6-7 EDWARD VII., A. 1907 the return of Genl. Murray, no Gov' or locum tenens, or any of your Maty's law officers, 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 20th Augt. 1766—1 Vizt, "all that to me seems wanting at present is a permanency to the inferior Courts and a more ample authority for the Judges of it to adhere to the Coutumes de Pais a defect if its 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 Information, 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 Quebe: (if any such 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 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 humbly 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. 66 1st Whether any and what defects are now subsisting in the present state of Judicature." 24" Whether the Canadians in particular are, or think themselves aggrieved 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 Amend ments for the clearer apprehension 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. *The words in parenthesis seem to be a repetition. 1 See p. 187. SESSIONAL PAPER No. 18 SHELBURNE TO CARLETON.1 WHITEHALL Dec. 17. 1767. GOVERNOR OF QUEBEC. Sir, His Majesty having been pleased to order that I should give the necessary directions for carrying into execution the intentions of an order of His Majesty's Council (which I have already transmitted to you) dated the 28th 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 Justice & Attorney Genl. of Quebec, together with Maurice Morgan3 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, & Assistance 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.5 QUEBEC 24th 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 Migratiom 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 Customs were widely Different from those of England, but founded on natural Justice and Equity, as well as these; That their Honors, 1 Canadian Archives, Q 4. p. 325. 2 See p. 199. 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 for 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. 228. Canadian Archives, Q5-1, p. 316. 6-7 EDWARD VII., A. 1907 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 overturned, 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 praticed by any Conqueror, 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 agreable 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 Discontent 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 ago 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 and Attorney General to give me their Opinion upon the Mode at present in Practice; This I thought absolutely necessary, to shew the true state of these Matters, Holding it of Great Importance to the King's Service, that all cause of great or general Discontent should be removed and prevented. A few Disputes have already appeared, where the English Law gives to one, what by the Canadian Law would belong to another; A Case of this Sort, not easy to deter mine, 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 Revolution 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 Chicanery 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 SESSIONAL PAPER No. 18 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 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 Corrup tion, 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 indispensably 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 Administration 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 inclosed 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, least the Economy, necessary at Home, might be an Objection to the Arrangements essential to the King's Service, and the Interests of Great Britain I am with much Respect and Esteem The Earl of Shelburne One of Secretaries of State Your Lordship's The Ordinance of 17th Sept. 1764. See p. 149. 2 Wm. Hey and Francis Maseres. * The reference is to Carleton's letter to the Treasury, Dec. 10th, 1767, 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 he tables. 6-7 EDWARD VII., A. 1907 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 17th 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 agreable 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 Inheri tance 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 Expectations Founded thereon, would be attended with innumerable Hardships and Inconveniences to the Inhabitants thereof, and produce a general Confusion. 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 Consent of the Council of the same, that all 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 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 whatso ever 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 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, 1 Canadian Archives, Q 5-1, p. 323. |