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3dly To constitute a Governor and Council at Quebec with Power to make Laws and Ordinances under such restrictions as shall be thought necessary.

4thly To erect proper Courts of Judicature.

The nearer such Courts are to the Old ones in Form, the more agreable 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. 6thly To abolish the use of the Torture & the Punishment of breaking upon the Wheel.

7thly To allow the Inhabitants the Privilege of the Common Law Writ of Habeas Corpus.

8thy 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 Administration 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.

10th Every Protestant Parishioner to pay his Tythes to the King's Officer towards providing a Maintenance for the Protestant Clergy.

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 estab lishing 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 determination 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.

6-7 EDWARD VII., A. 1907

FIRST DRAUGHT OF QUEBEC BILL.1

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 Proclamation bearing Date at St. James's the 7th 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 Province 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 Que' ec 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 people & 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, & that all Laws Statutes & Ordinances to be made under the Authority hereof, shall be so made & passed in ye sd 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 approbation 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

1 Canadian Archives, Dartmouth Papers, M 383, p. 51. This draught is evidently the work of SolGen. 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's Report as it may be expedient to establish by Act of Parliament. See p. 302. 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 political.

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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.1

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.

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

1 Canadian Archives, 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 following letter from Wedderburn to Dartmouth, dated March 2nd, 1774. "My Dear Lord I have 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 offences 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 agreable 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.) This 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 Wedderburn and Hey, and which was substituted in the third draught for the clause to which Wedderburn 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. 395.

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 passed.

6-7 EDWARD VII., A. 1907 Great Britain, and might alter the Laws and Constitution of the said Province in such manner as He should think most agreable 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, They should, with the advice and consent of the Members of His Majesty's Council, Summon and call General Assemblies within the said Governments 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 Realin 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 restrictions 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 amongst 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 exercise 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 Assembly should be called And also whether the Legislative Ordinances issued by the Governor and Council under the Kings Authority since the Proclamation were valid or void and by reason of such Doubts great

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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 Construction 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 Constitution 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 Ordinances 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 relative to the Civil Government and Administration 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

2

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 allegiance to His Majesty and subjection to the Crown and Parliament of Great Britain."

And Whereas the Abolition of the use of the torture and of those severe punishvide ments to which the Inhabitants of Canada were formerly exposed and the Clause A. 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 on the said 13th September 1759 the Offender was liable to suffer the

1 These marks have no references 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. See p. 381.

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.

3 Wedderburn, in his letter to Dartmouth, cited in note 1, p. 377, 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 declared that His Majesty's subjects in Canada shall enjoy their Laws and Customs as beneficially 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 included 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 him.' M 384, p. 253.

This refers to the new clause drawn by Wedderburn and Hey, as indicated in note 1, p 377, which was substituted for this section in the third draught, and which provided for the complete retention of the eriminal law of England. See third draught, p. 384.