6-7 EDWARD VII., A. 1907 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 ordinances 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 transmitted by gov etnor Carlton of the Canadian born officers who served in the last war, who are in a particular manner cantoned in Touraine *, and supported by the French government, with an increase of pay and all arrears.'

With respect to a military system, nothing can more effectually suppress 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 the 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 cut down the tree, to gather the fruit.

Hitherto the province † 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 offensively 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 Missteppi, to command the commerce and force of the whole interior of the vast American 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.

I Canada should be recovered by France in a future period, by the mere want of wesdom 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. Hut now under proper regulations this country may be productive of the greatest commorial advantages to Great Britain. The West India islands, and the East Indies are the graven of its best seamen; the northern American navigation and its fisheries are the nur serion of them; and Canada may become the source of an infinite supply to this watron both of men and of naval stores.

It is an object of great consideration to your Majesty's government, that the returns to treat Britani are all made in raw materials to be manufactured here; and that a you adorable 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, which it may be judged necessary to form the outlines upon the grounds of proba butory The additions must be left to time, to experiment, and expediencies, as they Nellaria, and to that Providence which holds the scale of empires.

At Cul Carlton's letter to the Earl of Shelburn. Dated Nov. 25, 1767. Inclosure, Appendix, No.

4

Philosophique, ibid. p. 148. Tous les objets ne produisoient au fix en 1747, qu'un revenue cocooodsamte mulle deux cens livres,

Lea despenses annuelles du gouvernment pour le Canada après l'epoque de 1749, n'eurent ko po indore mois de l'an 1760 conterent treize millions cinque cens mille livres. Des ces sommes wil etoit du a la paix quatre vingt millions.

Tton to Shelburne, Nov, 25th, 1767 p. 196.

SESSIONAL PAPER No. 18

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 commission'. 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 could 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 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 representative 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, that 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 authority, to have actually executed his commission with respect to convening an assembly; that the members were actually chose, except at Quebec.2 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 17.3 They propose to admit a number of the new subjects into the council. They would enlarge it from twelve members to fifteen; five to be Roman catholic subjects, to be exempted

Printed collection, p. 25, 96.

1 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. 243. The second is to Governor Murray's Commission. See above p. 128. 2 See note p. 317.

3 See Report from the Lords Commissioners for Trade and Plantations relative to the State of the Province of Quebec; July 10th, 1769, p. 267.

18-3-21

6-7 EDWARD VII., A. 1907 from subscribing the declaration 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 I 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, preeminence, 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 indiscriminately to take the orths of allegiance, supremacy, 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 absolve all persons and things in heaven above, on the earth beneath, and in the state of the dead below.

As it is stated by the board of trade p. 10. The test is to be subscribed by all persons having places of trust, and so required by your Majesty's commission to the gov ernor. By the test act the sacrament is to be taken by them within the realm of England. Although Canada is united to the crown of Great Britain, and consequently to the realm, by the terms of cession, yet I understand that the salvo among the Canadians for the oath of supremacy is, within this realm? Canada is not this realm, in the view of 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 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 removed; for by the last regulation of the courts of common-pleas, by the ordinance of February* 1770, 2(which repeals a part of the great ordinance of 17th September 1764) it is directed, that the courts of common*This ordinance, which was not in the papers referred, makes the propositions of the solicitor-general on this head in great measure unnecessary.

SESSIONAL PAPER No. 18

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 authorised 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 mitters 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 whatsoever. Every Friday to be a fired 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 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 commerce, and consequently more specie circulating in it, which is the representative, 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 introduced 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 the reference is there left to the will of the parties, and of course that act is seldom made use of, nor is it very natural that the practisers should recommend it; and therefore I propose, that parties, in cases of certain value, should be obliged to name arbitrators.

As the English judges may not happen to be expert in the French language and law terms, it may be adviseable to give to laymen, persons of good character and under

Art. vi. No. 8. of the Appendix to the report of the lords commissioners of trade and plantations relative to the state and conditon of the province.

See p. 174. 18-3-211

6-7 EDWARD VII., A. 1907 standing among the ancient inhabitants of Canada, commissions to be assessors, but not to have voices.

Whether grand juries, or petty juries, shall be laid aside; or whether in criminal; or civil causes only; or whether verdicts shall be an open majority, or whether all verdicts shall be special in civil cases, (as the latter is proposed 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 consideration, 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 inconsequential, and the other too miserable, in point of property, to merit any distinction 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.

If arrests should be allowed, it seems highly necessary that imprisonments 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 legis lature 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 February, 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 extremely 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.