonable opinion.
It is therefore to be wished, that an Act of Parliament might be obtained that at once declared what laws should take place in the province of Quebec, whether the laws of the conquered, or the laws of Great Britain, or some of the laws of the conquered, and some of the laws of Great Britain; Or whether any other laws should be introduced there, more peculiarly fitted to the circumstances of the province; and if any, then what laws should be so introduced : Or, if this detail be thought too trouble- some for the Parliament to enter upon, and their informations concerning the state of the province should be deemed to be as yet too imperfect to enable them to go through such a business with propriety, then it is to be wished that an act of Parliament may be obtained, by which such a legislative power of making laws and ordinances for the good government of the province might be delegated to the governor and council, as has been already exercised by them by virtue of an instruction from the King alone. By such a delegated parliamentary authority, they may enquire into the state of the Canadian laws and customs already in force there, and may revise them and reduce them into
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writing, and enact such of them as shall be found beneficial to the province, and fit to be continued; and may introduce such parts of the laws of England, as they shall think to be for the advantage of the province; and likewise as occasion offers, make such other new laws and regulations as shall be necessary for the good government of it : And in so doing they will have a due regard to the heads of advice suggested by Mr. Attorney Yorke, and to such other intimations and instructions as the government shall think proper to communicate to them. And lest this legislative power should be abused or injudiciously executed by the governor and council, there might be a clause in the act of Parliament directing them to transmit these several laws and ordinances to the King and Privy Council in England, to be by His Majesty in council allowed or disallowed, as his Majesty shall see cause. Only they should be in force till dis- allowed, and, if not disallowed within a certain time, as for instance two years, they should then be in force for ever, unless repealed by act of Parliament. Laws and ordinances founded on such a parliamentary authority will easily find obedience from the people, which it is to be feared no others will; and the judges of the province will carry them into execution with ten times as much spirit and confidence as if they were doubtful of their legal validity.
Suppose a Criminal in Canada to be guilty of an offence that is capital by the laws of England, but is not so by the laws of Canada that have hitherto been received, (a supposition that is no way difficult as the criminal law of England abounds with capital offences) in what manner shall such a man be punished, unless there is a parliamentary declaration determining the punishment that shall attend his crime ? Could any lesser authority warrant the infliction of death for such a crime ? Or would any judge chuse, though he should be sure of never being called to account for it, to pass such a sentence without the highest authority ? But if the punishments of crimes be settled by authority of Parliament, whether immediately by the Parliament itself, or mediately by ordinances made by the gov- ernor and council of the province, by virtue of a legislative authority communicated to them by act of parliament, the judges will be under no other difificulty what punishments to inflict upon the several criminals, that come before them, than they are in Great Britain itself.
Some persons are of opinion, that the laws of Great Britain do at once take place in a conquered province, without any authoritative introduction of them, either by the King, or Parliament. But this opinion seems destitute of foundation,
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and is sufficiently refuted by the advice of the learned M' Yorke,* His Majesty's attorney-general, who has advised that the Cana- dians should be permitted to retain their own laws, relating to inheritances and the alienation of their real estates, which would be impossible without an act of Parliament for that purpose, if the whole System of the laws of England did ipso facto become the law of the province upon its being conquered, or ceded to the Crown. Indeed, the whole system of the laws of England, taken in the gross, and without a selection, would be by no means a blessing to the Canadians. The game-laws, the poor-laws, the fictions and subtleties in various sorts of actions and conveyances, the niceties arising from the doctrine of uses, and the tedious and operose instruments founded on them, would really be a great misfortune to them; and from their novelty and strangeness, would be thought to be a much greater.
)j This doctrine therefore of the instant validity of the whole J mass of the laws of England throughout the conquered Province ] cannot be true. And if the whole system of those laws is not valid there, then certainly no part of them can be so. For if they are, then who shall distinguish which of them are valid there and which are not ?
It may therefore be concluded, as at first, that none of the laws of England are valid in the conquered province ipso facto by virtue of the conquest, or cession, without a positive intro- duction there by a sufficient authority: and this sufficient authority seems, for the reasons already mentioned, to be only the Parliament of Great Britain. ^eR^lnue! ^he next great difficulty that calls loudly for the inter- position of Parliament, is the low state of the revenue of the province of Quebec. Under the French government this revenue amounted to about thirteen thousand pounds per annum, but is now sunk to less than three thousand. The cause of this is the change in the course of trade, by which means it falls out, that those taxes which produced the principal part of the revenue, now, though still in force, produce nothing at all. The principal of those taxes was a duty upon French wines, which were imported there from old France in great quantities. This single duty produced 8,0001. a year; now it produces nothing, because no wines are allowed to be imported there from old ' France. Nor would it be replaced by an increase of the con- sumption of Spanish or Portuguese wines, supposing the tax might be construed to extend to those wines; for the Canadians do not like them, and will not drink them. From a like cause,
• See Report of Yorke and de Grey on the Civil Government of Quebec, p. 251.
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another duty which formerly made a considerable part of the public revenue, which was a duty upon French brandies imported from old France, and French rums imported from the French West-India Islands, now produces nothing at all. From these causes the revenue is sunk so low that it is insufficient to defray the expence of the civil government, though the establishment of it is so very moderate. It is therefore become necessary, either for the treasury of England to issue a sufficient annual Sum to make good the salaries of the several officers of the govern- ment, or that some new tax should be imposed upon the inhabi- tants, in aid of those which by reason of these accidents have failed, sufficient for all the purposes of the government. If this latter method should be adopted, it is presumed that the authority of Parliament will be the proper power to have recourse " to, that there may be no colour or pretence for contesting the
legality of the taxes so imposed. This power also the Parliament may exercise, either immediately itself by imposing a tax upon the province of Quebec this very session, before the Parliament rises, or it may delegate to the governor and council a power to impose such taxes as they shall find necessary for the support of the government, subject, as above, to the disallowance of the King and Privy Council, in order to prevent abuses, and with proper clauses of restriction and appropriation of the money so raised, in order to prevent a misapplication of it, either by the Officers of the province, or at home.
If the Parliament should think proper itself to lay a tax upon the Province, information has been received from persons well acquainted with the state and trade of the province, that British spirits would be the commodity that could best bear a duty, and would produce the best revenue; that there are an- nually imported into the province about 250,000 gallons of these spirits, and that they might bear duty of three-pence a gallon without hurting the trade, but not more ; and this would produce about 3,0001. a year.
The malicious and desperate enemies of an upright and popular Administration, may perhaps traduce such a measure as inconsistent with their late indulgent conduct with respect to the other American colonies in the late repeal of the stamp- act. But the difference of the cases is too striking to make such a calumny in the least degree formidable. The other American colonies have internal legislatures of their own, who have been permitted, ever since their first establishment, to be the assessors of all their internal taxes; and, as they had not abused this privilege with which they had been so long indulged, and further, as their exercising this privilege seemed to be no
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way prejudicial to the mother-country, it seemed to have been a harsh and ungracious measure in the ParHament, by the advice of the late ministry, to revive and exert a dormant and inherent right of taxing them; which however the whole Parliament, excepting a very few members of both houses, have highly declared themselves to be possessed of. But the Canadians have no such internal legislature, no such usage of taxing them- selves by representatives of their own chusing. Unless therefore they have the singular privilege of not being liable to be taxed at all, they must be liable to be taxed either by the King alone, or by the King and Parliament; and the milder of these two opinions is that they are taxable by the King and Parliament. Those therefore who should promote the taxing them by authority of Parliament, would act like the truest friends to civil liberty, and with the same spirit of mildness and moderation that con- ducted them in the repeal of the stamp-act.
If it should be said, that the province of Quebec ought to have an assembly in the same manner as the other American colonies, and that the taxes ought to be imposed by the consent of such an assembly, it will be sufficient for the present purpose, and to support the measure here suggested of taxing them by authority of Parliament, to answer that as yet no such assembly has been constituted; and till an assembly is erected, whether that time be short or long, the safest and mildest method of imposing taxes is to do it by authority of Parliament. As^mbly ^^ *° *^^ erecting an assembly in that province, it is a mea-
sure which probably will not for some years to come be found expedient. If an assembly were now to be constituted, and « the directions in the governor's commission, above alluded to, were to be observed, by which none of the members elected there are to be permitted to sit and vote in the assembly till they have subscribed the declaration against Popery, it would \ amount to an exclusion of all the Canadians, that is, of the bulk I of the settled inhabitants of the province — ^ An assembly so
' This question arose in a very practical form in the island of Grenada, which, together with Canada, was transferred from France to England by the Treaty of 1763. It was referred to Attorney General Yorke for his opinion, in 1766. The case and opinion are summarised as follows:— "Case submitted to the Hon. C. Yorke with regard to Grenada, where the French residents have taken the oaths of allegiance, supremacy, and abjuration, but cannot make the declaration against transubstantiation. Of the 24 members composing the Assembly, they desire to have six chosen out of their own people; and of the 12 members in Council, they desire two; and one justice of the peace in each quarter, of which there are four; and they are now applying to the Administration to be indulged in these respects. In the Leeward Islands, Barba- does, and Jamaica, they do not admit a person to be of the Council, Assembly, or a justice of the peace, but such as not only take the oaths of allegiance, supremacy, and abjuration (which all the French at Grenada have done), but also subscribe the declaration against transubstantiation; and in Grenada they follow the same rule. The questions submitted are—
"I. 'Can or ought the Act directing the test, made so long before the conquest of these countries, inhabited by Roman Catholics only, to be considered as a prohibitory law, excluding every Roman Catholic from any civil office in his own country ? Or ought it to be considered as a law of Great Britain not extending to conquests ?'
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constituted, might pretend to be a representative of the people there, but in truth it would be a representative of only the 600 new English settlers, and an instrument in their hands of dom- ineering over the 90,000 French. Can such an assembly be thought just or expedient, or likely to produce harmony and friendship between the two nations ? Surely it must have a contrary effect.
On the other hand, it might be dangerous in these early days of their submission, to admit the Canadians themselves to so great a degree of power. Bigotted, as they are, to the Popish religion, unacquainted with, and hitherto prejudiced against the laws and customs of England, they would be very unlikely for some years to come, to promote such measures, as should gradually introduce the Protestant religion, the use of the English language, of the spirit of the British laws. It is more probable they would check all such endeavours, and quarrel with the governor and council, or with the English members of the assembly, for promoting them. Add to this, that they are almost universally ignorant of the English language, so as to be absolutely incapable of debating in it, and consequently must, if such an assembly were erected, carry on the business of it in the French language, which would tend to perpetuate that language, and with it their prejudices and affections to their former masters, and postpone to a very distant time, perhaps for ever, that coalition of the two nations, or the melting down the French nation into the English in point of language, affec- tions, religion, and laws, which is so much to be wished for, and which otherwise a generation or two may perhaps effect, if proper measures are taken for that purpose. And further it may be observed, that the Canadians themselves do not desire an assembly, but are contented to be protected in the^ enjoyment of their religion, liberties, and properties, under the administration of his Majesty's governor and council. If, to give a proper stability to this mode of government, it is carried on by authority of Parliament, and is properly superintended,
"II. 'Is it in the power of the King, on any good consideration, to dispense with the test against transubstantiation in his new subjects in these conquered countries, either for ever or for any certain time ? Or can this test be dispensed with by Act of Parliament only ?'
"Mr. Vorke's reply is written on the blank pages of the 'case' submitted to him, apparently by his own hand. He says that in the new conquests, ceded by the late treaty, it is matter of political judgment whether His Majesty will require it to be taken by all persons who may become members of the Assembly or Council, or be appointed justices of the peace; but that the statute does not extend to them. The treaty of peace stipulates only the free exercise and toleration of the Roman Catholic religion in the countries ceded by France. His Majesty is still the judge whether he will demand the test from persons employed in offices of trust, or in any function relating to Government, so as to exclude his new subjects from any share in it. French Papists will readily enough renounce the supremacy of the Pope, and disclaim a foreign ecclesiastical jurisdictiion; but the test relates to a tenet of their religion and worship and there- fore cannot in conscience be taken by them.
"It is mentioned that Canada was inhabited by 80,000 French Roman Catholics, and 200 or 300 English only." Calendar of Home Office Papers; 1766-1769, No. 403.
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as no doubt it will be, by the wisdom of his Majesty's Privy- Council, they will think themselves extremely happy under it. The persons who most desire the immediate constitution of an assembly, are some of the six hundred English adventurers, who probably are ambitious of displaying their parts and elo- quence in the characters of leading Assemblymen.
But if an assembly is to be constituted, even this too had better be done by act of Parliament than by the King's single authority, as it is no less than severing from the general body of his Majesty's dominions a particular part of them, with respect to the purposes of making laws and imposing taxes. Could the King, if he thought proper, and a particular county of England was to desire it of him, sever that county from the rest of England, and no longer summon any of its members to Parliament, but instead thereof constitute a little Parliament in that County itself, that should make laws and lay taxes for the inhabitants of that single county ? It is presumed that he could not: and the erecting an assembly in a conquered province is an act of much the same nature. It is true indeed, that some of the American charters and assemblies owe their rise to this authority: but this was in the reign of the Stuarts, who were fond of extending their prerogative; and, on account of the inconsiderableness of the colonies at that time, these things were then unnoticed ; so that they do not prove the strict legality of the practice. Since that time these charters have been put in practice by the colonies, and acquiesced in by the mother-country, and in some measure recognized in Parliament and this usage, acquiescence and recognition, are in truth their best support.
But if an assembly is to be constituted, in which the Catho- lics or Canadians are to be admitted, (as in justice and reason they ought to be, if any assembly at all is to be erected) the authority of Parliament seems to be still more necessary to give validity to such a measure.
For the reasons that have been just now mentioned, it seems evident, that the measure of erecting an assembly in the province of Quebec is somewhat premature. How soon it will become expedient and proper, experience only can shew. But in the mean time, however short that time may be, it seems necessary to have recourse to the authority of Parliament for settling the government of the province, and removing the difficulties that obstruct the settlement in the three great articles of Religion, Law, and Revenue. It is therefore the humble request of all the gentlemen who have lately been appointed to the principal offices in the government of Quebec, to his Majesty's
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Ministers of State, that they would use their influence and en- deavours to procure such an act of ParHament as they shall upon the whole matter think to be necessary, to remove the difficulties that have been stated, and to enable the said gentle- men to administer the government of that province in their several departments, with security to themselves, and advantage to the province.
ACTING GOVERNOR IRVING TO THE LORDS OF TRADE.'
Copy. Quebec 20"^ August 1766.
My Lords,
As the Courts of Justice are now sitting, I have an opportunity to observe the good Effects of the Additional Instruction,' which, by assuring to the Canadians the Privilege of being Jurors, and of having Lawyers that can speak their own Language, has contributed very much to quiet their minds, not a little alarmed by the long Delay which the matters that Captain Cramah6 was charged with, met with in London. All that to me seems j wanting at present, is a permanency to the inferior Court, and an Augmen- Vl^ tation of the Terms of its sitting. The Slowness of the Proceedings of the ' ^ Superior Court, has rendered the inferior one of great Utility to the Publick, and the small Fees taken in it, have prevented the people from becoming the Prey of attomies. The Chief Difficulty that has occurred is what happens in appeals from it to the Superior Court; as the Proceedings are threatened to be reversed on Account of deviation from the English Form, without entering into the merits of the Cause, or the Reasons upon which the Judgment was founded: The Canadian Advocates must have been in- spired to have been able in so short a time to comply with Forms to which they were all Strangers, especially as the Ordinance directing the Nature of Proceedings in that Court has never been published, on Account of the uncertainty the Council was in, whether His Majesty would approve of what had already been done in these Matters or not.
Governor Murray had the Honor last Summer to transmit to your Lord- ships a Plan given by the Attorney General for the Administration of Jus- tice, and agreable to that of Halifax. It appear'd to the Council rational and Simple. It is to be hoped the new Chief Justice will bring over full Instructions relative to these Matters.
As there are no Protestants residing in the distant parts of the Province, who are in any respect fit to be made Justices of the Peace, it would be very usefull, if a Latitude could be given to increase a little the Power of the Bailliffs in these places.
Some more certain Authority to the Judges of the Inferior Court to adhere to the Coutume de Paris in their Decisions would render the present
' Canadian Archives Q 3, p. 249.
» See Ordinance of July let, 1766, and note to same, p. 249.
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System of administ'ring Justice easy to the people, and a certain, though moderate, method to introduce our Laws, as far as they are favorable to Liberty, into the Province. The Government here, tho' they wish to secure the People's Possessions, and the Peace of their Families by adhering to their Customs and Usages, relative to the tenure of their Lands, and their manner of Succession, are far from intending that the Judges should have the same arbitrary power of proceeding as the French Judges had; a Power, which is always dangerous, and which I am certain the Judges, named by Governor Murray for the inferior Court, are very far from aspiring after.
In order to expedite Business, as well as forward the levying the Duties ordered by His Majesty in Council, to be continued in this Province, an Additional Term has been found necessary, as you will see by an Ordinance, ^ which I have the honor to Enclose to your Lordships, as well as one proposed for regulating pilotage in the River Saint Lawrence; this last has not been published, as before next Season there will be sufficient time for your Lord- ships to signify either your Approbation or disapprobation of it; a Circum- stance, that I could wish would attend every Ordinance, as appeals are always attended with Inconvenience.
I send you a Copy of the Attorney General's Report, relative to the Difficulties attending the levying the Duties" ordered by His Majesty in Council, to be continued in this Province.
I have the honor to be with much Respect, My Lords, Your Lordships most obedient humble Servant. P. .EMI" IRVING.
To the Right Honorable the Lords Commissioners for Trade and Plantations.
PETITION OF SEIGNEURS OF MONTREAL.' Au Roy.
Les Seigneurs des terres et proprietaires des fiefs du district de Montreal en la province de Quebec, au pied du throne de Votre Majesty penetr^s de la plus vive Reconnoissance, de toutes les marques de Bont6, dont il a plflt k Votre Majeste, de les favoriserdepuis qu'ilssont sous Votre Domination, Ozent prendre la Liberty, de lui presenter icy leurs tres humbles actions de Grace en leurs Noms et Celuy de leurs tenanciers.
Le Soin vraiment paternel, que Votre Majesty n'a cess6 d'apporter pour leurs Interets temporels. La Grace Signalize de posseder un Eveque, a excit6 dans le Coeur de tous les Nouveaux sujets les plus vifs sentiments de reconnoissance, D'amour et de fidelit6 envers Votre Majesty.
' See Ordinance of July 26th, 1766, p. 250.
' This report is given in Canadian Archives, Q 3. p. 254. In the same volume will be found several other papers on this subject. • Canadian Archives, Q 4, p. 31.
CONSTITUTIONAL DOCUMENTS 271
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lis Ne Sont pas moins sensibles cl la derni^re preuve de Votre tendresse, dont ils ont ressenty les gracieux effets dans la revoccation de L'acte des timbres. 1
Ils Supplient Votre Gracieuse Majest6, qu'il leur soit Permis, de la remercier de leur avoir Donn6 pour Gouverneur L'honnorable Jacques Muray. . ils ozent esperer qu'elle voudra Bien leur Conserver, ce Digne Gouverneur, ses lumieres son Equitt6 sa prudence luy fournissent toujours des moyens efficaces pour maintenir les peuples dans la tranquillity et I'obeissance.
Les Marques de la Bont^ d'un Roy, souvent r6iter6es en font toujours esperer de Nouvelles; c'est sur cela Qu'ils ozent luy Demander Deux graces, elles mettroient le Comble aux faveurs de Votre Majest6, et k leur Recon- noissance, & leur attachement.
La premiere, est la supression du R^gisterre, dont les frais epuisent la Colonic sans quelle, en recoive Le moindre avantage.
La seconde est que tous les Sujets en cette province sans aucune Distinction de Religion soient admis cl toutes les Charges sans autre Choix, que les talents et le meritte personnel, etre exclus par Etat d'y participer, n'est pas Etre member de I'estat, s'ils en ressent I'humiliation, ils ne con- noissent pas moins le prix d'une grace aussy Distingute, pour laquelle lis ne peuvent offrir que des Coeurs pleins d'Amour et de Reconnoissance, Leur Zele, leur attachement et leur fidelity en seront les preuves marquees dans tous les tems a venir.
Perpetuellement, leurs discours, et leurs exemples tendront k maintenir leurs tenanciers dans les sentiments de la fidelity et soumission Qu'ils vous doivent, ils offriront sans cesse leurs prieres et leurs voeux pour la Gloire et la Conservation de Votre Majest6 et de votre auguste famille. Le Chv' D'ailleboust Dailleboust De Caisy D'Chambault St. Ours
Lacorne Montizambert
Ninerville Blanau
Rouville daudeguee
Neveu Lavalterie
lefebvre Boucherville
Montenon J. de Muy
Normand Chev. Hertel
Linctot Pierre Lesieu (r) MS torn
Hertel And. Barril
Duchesny Godfroy
Duchesne Normanvi (He) MS torn
Le Che' Ninerville God. Tonnancou (r) MS torn
Crosse le febvre
' Referring to Grenville's Stamp Act, passed in 176S and which applied to Canada as well as to the other American colonies. It was repealed in March 1766.
272 CANADIAN ARCHIVES
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J. Courval Desisles
La Grenier (frenier ?) Beaulac
Crevier L. Descheneaux.
St. frangois J. Descheneaux.
poisson Gentilly.
Endorsed: — Petition to The King from the Principal People of Mon- treal R/ 3^ Febry 1767.
(Translation.) To THE King.
The Seigneurs of the lands and proprietors of the fiefs of the district of Montreal, in the province of Quebec, at the foot of Your Majesty's throne, filled with the deepest Gratitude for all the marks of Favour with which it has pleased Your Majesty to honour them, since they have been under Your Government, Dare to take the Liberty of here presenting to You their most humble supplications in their own Names and those of their tenants.
The truly paternal Care which your Majesty has never ceased to bestow on their temporal Interests, and the signal Favour of possessing a Bishop have roused in the hearts of all the New subjects the liveliest sentiments of gratitude, of love, and of fidelity toward Your Majesty.
They are no less sensible of the last proof of Your affection, of which they have experienced the beneficial effects, in the revocation of the stamp act.
They beg Your Gracious Majesty that they may be permitted to thank "^ You for having given them as Governor, the honourable James Murray, they dare to hope that You will graciously continue to them this Worthy Governor whose clearsightedness. Equity and wisdom continually afford him efficacious means for maintaining the people in tranquillity and obedi- ence.
The frequently repeated Marks of a King's Goodness, always give ground for the hope of fresh ones, and it is on this ground that they dare plead for two privileges. These would fill up the measure of your Majesty's favours, & of their gratitude & devotion.
The first is the suppression of the Register, the expenses of which exhaust the Colony, without its receiving from it the least advantage.
The second is that all the subjects in this province without any Dis- tinction of Religion may be admitted to any Office, the only basis of selection being that of capacity and personal merit. To be excluded by the State from participating in it, is not to be a member of the state. If they feel such a humiliation they would appreciate all the more the value of a favour equally marked, for which they can only offer their hearts full of love and gra- titude. Their Zeal, their affection and their devotion shall be the signal proofs of it for all time to come.
I
CONSTITUTIONAL DOCUMENTS 273
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Their precepts and their examples shall perpetually tend to maintain their tenants in the sentiments of fidelity and submission which they owe you, They will offer without ceasing their vows and their prayers for the Glory and Preservation of Your Majesty and your august family.
COMMISSION OF THE CHIEF JUSTICE.'
Quebec ss. GEORGE THE THIRD by the Grace of God, of Great Britain, France, and Ireland, KING, Defender of the Faith, and so forth; To our Trusty and well beloved WILLIAM HEY, Esquire, Greeting.
Know ye, that we having taken into our Royal Considera- tion, Your Loyalty, Integrity, and ability. Have, assigned, to°S"cwef° Constituted, and appointed. And we, do hereby assign, Con- justice of the stitute, and appoint, you, the said William Hey, our Chief Quebec^ ° Justice of, and in our Province of Quebec in America; To Enquire by the Oaths of honest and lawful men of the province aforesaid, and by other lawful ways. Methods, and means, by which you can or may the better Know, as well within liberties, as without, of whatsoever Treasons, misprisions of Treason, Insurrections, Rebellions, Murders, Felonies, Homicides, Killings, Burglaries, Rapes of Women, Unlawful Congregations & Assemblies, words spoken. Misprisions, Confederacies, False Allegations, Trespasses, inquJe'of all ^io*^' Routs, Escapes, Contempts, Falsities, Negligencies, treasons, feio-Concealments, Maintenances, Oppressions, Champorties, De- other ceits, and other Misdoings, Offences, and Injuries whatsoever, offences; ^^ ^j^^ ^j ^^^ accessaries thereto within the province aforesaid, as well within liberties as without, by whomsoever and howsoever had, done, perpetrated, or Committed, or which hereafter may happen to be done, perpetrated, or Committed, and by whom, to whom,
' Canadian Archives. Register of Commissions, from Department of Secretary of State.
The mandate to the Governor to appoint Wm. Hey as Chief Justice is dated Feb. 3rd and is as follows: —
"The King's Mandate to the Governor or Commander in Chief of the Province of Quebec, requiring Him to appoint William Hey, Esquire, Chief Justice of the s"* Province. George R.
Trusty and well beloved. We greet you well. Whereas We have taken into ouk royal con- sideration the loyalty, integrity, and ability of our trusty and well beloved William Hey, Esquire, We have thought fit, hereby, to authorize and require you forthwith to cause letters patent to be passed under the seal of our province of Quebec in America, constituting and appointing him the said William Hey, our Chief Justice of, and in our said province; to have, hold, exercise and enjoy the said office unto him the said William Hey, for and during our pleasure, and his residence within our s&id province, together with all and singular the rights, profits, privileges and emoluments unto the said place belonging in the most full and ample manner with full power and authority to hold the supreme courts of judicature, at such places, and at such times as the same may and ought to be held within our said province. And for so doing, this shall be your warrant. And so we bid you farewell.
Given at our Court at St. James' the 3"' day of February 1766 in the sbtth year of our Reign.
By His Majesty's command
(signed) H. S. Conway
To our trusty and well beloved James Murray, Esquire, our Captain General and Governor in Chief in and over our Province of Quebec in America; and in his absence to the Commander in Chief of our said Province for the time being."
From copy in the Public Record Office. See also note p. 256.
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when, where, and how, and of all other articles and Circumstances, the premises, or any of them, any wise Concerning: And the said t^Var ^d^ treasons and other the premises to hear and determine, according determine to the law and Custom of that part of our Kingdom of Great theTaws^of Britain Called England, and of our said province of Quebec, Oie^ordln-"^ hereafter to be made. Therefore we Command that, at such ances of the certain days and places as you shall appoint. You make diligent
province . . / , ^ . , „ ... , .
hereafter to mquiry of the premises; and all and smgular the premises you ^ "* ^' hear and determine; and the same do and fulfil in form aforesaid, doing therein that which to Justice doth belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and of our said province of Quebec hereafter to be made: Saving to us our Amerciaments and other things thereby to us belonging; for we will Command all and every our Sheriffs or provost Marshal's of our province aforesaid; That at such certain days, and places as you our Chief Justice shall make known to him, them, or any of them, they cause to come then and there before you such and so many honest and lawful men of our said province as well within liberties as without, by whom the Truth of the matter may be the better Known and inquired of.
deiiTCr*°oais ^^^ FURTHER, KNOW YE That we have assigned. Constituted,
of prisoners and appointed, and by these presents, do assign, Constitute and fined!" '^°°' appoint you, the said William Hey, our Goal of our Province aforesaid, of the prisoners therein hereafter to be to deliver. And, therefore we Command you that, at such Certain days & places as you shall appoint, you come to our Court-House of our said Province the Goal in our said province of the prisoners hereafter therein to be to deliver, doing therein what to justice doth, or may, belong or appertain, according to the Law & Cus- tom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made; saving to us our amerciaments and other things thereby to us belonging : For we will Command all and every our Sheriffs and provost Marshals of our said Province of Quebec that, at such Certain days and places as you our Said Chief Justice shall make known to him, them, or any of them, they Cause to Come then and there before you our said Chief Justice all the prisoners of the same Goal and their attachments. Power to And further know ye That we have assigned. Constituted
determine all and appointed, and by these presents, do assign. Constitute and actions, and appoint. You, the said William Hey, Our Chief Justice of whether real. Qur Supreme Court of Judicature of our said province of Quebec,
personal, or . . •" r i r i_
mixt, either to inquire by the oaths of honest and lawful men of the province iSnTand a^ aforesaid, and by other lawful ways, methods and means, by which
CONSTITUTIONAL DOCUMENTS
275
SESSIONAL PAPER No. 18
ject
I
subject, or y^y ^^^ qj. jjj^y ^.^g better Know, as well within Liberties as with-
between sub- ■' -' ...
ject and sub- out, of all civil plcas, actions, and suits, as well real and personal, as mixed, between us and any of our Subjects, or between party and party, by whomsoever had, brought, sued and Commenced, and of all other articles and circumstances the premises, or any of them, any wise Concerning: and the said pleas, actions, and suits, and every of them, to hear and determine in manner and form aforesaid, doing therein that which to Justice doth belong and appertain according to the Laws and Customs of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations of our said province of Quebec, hereafter in that behalf to be Ordained and made. Therefore WE Command you that, at such Certain Days and places, as you shall appoint, you make diligent inquiry of the premises; and all and singular the premises to hear and determine in manner and form aforesaid, doing therein that which to justice doth belong or appertain according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations, of our said province of Quebec hereafter in that behalf to be made: For we will Com- mand all and every Our Sheriffs or provost Marshal of our pro- vince aforesaid that at such Days and places, as you our Said Chief Justice shall make Known to him, them, or any of them, they Cause to Come then and there before you, such and so many honest and lawful men of our said province, as well within liberties as without, by Whom the truth of the matter may be the better Known.
To HAVE, HOLD, AND EXERCISE the Said Office of our chief luring the Justice of and in our Said province of Quebec, for and during our
pleasure and Royal Will & pleasure and your Residence within our Said province ;
tire'^ ra'i-'^"^Together with all and Singular the Rights, profits, free priviledges,
dence in the and Emoluments to the said Office belonging, in as full and ample
province. „,.._. r r ■ r
manner as any other Chief Justice of any of our provinces of America Hath heretofore held and Enjoyed, or of right ought to have, hold, or Enjoy, the same, with full power and authority to hold the Supreme Courts of Judicature at such places and times as the same may or ought to be held within our said province. In testimony whereof we have Caused these our Letters to be made patent and the Great seal of our said province of Quebec, to be hereunto Affixed, and to be entered on record in one of the Books of patents in our Registers Office of Inrollments of the said province Witness Our Trusty and well beloved. The Honble Guy Carleton Esquire, Our Lieutenant Governor and Commander in Chief in and over our said province of Quebec and the Territories thereon depending in America, at our Castle
Office be held
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of Saint Lewis in our said City of Quebec, The Twenty-fifth Day of September in the Year of our Lord one Thousand seven hundred & Sixtysix, and in the Sixth Year of our Reign.
(LS) (Signed) GUY CARLETON By the Lieutenant
Governor's Command.
(Signed) J GOLDFRAP
D, Sec' FIAT of the above Commission Recorded in the Registers Office at Quebec the 25*'' Day of Sep- tember 1766
(Signed) J. GOLDFRAP, D Reg'
CARLETON TO SHELBURNE.i
Quebec 25*'' Oct' 1766. My Lord!
I have the Honor of receiving your Lordship's Letter of the 9"" of Au- gust, with the Order of Council of the 8"", which shall be punctually obeyed-*
The Subject of the inclosed Remonstrance is another Matter I have to mention. Your Lordship will see by my Letter to the Lords of Trade, by the Minutes of Council, and by the Minutes of the Committee, that nothing has been done that required a Council, my calling a few Councillors, was
' Canadian Archives, Q 3, p. 261. Though Governor Murray had been recalled to England, April 1st, 1766, he was not for some time deprived of his office as Governor of Quebec. Hence Gen. Guy Carleton who succeeded him was at first appointed as Lieutenant Governor, under the following Commission: — "George the Third, by the Grace of God, King of Great Britain, France, and Ireland, Defender of the Faith, and so forth; To our trusty and well-beloved Guy Carleton, Esquire, Greeting:
"We, reposing especial trust and confidence in your loyalty, integrity, and ability, do, by these presents, constitute and appoint you to be our Lieutenant Governour of our province of Quebec, in America; to have, hold, exercise, and enjoy the said place and office during our pleasure, with all rights, privileges, profits, perquisites, and advantages to the same belonging or appertaining.
"And further, in case of the death, or during the absence, of our captain general and governour in chief of our said province of Quebec, now, and for the time being, we do hereby authorize and require you to exercise and perform all and singular the powers and directions contained in our commission to our captain general and governour in chief, according to such instructions as he has already received from us, and such further orders and instructions as he, or you, shall hereafter receive from us.
"And we do hereby commend all and singular our officers, ministers, and loving subjects in our said province, and all others whom it may concern, to take due notice hereof, and to give their ready obedience accordingly.
"Given at our court at St. James's, the seventh of April 1766, in the sixth year of our reign.
"By his Majesty's command.
(Signed) H. S. Conway.
"Guy Carleton, Esquire, Lieutenant Governor of Quebec." A Collection of several Com- missions and other Public Instruments, &c. by Francis Maseres. London: 1772. p. 122.
As this commission indicates, Carleton acted under the instructions given to Murray until his own appointment as Governor in Chief in 1768, when he received new instructions. In the meantime, however, several additions were made to the Council of Quebec, under the King's mandamus.
William Earl of Shelburne became Secretary of State for the Southern Department, July 13, 1766.
' A portion of this despatch, dealing with local troubles over trading privileges &c., is omitted.
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SESSIONAL PAPER No. 18
meerly from prudential Reasons, and for private Information. As to the Members of Council, they themselves could have no Doubt who should have the Precedence, as the Case of M' Stuart doth prove ; Hitherto I have been silent on that Subject, not that I doubt of the King's Intentions, but as I understand these Gentlemen are searching an Excuse to resign their Seats, and make a Noise; I shall give them Time to cool and Reflect, till Matter occurs that may require a Council. The great Leader of the intended Opposition is M' Mabane,^ who followed the Army, as Surgeon's Mate into this Country; He hoping and believing this Government unsettled is determined to make some considerable Agitation ; I trust he will not suc- ceed: Captain Cuthbert threatens me much with his Friends, says he was forced into the Council by Governor Murray on his Departure, much against his will; but now he is in, he will shew the World who has Friends, and who shall be turned out. I laugh and make no answer. M"" Walter Murray who has acted as a strolling Player in other Colonies, here as a Councellor; M' Mounier, an honest quiet Trader, who knows very little of our Language or Manners, like most of the Canadians, will sign, without Examination whatever their Acquaintance urge them to, and Lieutenant Colonel Irving who professes he signed this, and the Order of Council mentioned above, because his Friends desired him —
All these little Workings I look on as the natural Consequence of the late Tempest, which after a few Months settled Calm must insensibly subside and die away. In General His Majesty's Subjects here seem rather to want Instruction, than Reproof. To know clearly the King's Will, and to see it steadily pursued here, will, or I am much mistaken, soon occasion a quiet and dutiful Obedience, in Spite of the Opposition of a few self Interested Individuals,
II am with much Respect and Esteem I" Your Lordships
Most Obedient Humble Servant GUY CARLETON Right Honorable Earl of Shelburne One of His Majesty's principal Secretaries of State.
REMONSTRANCE OF MEMBERS OF COUNCIL.
Quebec Octo' 13"^ 1766.
To the Hon*"'' Brig' Gen' Guy Carleton Lie' Gov' of the Province of Quebec, & Brig' Gen' of His Majestys Forces &c.
We the underwritten Members of His Majesty's Council for the Province of Quebec, think it our indispensible duty to communicate to you our sense of the method lately adopted of calling together only a part
' Adam Mabane was a member of the first Council appointed by Governor Murray in 1764; the other members were Chief Justice Gregory, P. iEmilius Irving, H. T. Cramahl, Walter Murray, Samuel Holland, Thos. Dunn and Francois Mounier.
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of the Council: The bad consequences which may arise from Practice are manyfold; But as you are pleased to signifye to Us by Coll. Irving that it was accident, & not Intention, it is needless for us to enumerate them.
We would be wanting to ourselves, & Others in the same Circumstances if we did not remonstrate against an opinion lately insinuated, as if Man- damus's from Brittain suspended Appointments to the Council made by GoV Murray. We apprehend his Commission & Instructions, by which he was authorized to constitute a Council & to make choice of the Persons, to be to all Intents & purposes, a Mandamus to each of Us, provided His Majesty did not disapprove of Us, when reported to Him by the Governour: The many Difficulties which for Two Years we had to encounter in a new Establishment for a Province under very peculiar circumstances, perhaps entitle us to some Reguard: At any Rate tho' His Majesty may have an undoubted Right to encrease the number of his Council by granting Man- damus's to whom He pleases, it is to be presumed that by so doing there is no Intention to deprive Us either of our Right to Precedence, or to a Seat in Council : A late event on the Departure of Govr Murray is a proof of the contrary.
If by the Constitution or Custom of the Colonys the number of the Council is restricted. Mandamus's are in that Case to be regarded only as an Order for the Admission of the Persons named therein, Provided there is a Vacancy.
If the Deference which we feel for every Manifestation of the Will of our Sovereign has prevented us from objecting to any person possessed of a Mandamus from being sworn into the Council, We apprehend that if the Council is at present, or hereafter may be restricted. The Councillor last admitted is to be considered as the Supernumerary.
We have the hon' to be w**" the greatest respect &■■ y' most obed' h*"'' Serv*".
(Signed) P. Mmi' Irving
Wa' Murray Adam Mabane Fr' Mounier James Cuthbert.
Endorsed: Copy -I- Remonstrance of L* Col' Irving and other Members of His Majesty's Council at Quebec 13* Oct' 1766. In Lieu' Gov' Carleton's, of the 25"' Oct' 1766.
GOVERNOR CARLETON'S REPLY.
To Lieut' Colonel Irving Major to the IS"* Regiment. M' Walter Murray, M' Adam Mabane Surgeon, M' Francis Mounier Merchant, Captain James Cuthbert
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SESSIONAL PAPER No. 18
Gentlemen
As Lieutenant Colonel Irving has signified to you, that the Part of my Conduct, youthinkworthy your Reprehension, happened by Accident, let him explain to you his Reasons for so doing, He had no authority from me
But that there may be no further Doubt, I hereby make known to you, that I both have and will, on all Matters which do not require the Consent of Council, call together such Councellors as I shall think best qualified to give me Information : and further, that I will ask the Advice and Opinion of such Persons, tho' not of the Council as I shall find Men of good Sense, Truth, Candor, and Impartial Justice; persons who prefer their Duty to the King and the Tranquillity of His Subjects to unjustifiable Attach- ments, Party Zeal, and to all selfish mercenary views: After I have obtained such Advice, I will still direct as to me shall seem best for His Majesty's Service, and the Good of His Province committed to my Care
I further make Known to you, and for the first time I give an Opinion, that for the present His Majesty's Council consists of twelve Members; those named and appointed immediately by the King' have the Preference, next follow those appointed by Governor Murray till the Seats are all full:
You will be pleased to recollect. Gentlemen, that M' Stewart, tho' sworn into Council after M' Mounier, has by Virtue of the King's immediate Appointment constantly taken Place and Precedence of you all.
I must also remind you, that His Majesty's Service requires Tran- quility and Peace in His Province of Quebec, and that it is the indispensable Duty of every good Subject, and of every honest Man, to promote so desir- able an End.
(Signed) GUY CARLETON.
Endorsed: Answer to Lieu' Col. Irving, M' Walter Murray &c, Oct' 1766.
' In the Instructions given to Governor Murray, in addition to certain cx-officio members, such as the Chief Justice and the Surveyor General of Customs, he was authorized to select and appoint eight other members to constitute the Council of the Province. In the Instructions given to Governor Carleton. however, the members of the Council were specifically named as appointed Ijy the King. See p. 301. The following is a list of the members of Council at the end of 1766 with the dates of their admission: —
1764. "August IS"" Paul iEmi" Irving — Again swore in 24"' Sep' 1766 by mandamus
Hector Theophilus CramachS dated 21" June 1766, swore in again 24"' Sept. 1766 Samuel Hollandt.
Walter Murray, Again swore in 24"" Sep' 1766. Adam Mabane — Ditto Ditto
Thomas Dunn — ditto ditto
Francis Mounier Oct' 10"" James Goldfrap, by mandamus, dated 20"' July 1764 again swore in 24"" September 1766. Oct' 31'* Benjamin Price
1765 June 20"' Charles Stewart, S. F. by mandamus
1766. June 14"" James Cuthbert.
ditto 30"" Thomas Mills, R. G. — by mandamus. Sep' 2.S"' William Hey C. J — *by mandamus
The above is a true List of the members of His Majesty's Council of the Province of Quebec with the Times of their being sworn in, taken from the Council Book Kept in my office.
•in the room of William Gregory, Esq' late Chief Justice, and struck out of the Council"
(Signed) Ja: PoTTS, D.C.C. Endorsed — Copy of the List of Council of Quebec 1766
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CARLETON TO GAGEi
Copy of a Letter from Major General Carleton to His Excellency General
Gage, dated at Quebec 15"" Febry 1767 — Sir
The Forts of Crown Point, Ticonderoga, and Fort George are in a very declining Condition, of which, I believe. Your Excellency is well informed; should you approve of keeping up these Posts, it will be best to repair them as soon as possible. As you have been pleased to desire my Opinion of this Measure, I must freely say, that the more I consider the State of Affairs on this Continent,^ more and stronger Reasons present themselves, and I am the more convinced, it is not only expedient, but indispensably necessary for the Interest of Great Britain, and His Majesty's Service, not only to keep these in good Repair, but to erect a proper Place of Arms near the Town of New York, and a Citadel in or near the Town of Quebec. These with temporary Works thrown up occasionally at the other Places of Landing and Embarking, will secure the Communication with the Mother Country, and will link these two Provinces so strongly together, as will add great security to both; they will facilitate the Transport of ten or fifteen thousand Men in the Beginning of a War, from the one to the other, as the Circumstances require —
The natural and political Situation of the Provinces of Quebec and New York is such, as must for ever give them great Influence and Weight in the American System, therefore no Pains, Address, nor Expence too great to root out Faction or Party; to establish Tranquillity, and a firm Attach- ment to His Majesty's Government, at the same time it is equally essential to establish that security and Strength as can properly curb and overawe, should such ever arise, who by the Ties of loyal Subjects and honest Men, are not thoroughly bound to their Duty.
This Communication so established, will give Security to the King's Magazines, till then precarious, and doubtfull who may avail themselves of them; will separate the Northern from the Southern Colonies, will afford an easy and advantagious Opportunity of transporting His Forces into any part of this Continent, and may prevent the greatest of all Incon- veniencies, Delay and Loss of Time in the Beginning of a War.
The Walls of this Place have not been repaired since the Siege, which left many Holes in the Masonry, that will precipitate their Ruin if not soon repaired ; I have not one Engineer in the Province to form an Estimate of the Repairs, or make any Alteration that may be immediately necessary.
(a true Copy)
H. T. CRAMAHfi
Endorsed: Copy of a Letter from General Carleton to His Excellency General Gage, dated at Quebec, 25*'' Feby, 1767. In Lieut.-Governor Cramah6's Letter of the 9"" Nov'
' Canadian Archives, Q 4, p. 100.
' Referring to the troubles which were developing in the American colonies.
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SHELBURNE TO CARLETONi
Whitehall 20"" June 1767. Lieut. Governor Carleton.
Sir,
Since my Letter of 26"' May,' I have received yours of 28"' March,' which I have had the Honor to lay before the King, & I have the Pleasure of confirming to you. His Majesty's gracious Approbation of your Conduct. The Rectitude of those Principles by which you have governed yourself, & your firm tho' dispassionate manner of Proceeding, if persevered in, cannot fail of giving due weight to your Administration, of allaying any remains of Faction which may not yet have subsided, & of putting an End to those Impediments which too often arise from private Views & personal Jealousies.
As the right Administration of Government in Quebec is a matter of the greatest Importance to that Province, the Improvement of its Civil Constitution is under the most serious & deliberate consideration of His Majesty's Servants & principally of His Majesty's Privy Council. Every light which can be procured on this Subject, will be material as well as every Information which can tend to elucidate how far it is practicable and Expedient to blend the English with the french Laws in order to form such a System as shall at once be Equitable & convenient, both for His Majesty's Old and New Subjects, in order to the whole being confirmed & finally established by Authority of Parliament.
I am &c*
SHELBURNE
Endorsed: — (N° 4) Dra' to Lieut.-GoV Carleton 20"" June 1767.
CARLETON TO SHELBURNE^
Quebec 25*'' Nov' 1767. My Lord !
As Your Lordship informs me, that the Improvement of the Civil Constitution of Quebec is under the most serious and deliberate Considera- tion of His Majesty's Servants, and that any Light, which can be procured on that Subject, will be material, I shall endeavour to represent the true Situation of the. Province, and add such Observations, as have occurred to me, with that Candor, which, I think, the King's Service requires, in Compliance with what your Lordship seems to desire, and least His
' Canadian Archives, Q 4, p. 130. The omitted portions of this despatch refer to the Walker assault case and disputes with reference to the Indian Trade. » Given in Q 4, p. 106.
• With reference to the Indian Trade; given in Q 4, p. 111.
* Canadian Archives, Q 5-1, p. 260.
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Majesty's Servants, Employed in a Work of so great Importance, the' of profound Knowledge and Judgment, for Want of having truly repre- sented, to them, Objects at so great a Distance, and in themselves so differ- ent from what is to be found in any other of His Dominions, I say, least without a true Representation of Things, the Kings Service should not profit, as much as possible, of the great Abilities of His Servants —
I take for granted, that the natural Rights of Men, the British Interests on this Continent, and the securing the Kings Dominions over this Province, must ever be the principal Points in View, in forming it's Civil Constitution, and Body of Laws; And that the last, is the Foundation of all, without which, other schemes can be little Ipetter than meer Castles in the Air; it will naturally follow, I should first shew, How far this Foundation is, or is not firmly laid —
The Town of Quebec is the only Post, in this Province, that has the least Claim to be called a fortified Place; for the flimsy Wall about Montreal, was it not falling to Ruins, could only turn Musketry; it will be sufficiently accurate for the present Purpose, if this Town be considered as a good Camp for ten or twelve Battalions, whose Front is fortified by a Bastioned Rampart, faced with Masonry; built, for the most Part, upon a Rock; without Ditch or outwork; it's Profile, slight for a Fortress, is substantial for an Encampment, it's Parapet in very bad Order. The Flanks and Rear of this Encampment, in one thousand seven hundred and fifty nine, were closed partly by a thin Wall, the rest by great Stakes, now carried away, or rotten; these ran along the Heights and Precipices at a little Distance from the River St. Lawrence, the Bason, and River St. Charles, so as to leave a Passage between this Line and these Waters. With a Number of Troops sufficient for this Post, those Flanks and Rear might in a little Time be secured, and guarded so, as to reduce an Enemy to form his Attack in Front, but in Proportion as the Numbers fall short, the Danger increases, of being surrounded and Stormed with little ceremony; especially when this Line is open in many Places, as at present.
The King's Forces in this Province, supposing them compleat to the Allowance, and all in perfect Health, Rank and File, would amount to six- teen hundred and twenty seven Men, The King's old subjects in this Prov- ince, supposing them all willing, might furnish about five hundred Men, able to carry Arms, exclusive of his Troops; that is supposing all the King's Troops and old Subjects collected in Quebec; with two Months hard Labour, they might put the Works in a tolerable State of Repair, and would amount to about one third of the Forces necessary for it's Defence.
The new Subjects could send into the Field about eighteen thousand Men, well able to carry Arms; of which Number, above one half have already served, with as much Valor, with more Zeal, and more military Knowledge for America, than the regular Troops of France, that were joined with them.
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As the common People are greatly to be influenced by their Seigneurs, I annex a Return of the Noblesse of Canada,' shewing with tolerable Exactness, their Age, Rank, and present Place of Abode, together with such Natives of France, as served in the Colony Troops so early in Life, as to give them a Knowledge of the Country, an Acquaintance and Influence over the People, equal to Natives of the same Rank; from whence it appears, that there are in France, and in the French Service, about one hundred Officers, all ready to be sent back, in Case of a War, to a Country they are intimately acquainted with, and with the Assistance of some Troops, to stir up a People accustomed to pay them implicit Obedience. It further shews, there remain in Canada, not many more than seventy of those, who ever had been in the French Service; not one of them in the King's Service, nor one who, from any Motive whatever, is induced to support His Government and Dominion; Gentlemen, who have lost their Employ- ments, at least, by becoming His Subjects, and as they are not Bound by any Offices of Trust or Profit, we should only deceive ourselves by supposing, they would be active in the Defence of a People, that has deprived them of their Honors, Privileges, Profits and Laws, and in their Stead, have intro- duced much Expence, Chicannery, and Confusion, with a Deluge of new Laws unknown and unpublished. Therefore all Circumstances considered, while Matters continue in their present State, the most we may Hope for from the Gentlemen, who remain in the Province, is a passive Neutrality on all Occasions, with a respectful Submission to Government, and Defer- ence for the King's Commission in whatever Hand it may be lodged; this they almost to a Man have persevered in, since my Arrival, notwith- standing much Pains have been taken, to engage them in Parties, by a few, whose Duty, and whose Office should have taught them better. This Disposition the French Minister seems to have foreseen, as appears by Orders calculated to draw them from Canada into France, well knowing that such as remained, were bound by Duty and Honor to do nothing against their Allegiance to the King, under whose Government they live, whereas those, who go to France, are to all Intents and Purposes Officers in the French Service, and liable to be sent on any Service.
For these Reasons, I imagine, an Edict was published in 1762. De- claring, that notwithstanding the low State of the King's Finances, the Salary of the Captains of the Colony Troops of Canada should be raised from four hundred and fifty Livres, the Establishment at which their Pay was fixed at first, to six hundred Livres a Year, to be paid quarterly, upon the Footing of Officers in full Pay, by the Treasurer of the Colonies, at the Quarters assigned them by His Majesty in Touraine, and that such of them, as did not repair thither, should be struck off', the King's Intentions being, that the said Officers should remain in that Province, untill further
•Canadian Archives, Q 5-1, p. 269. This is printed in full in the Report on Canadian Archives for 1888, p. 44.
284 CANADIAN ARCHIVES
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Orders, and not depart from thence without a written Leave from the Secretary of State for the Marine Department.
A few of these Officers have been sent to the other Colonies, but the greater Part still remain in Touraine and the Arrears due to those, who have remained any Time in this Country, are punctually discharged, upon their Emigration from hence, and Obedience to the abovementioned Injunction.
By the Secretary of State's Letter, a certain Quanty of Wine, Duty free, is admitted to enter the Towns, where these Canadian Officers Quarter, for their use, according to their several Ranks.
Having arrayed the Strength of His Majesty's old and new Subjects, and shewn the great Superiority of the Latter, it may not be amiss to observe, that there is not the least Probability, this present Superiority should ever diminish, on the Contrary 'tis more than probable it will increase and strengthen daily: The Europeans, who migrate never will prefer the long unhospitable Winters of Canada, to the more chearful Climates, and more fruitful Soil of His Majesty's Southern Provinces; The few old Subjects at present in this Province, have been mostly left here by Accident, and are either disbanded Officers, Soldiers, or Followers of the Army, who, not knowing how to dispose of themselves elsewhere, settled where they were left at the Reduction; or else they are Adventurers in Trade, or such as could not remain at Home, who set out to mend their Fortunes, at the opening of this new Channel for Commerce, but Experience has taught almost all of them, that this Trade requires a Strict Frugality, they are Strangers to, or to which they will not submit; so that some, from more advantagious Views elsewhere, others from Necessity, have already left this Province, and I greatly fear many more, for the same Reasons, will follow their Example in a few Years; But while this severe Climate, and the Poverty of the Country discourages all but the Natives, it's Healthfulness is such, that these multiply daily, so that, barring Catastrophe shocking to think of, this Country must, to the end of Time, be peopled by the Canadian Race, who already have taken such firm Root, and got to so great a Height, that any new Stock transplanted will be totally hid, and imperceptible amongst them, except in the Towns of Quebec and Montreal.
'Twas partly from these Considerations, as well as from those mentioned in my Letter of the IS"" February' last to the Commander in Chief, a Copy of which I enclosed to Your Lordship, that I recommended the building of a Citadel within the Town of Quebec, that the Troops might have a Post capable of being defended by their Numbers, till Succour could be sent them from Home, or from the neighbouring Colonies; for should a French War surprise the Province in it's present Situation, the Canadian Officers sent from France with Troops, might assemble such a Body of People,
' See Carleton to Gage; p. 280.
I
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As would render the King's Dominion over the Province very precarious, while it depends on a few Troops, in an extensive Post, open in many Places. A proper Citadel once erected, the Situation of Things will be greatly changed, the King's Enemies, who would attempt to disturb this Province, must hazard a larger Stake, and the Chances against them will be very considerably augmented ; Greater Preparations must be made, which must give an Alarm at Home, a greater Number of Troops must be sent, with a Train of Artillery for a Siege, and a large Quantity of Ammuni- tion, and Provisions, with a Fleet of Transports, and Ships of War to pro- tect and assist in the different Operations, whose Success may be uncertain, but which, at all Events, must give Time for a Superior Squadron to follow, and catch them in the River, as well as to the Troops and Militia from the neighbouring Provinces to pour into this; a Work of this Nature is not only, necessary as Matters now stand, but supposing the Canadians could be interested to take a Part in the Defence of the King's Government, a Change not impossible to bring about, yet Time must bring forth Events that will render it essentially necessary for the British Interests on this Continent, to secure this Port of Communication with the Mother Country; as might easily be proved, were they not too remote for the present Purpose.
Inclosed is the Plan for such a Citadel, as I think, would answer all the present and future Purposes of Great Britain, tho', if I am not mis- taken. Captain Gordon the Engineer has already transmitted Home one more detailed, with a Calculation of the Expence necessary for its Con- struction.
I am with much Respect and Esteem
Your Lordship's
Most Obedient Humble Servant
GUY CARLETON The Earl of Shelburne One of His Majesty's principal Secretaries
RESOLUTION OF PRIVY COUNCIL AS TO INFORMATION RE- QUIRED CONCERNING THE PROVINCE OF QUEBEC. »
AT THE COURT OF ST. JAMES'S
the 28"-, Day of August, 1767. Present The King's most excellent Majesty. Lord Chancellor Viscount Townshend
Lord President M' Secry Conway
Earl of Shelburne Sir EdW* Hawke
Whereas there was this day read at the Board a Report from the Rt. Honble, the Lords of the committee of Council for Plantation Affairs dated this day in the words following viz': ' Canadian Archives, Q 4, p. 327.
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"The Lords of the Committee having this day taken into their consider- ation a Draught of Instructions prepared by the Board of Trade for estab- lishing courts of Judicature in the Province of Quebec and transmitted to this Committee on the 24"' June 1766.* Their Lordships upon full consideration of the s"* Draught of Instructions, are of Opinion that the same is so general, and so unsupported by any specific or particular proof of any Grievances in Judicature, to which any particular and effectual Reform or Remedy can be applied (except what has already been given) and especially as since the return of Genl. Murray, no Gov' or locum tenens, or any of your Maty's law oflficers, have represented in their correspondence Gravamens arising to the subjects in the Province from any defects in the state of Judicature as it at present exists (which had any material ones existed it was their Duty to do, and they certainly would have done) except a Paragraph in a Letter from Col. Irving, dated 20"" Augt. 1766.^ Vizt, "all that to me seems wanting at present is a permanency to the in- ferior Courts and a fnore ample authority for the Judges of it to adhere to the Coutumes de Pais a defect if it subsists, so concisely & unexplicitly stated is not to be understood so as to found a Judgement of the Remedy to be applied, that the Lords of the committee cannot without further In- formation, advise your Majesty to approve thereof, and order the same to be carried into execution.— But as their Lordships are truly sensible of your Majesty's Royal constitutional and paternal Regard for all and every part of Your Majestys Dominions and Your Subjects inhabiting therein, the Committee do after the most serious & mature deliberation on the subject referred by your Majesty to them for their advice thereupon, submit as their humble advice to your Maty. That in order to amend any defects in the present State of Judicature in the Province of Quebec (if any auch subsists) it is proper and absolutely necessary after a competent experience now had of the State of the Province so particularly composed of English and Canadian Subjects, and of the Judicature and administration of Justice now subsisting, to obtain from Your Majesty's Servants there, on whose information alone your Majesty's Servants (there, on whose information alone your Majesty's Servants*) in this Kingdom can rely with any reasonable degree of confidence, precise, solemn & authentic Information of the Defects if any that are now existing, together with the Remedies, Reforms, Additions, or Alterations which they would propose for your Majesty's Royal consideration, that so your Majesty's Servants here may be enabled to advise your Majesty on the best Light that can be obtained, it being, as the Lords of the Committee conceive, unwise
' The letter from the Board of Trade transmitting this draught is given in Can. Archives, Q 3, p. 171, but the instructions do not accompany it. According to the letter the instructions require the Governor to establish courts of justice "conformable to the Plan proposed by us in our Report to your Lordships of the 2°<' September 1765, with such Variations as are suggested in the Report of the Attorney and Solicitor General, annexed to your Lordships Order of the IS"" of last month." For the Report of Sept. 2°'^ see p. 237. For the Report of the Attorney and Solicitor General, see p. 251.
' See p. 269.
*The words in parenthesis seem to be a repetition.
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and Dangerous to the Province to frame or reform Laws in the Dark, and upon speculation only, and for the purpose of obtaining such necessary Information on so serious and important a subject — Their Lordships hum- bly submit to your Majesty, to order your now Gov' of the said Province, or his locum tenens, with the advice and assistance of the Council, the Chief Justice and Attorney Genl. of your Majesty's Province, and taking such other assistance as shall be thought necessary to report to your Ma'ty.
l»t "Whether any and what defects are now subsisting in the present state of Judicature."
2^ "Whether the Canadians in particular are, or think themselves ag- grieved according to the present administration of Justice. Wherein and in what respects together with their Opinions of any alterations, additions or amendments that they can propose for the General Benefit of the said Province, and that such Alterations or Amendments for the clearer ap{Drehension thereof be transmitted in form of Ordinance, but not passed as such, and that such Report be returned signed by your Majesty's Gov' or locum tenens the said Chief Justice & Attorney Genl. But if they should not concur, the Person or Persons differing in opinion be required to report the difference of his opinion, together with his reasons for such difference of Opinion fully and at large. And that a fit and proper Person be sent with such Instructions and to bring back such Report for the most convenient dispatch, and who being properly recommended to the said Officers may be enabled to explain any difficulties, if any such should arise from the said Report.
His Majesty this day took the said Report into Consideration and was pleased with the advice of His privy Council to approve thereof and to order, that the Right honble. the Earl of Shelburne, one of His Majesty's principal Secretaries of State do give the necessary directions for carrying into execution what is proposed therein to be done.
SHELBURNE TO CARLETON*
Whitehall Dec. 17. 1767. Governor of Quebec.
Sir,
His Majesty having been pleased to order that I should give the neces- sary directions for carrying into execution the intentions of an order of His Majesty's Council (which I have already transmitted to you) dated the 28"' day of August, 1767,^ relative to certain supposed defects in the present state of Judicature of the province of Quebec; I am therefore to signify to you His Majesty's pleasure, that you, taking to your Assistance the Chief
' Canadian Archives, Q 4, p. 32S. ' Sec p. 285.
2«8 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Justice & Attorney Genl. of Quebec, together with Maurice Morgan' Esq' the Bearer of this Letter, & advising with such other intelligent & well- instructed persons as you shall judge proper, do make full & accurate enquiry into this matter, so that having obtained complete & authentic information of the present State of Judicature in the Province of Quebec, you may be enabled to give your opinion of any Reform or Amendment that may be thought necessary in the Form of Ordinances to be transmitted here, for the consideration of His Majesty's Privy Council, from which Ordinances, when completed, you are, with the advice and assistance of the Council of Quebec, to form a report^ for His Majesty's Consideration; and whereas I am directed to nominate a fit & proper person to carry out the necessary Orders for this purpose, who may confer with you and the other persons named, with full confidence upon the general subject of these orders, to the end that, acquainting himself with the reasons & motives upon which any reform shall be proposed, he may upon his return explain to His Majesty's Ministers & Council any difficulties which may arise thereupon; I have accordingly recommended to His Majesty Maurice Morgan Esq' as a person every way qualified for this business; and I request you will favour him with your good Offices, Protection, & Assist- ance in the execution of his Trust, that being furnished with every light that your experience may have acquired, he may, upon his return with your Report, be able to fulfill, as completely as possible, the intention of his appointment.
I am &c
SHELBURNE.
CARLETON TO SHELBURNE*
Quebec 24"^ Dec' 1767. My Lord!
To conceive the true State of the People of this Province, so far as the Laws and Administration of Justice are concerned, and the Sensations, they must feel, in their present Situation, 'tis necessary to recollect, they are not a Migration of Britons, who brought with them the Laws of England, but a Populous and long established Colony, reduced by the King's Arms, to submit to His Dominion, on certain Conditions: That their Laws and Cus- toms were widely Different from those of England, but founded on natural
' The nature of Morgan's mission may be gathered from the paper which precedes. On the date of this letter Shelburne wrote to Morgan, acquainting him with the nature of the steps taken to obtain an adequate report on the administration of law in the Province of Quebec. He refers to the necessity "to send over to Quebec for more convenient dispatch a fit & proper person to carry our instructions for this purpose, and to bring back such Report, and who being properly recommended to the Officers may be enabled to explain such difficulties if such should arise from the said report; " He is informed that he has been selected fo; this mission and that he is to set out immediately for Quebec, and while there, "to acquaint yourself in the fullest manner possible, of everything relative to the general State and condition of Canada." Morgan arrived in Canada Aug. 22nd, 1767; was courteously received, and reported to Shelburne from time to time.
' For the draught of this report prepared by the Attorney General, see p. 327.
* Canadian Archives, Q 5-1, p. 316.
I
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Justice and Equity, as well as these; That their Honors, Property, and Profits, as well as the King's Dues, in a great Measure Depended upon them, That, on the Mutation of Lands by sale, some special Cases excepted, they established Fines to the King, in Lieu of Quit Rents, and to the Seigneur, Fines and Dues, as his Chief Profits, Obliging him to grant his Lands at very low Rents —
This System of Laws established Subordination, from the first to the lowest, which preserved the internal Harmony, they enjoyed untill our Arrival, and secured Obedience to the Supreme Seat of Government from a very distant Province. All this Arrangement, in one Hour, We over- turned, by the Ordinance of the Seventeenth of September One Thousand seven hundred and sixty four, and Laws, ill adapted to the Genius of the Canadians, to the Situation of the Province, and to the Interests of Great Britain, unknown, and unpublished were introduced in their Stead; A Sort of Severity, if I remember right, never before practiced by any Con- queror, even where the People, without Capitulation, submitted to His Will and Discretion. '
How far this Change of Laws, which Deprives such Numbers of their Honors, Privileges, Profits, and Property, is conformable to the Capitulation of Montreal, and Treaty of Paris; How far this Ordinance, which affects the Life, Limb, Liberty, and Property of the Subject, is within the Limits of the Power, His Majesty has been pleased to Grant to the Governor and Council ; How far this Ordinance, which in a Summary Way, Declares the Supreme Court of Judicature shall Judge all Cases Civil and Criminal by Laws unknown and unpublished to the People, is agreeable to the natural Rights of Mankind, I humbly submit; This much is certain, that it cannot long remain in Force, without a General Confusion and Discon- tent- To prevent some of the Misfortunes that must accrue, the inclosed Draft of an Ordinance' was prepared, to be laid before the Council, but when I reflected on the many Difficulties, that would still remain, I thought it more advisable, to leave those important Matters, as I found them, _till His Majesty's Pleasure was known thereon —
To shew more fully the Extent of these Alterations, several Months JO I directed an Abridgment of the Laws of Canada, in Force on our Arrival, to be drawn up, and at the same Time, desired the Chief Justice id Attorney General to give me their Opinion upon the Mode at present Practice; This I thought absolutely necessary, to shew the true state these Matters, Holding it of Great Importance to the King's Service, iiat all cause of great or general Discontent should be removed and pre- rented.
A few Disputes have already appeared, where the English Law gives one, what by the Canadian Law would belong to another; A Case of
• See "Draft" which follows this letter.
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this Sort, not easy to determine, lies at present in Chancery; if decided for the Canadian, on the Principle, that Promulgation is necessary to give Force to Laws, the Uniformity of the Courts of Justice thereby will be still further destroyed, Chancery reversing the Judgments of the Supreme Court, as that Court reverses those of the Common Pleas; the People notwithstanding continue to regulate their Transactions by their Ancient Laws, tho' unknown and unauthorised in the Supreme Court, where most of these Transactions would be declared Invalid —
So short sighted are Men, that although these few Instances manifest the Difference of the old and new Law, and give some uneasiness to the Parties, yet I have met with only one Canadian, who sees this great Revolu- tion in it's full Influence, but when Time brings forth Events, which shall make known to the Canadians, that their Modes of Inheritance are totally changed, and other Alterations, which affect the Property and Interest of every Family in the Province, the Consternation must become General : The present great and universal Complaint arises from the Delay, and Heavy Expence of Justice; formerly the King's Courts sat once a Week at Quebec, Montreal and Three Rivers; From these lay an Appeal to the Council, which also sat once a Week, where Fees of all Sorts were very low, and the Decisions immediate; At present the Courts sit three Times a Year at Quebec, and twice a Year at Montreal, and have introduced all the Chi- canery of Westminster Hall into this impoverished Province, where few Fortunes can bear the Expence and Delay of a Law Suit; The People are thereby deprived of the Benefits of the King's Courts of Justice, which rather prove Oppressive and ruinous than a Relief to the Injured; This, with the Weight of Fees in General, is the daily Complaint, not but a great deal might be said of the Inferior Administrators of Justice, very few of whom have received the Education requisite for their Office, and are not endowed with all the Moderation, Impartiality, and Disinterestedness that were to be wished —
The most advisable Method, in my Opinion, for removing the present, as well as for preventing future Evils, is to repeal that Ordinance,^ as null and void in it's own nature, and for the present leave the Canadian Laws almost entire; such Alterations might be afterwards made in them, as Time and Occurrences rendered the same advisable, so as to reduce them to that System, His Majesty should think fit, without risking the Dangers of too much Precipitation ; or else ; such Alterations might be made in the old and those new Laws Judged necessary to be immediately introduced, and publish the whole as a Canadian Code, as was practised by Edward the First after the Conquest of Wales —
For a more expeditious and easy Administration of Justice, a Judge should reside at each of the three Towns of Quebec, Montreal, and Three Rivers, with a Canadian Assistant, to sit at least once a Month; It seems to
» The Ordinance of 17th Sept. 1764. See p. 205.
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me no less Essential, that none of the Principal Officers of Government and Justice, neither Governor, Judge, Secretary, Provost Martial, or Clerk of the Council should receive Fee, Reward or Present from the People, on Pain of the King's Displeasure, tho' an Equivalent should be allowed them by Way of Salary, and that the inferior Officers be restrained to the Fees authorised under the French Government, in order to remove the present Reproach, that our English Justice, and English Offices are calculated to drain the People of the little Substance they have left, as well as to serve as a Barrier to secure the King's Interests, at this Distance from the Throne, from the pestilential Dangers of Avarice and Corruption, for Ages to come.
What Salaries may be necessary to induce Gentlemen of the Law, of Integrity, and Abilities, with a knowledge of the French Language, to come into this Country, I cannot tell; such Characters however are more indis- pensably necessary in this, than in any other of the King's Provinces, for here, every Fault and Error of the Man becomes a national Reproach; But Men of the Stamp of our present Chief Justice and Attorney General' not being allways to be met with, if unexceptionable Characters, such as above described, cannot be procured, it will be better for the Province, to be satisfied with any Men of sound Sense and Probity, it can afford, who with good Intentions, and the Advice and Assistance of these two Gentlemen, may prove of more Service, than an Ignorant, greedy, or Factious set — I could almost Venture to promise, that in a little Time, the Provincial Duties may pay all the Officers necessary for Government and the Adminis- tration of Justice, on the Footing I propose, of procuring Persons properly Qualified without Fees, together with all necessary extraordinary Expences, (I except however sine cure Salaries, and all public Works,) without giving the least Discontent; The Canadians in General, particularly the Gentlemen, greatly disapprove of the Verdict given last year against the Crown, on the Trial for the Duties, and both Canadian and English Merchants, the Colonists excepted, would have fixed the Rates in the Scheme I enclosed to your Lordship in my Letter' (N° 22) higher, than I thought Judicious for the first Essay; These Things I thought proper to mention at present,
st the fficonomy, necessary at Home, might be an Objection to the rrangements essential to the King's Service, and the Interests of Great Britain —
I am with much Respect and Esteem Your Lordship's
e Earl of Shelbufne One of Most Obedient
His Majesty's Principal Humble Servant
Secretaries of State— GUY CARLETON
l^ri
£>ri
i
* Wm. Hey and Francis Maseres.
' The reference is to Carlcton's letter to the Treasury, Dec. 10th, 1 767, in which was enclosed a table of proposed duties, expenses, &c. See Canadian Archives Q 5-1 , p. 300, for the letter, and pp. 306-315, for the tables.
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DRAUGHT OF AN ORDINANCE RELATING TO FRENCH LAND
TENURES!
An Ordinance for Continuing and Confirming the Laws and Customs that prevailed in this Province in the Time of the French Government concerning the Tenure, Inheritance, and Alienation of Lands.
Whereas from the extensive Words used in the great Ordinance of this Province dated the 17* Day of Sep' in the Year of Our Lord 1764, intitled, An Ordinance for regulating and establishing the Courts of Judicature, Justices of the Peace, Quarter Sessions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province, by which the two principal Courts of Judicature erected thereby in this Province are impowered and Directed, the one of them to hear and determine all Criminal and Civil Causes agre- able to the Laws of England and to the Ordinances of this Province, and the other to determine Matters of Property above the Value of ten Pounds agreable to Equity, having Regard nevertheless to the Laws of England, and an Appeal is allowed from this latter Court, in Cases wherein the Matter in Contest is of the Value of twenty Pounds, and upwards to the former Court which is strictly injoined to proceed according to the Laws of England and the Ordinances of this Province, as aforesaid, certain Doubts have arisen, and may arise, that in Consequence thereof, the Rules of Inheritance of Lands and Houses in this Province, and the Terms and Conditions of the Tenures thereof, and the Rights, Privileges, Profits and Emoluments thence arising either to the King's Most Excellent Majesty, or to divers of His said Majesty's Subjects that are owners of Lands in the said Province, were in the whole or in Part abolished, and the Laws and Customs of England relating to the said Points at once introduced in their Stead; which great and sudden Alteration of the Laws concerning these important Subjects would not only be in no wise useful to the said Province but by unsettling Mens antient and accustomed Rights and reasonable Expecta- tions Founded thereon, would be attended with innumerable Hardships and Inconveniences to the Inhabitants thereof, and produce a general Con- fusion. In Order therefore to prevent these Evils, and to quiet the Minds of the Inhabitants with Respect to them, It is Ordained and Declared by the Lieutenant Governor of this Province, by and with the Advice and Con- sent of the Council of the same, that the Laws and Customs that prevailed in this Province in the Time of the French Government at or immediately before the Time of the Conquest thereof by the Arms of Great Britain concerning the following Points; to Wit, Concerning the Tenures of Lands in this Province, both such as were held immediately of the Crown, and such as were held of Subjects, and the Terms and Conditions of such Tenures; and concerning the Rights, Privileges, and Preeminences annexed to any of the said Tenures, and the Burthens, Duties, and Obligations to which
' Canadian Archives, Q 5-1, p. 323.
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d^:
they were Subject, and Concerning the Inheritance and Succession to the said Lands upon the Death of any of the Proprietors thereof; and Concerning the Forfeiture, Confiscation, Reannexing or reuniting to the Demesne of the Lord, Escheat, Reversion, or other Devolution whatsoever of any of the said Lands, either to the King's Majesty or any of His Majesty's Subjects of whom they are held; and Concerning the Power of Devising, or Bequeathing, any of the said Lands by a last Will and Testament; and Concerning the Power of Alienating the same by the Proprietors thereof in their Life Time; and Concerning the Power of Limiting, Mortgaging, Hypothecating, or any Way incumbering, or affecting, any Lands in the said Province; shall continue in full Force and Vigor untill they are changed in I some of these Particulars by Ordinances made for that Purpose and expressly [ mentioning such Changes and setting forth in a full and distinct Manner the Laws introduced in the stead of those which shall be so changed or abolished, to the End that all the Inhabitants of this Province, Canadians as well as English, may fully understand and be made acquainted with the said new Laws that shall be so introduced, any Laws, Customs, or Usages of England, or any Ordinances of this Province, to the Contrary hereof in any Wise Notwithstanding — .
Also the said French Laws and Customs hereby Continued and Con- ( firmed shall be deemed and taken to have continued without Interruption from the Time of the Conquest of this Country by the British Arms to the present Time; any former Ordinance, or Ordinances, of this Province to the contrary thereof in any Wise Notwithstanding.
And further this Ordinance shall extend not only to all Lands in this Province held immediately of the Crown by Grants made by the French King before the Conquest of this Country, and to all Lands held under these immediate of the Crown, who are commonly called Seigneurs, by Grants made by the said Seigneurs to inferior Tenants or Vassals, before the said Conquest, but likewise to such Lands as have been granted by the said Seigneurs to the said inferior Tenants since the said Conquest, and like- wise to all such Lands as shall be granted hereafter by the said Seigneurs to the said inferior Tenants or Vassals; all which said Grants from the said Seigneurs to the said inferior Tenants, or Vassals, both these that shall hereafter be made, and those that have been made already, shall be subject to the same Rules, Restrictions, and Conditions, as were lawfully in Force ncerning them in the Time of the French Government at, or immediately fore, the Time, of the said Conquest of this Province by the British Arms. But this Ordinance shall not extend to, or any Way affect, any new Grants of Land in this Province made by the King's Majesty since the said Con- quest, or hereafter to be made by his said Majesty; but the Laws and Rules relating to such Royal Grants shall be the same as if this Ordinance had not been made.
Given by the Hon'''' Guy Carleton Lt. Governor and Commander in Chief of the Province of Quebec, Brig' Genl. of His Majesty's Forces &c
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&c in Council at the Castle of St. Louis in the City of Quebec on the Day of in the Year of His Majesty's Reign and in the
Year of our Lord 176
CARLETON TO SHELBURNE.i
Quebec 20"" Jan^ 1768 My Lord!
In my Letter^ (No. 20) I have given the Military state of this Province, with a scheme for strengthening it by a Citadel; I shall now add, that, was this already constructed, and I could suppose it impossible for any foreign Enemy to shake the King's Dominion over the Province, still I shall think the Interests of Great Britain but half advanced, unless the Canadians are inspired with a cordial Attachment, and zeal for the King's Government ; How far they are removed from that desirable Disposition, may easily be discovered, if brought to the Test, and examined by the general Cause of the Attachments of Men, Self-interest; if it shall not be found more their Interest to remain as at present, than to return under the Dominion of their former Sovereign, they certainly have not all those Motives, which induce Men of Honor to disregard the general Rule; there remain, 'tis true, an Oath of Allegiance,which may keep some Quiet in Case of a French Expedi- tion, and the Punishments due to Traitors, which will be regarded, as long as Government has Force sufficient to inflict them; it therefore seems to me highly expedient, that, at least, those Causes of Complaint, which affect the Bulk of the People, and come home almost to every Man, should be removed; That they should be maintained in the quiet Possession of their Property, according to their own Customs, which Time immemorial, has been regarded by them and their Ancestors, as Law and Equity; and that the Approach to Justice and Government, for the Redress of Wrongs, be practicable and Convenient, in Place of being ruinous by Delay, and an Expence disproportioned to their Poverty; but this is neither in the Power of Justice or Government here to grant him, while the Supreme Court is obliged to Judge according to the Laws of England, and the different Offices can claim, as their Right, Fees calculated for much wealthier Prov- inces.
But, Beside these Points of Justice, as long as the Canadians are de- prived of all Places of Trust and Profit, they never can forget, they no longer are under the Dominion of their natural Sovereign; tho' this immediately concerns but few, yet it affects the Minds of all, from a national Spirit, which ever interests itself at the general Exclusion of their Countrymen: three or four of their principal Gentlemen, with the Rank of Counsellors,' was it little more than Honorary, tho' on many Occasions they might prove
' Canadian Archives, Q 5-1, p. 370.
» Carleton to Shelburne, Nov. 2Sth, 1767. See p. 281.
' Carleton recurs to this idea in a letter to Hillsborough the following year. He recom- mends the addition of five Canadians to the Council and gives a list of twelve persons from whom selection might be made. (See Q. 5, p. 34.)
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useful; a few Companies of Canadian Foot judiciously ofificered, with three or four trifling Employments, in the Civil Department, would make very considerable Alterations on the Minds of the People; It would divide the Canadians at least, and secure a Part, in Case of a French War, that would emulate the zeal of the King's National Troops; It would hold up Hopes to the Gentlemen, that their Children, without being bred up in France, or the French Service, might support their Families in the Service of the King their Master, and by their Employments preserve them from sinking into the lower Class of People, by the Division and Subdivision of Lands every Gen ration.
I have found in Canada, what I believe may be found everywhere, the People fond of the Laws and Form of Government they have been educated under, the' scarcely a Man that Knows one sound Principle of Government, or Law; Three or four of the old Subjects, about a year ago, brought me the rough Draft of a Petition for a general Assembly, and hoped, I had no Objection to their having it signed by all the British, who wished to have one called; I told them, I had many Objections to great numbers signing a Request of any Kind, that it seldom conveyed the sincere Desire of the Subscribers, that it had an Appearance of an Intention to take away the Freedom of granting or refusing the Request; I had no Objection to Assem- blies in General, yet such was the peculiar Situatipn of Canada, tho' I had turned that Matter often in my Thoughts, I could hit off no Plan that was not liable to many Inconveniencies, and some Danger; That perhaps they might be more fortunate, and I should think myself obliged to them, if they would shew me one, that could be of advantage to the Province, and the King's Service, assuring them, such a Plan wanted no Petitions to recommend it to me: about a Month after, they asked me, if I had considered of their Request, and I repeated my former Answer; since which I have often urged them, of my own Accord, to let me have their scheme for an Assembly, and to inform me, who they thought should be the Electors, and who the Representatives, but to no Purpose; so that I imagined, they had laid aside all Thoughts of the Kind, till lately one John McCord, who wants neither Sense nor Honesty, and formerly kept a small Ale House in the poor Suburbs of a little Country Town in the North of Ireland, appearing zealous for the Presbiterian Faith, and having made a little Money, has gained some Credit among People of his Sort; this Person purchased some Spots of Ground, and procured Grants of more, close to the Barracks, where he run up Sheds, and placed poor People to sell his Spirits to the Soldiers, finding that his lucrative Trade has lately been checked, by inclosing the Barracks to prevent the Soldiers getting drunk all Hours of the Day and Night, He has commenced Patriot, and with the Assistance of the late Attorney General, and three or four more, egged on by Letters from Home, are at work again for an Assembly, and purpose having it signed by all they can influence: On the other Hand the better Sort of Canadians fear nothing more than popular Assemblies, which, they conceive, tend
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only to render the People refractory and insolent; Enquiring what they thought of them, they said, they understood some of our Colonies had fallen under the King's Displeasure, owing to the Misconduct of their Assemblies, and that they should think themselves unhappy, if a like Misfortune befell them. It may not be improper here to observe, that the British Form of < Government, transplanted into this Continent, never will produce the same •> Fruits as at Home, chiefly, because it is impossible for the Dignity of theT^ Throne, or Peerage to be represented in the American Forests; Besides, the Governor having little or nothing to give away, can have but little Influence; in Place of that, as it is his Duty to retain all in proper Subordina- tion, and to restrain those Officers, who live by Fees, from running them up to Extortion; these Gentlemen, put into Offices, that require Integrity, Knowledge and Abilities, because they bid the highest Rent to the Patentee, finding themselves checked in their Views of Profit, are disposed to look on the Person, who disappoints them, as their Enemy, and without going so far as to forfeit their Employments, they in general will be shy of granting that Assistance, the King's Service may require, unless they are all equally disinterested or equally Corrupt. It therefore follows, where the executive Power is lodged with a Person of no Influence, but coldly assisted by the rest in Office, and where the two first Branches of the Legislature have neither Influence, nor Dignity, except it be from the extraordinary Charac- ters of the Men, That a popular Assembly, which preserves it's full Vigor, and in a Country where all Men appear nearly upon a Level, must give a strong Bias to Republican Principles ; Whether the independent Spirit of a Democracy is well adapted to a subordinate Government of the British Monarchy, or their uncontrolable Notions ought to be encouraged in a Province, so lately Conquered, and Circumstanced as this is, I with great Humility submit to the Superior Wisdom of His Majesty's Councils: for my own part, I shall think myself Fortunate, if I have succeeded in render- ing clear Objects, not allways distinctly discernable at so great a Distance
I am with much Respect and Esteem.
Your Lordship's Most Obedient Humble Servant
GUY CARLETON
The Earl of Shelburne One of His Majesty's Principal Secretaries of State.
Endorsed :— Quebec 20"' Jan'^ 1768 Go^' Carleton.
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HILLSBOROUGH TO CARLETON.i
Whitehall, March the 6"" 1768. Sir,
I take the Opportunity of writing to you by the first Ship going directly to Quebec, since my Admission into Office, & also to send you Duplicates of my Four former Letters —
I come now to the Consideration of your Letters N° 17. 22. & 23.,' in which your Prudence and Judgment, your Care of the King's Service, and your Benevolence to His Subjects, are equally conspicuous to His Majesty.
I had the Honor to serve His Majesty at the Board of Trade, in the year 1763. when His Ma'ty was pleased to publish His Royal Proclamation relative to the new Colonies, and, whatever the legal sense conveyed by the words of that Proclamation may be, of which I pretend not to be a Judge, I certainly know what was the Intention of those who drew the Proc- lamation, having myself been concerned therein; And I can take upon me to averr, that it never entered into Our Idea to overturn the Laws and Customs of Canada, with regard to Property, but that Justice should be administered agreably to them, according to the Modes of administering Justice in the Courts or Judicature in this Kingdom, as is the Case in the County of Kent, and many other parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho' Justice is administered therein according to the Laws of England.
It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execu- tion, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal In- tention. The Distance of the Colony, the Difficulties arising from many Circumstances, unnecessary for me to enumerate, and the Differences of sinion occasioned by various Causes, have prevented, as yet, the necessary leasures from being taken, to correct this original and fatal Mistake; Jut I trust I shall soon be impowered to signify His Majesty's Pleasure,
' Canadian Archives. Q 5-1, p. 344.
Wills, Earl of Hillsborough, and of the Kingdom of Ireland, was appointed the first Secretary
State for the Colonies when that Department was created in 1768. His appointment, as
arded in the Warrant Book, vol. 32, is dated 2l8t Jan. 1768. From Sept. 9th, 1763, he had
n one of the Commissioners for Trade and Plantations. See Calendar of Home Office Papers,
1766-69, p. 422.
In this despatch Hilfsborough passes in review the various letters which had been received from Carleton since the former came into office, and as several of these relate to religious and trade matters the review of them is omitted here.
' Letter No. 17 is that of Nov. 21st. 1767, in which Ceirleton encloses a petition from British merchants in Canada, stating their objections to the complete enforcement in Canada of the English bankruptcy laws. Agreeing with their position, he has suspended the introduction of nich laws for the present. See Q 5-1, p. 245.
No. 22, is a letter of Dec. 10th, with enclosures, in response to a request from the Com-
£~""'' ^rs of the Treasury for information as to the revenue and expenditure of the Province. 1, p. 299. . 23, is the letter of Carleton to Shelburne of Dec. 24th, see p. 288.
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to you, to carry into Execution, such as will not only relieve His Majesty's new Subjects from the uncertain, and consequently unhappy Situation, they are now in ; but give them entire Satisfaction for the future, by securing to them their Property upon a stable Foundation, and rendering the Colony more flourishing and happy than it has ever been.
I have, in the mean Time, His Majesty's Commands, to express His Satisfaction in your prudent conduct relative to the Applications mentioned in your Letter N" 17. to have been made to you for a Commission of Bank- ruptcy, as it is impossible to conceive, that it could ever be His Majesty's Intention signified, either by the Proclamation, or by the Ordinance for the Establishment of Courts of Judicature, to extend Laws of that particular and municipal Nature to the Colony, even if the Intention had been to have overturned the Customs of Canada, and it would be full as reasonable to make a poor Rate under the 43"* of Elizabeth, or to execute any other Act of Parliament of England, in Quebec, however intended for any local or particular purpose in this Kingdom.
* * * « • •
His Majesty approves of every Sentiment expressed in your Letter N" 23. upon which is founded the Idea of the Ordinance, a Draught of which you transmit with that Letter'; The Draught corresponds in almost every part with His Majesty's Opinions; But, as the whole State of the Colony will be immediately taken into Consideration, His Majesty's Pleasure is, that you should, for the present, postpone the enacting of that Ordinance; not doubting but you will, in the mean Time, continue to make use of every lenient and proper Argument, to convince His Majesty's new Subjects of His tender Concern for their Welfare and Security; and, by representing to them the natural Difficulties that must occur, in Regulations of so im- portant a Nature, to be directed from so great a Distance, for the permanent Settlement of a Province, under Circumstances so uncommon and peculiar; prevail upon them to suffer patiently those Delays which are unavoidable.
I desire you will do me the Honor to accept my sincerest Congratula- tions upon your Appointment to the Government of Quebec.^ I most truly rejoice at It, both on Account of His Majesty's Service, and the Prosperity and Happiness of His Mat'y's Subjects in that important Colony.
I am &c
HILLSBOROUGH Lieutenant Governor of Quebec
Endorsed: — Dra' to the Lieutenant-Governor of Quebec Whitehall March 6^^ 1768.
> See p. 292.
« After acting as Lieutenant Governor of Quebec from April 1766 till the beginning of 1768, Carleton was appointed to the full position of "Captain General and Governor-in-chief of Quebec in America" — his appointment being dated Jan. 12th, 1768. See Calendar of Home Office Papers, 1766-69, p. 395.
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CARLETON TO SHELBURNE.i
Quebec U"" April 1768 My Lord!
Again I find myself under a necessity to repeat very near the same apolo- gies, as in my last about the Fees; the Truth is, that while Offices are farmed out to the best bidder, Tenants will make the most of their Leases, and in their Turn hire such Servants, as work at the cheapest Rate, without much Enquiry, whether the same is well or ill done; The inclosed List of Grants,* Prior to the Conquest of the Country, has been greatly retarded, from the Persons employed therein, not being thoroughly versed in the Languages, at the same Time, it must be fairly acknowledged, the Ancient Records of the Country, are by no Means so clear and accurate as one could wish, However it will in General tolerably well exhibit, on what Terms, the Seigni- orial Grants are held, for as to the Terres en Roture held immediately of the King, in the Towns of Quebec or Trois Rivieres, or else where, the same is not yet Compleated, but is in Hand, and shall be transmitted, without Loss of Time, as soon as finished.
Some of the Privileges contained in those Grants appear at first to Convey dangerous Powers into the Hands of the Seigneurs, that upon a more minute Enquiry, are found to be really little else than Ideal; the Haute Moyenne et basse Justice, are Terms of high Import but even under the French Government were so corrected, as to prove of little Signification to the Proprietors, for besides that they could Appoint no Judge without the Approbation of Government, there lay an Appeal from all the Private to the Royal Jurisdictions in every Matter exceeding half a Crown; it could not therefore be productive of Abuse, and as the Keeping of their own Judges became much too Burthensome for the Scanty Incomes of the Canadian Seigneurs, it was grown into so general a Disuse, there were hardly three of them in the whole Province at the Time of the Conquest.
All the Lands here are held of His Majesty's Castle of St. Lewis, and nothing I am persuaded, would be so agreeable to the People, or tend more to securing the Allegiance of the new Subjects to His Majesty, as well as ensuring the Payment of those Fines and Dues, which here stand in the Lieu of Quit Rents, than a formal Requisition of all those immediately holding of the King, to pay Faith and Homage to him at his Castle of St. "Lewis; The Oath, which the Vassals take upon the Occasion, is very Solemn and Binding, they are obliged to furnish what they here Term their Aveu et Denombrehient, which is an exact Account of their Tenants and Revenues, and to discharge whatever they owe their Sovereign, and to appear in Arms for his Defence, in Case His Province is ever attacked; And at the same Time that it would prove a Confirmation to the People of their Estates and Immunities, after which they most ardently sigh, it
I
' Canadian Archives. Q S-2, p. 477.
' See Caiiadian Archives, Q 5-2, pp. 560-587.
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might be a Means to recall out of the French Service, such as have yet Possessions in this Country, or at least oblige them to dispose of their Effects here, and although it may not be possible, at least for a Time, entirely to prevent that Intercourse, every Measure, that can tend towards putting an End to it, must be Useful.
The Canadian Tenures differ, it is true, from those in the other Parts of His Majesty's American Dominions, but if confirmed, and I cannot see how it well can be avoided, without entirely oversetting the Properties of the People, will ever secure a proper Subordination from this Province to Great Britain; if it's detached Situation be Constantly Remembered, and that on the Canadian Stock we can only depend for an Increase of Population therein, the Policy of Continuing to them their Customs and Usages will be sufificiently Evinced.
For the foregoing Reasons it has occurred to His Majesty's Servants here, that it might prove of Advantage, if, whatever Lands remain Vacant in the Interior Parts of the Province, bordering upon those, where the old Customs prevail, were henceforth granted on the like Conditions, taking care that those at Gaspey and Chaleur Bay, where the King's old Subjects ought chiefly to be encouraged to settle, were granted on such Conditions only, as are required by His Royal Instructions; And, upon this Considera- tion, have some Grants, in the interior Parts, been deferred Carrying into Execution, untill I could receive the sense of Government thereupon.
Your Lordship may have perceived by some of my former Letters, that long before His Majesty's Order in Council of the 28"' August' came to my Hands, the Matter therein Recommended had been the Object of my most serious Consideration; the Receipt of that Order has induced me to alter some Part of the Plan I at first Proposed to myself, and have accordingly directed the Abridgement mentioned to Your Lordship in my Letter of 24"" December (No. 23)* and undertaken by some of the ablest Men in the Province to be further extended, and rendered more full and Copious, and to Comprise all the Laws in Force at the Conquest; in the mean Time, to give Your Lordship, and His Majesty's other Servants, some Idea of the Nature of them, I herewith transmit to Your Lordship a short Sketch, exhibiting only the Heads of those Laws'; the several
» See p. 28S.
» See p. 288.
' The summary of French laws, here mentio ned, follows this despatch under the title, "Cou- tumes et usages anciens De La Province de Quebec." and will be found in Q S-2 pp. 482-559. The more complete compilation of the French law and constitution, represented as in force in Canada before the Conquest, was prepared, chiefly under the supervision of F. J. Cugnet, and sent to Britain in Sept. 1769. In 1772 several compilations of the French Canadian laws &c. were published; the most important being: — "An Abstract of those parts of the Custom of the Viscounty and Provostship of Paris which were Received and Practised in the Province of Quebec in the time of the French Government. Drawn up by a select Committee of Canadian Gentle- men well skilled in the laws of France and of that Province by the desire of the Hon. Guy Carleton Esq. Governor in Chief of the said Province, London 1772."
"An Abstract of the Several Royal Edicts & Declarations and Provincial regulations and ordinances, that were in force in the Province of Quebec in the time of the French Government; and of the Commissions of the several Governors General and Intendants of the same Province during the same period. By Francis Joseph Cugnet Esq. Secretary to the Governor and Council of the said Province for the French Language. By direction of Guy Carleton 1772."
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Matters Recommended by that Order to the King's Servants here, shall be prepared with all the Dispatch, that the Importance, as well as Extent of the Subject, can possibly admit of.
I am with much Respect and Esteem Your Lordship's Most Obedient Humble Servant
GUY CARLETON The Earl of Shelburne One of His Majesty's Principal Secretaries of State, &c.
INSTRUCTIONS TO GOVERNOR CARLETON, 1768*
Instructions to Our Trusty and Well beloved Guy Carleton Esquire, Our Captain General and Governor in Chief in and over Our Province of Quebec in America and of all Our Territories Dependent thereupon Given
First — ^With these Instructions You will receive Our Commission under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and Over Our Province of Quebec in , America, bounded on the Labrador Coast by the River S' John, and from thence by a Line drawn from the Head of that River through the lake S' John to the South End of the Lake Nipisson; from whence the said Line crossing the River S' Lawrence and the Lake Champlain in forty-five Degrees of North Latitude, passes along the Highlands which divide the Rivers that Empty themselves into the said River S' Lawrence from those which fall into the Sea, and also along the North Coast of the Bay des Chaleurs and the Coast of the Gulph of S' Lawrence to Cape Rosieres and from thence crossing the Mouth of the River S' Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River S' John. You are therefore to take upon you the Execution of the Office and Trust We have reposed in You, and the Administration of Government, and to do and Execute all things in due manner that shall belong to Your Command according to the several powers and Authorities of Our said Commission under Our Great Seal of Great Britain and these Our Instructions to You, or according to such further powers and Instruction as shall at any time hereafter be Granted or appointed You under Our Signet and Sign Manual or by Our Orders in Our Privy Council, and you are to call together at Que- bec, which We do appoint to be the place of Your residence, and the principal Seat of Government the following persons whom We do hereby appoint to be Our Council for Our said Province of Quebec, viz'. William Hey, Our Chief Justice of Our said Province, Hector Theophilus Cramah6, James Goldfrap, Hugh Finlay, Thomas Mills, Thomas Dunn, Walter Murray, Samuel Holland, Francis Mounier, Benjamin Price, and Colin
' Canadian Archives, M. 230, p. 61.
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Drumond Esquires — It is nevertheless Our Will and Pleasure, that Our Chief Justice or Chief Justice for the time being shall not be capable of taking upon him the Administration of the Government upon your Death or Absence, or the Death or Absence of the Commander in Chief for our said province for the time being —
2. And You are with all due and usual Solemnity to cause Our said Commission to be read and published at the said meeting of Our Council which being done. You shall then take and also administer to each of the members of Our said Council, the Oaths mentioned in an Act passed in the first year of the Reign of His Majesty King George the first, intitled "An Act for the further Security of His Majestys person and Government, "and the Succession of the Crown, in the Heirs of the late Princess Sophia "being Protestants, and for extinguishing the hopes of the pretended Prince "of Wales and his Open and secret abettors," And in an Act passed in the sixth Year of Our Reign, intitled, "An Act for altering the Oath of Abjura- "tion 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 Improve- "ment of the Union of the two Kingdoms, as, after the time therein Limitted "requires the Delivery of certain Lists and Copies therein mentioned to "persons Indicted of High Treason or Misprison of Treason;" as also make and Subscribe, and cause them to make and Subscribe, the Declaration mentioned in an Act of Parliament made in the 25"' year of the Reign of King Charles the second intituled, "An Act for preventing Dangers which "may happen from Popish Recusants" — And You and every one of them are likewise to take an Oath for the due Execution of Your and their places and Trusts, with regard to Your and their equal and impartial Administra- tion of Justice; And You are also to take the Oath required by An Act passed in the seventh and eighth Years of the Reign- of King William the third to be taken by Governors of Plantations to do their Utmost that the Laws relating to the plantations be observed.
3. And that We may be always Informed of the Names and Characters of persons fit to Supply the Vacancies which shall happen in Our said Council, You are to transmit to Us by One of Our principal Secretaries of State the Names and Characters of three persons Inhabitants of Our said province who You shall esteem the best Qualified for that Trust and You are also to Transmit a Duplicate of the said Account to Our Com- missioners for Trade and plantations for their Information.
4. And if it shall at any time happen, that by the Death, Departure out of Our said province, suspension of any of Our said Councellors, or otherwise, there shall be a Vacancy in Our said Council, Our Will and Pleasure is that You signify the same to Us, by One of Our principal Secretaries of State, by the first Opportunity, that We may under Our Sign Manual, constitute and appoint others in their Stead ; to which end You are whenever such Vacancy happens, to transmit unto Us by One of Our principal Secre- taries of State, the Names of three or more persons. Inhabitants of Our said
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province whom you shall esteem best Qualified, for such Trust, and you are also to Transmit duplicates of such Accounts to Our Commissioners for Trade and plantations for their Information.
5. But that Our Affairs may not Suffer for want of a due number of Councillors; if ever it shall happen that there be less than Seven residing in Our said province. We do hereby give and grant unto You the said Guy Carleton full power and Authority to chuse as many persons out of the principal Inhabitants of our said province, as will make up the full number of the Council to be seven and no more, which persons so chosen and ap- pointed by You, shall be to all Intents and purposes. Councillors in Our said Province 'till either they shall be confirmed by Us, or, by the Nomina- tion of others by Us under Our sign Manual and Signet, Our said Council shall have seven, or more persons in it.
6. And it is Our Will and Pleasure, that You do, and You are hereby Authorized and Impowered to Suspend and amove any of the Members of Our said Council, from Sitting, Voting, and Assisting therein, if You shall find just Cause for so doing, and to appoint others in their Stead until Our pleasure shall be known. It is nevertheless Our Will and Pleasure, that You do not Suspend or Remove any of the Members of Our Council when they shall have been Confirmed by Us as aforesaid, without good and sufficient cause, nor without the Consent of the Majority of the said Council, signified in Council, after due Examination of the Charge against such Councillor, and his Answer thereunto; and in Case of suspension of any of them. You are to cause Your Reasons for so doing, together with the Charges and proofs against such person, and his Answer thereto be duly entered upon the Council-Books, And forthwith to transmit Copies thereof to Us, by one of Our principal Secretaries of State, and also Dupli- cates to Our Commissions for Trade and Plantations for their Information nevertheless if it should happen that You should have Reasons for Suspend- ing any of the said Persons, not fit to be communicated to the Council, You may in that Case suspend such person without the Consent of Our said Council; but You are thereupon immediately to send to Us by One of Our principal Secretaries of State An Account of Your proceedings therein; together with Your Reasons at large for such suspension as also your Reasons at large for not communicating the same to the Council and Duplicates thereof by the first opportunity and you are also to trans- mit a Duplicate of such Account to Our Commissioners for Trade and plan- tations for their Information.
7. Whereas .We are Sensible that Effectual Care ought to be taken to oblige the Members of Our Council to a due attendance therein, in order to prevent the many Inconveniences that happen for the want of a Quorum of the Council to transact business as occasion may require; It is Our Will and Pleasure that if any of the Members of Our said Council shall hereafter absent themselves from the said Province and Continue absent above the Space of Six Months together, without leave from you, or from Our
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Commander in Chief of Our said Province for the time being first obtained, under your or his Hand and Seal, or shall remain absent for the Space of One Year without Our Leave given them under Our Royal Signet and Sign Manual their place or places in the said Council shall immediately thereupon become Void: and that if any of the members of Our said Council, then residing in the province under Your government shall hereafter wilfully absent themselves when duly summoned, without a just and lawful Cause and shall persist therein after admonition, you suspend the said Councillors so absenting themselves 'till Our further pleasure be known giving Us timely Notice thereof; And We do hereby Will and Require You that this Our Royal Pleasure be Signified to the several Members of Our Council aforesaid, and entered in the Council-Books of the province under Your Government as a Standing rule —
8. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite, as likewise all such others, from time to time, as You shall find Convenient for Our Service to be Imparted to them —
9. You are to permit the Members of Our said Council to have and Enjoy freedom of Debate and Vote in all Affairs of publick concern that may be debated in Council —
10. And Whereas it is directed by Our Commission to You under Our Great Seal, that as soon as the Situation and Circumstances of Our said Province will admit thereof You shall with the Advice of Our Council, Summon and call a general Assembly of the Freeholders of Our said province, You are therefore as soon as the more pressing Affairs of Government will allow, to give all possible attention to the carrying this Important Object into Execution, but as it may be Impracticable for the present to form such an Establishment You are in the mean time to make such Rules and Regulations by the Advice of our said Council as shall appear to be neces- sary for the peace Order and good government of our said province; taking Care that nothing be done or passed that shall any way tend to affect the Lif^ Limb or Liberty of the Subject, or to the Imposing any Duties or Taxes; and that all such rules and Regulations be transmitted to Us by the first Opportunity after they are passed and made for our Approbation or Disallowance. And it is Our Will and Pleasure that when An Assembly shall have been Summoned and met in such manner as you in Your dis- cretion shall think most proper, or as shall be hereafter directed and ap- pointed, the following Regulations be carefully observed in the framing and passing all such Laws Statutes and Ordinances, as are to be passed by You with the Advice and Consent of Our said Council and Assembly, Viz'. That the Stile of Enacting the said Laws, Statutes and Ordinances be by the Governor, Council and Assembly and no other — ^That each differ- ent 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
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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 Enact- ing part ; — ^That no Law or Ordinance respecting private property be passed without a Clause suspending it's Execution, until Our Royal Will and plea- sure is known, nor without a Saving of the Right of Us, Our Heirs and Suc- cessors, and of all Bodies Politick and Corporate, and of all other persons except such as are mentioned in the said Law or Ordinance, and those claiming by, from, or under them, and before such Law or Ordinance is passed, proof must be made before You in Council and Entered in the Coun- cil-Books, that publick Notification was made of the partys Intention to apply for such Act in the several parish Churches, where the Lands in Question lye for three Sundays at least successively before any such Law or Ordinance shall be proposed; and you are to transmit and Annex to the said Law or Ordinance a Certificate under your Hand that the same passed through all the Forms above mentioned ; That in all Laws or Ordin- ances for the Levying Money, or Imposing Fines, forfeitures or penalties, express mention be made, that the same is granted or reserved to Us Our Heirs and Successors for the publick Uses of the said province, and the Support of the Government thereof, as by the said Law or Ordinance shall be directed; and that a clause be Inserted, declaring that the Money arising by the Operation of the said Law or Ordinance shall be accounted for unto Us in this Kingdom, and to Our Commissioners of the Treasury or Our High Treasurer for the Time being and audited by Our Auditor General of our Plantations or his Deputy — That all such Laws, Statutes and Ordinances be transmitted by You within three Months after their passing or sooner if opportunity offers, to Us, by One of Our principal Sec- retaries of State and Duplicates thereof to Our Commissioners for Trade and plantations for their Information — ^That they be fairly abstracted in the Margents and accompanied with very full and particular observations upon each of them (that is to say) whether the same is Introductive of a new Law, Declaratory of a former Law, or does repeal a Law then in being And you are also to transmit in the fullest manner the Reasons and Occasion for Enacting such Laws or Ordinances together with fair Copies of the Journals of the proceedings of the Council and Assembly which You are to require from the Clerks of the said Council and Assembly —
11. And to the End that nothing may be passed or done to the prejudice of the true Interests of this Our Kingdom the Just Rights of Us Our Heirs and Successors or the property of Our Subjects It is Our Express Will and pleasure, That no Law whatsoever which shall in any wise tend to Affect the Commerce or Shipping of this Kingdom, or which shall any ways relate to the Rights and prerogative of Our Crown or the property of Our Subjects or which shall be of an Unusual or Extraordinary Nature be finally ratified or Assented to by You, until You shall have first transmitted unto Us by
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one of Our principal Secretaries of State, and to Our Commissioners for Trade and plantations for their Information a Draught of such Law, and shall have received Our Directions thereupon Unless You take Care that a Clause be Inserted therein, suspending and Deferring the Execution thereof until Our pleasure is known concerning the same. —
12 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 give Your Assent to any Law that shall be Enacted for a less time than two Years, except in Cases of imminent Neces- sity, or imminent temporary expediency and You shall not re-enact any Law to which Our Assent shall have been once refused, without Express leave for that purpose first obtained from Us upon a full representation by You to be made to Us by One of Our principal Secretaries, and to Our Commissioners for Trade and Plantations for their Information, of the Reasons and necessity for passing such Law; nor give Your Assent to any Law for repealing any other Law, which shall have passed in Your Govern- ment, and shall have received Our Royal Approbation unless You take Care that there be a Clause inserted therein Suspending and Deferring the Execution thereof until Our pleasure shall be known concerning the same. —
13 And We do particularly require you to take care, that fair Books of Accounts of all Receipts and Payments of all publick Money be duly kept, and the truth thereof attested upon Oath and that all such Accounts be audited and attested by Our Auditor General of our plantations or his Deputy, who is to Transmit Copies thereof to Our Commissioners of Our Treasury, or to Our High Treasurer for the time being And that You do every half Year or oftener, send another Copy thereof. Attested by Your- self to Our Commissioners for Trade and plantations, and duplicates thereof by the next Conveyance; in which Books shall be specified, every particular Sum raised or Disposed of together with the Names of the persons to whom any payment shall be made, to the End We may be satisfied of the Right and due application of the Revenue of Our said province with the probability of the Increase or diminution of it under every head and Article thereof
14 And Whereas the Members of several Assemblies in the plantations have frequently Assumed to themselves privileges no ways belonging to them especially of being protected from Suits at Law during the Term they re- main of the Assembly to the great prejudice of their Creditors and the Ob- struction of Justice; and some Assemblies have presumed to adjourn them- selves at pleasure without leave from Our Governor first obtained; and others have taken upon themselves the sole framing of Money Bills, refusing to let the Council Alter or amend the same; all which practices are very detrimental to Our Prerogative. If therefore you find that the Members of Our Province of Quebec Insist upon any of the said Privileges, You
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are to signify to them that it is Our Express Will and Pleasure, that You do not allow any protection to any member of the Council or Assembly further than in their persons, and that only during the sitting of the Assem- bly, and that You do not allow them to adjourn themselves otherwise than de diem, except Sundays and Holidays, without Leave from you or the Commander in Chief for the time being first obtained: It is also Our further pleasure that the Council have the like power of framing Money Bills as the Assembly.—
15 And Whereas by Our aforesaid Commission under Our Great Seal of Great Britain, You are authorized and impowered with the Advice and Consent of Our Council to Constitute and appoint Courts of Judicature and Justice; It is therefore Our "Will and Pleasure, that You do as soon as possible apply Your attention to these great and Important Objects and that in forming the necessary Establishments for this purpose. You do consider what has been Established in this respect in Our other Colonies in America more particularly in Our Colony of Nova Scotia —
16 Our Will and Pleasure is, that You or the Commander in Chief for the time being do in all civil Causes, on application being made to You or the Commander in Chief for the time being for that purpose, permit and allow appeals from any of the Courts of Common Law in Our said Province until You or the Commander in Chief, and the Council of the said Province, and You are for that purpose to Issue a Writ in the manner which has been usually accustomed, returnable before Yourself and the Council of the said province, who are to proceed to hear and Determine such Appeal, wherein such of the said Council, as shall be at that Time Judges of the Court from whence such appeal shall be so made to You Our Captain General, or to the Commander in Chief for the time being and to Our said Council as aforesaid shall not be admitted to Vote upon the said Appeal, but they may nevertheless be present at the hearing thereof, to give the Reasons of the Judgment given by them, in the Causes wherein such Appeal shall be made provided nevertheless that in all such appeals the Sum or Value appealed for do exceed the sum of three hundred pounds Sterling, and that Security be first duly given by the Appellant to Answer such Charges as shall be awarded in Case the first Sentence be affirmed; and if either party shall not rest satisfied with the Judgment of You or the Commander in Chief for the time being and Council as afore- said, 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 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 Case the sentence of You or the Commander in Chief for the time being and Council be affirmed; provided nevertheless where the matter in Question relates to the taking or Demanding any Duty payable to Us or to any
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Fee of Office, or annual Rents or other such like matter or thing where the Rights in future may be bound in all such Cases You are to admit An Appeal to Us in Our privy Council, though the Immediate Sum or Value appealed for be of less Value; And it is Our further Will and Pleasure, that in all places where, by Your Instructions you are to admit Appeals unto Us in Our privy Council, execution be suspended until the final Deter- mination of such Appeal, unless good and sufficient Security be given by the Appellee to make ample Restitution of all that the Appellants shall have lost by means of such Decree or Judgment in Case upon the Deter- mination of such Appeal such Decree or Judgment should be reversed and restitution awarded to the Appellant.
17. You are also to admit Appeals unto Us in Our privy Council in all Cases of Fines Imposed for Misdemeanours provided the Fines so Imposed, Amount to or Exceed One hundred pounds Sterling; the Appellant first giving good Security, that he will Effectually prosecute the same, and answer the Condemnation If the Sentence by which such fine was Imposed in Quebec shall be Confirmed.
18. You are, with the Advice and Consent of Our Council in the Province under Your government to take Especial care to regulate all Sallaries and fees belonging to places, or paid upon Emergencies, that they be within the bounds of Moderation, and that no Exaction be made on any Occasion whatsoever; as also that Tables of all Fees be publickly hung up in all places where such Fees are to be paid and You are to transmit Copies of all such Tables of Fees unto Us by One of Our principal Secretaries of State and duplicates thereof to Our Commissioners for Trade and Planta- tions for their Information —
19. It is Our Express Will and Pleasure that You do by the first Opportunity and with all convenient Speed transmit unto Us by One of Our principal Secretaries of State and duplicates thereof to Our Commis- sioners for trade and plantation for their Information Authentick Copies of all Acts Orders Grants Commissions or other powers by Virtue of which any Courts Offices, Jurisdictions, pleas, Authorities, Fees and privileges, have been Settled or Established, for our Confirmation or Disallowance; and in case all or any of them shall at any time or times be disallowed and not approved then such and so many as shall be disallowed and not approved, and so Signified by Us shall cease determine and be no longer continued or put in practice. —
20 You shall not appoint any person to be a judge or Justice of the peace, without the advice and Consent of the Majority of the Members of Our Council, present in, nor shall You Execute yourself or by Deputy and of the said Offices; and it is Our further Will and Pleasure that all Commis- sions to be Granted by You to any person or persons to be Judges or Justice of the peace, or other necessary officers, be granted during pleasure only —
21. You shall not displace any of the Judges Justices of the peace or other Officers or Ministers without good and sufficient Cause, which You shall
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Signify in the fullest and most Distinct manner to Us by one of our principal Secretaries of State and to Our Commissioners for Trade and Plantations for their Information —
22. And Whereas frequent Complaints have heretofore been made of Great Delays and undue proceedings in the Courts of Justice in several of Our plantations, whereby many of Our Good Subjects have very much Suffered, And it being of the greatest Importance to Our Service and to the Welfare of Our Plantations that Justice be every where speedily and Duly administered, and that all Disorders Delays and other undue practices, in the administration thereof be Effectually prevented ; We do particularly require You to take Especial Care, that in all Courts, where you are Author- ized to preside, Justice be Impartially administered, and that in all other Courts, established within Our said Province all Judges and other persons therein concerned do likewise perform their several Duties without any Delay or partiality.
23. You are to take Care, that all Writs be issued in Our Name through- out the Province under Your Government.
24. Whereas there are several Offices in Our plantations Granted under the Great Seal of Great Britain, and Our Service may be very much pre- judiced by reason of the absence of the Patentees, and by their appointing Deputies not fit to officiate in their Stead, You are therefore to Inspect such of the said Offices as are in the province under Your Government, and to Enquire into the Capacity and behaviour of the persons exercising them, and to report thereup)on to Us by One of Our principal Secretaries of State and to Our Commissioners for Trade and Plantations what You think fit to be done or Altered in Relation thereunto; and You are upon the misbehaviour of any of the said Patentees or their Deputies to Suspend them from the Execution of their Office 'till You shall have represented the the whole matter unto Us as aforesaid and received our Directions therein And in Case of the Death of any such Deputy, It is Our Express Will and pleasure, that you take Care, that the person appointed to Execute the place until the patentee can be Informed thereof and appoint another Deputy, do give sufficient Security to the patentee, or, in Case of Suspension to the person Suspended to be answerable to him for the profits accruing during such Interval by death or during Suspension, in Case We shall think fit to restore the person Suspended to his place again — It is nevertheless Our Will and pleasure that the person Executing the place during such Interval, by Death or Suspension shall for his Encouragement receive the same Profits as the person suspended or dead did receive; And it is Our further Will and Pleasure, that, in Case of a Suspension of a patentee, the person appointed by You to Execute the office during such Suspension shall receive a Moiety of the profits which would otherwise become due to such patentee, giving Security to such patentee to be answerable to him for the other Moiety, in Case We shall think fit to restore him to his Office again. And it is Our further Will and pleasure, that You do countenance and give
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all due Encouragement to all Our Patent Officers in the Enjoyment of their legal and Accustomed Fees, Rights privileges and Emoluments according to the true Intent and meaning of their patents — •
25. You shall not by Colour of any power or Authority hereby or other wise Granted or mentioned to be Granted unto You, take upon You to give, grant or Dispose of any office or place within Our said Province which now is or shall be Granted under the Great Seal of this Kingdom, or to which any person is or shall be appointed by Warrant under Our Signet and Sign Man- ual, 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 repre- sented the matter unto Us by one of our principal Secretaries of State; and to Our Commissioners for Trade and Plantations, for their Information as aforesaid, which You are to do by the first Opportunity, and 'till the said Office or place be disposed of by Us Our Heirs or Successors under the Great Seal of this Kingdom, or until some person shall be appointed thereto by Warrant under Our Signet and Sign Manual or Our further Directions be given therein —
26. And Whereas several Complaints have been made by the Officers of Our Customs in Our plantations in America, that they have frequently been obliged to serve as Jurors, and personally to Appear in Arms whenever the Militia is drawn Out and thereby are much hindred in the Execution of their Employments, Our Will and Pleasure is that You take Effectual Care and give the necessary Directions that the several officers of Our Customs be Excused and exempted from serving on any Juries, or personally ap- pearing in Arms in the Militia, unless in Cases of absolute Necessity or serving any parochial Offices which may hinder them in the Execution of their Duty —
27. And Whereas We have Stipulated by the late Definitive Treaty of Peace concluded at Paris the 10"' Day of February 1763 to Grant the Liberty of the Catholick Religion to the Inhabitants of Canada, and that We will consequently give the most precise, and most Effectual Orders, that Our New Roman Catholick Subjects in that Province may profess the Worship of their Religion according to the Rites of the Romish Church, as far as the Laws of Great Britain permit; It is therefore Our Will and Pleasure that You do in all things regarding the said Inhabitants Conform with Great Exactness to the Stipulations of the said Treaty in this respect —
28. You are as soon as possible to Summon the Inhabitants to meet together at such time or times, place or places, as You shall find Convenient in Order to take the Oath of Allegiance, and make and Subscribe the Declar- ation of Abjuration mentioned in the aforesaid Act passed in the first Year of the Reign of King George the 1" for the further Security of His Majestys person and Government, and the Sucession of the Crown in the Heirs of the late Princess Sophia, being Protestants, and for Extinguishing the Hopes of the pretended Prince of Wales and his Open and Secret Abettors, and in
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the aforesaid Act passed in the Sixth Year of Our Reign for Altering the Oath of Abjuration and the Assurance and for amending so much of An Act of the seventh Year of her late Majesty Queen Anne Intitled An Act for the Improvement of the Union of the two Kingdoms as after the time therein Limitted requires the Delivery of certain Lists and Copies therein mentioned to persons Indicted of High Treason, or Misprison of Treason; which Oath shall be Administered to them by such person or persons as You shall Commissionate for that purpose, and in Case any of the said French Inhabitants shall refuse to take the said Oath and make and Sub- scribe the Declaration of Abjuration as aforesaid. You are to cause them forthwith to Depart out of Our said Government —
29. And it is Our further Will and Pleasure that all such Inhabitants professing the Religion of the Romish Church, do at all meetings, or at such other time or times You shall think proper and in the manner you shall think least alarming and Inconvenient to the said Inhabitants Deliver in upon Oath an Exact Account of all Arms and Ammunition of every sort in their Actual possession, and so from time to time, of what they shall receive into their Possession as aforesaid —
30. You are as soon as possible to Transmit to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and plan- tations for their Information, an Exact and particular Account of the Nature and Constitution of the several Religious Communities of the Romish Church, their Rights Claims privileges and property, and also the Number Situation and Revenues of the several Churches heretofore established in Our said province together with the Number of Priests or Curates Officiating in such Churches —
31. You are not to Admit of any Ecclesiastical Jurisdiction of the See of Rome, or any other foreign Ecclesiastical Jurisdiction whatever in the province under Your Government —
32. And to the End that the Church of England may be Established both in principles and practice, and that the said Inhabitants may by De- grees be Induced to Embrace the Protestant Religion, and that their Chil- dren be brought up in the principles of it We do hereby declare it to be Our Intention, when the said Province shall have been accurately Surveyed and Divided in Townships, Districts precincts or parishes in such manner as shall be herein after directed, all possible Encouragement shall be given to the Erecting protestant Schools in the said Districts Townships and pre- cincts by Settling appointing and Allotting proper Quantities of Land for that purpose; and also for a Glebe and maintenance for a Protestant Minister and protestant School Masters; and You are to Consider and to Report to Us by one of Our principal Secretaries of State and to Our Commissioners for Trade and Plantations for their Information, by what other means the Protestant Religion may be promoted, established, and Encouraged in
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33. And You are to take especial Care that God Almighty be devoutly and duly served throughout Your Government; the Book of Common Prayer as by Law Established read each Sunday and Holiday; and the blessed Sacrament administered according to the Rites of the Church of England —
34. You are not to prefer any Protestant Minister to any Ecclesiastical Benefice in the Province under your Government without a Certificate from the Right Reverend Father in God the Lord Bishop of London, of his being Conformable to the Doctrine and Discipline of the Church of England, and of good Life and Conversation — ^And if any person hereafter preferred to a Benefice shall appear to You to give Scandal either by his Doctrine and manners You are to use the best means for his Removal. —
35. You are to give Orders forthwith that every Orthodox Minister within Your Government be one of the Vestry in his respective parish, and that no Vestry be held without him, except in Case of Sickness or after Notice of a Vestry Summoned he omit to come —
36. And to the End that the Ecclesiastical Jurisdiction of the Lord Bishop of London may take place in Our Province under your Government as far as conveniently may be, We do think fit that You give all Countenance and Encouragement to the Exercise of the same, excepting only the collating to Benefices, granting Licences for Marriage and probates of Wills which We have reserved to You our Governor and to the Commander in Chief of Our said province for the time being —
37. And We do further Direct that no Schoolmaster who shall arrive in Our said Province from this Kingdom, be henceforward permitted to keep School, without the Licence of the said Lord Bishop of London, and that no other person now there or that shall come from other parts shall be admitted to keep School in Your Government without Your Licence first obtained.
38. And You are to take Especial Care, that a Table of Marriages, established by the Cannons of the Church of England be hung up in all places of Publick Worship according to the Rites of the Church of England.
39. And it is Our further Will and Pleasure, that in Order to Suppress as much as in You lies, every Species of Vice and Immorality, You forthwith do cause all Laws already made against Blasphemy, Prophaneness, Adultry, Fornication, Polygamy, Incest, profanation of the Lords Day, Swearing and Drunkenness to be rigorously put in Execution in every part of Your Government, and that You take due care for the punishment of these, and every other Vice and Immorality by presentment upon Oath, to be made to the Temporal Courts by the Church Wardens of the several parishes, at proper times of the Year to be appointed for that Purpose; and for the further Discouragement of Vice, and Encouragement of Virtue and good living (that by such Examples the Infidels may be Invited and per- suaded to Embrace the Christian Religion,) You are not to admit any persons to publick Trusts and Employments in the Province under Your Government whose ill Fame and Conversation may Occasion Scandal —
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40. And it is Our further Will and Pleasure, that all and every the French Inhabitants in Our said Province who are now possessed of Lands within the said Province in Virtue of Grants or Concessions made before the Signing of the preliminary Articles of Peace on the 3'^ Day of Nov', 1762, within such Limitted time as You in Your Discretion shall think fit. Register the several Grants or other Deeds, or Titles, by which they hold or Claim such Lands, in the Secretarys Office which said Grants, Deeds or other Titles, shall be Entered at large in the said Office, so that the particular Quantity of Land, it's Scite and Extent, the Conditions upon which it is Granted, either as to Rents, Services, or Cultivation, may appear fully and at length —
41. And in Case it shall Appear, upon a Strict and Accurate Examina- tion of the said Grants and Title Deeds, to be taken in such manner as You shall think proper, that any of the Grantees or Persons claiming Lands under such Grants and Title Deeds, are in Possession of more Land than is contained within such Grants or other Concessions, or that the Terms and Conditions upon which the Lands were Granted have not been complied with agreable to what is Stipulated in such Grants or Concessions, It is Our Will and Pleasure, that You forthwith represent the same to Us, by One of Our principal Secretaries of State to the End You may receive such Directions thereupon as the nature and circumstances of the Case shall appear to require, and You are to send a Duplicate of such Representa- tion to Our Commissioners for Trade and plantations for their Information —
42. And Whereas it is necessary in Order to the advantageous and Effectual Settlement of Our said Province, that the true State of it should be fully known ; You are therefore as soon as conveniently may be, to cause an Accurate Survey to be made of the said Province, by such Able and Skilful person as is or shall be appointed for that Service, who is to Report to You in Writing for Your Judgment in the measures which You may in General pursue for the making of Settlements, not only the Nature and Quality of the Soil and Climate, the Rivers Bays and Harbours, and every other Circumstance attending the Natural State of it; but also his opinion in what manner it may be most conveniently laid out into Counties, and to annex to his Report a Map of such Survey, with the several Divisions proposed marked upon it. But as the making such Survey, with the several Divisions proposed will be a Work of Great Length, You are in the mean time to carry on Settlements upon that plan, which shall appear to you to be most Expedient from the best Information You can collect —
43. And Whereas it has been found by Experience, that the Settling Planters in Townships hath very much redounded to their Advantage, not only with respect to the Assistance they have been able to Afford each other in their Civil Concerns, but likewise with regard to the Security they have thereby acquired against the Insults and Incursions of neighbouring Indians or other Enemies; You are therefore to lay out Townships of a Convenient Size and Extent in such places as You in Your Discretion shall Judge most
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proper; And it is Our Will and Pleasure that each Township do consist of about twenty thousand Acres, having as far as may be natural Boundaries, extending up into the Country, and comprehending a necessary part of the River S' Lawrence where it can be conveniently had —
44. You are also to cause a proper place in the most convenient part of each Township to be marked out for building a Fort sufficient to contain such a Number of Families as You shall judge proper to Settle there, with Town and Pasture Lots convenient to each Tenement, taking Care that the said Town be laid out upon, or as near as conveniently may be to some Navigable River or the Sea Coast, and You are also to reserve to Us proper Quantities of Land in each Township for the following purposes. Viz* For Erecting Fortifications and Barracks where necessary or for other Military or Naval Services, and more particularly for the Growth and Produce of Naval Timber, if there are any Wood Lands fit for that purpose —
45. And it is Our further Will and Pleasure that a particular Spot in or as near each Town as possible be set apart for the Building a Church, and four hundred Acres adjacent thereto, allotted for the Maintenance of a Minister and two hundred Acres for a Schoolmaster.
46. And You are to give Strict Orders to the Surveyors whom You shall Employ to mark out the said Townships and Towns, to make returns to you of their Surveys as soon as possible with a particular Description of each Township, and the Nature of the Soil within the same.
47. And You are to oblige all such persons, as shall be appointed to be Surveyors of the said Lands in each Township, to take an Oath for the due performance of their Offices and for obliging them to make exact Surveys of all Lands required to be set out —
48 And Whereas nothing can more effectually tend to the Speedy settling our said Colony, the Security of the property of Our Subjects and the advancement of Our Revenue than the disposing of such Lands as are our property upon Reasonable Terms, and the establishing a regular and proper method of proceeding with respect to the passing of Grants of such Land; It is therefore Our Will and Pleasure that all and every person and persons who shall apply to you for any Grant or Grants of Land shall previous to their obtaining the same make it appear before You in Council, that they are in a Condition to Cultivate and Improve the same by settling thereon in proportion to the Quantity of Acres desired, a sufficient Number of white persons and Negroes ; and in Case You shall upon a Consideration of the Circumstances of the person or persons applying for such Grants, think it adviseable to pass the same, in such Case You are to cause a War- rant to be drawn up, directed to the Surveyor General or other proper Officers, empowering him or them to make a faithful and Exact Survey of the Lands so petitioned for, and to return the said Warrant within six Months at furthest from the Date thereof, with a plot or Description of the Lands so Surveyed thereunto annexed, provided that You do take Care, that before any such Warrant is Issued as aforesaid, a Docquet thereof be
i
•r.
CONSTITUTIONAL DOCUMENTS 315
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entered in the Auditors and Registers Office, and when the Warrant shall be returned by the said Surveyor or other proper Officer, the Grant shall be made out in due form, and the Terms and Conditions required by these Our Instructions be particularly and Expressly mentioned in the respective Grants: And it is Our Will and pleasure, that the said Grants shall be registered within Six Months from the Date thereof in the Registers Office there, and Docquet thereof be also entered in Our Auditors Office there, in case such Establishment shall take place in Our said Province, or that in Default thereof such Grant shall be Void, Copies of all which Entries shall be returned regularly by the proper Officer to Our Commission of Our Treasury and to Our Commissioners for Trade and plantations within six Months from Date thereof.
49. And Whereas great Inconveniences have arisen in many of Our Colonys in America from the granting excessive Quantities of Land to particular persons who have never cultivated or Settled it, and have thereby Prevented others more Industrious from Improving the same; in Order therefore to prevent the like Inconveniences for the future. You are to take especial Care, that in all Grants to be made by You, by and with the Advice and Consent of Our Council, to persons applying for the same, the Quantity be in proportion to their Ability to Cultivate: And You are hereby directed to observe the following Directions and Regulations in all Grants to be made by You Viz:
That One hundred Acres of Land be granted to every person being Master or Mistress of a Family for himself or herself and fifty Acres for every White or Black Man Woman or Child of which such persons Family shall consist, at the Actual time of making the Grant, and in Case any Person applying to You for Grants of Land shall be desirous of taking up a larger Quantity than the Actual Number of Persons in his or her Family would Intitle such persons to take up. It is Our Will and Pleasure and You are hereby allowed and permitted to grant unto every such person or persons such further Quantity of Land as they may desire, not exceeding one thousand Acres over and above what they are entitled to, by the number of persons in their respective Families, provided it shall appear to you that they are in a Conditon and Intention to Cultivate the same; and provided also that they do pay to the Receiver of Our Quit rents or to such other Officer as shall be appointed to receive the same the Sum of five Shillings only for every fifty cres so Granted on the Day of the Date of the Grant. —
That all Grantees be Subject to the payment of two Shillings Sterling for every hundred' Acres to commence at the expiration of two Years from the Date of such Grant and to be paid Yearly and every Year, or in Default of such payment the Grant to be void —
That every Grantee upon giving proof that he or she has fulfilled the erms and Conditions of his or her Grant, shall be Entitled to another Grant in the proportion and upon the Conditions above mentioned. —
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That for every fifty Acres of Land accounted plantable each patentee shall be Obliged within three Years after the Date of his patent to clear and Work three Acres at the least in that part of his Tract which he shall Judge most Convenient and Advantageous, or else to clear and drain three Acres of Swampy or sunken Grounds or drain three Acres of Marsh if any such be within the Bounds of His Grant —
That for every fifty Acres of Land accounted Barren every patentee shall be obliged to put and keep on his Land within three years after the Date of his Grant three neat Cattle which number shall be obliged to con- tinue on his Land until three Acres for every fifty be fully cleared and Improved
That if any person shall take up a tract of Land wherein there shall be no part fit for present Cultivation without manuring and improving the same every such Grantee shall be obliged within three years from the Date of his Grant, to Erect on some part of his Land one Good Dwelling House to contain at least twenty feet in length and Sixteen Feet in Breadth and also to put on his Land the like Number of three neat Cattle for every fifty Acres —
That if any person who shall take up any Stony or Rocky Grounds not for planting or pasture shall, within three years after the passing of his Grant begin to Employ thereon, and so continue to work for three years then next ensuing in Digging any Stone Quarry or other Mine one good able Hand for every hundred Acres of such Tract, it shall be accounted a sufficient Cultivation and Improvement.
That every three Acres which shall be Cleared and Worked as afore- said, and every three Acres which shall be Cleared and Drained as aforesaid, shall be accounted a sufficient Seating, plantation. Cultivation and Improve- ment to save for ever from Forfeiture fifty Acres of Land in any part of the Tract contained within the same patent; and the patentee shall be at Liberty to withdraw his Stock, or to forbear working in any Quarry or mine, in proportion to such Cultivation and Improvement, as shall be made upon the Swamps, sunken Grounds and Marshes which shall be Included in the same patent —
That when any person who shall hereafter take up and patent any Lands, shall have seated planted and Cultivated, or Improved the said Land or any part of it according to the Directions and Conditions above mentioned such patentee may make proof of such Seating planting Culti- vation and Improvement in the General Court, or in the Court of the County, District or precinct where such Lands shall lie, and have such proof certified to the Registers Office and there entered with the Record of the said patent, a Copy of which shall be admitted on any Trial to prove the Seating and planting of such Land.
And Lastly to ascertain the true Quantity of Plantable and Barren Land contained in each Grant hereafter to be made within Our said province You are to take especial C^re that in all Surveys hereafter to be made
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every Surveyor be required and enjoyned to take particular Notice according to the best of his Judgment and understanding how much of the Land so Surveyed is plantable and how much of it is Barren and unfit for Culti- vation, and accordingly to Insert in the Survey and plot to him to be returned into the Registers Office the true Quantity of each kind of Land.
50. And Whereas it hath been represented to Us that the Governors of several of Our Colonies in America have Granted Lands away close to the Forts belonging to Us by which means the Garrisons of such Forts have been obliged to pay the proprietors of those Lands extravagant prices for Wood cut for a necessary supply of Fuel, and thereby a great and Unreasonable Expense has been brought upon the Military Contin- gencies It is Our Express Will and Pleasure that You do take Especial Care, that in all Warrants for Surveying of Lands adjacent or Contiguous to a Fort or Fortification, whether such Warrant be Granted upon an Original Petition to you in Council, or upon Our Order in Our privy Council there be an Express Direction to the Surveyor that he do reserve to Us Our Heirs and Successors for the Use of the Fort, near to which the Lands shall lye such a part of the Land petitioned for (being Woodland) and in such a situation as the Commander in Chief of the said Fort (with whom he is to be required to Consult and Advise in all such Cases) shall Judge Convenient and sufficient for a permanent and Certain Supply of Fuel for such a Garrison as the said Fort may be able to Contain. And it is Our further pleasure, that a regular plot of such reserved Land, describing the Bounds, expressing the Quantity of Acres, and properly signed and attested by such Surveyor, be delivered to the Commanding Officer of each Fort, to be there publickly hung up and a Duplicate thereof also Recorded in the Secretary's Office or other proper Office of Record in Our province under Your Government; and as we judge the due Execution of this Our Order to be essential to Our Service, You are hereby required to take Care, that the Regulations above prescribed be duly entered upon the Council Books of Our said Province, as a standing Order to all persons, who may be Intrusted with the powers to which they referr —
51. And it is Our further Will and Pleasure that in all Grants of Lands to be made by You as aforesaid, regard be had to the profitable and un- profitable Acres so that each Grantee may have a proportionable Number of One Sort and the other; as likewise that the Breadth of each Tract of
nd to be hereafter Granted be one third of the Length of such Tract, id that the Length of each Tract do not Extend along the Banks of any ver but into the- Main Land that thereby the said Grantees may have
each a Convenient Share of what accommodation the said River may Afford
for Navigation or otherwise —
52. And Whereas it hath been represented to Us, that many Parts of the Province under your Government are particularly adapted to the Growth and Culture of Hemp and Flax, It is therefore Our Will and pleasure that in all Surveys of Land for Settlement, the Surveyor be directed to
of
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Report whether there is any or what Quantity of Lands contained within such Survey, fit for the production of Hemp and Flax and you are to take particular Care to insert a Clause in every Grant of Land where any part thereof is fit for such production, obliging the Grantee annually to sow a proportionable part of his Grant with Hemp or Flax Seed —
53. And Whereas it hath been further represented to Us that a great part of the Country in the Neighbourhood of Lake Champlain, and between that Lake and the River S' Lawrence, abounds with Woods, producing Trees fit for masting for Our Royal Navy, and other Useful and necessary Timber for naval Construction; You are therefore expressly directed and required to cause such parts of the said Country or any other within Your Government, that shall appear upon a Survey to abound with such Trees and shall lye convenient for Water Carriage, to be reserved to Us, and to Use Your best Endeavour to prevent any Waste being Committed upon the said Tracts by punishing in due Course of Law any persons who shall Cut Down or Destroy any Trees growing thereon, and You are to Consider and advise with Our Council, whether some Regulation that shall prevent any Saw Mills whatever from being Erected within, your Government without a Licence from you or the Commander in Chief of Our said Province for the time being, may not be a means of preventing all Waste and Destruc- tion in such Tracts of Land as shall be reserved to Us for the purposes aforesaid —
54. And Whereas it appears from the Representations of Our late Governor of the District of Trois Rivieres that the Iron Works at S' Maurice in that District are of great Consequence to Our Service; It is therefore Our Will and Pleasure that no part of the Lands, upon which the said Iron Works were carried on, or from which the Ore Used in such Works was procured, which shall appear to be necessary and Convenient for that Establishment, either in respect to a free passage to the River S' Lawrence, or for producing a necessary Supply of Wood, Corn and Hay, or for pasture for Cattle, be Granted to any private person whatever, and also that as large a District of Land, as conveniently may be adjacent to and lying round the said Iron Works, over and above what may be necessary for the above purposes be reserved for Our Use to be disposed of in such manner as We shall hereafter direct and appoint —
55. And Whereas it is necessary that all Persons who may be desirous of Settling in Our said province, should be fully Informed of the Terms and Conditions upon which Lands will be granted in Our province, You are therefore as soon as possible to cause a publication to be made by proclama- tion or otherwise as you in Your Discretion shall think most adviseable of all and every the aforegoing Terms, Conditions and Regulations of every kind respecting the Grants of Lands, in which proclamation it may be Expedient to add some short Description of the natural Advantages of the Soil and Climate, and its peculiar Advantages for Trade and Navigation ;
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and you are to take such Steps as You shall think proper for the publishing such proclamation in all the Colonies in North America —
56. And it is Our further Will and Pleasure that all the foregoing Instructions to You as well as any which You may hereafter receive relative to the form and method of passing Grants of Lands, and the Terms and Conditions to be annexed to such Grants be entered upon Record with the Grants themselves for the Information and Satisfaction of all parties whatever that may be concerned therein.
57. And it is Our further Will and Pleasure that You do consider of a proper and Effectual Method of Collecting receiving and accounting for Our Quit Rents whereby all Frauds Concealment Irregularity or Neglect therein may be prevented and whereby the Receipt thereof may be Effect- ually chequed and Controlled, and if it shall appear necessary to pass An Act for the more effectually ascertaining and the more speedily and regularly collecting Our Quit Rents, You are to prepare the Heads of such a Bill, as you shall think may most Effectually conduce to the procuring the good Ends proposed, and to Transmit the same to Us by one of Our principal Secretaries of State, for Our further Directions therein, and You are also to Transmit a Duplicate thereof to Our Commissioners for Trade
, and plantations for their Information —
p 58. And it is Our further Will and Pleasure that the Surveyor General
or such other person or persons as you shall think proper to Appoint, do, once in every Year or oftener, as Occasion shall require, inspect the State of all Grants of Land made by you, and make Report thereof to You in Writing, Specifying whether the Conditions therein contained have or have not been complied with, or what Progress has been made towards fulhlling the same; and you are annually to transmit Copies of such Re- ports to Us by One of Our principal Secretaries of State, and Duplicates thereof to Our Commissioners for Trade and Plantations for their In- formation—
59. And Whereas Our Province of Quebec is in part Inhabited and Possessed by several Nations and Tribes of Indians, with whom it is both necessary and Expedient to cultivate and maintain a Strict Friendship and good Correspondence, so that they may be Induced by Degrees not only to be good Neighbours to Our Subjects, but likewise to be good Sub- jects to Us, You are therefore as soon as You conveniently can, to appoint a proper person or persons to Assemble and treat with the said Indians, ^—^promising and Assuring them of Protection and Friendship on our part ^Band delivering them such presents as shall be sent to You for that purpose — ^H 60. And You are to Inform yourself with the greatest Exactness of the ^■Number, Nature and Disposition of the several Bodies or Tribes of Indians, ^Pof the manner of their Lives, and the Rules and Constitutions by which they are governed and regulated, and You are upon no Account to molest or disturb them in the possession of the said province as they at present Occupy, or Possess, but to Use the best means You can for Conciliating
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their Affections and Uniting them to Our Government, reporting to Us, by One of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations whatever Information You can collect with re- spect to these people, and the whole of Your proceedings with them. —
61. Whereas We have by Our proclamation dated the T*"* Day of Octo- ber in the 3^ Year of Our Reign, strictly forbid, on pain of Displeasure, all our Subjects from making any purchases or Settlements whatever, or taking possession of any of the Lands reserved to the several Nations of Indians, with whom we are connected, and who live under our protection without our especial leave for that purpose first obtained It is Our Express Will and Pleasure that you take the most Effectual Care, that Our Royal Directions herein be punctually complied with, and that the Trade with such of the said Indians as depend upon Your Government be carried on in the manner and under the Regulations prescribed in Our said procla- mation—
62. You are to use Your best Endeavours in Improving the Trade of those parts by settling such Orders and Regulations therein, with the Advice of our said Council as may be most acceptable to the Generality of the Inhabitants. And it is Our Express Will and Pleasure, that You do not upon any pretence Whatever, upon pain of Our Highest Displeasure, give Your Assent to any Law or Laws for setting up any Manufactures and carrying on any Trades which are hurtful and prejudicial to this Kingdom, and that You do Use Your Utmost Endeavours to discourage, discountenance and restrain any Attempts which may be made to set up such Manufactures or establish any such Trades —
63. And it is Our Will and Pleasure, that You do not dispose of any Forfeitures or Escheats to any Person, until the Sheriff or other proper Officer have made Enquiry by a Jury upon their Oaths, into the true Value thereof, nor until You have transmitted to Our Commissioners of Our Treasury a particular Account of such Forfeitures and Escheats, and the Value thereof. And You are also to take Care that the produce of such Forfeitures and Escheats, in Case We think proper to give You Directions to dispose of the same, be duly paid to Our Treasurer or Receiver General of Our said province, and a full Account transmitted to Our Commissioners of Our Treasury, or Our High High Treasurer for the Time being with the Names of the persons to whom disposed.
64. And Whereas Commissions have been Granted unto several per- sons in Our Respective Plantations in America for the Trying of pirates in those parts pursuant to the Acts for the more Effectual Suppression of Piracy. And by a Commission already sent to Our province of New York Our Governor there is Impowered together with others therein mentioned to proceed accordingly in Referrence to Our said Province; Our Will and pleasure is that you do Use Your best Endeavours to appre- hend all persons whatever who may have been guilty of Piracy within Your Government or who having Committed such Crimes at other places
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may come within your Jurisdiction; and until we shall think proper to direct the like Commission to be Established for Our Government of Que- bec, You are to send such pirates with what proofs of their Guilt You can procure or Collect, to Our Governor of New York to be tryed and punished under the Authority of the Commission established for those parts —
65. And Whereas You will Receive from our Commissioners for Exe- cuting the Office of High Admiral of Great Britain, and of Our Plantations, a Commission constituting You Vice Admiral of Our said Province, You are hereby required and Directed Carefully to put in Execution the several powers thereby Granted you —
66. Whereas great Inconveniences have happened heretofore by Merchant Ships and other Vessels in the Plantations, wearing the Colours born by Our Ships of War under pretence of Commissions granted to them by the Governors of the said plantations, and by trading under those Colours not only amongst Our Own Subjects, but also those of other princes and States, and committing divers Irregularities, they may very much dishonor Our Service; For preventing thereof You are to oblige the Com- manders of all such Ships, to which You shall grant Commissions, to wear no other Colours than such as are described in an Order of Council of the T*"" of January 1730 in relation to Colours to be Worne by all Ships and Vessels, Except Our Ships of War.
67. And Whereas there have been some great Irregularities in the man- ner of Granting Commissions in the plantations to private Ships of War, You are to govern yourself, whenever there shall be Occasion according to the Commission and Instructions granted in this Kingdom but You are not to grant Commissions of Marque or Reprisal against any prince or State or their Subjects in Amity with Us to any person whatsoever without Our Esf)ecial Command.
68. Whereas We have been Informed that during the time of War Our Enemys have frequently got Intelligence of the State of our plantations by Letters from private persons to their Correspondence in Great Britain, taken on Board Ships coming from the plantations, which has been of Dangerous Consequence; Our Will and Pleasure therefore is, that You signify to all Merchants, Planters and others, that they be very Cautious in time of War whenever that shall happen in giving any account by the Letters of the publick State and Condition of Our province under your Government; And You are further to give directions to all masters of Ships or other persons to whom you may Entrust Your Letters, that they put such Letters into a Bag, with a Sufficient Weight to sink the same Imme- diately in case of Imminent Danger from the Enemy, and You are also to let the Merchants and Planters know, how greatly it is for their Interest that their Letters should not fall into the Hands of the Enemy ; and therefore that they should give like Orders to Masters of Ships in Relation to their Letters; and You are further to advise all Masters of Ships that they do sink all Letters in Case of Danger in the manner before mentioned —
I
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69. And Whereas the Merchants and Planters in Our plantations in America have, in time of War, Corresponded and traded with our Enemies, and carried Intelligence to them, to the great Prejudice and Hazard of Our said plantations; You are therefore by all possible Methods, to endeavour to hinder such Trade and Correspondence in time of War —
70. And You are to Report to Us, by one of Our principal Secretaries of State; What is the Nature of the Soil and Climate of the province under your Government, if it differs in those Circumstances from Our other North- ern Colonies, in what that Difference consists, and what beneficial Articles of Commerce the different parts of it are capable of producing ? —
What Rivers there are, and of what extent and convenience to the planters ?
What are the principal Harbours, how situated, of what extent, and what is the Depth of Water and Nature of the Anchorage in each of them ?
What Quantity of Land is now under actual Improvement and Settle- ment ? what are the chief Articles of produce and Culture, the annual amount of the Quantity of each, and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation Rent, or personal Service ? —
What is the Quantity, Nature and property of the Land uncultivated, how much of it is capable of Culture, and what part thereof is private property ? —
What is the number of Inhabitants, Whites and Blacks distinguishing each; what number of the former is capable of bearing Arms, and what number of the latter is annually necessary to be supplied in proportion to the Land Cultivated.
What was the nature, form and Constitution of the Civil Government; what Judicatures were there Established, and under the Regulations did the f rench Inhabitants carry on their Commerce ; and You are to transmit a Duplicate of such Account to Our Commissioners for Trade and planta- tions for their Information.
7L You are from time to time to send unto Us by One of Our principal Secretaries of State as aforesaid ; An account of the Increase and Decrease of the Inhabitants, Whites and Blacks; And also an Account of all persons. Born, Christened and Buried and You are to Transmit duplicates of such Accounts to Our Commissioners for Trade and plantations for their In- formation.
72. Whereas it is absolutely necessary that We be exactly Informed of the State of Defence of all our plantations in America, as well in Relation to the Stores of War that are in each plantation, as to the Forts and Fortifi- cations there, and what more may be necessary to be built for the Defence and Security of the same. You are as soon as possible to prepare an Account thereof with Relation to Our said province in the most particular manner, and You are therein to Express the present State of the Arms, Ammunition, and other Stores of War, belonging to the said Province, either in publick
CONSTITUTIONAL DOCUMENTS 323
SESSIONAL PAPER No. 18
Magazines, or in the Hands of private persons; together with the State of all places, either already forfeited or that you Judge Necessary to be for- feited for the Security of Our said province; and You are to transmit the said Accounts to Us by One of Our Principal Secretaries of State, and also Duplicates thereof to Our Commissioners for Trade and Plantations, for their Information, and also a Duplicate thereof to Our Master General or Principal Officers of Our Ordnance; which Accounts are to Express, the particulars of Ordnance, Carriages, Balls, Powder, and other Sorts of Arms, and Ammunition in Our publick Stores, and so from time to time of what shall be sent to you, or bought with the publick Money, and to Specify the time of the disposal and the Occasion thereof; and You are half yearly to transmit a General Account of the State of the Fortifications and Warlike Stores, specified in the manner above mentioned —
73. You are from time to time to give an Account what Strength your Neighbours have by Sea and Land, and of the Condition of their plantations, and what Correspondence You keep with them —
74. And in case of any Distress of any other of Our plantations, You shall, upon application of the respective Governors thereof unto you, assist them with what aid the Condition and Safety of Our province under Your Government can spare.
75. If any thing shall happen which may be of advantage or Security to Our province under Your Government, which is not herein, or by Your Commission provided for. We do hereby allow unto You with the Advice and Consent of Our Council, to take Order for the present therein, giving unto Us by One of Our principal Secretaries of State Speedy Notice thereof, that You may receive Our Ratification, if We shall approve the same; Provided always that You do not, by Colour of any power or Authority hereby given You, Commence or Declare War without Our Knowledge and particular Commands therein ; and you are also to Transmit duplicate of such Notice, as aforesaid, to Our Commissioners for Trade and plantations for their Information —
76. And Whereas We have by the first Article of these Our Instructions to You directed and Appointed, that Your Chief Residence shall be at Quebec, You are nevertheless frequently to Visit the other parts of Your Government, in Order to Inspect the Management of all publick Affairs and thereby the better to take care, that the Government be so administered,
at no disorderly practice may grow up contrary to Our Service and the elfare of Our Subjects —
77. And Whereas great Prejudice may happen to Our service, and the security of the Province by Your absence from those parts, You are not upon any pretence whatsoever to come into Europe, without having first obtained leave for so doing from Us under Our Sign Manual and Signet
r by Our Order in Our privy Council ; Yet nevertheless in Case of Sickness, bu may go to South Carolina, or any other of Our Southern plantations,
an
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and there Stay for such Space as the Recovery of Your Health may abso- lutely require —
78. And Whereas We have thought fit by Our Commission to direct, that in Case of Your Death or absence from Our said province, and in Case there be at that time no person within Our said province Commissionated or Appointed by Us to be Our Lieutenant Governor or Comander in Chief that the Eldest Councillor, who shall be at the time of Your Death or ab- sence residing within Our said Province under Your Government, shall take upon him the Administration of Government, and execute our said Commission and Instructions, and the several powers and Authorities therein directed — It is nevertheless Our Will and Pleasure that in such Case the said President shall forbear to pass any Act or Acts but what are immediately necessary for the peace and Welfare of the said Province, without our particular Orders for that purpose, and that he shall not re- move or Suspend any of the Members of Our Council, nor any Judges, Justices of the peace, or other Officers Civil or Military, without the advice and consent of at least Seven of the Members of Our said Council, nor even then without good and sufficient Reasons for the same which the said President is by the first Opportunity to transmit Signed by himself and the rest of Our said Council, to Us by One of Our principal Secretaries of State, and he is also to transmit a Duplicate of such Reasons to Our Commis- sioners for Trade and plantations for their Information —
79. And Whereas We are willing in the best manner to provide for the Support of the Government of Our Province aforesaid, of which You are Governor, by setting apart sufficient allowances to such as shall be Our Governor or Commander in Chief residing for the time being within the same, Our Will and Pleasure is, that when it shall happen, that You shall be Absent from Our said Province, One full Moiety of the Salary and all perquisites and Emoluments whatsoever, which would otherwise become due unto you, shall during the time of Your absence, be paid and satisfied unto Our Commander in Chief, who shall be resident within our said province for the time being, which we do hereby Order and allot to him for his Maintenance and for the better Support of the Dignity of that Our Government.
80. And You are upon all Occasions to send unto Us by One of Our principal Secretaries of State a particular Account of all Your proceedings, and of the Condition of Affairs within Your Government, and also a Duplicate thereof to Our Comissioners for Trade and plantations, for their Information, except in cases of a Secret Nature —
Memorandum — The Instructions relative to the Acts of Trade and Navigation for Gov' Carleton are the same with those given to Gov' Shirley for the Bahama Islands —
Plantation Book, 1767-1771 Privy C. O.
Quebec. General Instructions, Gov. Carleton, approved by His Ma- jesty in Council the day of 1768.
CONSTITUTIONAL DOCUMENTS 325
SESSIONAL PAPER No. 18
HILLSBOROUGH TO CARLETON.^
Whitehall, U"- Oct' 1768. Gov Carleton.
Sir,
♦ *♦***
The proper support and encouragement to be given to the Church of England as well as the necessary toleration to be allowed to His Majesty's new subjects in the exercise of the Roman Catholic Religion, will be matters of serious attention in the consideration of the general regulations for the Colony of Quebec, which important business is, I trust, now drawing near to some conclusion.
In the mean time His Majesty does not doubt that you will give all necessary protection to the new subjects in the exercise of their religion; and is pleased to recommend it to you particularly to countenance the established Church, and to take care that the Offices of it are administered
with a decency corresponding to the purity of its principles.
♦ * • * * *
I am &c.
HILLSBOROUGH.
CARLETON TO HILLSBOROUGH'
Secret Correspondence Quebec Nov' 20*'' 1768.
My Lord Since my arrival in this province, I have not been able to make any discovery, that induces me to give credit to the paper of intelli- gence inclosed in your Lordships letter of the M*"" of May last'; nor do I think it probable the Chiefs of their own free motion in time of peace, dare assemble in numbers, consult, and resolve on a revolt; or that an cissembly of military men should be so ignorant, as to fancy they could defend themselves by a few fireships only, against any future attack from Great-Britain, after their experience in fifty nine. Notwithstanding this, and their decent and respectful obedience to the Kings government hitherto, I have not the least doubt of their secret attachments to france, and think this will continue as long as they are excluded from all employments under the Brittish Government, and are certain of being reinstated, at least in their former Commissions under that of france, by which chiefly they supported themselves, and families.
When I reflect that france naturally, has the affections of all the people; that, to make no mention of fees of Office & the vexations of the Law,
' Canadian Archives, Q 5-2, p. 756. The portions omitted refer to the appointment of two ministers of the Church of England to the parishes of Quebec and Three Rivers, and the objections of Carleton to one of them, formerly a French Jesuit.
' Canadian Archives, Q 5-2, p. 890.
' This letter does not appear among the State Papers in the Canadian Archives.
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we have done nothing to Gain one man in the province, by making it his private interest to remain the King's Subject; and that the interests of many would be greatly promoted by a revolution; I own, my not having discovered a treasonable correspondence, never was proof sufficient to convince me, it did not exist in some degree, but I am inclined to think, if such a message has been sent, very few were entrusted with the secret, perhaps the Court of france, informed a year past by Mons' de Chatelet, that the King purposed raising a Regiment of His new subjects, caused this piece of intelligence to be communicated, to create a jealousy of the Canadians, and prevent a measure that might fix their attachments to the Brittish government, and probably, of those Savages who have always acted with them: however that be, on receiving this news from france last Spring, most of the Gentlemen in the province applied to me, and begged to be admitted into the King's Service, assuring me they would take every opportunity to testify their zeal, and gratitude for so great a mark of favour & tenderness, extended, not only to them, but to their posterity.
When I consider further; that the Kings dominion here is maintained here but by a few troops, necessarily dispersed, without a place of security for their magazines, for their Arms, or for themselves; amidst a numerous military people, the Gentlemen all Officers of experience, poor, without hopes that they or their descendants will be admitted into the service of their present Sovereign, I can have no doubt that france, as soon as deter- mined to begin a war will attempt to regain Canada, should it be intended only to make a diversion, while it may reasonably be undertaken with little hazard, should it fail, and where so much may be gained, should it succeed. But should france begin a War in hopes the Brittish-colonies will push matters to extremities, and she adopts the project of supporting them in their independent notions, Canada, probably, will then become the Princi- pal scene, where the fate of America may be determined. Affairs in this situation, Canada in the hands of france would no longer present itself as an enemy to the Brittish colonies, but as an ally, a friend, and a protector of their Independency. Your Lordship must immediately perceive the many disadvantages Great Britain would labour under in a war of this nature; and on the other hand, how greatly Canada might for ever Support the Brittish interests on this Continent, for it is not united in any common principle, interest, or wish with the other Provinces, in opposition to the Supreme-seat of Government, was the King's dominion over it only strength- ened by a Cittadel, which a few national troops might secure, and the natives attached, by making it their interest to remain His Subjects.
My letters to the Earl of Shelburne No — 20, 23, 24, ^5, & 26,' contain more fully my humble opinion of the measures necessary to obtain this de-
' For Nos. 20, 23 & 26, see pp. 281, 288, 294. No. 24 is 'Carleton to Shelburne' Jan. 18th, 1768, enclosing Minutes of Council from Oct. 1st to Dec. 31st. 1767. See Q S-1, p. 351. No. 25 is 'Carleton to Shelburne,' Jan. 19th, 1768, enclosing petition of merchants with reference to bankruptcy law. See Q 5-1, p. 365.
1
t
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SESSIONAL PAPER No. 18
sirable End, convinced, that the affections of the Canadians, or a great force, is necessary to secure this province in time of War, or, at least, till the marine of france is thoroughly subdued: to those letters I refer your Lordship for further particulars, and am, with great regard, and esteem, Your Lordships most Obedient & most humble Serv'
GUY CARLETON
To the Earl of Hillsborough
A DRAUGHT of An Intended Report of the Honourable the Governor in Chief and the Council of the Province of Quebec to the King's most Excellent Majesty in his Privy Council ; concerning The State of the Laws and the Admin- istration of Justice in that Province.*
May it please your Majesty,
In humble obedience to your Majesty's order in council, of the 28th day of August 1767,'' wherein your Majesty is pleased to order that we should report to your Majesty,
First. Whether any, and what, defects are now subsisting in the present state of Judicature in this your Majesty's province of Quebec:
And Secondly. Whether the Canadians are, or think them- selves, aggrieved according to the present administration of justice: wherein, and in what respects; together with our opinions of any alterations or amendments that we can propose for the general benefit of the said province; and that such alter- ations and amendments, for the clearer apprehension thereof, be transmitted to your Majesty in the form of ordinances, but not passed as such; and that such report be returned, signed by your Majesty's governor, or his locum tenens, the chief justice, and attorney general of the said province; but that, if they should not concur, the person or persons differing in opinion should be required to report the difference of his opinions, together with his reasons for such difference of opinion, fully and at large:
We lay before your Majesty the following view of the laws and customs which at present prevail in this province, and of the rules of decision observed by your Majesty's courts of judicature in the administration of justice, together with such observations on these heads as the experience we have had in our respective offices since we have had the honour to serve your Majesty in this province has enabled us to make.
• _ •' From A Collection of Several Commissions, and other Public Instruments, Proceeding from his Majesty's Royal Authority, Relating to the Province of Quebec. Collected by Francis Maserea, Attorney General of the Province. London: 1772, p. 1. Given also in Canadian Archives, QS6-2.
» See p. 285.
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EnglanT^e ^" *^^ ^"^^^ P'^*^^' ^^ ^^S leave to observe to your Majesty,
generally that the laws of England are generally supposed to be in force
in force in in this province. All criminal proceedings have been carried
^cef^"" °" according to these laws : and in civil matters no other laws are
cited, or appealed to, or allowed to be of any weight in the courts
of justice; though in one or two causes certain customs that
prevailed here in the time of the French government have been
admitted as the grounds of the decisions, because the causes of
action in those litigations had arisen either in the time of the French
government, or during your Majesty's government of this province
by your military commanders, during which period the ancient
laws and usages of the country were supposed to be in force.
Bi'n "^f^"'^ But since the establishment of civil government your Majesty's
chief justice chief justice of the province has acted by virtue of a commission*
them. that commands him to decide all matters that come before him
according to the laws and customs of that part of your Majesty's
kingdom of Great Britain called England, and the laws, ordinances,
rules, and regulations of your Majesty's province of Quebec hereafter
in that behalf to be ordained and made: so that he is not at liberty
to allow of any other laws or customs but those of England,
unless they are expressly introduced or revived by some of the
ordinances of the province made since the establishment of the
civil government. And further, besides this commission,
OTdinarice'of ^^^'^^ '^^ ^^ cxpress Ordinance of the province which obliges both
the 17th of your Majesty's chief justice and the other judges of the province
1764. to follow the same rule of judgment. This is the ordinance of the
17th of September 1764,'' passed by the governor and council of
the province upon the introduction of the civil government, to
erect and constitute the courts of justice by which the said civil
Purport of government was to be carried on. This ordinance erects, in the
ance. first place, one superior court of judicature, called the King's
Bench, in which it directs that your Majesty's chief justice of
the province shall preside, with power and authority to hear and
determine all criminal and civil causes, agreeable to the laws of
England and to the ordinances of this province: and, in the second
place, an inferior court of judicature, called the Court of Common
Pleas, with power and authority to determine all property above
the value of ten pounds, with a liberty to either party to appeal
to the superior court, or court of King's Bench, where the matter
in contest is of the value of twenty pounds, or upwards; and
directs that the judges in this court shall determine the matters
before them agreeable to equity, having regard nevertheless to
the laws of England as far as the circumstances and situation of
' See Commission of Chief Justice Hey; p. 273. •Seep. 205.
CONSTITUTIONAL DOCUMENTS 329
SESSIONAL PAPER No. 18
things will permit, until such time as proper ordinances for the in- formation of the people can be established by the governour and council, agreeable to the laws of England: and it farther directs, that the French laws and customs shall be allowed and admitted in all causes in this court between the natives of this province, where the cause of action arose before the 1st day of October 1764. It then, in the third place, gives powers to justices of the peace to determine matters of property of small value in a summary way, either singly, if the matter in dispute does not exceed the value of five pounds, or in conjunction with each other in weekly and quarterly sessions, where the matter in contest is of a greater value. The words of this ordinance, by which these things are ordained, are of the tenor following : nie*OTdin-^°^ "Whereas it is highly expedient and necessary for the well ance. "governing of his Majesty's good subjects of the province of
"Quebec, and for the speedy and impartial distribution of justice "among the same, that proper courts of judicature, with proper "powers and authorities, and under proper regulations, should "be established and appointed ; his excellency the governor, by "and with the advice, consent, and assistance of his Majesty's "council, and by virtue of the power and authority to him given "by his Majesty's letters patent under the great seal of Great "Britain, hath thought fit to ordain and declare, and his said "excellency, by and with the advice, consent, and assistance "aforesaid, doth thereby ordain and declare;
"That a superior court of judicature, or court of King's "Bench, be established in this province to sit and hold terms in "the town of Quebec twice in every year, viz. one to begin on "the 21st day of January, called Hilary term, the other on the "21st day of June, called Trinity term.
"In this court his Majesty's chief justice presides, with power "and authority to hear and determine all criminal and civil "causes, agreeable to the laws of England and to the ordinances "of this province ; and from this court an appeal lies to the "governor and council, where the matter in contest is above the "value of three hundred pounds Sterling; and from the governor "and council an appeal lies to the King and council, where the "matter in contest is of the value of five hundred pounds Sterling, "or upwards.
"In all trials in this court all his Majesty's subjects in this "colony are to be admitted on juries without distinction.
"And his Majesty's chief justice once in every year to hold "a court of assize and general gaol delivery, soon after Hilary "term, at the towns of Montreal and Trois-Rivieres, for the more
¥
330
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
easy and convenient distribution of justice to his Majesty's subjects in those distant parts of the province.
"And whereas an inferior court of judicature, or court of Common Pleas, is also thought necessary and convenient, it is further ordained and declared, by the authority aforesaid, that an inferior court of judicature, or court of Common Pleas, is hereby established, with power and authority to determine all property above the value of ten pounds, with a liberty of appeal to either party to the superior court, or court of King's Bench, where the matter in contest is of the value of twenty pounds, and upwards.
"All trials in this court to be by juries, if demanded by either party ; and this court to sit and hold two terms in every year at the town of Quebec, at the same time with the superior court, or court of King's Bench. Where the matter in contest in this court is above the value of three hundred pounds Sterling, either party may (if they shall think proper) appeal to the governor and council immediately, and from the governor and council an appeal lies to the King and council, where the matter in contest is above the value of five hundred pounds Sterling, or upwards.
"The judges in this court are to determine agreeable to equity, having regard nevertheless to the laws of England as far as the circumstances and present situation of things will admit, until such time as proper ordinances for the information of the people can be established by the governor and council, agreeable to the laws of England.
"The French laws and customs to be allowed and admitted in all causes in this court between the natives of the province, where the cause of action arose before the first day of October one thousand seven hundred and sixty-four.
"The first process in this court to be an attachment against the body.
"An execution to go against the body, lands, or goods of the defendant.
"Canadian advocates, proctors, &c. may practice in this court.
"And whereas it is thought highly necessary for the ease, convenience, and happiness of all his Majesty's loving subjects, that justices of the peace should be appointed for the respective districts of this province, with power of determining property of small value in a summary way, it is therefore further ordained and declared, by the authority aforesaid, and full power is hereby given and granted to any one of his Majesty's justices of the peace, within their respective districts, to hear and finally
I
CONSTITUTIONAL DOCUMENTS 331
SESSIONAL PAPER No. 18
"determine in all causes or matters of property not exceeding the "sum of five pounds current money of Quebec ; and to any two "justices of the peace, within their respective districts, to hear "and finally determine in all causes or matters of property not "exceeding the sum of ten pounds said currency ; which decisions "being within, and not exceeding the aforesaid limitation, shall "not be liable to an appeal ; and also full power is, by the author- "ity aforesaid, given and granted to any three of said justices of "the peace to be a quorum, with power of holding quarter sessions "in their respective districts every three months, and also to "hear and determine all causes and matters of property which "shall be above the sum of ten pounds, and not exceeding thirty "pounds current money of Quebec, with liberty of appeal to "either party to the superior court, or court of King's Bench. "And it is hereby ordered, that the aforesaid justices of the peace "do issue their warrants directed to the captains and .other "officers of the militia in this province, to be by them executed, "until the provost-marshal, legally authorized by his Majesty, "shall arive, and other inferior officers be appointed for that "purpose ; all officers, civil and military, or other his Majesty's "loving subjects, are hereby commanded and required to be "aiding and assisting to the said justices and officers of militia "in the due execution of their duty. And it is further ordered "and directed, by the authority aforesaid, that two of the said "justices of the peace do sit weekly in rotation, for the better "regulation of the police and other matters and things in the "towns of Quebec and Montreal, and that the names of the "justices who are to sit in each week be posted up on the door of "the Session-house by the clerk of the peace, two days before "their respective days of sitting, that all persons may know to "whom to apply for redress." anceof^tiie Further, by another ordinance of your Majesty's governour
6th of Nov- and council, dated the 6th day of November 1764,* it is ordained,
ember 1764.
that until the 10th day of August next, that is, of August 1765, the tenures of lands, with respect to such grants as are prior to the cession of Canada to the Crown of Great Britain by the definitive treaty of peace of February 1763, and the rights of inheritance, as practised before that period, in such lands, shall remain to all intents and purposes the same, unless they shall be altered by some declared and positive law. The words of this ordinance relating to this subject are of the tenor following : The words of "Whereas it appears right and necessary to quiet the minds ance ' "of the people in regard to their possessions, and to remove every
> See p. 229.
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6-7 EDWARD VII., A.I 907
"doubt respecting the same, which may any ways tend to excite "and encourage vexations lawsuits ; and until a matter of so "serious and complicated a nature, fraught with many and great "difficulties, can be seriously considered, and such measures "therein taken as may appear the most likely to promote the well- "fare and prosperity of the province in general, his excellency, "by and with the advice and consent of his Majesty's council, "doth hereby ordain and declare that, until the 10th day of "August next, the tenures of lands, in respect to such grants as "are prior to the cession thereof by the definitive treaty of peace "signed at Paris the 10th day of February one thousand seven "hundred and sixty-three, and the rights of inheritance, as "practised before that period, in such lands or effects, of any "nature whatsoever, according to the custom of this country, "shall remain to all intents and purposes the same, unless they "shall be altered by some declared and positive law; for which "purpose the present ordinance shall serve as a guide and direction "in all such matters to every court of record in this province. "Provided that nothing in this ordinance contained shall extend, "or be construed to extend, to the prejudice of the rights of the "Crown, or to debar his Majesty, his heirs or successors, from "obtaining by due course of law in any of his courts of record "in this province, according to the laws of Great Britain, any "lands or tenements, which at any time hereafter may be found "to be vested in his Majesty, his heirs or successors, and in the "possession of any grantee or grantees, his, her, or their assigns, "or such as claim under them by virtue of any such grants as "aforesaid, or under pretence thereof, or which hereafter may be "found to have become forfeited to his Majesty by breach of "of all or any of the conditions in such grtrnts respectively "mentioned and contained."
n°^S5jy ^y t^^^ latter ordinance we conceive that all the lands in
foUowing this province, whose owners have died since the 10th day of
ordinance in August 1765, are meant to be subjected to the English law of
int^Jduction^ inheritance, and to the English custom of dower, and to the
of the laws.of English rules of forfeiture to your Majesty for high treason,
or escheat to your Majesty, or to such other lord of whom they
are holden, for felony or defect of heirs, and to all the other rules
of the English law relating to land-property, even though the
said lands had been originally granted before the signing of the
definitive treaty of peace; and that all lands granted since the
said peace were already, at the time of making the said ordinance,
subject to the said English rules and customs, and were so to
continue.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
333
Other public instruments which have tended to produce the same eflect.
Acts of Parliament.
I
Gap. I.
By these two ordinances, which have been transmitted to your Majesty and never disallowed, and are therefore supposed to have received the sanction of your Majesty's royal approbation, the Canadian laws and customs have been generally supposed to be abolished, and the English laws and customs to have been introduced in their stead, and the judges of your Majesty's courts of judicature in this province have conceived themselves to be in conscience bound to administer justice according to the laws of England.
Besides these two ordinances there are several other public instruments and acts of government by which the laws of Eng- land are supposed to have been introduced into this province. Some of these instruments are acts of parliament, which introduce those particular parts of the laws of England, to which they relate, into this province ; and others of them are instruments of a high and important nature, that bear the sanction of your Majesty's royal authority, by which it is generally understood to have been your royal pleasure to abolish the former laws and customs of this province, and for the sake of governing your new Canadian subjects in a milder and more indulgent manner than they had heretofore been used to, and associating and connecting them with the greater part of your ancient and natural-born subjects of Great Britain by the strong tie of an union and com- munion of laws, to introduce the laws of England in their stead. These acts of parliament and other instruments of government are as follows ;
The acts of parliament that relate to this province are of two kinds ; some of them are prior to the conquest of this province by your Majesty's arms in the year 1760, but extend to your Majesty's future American dominions, as well as those which belonged to the Crown of Great-Britain at the times of passing them, either by express words for that purpose, or by some general words that have been deemed by your Majesty's ministers and law-officers, by just construction in law, to comprehend them ; and others of the said acts have been passed by your Majesty's self, by the advice and with the consent of your parliament, since the conquest and cession of this province by the last definitive treaty of peace.
The most ancient act of parliament of the first kind that we have met with is that of the 1st of Queen Elizabeth, chap. I, by which the pretended authority of the bishop of Rome was abolished throughout all the dominions of the crown of England. The 16th section of this statute is of the following tenor : "And "to the intent that all usurped and foreign power and authority, "spiritual and temporal, may forever be clearly extinguished.
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6-7 EDWARD VII., A. 1907
"and never to be used or obeyed within this realm, or any other "your Majesty's dominions or countries, may it please your "Highness that it may be further enacted, by the auth, rity "aforesaid, that no foreign prince, person, prelate, state, or "potentate, spiritual or temporal, shall, at any time after the "last day of this session of parliament, use, enjoy, or exercise "any manner of power, jurisdiction, superiority, authority, "pre-heminence, or privilege, spiritual or ecclesiastical, within "this realm, or within any other your Majesty's dominions and "countries that now be, or hereafter shall be; but from thenceforth "the same shall be clearly abolished out of this realm and all other "your Majesty's dominions for ever; any statute, ordinance, "custom, constitutions, or any other matter or cause whatsoever "to the contrary in any wise notwithstanding."
By this section of that statute, and the express words, any other your Majesty's dominions and countries that now be, or hereafter shall be, we humbly apprehend that all exercise of the pope's authority, or of any ecclesiastical authority derived from him, is prohibited in this province as much as it is in England itself.
The next section of this act of parliament annexes all eccle- siastical jurisdiction to the crown of England.
The 19th section requires all bishops and other ecclesiastical persons, and all ecclesiastical officers and ministers, and all temporal judges, justices, mayors, and other lay or temporal officers and ministers, and every other person having the Queen's fee or wages, within the realm of England, or any other her Highness' s dominions, to take the oath of supremacy.
The 24th section enacts, that every temporal person doing homage for his lands to the Queen, her heirs or successors, or that shall be received into the service of the Queen, her heirs or successors, shall take the same oath.
And the 27th section enacts, that if any person of any degree whatsoever, dwelling within the realm of England, or in any other the Queen's realms or dominions, shall by writing, teaching, or preaching, maintain or defend the authority, spiritual or eccle- siastical, of any foreign prince, prelate, person, state, or potentate whatsoever, heretofore claimed, used, or usurped within the realm of England, or any dominion or country being within or under the power, dominion, or obeysance of the Queen's highness, he shall forfeit all his goods and chattels for the first offence.
We submit it to your Majesty that this statute seems, from the whole complexion of it, as well as from the positive words, your Majesty's dominions that hereafter shall be, to have been considered by the legislature that passed it as an indispensable
CONSTITUTIONAL DOCUMENTS 335
SESSIONAL PAPER No. 18
part of the general policy of the English government, and to have been intended to take place in every country that either then made or should thereafter make a part of the dominions of the crown of England.
The next statute that we have met with of this comprehensive cS-' II cap "^ture is the statute of the 15th of Charles the Second, chap. 7, 7- intitled, "An Act for the Encouragement of Trade." In the 7th
section of this statute it is enacted, that after the 25th day of March 1664, no commodity of the growth or manufacture of Europe shall be imported into any land, island, plantation, colony, territory, or place to his Majesty belonging, or which shall hereafter belong unto, or be in the possession of, his Majesty, his heirs and successors, in Asia, Africa, or America (Tangier only excepted) but what shall be laden and shipped in England, Wales, or the town of Berwick upon Tweed, and in English-built ship- ping.
rfwJi.Tn.* Another statute of the same kind is the stat. 7 and 8 Will.
cap. 22. in. chap. 22, intitled, "An Act for preventing Frauds, and regulating Abuses, in the Plantation Trade;" by which it is enacted and ordained, that after the 25th day of March, in the year 1698, no goods or merchandizes whatsoever shall be imported into, or exported out of, any colony or plantation to his Majesty in Asia, Africa, or America belonging, or in his possession, or which may hereafter belong unto, or be in the possession of, his Majesty, his heirs or successors, in any ship or bottom but what is or shall be of the built of England, or of the built of Ireland, or of the built of the said colonies or plantations.
And the other acts of parliament relating to the trade of your Majesty's American colonies, though they have not such strong positive words in them as the three statutes above-men- tioned, yet are generally understood to extend to this province as well as to your Majesty's more ancient American dominions ; and, agreeably to this opinion, your Majesty has caused a clause to be inserted in your commission to your governour of this province,* directing him to take the oath required to be taken by govemours of the plantations to do their utmost that the several laws relating to trade and plantations be duly observed ; and this, oath he hath accordingly taken. And your Majesty's commissioners of the customs have appointed a collector and comptroller of the customs, and other officers necessary for the collection of them, for this part of Quebec, in order to carry all these acts of parliament into execution.
' See Instructions to Governor Murray, latter part of sec. 3, p. 183.
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6-7 EDWARD VII., A. 1907
f2^Ann. Another statute that we understand to be in force in this
cap. 18. province, though made before the conquest of it, and not extended by express words to the future dominions of the crown of Great Britain, is stat. 2, 12th Ann. chap. 18, intitled, "An Act for "preserving all such Ships and Goods thereof which shall happen "to be forced on Shore, or stranded, upon the coasts of this "kingdom, or any other of her Majesty's dominions." This statute, and another of the 4th of Geo. I. chap. 12, for enforcing and making the former perpetual, have been declared by your Majesty's attorney and sollicitor general, in the month of June 1767, in an opinion given by them to your Majesty's lords commissioners of trade and plantations, upon a case stated to • them by those lords, to extend to your Majesty's plantations in America : and no exception is made in their opinion of those of your Majesty's dominions in America which have been acquired since the passing of those statutes. And your Majesty's ministers have transmitted the said case and opinion to your Majesty's governour of this province, upon a supposition, as we apprehend, that it extends to this province as well as to all the others.
These are the acts of parliament passed before the conquest and cession of Canada that we conceive to be in force in this province by their own import and operation, and without needing any further act of government to introduce them.
Some of the acts of parliament passed by your Majesty's self since the conquest and cession of Canada relating to this province are these that follow :
^) ni ^^^ ^^^^ °^ these statutes is that of the 4th year of your
cap. 11. Majesty's reign, chap. II, which, amongst other things, enacts, that so much of an act made in the 8th year of King George the First, intitled, "An Act for giving further Encouragement to the "Importation of Naval Stores, and for other purposes therein "mentioned," as relates to the importation of wood and timber, and of the goods commonly called Lumber, therein particularly enumerated, from any of your Majesty's British plantations or colonies in America, free from all customs and impositions what- soever, shall be continued, beyond the times appointed in former acts, to the 29th of September in the year 1771.
In this statute the words British plantations are generally understood to relate to this province as well as to your Majesty's other colonies in America; and a copy of this statute has accord- ingly been transmitted by the commissioners of your Majesty's customs in London to your Majesty's collector of the customs in this port.
CONSTITUTIONAL DOCUMENTS 337
SESSIONAL PAPER No. 18
gSd ?ii "^^^ '^^''^ ^*-* °^ parliament of this kind is of the same 4th
cap. 19. year of your Majesty's reign, chap. 19. This statute expressly relates to this province by name, being intitled, "An Act for im- "porting Salt from Europe into the Province of Quebec in Amer- "ica for a limited Time." It enacts, "that it shall be lawful for "any of his Majesty's subjects to carry and import salt from any "part of Europe into the said province of Quebec in America in "British ships and vessels manned and navigated according to "the act of navigation; any law, statute, usage, or custom to the "contrary in any wise notwithstanding."
By these last words it seems to be supposed that all the former laws and statutes of Great Britain relating to this subject of the importation and exportation of goods and merchandize, made before the conquest of this province, are of force in this province as well cis in the other British provinces in America. Q^'*jj Another act of parliament passed by your Majesty, and
cap. IS. expressly relating to this province, is the statute of the same 4th year of your Majesty's reign, chap. 15, intitled, "An Act for "granting certain duties in the British colonies and plantations in "America, and for other purposes." By this statute it is enacted, that certain rates and duties therein mentioned shall be paid upon several species of foreign goods therein enumerated that shall, after the 29th day of September 1764, be imported or brought into any colony or plantation in America, which now is, or here- after may be, under the dominion of your Majesty, your heirs and successors; and these duties are accordingly levied and paid in this province.
These are the acts of parliament, or at least some of them (for possibly there may be others which have escaped our notice) which by their own import and operation extend, as we conceive, to this province, without the help of any other instrument or act of government to introduce them; and therefore such parts of the laws of England as are contained in these statutes are cer- tainly in force in this province, being introduced into it by the highest authority, that of your Majesty, or your royal predeces- sors, in conjunction with both houses of parliament. The remaining parts of the laws of England have been introduced, or are generally understood to have been introduced, by a series of public instruments, or acts of government, founded on your Majesty's royal authority alone, without the concurrence of your parliament. These public instruments and acts of government are as follows: oTitiSuon ^^^ ^^^^ °^ these public instruments is the capitulation
granted to granted by your Majesty's general. Sir Jeffrey Amherst, to the adians by inhabitants of Canada at the general surrender of the whole
338 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
&rst^"' country to your Majesty's arms in the year 1760.' In the 42d
1760. article of this capitulation it is desired by the French commander,
Article 42d. ...
on the behalf of the French and Canadian inhabitants of this
province, that they shall continue to be governed according to the custom of Paris and the laws and usages established in this country; to which it is answered by your Majesty's general, that they become subjects to the King: by which it should seem, that these your Majesty's new subjects in this province were put upon the same footing as your Majesty's other subjects in other parts of your Majesty's British dominions with respect to the laws by which they were to be governed, and the power of legis- lation that was to be exercised over them for the time to come; and that the continuance or abolition of their former laws and customs was to depend entirely upon the future counsels which your Majesty, in your royal wisdom, should find it expedient to pursue. Article 27th -phg 27th article of this capitulation demands, that the free
exercise of the Roman Catholic religion shall subsist intire, in such manner that all the people shall continue to assemble in the churches and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly; and then it goes on and demands, in the second place, that the people shall be obliged by the English government to pay the priests the tithes and all the taxes they were used to pay under the govern- ment of the French king. The general's answer to this article is as follows: "Granted, as to the free exercise of their religion. The "obligation of paying tithes to the priests will depend on the King's "pleasure." By this answer it is evident that a bare toleration, or permission to exercise freely the Roman Catholic religion, without being molested for so doing by the execution of the penal laws of England upon that subject, is granted to the Canadians, together with a reasonable use of their churches for that purpose, though not, as we conceive, to the intire exclusion of your Ma- jesty's Protestant subjects from making use of the same churches likewise: but a legal establishment of that religion, with a right to exact their tithes from the people as legal dues and not as voluntary contributions, is refused them, until your Majesty's pleasure shall otherwise direct, which your Majesty has not yet judged expedient to do. By this refusal all those parts of the Canadian laws and usages relating to the payment of tithes and other church dues are either abolished or suspended.
Article 31st -phe 31st article of the same capitulation is as follows: "The
"bishop shall, in case of need, establish new parishes, and provide
'See Capitulation of Montreal, p. 7.
CONSTITUTIONAL DOCUMENTS 339
SESSIONAL PAPER No. 18
"for the re-building of his cathedral and his episcopal palace; "and, in the mean time, he shall have the liberty to dwell in the "town or parishes, as he shall judge proper. He shall be at "liberty to visit his diocese with the ordinary ceremonies, and "exercise all the jurisdiction which his predecessor exercised "under the French government, save that an oath of fidelity, "or a promise to do nothing contrary to his Britannic Majesty's "service, may be required of him." To this article your Majesty's general made the following answer: "This article is comprised "under the foregoing." Now the foregoing, or 30th, article is directly refused; therefore this article must be deemed to be refused likewise: and consequently by this refusal all those parts of the Canadian laws and customs that give a right to the bishop of Quebec to establish new parishes, and to provide for the re- building of his cathedral and his episcopal palace, and to visit his diocese with the ordinary ceremonies, and to exercise the juris- diction which had been exercised by his predecessors under the French government, are abolished; and your Majesty's eccle- siastical supremacy is vindicated and supported in a manner agreeable to that important and universal statute of the 1st of Queen Elizabeth above cited, tive treaty of ^^^ "^''^ public instrument relating to the condition of this peace. province is the definitive treaty of peace concluded at Paris on the
10th day of February 1763.' In the fourth article of this treaty it is declared, that your Majesty will give the most effectual orders that your new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. By this refer- ence to the laws of Great Britain it should seem to have been your Majesty's intention that those laws should be the funda- mental rule of government in this province.
pnxJsmmtion "^^^ next public instrument relating to this subject, and upon in October which great stress has been laid by all your Majesty's British subjects that have resorted to this province, is your Majesty's royal proclamation of the 7th October 1763,^ which seems to have had principally in view the profit and advantages that might accrue to your Majesty's British subjects by resorting to, or settling in, the countries that had lately been ceded to your Majesty by the definitive treaty of peace. By this very solemn and important instrument, passed under your Majesty's great seal of Great Britain, it is declared, that "your Majesty, being "desirous that all your Majesty's loving subjects, as well of your "kingdoms as your colonies in America, may avail themselves,
>See Treaty of Paris. 1763, p. 97. •See Proclamation of 1763, p. 163.
340
CANADIAN ARCHIVES
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"with all convenient speed, of the great benefits and advantages "that must accrue from the great and valuable acquisitions lately "ceded to your Majesty in America, to their commerce, manu- "factures, and navigation, has thought fit, with the advice of "your privy council, to erect four new governments to be stiled "and called by the names of Quebec, East Florida, West Florida, "and Grenada; and that, as it will greatly contribute to the "speedy settling the said new governments that your Majesty's "loving subjects should be informed of your Majesty's paternal "care for the security of the liberty and properties of those who are "or shall become inhabitants thereof, your Majesty hath thought "fit to publish and declare, by that your Majesty's proclamation, "that your Majesty has, in the letters patent under the great seal "of Great Britain by which the said governments are constituted, "given express power and directions to your governours in the "said new colonies, that, so soon as the state and circumstances "of the said colonies will admit thereof, they shall, with the "advice and consent of the members of your Majesty's councils, "summon and call general assemblies within the said govern- "ments, in such manner and form as is used and directed in those "colonies and provinces in America which are under your Ma- "jesty's immediate government; and that your Majesty has also "given powers to the said governours, with the consent of your "Majesty's said councils, and the representatives so to be sum- "moned as aforesaid, to make, constitute, and ordain laws, sta- "tutes, and ordinances for the public peace, welfare, and good "government of your Majesty's said colonies and of the people "and inhabitants thereof, as near as may be to the laws of Eng- "land, and under such regulations and restrictions as are used "in other colonies." And then it is further declared in your Majesty's said proclamation, "that in the mean time, and until "such assemblies can be called as aforesaid, all persons inhabiting "in or resorting to your Majesty's said colonies may confide in "your Majesty's royal protection for the enjoyment of the benefit "of the laws of your realm of England; and that for that purpose "your Majesty had given power under the great seal to the gov- "ernours of your Majesty's said new colonies to erect and con- "stitute, with the advice of your Majesty's said councils respec- "tively, courts of judicature and public justice within the said "colonies for the hearing and determining all causes, as well "criminal as civil, according to law and equity, and, as near as "may be, agreeably to the laws of England, with liberty to all "persons who may think themselves aggrieved by the sentence "of such courts, in all civil cases, to appeal, under the usual
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
341
The sense in which this proclamation has been un- derstood by the British inliabitants of this pro- vince;
and by his Majesty's late govem- our and council;
"limitations and restrictions, to your Majesty in your privy "council."!
These are the words of your Majesty's said proclamation, and by them your Majesty's British subjects in this province declare that they have always understood that the laws of England have been introduced into this province, and that it was your Majesty's intention to assimilate the laws and civil government of it to those of the other American colonies and provinces which are under your Majesty's immediate govern- ment, and not to continue the municipal laws and customs by which the conquered people had heretofore been governed. And through a confidence in this proclamation, understood in this sense, they say they have quitted their native country to come and settle in this province, expecting to change only their climate by such a removal in pursuit of commercial advantages, and not to become subject to the laws of the conquered people, with which they are wholly unacquainted, and against which (though perhaps without reason) they entertain strong prejudices.
And in this sense was this proclamation understood also by your Majesty's late governour of this province and his council, who did not, in making the important ordinance above mentioned, of the 17th of September 1764, conceive themselves to be overturning all the ancient laws and customs of this country, and introducing the laws of England in their stead, but meant only to erect and constitute courts of judicature to administer a system of laws already in being, to wit, the laws of England, which they conceived to have been already introduced there by the words of your Majesty's proclamation. And in this sense likewise your Majesty's lords commissioners for trade and plantations, in the month of September 1765,'' understood these words io your Majesty's proclamation: for in the 7th and last article of a report made by the said lords commissioners, upon certain memorials and petitions from your Majesty's subjects in this province, complaining of the ordinances and proceedings of the governour and council of this province, and of the then present establishment of courts of judicature and other civil constitutions, to the lords of the committee of your Majesty's privy council for plantation affairs, dated on the 2d day of Sept- ember in' the said year, the said lords commissioners of trade propose, that in all cases where rights or claims are founded on events prior to the conquest of Canada, the several courts shall be
' On comparing the passages within quotation marks with the Proclamation itself, it will be fotind that though the sense is preserved the letter is very considerably altered; the address is changed from the first to the second person, and certain formal clauses are either omitted or abridged.
•ThelReport'of 2nd Sept. 1765, p. 237; discussed in Report of Vorke and de Grey p. 251.
k
and the lords commis- sioners for trade and plantations m September, 1765.
342 CANADIAN ARCHIVES
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governed in their proceedings by the French usages and customs which have heretofore prevailed in respect to such property; from which words it appears plainly that their lordships understood that in all cases, where rights and claims are founded on events posterior to the said conquest, the several courts of justice were to be governed by the English laws, and that their lordships were soUicitous to make an express provision, that this general rule of deciding cases according to the English laws should not be applied to such causes as were founded on events that were prior to the said conquest, in which cases it would be manifestly unjust. SifilTeT^ We know at the same time that your Majesty's attorney and
sense in sollicitor general, in the following month of April 1766,' under- understood stood the words of your Majesty's royal proclamation in a more Majesty's confined sense, as being introductive of only some select parts of attorney and the laws of England that were more particularly beneficial to your
Bolicitor gen- . °. . '^ •' '
erai, in April Majesty's English subjects, and not of the whole body of those laws. This they took to be the true import of these words in your Majesty's proclamation above-mentioned, the enjoyment of the benefit of the laws of England ; and they were of opinion that the criminal laws of England were almost the only laws that came under that description; and that the laws of England relating to the descent, alienation, settlements, and incumbrances of real estates, and to the distribution of personal property in case of intestacy, were certainly not comprehended under it. Whether this or the former way of interpreting this part of your Majesty's proclamation is the true one, belongs only to your Majesty to determine, according to the ancient rule of law laid down by the celebrated lawyer Bracton, that "cujus est condere, ejus est inter- pretari." All that we presume to do on this occasion is to lay before your Majesty a full and plain historical account of the several public instruments and acts of government by which the laws of England have either been introduced, or imagined to be introduced, into this province in lieu of those laws and customs which were observed in it heretofore.
Sn|?™nto ^^^ "^^* public instrument of this kind is your Majesty's
Gen.' Murray commission to General Murray in the year 1764, to be vice- in 1764 to be , . , . , , . , rr r ■ , • 1
vice admiral admiral, commissary and deputy in the ofnce of vice-admiralty vince^of™ '" ^^^ province of Quebec.^ This is a judicial commission, Quebec. by which the said General was impowered to enquire, by the oaths of honest and lawful men of the said province, of all and singular matters and things which of right, and by the statutes, laws, ordinances, and customs, anciently observed, were wont and ought to be enquired after; and of wreck of the sea; and of goods
' See Report of Yorke and de Grey, p. 251.
'See Maseres' Collection of Several Commissions, Src, p. 113.
I
CONSTITUTIONAL DOCUMENTS 343
SESSIONAL PAPER No. 18
of felons of themselves; and likewise of goods waived, flotson, jetson, ligan, deodands, derelicts, and other casualties upon the sea, or sea coast, or fresh -water rivers, as far as the tide flows; and also of anchorage, lastage, ballast, and fish royal anciently by right or custom belonging to your Majesty; and to arrest or cause to be arrested, according to the civil and maritime laws and ancient customs of your Majesty's court of admiralty, all ships, persons, and merchandizes for causes arising within the maritime jurisdiction, and to hear and determine the said causes, with all the matters incident thereunto, according to the laws and customs aforesaid; and to fine, chastise, and im- prison within any of the gaols of the province the parties that shall be found guilty, according to the rights, statutes, laws, ordin- ances, and customs anciently observed.
By this commission it is evident your Majesty has intro- duced into this province all the laws of your Majesty's English court of admiralty, in lieu of the French laws and customs by which maritime causes were decided in the time of the French government.
rionofgOTCTl ^^^ ^^^^ public instrument relating to this subject is your
nor in chief Majesty's commission to General Murray in the year 1764 to
of this pro- . ' ■' . , , . , : ; . , , .
vince given be captam general and governour in chief in and over this your
Murray in Majesty's province of Quebec. This commission, and the
fnsuiictio *^^'nstructions that accompanied it,' seem every where to pre-
that ac- suppose that the laws of England were in force in this province,
it. ^'"^ being full of allusions and references to those laws on a variety
of different subjects, and do not contain the least intimation of a
saving of any part of the laws and customs that prevailed
here in the time of the French government.
infere^'^ It Seems as if your Majesty had been of opinion, that by
from the stile the refusal of General Amherst to grant to the Canadians the
and purport . r , • • , , , , , ,
of the said Continuance of their ancient laws and usages, and by the refer-
and'hi^uc- ^"^e made in the fourth article of the definitive treaty of peace
tions. to the laws of Great Britain, as the measure of the indulgence
intended to be shewn them with respect to the exercise of their
I religion, sufficient notice had been given to the conquered
inhabitants of this province, that it was your Majesty's pleasure that they should be governed for the future according to the laws of England , and that they, after being thus apprised of your Majesty's intention, had consented to be so governed, and had testified their said consent by continuing to reside in the country and taking the oath of allegiance to your Majesty, when they might have withdrawn themselves from the province, with all their
' See Murray's Commission, p. 173, and Instructions, p. 181.
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effects and the produce of the sale of their estates, within the eighteen months allowed by your Majesty for that purpose.
These are the public instruments by which it is generally supposed, by those who have perused them, that the laws of England have been introduced into this province. But as your Majesty's royal proclamation above-mentioned, and your commission to General Murray to be governour in chief of this province, have never been published here in the French language, and as the provincial ordinances above-mentioned of the 17th of September and the 6th of November 1764, which have been published here in the French language, have mentioned this change in the laws in very concise and general terms, without specifying or describing any of the laws of England that were thereby introduced, the greatest part of your Majesty's hew subjects remain ignorant of the extent of the change to this hour, and imagine that their ancient laws and usages are in many andent'iaws P^^^^ Still in force. They still divide their lands upon an and usages inheritance in the same manner as before the conquest; their served by the widows are admitted to the same shares of them as before, ana lans. -y^^jthout any regard to the English rule of dower, which differs widely from that of the French law; and the personal estates of persons who die intestate are distributed at their decease accord- ing to the rules of the French law, which are somewhat different (though not very greatly, as we are informed) from those of the English statute of distributions; and the distributions of their personal estates have likewise been made for the most part by persons authorized thereunto in the manner that was usual under the French government, and not by receiving letters of administration from your Majesty's governour of the province in the manner directed by your Majesty's instructions. Fortu- nately for the peace of the province no litigations have yet arisen in any of your Majesty's courts of justice to give occasion to decisions that would make them acquainted with the change of the laws in these particulars, which would probably create a great deal of uneasiness. A diversity Yet upon the decease of your Majesty's British subjects
tice of the in this province, their relations have taken out letters of ad- Canadian" ministration from the governour of the province, agreeably oUhe'pro? *° your Majesty's instruction for that purpose, and, as we believe, vince, with have followed the English rule of distribution ; and some few, letters of but Very few, of your Majesty's new subjects have likewise Uon'^dThe taken out letters of administration in the same manner, but
distribution have foUowed, as we believe, the rules of the French law, with
of the effects
of persons respect to the distribution of the effects. We humbly apprehend
testote? '" that this diversity in the practice of your Majesty's subjects
CONSTITUTIONAL DOCUMENTS 345
SESSIONAL PAPER No. 18
in this province may hereafter be the occasion of some confusion,
though happily no bad consequences have hitherto followed
from it.
^°^^T^'''' There has likewise been a diversity in the practice of your
their practice Majesty's old and new subjects with respect to the manner of
Tothe'^mamierconveying and mortgaging landed property. Your Majesty's
^3^gj„{ British subjects have bought and sold lands and houses by
conveying instruments drawn up by English lawyers according to the Eng- andmortgag- ^ ' . ^ , ' iv/r • J^' /- J-
ing landed lish modes of conveyancmg; and your Majesty s Canadian
property. subjects havc employed Canadian notaries, or scriveners, for the same purposes, who have followed the French forms of conveyancing made use of before the conquest. And it has often happened that the same lands and houses have been sold and bought and mortgaged by both French and English con- veyances, as they have passed into the hands of Canadian or British proprietors. This also, we conceive, may hereafter be productive of some confusion, stonera^he Leases have likewise been made of lands near Quebec for
Canadians twenty-one years by the society of Jesuits in this province, ed the laws though by the French law they can only be made for nine years, of England, jj^jg ^^^ \)^Qn done upon a supposition that the restraints upon the power of leasing lands imposed upon the owners of them by the custom of Paris of which this is one, have no longer any legal existence. Upon the same principle many owners of seigniories, Canadians as well as Englishmen, have made grants of uncleared land upon their seigniories for higher quit-rents than they were allowed to take in the time of the French govern- ment, without regard to a rule or custom that was in force at the time of the conquest, that restrains them in this particular. And as the seigniors transgress the French laws in this respect, upon a supposition that they are abolished or superseded by the laws of England, so the freeholders, or peasants, of the province transgress them in other instances upon the same supposition. For example, there was a law made by the French king concerning the lands of this province,^ ordaining, that no man should build a new dwelling-house in the country (that is, out of the towns and villages) without having sixty French arpents, or about fifty English acres, of land adjoining to it, and that, if, upon the death of a freeholder and the partition of his lands amongst his sons, the share of each son came to less than the said sixty arpents of land, the whole was to be sold, and the money produced by the sale divided amongst the
' This refers to the ordinance of Louis XV, of 28th April, 1 745 : — "Ordonnance du Roi, portant entr'autres choses defenses aux habitans de b&tir sur les terres, 4 moins qu'elles ne soient d'un arpent et demi de front sur trente i quarante de profondeur." See Edits, Ordonnances Royaux, Declarations et Arrets du Conseil d'Etat du Roi Concernant Le Canada. Quebec, 1854, p. 585.
346 CANADIAN ARCHIVES
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children. This was intended to prevent the children from set- tling themselves in a supine and indolent manner upon their little portions of land, which were not sufficient to maintain them, and to oblige them to set about clearing new lands (of which they had a right to demand of the seigniors sufficient quantities at very easy quit-rents) by which means they would provide better for their own maintenance, and become more useful to the public. But now this law is intirely disregarded ; and the children of the freeholders all over the province settle upon their little portions of their father's land, of thirty, or twenty, and sometimes only ten acres, and build little huts upon them, as if no such law had ever been known here: and when they are reminded of it by their seigniors, and exhorted to take and clear new tracts of land, they reply that they understand that by the English law every man may build a house upon his own land whenever he pleases, let the size of it be ever so small. This is an unfortunate practice, and contributes very much to the great increase of idleness, drunkenness, and beggary, which is too visible in this province.
Further, many persons who have purchased seigniories in this province, and amongst them some Canadians, have hitherto declined paying to your Majesty's receiver-general the mutation-fine, or fifth part of the purchase money, due to your Majesty upon the admission of every new seignior by the custom of Paris. The English purchasers say that this, being part of the custom of Paris, is now abolished by the intro- duction of the laws of England; and the Canadian seigniors say that it is not due to your Majesty till they have been regularly invested with, or put in possession of, their seigniories, with all the rights and jurisdictions thereunto belonging, by your Majesty's officers of government, and have been admitted to take the oath of fealty and perform the ceremony of homage to your Majesty for the said lands; which has not hitherto been done.
Thus it appears that in many respects the Canadians appre- hend the laws of England to be in foffce in this province, and that they endeavour to apply them and put them in practice whenever they take them to be for their advantage; though in other points, and particularly in those of inheritance and dower, and the distribution of the effects of persons who die intestate, they have universally adhered to their former laws and usages. Droc^"dinKs ^^ Criminal proceedings the Canadians as well as English
universally suppose the laws of England to be in force. No others are ever mentioned or thought of; and the Canadians seem to be very well satisfied with them.
CONSTITUTIONAL DOCUMENTS 347
SESSIONAL PAPER No. 18
^'^n"^°^n •^"'^ '^'^ ^'^ ^-^^'^ proceedings carried on in the superiour court,
the court of or court of King's Bench, the forms of all actions, the stile of
^^ ^" the pleadings used in them, the method of trial, and the rules
of evidence are those which are prescribed by the English law,
and are universally known by the Canadians to be so.
SedinTin ^" *^^ court of Common Pleas the proceedings are drawn
the court of up in any form and stile that the parties, or their advocates. Pleas. think proper, and sometimes in the French and sometimes
in the English language, as the attornies who prepare them happen to be Canadians or Englishmen; and for this reason they are oftenest in the French language, most of the business in this court being managed by Canadian attornies. ^^J'''^^°', Arrests of the body for debt are used in the first instance
debt. both upon suits in the court of King's Bench and suits in the
court of Common Pleas, and even upon suits instituted before justices of the peace. This is a part of the English law that a good deal surprized and alarmed the Canadians upon its first introduction, as it carried an appearance of much greater severity than was practised under their own laws, which allowed of imprisonment only in criminal proceedings and in some few civil suits grounded on bills of exchange, or other instruments of a commercial nature, and then only in execution of a judgment of the court, and not in the beginning of the suit; but now they are grown accustomed to this way of proceeding, and fre- quently put it in practice against each other: and many persons of good sense and character, of both nations, are of opinion that, considering the great credit that has been given by persons in trade in this province, and the knavish and trickish disposition that has appeared in many of those to whom it has been given, there is no other method of proceeding by which the creditors can hope to obtain paymentof theirdebts. This is more especially the opinion of your Majesty's British subjects that are concerned in trade in this province, many of whom objected some time since to the execution of even a part of the English law itself, to wit, that part of it which relates to commissions of bankruptcy, upon a supposition of it's being too indulgent to debtors to be useful in this province; yet other persons are of a different opinion, and think arrests of the body in the first instance an unneces^ry piece of harshness in civil suits, and wish that it were restrained'; and to this opinion we humbly submit it to your Majesty that we are ourselves inclined.
' These objections were presented to Lt. Governor Carleton in a memorial from a number' of merchants of Quebec, dated Nov. 17th, 1767. See Q 5-1, p. 248. In Jan. 1768, certain Quebec and Montreal merchants, in another petition to the Lt. Governor, represented the advantages to the credit of the colony of having the English laws relating to bankruptcy in force. See Q5-1, p. 367.
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This is, as we conceive, a faithful representation of the pres- ent state of the laws in this province, and of the public instru- ments and acts of government upon which it is founded. We now beg leave to lay before your Majesty certain doubts that have arisen, and may arise, concerning the validity of those instruments, and the extent of their legal operation.
soml%f\he ^^ ^'^^^^ ^^^ nothing concerning the validity of your Ma-
foregoing jesty's proclamation of the 7th of October 1763, and the high legislative authority which your Majesty has therein thought proper to exercise with respect to your Majesty's new colonies, though there are persons who think that this branch of your Majesty's royal prerogative ought rather to have been exercised in conjunction with both houses of parliament: but we should suppose that what your Majesty has thought fit to do in this respect by the advice of your Majesty's privy council must be legal, and consequently that the operation of the words above cited from your Majesty's said proclamation is complete and incontestable so far as the true meaning of them can be ascer- tained. But if your Majesty in your royal wisdom should inter- pret them in a different sense from that in which they have been generally understood, and should declare that they were not meant to introduce the whole body of the laws of England that were not in their nature local, but only to introduce some particular parts of them that were more immediately beneficial to your Majesty's subjects, agreeably to the sense in which they were understood by your Majesty's attorney and soUicitor general in April 1766;^ or, if your Majesty should declare that they were not meant to introduce immediately any part of the laws of England into those provinces, but only to promise and assure your Majesty's British subjects that your Majesty would, in due time and place, and by particular and express promulgations, introduce some select parts of the laws of Eng- land that were more immediately conducive to their welfare and satisfaction ; in either of these cases we beg leave to submit it to your Majesty's consideration, whether the ordinances above-men- tioned, of the 17th of September and the 6th of November, can be deemed of sufficient validity to introduce any part of the laws of England that were not already established by your Majesty's said proclamation. Our reasons for doubting this are as follows: By the King's Your Majesty by your commission to General Murray,
commission j j j j ^ j •
to the gover- dated the 21st day of November in the 4th year of your Majesty's nour a certain ... •i-rr.^i- • ij
degree of reign, to be governour m chief of this province, was pleased
' Referring to the report of Yorke and de Grey. See p. 251.
CONSTITUTIONAL DOCUMENTS 349
SESSIONAL PAPER No. 18
'^^thorit'^is **-• delegate unto him a certain limited legislative authority> communica- to be exercised by him by and with the advice and consent to be°exerds-of your Majesty's council of the province, and of the general adiJce^and^ assembly of the freeholders and planters in the same therein consent of directed by your Majesty to be summoned, to wit, an authority
the councU ,•'■'. ,,., ,,.
and assem- to make, Constitute, and ordain laws, statutes, and ordinances
^' for the public peace, welfare, and good government of the said
province, not repugnant, but, as near as may be, agreeable
to the laws and statutes of your Majesty's kingdom of Great
Britain. But your Majesty did not in any part of the said
commission delegate either this or any other legislative power
be exerdsed *° your said governour to be exercised by him with the advice
without the and consent of the council only, without the concurrence of an
assembly. assembly. Now no assembly of the freeholders and planters
has hitherto been summoned; consequently all the ordinances
that have hitherto been made, so far as they have a legislative
tendency, have been made without any warrant or authority
from your Majesty's commission to your governour, and perhaps
may, upon that account, be justly contended to be null and void.
If this be so, the words in the ordinance of the 17th of
September 1764, which direct the court of King's Bench to
determine all civil and criminal causes agreeably to the laws of
England, and the other words of that ordinance, and of the
ordinance of the 6th of November following, which purports
to introduce the laws of England into this province, can have no
legal operation to change the laws which were then subsisting
in the country; and the ordinance of the 17th of September
must be considered only as an executive act of government,
erecting and constituting courts of judicature in the province
for the administration of the laws in being, whatever those
laws might be; and in this view it is certainly a legal and valid
ordinance, because your Majesty had, by an express clause in
your commission aforesaid, given your said governour full
power to erect such courts with the advice and consent of the
council only.
ed^erasiative ^* '^ *''"® indeed that your Majesty did give a private
authority is instruction to your late governour, purporting to communicate
governour by to him a Certain degree of legislative authority to be exercised
structkm.'to t>y him, -by and with the consent of the council only, without
b^ Vt^^'^d^ ^"y assembly; to wit, an authority to make such rules and regu-
and consent lations as shall appear to be necessary for the peace, order, and good
only. government of the said province, taking care that nothing be passed
A d bt "'' '^""^ ^^^ shall any ways tend to affect the life, limb, or liberty
cerning the of the subject, or to the imposing any duties or taxes. But we sub-
thls method "lit it to your Majesty's consideration, whether a power of this
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cltingTiegi's-'^'"^ ^^" ^^ communicated by any other instrument than letters lative au- patent Under your Majesty's great seal of Great Britain, publicly read and notified to the people, to the end that the acts done by virtue of them may have a just claim to their obedience; for otherwise they may alledge that they are faithful and loyal subjects to your Majesty, and ready to pay obedience to every thing that your Majesty's self shall ordain, and likewise to every thing that shall be ordained by your Majesty's governour by virtue of powers properly communicated to him by your Majesty; that consequently they will obey him in every thing he shall do by virtue of the powers conveyed to him in your Majesty's commission which has been publicly read to them; but that in the things not warranted by the said commission, but said to be done in pursuance of certain private instructions that have not been made known to them, and which they are therefore uncertain whether he has received or not, they cannot presume that he acts by your Majesty's authority, and there- fore are not bound to obey him. For this reason we humbly apprehend, that the private instruction before-mentioned cannot have legally conveyed to your Majesty's governour and council the legislative authority mentioned in it, small and narrow as it is. Uveau^hOT- ^^* secondly, if a private instruction should be deemed
ity men- to be a legal method of communicating a legislative authority,
tioned in this , , , i •, r i •
instruction is yet the power conveyed to the governour and council of this
w^raBtthe province by the instruction above-mentioned is much too
introduction confined an authority to warrant the general introduction of
of the laws of . . . .
England. the English laws; particularly of the criminal laws, which all
affect either life, or limb, or liberty; and the process of arrests of the body in civil suits for debt and trespass; and the power of committing persons to prison for contempts of court commit- ted in the presence of your Majesty's judges; and that of grant- ing attachments of the body for disobedience or resistance to the orders of your Majesty's superiour courts of judicature, when such acts of disobedience or resistance are committed out of court; which all immediately affect the personal liberty of of your Majesty's subjects in this province.
These are the reasons upon which, we conceive, the legality of the introduction of the laws of England into this province by the provincial ordinances above-mentioned may be called in question.
But these reasons have no relation to the other high instru- ments of government by which these laws may be supposed to have been introduced here, namely, the articles of capitulation in 1760, the 4th article of the definitive treaty of peace, and your
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Majesty's royal proclamation of the 7th of October 1763. If these instruments have introduced the laws of England, they may have a legal existence in this province, notwithstanding the want of legal authority in the two provincial ordinances above-mentioned. But if your Majesty should determine that these instruments have not introduced the laws of England into this province, then, as we conceive, it will follow, that the whole body of those laws has not yet been legally introduced into it, but that those parts only of the laws of England have a legal existence in this province which are contained in the acts of parliament above-mentioned, which by their own import and operation, and without needing any new instrument of go- vernment to introduce them, extend to all your Majesty's domin- ions in America.
cieTarising"' ^^ ^*'' "°^ proceed to lay before your Majesty the principal from the inconveniencies, under which the Canadians labour from the pres- et the laws ent State of the laws and methods of administering justice in
and admin- ^t. •
istration of this provmce.
justice. The first and greatest inconvenience arising from the present
state of the laws in this province is the uncertainty of them, Snty'ofthe ^"*^ *^^ doubts that are entertained concerning the legal con- laws, tinuance of the ancient laws and customs that were observed here in the time of the French government. This is a cause of great uneasiness and anxiety to persons of both nations in many of the ordinary transactions of life ; insomuch that it would be a great improvement of the condition of the province if either the English laws, or the old laws and customs of the country, were established by some new act of government, conceived in the most clear and positive words that can be made use of, with an express exclusion or abolition of the other laws, which may be imagined to have hitherto been in force. For by this declaration in favour of either of the systems, your Majesty's subjects would know what they had to expect for themselves and their families with respect to their inheritances, purchases, mortgages, contracts, and other civil rights and privileges from the operation of the laws ; and would in consequence thereof proceed to make such regulations of their affairs by particular agreements and settlements, and by their last wills and testaments, as would protect them against the inconveniencies which they might apprehend themselves to be exposed to from such parts of the established system of laws as they did not approve. We do not mean by this to insinuate, that such an immediate establishment of one of these systems of law, to the intire and express abolition and exclusion of the other, would be the best remedy that could be applied to this evil; but only to represent to your Majesty
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our idea of the greatness of this inconvenience, since even such a cure would be desireable. What is the best remedy that can be applied to this evil, is, as we conceive, a point of the greatest difficulty, and fit only to be determined by the wisdom of your Majesty's councils; though in obedience to your Majesty's commands, we shall humbly suggest to your Majesty, in the subsequent part of this report, some of the different methods that, as we apprehend, may be taken for this purpose, with the advantages and disadvantages with which they will be respectively attended. But before we proceed to consider this arduous subject, we beg leave to lay before your Majesty some other and much smaller inconveniencies arising from the present state of the courts in this province, together with a plan for the administration of justice for the time to come, which we humbly conceive to be likely in a great measure to remove them.
veiJendes"' These inconvcniencics are the expensiveness of law pro-
attending the ceedings, which is considerably greater than in the time of the of judicature French government, the tediousness of them, and the severity Wnce? ^"^ o^ the present method of proceeding in civil suits by arresting and imprisoning the defendant's body.
oHaw pro^^ '^^^ expences attending law-suits arise evidently from two ceedings. different sources, the fees of the officers of the courts of justice, and those of the attornies and advocates whom the parties employ in the management of their causes.' The former are capable of being properly regulated, as the persons to whom they are due are all servants to your Majesty, and under the immediate controul of your Majesty's governour and council; and measures have been already taken to ease your Majesty's subjects in this province of some part of these fees : your Majesty's chief justice and clerk of the crown have remitted those that used to be taken by them in the supreme court; and those of the at- torney-general for the conduct of criminal prosecutions have always been charged to your Majesty: and if those which are taken by the clerk of the supreme court for the civil business
1 A complete return of the fees exacted by the various officers in the different departments of the King's service in Quebec Province, was prepared, under an order of the Lt.-Govemor, and is given in Canadian Archives, Q 5-2, pp. 445-466.
When this return, together with Carleton's observations upon the system of fees, had been transmitted to Colonial Secretary Hillborough, he made the following reply: — "It is His Majesty's firm Purpose that every proper Measure shall be taken to remedy those Evils, and to remove that Scandal and Reproach brought upon His Majesty's Government, and the consequential unfavourable Impressions made upon the Minds of His Majesty's New Subjects, which are the Effects of the little Attention given by the Patentees in this Kingdom to Ability and Integrity in the Appointment of their Deputies; and of the shameful! Frauds and Exactions of exorbitant Fees which are practised, and of which you so justly complain. To this End I have received His Majesty's Commands to lay your Letters upon this Subject before the Lords of Trade for their Consideration, and to recommend such Remedies as their Lordships shall judge best adapted to redress these Grievances; and in the mean Time His Majesty trusts you will make some temporary Regulation to restrain the Fees of Office within some settled and certain Bounds, so far as Right and the Nature of the Case will admit, and also for punishing with Rigour those who shall be guilty of Exaction, or other mal-practice in their Offices." Q 5-2, p. 602.
I
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that is transacted there, and by the provost-marshal, or sheriff, and his bailiffs, for their summonses, arrests, and other ministerial business done by them in the course of the proceedings, and those which are taken in the court of Common Pleas, or the quarterly and weekly courts of the justices of peace, by the several officers of those courts, are found to be unreasonable, it will be easy to reduce them to a more moderate standard by a provincial ordinance for that purpose, if your Majesty will condescend to make such a reasonable addition to the salaries of these several officers as shall be a compensation for such diminution of their fees. The other cause of the expensiveness of law-suits is the rate of the fees of the attornies and advocates. These fees, it is evident, are not capable of a like reduction with the former, but must always be such as the parties and their lawyers shall agree upon ; since it is the natural right of every man to set what price he pleases upon his labour. All that can be done to keep those fees from growing exorbitant is to prevent a monopoly of law business in the hands of a few lawyers, who might thereby be enabled to exact unreasonable rewards from their clients by the necessity the people would be under of either employing them upon the terms they thought proper to demand, or letting their business remain undone: and this has been already done by your Majesty's wisdom and indulgence in permitting Cana- dian notaries, attornies, and advocates to practise their respec- tive professions notwithstanding their continuance in the pro- fession of the Romish religion.'
Yet when every thing is done that can be done to diminish the expence of law proceedings, it is probable they will still be more expensive than in the time of the French government; which ought not to be a matter of surprize, since the prices of corn and provisions, and of all sorts of labour, are almost double of what they were at that time. with'which^ The next inconvenience arising from the present establish-
theyarecon- ment of the courts of judicature complained of by the Canadians
ducted upon . i r . . X,, . .
the present IS the tedious length of law-suits. 1 his is owing to the unfre-
ment." quency of the terms or sessions of the supreme court of judicature,
and of the court of Common Pleas, which sit only three times a
year at Quebec and twice at Montreal. In the time of the
French government there were three royal courts in the three
several districts of Quebec, Three Rivers, and Montreal, vested
with full power to determine all matters both criminal and civil ;
in each of these courts a judge appointed by the French king
administered justice, and a king's attorney prosecuted on behalf
• See Ordinance of Sept. 17th, 1764, and notes thereon; p. 205. 13
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of the crown : and they used for that purpose to hold two courts in every week throughout the year, except about six weeks in the months of September and October, and a fortnight at Easter ; and besides these courts held regularly every week, they would sit on other days of the week, if the business before them made it necessary. From these courts there lay an appeal to the highest court of the province, which was called the superiour council; and this high court also sat every week: so that the difference between the expeditious methods of obtaining justice in the time of the French government, and the slowness of the proceedings upon the present establishment, is very striking in the eyes of the Canadians, and is esteemed a very considerable inconvenience. Besides the usual ill consequences arising from the want of dispatch in law-proceedings, this unfrequency of the sessions of the superior courts of judicature has been a principal cause of the increase of the fees of the Canadian attornies and advocates: for, as their opportunities of pleading causes happen so much seldomer than formerly, they endeavour to make up, by the value of the fees they now receive in the three sessions of the court of Common Pleas, the advantages they formerly derived from the number of them in the time that the French king's courts sat every week.
There is indeed in the present establishment a court of jus- tice in each district of the province that sits every week for the dispatch of business. These are the courts of the justices of peace. This was a very judicious institution, and well suited to the circumstances and disposition of the people. Yet it is liable to some objections. For, in the first place, the justices of the peace, who are the judges of these courts, are not much skilled in judicial proceedings; and, secondly, the same justices not attending constantly at these sessions, it is often necessary, where a matter cannot be decided at one session, but is adjourned to the next, to repeat all the proofs and arguments before the justices at the second session, which had been produced at the former session before the other justices who happened not to be now upon the bench, which occasions an increase of expence and trouble: and, lastly, their jurisdiction extends only to such disputes as relate to sums of money that do not exceed ten pounds. In all contests for greater sums the parties are obliged to have recourse either to the quarterly courts of the justices of the peace, or to the courts of King's Bench and Common Pleas, where the sessions are held but three times a year, ^nt^for ^^^ ^^^^ inconvenience is the severity of the present method
debt. of proceeding in civil actions, by arresting and imprisoning the
defendant's body. This, by filling the gaols with unhappy debt-
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ors, increases the number of the poor and helpless, and makes the families of the debtors, as well as the debtors themselves, become oftentimes a burden to the publick; and it is generally thought by the Canadians to be an unnecessary degree of harshness.
To remedy these several incon veniencies we beg leave to recom- mend to your Majesty the following plan for the administration of justice in this province for the time to come; which we have formed in Imitation of that which was in use in the time of the French government. the*adm?ni8- That this province should be again divided into the three
tration of districts of Qucbec, Three Rivers, and Montreal, as in the time province. of the French government: which might be called the Shires of Quebec, Three Rivers, and Montreal; and each of these three districts should have separate officers of justice: that a Royal court of judicature should be established in each of the three towns of Quebec, Three Rivers, and Montreal, which are the capital, or rather only, towns of those several shires or districts: and that each of these courts shall consist of one able English jud^s.'^one judge, appointed by your Majesty, and invested with full o* cr'^trf't'^'f P^^^""^ ^° hear and determine all matters, both criminal and the province, civil, arising within his jurisdiction, just as your Majesty's chief justice of the province is impowered to do upon the present es- tablishment throughout the whole province. to'bT^ngifsh These English judges should be barristers at law, of at least barristers at five years Standing at the bar; and they should be such as, be- yeara stand- sides their skill and knowledge of the law, had a competent know- 2^ ^' ' ^ ledge of the French language. And further, to enable these English judges more readily to understand the testimonies of the French witnesses, that would so often be examined before them, and likewise to comprehend the nature and extent of such of the antient laws and customs of the country as your Majesty shall think fit to be either continued or revived, we conceive, that ^i^udge '*• w^ould be convenient to give each of them a Canadian lawyer should have for an assessor, or assistant to them in the decision of causes: lawyer for but the Canadian assessors should have no vote or authority to ot^^Sall decide the causes in conjunction with the English judges; but should only assist them with their opinion and advice, the whole power of finally deciding them being vested solely in the English powerof°°'^ judges. This employment of the Canadian lawyers, even in this deciding subordinate capacity of assistants and advisers, would be thought
the causes . .,, . ,,. , ,, ,,.,
thouid be a very gracious mdulgence m your Majesty by all your Majesty s
^ EngUsh new subjects; and many of them, to whom it has been mentioned,
judges. have expressed an entire approbation of it. If they had an
equal degree of authority with the English judges in the final
decision of causes, they would be much more likely than the
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The judges should hold court once a week, with a very few exceptions.
Method of proceeding in these courts.
English judges to abuse it, by reason of their connections in the country, and the enmities and partialities that these connections would give birth to. And besides, there are other reasons, which would make it inexpedient to trust your new Roman catholick subjects, so lately brought under your Majesty's allegiance, with so great a degree of power. These judges and their assistants should hold their courts every week throughout the year, ex- cepting one month at Christmas, one week at Easter, and another at Whitsunday, which are the three great seasons for holidays observed by Christians. And they should sit on the Tuesday or Wednesday of every week, that the contending parties and their witnesses might not be under a necessity of travelling on Sundays to attend them. If the use of grand juries should be thought fit by your Majesty to be continued in criminal prose- cutions, these judges should take cognizance of criminal matters (that is, of such parts of the criminal proceedings as required the attendance of grand juries) only once a month, that the inhabit- ants might not be too much diverted from the care of their private affairs by their attendance in the courts as grand jurymen. But the other steps of all criminal proceedings that do not require the presence of grand jurymen, and, if the use of grand juries was laid aside, the whole of those proceedings should be carried on in weekly sessions, as well as all the civil business of the district.
The method of proceeding in these courts in civil actions might be as follows. The plaintiff might bring a declaration or plaint, in writing, into court, which might be either in the French or English language, as he thought proper, praying the process of the court to cause the defendant to be summoned to answer it; but not to be arrested by his body. This plaint should be read to the judge in open court, in order that he should determine whether or no it contained a good cause of action; and, till he approved it, no summons should be issued upon it. If he ap- proved it, he should order it to be filed amongst the records of the court by the clerk or register of the court, and should award a summons to be sent to the defendant to come and answer the plaintiff's demand, at such a time as he, the judge, should therein appoint. If he neglected to come at the time appointed by the summons, without any good reason for his neglect, he should be condemned to pay the plaintiff a moderate sum of money, to be ascertained by the judge, as a compensation to him for his ex- pence and trouble in attending the court, at the time appointed by the summons, to no purpose; and he should be summoned to come and answer the plaintiff's demand on another day. If he then also refuse to come, judgment should go against him by default. When the defendant appeared, he should make his
t
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answer to the plaint of the plaintiff in writing, and either in the French or English language, as he thought proper: and this answer should be filed amongst the records of the court. The judge should then himself interrogate the parties concerning the facts, in their account of which the parties seemed to differ, and which appeared to him to be material to the decision of the cause: and these interrogatories and the answers of the parties should be reduced to writing by the judge, or by the clerk of the court from the words dictated to him by the judge. When the judge had thus found out in what facts material to the decision of the cause the parties differed, he should himself state these facts in writing, and declare that it was necessary for him to be informed, by proper testimony, whether they were true or false; and should ask the parties whether both, or either of them, de- sired that he should inquire into the truth of these facts by means of a jury, or by examining witnesses, or other proofs himself, summoned^if ^^ both, or either of the parties, desired to have a jury, a jury tlie i^ties should be summoned to attend, at such following session as the They should judge should appoint. This jury should be paid for their attend- theu-^ttend- ance by. the party that desired to have a jury; and if both desired it, then equally by both parties. They should receive five shillings sterling a man. For at present it is a subject of com- plaint among the Canadians that they are taken from their necessary occupations to attend upon juries (which is by no means an agreeable employment to them) without any consideration, for it: and this, if it happened every week without any compensa- tion, would be thought, and perhaps justly, a very heavy burden. But for a reward of five shillings they will serve with great alacrity. These juries should be appointed in nearly the same manner as special juries are in England; that is, the ministerial officer, chuSf tJem *^^* executed the process of the court, should return to the court a list of four times as many persons qualified to be jury- men as were necessary to constitute a jury; that is, if a jury was to consist of twelve men, a list of forty -eight persons so qualified; and then each party should strike out twelve of the names con- tained in this list: and then the names of the remaining jurymen contained in it should be set down in a new list in an alternate order; that is, first one at the nomination of the plaintiff; then one at -the nomination of the defendant; then another at the nomination of the plaintiff; and then another at that of the defendant ; and so on : and these persons (whose names were thus set down in this new list, and who would be enough in number to constitute two juries) should all be summoned to attend the court on the day appointed for the trial of the cause, and should be called over in the court in the order in which their names were
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A majority of the jury should carry the verdict.
The juries should always give special verdicts.
set down in the new list; and the first twelve, or other number sufficient to make a jury, that appeared in the court should be the jury to try the cause. By this method of chusing a jury the disagreeable and captious practice of challenging jurymen would be avoided, which is apt to give rise to animosities be- tween the persons challenged and the parties who object to them.
Of the jury so chosen a majority should have a right to de- termine the verdict: the present rule, of requiring an absolute unanimity amongst all the jurymen, being evidently absurd and unnatural, and, amongst other inconveniencies, productive of one of a very important nature, which is the perjury of some of the jurymen in every third or fourth cause: for it happens at least so often that there is a real difference of opinion amongst the jurymen, and that some of them go over to the opinion of the rest, in opposition to their own senti- ments, and contrary to the oath they have taken to give a true verdict according to the evidence; which means, as we presume, according to their judgment of it. And it has sometimes hap- pened, that a great majority of the jurymen has gone over to a small but resolute minority. This therefore calls loudly for a reformation ; and more especially in a country where the natural and ordinary differences of opinion, that must frequently happen amongst jurymen, are likely to be greatly heightened by national and religious prejudices. If the agreement of twelve men should be thought necessary to establish the truth of a fact, it would be necessary to impannel twenty-three jurors. But per- haps a bare majority of twelve men may be sufficient to answer all the purposes of justice in civil matters.
In criminal matters it might be proper to make the agree- ment of two- thirds of the jury necessary to the conviction of the accused person.
And as the issues, or points of fact, that were to be proposed to the consideration of the jury, were to be drawn up in a minute and particular manner in words dictated by the judges of the courts, so the verdicts of the juries should be always special verdicts, stating the facts, as the jury find them to have hap- pened, with great exactness and particularity. This would prevent juries from encroaching upon the province of the judges, and determining points of law by means of the short and general issues of "Guilty or Not Guilty," "He did or did not undertake," "He does or does not owe the sum demanded," and the like, that oftentimes involve points of law mixed with matters of fact, and thereby give juries an opportunity of committing these irregu- larities. Whenever these things happen (whether it be from the ignorance or want of discernment in the jurymen, or from their
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wilfulness or partiality) it is certain that a real injury is done to the losing party, whose right it is, according to the laws of England, to have the points of law, upon which his cause de- pends, determined by the learned and able judges whom your Majesty has appointed to fill your courts of justice, as much as it is to have the matters of fact in the cause determined by a jury of honest freeholders in the neighbourhood. of'wUne^s" ^^^ witnesses examined in the trial of a cause should be
examined vivcL voce in open court, in the presence of both parties, or their attornies and advocates; and cross-examined, if the adverse party thought proper: and should not be allowed to deliver their testimony by written depositions or affidavits taken in private; not even in those trials which were carried on without a jury; unless by the consent of both the parties, or by the particular direction of the judge, upon very strong reasons for so doing, moved and debated in open court.
agSn"t'the When judgment was given for the plaintiff in a civil action,
defendant's a Writ of execution should go against the goods and lands of lands. the defendant, but not against his person; directing the minis-
terial officer that executed the process of the court, to levy the sum of money awarded to the plaintiff by the judgment, upon the defendant's moveable goods and chattels; and, in case , they are not sufficient for the purpose, then, but not other- wise, to sell part of his lands, to produce the remainder of the sum. And if the executive officer could not find a sufficient ^ound^'^the^ quantity of either moveable or immoveable property belonging defendant to the defendant to raise the sum awarded, and the judge was quU-ed to of opinion, upon affidavits made before him to that purpxjse, that the court, *an there was reasonable grounds to suspect that the defendant had dS*^' T^ secreted or concealed some of his effects, he might require him estate and to deliver in to the court, upon oath, an exact schedule of all oath.* upo j^j^ estates and effects of every kind; and if he refused so to do, might commit him to prison till he complied. And if he omitted any part of his effects to the amount of twenty pounds sterling, in the schedule so delivered in to the court, he should be liable to the penalties of perjury.
The judge should have a power of awarding reasonable costs to either party, according to his discretion. Sheriffs to It would be convenient to have a separate ministerial, or
^^ rar hir ^^^^utive, officer, to each of the three districts of Quebec, Three or districts. Rivers, and Montreal, to be called a Sheriff, which is the common name for such an officer in England, instead of one Provost- jj. , marshal for the whole province.
tornies each And it would be neccssary for your Majesty to have an attor-
courts. ney in each of these courts, to prosecute for your Majesty in all
Costs.
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criminal cases, and in suits concerning your Majesty's revenue, and in all other suits in which your Majesty's interest is con- cerned. If your Majesty should not think proper to appoint an officer expressly for this purpose, the power of carrying on these prosecutions for your Majesty might be vested in the clerk, or register, of the court; just as in your Majesty's court of King's Bench in England, the clerk of the crown, (whose principal duty is, to register, or enter, the pleas of the crown in the records of the court) is likewise attorney of your Majesty in that court, and prosecutes in your Majesty's behalf. But we submit it to your Majesty, that it would be convenient, and more suitable to the honour of your Majesty and the dignity of the court, to have a separate officer for this purpose to be called your Majesty's Attorney for that district, as there was in the time of the French government, fr'^m Uiese From these courts there should lie an appeal to the governour
courts to the and council of the province, and from thence to your Majesty in and coundi, your privy council. One great use of the appeal to the governour thence°S the ^"^ council would be to preserve an uniformity in the law King in throughout the whole province, which otherwise might gradually become different in the three different shires or districts of it, by the difference of the decisions that might be given in these several courts of justice, if they were intirely independant of each other, and subject to no common superiour council that might correct the errors of their proceedings.
And for the same reason the decisions of these courts should not be deemed to form precedents of sufficient authority to deter- mine any subsequent disputes; but this authority should be ascribed only to those cases which had been decided by the governour and council of the province upon the appeals brought before them from these shire-courts, or by your Majesty's self in your privy council.
And in order that your Majesty's governour and council might not be destitute of the advice of persons skilled in the laws to assist them in the determination of the appeals that should be brought before them, it might be expedient that your Majesty's judges of these three courts, and perhaps also your Majesty's three attornies in them, should be made members of your Majesty's council of the province; by which means all the best law abilities in the province would be employed in making these important decisions that were to carry with them the force of law: and with this view it might be proper to require your Majesty's judges and attornies of the courts at Three Rivers and Montreal to attend the governour at Quebec for one month about Christmas time, in order to assist at the decision of these
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appeals, which should therefore be reserved to this season of the year.
of*^Uiei"^^ These appeals should be only, as they now are, of the nature
appeals. of writs of error in England, to correct the errors in law committed in the courts of these shires or districts, and not to re-consider the facts in the cause, unless they had been settled by the judge alone Without the assistance of a jury. Where this was the case, the parties might, if they thought fit, cause the evidence itself to be taken down in writing by the clerk of the court, and signed by the witnesses and judge, that it might make a part of the record, as it does upon the trial by a general court martial in England : and, upon the removal of this record before the gover- nour and council, they might reconsider the whole matter, the facts as well as the law, and give such judgment upon it as they thought just ; but they should not admit any new evidence triaa*by a relating to it. Where the cause has been tried by a jury, the double jury, losing party might, if he thought proper, have it tried over again by a second jury, consisting of twice as many jurymen as the first jury ; and the verdict of this second jury should be final with respect to the matters of fact determined by it.
When Gaspey shall be settled, a fourth judge might be sent thither, whose jurisdiction should extend over a district lying round about it, to be taken out of the district of Quebec, which is now immoderately large. Such an establishment would be of great convenience to the inhabitants of that part of the province.
These are the outlines of the plan which we humbly beg leave to recommend to your Majesty for the administration of justice, and which, we are confident, would be of great advantage, and give very great satisfaction to your Majesty's Canadian subjects, and effectually remove many of the inconveniendes of which they now complain.
It remains that we consider the first and greatest inconveni- ence above-mentioned, which arises from the uncertainty of the law in the present condition of the province, and that we set before your Majesty the different methods by which, as we conceive, this inconvenience may be removed, and the laws of the province may be settled for the future upon a solid and permanent foundation.
meth^sttot' fo""" methods of doing this have occurred to us. The may be uken first is, to compose a code of laws for this province, that shall laws of this Contain all the laws by which it is to be governed for the time to province. come, to the entire exclusion or abolition of every part both of
the laws of England and the French laws that shall not be set
down in the code itself.
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The second is, to revive or re-establish the whole French law at once, to the exclusion of all the English laws, excepting those few which have been introduced by act of parliament, as above-mentioned, and a few more of the laws of England which are most eminently beneficial and favourable to the liberty of the subject, and to introduce these beneficial laws by a particular ordinance or proclamation, published in the province, in order to make them fully known to the Canadians. Such might be an ordinance to take away the use of the question, or torture, in criminal prosecutions, to change the cruel punishment of breaking on the wheel into hanging or beheading ; and to introduce the substance of the English law relating to the writ of habeas corpus, by declaring that no person in the province should be committed to prison, or detained in prison, by the order of any magistrate without a warrant in writing under the hand of the magistrate, expressing particularly the cause of his commitment or detention ; and that every man so detained in prison should, if he desired it, be brought before one of your Majesty's judges in the province, and either set at liberty, bailed, or remanded to prison, as the cause of his imprisonment, expressed in the warrant by which he is detained in prison, should require. Such an ordinance might be thought to fulfill, in a great measure, the promise given to your Majesty's British subjects by those words in your Majesty's proclamation above-mentioned, of the enjoy- ment of the benefit of the laws of England, supposing that your Majesty should think proper to determine that those words contain only a promise.
The third method of settling the laws of this country, so as to continue to the Canadians the use of several of their ancient customs, is to make the law of England the general law of the province, with an exception of those particular subjects con- cerning which your Majesty shall please to permit the former customs of the country to subsist, and with respect to those subjects to let the ancient laws of the country subsist in the manner they did at the time of the conquest, and without attempting to reduce them to writing, and enact them anew by particular ordinances, expressly setting them forth in all the extent in which your Majesty thought proper to let them con- tinue.
And the fourth method of doing this would be to make (as in the third method) the law of England become the general law of the province, with an exception of those particular subjects, or heads of law, concerning which your Majesty shall please to permit the former customs of the country to continue; and with respect to those subjects, to enumerate and set forth
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Advantages and disad- vantages with which the first method of settling the laws will be attended.
at length, in an ordinance or proclamation to be made for that purpose, the particular customs which your Majesty should think fit to be continued, to the exclusion and abolition of all other customs that should not be contained in the said ordinance or proclamation.
The first of these methods of settling the laws of this province, namely, that of making a code of all the laws by which it shall be governed for the future, to the exclusion of all the laws both of England and France that are not contained in it, would certainly be the most troublesome in the execution to your Majesty's ministers and servants, both in England and in this province. And further, we conceive that it would be objected to by some of the Canadians, who are the most difficult to please, as a rash and dangerous experiment, to which the persons your Majesty should think proper to employ in the compiling this code would be by no means equal. They would frame their objection to such a project in some such manner as this : 'That to reduce the whole 'law anew into writing, with a rejection of a great part of it as 'useless in the opinion of the compilers, is a task of such extra- 'ordinary difficulty, that not only no person in this province is 'fit to undertake it, but even the ablest lawyers in the parliament 'of Paris, if they were to devote their whole time and attention 'to it, would hardly be able to execute it properly ; that if any 'thing of this kind is attempted here, many important things 'will most certainly be omitted, and others be too concisely, 'imperfectly, or obscurely expressed ; that in such a code no part 'of the ancient laws of this province ought to be omitted, not- 'withstanding some of them may never have been put in execution 'here ; for that those laws are not less a part of the law of this 'country than those which have been often put in practice ; 'and that the only reason why they have not yet been executed 'is, because the objects of them, that is, the cases to which they 'relate, have not yet arisen ; and that when these cases shall arise, 'here is a wise law already provided beforehand to decide them; 'and that therefore no part of the custom of Paris, which was ' truly and properly the law of this province, ought to be left 'out of any code that shall be made for the government of it : 'and further, that there is a strong mutual connection between 'the different parts of this system of law, that makes it very 'difficult to change or abrogate any part of it, under a notion of 'its being useless, without weakening or rendering ineffectual 'other parts of it which the compilers may esteem useful ; and 'that therefore the only safe way is to let it stand as it is ; and 'that, in this view of permitting the whole of it to continue, 'there is no need of a code to express it over again in. new words ;
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'that it is already expressed in writing in the best manner pos- 'sible in the text of the custom of Paris itself and in the learned 'treatises of Monsieur Ferriere' and other writers upon it, and 'in the decisions of the parliament of Paris and of the superiour 'council of this province, upon the cases that have been con- ' tested before them; that indeed such a new code might be of 'some convenience to an English judge to save him the trouble 'of studying or consulting the French law-books, but that it 'would be a most dangerous and pernicious attempt to the 'rights and liberties of your Majesty's Canadian subjects.'
These are the objections which will certainly be made by some of your Majesty's Canadian subjects to the measure of compiling a new code of laws for this province, which we have stated to your Majesty at great length, that they may have all the weight with your Majesty which they may deserve. At the same time we beg leave to inform your Majesty, that we believe that these objections will be made only by a few persons in this province, and that the bulk of your Majesty's new Canadian subjects will be very well satisfied with such a code, and this* even though it should in a great measure be taken from the laws of England, provided only that a few of the most important of their ancient laws and customs, and that most nearly affect their property and the future situation of their wives and children, be contained in it.
On the other hand, the advantages that would arise from this measure of compiling such a code of laws for this province would, as we conceive, be these that follow.
In the first place, the English judges, who will, as we presume, always be employed to administer justice in this province, would have a short and plain rule to go by, which they would easily be able to make themselves masters of, and would not be liable to be puzzled and misled by artful French lawyers, partially citing and misrepresenting and misapplying the doctrines and cases contained in the French law books.
And in the second place, the English inhabitants in general would have the satisfaction of knowing easily and certainly what the laws of the province were, upon what conditions they purchased lands or houses, what rights of alienating or devising them they thereby acquired, what duties to your Majesty, their lords or their tenants, they were bound to, and in what manner their wives and children would enjoy their possessions after their -decease.
These would be no inconsiderable advantages resulting from the composition of such a code, even though done in a very
» The reference is doubtless to the work entitled: "A comparison between the Code, Digest, and Novels, and the French Law & Custom of Paris, by Monsieur Ferriere, Professor of Law at Paris; in Six Volumes in Quarto."
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imperfect manner. But there is another and greater advantage with which, as we conceive, this measure would be attended, which is the removing from the minds of the Canadians all idea of the excellency of the French laws and government, and of the superiour skill and ability of French lawyers and judges, bred in the parliament of Paris, and consequently of the happiness of having their law-suits decided by them. For we apprehend that, as long as the French laws and customs subsist at large without being reduced into a code, so that the several French law-books, books of reports, and edicts of the French king are the books of authority upon the subject, to which recourse must be had continually in the decision of points of law, so long will the people of this province retain a reverence for those edicts, reports, and other law-books, and for the authority of the French king who made the edicts, and for the parliament of Paris that has made the decisions reported in the books of reports, and the other learned French authors who have composed the other treatises on this subject ; and this reverence will be accompanied with a continuance of their liking for that government from which these good laws and edicts and law-books proceeded, and under which they might be most ably administered, and consequently with a secret wish to return to that government, that is, to return to their subjection to the French king ; whereas, if they continue to enjoy the most important of their ancient laws and customs under a new name, and expressed in a stile and phrase somewhat different from the former, and carrying with it the stamp of your Majesty's authority, the idea of their former sovereign, and of the parliament of Paris, and of the wise lawyers that compose it, would by degrees wear out of their minds, and they would think of nothing upon these occasions but the king of Great Britain and his code, and the great favour he had shewn them in permitting their principal laws and customs to continue, and giving them the express sanction of his royal authority. This we take to be a very capital advantage attending this measure of compiling a code of laws.
As to the inconvenience that might arise from the omissions • or imperfections of this code (for we readily admit that it would be very imperfect) it must be observed, that they might be con- tinually lessened and remedied by fresh ordinances, from time to time re-enacting those parts of the former laws and customs of this province which appeared to have been forgotten in the code, and which the governour and council thought worthy to be re-es- tablished : and in the mean time the code itself (imperfect as we suppose it to be) would still be sufficiently exact to determine all the common cases that occur in the ordinary course of human
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Advantages and disad- vantages of the second method.
affairs, such as the rules of inheritance in the direct line, the rules of dower, and of the husband's rights arising from the matrimonial contract, the usual rules about quitrents, aliena- tion-fines, and other profits due to your Majesty and to other lords, the usual methods of investiture of lands by performing fealty and homage, and the like, which would be sufficient to prevent the country from falling into general confusion.
This code we suppose to contain the whole of the law by which the province is to be governed, criminal as well as civil, to the exclusion of the whole of the English law, as well as the French, except what was contained in the code itself, and the acts of parliament relating to the custom-house duties, and those few other statutes that expressly relate to this colony by name or sufficient words of description since the conquest of it, or which, though made before the conquest of it, yet extend to it by virtue of the general description of all his Majesty's dominions now, belonging to the crown of Great Britain, or that shall hereafter belong unto the same.
These are the advantages and disadvantages with which, as we conceive, this first method of settling the laws of this province, by composing a code of laws for that purpose, would be attended.
The second method of settling the laws of this province, by reviving at once the whole French law, and introducing by an ordinance only a few of the laws of England that are most eminently beneficial to the subject, is evidently the shortest and easiest method that can be taken for this purpose; but it would be attended with the following inconveniencies.
In the first place it would have a tendency to keep up in the minds of the Canadians that respect for the laws of France, and the wisdom of the parliament of Paris, and the excellence of the French government, which has been above described, and which it would be one of the principal advantages resulting from the former measure, of compiling a code of laws, to extinguish.
In the second place it would give disgust to the English inhabitants of this province, who are fond of the laws of England and desirous of having the greatest part of them continued, and think they have a right to the enjoyment of them upon -two dis- tinct grounds.
In the first place, they think that every country that be- comes subject to the crown of Great Britain (whether by con- quest, exchange, or otherwise) becomes immediately subject to the laws of England, and that the laws by which it was formerly governed become immediately and ipso facto void and of no effect, being superseded by the laws of England without the aid of any act of parliament or royal proclamation for that purpose.
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In this we presume they are mistaken; since both the express declarations of the law-books, and those of your Majesty's attorney and sollicitor general in their report concerning this province, made in the year 1766,' and the dictates of natural reason inculcate a quite contrary doctrine, to wit, that the laws of the conquered people subsist in their full vigour till the will of the conquerour shall expressly change them. However this opinion, though not well grounded, is pretty general among the English inhabitants of this province.
And in the second place, they say, that, supposing that the laws of England were not of course introduced into this province by the very conquest itself and the subjection of the country to the crown of Great Britain, yet that they have been expressly introduced by your Majesty's proclamation of the 7th of October 1763, in the words that have been mentioned in the former part of this report; in which your Majesty assures them, that they may confide in your Majesty's royal protection for the enjoy- ment of the benefit of the laws of England. ^d^T^d^^ The third method of settling the laws of this province, by
v^tages of making the laws of England the general basis of them, and per- the third ..,„,. . . , ,
method. mittmg the Canadian customs to contmue with respect only to
some particular excepted subjects, and this by a general reference
to the French law-books in which those customs are contained,
without attempting to enumerate and express them anew, would
also be a very short and easy one to your Majesty's ministers and
servants both in England and in this province; and will be very
agreeable and satisfactory to your Majesty's British subjects
in this province. Yet it will be attended with the following in-
conveniencies.
By preserving a considerable part of the French law in the lump, or by a general reference to the French law-books that contain it, it will in some degree keep up in the minds of the Canadians that reverence for the laws and lawyers of Paris, and that consequential opinion of the happiness of being subject to the French government (as being that under which those laws may be most ably administered) which all persons that are zealously attached to your Majesty's government would natur- ally wish to see extinguished. But this objection will take place in a much less degree against this method, than against the last- mentioned, or second method, by which almost the whole body of the French laws would be revived.
Further, if this third method of settling the laws is pursued, some of the Canadians will probably make the two following
' The Report of Yorke and de Grey; aee p. 251.
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objections to it. They will say, in the first place, that the whole body of their laws ought to have been left intire, as there is a strong and well contrived connexion between all its parts, which makes it dangerous and detrimental to the welfare of the province to alter any of it. And, secondly, they will say, that, if any of the laws of England must be introduced here, they ought not to be introduced by general words, but by special ordinances, enumerating them, and setting them forth at full length, and in the French language, so that the Canadians may know and observe them. But these are objections which we believe will be made only by a few persons, and not by the gener- ality of your Majesty's Canadian subjects, ^d dirad-^ The fourth method of settling the laws of this province,
vantages of by making the law of England become the general law of it, method. with an exception of some particular subjects, or heads of law; and concerning those subjects to revive the ancient customs of the country by an ordinance or proclamation that should par- ticularly set them forth and describe them in all the extent in which your Majesty should think fit to let them continue, with- out any reference to the law-books in which they were formerly contained, would be preferable to the third method in this re- spect, that by enumerating and describing, or reciting particu- larly, the several French laws and customs that were intended to be continued, it would cut off all connection, in the minds of the Canadians, with the French laws, lawyers, and judges, and the government under which they were maintained. The par- liament of Paris, and the custom of Paris, and the French king's edicts would be no longer heard of, as being no longer of any authority; but the laws that were permitted to subsist must be cited in the words made use of by your Majesty to express them in the ordinance or proclamation which permitted their con- tinuance. This would be a considerable advantage which this fourth method of settling the laws of this province would have over the third method ; but it would be certainly somewhat more troublesome to your Majesty's ministers than that third method, and it would likewise be liable to many imperfections from the inaccurate manner in which the French laws and customs that were intended to be continued would probably be set forth; and it would be further liable to the two latter objections which might be made to the third measure, to wit, that it would give but an imperfect degree of satisfaction to som.e of the Canadians, by leaving them only a part of their ancient laws and customs, and that it would further cause them to complain of the general manner of introducing the laws of England without informing them exactly and particularly what those laws were, that they
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might know how to obey them. But these are objections which, as we before observed, would probably be made by a few persons only, and not by the generality of your Majesty's new subjects. Conclusion. Thus we have set forth to your Majesty at considerable
length (but not greater, we hope, than the importance of the subject required) the different methods by which your Majesty's gracious intention of settling the laws of this province upon a solid and permanent foundation for the time to come, and of leaving to your Majesty's new Canadian subjects the enjoyment of some of their ancient laws and customs that are most necessary to their tranquillity and satisfaction, may be carried into execution, together with the several advantages and disadvantages with which we apprehend that each of them will be attended. To weigh these advantages and disadvantages against each other, and draw a final balance in favour of one of these methods in preference to the rest, or to find a new method preferable to them all, is a task to which we find ourselves unequal, and which we apprehend can be successfully performed only by the wisdom of your Majesty's counsels. By residing in the province we may have been able perhaps, by our observation of the state of things here, to furnish your Majesty with necessary information and materials for forming a decisive judgment upon the subject; and that, in obedience to your Majesty's commands, we have endeavoured to do faithfully and fully, and to the best of our abilities, in this report. That our endeavours may be accept- able to your Majesty, and may be esteemed rather according to the zeal and integrity by which they have been directed, than according to the degree in which they may be found to answer the high purposes to which they were intended to be subservient, is the earnest wish of.
Your Majesty's Most loyal and devoted Subjects and Servants.
N.B. The foregoing draught of a report, which was pre- pared by Francis Maseres, Esquire, his Majesty's attorney general of the province of Quebec, by order of Guy Carleton, Esquire, the governour of the said province, was delivered in to the said governour on the 27th day of February 1769, but had not the good fortune to be approved by his excellency. Another report' was thereupon drawn up by other hands agreeable to the gov- ernour's sentiments, in which his excellency has omitted the consideration of all the public acts and instruments whereby the English law has been introduced, or attempted to be introduced, into that province, together with some other matters contained
• Up to the present, this Report has not been discovered among the State Papers.
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in the foregoing report; and instead of mentioning several dif- ferent methods of settling the laws of that province for the future, with the several advantages and disadvantages that would probably attend each of the proposed methods, and leaving it wholly to his Majesty's wisdom to chuse one of the methods in preference to the others, as is done in the foregoing report, his excellency has thought fit to mention only one method of settling the laws of the province, which he strongly recommends to his Majesty, as the only way of doing justice and giving satisfac- tion to the Canadians, which is, to continue the laws of England with respect to criminal matters, but to revive the whole body of the French laws that were in use there before the conquest with respect to civil matters. The chief justice, William Hey, Es- quire, and attorney general of the province, not thinking it either necessary or expedient to revive the whole body of the French laws in civil matters, but only those parts of them (which indeed are very considerable), which related to the tenure, alienation, dower, and inheritance of landed property, and the distribution of the effects of persons who die intestate, delivered in to the governour two additional papers, or lesser reports, containing their reasons for not wholly agreeing to the report made by his excellency. And these three reports were delivered to Maurice Morgan, Esquire, about the 12th of September 1769, to be by him carried to England, and delivered to his Majesty's secretary of state for America. * The additional paper, or lesser report, of the attorney general was intitled his opinion concerning the governour's report, and was as follows.
ATTORNEY GENERAL MASERES' CRITICISM OF GOV- ERNOR CARLETON'S REPORT ON THE LAWS OF THE PROVINCE^
The Opinion of the Attorney General of the Province of Quebec concerning the Report made by his Excellency Brigadier- General Carleton, the Governour in Chief of the said Province, to his Majesty in Council, concerning The State of the Laws and
• The three reports delivered to Morgan were those of Governor Carleton, Chief Justice Hey and Attorney General Maseres. In a communication from John Pownall, Under Secretary of State for the Colonies, to the Clerk of the Council in Waiting, he states that, by Lord Hills- borough's orders, he has transmitted to the Council certain papers sent to His Lordship by the Governor of Quebec, 18th September 1769, pursuant to the Order in Council of Aug. 28th, 1767. These papers were : —
"Report upon the State of the Laws and Courts of Judicature in the Province of Quebec."
"Appendix to said Report."
"Attorney General Maseres' Opinion concerning said Report."
Hillsborough, writing to Carleton on Jan. 18th 1770, reports that Morgan has arrived and delivered the papers which will pave the way for a speedy decision on the state of Quebec. The reports however are not found in connection with any of these despatches. That of Maseres, which follows, is given by himself in his volume of "Commissions" &c.
•Maseres, "A Collection of several Commissions and other Public Instruments, &c." p. 50.
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the Administration of Justice in the said Province; with The Reasons of his Dissent from some of the Matters contained in the said Report.
Sie^Dro°"sa'i° Your Majesty's attorney general of this province approves of reviving that part of the foregoing report which gives an account of the
the whole
body of the constitution of the government of this province during it's sub-
Sating'tcT^ jection to the French king, and believes the said account to be
civU matters, true in most particulars ; but he cannot assent to that part of the
said report which suggests to your Majesty the expediency of
reviving the whole of the French laws in civil matters, for the
following reasons.
inconsisten- jj^ ^j^g fj^gj place, he thinks it will be a deviation from that
cy of such a .
measure with plan of conduct which your Majesty has hitherto thought fit
his M&icstv's
former plan to pursue with respect to this province ever since the conquest ^t'h resiKct °^ '^ ^Y Y^ur Majesty's arms in 1760, which he conceives to have to the pro- been, to endeavour to introduce the English laws and the English
vmce of ' . . , 7 , ....
Quebec. manner of government mto it, and thereby to assimilate and associate this province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jeffrey Amherst, to whom this province was surrendered, to keep up, from the first moment of the conquest, all the courts of justice that were at that time in being in the colony, and even the several officers that composed them, upon the same footing on which they then subsisted. But as your Majesty's said general did immediately suppress all the former jurisdictions, and erect military councils in their stead, and in the articles of capitulation refused to promise the inhabi- tants of this province the continuance of the custom of Paris, and the other ancient laws and usages by which they had been governed, though requested in that behalf by the French general; — and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new
I Canadian subjects even in the delicate and important article
of the free exercise of their religion, only so far as the laws of England will permit; — and as your Majesty, by your royal proclamation of the 7th of November' 1763, did encourage your British and other ancient subjects to go and settle in this and the other new-erected governments, and did promise them, as an excitement thereunto, the immediate enjoyment of the benefit of the laws of England; — and as your Majesty did afterwards,
' October, not November
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by your commission of vice admiral of this province granted to General Murray,' expressly introduce all the laws of the English courts of admiralty into this province; and by your commission to the same gentleman to be captain general and governour in chief of this province, did direct him to summon an assembly of the freeholders and planters in this province, and in conjunction with them to make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws of England were already introduced there ; and did in other parts of the said commission allude to divers of the laws of England as being already in force here, as particularly the laws relating to the oaths of abjuration and supremacy, and the declaration against transubstantiation — From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney general of this province humbly collects it to have been your Majesty's gracious intention to assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America; he therefore conceives that the immediate revival of all the French laws relating to civil suits in this province, in the manner sug- gested in the foregoing report, will have at least the appearance of a deviation from the plan of conduct which your Majesty has hitherto adopted, and of a step towards a preference of the contrary system of keeping this province distinct from and unconnected with, all your Majesty's other colonies in North America:^ and this app.earance he humbly conceives to be ve^endes" itself a Considerable inconvenience, and very fit to be avoided,
would follow unless very strong reasons of justice or policy made such a from such a ,•,,, •,,
measure. measure necessary, which he does not conceive to be the case;
for, on the contrary,- he apprehends that the said total revival
of the custom of Paris, and all the other French laws relating
to civil suits, will be attended with the following additional
inconveniences.
In the first place, it will make it difficult for any of your Majesty's English subjects to administer justice in this province, as it will require much labour and study, and a more than ordi- nary acquaintance with the French language to attain a thorough knowledge of those laws.
In the next place, it will keep up in the minds of your Ma- jesty's new Canadian subjects the remembrance of their former government, which will probably be accompanied with a desire to return to it. When they hear the custom of Paris, and the parliament of Paris, and its wise decisions, continually appealed
• Given in Maseres. "A Collection of several Commissions &c." p. 113.
• See Carleton's letters to Gage and Shelbume, pp. 280, 281.
First incon- venience.
Second in- convenience.
Third in- convenience.
CONSTITUTIONAL DOCUMENTS 373
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to as the measure of justice in this country, they will be inclined to think that government to be best, under which those wise laws could most ably be administered, which is that of the French king; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of disaffection to your Majesty's government, and in a disposi- tion to shake it off on the first opportunity that shall happen to be afforded them by any attempt of the French king to recover this country by force of arms.
And in the third place, it will discourage your Majesty's British subjects from coming to settle here when they see the country governed by a set of laws, of which they have no knowl- edge, and against which they entertain (though perhaps unjustly) strong prejudices. sivenS^nd Your Majesty's attorney general of this province is further
diiatoriness of Opinion, that the body of your Majesty's new Canadian
of the Eng- , . ^ ' , ■'.,•',.•'/
lish law pro- Subjects are by no means either so distressed or so discontented the prfncfpai ^y the introduction of the English laws into this province as they subjects of are represented in the foregoing report: at least he has seen plaints of the no proofs of either such great distress or high discontent. What he has principally observed to be the subject of their complaints has been, either the expence or the diiatoriness of our law- proceedings; which he therefore conceives stand in need of refor- roya.rrourts^'^^^'^" • ^"*^ ^^ '^ °^ opinion, that to establish three courts of of general general jurisdiction in all matters criminal as well as civil in
jurisdiction . . , . , / ■ i
to hold their the province, to sit every week m the year (with a very few wee'kiy^. exceptions) in the towns of Quebec, Three Rivers, and Montreal, would be the most adequate remedy for these complaints.
oxieofTaws ^""^ ^^ *° ^^^ substance of the laws which are to be hence-
for the use of forwards admitted in this province, he conceives that the best
tne province.
way of all to settle these would be to make a code of them, that should contain all the laws of every kind, criminal as well as civil, that were intended to be of force here, to the exclusion of all other laws, both French and English, that were not in- serted in the said code; by which means all pretence would be taken away both from the French and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even though it should be very imperfectly executed, and many important articles should happen to be omitted in it; provided only that those things that were inserted in it were useful and reasonable, and set forth in a clear and proper manner : because he apprehends that the rules so inserted would be sufficient
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to govern at least all the common cases that would happen in the ordinary course of human affairs, such as descents in the right line, the right of representation in grand-children whose parents are dead, the dower of widows, the rents and services due to seigniors, the obligations and duties due from them to their tenants, the seignior's right to the common mutation-fines, his right of pre-emption of his tenant's land when the tenant is disposed to sell it, the rules of evidence in courts of justice, the solemnities necessary to be observed to give validity to a deed or will, and the like obvious and important matters; which would be sufficient to prevent the province from falling into confusion. And as to the nicer cases which might be omitted in such a code, they might afterwards be supplied by particular ordinances passed from time to time for that purpose, old French*'^ But if this measure of making such a code of laws should laws relating not be thought adviscable, your Majesty's attorney general perty and the of this province is humbly of opinion that it would be most ofthe'^effects expedient to let the English law continue to subsist in this of intestates, province as the general law of the province, and to pass an ordinance to revive those of the former French laws which relate to the tenure, inheritance, dower, alienation, and incum- brance of landed property, and to the distribution of the effects of persons who die intestate. His reasons for thinking that the French laws upon these heads ought to be revived, are as follows. These heads of law are three in number: First, those relating to the tenures of land in this province, or the mutual obligations subsisting between landlords and tenants with respect to them. Secondly, the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbering landed property. And Thirdly, the laws relating to dower, inheritance and the dis- tribution of the effects of persons who die intestate. And these several heads of law ought, as he humbly apprehends, to be revived in this province upon separate and distinct grounds. teMre?^ '^^^ '^^^ °^ tenure, he conceives, ought to be considered
as having been already granted by your Majesty to your new Canadian subjects by that article in the capitulation of 1760, by which your Majesty's general granted them the enjoyment of all their estates, both noble and ignoble,^ and by the permission given them by your Majesty in the definitive treaty of peace in 1763, to continue in the possession of them;' these laws being essentially necessary to such possession and enjoyment. Such are the laws relating to the quit-rents due by the freeholders, who hold by rent-service, to the seigniors, the mutation-fines,
• See Capitulation of Montreal, article 37, p. 18, also p. 32.
* See Treaty of Paris, especially the 4th article, p. 99, and p. IIS.
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Laws relating to the manner of aliening and incumb- ring landed property.
this subject would be highly incon- venient to the pro- vince.
the right of pre-emption, and the rights of escheat in certain cases; all which constitute the principal part of the property of the seigniors.
But the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring, landed property, are not, as he apprehends, absolutely necessary to the enjoyment of the lands themselves, and therefore ought not to be reckoned quite so sacred and unchangeable as the laws of tenure themselves. Yet he conceives them to be very nearly connected with those laws, and almost dependant upon them, so that they could not be changed in any considerable degree without diminishing the value of the lands themselves, by means of the practical diffi- culties that would occur in making use of the new modes of conveying land that would be established in their stead; and therefore he thinks that they ought to be continued. And further, he conceives it will be the more necessary to revive or continue the French laws upon this subject, in order to prevent the of'the'iEnKiish'"'-™^"^^'*^" °^ *^^ English laws upon the same subject, namely, laws upon the doctrine of estates- tail, the statute de donis, the method of defeating that statute by common recoveries, the doctrine of fines, the statute of uses, and the doctrine of uses in general, and other nice doctrines relating to real estates, which are full of so much subtlety, intricacy, and variety, that, if they were to be introduced into this province, they would throw all the inhabitants of it, without excepting even the English lawyers, into an inextricable maze of confusion. For these reasons he apprehends that the English laws upon this subject ought never to be introduced here; and that the former laws of the province relating to it ought for the present to be revived.
Lastly, as to the French laws concerning dower and the inheritance of lands and the distribution of the goods of intestates, with respect to such marriages as have been contracted, and such deaths as have happened, since the establishment of the civil government in this province, your Majesty's attorney general of this province is humbly of opinion, that those laws ought not to be considered as necessary appendages to the property of your Majesty's Canadian subjects in this province, and as having therefore been granted to them by implication in the articles of capitulation and the definitive treaty of peace; be- cause they do not affect the property, or the rights, of the Cana- dians' then in being, to whom alone those grants were made, but only guide and determine the course and devolution of that property after their deaths among persons that were then un- born. This, therefore, he conceives to be a matter upon which the authority of a legislator may properly be exercised. And
Laws of in- heritance and dower, and the distribu tion of the efifects of intestates.
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he further apprehends, that in some time hence a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highly beneficial to this province, the present excessive subdivision of the lands, by repeated partitions of them amongst numerous families, being productive of considerable inconveniencies. But this, he apprehends, need not be done at present; and he conceives, that, if ever it should be thought adviseable to do it, it ought to be done by a full and express declaration beforehand of the time at which the proposed changes should take place, with a power given to such persons as disliked them to prevent their taking place in their respective families by express provisions and agreements to the contrary, and should be accompanied with such temperaments and modifications as should make the adopting them be in a manner the voluntary act of the persons who were affected by them. But for the present he conceives' it might be better to postpone those important changes, and to revive the ancient laws of this province concerning inheritance and dower, and the distribution of intestates estates, as well as those relating to the tenures of land and the power and manner of aliening and mortgaging and otherwise incumbring it. And this one ordinance, reviving the said ancient laws relating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the tranquillity of the province, and to give satisfaction to the bulk of the Canadians: at least, he apprehends it would be enough to begin with: and if, upon trial, it should be found necessary to revive some other of the French laws that formerly subsisted in this province, it might be done by another ordinance or two, that might be passed for that purpose, when the necessity of them should become apparent. By such an ordinance as is above mentioned passed at present, and by the establishment of an easy and cheap method of administering justice in this prov- ince with sufficient expedition, he conceives that the far greater part of your Majesty's Canadian subjects would be contented. This therefore is what he humbly presumes to recommend to your Majesty as the best method which he can suggest for the settlement of the laws of this province, after the fullest consideration of this difficult and important subject.
FRANCIS MASERES,
Attorney General. Quebec, September 11th 1769.
I
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REPORT OF LORDS COMMISSIONERS FOR TRADE AND PLAN- TATIONS RELATIVE TO THE STATE OF THE PROVINCE
OF QUEBEC.i
QUEBEC 1769. July lO*^
To the Right Honorable the Lords of the Committee of His Majesty's Most
Honorable Privy Council for Plantation Affairs. My Lords,
Your Lordships having been pleased by your Order of the 28"^ of September 1768, to refer unto us two Letters to the Earl of Hillsborough, one of His Majesty's principal Secretaries of State, from sundry Merchants of London trading to, and deeply interested in the Province of Quebec, humbly recommending, that a full Legislature may be speedily granted for that Province ; and that a number of His Majesty's Roman Catholic Subjects there may be admitted into the Council and House of Repre- sentatives' ; and your Lordships having also further thought fit to refer unto us a Report made by His Majesty's Advocate, Attorney and Solicitor General, upon the heads of a Plan for establishing Ecclesiastical Affairs in that Province', and to direct us to consider the said Papers, together with the present State of the said Province, in respect to the Administration of Justice, religious Establishments, and Revenue ; and to report to your Lordships our Opinion, whether it may be advisable for His Majesty to direct an Assembly to be convened, and, if so, under what regulations and limitations such Assembly should be constituted, and what may be proper to recommend to their Consideration for the Welfare and interest of the Province in the several points above mentioned ; We have, in pursuance of
' Canadian Archives Q. 18 B., p. 7.
When thig report was drawn up in 1769 a policy of great secrecy with reference to the future government of Quebec had just been adopted, with the result that between this time and the ■ passing of the Quebec Act in 1774, few of the reports dealing with the policy of that measure are to be found among the State Papers. This report was prepared for the information of the Lords of Council and a copy of it was sent in "a secret and confidential" despatch from Hills- borough to Carleton, Dec. 1st, 1769, to secure his opinion of the proposals. The general char- acter and purpose of the Report is thus expressed: — "This Paper will not only fully inform you what Regulations and Reform are proposed in respect to the future Government of this important Colony, but will also point out to you the Arguments and Reasoning by which it is endeavoured to support the several Propositions." Its secrecy is indicated thus: — "This Report is sent to you in the greatest Confidence, and therefore you should be careful not only that no part of it is communicated to any other person, but that in conversing upon the subject of any Difficulties or Doubts that may arise, you do avoid the Appearance of their being other than the Result of your own Reflections; and I am particularly to desire that you will bring back the Copy of the Report with you. without suffering it to fall into any other hands whatever." Q 6, pp. 129-30.
' These letters have not been found, but they probalily reflect a movement at the time in the Province of Quebec, as indicated in a letter from Carleton to Shelburne. Jan. 20th, 1768, (see p. 295), as also in his letter of Aug. 4th, 1768. In the latter he states that a few persons, who had been endeavouring to get up a petition for an Assembly, having failed, had apparently dropped the project.
* This paper is contained in a Report of the Board of Trade to the Privy Council, dated May 30th, 176S. and is entitled, "Heads of a Plan for the EatabUshment of Ecclesiastical Affairs in the Province of Quebec." This is referred to in the representation of the Board of Trade of Sept. 2nd, 1765, see p. 247. It is given in full in the recently received but uncalendared volume Q 18 A, p. 88. The leport of the Advocate, Attorney and Solicitor General on the paper has not been found.
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your Lordships said Order, taken the subject matter thereof into our Consideration, and beg leave to report to your Lordships.
That the Objects of examination and discussion, pointed out in your Lordships Order of reference, and upon which we are directed to report our opinion, appear to us to be of the greatest importance to the present and future Welfare of that Colony ; and therefore, though the unsettled State of it's Government, the Jealousies and apprehensions on all hands rep- resented to exist in the minds of the new Subjects on this Account, and the obstruction and embarrassment arising therefrom to the administration of public Affairs there, were circumstances, that did all concur to evince the necessity of some speedy reform ; yet on the other hand, when we viewed the proposition of the Merchants in it's full extent, and saw the difficulties, that in the present peculiar State of this Colony would attend the making of such a reform in it's civil constitution, as would give full satisfaction to the new Subjects, without violating those principles, upon which the British Govern- ment is fundamentally established ; we did not think ourselves justified in making any report to your Lordships, or giving any opinion upon a matter, that His Majesty's former Councils had not thought fit in their great wisdom, even upon the fullest consideration, to take any resolution upon, without proceeding with the greatest circumspection, nor without the fullest information, that could be collected, as well from the corre- spondence of His Majesty's Servants there, as from the examination of persons here, who have been resident in, and are well acquainted with the affairs of Quebec.
The time, that has elapsed since the date of your Lordships order, has
made it necessary for us to say thus much, lest your Lordships should impute
to us a delay, which, if unnecessarily created, would not fail to subject us
to your censure, in the case of an important part of His Majesty's Dominions
suffering every inconvenience and disadvantage, that can arise out of a
very imperfect, inadequate and defective Constitution, where the In-
I habitants of it, consisting of above eighty thousand brave and loyal Subjects,
do, by the nature and form of such Constitution, and the most unwarrantable
I Doctrines and Opinion founded thereon. Stand prescribed from every
I privilege, and denied every right, the possession of which can alone ensure
I their affection, and fix their attachment to the British Government.
How this comes to be the case in Quebec will be more fully seen by the following narrative of what has been established in respect to the Civil Concerns of that Colony, since it passed under His Majesty's Dominion ; and from thence your Lordships will be enabled the better to judge of the propositions we shall submit to you, as the ground for such a reform in the Constitution of this Colony, as may consist with Justice and Equity, and we hope, be the means of for ever securing the possession of it to the Crown of Great Britain.
I
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On the eighth of September 1760, Canada with it's dependencies was surrendered to His Majesty by Capitulation,' in which it is Stipulated, that the Inhabitants both Laiety and Ecclesiastics shall become subjects of the crown of Great Britain, reserving the free exercise of their Religion, and the entire possession of their propjerty under all descriptions.
On the tenth of February 1763 the definitive Treaty of Peace was signed at Paris^ ; by the fourth Article of which, Canada with all its dependencies is ceded to the crown of Great Britain, and His Majesty agrees to grant the liberty of the Catholic Religion to the Inhabitants of Canada, and that he will consequently give the most precise and most effectual orders, that His New Roman Catholic Subjects may profess the worship of their Religion according to the Rites of the Romish Church, as far as the Laws of Great Britain permit.
In October 1763 His Majesty was pleased by Letters Patent under the Great Seal to appoint the honorable James Murray Esquire to be Governor of this Colony,' the limits of which are thereby fixed and ascertained, and it's former name of Canada changed into that of Quebec.
By these Letters Patent, and by the Instructions* from His Majesty, which accompanied them, the Governor is authorised and impowered,
First. To appoint a Council to assist him in the administration of Government, consisting (according to the usage and constitution of other Colonies) of twelve persons, eight of which to be chosen from amongst the most considerable of the Inhabitants and Persons of property in the said Province, and the remainder to be composed of the principal Officers of Government.
Secondly. To Summon and call, with the advice and consent of the said Council, as soon as the situation and circumstances of the Province shall admit, a general Assembly of the Freeholders and Planters, in such manner, as he shall judge most proper, or according to such further di- rections or authorities, as shall be given to him under His Majesty's Signet or sign Manual, or by Order in Council.
Thirdly, To take himself, and also administer to each of the members of the said Council and Assembly the Oaths mentioned in the Act of Parlia- ment of the first of George the First, and to subscribe himself and to cause them to subscribe the Declaration against Transubstantiation, mentioned in the Statute of the twenty fifth of Charles the second ; and it is ordered, that, until the said Oath and Declaration shall have been so taken, and subscribed, no person, though elected, shall be capable of sitting in the Assembly.
I Fourthly, To make, constitute and ordain, with the advice and consent 'of the said Council and Assembly, Laws, Statutes and Ordinances for the public peace, welfare and good Government of the said Province; which
' Capitulation of Montreal; see p. 7.
' Treaty of Paris; see p. 97.
' Commission to Governor Murray; see p. 173.
* Instructions to Governor Murray; see p. 181.
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Laws, Statutes and Ordinances are not to be repugnant to, but, as near as may be agreable to the Laws and Statutes of this Kingdom ; and until the Situation of the Province should admit of calling an Assembly, he is, with the Advice of the Council, to make from time to time such rules and regulations, as shall appear to be necessary for the peace, order and good Government of the Province ; taking care, that such rules and regulations shall not extend to affect the life, limb, or liberty of the Subject, or to the imposing any Duties, or Taxes.
Fifthly. To establish such and so many courts of Judicature and public Justice, as shall appear to be necessary, and to constitute and appoint Judges, Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary Officers and Ministers.
These are all the directions and authorities, which seem necessary for the present purpose to be recited ; the rest of the powers contained in the Commission are the same, as are usually given to the Governors of other Colonies ; but as it is material to observe, that the Letters Patent direct, that he shall execute his command according to the powers and directions contained therein, and in the Instructions which accompanied them, or "according to such further Powers or Instructions, as may be hereafter "given to him under His Majesty's Signet or sign Manual, or by Order in "Council, and conformable to such reasonable Laws and Statutes, as shall "be made and agreed upon by him with the advice and consent of the said "Council and Assembly."*
On the seventh of October 1763 His Majesty's Proclamation^ was published, declaring the limits and extent of the four new Governments of Quebec, East Florida, West Florida, and Grenada, reciting the powers, given to the Governors by their Commissions under the Great Seal, of Summoning Assemblies, and of passing Laws with the advice and consent of the said Councils and Assemblies ; and containing His Majesty's Royal Assurance, that, in the mean time, and until such Assemblies could be called, all persons inhabiting in, or resorting to the said colonies might confide in His Majesty's Royal Protection for the enjoyment of the benefit of the Laws of England.
By these Constitutions the form of Government established in this Colony by the Crown of France, and adopted with some Variations after the conquest of it, though not entirely abolished, as some persons have contended, was yet, in many parts of it, materially altered, and made to correspond with that form of Government, which has been established in His Majesty's other American Colonies. The having a complete Legis- lature competent to those regulations, which a Colony under such Circum- stances must necessarily require, appears to have been one of the first Objects ; and there can be no doubt, but that His Majesty's Commission and Proclamation, in the provision they make for this purpose, had in view
•Seep. 182. •Seep. 163.
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to extend to his Majesty's new Subjects those Privileges, which exist in the principles of a British Constitution. But the exercise and operation i of this Legislative Power having been rendered impracticable by inserting in the Commission, without sufficiently adverting to the state of the Colony' the restriction,' that no person should sit in the Assembly, who had noty subscribed the Test, required in this Kingdom by the Act of the twenty * fifth of Charles the second, the powers of Government became confined to the Governor and Council, whose authority not extending to cases, which might affect either the life, limb, or liberty of the Subject, or to the imposing Duties and Taxes, was incompetent to those regulations, which the situation of the Colony required ; and consequently no provision has been made for establishing such a reasonable Revenue, as may be adequate to the necessary expences of Government, the whole of which is now a burthen upon His Majesty's Treasury here. The Roman Catholic Religion, though barely I tolerated by the Treaty, remains without any regulation, reform, or control I whatever, and that of the Mother Country without any provision ori support.
Besides these capital objects, there are many other constitutional establishments, and necessary services, for which no provision either has been, or can be made in the present state of the Colony ; and it has even • been found necessary to disallow several Ordinances of the Governor and / Council, in Matters merely of local regulation, and internal ceconomy, | from a consideration of the Want of a due authority to enact them.
These wants and defects are of themselves sufficient to evince the necessity of having a complete legislative power, for the establishment of which it is humbly conceived the Faith of the Crown stands fully pledged, both by the Commission under the Great Seal, and by the Proclamation ; but the state of the Colony, in respect to the Administration of Justice in civil cases, is a circumstance, that does above all others mark the necessity of some form of Government more perfect and effectual.
On the seventeenth of September 1764 the Governor and Council promulged an Ordinance* for establishing and regulating Courts of Justice, by which the plan of Judicature is made to consist of a Superior Court, having the Jurisdiction of the Court of King's Bench ; an inferior Court, having the Jurisdictions of the Court of Common Pleas, and Courts of Oyer and Terminer, Assize, and Goal Delivery ; and it is declared by this Ordinance, that all matters. Civil and Criminal, shall be heard and deter- mined in these Courts agreeable to the Laws of England.
According to the construction put upon this Ordinance by those who framed it, it was to be understood, that not only the proceedings in these Courts were to be carried on according to the modes and forms established in the Courts in Westminster Hall, but also all the principles of the Law of England, relative to Descents, Tenure, &c., which totally, or in part differed
'See p. 175. ' See p. 205.
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from the Antient customs of Canada, and also all those local and Municipal Laws, which have from local convenience and consideration obtained in this Kingdom, were thereby introduced into Canada, and become Laws there. In consequence of these opinions and constructions, the customs of Canada, which before governed in all suits concerning property, were laid aside ; and a further ill effect of the ordinance was, that, instead of that Summary and easy process, which had before been used in the adjudication of questions of this nature, it had the effect to introduce all that delay, perplexity and expence, which accompanies the lowest and most disgraceful practice in this Kingdom ; and the new Subjects, who were precluded from serving on Juries,^ or pleading their own Causes,^ were compelled to entrust the prosecution of them to men unacquainted with their language and Customs, and who to the greatest ignorance added the grossest rapacity.
It is not to be wondered, that establishments, so inconsistent with the civil rights of the Canadians, and so oppressive in their operation, should have given that disgust, so strongly, and yet so respectfully expressed in their humble Address to His Majesty on this occasion ;' more especially, when, in a Presentment of a Grand Jury* impannelled at a Quarter Sessions, they found their Religion presented, as illegal; themselves not only pros- cribed, as incapable of the common offices of Society, but also subjected to all the Pains and Penalties inflicted upon Popish Recusants in this Kingdom ; and a right claimed by such grand Jury of being the only representative body of the Colony, and of being consulted upon all Measures of Government.
It is true indeed, that His Majesty has been graciously pleased to dis- approve of such unwarrantable claims and proceedings, and to direct, that the Canadians shall be admitted to serve on Juries, and to plead as Advo- cates, in the Courts ;° but the same erroneous opinion, with regard to the extension of the Laws of England, still prevails; the Laws and customs of Canada, in respect to property, have not gained admittance into the -Courts; And His Majesty's new subjects, though they have a full Confi- dence and reliance on His Majesty's Equity, and His paternal Regard for their interest, do yet express great uneasiness, and wait with impatience His Majesty's Determination on those points, which so materially affect their Properties, Quiet, and Happiness.
The representations of this matter made by His Majesty's Governor in his Letters to the Secretary of State, copies of which are hereunto annexed,' are so full and explicit, and do so clearly and distinctly point out the danger, to which the Colony stands exposed, and the necessity of some speedy measures being taken to give satisfaction to the new Subjects in the several
' See, however, Murray's comment on this feature of the ordinance, as given in note 2, p. 206, and note 5, p. 206. 'See note 1, p. 207. ' See Address to the King, 1764, p. 223.
* See presentment of Grand Jury, p. 212, and Reply of French jurors, p. 216. ' See ordinance of July 1st, 1766, and instructions for passing it, p. 249 and note 2, same page. 'See appendix to this report, Nos. 1, 3 and 5, pp. 393-4.
CONSTITUTIONAL DOCUMENTS 383
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points we have considered, as to make it unnecessary for us to add any further observations of our own.
From these Letters, and from what has been said, it is evident. That the Colony of Quebec is in the greatest disorder and confusion, and that the authority of the Governor and Council, as limited by the Commission and Instructions, is in no respect competent to those regulations, which either the present state of it does, or the future progress of it may require; and as it appears to us, that there is no Method of curing these disorders, and giving effect and Stability to Government, but by establishing a competent legis- lative Authority, conformable to the Royal Assurances contained in the Commission and Proclamation ; we are therefore of opinion, that it is | necessary in the present State of Quebec, that a complete Legislature should ' be established ; and that it would be advisable for the present to adopt not only the measure recommended by the Merchants^ of admitting, under proper regulations and restrictions, a number of His Majesty's new Sub- ' jects into the Council and House of Representatives, but also into the Courts of Judicature, and other Offices of Government, by exempting them from the obligation of Subscribing the Declaration against Transubstan- tiation declared in the Statute of twenty-fifth of Charles the second, con- formable to what has been done in the like case in the ceded Islands, and has been found, both upon Antient precedent and late opinions of Law, to be a Matter entirely in His Majesty's Discretion^
Having thus fully answered the first and most material part of your Lordships Order, by which we are directed to report our opinion, whether it may be adviseable for His Majesty to direct an Assembly to be convened, according to what the merchants propose; we shall proceed in the next place to consider, under what regulations and limitations such Assembly should be constituted.
And first, with regard to the Council, which will, under its present form and constitution, as established by His Majesty's Commission, become a branch of the Legislature, whenever a House of Representatives is convened, it only remains for us to advise. That, in order to admit into it a reasonable proportion of His Majesty's New Subjects, the number of the said Council, which is now fixed to twelve persons, should be enlarged to fifteen ; That a number of His Majesty's New Roman Catholic Subjects, not exceeding five, should be appointed members thereof, at such times as His Majesty shall think proper; and that they should be exempted from the obligation of subscribing the Declaration against Transubstantiation, which is by His Majesty's Commission and Instructions required to be taken and subscribed by the members o£ the Council in general.
With regard to the House of Representatives, which (though declared by His Majesty's Royal Commission and Instructions to be a part of the
' Referring to the letters mentioned in the first paragraph of this Report. ' See Report of Norton and de Grey, p. 236; also the opinion of Attorney General Yorke re the status of French Catholics in the island of Grenada, given in note 1 , p. 266
li
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Constitution,) has never yet, for the reasons already mentioned, taken place, it will, we presume, be neither practicable nor expedient, in the present state of that Colony, to give it such a shape and form, as shall be considered to be fixed and permanent under all circumstances; every establishment of this nature must be considered merely in the light of experiment, so far at least as depends upon the form in which it shall be first convened; open in all cases that regard the places which are to elect Representatives, the number to be elected, and the form of their qualifications, and proceedings, to such alterations, as a Variation in the state and circumstances of the Colony shall from time to time require.
For the present, as this Province is already divided into three districts, and, as we observe, that the Courts of Justice and other Civil Establish- ments are formed with a view of this division of it, we presume your Lord- ships will be of opinion, that the establishment of a House of Representa- tives should likewise correspond therewith; and therefore we take leave to propose, that it should consist of twenty seven Members, to be elected in Manner following, that is to say,
For the City of Quebec 7. '^ <
For the District of Quebec 6.
For the City of Montreal 4. ^
For the District of Montreal 4.
For the Town of Trois Rivieres 3. 3 'J
For the District of Trois Rivieres 3
27.
That the Members, chosen for the several Districts, shall not be obliged to take any other Oaths, than those of Allegiance, Supremacy and Abjura- tion; But care must be taken, that the Privilege, hereby meant to be given to the New Subjects, of being eligible for the Districts, is confined to them only, and to such of them as were actual Inhabitants of Canada, and pos- sessors of Lands and Tenements therein at the time of the Treaty of Paris; That the Members elected for the Cities of Quebec, and Montreal, and Town of Trois Rivieres, shall, besides the Oaths of Allegiance, Supremacy and Abjuration, subscribe the Test against Transubstantiation required by the Act of twenty fifth of Charles the second Chap: Second.
That the mode and form of convening the first Assembly shall be prescribed by an Ordinance to be passed for that purpose ; in which it shall be declared, that no person shall be capable of being chosen a Representa- tive, or shall vote in the choice of a Representative, that has not attained the age of twenty-one years, and is not actually and bona fide, a proprietor or occupier of Lands, or a Tenement within the Province; but that the qualifications of both electors and elected, and the forms of proceedings in respect to elections be more particularly provided for by a Law to be passed
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in the first Assembly that shall meet; and that it be recommended, that no . person, be capable of being elected for a District, that is not possessed, ^ either in his own right, or in right of his Wife, of a Seigneurie within the Province.
That the person elected speaker of the Assembly shall take the Oaths of Allegiance, Supremacy, and Abjuration, and also subscribe the Test re- quired by the Act of the twenty fifth of Charles the second. Chap: Second.
By the foregoing regulations your Lordships will observe, that it is probable, that the House of Representatives will consist nearly of an equal number of Protestant & Roman Catholic Subjects; and that, as those to be elected for the Cities of Quebec and Montreal, and for the Town of Trois Rivieres, must of necessity be Protestants, so it will be most likely, though not of necessity, that those for the Districts will be persons professing the Roman Catholic Religion; and we trust, that, when your Lordships con- sider the state of this Colony, in respect to the very great Superiority in number and property of the new Subjects, you will not think the rule of proportion between one description and the other to be more favorable to the new Subjects than Justice and equity require.
As to the proper times for the meeting of the Assembly, the nature and form of the Writ for election, and the Various other minute regulations incident to such an institution, they are matters, which must be left to the discretion of His Majesty's Governor, who will doubtless regulate his con- duct herein, by what has been approved and found most beneficial in other Colonies, so far as such precedents conform to the peculiar Situation and circumstances of Quebec.
We are now come, my Lords, to that part of your Lordships Order, by which we are directed to consider of the present state of the Colony of Quebec in regard to the Administration of Justice, religious Establishments, and Revenue; and what may be proper to be recommended to the consideration of the Legislature there, for the welfare and interest of the Colony in these several points.
The general observations, which we have before submitted to your Lordships upon the state of the Colony of Quebec, in respect to these essen- tial parts of it's interests, together with the remarks contained in the Gover- nor's Letters already referred to, make it unnecessary for us to enlarge further upon the necessity there is for some speedy reform and regulation in these matters; and although the forming a precise and just opinion of what that reform and regulation should be, may at first sight seem to be accompanied with the greatest difficulty; yet as all these great objects have already been fully considered, and the Subject matter discussed at the proper Boards, and by His Majesty's Law Servants;' and as we have every other information, that could be collected from the correspondence of His Majesty's Governors, and from the examination of persons best acquainted
' See report of Yorke and de Grey, p. 251. 14
386 CANADIAN ARCHIVES
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with the state of the Colony, we shall not hesitate, with the assistance of these lights and informations, to suggest to your Lordships such regulations, as we are humbly of opinion may serve, as the Ground Work of Instructions to His Majesty's Governor, and remove all colour for any further delay, in matters of so great moment, and upon which the welfare, nay the very ex- istence of the Colony depends.
With regard to the form and constitution of the Courts of Justice proper for this Colony, and the regulations necessary in Ecclesiastical matters, your Lordships have already before you not only the fullest Reports of this Board, but also the opinion of His Majesty's Law Servants given upon those Reports after the most mature deliberation ;' And as we do not see any rea- son from any information received since the date of those Reports, to en- tertain the least doubt of what has been proposed in respect to Courts of Judicature, except only as to the establishment of Circuit Courts, and to the nature of Juries to be impanelled in Special criminal Cases, we submit, whether any thing further is necessary as to this institution, than to send over to the Governor the Report of this Board on the second of September 1765, and the Report thereupon of His Majesty's Attorney and Solicitor General on the twenty fourth of April 1767,^ together with the draught of additional Instructions,' which was prepared in consequence thereof; with directions to recommend to the Legislature there a proper Law or Laws for establishing Courts of Judicature, and for regulating their pro- ceedings upon the plan and principles laid down in the said Reports, and draught of additional Instructions;* excepting only, that, instead of the Circuit Courts of Assize, Nisi Prius, Oyer and Terminer, and Goal delivery therein recommended, they should follow the model of the circuit Courts of grand Session held for the Principality of Wales, as being a shorter and more comprehensive mode of proceeding; And instead of the exception in the sixth Article of that draught of Instructions, which follows immediately after the direction for the impanelling Canadian Subjects on Juries indis- criminately with the natural-born Subjects,^ such their admission should be allowed with a proviso, that all criminal Offences should be tried by Juries de Medietate, composed equally of natural born Subjects and Canadians, excepting only in Cases where a natural born subject or a Canadian stands charged with the Wilful Murder of one of the same description, in which cases the Jury to be of the same description with the person to be tried for such Offence.
The regulations and reform necessary in respect to Ecclesiastical Affairs is a consideration, that requires to be more particularly discussed: for, although the Report of the Board of Trade upon this Subject in 1765*,
> Referring to the Report of the Board of Trade of 2nd Sept., 1765, and the Report of Yorke and de Grey upon it. See pp. 247 and 251.
' This is an error, as the report is dated 14th April, 1766. See p. 257. 'See p. 286 and note 1, same page.
* See ordinance of July 1st, 1766, p. 249.
' As enacted in the ordinance of July 1st, 1766. See p. 249.
* Referring to the "Heads of a Plan, &c.. as indicated in note 3, p. 377
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is very full and explicit, as to the measures which ought in justice and good policy to be adopted for such a reform of the Religion of the Church of Rome, as may leave the exercise of it upon the ground of that toleration meant by the Treaty of Paris; yet, as it does not point out, in what manner the dif- ferent propositions are to be carried into execution it certainly leaves room for the observation of His Majesty's Advocate, Attorney and Solicitor General in their Report upon it, that many of the propositions have refer- ence to Matters of Property, and to Rights, which cannot be altered or reformed by the sole authority of the Crown.
As this opinion of the learned Gentlemen confirms us in those ideas we have at all times entertained on this Subject, we shall beg leave to recite the several propositions, distinguishing such, as will, we conceive, require to be established by legislative authority, from those that may be carried into execution by Instructions from His Majesty to His Governor; and making such additions to, and alterations in the several Articles contained in the afore-mentioned Report of this Board, as more mature consideration and further information have pointed out to us.
The propositions in the Report of this Board,' which appear to require the interposition of the legislative authority, are principally those, that recommend either the immediate abolition, or gradual reform of the several Religious Communities, which not being, as we conceive, in general neces- sary to a free exercise of the Religion of the Church of Rome, as meant to be tolerated by the Treaty of Paris, are institutions of such a nature and ten- dency, as ought not to be allowed in a British Colony.
It is true indeed, that by the terms of the Capitulation, on which Can- ada surrendered to His Majesty's Arms, several of the ReHgious Communi- ties were to be preserved entire; but we beg leave to observe, that this Capitulation can be considered in no other light, than as a temporary agree- ment between Officers on the one side and the other, submitted to the final decision of the Sovereigns of the contracting parties, who have, by Solemn Treaty, finally fixed, what shall be the condition, in respect to matters of Religion, of those Inhabitants of Canada, who by this Treaty became British Subjects; and therefore the Capitulation is now, we apprehend, out of the question, and the whole depends upon the fourth Article of the Treaty of Paris, which contains nothing more in respect to the Religion of the Church of Rome, than barely a free exercise of it by the new Subjects, so far as the Laws of England permit.
Under these circumstances we are of Opinion, that it ought to be recom- mended to the Legislature of Quebec to pass a proper Law or Laws for the reform of the several Religious Communities in the following manner, That is to say, • j
First, That the Community of the Jesuits be entirely abolished; and all their Lands and Property of every kind, personal Property only excepted,
' Referring to the "Heads of a Plan for the Establishment of Ecclesiastical Affairs in the Province of Quebec," various clauses of which are passed in review.
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vested in His Majesty, His Heirs and Successors, to be applied to such public uses, as shall from time to time be thought best for the interest and advan- tage of the Colony, reserving to the present members of that community respectively during their Lives such pension, as shall be equal to the share each personally now receives of that Revenue.
Secondly, That the Chapter of Quebec, consisting of a Dean and twelve Canons, be also abolished.
Thirdly, That the office of Provincial Commissary of the Recollects \ be also abolished; and that Community not allowed to admit any new Fathers, or Brethren; and that their Revenues be vested in His Majesty, His Heirs and Successors, for the public uses of the Colony, in such sort, that it shall be applicable by the Crown to such uses, in proportion as the present members die, or are presented to Vacant Cures ; so that, when the whole community shall by such events be dissolved, their Lands and Tene- ments will become a Fund in the hands of the Crown for the purposes aforesaid.
Fourthly, That the Seminaries of Quebec and Montreal be consolidated at Quebec under one Superior, in order to provide a succession of Pastors to the several Parishes; but that the members, admitted in order to become Priests, be limited to a certain number; and that the Revenues be vested in His Majesty, His Heirs and successors, to be applied as the Crown shall think fit for the support of such Seminary, and for other public uses within the Colony.
Fifthly, That no new Professions, Engagements, or Admissions be l allowed in the convents or Religious Communities of Women; and that their Revenues, as they decrease in number, be in like manner vested in His Majesty, His Heirs and Successors, for the public uses of the Colony.
This, My Lords, is, we humbly conceive, the only reform in respect to Ecclesiastical Establishments in the Colony of Quebec, necessary to be provided for, and carried into execution by Legislative Authority, as affecting rights and property, which, as His Majesty's Law-Servants justly observe, are not subject to the controul of the single Authority of the Crown.
As to His Majesty's Supremacy in Ecclesiastical Cases, in absolute exclusion of all foreign power or jurisdiction whatever, it is, we humbly apprehend, a Right, and Prerogative, which, by the principles of this Govern- ment, as by Law declared, is inherent in, and inseparable from the Crown in all parts of the British Dominions; and therefore is already a part of the Constitution of this Colony : it may not however be improper, in order to remove all doubts or mistakes in a matter of so much importance, to refer to it as such in the preamble of the Law, that shall be passed for the reform above-mentioned; which will, we apprehend, be a very sufficient, and not an improper promulgation to His Majesty's New subjects of this fundamental part of the constitution of that Government, to which they are now become subject, and will be a full and sufficient warning to them
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of the illegality and inadmissibility as well of any appeals to any foreign Church, Tribunal, or Jurisdiction, as of any order or regulation whatever in Ecclesiastical Matters, other than such as proceed immediately from His Majesty, or from those acting under His Royal Authority.
We shall, My Lords, proceed in the next place to state to your Lord- ships such propositions, respecting the toleration of the Religion of the Church of Rome in Quebec, in consequence of the fourth Article of the Treaty of Paris, as appear to us essential to the execution of that Treaty, conformable to its just sense and spirit.
Upon this occasion we have the satisfaction to find it declared in the Report of His Majesty's Law servants, annexed to your Lordships order of reference, that, as the several Acts of Parliament which impose disabilities and penalties upon the public exercise of the Roman Catholic Religion, do not extend to Canada,^ His Majesty is bound by no ties or constitutional necessity to prohibit the profession of this Worship there; and that as His Majesty is not bound to prohibit. He is at liberty to tolerate such Worship, so far, and in such form as not to impeach or violate His Royal Supremacy.
Upon the ground of this opinion, and upon what is further set forth in their Report upon the plan for regulating Ecclesiastical Affairs in the Colony of Quebec Submitted by this Board in 1765,^ we do not hesitate to propose to your Lordships,
First, That, as being necessary to the due execution of the Treaty of Paris, a proper person be licensed by His Majesty, during Pleasure, to Superintend the affairs of the Romish Church; but it will be essential to the legality of such appointment, that the powers should be so limited and circumscribed, as that it may not violate or impeach His Majesty's Supremacy in all causes, as well Ecclesiastical as Civil, which, as we have before observed, is inseparably inherent in the Crown; or have the effect in any manner whatever to obstruct His Majesty's Service, or the due course of Law.
Secondly, That to this end the conduct of the Superintendant in the execution of this Office should be governed by the following limitations and restrictions, to be prescribed by Instruction to the Governor, that is to say.
Thirdly, That such Superintendant shall not take upon him any out- ward Pomp or Parade incident to the dignity of Episcopacy in Roman Catholic Countries; nor take upon himself, nor appoint others to take cognizance of any matters of a civil, criminal, or ecclesiastical nature, except in such cases, as respect the conduct of the inferior Clergy in religious Matters; and in those cases, not to exercise any authority or Jurisdiction without the consent and approbation of the Governor; nor is the said Superintendant to use any other powers than such as the Governor and
' See Repoit of Norton and de Grey, p. 236.
' Referring to the "Heads of a Plan, &c.," already cited.
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Council shall think absolutely necessary to the exercise of the Roman Catholic Religion by His Majesty's new Subjects.
Fourthly, That the said Superintendant ehall not make any new Regu- lations in respect to Ecclesiastical Affairs, other than such as shall be neces- sary for the purposes aforesaid ; nor shall any regulations whatever be made or established with respect to the Romish Church, or any persons appointed to Ecclesiastical Benefices in the Romish Church within the said Province of Quebec, without the consent and license of the Governor or commander in Chief; nor shall he allow of any public processions, or other ceremonies of Pomp or Parade; but shall take care, that the Rites of the Church of Rome be in all cases observed with such moderation and simplicity, as to avoid all occasion of offence or dispute between His Majesty's Protestant and Roman Catholic Subjects.
Fifthly, That the said person, so licenced, as aforesaid, to superintend the affairs of the Romish Church, shall, before he enters upon the exercise of any of the functions incident to his Superintendancy, take an Oath of Allegiance and Fidelity to His Majesty; which Oath shall be taken before the Governor sitting in Council, and entered upon Record in the Council Books.
Sixthly, That if the said person, so licenced to superintend the affairs of the Romish Church, shall in any respect act contrary to the foregoing regulations and restrictions, or shall otherwise misbehave himself, to the danger, Scandal or reproach of His Majesty's Government, the Governor or Commander in Chief shall have power to suspend him from the exercise of his said Superintendancy, transmitting his reasons for so doing to His Majesty by one of His Majesty's principal Secretaries of State.
As to the provision necessary to be made for the support and main- tenance of the person, so licenced, as aforesaid, to superintend the affairs of the Romish Church, it is proposed, that he be admitted Superiour of the Seminary of Quebec, to be tolerated in manner hereinbefore mentioned, and have such Stipend or appointment, as His Majesty shall think proper out of the Revenues of that Seminary.
These propositions, together with what are before suggested in respect to the Religious Communities, contain every thing we have to submit respecting Ecclesiastical Affairs in Quebec; And your Lorships will observe, that they have for their objects.
First, Such a reform of the several Religious Communities, as can be made without prejudice to that free exercise of the Religion of the Church of Rome, Stipulated by the Treaty of Paris.
Secondly, By vesting the Estates and Property of those Communities in the Crown, to establish a Fund, out of which the Crown will be enabled to make a better provision for the support of a Protestant Ministry; and
Thirdly, To give such toleration to the free exercise of the Roman Catholic Religion by a Parochial Clergy under the Superintendancy of a
CONSTITUTIONAL DOCUMENTS 391
SESSIONAL PAPER No. 18
person licenced for that purpose by the Crown, as consists with the Spirit and intention of the Treaty of Paris.
We are sensible, My Lords, that the regulations we have suggested, when compared with these objects, may be found in the execution to require some further addition; but we shall think we have not altogether failed in our wishes to comply with your Lordships direction, if what we have suggested shall lay the foundation of such Measures, as your Lordships superior Wisdom and experience shall enable you to recommend in a Matter, which we again beg leave to repeat is of the greatest importance, and which will not in our opinion safely admit of any longer delay.*
*******
It would, My Lords, have been a great Satisfaction to us, in making our Report to your Lordships upon the several matters contained in your Order of Reference, to have been able to have reduced, what we had to offer into a narrower compass; but although we have, with this view, taken the liberty to refer your Lordships to former Reports upon the affairs of Quebec, in cases where we saw no reason to deviate from the Opinion or Propositions contained therein, yet the necessity of being explicit on every particular point, not as yet discussed, and to which your Lordships Order refers, has made it impossible for us to avoid taking up more of your Lord- ship's Time, than we otherwise wished to have done ; and when your Lord- ships reflect upon the importance of the subject, and consider how much depends lipon a speedy Determination on the measures we have now proposed, we trust we shall stand justified in our endeavors to state our opinion in the fullest manner, and to lay before you every circumstance necessary for your information; and if from what we have offered it shall appear to your Lordships, as it does to us, that the form of Government, if it can be so called, at present existing in Quebec, does not correspond with what was intended in the Establishment of it, and is in no respect competent to it's wants and necessities, but on the contrary productive of the greatest Inconveniences; That the doubts and apprehensions enter- tained by His Majesty's new subjects ought to be removed, and that it is neither just nor reasonable, that the expence of the Establishments in Quebec should any longer continue a Burthen on this country, we trust your Lordships will agree with us in opinion, that it is high time some steps were taken towards a necessary reform, in a case of so great Importance, as to affect not only the security of this Colony, but with it, that of all His Majesty's other Dominions in America.
Whether what we have suggested proposes such remedy as is adequate to the Evil, must be submitted to your Lordships; but we should not do justice to our own Sentiments, if we did not observe, that they are founded on the fullest Information; guided in those parts, that include great con-
' Here follows the section of the Report dealing with the problem of the provincial revenue and its administration. As this has but little bearing on the constitutional development of the Province, it is omitted.
392 CANADIAN ARCHIVES
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stitutional Questions, by the opinions of the ablest Lawyers in this Kingdom, and concurred in, not only by those, whose Offices and Residence in the Colony have afiforded them the means of being fully acquainted with it's true Interest and condition, but as also of such respectable Persons both in the Church and in the Revenue Department in this Kingdom, who are by their Offices Members of this Board, and who have assisted us with their advice on this occasion.
At the same Time that we state this to your Lordships, in order to shew that no information necessary in this important consideration is wanting; and that the subject matter has undergone the most mature examination, it is our Duty to lay before your Lordships a Letter to the Secretary of State from His Majesty's Governor of Quebec,' received pending the consideration of this Business.
From the Copy of this Letter hereunto annexed your Lordships will observe, that the Governor States, that some Progress has been made towards a Report upon the Laws, and Administration of Justice, pursuant to His Majesty's Order in Council of the 28* of August 1767; That he considers this as the ground work of every other Regulation, and therefore waves giving his Ideas upon the Subject of Religion, and other matters, until that is entirely settled, which he says will be soon, and desires His Majesty's permission to return to England, as well upon his private Affairs, as in order to explain many points relative to that Colony; and represents, that by being upon the spot he should be able to clear up many things, and remove many difficulties, which at that distance can neither be so thoroughly discussed, or perfectly understood, as is necessary for the King's Service.
What influence this Letter is to have in your Lordships determination with regard to what is submitted to you in this Report must depend upon your Lordships wisdom weighing all circumstances; but in the light in which we view the state of this Colony, exposed, as we conceive, to great danger, and suffering many Inconveniencies for want of some more perfect Settle- ment, we cannot but be of opinion, that however satisfactory it might be to receive Governor Carleton's Sentiments upon many points, relative to the propositions in question; yet the danger and disadvantage of any further delay is too obvious to allow us to consider his Letter, as a justifica-
' See appendix No. 18. This letter is dated March ISth, 1769, and is given in Canadian Archives, Q 6, p. 34. The portion referred to is as follows: — "There would be much to say in Regard to the Affairs of Religion in this Province, but that being a delicate and tender Point, I do not design troubling Your Lordship with my Ideas thereupon until that of the Laws and Administrations of Justice, which I consider as the Ground work of the whole, is entirely settled, in which we have made some Progress in Obedience to His Majesty's Order in Council of the 28"" August 1767; I hope "eer long our Report thereon will be finished, when the same shall be transmitted to Your Lordship without Loss of Time.
"For the clearer Explanation of these, and many other Points, relative to this Province, as well as to settle some private Affairs, I wish to go Home for a few Months, •*••••
"By being upon the Spot with the King's Servants, I might clear up to them many Points, and remove many Difficulties, which, at this Distance, can neither be so thoroughly discussed, or perfectly understood, as is necessary for the King's Service, whose Interests, in Regard to the Province, I really believe, I could more effectually promote and advance by a Residence of a few Months in London, than of so many years in this Country, * • "' Q 6, pp. 37-38.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
393
tion for our not recommending to your Lordship's to take some immediate Steps towards that reform which the state of the Colony requires; and there- fore we humbly offer it as our opinion, that your Lordships, if you approve of the propositions we have suggested, should advise His Majesty to give the necessary Instructions for carrying them into execution; but we would recommend, that a discretionary power should be given to the Governor to defer any part of them, the execution of which he and the rest of His Majesty's Servants there shall think ought to be deferred, for such further examination, as may be necesssary upon any Representation they may have to make; and we beg leave further to observe, that it is with a view to the exercise of this discretionary Power, and upon a Consideration of the Governor's Letter, that we have stated our propositions more at large, than we should otherwise have done, and have avoided any detail, that might have embarrassed the execution, in cases where he might wish to be left to the Guidance of his own Judgement.
We are. My Lords, Your Lordship's Most obedient and
Most humble Servants,
Whitehall
July lO"" 1769.
HILLSBOROUGH,
SOAME JENYNS,
JOHN ROBERTS,
ED. ELIOT,
W» FITZHERBERT,
THOMAS ROBINSON,
LISBURNE.
Ex<».
1769. June I0«».
QUEBEC.
APPENDIX.
N" L Extract of a Letter from Guy Carleton Esquire, Lieu'. Gov', of .Quebec to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated November 25"' 1767.'
' See Carleton to Shelburne, p. 281.
394 CANADIAN ARCHIVES
6-7 EDWARD VII., 1907
N" 2. General State of the Canadian Noblesse actually resident in the Province of Quebec or in the French Service, and where resident in November 1767.1
N" 3. Copy of a Letter from Guy Carleton Esquire, Lieutenant Gover- nor of Quebec, to the Earl of Shelburne, one of His Majesty's principal Secretaries of State, dated December 24*'' 1767.^
N° 4. Plan of An Ordinance for continuing and confirming the Laws and Customs, that prevailed in this Province in the Time of the French Government concerning the Tenure, Inheritance and Alienation of Lands.*
N° 5. Extract of a Letter from Guy Carleton Esquire, Lieutenant Governor of Quebec, to the Earl of Shelburne, one of His Majesty's prin- cipal Secretaries of State, dated January 20"^ 1768.*
N" 6. Copy of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated May 30"» 1765, in- closing.
Heads of a Plan for the establishment of Ecclesiastical Affairs in the Province of Quebec*
N° 7. Extract of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated September 2^ 1765.'
N° 8. Copy of a Report of His Majesty's Attorney and Solicitor General to the Lords of the Committee of Council for Plantation Affairs, dated April U*" 1766.^
N° 9. Copy of a Report of the Lords of Trade to the Lords of the Committee of Council for Plantation Affairs, dated June 24"" 1766, in- closing,
Draught of Additional Instructions to the Governor of Quebec, rela- tive to the establishment of Courts of Judicature in that Province.*
N° 10. Copy of a Report of His Majesty's Advocate, Attorney and Solicitor General, to the Lords of the Committee of Council for Planta- tion Affairs, dated January 18"' 1768.»
N° 11. Copy of a Letter from Guy Carleton Esquire Lieutenant Governor of Quebec, to the Earl of Shelburne, one of His Majesty's prin- cipal Secretaries of State, dated December 10*'', 1767.""
' Canadian Archives, Q5-1, p. 269. This is printed in full in Report on Canadian Archives for 1888, p. 44.
^ See Carleton to Shelburne, p. 288.
' See Draught of Ordinance re French Land Tenures, p. 292.
< See Carleton to Shelburne, p. 294.
' Canadian Archives, Q 18 A, p. 88.
• Canadian Archives, Q 18 A, p. 131.
' See Report of Yorke and de Grey, p. 251.
» No immediate action was taken or this Report on the Instructions accompanying it, for reasons given in the Resolution of Privy Council of Aug. 28th 1767. See p. 286.
» This document has not as yet been discovered.
"> This and the following documents, except the last, are connected with questions of revenue, and relate to that portion of the Report which is omitted. This particular letter will be found in Canadian Archives, Q 5-1, p. 299.
CONSTITUTIONAL DOCUMENTS 395
SESSIONAL PAPER No. 18
N° 12. Copy of a Letter from Lieutenant Governor Carleton to Grey Cooper Esquire, Secretary to the Lords Commissioners of His Majesty's Treasury, dated December lO"*, 1767.'
N° 13. Officers proposed for the collection of the Provincial Duties at Quebec, and Salaries.^
N" 14. Provincial Duties for the Province of Quebec on Imports.'
N° 15. Copy of an Account of the Civil Establishment of the Province of Quebec for one Year.*
N° 16. Copy of an Estimate of the contingent and incidental charges of the Civil Establishment for the Province of Quebec for one Year.*
N" 17. Copy of an Abstract of the Imports at the Port of Quebec of certain Articles, on which Duties are proposed to be raised, for the years 1765, 1766 and 1767 — ^And Estimate of the annual Revenue calculated from the said Importation.*
N° 18. Copy of a Letter from Guy Carleton Esquire Governor of the Province of Quebec, to the Earl of Hillsborough, one of His Majesty's principal Secretaries of State, dated March 15"' 1769.'
REPORT OF COMMITTEE OF COUNCIL ON ADMINIS- TRATION OF LAW BY JUSTICES OF THE PEACE.'
At the Council Chamber in the Castle of Saint Louis in the City of Quebec on Thursday the fourteenth day of September 1769.
Present.
His Excellency Guy Carleton, Governor The Honble William Hay. C.J
H. T. Cramah6
Thomas Dunn [ Esquires.
Walter Murray
Colin Drummond
Juhf^'^'^' Read the Report of the Committee dated the 29"' August
Committee and 11"' instant. Appointed the 18"' of August last to take into ministration Consideration the present State of the Administration of Justice the Tustfces^ ^V ^^^ Justices of the Peace within this Province
of Peace;
' Canadian Archives, Q 5-1, p. 300.
' Canadian Archives, Q S-1, p. 310.
' Canadian Archives, Q 5-1, p. 306.
' Canadian Archives, Q 5-1. p. 308.
'Canadian Archives, Q 5-1, p. 311.
• Canadian Archives, Q 5-1, p. 312.
' Canadian Archives, Q 6, p. 34. The parts referred to in the Report are given in note p. 392.
' Canadian Archives, Q 6, p. 146. Owing to complaints which had reached the Council as to the practices of some of the Magistrates of the District of Montreal, the Council took up the matter and addressed to all the Magistrates of that District a letter of remonstrance and advice. This was dated July 10th 1769, and is given in Q 6. p. 134. The present report covers the same ground and upon it was based the Ordinance of February 1st, 1770, which follows this report.
396 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Bo^d**^ Approved and Ordered to be Entered in this Book, and that
pro\jd and the Attorney General be directed to prepare an Ordinance in
General Consequence of the New Regulations proposed to be made by the
directed to
prepare an
Ordinance in
Consequence
thereof:
said Report.
"Quebec, 29* August &
"11"' September 1769.
The Report "^^ ^ Committee Appointed to take into Consideration the
"State of the Administration of Justice under the Justices of "Peace in this Province.
"Present "The Honble William Hey, President
"H. T. Cramah6 1
"Thomas Dunn > Esquires.
"Colin DrummondJ
"Who agreed upon the following Report "In obedience to an order of Council bearing date the 18"" day of August last. We have taken into our consideration the several Matters therein referred, in consequence of which we beg leave to represent to Your Excellency and the Council, that the several Authorities & powers of the Justices of Peace in Matters of property as contained in the Ordinance of September 1764.* Appear to us to have been very injudicious in their Original Institution, and in the exercise of them, more particularly within the District of Montreal exceedingly grievous and oppres- sive to the Subject. It is well known that in England, where the Justices of Peace are for the most part Men of large Fortunes, who have a Considerable interest in Common with the people over whom their Authority is exercised, no such power is en- trusted to them either by the Commission itself, or any of the Various Acts of Parliament which relate to their OfiSce : And tho the ill Advised construction of the great Courts established here
' At this time Francis Maseres, Jbeing desirous of returning to Britain, was granted, by Governor Carleton, a year's leave of absence. The Governor explained the circumstances in a letter to Hillsborough, of Oct. 3rd, 1769, and in which the lack of harmony between Carleton and Maseres is fully evidenced. At the close of the letter Carleton states that Henry Kneller had been appointed to act as Attorney General in the interim; hence upon Kneller fell the duty of draughting the new ordinance.
« The Ordinance of September 17th, 1764. See p. 205.
CONSTITUTIONAL DOCUMENTS 397
SESSIONAL PAPER No. 18
for the determination of property in the year 1764 Confined Originally in their Session to two Terms in the year and only now enlarged to three, might have made it necessary to Create Smaller Jurisdictions in order to conform in some Measure to the Ancient practice of the Colony, and to give a freer and quicker Circulation to the Course of Justice, yet we apprehend that even under those circumstances, the Authority given to the Justices hath been both too largely and too confidently entrusted, and requires to be retrenched, if not wholly taken away in almost every Instance.
But that is not all ; what is still more unfortunate ; we find even those powers large as they are, to have been in some in- stances extended, and a Jurisdiction usurped to the great pre- judice of the parties whose property has been the Subject of it, without any right (as we conceive) to interpose in such Matters, as derived from that Ordinance, or any other Authority that has yet come to our knowledge: for, by the ill penning of that Or- dinance, and for want of a Clause which should have expressly forbid them to intermeddle in those Matters, the Justices of Montreal have to our knowledge in one Instance, and probably in many others which have passed without notice, assumed to themselves powers of a Nature not fit to be exercised by any Summary Jurisdiction whatsoever in consequence of which Titles to Land have been determined & possessions disturbed in a way unknown to the Laws of England and inconsistent with the Solem- nity and Deliberation which is due to Matters of so high and important a Nature. And we are not without Information, that even in cases where personal property only has been in dispute. One Magistrate in particular under pretence that it was at the desire & request of both the contending parties, has by himself exercised a Jurisdiction Considerably beyond what the Ordinance has allowed even to three Justices in full Court at their Quarter Sessions.
From an Omission of a Similar nature and for want of as- certaining the manner in which their Judgements were to be enforced, we find the Magistrates to have assumed another very high and dangerous Authority, in the exercise of which the Goals are constantly filled with numbers of unhappy Objects, and whole families reduced to beggary and ruin. It being a Common practice and the usual Method of their process to take Lands in' Execution and order them to be sold for the payment of ever so small a debt, or in case there are no Lands to satisfy the debt to commit the party to prison the sad Consequences whereof, and wretched Servitude to which a people are reduced whose persons and property are thus exposed, we believe we *
398 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
not enlarge upon further, then to observe that the rapid Sale of Estates under Judgements out of the Common Pleas, or even the Supreme Court itself seems to be within the same Mischief and to require some effectual tho' perhaps a different remedy.
If any thing could yet be wanting to Compleat the Misery of such a People it would be the consideration that those powers Originally calculated for the ease of the Suitor and to facilitate the course of Justice should become the very Instrument of his Oppression and ruin, and instead of affording a Cheap and ex- peditious remedy for the recovery of small Debts should either direct or Connive at such a Complicated and expensive Mode of Process, as (if we may collect from one instance where the Expence of suing for a debt of Eleven Livres Amounted to Eighty four) must either deter the Creditor from pursuing a Just tho small debt, or, ruin himself or his adversary and perhaps both in the pursuit of it, which will probably always be the case where the Office of a Justice of Peace is considered as a Lucrative one and must infallibly be so where it is his principal if not only dependence.
In Justice, however, to the Magistrates of this District we ought to Declare that these Observations are not designed to extend to them.
For these and many other reasons which we are tender of enlarging upon, we conceive it to be high time to put a Stop to this unequal. Wasteful and Oppressive mode of administering Justice. And to Substitute some other in its place, more conformable to the System which formerly prevailed here, and less liable to the " Objections which so manifestly Accompany this both in its Institution & Practice.
And for that purpose we recommend it to Your Excellency in the first place to appoint an other Judge for the Court of Com- mon Pleas at Montreal and as a Compensation for the Extra- ordinary duty which will be required that their Salaries may be made £200 p. an"
And 2'''5' that an Ordinance should be immediately prepared which after setting forth in a Preamble some or all of the Griev- ances here mentioned. And the good Disposition in Government to attend to and redress the Injuries Complained of by the Sub- ject as soon as they are made known to them, should abrogate and annul! all that part of the Ordinance of 1764 which gives Authority to the Justices of Peace to determine Matters of Civil property in any shape or manner whatsoever, and expressly define their power to be barely such as the Commission itself Warrants and the Ordinances of this Province (except that of September 1764) has entrusted to them.
i
CONSTITUTIONAL DOCUMENTS 399
SESSIONAL PAPER No. 18
It should then after reciting the reasons, namely to prevent a failure of Justice And to supply a Quick and Competent Juris- diction in Matters of small Value not at present Cognizable in either of the great Courts, give the Court of Common Pleas a Jurisdiction, which at present it has not, to hold plea in all Matters however trifling the demand may be and direct that both Courts should sit in Quebec and Montreal once in every week, (seed and Harvest time and a fortnight at Easter & Christ- mas excepted) thro'out the year. But that for all Matters under the sum of Ten pounds, one Judge only need be present.
In the latter case their Process should be by summons. And in all Executions where the debt and Costs does not Amount to Ten pounds Halifax Currency no Capias ad satisfaciendum to Arrest or detain the body should issue but a fieri facias against the Goods and Chattels only (with an Express exception to Beasts of the Plow) unless the Party chuses that his Land should be sold, in which case he should sign upon the back of the Pro- cess his Consent and request for that purpose. It might not be amiss too to give the Judges a power to levy the debt where it was under Ten pounds by instalments, for it often happens that a Debtor is exceedingly distressed to pay tho' but a Moderate Sum and upon the instant of demand which yet by his Industry or by some event near taking place but which he Cannot antici- pate, he might pay with ease to himself at given times. — Upon an Affidavit of this Sort We think they be allowed to mark upon the Writ to be levied by Instalments 20 Sh' on such a day. 20. at such other And the remainder at such other.
But these times ought to have some Limitation and perhaps should not exceed 3 Months for the last payment.
If the Judge has reason to suspect that the party secretes his Effects or has disposed of them after the Commencement of the suit in order to avoid their being taken in Execution, he should be at Liberty to issue Process against the Lands immedi- ately, and for want of them to commit to prison till the Debt is satisfied. — ^The truth of which should be examined upon Affi- davits. In all other matters, where the debt or Demand is above the Value of 10 pounds they should proceed as usual except that where Lands are taken in Execution, they should be made subject to the debt or demand immediately from the day of the date of the Writ, and avoid all Subsequent Sales and Mortgages or any other disposition or Incumbrance of them, but not absolutely sold for six Months, after Several Publications in the Gazette, and Notice affixed at the Church door of the Parish in which the Lands lye and other Neighbouring Parishes. — nor should the sale even then be good 'till a Report was made to one of the Judges
400 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
of the Court of the quantity and produce and Condition of the Lands with the Amount of the Purchase Money and the Sale Confirmed by him.
It is difficult if not impossible exactly to ascertain the Quantum of Expence in recovering these small Debts, but we recommend it to the Gentlemen who preside in these Courts to reduce it as much as possible, and we have no doubt but they will give a proper attention to a matter so interesting to the Honour of the Crown and the Convenience and ease of the Subject. —
The Administration of Justice in causes of small Conse- quence we apprehend will be tolerably well provided for in the Towns of Quebec and Montreal upon this Establishment more especially if there be added (as perhaps may be necessary at least Convenient,) One Officer of Justice in each, who might decide in all Causes to the value of Fifty Shillings Current Money and enforce his decision by distress and Sale of the Defend" goods only.
These Officers to be Appointed by your Excellency, by Special Commission independant of the General Commission of the Peace (tho' it would be adviseable for them to have both, in the Nature of the Intendants Subdelequis they may perhaps be well appointed by Virtue of the Powers given to Your Excellency in your Commission, but we rather recommend it to be done by an Ordinance.
And You should be impowered to Appoint more of these Offi- cers in different parts of the Province as the Circumstances and Situation of things may require, and as in your discretion, they may appear to be necessary whose Jurisdiction might be at least equal to what was given to a single Magistrate under the Ordin- ance of Septem' 1764.
These are the observations that have Occurred to us upon this Subject: We believe the regulations here proposed will be found to be Salutary, and meet the Grievances at present so loudly and so Justly complained of, And we Accordingly recom- mend them to be immediately Carried into Execution.
One observation however has escaped us, which we beg leave to add, with Regard to the'Assize of Bread which by an Ordinance of this Province bearing date 3"* of September 1764,' is directed to be regulated by 3 Justices of the Peace ; And tho this Juris- diction will still be preserved to the Justices, yet we are apprehen- sive that they will be indisposed to exercise it, if they should
' "An Ordinance, Relating to the Assize of Bread, and for ascertaining tlie Standard of Weight and Measures in the Province of Quebec." Sept. 3rd, 1764. See "Ordinances made for the Province of Quebec, &c." Que. 1767.
CONSTITUTIONAL DOCUMENTS 401
SESSIONAL PAPER No. 18
resent the Deminution of their Authority which the Regulations we have proposed are designed to make. — ^That Authority there- fore very usefull and necessary to the publick should be trans- ferred in case of their neglect to the two Judges of the Common Pleas, and the Justice who has a Commission in small Matters in the way that we have recommended, (signed) "W. Hey. P"
AN ORDINANCE FOR THE MORE EFFECTUAL AD- MINISTRATION OF JUSTICE, AND FOR REG- .^ O ULATING THE COURTS OF LAW IN l'^
THIS PROVINCE.!
Preamble. Whereas it has been found by Experience, that the several
Provisions contained in an Ordinance, bearing Date the Seven- teenth Day of September One thousand, seven hundred and Sixty four, and intituled, amongst other Things, "An Ordinance for regulating and establishing the Courts of Judicature," by virtue of which certain Powers and Authorities are given to the Justices of the Peace for this Province, as well separately as collectively, to hear and determine in matters of private Property between Party and Party, instead of answering the good purposes for which they were ordained, have become an intolerable Burthen to the Subject, and proved the means of great Disquiet, Vexation, and Oppression. fhe*jS"ticef ^t 's therefore Ordained and declared, by His Excellency
•^Matters of the Captain General, and Governor in Chief of this Province, perty taken by and with the Advice and Consent of the Council of the away, same. That from and after the day of the Date of the Publication
of this Ordinance, all Jurisdiction, Power, and Authority in Matters of Private Property, belonging to or exercised by any Justice or Justices of the Peace for this Province, or any District, Part, or Member of the same, except Such as have already procured, or hereafter may procure a Special Commission for that Purpose, under the Hand and Seal of the Governor, or Commander in Chief for the Time being, shall be clearly annulled ,
' Canadian Archives, Q 62, p. 528. As indicated above (note 1 p. 396) acting Attorney General Kneller was required to draught an Ordinance based upon the Report of the Council on the subject of the administration of Law by the Justices of the Peace. This draught was read in Council. Jan. 10th, 1770, and referred to a committee consisting of H. T. Cramahe, Thos. Dunii, and Colin Drummond. On the 1st of February the committee reported the draught, with certain amendments,, and the ordinance as amended was approved and adopted, and ordered to be translated into French. On February 14th the translation was read, and the ordinance and translation were ordered to be published in the Gazette. The ordinance when published gave great offense ot the Magistrates in the District of Montreal, who under the leadership of Charles Grant, a member of one of the leading British mercantile houses engaged in the Canadian trade, prepared a memorial in remonstrance. See Q 7, p. 95. This, Carleton in forwarding, attempts to answer. See Q 7, p. 89. Among other protests entered was one by a French Magistrate. Pierre de Calvet, under the title, "Observations sur I'Ordonnance du 1" fevrier dernier." See Q 7, p. 274.
402
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Clauses in the Ordinance of September 1764, repeal- ed;
Sudfas'have taken away, and determined ; and that from and after the day
a Special of the Date of the Publication, aforesaid no Justice or Justices
for that Pur- of the Peace, except as before excepted, shall have any Power
^^' or Authority to hear, examine or determine any Matter of Private
Property between Party and Party, or to make, pronounce, or
deliver any Judgment, Sentence, Order, and Decree, or to do any
Judicial Act whatsoever touching the same.
And it is further Ordained and declared by the Authority aforesaid. That from and after the Day of the Date of the Publication aforesaid, the following Clauses or Parts of an Ordinance, bearing Date the Seventeenth day of September One thousand, seven hundred and sixty-four, and intituled, amongst other Things, "An Ordinance for regulating and establishing "the Courts of Judicature" shall be repealed, and the same are hereby repealed and absolutely revoked and made void ; that is to say, "And Whereas it is thought highly necessary for the "Ease, Convenience, and Happiness of all His Majesty's loving "Subjects, that Justices of the Peace should be appointed for the "respective Districts of this Province, with Power of determining "Property of small Value in a summary way ; it is therefore "further ordained and declared by the Authority aforesaid, "and full Power is hereby given and granted to any one of His "Majesty's Justices of the Peace within their respective Districts, "to hear and finally determine in all Causes or Matters of Property, "not exceeding the Sum of Five Pounds Current Money of "Quebec ; and to any Two Justices of the Peace within their "respective Districts, to hear and finally determine, in all "Causes or Matters of Property not exceeding the Sum of Ten '.'Pounds said Currency; which Decisions being within, and not "exceeding the aforesaid Limitation, shall not be liable to an "Appeal : And also full Power is by the Authority aforesaid "given and granted to any Three of the said Justices of the "Peace to be a Quorum, with Power of holding Quarter Sessions "in their respective Districts every Three Months, and also "to hear and determine all Causes and Matter of Property which "shall be above the sum of Ten Pounds, and not exceeding "Thirty Pounds, Current Money of Quebec, with Liberty of "Appeal to either Party to the Superior Court, or Court of King's "Bench ;" and all and every other Ordinance or Ordinances, and all and every Article, Clause or Sentence, in them and every of them, by which any Jurisdiction, Power, or Authority, to hear and determine in Matters of Private Property between Party and Party, is given, limited and Appointed to any Justice or Justices of the Peace, for so much as concerneth the same, shall
and all others that give Au- thority to the Justices to determine Matters of private Pro- perty.
CONSTITUTIONAL DOCUMENTS 403
SESSIONAL PAPER No. 18
also be repealed, and the same are hereby repealed, and ab- solutely revoked and made void.
ufe^j'ustkS" And it is further ordained and Declared by the Authority forDisobe- aforesaid, That from and after the Day of the Date of the Publication aforesaid, if any Justice or Justices of the Peace, or any other Person whatsoever, shall offend or do anything contrary to the Purport, true Intent, and Meaning of this Ordinance, he or they so offending, besides being liable to answer the same in a Criminal way, Shall also forfeit and lose, unto the Party grieved by any Thing so done, his, her, or their treble Damages, which he. She, or they shall sustain and be put unto by means or Occasion of any Thing so done as aforesaid ; the same to be recovered in any of the Courts of Record in this Province, by Action of Debt, or in any other way, and Manner, according to the known and Established Practice of the Court in which such Action shall be brought, to extend°to Provided always. That nothing contained in this Ordinance,
any of the shall extend, or be construed to extend, to take away, determine.
Powers in the
Commission or abridge any of the Powers given and granted to any Justice o£ the Peace; jjj. Justices of the Peace for this Province, by Virtue of His Majesty's Commission of the Peace to them directed, or to restrain or hinder them in the exercise of any other Powers to them limited and appointed by any other Ordinance or Ordin- ances, save and except such as relate to the Administration of Justice in Matters of private Property, between Party and Party only : but such Justice or Justices of the Peace is and are hereby further authorized and required to do and execute all and every matter or Thing to him or them enjoined by Virtue of the said Commission of the Peace, and also to hear and determine all Penalties and Forfeitures arising from the Breach of any Ordin- ance or Ordinances, and to proceed therein in the same Manner as he or they would have done if this Ordinance had not been made. Judgmental- ^^ provided also, That nothing herein contained shall ready pro- 'extend, or be construed to extend to reverse, alter, or suspend any notexccuted; Judgment ot Judgments already pronounced or given by any WritofExe- Justice or Justices of the Peace, upon which no execution has cutionai- ygt been Awarded; or to supersede, vacate, alter, or suspend and not any Writ or Writs of Execution already awarded, and not yet re urne . returned ; but the said Justice or Justices of the Peace is and are hereby further authorized and required to award Execution upon such Judgments already pronounced and given, and the Provost Marshal is hereby authorized and required to enforce the same, and also to proceed upon such Writs of execution as are already
404 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
to be'^perf™- awarded and not yet returned, and to levy the Debt and Costs ted as if this and make such Return to the Justice or Justices awarding the had not been Same, as he would have done before the Publication of this '^^^^- Ordinance.
the^ciau^° ^"*^ whereas the providing an Easy, plain, and summary
for erecting a Method of Proceeding for the Recovery of small Debts, with a diction. due Regard at the same time to a Certain Degree of Solemnity and Deliberation, which ought ever to accompany the Adminis- tration of Public Justice, very much contributes to promote Industry, and to support and Encourage useful Credit :
for Sums not It is therefore ordained and declared by the Authority
exceeding £i2aforesaid, That from and after the Day of the Date of the before the Publication aforesaid, all Manner of Disputes and Differences Courts of *^ ^between Party and Party for any Sum not exceeding Twelve Common Pounds Currency of this Province, except as is hereinafter except as ' excepted, shall be heard, tried, and adjudged before the Judges excepted. oi the Courts of Common Pleas for the Time being only, who are hereby authorized and required to take Cognizance thereof, and the same to hear, adjudge and finally determine as to them shall seem just in Law and Equity, any Ordinance or Ordinances, or any Clause, Matter or Thing in them or any of them contained, to the contrary hereof in any wise notwithstanding. «ie^ciau^° And whereas some Inconveniences have arisen from the
for fbdng the present Practice of adjourning the Court of Common Pleas from Common Quebec to Montreal, and from the want of a fixed, settled, and Montreal. Established Court for the hearing and determining all matters arising within the District of Montreal, before Judges specially ap- pointed for that District, and constantly residing within the same; Common ^^ '^ further Ordained and Declared, by the Authority
Pleas at aforesaid, That from and after the Day of the Date of the constituted Publication of this Ordinance, the Court of Common Pleas, ant Court!* " heretofore held by Adjournment at different Days and Times with original in the Town of Montreal, and considered and taken to be a Part
Junsdictron, .
or Member of the Court of Common Pleas established at Quebec, shall be, and it is hereby constituted a Court of Record, with Original Jurisdiction of its own, independent of, and no wise connected with the Court of Common Pleas established at Que- bec, which Court of Common Pleas for the District of Montreal shall, for the future, be held before Judges constantly residing within the said Town of Montreal, who shall have the same Power and Authority, and the same is hereby given and granted 'ii^n^w"h[nt° *^^™ *° ^^^ a"d determine within the District of Montreal, the District and to award Execution, and to do and execute all and every Matter or Thing touching the Administration of Justice, in as full and ample a manner as is now or has at any Time been used,
CONSTITUTIONAL DOCUMENTS 405
SESSIONAL PAPER No. 18
practised, or done by the Court of Common Pleas established
at Quebec, in and for the District of Quebec. : And that from and
after the Day of the Date of the Publication aforesaid the said
in the same Court of Common Pleas in the Town of Quebec, and the said
manner as the _ *^
Court of Court of Common Pleas in the Town of Montreal, shall be taken Pleas in and adjudged to have each their separate Jurisdictions, indepen- Bi" matters ^ent of and unconnected with each other, that is to say, the said arising with- Court of Common Pleas at Quebec, in and over all matters and District of Things arising within the District of Quebec, and the Court of *^' Common Pleas at Montreal in and over all matters and Things arising within the District of Montreal, both'courte Provided always, and it is hereby further Ordained and
shall have a Declared by the Authority aforesaid, that from and after the Jurisdiction Day of the Date of the Publication aforesaid, where any Person Writs of ExI- o*" Persons, against whom Judgment shall be obtained, in either cution. of the said Courts of Common Pleas, shall not have any Lands,
Defemiant Goods, or Effects, wherewith to satisfy the said Judgment within has no Lands the Jurisdiction of that Court wherein such Judgment shall have within the' been obtained, but such Person or Persons shall have Lands, where^the Goods, or Effects, within the Jurisdiction of the other Court of Omse was Common Pleas, that then and in that Case it shall and may be lawful for the Judge or Judges of the Court of the District in which such Judgment shall have been obtained to award Execut- ion to the Provost Marshal of the District in which such Lands, &ecution Goods, or Effects shall be found, who shall, before he proceeds to awarded into do anything therein, carry the said Writ of Execution to one of District; the Judges of the Court of the District in which such Lands, Goods, or Effects shall be found, who is hereby authorized and required to endorse the same ; which Writ of Execution, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Lands, Goods, or Effects shall be found, shall tSn musf be Proceed to levy the Debt and Costs, and make Return thereof, ^de by the under his Hand and Seal, to the Judge or Judges of the Court shai, in the from whence such Writ of Execution was originally awarded ; whenceU was^"*^ such Writ of Execution, together with the Return thereof,
origiimiiy under the Hand and Seal of the Provost Marshall subscribing the awarded ; , ,
same, shall be by him conveyed, so soon after the making and
signing thereof, as conveniently may be, to the Provost Marshal of
the District from whence such Writ was originally awarded, who
is hereby authorized and required to deliver the same into the
Court of- Common Pleas from whence such Writ was originally
awarded, on the First Court Day next after the coming of the
but it need said Writ and Return into his Hands ; and the Judge or Judges
In Person, of the said Court of Common Pleas, by whom such Writ of
Execution was originally awarded, are hereby authorized and
406 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
required to receive the same ; and the same shall be as valid and effectual, to all Intents and Purposes, as if the Provost Marshal making and subscribing the same had himself been present, and delivered the same into the Court with his own Hands. M^-sh^exe- Provided nevertheless. That the Provost Marshal executing
cuting the the said Writ, and making Return thereof as aforesaid, only answerable shall be answerable as well for the Truth of the said Return, Court oi\he ^^ ^^'^ ^^Y Misbehaviour, Omission, or Neglect in the manner of ^h^'h'^'^ executing the said Writ, or making Return thereof before the awarded the Judge or Judges of the Court from whence such Writ of execution was originally awarded, and not before the Judge or Judges of the Court of the District to which he belongs : — And in case any Person or Persons against whom such Judgment as aforesaid shall be obtained, not having any Lands, Goods, or Effects within the Province, wherewith to satisfy the said Judgment, shall usually reside without the Jurisdiciion of the Court in which such Judgement shall be obtained, or being, at the Time of obtain- ing the said Judgment, resident within the same, shall alter his or their place of Residence, and withdraw his or their Person, or Per- WHts^c'" ^°"^ from the Jurisdiction of the Court in which such Judgment pias ad Satis- shall have been obtained, it shall and may be lawful for the Judge or Judges of the said Court in which such Judgment shall have been obtained, in all cases where such Writ may legally issue, to award a Writ or Writs of Capias ad Satisfaciendum to the Provost Marshal of the District in which such Person or Persons shall reside or be found, which Writ or Writs, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Person or Persons shall reside or be found, shall proceed to , . „ execute the same, and to arrest the Body or Bodies of such
and the De- , , . i /^
fendant to be Person or Persons, and him or them to convey to the Common the Gaol of° Gaol of the District in which such Person or Persons shall be the District arrested, there to remain till the Debt and Costs are paid, or
m which he ^ ^ ^
is arrested, he or they be Otherwise delivered by due Course of Law. the^aause'° ^'^^ ^" Order to avoid the Delays and Inconveniences
for keeping occasioned by the present practice of holding the said Courts
the Courts . ^ 1,, ^ .^ ^ , ^. , %. ■ , ,.
open 01 Common Pleas at certam fixed Times and Periods, according
the°yei°"' ^° ^^^ Directions of the aforesaid Ordinance of September One thousand, seven hundred and sixty-four, and to the Intent that the Judges of the said Courts may be enabled to give more speedy and effectual Relief in all Cases, as well where the matter or Thing in Demand shall exceed the Sum of Twelve Pounds, and where it falls short of or is equal to it ; it is further Ordained and Declared by the Authority aforesaid — ^That from and after the Day of the Date of the Publication of this Ordinance, the said Courts of Common Pleas, as well at Quebec, as at Montreal,
CONSTITUTIONAL DOCUMENTS 407
SESSIONAL PAPER No. 18 S?"?^ I? ^'' shall be constantly open to the Suitor, and they are hereby
all the Year. ' "^ „ •
required to be kept open at all times throughout the Year, except Sun- except on Sundays, and at Seed time, a Month at Harvest, and
days, and *^ i, . , r^ , , . .
other times a Fortnight at Christmas and h-aster, and except during such o acation, y^^^^^^^ ^g gj,^jj {^g fj-Q^^ Time to Time appointed by the
Judges for making their respective Circuits throughout the Without Re- Province, Twice in every Year : and the Judges of the said
gard to . .
Terms, as Courts are hereby authorized and required to issue their Process, theOrdin- ^ and to do and execute all and every other Matter or Thing ^^^vm' touching the Administration of Justice, without Regard to or any other Terms or any stated Periods of Time, as Limited and appointed aU which, as by the Ordinance of September, one thousand seven hundred relate to the and sLxty-four, or any other Ordinance, custom or usage what- Sitting of the goever, all and every of which Ordinance, or Ordinances, so far
Said Courts, ' , „ . . . , , , „ .,
are repealed, as they relate to the Sitting of the said Courts, or prescribe any Limitations of Time for that Purpose, are hereby annulled, revoked, and made Void, in as full and ample a manner as if they were herein particularly enumerated and set forth.
The Judges Provided always, and it is further Ordained and Declared
to mt one QfliV
in every weekby the Authority aforesaid. That the Judges of the said Courts cretion'^for'*^ of Common Pleas, as well in Quebec as in Montreal, shall appoint '^ve"i2- ^"^ ^^y '" every week (except Sunday, or in such Vacation as aforesaid) at their Discretion for the hearing and determining all matters wherein the Cause of Action shall exceed the Sum of Twelve Pounds, which Day shall be declared at the rising of the Court on the Court day next preceding; and no Adjourn- ment of the Court shall be made for any longer time than One Week, upon any Pretence or Ground whatsoever. Md on every Provided also. That Friday in every week, except it be in cept in'vaca- such Vacation as aforesaid, shall be always a Court Day, as well ters not'ex- in the Town of Quebec as Montreal, for the hearing and deter- ceeding £12, n^jnjng ^]\ Matters wherein the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid; on which Day one of the Judges of the said Courts of Common Pleas shall attend, as well at Quebec as at Montreal, for the Dispatch of Business, who is hereby authorized and required to proceed to hear and deter-
Oto Judge mine all matters where the Cause of Action shall not exceed the
sumcient in
Matters not Sum of Twelve Pounds, in the Absence of the other Judge —
ff^^h'eothersuch Judge being prevented from attending by Sickness, or any
S^ifabie other Lawful and reasonable Cause of Excuse; and every
Cause of Judgment, sentence. Order or Decree, given, made or pronounced.
Absence. -^ o
and every Writ of Execution awarded by such Judge, in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, shall be in all Respects as binding and valid as if both the Judges of the said Court had been present and
408 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
concurred in giving, making or pronouncing such Judgment, or in awarding such Writ of Execution.
And, to the Intent that this Part of the Jurisdiction of the said Courts of Common Pleas, which attaches upon matters where the Value of the Thing in Demand does not exceed the Sum of Twelve Pounds, and the manner and Form of pro- ceeding therein may be clearly comprehended, so as to enable the Party, either by himself or his Agent, to Prosecute his own means of Redress with Dispatch, certainty, and Moderation in Point of Expence; It is further Ordained and Declared by the Authority aforesaid. That from and after the Day of the p'" P"^^ *°Date of the Publication aforesaid, in all Matters where the
issue against '
any Defend- Cause of Action shall not exceed the Sum of Twelve Pounds
Plaintiff has Currency, no Process whatsoever shall issue against any De-
ciaraUon!^^" fendant or Defendants until the Plaintiff or Plaintiffs, or his,
her or their Agent or Agents shall have first produced and left
with, or being unable to write or read, shall have first procured,
from the Clerk of the Court in which such Action is intended
to be brought, who is hereby ordered and required to make out
the same, a Declaration either in English or French Language,
according to the following Form.
Decraralion. Quebec ] Day of 177
y A B - Plaintiff
Montreal] CD- Defendant
The Plaintiff demands of the Defendant the Sum of due to the Plaintiff from the Defendant, for which Said Sum, though Often demanded, still remains due; therefore the Plaintiff demands Judgment, ta^fout Which Declaration, being so produced to and left with, or so the Sum- as aforesaid made out by the Clerk of the Court in which such Action is intended to be brought, shall be filed by the Said Clerk with the other Records of the Court, and the said Clerk shall immediately make out an attested Copy thereof, and upon the back of such Copy Indorse a Summons, to which he shall j^g^^g''"^ procure the name of One of the Judges of the said Court to be set, commanding the Defendant either to pay the Debt and Costs to the Plaintiff, or else to appear upon some subsequent Court Day, according to the Discretion of the Judge who signs the same. Regard being had to the Distance of the Defendant's Place of Residence, and the means of Communication therewith, which Summons shall be in the following Form.
To C. D. the Defendant in this Action.
Summons— ^°" ^^^ hereby commanded and required to pay to the
Plaintiff the within named Sum of together with
CONSTITUTIONAL DOCUMENTS 409
SESSIONAL PAPER No. 18
Costs, or else to be and appear, either in Person, or by your Agent, before me at the Court House of the Town of j^^i together with your Witnesses, if any you have, on Day of on which Day the Matter of Complaint
against you, as contained in the within Declaration, will be heard and finally determined, otherwise Judgment will be given against you, by Default in this Action.
E. F. Judge of the Court of Common Pleas.
Pees for the ^j ^-jjjg Attested Copy of the Declaration, together with
the Writ of Summons, indorsed and signed as aforesaid (for all which the Clerk of the said Court shall receive from the Plaintiff the Sum of Six Pence, and no more, where the Original Declara- tion shall be produced and delivered to him, and the Sum of one shilling, and no more where he shall make out the Original Declaration himself, at the Request of the Party) shall be de- livered to the Plaintiff or Plaintiffs, or his, her or their Agent or Agents, who shall convey, or cause the same to be conveyed, to One of the Bailiffs of the Parish in which such Defendant
se^ne^he ''^•des, who is hereby authorized and required to serve the same
same. upon the Defendant personally, if he can be found, or otherwise
upon his Wife, Son, Daughter, Servant, or some other grown Person, at his the said Defendant's Dwelling House, or usual Place of Abode, and at the same Time to shew him, her, or them the attested Copy of the Declaration, together with the Writ of Summons annexed, under the Hand of the Judge issuing the same, and to acquaint him, her or them, with the Contents thereof, and to leave a Copy of the same at the said House;
wWchIt Shall^"*^ *^^ Bailiff serving such Process as aforesaid, is hereby
be attested further authorized and required to attest the said Service at
by the . .
Bailiff. the Foot of the said Writ of Summons, together with the Day
and Time of serving the same, according to the following Form:
r«T.i^l'!tf' I- G. H. Bailiff of the Parish of did on
testation of
the Service. Day of Personally serve the within-named
Defendant with the Copy of the Declaration, and Writ of Sum- mons annexed, by shewing him the same, and acquainting him with the Contents thereof, and by leaving a Copy of the same at his House, with the of the said
Defendant, such being of the age of or
thereabouts. Shall be de- ^^^ t'^'s Copy of the Declaration, with the Writ of Summons
liyered to the annexed, and the Certificate of the Service so made by the Bailiff,
Plaintiff, if . . ...
Personally shall be delivered by him to the Plaintiff, if thereto personally Fee of one required by the Plaintiff himself, who shall pay the Bailiff,
410 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Se'Bafiiff ^^"^ *^^ Service and Attestation as aforesaid, the Sum of one
to be allowed Shilling, and no more, which Sum of one Shilling, together
otherwise to with the Charges of issuing and returning the said Process,
by the"™^*^ ^^^'1 ^^ allowed him in his Costs, in Case he shall obtain Judgment
Bailiff, against the said Defendant in the Action; but in case the said
^low'tTth'^ Plaintiff shall not personally demand the Custody of the said
Charges. Process, after such Service and Attestation as aforesaid, that
then the Bailiff so serving and attesting the same shall forthwith
return the same to the Court of Common Pleas from whence
such Process issued, who shall direct the Costs of returning
the same, together with the Fee of one Shilling for the Service
and Attestation thereof, to be paid to the said Bailiff by the
Defendant, if he shall be condemned in the Suit, or by the
Plaintiff, if he shall discontinue the Action, or otherwise fail
in the Proof of the Matter contained in his Declaration.
Defendant ^jjj j^ jg further ordained and Declared, by the Authority
not appear- _ .
ing after aforesaid. That if any Defendant, after having been duly
^f*rvio€* oi top
Declaration summoned as aforesaid, shall refuse to pay the said Debt and monf"™ Costs, and shall not appear, either by himself or Agent, before the Court, at the Time and Place mentioned in the said Writ h^"(f on th °^ Summons, it shall and may be Lawful for the Judge or Judges part of the of the said Court, upon view of the Certificate of the said Bailiff only. as aforesaid, or other due Proof of the Service of the said Writ
Plaintiff not o( Summons in Manner aforesaid, to hear the Cause on the Part appearing otq( ^-j^g Plaintiff or Plaintiffs only and to make such Order, Decree,
appearing -' ' _ '
and not Pro- or Judgment, and to award such reasonable Costs of Suit, as
failing in to him or them shall seem most agreeable to Equity and good
D™t,°^*''^ Conscience: And if upon the Day of Return of such Writ,
Defendant or on such Other Day, as shall be specially appointed by the
shall be dis- .r,,-. ,T^r,
missed and Court for the hearmg of the Cause, the Defendant so summoned
Condemned ^s aforesaid shall appear, either by himself, or his Agent, and the
Exe°^tf Plaintiff shall not appear, either by himself or his Agent, or ap-
not to be pearing shall not Prosecute, or Prosecuting shall fail in the Proof
the Court of the Matter contained in his Declaration, that then upon
Ster GhHng ^^^ Proof that such Defendant was served with such Process,
Judgment, it shall and may be lawful for the Judge or Judges of the said
Defendant is Court to dismiss the said Defendant, and decree and award
Lave the him such Costs as in his or their Discretion shall seem meet,
which'd' °" ^"^ *° award Execution against the said Plaintiff for Recovery
Execution and levying thereof, in the same manner as other Executions
sh3.ll be
awarded to are hereby directed to be awarded against the Defendant, where thi plri5i°^ the Plaintiff shall obtain Judgment in the Action, where the Provided always, and it is hereby further Ordained and
resides, or to Declared by the Authority aforesaid, That no Execution shall Discreet Per- be awarded against any Defendant until the next Court day
CONSTITUTIONAL DOCUMENTS 411
SESSIONAL PAPER No. 18
son residing ^fjer that on which Judgment shall be given in the Cause, to the Same; Intent that the Party may have time to satisfy such Judgment
by paying the Debt and Costs into the Hands of the Plaintiff or Plaintiffs, or his, her, or their Agent, or to the Clerk of the Court, who is hereby Authorized and required to receive the same for his, her, or their Use, unless it shall be made appear to the Judge or Judges pronouncing such Judgment that the De- fendant or Defendants is or are preparing to leave the District, or otherwise to defeat the Plaintiff of the Effect of his, her, or their Judgment, in which case it shall and may be Lawful for the Judge or Judges pronouncing the said Judgment to award execution immediately; But in Default of such Payment as aforesaid, that then it shall and may be Lawful for the Judge or Judges giving such Judgment, on the Friday next ensuing . ^ , . J the said Judgment, to award the Execution under his or their
to be levied •' °
out of the Hand and Seal, directed to the Head Bailiff of the Parish wherein GocxTs and ^ the Defendant resides, or to some other discreet Person dwelling B^t*3 oAlie '" °'" ^^^^ *^^ ^^'"^ Parish, whom the Judge or Judges shall think Plough, im- proper to name for that Purpose, and which he or they are hereby Husbandry, authorized and impowered to do, commanding him to levy Trade.°and the Debt and Costs, together with his Fees for levying and re- ^dir*^*^ ^*t turning the said Writ (which Fee shall be expressed in the to be sold. Warrant of Execution) out of the Goods and Chattels belonging e no other to such Defendant only, with an Express exception nevertheless pjj ^jj^"^ijg therein contained to his, the Party's, Beasts of the Plough, Bed and Bed-Implements of Husbandry, Tools of his Trade, and one Bed Sold. and Bedding, unless the other Goods and Chattels of such
notice 'fo^^^ Defendant or Defendants shall prove insufficient, in which case Two Sundaysguch Beasts of the Plough, Implements of Husbandry, and Tools ceeds to the of his Trade, shall be sold, but not the Bed and Bedding; and Defendan^'a the said Bailiff or other Person, to whom such Writ of Execution othe/birec- ^haU be awarded as aforesaid, shall, before he proceeds to do tions touch- any Thing therein, give Notice at the Church Door of the Parish If Defend- wherein such Writ is intended to be executed, immediately s'chSefs^ after Divine Service, both Morning and Evening, on Two sue- not sufficient cessive Sundays next after the coming of the said Writ, of the
to satisfy the . . "
Execution, Day and Time appointed for the Sale of the Defendant's Goods,
quire of his on which Day he shall proceed to sell the same to the highest
And^'to re- Bidder, and for the most Money he can get, till he shall have
turn the raised sufficient to discharge the Whole of the said Writ of
Condition of Execution, after which, if any Goods remain in Execution,
wivrther Ara- the same shall be immediately restored to the Defendant ; and
ble or Grass ;„ Q^g^ the Defendant or Defendants against whom such Writ
Land usually °
reserved for of Execution as aforesaid shall be awarded, shall not have Goods
Hav
If any Such, or Chattels sufficient to satisfy the said Writ of Execution,
412 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
i?sue^anothe° ^•*^^'" '" ^^^ whole Of in Part, that then the Bailiff, or other Writ, direct- Person as aforesaid authorized, shall enquire whether the said to enter upon Defendant or Defendants hath or have any Lands in his or their thetime'of^' Possession or Occupation, or in the Hands of any other Person reaping or j^ Trust for him or them, lying within the Parish wherein such
mowing, and r i Tt ■
to set apart Defendant or Defendants shall reside, or elsewhere withm the
will be Suffi- Jurisdiction of the Court from whence such Writ of Execution
j'fj^^'^^'^^'shall be awarded ; and if the Bailiff, or other Person so aforesaid as
& Costs; authorized, shall be fully informed and satisfied that such De-
the same fendant or Defendants hath or have any Lands as aforesaid,
La^d.^return-^^'^h Bailiff, or Other Person so as aforesaid authorized, is hereby
ing the Over- required to make Return thereof upon the Back of the Writ,
Penalty for specifying the extent and Quality of the same, and particularly
the Bam'ff m if any Part thereof be Land usually sowed with Corn, or Meadow
t^n^f*!!^ Land reserved for Hay, and upon such Return it shall and may
Writ. be Lawful for the Judge or Judges of the Court from whence
such Writ issued, to issue another Writ to the Bailiff of the Parish
in which such Lands lie, or to some other discreet Person, residing
in or near the same, commanding him to enter upon such Arable
or Meadow Land belonging to such Defendant or Defendants,
at the proper Season, immediately after the reaping or mowing
the same, and before any Part of the Produce thereof shall
be removed and carried off, and of such Produce, whether of
Corn or Hay, to set apart so much as in his Discretion he shall
think sufficient to discharge the whole of the Writ so to him
directed, and the same to sell upon the Land for the most Money
that he can get, leaving the overplus, if any there be, upon the
Land, for the use of the Defendant or Defendants.
And it is further Ordained and Declared by the Authority aforesaid, that if any Defendant or Defendants, or any Person or Persons by his or their Direction, after Notice to him or them of the coming of such Bailiff or other Person as aforesaid upon the Land (which Notice he is hereby required to give) shall make any Resistance, or prevent his coming upon the Land to execute the Writ, or otherwise disturb him in the execution of it, or shall remove or carry away all or any of the parcels of Corn or Hay, so as aforesaid set off, without having first satisfied the Whole of the said Writ of Execution, he or they so offending shall pay and forfeit, over and above the Sum so commanded to be levied, the Sum of Ten Pounds Cur- rency of this Province, to be recovered in a Summary way, before one of the Judges of the Court issuing the said Writ of Execution, by the Person against whom such Offence shall have been committed, or any other Person who shall sue for the same.
I
CONSTITUTIONAL DOCUMENTS 413
SESSIONAL PAPER No. 18
powfred'to Provided also, and it is hereby further Ordained and De-
order the dared, by the Authority aforesaid, That it shall and may be
Debt tobe^ r , / t , t, • • ,,t. ,-t-
levied by Lawful for any Judge or Judges issuing any Writ of Execution instaUments. j^^ ]y[atters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, upon due Proof before him or them made of the distressed Circumstances of the Defendant or Defendants in the Action to indorse upon the same his or their Order to the Bailiff, or other Person as aforesaid, commanding him to levy and raise the same by Installments, in such Propor- tions, and at such Days and Times as to him or them shall seem meet, whofe Thne Provided nevertheless. That the whole of the Time so allowed,
does not ex- and given, shall not exceed the Space of Three months from the Months from day of the Date of issuing such Writ of Execution ; and provided aw^rding'the ^'^o, that if it shall appear, upon due Proof thereof made before Writ of Exe- guch Judge or Judges issuing such Execution as aforesaid, that the Defendant or Defendants hath, or have, at any Time after the Service of the Declaration and Writ of Summons as dant'convey^^°'^^^^'^' Conveyed away or secreted all or any Part of his or away or se- their Goods, or Effects, in order to defeat the Plaintiff or Plain-
crctcs nis
Effects, tiffs of his, her, or their Demand, that then and in such Case it
award ™writ sh^l' and may be lawful to and for the said Judge or Judges
rf Capias ad immediately to award a Writ of Execution against the Body or
dum. Bodies of the said Defendant or Defendants, directed to the Bailiff
or other Person as aforesaid, commanding him to arrest the said
Defendant or Defendants, and him or them to convey to the
Common Gaol of the District, there to remain till such Debt and
Costs be fully satisfied, or other Order be made by the said Court
for his or their Deliverance.
the^cia!fse'° '^"^ whereas it may be of still further Utility and Con-
fer impower- venience, and the means of extending the Benefit of these Regu- mg Justices , . >. , , . r> . .
to determine lations more generally throughout the Province, to constitute
Se'vILe'of ^"*i appoint other Jurisdictions, by which Disputes of a still
^ inferior Nature may be terminated, as well in the Towns of
Quebec and Montreal, as in other parts of the Province remote
from the Courts of Justice; It is further Ordained and Declared
by the Authority aforesaid. That it shall and may be lawful
to and for any Person or Persons as well within the Towns of
Quebec and Montreal, as in other remote Parts of the Province,
being thereto specially appointed by Commission under the
rit'y ui^er''°" Hand arid Seal of the Governor, or Commander in Chief for the
Special Com- Time being, to hear and determine, and also to award Execution
mission. .,,,-. • ^ • , ,,
in all Causes where the matter in Question shall not exceed the Sum of Three Pounds, Current money of this Province, so as the
414 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Lands not to ^itlc of Lands be not drawn in Question in any such Proceedings. be drawn in in as full and ample manner as any Judge or Judges of either their Pro- of the Courts of Common Pleas are hereby authorized and im- ceedings. powered to do in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, any Thing to the Contrary hereof in this Ordinance notwithstanding; authorfzed b ^"'^ '^^ Person or Persons so as aforesaid appointed by Corn- Commission mission, as well in the Towns of Quebec and Montreal, as else- the same where within the Province, are hereby authorized and commanded , SSrVro- '" t^^ Execution of the Powers to them entrusted of hearing, ceedings as determining, and awarding as aforesaid, to keep and observe of the Courts all the Rules, and Regulations herein prescribed, limited, and PieashT"" directed, to the Judge or Judges of the Courts of Common
Causes not Pleas, in the Exercise of their Jurisdiction, in matters where
exceeding . j >
£12. the Cause of Action shall not exceed the Sum of Twelve Pounds,
and to conform to the same, both in their Judgments and Process,
as fully and perfectly as if the same were herein particularly set
other Persons^o^'th at large and enjoined; and all Bailiffs of Parishes, or other
required to Persons to whom any Writs of Summons, Warrants of Execution,
pay due
Obedience to or any Other Process whatsoever, in matters where the Cause ^^' of Action shall not exceed the Sum of Three Pounds as aforesaid, shall be directed by any Person or Persons so appointed, as aforesaid, are hereby authorized and required to pay due Obe- dience to the same, and cause the same to be executed, and Returns thereof to be made to the Person or Persons so ap- pointed, issuing the same as they would do or make to any Judge or Judges, of the Courts of Common Pleas, if such Process had issued from him or them ; provided that Such Person or Persons as shall be appointed for this purpose within the Towns of ^n°y Friday"" Quebec and Montreal shall not sit or hold any Court for the but on some hearing and determining Matters within their Jurisdiction
other Day m ° ., , , ,^ •
every Week, on any Friday, but on some other Day m every Week, accordmg to their Discretion other than Friday, or in such Vacation as aforesaid.
the^ciaiTse'^" And whereas great and manifold Inconveniences and Losses
for altering have arisen to the Proprietors of Real Estates in this Province, Method of by having their Houses and Lands taken in Execution and ex- Property*^^ posed to sale for the Payment of small Debts, and also from the under Execu- hasty and informal method of setting the same to sale, even in cases where the extent of the Judgment will admit of no other No Execu- satisfaction ;
Hou^f^r^ It is further Ordained and Declared by the Authority
Lands where aforesaid. That from and after the Day of the Date of the
the Cause of <• , ,^
Action does Publication of this Ordinance, no Process whatsoever shall be £12. '^^^ awarded for the sale of any House or Houses, Land or Lands,
1
CONSTITUTIONAL DOCUMENTS
415
SESSIONAL PAPER No. 18
I
Nor any House or Land to be Sold but in Default of Personal Property.
Direction to the Provost Marshall touching the Sale of Real Estates.
Notice.
^ No sale till ^K Six months ^K after Notice.
^P Bailiff to publish the Sale also.
Fees of the Bailiff for such Publication.
All Estates bound from the Day of the Judg- ment:
Tenement or Tenements, upon any Judgment or Judgments, where the Original Cause of Action shall not exceed the Sum of Twelve Pounds Current Money of this Province; and that from and after the Day of the Date of the Publication aforesaid, no Houses, Lands, or Tenements, taken in Execution upon a Judgment or Judgments obtained in His Majesty's Supreme Court of Judicature for this Province, or upon any Judgment or Judgments obtained out of the Courts of Common Pleas in Quebec or Montreal, shall be extended or sold by the Provost Marshal, or any Person whatsoever, unless the Personal Property of the Defendant or Defendants in the Action shall be found insufficient.
And it is further ordained and Declared by the Authority aforesaid. That upon the issuing of any Writ of Execution for the sale of any Houses or Lands, or so soon after as may be, the Provost Marshal of the District in which such Houses or Lands shall lie or be shall cause the same to be advertized in the Quebec Gazette, both in English and French, and therein set forth, as near as may be, the Quantity and Condition of such Houses and Lands, together with the Terms and the Day of Sale, which Day of sale shall not be till Six Months after such Publica- tion, and at the same Time, or so soon after as conveniently may be, he shall also cause a true Copy of the said Advertise- ment, both in English and French to be sent to the Head Bailiff of the Parish where such Houses or Lands shall lie or be, who is hereby ordered and required to fix the same upon the Door of such Parish Church, and to re-place the same, so often as it shall be removed, defaced, or rendered illegible by Time or Accident, and also to publish and declare the Contents thereof every Sunday at the Door of the said Church immediately after Divine Service, both in the Morning and Afternoon, that the same may be fully known and understood by the Inhabitants thereof, for which the said Bailiff shall receive, out of the Produce arising from the Sale, the Sum of One Spanish Dollar, to be paid by the Provost Marshal and allowed in his Accounts.
Provided always, and it is hereby, and by the Authority aforesaid, further Ordained and Declared, That from and after the Day of the Date of the Publication aforesaid, all Houses and Lands against which any Writ or Writs of Execution shall be awarded for the sale of the same, shall be taken to be, and they are hereby, and by the Authority aforesaid, declared to be obliged and bound in Law to pay and satisfy all and every Judgment or Judgments, which shall and may be obtained against the Owner and Proprietors thereof, from the Day on which such Judgment or Judgments shall be pronounced or given; and
416
CANADIAN ARCHIVES
And no Con- veyance or Disposition good after the Date of Such Judgment.
Judges to mark on the Writ of Exe- cution of Day of sign- ing the Judgment;
And in Case of Two or more
Executions against the Same De- fendant on the Same Day, to be Satisfied in equal Pro- portions.
6-7 EDWARD VII., A. 1907
that no Mortgage, Sale, or Assignment, or any Deed of Conveyance, or any Disposition without Deed whatsoever, howsoever, or to whomsoever, made after the Day on which such Judgment or Judgments shall be pronounced or given as aforesaid, shall defeat, avoid, suspend, or delay the Force and Operation of such Judgment or Judgments; but all and every such Mortgage, Sale, Assignment, Deed, and Disposition, shall be taken to be, and all and every of them are and is hereby declared to be fraudulent, as against the said Judgment, Creditor or Creditors, and to have no Validity, Power, Operation, or Effect whatsoever, to the Prejudice of such Judgment Creditor or Creditors.
And lastly. It is further Ordained and Declared by the Au- thority aforesaid; That all Judges and other Persons authorized to administer Justice, issuing any Writ of Execution, as well where the Cause of Action shall exceed the Sum of Twelve Pounds as aforesaid, as where it falls short of, or is equal to that Sum, shall and they are hereby authorized and required to mark upon such Writ of Execution the Day on which Judgment was given in the Cause, and if Two or more Writs of Execution shall be issued upon Judgment given the same day, against the same Defendant or Defendants, and so marked upon the Writs, such Execution shall have the same Privilege, and be satisfied in the same Proportions, and the Provost Marshal, Bailiff, or other Person, to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and commanded, after the sale of the whole of such Defendant or Defendants Real and Personal Estate, where the Said Writs shall be awarded against both, in case the same should not be sufficient to satisfy the whole of the said Judgments, to pay over and divide the Neat Produce of such Sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their respective Judgments.
(Signed) GUY CARLETON Given by His Excellency Guy Carleton, Captain General and Governor in Chief in and over the Province of Quebec, Vice Admiral of the same, and Brigadier General of His Majesty's Forces, &° &" in Council, at the Castle of St. Lewis, in the City of Quebec, in the said Province, and passed under the Great Seal of the Said Province, on the First Day of February, in the Tenth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Seventy. By His Excellency's Command
(signed) GEO: ALLSOPP D. C. C.
I
^ CONSTITUTIONAL DOCUMENTS 417
SESSIONAL PAPER No^18 ■ PETITION FOR A GENERAL ASSEMBLY.'
To the King's most Excellent Majesty.
1 The humble Petition of Your Majesty's most dutiful and
Loyal Subjects the British Freeholders, Merchants and Traders in the Province of Quebec in behalf of themselves and others.
Sheweth,
That induced by Your Majesty's paternal care for the security of the Liberties and Properties of your Subjects, and encouraged by Your Royal Proclamation of the Seventh of October in the third year of your Reign, "That you had been "graciously pleased to give direction to Your Governors of Your "Majesty's new Governments, that so soon as the state and cir- "cumstances thereof would admit, they should with the advice "of the members of Your Majesty's Council call General Assem- "lies within the said Governments respectively, in such manner "as is used in those Provinces in America under Your Majesty's "immediate government. "-
Your Petitioners most humbly implore Your Majesty's gracious attention to their supplications, confiding as they do in your Royal goodness, that only to point out in general the present state and circumstances of this Province, is to obtain the Royal Mandate for calling a General Assembly within the same, which operating with Your Majesty's gracious intention for the good and welfare of your People, will strengthen the hands of Government, give encouragement and protection to Agri- culture and Commerce, encrease the Publick Revenues, and we trust, will in time under Your Majesty's Royal influence be the happy means of uniting your new subjects in a due conformity and attachment to the British Laws and Constitution and render- ing the conquest of this extensive and populous country truly glorious.
That as the great Source of the wealth and riches of a country principally consists in the numbers of its Inhabitants usefully employed. Your Petitioners cannot but lament that the great numbers of your Majesty's new Subjects in this Province for want of such publick encouragement as an Assembly only can properly give to improve its natural advantages, have hitherto proved rather a burthen than any benefit to themselves or advantage to the community; their extreme poverty and misery increasing with their numbers.
• Canadian Archives, Q 7, p. 359. The date of the petition is not given, but it would appear to be some time in 1770.
•See Proclamation of October 7, 1763, p. 163.
15
418
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
That Your Majesty's British Subjects residing in this Province have set examples and given every encouragement in their power to promote Industry, are the principal Importers of British Manufactures, carry on three fourths of the Trade of this Country, annually return a considerable Revenue into Your Majesty's Exchequer in Great Britain; and though the great advantages this Country is naturally capable of are many and obvious for promoting the Trade and Manufactures of the Mother Country, yet for some time past, both its Landed and Commercial Interests have been declining, and if a General Assembly is not soon order'd by Your Majesty to make and enforce due obedience to Laws for encouraging Agriculture, regulating the Trade, discouraging such Importations from the other Colonies as impoverish the Province, Your Petitioners have the greatest reason to apprehend their own ruin as well as that of the Province in general.
That there is now a sufficient number of Your Majesty's Protestant Subjects residing in and possessed of real property in this Province, and who are otherwise qualified to be Members of a General Assembly.
Your Petitioners therefore most humbly supplicate Your Majesty, That You will be graciously pleased to give direction to Your Governor of this Province to call a General Assembly* within the same, to meet at the City of Quebec, in such manner as is used in those Provinces in America under Your Majesty's immediate Government.
And Your Petitioners as in duty bound shall ever pray.
Henry Taylor Jas. Sinclair Alex' Henry George King Lauch' Smith Jonas Clarke Minot Jn. Porteous
James McGill Geo. Gregory Alex' Paterson Lawrence Ermatinger Rich"! Dobie John Aitkin
Simon Eraser John Fine J. Eraser Murd. Stuart Aaron Hart Edw"* Harrison James Stanley Goddard J"" Paterson Isaac Todd Alex' Martin
Cha' Grant John Lees Zach. Macaulay John MCord P. Eargues John Renaud Abraham Ogier J"" Durss.
' See Proclamation of Oct. 7th, 1763, p. 163.
CONSTITUTIONAL DOCUMENTS 419
SESSIONAL PAPER No. 18
PETITION FOR THE RESTORATION OF FRENCH LAW
AND CUSTOM.i Au Roy
Tres Gracieux Souverain Plaise a Votre Majeste.
Vos TRES HUMBLES & trfes Soumis Sujets Les Canadians de votre Province de Quebec osent S'addresser a Votre Majesty avec le plus profond Respect et cette ferme Confiance que leur inspirent votre bonte paternelle pour tous vos fidels Sujets en general & Les faveurs dont Votre Majest6 a Jusqu'icy prevenue Ses nouveaux Sujets Canadiens qui en conserveront k jamais le Souvenir et La plus parfaite reconnoissance.
Depuis rinstant, Sire, de L'union de cette Province aux Domaines de Votre Couronne, vos trfes humbles Sujets ont pris la Liberty de vous r6pr6senter plusieurs fois, de quelle importance il etoit pour leurs interrSts d'etre Jug6es et Gouver- n6es Suivant les Loix, Coutumes, & Ordonnances, Sous Lesquels lis sont n6s, qui servent de Baze et de fondements k Leurs posses- sions et font La r^gle de Leurs families, et combien il leur estoit k la fois desagr^able, & humilliant d'etre Exclus des places qu'ils pourroient remplir dans cette Province pour le Service de Votre Majesty et le Soulagement de Votre Peuple Canadien, unique Moyen d'exiter L'^mulation.
Sans fatiguer Votre Majesty par le detail des meaux que leur a Occasionn6 La privation de ces avantages, dont elle a 6t6 instruite par des representations pr6cedentes de La part de vos fidels Sujets Canadiens; ils se contenteront de Lui dire que de La maniere differente de procedder quant k la forme, et quant au fond dans les affaires Civiles, et du prix exhorbitant des Sallaires 6xig6s par Les gens de Loix, S'est en suivie La Ruine d'un nombre considerable de families. Votre peuple Canadien, Sire, d6ja Ecras6 par tant d'autres Calamities, n'avoit pas besoin de ce surcroit d'Infortune.
La Religion, Sire, que nous professons, et dans la profession de Laquelle II vous a plfl nous assurer que nous ne Serions jamais troubl6es, quoique differente de celle de vos autres Sujets, Seroit-elle un motif (du moins dans Votre Province de Quebec) pour Exclure une si considerable peuplade d'Enfants Soumis & fidels k La participation aux bontfe du meilleur des Roys, du plus tendre des peres. Non Sire, Le pr6jug6 ne per^a jamais Jusqu'^ Votre ThrSne ; vous aim^s 6gallement & Sans distinction tous vos fidels sujets, vos Canadiens auront toujours pour Votre auguste personne Le plus parfait amour. La plus grande Soflmis-
' Canadian Archives, Q 7, p. 363. The date of this petition is not given, but it was appar- ently drawn up at the time of Governor Carleton's return to Britain in 1770.
420
CANADIAN ARCHIVES
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sion ; c'est k ces titres, Sire, qu'ils attendent de Votre Majest6 La meme bienveillance. La meme protection que vous accord6s k tous vos Sujets.
D6ja Instruits, Sire, par Le G6n6ral Guy Carleton, Gouver- neur de Votre Province de vos favorables dispositions k notre Egard, c'est a ce digne repr^sentant de Votre Majest6e qui connoit parfaitement L'Etat de cette Colonie, & Les Mceurs des peuples, que nous confions nos tres-humbles Supplications pour Les porter au pied de votre Thr6ne: Le Rapport, Sire, que vous fera Le Genereux Sage et d6sinterress6 Gouverneur et de nos meaux qu'il a adouci autant qu'il Lui a 6te possible & de notre Conduite Soflmise & affectionn6 Envers Le Gouvernement, achevera, nous osons I'esperer Ce que votre Cceur Royal & paternel a deja commence.
Rendus k nos coutumes et a nos usages, administr^es suivant la forme que nous connoissons, chaque particulier sgaura La force de ses titres & Le moyen de se deffendre, sans 8tre oblig6 k d^penser plus que La valleur de Son fond, pour Se maintenir dans sa possession.
Devenu Capables de Servir en toute Condition Notre Roy, & notre patrie, nous ne Gemirons plus de cet 6tat d'humiliation qui nous rend pour ainsi dire La vie insupportable, & Semble avoir fait de nous, une Nation r6prouv6e.
Combles, Sire, de vos Graces, et de vos faveurs, p6n6tr6s d'amour et de reconnoissance, nous apprendrons k nos Enfants Les bienfaits dont nous sommes redevables k Votre Majest6e ; & ils se joindront a nous pour implorer les Benedictions du Ciel sur votre personne Sacree, sur votre auguste famille, & pour la prosperity & I'aggrandisement de vos domaines.
Lanaudierre
Riganville
Perrault
Perras
Panet
Marcoux
P. Oueille
Lannier
Guegrand
D6n6chaud
Soupiran
Manvide fils
Saillant
M. Linerin
Langlois
Beaubien
Boisseau
Courval
Pini6
Joseph Duval
Berthelot
Marchand
Guichau
Louis Turgeon
Jean baptiste dufour
Ch" Voyer
Deschenaux
A. Dalciat
P. foulard
Numon
amiot
Lech' De L6ry
F. J. Cugnet
Nanry Rousseau
Tanguine
f. Laju
Borneau
Richard Corbin
Branard
Brimont
A. f. Meignot
Louis Rousseau
Siard fils
Delezenne
I
I
CONSTITUTIONAL DOCUMENTS 421
SESSIONAL PAPER No. 18
J*" duchesnay fils Dufan N. Voyez
Louis Lizot F. Billet M' Bouchand fils
Allexis Jean Guillemard L. fremont
Pavant Le Ct" Du Pre J. Anieux
Th. Pelerin A. Raby Charles Pelerin. Endorsed : — C. 23
{Translation.) To THE King
Most Gracious Sovereign
May it please your Majesty
Your most humble and most obedient subjects, The Cana- dians of your Province of Quebec dare to address themselves to Your Majesty with the deepest respect and with that firm confi- dence which is inspired in them by your paternal goodness for all your faithful Subjects in general, and by the Favours with which up to the present time Your Majesty has laden his new Canadian Subjects, who will ever preserve the memory of them and the deepest gratitude for them.
From the Moment, Sire, of the union of this Province to the Dominion of your Crown, your most humble servants have taken the Liberty of frequently representing to you, of what importance to their interests it was to be judged and governed according to the Laws Customs and regulations under which they were born, which serve as the Basis and Foundation of their possessions, and are the rule of their families, and how painful and at the same time how humiliating it has been to them to be excluded from the offices which they might fill in this Province, for the Service of Your Majesty, and the Comfort of Your Canadian People, — the only way to excite emulation.
Without wearying Your Majesty with details of the ills which the deprivation of their advantages have occasioned them, concerning which Your Majesty has been informed by previous representations, on the part of your faithful Canadian subjects, they will be content with simply telling you that from the dif- ferent mode of procedure both as regards form and essence in civil affairs, and from the exorbitant rate of the fees exacted by the Lawyers there has ensued the Ruin of a considerable number of families. Your Canadian people. Sire, who are already over- whelmed by so many other calamities, had no need of this increase 6f misfortune.
Could the religion we profess, Sire, and in the profession of which it had pleased you to assure us that we shall never be disturbed, though differing from that of your other subjects, be a reason, (at least in Your Province of Quebec) for excluding
422 CANADIAN ARCHIVES
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SO considerable a number of Your submissive and faithful Child- ren from participation in the favours of the best of Kings, of the tenderest of fathers ? No Sire, prejudice has never reached Your Throne you love equally and without distinction all your faithful subjects. Your Canadians will always have for your august person the most perfect love, the greatest submission. It is from these claims Sire, that they expect from Your Majesty the same benevolence the same protection which you grant to all your subjects.
Having been already informed. Sire by general Guy Carleton the governor of your Province of Your favourable intentions with regard to us, it is to this worthy representative of Your Majesty, who perfectly comprehends the Condition of this Colony and the customs of the people, that we confide our most humble supplications to be conveyed to the foot of Your Throne. The Report Sire, that the generous, wise and disinterested Governor will make to you, both of our hardships, which he has softened as much as lay in his power, and of our submission and affection- ■ ate conduct towards the government will we dare to hope, finish what your Royal and paternal heart has already begun.
Restored to our customs and usages administered according to the forms with which we are familiar every individual will know the extent of his rights & the way to defend himself without being obliged to spend more than the value of his pro- perty to maintain himself in his possessions.
Thus rendered able to serve our King and our country in every situation we shall no longer groan under this state of humiliation, which, so to speak, makes life unbearable to us, and seems to have made of us a reprobate nation.
Overwhelmed, Sire, with your gifts and your favours, penetrated with love and gratitude, we will make known to our children the benefits for which we are indebted to your Majesty, and they will join with us in imploring the benedictions of Heaven on your sacred person, on your august family and for the pros- perity & increase of your dominions.
ADDITIONAL INSTRUCTIONS TO CARLETON 177Li George R. [L.S.]
Additional Instruction to Our Trusty and Wellbeloved Guy
Carleton Esquire, Our Captain General & Governor in
Chief in and over Our Province of Quebec, in America,
1
' Canadian Archives, M. 230 pp. 114, IIS. Carleton was at this time in London, (see note 2 p. 423) and it was apparently in response to his representations in favour of restoring the feudal power of the Crown in Canada that these and other alterations in the colonial system were adopted. See Carleton to Shelburne, p. 288, and Draught of Ordinance, p. 292.
I
CONSTITUTIONAL DOCUMENTS 423
SESSIONAL PAPER No. 18
Given at Our Court at S* James's the 2^ Day of July 1771.
In the Eleventh Year of Our Reign. Whereas it hath been represented unto Us, that the Terms and Con- ditions, under which you are by our Royal Instructions to you, authorized and directed to make Grants of Lands within our Province of Quebec under your Government, have been found to be inconvenient and inade- quate ; and that it would be more for our advantage, & for the benefit of Our Subjects inhabiting in, and restoring to our said Province, if the ancient Mode of granting Lands which prevailed under the French Government before the Conquest and Cession of the said Province, was to be adopted ; We therefore taking the same into Our Royal Consideration, and being desirous to promote as far as in Us lies, the Welfare and Prosperity of Our said Province, have thought fit to revoke & do hereby revoke and annul all such parts of our said Instructions to you ; & every Clause, Matter and Thing therein, which contain any Powers or Directions in respect to the granting of Lands within Our said Province ; And it is Our Will and Pleasure & you are hereby authorized and empowered to grant, with the Advice of the Council of Our said Province, the Lands which remain subject to Our disposal, in Fief or Seigneurie, as hath been practised heretofore antecedent to the Conquest thereof ; omitting however in such Grants, so to be made by you, the reservation of the exercise of such judicial Powers, as hath been long disused within Our said Province. And it is Our further Will and Pleasure that all Grants in Fief and Seigneurie, so to be passed by you, as aforesaid, be made subject to Our Royal Ratification, and also be registered within Our said Province, in like manner as was Practised in regard to Grants held in Fief and Seigneurie under the French Government.*
G.R.
HILLSBOROUGH TO CRAMAH£.«
Whitehall 3'^ July 1771 Lieut. Gov' Cramah6
Sir, The King having been graciously pleased to appoint you Lieu- tenant Governor of the Province of Quebec, your Commission has been
■ The extent to which these instructions reversed the existing system of land grants and land tenures, may be gathered from a reference to that portion of the previous Instructions to Governor Carleton dealing with land grants. See sections 40-58, pp. 313-319.
lis ' In a letter of Carleton to Hillsborough, March ISth, 1769, he requests that he be permitted to return to Britain for a few months, in order to place his views directly before the Government. "By being upon the spot with the King's Servants, I might clear up to them many Points, and remove many Difficulties, which, at this Distance, can neither be so thoroughly discussed, or perfectly understood, as is necessary for the King's Service, whose Interests, in Regard to the Province, I resilly believe, I could more effectually promote and advance by a Residence of a few Months in London, than of so many years in this Country, and which I am the sooner in- duced, to propose, that the Government thereof, in my absence, would remain in the Hands of Mr. Cramahe, the eldest Councillor, from whose Sense, Moderation, and Disinterestedness, as well as knowledge of all public Business, concerning it, I am persuaded, the Interests of the Crown could not suffer." Q 6, p. 38. On Dec. 1st, Hillsborough reported that leave of absence bad been granted. Carleton left Canada early in August 1770, and on the 9th a Proclamation I was issued by Cramali^ declaring that the command had temporarily devolved upon him. Car- leton's stay in London being prolonged by the development of events in America and the relation of Canada to the situation there, Cramahe was raised to the rank of Lieutenant Governor, in July 1771.
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delivered to General Carle ton, and I beg you will accept my Congratulations upon this Mark of His Majesty's Attention to, and Approbation of your Merit & Services.
The Affairs of Quebec have, since my last Letter to you, been under the Consideration of the Privy Council, and Orders have been given for such preparatory Steps to be taken, as will I trust lead to the final Settlement of those Arrangements which are so much wished for by His Majesty's faithful Subjects there ; in the mean time His Majesty relies upon your prudence and discretion for such a representation of His gracious Intentions towards them, as shall have the effect to fix them in those Sentiments of Duty and Loyalty which they have so zealously expressed on all Occasions.
I am &c HILLSBOROUGH.
REPORT OF SOLICITOR GENERAL ALEX. WEDDERBURN.
I have taken the same^ into consideration, and in the course of my reflections upon the subject, I have found myself led into a discussion of the form of government, and of the religion of the Province, which must necessarily have great influence upon the plan of civil and criminal law proper to be adopted there. I have, therefore, presumed to form some idea upon both those heads as necessarily connected with the more immediate object of reference, and humbly to submit the result of my observations upon so important and so difficult a subject, under the following heads: —
First— The Government of the Province.
Secondly — The Religion of the Inhabitants.
Thirdly — The Civil and Criminal Laws.
Fourthly— The Judicatures necessary to carry those laws into exe- cution.
' By orders of the Court, of June 14th, 1771, and July 31st, 1772, Solicitor General Wedder- bum and Attorney General Thurlow were directed "to take into consideration several reports and papers relative to the laws and courts of judicature of Quebec, and to the present defective mode of government in that Province, and to prepare a plan of civil and criminal law, for the said Province, and to make their several reports thereon." The required reports were made, but hitherto it has been impossible to discover the originals among the documents in the Public Record Office, or elsewhere, though copies were apparently brought to Canada. As already observed, (see note 1, p. 377) the greatest secrecy was maintained with reference to all the reports and other important papers relating to Canada, after 1769. Copies of some of these were pre- served and printed by their authors, as in the case of the Reports of Maseres and Marriott; others have been found among the papers of the Earl of Dartmouth, Colonial Secretary at the time of the passing of the Quebec Act, and a few of lesser importance have been found among the Haldimand Papers. Though the most essential of these Reports were called for, as means of information when the Quebec bill was before the House of Commons, they were entirely refused by the Ministry. A specific motion for Carleton's Report was brought to a vote and negatived by 85 to 46; another motion for Wedderburn's, Thurlow's and Marriott's Reports was negatived by 85 to 45. (See Cavendish's Debates on the Quebec Bill, pp. 94-95). The only form in which the Reports of Wedderburn and Thurlow have as yet been found, is in the shape of extracts published in "A History of the Late Province of Lower Canada, Parliamentary and Political, By Robert Christie." Wedderburn's Report was dated Dec. 6th, 1772. The extracts here given are copied from Christie's History, Vol. I, p. 27. Alexander Wedderburn was appointed Solicitor General in 1771, and Attorney General in 1778. In 1780 he was made Chief ' Justice of the Court of Common Pleas and raised to the peerage as Baron Loughborough. He held the office of Lord Chancellor from 1 793 to 1801, and on retiring was created Earl of Rosslyn. ' The matters referred to him.
CONSTITUTIONAL DOCUMENTS 425
SESSIONAL PAPER No. 18
Canada is a conquered country. The capitulations secured the tem- porary enjoyment of certain rights, and the treaty of peace contained no reservation in favor of the inhabitants, except a very vague one as to the exercise of rehgion. Can it therefore be said that, by right of conquest, the conqueror may impose such laws as he pleases ? This proposition has been maintained by some lawyers who have not distinguished between force and right. It is certainly in the power of a conqueror to dispose of those he has subdued, at discretion, and when the captivity of the vanquished was the consequence of victory the proposition might be true ; but in more civilized times, when the object of war is dominion, when subjects and not slaves are the fruits of victory, no other right can be founded on conquest but that of regulating the political and civil government of the country, leaving to the individuals the enjoyment of their property, and of all privileges not inconsistent with the security of the conquest.
The political government of Canada, before the conquest, was very simple; for, whatever appearance of regularity of controul and limitation the Arrets and Commission present, all power, in fact, resided in the Gover- nor and the Intendant. The Superior Council was generally at their devotion. They had the command of all the troops, of all the revenues, and of all the trade of the country. They had also the power of granting land; and in conjunction with the bishop, they had so superior an interest at the Court of France, that no complaint against their conduct was dangerous their authority. This was the state of Canada till the treaty of peace, pon the reduction of the province, a military government took place, and the change was not very sensible to the inhabitants. ■ After the treaty of peace, a government'succeeded which was neither military or civil, and it is not surprising that the Canadians should have ^often expressed a desire to return to a pure military government, which ^Hiey had found to be less oppressive. Such a government, however, is ^Bot formed for duration, and in a settlement which is to become British, l^rould not be endured beyond the limits of a garrison.
The first consideration, in forming the political constitution of a country is, in what manner the power of making laws shall be exercised. If it were possible to provide every necessary regulation for a distant province, by orders from England, it might, perhaps, be the most eligible measure to reserve that authority entirely to the British legislature. But there must be many local interests of police, of commerce, and of political economy, which require the interposition of a legislative power, acquainted with the affairs, and immediately interested in the prosperity of a colony. In all the British colonies, that legislative power has been entrusted to an Assembly, in analogy to the constitution of the mother country. The most obvious method would then be, to pursue the same idea in Canada ; but the situation of that country is peculiar. The Assembly must either be composed of british subjects, or of british and Canadians.
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In the first case, the native Canadian would feel the inequality of his situation, and think (perhaps truly) that he should be exposed to the oppres- sion of his fellow-subjects.
To admit the Canadian to a place in that Assembly (a right, which, from the nature of a conquest he has no absolute title to expect,) would be a dangerous experiment with new subjects, who should be taught to obey as well as to love this country, and, if possible, to cherish their dependence upon it. Besides, it would be an inexhaustible source of dissension and opposition between them, and the British subjects. It would be no less difficult to define the persons who should have a right to elect the Assembly. — To exclude the Canadian subject would be impossible, for an Assembly chosen only by the British inhabitants, could no more be called a rep- resentative body of that colony, than a council of state is. To admit every Canadian proprietor of land would be disgusting and injurious to all the men of condition in the Province, who are accustomed to feel a very con- siderable difference between the seignior and the censier, though both are alike proprietors of land. Nor would it be beneficial to men of inferior rank ; for every mode of raising them to the level of their superiors, except by the efforts of their own industry, is pernicious. It seems, therefore, totally inexpedient at present to form an Assembly in Canada. The power to make laws could not with safety be entrusted to the Governor alone ; it must, therefore, be vested in a Council consisting of a certain number of persons, not totally dependent upon the Governor.
The Chief Justice, the Attorney General, the Judge of the Vice Ad- miralty, the Collector of the revenue, and the Receiver General, (if these officers were obliged, as they ought, to reside there,) should hold a seat by virtue of their office ; the other members to be nominated by your Majesty, and to be removed only by your royal orders.
As power lodged in a few hands is sometimes liable to be abused, and always subject to suspicion, some controulto this authority is necessary. The first is, the establishment of a general system of laws for the colony. The second is, that in matters of taxation, in those which affect life, and in those which import an alteration of the established laws, no ordinance of the Council should have effect till it is confirmed in Great Britain. The third is, that it should not be in their power at all times to act as a legislative body; but that, their session should be confined to the period of six weeks previous to the opening of the navigation to Britain, and at no other time should they be assembled in that capacity, except upon some urgent occasion.
Under these restraints, it seems reasonable that the power of making laws should be entrusted, for a limited number of years, to this Council, who will be enabled, from their knowledge of local circumstances, to form the necessary detail for executing the plan of laws to be transmitted to them, the regulations for the police of the country, for the administration of justice, for the collection of the revenue, and the improvement of trade and agriculture ; and being bound down by certain rules upon the great
CONSTITUTIONAL DOCUMENTS 427
SESSIONAL PAPER No. 18
objects of legislation, and subject to the constant inspection of government, they will be sufficiently restrained from abusing the power committed to them.
As the immediate power of taxation is not intrusted to this Council, it is necessary that a revenue should be provided under the authority of an Act of Parliament, for which no better plan can be formed than that which has already been proposed to the Commissioners of your Majesty's Treasury for raising a fund to defray the expenses of government in the Province of Quebec, by a tax upon spirituous liquors.*
The religion of Canada is a very important part of its political con- stitution. The 4th article of the treaty of Paris, grants the liberty of the Catholic religion to the inhabitants of Canada, and provides that His Britannic Majesty should give orders that the catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of England will permit. This qualification renders the article of so little effect, from the severity with which (though seldom exerted) the laws of England are armed against the exercise of the Romish religion, that the Canadian must depend more upon the benignity and the ' wisdom of Your Majesty's government for the protection of his religious rights than upon the provisions of the treaty, and it may be considered as an open question, what degree of indulgence true policy will permit to the i catholic subject.
The safety of the state can be the only just motive for imposing any restraint upon men on account of their religious tenets. The principle is just, but it has seldom been justly applied ; for experience demonstrates that the public safety has been often endangered by those restraints, and there is no instance of any state that has been overturned by toleration. True policy dictates then that the inhabitants of Canada should be perraitted\ freely to profess the worship of their religion ; and it follows of course, I that the ministers of that worship should be protected and a maintenance secured for them.
Beyond this the people of Canada have no claim in regard to their religion, either upon the justice or the humanity of the crown ; and every part of the temporal establishment of the church in Canada, inconsistent with the sovereignty of the king, or the political government established in the province may justly be abolished.
The exercise of any ecclesiastical jurisdiction under powers derived from ; the see of Rome, is not only contrary to the positive laws of England, but ; is contrary to the principles of government, for it is an invasion of the \ sovereignty of the king, whose supremacy must extend over all his dominions, nor can his Majesty by any act divest himself of it.
The establishment of the Jesuits and of the other religious orders, as corporations holding property and jurisdiction, is also repugnant to the
'See Carleton's Report to the Treasury, with proposed duties, &c., Dec. 10th, 1767* Q 5-1. pp. 300 & 306.
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political constitution, which Canada must receive as a part of the British dominions.
The point then, to which all regulations on the head of religion ought to be directed is, to secure the people the exercise of their worship, and to the crown a due controul over the clergy.
The first requires that there should be a declaration that all the sub- jects in Canada may freely profess their religion without being disturbed in the exercise of the same, or subject to any penalties on account thereof, and also that there should be a proper establishment of parochial clergy- men to perform the offices of religion.
The present situation of the clergy in Canada, is very fortunate for establishing the power of the crown over the church. It is stated in the reports from your Majesty's officers in Canada,' that very few have a fixed right in their benefices, but that they are generally kept in a state of dependence which they dislike, upon the person who takes upon him to act as bishop, who, to preserve his own authority, only appoints temporary Vicars to officiate in the several benefices.
It would be proper, therefore, to give the parochial clergy a legal right to their benefices. All presentations either belonging to lay pastors or to the crown, and the right in both ought to be immediately exercised with due regard to the inclinations of the parishioners in the appointment of a priest. The governor's license should in every case be the title to the benefice, and the judgment of the temporal courts the only mode of taking it away. This regulation would, in the present moment, attach the parochial clergy to the interests of government, exclude those of foreign priests, who are now preferred to the Canadians, and retain the clergy in a proper dependence on the crown. It is necessary, in order to keep up a succession of priests, that there should be some person appointed whose religious character enables him to confer orders, and also to give dispensations for marriages; but this function should not extend to the exercise of a jurisdiction over the people or the clergy ; and it might be no difficult matter to make up to him for the loss of his authority, by emoluments held at the pleasure of the government.
The maintenance of the clergy of Canada was provided for by the pay- ment of one thirteenth part of the fruits of the earth in the name of tythe, and this payment was enforced by the Spiritual Court. It is just that the same provision should continue, and that a remedy for the recovery of it should be given in the temporal courts ; but the case may happen that the land-owner is a protestant, and it may be doubted whether it would be fit to oblige him to pay tythes to a catholic priest.
It has been proposed that all tythes should be collected by the Receiver General of the Province, and appropriated as a fund to be distributed by government for the stipends of the clergy, out of which a certain proportion
' Referring to the Reports of Carleton Hey and Maseres. See note 1, p. 370.
I
CONSTITUTIONAL DOCUMENTS 429
SESSIONAL PAPER No. 18
may be reserved for the support of protestant preachers. This measure, I humbly conceive to be liable to two objections, — First — tythe even to the clergy is paid with reluctance, and the government, by undertaking the collection of it, would lose more in the affections of its subjects than it would gain by the additional dependence of the clergy, — Secondly — by thus being brought into one fund, the catholic subject will be made to contribute to the support of the protestant clergy, which he may think a grievance.
There is less objection, however, to require the protestant inhabitant to pay his tythe to the receiver general, allowing him, at the same time, to compound for less than the full sum; though I should not deem it expedient to reduce the rate by any positive law.
The increase of that fund will be a proof of the increase of the protestant inhabitants, and it will afford the means of providing for the protestant clergy, whose functions will then become necessary. In the mean time, it may be sufficient to appoint that a protestant clergyman shall be nomin- ated to any parish in which a majority of the inhabitants require it.
In regard to the monastic orders, it will be fit to secularise them entirely, but so great a change ought not to be made at once. It is proper to see how many of them may take benefices, from which they are not excluded by the foregoing provisions.
The Jesuits, however, and the religious houses in France, which have estates in Canada, are upon a different footing from the others. The establishment of thefirst is not only incompatible with the constitution of
■ an English province, but with every other possible form of civil society.
jBy the rule of their order the Jesuits are aliens in every government. Other
(monastic orders may be tolerated, because, though they are not useful subjects, still they are subjects, and make a part of the community ill employed. The Jesuits form no part of the community. They, according their institution neither allow allegiance nor obedience to the prince,
fbut to a foreign power. They are not owners of their estates, but trustees for purposes dependent upon the pleasure of a foreigner, the general of their order. Three great catholic states have, upon grounds of policy, expelled them. It would be singular, if the first protestant state in Europe should protect an establishment that ere now must have ceased in Canada, had the French government continued.
Uncertain of their tenure in Canada, the Jesuits have hitherto remained very quiet, but should the establishment be tolerated there, they would soon take the ascendant of all the other priests ; the education of the Canadians would be entirely in their hands, and averse as they may be at present to France, it exceeds any measure of credulity to suppose that they would ever become truly and systematically friends to Britain.
It is therefore equally just and expedient in this instance, to assert the sovereignty of the king, and to declare that the lands of the Jesuits are vested in his Majesty, allowing, at the same time, to the Jesuits now residing in Canada, liberal pensions out of the incomes of their estates.
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The information to be collected from the papers transmitted with the reference, is not particular enough to be the ground of an immediate law as to the property claimed by religious societies in France. The principle is clear, that every trust for their use, is void and devolves to the crown. But in applying that principle, the circumstances of each case must be con- sidered, and, in general, it seems expedient to confirm all the titles of persons occupying lands under their grants ; to make the terms of payment to the crown easier than to the former proprietors, and to apply the produce for the purposes of educating the youth of Canada, which deserves particular attention. But this subject is more fit for gradual regulations, pursuant to the instructions that may be given to your Majesty's governor, than to form an article in a general plan of laws to be immediately carried into execution.
The convents in Canada do not fall under the same rule as the monas- teries. They are not much connected with the political constitution. They may, for a time, be necessary for the convenience and honor of families — perhaps it may be expedient always to retain some such communities there, for the honorable retreat of unmarried women. Certainly it would be inexpedient and cruel to dissolve them by any immediate law. No such change is essential to the political constitution, and whenever it becomes so, the remedy is easy, and the subjects will then receive it as a favor from the crown.
The political and religious constitution of the province of Quebec being established, the next matter of inquiry is, what plan of civil and criminal law is best adapted to the circumstances of the province ? and this is not altogether an open question ; for, Canada is not in the condition of a new settled country, where the invention of a legislator may exercise itself in forming systems. It has been long inhabited by men attached to their own customs, which are become a part of their nature. It has, of late, acquired some inhabitants superior in power, but much inferior in number, to its ancient inhabitants, equally attached to different usages. The prejudices of neither of these classes of men can be entirely disregarded ; in policy, however, more attention is due to the native Canadian than the British emigrant, not only because that class is the most numerous ; but because it is not the interest of Britain that many of her natives should settle there. The Canadian also has a claim in justice to the enjoyment of as much of his ancient laws regarding private rights, as is not inconsistent with the principles of the new government ; for, as his property is secured to him, the laws which define, create, and modify it, must also be retained, otherwise his property is reduced to the mere possession of what he can personally enjoy.
******* It should also be provided that any Canadian subject of the age of twenty five, who is unmarried and without children, holding land immediately of the crown, may convert his tenure into a soccage holding, by which he shall have the power of devising the whole.
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and that the purchaser of land held of the king, may convert the tenure into soccage at his pleasure, and it shall then be held and enjoyed as by the law of England.
• **«««« -j-jjg criminal law of England, superior as it is to all others, is not, however, without imperfections ; nor is it, in the whole extent of its provisions, adapted to the situation of Canada. It would be improper to transfer to that country all the statutes creating new offences on temporary or local circumstances.
* * * * It is recommended by the governor, the chief justice, and the attorney general, in their report, to extend the provisions of the Habeas Corpus act to Canada. The inhabitants will, of course, be intitled to the benefit of the writ of Habeas Corpus at common law, but it may be proper to be better assured of their fidelity and attachment, before the provisions of the statute are extended to that country.
The form of civil government for the province, as it now consists in the distribution of judicial authority, is the most difficult and the most impor- tant part of the plan, for, without an easy and exact execution, laws are of very little use to society.
The several opinions reported to your Majesty, by the governor, the chief justice and the attorney general, concur in the causes of the complaints upon this head, and differ little in the remedies proposed.
It is their opinion that the expense and delay of proceeding are at present very grievous, and they seem to think that the division of the prov- ince into three districts, and the establishment of courts of justice in each, as
^_ in the time of the French government, would afford some remedy to this evil.
^^ To diminish the expense of law suits, too great already for the property
^Bof the country, by adding to the number of persons who are to be maintained
^Bby the law, is at least a doubtful proposition.
^P It is necessary, therefore, to consider whether other causes besides the want of proper judicatures, may have concurred to produce the grievance of which the Canadians complain, and whether other expedients, besides an increase of places and expense, may not, in part, remove it. The uncer- tainty of the law of the province must have been one principal cause of the expense of suits. That evil will, in time, be removed.
The change of property, together with the alteration of the course of commerce consequential upon the conquest, producing new contracts in new forms, created a great deal of business for which there would be no established fees, and the ignorant execution of that business opened a new source of litigation. The same thing has happened in the other settle- ments, where, for a certain time, the gains of those who took upon them- selves to act as lawyers, and of course the expense to the other inhabitants, of law proceedings, has been very great. But this evil is also temporary. Without disputing the reality of the grievance, one may suppose that it is a little exaggerated, for all the French lawyers who remained in Canada,
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were interested to magnify it. They partook of the profits arising from its continuance, and their profits were increased by exciting the complaints.
I cannot conceive that this grievance would be removed by adopting the French judicature, for if one can trust the accounts given by themselves, the expense and the delay of law suits, are in France a most intolerable evil.
****** The Canadians, it is said, complain, and not without reason, of the arrest and imprisonment in civil cases. There could be no objection to confine that severe proceeding to the cases in which they are accustomed to it. These are stated to be actions upon bills of exchange, debts of a commercial nature, and other liquidated demands, by which probably is to be understood actions upon bond and other instruments, where the sum demanded is certain. In other cases, the arrest upon mesne process, which is only used to compel appearance or answer, may be abolish- ed, and in lieu of it the plaintiff might be allowed, after due summons, to enter an appearance for the defendant, and if more was required than a mere appearance, the constitution of the court is very well calculated to adopt the process of sequestration, which has already prevailed under the French government.
The execution against the person of the debtor, after judgment, may also be laid aside, and, indeed, in an increasing colony it is very impolitic, and a very cruel proceeding. An effectual and speedy process against the goods and estate would, in most cases, answer the ends of justice much better.
****** As the affairs of the colony require a very partic- ular attention, and some regard must there be had to political consider- ations, it might be proper to attribute the cognizance of all questions concerning the rights of the clergy, the profits of benefices, and the pre- sentation to them, to the council, with an appeal to England; and all the most material questions of police might, perhaps, be also subjected to their jurisdiction. N°l
Abstract of such of the Regulations proposed in M' Solicitor Genl" Report as it may be expedient to establish by Act of Parliament — Inclosed in M' Sol. Genl' Report of e"" Dec-- 1772.'
That it shall and may be lawful for the Governor or Commander in Chief of the Province of Quebec, by and with the advice & Consent of such Persons as shall be appointed from time to time by His Majesty &c. to be a Council for assisting the said Governor in the Administration of the Pro- vince, not exceeding Twenty, nor less than Twelve, to make and ordain
• Canadian Archives, Dartmouth Papers, M 383. p. 240. These two papers give the chief features of Solicitor General Wedderbum's Report, in the shape of clauses of a bill, and may be compared with the Report of the Lords Commissioners for Trade and Plantations relative to the State of the Province of Quebec, p. 377, as also with the Quebec Act and the various draughts of bills for the settlement of the Government of Quebec which precede it.
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Ordinances for the public Peace, Welfare and good Government of the said Province in all Cases whatsoever.
Provided always, that no such Ordinance shall be made when less than a Majority of the said Councillors shall be present, nor at any Meeting of the Council, except those which shall be specially called for that purpose
between the day of and the day of unless upon some
extraordinary and urgent Occasion, in which case every Member of the Council resident at Quebec or within Miles of the same shall be person- ally summoned by the Governor to attend the same.
Provided also that no Ordinance by which the Life or Limb of the Subject may be affected, or by which any Duties or Taxes shall be imposed, or by which the Laws of England hereby declared and enacted to be of Force and Validity in the said Province, or the Customs used in Canada, by this Act directed to be observed, may be altered or varied shall be of any Force or Effect until approved by His Majesty and such approbation signified by His Majesty in Council.
That Copies of all Ordinances, so to be framed and ordained, shall,
within months from the passing thereof (or sooner if Opportunity
offers) be transmitted duly authenticated under the Seal of the Province by the Governor or Commander in Chief to the Commissioners for Trade and Plantations, and that the said Ordinances be laid by the said Com- missioners for Trade and Plantations, before both Houses of Parliament as soon as may be after the same shall have been received by them from the said Province.
That it shall and may be lawful for all His Majesty's Subjects of the Province of Quebec freely to profess their Religion in the said Province, without being subject to any Penalties or Prosecutions for the Exercise of the same, provided that they attempt nothing by Deed or Writing to the Prejudice of His Majesty's Supremacy in all matters Causes and Things ecclesiastical and civil.
That it shall and may be lawful to and for any Person or Persons who shall be licensed by the Governor of the Province to ordain Priests or Deacons, and also to grant Licenses for Marriages as has been formerly used, but not to exercise any other ecclesiastical Jurisdiction or Authority.
That all Crimes and Misdemeanors, commited in the Province of Quebec shall be tried and determined according to the Laws of England.
Provided always that no Person shall suffer the Pains of Death upon Conviction for any Theft, or felonious taking without Force, where the Value of the thing taken shall be less than five Pounds, nor for any Felony where the Benefit of the Clergy hath been taken away from the Offender by any Statute enacted since the 23'' year of the Reign of King Charles the Second.
Provided also that in lieu of the Judgement to be given upon any Conviction for Felony, where the Offender is entitled to the benefit of
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Clergy, the Offender shall only be fined or imprisoned, or bound to his good Behaviour.
Provided also that no Judgment upon any criminal Charge shall, after the Verdict given, be arrested upon any Objection of Informality in the Indictment or of any Discontinuance in the Record.
That the Laws & Usages touching the Tenure, Descent & Alienation of Land or real Property, and the Distribution of the Goods of such of His Majesty's Canadian Subjects as shall die intestate, which were in force on the IS"" of Sept' 1759, shall be observed and maintained in all Questions that shall arise concerning the same in any of the Courts of Justice in the Province of Quebec, except in such cases as are hereafter declared.
Provided always that nothing in this Clause contained shall be con- strued to extend to any Lands that have been granted by His Majesty, or shall hereafter be granted by His Majesty, His Heirs & Successors, to be holden in free & common Soccage : Provided also that it shall and may be lawful to and for any of His Majesty's Subjects at his age of 25 years to change the Tenure of an Estate held of His Majesty &c into free & common Soccage by any Deed executed in the Presence of two Witnesses and pre- sented to the Chief Justice of the Province who shall summon a Jury to assess the Sum to be paid to His Majesty in lieu of the Profits of the Seig- niory, and upon payment thereof shall direct the Deed to be enrolled, and the same being enrolled the Land shall from thenceforth be held as Lands in free & common Soccage are by the Laws of England.
That all Wills & Testaments executed according to the Forms used in the Province of Quebec before the 15"" of Sept' 1759, shall be deemed equally valid & effectual as a Will executed by the Testator in the Presence of three Witnesses, pursuant to the Statute of Frauds and Perjuries.
That in all Marriages heretofore contracted by and between any of His Majesty's Subjects of the Province of Quebec; the Rights of the Husband and Wife and of the Issue, in respect of their personal Property shall be adjudged according to the Laws and Usages which obtained there before the 15*'' day of Sept' 1759 ; But that in all Marriages celebrated
after the day of where there are no Articles of Settlement the
Parties shall be deemed in respect to their personal Property to have contracted under the Law of England. N°. 2
Abstract of such of the Regulations as the provincial Legislature of Quebec may carry into Execution.
Inclosed in M' Sol. Genl" Report of the 6"^ Dec' 1772.
That in all Benefices which now are or hereafter shall become vacant the Patronage whereof belongs to any of His Majesty's Subjects of Canada, the Patron shall nominate the Ecclesiastic to His Majesty's Governor, who shall issue a Licence to the Person so nominated, and where there is no
»
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Lay Patron, or where no Person shall be nominated within Six Months, the Governor shall nominate and licence some Person, being a Priest born in Canada or the British Dominions, or resident in Canada for the space of five years.
That every Priest so licensed as aforesaid shall hold his Benefice with all the usual Emoluments and Dues thereto belonging during his natural Life, unless he shall be licensed to another Benefice, or upon Complaint made by any Proprietor of Land in the Parish to His Majesty's Governor & Council ; and that in such Suits for the Recovery of his Dues the Pro- duction of the Licence shall be sufficient to prove him the Incumbent. Provided always that no Inhabitant or Occupier of any Estate professing the Protestant Religion and having taken the Oaths of Supremacy and subscribed the Declaration against Popery, shall be obliged to Pay Tithes or other Dues to any Popish Incumbent of any Living; But that every such Inhabitant or Occupier of Land shall be obliged to register his Name in a Book to be kept for that purpose by the Clerk of the Council, and that it shall and may be lawful for the Receiver General of the Province to ask, sue for, & recover, by Action or Bill, the Tithes of the Protestant Inhabitants or Occupiers of Land to be applied for the Maintenance of Protestant Divines, in such manner & Proportions, as His Majesty's Governor, with the Advice of the Council, shall appoint.
That all Seigniories, Lands and Estates, which, on the fifteenth day of September, One thousand seven hundred and fifty-nine, belonged to certain Persons assuming to themselves & commonly called the Society of Jesus, shall be vested in His Majesty His Heirs and Successors freed & discharged from all Gifts, Grants, Leases and other alienations made thereof, or of any part thereof, since the said fifteenth day of September, one thousand, seven hundred and fifty nine, but charged & chargeable with the Payment of the Sum of Forty Pounds to every Person of the said Society resident in the Province of Quebec upon the said fifteenth day of September, one thousand seven hundred and fifty nine, or who has since been resident there for the Space of five Years, for and during his natural Life. In Lieu of the Homage done by the Tenant to the Lord of whom the Land is holden, every Tenant, when and as often as the said Homage should have been done, shall deliver to the Lord at the Manor-Place a Declaration in writing, expressing the Tenure of the Land, and the Title of the Tenant, whether by Purchase or Descent, to which Act the Lord shall, within two Days, declare his Assent in writing upon the same Instrument, and the same shall then be entered in a Register to be appointed for that purpose at the Chief Town of the District.
That no Sale of Land bona fide made shall, after the Purchase Money paid for the same, be rescinded by the Lord of whom the Fee is holden, or by the nearest Relation of the Lineage of the Vender claiming a Right of Pre-emption therein by virtue of any former Custom.
That the Governor or Commander in Chief shall issue a Commission or Commissions under the Seal of the Province to any three Persons, being
i
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Subjects of His Majesty, to hear & determine in a summary manner all Causes not exceeding the Sum of Thirty Pounds, taking to their assistance a Person chosen by themselves of the Profession of the Law, licensed by the Governor, and also one other Person nominated by the Attorney General, which Person shall act as their Clerk, but neither of the said Persons shall have any Vote.
Provided always, that where the Sentence shall amount to more than the Sum of Twelve Pounds, the whole Proceeding and the Evidence which shall have been given, shall at the desire of either Party, be transmitted to the Chief Justice of the Province within the Space of fourteen days from the Judgement, who shall within fourteen days return the same to the Clerk of the said Commission with his Affirmance, Reversal, or Variation thereof, and the same shall be executed as if the Sentence had been originally pronounced by the Commissioners. That these Commissioners shall be Conservators of the Peace, and have Power to punish all Misdemeanors upon a summary Complaint by .Fine and Imprisonment, not exceeding twenty four Livres and three Months. That it shall be lawful for any one of them to commit for a Breach of the Peace for forty eight Hours ; but the Person so committed shall not be longer detained, unless it shall seem proper to two of the Commissioners to detain him for a longer Space ; and in that Case the Cause of the Commitment with the Information shall be immediately transmitted to the Chief Justice.
That the Superior Court of the Province shall be held at Quebec on the first day and shall meet and adjourn itself from time to time,
and shall consist of the Chief Justice and two other Judges, who shall have full Power and Authority to determine all Matters & Things in which any real or personal Right, or the quiet Enjoyment thereof is demanded ; by any Action real personal possessory or mixt, and also by any Bill in Equity according to the Laws of England, the Customs of Canada, and the general Principles of Justice and Equity ; And that their Judgments shall be final in all Cases, where the Value of the Thing in question does not exceed three hundred Pounds ; and, in all cases of superior Value, the Party aggrieved by the Sentence may, upon Payment of the Sum decreed (Security being given to the Satisfaction of the Court by the Party receiving it to refund the same in Case of a Reversal of the Judgment) be at Liberty to appeal to His Majesty in Council, which appeal shall be allowed.
That the Chief Justice of the Province shall hold four Sessions for the Trial of all criminal Offences in every Year : two at Quebec, one at Mont- real, and one at Trois Rivieres. But in case of any reasonable Excuse approved by the Governor, it shall be lawful for him to appoint the Attorney General, or any other Person, with the Approbation of the Governor, to hold theSessions in his Place, who shall be appointed by aSpecial Commission issued under the Seal of the Province a Copy of which with the Cause of issuing the same shall, as soon as conveniently may, be transmitted by the Governor to the Commissioners for Trade and Plantations.
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That in case of any Offence committed, by which the Peace and good Government of the Province may be effected, it shall be lawful for the Attorney General to apply to the Council for an Order to remove the Offender to be tried at Quebec, or to apply for a Special Commission for the Trial of the Offence in the Place where it has been committed.
REPORT OF ATTORNEY GENERAL, EDWD. THURLOW.'
Canada had been holden by the French king, in the form of a province, upwards of two hundred years ; and considerably peopled near one hundred and fifty years, by the establishment of a trading company, with great privileges and extensive jurisdictions, seconded by the zeal of the age, to propagate the gospel in foreign parts. — Parishes, convents of men and women, seminaries, and even a bishoprick were established there. The supreme power, however, remained with the king, and was exercised by his governor and lieutenant-general with the assistance of a council. About one hundred years ago, Louis the fourteenth resumed the country^ and gave it the constitution which was found at the conquest.
He gave them a body of laws, namely, those of the Prevot^, and Vicompte de Paris. The sovereign power remained with the king. But because the immense distance made it impossible to provide them with local regulations so speedily as the occasion might demand, he gave them a council, with authority to order the expenditure of public money, trade with the savages, and all the affairs of police, to appoint courts and judges at Quebec, Trois Rivieres and Montreal, and to be judges themselves in the last resort.
This council consisted of the governor, representing the king's person ; and the bishop and five notable inhabitants, named by the two first. To this establishment in a few years were, added two more councillors, all seven named by the king ; and an intendant of justice, police and revenue, who held the third place in council, and acted as president, collecting voices, &c., and who had, by a separate commission, very large power, particularly in police, wherein he could, if he thought fit, make laws without the council ; and in the ordering of the revenue, in which he was absolute ; and judge without appeal, of all causes relative to it, as he was, indeed, in all criminal cases.
***** Office, rank and authority were annexed to land, and otherwise divided among the gentry, with due degrees of subordination; so that all orders of men habitually and perfectly knew their respective places, and were contented and happy in them. The gentry, in particular,
'Attorney General Thurlow's Report was dated Jan. 22nd. 1773. The extracts from it here given are derived from Christie's History of Lower Canada, vol. I, p. 46. (See note 1, p. 424.) Edward Thurlow was appointed Solicitor General in March, 1770, and Attorney General in June, 1771. In June, 1778, he was appointed Lord Chancellor, a position which he held, except for a short interval in 1783, until 1792. On his resignation he was created Lord Thurlow of Thurlow, in Suffolk.
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were drawn into a still closer attachment to the governments of their posts, in the provincial and royal troops which were kept up there.
This system, a very respectable and judicious officer, your Majesty's chief justice of Quebec,^ justly extols, as being admirably calculated to pre- serve internal tranquility and due reverence and obedience to government, and endeared to the natives by long usage, and perfect conformity to their manners, habits and sentiments.
The natives, at the conquest, were one hundred and twenty thousand, whereof about one hundred and twenty-six were noble. And their laws were, such part of the laws of Paris, as had been found necessary and appli- cable to their situation, reformed, supplied, changed and enlarged by the king's ordinances and those of the provincial legislature. These have been very judiciously collected, and are among the papers which your Majesty commanded me to consider.-
On the eighth of September, 1760, the country capitulated in terms which gave to your Majesty all that which belonged to the French king ; and preserved all their property, real and personal, in the fullest extent, not only to private individuals, but to the corporation of the West India company, and to the missionaries, priests, canons, convents, &c., with liberty to dispose of it by sale if they should want to leave the country. The free exercise of their religion by the laity, and of their function by their clergy, was also reserved.'
The whole of these terms were stipulated on the 10th of February 1763, in the definitive treaty ofpeace.^ By your Majesty's proclamation* of the 7th October, in the third year of your reign, (1763) your Majesty was pleased to declare that four new governments were erected, of which Quebec was one, containing a large portion of that country which had been included in the French government of Canada, some parts of which were settled in such manner as hath been mentioned before, but great districts of which still remained rude and barbarous.
And considering that it would greatly contribute to the speedy settling of the new governments, that your Majesty's loving subjects should be informed of your paternal care of the security of the liberty and properties of those who are or shall become inhabitants thereof, your Majesty thought fit to declare that your Majesty had, in the constitution of these govern- ments, given express power and direction to the governors of the said colonies respectively, that so soon as the state and circumstances of the said colonies would admit thereof, they shall, with the advice and consent of your Majesty's council, summon and call general assemblies within the said governments respectively, in such manner and form as is used and
' Evidently referring to the Report of Chief Justice Hey, which was one of the documents submitted for consideration but which cannot now be found. See note 1, p. 370.
• See note 3, p. 300.
' See Articles of Capitulation of Montreal, p. 7.
* See Treaty of Paris. 1763, p. 97; especially article 4, p. 99.
» See Proclamation of 1763, p. 163. i
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directed in those colonies and provinces in America, which are under your Majesty's immediate government. And that your Majesty had given power to the said governors, with the consent of your Majesty's said council and the representatives of the people, so to be summoned as afore- said, to make, constitute and ordain laws, statutes and ordinances for the public peace, welfare, and good government of your Majesty's said colonies, and of the people and inhabitants thereof, as near as may be, agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies ; and that in the mean time, and until such assemblies can be called as aforesaid, all persons inhabiting in or resorting to your Majesty's said colonies, might confide in your royal protection for the enjoyment of the benefit of the laws of England, for which purpose your Majesty declared that your Majesty had given power under the great seal to the governors of your Majesty's said colonies respectively for the erection of courts of judicature and public justice within the said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agreeable to the laws of England, with liberty to all persons who may think themselves aggrieved by the sentence of such courts, in all civil cases, to appeal under the usual limi- tations and restrictions, to your Majesty in your privy council.'
* * * * On the 21st of November 1763, your Majesty appointed
Mr. Murray, to be governor of Quebec, commanding him to execute that
office according to his commission, and instructions^ accompanying it,
and such other instructions as he should receive under your Majesty's
signet and sign manual, or by your Majesty's order in council, and according
to laws made with the advice and consent of the council and assembly.
***** He is further authorised, with the consent of the council,
las soon as the situation and circumstances of the province will admit of it,
to call general assemblies of the freeholders and planters, in such manner
, as in his discretion he should think fit, or according to such other further
I instructions as he should receive under your Majesty's signet or sign manual,
or by your Majesty's order in council. The persons duly elected by the
major part of the freeholders of the respective parishes and places, before
their sitting, are to take the oaths of allegiance, and supremacy, and the
declaration against transubstantiation.
The said governor, council and assembly are to make laws for the public peace, welfare and good government of the said province, and for the benefit of your Majesty, not repugnant, but as near as may be to the laws of Great Britain, such laws to be transmitted in three months to your Majesty, for disallowance or approbation, and if disapproved, to cease thenceforward.
The governor is to have a negative voice, and the power of adjourning, proroguing and dissolving all general assemblies.
• From Proclamation of 1763, p. 163.
'See Governor Murray's Commission, p. 173; and Instructions, p. 181.
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******* Some criminal laws must be put into immediate and constant execution, to preserve the peace of the country. The English were so. They act most strikingly upon the minds of the people, and must be administered without any equitable qualifications. These are said to be universally received. In truth, they could neither be refused nor avoided.
* * * Three very different opinions have been entertained. There are those who think that the law of England, in all its branches, is actually established, and in force in Quebec. They argue that your Majesty, upon the conquest, has undoubted authority to establish whatever laws should seem fittest in your royal wisdom : that your Majesty's proclamation dated the seventh day of October, 1763, was a repeal of the existing laws, and an establishment of the English laws in their place, in all parts of the new subjected countries : that the several commissions to hear and deter- mine by the laws of England, were an actual and authoritative execution of those laws; and that the law, as it prevails in the province of New York and the other colonies, took its commencement in the same way, and now stands on the same authority.
If your Majesty should be pleased to adopt this opinion, it seems to afford a full answer to the whole reference, by exhibiting not only a general plan, but a perfect system of civil and criminal justice, as perfect as that which prevails in the rest of your Majesty's dominions, or at least it leads off to questions widely different, touching the expediency of a general change in the established laws of a colony, and touching the authority by which it ought to be made.
Others are of opinion that the Canadian laws remain unrepealed. They argue that according to the notion of the english law, upon the conquest of a civilized country, the laws remain in force till the conqueror shall have expressly ordained the contrary. They understand the right acquired by conquest, to be merely the right of empire, but not to extend beyond that, to the liberty and property of individuals, from which they draw this con- sequence, that no change ought to be made in the former laws beyond what shall be fairly thought necessary to establish and secure the sovereignty of the conqueror. This idea they think confirmed by the practice of nations, and the most approved opinions. "Cum enim omne imperiutn victis eripitur relinqui illis possunt, circa res privates, et puhlicas minores sua leges, suique mores, et magistratus hujus indulgentice pars est, avitcB religionis usum victis, nisi persuasis non eripere." Grot. 3. 15. 10.; and if this general title to such moderation could be doubted, they lookupon it to be a necessary consequence of the capitulation and treaty alluded to before, by which a large grant was made them of their property and personal liberty, which seem to draw after them the laws by which they were created, defined and protected, and which contain all the idea they have of either. This moderated right of war, flowing from the law of nations and treaties, they think may have some influence upon the interpretation of the public acts above mentioned.
i
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Though the proclamation of 7th October, 1763, is conceived in very large terms, generally enough to comprehend the settled countries together with the unsettled, yet the purview of it seems to apply chiefly if not alto- gether to the unsettled, where the laws of England obtain a course till otherwise ordered ; for it seems to assume and proceed upon it, as manifest that the laws of England are already in force, which could not be true of any settled country reduced by conquest. It also recites for its object that it will greatly contribute to the speedy settling our said new govern- ment ; and at any rate, they think it too harsh a conclusion to be admitted that such an instrument in the state thereof, not addressed to the Canadians, nor solemnly published among them, nor taking any notice of their laws, much less repealing them, should be holden to abrogate all their former customs and institutions, and establish the english laws in every extent and to every purpose, as it may be thought to do in unsettled countries, which conclusion, however, they know not how to avoid, but by confining it to those countries where no settled form of justice existed before.
If it be true that the laws of England were not introduced into Canada by this proclamation, they consider the several commissions above men- tioned, to hear and determine according to those laws, to be of as little iffect as a commission to New York to hear and determine according to the ws of Canada.
***** Others, again, have thought that the effect of the
above mentioned proclamation, and the acts which followed upon it, was
to introduce the criminal laws of England, and to confirm the civil law of
anada. In this number were two persons of great authority and esteem ;
Mr. Yorke and Mr. De Grey, then Attorney and Solicitor General, as I
llect from their report of the 14th April, 1766.' One great source, they
present, of the disorder supposed to prevail in Canada, was the claim
ken at the construction put upon your Majesty's proclamation of 1763,
if it were your Majesty's intention, by your Majesty's judges and officers
that country at once to abolish all the usages and customs of Canada,
ith the rough hand of a conqueror, rather than in the true spirit of a lawful
vereign, and not so much to extend the protection and benefit of your
ajesty's english laws to your new subjects, by securing their lives, liberties
d properties, with more certainty than in former times, as to impose
lew, unnecessary and arbitrary rules, especially in the titles to lands, and
the modes of descent, alienation and settlement, which tend to confound
d subvert rights instead of supporting them.
There is not, they observe, a maxim of the common law more certain, an that a conquered people retain their ancient customs till the conqueror shall declare new laws. To change at once, the laws and manners of a settled country, must be attended with hardships and violence. And, therefore, wise conquerors having provided for the security of their domin-
I
' See Report of Vorke and de Grey, p. 251.
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ions proceed gently, and indulge their conquered subjects in all local customs which are in their nature indifferent, and which have been received as rules of property or have obtained the force of laws. It is the more material that this policy should be pursued in Canada, because it is a great and ancient colony, long settled and much cultivated by french subjects who now inhabit it, to the number of eighty or one hundred thousand.
****** In criminal cases, whether they be capital offences or misdemeanors, it is highly fitting so far as may be, that the laws of England should be adopted, in the description and quality of the offence itself ; in the manner of proceeding to charge the party, to bail or detain him, to arraign, try, convict, or condemn him. The certainty and lenity of the English administration of justice, and the benefits of this constitution, will be more peculiarly and essentially felt by his Majesty's Canadian subjects, in matters of crown law which touch the life, liberty and property of the subjects, than in the conformity of your Majesty's courts to the english rules in matters of tenure, or the succession and alienation of real and personal estate. This certainty and this leniency are the benefits intended by your Majesty's royal proclamation, so far as concerns judi- cature. These are irrevocably granted and ought to be secured to your Majesty's Canadian subjects according to your royal word.
I have rather presumed to trouble your Majesty with a copy of their expressions than any abstract of their opinion ; because, though I sub- scribe absolutely to the truth and good sense of their positions, I freely confess myself at a loss to comprehend the distinction whereby they find the criminal law of England introduced, and the civil laws of Canada continued, by instruments which seem to establish all the laws of England, both civil and criminal at the same time, in the same sentence, and by the same form of words, if they are understood to establish any, or to relate to Quebec.
They seem to proceed much upon the supposed superiority which they justly impute to the criminal laws of England. It is very unfit that I should speak of them to your Majesty without the utmost reverence. But I can conceive that a Canadian, blinded, perhaps, by the prejudices of different habits, may think of them in a different manner, and even set but small value on that excellent institution the trial by jury ; whereby the natural equality among men is so admirably preserved, and the lowest subjects of the state admitted to more than an equal share of the supreme judicial authority. I have been actually informed that a Canadian gentleman would think himself degraded, and more hardly used by being submitted for life or limb to the judgment of his tradesmen, than if he were put to the question and tortured by the king's authority.
If the difficulties were liquidated and the way more open, I humbly submit to your Majesty, that some other points should be previously settled, before the forms of mere civil and criminal justice can be legally conceived. What form of civil government is fittest to be adopted in that
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country is doubtless a question of policy and state ; notwithstanding which, it seems no less manifest, that any given form of civil government will take effect and influence in a thousand ways, upon any scheme to be desig- nated, of civil and criminal justice.
Religion also, so far as it affects the state and becomes an object of establishment or toleration, seems to be a matter of policy and state ; and yet it is sufficiently obvious what a multitude of laws must follow upon any given establishment or toleration, more or less according to the degrees in which the religion is incorporated with the state.
What public revenue is to be established in a new province is, perhaps, a question merely political; but when decided, it generally draws after it a system of laws peculiar to itself and an appropriated tribunal. The same observation holds, in a certain degree, of the police of a country.
Being totally uninformed of your Majesty's royal pleasure touching these important articles, I feel it extremely difficult to state any certain scheme of civil and criminal laws, or any which must not receive deep and material alterations for that which your Majesty shall.be pleased to deter- mine on those heads.
There are, at the same time, certain principles which seem, in my humble opinion, to claim your Majesty's gracious attention, as the basis 1 of any new laws to be made in Quebec.
I The Canadians seem to have been strictly entitled by the jus gentium
Ij to their property, as they possessed it upon the capitulation and treaty of I peace, together with all its qualities and incidents, by tenure or otherwise, and also to their personal liberty; for both which they were to expect your ^-Majesty's gracious protection.
^H It seems a necessary consequence that all those laws by which that ^■property was created, defined, and secured must be continued to them. ^HTo introduce any other, as Mr. Yorke, and Mr. De Grey emphatically ^Bexpressed it, tend to confound and subvert rights instead of supporting ^Hthem.
I^p When certain forms of civil j ustice have long been established , people have I had frequent occasions to feel themselves and observe in others the actual coercion of the law in matters of debt and other engagements and dealings, and also in the recompense for all sorts of wrongs. The force of these examples goes still further and stamps an impression on the current opinion of men and puts an actual check on their dealings ; and those who never heard of the examples of the laws which produced them, yet acquire a kind of traditional knowledge of the legal eff^ects and consequences of their transactions, sufficient and withal absolutely necessary for the common affairs of private' life. It is easy to imagine what infinite disturbance it would create to introduce new and unknown measures of justice; doubt and uncertainty in the transaction ; disappointment and loss in consequence.
The same kind of observation applies with still greater force against a change of the criminal law, in proportion as the examples are more striking.
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and the consequences more important. The general consternation which must follow upon the circumstance of being suddenly subjected to a new system of criminal law, cannot soon be appeased by the looseness or mildness of the code.
From these observations, I draw it as a consequence that new subjects, acquired by conquest, have a right to expect from the benignity and justice of their conqueror the continuance of all these old laws, and they seem to have no less reason to expect it from his wisdom. It must, I think, be the interest of the conqueror to leave his new subjects in the utmost degree of private tranquillity and personal security; and, in the fullest persuasion of their reality, without introducing needless occasion of complaint and dis- pleasure, and disrespect for their own sovereign. He seems, also, to provide better for the public peace and order, by leaving them in the habit of obedience to their accustomed laws than by undertaking the harsher task of compelling a new obedience to laws unheard of before. And if the old system happens to be more perfect than any thing which invention can hope to substitute on the sudden, the scale sinks quite down in its favor.
It should be remembered that the scheme of government and laws for Canada, was conceived by a wise court in a cool moment, untainted with private passion or public prejudice. The principles of humanity and the views of state combined to suggest that plan which might serve to build a flourishing colony upon. The plan was improved, from time to time, by the wisdom and experience of succeeding times, and not left to become obsolete and unfit for the progressive state of the province.
Although the foregoing observations should be thought just, as a general idea, yet circumstances may be supposed, under which it would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and strong,«as the conquered can set up to their private rights and ancient usages. Hence would follow every change in the form of government which the conqueror should think essentially necessary to establish his sovereign authority and assure the obedience of his subjects. This might possibly produce some alteration in the laws, especially those which relate to crimes against the state, religion, revenue and other articles of police, and in the form of magistracy. But it would also follow, that such a change should not be made without some such actual and cogent necessity, which real wisdom could not overlook or neglect ; — not that ideal necessity which ingenious speculation may always create by possible supposition, remote inference and forced argument — not the necessity of assimilating a conquered country in the article of laws and government to the metropolitan state, or to the older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several parts of the empire ; unattainable, and, as I think, useless if it could be attained : — not the necessity of stripping from a lawyer's argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws: —
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not the necessity of gratifying the unprincipled and impracticable expec- tations of those few among your Majesty's subjects who may accidentally resort thither, and expect to find all the different laws of all the different places from which they come, nor according to my simple judgment, any species of necessity, which I have heard urged for abolishing the laws and government of Canada.
The foregoing thoughts are humbly submitted to your Majesty, as general and abstract propositions, liable to be much altered in the appli- cation, by what your Majesty may think fit to resolve upon the matters of policy and state which have appeared to me in some degree previous con- siderations to any plan for the administration of civil and criminal justice, and upon which I have not presumed to offer any opinion. All which is humbly submitted to your Majesty's royal wisdom.
PLAN OF A CODE OF LAWS FOR THE PROVINCE OF QUEBEC; REPORTED BY THE ADVOCATE-GENERAL, JAMES MAR- RIOTT, LONDON, MDCCLXXIV.i
To THE KiNG^s Most Excellent Majesty.
RMay it please your Majesty, Whereas your Majesty was pleased, by your order in council of the |lth of June, 1771, to direct that several reports and papers relative to the laws nd courts of judicature of Quebec, and the present defective mode of government in that province, should be referred to your Majesty's advocate, attorney, and solicitor-general to consider the same; to take to our assistance other persons, as we shall think fit, for the purpose of giving informations, and to prepare a general plan of civil and criminal law for the said province.' and by a farther order, dated 31st July, 1772, reciting the former order, your Majesty was pleased to direct, that the advocate, attorney, and solicitor-general should make a separate report thereupon to your Majesty in council, with all convenient speed. In most humble and dutiful obedience to your Majesty's commands, I have the honour to report, that I have perused and considered attentively the papers referred, and have obtained several very useful informations.
It is with the utmost diffidence I now venture to lay before your Majesty in council the result of the reflections which have arisen in my mind upon this subject : perplexed as it is, and so very extensive, both in its
' The Report of Advocate General James Marriott, though not found among the State Paper8,.was published in 1774, under the title here given. The latter part of the report, pp. 129- 246, is chiefly concerned with religious questions, which are only of incidental significance for the constitutional history of the Province, and is therefore omitted. The foot-notes designated by the signs', t. t, &c., are contained in the report; those added by the editor are designated by numerals as usual. As may be gathered from the report, Marriott, had little sympathy with the policy which eventiTally dominated the Quebec Act and his examination before the House of Commons during the debate on that bill is an interesting bit of legal fence to avoid revealing his opinions of the measure. See "Cavendish's Debates on the Quebec Bill", pp. 163-169 and 172-176. James (afterwards Sir James) Marriott was Advocate General from 1764 to 1778, when he was appointed Judge of the High Court of Admiralty, a position which he held till 1798.
•See note 1, p. 424.
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matter and in its consequences, to your Majesty, and your government, it would be full of danger to lay down any opinions (not only of what the law is, at large, but what the law ought to be ; which is the great question referred) too positively, in relation to a country so remote from home, and to a people, their laws, and customs, with which your Majesty's subjects here are so little acquainted ; I cannot, therefore, offer these thoughts otherwise than merely problematically, and as in deliberation, with sub- mission to superior wisdom ; and I shall readily accede to any better reason- ings which may be set forth in any other report of the law servants of your Majesty, and in which we might unite.
It is observable, that the several reports hitherto made and referred to us, do not agree in opinion ; but so far as they do not oppose each other in matter of fact, so far we may venture to try to frame some sort of opinion on the ground of those facts which are laid before us.
Notwithstanding that there ever has been, among men of reflection, a great variety of sentiments upran the subject of general legislation, and that such subjects require the life of a Plato or a Montesquieu to discuss, and the experience of ages to confirm them, it seems to be nearly certain, upon the ordinary experience of mankind (an observation very necessary and applicable to the progressive state of Canada) that wants make manners, and that manners make laws, interpret and controul them in every age and in every government : on the other hand, that laws, in a certain degree, can change the manners of a people, is not to be doubted; because their manners alter with the increase and circulation of property, on which the laws have a visible influence : that in a state of society, where the numbers are few, the wants simple, and the property free from the intricacies of commerce, the laws of that society also are few and simple. The government of a people in such a state represents the government of a private family. It is therefore impossible to form a general code of civil and criminal law for any people, without its being subject to change in the progress of civil society ; nor can it be effective without its being adapted to the immediate wants of the people, and not inconsistent with the tone of their manners : but it is clearly the interest of the governing power, for its own preservation, to watch every change of circumstances, to follow expediencies as they arise, and to model its laws according to the position of the subject, and the views of that leading policy which is the wisdom of states, and the spirit of legislation.
Father Charlevoix,* in speaking of the administration of justice in Canada, in 1663, bewails the time when arbitrations were no longer decisive, dictated by good sense and the laws of nature; that it was a singular reflection, and humbling for mankind, that the precautions which a wise and great prince thought proper to take to banish fraud, and establish justice, by a new code for the colony, were the encrease of the one and the weakening of the other. The truth is, the colony was changed, and the laws followed.
•Lib. viii, p. 360, 371.
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In forming the preliminary propositions, in deliberation, to serve as a basis of a code of laws for the province of Canada, it must be taken for granted, as a first and clear position, that the great and sudden change of the political and relative circumstances of the country of Canada makes a farther change of its laws absolutely necessary. It is not an ideal necessity which I mean, not the hope of attaining any perfection which may exist in speculation only, but it is a necessity in fact. The laws and people of Canada are already changed ; nor can a previous questionf be supposed of the political expediency. After the representations of the board of trade in the strongest terms, the reports of the governor, chief justice, attorney-general' of the province, and correspondence with the secretary of state, annexed in the papers referred ; and after your Majesty's order in council hath declared the necessity of a new system, by setting forth, that the present mode of government in the province is defective, and commanding your Majesty's law servants to prepare a general code of law for the same, and to call upon all persons we may think fit for information ; such an ample reference precludes all brevity and reserve, and lays your Majesty's law servants, in my conception, under an indispensible obligation, however painful, to enter into every possible consideration upon a large scale, and to bring the whole subject in one prospect before your Majesty, that your Majesty, in your great wisdom, may weigh upon the most extensive infor- itions the grounds of some probable system. This latitude is the more Ecessary, because, if hasty and ill digested regulations should be adopted, Dn any mistaken notions of men and things, the evils already felt by your lajesty's government will increase beyond the power of a remedy.
The relative position of the colony in its actual and possible views, eing well considered, and all facts being well stated and established, the isonings will easily follow.
To know what Canada wants, it is very proper to consider the relation which it once stood to France, and the relation in which it now stands with respect to Great Britain. This colony was settled with views of policy and commerce, by a mission of Jesuits only, upon pretence of religion, and supfxjrted in opposition to the early claims of the British crown, as it was natural to a military government, upon military principles. On a view of the civil establishment of this colony in its infancy and progress, which appears from a perusal of the French commissions^:, nothing can be more simple, or formed with greater latitude than the general and indefinite owers granted to the French officers, to whom it was entrusted. The lole government, in its original state seems to have been left to the influ- iice which military force** has over the bodies, and, which a system of • — . — - — , .
' Sec note 1, 370. For Report of Attorney General, see p. 370
tReport of the attorney-general.
tVide Creation du conseil, souverain de Quebec, 1663.
"Histoire philosophique et politique des etablissemens et du commerce des Europ^ns dans lea deux Indes, torn, vi, p. 142.
Tous les colons y devoient sans exception une obeissance aveugle i. une autorit€ purement militaire.
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religion, dazzling in its cereitionies, and operating forcibly on the imagin- ation, has naturally over the minds of men,* whose employments and wants leave little time for reflection. The common law or custom of Paris was to be their rule, by the edict of Lewis XIV. To this general system have been added a number of royal edicts, regulations of the superior council, ordi- nances of intendants, &c. which form the law peculiar to the province***; and although it appears upon the authority of Canadian lawyers, that many parts of the law of the custom of Paris have not at any time been executed in the colony; yet the state of the colony has been the only reason of it ; and that no cases have yet arisen as objects of those parts of the law of the custom of Paris which have not been executed.
In the condition described, the colony of Canada at the peace of Versailles'^, was ceded to the crown of Great Britain, absolutely, with no restriction but such as regarded the preservation of private property, or had a view to certain modes of religious worship, or rituals, in case they were permitted by the laws of the country, which now became sovereign. One hundred thousand subjects in this ample manner (to use the words of the treaty) transferred from one sort of government to another, totally different in manners, languages, laws, and religion, must necessarily suffer a violent alteration.
It is very observable, that in the XLIId article of the capitulation for Montreal and Canada,^ the demand was, that the Canadians shall be governed according to the custom of Paris, and the laws and usages established for that country. This is neither granted nor refused, but reserved. The answer is, "they become your Majesty's subjects." The consequence is, their laws are liable to be changed. But until the system of laws of the ancient inhabitants should be repealed by the authority of the new sovereign power, their old system was understood by many to be in full force upon them. This is laid down, as a most certain maxim of the common law, by Mr. Yorke and Mr. De Grey, in their report* ; by which I suppose they meant the law of nations. That doctrine is laid down as the common law by Lord Coke, in Calvin's case. But the common law of England has nothing to do with the question; it is a matter of the jus gentium, and it depends upon the silence and presumed indulgence of a new sovereign power, as well as upon any acts whereby the sovereign's pleasure is made publicly known. There is no occasion to cite passages of Grotius§, or Puffendorff, or any other German or Dutch writers, to shew their opinion of what is possible for the sovereign power to permit by not abrogating.
•Ibid, p. 157. La necessity rendit soldats tous les Canadiens.
*'*La coutdme de Paris modifiee par des combinaisons locciles forma le code de ses loix Ibid. 146.
^Article IV. Sa M. tres chretienne cede et transporte le tout au dit roi, et &. la couronnede la Grande Bretagne, et cela de la maniere et dans la forme la plus ample, sans restriction.
' See the Treaty of Paris, 1763, p. 97.
* See Articles of Capitulation of Montreal, p. 7.
•See Report of Yorke and de Grey, p. 251.
§Report of the attorney-general.
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But much more difficulty occurred (and it was increased by the steps taken by the British government) upon the question, whether the laws, civil and criminal, of the ancient inhabitants, became binding upon the persons and properties of British subjects who came over to settle in Canada after the conquest? who have been thought to carry out with them, as it has been expressed by somebody, all the laws of England upon their backs ; and who, in a more particular manner, claimed the benefit of your Majesty's pro- clamation, so far as it was understood to be binding, as declarative of the general laws of England, and of your Majesty's right in consequence, with advice of your Majesty's privy-council, to make laws for any conquered country ceded to the crown, exercised by your Majesty in this instance, in the same analogy as in royal grants or charters, heretofore of any unset- tled lands and territories belonging to the crown, acquired by occupancy of the subject ; the conditions of which grants have been the result of the royal pleasure, having regard to the fundamental laws of England.
The fact appears to be, that a proclamation has been issued by your Majesty, with the advice of your privy-council, so long ago as the 7th of October 1763' ; setting forth, tha.t in the interim, until a provincial assembly could be called, all persons inhabiting the said colony may confide in your Majesty's royal protection for the enjoyment of the benefit of the laws of the realm of England ; and for that purpose your Majesty had given power to the governors of the said colony, to erect, with the advice of their councils, courts of judicature and public justice.
As the commission* of the governor of Quebec^, is almost in every article a direct copy of the commission of the governor of New York in 1754, and of the commissions of the governors of the rest of your Majesty's colonies, modelled doubtless upon those granted upon their first settlement ; so it should seem as if this proclamation had been copied inadvertently, and in the hurry of office, from some former proclamation relative to Nova Scotia, or some other unsettled British colony, inviting persons to emigrate thither from their mother-country ; and that the reflection never entered the thoughts of the drawers up of this proclamation, that Canada was a conquered province, full of inhabitants, and already in the possession of a legal establishment.' In consequence of this proclamation and commission, courts of judicature were set up, and the judges were directed to follow the laws and customs of England.*
In a reportf made April 1766, by the then attorney and solicitor- general, Mr. Yorke and Mr. De Grey,* it was laboured, that this pro-
I^K ' See Proclamation of Oct. 7th. 1 763. p. 1 63. I^H *Vide printed Collection, p. 93, 102, 239, 250. I^^K 'See Commission ef Governor Murray, p. 173.
I^^K ' That this is a mistaken supposition with reference to the conditions which led up to the l^^pjclamation of 1763, will be evident from a consideration of the "Papers Relating to the Esta- ' blishment of Civil Government in the Territories ceded to Britain by the Treaty of 1763." See pp. 127-163.
* Referring to the Ordinance of Sept. 17th, 1764; see p. 205. tVide Inclosure, p. 166.
• See Report of Yorke and de Grey, p. 251.
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clamation was only meant to be introducHve of select parts of the laws of England, and not of the whole body of laws ; and that the criminal laws of England, and of personal wrongs, were almost the only laws that came under the description of the words enjoyment of the benefit of the laws of England ; and that the laws of England relative to descent, alienation, settlement, and incumbrances of lands, and the distribution of personal property in cases of intestacy, and all the beneficial incidents to real estate, in possession or expect- ancy, were not comprehended under the proclamation.
The proclamation issued upon the 7th of October 1763. The com- mission of the governor was subsequent to the proclamation ; the bill not being signed by the attorney-general for the commission by letters patent till 22d of October ; and on the 14th November 1763, the privy-council made an order for interlineations of some necessary words.' Indeed I am disposed to think, that the proclamation, singly considered, and of itself, without other acts of government which followed it, did not introduce ab- solutely the law of England, in the whole of its system, by general words ; because it might possibly bear some sort of distinction, as taken above, between cases civil and criminal : and it might also bear the distinction of new, and the old subjects, who were the emigrants from home ; the former^ as governable by their own ancient usage ; the latter, as bearing the pri- vileges of Englishmen upon their backs. It might be said, the proclamation was meant for the new settlers, and for the new grantees, and related to the yet unoccupied lands of the province, and extended no farther.
But these distinctions were under a farther difificulty from other acts of government : the actual establishment of the courts of justice, of the king's bench, and common-pleas, with commissions and titles similar to those of the judges and courts of Westminster Hall, and with express instructions to follow the English laws and customs, did of necessity, and ipso facto, introduce all the modes of judicial proceeding according to the laws of England ; although with this modification, so far as they could be put in practice under such circumstances ; and did also strongly tend to introduce gradually the whole system of English laws, and did occasion a strong presumption in the minds of all men, that it was then actually introduced, or meant to be introduced as soon as possible.
The two ordinances of the 17th of September 1764,^ and of 6th of Nov- ember 1764', transmitted home to the king in council, and never disallowed, are very strong in favour of this idea, although the first contains some saving clauses, viz. that the judges in the court of common-pleas are to deter- mine agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and present situation of things will admit, until such time as proper ordinances for the information of the people can be estab- lished by the governor and council, agreeable to the laws of England. Thai
•See pp. 172. _
« See p. 205. I
> See p. 229. "
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tenures in respect to grants prior to the cession by treaty, and the rights of in- heritance as practised before that period, shall remain the same till the 10th of August 1765, unless altered by some declared and positive law, with a salvo of his majesty's rights. The consequence after the expiration of this date is obvious, that the rights of inheritance and tenures would be changed to the laws of England, so far as this ordinance and declaration could legally change them. .
With respect to the chief justice, as a judge of appeal, the difficulty put upon him by his commission, ' to decide by the laws of England, was very great ; and it could only be avoided by his considering himself as a judge in the second instance, to examine the decisions of the inferior court, by the same rules as they formed their judgments ; agreeably to the latitude expressed. It is to be observed, that the chief justice of the king's bench has no authority in his commission to act as a judge of appeal, but he derives it only from the ordinance of the governor, of the 17th September 1764. It is observable, that the governor is limited to the instructions annexed to his commission, and to such as shall be hereafter given him under your Majesty's signet and sign manual, or by order of council, and conformable to such reason- able laws and statutes as shall be made and agreed upon by him, with the advice and consent of the said council and assembly.
The form of French government (say the lords commissioners of trade, in their report to the committee of council, July 10th, 1769*),' though not entirely abolished by those royal declarations, was thus in many parts materially altered, and made to correspond with that form of government which has been established in your Majesty's other American dominions. The restrictions in the commission arising from the test act of the 25th Charles lid, prevented the measure of an assembly being executed in a colony where all the principal old inhabitants were of the Romish religion. Many constitutional services were unprovided for in the commission and instructions ; and what is worst of all, it has since been found necessary that several ordinances, in matters of local regulations, and internal economy, made by the governor and council, should be disallowed by your Majesty; upon this consideration (as the board of trade state it), that they were made without a due authority to enact them.
The effect which the taking of this ground of a want of due authority, must have upon the opinion of the inhabitants, and their respect for govern- ment, and the question of legality, with respect to every other ordinance of the same sort, is but too obvious. A grand jury in Quebec,' with more zeal in the object, than judgment in pursuing the means, present the in- capacitation of the Romish religion ; to prevent jurors of that religion being impanelled in cases of life and death ; and to controul the measures taken advocates think proper, sometimes in the French, and sometimes in the
• See Commission of Chief Justice Hey, p. 273.
• Vide Inclosure, p. 9.
' See Report from the Lords Commissioners for Trade & Plantations relative to the State of the Province of Quebec, p. 377. The portion here quoted will be found on p. 380, last para- graph.
• See "Presentments of the Grand Jury of Quebec," p. 212.
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by the governor, general Murray, in consequence of the legislative powers lodged together in a military person and his council, and which produced the dissatisfactory ordinance of 17th September 1763; great part of which has been repealed by another ordinance,' as well as many other local regu- lations which have been disallowed by your Majesty in council.
The confusion which existed under these circumstances does exist to this moment. But the whole confusion results not only from the new legal arrangements, but it seems to be originally existing as the natural effects of a conquest. — ^The confusion is complained of more easily than it can be remedied. Every new mode is considered as a hardship by the old in- habitants, and so might they equally complain of the conquest. Their minds naturally revert to their ancient usages, and their wishes return to their ancient government. It is no reproach to them ; they must feel as men : and to men every political change which brings an uncertainty of rights, and of the mode of pursuing them, is of necessity painful.
It is stated, that in the courts of common-pleas, the proceedings are drawn up in any form or style that the parties think proper ; in French or in English, as the attorneys happen to be Canadian or English born subjects ; and commonly in the French language, as the practisers are chiefly Cana- dians; that the old inhabitants distribute effects of persons deceased in case of intestacy, viz. the share of widow and children, and divide their lands, according to their former French law ; that the new English settlers follow the English rules of the statute law in cases of distribution ; that the old inhabitants contract, convey, and mortgage their landed property, according to their old mode of conveyancing, notwithstanding the ordinance of the 17th September 1764, which makes the French laws, regarding lands, expire after a limited period ; that the new English settlers use the English mode, and the same estates have sometimes passed through the two different modes of transfer. It is to be conceived in the latter case, that no great harm can arise if they are but conveyed bona fide. But as the English shall intermarry more and more with the Canadians, some difficulties may arise as to the distribution of the effects of intestates, and the manner of dividing immoveable inheritances, and taking by descent in right of primo- geniture, because the laws of France and England differ exceedingly in these particulars ; and the English blood may claim the protection of the laws of England against the laws of France. But this difficulty may possibly be obviated by the method hereafter proposed.
It is stated by Mr. attorney-general Mazeres, that in the civil pro- ceedings carried on in the new superior court of king's bench, the forms of all actions, the style of the proceedings, the method of trial, the rules of taking evidence, are such as are prescribed by the English law, and are universally known by the Canadians to be so. In the courts of common- pleas, there is much more of the face and language of the French law, for the pleadings are drawn up in any form and style which the parties or their
' See Ordinance of July 1st, 1766, p. 249.
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English language, as the attornies who prepare them happen to be Canadians or Englishmen ; but they are most frequently in the French language, the business of these courts of common-pleas being chiefly managed by the Canadian procurators or attornies. Justices of peace are not very respect- able in the eyes of the Canadians ; sheriffs and bailiffs are also officers very unlike to the military conservators of the peace, and to the executive powers to which the Canadians have been accustomed. The arrest of body in the first instance in civil suits was held at first by the Canadians to be an unnecessary hardship and restraint, and to be inconsistent with their notions of honour, and disgraceful to the person arrested ; the event of the suit in his favour was not thought a sufficient reparation for the insult ; but the French notions of honour have, it seems, now given way to convenience, and the inhabitants are said to be very ready at using arrests against each other. On the other hand, so much indulgence to the persons of creditors, as is allowed by the English laws of bankruptcy, is thought by many of the British merchants and others to be ill adapted to promote and preserve credit in the tender state of the commerce of the province ; and that it is an encouragement of frauds there, (as no doubt it is in England) . On the contrary, the English laws of bankruptcy are well received by many of the ancient Canadians, as being agreeable to the spirit of the French laws in cases of deconfiture or insolvency. It is agreed on all hands, in criminal proceedings, that the Canadians do as well as English universally understand the criminal laws of England to be in full force ; that no other are ever mentioned or thought of ; arui that the Canadians seem to be very well satisfied with them}
This representation of Mr. attorney-general Mazeres is confirmed by
e appendix to the report of the 15th September 1769, made by the gover-
lor and chief justice. It is very full on this head : that in all criminal cases,
whether capital offences or misdemeanors, the laws of England have already
been adopted, both in the description and quality of the offence, and in the
anner of proceeding, to charge, commit, arraign, try, convict, and condemn
e offender. And the certainty and lenity of those laws, and the benefits of
is part of the English constitution, are generally known to the Canadians,
■nd high in their estimation.
But whatever the criminal law of England is in the great lines of eason, felony, &c. I conceive it must of course have taken place in the lony of Canada ; and that no other system of criminal laws could exist there at any instant of time after the conquest: because this part of distri- butive and executive justice is so inherent in dominion, or, in other words, so attached to- every crown, and is so much an immediate emanation of every government, that the very instant a people fall under the pro- tection and dominion of any other state, the criminal, or what is called the crown law of that state, must ipso facto and immediately operate : it
' See Maseres' Report, more particularly pp. 344-346.
i
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cannot be otherwise ; for were it otherwise there would be no effective sovereignty on one side, and no dependence on the other. The dominant power can exercise and execute no laws but those which it knows, and in its own name, and with which its servants are conversant : and the subjects can obey none but such as arise out of the new relation in which they stand. The French Canadian lawyers have in general, as I have heard from good authority, the same ideas upon this subject of the criminal law.
With respect to the civil laws, there may be a distinction ; because a conquered people may be understood to be governed by their ancient laws touching their civil property, so long as they remain unchanged by any decla- ration to the contrary of the new sovereign power ; the silence of which may be construed to be a tacit confirmation. And these civil laws may be binding upon such British subjects who adopt them, by going to them of their own free will, and by acquiring property under them ; as if they went to Jersey, Guernsey, Minorca, Scotland, or elsewhere in your Majesty's dominions. But with respect to the criminal laws, I cannot conceive that any native subjects of your Majesty can be tried for life or limb, in any of your Majesty's dominions, by any other laws than the laws of England, either in matter or manner ; or suffer the punishments annexed to such crimes by the laws of France, such as the torture to exact confession upon circumstantial evi- dence, the breaking upon the wheel, the forms of trial by written evidence, personal interrogatories, monitories for voluntary witnesses to appear against the prisoners, and the like. Till there is an absolute surrender, military law must prevail in every country and supersede the common law ; but the moment the new sovereign is in peaceable possession, the merum imperium, or power of the sword, or the haute-justice, as the French civilians call it, to be exercised according to common law, takes place ; and this power must extend to all crimes that concern the peace and dignity of the crown. These are mala in se, crimes in themselves, and universally known in every nation. Those crimes which arise from prohibitions are not known, and therefore they are not governed by penal statutes antecedent to the conquest. The mixtum imperium, of personal wrongs and civil property, must be promulged before the ancient laws are understood to be altered.
In these views, your Majesty's proclamation, declarative of the enjoy- ment of the laws of England, seems to have been justifiable, and to be rightly understood in regard to all your Majesty's subjects in Canada, without distinction of the places of their birth, so far as it relates to the criminal crown law in the greater crimes, such as treason and felony ; because there the proclamation was meant to convey an actual benefit to the Canadians, by putting an end to both the military as well as the French criminal law.
With respect to a general assembly, if it had been called agreeably to the proclamation, which recites the discretionary power given to the governor by his commission to call one {as soon as the circumstances of the colony will permit, as in the other British colonies), this measure would have
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served to have pointed out the spirit and dispositions of the people : but the fact is, an assembly, though summoned and chose for all the parishes but Quebec,! j^y governor Murray, has never sat. And it is now agreed, by governor Carlton, the chief justice, and Mr. attorney-general Mazeres himself, (who had formed a plan of an assembly or legislative council, as a succedaneum instead of an assembly) that the measure of calling an as- sembly in the present circumstances is by no means necessary ; that it would be premature, and attended with many great public inconveniencies; as the people in Canada are in general extremely illiterate, and not yet ripe for so great and sudden a share of liberty and legislative power. Monsieur Lotbiniere* says, that he doubts whether there are more than four or five persons in a parish, in general, who can read. It is apprehended, therefore, that the calling an assembly would not have remedied or regulated all the causes of complaint, or might even have created new ones. But that it may he the source of factions which have been much experienced in the other colonies, I think is no good general objection, because all assemblies of men naturally fall into disagreements : it is the necessary result of opposite interests, or ideas. Different perceptions make men appear like different animals one towards another.
I conceive that no laws in the detail can be well formed for any country but by a legislative body upon the spot; because such a body best knows its own wants, and how to find the means, and how to apply them. The colonies of Georgia and Nova Scotia were long drooping under a military government. The extraordinary improvements of them, from the moment they have been permitted to make laws for themselves, is a conclusive argument of the necessity of some legislative powers to be given to a body representative of the whole colony, with limitations : but it is by no means intended to speak decisively for or against the measure of calling an assembly: it may be extremely proper to establish some legislative body, with a reason- able degree of independency, after the outlines of legislation shall have been t drawn by your Majesty, either in your privy council, or in your great council in parliament ; an assembly of some sort may then be useful to carry into execution the details, and to build on the foundations, which shall
ave been laid out by a superior policy. A legislative and elective council might possibly be the most useful with a power of negative in the governor, provided that the laws, which are to be passed in such council, should be ly provisional, although they should happen to pass without the governor
nterposing his negative voice ; but not to operate till they have had your Majesty's express confirmation, and even afterwards to be always subject to revocation at your Majesty's pleasure. And I am the more inclined to a legislative council, because it seems to be consistent with reasons of policy, to preserve the great difference which already subsists between the people
' Marriott must have been either mistaken or misinformed on this point, as there is no evidence of an assembly having been elected or called under Murray. * Article iv.
I^Hrsi
"nt
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of this country and the rest of your Majesty's colonies : yet, at the same time, it is necessary to make the Canadians forget that they were French- men, and to approximate them more as British Canadians, to a British government by a systeme mitoyen, or middle system, so as to effect, what the chief justice calls, the happy temperament of new and old laws, to reconcile the engagements of the crown with respect to both sorts of subjects, and to answer the views of political government ; not in that sort of absolute uniformity of laws, or religion, which exists no where but among the small savage tribes of men, and which is not found even in the most despotic states ; because a perfect uniformity cannot exist without extirpation of the subjects, which in the end must weaken or destroy the sovereign power itself.
The great lines of union of Canada to the realm of Great Britain is drawn at present by virtue of the conquest. The assimilation to the govern- ment of the latter, in its tribunals, is actually effected ; an assimilation of manners will follow slowly ; but it must necessarily follow as a natural consequence of the conquest. The military spirit of the inhabitants, carried to an excess in the late war, has begun to cease : it is very important for England that it should cease. The cultivation of lands, and attention to commerce (unknown before) are encreasing every day. The back settle- ments extend themselves ; and the inhabitants of New York and Canada are approaching nearer to each other : some French families who disliked the English proceedings, and many of the first English settlers at Quebec, who were several of them, upon speculation, adventurers from England, Scotland, and Ireland, or factors for considerable merchants in London and elsewhere, have retired from the colony ; not finding that the advantages of the opening of trade there answered the sanguine expectations of the earliest comers, who overstocked it, or who found a military government in too great a degree of vigour, for the advantage and security of commerce ; and their place is daily supplied by another sort of men, such as English officers of the army and navy, and actual merchants. A great* iron foundry has been established'; warehouses are built; one house for distill- ing only has cost five thousand pounds ; and such great purchases of landed property have been made of the native Canadians by Englishmen, that some of the principal seigniories at this day are in the actual possession of the latter. There are about two or three thousand British born settlers
•Histoire philosophique, torn. 6, p. 152. Une veine plus sure encore s'offroit A I'industrie. C'etoit I'exploitation des mines de fer si communes dans ces contrees. La seule qui ait jamais fixe I'attention des Europeans est pr^s des Trois-Rivieres. On I'a decouverte a la superficie de la terre. II n'en est nuUe part de plus abondantcs, & les meileures de I'Espagne ne sent pas si douces. Un maitre de forge, arrive d'Europe en 1739, augmenta, perfectionna les travaux de cette mine jusqu'alors foibles & mal diriges. La colonie ne connut plus d'autre fer: on en ex- porta mfme quelques essals; mais la France ne voulut pas voir que ce fer etoit le plus propre i la fabrique de ses armes a feu, le seul qu'il lui fut meme avantageux d'employer. Une politique si sage s'accordoit merveilleusement avec le dessein qu'on avoit pris, apres bien d'incertitude de former un etablissement de Marine en Canada.
' Referring to the St. Maurice Forges, near Three Rivers, which had been established in 1733. It will be observed that Marriott makes frequent reference to the recently issued work of Abbe Raynal, "Histoire philosophique et politique des ftablissements et du commerce des Europ^ens dans les deux Indes." Paris 1770.
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besides the troops. Every year, with the accession jof commerce, in the nature of things, must encrease their numbers and consequence, if the laws are well fixed and administered, and a military government, if possible, is avoided or controuled. For notwithstanding the natural indolence and ignorance of the people and their present poverty, notwithstanding the circumstances of the pretended difficulties attending the navigation of the river Saint Laurence, at all times, from its rocks and shoals, magnified by the inexperience* or policy of the French, and the long time it is frozen, for full six monthsf: yet when we consider the prodigious encrease of population, the exceeding fertility of Montreal, the healthiness of the air, and the vast woods of Canada, capable of supplying naval stores and lumber for the West Indies and for the mother-country. The produce of horned cattle, sheep, horses, hogs, wool, corn, hemp, flax, furs, pot-ash, iron, &c, and the situation of the river St. Laurence, so adapted for the fishery,! and encrease of seamen, objects little pursued by the French government, totally taken up with military operations, it is reasonable to think that all these circumstances will, in course of time, conspire to make Quebec the Petersburgh§ of North America.
It appears from very good authority, that the imports from Great Britain in one year, into this colony, have amounted to two hundred and forty thousand pounds sterling, exclusive of the imports from Scotland, Ireland, the West India islands, and the other American colonies ; and this too, soon after the conquest ; when the complaints and confusion of a military government were at their highest pitch ; a magistrate and mer- chant, who brought ten thousands into the province, mutilated by the soldiery ; and who burnt their barracks in defiance of an act of parliament, by which they were erected for the relief of the people ; and notwithstanding many other embarrassments arising to trade, from the condition of a people, among whom the laws were administered in a summary way, and by persons |Without legal ideas.
From all the fa<;ts stated as above, upon the evidence of informations, of too high authority tp be doubted, follow two consequences ; that after
ertain new regulations have been submitted to with patience by his Ma- sty's new Canadian subjects, for a space of thirteen years, though with
ame such complaining as is natural upon a change of masters, the founda-
^on which has been laid for an approximation to the manners and government
the new sovereign country must either continue to be built upon, or
therwise the whole that has been done must be thrown down, and the
•The tide runs up as far as Trois- Rivieres: and frigates of war have gone up as high as ontreal, to the great astonishment of the French, who considered the river above Quebec as Jy navigable by oared vessels.
tThe time it is quite free is stated by general Carleton to be in May.
jPicherie du loup marine, p. 144, ibid. La pSche de la baleine pouvoit donner une singu- llere activity aux colons, & former un nouvel essaim des navigateurs. Le plan de p€cher de la morue sur les deux rives du fleuve S. Laurent, p. 155, ibid.
tilbid, p. 152, 153. L'extraction de bois des chines d'une hauteur prodigieuse, & des pins u^es de toutes les grandeurs, est facile par le fleuve S. Laurent. & les innombrables rivieres I'll recoit. Ce pays avec quelques soins & du travail pouvoit foumir la France entiere des
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Canadians must be restored in integrum to all their ancient laws and usages ; a manner of proceeding as inconsistent with the progressive state of human affairs, as with the policy of any possible civil government, which cannot revert, but must necessarily take up things, and go on the state of existing circumstances at the time it intervenes ; for it can as little stand still at an given point, as it can decide that the flood of times shall go no further. As men move forward, the laws must move with them, and every constitution of government upon earth, like the shores of the sea from the agitation of the element, is daily losing or gaining something on one side or the other.
From all which propositions there seem to follow plainly these political consequences ; that after your Majesty's proclamation, commissions, and instructions, and the establishments of courts of justice, and several ordi- nances which have been issued by virtue of that proclamation, it would lessen, not only in the minds of the Canadians, but of all Europe, the ideas of the dignity, wisdom, and authority, of your Majesty's government, to undo every thing that has been done : that to restore the colony to its military principles and spirit, would be in consequence to restore it to France.
The views of the French cabinet are evident, by the accounts trans- mitted by governor Carleton of the Canadian born officers who served in the last war, who are in a particular manner cantoned in Touraine*, and sup- ported by the French government, with an increase of pay and all arrears.*
With respect to a military system, nothing can more effectually sup- press a rising spirit of commerce, which alone can make the acquisition of Canada of any utility to Great Britain. Commerce grows only to perfection in an open soil, and in an air that is free; it will scarce bear to be regulated : it is like the sensitive plant ; if touched, it shrinks ; but if pressed, it perishes. I chuse rather to speak in this figurative manner, than to enter into detail of the consequences and instances of military powers, exercised in this colony at a certain period. It never can be the interest of any government, however despotic, to oppress commerce ; it would be like the wild Indian, who cuts down the tree, to gather the fruit.
Hitherto the provincef of Canada has been an establishment only expensive and burthensome to the French government. The fur trade was but a small object of attention, in proportion to the political views. The great use of the colony was ofifensively : as a place of arms, to form the head of a chain of forts, and to harass the British colonies, and, by its position and communication with the lakes quite down to the Mississippi, to com- mand the commerce and force of the whole interior of the vast American
•Vide Col. Carlton's letter to the Earl of Shelbum. Dated Nov. 25, 1767. Inclosure. Appendix, No. 1, p. 67, 68.
tHistoire Philosophique, ibid. p. 143. Tous les objets ne produisoient au fix en 1747, qu'un revenue de deux cens soixante mille deux cens livres.
Ibid, p 149. Les despenses annuelles du gouvemement pour le Canada apres I'epoque de 1749, n'eurent plus de bornes.
Les huit premiers mois de I'an 1 760 couterent treize millions cinque cens mille livres. De ces sommes prodigieuses il €toit du i la paix quatre vingt millions.
» See Carleton to Shelbume, Nov. 2Sth, 1767, p. 281.
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continent. A circumstance which varies the political considerations and consequences with respect to the arrangements of Canada very greatly from the case of Minorca, to which it has been improperly compared, as a rule for the government of it : the relative positions are totally different : it might as well be compared to the rock of Gibraltar, or the fort of an African garrison.
If Canada should be recovered by France in a future period, by the mere want of wisdom in a British government, and if France or any other power should obtain but a near equality of force at sea, the consequence must prove the conquest of all our American colonies, or perhaps the establishment of a new independent empire, upon a general revolt of all the colonies, of which Canada, by its position, would form the head. But now under proper regulations this country may be productive of the greatest commercial advantages to Great Britain. The West India islands, and the East Indies are the graves of its best seamen ; the northern American navigation and its fisheries are the nurseries of them ; and Canada may become the source of an infinite supply to this nation both of men and of naval stores.
It is an object of great consideration to your Majesty's government, that the returns to Great Britain are all made in raw materials to be manu- factured here ; and that a considerable duty arises on the exports.
The views therefore of the British government in respect to the political uses to which it means to make Canada subservient, must direct the spirit of any code of laws, of which it may be judged necessary to form the outlines upon the grounds of probability. The additions must be left to time, to experiment, and expediencies, as they shall arise, and to that Providence which holds the scale of empires.
But the great question occurs : By what authority shall the laws, necessary for the government of this colony, be established. It is stated, that doubts have arisen, especially after certain decisions, concerning the legality of the ordinances issued by the governor, with the advice of his council, and without any assembly, as exceeding his commissionX^. If the ordinances are not legal, then all that has been done by virtue of them must be a nullity. Some of them have already been disallowed for exceeding the bounds of the commission, which restrains the power of the governor and council in matters touching life and limb, and imposing duties ; consequently very few allowable ordinances can be made under those terms at any time ; because few ordinances can be enforced without restraints upon the person, or without affecting property by public burthens.
If it should be supposed for a moment, that the crown has not a right at all times to make such ordinances in the person of the governor and council, without an assembly, (as I conceive it has a right, in a conquered
{Printed collection, p. 25, 96.
' The references here are to Maseres' "Collection of Several Commissions, and other Public Instruments, &c." pp. 25 & 96. The first reference is to Maseres' "Draught of an Intended Report &c." See p. 327. The second is to Governor Murray's Commission, See above p. 173.
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country so circumstanced, and at a certain time to make them) yet I should be inclined to think that all the ordinances hitherto made, and not disallowed, are legal ; or that such ordinances might have had, at least pro tempore, a validity within the province, until there shall be an alteration made by some act of the whole united legislature of Great Britain, or at least by order of your Majesty in council, disallowing them. Until such act or order, the case may be conceived to be the same (the governor being the repre- sentative of your Majesty by virtue of his commission) as if your Majesty, at the head of your army in the field, were granting capitulations, or giving orders how to dispose of the new subjects de bene esse, for the preservation of their persons and properties, for the good of the state, which is now interested in them, and for maintaining the peace and permanency of the acquisition : all which I conceive to be powers necessarily inherent in your Majesty's crown.
The mode of making laws for the colony of Quebec, and carrying them into execution, is a subject upon which many persons may differ. The highest wisdom only can determine whether it is necessary to have the sanction of parliament for a code of laws, which your Majesty of right may give to this colony in some other way. But I humbly apprehend, than an act of parliament may possibly serve the most effectually to justify your Majesty's servants, and to fill the minds of the Canadians with greater confidence : it may declare the powers which are inherent in the crown ; and by so doing, it may support instead of diminishing them.
There is a point which deserves the consideration of your Majesty's servants most versed in the common law of the realm, whether if your Majesty has by your proclamation, commissions and instructions, and the several acts done in consequence thereof, given to this conquered country any part of the law of England ; that law, once so introduced, be it more or less, can be repealed by your Majesty's authority alone and without the concurrence of parliament, upon the civil law maxim, cujus est condere ejus est abrogare ?
It is also to be observed, that general Murray is said, upon good auth- ority, to have actually executed his commission with respect to convening an assembly ; that the members were actually chose, except at Quebec.^ So that the expectations of the Canadians have been raised, and, in their ideas, the honour of government pledged to them for a legislative body of their own. In case an assembly shall be hereafter called, in consequence of an act of parliament, it will effectually take away from a Canadian assembly all ground for that pretence, set up by some assemblies in other colonies, of being independent of a British parliament.
If assemblies should be adopted, I cannot omit taking notice of an
error in the report and propositions of the board of trade of the 10th July,
1769, page 17.^ They propose to admit a number of the new subjects into
' See note p. 4SS.
' See Report from the Lords Commissioners for Trade and Plantations relative to the State of the Province of Quebec; July 10th. 1769, p. 383.
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the council. They would enlarge it from twelve members to fifteen ; five to be Roman catholic subjects, to be exempted from subscribing the declar- ation against transubstantiation, as now required by the commission and instructions. But it seems to be forgot, that the oaths against the power of the pope, and in support of your Majesty's supremacy, required by the statutes, will exclude the Roman catholics. Also the manner of wording the plan of an assembly, p. 18 and 19, meant, as it is said there, to correspond with the plan of the council, makes the twenty-seven members all liable to the oaths of allegiance, supremacy, and abjuration, by proposing that they shall not be obliged to take any other. The consequence follows, they are then to take these oaths ; and fourteen are afterwards required to subscribe the test. Now can a Roman catholic, agreeably to the statute of 1 George I. chap. 13, take the oaths which are required to be taken, agreeably to the commission, by the governor and members of the council, assembly, &c. viz. That no foreign prelate or person hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm ? So that this proposition of the board of trade, plainly appears to be inconsistent with its own views in p. 20, that the assembly should consist of twenty seven, all ijidiscriminately to take the oaths of allegiance, stipremacy, and abjuration ; that fourteen will be protestants, viz. who shall take the test act : and the thirteen who take the oaths of allegiance, supremacy, and abjuration, to be probably, as the plan supposes, Roman catholics. But the oath of supremacy renders the latter, in my opinion, impossible. The pope can hardly dispense with the test of the sacrament; but he cannot in common sense dispense with oaths, and declarations, and subscriptions, against his own supremacy, as claiming to be sovereign pontiff of the whole Christian world, and, in the power of the triple crown, to bind and
^^bsolve all persons and things in heaven above, on the earth beneath, and
^Hl the state of the dead below.
^H As it is stated by the board of trade p. 10. The test is to be subscribed
^^y all persons having places of trust, and so required by your Majesty's com- mission to the governor.^ By the test act the sacrament is to be taken by I em within the realm of England.. Although Canada is united to the own of Great Britain, and consequently to the realm, by the terms of ssion, yet I understand that the salvo among the Canadians for the oath supremacy is. Within this realm ? Canada is not this realm, in the view the statute.
After all, if it should not be thought proper for your Majesty to give fresh instructions, from time to time, to your governor of the province of Quebec, to publish fresh ordinances, with the advice and consent of his council ; nor to convene any legislative council, or provincial assembly, for the purpose of revising or repealing the ordinances already made, and of making new laws ; but if it should be thought the wisest measure to lay
r
' See p. 381.
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the state of the province before parliament, then I should conceive that it will be necessary to propose several bills.
First, viz. A bill for the better regulation of the courts of judicature in the province of Quebec.
Second, A bill for declaring the common law already in actual use in the said province.
Third, A bill for better raising and collecting the public revenue.
Fourth, A bill for giving leave to his Majesty's new Roman catholic subjects in the said colony, to profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit ; which were in force antecedent to the definitive treaty of peace, concluded at Paris 10th February 1763 ; and for the better maintenance of the clergy of the church of England already established in the said colony.
With respect to the first, a bill for the better regulation of the courts of judicature in the province of Quebec, I conceive, that the complaint of delays in proceedings of the courts of justice is now in great measure re- moved ; for by the last regulation of the courts of common-pleas, by the ordinance of February* 1770,^ (which repeals a part of the great ordinance of 17th September 1764) it is directed, that the courts of common-pleas established with independent jurisdictions at Quebec and Montreal, shall be open to the suitors throughout the year, excepting three weeks at seed- time, a month at harvest, and a fortnight at Christmas, and Easter, and except during such vacation as shall be from time to time appointed by the judges for making their respective circuits throughout the province, twice in every year ; and the judges are authorized and directed to issue their process, and to execute every other thing touching the administration of justice, without regard to terms or any stated periods of time, as limited and appointed by the ordinance of September 1764; which, with respect thereto, is annulled. The judges to appoint one day in a week, at their discretion, to hear all matters where the cause of action shall exceed the sum of twelve pounds, which day should be declared at the rising of the court, or the next day preceding; and no adjournment shall be made for any longer time than one week, upon any pretence or ground what- soever. Every Friday to be a fixed court-day for matters not exceeding twelve pounds, in which case one judge to be sufficient, the other judge having reasonable cause of absence. The rest of the ordinance contains the forms and modes of proceeding, also a clause, empowering persons, specially commissioned by the governor, to hear causes where the matter in question shall not exceed three pounds; provided that titles to lands shall not be drawn into question by their proceedings, and that they observe the same forms of proceeding, and that they do not sit upon a Friday, but on some other day in every week. It would be very material to see what sort of commissions the judges of the common- pleas have, for they do not appear in any papers referred. I understand them
* This ordinance, which was not in the papers referred, makes the propositions of the solicitor- general on this head in great measure unnecessary. ' See Ordinance of Feb. 1st, 1770. p. 401.
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to have been created by governor Murray, by virtue of his discretionary power, upon his own ideas. If they are thought proper to be continued, certain regulations must be adopted, in regard to limiting their jurisdiction to cases not beyond a certain value.
The expence of the fees of the new courts is easy to be regulated by a table to be settled by the judges; and if they are now larger than heretofore, it is no more than that the fees of justice keep pace with the price of other matters, as corn and all other things, are more dearly purchased now than they were in the province before the conquest, because there is more com- merce, and consequently more specie circulating in it, which is the repre- sentative, or rather the new measure of values; so that more or less specie must be put into the opposite scale against all property in the other, just as it happens, that more or less specie, real, or nominal, or credited, is introduc- ed into intercourse and commutation. The case must be the same in Canada as it is in every other country ; and the uncertainty of the laws, and of the judicial proceedings, has had no small share in increasing the expence of them.
In the report* of the attorney and solicitor-general Yorke, and De Grey,' they recommend that matters exceeding forty shillings, as far as ten pounds, should be determined by proceeding (in the nature of civil bill in Ireland) before the chief justice of Quebec, or by proceeding in nature of the summary bench actions at Barbadoes. How far the ease and cheapness of going to law encourage rather than check litigiousness, is pretty obvious ; however, the local value of money will deserve consideration at all times, in respect to the augmentation of established fees. As a check to litigiousness, and for the promoting quick justice, some method might be found, so as to oblige parties in cases of debt under a certain value, and in all cases of custom of merchants, and of mercantile accounts, to name arbitrators, and those arbitrators to name a third if they do not agree ; and that the award should be certified into the superior court, and made a rule of it upon record, and so carried into execution by it, in the same manner as if the matter had had the most solemn hearing : for which I cannot refer to a , better precedent, than to the act of 9 and 10 William III. c. 15. except that 16 reference is there left to the will of the parties, and of course that act seldom made use of, nor is it very natural that the practisers should commend it ; and therefore I propose, that parties, in cases of certain lue, should be obliged to name arbitrators.
As the English judges may not happen to be expert in the French inguage and law terms, it may be adviseable to give to laymen, persons of
[ character and under standing among the ancient inhabitants of Canada, smmissions to be assessors, but not to have voices.
Whether grand juries, or petty juries, shall be laid aside ; or whether in
riminal ; or civil causes only ; or whether verdicts shall be an open majority,
* Art. vi. No. 8. of the Appendix to the report of the lords commissioners of trade and plan- \ ations relative to the state and condition of the province. 'See p. 251.
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or whether all verdicts shall be special in civil cases, (as the latter is pro- posed in the plan in the printed collection of Mr. attorney-general Mazeres) are questions of which I am not able to form a perfect judgment, as being partly out of the line of my profession ; but it merits a particular consider- ation, how far it may be adviseable and safe for your Majesty's ministers to propose any thing to parliament that greatly deviates from the general fundamental parts of the constitution at home, and which, for a long time, have already taken place in the colony, in consequence of your Majesty's royal word and authority. The justification of your Majesty's judges, the removing them from every suspicion of partiality, and from the danger of personal revenge, is also a matter of the highest consequence towards themselves, their country, your Majesty, and before God. The peril of discretionary powers, is sufficiently pointed out by that great judge lord Hale, in his History of the Pleas of the Crown, page 160, 161, 211, and it merits the greatest attention from those persons who are called upon to propose a legislative system.
After the evidence of the governor, chief justice, and attorney-general of the province, that juries in criminal causes are agreeable to all the Canadians, any imaginations formed to the contrary, with respect to the Canadian lords of manors or noblesse, cannot be admitted. The state of the noblesse in the province will be more particularly explained, when I come to speak of the convents, under the head of religion ; I will only observe, in the case of trial of a seigneur, that other Canadian seigneurs would probably be some of the jurors, and that if any of his tradesmen were of the jury, they would have an interest in preserving the life of the criminal ; as mercantile interests have often supported the worst members in a factious state, both in ancient and modern history, to avoid a probability of losing their debts. But the seigneurs or noblesse by virtue of their fiefs, and the officers and nobles by patent, who have served in the French troops, are, the one too inconsequen- tial, and the other too miserable, in point of property, to merit any dis- tinction by trials, or in the nature of the punishment : to compare them to British peers would be to form an argument of ridicule and not of reason.
As it appears that the Canadians have had so great an objection to arrests being dishonourable, and as arrests create so much misery in a whole family, who become a burthen upon the public, as they prevent every exertion of industry, and render the morals of the prisoner much worse, by confining him in company with the most abandoned criminals, it seems to me that in a commercial state it may be proper to take away arrests of body in the first instance, in civil causes under ten pounds ; unless there is an oath of two sufficient witnesses, that the defendant is likely to withdraw himself out of the colony. To arrest an industrious man, when personal labour is of such value to the community, is a public loss, as well as a private one to the person who arrests : it is putting fetters upon that industry, the exertion of which only could discharge the debt.
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If arrests should be allowed, it seems highly necessary that imprison- ments should be regulated. It would be happy if they were so in every part of your Majesty's dominions. The security and reformation of prisoners should be the objects of the legislature in depriving a subject for any time of his liberty : his life, and health, and morals are of public consequence. The police in Holland, where every prisoner has a separate cell or apartment, is deserving of imitation ; neither their minds nor bodies become there liable to the worst contagions ; and a released prisoner returns back to society a better and more useful subject than when he entered his cell.
The terms of the ordinance of the 1st Ferbuary, 1770, appear to me insufficient, in not directing that the sale of all estates in land taken in execution shall be made by public auction ; nor does it regulate the other conditions of sale, nor the place where the auction shall be : all which being left to the discretion of the provost-marshal, as I conceive it, may be extreme- ly injurious to the proprietor; and furnish persons with means of procuring the estates at a price greatly inferior to their true value. The ordinance only settles the manner of giving notice, the time of sale, and the fees for the publication.
It may be proper to allow all pleadings to be in French or English in all the courts at the option of the parties indiscriminately. It should be known in such a country, that parties may plead for themselves : it would be proper to confirm expressedly so much of the process verbal, or rules of practice, in the French courts of the colony of the 7th November, 1668, article 6, as relates to this point ; because this public confirmation will obviate the complaint among the Canadians, of the expence of suits, and it will please the inhabitants, without hurting the practitioners ; for if the parties can find an abler hand, or can pay him, certainly they will pay him to plead for them : if they cannot, it is but justice they should be permitted to tell their own story, and in their own way.
I am professionally convinced of the absurdity and confusion which is ever occasioned when the style and forms of one system of law, or even of one court in the same system, is applied to the practice of another : the measure of proceedings being inconsistent with the nature of the principles, or the business in question, is in many instances so unequal, that to judge of the law of one country by the rules of process of another is, besides doing injustice under an appearance of doing better, a thing as full of absurdity and ridiculousness, as if a taylor were to take a measure of a man's coat by a ship's quadrant. The forms and style of English writs and pleadings ill agree with the language of the French civil law : it deserves to be consider- ed", how far it may be necessary to follow many other parts of the French process, if the French law in civil property is to remain as the common law of the province. I conceive this must be left to the knowledge, discretion, and experience of the judges ; who will have the aid of the bar and the
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Canadian practitioners : and it may be enacted that no judgment* shall be arrested merely for want of form in civil suits. The fact, the demand, and the defence are easily reducible to simple propositions. But in criminal cases, as all the law of England on that head actually now is introduced, the forms of indictment, in my opinion, must be continued, and ought to be as strict as in England ; upon this ground, because the laws of England being dipt in blood, the advantages given to criminals, by the lenity of the process, and the power of pardon in the crown, are the only ballance of the peculiar severity which is manifest in the inequality of crimes and punish- ments. The English laws in their institution seem to have been made for the terror of a daring people ; the execution of them, for a generous and com- passionate one. I concur in thinking that there should however be a mitigation of the law of felonies by statute. That no person in the province should be capitally convicted for theft or robbery under five pounds, although that is equal to ten in England ; and that in all felonies intitled to clergy, no persons shall be burnt in the hand, or their goods confiscated, but the punishment to be a fine or imprisonment, at the discretion of the court.
As the province derives the less advantages from the superior court, although the most important, and most ably supplied, for want of more frequent sittings, it should be regulated : and the court of King's Bench should be held oftner, and in terms as shall be judged most for the con- venience of the inhabitants, besides the circuits. For it is stated that the court of King's Bench has sessions only three times a year at Quebec, and twice at Montreal : whereas in the time of the French government there were three royal courts, one in each district of Quebec, Trois-Rivieres, and Montreal, vested with full power civil and criminal : each court had its judge, and a king's attorney-general for crown prosecutions. They held two courts in every week, except six weeks vacation in September and October, and a fortnight at Easter, and these courts would even sit on other days in the week if extraordinary business required it. From these courts there lay an appeal to the supreme council of the province, which sat every week. The expedition and reasonableness of such arrangement for the distribution of justice is infinitely striking. And it appears not to have been without cause that the Canadians have felt and complained of the difference. To make the sittings of the supreme court of King's Bench more regular, it cannot be better than to adopt the ordinance for that purpose, which was recommended by the chief justice himself from the bench to the grand jury of the province, but which did not pass, because some of the English merchants of that jury, desirous to delay causes of actions for debt in the then low state of commercial credit in the province at that time, did not approve so much expedition of judgment ; and therefore the English part of the jury never acquainted the Canadian part, all of whom are now
* Vide solicitor-general's Report.
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sensible of the utility of the ordinance proposed, and regret the loss of it. Mr. attorney-general Mazeres has printed it, Collection, page 71.'
In the cases of appeals the legal value of money deserves great con- sideration. If the plan of three courts, and an appeal to the governor and council, with two of the judges and King's attornies of the other courts, is not adopted, then the appeal, in cases of four hundred pounds value, might be made directly to your Majesty, without any other intermediate appeal.
It may be also proper to erect, as proposed in the report of the governor and chief justice, a court at Detroit, because the settlers there, amounting to about seven thousand persons, are populating very fast, and extending themselves, as the people of New York are, towards each other. An objec- tion may be taken to this, that it is not policy to encourage back settlements : but the question seems to be, not whether the population of the interior North America should be encouraged in policy ; but the fact is, that there is, and will be population there ; and that where population is, the dominant power must regulate the settlers, or they will regulate themselves probably to its prejudice. The interior settlements certainly are a material supply and support, both of men and provision, to the exterior on that coast, and serve equally to take off the produce of the mother-country, and to make returns by the medium of the sea-ports ; but there can be no real distinction as to political good between the inhabitants of the maritime line and those of the back settlements, for they are much connected in view of national strength and benefit ; as the radii of a circle all meet in the same common center, and all touch the same extreme boundary.
The great distances of Montreal, one hundred and eighty miles from Quebec, also of Trois- Rivieres, and Detroit, deserve attention ; and it is an argument suflScient for forming three courts of King's Bench, to save to your Majesty's subjects the great expence of employing for every person, not only his attorney on the spot, but his agent at Quebec, besides the fatigue and expence of travelling himself, and bringing up his witnesses from the extreme boundaries of the province, in a very severe climate. I approve, however, that it should be in the discretionary* power of your Majesty's principal attorney-general, to remove any party for safety for a quick and more convenient trial to Quebec; but this should be restrained to cases of treason only.
It is a fact which deserves attention, that for want of a good govern- ment since the conquest, the trade of furs has been but one third of what it was under the French, as appears by the exports.
To look into the map, the situation of Detroit sufficiently speaks the propriety of some regulation of justice there ; and more especially as it is the mart and entrepot of the fur-trade and the Indian commodities, such a regulation is necessary for the trade, and for preserving peace and friendship with the Indian nations resorting thither.
> The reference is to Maaeres' Collection of several Commissions, Stc. 1772, p. 71. * Vide solicitor-general's report.
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When Gaspey shall be settled, a jurisdiction should also be established there ; but I should apprehend, from observing the situation and form of it in the map, that it might be very proper to unite it to the province of Nova Scotia.
I should imagine it would be very useful if the judges were to have a power, in cases where it might be thought necessary, by themselves,- to appoint commissioners in distant parts, with power to summon juries, before whom examinations may be taken, with proper solemnities, upon the spot, and a verdict transmitted to the supreme court under seal, whenever a matter of fact, such as concerning boundaries, waste, dilapidations, execution of contracts, damages done, &c. is in dispute.
The taking evidence in private upon affidavits should be disallowed, unless the parties should consent, or the court should direct them to be taken upon a special cause, or proper grounds shewed upon motion by council. The injustice of parties being evidence upon their own cause, and the prac- tice of causes being determined entirely upon affidavits, is too full of evil not to deserve a peculiar attention, especially if the party who makes the first affidavit, has not a liberty of a reply to the affidavit in answer; in the usual practice, as I conceive it to be, equivocation and perjury must reign in full force.
It is proposed, by Mr. Mazeres, that in cases of debt to a certain amount (which ought to be very considerable), an allegation, or plea of faculties or effects, being delivered by the plaintiff, the defendant should answer upon oath, giving in an exact schedule of his estate and effects.' This proposition may be thought peculiarly hard in many cases : but I conceive the state of the country must determine the propriety or impro- priety of the proposal, and that such schedule and account ought not to be called for without very special cause, to be determined in the discretion of the judges.
In a country in which there is very little money, but corn and other perishable effects make the greatest part of the property of the inhabitants, it may be right, in cases of suits for some special property, of the perishable nature of which a proof is made, that the whole at the request of any one of the parties should be liable, by an order of the court, to be sold to the best bidder, by persons to be named and commissioned to sell by both parties ; and that the amount shall be placed in the hands of the judge and his register, in imitation of the civil law methods in usum jus habentium, or for the account of the party who shall finally prevail in his suit ; and the amount to be paid by them into the hands of the receiver of his Majesty's revenue, for his Majesty's use ; and that bills be issued to the said judge and register by such receiver for the repayment of said sums, at the interest of three per cent. A measure which I should conceive would be very useful to create a dependence upon, and strengthen the hands of government in
' See Maseres' Draught of Report, p. 3S9.
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many views, as well as it would be equitable and advantageous to the respective parties.
It may be right, that the judges of the several courts in the province, should be allowed a discretionary power in granting of full costs, and taxing bills.
Instead of one provost-marshal for the whole province, it is proposed, that there should be a sheriff for each district, with some title or mark of honour to the person who should bear it.
The two courts of common-pleas, established by general Murray's ordinance of 17th September 1764, at that time with military men for judges, and priests assessors, and now having almost all the affairs of the colony brought before them, evidently tend at all times to lessen the utility and consequence of the supreme court.
Mr. Mazeres recommends' that the province be divided according to its three ancient districts of Quebec, Montreal, and Trois-Rivieres ; that there should be three royal courts, or courts of King's Bench, in each ; that the judges should have been barristers at law, who have been exercent three years at the English bar, at least, and who have a competent knowl- edge of the French language, and three King's attornies, and no other courts. These courts to be limited to their respective district ; co-ordinate indeed, but not concurrent, as not of equal authority every where, nor as liable to be controuled by each other: and this measure Mr. Mazeres recom- mends on a ground which appears to be very conclusive, that this division I is best adapted to the situation of the several parts of the province, and that [the Canadians have been used to it, and that it is therefore most agreeable [as well as convenient.* If this establishment of three courts were to take 'place, then it is proposed, in the same plan, that there should be an appeal 'to the governor and council of the province, confined to a certain value, and Ifrom thence to your Majesty in your privy council. The reason laid down lis, that the appeal to the governor and council would preserve a uniformity [of law throughout the whole province, and would obviate a difference of lecision, which might gradually grow out of precedents in the three different listricts, if the three royal courts, or of King's Bench, were to be left per- jfectly independent, and not to unite in a third superior court in the province. It is also very well proposed, that the three King's judges, and three Jattornies should be members of the council ex officio, so as to aid the gover- lor and council upon appeals ; whereby the best law abilities in the province fwould be employed in forming decisions in the last resort, which would be fin fact checking any arbitrary proceedings of a governor, and forming the [law -of the province. That they should attend the governor at certain [times of the year, most convenient for hearing appeals, which is thought ' to be one month at Christmas. To this I must add, in my humble opinion, a necessary limitation, that the judge from whom the appeal lies, and the
' See Maseres' Draught of Report p. 355. * Printed Collection, p. 38.
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King's attorney in his court, shall not sit at the hearing of the cause appealed. It might possibly not be improper to add the judge of the vice-admiralty, and the advocate-general, to the number of the members of the council, as before proposed.
That no appeal should lie to the King and council under five hundred pounds, is thought by some persons a hardship, and that it leaves no check upon the governor and council in less sums of great value in so poor a colony.
It is proposed by Mr. Mazeresf,' that no new examinations shall be taken upon appeals in any causes, but only any error of the proceedings be corrected, and a new trial of any fact, if good cause is shewn, shall be granted ; and a trial, by a double number of jurymen, if the losing party requires it. That the method of proceeding in the first instance in civil actions* in the common law court, should be as follows ; the plaint is to be read to the judge in open court ; if he determines that there is good cause of action, summons to issue, but not till then. If the plaint is admitted, it is to be filed as a record ; if non-appearance of the party, or good cause shown of non-appearance, then the party summoned to pay costs, at the judgment of the court, upon circumstances, for the delay of suit ; and fresh summons to appear again shall issue ; if neglect to obey the second summons, judg- ment to go by default. Answer to the plaint to be either in French or English, and to be filed. That the judge may interrogate the parties himself, in order to determine whether farther testimony is necessary. If either of the parties, on the judge determining that farther testimony and trial is necessary, chuse to have a jury, the party praying it shall pay the expence of the jury's attendance ; if both pray to have a jury, both shall pay. If the contest is between a native born subject and a Canadian, the jury to be de medietate, if either party shall require it : the jurymen to receive five shillings per man. For at present the Canadians, as it is stated upon good authority, complain of the attendance upon juries, in civil suits, as a heavy burthen and interruption of their occupations: though they like well enough to be tried by juries, they do not like to be the triersj, without some compensation.
That any governor should have it in his power to suspend, supersede, or otherwise controul, the counsellors or practitioners at the bar, is evidently liable to many objections. In my humble opinion, therefore, it seems necessary to enact, that for the better regulating all the public courts of justice of the province, the chief justice shall have the sole power of admit- ting and licensing all advocates, counsellors, and pleaders, procurators, attomies, and solicitors, in the several courts of justice in this province ; with power to make rules for the proper serving or education of such persons, and to examine them before admission, and to reject them if he shall see
t Printed Collection, p. 38, 39.
• Printed Collection, p. 33.
t Printed Inclosure, p. 38.
' See Maseres Draught of Report, p. 361.
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cause ; also to suspend or deprive them of the exercise of their offices, for any neglect, contempt, delay, or malversation, fraud, or undue proceeding, in his or any other court, when he shall see cause ; and the governor of the said province shall not interfere in the same in his public capacity.
It is also a point that merits great attention from government, that the notaries, who are a very useful and very respectable sort of men, should be continued with their usual privileges, and have some advantages granted them, and should be allowed to practise as solicitors and advocates, and even to be assessors.
It would be right that the law officers of the crown should have honour- able establishments, so as to raise them high in respect from the inhabitants, and to make them less dependent upon private business. Their salaries, as stated in the Inclosure Appendix, No. 15, are very mean and unworthy of men of education, abilities, and honour. Those clients who pay best for time and labour, will certainly be best served. An encrease of salaries will create an expence : but there may be a false oeconomy ; and there is no doubt of the truth of this proposition, that a small body of men of abilities in the law, sent out and maintained by the crown in a manner adequate to their rank, and made independent of every private connection, will answer the views of government, and preserve the peace of the colonies more effectually than ten regiments. What has been the consequence in the colonies, and elsewhere, of independent men of great abilities in the law, dissatisfied, with reason or without, and who have gratified their own resentment, or the views of a party, at the expence of the whole kingdom, I need not to observe, and shall only refer to that part of the report upon the civil government of the colony made by Mr. Yorke and Mr. De Grey, which is very strong indeed upon this pointf ; of the meaness of the law establishment, which has too long remained a dishonour and a prejudice to your Majesty's service.
The second head proposed is a bill for declaring the common law of the province.
The Canadian lawyers are, it seems, not entirely agreed how much of the French system of the custom of Paris § has actually enured in the province of Canada. The capitulation for Montreal and the province, article thirty-six, which engages to preserve to the inhabitants their pro- perty, seems to me to stipulate the manner in which that property is to be held ; of consequence the tenures are to be preserved, and all the laws relative to that property. For it is not only the thing which we hold, but the manner in which we hold beneficially, that constitutes our property; therefore I conceive that all the lands in Canada, the property of native Canadians, or which have since passed by descent or by will, are, in virtue of the capitulation, still governed by the law of France, as to the tenures or modes of holding ; although by the forty-second article of the capitulation
t Vide p. 156, Inclosure of the Board of Trade, Art. 2. I Printed Collection.
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granted for Montreal, and the rest of the province of Canada, and by the ninth article of the treaty of Versailles, the inhabitants become subjects of your Majesty. How far your Majesty's proclamation, and the commissions and instructions have or have not superseded this idea, arising out of the terms of the capitulation and treaty, and how far the case of the new settlers, emigrants from Great Britain, and acquirers of lands by new titles, as by mortgage, grant or purchase, is capable of a distinction, has been already observed upon.
I think there is a great distinction between the treaty and capitulation ; for the treaty, which makes the inhabitants subjects of your Majesty's crown, confirms to them their property in no other mode than in a permission to retire, and to sell their estates, and those restrained to be sold to British subjects.' So that if they stay and claim under the treaty only, they stay under condition of becoming, by their own free act, British subjects ; and as such subject to British laws. But the treaty made with the sovereign power of France, which, without taking notice of the capitulation, transfers its subjects pleno jure, does not supersede the capitulation made with the inhabitants ; because I consider capitulations, in the eye of the law of nations, to be not only as national, but personal compacts, and made with the inhabitants themselves, for the consideration of their ceasing their resistance. It is consistent with the honour and interests of this kingdom, that they should be religiously observed, and that the condition of the grantees should be rendered substantially better, rather than worse, so far as any person or persons are capable of taking benefit of the grant.
At the same time I must observe, that I do not conceive that your Majesty is so bound in your legislative capacity, that you cannot in parlia- ment change the laws of succession or heritage, or prevent the keeping up any corporate body ecclesiatical, by preventing a perpetual renewal by new members, or that your Majesty cannot regulate any other general matter of dividing property real or personal, after the death of the possessor, in the same manner as your Majesty, in parliament, may change the laws respecting your other British subjects ; so that the law be not made to the prejudice of any particular private person while he lives. Inasmuch, as no man naturally hath property after death, the community to which it reverts has a right to fix the law of partition after death, as it shall judge most for the benefit of all its members. The right to dispose by will, or to make a private law for a family, is a privilege granted by the community; and restrainable, as the law of France restrains it more than that of England, by excepting the legitime and limiting devises of land in certain degrees, except by deed by and among parties living.
It would probably answer every just and reasonable purpose, and would tend perfectly to quiet the minds of your Majesty's Canadian subjects, if a bill were to pass in parliament to the following effect. That in all
' See Treaty of Paris, 1763, art. 4, p. 100.
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cases of wills, tenures, ancient rents, quit-rents, service not being military, divisions of lands, and transfers, hypothecations, or charges and pledges, or incumbrances of property, moveable and immoveable, and of hereditary descent, or partition of dower, or distribution in cases of intestacy, the legitime, or portion of children and widows, and of all deeds, leases, and contracts, the ancient laws, customs, and usages of Canada shall be valid ; unless the said customs and usages shall have been deviated from by any consent of parties by express convention, or in which the modes of the English law, as in cases of transfer between a Canadian and English born subject, shall have been followed ; that in all cases where such custom and usages of Canada are relied upon, either by the party complaining, or the respondent, such custom and usage shall be specially pleaded. And in order the better to erase from the minds of the Canadian subjects, their ideas of veneration for the edicts of their late sovereign, and for the arrets of the tribunals of France, and as much as possible to make them sensible of their union with, and dependence upon the British government, it should be enacted, that the French law, known under the denomination of the custom of the viscounty and provostship of Paris, and so much thereof only as hath actually been practised in the province, shall be pleaded under the title of the common law, and the custom of Canada, as by act of parliament established, and under no other title whatsoever ; and the abstract of the said custom, as hath been drawn up by a committee of Canadian gentlemen of the law,' shall be annexed to the bill to be referred to, as the sole rule; observing only the alteration in the articles 99 and 101, as in the advertise- ment or preamble of the said abstract is set forth ; that lands already granted, or to be granted by your Majesty, your heirs, or successors, shall be holden in free and common soccage tenure, and shall pass according to the laws of England: power always reserved to your Majesty to make grants of lands in any other mode of tenure, if to your Majesty it shall seem meet.
The mode of doing fealty and homage for the Canadian seigniories already established is extremely simple, as appears in the principal extracts ^^ of the French laws, c.i. tit. Foi et homage. If it is proper to change it at all, ^■it will be better to form a record of the title of the tenure in a more solemn ^H manner, by registering the homage.
^H It may be proper that the laws of the police hitherto established and ^^ppractised, should be observed and carried into execution by the justices ^Band other peace officers, and that his Majesty's governor may, with the ^Bconsent and advice of his council, at any time, on the presentment of any ^■twq or more house or land-holders, or any one of his Majesty's justices ^Bof the peace, or law officers, issue such fresh orders of police as he shall
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' The reference is to the abstract of French law entitled "An Abstract of those parts of the Custom of the Viscounty and Provostship of Paris which was Received and Practised in the Province of Quebec in the time of the French Government. Drawn up by a select Committee of Canadian Gentlemen well skilled in the laws of France and of that Province by the desire of the Hon. Guy Carleton Esq. Governor in Chief of the said Province, London 1772." See also note 3, p. 300.
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judge necessary, from time to time, for the better maintaining the highways, streets, bridges, paving, public edifices, wharfs, navigations, for preventing fire and removing of annoyances to health, or to the free passage, in places where passage hath been usual ; provided that such orders be subject to an appeal in cases of property, above the value of ten pounds, to the chief justice of the said province.
The Canadian inhabitants readily enough embrace the protection of the laws of England when they find they make for them. There is some- thing very whimsical in the case of M. St. Ange, which I have seen as stated upon great authority, and it shows the motly mixture of French and Eng- lish laws in the province, and the confusion resulting from the uncertainty of them, and the want of a regular settlement. Mr. Grant purchased the estate of a minor, Mr. St. Ange ; the former a British settler, the latter a Canadian. Mr. Grant never having seen the estate, paid a part of the purchase money, which was very considerable : upon a view of the estate he found it inferior in value to his expectations by one half. He was sued for the remainder of the money ; he pleaded the civil law of France, and insisted that he was intitled to a restitution in integrum, on proving the true value of the estate to be only one half. The Canadian insisted upon the laws of England, and a special performance of contracts, on the ground of the rule of the law vigilantibus non dormientibus succurrit lex. This cause will probably find its way to the council at home.
The description given by general Carlton, in his letter to the earl of Shelburne, No. 3. p. 90. 24th December 1767,' of the confusion of the courts of justice, and the consequence of their proceeding by different rules is very striking : the governor and council, as a court of equity, reversing the decrees of the supreme court of King's Bench, which reverses that of the Common Pleas.
There are a number of edicts, declarations, rules, ordinances and pro- visions, which have hitherto been the written law of the colony, and in actual use ; which appear from the extracts to be so wise and well fitted to the nature of the colony, that although they cannot now operate by the authority of the French King, yet they seem many of them very proper to be adopted in the new system of law to be given to the Canadians ; and therefore it may be right that the substance of those extracts which are proper should be declared to be a part of the common law of the province of Quebec ; and to be recited accordingly in this act of parliament, and to be pleaded under it, and not under any other title than as the act of his present Majesty for declaring the common law of the province.^
This article cannot be concluded without taking notice of the act of habeas corpus, the benefit of which, if extended to this province, may in policy be limited, on account of the peculiar circumstances of the province,
' See Carleton to Shelburne, Dec. 24th, 1767, p. 288.
' In Appendix No. Ill to Marriott's report, a Ust of these is given, with the introduction, "In addition to the act proposed, under the head of the Law of the Province, it may be right to consider the following ordinances made by the governor and council."
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and the natural views of the court of France in case of a future war. The governor and council may have a power to suspend the effect of the said act, during the time of any hostilities or declared war, rebellion, insurrection in arms, or invasion of the province, or any other of the dominions of Great Britain.
The proposition made by Mr. attorney-general Mazeres, in his printed draughtof a bill for parliament for settling the laws of the province,' deserves a very particular consideration, whether it may be useful (if it is thought proper to deviate at all from the French laws of Canada respecting civil property) to introduce the mode of distribution, so equitably settled by the famous act of Charles II ; the English law of dower ; of wills of personal and real estate (in which latter case, the French by their own law are under some restraint) ; inheritance in descent, and of coheirs ; with some alter- ations in the French and English law more consonant to natural equity with respect to parents in the right time ascending inheriting the lands of children, in default of heirs in the descending line, or of brothers and sisters in the collateral, and less consonant to the feudal principle ; which restrains that ascent, and which gives, according to the law of England, the preference to the uncle to inherit the lands of his nephew before the father of that nephew.
In the preface to the abstract of the laws of police, drawn up by the Canadian lawyers, great complaint is made of the not observing the arret of the council of state of 28th April, 1745,^ which forbids the building any house or outhouses with stone or timber, unless the owners have annexed a French acre and a half in breadth, by thirty or forty in depth, on pain of a hundred livres as fine, and demolition ; except granaries, hay lofts, and store houses. It is represented that the present inhabitants avail them- selves of the laws of England, and croud together, as it is natural ; in consequence of which many of them live very miserably and idle ; and the lands which are more remote remain uninhabited and without cultivation. To endeavour to enforce the substance of this arret, by any act of the British legislature, would be deemed a hardship unnatural to the freedom of our government, nor would such an act be carried into force : and there- fore, like all other acts unexecuted, which are found to be mere swords in the scabbard, it would only serve to weaken the high idea the people yet have of the sovereign authority.
The present allotments of lands are thought, being parcelled out in contiguous columns of a certain breadth and depth running up from the river St. Laurence, to be the best calculated partitions possible for the maintenance of each separate family and for mutual aid and defence ; and therefore the preserving of the indivisibility of these allotments is an object
i which is thought to merit the attention of legislature : with this view Mr. ' Referring to Maseres' "Draught of an Act of Parliament for settling the Laws of the Pro- vince of Quebec." published 1772.
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Mazeres proposes, in a printed draught of an act of parliament,' an alter- ation of the laws of inheritance, to take effect at a distant period, so as to hurt no persons now living, who therefore cannot complain; which alteration might answer the purpose : besides, that by the power of making wills or deeds, every man has it in his power to form another law for himself, and his family, descendants, or devisees, so as to render any fixed law of inheritance of no efTect, if it does not fall in with his own ideas ; by these means, agree- ably to the spirit of human pride, which carries its views beyond the grave, he may unite all the lands he possesses, in one hand, and in a certain line, the first point of which the testator is delighted to form, and to extend himself into an ideal perpetuity by succession. The French law restrains at present the power of devising by will, by its alloting portions called the legitime ; the Canadians may defeat the new law of inheritance as proposed, at their own pleasure, if it were to take place by their wills or marriage contracts. The modification of introducing the law of primogeniture to take place at a certain distant period, strikes me as very prudent ; because I am fearful that nothing would tend more certainly to give disgust to a people, however disposed to submission, than an immediate alteration of ancient laws of inheritance, well known among them, and settled by usage into a kind of holy reverence.
A change of the law of dower, and of all that article of the French law concerning property between husband and wife in communaute might be rendered useless, if the proposed change on this head were carried into execution : for altho' the French law has its subtilities, and might be amend- ed and simplified by the introduction of the English law of dower ; yet the fact is, the law of dower is rendered inefifectual in England, by the creation of trusts, and frequency of marriage settlements : the French are particularly accustomed to make formal marriage contracts, even when a very small property is the object of those conventions, and among the lowest people.
In respect to wills, I approve the amending the English statute of frauds, and extending the same formalities to personal estates as to land. The proposed article, that no will shall be valid, which is not executed seven days before the death of the testator, with several amendments of the statute, will be of very great service, yet not sufficient, in my opinion, to prevent fraud, which the solemnities of the very forms, required by the above statute in the case of lands, have rather furnished with tools to intrench itself instead of defeating it. Nothing can effectually destroy fraud but the attestation of public persons ; the lodging an authentic copy sealed with a magistrate, by the testator himself, and the revocation as formal as the making of a will : all which I think is admirably well answered by confirming the French law, as in the printed extract, Tit. XIV. Art. I. If the distance of seven days between making the will and the death of the testator were added, in order to give validity to an act requiring so much
' See note 1, p. 475.
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deliberation as a last will, it might be still better, and that even the party should have appeared at some place of public worship, and according to the Scotch law, at market, if there is one, in the interval between making his will and before his death.
The English law of distribution of personal estates in case of intestacy, I conceive to be a very good law, because very clear and very equitable. Itseemsunreasonable that the English settlers should submit to the French law in regard to personal, however they may acquire lands under the French law, now proposed to be adopted, so as to be considered hereafter as the English common and local law of the province. An uniformity of the law of personal estate would be extremely convenient and useful for all the inhabitants in a commercial country, and it would prevent great confusion when Canadian and English families come to be more mixed. As lands are a permanent, but personal is a floating property, the laws relative to them may well be made different ; the policy which regards the encourage- ment of personal industry and commerce on one hand, and the permanency of landed possession, for the purpose of keeping up degrees of subordination in the subject, and for the better tillage and military defence of a kingdom on the other hand, dictates this distinction.
At the same time I conceive that the French laws of distribution of personal property, in cases of intestacy, and the legitime have a great deal of equity ; yet with respect to the partage of their lands among all the children, without regard to primogeniture, it is attended with great inconveniences to themselves. Nothing reduces the families of the ancient French seigneurs to misery more than the division and subdivision of their lands by their own law ; a law, which though it appears at first to breathe more the spirit of democracy than of monarchy, yet it is in fact calculated for a military overnment only ; because nobles so reduced can and will only live by the sword.* The allotments to the under tenants in Canada are about eighty acres, just sufficient in that cold country for summer pasture and winter fodder, for the cattle of one family. I have no objection to any middle system between the French and English law, better calculated for keeping up a sort of yeomanry or gentry, with estates or seigniories as now allotted, of about two or three hundred pounds a year when well cultivated, and to be indivisible ; provided that it is right to new model the colony all at once. Probably every year, as more remote from the conquest, will lessen the sub-ordination of the people, and may encrease to your Majesty's govern- ment, the difficulties of any future reformation, of both the law of England, and of France. The propositions of Mr. Mazeres on this head, the reflection
•Des Ics premiers jours de la colonic, on I'avoit comme etouffee au berceau. en accordant i des officiers Sl des gentilhommes un terrein de deux 4 quatre lieues de front sur une profondeur iilimitee. Ces grands proprietaires hors d'etat par la mediocrity de leur fortune et le peu d'apti- tude 4 la culture, de mettre en valeur de si vastes possessions, furent comme forces de les dis- tribuer 4 des soldats ou & des cultivateurs, 4 charge d'une redevance perpetuelle. C'etoit in- troduire en Amerique une image du gouvernement feodal qui fut long temps la ruine de I'Europe. Histoire Politique, torn. vi. p. 143.
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of governor Carlton on the close of his letter, No. 5.' (proposing a few companies of Canadian foot and officers) upon the effects of division and subdivision of lands in every generation ; the idea of the French government in the arret quoted, but impracticable to execute, and the laws of Nor- mandy, which agree in part with the propositions of Mr. Mazeres, are reasons in favour of this change. Whether it may be a measure fit at the present, or at a future time, and by what authority to be carried into execution, must be submitted to the opinion of those persons who are best acquainted with the disposition of the inhabitants, and the state of the colony in the present partitions, and to your Majesty's royal wisdom, upon the question of the present expediency. The detriment of the French colonies, as an obstacle to the clearing and cultivation of more lands, arising from the French law of partition, is so strongly painted by a French writer* of great authority and abilities, that his opinion appears to me to be con- clusive : I have therefore given the whole of his opinion in the marginf.
There is one more observation which is to be made, before I dismiss the subject of landed inheritance, that both by the subtilities of the English and of the French laws, the commutation of landed property is rendered liable to much delay, difficulty and litigations on titles, and prevents its being brought into commerce so much as it might; which is a matter of the utmost importance in any commercial country, particularly in a new colony, where
' See Carleton to Shelburne, Jan. 20th, 1768, p. 294.
' Abbe Raynal.
tQui le croiroit ? Une loi qui semble dictfe par la nature meme, qui se presente au coeur de I'homme juste et bon: qui ne laisse d'abord aucun doute a I'esprit sur la rectitude de son utilite: cette loi cependant est quelquefois contraire au maintien de nos societes; elle arr^te les progres dea colonies, les ecarte du but de leur destination; et de loin elle prepare leur chflte et leur ruine. Qui le croiroit ? C'est I'egalite de partage entre les enfans ou les coheritiers. Cette loi si naturelle veut ^tre abolie en Araerique.
Ce partage fut necessaire dans la formation des colonies. On avoit 4 d^fricher dea contrees immenses. Le pouvoit on sans population? et comment sans propriety fixer dans ces regions ^loignees et deserts des hommes qui les plus part n'avoient quitte leur patrie que faute de pro- priete. Si le gouvernement leur eut refuse des terres ces avanturiers en auroient cherchi de climat en climat, avec le desespoir de commencer des establissements sans nombre, dont aucun n'auroit pris cette consistance qui les rend utiles Sl la metropole.
Mais depuis que les heritages d'abord trop 6tendus ont ete reduits par une suite de suc- cessions et de partages soudivises, a la juste mesure qui demandent les facilit^s de la culture; depuis qu'ils sont assez limites pour ne pas rester en friche par le defaut d'une population ^qui- valente a leur etendue, une division ulUrieure de terreins les feroit rentrer dans leur premier neant. En Europe, un citoyen obscur qui n'a que quelques arpens de terre, tire souvent un meilleur parti de ce petit fonds, qu'un homme opulent des domaines immenses que le hazard de la naissance ou de la fortune a mis entre ses mains. En Amerique, la nature des denrees qui sont d'un grand prix, I'incertitude des recoltes peu varices dans leur espece, la quantite d'esclaves, de bestiaux, d'utensiles necessaires pour une habitation: tout cela suppose des richesses considerables qu'on n'a pas dans quelques colonies, et que bientdt on n'aura plus dans aucune si le partage des succes- sions continue a morceler, a diviser de plus en plus les terres.
Q'un pere en mourant laisse une succession de trente mille livres de rente. Sa succession se partage egalement entre trois enfans. II seront tous mines si Ton fait trois habitations: I'un parcequ'on lui aura fait payer cher les batimens, et qu'4 proportion il aura moins de negres et de terres; les deux autres parcequ'ils ne pourront pas exploiter leur heritage sans faire batir. lis seront encore tous ruines, si I'habitation entiere reste k I'un des trois. Dans un pais ou la condition du creancier est la plus mauvaise de toutes les conditions, les biens se sont eleves & une valeur immoderee. Celui qui restera possesseur de tout sera bien heureux, s'il n'est obligfi de donner en intSrfts que le revenue net de I'habitation. Or comme la premiere loi est celle de vivre, il commencera par vivre et ne pas payer. Ses dettes s'accumuleront. Bient6t il sera insolvable; et du desordre qui naitra de cette situation, on verra sortir la ruine de tous les coh^ ritiers. L'abolition de I'egalite des partages est la seul reraede & ce desordre. Histoire Politique, tom. vi. p. 155, 156, 157. The author goes on to prove that the great load of debts due both within the French colonies, as well as to the mother country, which ruins all their establishments, is occasioned by the law of partition and subdivision of lands ad infinitum in successions.
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credit wants every sort of supply and foundation. The retrait lignager and feodal makes a part of the French law, whereby the lord or next heir must be parties consenting to the sale of every estate, and to have a right of lods and ventes of resuming and pre-emption within a year, which right is a twelfth part of the purchase-money, and cannot be taken away without injury to the proprietor, the lord having taken a small rent (originally from his under-tenant) with a view to these fines of alienation to a stranger, which are the great profit of all seignories. So that if the lord had not this power of resuming, he might be defrauded by a sale for a less pretended sum than was actually paid. These subtilities introduced however into the forms, often defeat the lord and the heirs ; because the decisions of the courts of France, adapting their interpretation of the ancient existing laws to the wants and manners of the times, endeavour to sap all these obstacles, and to introduce by degrees, and by construction of law, an easy com- mutation of landed property, necessary in an age of commerce. If, therefore, the mode of tenure is to be changed, as it is proposed, some compensation ought to be given to the lord and heir, as in the case of extinguishing the here table jurisdictions in Scotland. The leaving it in the power of a seigneur, at the age of majority, now made twenty-one by an ordinance, to change his tenure into common soccage, and descendible by the English or by some more convenient mode of inheritance adapted to the nature and cultivation of the lands in allotment, is an option to which no Canadian can have any objection.
Third Article. A bill is proposed for the better raising and collecting his Majesty's revenue.
I On this subject it may be proper that cases touching the King's revenue, whether inward or outward, shall not be tried by juries. The facilities, the certainty and cheapness of collecting, and settling appeals concerning the land-tax in England, are an admirable example, how easily men may be reconciled to public burthens, if they are but complimented with the busi- ness of levying and judging of them themselves. As the supporting the province with all the necessary and executive parts of government depends upon raising an adequate revenue*; and as interested juries will always suffer to escape the persons of those who defraud it ; a British parliament,
Kused as it is to the modes of the revenue laws in England, may easily brought to introduce into Canada, some of the same modes of taxation in England. If a certain number of the principal land-holders of the Canadian seigneurs were to be appointed, together with his Majesty's governor and judges, to be commissioners, with the title of tres illustres, or right honourable, to hear and determine finally all matters and causes touching the receipt and collection of all taxes and inland duties raised,
•L'administration des finances ne percevoit au Canada que quelques foibles lods et ventes. Une legcre contribution des habitants de Quebec et Montreal pour I'entretien des fortifications de ces places, des droits, mais trop forts, sur I'entree, sur la sortie des denrees et des marchandises; tous ces objets ne produisoient au fix en 1747 qu'un revenu de deux cena soixante mille deux cens livres. Histoire Politique, torn. vi. p. 143.
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or to be raised, fines of seigniories, and other dues of his Majesty's seignioral rights (concerning which difficulties have been made) and revenue of what nature or kind soever, it would, together with a competent salary, be a flattering circumstance to the Canadian landed gentry who should have these commissions, and would serve effectually to prevent evasions of the revenue laws of any sort, now or hereafter, on the part of the commercial inhabitants, chiefly English, and who are the people most tempted to evade them. But this regulation should by no means extend to take away from the admiralty court its jurisdiction concerning duties and forfeitures, under the acts of trade ; but that the officers of the crown may sue there as usual, and as they shall judge proper : but with a special clause, that in all cases where, by the acts of trade, his Majesty is intitled to any part of the for- feiture, all such causes shall be carried on, both in the first and second in- stance, in the name of his Majesty's advocate-general, in order to prevent collusive desertion of the cause, or appeal, on one side, or unjust harassing of the subject on the other. This will be agreeable to the practice in England, where all such causes are carried on in the court of Exchequer, in the name of his Majesty's attorney-general, by act of parliament.
Under the articles of revenue, the proposition of colonel Carlton, Appendix, No. 12. seems very proper to be established. That all vessels coming up the river shall be obliged to enter at Quebec, and shall not break bulk at any place before they arrive there.
The proposed duty upon rum will also deserve the consideration of government ; and it is understood, that there is already some bill prepared upon this head, and now under consideration of the board of treasury.
There are very able informations on the subject of duties in this province, in a private paper of Mr. attorney-general Mazeres.
As it appears that your Majesty's governors have omitted to require the oaths of fealty and homage, legal doubts have been started, whether the fines to the crown, upon the alienation of lands, and other seignioral rights, are due till such fealty and homage have been done : it should there- fore make a part of the bill touching the revenue, that all dues heretofore paid to the French king, whether arising out of lands, or under any other denomination whatsoever, are payable and to be paid to your Majesty, your heirs, and successors, unless your Majesty shall, of your royal grace and favour, remit the same for the greater encouragement of your new subjects.
The seigneur-paramount has what is called the quint. To the seigneurs, the fines are a twelfth part of the real purchase-money bona fide paid ; and if the vendor pays it immediately, two thirds of a twelfth only are taken, which are equivalent to an eighteenth of the whole purchase-money. The fluctuation of property has been so great since the conquest, that the fines of alienation have been very beneficial to the lords, and consequently there must be considerable sums due to your Majesty on the same account.
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Fourth article. A hill is proposed for giving leave to your Majesty's Roman catholic subjects in the said colony, to profess the worship of their religion, according to the rites of the Romish church, as far as the laws of Great Britain permit, which are already in force, and antecedent to the definitive treaty of peace, concluded at Paris, 10th February 1763, and for the better maintenance of the clergy of the church of England already established in the said colony.
The treaty gives the superiority to the laws of England: it understands them all to be introduced into the colony ipso facto. The treaty stipulates clearly that the laws shall not be changed in this article with your Majesty's assent, and by the national legislation, but shall stand as they did stand, as the law of the realm in being at the instant of the contracting.
It is then the question, how far the laws of England affect the case of the Romish religion ? In England very much : if executed ; in the colonies settled by ourselves, no notice has been taken of it : so some penal laws, in other cases of trading property and revenue, have been very lightly enforced there formerly, even when the colonies have been expressly men- tioned. But if the penalties of the law are not felt by the professors of the Romish religion in England, it is by connivance from humanity or policy, not to weaken or depopulate, that the laws are suspended but not abro- gated.
The first thing that strikes upon this head, is an opinion, that the penal statute laws of England, in relation to religion, do not extend to the other British colonies, and so it seems to be agreed by many ; and that the Roman catholic worship and profession of it therefore, sub modo, and in a certain way, may be permitted, or rather connived at in them, without breach of the fundamental laws of England, under restrictions.
If the exercise of the power of the papal see cannot be permitted in the ancient colonies of the crown by existing law, it is clear that it cannot be permitted in a new acquired colony, when the ceded colony is put by the treaty on the same footing with the ancient colonies, by leaving it to the laws of the realm.
With regard to Canada, in the fourth article of the treaty it is declared, t his Britannic Majesty shall give the most effectual orders that his new man catholic subjects may profess the worship of their religion, according the rites of the Romish church, as far as the laws of Great Britain permit. I state the article in the French language, for the greater clearness and precision in arguing upon it. Sa MajestS Britannique convient d'accorder aux habitants de Canada la libertS de la religion catholique, en consequence elle donera les ordres le plus precis el les plus effectifs pour que sesnouveaux sujets catholiques puissent professer le culte de leur religion selon le rit de I'Eglise Romaine, en tant que le permettent les loix de la Grande Bretagne. By these terms it appears, that not the profession of the doctrines, but the profession of the exercise of external ceremonies is only stipulated for : and the article is very equivocal, whether that profession is to be public or private ; for the word
t
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profession may be insisted upon either way: and as for the degree, the article is en tant que, as far as, and in such degree as the laws of Great Britain permit at the instant of contracting. Les loix de la Grande Bretagne is a general term, and these words being in the plural number, and the verb permettent in the present tense, must mean consistently with the general system of laws of Great Britain, now existing in their totality ; any of which, tacit or written, may operate with regard to this subject. The treaty considers the toleration as limitable in the degree and manner of it accordingly.
The makers of the treaty of Versailles, seem to have had in their eye the eleventh article of the treaty of Utrecht, respecting the cession of Minorca to the crown of Great Britain. In the capitulation of Minorca, there was no article respecting laws or religion ; because general Stanhope took possession in the name of the archduke, as King of Spain. Spondel insuper regia sua Majestas Magnce Britanniee sese facturum ut incoloe omnes insula praefatoe tarn ecclasiaslici quam seculares bonis suis universis et honoribis tuto pacat^que fruantur atque religionis Romance catholic ce liber usus iis permitta- tur, utque etiam ejusmodi rationes ineantur ad tuendam religionem praedictam in eadem insuld, quce d, gubernatione civili atque a legibus Magnce Britannia ■ paenitus abhorrere non videantur. Moreover, her Britannic Majesty engages, that all the inhabitants of the said island, as well ecclesiastics as laity, shall enjoy, in quiet and safety, their properties and honours, and that the free use of the Roman catholic religion shall be allowed them ; so that measures of such sort shall be entered upon for the protecting the said religion in the said island, which measures shall not appear to be absolutely inconsistent with the civil government, and the constitution of England. Here the use clearly relates to the use of ceremonies. The fact is, the inhabitants of Minorca enjoy their religion, and their church government, which is something more, as effectually as if they remained under the crown of Spain ; and the course of appeal lies, from the bishop of Majorca, who has the ecclesiastical juris- diction as bishop of Minorca, although a subject of Spain, to the Pope himself. This suspense of the law of England, with respect to the people of Minorca, however does not alter it.
Now I conceive that the laws and constitution of this kingdom permit perfect freedom of the exercise of any religious worship in the colonies, but not all sorts of doctrines, nor the maintenance of any foreign authority, civil or ecclesiastical, which doctrines and authority may affect the supre- macy of the crown, or safety of your Majesty and the realm : for a very great and necessary distinction, as it appears to me, must be taken between the profession of the worship of the Romish religion, according to the rites of it, and its principles of church government. To use the French word, the culte, or forms of worship or rituals, are totally distinct from some of its doctrines ; the first can, may, and ought, in my humble opinion, in good policy and justice to be tolerated ; the second cannot be tolerated.
The twenty-seventh article of the capitulation for the surrender of Montreal, and the whole province of Canada, which is on the demanding part
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of the Canadians, best explains their own meaning and that of the treaty ; the words are, Demanded, thai the free exercise of the Roman catholic religion shall subsist entire, in such manner, that all the people shall continue to assemble in churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly.^ And so far (taking this to be the true sense of the treaty demonstrated by those who are to have the benefit of it, agreeably to their petition) I think a British act of parliament may go in terms for the toleration of the form of worship, in manner and degree, without breach of the fundamental laws of the constitution ; and it is a sufficient answer to all the world, to say, the contracting parties have the stipulation executed in the manner exactly as demanded, and no other.
But in a question of this kind, before it can be said that the whole system of the church of Rome, not only of its ceremonies, but of its doctrines, can be tolerated by the laws of England, antecedent to the conquest and treaty, which refers back to them, it must be considered what the system of the Romish church actually is ; not only as controuled in France by the sovereign and civil power, but as the great political system of the court of Rome with all its pretensions.
With respect to the ritual, it is calculated for the eyes and the ears of an ignorant multitude, and not for the head or the heart, while it is in an unknown tongue. Yet such as it is, there is no great political consequential evil can follow from this culte, or mode of worship, being suffered to remain among such a people. It is innocent enough ; and it would be cruel as well as unjust, to deprive them of the pleasure and comfort of religious rites in their accustomed way.
The exercise of the Romish worship being therefore politically fit to be tolerated in Canada, the question is, is it equally fit to tolerate all the doctrines of the Romish church, or the ecclesiastical establishments, and powers for the support of the doctrines ?
To this I answer no : and for this plain reason, because the Romish religion itself (of which the conduct of France in many instances in history, with respect to conquered places, affords sufficient example) will neither tolerate nor be tolerated. In some of the articles of its system, on the pre- sumption of its being the dominant system among the several states of
^J^urope professing Christianity, it will give no quarter, and therefore it
^Bannot take it without the destruction of the giver.
^H In order to judge politically of the expediency of sufTering the Romish
^Weligion to remain an established religion of the state in any part of your Majesty's dominions, the Romish religion (I mean its doctrines, not its ceremonies) ought to be perfectly understood.^ ♦ * * * ♦
' See Articles of Capitulation, Montreal, p. 15 & 30.
' The remainder of this report, as explained in note 1, p. 445, is omitted.
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Quebec 22'> June 1773.
My Lord ! Your Lordship is pleased to mention in your Dispatch No. 4.,^ that the Civil Constitution and other necessary Arrangements for this Province were under the Consideration of His Majesty's Privy Council ; I most sincerely wish for the Good of the King's Service, and the Happiness of the People, that Matter may be soon brought to a final Conclusion —
It has ever been my Opinion, I own, that the only sure and effectual Method, of gaining the affections of His Majesty's Canadian Subjects to His Royal Person and Government, was, to grant them all possible Freedom and Indulgence in the Exercise of their Religion, to which they are exceed- ingly attached, and that any Restraint laid upon them in Regard to this, would only retard, instead of advancing, a Change of their Ideas respecting religious Matters ; by Degrees the old Priests drop off, and a few years will furnish the Province with a Clergy entirely Canadian ; this could not be effected without some Person here exercising Episcopal Functions, and the Allowance of a Coadjutor will prevent the Bishop's being obliged to cross the Seas for Consecration and holding Personal Communication with those, who may not possess the most friendly Dispositions for the British Interests —
I am happy in the Approbation my Conduct in regard to the Franciscan Friar has received, and the manner, in which Your Lordship is pleased to express yourself on the Occasion, calls for my very sincere and hearty Thanks — ^
I have the Honor to be with the greatest Respect My Lord 1
Your Lordship's « Most Obedient and
Most Humble Servant H. T. CRAMAHfi
Earl of Dartmouth
One of His Majesty's Principal Secretaries of State.
' Canadian Archives, Q 9, p. 51. William Earl of Dartmouth succeeded Lord Hillsborough as Secretary of State for the Colonies in August 1772. According to the official entry, "The Earl of Hillsborough Resigned the Seals on the IS"" Aug': 1772 and the Earl of Dartmouth Received the Seals the following Day." Q 12 A, p. lOS. He retained the office till the begin- ning of 1776. This was the Lord Dartmouth who formed the famous collection of Mss. known as "The Dartmouth Papers," in which many important documents relating to the American colonies, including Canada, are preserved, and from which several important papers in the present volume are copied.
» Referring to Dartmouth's despatch of Dec. 9"", 1772. See Canadian Archives, Q 8, p. 220.
' Referring to Cramahe's action in the case of an Irish FrEinciscan friar who came to Quebec from the island of St. Johns (Prince Edward Island) seeking employment which Cramah6 refused ; but paid his passage to Europe. See Cramahe to Dartmouth, Nov. lltb, 1772; Q 9, p. 4. Also Dartmouth's approval, Q 9, p. 7.
t
1
CONSTITUTIONAL DOCUMENTS 485
SESSIONAL PAPER No 18
DARTMOUTH TO CRAMAHfi.'
Whitehall December 1'* 1773.
LiEUT-GovR. CramahS, Sir,
Your Dispatches numbered from 4 to 10 inclusive have been receiv'd and laid before The King, and I have the Satisfaction to Acquaint you that the Affairs of Canada & the arrangements necessary for the adjustment of whatever regards the Civil Government of the Colony are now actually under the immediate Consideration of His Majesty's Servants, and will probably be settled in a very short Time.
You may be assured that I will not fail in this Consideration to urge the Justice and Expediency of giving all possible Satisfaction to the new Subjects on the Head of Religion ; and to endeavour that the Arrangements with regard to that Important part of their Interests be established on such a Foundation that all Foreign Jurisdiction be excluded, and that those pro- fessing the Religion of the Church of Rome, may find within the Colony a resource for every thing essential to the free Exercise of it, in the true Spirit of the Treaty.
The Limits of the Colony will also in my Judgement make a necessary part of this very extensive Consideration.
There is no longer any Hope of perfecting that plan of Policy in respect to the interior Country, which was in Contemplation when the Proclamation of 1763 was issued ;' many Circumstances with regard to the Inhabitancy of parts of that Country were then unknown, and there are a Variety of other Considerations that do, at least in my Judgement, induce a doubt both of the Justice and Propriety of restraining the Colony to the narrow Limits prescribed in that Proclamation.
His Majesty's Subjects therefore may with confidence expect that an Attention will be shewn to their wishes in this respect, and such Attention is more particularly due to them from the great Candour & Propriety of their Proceedings upon the Application from Governor Tryon for continuing the Line of 45 from Lake Champlain to the River St. Lawrence.'
' Canadian Archives, Q 9, p. 157.
' The reasons for this plan are given in the Report of the Lords of Trade to the King in Council, Aug. 5th, 1763. See p. 150. The same subject was discussed in 1767, with reference to the reasonable claims of all the American Colonies to the unorganized territory in their rear. See Shelburne to Lords of Trade Oct. 5th, 1767. Calendar of Home Office Papers, 1766-69, No. 568.
• Referring to the proceedings as recorded in the Minutes of Council at Quebec, with reference to the proposals received from Governor Tryon of New York to complete the boundary line. See Minutes of Council. 8th, Feb. and 22nd Feb., 1771; Q 8, p. 41 & 46. See also, correspond- ence and proceedings of Council; Q 9, pp. 91, 96 & 106a. The agreement subsequently reached between Sir Henry Moore, successor to Governor Tryon, and the Commander in Chief of Quebec, fixed the boundary at latitude 45, as laid down in the Proclamation of 1763. This agreement was ratified by the King in Council.
486 CANADIAN ARCHI VES
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The Ordinance providing for the Administration of Justice in Mr. Hey's absence,* appears in the general view of it, to be conformable to what was wished on that head, but I shall avoid entering into any particular consider- ation of it until Mr. Hey's Arrival.
I am to presume that nothing was left undone that could be effected to bring Mo' Ramsay to that Punishment his atrocious Crime deserved,' and I lament his Escape the more from the account I have received from Sir William Johnson of other murthers committed near Niagara, and partic- ularly of the Murther of Four Canadian Traders by some Seneca Indians.
Your Conduct in regard to the Complaints of the Indians of Sault St. Louis and the Lake of the Two Mountains,* and your Humanity in assisting them in their Distress, are very much approved by the King, who wishes that every step may be taken with regard both to his new Subjects and to the Savages in connection with them, that may have the effect to attach them more closely to the British Interests.
Mo'. Baby, .one of His Majesty's new subjects lately arrived here from Canada, has delivered me a Letter from them, inclosing a Petition to The King on the subject of their present precarious situation: This Petition has been presented to His Majesty, and most graciously received, and is ordered by His Majesty to be referred to the Consideration of His Majesty's Confi- dential Servants, together with the other Papers relative to the State of that Colony.
I am &c»
DARTMOUTH
MASERES TO DARTMOUTH.*
Inner Temple. Jan. 4, 1774.
My Lord, I herewith send your Lordship some papers which I have received within these few days from Quebeck, containing an account of the proceedings of the principal English inhabitants of the town of Quebeck concerning a petition they have presented to the Lieutenant-Governour
' In a letter to Lt. Governor Cramahe, April 10th, 1773, Dartmouth enclosed "a Sign Manual of His Majesty" permitting Chief Justice Hey to return to Britain, on account of his health and indicating that, should he avail himself of the privilege, the Lt. Gov. might pass a temporary ordinance to provide for the discharge of his duties by a commission. See Q 9, p. 15, also p. 70. This was accomplished by an ordinance entitled, "An Ordinance, For establishing a Court of Appeals during the absence of the present Chief Justice, and for Ascertaining the Powers of the Commissioners for Executing the Office of Chief Justice." Q 9, p. 111.
' Ramsay was accused of the murder of an Indian near Niagara and his trial was appointed for Sept. 1773: See Q 9, p. 34. Cramahf subsequently reports that he was acquitted for lack of evidence and that his acquittal had a bad effect upon the Indians. He refers also to the murder of Canadians by the Senecas: See Q 9, p. 106.
' The Indians of Sault St. Louis and Lake of Two Mountains complained of the unsettled boundaries of their reserves, and also of the rum traffic. See Cramahfe to Dartmouth, Q 9, p. 34.
* Canadian Archives, Q 10, pp. 8-16. The documents which follow, with such variations as are noted, are given also in Maseres' "An Account of the Proceedings of the British, And other Protestant Inhabitants, of the Province of Quebeck, in North America, In order to obtain An House of Assembly In that Province." London; MDCCLXXV. pp. 4-10. This letter to Dartmouth, however, which introduces the account of the proceedings, and which explains Maseres' own attitude towards the proposal for an Assembly, is not given in that volume.
CONSTITUTIONAL DOCUMENTS 487
SESSIONAL PAPER No. 18
and Council for a General assembly of the free-holders of that province.' They intend upon the Lieutenant-Governour's refusal of their petition (which they expect,) to present it to his Majesty in Council. They have accompanied these papers with a civil letter to me, in which they declare they believe me to have the welfare of that province much at heart ; which is indeed most true. I have sent your Lordship a copy of that letter;* but can assure your Lordship that I have had no hand (be it a right measure or a wrong one,) in exhorting them to make this application for an assembly, and did not in the least know that they intended it till I received these papers. I told Mr. Thomas Walker and Mr. Macaulay, two of the Com- mittee for preparing this petition, when I saw them last Winter in London, that I thought that a legislative council, consisting only of protestants, and much more numerous than the present, and made perfectly independent of the Governour, so as to be neither removeable nor suspendible by him upon any pretence, but only removeable by the king in Council, would be a better instrument of government for that province than an assembly, for seven or eight years to come, and until the protestant religion and English manners, laws and affections shall have made a little more progress there, and especially than an assembly into which any Catholicks should be admitted. But as they have desired me to communicate this account of their proceedings to your Lordship, I have therefore sent them to you. I am almost well of the hurt in my leg which I received on the lO"* of November, and which has confined me to my room almost ever since : and can now go out in a coach or chair, though I cannot walk yet : and therefore am ready to wait upon your Lordship whenever you may think that my attending you may be of any service in the business of the province of Quebeck, which I hear is now in hand. Your Lordship may command anything that I can do further towards promoting so good a work.
I remain, with great respect. Your Lordship's most Obedient and humble servant
(Original) FRANCIS MASERES.
Endorsed : — To
The Right Honb'" the Earl of Dartmouth,
in Charles Street, near St. James's Square.
At a meeting of the British Inhabitants of the province of Quebec at the house of Miles Prenties Innholder in upper Town — Quebec SO"" October 1773 — being Saturday.
^Ir. John McCord on holding up hands was chosen president.
The first question, Whether it is not expedient to petition for a house of Assembly.
Answer — Yeas 38 — to 3 nays.
' See the letter from Cramahe to Dztrtmouth which accompanies these petitions, p. 491. ' See below, p. 490.
488 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Resolved That a Committee of eleven be appointed and that seven of said number may be esteemed a full Committee (in case any of the Gentlemen named should be sick or out of Town) to draw up a Petition and lay it before another general meeting. And the following Gentlemen were accordingly regularly voted to form the said Committee viz — William Grant Jenkin Williams
John Wells Thomas Walker
Charles Grant John Lees
Malcolm Fraser Zachary Macaulay
Anthony Vialars John McCord
Peter Fargues
The Committee then appointed to meet at Mr. Prenties's on Tuesday next at four o'Clock in the afternoon.
Malcolm Fraser was chosen Secretary to the Committee.
Resolved That a Copy of these Minutes be sent by the Committee to the Gentlemen of Montreal.
2 Nov' 1773 At Prenties's
A Majority of the Committee having accordingly met viz*. Thomas Walker William Grant
Charles Grant Jenkin Williams
John Lees Zachary Macaulay
John McCord Malcolm Fraser
The Committee judging it to be regular first to present a Petition to the Lieut. Governor in Council and not in the first Instance to the King have Resolved That a Petition be addressed and presented to the Lieut. Governor in Council and a Draft of such Petition having been accordingly framed —
It was further resolved That it be translated into French and that some of the principal French Inhabitants be requested to meet the Com- mittee at four o'clock on Thursday Evening next at Prenties's.
Resolved that a Copy of the above proceedings with a Copy of the Petition above mentioned be transmitted to Montreal by next post and addressed to Mr. Gray to be communicated to the Inhabitants of Montreal.
Copy of a Letter of Invitation sent to the Canadian Gentlemen dated 2 Nov' 1773.1
Messieurs — Les Affaires et la Situation actuelle de La Province ayant besoin que ses habitants y portent quelque attention Et nous sousign^s ayant 6t6 nomm6s par une nombreuse assemblee des anciens sujets de sa Majesty comme un corps de Committ6 pour faire quelque chose a cet egard — Nous vous invitons de nous rencontrer au Taverne de Prenties Jeudi a
• In the mss. copy this letter is placed after the entry of Nov. 8th, but in Maseres' "An Account of the Proceedings" &c. it is placed in the chronological order which is here adopted.
CONSTITUTIONAL DOCUMENTS 489
SESSIONAL PAPER No. 18
quatre heures apres midi afin de vous communiquer nos idees et de scavoir les votres sur des matieres qui nous interessent egalement. Nous avons rhonneur d'etre &c.
N.B. This Letter was signed by the whole eleven members of the Committee and addressed To Messieurs De La Naudiere — De Rigauville, De Lery, Cugnet — Perault — Duchenay, Decheneaux — ^Tacherau — Compte du pres — Fremont — Perras — Marcoux — Berthelot & Dufau of Quebec and to Mons' Tonnancourt of Trois Rivieres then at Quebec.
4. Nov' 1773 At Prenties's The following members of the Committee having met Vizt. Jenkin Williams William Grant
Charles Grant John McCord
John Lees Malcolm Eraser
Zachary Macaulay Thomas Walker
John Wells
And the following French Gentlemen having attended this meeting in consequence of the Invitation sent them viz.
Monsieur Decheneaux Monsr. Tonnancourt
Marcoux Perras
Cugnet Berthelot
Perrault Compte du pr6s
Mr William Grant was chosen Chairman of the Committee, and a Translation into French of the Petition intended to be presented to the Lieut Governor being read, The Opinion of the French Gentlemen present was required as to the measure under consideration and after some conver- sation on the Subject The Question being put —
Whether they think it necessary (from what has been debated) to conveen their fellow Citizens.
It was unanimously voted in the affirmative Mr. Decheneaux & Mr. _Perras have undertaken to conveen the new Subjects at two o'Clock on iturday next
The Committee to meet on Monday next at Prenties's at six o'Clock in the Evening
8' Nov' 1773. The following Gentlemen met at Prenties's
Mr. Williams Mr. Walker
Mr. W" Grant Mr. McCord
Mr. Lees Mr. Wells
Mr. Eraser
It^was resolved to write a Letter to Mr. Decheneaux to beg he would let the Committee know if the New Subjects had taken any measures in consequence of what was communicated to them at last meeting ? and
490 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
what these measures were. But Mr. Dechenaux being out of Town the Letter was sent to Mr. Perras who returned the Answer annexed.
Resolved that a Letter be sent by the Committee to Francis Maseres Esq' inclosing the above Minutes with a Draft of the Petition. —
The Committee to meet when Summoned by the Secretary as the business will depend on the Letters to be received from Montreal. — Copy of the letter wrote to Mr. Perras 8"" Nov' 1773.
Mons' Les Messieurs du Committ6 assemble chez Prenties vous prie d'avoir la bont6 de les informer si les nouveaux sujets ont pris quelques mesures sur ce que vous a ete communique Jeudi dernier et si vous pouvez leurs faire part de Resolutions prises par vos concitoyens vous obligerez beaucoup ces Messieurs — On attend L'honneur de votre reponse par le porteur et J'ai l'honneur d'etre
Mons'
Votre trhs humble Serviteur
sign6 Malcolm ffraser
Follows Mr. Perra's answer
Quebec le 8—9^" 1773
MoNSR. Le Depart precipit^ de vaisseaux pour L'Europe ne m'a pas permis de repondre suivant mes desirs aux attentions de Messieurs du Committ^, cependant j'ai vu quelques uns de mes citoyens qui ne me parois- sent pas disposer a S'assembler comme quelques uns d'entre nous le vou- droient. Le grand nombre I'emporte et le petit reduit a prendre patience — J'ai l'honneur d'etre &c A true copy
Malcolm ffraser Secretary to the Committee.
LETTER OF THE COMMITTEE TO MASERES.»
Quebec S"* Nov' 1773.
Sir As you appear to have the true Interests of this Country at heart, We take the liberty to trouble you with the Draught of a Petition which the English Inhabitants of the Province have determined to present to the Governor & Council. It is now the general opinion of the people (French & English) that an Assembly would be of the utmost advantage to the Colony, tho' they cannot agree as to the Constitution of it. The British Inhabitants of whom we are appointed a Committee are of very moderate principles. They wish for an Assembly ; as they know that to be the only sure means of conciliating the New Subjects to the British Government as well as of promoting the Interests of the Colony and securing to its In- habitants the peaceable possession of their rights and propertys. They
' Canadian Archives, Q 10, p. 20-21.
CONSTITUTIONAL DOCUMENTS 491
SESSIONAL PAPER No. 18,
would not presume to dictate. How the Assembly is to be composed is a matter of the most serious consideration : They Submit that to the Wisdom of his Majesty's Councils. What they would, in the mean time, request you to do is to inform the Ministry and the Publick That a Petition is presented (for it will be so in a few days) to the Governor here to call an Assembly, And that if he does not grant their request they will immediately apply to His Majesty from whom they have the most sanguine hopes of a gracious Reception. They beg your Interest in promoting so laudable an Undertaking and hope you will excuse the liberty they have taken We are with Esteem Sir
Your most obedient & most humble Servants William Grant Zach. Macaulay
Jenkin Williams Chas. Grant
Thomas Walker John Lees
John Welles Malcolm ffraser
John McCord
To Francis Maseres Esqr.
CRAMAHfi TO DARTMOUTH.*
Quebec 13"" December 1773. My Lord !
Herewith inclosed, I transmit to Your Lordship, Copies of two Petitionj, signed by some of His Majesty's old Subjects residing here and at Montreal, presented me the 4"" instant, and of my Answer to them dated the 11*''.
About six Weeks or two Months ago, a Mr. McCord, from the North of Ireland, who settled here soon after the Conquest, where he has picked up a very comfortable Livelihood by the retailing Business, in which he is a con- siderable Dealer, the Article of Spirituous Liquors especially, summoned the Principal Inhabitants of this Town, that are Protestants, to meet at a Tavern, where He proposed to them applying for a House of Assembly, and appointing a Committee of eleven to consider of the Method of making this Application, and to prepare and digest the Matter for them.
KThis Committee, of which Mr. McCord takes the lead, has had several actings and fixed at last upon the Course they have now taken, of Petition- g, the Lieutenant Governor in Council, and in case of a Refusal there, to iviemorial His Majesty; The Committee having previously wrote to and engaged some of their Fellow Subjects at Montreal to second them in their Applications.
M' McCord endeavoured all this Summer, and again since the appoint- ment of the Committee, to persuade the Canadians to join the old Subjects in petitioning for an Assembly, used every Argument he could think of for that Purpose, and carried the first Draft set on Foot for it to a Canadian
' Canadian Archives, Q 10, p. 22.
492 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Gentleman of this Town to translate into French ; The Canadians suspecting their only View was to push them forward to ask, without really intending their Participation of the Privilege, declined joining them here or at Mont- real, but in the agitation they were thrown into by all this Negotiation, as well as M' Masere's Publications,' circulated herewith great Industry, they thought themselves obliged to do something, tho' they could not well tell how, and this produced the Petitions already sent Home.
It may not be amiss to observe, that there are not above five among the signers to the two Petitions, who can be properly stiled Freeholders, and the Value of four of these Freeholds is very inconsiderable. The Number of those possessing Houses in the Towns of Quebec and Montreal, or Farms in the Country, held of The King or some private Seigneur, upon paying a yearly Acknowledgment, is under thirty.
In my Answer^ I carefully avoided entering into any Discussion upon the Subject of their Petition, or taking notice of the Irregularity of their conduct, to endeavour to preserve them in good Temper, and to prevent them presenting their Requests through any other then the proper Channel, was the measure that appeared to me most eligible for the King's Service ; I have therefore promised them, to forward to Your Lordship, the Memorial they intend presenting to His Majesty ; when that is executed, and they are a little cooled, they will be more ready to attend to any Thing I may take Occasion to offer upon the Matter in private.
The whole of this Transaction sufficiently evinces how necessary it is to give Power and Activity to the Government of this Province; the Canadians are tractable and submissive, but if Matters were to remain here much longer in the loose Way they are in at present, there is too much Reason to apprehend, that it might be attended with bad Effects ; A Confirmation of their Laws of Property, and Rights of Inheritance, after which they most ardently sigh, would be most satisfactory to them all, and prove a very great Means of attaching the Canadians effectually to His Majesty's Royal Person and Government —
I have the Honor to be
with the greatest Respect My Lord !
Your Lordship's
Most Obedient and
Most Humble Servant Earl of Dartmouth H. T. CRAMAHfi
One of His Majesty's Principal
Secretaries of State.
' Of these the first and last published, prior to this date, have already been given in this volume; see p. 257, and p. 327. Of the several other papers dealing with the laws and con- stitution of the Province of Quebec published before this date, some were reproduced in later volumes, especially in "An Account of the Proceedings" &c., others remained in their original form of issue, as the "Draught of an Act of Parliament for settling the Laws of the Province of Quebec," 1772.
' See below, p. 495.
CONSTITUTIONAL DOCUMENTS 493
SESSIONAL PAPER No. 18
PETITION TO LT. GOVERNOR FOR AN ASSEMBLY.i
To the Honourable Hector Theophilus Cramah^, Esquire, His Majesty's
Lieutenant Governor and Commander in Chief of the Province
of Quebec, in Council.
The Petition of the Subscribers his Majesty's Antient Subjects the Freeholders, Merchants, Traders, and other Inhabitants of the said Province. Humbly Sheweth,
That Whereas his Most Excellent Majesty by his Royal Proclamation bearing date at St. James's the Seventh day of October 1763 (out of his Paternal Care for the Security of the Liberty and propertys of those who then were, or should thereafter become Inhabitants of the four several Governments therein mentioned) Did publish and declare, that he had, in his Letters Patent, under his Great Seal of Great Britain, by which the said Governments were constituted ; been graciously pleased to give express power and Direction to his Governors, that so soon as the State and Circum- stances of those Governments would admit thereof : They should with the Advice and Consent of the Members of his Councils, Summon and Call General Assemblys within the said Governments, And that he had been graciously pleased to give power to his said Governors with the consent of the said Councils and the Representatives of the People to make, con- stitute, and Ordain, Laws, Statutes & Ordinances for the publick peace, welfare and good Government of those Provinces and of the People and Inhabitants thereof. And Whereas his most Excellent Majesty in pursu- ance of his said Royal Proclamation, by his Letters Patent to his Governors has been graciously pleased to give and grant unto them full power and Authority with the Advice and Consent of his said Councils, under the Circumstances aforesaid, to call General Assemblys of the Freeholders and Planters within their respective Governments. And also Whereas your Petitioners (who have well considered the present state and Condition of this Province) do humbly conceive That a General Assembly of the People would very much Contribute to its peace. Welfare and good Government as well as to the Improvement of its Agriculture and the Extension of its Trade and Navigation ; They do therefore most humbly pray your Honor (with the Advice and Consent of His Majesty's Council) to Summon and call a General Assembly of the Freeholders and Planters within Your Government in such Manner as you in your discretion shall judge most oper.
Quebec 29"' November 1773. Alex' Fraser Jenkin Williams Rich"* Murray
Simon Fraser William Grant Randle Meredith
Adam Lymburner John McCord Robt. Willcocks
Alex' Davison P. Fargues J. Melvin
• Canadian Archives, Q 10, p. 26. Given also in "An Account of the Proceedings" &c., p. 11.
f
494
CANADIAN ARCHIVES
Murdoch Stuart Daniel Morison Sam' Jacobs John Lees Junr. Jam' Price Robt. Woolsey Jacob Rowe John Renaud Mich' Cornud Simon Eraser Jun' Ja' Hanna Jonas Clark Minot N. Bayard
Cha' Grant Malcolm ffraser Zach. Macaulay John Welles John Lees James Tod Ja' Cuming Alex' Martin D. Lynd John Lynd D' Gallwey Dun" Munro Geo. King.
6-7 EDWARD VII., A. 1907
R. Hope Henry Boone John W. Swift Charles Hay Charles Le Marchant Tho' McCord Ja' Sinclair P' Mills John Halsted Lauch Smith James Gordon Ra. Gray
John D. Mercier I, do certify that the foregoing Petition is a true copy of the Original filed in my Office.
Quebec 16 December 1773. Geo. Allsopp. D.C.C. Endorsed: — Copy of the Quebec Petition presented 4"' Dec' 1773 In Lieut.
Gov Cramah6's (No. 11) of 13* December 1773. The Montreal Petition the same as the preceding — ^with the following Signatures' — Montreal 29"' Novem' 1773.
Edward Chinn John Thompson Edw"! Antill R. Huntley Dan' Robertson John Blake John Neagle Rich-* McNeall John Burke Thomas Walker John Cape Sam. Holmes J° Dumoulin
Alex' Paterson Levy Solomons
James McGill Alexr. Henry
James Dyer White Ezekiel Solomons Lawrence Ermatinger Rich"* Dobie William Haywood John Lilly
James Finlay W" McCarty Joseph Torrey Alex' Henry Ja' Bindon Alexander Hay Joseph Howard
Edw"* W" Gray
Thomas McMurray
James Morrison
Geo. Measam
J. Maurez
Thomas Walker Jun'.
John Wharton
Jacob Vander Heyden.
Geo. Singleton
I do certify that the foregoing Petition is a true Copy of the Original filed in my Office. Quebec 16 December 1773.
GEO. ALLSOPP D.C.C.
Endorsed: — Copy of the Montreal Petition — presented 4"" Deer. 1773. In Lieut. Gov' Cramah^'s (No 11.) of 13"' December 1773.
' In Maseres' "An Account of the Proceedings" &c., no mention is made of there being two petitions, and no distinction is made between the Montreal and Quebec lists of names, which are mingled together in a common list. The date of presentation is given as Dec. 3rd, whereas in Allsopp's certified copy it is given as the 4th.
CONSTITUTIONAL DOCUMENTS 495
SESSIONAL PAPER No. 18
LT. GOVERNOR CRAMAHfi'S REPLY.i Gentlemen
The Subject of your Petition is a Matter of too much Importance, for His Majesty's Council here to advise, or me to determine, upon, at a Time, that, from the best Information, the Affairs of this Province are likely to become an Object of Public Regulation ; The Petitions and my Answer shall be transmitted by the first Opportunity to His Majesty's Secretary of State.
(Signed) H. T. CRAMAHfi
Quebec U* Dec' 1773.
PETITION TO THE KING.
To THE Kings most excellent Majesty.'
The humble Petition of the Subscribers your Majesty's antient Sub- jects, Freeholders, Merchants and Planters in the Province of Quebec in North America. Most humbly.
Sheweth. That Whereas your Majesty by your royal Proclamation bearing Date at St. James's the seventh Day of October One thousand seven Hundred and Sixty Three was most graciously pleased to publish and declare "That "out of your Majesty's paternal Care for the Security of the Liberty and "Properties of those who then were or should thereafter become Inhabitants "of the four several Governments therein mentioned (of which this your ^'Majesty's Province was denominated to be one) Your Majesty had in the -etters Patent by which the said Governments were constituted given express Dwer and Direction to your governors, That so soon as the State and Circumstances of those Governments would admit of it, they should with fthe Advice of the Members of your Majesty's Councils, summon and call General Assemblies within the said Governments respectively, in such lanner and Form as is used and directed in those Colonies and Provinces America which are under Your Majesty's immediate Government, ^nd also that your Majesty had been graciously pleased to give Power your said Governors with the Consent of your Majesty's said Councils ['and the Representatives of the People, so to be summoned as aforesaid,
'This reply was framed and authorized by the Governor in Council, Dec. 11th, 1773. See Q 10. p. 38.
' The Lt. Governor having, as anticipated, declined to grant the petition for an Assembly, the Committees of Quebec and Montreal prepared their petition to the King, as given here. Canadian Archives, Q 10, p. 46. In the letter of Cramah6 to Dartmouth, Jan. 19th, 1774, which accompanies this petition, he says that he suspects they have sent a duplicate of it to Masercs. Q 10, p. 43. The Committees evidently had some doubts as to their petitions to the King reaching their destination if presented through the official channels only, for, as Cramahi had suspected, they sent copies of these to Maseres, then in London, to be presented through the Colonial Secretary. They had also written to their mercantile associates in London to solicit their assistance in presenting their case before the proper authorities. This correspond- ence is given in Maseres' "An Account of the Proceedings" &c.. p. 29.
496 CANADIAN A RCHI VES
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"to make, constitute, and ordain Laws, Statutes and Ordinances, for the "peace, Welfare, and good Government of your Majesty's said Colonies, "and of the People and Inhabitants thereof, as near as might be agreeable "to the Laws of England, and under such Regulations and Restrictions "as are used in other Colonies."^ And Whereas it has graciously pleased Your Majesty in the Letters Patent of Commission to your Captain General and Governor in Chief, (and in Case of his Death, or during his Absence, in the Letters Patent of Commission to your Majesty's Lieutenant Gover- nor) of this Province, to give and grant unto him full power and Authority, with the Advice and Consent of your Majesty's Council, so soon as the Situation and Circumstances of this Province would admit of it, and when and as often as Need should require, to summon and call general Assemblies of the Freeholders, and Planters within this Government, in such Manner as he in his Discretion should judge most proper.^ And Whereas Your Petitioners, whose Properties real and personal in this Province are become very considerable, having well considered its present State and Circum- stances, and humbly conceiving them to be such as to admit the summoning ' and calling a general Assembly of the Freeholders, and Planters Did on the Third Day of December Instant present their humble Petition to the Honour- able Hector Theophilus Cramah6 Esquire your Majesty's Lieutenant Governor and now Commander in Chief, stating as above and humbly praying that he would be pleased, with the Advice and Consent of your Majesty's Council, to summon and call a general Assembly of the Free- holders and Planters within this Government, in such Manner and as he in his Discretion should judge most proper ; And your Majesty's said Lieutenant Governor on the Eleventh Day of December Instant after having taken the said Petition into his Consideration, was pleased to inform your Petitioners, "That the Subject of their said Petition, was a Matter of too "much Importance for your Majesty's Council here to advise, or for him "your said Lieutenant Governor to determine upon, at a Time, that, from "the best Information, the Affairs of this Province are likely to become an "Object of pubUc Regulation; but that he would transmit the said Petition "by the first Opportunity to your Majesty's Secretary of State."'
Your Petitioners being fully convinced from their Residence in the Province, and their Experience in the Affairs of it, that a general Assembly would very much contribute to encourage and promote Industry, Agri- culture and Commerce and (as they hope) to create Harmony and good Understanding between your Majesty's new and old Subjects Most humbly Supplicate your Majesty, to take the Premisses into your royal Consider- ation ; And to direct your Majesty's Governor, or Commander in Chief to
' As may be observed by comparing this passage with the letter of the Prodamation, (See p. 165. This is not the exact wording of the portion quoted, but simply a paraphrase of it.
• See the section of the Commission to Governor Murray, authorizing the establishment of an Assembly, p. 175.
' See above p. 495.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
497
call a General Assembly in such Manner, and of such Constitution and Form as to your Majesty, in your Royal Wisdom, shall seem best adapted to secure its' Peace Welfare and good Government.
And your Petitioners as in Duty bound shall ever Pray &c.* Quebec 31" December 1773.
I
Jenkin Williams John Welles Randle Meredith Alex' Davison John Lees Jun' N. Bayard P* Mills John Halsted Ja- Tod
Arthur Davidson John Majer J. Melvin Simon Fraser Jun' Dun" Munro W" Lindsay Dav"* Lynd William Laing W" Keith Charles Hay Dan. Morison
Chas Grant William Grant Zach: Macaulay John McCord Adam Lymburner John Renaud Alex'. Fraser Jonas Clarke Minot Murdoch Stuart Mich. Cornud Robt. Woolsey D. Gallway Thos McCord John Ross John Burke Francois Smith Rod'' McLeod Godfrey King John Saul George Jinkins
(Original) Endorsed :-
Malcolm ffraser John Lees Alex' Martin Simon Fraser Henry Boone Charles Le Marchant John D. Mercier Jacob Rowe Jas. Sinclair George King Jacob Smith John Lynd Ja' Hanna John White Swift Ra. Grey Robt. Mcfie Alex' Lawson Frederick Retry Francis Anderson Hugh Ritchie George Hips
-In Lieut. Gov' Cramah6s (No. 13) of 19"" Jany. 1774.
Montreal Petition the same as that of Quebec- signatures — Montreal lO"' January 1774
-with the following
Dan' Robertson John Wharton Dumas
Samuel Morrison George Singleton Alex' Paterson Cha' Paterson Peter Arnoldi Edm"* Antill G. Christie
Edm"* W" Gray Rich-i Huntley Alexander Hay John Lilly John Porteous John Thomson Rich-i Dobie Rich-J Walker Geo. Measam Philip Loch
Jean Etienne Waden Hugh Farries John Sunderland Samuel Edge Ab" Holmes Sam' Holmes Rich"* Livingston James Noel Jn» Pullman Robt. Cruickshank
' In Maseres' "An Account of the Proceedings" &c., pp. 20-24, the petition is given as only from Montreal, dated Jan. 10th, though the list of names attached contains both the Quebec and Montreal signatures. Elsewhere, (see p. 27) it is stated that there were two petitions.
498
CANADIAN ARCHIVES
6-7 EDWARD VII., A Z06l
Chabrand Delisle Min
ister Pierre du Calvet J. P. J. Grant John Blake Jam' Blake Lawrence Ermatinger James Dyer White James Morrison Jean Bernard Rich^ M-'Neall Joseph Howard Jacob Vander Heyden Ezekiel Solomon Levy Solomons Jas. Doig Jas. Finlay John Gregory Thomas Walker Thomas Walker Junr.
William Weir Edward Chinn John Kay W" MCarty Thomas M 'Murray Benj" Frobisher Joseph Bindon James McGill Jn° Stenhouse Alex' Henry Solomon Mittleberger W" Murray Alex' Henry Jam' Price Will" Haywood Jn° Richardson John Jones Robert Simpson James Eraser
John Neagle Peter Forbes Allan M^Laclain Nicholas Brown John Trotter Philip Bruikman Edw^ Cox Roger M^Cormick John Marteilhe James Stanley Goddard Peter Mcfarland Andrew Porteous J" Dumoulin G. Young Thomas Duggan T. Duggan William Aird J. S. Nicol major Daniel M'Killip
In Lieut. Gov' Cramah6's (No 13) of IQ'"* Jan" 1774.
MEMORIAL FROM QUEBEC TO LORD DARTMOUTH.
To the Right Honb'° the Earl of Dartmouth one of his Majesty's principal Secretarys of State.'
The Memorial of the Freeholders, Merchants Planters and others his Majesty's antient and loyal Subjects now in the District of Quebec in the Province of Quebec in North America.
Humbly Sheweth.
That after the Capitulation of Canada and the definitive Treaty of Peace by which this Province was ceded to Great Britain his Majesty was graciously pleased by his royal Proclamation of the 7* October 1763, to give express power & direction to his Governors of the four several Provinces therein mentioned, (whereof this Province is one) with the advice and Consent of the Members of his Councils, to summon and call general Assembly's, for making constituting and ordaining Laws Statutes and Ordinances for the public peace, Wellfare and good Government thereof as near as might be agreeable to the Laws of England And also was graciously
' Canadian Archives, Q 10, p. S6. This memorial is not given in Maseres' "An Account of the Proceedings" &c. The briefer one from Montreal which follows this is given however. Nevertheless these memorials were evidently presented through Maseres, since they are not endorsed, as are the petitions to the King, as received through Cramah^. Moreover, in his letter to Dartmouth of Feb. 3rd., 1774 Cramahf indicates that they were not forwarder through him, since they were not communicated to him. See Q 10, p. S3.
I
I
I
CONSTITUTIONAL DOCUMENTS 499
SESSIONAL PAPER No. 18
pleased to declare and promise, That in the mean time and untill such Assemblys could be called all Persons inhabiting in or resorting to the said Colonies should have the enjoyment and benefit of the Laws of England.*
That your Memorialists thus encouraged, having settled themselves, purchased Lands, planted and improved them, and engaged deeply in Commerce in this Province, and humbly conceiving it at this Time season- able & expedient to supplicate his Majesty to accomplish his most gracious Promise, Have prepared their most humble Petition to his Majesty^ (which they take the liberty to transmitt herewith to Your Lordship) praying that he would be graciously pleased to order his Governor with the Advice and Consent of his Majesty's Council to call a general Assembly of the People in such manner and of such Constitution and form as his Majesty in his royal Wisdom shall think proper to direct.
Your Memorialists most humbly hope that his Majesty out of his royal and paternal Care for the Wellfare and happiness of all his loving & obedient Subjects will be graciously pleased to relieve them from the apprehensions they are under That their Property's may be endangered. And that they and their Posterity may lose the fruits of their labours by residing in a Country without any fixed or stable form of Government exposed to Ordinances which may be neither consonant with nor agreeable to the Laws of England, a Situation we presume equally inconvenient to the new as to us his Majesty's antient and loyal Subjects.
Your Lordships Memorialists are firmly but humbly of opinion that a Dower of Legislation vested in a Governor Council and Assembly of the People is the only permanent constitutional Mode of Government that should be established in this Province and from their own knowledge and Experience of its State since the Conquest, they are convinced that the f«ooner an Assembly is called, to act in conjunction with his Majesty's Governor and Council, the sooner, the Peace and good Government thereof will be settled on a firm and solid basis. No temporary Mode your Memori- alists apprehend can so effectually attach and reconcile the new Subjects to His Majesty's august House and the British Constitution or be so grate- ful to his Majesty's antient subjects. Your Memorialists conscious of their own inability will not presume to point out how this Assembly should be composed and constituted. That is a matter in their opinion fitting only for the Wisdom and consideration of his Majesty and his learned Councils. But as it may be advanced by some Persons (who either are not so well ac- quainted with the present State of this Province as your Memorialists, or whose Interest in the welfare of it, is of a more transient nature) that it is not yet ripe for an Assembly, That the Kings old Subjects are but few in number, and that they possess but little Property in proportion to the new Subjects who are the Body of the People but of the Roman Catholick Communion ? Your Memorialists who have well weighed and seriously
> See p. 165.
> See p. 49S.
500 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
considered these objections take the Liberty to assure your Lordship that in their humble opinion the Province is at this Time perfectly mature for the Reception of that EstabHshment, And that an Assembly to act in Con- junction with his Majesty's Governor and Council would in time give much more Satisfaction to the People, would point out more evidently the true Interest of the Colony, its Powers and Resources and be better able, than a Governor and Council, to make Laws Ordinances and Statutes suitable to their own Emergencies. Your Memorialists have the honor to assure your Lordship, That the Number and real Property of his Majesty's antient Subjects are not so triffling as may have been represented, for several of them possess the largest and best cultivated Seigniorys in the Province (The Lands of the religious Society's excepted) and most of them are proprietors of freehold Estates.^ Their Personal Estates by far exceed those of the new Subjects. The Trade and Commerce of the Country ever since the Conquest and at this Time being principally carried on by his Majesty's old Subjects.^
The Settlement of the legislation of the Colony is not the only object your Memorialists have to request your Lordships Attention to. They beg leave to lay before Your Lordship the deplorable State it is in for want of Protestant Seminarys and Protestant Schools for the Education and Instruction of Youth, It is with regret that they see the rising Generation of Children born of Protestant Parents utterly neglected and daily exposed to the known assiduity of the Roman Catholic Clergy of different Orders who are very numerous in this Province and who from their own immense funds have lately established Seminarys alarming in their foundation (all Protestant Teachers of every Science being excluded therefrom. The Children of British Parents must therefore go without Instruction or attend these, For tho' his Majesty's antient Subjects are willing to contribute to the utmost of their Power to encourage Men of Learning and ability to come to reside among them. Yet that is insufficient without the aid and assistance of Government.
Your Memorialists have also the Honour to represent to Your Lordship, That the Trade Cultivation and Prosperity of the Colony have been much interrupted by the sequestration of the upper Indian trading Posts, Lake Champlain and the Coast of Labradore from this Government, by which not only the natural resources of the Province have been greatly restrained but many of the Inhabitants as well old as new Subjects have thereby been deprived of their personal Property and even of their real Estates which the latter held and enjoyed for many Years before the Conquest and which the former purchased on the faith of the Capitulation and Treaty of Peace, And Your Memorialists will venture to assure Your Lordship That if the
' A partial list of the British owners of lands, including seigniories, in the Province of Quebec, in 1773, is given in the Dartmouth Papers; See Canadian Archives, M 384, p. 233.
* Chief Justice Hey, in a letter to the Lord Chancellor given below, says on this point, referring to the English merchants, "with whom almost the whole trade of the country lyes, & which without them was & without them will continue except in a very few articles & those to no extent, a country of no trade at all." See Q 12, p. 208.
CONSTITUTIONAL DOCUMENTS SOI
SESSIONAL PAPER No. 18
Province is not restored to its antient Limits and the parts which have been dismembered from it reunited to that Government to which nature points they should belong, and all be put under some salutary and well judged Regulations. The Morals of the Indians will be debauched, and the Fur- Trade as well as the Winter Seal Fishery for ever lost not only to this Pro- vince but to Great Britain, as neither can be carried on to advantage but by the Inhabitants of Canada.
Your Memorialists might add much more in support of the Subject matter of this Memorial as well as on many other Matters very interesting to the Province, but as your Memorialists will not incroach on your Lord- ships Time and Patience they conclude by humbly and ardently praying your Lordship to be pleased to lay their most humble Petition herewith transmitted before his Majesty and humbly intreating Your Lordships Intercession and good Offices in that behalf as well as in behalf of the other important Objects pointed out to your Lordship in this their Memorial, And reposing themselves entirely on your Lordships known honour. Under- standing and Uprightness.
They as in Duty bound will ever Pray &c — Quebec 31" Decern' 1773.
Jenkins Williams
A Committee named at John Welles
a Meeting of his John Lees
Majesty's antient Sub- John McCord
jects residing in the Cha' Grant
District of Quebec. Malcolm fifraser
Zach. macaulay J(Onginal) [indorsed: — Memorial of the Kings Ancient Subjects in the District of Quebec to His Majesty. R/ 1" June 1774.
MEMORIAL FROM MONTREAL TO LORD DARTMOUTH.
To The Right Honorable The Earl of Dartmouth one of His Majesty's Principal Secretaries of State.'
The Memorial of the Freeholders, Merchants, Planters and Others, lis Majesty's Antient and Loyal Subjects now in the Province of Quebec. Sheweth, That your Lordships Memorialists encouraged by the Capitulation of i^an^da, confirm'd by the definitive Treaty of Peace and His Majestys 'Royal Proclamation of 7"" of October 1763, did purchase Lands, Plant, Settle, and carry on Trade and Commerce in this Province, to a very con- siderable Amount, and to the manifest Advantage of Great Britain — in confident Expectation of the early Accomplishment of His Majesty's said
' Canadian Archives, Q 10, p. 63. This, it will be observed, is simply a summary of the preceding petition from Quebec.
502 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Proclamation, giving express Power and Direction, to his Governour, with the Advice and Consent of his Council, to summon and call General Assemblies, to make, constitute and ordain. Laws, Statutes and Ordinances, for the Publick Peace, Welfare, and good Government of the said Province, as near as might be agreeable to the Laws of England — For which Reasons Your Memorialists have drawn up and transmitted herewith Their most humble Petition to The King, praying his Majesty will, out of his Royal and Paternal Care, of all his DutifuU and Loyal Subjects, in this Province, be graciously pleased to relieve them from the Apprehensions They are under of their Property being endangered, and loosing the Fruits of their Labour ; exposed to Ordinances of a Governor and Council, repugnant to the Laws of England, which take Place before His Majesty's Pleasure is known, and are not only contrary to His Majesty's Commission and private Instructions to his said Governour, but we presume equally Grievous to His Majesty's New and Antient Subjects.
Your Lordships Memorialists further see w^ith Regret, the great Danges, the Children born of Protestant Parents are in, of being utterly neglected for want of a sufficient Number of Protestant Pastors, and thereby exposed to the usual and known Assiduity of the Roman Catholick Clergy, of different Orders, who are very Numerous in this Country, and who from their own immense Funds, have lately established a Seminary for the Education of Youth, in this Province, which is the more alarming as it ex- cludes all Protestant Teachers of any Science whatever.
Wherefore Your Lordship's Memorialists humbly pray that you will be pleased to present, their said Petition to His Majesty — And also pray Your Lordship's Intercession and good Offices in that behalf.
And Your Lordships Memorialists as in Duty bound shall ever Pray Montreal January IS"- 1774
Edw"' W" Gray A committee apjxjinted R. Huntley
at a General Meeting Lawrence Ermatinger
of the Inhabitants Will Haywood
of Montreal. James M'Gill
Jas. Finlay
Edward Chinn (Original)
Endorsed: — Memorial of the Kings Ancient Subjects in the District of Montreal to the Earl of Dartmouth. R/ 1"» June 1774.
CONSTITUTIONAL DOCUMENTS 503
SESSIONAL PAPER No. 18
DARTMOUTH TO CRAMAHfi.i
Whitehall May 4*'> 1774. Lieut. Governor Cramahe Sir, I have received your Letters No. 13 & 14* & have laid them before the King, together with the two Petitions transmitted therewith.
The Manner in which the Petitioners have expressed their Wishes is decent & respectful, but I am fully convinced from your Account of the Steps taken to procure these Petitions that it was become highly necessary that the Arrangements for the Government of Quebec should be no longer delayed ; And I have the Satisfaction to acquaint you that I did on Monday last present to the House of Lords a Bill for the Regulation of that Govern- ment,' which is calculated to lay the Foimdation for those Establishments that I hope will give full Satisfaction to all His Majesty's Subjects & remove those difficulties with which the Administration of the Government in that Province has been so greatly embarrassed.
I am &c
DARTMOUTH.
CRAMAHfi TO DARTMOUTH.*
Quebec IS"" July 1774. (N" 17). Duplicate. My Lord!
Your Lordship will herewith receive the Minutes of His Majesty's Council of this Province to the End of June last.
I am Honoured with Your Lordship's Circular Dispatch of 2^ March,' id one of the 6"" April' Numbered 1 1 ; The Event, which Your Lordship was [)leased to notify in the former, affords great Satisfaction to all His Majesty's Dyal Subjects in this Province ; I am extremely Happy in receiving my I Royal Master's Approbation of my answer to the Petitioners for an As- embly.
His Majesty's old subjects in this Province, tho' collected from all ?arts of His extensive Dominions, have in General, at least such as intend remaining in the Country, adopted American Ideas in regard to Taxation, id a Report, transmitted from one of their Correspondents in Britain, lat a Duty upon Spirits was intended to be raised here by Authority of
* Canadian Archives, Q 10, p. 55. ' Letter No. 13 is that of Cramahe to Dartmouth, of Jan. 19th, 1774, referred to in note 2,
I p. 495, enclosing the petitions to the King. No. 14 is that of Feb. 3rd, 1774, referred to in note 1,
Ip. 498.
1 • The Quebec Bill was introduced in the House of Lords by Lord Dartmouth, May 2nd,
(1774.
* Canadian Archives, Q 10, pp. 79-81. ' Announcing the birth, on Feb. 24th, of Prince Adolphus Frederick, afterwjirds Duke of
I Cambridge.
I 'See Dartmouth to Cramahe, Q 10, p. 42, expressing approval of his reply to the
fpetitioners for a House of Assembly.
504 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Parliament, was a principal Cause of setting them upon petitioning for an Assembly, and endeavouring to engage their Fellow Subjects to join therein. Some of the Committee, with whom I conversed this Spring upon the Subject, acknowledged the Irregularity of their Assembling without the Consent, or Approbation of the King's Governor, that it was an ill example shewen to their Fellow Subjects, whom it was their Interest, if it were only upon Account of their great Superiority in Point of Numbers, to see continue in those Habits of Respect and Submission to which they had been accus- tomed, and, upon my stating these and some other Reasons in the strongest Manner I could, promised not to engage again in such a Business ; From the Temper they seem to be in at present, and the tractable Disposition of the Canadians, I am Hopefull, they will wait with Patience, until an Oppor- tunity offers for perfecting those Arrangements, they have been made to expect, and which in certain Cases are much wanted, and therefore much
to be desired.'
* * * * * *
I have the Honor to be with the greatest Respect My Lord Your Lordship's Most Obedient And -» Most Humble Servant
H. T. CRAMAHfi Earl of Dartmouth
One of His Majesty's
Principal Secretaries of State.
PETITION OF FRENCH SUBJECTS.
A Petition of divers of the Roman-Catholick Inhabitants of the Province of Quebeck to the King's Majesty, signed, and transmitted to the Earl of Dartmouth, his Majesty's Secretary of State for America, about the Month of December, 1773, and presented to his Majesty about the Month of February, 1774.^
Au Roy.
'Sire, Vos tr^s-soflmis et tr^s-fid61es nouveaux sujets de la province *de Canada prennent la liberty de se prosterner au pied du throne, pour y 'porter les sentiments de respect, d'amour, et de soQmission dont leurs 'cceurs sont remplis envers votre auguste personne, et pour lui rendre de tr^s- 'humbles actions de grace de ses soins paternels.
'N6tre reconnoissance nous force d'avoiier que le spectacle effrayant 'd'avoir €t€ conquis par les armes victorieuses de votre Majesty n'a pas
' The remainder of the despatch refers only to Indian affairs and hence is omitted.
' This petition, which does not appear among the State Papers, together with the transla- tion of it and the memorial which follows, are taken from Meiseres' "An Account of the Pro- ceedings" &c. pp. 112-131. Concerning this Maseres says, "It is easy to see that the foregoing petition of the aforesaid French inhabitants of Canada has been made the foundation of the act ofiparliament above-recited." (The Quebec Act) p. 131.
CONSTITUTIONAL DOCUMENTS 505
SESSIONAL PAPER No. 18
'longtems excit6 nos regrets at nos larmes. lis se sont dissip^s a mesure que 'nousavonsappris combien il est doux de vivre sous les constitutions sages 'de Tempire Britannique. En effet, loin de ressentir au moment de la 'conquete les tristes effets de la gene et de la captivity, le sage et vertueux 'G4n6ral qui nous a conquis, digne image du Souverain glorieux qui lui 'confia le commandement de ses armees, nous laissa en possession de nos 'loix et de nos cofltumes. Le libre exercice de notre religion nous fQt 'conserv6', et confirm^ par le traits de paix: et nos anciens citoyens furent '4tablis les juges de nos causes civiles.' Nous n'oublirons jamais cet exc^s 'de bont6 : ces traits g6n6reux d'un si doux vainqueur seront conserve pre- 'cieusement dans nos fastes ; et nous les transmettrons d'Sge en Sge k 'nos derniers neveux. — Tels sont, Sire, les doux liens qui dans le principe 'nous ont si fortement attach6s k v6tre majeste : liens indissolubles, et qui 'se resserreront de plus en plus.
'Dans I'ann^e 1764, votre Majest6 daigna faire cesser le gouvernement 'militaire dans cette colonic, pour y introduire le governement civil. Et d^s I'dpoque de ce changement nous commengames k nous appercevoir des 'inconvenients qui r^sultoient des loix Britanniques, qui nous 6toient 'jusqu'alors inconniies. Nos anciens citoyens, qui avoient r6gl6 sans frais 'nos difficult^s, furent remerciez : cette milice qui se faisoit une gloire de 'porter ce beau nom sous v6tre empire, fflt supprim6e. On nous accorda k 'la v6rit6 le droit d'etre jur6s : mais, en m6me tems, on nous fit 6prouver 'qu'il y avoit des obstacles pour nous k la possession des emplois. On 'parla d'introduire les loix d'Angleterre,' infiniment sages et utiles pour 'la m6re-patrie, mais qui ne pourroient s'allier avec nos cofltumes sans 'renverser nos fortunes et d^truire entierement nos possessions. — Tel ont ,'6t6 depuis ce tems, et tels sont encore, nos justes sujets de crainte ; tem- fp^r^s n^anmoins par la douceur du gouvernement de v6tre Majesty.
'Daignez, illustre et g^n^reux Monarque, dissiper ces craintes en nous
^'accordant nos anciennes loix, privileges, et cofltumes, avec les limites du
'Canada telles qu'elles 6toient cy-devant. Daignez repandre egalement
'vos bont^s sur touts vos sujets sans distinction. Conservez le titre glorieux
,'de Souverain d'un peuple libre. Eh ! ne seroit-ce pas y donner atteinte,
rei plus de cent milles nouveaux sujets, soflmis ci v6tre empire, etoient
pexclus de v6tre service et priv^s des avantages inestimables dont jotiissent
ras anciens sujets ? — Puisse le ciel, sensible ci nos pri^res et nos vceux, faire
Pjouir v6tre Majesty d'un regne aussi glorieux que durable ! — Puisse cette
Pauguste famille d'Hanovre, k laquelle nous avons prSt6 les sermens de
fidelity les plus solemnels, continuer k regner sur nous k jamais !
'Nous finissions en suppliant v6tre Majeste de nous accorder, en com- 'mun avec ses autres sujets, les droits et privil6ges de Citoyens Anglois. 'Alors nos craintes seront dissip^es : nous filerons des jours sdrains et tran-
• See. however, the proclamations of Amherst and Murray, pp. 38 & 42.
• For the basis of this change and the circumstances attending it, see Ordinance of Sept. 17th, 1764 and the notes thereon; p. 205.
506
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
'quilles ; et nous serons toujours prets k les sacrificer pour la gloire de n6tre 'prince et le bien de n&tre patrie.'
'Nous sommes, avec la submission la plus profoncle. 'De votre Majest6,
'Les tr6s-ob6issant, tr6s-z616s, et 'trfes-fid^les sujets,
'Fr. Simmonnet,
'Landri^ve,
'De Rouville,
'De Rouville, fils,
'Longueuil,
'Hertel Beau bassin,
'St. Disier,
'John Vienne,
'La Perier,
'Le Palliau,
'J. Daillebout de Cuisy,
'Gordien de Cuisy, fils,
'La Corne, fils,
'Picott6 de Belestre,
'St. Ours,
'St. Ours, fils,
'Fr. Cariau, 'Pierre Foretier, 'Landriaux, 'L. Defoui, 'J. G. Pillet, 'La Combe, 'Fr. La Combe, 'Ch. Sanguinet, 'Jobert, 'J. Sanguinet, 'M. Blondeau, 'S. Chaboille, 'Eauge,
'J. G. Bourassa, 'J. La Croix, 'P. Panet,
'Chevalier de St. Ours, reschaillon,'Giasson,
'Carilly,
'La Corne,
'Le Moine,
'Quinson de St. Ours^
'Guy,
'Pouvret,
'Contrecceur,
'St. George Du Pr^,
'Des Rividres,
'Louvigny de Montigny,
'Montigny, fils,
'Sanguinet,
'L. Porlier,
'Jean Crittal,
'J. G. Hubert,
'Pierre Panet, fils,
'J. B. Blondeau,
'Vall6s,
'Le Grand,
'Pillet,
'L. Baby,
'P. Pillet,
'HameUn, fils,
'Laurent Du Charme
'Foucher,
'Berthelot,
'Lamber St. Omer,
'M6zi6re,
'De Bonne,
'St. Ange,
'Gamelin.
CONSTITUTIONAL DOCUMENTS 507
SESSIONAL PAPER No. 18
Translation of the foregoing Petition of divers of the French Inhabitants of the Province of Quebeck to the King's Majesty, which was signed about the Month of December, 1773, and presented to the King about February, 1774.
'SIR,
'Your most obedient and faithful new subjects in the province of 'Canada take the liberty to prostrate themselves at the foot of your throne, 'in order to lay before you the sentiments of respect, aflfection, and obedi- 'ence towards your august person, with which their hearts overflow, and to 'return to your majesty their most humble thanks for your paternal care 'of their welfare.
'Our gratitude obliges us to acknowledge, that the frightful appearance 'of conquest by your majesty's victorious arms did not long continue to 'excite our lamentations and tears. They grew every day less and less as
»'we gradually became more acquainted with the happiness of living under 'the wise regulations of the British empire. And even in the very moment 'of the conquest, we were far from feeling the melancholy effects of restraint 'and captivity. For the wise and virtuous general who conquered us, 'being a worthy representative of the glorious sovereign who entrusted him 'with the command of his armies, left us in possession of our laws and 'customs : the free exercise of our religion was preserved to us, and after- 'wards was confirmed by the treaty of peace ; and our own former country-
■ 'men were appointed judges of our disputes concerning civil matters.
■ 'This excess of kindness towards us we shall never forget. These generous ^t 'proofs of the clemency of our benign conqueror will be carefully preserved ^vin the annals of our history ; and we shall transmit them from generation
'to generation to our remotest posterity. These, Sir, are the pleasing ties 'by which, in the beginning of our subjection to your majesty's government, •our hearts were so strongly bound to your majesty ; ties which can never 'be dissolved, but which time will only strengthen and draw closer.
'In the year 1764, your Majesty thought fit to put an end to the military government of this province, and to establish a civil government 'in its stead. And from the instant of this change we began to feel the 'inconveniencies which resulted from the introduction of the laws of England, hich till then we had been wholly unacquainted with. Our former countrymen, who till that time had been permitted to settle our civil 'disputes without any expence to us, were thanked for their services, and ['dismissed ; and the militia of the province, which had till then been proud 'of bearing that honourable name under your majesty's command, was laid 'aside. It is true indeed we were admitted to serve on juries : but at the 'same time we were given to understand, that there were certain obstacles 'that prevented our holding places under your majesty's government. We were also told that the laws of England were to take place in the pro- 'vince, which, though we presume them to be wisely suited to the regulation
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'of the mother-country for which they were made, could not be blended 'and applied to our customs without totally overturning our fortunes and 'destroying our possessions. Such have been ever since the sera of that 'change in the government, and such are still at this time, our just causes 'of uneasiness and apprehension ; which however we acknowledge to be 'rendered less alarming to us by the mildness with which your majesty's 'government has been administered.
'Vouchsafe, most illustrious and generous sovereign, to dissipate these 'fears and this uneasiness, by restoring to us our ancient laws, privileges, and 'customs, and to extend our province to its former boundaries. Vouchsafe 'to bestow your favours equally upon all your subjects in the province, 'without any distinction ! Preserve the glorious title of sovereign of a 'free people: a title which surely would suffer some diminution, if more than 'an hundred thousand new subjects of your majesty in this province, who 'had submitted to your government, were to be excluded from your ser- 'vice, and deprived of the inestimable advantages which are enjoyed by 'your majesty's antient subjects. May heaven, propitious to our wishes 'and our prayers, bestow upon your majesty a long and happy reign ! 'May the august family of Hanover, to which we have taken the most 'solemn oaths of fidelity, continue to reign over us to the end of time !
'We conclude by intreating your majesty to grant us, in common with 'your other subjects, the rights and privileges of citizens of England. Then 'our fears will be removed, and we shall pass our lives in tranquillity and 'happiness, and shall be always ready to sacrifice them for the glory of our 'prince and the good of our country.
'We are, with the most profound submission,
'Your majesty's most obedient, most loyal, and most faithful 'subjects,
'Fr Simonnet, &c. &c.'
A MEMORIAL OF THE FOREGOING FRENCH PETITIONERS IN SUPPORT OF THEIR PETITION.
'M^moire pour appuyer les demandes des tr^s soflmis et tr^s fiddles nou- 'veaux sujets de sa majest6 en Canada.
'L'Augmentation d'un si vaste pais, tel qu'il 6toit lors du gouverne- 'ment Frangois dont le nombre des habitants exc6de actuellement plus 'de cent milles Smes, dont les dix-neuf vingti6mes sont nouveaux sujets ; — 'I'avancement de son agriculture ; — I'encouragement de sa navigation et
'de son commence ; un arrangement k faire sur des fondements
'in^bran tables, qui puisse d^raciner la confusion qui y regne, faute de loix
'fixes et autoris^es ; sont des points pr^sentement en consideration
'qui sont dignes de la sagesse du gouvernement.
1
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SESSIONAL PAPER No. 18
'La conservation de nos anciennes loix, cofltumes, et privileges dans 'leur entier, (et qui ne peuvent Stre chang^es ni alt6r6es sans d^truire et 'renverser enti^rement nos titres et nos fortunes,) est une grace et un acte de 'justice one nous esp^rons de la bont^ de sa majesty.
'Nous demandons avec ardeur la participation aux emplois civils et 'militaires L'id^e d'une exclusion nous effraye. Nous avons prSt6 k sa 'majest6 et k I'auguste famille d'Hanovre le serment de fidelity le plus 'solemnel : et depuis la conquete nous nous sommes comportes en fideles 'sujets. Enfin n6tre zh\e et n6tre attachement nous feront tofljours sacrifier 'nos jours pour la gloire de n6tre souverain et la sflret6 de I'^tat.
'La colonie, telle qu'elle est fixde maintenant par la ligne de quarante 'cinq degr^s, est trop resserr^e dans ses limites.' Cette ligne, qui la borne, 'passe k environ quinze lieiies au dessus de Montreal : et cependant c'est 'de ce seul c6t6 que les terres se trouvent fertiles, et que peut s'etendre avec 'plus d'avantage I'agriculture. Nous supplions que, comme sous le terns 'du gouvernement Frangois, on laisse k nStre colonie touts les pais d'enhaut 'connus sous les noms de Missilimakinac, du Detroit, et autres adjacents 'jusques au fleuve du Mississippi.^ Lar6-uniondecespostesseroitd'autant 'plus n^cessaire k n6tre pais que, n'y ayant point de justice 6tablie, les 'voyageurs de mauvaise foi, auxquels nous fournissons des marchandises pour 'faire le commerce avec les sauvages, y restent impun^ment avec nos effets; 'ce qui mine enti^rement cette colonie, et fait de ces postes une retraite 'de brigands capables de soulever les nations sauvages.'
'Nous d6sirons aussi qu'il plQt k sa majesty re-unir k cette colonie la 'c6te de Labrador, (qui en hth aussi soustraite), telle qu'elle y 6toit autre- 'fois. La pesche du loup marin (qui est le seule qui se fait sur cette cote,)
Ie s'exerce que dans le fond de I'hyver, et ne dure souvent pas plus d'une uinzaine de jours. La nature de cette pesche, qui n'est connue que des abitants de cette colonie ; son peu de dur6e ; et la rigueur de I saison, qui ne permet point aux navires de rester sur les c6t6s ; com- inent k exclurre touts les pescheurs qui viennent de I'Angleterre. 'Nous repr6sentons humblement que cette colonie, par les fl6aux et ^^lamites de la guerre et les frequents incendies que nous avons essuids, 'n'est pas encore en 6tat de payer ses d^penses, et, par consequent, de former 'une chambre d'assembl^e. Nous pensons qu'un conseil plus nombreux 'qu'il n'a kx.h jusques ici, compost d'anciens et nouveaux sujets, seroit 'beaucoup plus k propos.
• See note 3. p. 485. ' For the considerations which prevailed in fixing the boundaries of the Province of Quebec
in 1764, see the Papers relating to the Establishment of Civil Government; p. 140 & pp. 151-152.
• Both the French and British elements in Quebec favoured an extension of the boundaries of the Province as a means of placing in their hands a monopoly of the trade with the western Indians. The problem of the regulation of the Indian trade was the occasion of a great many despatches and reports with the most varied proposals. One of the most comprehensive pre- sentations of the situation, as it affected all the northern colonies interested in the western trade and settlement, was furnished in a communication from Lord Shelburne to the Lords of Trade, dated Oct. 5th, 1767, including the views of Sir Jef. Amherst and Gen. Gage, together with all other papers available which might throw light on the subject. See Calendar of the Home Ofifice Papers, 1766-69, No. 568.
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'Nous avons lieu d'esperer des soins paternels de sa majesty, que les 'pouvoirs de ce conseil seront par elle limittes, et qu'ils s'approcheront le 'plus qu'il sera possible, k la douceur et k la moderation qui font la base du 'gouvernement Britannique.
'Nous esp^rons d'autant mieux cette grace que nous poss^dons plus 'de dix douzi^mes des seigneuries et pr^sque toutes les terres en rotures.
'Fr. Simonnet, &c., &c.'^
Translation of the foregoing Memorial in Support of the Requests made by his Majesty's most obedient and most faithful new Subjects in Canada, in their Petition above-mentioned.
'The improvement of so vast a country as Canada is, if considered as 'having the same boundaries as it had in the time of the French govern- 'ment; a country in which there are at present more than an hundred 'thousand inhabitants, of whom more than nineteen in twenty are new
'subjects of the king ; the increase of agriculture in this country ;
' the encouragement of its trade and navigation ; a settlement
'of the laws by which its inhabitants are to be governed, built upon solid 'and immoveable foundations, so as to remove and cut up by the roots the 'confusion which at present overspreads the province in consequence of the 'want of clear and known laws established by an incontestable authority ;
' are points which are now proposed to the consideration of the British
'government, and are worthy objects of its attention and wisdom.
'The continuance of our ancient laws, customs, and privileges, in their 'whole extent, (because it is impossible to change or alter them without 'destroying and totally overthrowing our titles to our estates and our 'fortunes ;) is a favour, and even an act of justice, which we hope for from 'the goodness of his majesty.
'We ardently desire to be admitted to a share of the civil and military 'employments under his majesty's government. The thought of being 'excluded from them is frightful to us. We have taken the most solemn oath 'of fidelity to his majesty and the august family of Hanover : and ever 'since the conquest of the country, we have behaved like loyal subjects. 'And our zeal and attachment to our gracious sovereign will make us always 'ready to sacrifice our lives for his glory and the defence of the state.
'The province, as it is now bounded by a line passing through the 'forty-fifth degree of north latitude, is confined within too narrow limits. 'This line is only fifteen leagues distant from Montreal. And yet it is only 'on this side that the lands of the province are fertile, and that agriculture 'can be cultivated to much advantage. We desire therefore that, as under 'the French government our colony was permitted to extend over all the 'upper countries known under the names of Michilimakinac, Detroit, and
' There follows the same list of names as that appended to the petition which precedes.
CONSTITUTIONAL DOCUMENTS 511
SESSIONAL PAPER No. 18
'other adjacent places, as far as the river Mississippi, so it may now be 'enlarged to the same extent. And this re-annexation of these inland 'posts to the province is the more necessary on account of the fur-trade 'which the people of this province carry on to them ; because, in the present 'state of things, as there are no courts of justice whose jurisdiction extends 'to those distant places, those of the factors we sent to them with our goods 'to trade with the Indians for their furs who happen to prove dishonest 'continue in them out of the reach of their creditors, and live upon the 'profits of the goods entrusted to their care : which intirely ruins this 'colony, and turns these posts into harbours for rogues and vagabonds, 'whose wicked and violent conduct is often likely to give rise to wars with 'the Indians.
'We desire also that his majesty would be graciously pleased to re- 'annex to this province the coast of Labrador, which formerly belonged to 'it, and has been taken from it since the peace. The fishery for seals, 'which is the only fishery carried on upon this coast, is carried on only in 'the middle of winter, and sometimes does not last above a fortnight. The 'nature of this fishery, which none of his majesty's subjects but the inhabi- 'tants of this province understand ; the short time of its continuance ; and 'the extreme severity of the weather, which makes it impossible for ships 'to continue at that time upon the coasts ; are circumstances which all 'conspire to exclude any fishermen from Old England from having any 'share in the conduct of it.
'We further most humbly represent that, by means of the ravages and 'calamities of the late war, and the frequent fires that have happened in our 'towns, this colony is not as yet in a condition to defray the expences of
IUts own civil government, and consequently not in a condition to admit ■f a general assembly. We are therefore of opinion that a council that ■hould consist of a greater number of members than that which has hith- ferto subsisted in the province, and that should be composed partly of his 'majesty's old subjects, and partly of his new ones, would be a much 'fitter instrument of government for the province in its present state.
'We have reason to hope, from the paternal care which his majesty has 'hitherto shewn for our welfare, that the powers of this council will be 'restrained by his majesty within proper bounds, and that they will be made 'to approach as near as possible to the mildness and moderation which form 'the basis of the British government.
'We hope the rather that his majesty will indulge us in the above 'requests, because we possess more than ten out of twelve of all the seig- 'niories in the province, and almost all the lands of the other tenure, or 'which are holden by rent-service.
'Fr. Simonnet, &c., &c.'
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CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC.^
The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proclamation, and other Promises solemnly given, ciamationof '^^^ king's most excellent majesty was graciously pleased,
October 1763 by his royal proclamation^ of the seventh of October, one thou- sand seven hundred and sixty-three, passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as of his colonies in America, to resort to the said province of Quebeck, and the other provinces then lately ceded to his majesty by the French king, in order to avail themselves, with all convenient speed, of the great benefits and advantages that must accrue therefrom to their commerce, manufactures, and navigation ; and as an encouragement to them so to do, to publish and declare, that his said majesty had, in the letters patent under the great seal of Great-Britain, by which the new governments in the said ceded countries had been constituted, given express power and directions to his governours in the said new colonies, that so soon as the state and circumstances of the said new colonies would admit thereof, they should summon and call general assemblies within the said governments, in such manner and form as is used and directed in those colonies and provinces in America which were under his majesty's immediate government ; and that his majesty had also given powers to the said governours, with the consent of his majesty's councils of the said province, and the representatives of the people in the same, so to be summoned as aforesaid, to make, constitute and ordain laws, statutes, and ordinances for the publick peace, welfare, and good government of his majesty's said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies ; and was pleased further to declare, that in the mean time, and until such assemblies could be called as aforesaid, all persons
'According to Maseres, this presentation of the case of the British merchants in London, "was drawn up at the desire of the said merchants, in the month of May last, at the time of passing the late Quebeck bill, and of which printed copies were distributed to several members of both houses of parliament, in order to give weight to a petition against that bill which these merchants at that time presented to the House of Commons in behalf of themselves and their correspondents and friends, the British inhabitants of the province of Quebeck." "An Account of the Proceedings" &c., p. 201. The petition here referred to was presented in the House of Commons by Mr. Mackworth on May 31st. See Cavendish's Debates on the Quebec Bill, pp. 74-75. The "Case" as here given is taken from Maseres' "An Account of the Proceedings" &c., p. 202. Another copy, evidently from the same source, is given in the Dartmouth papers, M 385, p. 393. There is no doubt, from the style of the document, that Maseres was employed by the merchants to state their case in due form.
» See p. 163.
I
CONSTITUTIONAL DOCUMENTS 513
SESSIONAL PAPER No. 18
inhabiting in, or resorting to, his majesty's said colonies might confide in his majesty's royal protection for the enjoyment of the benefits of the laws of England; and that for that purpose his majesty had given power, under the great seal, to the governours of his majesty's said new colonies, to erect and constitute, with the advice of his majesty's councils of the said provinces respectively, courts of judicature and publick justice within the said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agree- ably to the laws of England.
ordiimnM'of ^^^ '" pursuance of the said proclamation, and of the
Sept. 17, commission of captain-general and governour in chief of the said province of Quebec, granted to major-general Murray,' in the following month of November, one thousand seven hun- dred and sixty-three, and by him received and published in the month of August of the following year, one thousand seven hundred and sixty-four, the said major-general Murray did, with the advice of his majesty's council of the said province, make and publish an ordinance of the said province on the seventeenth day of September, in the same year, one thousand seven hundred and sixty four, for erecting and constituting courts of judicature^; and by the said ordinance did erect two principal courts of judicature, called the Courts of Kings Bench, and Common Pleas ; and did by the said ordinance give power and authority to the chief justice of the province, before whom the said court of King's Bench was to be held, to hear and determine all criminal and civil causes, agreeably to the laws of England, and the ordinances of the said province ; and did likewise, by the said ordinance, direct and command the judges of the said second court, called the Court of Common Pleas, to determine all matters brought before them agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and then present situation of things would admit, until such time as proper ordinances for the information of the people could be published by the governour and council of the said province, agreeable to the laws of England, ordinance' of -^""^ °" ^^^ sixth day of November, in the same year, one
Nove™'"^''' thousand seven hundred and sixty-four, another provincial ordinance was published by the said governour Murray, and his majesty's council of the said province, for the sake of quieting the minds of his majesty's new Canadian subjects, and removing the apprehensions occasioned by the said introduction of the laws of England into the said
'Seep. 173. =See p. 20S.
514
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Conclusion drawn from the said pro- clamation and ordin- ances by tlie king's an- cient & natural-born subjects.
The petition- ers are alarm ed at the de- sign of re- voking the king's pro- clamation, and commis- sion to his governour, &c.
province,' by which it was ordained and declared, that until the tenth day of August then next ensuing, that is, in the year of our Lord one thousand seven hundred and sixty- five, the tenures of the lands, in respect of such grants as were prior to the cession of the said province, by the definitive treaty of peace signed at Paris, on the tenth day of February, one thousand seven hundred and sixty-three, and the rights of inheritance, as practised before that period, in such lands or effects of any nature whatsoever, according to the custom of the said country, should remain to all intents and purposes the same, unless they should be altered by some declared and positive law.
And the said two ordinances have been transmitted to his majesty, and never disallowed by him, and are therefore generally understood by his majesty's British subjects in the said province, to have received the sanction of his majesty's royal approbation ; and in consequence of the said two ordinances, together with the proclamation aforesaid of the seventh of October, one thousand seven hundred and sixty-three, and the two com- missions of governour in chief of the said province, granted suc- cessively to major-general Murray and major-general Carleton, which seem in every part of them to pre-suppose that the laws of England were in force in the said province of Quebeck, being full of allusions and references to those laws on a variety of different subjects, and do not contain any intimation of a saving of any part of the laws and customs that prevailed in the said province in the time of the French government, we the British merchants trading to Quebeck, and all the ancient British subjects residing in the said province have been made to under- stand and believe, that the laws of England have been intro- duced into the said province, and that they have had the sanction of his majesty's royal word, that they should continue to be observed in the said province.
We cannot therefore but express our surprise and concern at hearing that a bill is now brought into parliament, by which it is intended, that the said royal proclarnation of October, one thousand seven hundred and sixty-three, and the commission under the authority whereof the government of the said province is at present administered, and all the ordinances of the said province, relative to the civil government and administration of justice in the same, and all commissions to judges and other officers of the same, should be revoked, annulled, and made void.
' See p. 229.
CONSTITUTIONAL DOCUMENTS 515
SESSIONAL PAPER No. 18
by^fhe peu" ^^ humbly beg leave to represent, that many of us have,
tioners to through a confidence in the said royal proclamation, and other
persons re- . ,. , ,,,,,,...
siding in mstruments proceedmg from, and allowed by, his majesty s
uponthe royal authority, ventured to send considerable quantities of
faith of the merchandize into the said province, and to give large credits
clamation, to divers persons residing in the same, both of his majesty's
njw Canadian subjects, and of his antient British subjects,
who have, through a like confidence in the said proclamation,
resorted to, and settled themselves in, the said province. And
that we have employed our property and credit in this manner,
in a firm belief, that we should have the remedies allowed us by
the laws of England for the security and recovery of it ; and that
if we had supposed the French laws, which prevailed in the said
province under the French government, to be still in force
there, or to be intended to be revived in the same, we would
not have had any commercial connections with the inhabitants
of the said province, either French or English. And therefore
we beg leave to represent, that we think ourselves intitled, upon
the mere grounds of justice, (without desiring any favour to be
shewn us on the account of our being his majesty's antient, and
faithful, and protestant subjects, that are attached to his royal
^re desirr P^^son and government by every tie of religion, interest, and
that the habitual duty and affection) to insist that, if it be resolved to
intended .... ^ ..... ^ , .
revival of persist m this new measure of reviving all the former laws of
laws nrny at Canada concerning property and civil rights, and abolishing
'^^n'df ?°^' ^^ \avis of England that have prevailed there in their stead
some time, since the establishment of the civil government in one thousand
seven hundred and sixty-four, the execution thereof may at
least be postponed until we shall have had sufficient time to
withdraw our efifects from the said province, and obtain payment
I of the debts which are owing to us in the same, by the remedies
and methods of trial allowed and appointed by the laws of England in that behalf ; through a reliance on which remedies and methods of trial we were induced to venture our said effects there, and permit those debts to be contracted. And this time, we humbly represent, cannot well be less than three years.
of"the k'ing's ^^^ further beg leave to represent, that we apprehend his
former con- majesty's former conduct in introducing the laws of England
duct in in- .•',•'. , . ... , . , , .
uoducing into the said province by his proclamation and other instruments ' England ° aforesaid, to have been in no wise unusual, or severe, or partic-
into Canada, ularly harsh, with respect to his new Canadian subjects, nor to have been unexpected by them, but to have been the natural and known consequence of the conquest and cession of the country to his majesty by the late peace, according to the policy of the crown of Great-Britain on the occasion of similar con-
516 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
quests in former times. And we particularly beg leave to observe, that the whole law of England has been introduced into the
Sin ^was kingdom of Ireland, in "consequence of the conquest of it by the
done in arms of England, without any the least mixture of the antient Irish laws, even upon the subjects of tenures and descents of land : and no inconvenience has been found to follow from it ; but, on the contrary, the similitude of laws is at this day a strong ground of union and mutual affection between the inhabitants of the two countries. And the like has been done with respect to the
^^ '" principality of Wales ; in which the English law is the only law
that has been allowed for more than two hundred years past : and the like good effects have followed from it. And in the last
And in New century, upon the conquest of the province of New- York, then called the New Netherlands, from the Dutch, the same policy was observed, and the Dutch laws were totally abolished, and the English laws introduced in their stead, which have prevailed there ever since. And yet, at that time, the Dutch settlers in that province were very numerous, and from them much the greater part of the present inhabitants are descended. And, in conformity to these examples, we did conceive his most gracious majesty to have intended to introduce the laws of England, by his proclamation aforesaid, into the four new governments of Granada, East Florida, West Florida, and Quebeck, instead of the French and Spanish laws, which had prevailed therein
A power of ynfjef the former governments. And we conceive this conduct
doing so in _ °
Canada was of his most gracious majesty, to have been no way derogatory served to the to the articles of capitulation, granted to his Canadian subjects ^'pitu^atimf. ^y general Amherst, upon the surrender of the whole country to his majesty's arms in September, one thousand seven hundred and sixty' ; because, when the French general expressly demand- ed, in one of the articles of capitulation, "That the French and Canadians should continue to be governed according to the custom of Paris, and the laws and usages established for that country, and that they should not be subject to any other imposts than those that were established under the French dominion ;" the said general Amherst, in his answer to the said demand, declares, "That they become the king's subjects;"- thereby avoiding to tie up and preclude his late majesty, and his royal successors, from making such changes in the laws and taxes of the said province, as to his royal wisdom should seem meet. The parts of w^g further beg leave to represent, we that are most especially
the Enghsh . ° . \. , rir-i-ii
law which anxious for the preservation of those parts of the English law
tio'ners most which relate to matters of navigation, commerce, and personal
I
• See Capitulation of Montreal, p. 7.
' Capitulation of Montreal, articles 41 & 42; see pp. 20 & 33-34.
I
I
CONSTITUTIONAL DOCUMENTS 517
SESSIONAL PAPER No. 18
particularly contracts, and the method of determining disputes upon those continued in subjects by the trial by jury, and likewise for those parts of it ' which relate to actions for the reparation of injuries received, such as actions of false imprisonment, and of slander, and of assault, and whatever relates to the liberty of the person, and most of all for the writ of habeas corpus, in cases of imprison- ment ; which we take to be, in the strongest and most proper sense of the words, one of the benefits of the laws of England, of which his majesty has promised us the enjoyment by his proclamation above-mentioned, and which we apprehend to be a part of the English system of jurisprudence, to which our new Canadian fellow-subjects will not object. perous™on- ^^^ ^^ ^^S leave to represent, that the province of Quebeck
dition of the has thriven exceedingly, both in agriculture and trade, since since the the establishment of the civil government of the province, and of'the"*^""" ^^^ introduction of the English laws into the same ; having English law. exported last year about three hundred and fifty thousand bushels of corn ; whereas, in the time of the French government, they exported none at all, and produced hardly enough for their own subsistence, part of^^e"^ ^^^ ^^ further beg leave to represent, that much the greater
trade of the part of this trade is carried on by his majesty's old British carried on by subjects in the Said province ; by which they may justly claim hihabitonta ^o themselves the merit of having been the principal promoters °f ''• of the late great improvement of the province.
Xs doliot ob^ ^"^ ^^ further beg leave to represent, that we by no means ject to the re- object to a revival or continuance of the former French laws
vival. or con- . , r , , 11 1 , r , •
tinuance. of concernmg the tenures ol land, and the methods 01 alienatmg fawsrdating ^"^ conveying land, nor even concerning the inheritance of land to landed belonging to Canadians born, or to be born, of marriages already contracted ; nor concerning dower, or the other civil rights of either men or women resulting from the matrimonial contract, so far as they relate to marriages already contracted. And we conceive that the revival of the French laws in these particulars, with full powers given to the Canadians of future times to continue them in their respective families at their pleasure by marriage-agreements, last wills, or deeds in their life-time, would be sufficient to give full satisfaction to the bulk of his majesty's new Canadian subjects, and make them acquiesce very chearfuUy in the general establishment of the laws of Eng- land, in conformity to his majesty's proclamation above-men- tioned, up)on all other matters. B rV" ""^ ■^"'^ ^^ further beg leave to represent, that several of his
habiunts of majesty's Old British subjects are possessed of a considerable are ^s^g^dquantity of landed property in the said province, and that
518 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
°br°"*'**^t'- others of them are daily becoming so ; and hereupon we will ties of landedventure to affirm, that sixteen of the seigniories of that province, proper y .^^^ some of them the most valuable ones in the country, are in the hands of the said Old British subjects.'
And we further beg leave to represent, that, in consequence of his majesty's most gracious promise contained in his pro- clamation aforesaid, that, as soon as the situation and cir- cumstances of the said province would permit, an assembly of Concerning freeholders and planters of the same should be called by his
an assembly "^ ,. , . . . . . .
of the free- niajesty's governour thereof, which, in conjunction with the said province. governour, and his majesty's council of the said province, should have power to make laws and ordinances for the welfare and good government of the said province, we have constantly entertained hopes that an assembly of the freeholders of the same would soon be established, and that we should enjoy the benefits resulting from that free and equitable method of government in common with the inhabitants of the adjoining provinces of North-America. The peti- ^j^j therefore we beg leave to represent, that we have been
tioners are ° .
alarmed at very greatly alarmed by that part of the bill now before parlia- establishing ment, which seems to cancel the said most gracious promise coundUn^'^ of our sovereign, and to deprive us of all hopes of obtaining the the province, establishment of a general assembly of the freeholders of the said province, and to establish in the stead thereof a very different mode of government in the said province, by a legislative council, consisting of persons appointed by, and removeable at the pleasure of, the crown ; more especially as the said new mode of govern- ment, (which we presume nothing but some urgent and very peculiar circumstances of necessity can be thought a sufficient reason for adopting) is not limited in the said bill to continue for only a certain small number of years, after which they might hope to have an assembly in the said province, agreeably to the said royal promise, but is established in very general terms, that remove that agreeable prospect out of their sight. a^uffident°' We further beg leave to represent, that we have hitherto
number of been made to understand, that the reason of the omission of his landholders majesty's governours of the said province to call a general vince^o form assembly of the freeholders of the same, from the first establish- an assembly nient of the civil government thereof, in the year one thousand
has been .
hitherto seven hundred and sixty-four, to the present time, according
the reason of to the powers and directions given them by his majesty in that
to^caHon'e" behalf, in their commissions of captain-general and governour
in chief of the said province, has been the difficulty of finding
' See "List of British proprietors of Lands in the Province of Quebec, 1773." Dartmouth Papers, M 384, p. 233. Twenty-nine of these are designated as holding seigniories.
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
519
That reason is now at an end, there being a sufficient number of protestant freeholders for that purpose.
a sufficient number of subjects of his majesty in the said province properly qualified, in all respects, to be members of such assembly, according to the directions of the said commissions, which re- quired, that all persons who should become members either of the said assembly of the freeholders of the said province, or of his majesty's council of the same, should take the oath of abjuration of the pope's power, and subscribe the declaration against transubstantiation, as well as take the oath of allegiance and the oath of abjuration of the pretender's right to the crown of these realms, before they were admitted to sit and vote in such assembly and council.^ And this objection, we beg leave to represent, is now thought, by persons well acquainted with the said province, to be at an end, there being now a sufficient number of free- holders in the said province to constitute a house of assembly, willing and ready to take the said oaths and declaration ; in proof of which we beg leave to inform this honourable house, that a petition has been lately presented to his majesty from the British and protestant inhabitants of the said province, signed by a great number of persons of that description, requesting his majesty to summon and call such a general assembly of the freeholders of the said province, and assuring him that there are a sufficient number of persons in the said province qualified according to the direction of his majesty's commission for that purpose, and humbly representing to his majesty, that the situation and circumstances of the said province are at present such, as not only render the said measure of establishing a general assembly practicable, but likewise make it to be highly expedient for the regulation and improvement of the said province.^
And we beg leave further to represent, that if it be thought inexpedient on the one hand to constitute a house of assembly, consisting of protestants only, agreeably to the directions of his majesty's commissions before-mentioned, on account of the great superiority of the numbers of the Roman-Catholicks in the said province, who would thereby be excluded from sitting in such assembly; and, on the other hand, it be thought dangerous to summon a general assembly into which the Roman-Catholicks should be admitted indiscriminately with the protestants; and, on account of this twofold difficulty, it be judged necessary to have recourse to the new method of government above-mentioned, by investing a council of persons nominated, and removeable at, the pleasureof the crown, with acertain degree of legislative authority;
t be judged of the
Objection to we humbly hope that the same reasons which make
of Roman- dangerous to admit the Roman-Catholick inhabitants
' See conditions stated in Murray's Commission, p. 175.
' See Petition to the King from Quebec and Montreal, p. 495.
520 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Pt^'ui"^''' said province into a share of the legislative authority by means legislative of an open assembly of the same, will be thought sufficient to exclude them from obtaining a share of the same authority by an admission into this new legislative council; which, being a single body invested with the , power of making laws for the province, will be of more weight and consequence in the same, than an assembly of the freeholders would be, if the plan of govern- ment promised by his majesty's proclamation and commissions above-mentioned, by a governour, council and assembly, had been pursued. And therefore we cannot but express our concern to find, that in the bill now before parliament,' there is no provision that all, or even any of, the members of the said intended council should of necessity be protestants, but that they may be all Roman-Catholicks notwithstanding any thing contained in the same. And therefore we most humbly and earnestly intreat this honourable house to take care that, if such a legislative council must be established in the said province, in lieu of an assembly of the freeholders of the same, the members thereof shall be all protestants ; or, if that be thought too much to grant to them, that at least a majority of the members of the said council should necessarily be protestants, and only a few of the most moderate sort of Roman-Catholicks should be ad- mitted into it, who should be required to take the oath of abjur- ation of the pope's authority, though not to subscribe the declaration against transubstantiation ; which is a temperament, which, as we conceive, might lead to good effects hereafter.
makl^'the^ And we further beg leave to represent both on our own
members of account, and in behalf of our friends and correspondents, the
the legislative . _..,.,,. ... . , . ,
council inde- antient British inhabitants now residing in the said province, ?^egove° that, if the said province must be governed by a legislative nour. council, nominated by his majesty, without the concurrence of
an assembly of the freeholders of the same, we humbly hope that a clause will be inserted in the bill, to render the members of the said council incapable of being either removed or suspended by his majesty's governour of the said province, and liable only to be removed by his majesty himself, by his order in his privy council, (of whose wisdom and justice we can entertain no suspicion) to the end, that the said counsellors may both act with a spirit of freedom and independence becoming their high offices of legislators of the said province, and be thought to do so by the people of the same, instead of being considered as depend- ent creatures and tools of the will and pleasure of the governour for the time being, as we conceive will be the case, if he shall be
' The Quebec Bill.
i
CONSTITUTIONAL DOCUMENTS 521
SESSIONAL PAPER No. 18
invested with a power of removing or suspending them from their
said offices at his discretion. CTs^desire"" '^"^ ^^ ^^^ leave further to represent, that it is also our
that the wish, if such a legislative council shall be established in lieu of council may an assembly, that the number of the members thereof may be certain num- fi^^d and certain, instead of being liable to vary between the ber of mem- numbers of seventeen and twenty-three persons, as is proposed
bers, mstead . . •' /^ ' ...
of a number m the present bill ; and likewise, that the said council may be v^eTat made as numerous as conveniently may be, to the end, that it pleasure. j^^y contain within it persons acquainted with every part of the province, and the interests of the inhabitants residing in the same, and that their acts and resolutions may be, for the most part, agreeable to the sentiments of the body of the people over whom they are to preside. And, with respect to this point, we beg ^"*^e'st*^that 1^^^^ to represent, that it is the opinion of some of the most their number judicious and respectable of our friends and correspondents in thirty-one. the said province, that it would be easy to find thirty-one persons amongst the British and other protestant inhabitants of the said province, capable of being useful members of such a council, desire Ui^tT ^"'^ ^^ further beg leave to represent, that in case such a majority of legislative council should be established, it is our earnest desire number of that provision may be made in the said bill, that a certain may w'made number of the members of the same shall be necessary to trans- necessary to act business ; without which it may happen, that a very small ingof part of the whole body, as, for example, five or six persons, shall
usmess. occasionally exercise the great powers vested in the whole, and make laws and ordinances that shall bind all the inhabitants of the province ; which, we humbly conceive, would be highly inexpedient and unbecoming, and cause great uneasiness in the said province. And we are humbly of opinion, that the number thus made necessary to the exercise of these high legislative powers, ought to be more than half the whole number of the members of such council.
m"mber' ""^ ^^^ ^^ further beg leave to suggest it as our opinion con- may be paid cerning this legislative council, that it would be expedient that attendance the members thereof should receive some reasonable reward council, a out of the publick revenue of the province, for every attendance certain sum ^j tj^g meetings of the said council on the legislative business
of money . . . , 7 i
for everj- of the said province, sufficient, at least, to defray the expences atten ance. ^^ travelling to the place where the said meetings shall be held, and of residing there during the time of the said meetings ; to the end, that at all the meetings of the said council, there may be a very full attendance of counsellors, who may concur in exercising the said high authority ; without which, the ordinances
522 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
they shall pass will not be very likely to obtain the reverence due to them from the people, nor meet with a chearful obedience.
ra?dcouncU^ ^^^ above all, we beg leave to repeat our most earnest
may be es- hopes and desires, that the establishment of the said legislative only a small council (if it shall be resolved that such a one shall be established,) yeaTs*to°the '^^V ^^ ^^'V ^'^^ ^ small number of years, to the end, that, in end that j-agg jj shall hereafter appear to his majesty, that the situation
the provmce r , • i • -n j ■ r i
may after- and Circumstances ot the said province will admit ot the summon- governed by '"g a general assembly of the freeholders of the same, we may at an assembly, j^gj. ^g^p ^^^ benefit of his most gracious promise to us in his proclamation and commissions above-mentioned, that we should be governed in the usual and approved method of his majesty's other colonies in America, by a governour, council, and assembly.
We therefore humbly hope, that the honourable house of commons will take our case into consideration, and permit us to be heard by our council at the bar of their house, to the several heads mentioned in this state of it, and to such other parts of the bill now before them, as we shall apprehend ourselves to be concerned in interest to object to, either on our own account, or in the behalf of our correspondents and friends, the Old British subjects of the crown now residing in the said province. And we have a firm reliance on the wisdom and justice of this honourable house, the representatives of the Commons of Great- Britain, for a satisfactory determination upon all the matters contained in this case, and upon the other points which may be submitted to their consideration by our counsel at their bar, and for the protection of our rights and liberties, as British subjects, who have acted under the sanction of his majesty's royal proclamation above-mentioned.
LORD MANSFIELD'S JUDGMENT IN CAMPBELL v. HALL, 1774.i
The case of the Island of Grenada ; in relation to the payment of four and one-half in the hundred of goods exported therefrom ; between Alex- ander Campbell, Esq., Plaintiff, and Wm. Hall, Esq., Defendant, in the Court of King's-Bench, before Lord Chief-Justice Mansfield : 15 George III., A.D. 1774.
• After comparing the versions of this Judgment as given in Cowper's "Reports." Lofffs "Reports," and Howell's "Complete Collection of State Trials" Vol. XX, it has been found that, with some slight variations, the selected version given by Mr. Wm. Houston in his "Documents illustrative of the Canadian Constitution" p. 79, may be safely followed, and is therefore sub- stantially that given here. The general argument presented in this judgment on the status of the laws of a conquered country, and on the nature of the authority having the right to change them, may be compared with the arguments presented, in the case of the Province of Quebec, by the various law Officers of the Crown, alike in Britain and in Canada. In Vol. II, of the "Canadian Freeholder" Maseres discusses the whole judgment with his usual learning.
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SESSIONAL PAPER No. 18
November 28.
The unanimous judgment of the Court was this day given by Lord Mansfield, as follows:
This is an action brought by the plaintiff, Alexander Campbell, who is a natural-born subject of Great Britain, and who, upon the third of May 1763, purchased lands in the island of Grenada ; and it is brought against the defendant, William Hall, who was collector for His Majesty at the time of levying the imposts, and of the action brought, of a duty of four and a half per cent, upon goods exported from the island of Grenada. The action is to recover a sum of money, which was levied by the defendant and paid by the plaintiff, as for this duty of four and a half per cent, upon sugars, which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff.
The action is an action for money had and received ; and it is brought ufKjn this ground, namely, that the money was paid to the defendant without consideration, the duty for which he received it not having been imposed by lawful or sufficient authority to warrant the same.
And it is stated in the special verdict' that the money is not paid over, but continues in the defendant's hands, by consent of the Attorney-General, for His Majesty, in order that the question may be tried.
The special verdict states Grenada to have been conquered by the British arms from the French King in 1762; that the island was ceded by capitulation ; and that the capitulation upon which it surrendered was by reference to the capitulation upon which the island of Martinico had been surrendered on the 7th of February, 1762.
The special verdict then states some articles of that capitulation, particularly the fifth, which grants that Grenada should continue to be governed by its own laws till His Majesty's pleasure be known. It next states the sixth article, where, to a demand of the inhabitants of Grenada requiring that they, as also the religious orders of both sexes, should be main- tained in the property of their effects, moveable and immoveable, of what nature soever, and that they should be preserved in their privileges, rights, honours, and exemptions, the answer is that the inhabitants, being subjects of Great Britain, will enjoy their properties and the same privileges as in the other His Majesty's Leeward Islands.
Then it states another article of the capitulation, namely, the 7th article, by which they demand that they shall pay no other duties than what they before paid to the French King ; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the administration of government should be paid out of the King's demesne : in answer to which they are referred to the answer I have stated, as given j in the foregoing article ; that is, being subjects they will be entitled in like
' Refeiring to the verdict of the jury before whom the case had been tried and who rendered special verdict setting forth the facts in the case.
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6-7 EDWARD VII., A. 1907
manner as the other His Majesty's subjects in the British Leeward Is- lands.
The next thing stated in the special verdict is the treaty of peace signed on the 10th of February, 1763 ; and It states the part of the treaty of peace by which the island of Grenada is ceded, and other articles which are not material.'
The next material instrument which they state is a proclamation under the Great Seal, bearing date the 7th of October, 1763, reciting thus :
"Whereas it will greatly contribute to the settling of our said islands "of which Grenada is one, that they be informed of our love and paternal "care for the liberties and rights of those who are, or shall be inhabitants "thereof ; we have thought fit to publish and declare by this our proclam- "ation, that we have by our letters patent under our Great Seal of Great "Britain, whereby our said Governments are constituted, given express "power and direction to our governors of our said colonies respectively, "that so soon as the state and circumstances of the said colonies will admit "thereof, they shall, with the advice and consent of our said council, call "and summon general assemblies, in such manner and form as is used in the "other colonies under our immediate government. And we have also given "power to the said governors, with the advice and consent of our said "council and assembly of representatives as aforesaid, to make, constitute, "and ordain laws, statutes, and ordinances for the public peace, welfare "and good government of our said colonies and the inhabitants thereof, "as near as may be agreeable to the laws of England, and under such "regulations and restrictions as are used in our other colonies. "^
Then follow letters patent under the Great Seal, or rather a pro- clamation of the 26th of March, 1764, whereby the King recites, that he had ordered a survey and division of the ceded islands, as an invitation to all purchasers to come and purchase upon certain terms and conditions specified in that proclamation.
The next instrument stated in the verdict is the letters patent bearing date the 9th of April, 1 764. In these letters there is a commission appointing General Melville Governor of the island of Grenada, with power to summon an assembly as soon as the situation and circumstances of the island would admit ; and to make laws in all the usual forms with reference to the manner of the other assemblies of the King's Provinces in America.'
The Governor arrived in Grenada on the 14th of December, 1764 ; before the end of 1765, the particular day not stated, an assembly actually met; but before the arrival of the Governor at Grenada, indeed, before his Commission, and before his departure from London, there is another instru- ment upon the validity of which the whole question turns, which instrument
' See Treaty of Paris. 1763, article 9. p. 102, and also p. 117.
'See Proclamation of 1763, p. 163. This is only a paraphrase and not a verbally correct transcript of the section quoted; see p. 165.
' That this Commission was practically the same as that for the Governor of Quebec is evident from the proceedings in connection with their draughting. See pp. 150 & 159.
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contains letters patent under the Great Seal, bearing date the 20th of July, 1764, and reciting that in Barbadoes, and in all the British Leeward islands, a duty of four and a half per cent, was paid upon goods exported ; and reciting further :
"Whereas it is reasonable and expedient, and of importance to our "other sugar islands, that the like duties should take place in our said "island of Grenada ; we have thought fit, and our royal will and pleasure "is, and we do hereby, by virtue of our prerogative Royal, order, direct, "and appoint that an impost or customs of four and a half per cent, in "specie, shall, from and after the 29th day of September next ensuing "the date of these presents be raised and paid to us, our heirs and succes- "sors, for and upon all dead commodities of the growth or produce of our "said island of Grenada that shall be shipped off from the same, in lieu of "all customs and impost duties hitherto collected upon goods imported "and exported into and out of the said island, under the authority of his "Most Christian Majesty, and that the same shall be collected, &c." ; then it goes on with reference to the island of Barbadoes, and the other Leeward islands.
The jury find that in fact such duty of four and a half per cent, is paid to his Majesty in all the British Leeward islands. And they find several Acts of Assembly which are relative to the several islands, and which I shall not state, as they are public, and every gentleman may have access to them.
These letter patent of the 20th of July, 1764, with what I stated in the opening, are all that is material in this special verdict.
Upon the whole of the case this general question arises, being the sub- stance of what is submitted to the Court by the verdict : "Whether these letters patent of the 20th of July, 1764, are good and valid to abrogate the French duties, and in lieu thereof to impose this duty of four and a half per cent., which is paid by all the Leeward islands subject to his Majesty."
That the letters are void has been contended at the bar, upon two points : (1) That although they had been made before the Proclamation of the 7th of October, 1763, the King by his prerogative could not have imposed them ; and (2) that, although the King had sufficient authority before the 7th of October, 1763, he had divested himself of that authority by the Proclamation of that date.
A great deal has been said, and authorities have been cited relative to propositions in which both sides exactly agree, or which are too clear to be denied. The stating of these will lead us to the solution of the first point.
I will state the propositions at large :
1. A country conquered by the British arms becomes a dominion of the King in the right of his crown, and therefore necessarily subject to .the legislative power of the Parliament of Great Britain.
526 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
2. The conquered inhabitants once received into the conqueror's protection become subjects ; and are universally to be considered in that light, not as enemies or aliens.
3. Articles of capitulation, upon which the country is surrendered, and treaties of peace by which it is ceded, are sacred and inviolate, according to their true intent and meaning.
4. The law and legislation of every dominion equally affects all persons and property within the limits thereof, and is the true rule for the decision of all questions which arise there. Whoever purchases, sues, or lives there, puts himself under the laws of the place, and in the situation of its inhabi- tants. An Englishman in Ireland, Minorca, the Isle of Man, or the Plan- tations, has no privilege distinct from the natives while he continues there.
5. The laws of a conquered country continue in force until they are altered by the conqueror. The justice and antiquity of this maxim, are incontrovertible ; and the absurd exception as to pagans mentioned in Calvin's case, shows the universality and antiquity of the maxim. That exception could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. In the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws, until his Majesty's pleasure be further known.
6. If the King has power (and, when I say "the King," I mean in this case "the King without the concurrence of Parliament") to alter the old and to make new laws for a conquered country — this being a power subor- dinate to his own authority as a part of the supreme legislature and parlia- ment^he can make none which are contrary to fundamental principles he cannot exempt an inhabitant from the laws of trade, or the authority of Parliament, or give him privileges exclusive of his other subjects; and so in many other instances that might be put.
The present Proclamation is an Act of this subordinate legislative power. If it had been made before the 7th of October, 1763, it would have been made on the most reasonable and equitable grounds, putting the island of Grenada as to duties on the same footing as the other islands.
If Grenada paid more duties, the injury would have been to her; if less, it must have been detrimental to the other islands ; nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes that if any new duties were laid on, their condition would be the same as that of the other Leeward islands.
The only question which remains on this first point then is, whether the King of himself had power to make such a change between the 10th of February, 1763, the day the treaty was signed, and the 7th of October, 1763.
Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and sub- ordinate to the constitution and parliament. It is left by the constitution to the King's authority to grant or refuse a capitulation. If he refuses, and
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puts the inhabitants to the sword, or exterminates them, all the lands belong to him ; and if he plants a colony, the new settlers share the land between them, subject to the prerogative of the conqueror. If he receives the inhabitants under his protection and grants them their property, he has power to fix such terms and conditions as he thinks proper. He is entrusted with making peace at his discretion ; and he may retain the conquest, or yield it up, in such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a conquered nation.^
To go into the history of conquests made by the crown of England.
The alteration of the laws of Ireland has been much discussed by lawyers and writers of great fame at different periods of time ; but no man ever said the change was made by the parliament of England ; no man, unless perhaps Mr. Molyneux, ever said the King could not do it. The fact, in truth, after all the researches that have been made, comes out clearly to be as laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England by the charters and commands of Henry II., King John, Henry III., and he adds an et cetera to take in Edward I., and the successors of the princes named. That the charter of 12 King John was by assent of a parliament of Ireland, he shows clearly to be a mistake. Whenever the first parliament was called in Ireland, that change in their constitution was without an act of the parliament of England, and therefore must have been derived from the King.
Mr. Barrington is well warranted in saying that the 12th of Edward I., called the "Statute of Wales," is certainly no more than a regulation made by the King as conqueror, for the government of the country, which, the preamble says, was then totally subdued ; and, however for purposes of policy he might think fit to claim it as a fief appertaining to the realm of England, he could never think himself entitled to make laws without assent of parliament to bind the subjects of any part of the realm. Therefore as he did make laws for Wales without assent of parliament, the clear conse- quence is that he governed it as a conquest : which was his title in fact, and the feudal right was but a fiction.
Berwick, after the conquest of it, was governed by charters from the crown, till the reign of James I., without interposition of parliament.
Whatever changes were made in the laws of Gascony, Guyenne, and Ca- lais must have been under the King's authority; if by act of parliament, that act would be extant, for they were conquered in the reign of King Edward III. ; and all the acts from that reign to the present time are extant ; and in some acts of parliament there are commercial regulations relative to each »f the conquests which I have named ; none making any change in their institution and laws, and particularly with regard to Calais, which is
' See however the discussion of this point by Atty. Gen. Thurlow, p. 440.
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alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitution : for the inhabi- tants were summoned by writ to send burgesses to the English parliament; and, as this was not by act of parliament, it must have been by the sole act of the King.
Besides the garrison there are inhabitants, property, and trade at Gibraltar ; the King, ever since that conquest, has from time to time made orders and regulations suitable to the condition of those who live, trade, or enjoy property in a garrison town.
Mr. Attorney-GeneraU has alluded to a variety of instances, several within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have been for years back a great many inhabitants of worth and a great trade carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily follow a conquest by the King of England) the same argument applies here ; for before the 7th of October, 1763, the constitution of Grenada continued, and the King stood in the place of their former sovereign.
After the conquest of New York, in which most of the old Dutch in- habitants remained. King Charles II. changed its constitution and political form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent.
It is not to be wondered that an adjudged case in point is not to be found; no dispute ever was started before upon the King's legislative right over a conquest ; it never was denied in a court of law or equity in Westminster- hall, never was questioned in parliament. Lord Coke's report of the arguments and resolutions of the judges in Calvin's case lays it down as clear (and that strange extrajudicial opinion, as to a conquest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that "if a King" — I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly 'exploded — "If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom; but, until he doth make an alteration of those laws the ancient laws of that kingdom remain ; but if a King hath a kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament." It is plain that he speaks of his own country where there is a parliament. Also, "if a King hath a kingdom by conquest, as King Henry the Second had Ireland, after King John had given to them, being under his obedience and subjection, the laws of England for the govern- ment of that country, no succeeding King could alter the same without
' Edward Thurlow. See note 1, p. 437.
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parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England.
Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting officially in a public charge or in private, are not properly authority on which to found a decision, yet I cite them ;— not to establish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it has received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and conformable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg, what was to be done if they should persist in this refusal. Their answer is — "If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but, if it was to be considered in the same light as the other colonies, no tax could be imposed upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable ; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occasions, traced the constitution of Jamaica as far as there are books or papers in the offices ; I cannot find that any Spaniard remained upon the island so late as the Restoration ; if any, they were very few. A gentleman to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names among the white inhabitants of Jamaica ; but there were amongst the negroes. The King, I mean Charles the Second, after the Restoration invited settlers by proclam- ation, promising them his protection. He made grants of land. He appointed at first a governor and council only ; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner ; not by the grants, but by commissions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown ; like the cases of the islands of St. Helena and St. John, men- tioned by Mr. Attorney-General.
A maxim of constitutional law, as declared by all the judges in Calvin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise made it doubtful ; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited ; no instance is to be found in any period of our history where it was ever questioned.
The counsel for the plaintiff undoubtedly labored this point from a dif- fidence of what might be our opinion on the second question. But upon the
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second point, after full consideration, we are of opinion that before the letters patent of the 20th of July, 1764, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada.
The first and material instrument is the proclamation of the 7th of October, 1763. See what it is that the King there says, and. with what view he says it ; how and to what he engages himself and pledges his word : "Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof ; we have thought fit to publish and declare by this our proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said governments are con- stituted,given express power and direction to our governorsof our said colonies respectively, that, so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies" (and then follow the directions for that purpose). And to what end? "To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies," of which this of Grenada is one, "and of the people and inhabitants thereof, as near as may be agreeable to the laws of England." With what view is the promise given ? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution ; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assured them of the constitution under which they were to live.'
The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should admit.' — You will observe in the proclamation there is no legislature reserved to be
• Since Canada came equally with Grenada under the Proclamation of Oct. 1763, the chief features of this paragraph apply closely to the Canadian case and represent the claims so con- stantly put forth by the English element in their petitions.
' See preparations for the issue of Commissions for Governors Melville and Murray, among others; pp. 148 & 159.
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exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called : the promise imports the contrary ; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice ; not an imposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called ; it must have been in about the year at farthest from the governor 's arrival , for the j ury find he arrived in December, 1 764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly.
We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island of Grenada — in general to all whom it might con- cern— that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King.
Therefore, though the right of the King to have levied taxes on a conquer- ed country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the finding of the verdict, paid in Barbadoes and all the other Leeward islands ; yet by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is inverted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only be done, to use the words of Sir Philip Yorke and Sir Clement Wearg, "by the assembly of the island, or by an act of the Parliament of Great Britain."
The consequence is, judgment must be given for the plaintiff.
MASERES TO THE LORD CHANCELLOR.'
April 30"^ 1774. My Lord, Inner Temple
I took the liberty of communicating to your Lordship some time ago the testimonies of M' Le Brun,* the French lawyer atQuebeck, and M' Du Mas Saint Martin,' the justice of peace at Montreal, concerning the
t' Canadian Archives, Dartmouth Papers; M 38S, p. 272. • Referring to an extract from a letter of Mr. Le Brun, a lawyer of Quebec, dated 8th, Jan. 74, "Containing the sentiments of himself and divers other Canadians concerning my draught an act of parliament for settling the laws of the Province of Quebec." M 384, p. 240. 'Mr. Saint Martin was "a French protestant residing at Montreal (who was formerly a
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favourable reception my French memoire' had met with in Canada from the Canadians as well as the English. I now beg leave to add the testimony of M' De Lisle, the protestant minister and Chaplain of the garrison at Montreal, a native of old France, and Colonel Christie, a Scotsman of an excellent understanding and easy fortune, and who has known Canada ever since the conquest of it, and who is proprietor of two valuable seigniories in it ; both to the same purpose. M' De Lisle writes as follows — "Your answer to M' Cugent is universally admired and applauded by both English and Canadians."
And Colonel Christie writes in these words. "I can assure you that your m6moire k la defense du plan d'acte &c. has given the greatest satis- faction to all your friends : and the priests themselves, and every sensible Canadian, allow you the merit you are justly intitled to for that perform- ance." This expression of priests themselves and every sensible Canadian I cannot but look upon as a strong testimony in favour of the plan for settling the laws recommended and defended in that memoire — and therefore I con- clude that the Canadians themselves do not look upon it as a wild or visionary scheme, oppressive to them, but as reasonable and practicable and beneficial to the province, and that they are contented with the degree of French law thereby continued amongst them, which consists of all their laws concerning the tenures of land, or the mutual rights and obligations of Seignior and tenant, and all their laws of conveyancing ; and with respect to marriages already contracted, and the offspring of them, their laws of dower and inheritance ; and with respect to future marriages the English law of dower and tenancy by the courtesy and other English laws relating to the civil effects of marriage, unless they shall provide otherwise by their marriage agreements, which they are impowered to do, and which it will be extremely easy for them to do, it being their general custom to make marriage agree- ments in writing, even where they have no property to settle ; and with respect to inheritance by children born of those future marriages, not the
' Referring to his "Memoirs a la Defense d'un plan d'Acte de Parlement pour I'Etablisse- ment de Loix de la Province de Quebec, Dresse par Mr. Francois Maseres, &c. &c. contre Les Objections de Mr. Francois Joseph Cugnet, &c. &c. A Londres, 1773." This, in turn, refers to Maseres' "Draught of an Act of Parliament for Setthng the Laws of the Province of Quebec," of which he made two draughts. The first was issued in Aug. 1772; and of this he sent a copy to Lord Dartmouth, and also submitted it to the consideration of a number of others, English and French. Among the latter was M. De Lotbiniere who criticised it quite freely. His critic- ism Maseres also sent to Lord Dartmouth, Jan. 7, 1773, with the following remarks — "These remarks I (with the privity and approbation of Mr. Thurlow, the Attorney-General,) desired Mr. de Lotbiniere to reduce to writing, though I knew they would principally be censures upon the things I had proposed. But I wished that both sides of the question might be known to his Majesty's Ministers, that they might be the better able to resolve ultimately upon what was just and reasonable." M 384, p. 36. On March 29th, 1773 he sent a new draught of the act to Lord Dartmouth with the accompanying letter: — "Mr. Maseres presents his respects to Lord Dartmouth, and desires his Lordship's acceptance of the copy herewith sent of a ne%v draught of an act of Parliament for settling the laws of the province of Quebec, which he has prepared in consequence of some remarks made on the former draught by a Canadian gentleman of abilities, who has complained that some things in the former draught are asserted and proposed without sufficient grounds and reasons. To obviate this objection, the grounds and reasons of the prin- cipal things contained in this new draught are set forth at great length. The provisions them- selves are much the same as in the former draughts, which had the honour of being approved by Sir Eardly Wilmot." March 29, 1773. M 384, p. 59. Sir John Eardley Wilraot, after filling several important legal offices, had just resigned from the position of Chief Justice of the Court of Common Pleas. The chief points dealt with by Maseres in his "Draught of an Act" &c. are given in this letter to the Lord Chancellor.
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English law of inheritance, but a certain intermediate law of inheritance, less different than the English from their own former law of inheritance, and parti- cularly suited to that province and fitted to preserve in its original state that wise distribution of the lands in Canada which most people have thought worthy of Admiration, and to prevent the great inconveniences arising from the indefinite subdivision of small portions of land, which has long been a subject of complaint amongst them, and which the King of France endea- voured to remedy by another method so long ago as the year 1745.* And this new law of inheritance is also left subject to be contrould by the Canadians by their last wills or marriage-settlements, or other deeds in their life time. The rest of the plan establishes the English laws of the Admiralty, in order to preserve an uniformity on that subject between the Port of Quebeck and the other ports in America, and the English criminal law, which has been followed now for ten years with the general approbation of the Canadians, and the English law of Habeas Corpus in its most bene- ficial extent, which, I presume, cannot be disagreeable to any people. I hope your Lordship will excuse the trouble I have presumed to give you in stating these reasons in defence of a plan which I had bestowed much time and pains in preparing, and which appears to have been well received and approved by the Canadians themselves, who were the persons most likely to complain of it.
I remain your Lordship's most obedient and humble Servant.
FRANCIS MASERES. Addressed : — To
The Right Honb'" Lord Apslie,
Lord High Chancellor of Great Britain.
MEMORANDA AND DRAUGHTS OF BILLS RELATING TO THE SUBJECT OF THE QUEBEC ACT.^
MEMORANDUM ON GOVERNMENT OF QUEBEC'
A MEMORANDUM of things necessary for establishing Laws & Government in the Province of Quebec, either by Act of Parliament, Order of the King in Council or by the proposed Council at Quebec. First, To get rid of the Proclamation of 1763 with the Commissions & Ordinances depending thereon and to restore the old Law and Consti- tution.
' See note. p. 345.
'The following memoranda, suggestions, and draughts of bills relating to the Quebec Act have been found among the papers of Lord Dartmouth, under whom, as Colonial Secretary, the Quebec Bill took shape, and by whom it was finally introduced in the House of Lords on May 2nd, 1774. Most of these are without date, address, or signature, to indicate when, for whom, or by whom they were prepared, nor are they arranged in chronological order. However, by internal evidence, by comparisons between them, and with other documents, and with the aid of a few notes which passed between the parties chiefly concerned in framing the measure, it has been possible to identify most of them and trace the normal order of their development.
•Canadian Archives, M 385, p. 326. This memorandum would appear to have been the outcome of one or more of the conferences of an inner circle of the Ministry, with special advisers Buch as Carleton, in dealing with American policy. The features suggested are not in accordance
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2d 'y To accommodate the Duties & Taxes paid at the time of the Con- quest to the change of Dominion.
3diy To constitute a Governor and Council at Quebec with Power to make Laws and Ordinances under such restrictions as shall be thought necessary.
4th ly To erect proper Courts of Judicature.
The nearer such Courts are to the Old ones in Form, the more agreeable they will be to the Inhabitants and more likely to have their Effect.
5. To make an Alteration in the mode of trying Capital Offences by allowing the Party the Benefit of being tried by Juries according to the Law of England so as no Judgement shall, after the Verdict given, be arrested upon any Objection of Informality.
5th ly Yq abolish the use of the Torture & the Punishment of breaking upon the Wheel.
7th ly Yq allow the Inhabitants the Privilege of the Common Law Writ of Habeas Corpus.
8"'''' To provide that all Incumbents be nominated by the Governor in Writing under his Hand and Seal, unless the Right of Patronage be in any private Person And that all Incumbents be irremoveable except for Misdemeanor to be tried by the Governor and Council.
9th To give all Ecclesiastical Jurisdiction in regard to Marriages, the Probate of Wills, granting Letters of Administation and other Civil Rights, except only in the Case of Tythes to the Courts of Law, and all Questions concerning Tythes to be determined by the Governor & Council.
10"' Every Protestant Parishioner to pay his Tythes to the King's Officer towards providing a Maintenance for the Protestant Clergy.
with any one of the Reports on the subject which had been made to the Government. Not- withstanding the numerous declarations, during the previous seven years, that the system of law and government in Quebec was on the point of being settled, the members of the Govern- ment chiefly responsible for the policy of the Quebec Act had not apparently given the matter very full consideration before the latter part of 1773, as may be gathered from the following statements. On Aug. 4th 1773, the Lord Chancellor sent the following note to Dartmouth, "The Chancellor's Complime" to L'' Dartmouth, takes the liberty to send him some Papers relative to Canada, which together with the Reports of the Kings Advocate, the Attorney Gen' & the Sollicitor Gen' will, he believes, enable his Lordship to form a plan of Government for that Province, fit to be laid before Parliament; & the Chancellor is happy in having received assur- ance from his Lordship that He means to undertake it." M 384, p. 178. On Aug 26th, Maseres writing to Dartmouth, says: "Mr. Maseres begs leave to acquaint his Lordship that on Tuesday se'ennight (which he apprehends to be since his Lordship left town,) he had the honour of waiting on Lord North by appointment at Bushey Park, to confer with him on the affairs of Quebec; and that Lord North seemed fully determined to do something towards the settlement of that Province in the next session of parliament, and particularly with respect to the establishment of a revenue and a legislature. His Lordship was clearly of opinion that this ought to be by a legislative council, and not an assembly; and he liked very well the proposal (contained in Mr. Maseres's draught of an act of parliament for establishing such a council,) that they should not be invested with the power of taxation, but only that of legislation, and that the necessary taxes should be laid by the Parliament of Great Britain.
"Lord Mansfield has also very lately declared an intention of reading over all the papers relating to the province of Quebec, and using his endeavours towards procuring a Settlement of it. And, about two months ago. Lord Chancellor made a similar declaration. And the leisure of this season of retirement seems to be favourable to this good design of their Lordships to give this subject a thorough consideration. If therefore. Lord Dartmouth should bring on the de- termination of this business in the privy council in the course of this vacation, it seems likely that he would meet with a great concurrence and support from his Majesty's other servants and counsellors, and that the whole settlement of that province might be prepared and digested in the manner necessary for the consideration of parliament by the beginning of next Session." M 384, p. 194.
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FIRST DRAUGHT OF QUEBEC BILL.i
An act for granting for a limited time, therein ment^ Powers of Legislation to the Governor & Council of His Majesty's Province of Quebec for the time being — •
Whereas His Majesty was graciously pleased, by a Royal Proclam- ation bearing Date at St. James's the T"" Day of Oct' in the third year of His Majesty's Reign, to publish & declare, that certain Lands & Countries in America, therein mentioned & described, had been erected into a Pro- vince by the name of the Province of Quebec, & that the Gov' thereof was expressly empowered & directed, by Commission under the Great Seal, that so soon as the State & Circumstances of the said Province would admit thereof, he should, with the Advice & Consent of His Majesty's Council for the said Province, summon & call a General Assembly within the said Province in such manner & form as is used & directed in those Colonies & Provinces in America, which are under His Majesty's immediate Government, & that power had been also given to the said Governor with the consent of the Council & of the Representatives of the People so to be summoned & elected as aforesaid, to make constitute & ordain Laws, Statutes & Ordinances, for the public peace Welfare &good Government of the said Province & of the People & Inhabitants thereof. And Whereas the State & Condition of the said Province of Quebec has not hitherto been, is not now, nor is likely for some time to be such as to admit of a Lower House of Assembly or House of Representatives being convened, conformable to His Majesty's gracious Intentions declared in His Commission under the Great Seal & promulgated in the said Proclamation, by means whereof His Majesty's Subjects in the said Province are & must be exposed to great Inconveniences, the Welfare & Improvement of it obstructed, & a heavy burthen brought upon this Kingdom. In order therefore that these Wants & Defects may be remedied, & the Good Order and Welfare of the said Province provided for. Be it enacted by the King's most excellent Majesty, by and with the Advice and Consent of the Lords Spiritual & Temporal and Commons in this present Parliament assembled & by the Authority of the same that from & after the Day of it shall and may be lawful for the
Governor or Commander in Chief of the said Province of Quebec, for the time being, by and with the Advice and Consent of the Council of the said Province for the time being, or the Majority thereof to make constitute & ordain Laws, Statutes and Ordinances, for the public peace, Welfare & good Governm' of the said Province, and of the p)eople & Inhabitants thereof, in all cases whatsoever. Provided always & be it enacted that the said Council shall consist of not more than 21 nor less than 12 members, &
' Canadian Archives, Dartmouth Papers, M 383, p. 51. This draught is evidently the worlc of Sol. Gen. Wedderburn whose ideas, chiefly, it expresses, as may be gathered from comparing it with his Report and especially with the "Abstract of such of the Regulations proposed in Mr. Solicitor Gen'» Report as it may be expedient to establish by Act of Parliament." See p. 434. This draught however was completely changed, both in form and content, under the direction of Lord Dartmouth, who in turn was influenced by different forces, personal and jxjlitical.
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that all Laws Statutes & Ordinances to be made under the Authority hereof, shall be so made & passed in ye s"* Council when not less than 13 of the said Members shall be present. Provided nevertheless, and it is hereby enacted & ordained, by the Authority aforesaid, that no Law, Statute or Ordinance so to be framed & enacted as aforesaid by the said Governor or Commander in Chief & Council as aforesaid, by which the Life Limb or property of the Subject may be affected or any Duties or Taxes shall be imposed for the public use of the said Province, shall be of any force, validity or effect until approved by His Majesty, & such appro- bation signified by Order of His Majesty in Council. And be it further enacted by the Authority aforesaid, that Copies of all Laws, Statutes & Ordinances so to be framed & enacted by the said Governor Commander in Chief and Council as aforesaid shall, within three Months from the passing thereof (or sooner if opportunity offer) be transmitted duly authenticated under the Seal of the said Province by the said Governor or Command' in Chief for the time being to the Commissioners for Trade & Plantations, together with Accounts duly attested of all public Monies levied & expended in virtue of any Law, Statute or Ordinance as aforesaid, in which said Account shall be specified the particular Service to which the said Monies have been issued & applied. And be it further enacted by the Authority aforesaid, that the said Laws, Statutes & Ordinances as also the Accounts abovementioned of all public Monies levied and expended within the said Province of Quebec, shall be laid by the said Commissioners for Trade and Plantations before both Houses of Parliament, as soon as may be after the same shall have been received by them from the said Province as aforesaid. And be it further enacted by the Authority aforesaid that this Act shall continue & be in force for the space of fourteen Years, and from thence to the End of the next Session of Parliament unless His Majesty, His Heirs & Successors shall think fit before the expiration of that Term to direct a Lower House of Assembly or House of Representatives to be convened within the said Province of Quebec in which case the Legislative powers hereby conferred upon the Governor or Commander in Chief & Council, for the time being, shall cease & determine & be of none effect, any thing herein contained to the contrary thereof notwithstanding. Endorsed: — Dra' of Bill — Quebec
SECOND DRAUGHT OF.THE QUEBEC BILL.*
An Act to remove the Doubts which have arisen relative to the Laws and Government of the Province of Quebec since His Majesty's Royal Proclamation of the Seventh day of October 1763.
' Canadian Archivea, Dartmouth Papers, M 385, p. 300. This is the first draught of the Quebec Bill in which the wording of the Quebec Act as it finally passed begins to appear. That it was drawn by Wedderburn under instructions from Dartmouth, will appear from the follow- ing letter from Wedderburn to Dartmouth, dated March 2nd, 1774. "My Dear Lord, I have
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Whereas by the Conquest of Canada and the Cession thereof by the Definitive Treaty of Peace concluded at Paris on the Tenth day of February 1763, His Majesty became Intitled to the Sovereignty thereof, as a Dominion belonging to the Crown of Great Britain, and might alter the Laws and Con- stitution of the said Province in such manner as He should think most agreeable to natural Justice and sound Policy. And Whereas many other Countries and Territories, the greatest part whereof lay waste and uncultivated, were likewise ceded by the said Treaty to His Majesty : — And Whereas His said Majesty by His Royal Proclamation, bearing date the seventh day of October, in the third year of His Reign, Reciting that great part of the said acquisitions had been cast into four distinct and separate Governments, called Quebec, West Florida, East Florida, and Grenada. And that other parts had been annexed to the Governments of Newfoundland, Nova Scotia and Georgia, And further Reciting that it would greatly contribute to the speedy settling of the said new Governments that His Majesty's loving Subjects should be Informed of His Paternal Care for the Security of the Liberty and Property of those, who were and should become Inhabitants thereof. His Majesty thought fit to Publish and Declare, that He had in the Letters Patent under His Majesty's Great Seal of Great Britain, by which the said Governments were constituted, given express Power and direction to his said Governors of the said Colonies respectively that so soon as the state and circumstance of the said Colonies would admit thereof,
attempted to express the alterations you were pleased to tell me were desired to be made in the Bill for Quebeck, But I am very doubtful whether I have succeeded in the Attempt. For I must confess my objections to the alterations and to some parts of the Bill, are much strengthened by the Consideration I have lately given to the subject. " "It seems very strange to have a Criminal Code in which for Treason the Law of England
is followed; for other capital oiTences the Law of France (which avoids all definition) is to define the Crime, and the Law of England to prescribe the punishment and the mode of Trial; In offences not capital, the Crime, its Trial and punishment are all referred to the Law of France which lets in all their arbitrary punishments of cutting out Tongues, slitting noses &.". I have had much conversation with Mr. Hey who says that the Idea of reviving any part of the French Criminal Law besides the difficulty of uniting It to the Law of England would be as little agreeable to the Canadians as it would to the English Inhabitants. That the former are in general very sensible of the advantages they derive from our Criminal Justice and make very good jurymen. He thinks there would be no objection to adopting the whole criminal Law of England because none has hitherto been discovered, but It would be still better to subject It to the revision of the Council to be established who might by degrees reject all the parts that are unfit for the constitution of Canada. I have with His assistance prepared a clause upon this Idea which is submitted to your Lordship." M 384, p. 251. (The remaining paragraphs of the letter are given as notes on the clauses of the draught to which they refer.) The first portion of the letter deals with the clauses of the second draught relating to the criminal law. The reference to "Clause A" in the margin of the criminal law clause of the draught, evidently designates the clause here referred to as prepared by Wedderbum and Hey, and which was substituted in the third draught for the clause to which Wedderbum objects. The retention of the French criminal law with perhaps such slight modifications as indicated in the second draught, was evidently the desire of Carleton, because the desire of the French Canadian Noblesse. The following year, on his return to Canada, he much regretted that he had ever favoured the concession to Canada of the Habeas Corpus and the English criminal law. (See Carleton to Dartmouth, June 7th, 1775, given below.) That it was the desire of representative members of the French Canadian Noblesse to have the French criminal, as well as civil law restored in full, is evident from the review of the Quebec Bill submitted by M. Lotbiniere. See p. 561.
I If we compare this draught of the Quebec Bill with the various Reports of the Board of Trade, the Atty. Gen. of Quebec and the Sol., Atty., and Advt. Gen. of England, we find that, as declared by Knox, the Under Secretary of State for the Colonies, and a stout advocate of the Ministerial policy towards America, "thus it fell out, that after all the pains which had been taken to procure the best and ablest advice, the Ministers were in a great measure left to act upon their own judgment." See Knox's "The Justice and Policy of the late Act" &c., 1774, p. 9. This will partly account for the great changes in the measure between this draught and the form in which it was pacsed. I
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They should, with the advice and consent of the Members of His Majesty's Council, Summon and call General Assemblies within the said Govern- ments respectively in such manner and form as was used and directed in those Colonies and Provinces in America, which were under His Majesty's immediate Government ; with Power to make constitute and ordain Laws, Statutes and Ordinances for the Public peace. Welfare and good Government of His Majesty's said Colonies and of the People and Inhabitants thereof ; as near as might be, agreable to the Laws of England and under such regulations and restrictions, as were used in other Colonies, and that in the mean time and until such Assemblies could be called as aforesaid, all Persons Inhabiting in or resorting to His Majesty's said Colonies, might confide in his Royal Protection for enjoying the benefit of the Laws of His Majesty's Realm of England. And that for such Purpose, His Majesty had given power under His Great Seal, to the Governors of His said Colonies respectively, to Create and Constitute (with the advice of His Majesty's said Councils respectively) Courts of Judicature and Publick Justice, within His Majesty's said Colonies, for the Hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity ; and, as near as might be agreable to the Laws of England ; with Liberty to all Persons, who might think themselves aggrieved by the Sentence of such Courts, in all Civil Cases, to appeal under the usual Limitations and res- trictions to His Majesty in His Privy Council.
And Whereas such commissions were accordingly passed under the Great Seal of Great Britain to the respective Governors of the said Provinces and amongst the rest to the Governor of Quebec, requiring among other things, that each member of the Assemblies so to be called, should take the Oaths commonly called the Oaths of Allegiance Supremacy and Abjuration ; and to make and subscribe the Declaration against Transubstantiation, mention'd in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second Intitled "An Act, for preventing Dangers which may happen by Popish Recusants."
And whereas by an Ordinance made and Published by the Governor and Council of Quebec, bearing date the seventeenth day of September in the Year of Our Lord One thousand seven Hundred and sixty four, several Courts of Criminal and Civil Jurisdiction were created, with Power to proceed according to the Laws of England, and agreably to Equity, having regard nevertheless to the Laws of England as far as the Circumstances and then present situation of things would admit.
And whereas several Commissions were, in pursuance thereof given and granted under the Great Seal of the said Province of Quebec to Chief Justices and other Judges and Justices, to hold the said Courts and exer- cise authority by virtue of the same.
And whereas great Doubts have arisen whether the whole Law of Canada was subverted and the Law of England introduced by the said Proclamation to take place as the Constitution of that Country till an As-
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SESSIONAL PAPER No. 18
sembly should be called And also whether the Legislative Ordinances issued by the Governor and Council under the Kings Authority since the Pro- clamation were valid or void and by reason of such Doubts great confusion and uncertainty hath arisen and distracted the Minds of the People of the said Province.
And Whereas the Plan of Civil Government proposed by such Con- struction of the Proclamation and which hath been attempted to be carried into Execution in manner above mentioned is inapplicable to the Condition and Circumstances of the Province of Quebec which did contain at the Conquest thereof above One Hundred Thousand Inhabitants professing the Roman Catholick Religion and enjoying an established form of Con- stitution and a System of Civil and Criminal Law by which their Persons and Property had been for ages protected governed and ordered.
May it therefore please your most excellent Majesty, That it may be Enacted ; And it is hereby Enacted by His Most Excellent Majesty, by and with the advice and Consent of the Lords Spiritual and Temporal and Commons in Parliament assembled, and by the Authority of the Same," " ' That the said Proclamation so far as the same relates to the Civil Government & Administration of Justice of and in the said Province of Quebec and the Commissions have been granted to the Governors of the said Province of Quebec for the time being, and the said Ordinance ^ made by the said Governor and Council of Quebec bearing date the Seventeenth day of September in the year of our Lord one Thousand, seven Hundred and sixty four; and all other Ordinances relatfve to the Civil Government and Adminis- tration of Justice in the said Province and all Commissions to Judges and other officers, in pursuance thereof, be, and the same are hereby Revoked, Annulled and made void from and after the day of next.
And be it further Enacted by the Authority aforesaid. That His Majesty's Subjects of and in the said Province of Quebec, as the same is described in, and by the said Proclamation and Commissions And also of all the Territories part of the Province of Canada at the time of the Conquest thereof which His Majesty, His Heirs or Successors may think . proper to annex to the said Government of Quebec may have hold and enjoy their Property, Laws,. Customs, and Usages, in as large, ample and beneficial manner, as if the said Proclamation, Commissions Ordinances and other Acts & Instruments had not been made, and as may consist with their al- legiance to His Majesty and subjection to the Crown and Parliament of Great Britain.'
' These marks have no reference connected with them either in the margin or at the foot of the draught; but they evidently refer to an additional clause or clauses to be introduced by which the limits of the Province would be greatly extended. The proposal for an extension of the limits, which was largely adopted in the third draught of the bill, is given in the paper which follows this draught. Sec p. 541.
» This figure, which is in the original, seems to have no special significance, as the changes here introduced are but slight; it probably refers to some remark on the ordinance.
' Wedderburn, in his letter to Dartmouth, cited in note 1, p. 536, comments on this as follows: — "Mr. Hey mentioned to me two objections to the former part of the Bill which I think are material. The Proclamation, Commissions &'" are annuled and by the next Clause It is
540 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
And Whereas the Abolition of the use of the torture and of those severe yijg, punishments to which the Inhabitants of Canada were formerly Class A, exposed and the Introduction of a more mild and certain Law in criminal cases would be highly beneficial to them and they are truly sensible of the same, Be it therefore Enacted by the Authority aforesaid that no Crimes or Offences shall be High Treason or Misprision of Treason in the Province of Quebec and the dependencys thereof, But such as are high Treason or Misprision of High Treason by the Laws and Statutes now in force in Great Britain ; and that the said Laws and Statutes shall be used and observed in Cases of High Treason and Misprision of High Treason in all respects whatsoever. And be it further Enacted That in regard to all other offences for which by the Laws in force in Canada and on the said IS"* September 1759 the Offender was liable to suffer the pains of Death the party accused shall be tried and acquitted or condemned and punished according to the Laws of England. Provided always that where by the Laws of England the benefit of Clergy is allowed upon any Conviction the Offender in such case shall only be fined and Imprisoned or bound to his good Behaviour, And Provided also That no Judgement shall after the Ver- dict given, be arrested upon any objection of Informality in the Indictment or Discontinuance in the Record.
And whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the occasions of which cannot now be foreseen nor without much Delay and Inconvenience provided for, without entrusting that Authority for a certain time and under proper Restrictions to Persons Resident there.
And Whereas it is at present inexpedient to call an Assembly Be it therefore Enacted by the Authority aforesaid That it shall and may be lawful for His Majesty His Heirs and Successors by his or their Letters Patent^ under the Great Seal of Great Britain to constitute and appoint a Council for the affairs of the Province of Quebeck and its dependencys to
declared 'that His Majesty's subjects in Canada shall enjoy their Laws and Customs as benefic- ially as if the Proclamation had not been made and as is consistent with their Allegiance and Subjection to the Crown and Parliament of Great Britain.' These words he thinks will much perplex the Canadian. Is his Religion lawful or tolerated, or unlawful. Are the rights of Succession, of Marriage, of Contract, that have accrued since 1764 and been enjoyed according to the Law of England rescinded, for the act is in some measure declaritory as to the sense of the Proclamation. What Is to be the condition of the English Canadian ? Is he or is he not in- cluded in the description of His Majesty's Subjects of and in Canada ? He thinks it would be much better to express clearly what rights shall be restored to the Canadian and that He would be better satisfied with a less extensive and a more certain Provision for hira." M 384. p. 253.
' This refers to the new clause drawn by Wedderburn and Hey, as indicated in note 1, p. 536, which was substituted for this section in the third draught, and which provided for the complete retention of the criminal law of England. See third draught, p. 546.
'Concerning this section, Wedderburn, in his letter to Dartmouth, cited in note 1, p. 536, says: — "The empowering His Majesty to create the Legislative Council by Letters Patent instead of appointing It directly by the" Act of Parliament seems to me an immaterial Alteration, supposing that it is necessary (as I conceive it is) to describe in the Act the Powers and Authority of that Council. In either way the Nomination of the Members must be vested in the King and no greater Power in effect is acquired by the first mode than by the latter tho' in appearance the Power of erecting a Legislative Council seems to import more than the power of naming the Members and will from the appearance excite more opposition.
"The latter Clause I take to be unnecessary as I do not see how the Act restrains the King from appointing Judges and erecting Courts of Justice, I have therefore drawn It as a saving and not as an enacting Clause." M 384, p. 252.
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SESSIONAL PAPER No. 18
consist of such Persons resident there not exceeding ( ) nor less than ( ) as His Majesty His Heirs and Successors shall be pleased to appoint and of such other Persons resident there as upon the death removal, or absence, of any of the Members thereof, shall be nominated by His Heirs or Successors under His or their Sign Manual to supply the vacancy ; Which Council so appointed and nominated or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Govern- ment of the said Province in all cases whatsoever, with the consent of His Majesty's Governor or Commander in Chief or in his Absence of the Lieut- enant Governor for the time being.
Provided always That every Ordinance so to be made shall within ( ) months be transmitted by the Governor Commander in Chief or in his absence by the Lieutenant Governor and laid before His Majesty for his royal approbation and if His Majesty shall think fit to disallow thereof The same shall cease and be void from the Time that His Majesty's Order in Council thereupon shall be promulgated at Quebec And Provided also That no Ordinance touching Religion or by which any Punishment may be Inflicted greater than fine or Imprisonment for Three Months, or by which any Duty, Tax, or Rate may be Levied shall be of any force or effect until the same shall have received His Majesty's Approbation And Provided also That no Ordinance shall be passed at any Meeting of the Council except between the day of and the day of unless upon some urgent occasion, in which Case every Member thereof resident at Quebeck or within
Miles thereof shall be personally summoned by the Governor or in His absence, by the Lieutenant Governor to attend the same.
And be it further Enacted Ac" That nothing herein contained shall extend or be construed to extend to prevent or hinder His Majesty His Heirs and Successors by his or their Letters Patent under the Great Seal of Great Britain from erecting, constituting and appointing such Courts of Criminal, Civil and Ecclesiastical Jurisdiction within and for the said Province of Quebeck and its dependencys and appointing from time to time the Judges and Officers thereof as His Majesty His Heirs and Successors shall think necessary and proper for the circumstances of the said Pro- vince.
Endorsed: — Dra*. of Bill
PROPOSED EXTENSION OF PROVINCIAL LIMITS.'
The Limits of the Government of Quebec as declared in the Proclam- ation of 1763 are as follows, Vizt. "bounded on the Labrador Coast by the River St. John, & from thence by a line drawn from the head of that
' Canadian Archives, Dartmouth Papers, M 385, p. 346. The boundary line as here pro- posed, indicates the limits within which it was desired to confine the English colonies. That it was largely adopted, despite the opposition of some supporters of the Ministry, will be seen from the third draught of the bill which follows. No clue is given as to the author of this proposal, but, as may be observed from a letter of Dartmouth to Cramahe of Dec. 1st, 1773, (See p. 485) this extension of the limits of the Province, like the Establishment of the Roman Catholic reli-
542 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
River thro' the Lake of St. John to the South end of the Lake Nipissing; from whence the said Line crossing the River St. Lawrence and the Lake Champlain in 45 Degrees of No Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea ; and also along the North Coast of the Bay des Chaleurs, and the Coast of the Gulph of St. Lawrence to Cape Rosiers, and from thence crossing the Mouth of the River St. Lawrence by the West end of the Island of Anticosti terminates at the afore- said River of St. John."
The Kings Servants were induced to confine the Government of Quebec within the above Limits, from an apprehension that there were no Settlements of Canadian Subjects, or lawful possessions beyond those Limits, and from a hope of being able to carry into execution a plan that was then under Consideration for putting the whole of the Interior Country to the Westward of our Colonies under one general control & Regulation by Act of Parliament.* It was also conceived that there was no claim of Possession on the Coast of Labrador to the East of the River St. John, and therefore from an apprehension that a valuable Cod Fishery might be carried on upon that Coast, it was annexed to the Government of Newfoundland.
The plan for the regulation of the Interior Country proved abortive & in consequence thereof an immense tract of very valuable Land within which there are many Possessions and actual Colonies existing under the Faith of the Treaty of Paris has become the Theatre of disorder & Confusion leading to causes that must affect the public Tranquility and weaken the Authority of this Kingdom, whilst those Colonies which exist under the Faith of the Treaty remain either without the protection or the control of Civil Government.^
It has also been discovered that there are a variety of claims to pos- sessions upon the Coast of Labrador between the River St. John and the Straits of Belle Isle, and that by far the greatest part of that Coast is impracticable for a Cod Fishery and can only be used for that species of sedentary Seal Fishery which is in its nature inconsistent with the Regu- lations of the Fishery at Newfoundland.
In order therefore to obviate the dangers and disadvantages arising from the present defective state of the Interior Country. To give force and effect to the Power and Authority of the Crown within it. To give scope to the many Commercial advantages which may be derived from it. To extend the benefits of Civil Government to the Settlements of Canadian
gion, was represented as a direct concession to the Canadian noblesse and clergy in response to their petition. For other features of the policy which harmonize with this, see note 1, p. 543 ¬e 1, p. 552.
' For the actual statement of the reasons for this policy, see the papers relative to the esta- blishment of civil government in Quebec, p. 141 and p. 151.
' This is a matter on which a great variety of evidence is recorded and many different opi- nions expressed. The chief of these references are scattered throughout the letters and reports contained in the State Papers of the Q series, the Home Office Papers, and the Haldimand Papers, some of which are duplicates.
CONSTITUTIONAL DOCUMENTS 543
SESSIONAL PAPER No. 18
Subjects that have been formed in the different parts of it,' and to give Stability & advantage to the Sedentary Fisheries on the North side of the Gulph of St. Lawrence, it is proposed that the
Limits and Boundaries of the Government of Quebec shou'd be altered and enlarg'd in the following manner, that is to say,
That the said Government should be bounded on the side of His Majesty's other Colonies by a Line drawn from the Head of Bay Chaleurs (including the North side of the said Bay and all the Lands between that and the River St. Lawrence) along the High Lands which divide the Rivers which empty themselves into the River St. Lawrence from those which fall into the Atlantick Ocean until the said line reaches lake Champlain in 45 Degrees of No Latitude.
The said line to be continued from thence in a direct course to the first spring or Head of Hudson's River, and from thence in a direct course to the entrance of Lake Ontario from the said River St. Lawrence. That the said Line should pass from thence across the said Lake to the Mouth or entrance of the Strait of Niagara and should pass along the East side of the said Strait until it falls into the Northern Boundary of the Province of Pennsylvania, and from thence it should follow the course of the said Bound- ary line as well on the North as the West, to the Point where it intersects the River Ohio, and so following the course of the said River, from the said Point to its confluence with the River Mississippi. That the said Govern- ment should comprehend all the Coast of Labrador as far East as Esqui- maux River & be bounded on the North by a Line drawn due West from the mouth of the said River to the southern Limits of the Territory granted to the Hudsons Bay Company and to follow the course of the said Limits as far as the River Mississippi, the said River to be the Boundary on the West from the point where it is intersected by the Southern Limits of the Territory granted to the Hudson's Bay Company as aforesaid, as low down as the Mouth of the River Ohio. Endorsed : — Paper relative to the extension of the Limits of Quebec.
THIRD DRAUGHT OF THE QUEBEC BILL.''
An Act for making more effectual Provision for the Government of the Province of Quebec in North America ; and for removing Doubts which have arisen relative to the Laws and Constitution of the said Province since His Majesty's Royal Proclamation of the 7"* of October 1763.
' In addition to the statements made in such letters as that of Dartmouth to Cramah^ of Dec. Ist, 1773, (see p. 485) we find the statement of Wm. Knox the Colonial Under Secretary, after the Quebec Act was passed, that "the whole of the derelict country, is, by the first clause of the Act, put under the jurisdiction of the Government of Quebec, with the avowed purpose of excluding all further settlement therein, and for the establishment of uniform regulations for the Indian trade." "The Justice and Policy of the late Act" &c. p. 20. See also note 1, p. 552.
» Canadian Archivest Dartmouth Papers, M 385, p. 311. The alterations and additions by which the second draught was developed into the third are given in part in the notes on the second draught. Other explanations are furnished in the memorandum which follows this draught of the bill.
544 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
Whereas His Majesty by His Royal Proclamation bearing date the 7*^ day of October in the Third year of His Reign, thought fit to declare the Provisions which had been made in respect to certain Countries, Territories and Islands in America Ceded to His Majesty by the Definitive Treaty of Peace concluded at Paris on the 10"" day of Febry 1763 And Whereas by the Arrangements made by the said Royal Proclamation a very large part of the Territory of Canada, within which there were several Colonies and Settlements of the Subjects of France who claimed to remain therein under the faith of the said Treaty, was left without any Provision being made for the administration of Civil Government therein, and other parts of the said Country where sedentary Fisheries had been established and carried on by the subjects of France, Inhabitants of the said Province of Canada under Grants and Concessions from the Govern* thereof, were annexed to the Gov* of Newfoundland, and thereby subjected to' regulations incon- sistent with the nature of such Fisheries. May it therefore please your most excellent Majesty that it may be enacted ; and it is hereby enacted by The Kings most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parlia- ment assembled, and by the authority of the same That all the said Ter- ritories, Islands and Countries, heretofore part of the Province of Canada in North America, extending Southward to the banks of the River Ohio, Westward to the banks of the Mississippi and northward to the Southern Boundary of the Territory granted to the Merchants Adventurers of Eng- land trading to Hudsons Bay, and which said Territories, Islands and Countries are within the limits of some other British Colony as allowed & confirmed by the Crown, or which have since the 10"' Feby 1763, been made part of the Government of Newfoundland, be, and they are hereby annexed to, and part and parcel of the Province of Quebec as created and established by the said Royal Proclamation of the 7"' of October 1763, for and during His Majesty's Pleasure ; And Whereas the Provisions made by the said Proclamation in respect to the Civil Government of the said Province of Quebec and the Powers & Authorities given tq the Governor & other Civil Officers of the said Province by the Grants and Commissions issued in consequence thereof, have been found upon experience to be inade- quate to the State & Circumstances of the said Province the Inhabitants whereof amounting at the Conquest to above One hundred Thousand Persons professing the Religion of the Church of Rome and enjoying an established form of Constitution & system of Laws by which their Persons and Property had been protected, governed and ordered for a long series of years from the first Establishment of the said Province of Canada, Be it therefore further enacted by the Authority aforesaid. That the said Proclamation so far as the same relates to the Civil Government & Adminis- tration of Justice of & in the said Province of Quebec, & the Commission under the Authority whereof the Government of the said Province is at present administered & all & every the Ordinance & Ordinances made by
CONSTITUTIONAL DOCUMENTS SESSIONAL PAPER No. 18
545
the Governor & Council of Quebec for the time being relative to the Civil Government & Administration of Justice in the said Province and all Commissions to Judges & other Officers thereof, be, and the same are hereby revoked, annulled & made void from and after the Day of
next.
And be it further enacted by the authority aforesaid that His Majesty's subjects professing the Religion of the Church of Rome of & in the said Province of Quebec as the same is described in & by the said Proclamation and Commissions, and also of all the Territories part of the Province of Canada at the time of the Conquest thereof, which are hereby annexed during His Majesty's Pleasure to the said Government of Quebec may have, hold & enjoy the free Exercise of the Religion of the Church of Rome, so far as the same is not inconsistent with the Kings Suprem- acy as established by act of Parliament and that the Clergy & other Religious of the said Church may hold receive & enjoy their accustomed Dues & Rights with respect to such Persons only as shall possess the said Religion. Provided nevertheless that nothing herein contained shall extend or be construed to extend to the Disabling His Majesty's His Heirs or Successors from the making such Provision for the Maintenance & Support of a Protestant Clergy within the said Province as He or they shall from time to time think necessary & expedient.
And be it further enacted by the Authority aforesaid that all His lajesty's Canadian Subjects within the Province of Quebec, & the Ter- itories thereunto belonging, may also hold, and enjoy their Property & Possessions together with all Customs & Usages relative thereto, and all other their Civil Rights in as large ample & beneficial manner as if the said Proclamation, Commissions, Ordinances & other Acts & Instruments Ihad not been made, and as may consist with their Allegiance to His Majesty |& Subjection to the Crown and Parliament of Great Britain.
For which purpose be it further enacted by the Authority aforesaid
bat, in all matters of controversy relative to the Property & Civil Rights
M any of His Majesty's Subjects whether Canadian or English, Resort shall
had to the Laws of Canada and not the Laws of England for the Decision
!>f the same, and all Causes that shall hereafter be instituted in any of the
Tourts of Justice to be appointed within & for the said Province by His
lajesty. His Heirs & Successors, shall, with respect to such Property &
lights be determined by the Judges of the same agreeably to the said
' This clause which is written in the margin of this draught of the bill appears in the body the fourth draught. See p. 572.
546 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Laws & Customs of Canada & the several Ordinances that shall from time to time be passed in the said Province by the Gov' Lieut-Gov' or Com- mander in Chief by & with the advice & consent of the Legislative Council of the same to be appointed in manner herein before mentioned & by no other Laws Customs or Usages whatsoever.
Provided always that it shall & may be lawful to & for every Person in the said Province, whether Canadian or English, that is Owner of any Goods or Credits in the same, and that has a right to alienate the said Lands, Goods or Credits in his Life time by Deed of Sale, Gift or otherwise to devise or bequeath the same at his or her death by his or her last Will & Testament to such Persons, & in such manner as he or she shall think fit, any Law, Usage or Custom ; heretofore ; or now prevailing in the Province, to the contrary hereof in any wise notwithstanding. And provided also that nothing in this Act shall extend or be construed to extend to any Lands that have been granted by His Majesty or shall hereafter be granted by His Majesty His Heirs & Successors to be holden in free & common soccage' & that it shall & may be lawful to & for any of His Majesty's Subjects at his, her or their respective Ages of 25 years to change the Tenure of Estate held of His Majesty, His Heirs or Successors into free & common soccage by any deed executed in the presence of two Witnesses & presented to the Chief Justice of the Province who shall summon a Jury to assess the sum to be paid to His Majesty in lieu of the Profits of the Seigniory & upon Payment thereof shall direct the Deed to be enrolled & the same being enrolled the Land shall from thenceforth be held as Lands in free & common soccage are held by the Laws of England.
And Whereas the Certainty & Lenity of the Criminal Law of England & the Benefits and Advantages resulting from the use of it have been sensibly felt by the Inhabitants from an Experience of more than nine years, during which it has been uniformly administered. Be it therefore enacted by the Authority aforesaid. That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec and its Dependencies as well in the description & quality of the Offence, as in the method of Prosecution & Trial, and the Punishments & Forfeitures thereby inflicted to the exclusion of every other rule of Criminal Law, or mode of Proceeding thereon which did, or might prevail in the said Province before the year of Our Lord 1764. Anything in this Act contrary thereof in any respect notwithstanding : Subject nevertheless to such Alterations & Amendments as the Gov' Lieut-Gov"' or Commander in chief of the s** Province, by & with the advice & Consent of the Legislative Council of the said Province hereafter to be appointed, shall from time to time cause to be made therein in manner herein after directed.
And Whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the occa-
' The remainder of this clause is left out in the 4th draught, in accordance with the criticisms of Hillsborough and Carleton, as accepted by Dartmouth. See p. 573 & note 1. p. 554.
I
CONSTITUTIONAL DOCUMENTS .S47
SESSIONAL PAPER No. 18
sions of which cannot now be foreseen, nor without much Delay & Inconveni- ence be provided for without intrusting that Authority for a certain time & under proper Restrictions to Persons resident there
And whereas it is at present inexpedient to call an Assembly; Be it therefore ehacted by the Authority aforesaid that it shall & may be lawful for His Majesty, His Heirs and Successors by Warrant under His or Their Signet, or Sign Manual and with the Advice of the Privy Council to con- stitute and appoint a Council for the Affairs of the Province of Quebec & its Dependencies to consist of such Persons resident there, not exceeding (23) nor less than (17) as His Majesty, His Heirs and Successors shall be pleased to appoint, and upon the Death, Removal, or Absence of any of the Members of the said Council, in like manner to constitute & appoint such and so many other Person, or Persons as shall be necessary to supply the Vacancy, or Vacancies ; which Council so appointed & nominated, or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Government of the said Province, with the Consent of His Majesty's Governor, or in his absence of the Lieutenant Governor or Commander in Chief for the time being.
Provided always That every Ordinance so to be made shall within
Months be transmitted by the Governor or in his Absence by the Lieutenant
Governor or Commander in Chief for the time being, and laid before His
Majesty for his Royal Approbation ; And if His Majesty shall think fit to
disallow thereof, the same shall cease & be void from the time that His
Majesty's Order in Council thereupon shall be promulgated at Quebec :
[And provided also. That no Ordinance touching Religion, or by which any
punishment may be inflicted greater than fine, or imprisonment for three
' Months shall be of any force or effect until the same shall have received
His Majesty's Approbation : And provided also that no Ordinance shall be
tpassed at any Meeting of the Council except between the day
lof and the day of unless upon some urgent
Joccasion, in which Case, every Member thereof resident at Quebec, or within
Miles thereof shall be personally summoned by the Governor, or
fin his absence by the Lieutenant Governor, or Commander in Chief for the
j time being to attend the same.
And be it further enacted Ac' That nothing herein contained shall ^extend or be construed to extend to prevent or hinder His Majesty His leirs or Successors by His or their Letters Patent under the Great Seal of [Great Britain from erecting, constituting & appointing such Courts of [Criminal, Civil and Ecclesiastical Jurisdiction within and for the said [Province and its Dependencies, and appointing from time to time the [Judges & Officers thereof as His Majesty, His Heirs and Successors shall j think necessary & proper for the Circumstances of the said Province. LEndorsed : — Dra' of Bill.
548 CANADIAN ARCHIVES
6-7 EDWARD VII., 1907 NOTES ON THIRD DRAUGHT OF QUEBEC BILL.'
The first preamble, and enacting clause of the present Bill are entirely new, and are introduced in order to annex to Quebec during The King's Pleasure the Territories therein described, which are now, for the greatest part, without either the protection or comptrol of any Government whatever and for the rest subjected to the incompetent and improper Jurisdiction of Newfoundland. This possibly might have in general been done by the sole authority of the Crown, but it is conceived that it would have been liable to doubts that cannot exist in the present mode which is conceived to be more effectual, & of more proper notoriety.
The whole preamble of the former Bill, reciting and condemning the Proclamation and other consequential Acts of Government is omitted, and in lieu of it a very short preamble introduced stating the general inadequacy of those Regulations to the present State and Circumstances of the Colony.
The first enacting Clause of the present Bill does not materially differ from the first enacting Clause of the other, the only difference is that it does not revoke any other Commission to the Governor but the one now existing.
The Second and Third Clauses of the present Bill are proposed by M' Hey^ in the place of the Second Clause in the old Bill that restores to the Canadians generally their Property, Laws, Customs and Usages, including as it is conceived under the word Laws not only all Civil Rights, but also all Ecclesiastical Laws and Authorities incident thereto, which general Pro- vision is restrained by the present Act to the free Exercise of the Romish Religion, as far as is consistent with the King's Supremacy, exempting Protestants from Payment of Tythes' and making the Laws and Customs of Canada in Civil Cases the Rule for Judgement in the Courts, under certain Limitations & Exceptions in respect to disposition of Property by will, and a mode of changing the Tenure of Lands held by Seigniory into Com- mon Soccage.
The fourth Clause of the present Bill introduces the whole Criminal Laws of England which by the Corresponding Clause of the old Bill was only in part introduced & under Limitations.
The rest of the Clauses in both Bills respecting the Legislative Council are very much the same ; there is no material difference except by the new
• Canadian Archives, Dartmouth Papers, M 385, p. 337. These notes are evidently by Sol. Gen. Wedderburn, as may be gathered from his criticisms on the second draught of the bill addressed to Lord Dartmouth; see note 1 p. 536. There was undoubtedly an intermediate draught of at least part of the bill, between the second and third draughts as here given, and it is to the intermediate form of certain clauses that some of these notes apply. It is evident, for instance, that the clause with reference to the Roman Catholic religion has been altered in the third draught from the form indicated in these notes; and we find that the alterations were due to the criticisms of Lord Mansfield upon the form in which the clause was left by Wedderburn and Hey. See below, note 1, p. 551.
» See note 3, p. 539.
' This is the portion to which, as left by Wedderburn and Hey, Lord Mansfield takes objec- tion, as stated in the document which follows this, and which in consequence of his criticisms was altered in accordance with his suggestions, and appears in that altered form in the third draught.
CONSTITUTIONAL DOCUMENTS 549
SESSIONAL PAPER No. 18
Bill their appointment is to be by sign Manual in like manner as Councillors in other Colonies are appointed — by the former Bill they were to be appoint- ed under the Great Seal of Great Britain, which besides deviating from the rule in other Cases is liable to other obvious Objections. Endorsed : — Notes of Alterations in the Quebec Bill.
THE CLAUSE CONCERNING RELIGION IN THE THIRD
DRAUGHT.!
The Proviso in favour of the Protestant Subjects of Quebec,' if it is intended to operate only as a saving to the clause which gives to the Cana- dians the free exercise of their Religion appears to me to be unnecessary — from a Church merely tolerated, as the Romish Church is by this Act, There can be little occasion to resort to any special protection, immunity or Privilege in behalf of any body, for existing only by Permission of the state, it can claim nothing, enforce nothing, exercise no controul or Authority over its own members but by consent, & it should seem useless to reserve to others by express Provision of Law, what cannot be taken from them but
I by their own choice & approbation. L In this light therefore the clause seems to be unnecessary. I But if it is intended to operate as a saving to the clause immediately preceding which gives the Canadians the Enjoyment of their ancient civil ghts customs and Usages, I apprehend it will be found an Exception as ge as the Rule ; and leave it still in doubt, whether in a matter of civil ight the Canadian or English Law where they differ together with the rm & mode of Proceeding, shall have the Preference. A Case which me before me in Judgement, & which is very likely to happen again will issibly put the objection I mean to state in a clear light before your rdship. By the custom of Paris which your Lordship, I presume, means to restore, the Mason Carpenter & other Artificers employed, in building a House for another. Have, by an implied Contract between them & the owner for whom they build, of which they need only make a minute in a otary's Office a mortgage upon the house which no incumbrance whatever ior or subsequent can Affect, but they may follow their demand thro an iundred mesne assignments into the hands of the present Possessor, & sist upon its being sold to pay them upon failure of the Person with whom ey first contracted to build, should those Canadian Artificers bring an tion in their usual form (wholly different from our own) against an English- an who had purchased such a house for a Valuable consideration, might
' Canadian Archives, Dartmouth Papers, M .385. p. 340. It appears very probable, from the sference in the second paragraph, as well as from the whole tone and purpose of the proposals, at these criticisms were made by Lord Mansfield, and this is confirmed by his letter to Lord artmouth; see note 1, p. 551.
' This refers to the clause as draughted by Wedderburn and Hey; see above p. 545 and note ^ this page, and which as the result of this criticism was amended as it appears in the first clause * the third draught.
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not He, & would not He be authorized to say, I will not answer in this mode of Process nor be bound by this Law ? Everj' Privilege Protection &* advantage of what Nature soever or kind that I am intitled to by the Laws & Constitution of the Realm of England, are expressly reser\'ed to me, amongst which I reckon the Tryal by a Jury as an Eminent one. Let these men bring their Ejectment upon their mortgage Title & let the tresspass be enquired into by a Jury according to the good old forms & usages of the Realm of England, & not by Laws & in a mode of Proceeding unknown & not used there & which derogate from the Rights of a british subject.
What answer could be given to a demand of this kind which would not militate either with the Law or the Exception & who would say which was intitled to the Preference ?
And with submission to your Lordship I do not see how it is possible to alter the Provisional clause to any advantage or find any form of words to reconcile it in substance with the other.
Whatever is to operate as an Exception to a positive general Law ought I apprehend to be clearly & expressly pointed out. it is your Lord- ships Intention (I presume) to revive the whole Canadian Law in matters of a civil Nature, to make it the general law of the country to govern british as well as Canadian Property by its Rules, if your Lordship intends any reservation with respect either to the Laws or the Administration of them, in favour of the british subjects, it must, I apprehend be clearly ascertained where & in what instances it should take Place, a General reservation like that contained in the clause will either operate nothing, or go to the destruction of the whole, for if the Legislature does not draw the Line I know not well how any Judge can do it.
The Legislative Council cannot do it. They cannot restrain or define privileges reserved by the Act of Parlt. nor as I should conceive even explain or determine them.
With great submission therefore to your Lordships better Judgment I conceive that clause must be wholly struck out or more particularly ex- plained.
Will your Lordship permit me to add a word or two upon the subject of Religion as it is affected by this Act of Parliam'.
That your Lordship intends only a bare Toleration for the R. C. Religion without any maintenance or support for the Clergy appears obvious from the manner of penning the statute.
The Clause which mentions & allows the Exercise of Religion is totally silent with respect to the Clergy or any right belonging to them & the cautious use of the words civil Rights in the clause that restores them to their old Laws & customs, seems to distinguish & exclude Ecclesiastical ones.
But will your Lordship (upon reflection) think it sufficient barely to tolerate a large & powerful Body of Men the R. C. Clergy in Canada, in the exercise of their Religion, without any other means of support than what
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is to arise from the Voluntary contribution of their Parishioners, or does your Lordship apprehend any mischief or great inconvenience would arise from acknowledging their right to a decent & moderate maintenance under the sanction of a british Act of Parliament.
To say nothing of the discontent it would occasion will your Lordship think it quite consistent with the terms of. the treaty — ^under which the property' of the Clergy as well as Laity seems to have been reserved to the owners — & the Right to a decent support by Tithes seems to be as much the Property of the Clergy, as the seigneurial lands of the seigneurs, or any lay Property whatsoever of a Layman.
Power & Authority neither belongs to them by treaty nor is it con- sistent with a Protest' Govt, to suffer them to be retained — but subsistence seems to be their right, & under this Idea, I have taken the Liberty to make an additional clause, reserving the Tithe of Protestants for a Protestant clergy when his Majesty shall think proper to in title any to demand it.'
For the manner in which the whole of what your Lordship gave me when I had the Honour to be with you on Saturday will then stand I refer your Lordship to the Paper itself
LORD HILLSBOROUGH'S OBJECTIONS TO THE QUEBEC BILL IN ITS PRESENT FORM^
St enacting The extention of the boundaries to the North so as to ause
comprehend the Labrador coast his Lordship approves, but has insuperable objections to the extention to the Mississippi and
' This is evidently the clause which has been incorporated into the third draught of the bill
which makes provision for the collection of tithes by the Roman Catholic clergy, and reserves
right to provide for a protcstant clergy as well. On April 28th the following note was sent
im Lord Mansfield to Lord Dartmouth; — "My Lord I rec"* the inclosed Dr' last night at 10
('clock — I have read it over. ••*•••••••••! would suggest two alterations upon
the Plan as it stands — One, which I have just put into the Dr' in a piece of Paper relative to the Supremacy^ I mean it to avoid, what L"* North & y' Lo"* seemed very desirous of avoiding the necessity of the Canadian Gentlemen taking the Oath of Supremacy. The other relates to the Right of Tithes &■* depending upon the Man's professing the Popish Religion. Any man who -l"nies professing it will be excused. They should pay to the Priest till the time is ripe for their lying to the Minister of some other Religion. • • • • • Your Lo>" most ob' hu. Serv'
xiansfield." M 384, p. 268. To this Lord Dartmouth made the following reply
I-L-i Mansfield 1 May 1774
My Lord "I have laid before his Majesty's Confidential Servants the alteration your Lord" has been t good to suggest in the Quebec Bill, & they were unanimously of opinion to adopt the first Bative to the Supremacy. The other they thought unnecessary, because it is his Majesty's mention to make immediate provision for a Protestant Clergy, from the tithes of the Estates of Protestantif so that none can elude the payment by denying the Profession of the Popish Religion. 1 heir Ixjrdt" thought fit to alter the stile of the clause w*" enacts the free exercise of the Romish Religion to make it declaritory — this, we conceive, will obviate any doubts that might have been created by it, & prevent any ill consequences, it might be thought likely to have in other parts of his Majesty's Dominions. With these alterations I hope the Bill will have your Lord"' ap- probation. I have the Honour to be &" D." M 385. p. 278. The suggestion with reference to the oath of supremacy which Lord Mansfield had enclosed, is preserved in the Dartmouth Papers, endorsed "Clause (.\)," M 38.S. p. 329. This was introduced as it stands into the Quebec Kill while going through Parliament, and provides a special oath for the Roman Catholics, instead of that of the Ist of Queen Elizabeth. See p. 557.
' Canadian Archives, Dartmou th Papers, M. 385, p. 356. As the accompanying letter will
I'low, these objections of Hillsborough and Carlcton to parts of the third draught of the Quebec
Bill weic stated in their present form by Wm. Knox, the Under .Secretary of State for the Colonies.
"My I,ord In consequence of my having sent Lord Hillsborough a Copy of the Quebec Bill by
\' our Lordship's Ortlcrs. I had a message from his Lordship this morning and lest I should not be
552
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Third & fourth, enacting Clauses.
Ohio. His reasons as far as I can recollect them are these. If an extention of the boundaries for the sake of Jurisdiction only over the Inhabitants was intended. There is no occasion for doing it by Act of Parliament as it is in the power of the Crown at present to give such jurisdiction if thought fit. And it is better to do it by the authority of the Crown only, because the jurisdiction so given may be limited & restrained in such manner as to answer all the purposes of Government and to avoid the inconveniencies with which a general extention or annexation will be attended.
But from the Terms in which the extention is made and what is said in the subsequent Clauses his Lordship supposes that it is intended to make Parliament declare that it is right and proper to settle The Territories annexed, for these Lands & Inhabitants are put in exactly the same state as those within the present Limits. An inducement is held out to the Roman CathoHck subjects of Quebec and to all other Roman Catholics to remove into these annexed Countries by granting them the French Laws & Customs of Canada and the Free exercise of their Religion.
If this be the case every reason & argument his Lordship had to offer against the Ohio Grant urges him with Tenfold strength to oppose this proceeding.
His Lordship objects to the granting of any Lands in the Province in free & common Soccage & refers to a Report of the Board of Trade for his reasons for continuing the french mode of Seigneuries as the most fit for the purposes of Government & as corresponding with the whole scope & purpose of the Bill.*
able to find your Lordship before dinner I have put down upon the inclosed paper what I collect to be his sentiments respecting the Bill. I have also added what Gen' Carleton beggd I would mention from him to your Lordship respecting one Clause. I have ventured to point out such Amendments as would in my opinion render the Bill unexceptionable to both, and without injuring any of your Lordships purposes. I must however acquaint your Lordship that Lord Hillsborough said he had not sufficiently considered all other parts of the Bill having had it only yesterday afternoon, but that if he found anything else to wish alter'd. he would communicate his ideas thro' me to your Lordship as he desired to do those I have stated. Your Lordships verv faithful and obedient Servant. Will Knox ao"" April 1774." M 385, p. 270.
' As advocated by Carleton and others, and as frankly declared in the debates on the Quebec Bill, Canada and the whole of the western territory were to be reserved for the French and the Indians, though Hillsborough would reserve the west for the Indians alone. Knox thus gives expression to Hillsborough's views: "The Earl of Hillsborough was so fully persuaded of the dangerous consequences to this country and Ireland, of extending the settlements in the North American Colonies, that I had no occasion to make his Lordship any representations upon that subject. A very judicious measure which he had planned and promoted for confining them on the east side to the heads of the rivers which fall into the Atlantic Ocean, was then carrying into execution, and a boundary line was actually drawn and marked out at the backs of them all, from the Hudson's river to the Mississippi, and treaties were made with the Indians for restrain- ing the settlements within it." Extra Official State Papers &c. London, 1789. Vol. 2, p. 43. It was, as Hillsborough says, the whole scope and purpose of the bill to satisfy the French Can- adians, and by restoring French law and feudal tenures, and guaranteeing the Roman Catholic religion, to render the whole region as objectionable to the British settlers as possible. .See Lord Dartmouth's reply which follows this document. As a sample of the statements of the Govern- ment's policy, made during the debates on the bill, the following may be taken from one of Wedderburn's speeches: — "I think there ought to be no temptation held out to the subjects of England to quit their native soil, to increase colonies at the expence of this country. If persons
2. Proviso Of S* Enact- ing Clause.
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^ Proviso to theS"' Clauee.
3^ Proviso to the S" Clause.
These reasons are still more forceable for leaving out intirely the provision for converting Lands held in Seigneurie into Free & common Soccage. His Lordship thinks the Crown ought not to change those Tenures even when the Lands come into the hands of English subjects, much less relinquish all right of continuing them, and vesting a power in the French as well as English possessors to compel the Crown to change them at their plea- sure.
General Carleton makes the same objections to these Proviso's as Lord Hillsborough does, and adds with respect to the latter That the French Seigneurs do not now desire to change their Tenures. That they should be sensible of the favour and ask it before it is granted. That even when that comes to be the case The Crown can change the Tenure whenever it is thought fit to do so without this clause and can make a proper discrimination in granting the favour to those only who by their conduct may merit it. That the Tenure by Seigneurie gives the Crown great power over the Seigneur, which power will be done away by changing the Tenure into free & common Soccage. That the Evil disposed Seigneurs will therefore be the first to avail themselves of the permission to change their Tenures in order to get rid of that power and be able to do mischief with less restraint.'
The Amendments which will be the consequence of adopting what appears to be the Ideas of Lord Hillsborough are these. To leave out in the Preamble from the words Territory of Canada to the words where sedentary Fisheries, And in the first enacting clause after the words Canada in North America insert as des- cribed in the said Proclamation and extending northward to the Southern boundary Bfc. leaving out the intermediate words Southward to the Banks of the River Ohio, Westward to the banks of the Mississippy.
These amendments will obviate the objections to the First Third & Fourth Enacting Clauses.
By leaving out the 3"" Proviso to the 5"" enacting Clause General Carleton's objection will be wholly obviated and the most
Bve gone thither in the course of trade, they have gone without any intention of making it their rmanent residence: and, in that case, it is no more hardship to tell them, 'this is the aw of the nd.' than it would be to say to a man whose affairs induced him to establish himself in Guernsey, in any other part of North America. With regard to the English who have settled there, eir number is very few. They are attached to the country either in point of commercial iterest or they are attached to it from the situations they hold under government. It is one bject of this measure that these persons should not settle in Canada." Cavendish's Debates c. p. 57.
' For Carleton's views as to the future of Canada and the necessity for restoring and main- lining the French feudal system there, see the following among other documents: — Carleton I Shelburne. Nov. 25, 1767, particularly the latter part, p. 284: also his letter of Dec. 24, 1767, 288; The Draught of an Ordinance Sc, p. 292; Additional Instructions to Carleton in 1771, ,422.
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material part of Lord Hillsborough's will be also removed, for although they both wish the Lands may be hereafter granted in Seigneuries as heretofore yet they do not stand out to limit the Crown from granting them otherways if thought fit.*
DARTMOUTH'S REPLY TO HILLSBOROUGH.'
1 May L"* Hillsborough. 1774.
My Dear Lord, M' Knox has stated to me your Lordp' two objections to the Canada Bill, w*'' I propose to lay before the House of Lords tomorrow & I have communicated them to the Cabinet, who areunanimously of opinion that the extension of the Province to the Ohio & Mississipi, is an essential & very useful part of the Bill ; it provides for the establishment of civil government over many numerous settlements of french subjects, but does by no means imply an intention of further settling the Lands included within this extension, & if it is not wished that British Subjects should settle that country nothing can more effectually tend to discourage such attempts, w"** in the present state of that Country', y' Lord" knows very well, it is impossible to prevent. Y' Objection to The clause allowing a change of Tenure their Lordp' thought proper to come into & it is accord- ingly struck out of the Bill.
I am, my dear Lord, Y' &c &c.
D.
THE QUEBEC BILL AS RETURNED FROM THE COMMONS.*
A BILL Intituled
An Act for making more effectual Provision for the Government of Quebec, in North America.
N.B. — The Words printed within Crochets [ ). in [Old English] Letter, denote what was left out by the Commons, and those printed within a Parenthesis in (Italick), what have been inserted by them.
Whereas His Majesty, by His Royal Proclamation, bearing Date the Seventh Day of October, in the Third Year of His Reign, thought fit to declare the Provisions which had been made in respect to certain Countries,
' As indicated in the reply of Lord Dartmouth which follows, the amendment indicated in this paragraph was made in the fourth draught of the bill, but the amendment with reference to the boundaries was not accepted.
' Canadian Archives, Dartmouth Papers, M 385, p. 276.
» Canadian Archives, Dartmouth Papers, M 385, p. 283. On June 13th the Quebec Bill was returned from the Commons with the following note: — "My Lord. I have Lord North's orders to transmit to Your Lordship the inclosed papers being the Quebec Act compleat as it passed the House of Commons this day, and have the Honour to be witli the highest Respect My Lord Your Lordships Most Faithful and most obedient humble Servant John Robinson." 13"'' June 1774. M 385, p. 282. As the note at the head of this document indicates, by reference to the two sets of brackets, it expresses at once the fourth draught of the bill, as it was introduced to the House of Lords on May 2nd., and such amendments and additions to it as were made while it was passing through the Commons and were accepted by Lord North, the Prime Minister. In addition to the alterations already noticed in connection with the criticisms on the third draught
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Territories, and Islands in America, ceded to His Majesty by the definitive Treaty of Peace concluded at Paris, on the Tenth Day of February, One thousand seven hundred and sixty-three :
And whereas, by the Arrangements made by the said Royal Pro- clamation, a very l^rge [Part of the Territory of Canada], (extent of Country) , .within which there were several Colonies and Settlements of the Subjects lof France, who claimed to remain therein under the Faith of the said Treaty, was left, without any Provision being made for the Administration of Civil Government therein, and [other] (certain) Parts of the [Said Country] (Territory of Canada), where sedentary Fisheries had been established and carried on by the Subjects of France, Inhabitants of the said Province of Canada, under Grants and Concessions from the Government thereof, were annexed to the Government of Newfoundland, and thereby subjected to Regulations inconsistent with the nature of such Fisheries : May it therefore please Your most Excellent 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 Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same. That all the [said] Territories, Islands, and Coun- ttries, [heretofore Part of the Province of Canada], in North America, [extend- ing Southward to the Banks of] (belonging to the Crown of Great Britain, junded on the South by a Line from the Bay of Chaleurs, along the High ^ands which divide the Rivers that empty themselves into the River Saint Lawrence, from those which fall into the Sea, to a Point in Forty-five )egrees of Northern Latitude, on the Eastern Bank of the River Connecticut; keeping 'the same Latitude directly West, through the Lake Champlain, until, in the same Latitude, it meets the River Saint Lawrence ; from thence ip the Eastern Bank of the said River, to the Lake Ontario ; thence through the lake Ontario, and the River commonly called Niagara ; and thence along by the Eastern and South Eastern Bank of Lake Erie, following the id Bank, until the same shall be intersected by the Northern Boundary, j;ranted by the Charter of the Province of Pensylvania, in case the same dall be so intersected ; and from thence along the said Northern and /estern Boundaries of the said Province, until the said Western Boundary btrike the Ohio : But in case the said Bank of the said Lake shall not be |ound to be so intersected, then following the said Bank, until it shall rive at that Point of the said Bank which shall be nearest to the North
f the bill, and the introduction of a clause in the latter part of the bill relating to taxes or duties, I few other slight changes will be observed, as between the third and fourth draughts. Several ' the changes made after the bill reached the Commons were undertaken by the Government lelf. notably the new form of oath drawn up by Lord Mansfield and accepted by the Govern- ent. See note p. 551. In the Dartmouth Papers two other clauses are given, marked (b) nd (c). which were incorporated into the bill during its sojourn in the Commons. That marked b) is the last clause in the bill, and relates to the regulation of trade. That marked (c) is the lause in the fifth paragraph of the bill safeguarding any right, title, or possession acquired under ny grants made prior to this act. The additions and amendments introduced into the bill while the Commons, as well as the numerous criticisms and amendments rejected by the Govern- ent. can best be followed in Cavendish's Debates on the Bill, which is indispensable to a proper nderstanding of the policy of the measure.
556 CA NA DIAN A RCHI VES
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Western Angle of the said Province of Pensylvania; and thence by a right Line to the said North Western Angle of the said Province ; and thence along the Western Boundary of the said Province, until it strike) the River Ohio, (and along the Bank of the said River) Westward, to the Banks of ' Mississippi, and Northward to the Southern Boundary of the Territory granted to the Merchants Adventurers of England trading to Hudson's Bay ; and [which said] (also all such) Territories, Islands, and Countries, [are not within the Limits of some other British Colony, as allowed and confirmed by the Crown or] which have, since the Tenth of February, One thousand seven hundred and sixty-three, been made Part of the Government of Newfoundland, be, and they are hereby, during His Majesty's Pleasure, annexed to, and made Part and Parcel of, the Province of Quebec, as created and established by the said Royal Proclamation of the Seventh of October, One thousand seven hundred and sixty three.
J. (Provided always, and be it enacted, That nothing herein contained relative to the Boundary of the Province of Quebec, shall in any wise affect the Boundaries of any other Colonies.)
3 (Provided always, and be it enacted. That nothing in this Act contained
shall extend, or be construed to extend, to make void, or to vary or alter, any Right, Title, or Possession, derived under any Grant, Conveyance, or otherwise howsoever, of or to any Lands within the said Province, or the Provinces thereto adjoining, but that the same shall remain and he in Force, and have Effect, as if this Act had never been made.) J And whereas the Provisions made by the said Proclamation, in respect
to the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province, by the Grants and Commissions issued in consequence thereof, have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof [amounting] (amounted) at the Conquest, to above [One hundred] (sixty-five) thousand Persons, professing the Religion of the Church of Rome, and enjoying an established Form of Constitution, and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada ; be it therefore further enacted by the Authority aforesaid, That the said Pro- clamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the First Day of May, One thousand seven hundred and seventy five.
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^ And for the more perfect security and Ease of the Minds of the Inhabi- tants of the said Province, it is hereby declared, That His Majesty's Subjects professing the Religion of the Church of Rome, of, and in the said Province of Quebec, [as the same is described in and by the said Proclamation and Commissions, and also of all the Territories, Part of the Province of Canada, at the time of the Conquest thereof, which are hereby annexed, during His Majesty's Pleasure, to the said Government of Quebec], may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the Kings Supremacy, declared and established by an Act made in the First Year of the Reign of Queen Elizabeth, over all the Dominions and Countries which then did, or thereafter should, belong to the Imperial Crown of this Realm ; and that the Clergy of the said Church may hold, receive, and enjoy their accustomed Dues and Rights, with respect to such Persons only as shall profess the said Religion.
. Provided nevertheless. That [nothing herein contained shall extend, or be construed to extend, to the disabling] (it shall be lawful for) His Majesty, His Heirs or Successors, [from making] (to make) such Provision (out of the rest of the said accustomed Dues and Rights,) for the Encourage- ment 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.
O (Provided always, and be it enacted. That no Person professing the Religion of the Church of Rome, and residing in the said Province, shall be jbliged to take the Oath required by the said Statute, passed in the First
jTear of the Reign of Queen Elizabeth, or any other Oaths substituted by any
ler Act -in the Place thereof, but that every such Person, who by the said
Statute is required to take the Oath therein mentioned, shall be obliged,
pd is hereby required to take and subscribe the following Oath before
ie Governor or such other Person, or in such Court of Record as His
lajesty shall appoint, who are hereby authorised to administer the same ;
ielicet,
"I A. B. do sincerely promise and swear. That I will be faithful, and
jear true Allegiance to His Majesty King George, and Him will defend
ko the utmost of my Power, against all Traiterous Conspiracies and EAttempts whatsoever, which shall be made against His Person, Crown, and [Dignity ; and I will do my utmost Endeavour to disclose and make known
to His Majesty, His Heirs, and Successors, all Treasons, and Traiterous IConspiracies and Attempts, which I shall know to be against Him, or fany of Them ; and all this I do swear, without Equivocation, mental
Evasion, or secret Reservation ; and renouncing all Pardons and Dis- ensations from any Power or Persons whomsoever to the Contrary.
So help me God." And every such Person who shall neglect or refuse to take the said
)ath before mentioned, shall incur and be liable to the same Penalties, Forfeitures, Disabilities, and Incapacities, as he would have incurred and
558 CANADIAN A RCHI VES
6-7 EDWARD VII., 1907
been liable to, for neglecting or refusing to take the Oath required by the said statute, passed in the First Year of the Reign of Queen Elizabeth.) S And be it further enacted by the Authority aforesaid. That all His Majesty's Canadian Subjects within the Province of Quebec, the Religious Orders and Communities only excepted, may also hold and enjoy their Property and Possessions, together with all Customs and Usages, relative thereto, and all other Civil Rights, in as large, ample and beneficial Manner, as if the said Proclamation, Commissions. Ordinances, and other Acts and Instruments, had not been made, and as may consist with their Allegiance to His Majesty, and Subjection to the Crown and Parliament of Great Britain ; and that in all Matters of Controversy relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, (as the Rule) for the Decision of the same ; and all Causes that shall hereafter be instituted in any of the Courts of Justice, to be appointed within and for the said Province by His Majesty, His Heirs and Successors, shall, with respect to such Property and Rights, be determined [by the Judges of the same], agreeably to the said Laws and Customs of Canada, [and the several] (until they shall be varied or altered by any) Ordinances that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, or Commander in Chief for the time being, by and with the advice and Consent of the Legislative Council of the same, to be appointed in Manner herein-after mentioned.
q (Provided always. That nothing in this Act contained shall extend, or be construed to extend, to any Lands that have been granted by His Majesty, or shall hereafter be granted by His Majesty, His Heirs and Successors, to be holden in free and common Soccage.)
I ^ Provided [always] (also) That it shall and may be lawful to and for every Person that is Owner of any Lands, Goods, or Credits in the said Province, and that has a Right to alienate the said Lands, Goods, or Credits, in his or her Lifetime, by Deed of Sale, Gift or otherwise, to devise or bequeath the same, at his or her Death, or by his or her Last Will and Testa- ment ; any Law, Usage, or Custom heretofore or now prevailing in the Province, to the Contrary hereof in any-wise notwithstanding.
[Provided also. That nothing in this Act contained shall extend, or be construed to extend, to any Lands that have been granted by His Majesty, or shall hereafter be granted by his Majesty, his heirs and Successors, to be holden in free and common Soccage :] (Such Will being executed either according to the Laws of Canada, or according to the Forms prescribed by the Laws of England.)
II And whereas the Certain and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants from an Experience of more than Nine Years, during which it has been uniformly administered ; be it therefore further enacted by the Authority aforesaid. That the same shall continue to be administered, and shall be observed as Law, in the Province of Quebec,
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as well in the Description and Quality of the Offence, as in the Method of Prosecution and Trial, and the Punishments and Forfeitures thereby inflicted, to the Exclusion of every other Rule of Criminal Law, or Mode of Proceeding thereon, which did or might prevail in the said Province before the Year of our Lord One thousand seven hundred and sixty-four ; any Thing in this Act to the Contrary thereof in any Respect notwith- standing ; subject nevertheless to such Alterations and Amendments, as the Governor, Lieutenant Governor, or Commander in Chief for the Time being, by and with the advice and Consent of the Legislative Council of the said Province, hereafter to be appointed, shall, from Time to Time, cause to be made therein, in Manner herein-after directed.
I ^ And whereas it may be necessary to ordain many Regulations, for the future Welfare and good Government of the Province of Quebec, the Occa- sions of which cannot now be foreseen, nor without much Delay and Incon- venience be provided for, without intrusting that Authority for a certain Time, and under proper Restrictions, to Persons resident there :
And whereas it is at present inexpedient to call an Assembly ; be it therefore enacted by the Authority aforesaid. That it shall and may be lawful for His Majesty, His Heirs and Successors, by Warrant under His or Their Signet, or Sign Manual, and with the Advice of the Privy Council, to constitute and appoint a Council for the Affairs of the Province of Quebec, to consist of such Persons resident there, not exceeding Twenty- three, nor less than Seventeen, as His Majesty, His Heirs and Successors, shall be pleased to appoint ; and, upon the Death, Removal, or Absence of any of the Members of the said Council, in like Manner, to constitute and appoirit such and so many other Person or Persons as shall be necessary to supply the Vacancy or Vacancies ; which Council, so appointed and nomi- nated, or the major Part thereof, shall have [full] Power and Authority to make Ordinances for the Peace, Welfare, and good Government of the said Province, with the Consent of His Majesty's Governor, or, in his Absence, of the Lieutenant Governor, or Commander in Chief for the Time being. ,3 Provided always. That nothing in this Act contained shall extend to authorise or impower the said Legislative Council to lay any Taxes or Duties within the said Province, (such Rates and Taxes only excepted, as the Inhabitants of any Town or District within the said Province, may be authorised by the said Council to assess, levy, and apply, within the said Town or District, for the Purpose of making Roads, erecting and repairing publick Buildings, or for any other Purpose respecting the local Convenience and Oeconomy of such Town or District.) ,^ Provided also, and be it enacted by the Authority aforesaid. That every Ordinance so to be made shall, within Six Months, be transmitted by the Governor, or, in his Absence, by the Lieutenant Governor or Commander in Chief for the Time being, and laid before His Majesty, for His Royal Ap- probation ; and if His Majesty shall think fit to disallow thereof, the same
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shall cease and be void from the Time that His Majesty's Order in Council thereupon shall be promulgated at Quebec. —
'S Provided also, That no Ordinance touching Religion, or by which any Punishment may be inflicted greater than Fine or Imprisonment for Three Months, shall be of any Force or Effect, until the same shall have received His Majesty's approbation.
/4, Provided also. That no Ordinance shall be passed, at any Meeting of the Council, (where less than a Majority of the whole Council is present, or at any Time), except between the First Day of January, and the First Day of May, unless upon some urgent Occasion ; in which Case, every Member thereof, resident at Quebec, or within Fifty Miles thereof, shall be personally summoned by the Governor, or, in his Absence, by the Lieutenant Governor or Commander in Chief for the Time being, to attend the same.
<i And be it further enacted by the Authority aforesaid, That nothing herein contained shall extend, or be construed to extend, to prevent or hinder His Majesty, His Heirs and Successors, by His or their Letters Patent, under the Great Seal of Great Britain, from erecting, constituting, and appointing, such Courts of Criminal, Civil, and Ecclesiastical Jurisdiction, within and for the said Province of Quebec, and appointing, from Time to Time, the Judges and Officers thereof, as His Majesty, His Heirs and Suc- cessors, shall think necessary and proper, for the circumstances of the said Province.
if (Provided always, and it is hereby enacted, That nothing in this Act contained shall extend, or be construed to extend, to repeal or make void, within the said Province of Quebec, any Act or Acts of the Parliament of Great Britain heretofore made, for prohibiting, restraining, or regulating the Trade, or Commerce of His Majesty's Colonies and Plantations in America ; but that all and every the said Acts, and also all Acts of Parlia- ment heretofore made, concerning or respecting the said Colonies and Plantations, shall be, and are hereby declared to be, in Force, within the said Province of Quebec, and every Part thereof.)
Finis. Endorsed :— A Bill,
(with emendations ;) Intituled
An Act for making more effectual Provision for the Government of the Province of Quebec, in North America. (1774)
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CHOSES INDISPENSABLES A CONSIDfiRER, ET A DETERMINER FIXfiMENT, SI LE BILL PR£SENT£ POUR LA PROVINCE DE QUEBEC A LIEU.'
1° les propri6t6s de toute espdce, droits et privileges, sont accord^s aux canadiens, autant, est-il dit, que cela petit etre d'accord avec leur allegiance envers Sa majesti, et avec leur d6pendance de la couronne et parlement de la grande Bretagne. entend-on, par cette condition exprim^e en termes aussi g^neraux, pouvoir les priver d'une partie de ces proprietes, droits et privileges ? cela n'est pas vraisemblable, puisque le tout leur est assur6, sans une condition pareille, du moment qu'ils sont devenu Sujets Britan- niques. cependant de la laisser subsister sans necessity, seroit les exposer a mille troubles et chicanes qui en decouteroient (decouleroient?), et a leur ruine certaine par les frais qu'ils leur occasionneroient.
Si au contraire quelques parties de ces proprietes droits et privileges se trouvent etre incompatibles avec cette clause, il convient de les determiner fixement dans I'acte, et d'ordonner une indemnite equivalente a chaque objet Supprime Comme incompatible avec la ditte condition.
2° il est dit que, dans toute matiere de demesie relatif a la propriete et droits civils d'aucun des sujets de sa Majeste canadiens ou anglois, on aura recours aux loix du Canada &c. Et que les Jugemens des cours etablies dans la province seront rendus conformement a ces loix, et aux di verses ORDONNANCES qui de terns en terns seront passe par le gouverneur &fc. &c. le gou- verneur aura-t-il le droit de faire des ordonnances, qui aneantissent les loix fondamentales du Canada ? ou meme qui, sans les aneantir, pourroient y porter quelques confusions capables de rendre incertains I'un ou I'autre de ces deux objects capitaux, et d'occasionner par milles chicanes qu'elles introduiroient la ruine assuree des citoiens, qu'opereroient les frais qui les accompagneroient ? ou bien sera t-il borne a ne pouvoir faire que quelques reglemens de police, toujours parfaitement d'accord avec les lois fonda- mentales du pais, sans pouvoir jamais s'eloigner de I'esprit de ces loix : tel que le pouvoient le gouverneur general et Intendant de police au d* pais, pour les reglemens de moindre consequence ; et ces deux joints au conseil superieur, pour ceux de plus grande importance, (qui etoit le seul DROIT QUI PUT accord6 A CES PUISSANCES SOUS le gouvemement fran^ois ? Si le pouvoir exprime dans le premier cas est accorde a ce gouverneur, que deviendront les loix premieres du Canada, que le peuple desire et demande avec tant d'ardeur, les regardant comme sa surete unique ? que deviendra I'existence entiere des Canadiens qui s'y trouve indispensablement attachee ? quel fruit retireront ils alors de ces loix, qu'on pretend leur accorder comme grace la plus speciale, et qui pourront leur etre supprimee I'instant suivant ?
' Canadian Archives, M 385, p. 385. This criticism of several important features of the Quebec Bill was made while the measure was passing through the Commons, and after M. De Lotbiniere had given his evidence before the House. (See Cavendish's Debates, p. 161.) It expresses the views of a representative member of the French-Canadian Noblesse — views which were frequently expressed in various forms during the period of legal and political confusioa which followed the Quebec Act, especially from 1784 to 1791.
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quelles ressourcesauront-ils pour se fairerendre Justice sur lespromessesqu'on leur a fait, qui seules les ont d^termin^ a se rendre d'abord, et ensuite a se fixer g^n^ralement sous I'obeissance Britannique ? un objet aussi important merite certainement la plus grande attention, et exige que le pouvoir soit limits en sorte qu'il ne puisse troubler un seul de ces sujets, de quelque maniere que ce soit, dans aucunes parties de leur propri^tes droits et privi- l^ges.i
3° le Bill semble vouloir exprimer que c'est en grande partie, pour complaire au desir des Canadiens, qu'on supprime dans leur pais toutes loix et manieres de proc^der pour le criminel a la frangoise, et qu'on y subs- titue toutes les loix criminelles angloises et manieres de proc^der en conse- quence, ce que je puis annoncer pour certain est que, dans la demande qu'ils font de leur loix, il n'est nuUement question d'en excepter celles qui regardent le criminel ; et ils n'auroient pas manque de I'exprimer s'ils eussent pr6f6r6 la loy angloise pour cette partie. on doit sentir que les loix civiles et les loix criminelles, etant form^es et li^es intimement I'une a I'autre par un meme sys- th^me, elles sont pour s'entreaider et s'appuier r^ciproquement dans nombre de cas importans; qu'on ne sauroit consdquemment, de ce melange de loix calcul6es sur des systhemes diflferens, esp6rer cette harmonic qui fait la baze de la suret6 et tranquility publique ; et qu'elles doivent n6cessairement s'entre choquer et s'affoiblir I'une I'autre d'instant en instant, d'ailleurs le Canadien connoit la loy criminelle qui a 6t6 suivie des le principe dans son pais ; il ne connoitra pent etre jamais en entier celle qu'on y veut substituer, et est-il un Etat plus cruel pour I'homme qui pense, que de ne jamais savoir s'il est digne de louange ou de blame ? — il a cru s'appercevoir aussi que, par la loy angloise, il pouvoit etre regarde comme criminel, sur le simple serment d'un homme, sans qu'il y eut corps de delit ou crime d^montre, qu'il pou- voit, par cela seul, etre poursuivi et puni en consequence, S'il ne pent parvenir a prouver I'alibi ; et I'accusateur pent aisement lui 6ter cette ressource, pour peu qu'il I'ait observe quelque tems avant : danger le plus funeste qu'il soit meme possible de se representer, auquel le Canadien est certain de n'6tre jamais expos6 par la loy frangoise — quant a I'instruction du proems, et aux preuves exig^es pour Etablir son crime et lui en faire subir la peine, il sait que dans la maniere de proc^der a la frangoise les precautions les plus minutieuses sont observ6es avec le plus grand scrupule, et qu'il ne peut etre condamn6 que sur des preuves aussi claires que le jour, il ne reste done a citer k I'avantage du criminel anglois, que de se voir condamner par douze juris que Von-nomme ses paires. pense-t-on que le Canadien, ou tout autre qui voudra se d^pouiller des pr^juges de I'enfance, se croira expos6 a plus de partiality, a plus d'injustice, a moins de lumiere etant jug^ par une Cour compos^e de douze juges choisis dans la classe des plus honnetes-gens de la province, tons au fait de la loy {tel le qu'eloit com- pose le conseil superieur de ce pais sous le gouvernement fran^ois, et qu'on ne
' See further discussion of the points here raised, in M. De Lotbiniere's expression of his views to Masercs, about this time: "Account of the Proceedings" &c. p. 175.
r
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peiit se dispenser de retablir si Von y veut assurer la vie. I'elat, et la fortune des citotens.) croit-on, dis-je, qu'il se crolra moins bien juge par un conseil pareil, que s'il I'etoit par douze jur6s prisau hazard, qui meme quelque fois auroit pu etre menages de loin ? au reste on ne voit aucun inconvenient k accorder ces Jures a ceux qui les prefereroient.
4° le gouverneur &c paroit egalement authorise par le bill a changer a volonte cette loy criminelle, avec pouvoir de cr6er de nouveaux crimes accompagn6es des peines qu'il jugera a propos, d'y imposer ; lesquelles loix seront en force dez le moment de leur creation, sans avoir besoin de I'appro- bation de Sa majeste, pourvu qu'elles ne touchent point a la Religion, et que les peines imposees se reduisent a un emprisonnement de trois mois, ou UNE AMANDE. Voici un pouvoir bien exhorbitant accord^ a ce gouver- neur &c; qui, s'il est assez a droit pour faire passer ses loix au conseil priv6, acquiert par 1^ le droit de vie et de mort surtous ceux qui se trouveront r^sider dans le pais immense du Canada ; et qui, sans ce secour, pent les tenir emprisonnees I'espace de trois mois pour les moindres fautes, ou mSme pour la VIE, SI l'amande (qui n'a point de terme limits) est imposee de maniere que les delinquans ne puissent y satisfaire. .
Ceci merite je le crois la plus grande attention ; au moins assez, pour que le plus grand nombre des habitans de la province soit preserve d'etre emprisonnes pour la vie, faute de pouvoir satisfaire aux amandes qui pourroient leur etre imposees.
5° Pour ce qui est du pouvoir legislatif a etablir en Canada, j'ai desja eu occasion, d'exposer a I'honorable chambre combien il etoit essentiel de ne le confier qu'aux plus gros propri^taires de terres dans ce pais:' seules propri^tes reconnu pour solides dans quelque partie du monde que ce soit, toutes autres pouvant etre an^anties par le premier coup de feu ou quelques banqueroutes. on ne doit esperer que de ceux la I'attention et les soins necessaires pour pr^venir le mal, et procurer tous les avantages dont le pais pent etre susceptible, puis qu'ils sont les premiers et les plus interress^s au "bien de la chose : ce que Ton ne peut raisonnablement attendre de ceux qui n'ont aucun interet, ou de tres foibles, dans I'int^ret publique; a plus forte raison, si leurs interets particuliers s'y trouvent opposes — ainsi, quelle que soit la forme de legislation a etablir en Canada, il convient que Sa majest6 soit suppliee de n'emploier pour membres de legislation que ceux de cette classe de premiers et plus gros propri6taires en fonds de terre, sans faire attention a la religion qu'ils professent ; leur difference d'opinions en fait de dogme n'influera en rien sur cet objet ; ce ne sera jamais que I'interet qu'ils y auront qui les determinera — qu'elle soit egalement suppli6 d'ordonner qu'il ne soit passe aucune loy, ordonnances, ou reglement de quelque importance, que dans le tems fixe pour la tenue generale du corps legislatif ; et que, dans tous les cas, les membres de ce corps soient assembles en assez grand nombre pour s'assurer que le seul bien publique les decidera.
' See his examination before the House of Commons on June 3rd. Cavendish's Debates on the Quebec Bill, p. 161.
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6° Enfin un point qui merite attention et qui doit etre fix6, est que la lan- gue frangoise etant g6n6rale et presque I'unique en Canada, que tout etranger qui y irent, n'aient que ses interets en vue, il est demontre qu'il ne pent les bien servir qu'autant qu'il s'est fortifi6 dans cette langue, et qu'il est forc6 d'en faire un usage continuel dans toutes les affaires particulieres qu'il y traitte ; qu'il est de plus impossible, vfl la distribution des etablis- semens et habitations du pais, de pretendre a y introduire jamais la langue angloise comme g6nerale — pour toutes ces raisons et autres non d6taill6es, il est indispensables d'ordonner que cette langue frangoise soit la seule emploi^e dans tout ce qui se traitera et sera arrgt6 pour toute affaire publi- que, tant dans les cours de justice, que dans I'assemblee du corps legislatif &c. car il paroitroit cruel que, sans n6cessit6. Ton voulut rdduire presque la totalit6 des interress6s a n'etre jamais au fait de ce qui seroit agitd ou seroit arrets dans le pais.
CHARTIER De LOTBINIERE tant en son nom, qu'au nom des Canadiens.
Translation.
THINGS WHICH MUST OF NECESSITY BE CONSIDERED AND DEFINITELY SETTLED IF THE BILL PRESENTED FOR THE PROVINCE OF QUEBEC IS PASSED.
1" Properties of every description, rights and privileges are granted to Canadians, in so far, it is stated, as may be in accordance with their allegiance to His Majesty, and with their dependence on the crown and parliament of Great Britain. Are we to understand by this condition, which is expressed in such general terms, that they can be deprived of a part of these properties rights and privileges ? That is not likely, since all these are guaranteed to them, without any similar condition, from the moment that they become British Subjects. Nevertheless to allow it to continue unnecessarily, would be exposing them to a thousand troubles and lawsuits which would flow therefrom, and to certain ruin from the expense which they would bring upon them.
If on the contrary some parts of the properties, rights and privileges are found to be incompatible with this clause, it is imperative that they should be definitely settled in the act, and that an indemnity should be allotted equivalent to every article Suppressed as incompatible with the said condition.
2"* It is stated that in every matter of dispute, relating to the property and civil rights of any of his Majesty's Canadian or English subjects recourse should be had to the laws of Canada &c., And that the Judgments of the Courts established in the province sTiall be determined agreeably to the said laws, and to the different ordinances which shall from time to time
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be passed by the governor, &c. &c. — shall the governor have the right to make statutes which might annul the fundamental laws of Canada ? or even which, without annulling them, would give rise to confusion which might serve to obscure one or other of these two important points, and by the multitude of lawsuits which they would entail, bring about the certain ruin of the citizens, who would have to bear the expenses accompanying them. Should his process not rather be restricted to only making police regulations, and that strictly in accordance with the fundamental laws of the country without ever being able to step outside the spirit of these laws, such as the governor general and the Intendant of police were able to make in the aforesaid country for regulations of minor importance, and these two were in combination with the superior council for matters of greater import- ance. (This was the only right granted to these authorities under the French Government.) If the power mentioned in the first case is granted to the governor, what will become of the first laws of Canada, which the people desire and ask for with so much energy, looking upon them as their only safeguard ? What will become of the whole existence of the Canadians, which is so closely bound up with them ? What advantage will they derive from these laws, which they claim are granted them as a very special favour, and which may be taken away from them at any moment ? What power will they have to compel the administration of Justice by the fulfilment of the promises which have been made to them, which alone have decided them to submit in the first place, and afterwards to settle down in general under British rule ? So important a subject certainly deserves the greatest consideration, and demands that authority should be restricted in such a way that it cannot disturb one of these subjects, in any manner whatever, in any part of their possessions, rights or privileges.
3^ It seems intended to show by the Bill, that it is in great measure to satisfy the desire of the Canadians, that all French laws and modes of pro- cedure against criminals are to be suppressed in this country, and that the English laws and modes of procedure are consequently to be substituted. • What I can state as positively certain is that in the request they are making for their own laws, there is no question of excepting such of them as relate to criminals ; and they would not have failed to express their opinion if they had preferred the English law on this point. They must feel that the civil code and the criminal code, being framed under the same system and intimately connected with each other are intended to mutually assist and strengthen each other in many important cases ; and that in consequence there is not to be expected from this admixture of laws framed on different systems, that harmony which forms the basis of security and public tran- quility; and that they must necessarily conflict with each other and weaken each other from time to time. Besides the Canadian understands the criminal law which has been followed from the beginning in his country ; he will not f>erhaps fully understand the law which it is sought to substitute for it, and is there a more painful situation for the thoughtful man, than never
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to know whether he is worthy of praise or blame. He believes too that he can see a danger, under the English law, of his being looked upon as a criminal, on the bare oath of a man, without any offence or crime being proved. That he may, for this cause only be prosecuted and punished in consequence, if he cannot succeed in proving an alibi ; and the accuser can easily deprive him of this resource, however little he may have watched him for some time past. This is the most fearful danger that it is possible to imagine, and one to which the Canadian is certain never to be exposed under the French law. As to the evidence during trial, and the proofs required to establish his guilt, and to subject him to the penalty for it, he knows that by the mode of procedure according to the French laws, the minutest precautions are most scrupulously observed, and that he can only be condemned on proofs as clear as the day. There remains then nothing else to cite to the advantage of the English criminal, except the satisfaction of being condemned by twelve jurors, who are called his peers. Is it credible that the Canadian, or anyone else who wished to divest himself of the pre- judices of his childhood, would believe that he would be exposed to more favouritism, to more injustice, and to less enlightenment, if he were judged by a Court composed of twelve judges chosen from the class of the most honourable men in the province all thoroughly acquainted with the law (such as formed the superior council of this country under the French government, and which it is absolutely imperative to re-establish, if it is desired to insure the life, the property, and the fortune of the citizens). Is it credible, I say, that he would imagine himself less well judged by such a council, than if he were judged by twelve Jurors taken at haphazard, who might sometimes even have to be brought from a distance ? At any rate, there seems to be no objection to granting these Jurors to those who prefer them.
4*'' The governor &c. seems also to be authorized by the bill to change the criminal law at will, with authority to create new crimes accompanied by penalties which he shall judge proper to impose ; which laws will be in force from the moment of their creation, without any need of His Majesty's approval, provided that they are not touching Religion, and that the punish- ments inflicted shall be limited to imprisonment for three months, or to a fine. This is a most preposterous power to be granted to a governor &c., who, if he is clever enough to get the laws passed by the privy council, acquires thereby the right of life and death over all those who shall be living in the immense country of Canada ; and who, even without this reinforcement, may keep them imprisoned for the space of three months for the smallest faults, or even for life, if the penalty (which has no fixed limit) is imposed in such a way that the delinquent cannot pay it.
I consider that this point deserves the greatest attention, or at least enough to preserve the greater number of the inhabitants of the province from being imprisoned for life, for lack of ability to pay the penalties which may be imposed upon them.
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5th With regard to the estabUshment of the legislative power in Canada, I have already had occasion to demonstrate to the honourable chamber how essential it was to entrust it only to the largest landed proprietors in this country ; owners only of properties recognized all over the world as solid, any others being liable to ruin from a sudden fire, or a few bankrupt- cies. It is from them only we can hope for the attention and care necessary to foresee the evil, and to develop all the natural advantages which the country may possess, seeing that they are the most prominent and the most interested in the success of the matter : this cannot reasonably be expected from those who have no interest, or only a very slight one in the public good, and especially if their personal interests are opposed to public ones. Thus, whatever form of legislation is to be established in Canada, it would be well that His Majesty should be implored to employ as members of the legislature, only those taken from the class of the principal and larger proprietors in the matter of land, without paying any attention to the religion which they profess ; their differences of opinion in point of dogma will have | no influence on this object, it will never be anything but the interest they themselves have there, which will decide them. He should also be entreated to order that no law, ordinance, or regulation of any importance be passed, except at the time fixed for the general session of the legislative corps, and that in every case, the members of the corps should be assembled in large I enough numbers to insure that it will be the public good only that will I decide them.
And lastly, one point which deserves attention, and which ought to be I settled, is that, the French language being the general, and indepd almost 1 the only language used in Canada, it is obvious that no stranger, who goes there, having only his own interests at heart, can serve them well, except as he is thoroughly versed in this language, and obliged to make use of it continually in all the special matters which he has in hand ; that it is completely impossible taking into account the distance between the estab- lishments and dwellings throughout the country, ever to attempt to intro- duce the English language generally; for all these reasons, and others not| here specified, it is indispensable that the French language should be ordered to be the only one employed in everything which deals with, and shall be settled as a public business whether in the courts of justice or in the assembly of the legislative corps &c., for it would be a cruel thing to attempt to reduce unnecessarily almost all those interested in public affairs to the condition of never being acquainted henceforth with what shall be discussed or decided throughout the country.
ChARTIER Dli LOTBINIERE
both in his own name as well as in the name of the Canadians.
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QUERIES RE GOVERNMENT OF QUEBEC
Queries relative to the Government of Quebec for Consideration in case the Bill passes in its present shape.
Limits
The Line between Quebec and New York has not been continued further to the South West than Windmill Point, on Lake Champlain in Latitude 45.
Q. How is it to be settled with regard to these two Provinces between that station Point and the Boundary Line of Pennsylvania ?
General Government & Courts of Justice.
Q. What is to be the number of the Council ? In what Proportion are the Canadians to be admitted into that and other Offices, and under what Test?
Q. What Courts of Criminal and Civil Justice are to be established either generally for the Province at large, or separately for its subordinate Dependencies. Whether by Ordinances of the Legislative Council, by Commissions from the King, or by Commissions from the Governor ?
Who are to be the Puisne Judges in such Courts ? Are any, or if any, what number of Canadians to be appointed Judges ? and under what Qualifications.
Of what other Offices is the Civil Establishment for the Province of Quebec and for its I.^ependencies to consist, and how are they to be appointed and paid ?
Is the office of Provost Marshal to be revived, or are Sheriffs to be substituted in the place of it ?
If the latter is to take place, what compensation is to be made to the present Provost Marshal, or to any other Patent Officer, whose Office shall happen to be discontinued ?
In what manner is a Revenue to be established, and how appropriated & applied.
• Canadian Archives, M 385, p. 332. These "Queries" were evidently framed before the Bill had assumed its final form. The section with reference to "Limits" was provided for by the preamble in the Commons. The number of Councillors was fixed at not less than 17 nor more than 23. The number of Canadians to be admitted to the Council was not dealt with, but the oath to be taken by the Roman Catholic members was prescribed. The question of the revenue was dealt with in the Quebec Revenue Act which follows the Quebec Act; see p. S76. Most of the other matters under the head of "Religion, Government, and Courts of Justice," are left for future consideration, some of them being covered in the Instructions to the Governor. John Pownall, one of the Under Secretaries of State for the Colonies, in a note to Lord Dartmouth of July 17th, 1774, has the following paragraph. "Gen' Carleton is gone; he recommends himself to your Lordships protection & requests your attention to the few memorandums & to the list of Persons recommended for Councillors which I have the honour to enclose." M. 385, p. 425. In quite another place we come upon a few notes endorsed "Gen' Carleton's Memo- randa;" the chief item in which has reference to the subject of religion as indicated in these "Queries." "Gen' Carleton wishes that on the head of ecclesiastical arrangements, he may be left as much to himself as possible — he has no objection to having every idea and proposi- tion of Government in regard thereto suggested in his Instructions; but he disapproves the suppression of any religious Communities except the Jesuits, and begs he may be left at liberty to use his own discretion in this very delicate business." M 384, p. 329.
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Religion
What Provision is to be made for the Protestant Church in Canada ?
What number of Ministers are to be appointed, and with what Sti- pend ?
Where are they to reside, and are any of the Churches already estab- lished to be appropriated to the Use of the Protestants, or others to be erected ?
If the latter what Fund will there be to defray such Expences ?
Are all the Religious Orders and Communities of the Church of Rome, at present existing in Quebec, to be abolished ? or which, if any of them, are to be continued, & under what Restrictions or Regulations.
If any are to be abolished is the Suppression to take effect immediately, or are they to cease when the present members of such Communities are deceased, and what is to become of the Estates & Revenues of such of the religious orders and Communities as are to be discontinued.
Are the secular Clergy to have any Episcopal or Vicarial Superintend- ance over them ? If so, by what Authority, & under what Limitations and Restrictions is such Episcopal or vicarial Power to be established ?
Is the Patronage of vacant Benefices to be delegated to the Governor, or in what other manner exercised, or by whom enjoyed, and how are the Clergy to be appointed ?
Lastly, How are these and the many other essential Reforms and Regulations touching Ecclesiastical matters, and also the necessary arrange- ments- touching Commerce, Revenue, Courts of Justice, and other Civil Establishments to be provided for ? If by Ordinances of the Legislative Council, (which seems the most reasonable) ought not the Governor and Chief Justice to be directed immediately to prepare, with proper assistance. Drafts of such Bills as will be requisite for those Objects under the following general Heads. Vizt.
1. A Bill for establishing Courts o\ Justice, & regulating their Pro- ceedings.
2. A Bill for the better regulation of the Ecclesiastical Affairs of Quebec.
3. A Bill for regulating the Trade with the Indians, and preventing unlawful Settlements in the Interior Country.
4. A Bill for regulating the Fisheries on the Coast of Labrador.
5. A Bill for the more effectual Administration of Justice and Govern- ment in the several subordinate Districts in the interior Country.
570 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
THE QUEBEC ACT.i .
Anno Decimo Quarto
GEORGII III. REGIS.
Cap. LXXXIII.
An Act for making more effectual Provision for the Government of the Province of Quebec in North America. /
Preamble. Whereas His Majesty, by His Royal Proclamation, bearing
Date the Seventh Day of October, in the Third Year of His Reign, thought fit to declare the Provisions which had been made in respect to certain Countries, Territories, and Islands in America, ceded to His Majesty by the definitive Treaty of Peace, concluded at Paris on the Tenth Day of February, One thousand seven hundred and sixty-three : And whereas, by the Arrangements made by the said Royal Proclamation, a very large Extent of Country, within which there were several Colonies and Settlements of the Subjects of France, who claimed to remain therein under the Faith of the said Treaty, was left, without any Provision being made for the Administration of Civil Government therein ; and certain Parts of the Territory of Canada, where sedentary Fisheries had been established and carried on by the Subjects of France, Inhabitants of the said Province of Canada, under Grants and Concessions from the Government thereof, were annexed to the Government of Newfoundland, and thereby subjected to Regulations inconsistent with the Nature of such Fisheries : May it therefore please Your most Excellent 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 Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the S^isfands,"^ -^"t^^^^y °^ the same. That all the Territories, Islands, and ?i,nd . Countries in North America, belonging to the Crown of Great
Countries, in . . , r- . i t • r it-. r ^ ,
North Brttain, bounded on the South by a Lme from the Bay of Chaleurs,
betoiging to a'ong the High Lands which divide the Rivers that empty them- Bri%in Selves into the River Saint Lawrence from those which fall into the Sea, to a Point in Forty-five Degrees of Northern Latitude, on the Eastern Bank of the River Connecticut, keeping the same Latitude directly West, through the Lake Champlain, until, in the same Latitude, it meets the River Saint Lawrence ; from thence up the Eastern Bank of the said River to the Lake Ontario ; thence through the Lake Ontario, and the River com-
' The text of the Act is taken from the original folio black letter form in which it was first issued by the King's Printers. "London: Printed by Charles Eyre and WiUiam Strachan, Printers to the King's Most Excellent Majesty. MDCCLXXIV."
CONSTITUTIONAL DOCUMENTS 571
SESSIONAL PAPER No. 18
monly called Niagara ; and thence along by the Eastern and South-eastern Bank of Lake Erie, following the said Bank, until the same shall be intersected by the Northern Boundary, granted by the Charter of the Province of Pensylvania, in case the same shall be so intersected ; and from thence along the the said Northern and Western Boundaries of the said Province, until the said Western Boundary strike the Ohio : But in case the said Bank of the said Lake shall not be found to be so inter- sected, then following the said Bank until it shall arrive at that Point of the said Bank which shall be nearest to the North-western Angle of the said Province of Pennsylvania, and thence, by a right Line, to the said North-western Angle of the said Province ; and [thence along the Western Boundary of the said Province, , ri^n until it strike the River Ohio ; and along the Bank of the said River, Westward, to the Banks of the Mississippi, and North- ward to the Southern Boundary of the Territory granted to the Merchants Adventurers of England, trading to Hudson's Bay ; / and also all such Territories, Islands, and Countries, which have, since the Tenth of February, One thousand seven hundred and sixty-three, been made Part of the Government of Newfoundland, be, and they are hereby, during His Majesty's Pleasure, annexed thT^Provi'nce ^°' ^"^ made Part and Parcel of, the Province of Quebec, as of Quebec, created and established by the said Royal Proclamation of the Seventh of October, One thousand seven hundred and sixty- three. the^Bmrnd^r- Provided always, That nothing herein contained, relative
ies of any to the Boundary of the Province of Quebec, shall in anywise other Colonv ; „ , „ i • r ■ /-^ .
afreet the Boundaries of any other Colony.
Provided always, and be it enacted. That nothing in this vold^othCT''* Act contained shall extend, or be construed to extend, to make Rights for- void, or to vary or alter any Right, Title, or Possession, derived granted under any Grant, Conveyance, or otherwise howsoever, of or to any Lands within the said Province, or the Provinces thereto adjoining ; but that the same shall remain and be in Force, 4
and have Effect, as if this Act had never been made. vSlOTi"made ^"^ whereas the Provisions, made by the said Proclamation,
for the Prov- in respect to the Civil Government of the said Province of null and void Quebec, and the Powers and Authorities given to the Governor 17^5. "^ '' 3nd other Civil Officers of the said Province, by the Grants and Commissions issued in consequence thereof, have been found, upon Experience, to be inapplicable to the State and Circum- stances of the said Province, the Inhabitants whereof amounted, at the Conquest, to above Sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their
^72 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the First Establishment of the said Province of Canada; be it therefore further enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Pro- vince is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Adminis- tration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the First Day of May, One thousand seven hundred and seventy-five, of o'uiftf"'^ 'And, for the more perfect Security and Ease of the Minds may profess of the Inhabitants of the said Province, it is hereby declared,
the Romish t,, ,,.,,.,„, . ,
Religion, 1 hat His Majesty s Subjects, . professmg the Religion of the King's ° ^Church of Rome of and in the said Province of Quebec, may have, as'by Act^' ^°'<^' ^""^ enjoy, the free Exercise of the Religion of the Church of Eiiz; Rome, subject to the King's Supremacy /declared and established
by an Act, made in the First Year of the Reign of Queen Elizabeth, over all the Dominions and Countries which then did, or there- after should belong, to the Imperial Crown of this Realm ; Clergy enjoyjand that the Clergy of the said Church may hold, receive, and customed enjoy, their accustomed Dues and Rights, with respect to such Dues. Persons only as shall profess the said Religiony
m^yiimade Provided nevertheless. That it shall be lawful for His
by His Majesty, His Heirs or Successors, to make such Provision out
Majesty for
the Support of the rest of the said accustomed Dues and Rights, for the
Protestant Encouragement of the Protestant Religion, and for the Main- Clergy, tenance and Support of a Protestant Clergy within the said Pro- vince, as he or they shall, from Time to Time, think necessary and expedient. profeSh^g Provided always, and be it enacted. That no Person, pro- ^e Romish fessing the Religion of the Church of Rome, and residing in the obliged to said Province, shall be obliged to take the Oath required by the of I EUz.;^ said Statute passed in the First Year of the Reign of Queen Elizabeth, or any other Oaths substituted by any other Act in the Place thereof ; but that every such Person who, by the said Statute is required to take the Oath therein mentioned, shall be before the*^' obliged, and is hereby required, to take and subscribe the fol- Governor, lowing Oath before the Governor, or such other Person in such
&c., the /^ <■ • .
following Court of Record as His Majesty shall appoint, who are hereby authorized to administer the same ; videlicet, ^ * ■ I A. B. do sincerely promise and swear. That I will be faithful,
and bear true Allegiance to His Majesty King George, and him
CONSTITUTIONAL DOCUMENTS 573
SESSIONAL PAPER No. 18
will defend to the utmost of my Power, against all traiterous Con- spiracies, and Attempts whatsoever, which shall be made agaifist His Person, Crown, and Dignity; and I will do my utmost Endeavour to disclose and make known to His Majesty, His Heirs and Succes- sors, all Treasons, and traiterous Conspiracies, and Attempts, " which I shall know to be against Him, or any of Them ; and all
this I do swear without any Equivocation, mental Evasion, or secret Reservation, and renouncing all Pardons and Dispensations from any Power or Person whomsoever to the Contrary.
So Help Me GOD.
ftT^^^th?' ■^"'^ every such Person, who shall neglect or refuse to take
Oath to be the said Oath before mentioned, shall incur and be liable to the
Penalties by same Penalties, Forfeitures, Disabilities, and Incapacities, as he
■^^ "■ would have incurred and been liable to for neglecting or refusing
to take the Oath required by the said Statute passed in the
First Year of the Reign of Queen Elizabeth.
Can^llT^^ / And be it further enacted by the Authority aforesaid, That
Subjects all His Majesty's Canadian Subjects, within the Province of
Orders ex- Quebec, the religious Orders and Communities only excepted,
ho?d^aU their '"^V ^'*° ^°'*^ ^"^ enjoy their Property and Possessions, to-
Possessions^ gether with all Customs and Usages relative thereto, and all
other their Civil Rights, in as large, ample, and beneficial Manner,
as if the said Proclamation, Commissions, Ordinances, and other
Acts and Instruments, had not been made/ and as may consist
M^'tte f ^'^'^ their Allegiance to His Majesty, and Subjection to the
Controversy, Crown and Parliament of Great Britain ;/and that in all Matters
had to the of Controversy, relative to Property and Civil Rights, Resort
Canoda' for shall be had to the Laws of Canada, ks the Rule for the Decision
the Decision, of the same ; and all Causes that shall hereafter be instituted
in any of the Courts of Justice, to be appointed within and for
the said Province, by His Majesty, His Heirs and Successors,
shall, with respect to such Property and Rights, be determined
agreeably to the said Laws and Customs of Canada, until they
shall be varied or altered by any Ordinances that shall, from
Time to Time, be passed in the said Province by the Governor,
Lieutenant Governor, or Commander in Chief, for the Time
being, by and with the Advice and Consent of the Legislative
Council of the same, to be appointed in Manner herein-after
mentioned.
te°df ^ Provided always. That nothing in this Act contained shall ex-
I-ands tend, or be construed to extend, to anyLands that have been grant-
His Majesty ed by His Majesty, or shall hereafter be granted by His Majesty,
Socrage!"" H'^ Heirs and Successors, to be holden in free and common
Soccage.
574 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
Owners of Provided also, That it shall and may be lawful to and for
Goods may . . /-. r i ,^ /->
alienate the every Person that is Owner of any Lands, Goods, or Credits,
&^*^ ^ in the said Province, and that has a Right to alienate the said Lands, Goods, or Credits, in his or her Life-time, by Deed of Sale, Gift, or otherwise, to devise or bequeath the same at his or her Death, by his or her last Will and Testament; any Law,' Usage, or Custom, heretofore or now prevailing in the Province,
if executed ^^ jj^g Contrary hereof in any-wise notwithstanding; such Will
the Laws of being executed, either according to the Laws of Canada, or according to the Forms prescribed by the Laws of England.
Criminal Law | ^^^j whereas the Certainty and Lenity of the Criminal Law
of England to ■' •' ^
be continued of England, and the Benefits and Advantages resulting from the Provfnce. Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than Nine Years, during which it has been uniformly administered ; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be admin- istered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial ; and the Punishments and Forfeitures thereby inflicted to the Exclusion of every other Rule of Criminal Law, or Mode of Proceeding thereon, which did or might prevail in the said Province before the Year of our Lord One thousand seven hundred and sixty-four ; any Thing in this Act to the Contrary thereof in any Respect notwith- standing ; subject nevertheless to such Alterations and Amend- ments as the Governor, Lieutenant-governor, or Commander in Chief for the Time being, by and with the Advice and Consent of the legislative Council of the said Province, hereafter to be appointed, shall, from Time to Time, cause to be made therein, in Manner herein-after directed. His Majesty ^^^ whereas it may be necessary to ordain many Regulations
may appomt -' •' r , n •
a Council for for the future Welfare and good Government of the Province of the Province; Qwe&ec, the Occasions of which cannot now be foreseen, nor, without much Delay and Inconvenience, be provided for, without intrusting that Authority, for a certain Time, and under proper Restrictions, to Persons resident there : And whereas it is at present inexpedient to call an Assembly ; be it therefore enacted by the Authority aforesaid. That it shall and may be lawful for His Majesty, His Heirs and Successors, by Warrant under His or Their Signet or Sign Manual, and with the Advice of the Privy Council, to constitute and appoint a Council for the Affairs of the Province of Quebec, to consist of such Persons which resident there, not exceeding Twenty-three, nor less than Seven-
make teen, as His Majesty, His Heirs and Successors, shall be pleased
^th"con^nt to appoint ; and, upon the Death, Removal, or Absence of any
CONSTITUTIONAL DOCUMENTS
575
SESSIONAL PAPER No. 18
Governor °^ *^^ Members of the said Council, in like Manner to constitute and appoint such and so many other Person or Persons as shall be necessary to supply the Vacancy or Vacancies ; which Council, so appointed and nominated, or the major Part thereof, shall have Power and Authority to make Ordinances for the Peace, Welfare, and good Government, of the said Province, with the Consent of His Majesty's Governor, or, in his Absence, of the Lieutenant-governor, or Commander in Chief for the Time being.
Provided always, That nothing in this Act contained shall extend to authorise or impower the said legislative Council to lay any Taxes or Duties within the said Province, such Rates and Taxes only excepted as the Inhabitants of any Town or District within the said Province may be authorised by the said Council to assess, levy, and apply, within the said Town or District, for the Purpose of making Roads, erecting and repairing publick Buildings, or for any other Purpose respecting the local Convenience and Oeconomy of such Town or District.
Provided also, and be it enacted by the Authority aforesaid, That every Ordinance so to be made, shall, within Six Months, be transmitted by the Governor, or, in his Absence, by the
Approbation. Lieuj-enant-governor, or Commander in Chief for the Time being, and laid before His Majesty for His Royal Approbation ; and if His Majesty shall think fit to disallow thereof, the same shall cease and be void from the Time that His Majesty's Order in Council thereupon shall be promulgated at Quebec.
Provided also. That no Ordinance touching Religion, or by
The Council are not impowered to lay Taxes, Publick Roads or Buildings excepted.
Ordinances made to be laid before His Majesty for His
Majesty's Approba- tion.
When Ordinances are to be passed by a Majority.
Ordinances touching Religion not
without His which any Punishment may be inflicted greater than Fine or Imprisonment for Three Months, shall be of any Force or Effect, until the same shall have received His Majesty's Approbation.
Provided also. That no Ordinance shall be passed at any Meeting of the Council where less than a Majority of the whole Council is present, or at any Time except between the First Day of January and the First Day of May, unless upon some urgent Occasion, in which Case every Member thereof resident at Quebec, or within Fifty Miles thereof, shall be personally sum- moned by the Governor, or, in his Absence, by the Lieutenant- governor, or Commander in Chief for the Time being, to attend the same.
And be it further enacted by the Authority aforesaid. That nothing herein contained shall extend, or be construed to extend, to prevent or hinder His Majesty, His Heirs and Successors, by His or Their Letters Patent under the Great Seal of Great
Nothing to hinder His Majesty to constitute Courts of Criminal, Civil, and
^cciesiastica.1 Britain, hom erecting, constituting, and appointing, such Courts of
Jurisdiction. . . , ^. ., , J. , . . f V ■ ,• • • . • , r ,
Criminal, Civil, and Ecclesiastical Jurisdiction within and for the
vince.
576 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
said Province of Quebec, and appointing, from Time to Time, the Judges and Officers thereof, as His Majesty, His Heirs and Successors, shall think necessary and proper for. the Circum- stances of the said Province, meriy^made Provided always, and it is hereby enacted, That nothing
are hereby in-in this Act contained shall extend, or be construed to extend, the Pro- to repeal or make void, within the said Province of Quebec, any Act or Acts of the Parliament of Great Britain heretofore made, for prohibiting, restraining, or regulating, the Trade or Com- merce of His Majesty's Colonies and Plantations in America; but that all and every the said Acts, and also all Acts of Parlia- ment heretofore made concerning or respecting the said Colonies and Plantations, shall be, and are hereby declared to be, in Force, within the said Province of Quebec, and every Part there- of.
Finis.
QUEBEC REVENUE ACT.i
Anno Decimo Quarto
GEORGH HI. REGIS.
Cap. LXXXVHI.
An Act to establish a Fund towards further defraying the Charges of the Administration of Justice, and Support of the Civil Government within the Province of Quebec, in America.
Preamble. Whereas certain Duties were imposed, by the Authority
Ues'taDosed °^ ^^® most Christian Majesty, upon Wine, Rum, Brandy, by His most Eau de Vie de Liqueur, imported into the Province of Canada, Majesty now Called the Province of Quebec, and also a Duty of Three Brandy"™c. Pounds per Centum ad Valorem, upon all dry Goods imported imported into, and exported from, the said Province, which Duties sub-
into Quebec. . "^ .
sisted at the Time of the Surrender of the said Province to Your Majesty's Forces in the late War: And whereas it is expe- dient that the said Duties should cease and be discontinued; and that in Lieu and in Stead thereof, other Duties should be raised by the Authority of Parliament, for making a more adequate Provision for defraying the Charge of the Administra- tion of Justice, and the Support of Civil Government in the said Province : We, Your Majesty's most dutiful and loyal Subjects, the Commons of Great Britain, in Parliament assembled, do most
' The text of this, as also of the following Act, is taken from the original folio black letter form in which it was first issued by the King's Printers, Eyre and Strachan.
CONSTITUTIONAL DOCUMENTS - 577
SESSIONAL PAPER No. 18
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 Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by vnlitb^^"^^^ Authority of the same. That from and after the Fifth Day discontinued of April, One thousand seven hundred and seventy-five, all the Province. Duties which were imposed upon Rum, Brandy, Eau de Vie de Liqueur, within the said Province, and also of Three Pounds per Centum ad Valorem, on dried Goods imported into, or ex- ported from, the said Province, under the Authority of His most Christian Majesty, shall be, and are hereby discontinued ; and in stead ^jj^j jj^^j jj^ Lieu and in Stead thereof, there shall, from and
CI which the
following after the said Fifth Day of April, One thousand seven -hundred paid to His and seventy-five, be raised, levied, collected, and paid, unto Majesty. j^j^ ^^jesty. His Heirs and Successors, for and upon the respective Goods herein-after mentioned, which shall be imported or brought into any Part of the said Province, over and above all other Duties now payable in the said Province, by any Act or Acts of Parliament, the several Rates and Duties following ; that is to say, The Rates. Yor every Gallon of Brandy, or other Spirits, of the Manu-
facture of Great Britain, Three-pence.
For every Gallon of Rum, or other Spirits, which shall be imported or brought from any of His Majesty's Sugar Colonies in the West Indies, Sixpence.
For every Gallon of Rum, or other Spirits, which shall be imported or brought from any other of His Majesty's Colonies or Dominions in America, Nine-pence.
For every Gallon of Foreign Brandy, or other Spirits, of Foreign Manufacture, imported or brought from Great Britain, One Shilling.
For every Gallon of Rum, or Spirits, of the Produce or Manufacture of any of the Colonies or Plantations in America, not in the Possession or under the Dominion of His Majesty, imported from any other Place, except Great Britain, One Shil- ling.
For every Gallon of Molasses and Syrups, which shall be imported or brought into the said Province, in Ships or Vessels belonging to His Majesty's Subjects in Great Britain or Ireland, or to His Majesty's Subjects in the said Province, Three-pence. For every Gallon of Molasses and Syrups, which shall be imported or brought into the said Province, in any other Ships or Vessels, in which the same may be legally imported. Sixpence; and after those Rates for any greater or less Quantity of such Goods respectively.
578 - CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
dwrned -^"^ '^ '^ hereby further enacted by the Authority aforesaid,
Sterling That the said Rates and Duties, charged by this Act, shall be Great deemed, and are hereby declared to be. Sterling Money of Great
ritain; Britain, and shall be collected, recovered, and paid, to the Amount of the Value which such nominal Sums bear in Great Britain • and that such Monies may be received and taken according to the Proportion and Value of Five Shillings and Sixpence the Ounce in Silver ; and that the said Duties, herein-before granted, to be'ievied^*^ ^^^'' ^ raised, levied, collected, paid, and recovered, in the &e- same Manner and Form, and by such Rules, Ways, and Means,
and under such Penalties and Forfeitures, except in such Cases where any Alteration is made by this Act, as any other Duties payable to His Majesty upon Goods imported into any British Colony or Plantation in America are or shall be raised, levied, collected, paid, and recovered, by any Act or Acts of Parliament, as fully and effectually, to all Intents and Purposes, as if the several Clauses, Powers, Directions, Penalties, and Forfeitures, relating thereto, were particularly repeated and again enacted in the Body of this present Act ; and that all the Monies that shall arise by the said Duties, (except the necessary Charges of raising, collecting, levying, recovering, answering, paying, and accounting for the same,) shall be paid by the Collector of Lre^toX""^^^'^ Majesty's Customs, into the Hands of His Majesty's Receiver- paid, general in the said Province for the Time being, and shall be applied, in the first Place, in making a more certain and adequate Provision, towards defraying the Expences of the Adminis- tration of Justice, and of the Support of Civil Government, in the said Province ; and that the Lord High Treasurer, or Com- missioners of His Majesty's Treasury, or any Three or more of them for the Time being, shall be, and is or are hereby impowered, from Time to Time, by any Warrant or Warrants under his or be^appiied" their Hand or Hands, to cause such Money to be applied out of the said Produce of the said Duties, towards defraying the said Expences ; and that the Residue of the said Duties shall remain and be reserved in the Hands of the said Receiver- general, for the future Disposition of Parliament. %suiations ^j^^j j^. jg jjgreby further enacted by the Authority aforesaid, to Goods That if any Goods chargeable with any of the said Duties herein- the"province before mentioned shall be brought into the said Province by \Wti?the''^ Land Carriage, the same shall pass and be carried through the Duties before Port of Saint John's near the River Sorrel ; or if such Goods
mentioned. . • i i xt •
shall be brought mto the said Province by any inland Navi- gation, other than upon the River Saint Lawrence, the same shall pass and be carried upon the said River Sorrel, by the said Port, and shall be there entered with, and the said respective Rates
CONSTITUTIONAL DOCUMENTS 579
SESSIONAL PAPER No. 18
and Duties paid for the same, to such Officer or Officers of His Majesty's Customs as shall be there appointed for that Purpose ; and if any such Goods coming by Land Carriage or inland Navigation, as aforesaid, shall pass by or beyond the said Place, before named, without Entry or Payment of the said Rates and Duties, or shall be brought into any Part of the said Province, by or through any other Place whatsoever, the said Goods shall be forfeited; and every Person who shall be assisting, or other- wise concerned in the bringing or removing such Goods, or to whose Hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit Treble the Value of such Goods, to be estimated and computed according to the best Price that each respective Commodity bears in the Town of Quebec, at the Time such Offence shall be committed ; and all the Horses, Cattle, Boats, Vessels and other Carriages whatsoever, made use of in the Removal, Carriage, or Convey- ance of such Goods, shall also be forfeited and lost, and shall and may be seized by any Officer of His Majesty's Customs, and prosecuted, as herein-after mentioned. FoSuure^'' And it is hereby further enacted by the Authority aforesaid, where to be That the said Penalties and Forfeitures by this Act inflicted,
prosecuted , ,. . . r , .
for. etc. shall be sued for and prosecuted m any Court of Admiralty, or Vice Admiralty, having Jurisdiction within the said Province, and the same shall and may be recovered and divided in the same Manner and Form, and by the same Rules and Regulations, in all Respects, as other Penalties and Forfeitures for Offences against the Laws relating to the Customs and Trade of His Majesty's Colonies in America shall or may, by any Act or Acts of Parliament be sued for, prosecuted, recovered, and divided.
krepingT" ''^"^ ^ ^^ further enacted by the Authority aforesaid. That
"°"?e of there shall, from and after the Fifth Day of April, One thousand Entertain- seven hundred and seventy-five, be raised, levied, collected, and £M68.°fOTa paid, unto His Majesty's Receiver-general of the said Province, Licence. [q^ j^hg Use of His Majesty, His Heirs and Successors, a Duty of One Pound Sixteen Shillings, Sterling Money of Gre.al Britain, for every Licence that shall be granted by the Governor, Lieut- enant Governor, or Commander in Chief of the said Province, to any Person or Persons for keeping a House or any other £iofo'r^every P'^ce of publick Entertainment, or for the retailing Wine, oflFcnce. Brandy, Rum, or any other Spirituous Liquors, within the said Province ; and any Person keeping any such House or Place of Entertainment, or retailing any such Liquors without such Licence, shall forfeit and pay the Sum of Ten Pounds for every such Offence, upon Conviction thereof ; One Moiety to such Person as shall inform or prosecute for the same, and the other
580 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Moiety shall be paid into the Hands of the Receiver-general of
the Province, for the Use of His Majesty. TOWFrencfc* Provided always, That nothing herein contained shall
Revenues, extend, or be construed to extend, to discontinue, determine,
etc, reserved
at the or make void, any Part of the territorial or casual Revenues,
onquest. pjnes. Rents, or Profits whatsoever, which were reserved to, and
belonged to. His most Christian Majesty, before and at the
Time of the Conquest and Surrender thereof to His Majesty the
King of Great Britain ; but that the same, and every of them,
shall remain and be continued to be levied, collected, and paid,
in the same Manner as if this Act had never been made ; any
Thing therein contained to the Contrary notwithstanding.
In Suits And be it further enacted by the Authority aforesaid. That
brought pur- . r- ■ , ti i i • n
suant to this if any Action or Suit shall be commenced against any Person
^'^'' or Persons for any Thing done in pursuance of this Act, and if it
shall appear to the Court or Judge where or before whom the
same shall be tried, that such Action or Suit is brought for any
Thing that was done in pursuance of and by the Authority
of this Act, the Defendant or Defendants shall be indemnified
and acquitted for the same ; and if such Defendant or Defend-
Defendants ^jj^g shall be SO acquitted ; or if the Plaintiff shall discontinue
Treble such Action or Suit, such Court or Judge shall award to the
°"*' Defendant or Defendants Treble Costs.
Finis.
Anno Decimo Quinto
GEORGH HI. REGIS.
Cap. XL.
An Act for amending and explaining an Act, passed in the Fourteenth Year of His Majesty's Reign, intituled, An Act to establish a Fund towards further defraying the Charges of the Administration of Justice, and Support of the Civil Government within the Province of Quebec, in America.
Preamble. WHEREAS by an Act, passed in the Fourteenth Year of His
Clause in Majesty's Reign, (intituled. An Act to establish a Fund towards ^fLtJdittA. further defraying the Charges of the Administration of Justice, and Support of the Civil Government within the Province of Quebec, in America,) it is, amongst other Things, enacted, That if any Goods, chargeable with any of the Duties in the said Act mentioned, shall be brought into the said Province by Land Carriage, the same shall pass and be carried through the Port of Saint John's, near the River Sorrel ; or if such Goods shall be brought into the said Province by any Inland Navigation, other than upon the River Saint Lawrence the same shall pass
CONSTITUTIONAL DOCUMENTS 581
SESSIONAL PAPER No. 18
and be carried upon the said River Sorrel by the said Port, and shall be there entered with and the said respective Rates and Duties paid for the same, to such Officer or Officers of His Majesty's Customs as shall be there appointed for that Purpose ; and if any such Goods coming by Land Carriage or Inland Naviga- tion as aforesaid, shall pass by or beyond the said Place before nam- ed without Entry or Payment of the said Rates and Duties, or shall be brought into any Part of the said Province by or through any other Place whatsoever, the said Goods shall be forfeited; and every Person who shall be assisting, or otherwise concerned, in the bringing or removing such Goods, or to whose Hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit Treble the Value of such Goods ; to be estimated and computed according to the best Price that each respective Commodity bears in the Town of Quebec at the Time such Offence shall be committed ; and all the Horses, Cattle, Boats, Vessels, and other Carriages whatsoever, made use of in the Removal, Carriage, or Conveyance of such Goods, shall be forfeited and lost, and shall and may be seized by any Officer of His Majesty's Customs, and prosecuted as therein- after mentioned: And whereas there is Reason to apprehend, that the Regulations and Restrictions contained in the said herein-before recited Clause, so far as they relate to the bringing of Rum, Brandy, or other Spirits, into the Province of Quebec by Land Carriage, may, without further Explanation, operate to the Prejudice and Disadvantage of the Commerce carried on with the Indians in the upper or interior Parts of the said Province, we. Your Majesty's most dutiful and loyal Subjects, the Com- mons of Great Britain, in Parliament assembled, do most humbly beseech Your Majesty that it may be enacted ; and be it enacted by the King's most Excellent Majesty, by and with the Advice HisMajeaty's^nd Consent of the Lords Spiritual and Temporal, and Commons, brin ^b""^'' '" ^'^'^ present Parliament assembled, and by the Authority Land or In- of the same. That it shall and may be lawful to and for all His tion. in^to^* Majesty's Subjects freely to bring, carry or convey, by Land Qaeftec^not*^ Carriage, or Inland Navigation, into any Parts of the Province heretofore of Quebec, not heretofore comprehended within the Limits ed in the thereof by His Majesty's Royal Proclamation of the Seventh of Ptociama- October, One thousand seven hundred and sixty-three, any 7°"763 'n' Q"3ntity of Rum, Brandy, or other Spirits, any Thing contained Quantity of in the before-recited Act of Parliament to the contrary thereof
Rum. Bran- . . , ,.
dy, etc. m any-wise notwithstandmg.
Finis. END OF PART I.
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UNIVERSITY OF TORONTO LIBRARY
JL Canada. Public Archives J^ Documents relating to the
Vqi« constitutional history of
1918 Canada. 2d and rev. ed.
pt.l cop. 2