6-7 EDWARD VII., A. 1907 And whereas an inferior Court of Judicature, or Court of Common-Pleas,1 is also honghs necessary and convenient, It is further Ordained and Declared, by the Authority and That an inferior Court of Judicature, or Court of Common-Pleas, is hereelated, with Power and Authority, to determine all Property above the Ten Pounds, with a Liberty of Appeal to either Party, to the Superior Court, se Court of King's Bench, where the Matter in Contest is of the Value of Twenty and upwards. A.. 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 Quebec, at the same ne with the Superior Court, or Court of King's-Bench. Where the Matter in Contest this Court is above the Value of Three Hundred Pounds Sterling, either Party may they shall think proper) appeal to the Governor and Council immediately, and from e Governor and Council an Appeal lies to the King and Council, where the Matter 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 evertheless to the Laws of England, as far as the Circumstances and present Situation 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 we first Day of October, One Thousand Seven Hundred and Sixty-four. The first Process of this Court to be an Attachment against the Body. 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 Districts every three Months, and also to hear and determine all Causes and Matters of Property which shall be above the Sum of Ten Pounds, and not exceeding Thirty Pounds current Money of Quebec, with Liberty of Appeal to either Party to the Superior Court, or Court of King's-Bench: And it is hereby Ordered, That the aforesaid Justices of the Peace do issue their Warrants, directed to the Captains and other Officers of the Militia in this Province, to be by them executed, until the Provost-Marshal, legally authorised 1 Governor Murray's observation: "The Court of Common Pleas is only for the Canadians; not to wimit 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 the ship might escape, Chance might drive her into some hospitable Harbour, but the poor Canadians could never shun the Attempts of designing Men, and the Voracity of hungry Practitioners in the Law; they must be undone during the First Months of their Ignorance; if any escaped, their Affections West 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 we have admitted the Canadians on Juries; the Reason is evident, their own Consequence is bearby bounded. But the Practitioners in the English Law have probably put them out of Humour with Court of Common Pleas (which they are pleased to call unconstitutional :) Ibid. p. 503. Governor Murray's observation:- We thought it reasonable and necessary to allow Canadian and Proctors to practice in this Court of Common Pleas only (for they are not admitted in the gene Gearty because we have not yet got one English Barrister or Attorney who understands the French Ibid. p. 504. See also, in connection with this and the previous note, Murray's letter to the Trade, Oct. 29th, 1764, p. 167 and the petition of the Quebec Traders to the King, p. 168 SESSIONAL PAPER No. 18 by His Majesty, shall arrive, and other inferior Officers be appointed for that Purpose; all Officers, Civil and Military, or other His Majesty's loving Subjects, are hereby commanded and required to be aiding and assisting to the said Justices and Officers of Militia in the due Execution of their Duty. And it is further Ordered and Directed, by the Authority aforesaid, That two of the said Justices of the Peace do sit 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. And whereas there are not at present a sufficient Number of Protestant Subjects, resident in the intended District of Trois-Rivieres, qualified to be Justices of the Peace, and to hold Quarter-Sessions, It is therefore further Ordained and Declared, by the Authority aforesaid, That from henceforth this Province shall be divided into two Districts, to be known and called by the Names of Quebec and Montreal, for the Time being, and until there may be a competent Number of Persons settled at or near TroisRivieres, duly qualified to execute the Office of Justices of the Peace, and the Power of holding such Quarter-Sessions above-mentioned, or until His Majesty's Pleasure be known in that Behalf; and that the said two Districts be divided and bounded by the River Godfroy on the South, and by the River St. Maurice on the North Side. And whereas it is thought very expedient and necessary, for the speedy and due Execution of the Laws, and for the Ease and Safety of His Majesty's Subjects, That a sufficient Number of inferior Officers should be appointed in every Parish throughout this Province; It is therefore Ordered, by the Authority aforesaid, That the Majority of the Householders, in each and every Parish, do, on the Twenty-fourth Day of June, in every Year, elect and return to the Deputy-Secretary, within fourteen Days after such Election, six good and sufficient Men to serve as Bailiffs1 and Sub-Bailiffs in each Parish, out of which Number the King's Governor, or Commander in Chief for the Time being, with the Consent of the Council, is to nominate and appoint the Persons who are to act as Bailiffs and Sub-Bailiffs in each Parish; and such Nomination or Appointment is to be notified by the Deputy-Secretary to the respective Parishes, and also published in the QUEBEC-GAZETTE, some Time in the last Week in August in every Year; and the said Bailiffs and Sub-Bailiffs, so nominated as aforesaid, are to enter upon, and begin to execute their respective Offices on the Twenty-ninth Day of September in every Year. No Person to be elected a second Time to the same Office, except the whole Parish has served round, or that those who have not, are laid aside for some material Objection, which must be supported by Proof: But that there may never be an entire Set of new Officers at one Time, but that those who remain may be able to instruct those who enter into Office, one of those Persons who served as Sub-Bailiffs in each Parish, to be elected and nominated Bailiffs of said Parish the ensuing Year. If a Bailiff dies in his Office, the Governor, or Commander in Chief, will nominate one of those returned by said Parish to serve as Sub-Bailiffs for the Remainder of the Year; and when a Sub-Bailiff happens to die in Office, the Bailiffs shall assemble the Parish upon the next publick Feast Day insuing his Decease, who shall proceed to elect 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 1 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. 6-7 EDWARD VII., A. 1907 them through their respective Parishes, and convey them to such Prisons or Places as the Writ or Warrant shall direct: They are also to examine all Bodies that are exposed, and on whom any Marks of Violence appear, in Presence of five reputable Householders of the same Parish, whom he is hereby impowered to summons to inspect the same, and report in Writing the State and Circumstances thereof to the next Magistrate, that a further Examination may be made therein if necessary; but this to be done only where the Coroner cannot by any Possibility attend, which in this extensive Province may frequently happen. Where any Disputes happen concerning the Breaking or Repairing of Fences, upon Complaint made to the Bailiff, he shall summons the Defendant, who is to choose three indifferent Persons, and the Plaintiff three more, and these six, the Bailiff presiding, to decide the Dispute; from their Sentence either Party may appeal to the QuarterSessions; the Person found in Fault to pay One Shilling and no more, to the Person who shall draw up the Decision. These Bailiffs to be sworn into their Office by the next Justice of the Peace, as soon as may be after their Nomination as aforesaid, and the said Oath to be returned to the next Quarter Sessions by such Justice, GIVEN by His Excellency the Honorable JAMES MURRAY, Esq; CaptainGeneral and Governor in Chief of the Province of QUEBEC, and Territories thereon drvending in America, Vice Admiral of the same, Governor of the Town of Quebec, Colonel Command int of the Second Battalion of the Royal American Regiment, &c. &c. In Counes', at Quebec, the 17th of September, Anno, Domini, 1764, and in the Fourth 1 an on the Rign of our Sovereign L. #1 GEORGE the IU, by the Grace of GoD of Great Britain, France, and Ireland, KING, Defender of the Faith, &c. &c. My Los Wren the Commission His Meesty had been gratiously pleased to honor we with as Governor of this Povince arver at genee. The Gentlemen who had enaced as lieg Governors of Montreal and Tres Riceres chose Still to Continde so ip der Miray Ceactys and doc ared I could have no Command over the I respective Postca w I bave for my Roval M hmast ever make me ment & not his officers, iontestable, and indeed A: The suze efore the ComCzy Minary Commission, * C s of the Letters which befies your Lordship: And as I Ay Authority. I should be # the Incraventeneys to la ven from sath & Step. anon Chetzend Province estan: Subjects SESSIONAL PAPER No. 18 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 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 Satisfaction 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 necessaryly 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 Complements, and receive from me the Parole; I doe not even desire to interfere with the Economy 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 Satisfaction of His Royal Sovereigns.1 I have the honor to be with the utmost Truth and Regard My Lord, To the Right Honble The Earl of Hallifax faithfull humble Servant JA: MURRAY PRESENTMENTS OF THE GRAND JURY OF QUEBEC.2 Presentments of Oct' Sessions made at a Continuance thereof by Adjournment held at the Sessions house in the City of Quebec the 16th Oct 1764 by the Grand Jury in, and for the said District represent. 1. That the Great Number of inferior Courts establish'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 disagreeable necessity of appeals and of course of many exorbitant fees. In another letter to Halifax, Oct. 30, 1764, complaining of the 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 been instructed not to interfere in civil affairs. See Canadian Archives vol. Q 2, pp. 337 & 342. 2 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. 17, 1764. 6-7 EDWARD VII., A. 1907 24 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£ Sterls are left finally to the decision of the Justices of the Peace, and for the easy and speedy dispatch 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 the 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 &c 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 Grievances 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 ne cessary. 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 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. 11. An Ordinance' pass'd by the Gov in Council confirming and rendring valid all Decrees of the different military Councils erected in this province 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 province2 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 1 For this ordinance see "Ordinances, Made for the Province of Quebec, by the Governor and Council &c. Que., 1767." p. 16. 2 This is the Ordinance of Sept. 17, 1764, given at p. 149. |