6-7 EDWARD Vil., A. 1907 OPINION OF GEO. ALLSOPP.1 Mr Allsopp's Opinion is that it would be for the Advantage and benefit of the Province to advise the Governor. That an Ordinance be framed and passed in Conformity to His Majesty's Royal Additional Instruction bearing date at St James's the 16th day of July 1779, with a Saving Clause to the following purport; That neither the Chief Justice nor any other Judge of the Courts of Appeals or Common Pleas, shall have two Voices or a preponderating Voice in any of the said Courts, there appearing by this New Regulation to be Intended Eight Judges in the Court of Appeals and four in each of the Courts of Common Pleas; and therefore to remedy the Inconvenience of an Equal division of Voices, Let it be Enacted, That when the Voices shall be Equal in the Court of Common Pleas, The Eldest Member of the Council, not being one of the Judges of the said Courts, shall be added to the Judges so divided in Opinion, and the Cause reheard-And when it shall so happen that the Voices in the Court of Appeals shall be also Equally divided, That there be added to the Number of Judges in that Court, the Eldest Member of the Council, not being a Judge of either of the Courts of Common Pleas, nor having before sat on the Cause. and the Cause reheard. M' Pownall's Answer to Col' Caldwell's Motion relative to the King's Instructions. In Council With respect to the regulations proposed in His Majesty's Instruction being carried into immediate Execution, being to the Advantage and benefit of the Province, I think in the present unsettled & disturb'd Situation of the Province it would not. Quebec Feb 13th 1780. With regard to its being the means of administering more Speedy & Effectual Justice. In this point I confess myself both diffident & hardly able to form my Judgement, but I have so great respect and so high an Opinion of the wise & deliberate consideration under which these regulations have been formed, before recommended to this Council, and I am sensible of the want of some regulation in one of the Courts of Law of this Province, that I recommend as the best advice my Judgement is able to form: that the Consideration and formation of the Ordinance recommended be put off 'till the next Year or some time of more tranquility & regularity. Indorsed. (Signed) Copy GEO: POWNALL. M' Pownall's Answer To the Question put relative to the King's Instructions. 1 Canadian Archives, Q 17-1, p. 307. Geo. Allsopp was one of the original British settlers in the Province of Quebec, and took a prominent part in maintaining the rights claimed by that element, includ ing the rights of the civil as against the military authority. In 1768 he was appointed by Carleton a Deputy Secretary, Registrar, and Clerk of the Council. When, in 1775, Mr. Geo. Pownall was appointed Secretary and Registrar, Allsopp lost his office, but was shortly afterwards appointed a member of the Legislative Council. In Haldimand's time he was a merchant of Quebec. 2 Canadian Archives, Q 17-1, p. 309. Geo. Pownall came out with Chief Justice Hey in 1775, having been appointed by Dartmouth as Clerk and Registrar of the Legislative Council of Quebec. Following Pownall's opinion came that of Win. Grant of St. Roc, which was somewhat lengthy, but the substance of which was as follows :-He points out that by the Quebec Act the power of erecting courts SESSIONAL PAPER No. 18 OPINION OF LEGISLATIVE COUNCIL ON THE INSTRUCTION OF JULY, 1779.1 To His Excellency Frederick The Address of the Legislative Council in Council assembled. The Legislative Council having taken into Consideration His Majesty's Royal Instruction of 16th of July 1779, and being of opinion that the passing an Ordinance in Conformity thereto, would neither tend to the good of the People of this Province nor to a Speedier or more impartial Administration of Justice, begs leave to Communicate to Your Excellency the reasons upon which that Opinion is founded. The present Ordinances Establishing Courts for the Administration of Justice, were framed and prepared from, and are agreeable to His Majesty's 14th & 15th Instructions* to the Governor of this Province, as far as the Local Circumstances thereof would permit, and have been found to answer the good purposes for which they were Intended, Whereas the Change proposed of the same person presiding in the Court of Appeals and giving a Voice there in Causes which he had already decided in the inferior Court, would undoubtedly lessen that Confidence which the People ought to have in the impartial Administration of Justice, and which is so necessary to the Peace and Tranquility of Society It is likewise to be Observed that in the Quebec Bill all Causes relative to Civil Rights and property, instituted in the Courts of Justice in this Province, are to be determined agreeable to the Laws & Customs of Canada, of which Laws & Customs the Judges who at present preside in the Courts of Common Pleas for the Districts of Quebec and Montreal have had fifteen Years Experience & Study. Upon the Establishment of Civil Government in the Year 1764, the Governor and Council adopted the Mode of terms & for several Years that Mode was followed, when in the Year 1770 it was laid aside as having been found not adapted for this Province." The People had been accustomed to Weekly Courts & in a small Country, such as this is, terms were too conspicuously made use of, for the purpose of procrastination & delay in the decision of Causes not to have given Dissatisfaction- The having four Terms at Quebec and only two at Montreal, which is by far the most populous and most Commercial of the Districts, is an additional Objection to that Mode proposed by the Instruction. For these Reasons and after the most Serious & deliberate Consideration of the Expediency of such Regulation being put in force, our respect and Attention to the Rights of the Crown & our Earnest wish for the Welfare of His Majesty's Government, of which Your Excellency, we hope, is sensible, oblige us to the necessity, tho' with the greatest respect to the high Authority, by whom the Measure has been recommended, to differ so far in Opinion. and appointing judges is vested solely in His Majesty, and in the Instruction referred to, His Majesty appoints that an Ordinance be framed by the Council to amend the Ordinance now in force relative to the Courts of Civil and Criminal Jurisdiction. The Court appointed may not be ideally good, but it is better than the one now existing and more in accordance with the British Constitution. A court with judges who know the law is better than one with judges who have only common sense. He then specifies certain features which are not very good and gives it as his opinion that there should be four terms in the year for Montreal as well as for Quebec. See Q 17-1, p. 311. 1 Canadian Archives, Q 17-1, p. 302. This expresses the opinion of the majority of the Council. The original form of this address cast a slur upon the Chief Justice, and, by implication, upon the Board of Trade, hence Haldimand referred it back for amendment. See Q 17-2, p. 393. 2 See p. 477. 3 See pp. 464-472. 4 See p. 423. 5 See Ordinance of 1764, p. 149. 6 See Ordinance of 1770, p. 280. 18-3-31 6-7 EDWARD VII., A. 1907 We have further to aid that the Plan by which we have regulated our Conduct. as the Legislative Counci., has been to pursue the Measures, which appeared to us the bear Calculated to Secure the Province to His Majesty and to keep it dependent on Great Britain, We are Sensible that sme Alterations may & ought to be made in the Laws and Customs of Canada, Bat we apprebend, that in the present Critical State of the British Empire in America, Innovations in the Province might be improper-Ani it is with regret we find Ourselves Oblized by our Duty to the King, to mention to Your Excelency the Bad Efects which the Reports, circulated Every Summer Changes to be made in the Mode of administring the Affairs of the Province have upca bis rice. They disquiet the minds of the People and furnish plausible pretences to the Emisanes of the revoited Colonies and the other Enemies of the State, to insinuate that nothing is permanent under a British Government; and the Quebec Act, the resu: of the generous and tolerating Spirit, which distinguishes an Enlightened Age and Nation, was the Effect of an Interested Policy, and would be repealed, as soon as the Eads for which it was made were Efected. The Minutes of the Proceedings of the Legislative Council with the Ordin ances which have been passed and to which my assent has been given, are transmitted in the Danae Frigate, no safe opportunity having presented itself during the course of the Summer - This letter will necessarily be a long one, I have now been up wards of Two Years in the Province and in some respect qualified to give your Lordship an account of the real state of Persons and things. It may be the means of rendering my correspondence with regard to the Civil Affairs of the Province less Prolix for th future. I have frequently been much embarrased and upon many occasions have been intirely prevented from carrying into execution measures which I have considered as necessary for the safety and Defence of this Province and its Frontiers from the exhausted state of the King's Magazines with regard to Provisions and from the Difficulty as well as enormous Expence of supplying the Defficiency in the Province. It was therefore with Indignation & Regret that in March 1779, in consequence of an express from Halifax to Mess Drummond and Jordan, I saw a successful attempt on their part and that of several Merchants or Traders to engross the Wheat and enhance the Price of Flour.-At that time there was not the least shadow of scarcity, but in less than a Fortnight the Price of Wheat was raised from 4 shillg or 4,6 per Bushel to 6 and upwards. I lost no time with the advice of a Quorum of His Majestys 1 Canadian Archives, B. 54, p. 354. Given also in Q17-1, p. 270. This letter gives Haldimand's repor on the proceedings of Council from Jan. 27th to April 12th, 1780. Two subjects engrossed virtually the whole attention of the Council: First, the communication of the Governor's Instructions and the expediency of acting on that of July 16th 1779; Second, the question as to the constitutional power of the Council t prohibit the export of grain, flour, and other food stuffs, or to fix an arbitrary price for them. Naturally Haldimand reviews these questions and the discussion of them in Council, from his own point of view. 2 For the Minutes of Council, Jan. 27 to April 12, see Q 17 1, pp. 329–383. & Q 17-2 pp. 384–458. The ordinances passed at this session are given in Q 17-2, pp. 459-657. SESSIONAL PAPER No. 18 Council to forbid the exportation of Provisions, and to issue a Proclamation against ngrossing, forestalling and regratting: The evil was not remedied, but the Price of Wheat was by various Artifices, assisted by a Bad crop in the District of Quebec, tho' that in Montreal District was tollerable, raised early in the Winter to Ten shillings per Bushell. It could not escape my observation that the Merchants des Côtes, who went up and down the Country, & who by purchasing small quantities of Wheat at a very high Price, engaged the Inhabitants on the River Chambly & Sorrel to keep up the remainder of their Wheat in hopes of a still greater Price, were under the influence and supported by the credit of such Merchants as were most disaffected to Government. Perhaps it s not going too far to suspect in some, worse motives than the love of gain, for a conluct, which rendered every Farmer's House in the Parishes of that part of the Country, where an Invasion if attempted during the Winter, must take place, a Magazine of Provisions for an Enemy, who from the difficulty of Transport and other local circumstances could not bring any with them. The Magistrate of Quebec & Montreal had found it very difficult to oblige the Bakers to continue the exercise of their Trade,' and still more so to procure Flour for the daily and immediate consumption of the Towns. The Poor suffered much and all Ranks of People looked up to the meeting of the Legislative Council as the time when something effectual would be done for the relief of the Poor, and to put a stop to a spirit of ingrossing which had perverted the Province. Therefore I ordered the Legislative Council to assemble on the 27th of January and recommended the high Price of Wheat & Flour (the first being at that time at ten Shillings per Bushel, the other at 40. per 100 lbs for the worst of Flour) to their serious consideration." A Committee consisting of Mess Finlay, Dunn, Cuthbert Harrison, Alsop, S' Luc, Gugy, Grant & Baby were appointed to consider and propose ways and means to reduce the high Price of Wheat & Flour. Their Report was that an Ordinance should be made to prevent the exportation of Provisions for a limited time, and that an address should be presented to me, requesting a Renewal of the Proclamation against ingrossing &.— This did not appear sufficient to many members of the Council, who considered that tho' the exportation had been prevented last summer, and that tho' the Proclamation, of which the Renewal was requested, had been published early in the Summer-The Price of Wheat and Flour had been gradually raised to an exhorbitant highth, not from any real scarcity, but from the avarice of Ingrossers. It was therefore proposed that an Ordinance should be passed or a clause added to that for non exportation, fixing or rating for a limited time or untill the new Crop could be got in, the Price of Wheat and Flour. This was the more necessary as otherwise there would be a risk of great part of the Lands in the District of Quebec remaining unsown, as the Inhabitants could not afford to give 10/- per Bushel for Seed Wheat. This gave occasion to much altercation and great variety of Argument, the Attorney General' was applied to for his opinion as some Members contended that the Legislative Council had under the Quebec Bill no authority to levy Taxes or impose Duties, and that fixing the Price of Wheat And Flour was Synonimous to imposing Taxes or Duties: His opinion coincided with theirs, but as it was couched in a mysterious manner as if it had been founded more upon the words in which the Question was stated than the merit of it, It was Proposed to have the sense of the Legislative Council with regard to the Legality of the measure, as if the Legislature had not the authority it was in vain to 1 On Nov. 7th, 1778, six of the Council were called together, and recommended the Governor to issue a proclamation prohibiting any one from exporting wheat, flour, or biscuit, without a license from the Governor, until Dec. 1st, and after that a total prohibition of export until Aug. 1st, 1779. This was approved by the Governor and the proclamation issued. See Q 16-2, p. 674; also B 78, p. 16. As this did not lower prices, the bakers were next dealt with, and a further proclamation, being the one here referred to, was issued. See also B 78, pp. 25 & 31. 2 See B 78, p. 23. 3 See Q 17-1, p. 331. 4 James Monk was appointed Attorney General in 1776, to succeed Henry Kneller who had died. 18-3-31 6-7 EDWARD VII., A. 1907 reason on the Expediency of the measure this Proposal so necessary to the Discussion of the Measure in question and seemingly so essential to the Authority of Government, was overruled by one Voice. It was then Proposed whether the price of Wheat and Flour should be fixed by Ordinance for a limited time, and it was resolved by a Majority of one voice in the negative-Mess" Cramacké, Finly, Dunn, Cuthbert, L'Eveque, Collins, Pownall Alsop, De Lery, Harrison & Grant being against fixing the price-Mess" Mabane, S. Luc, Bellestre, Gugy, Fraser, Caldwell, S. Ours Longueil, Baby and Holland Not willing to disturb the Proceedings of the Legislative Council, the Gentlemen who wished to fix the price, did not immediately signify any desire to file their reasons of Dissent, but at a subsequent meeting when only Three of them were present, they Proposed to have their reasons of Dissent incerted in the minutes, as it would be the certain means of having the opinion of the proper Law Officers in England on the Legality of the measure, as it was of much Consequence to the good of the Province that the question should not be left in Any respect doubtful. This Proposal tho' reasonable in itself was refused under pretence of Form, tho' as yet there is no kind of Form established by the Legislative Council for its proceedings. The Paper was filed in the Council Office, it is here annexed as well as the opinion of Mr Williams, the only Lawyer of any note, except the Attorney General, and I beg that Your Lordship will lay the reasons of Dissent, the Attorney General's and Mr. William's opinions before the proper Law Officers.1 However diffident I might be of my own opinion with regard to the Legality, I could entertain no doubt of the expediency of the measure. It was the only one that could without delay reduce the high Price of Provisions and check the Spirit of speculating in the necessaries of Life, which is equally prejudicial to the Welfare of the People as to the service of the Prince. Notwithstanding the other measures which the Legislature adopted and which I will Afterwards mention, the exhorbitant price of Wheat and Flour continued the same, or rather increased, till the certain prospect of a new & plentiful crop lowered it a little about the latter end of August, but not till after I had been under the necessity to order the Commissary General to purchase Flour at a high rate from the Ingrossers, who thus in spite of all my efforts have profited by the Public Distress When it is considered that Great Britain is engaged in an expensive War, and which is carried on at 3000 miles distance by which the supplies of Provisions &c. are exposed to the Danger of the sea and Powerful enemies, it becomes the Duty of every good Citizen to do every thing in his Power to Diminish the Price of Provisions, as by that means Government may be enabled to establish and fill Magazines so as to obviate the Bad Consequences which might arise from the Provision Fleet from Europe for New York, & the Northern Parts of America falling into the Hands of the Enemy, or an Enemy's Fleet being the first in the River St. Lawrence. This Country is in peculiar Circumstances, whilst the Rebellion continues in the neighbouring Colonies, little or no Resources can be had from Importation, which is the natural means to Reduce the Price of any Commodity, besides, the Climate absolutely prevents it for seven months of the Year, hence occurs the great necessity of Government taking precautions to Secure Bread for the People, as well as for the Army: Humanity, as well as Policy justifies the measures a few Interested Traders would have been dissatisfied and would have endeavored to have made a Clamor against it in London, but in Canada it would, instead of a Revolt which some People affected to fear, have given general Satisfaction to the Canadians who looked for it and Stood in need of it, & would have given them a Confidence in that Government, whereas there are not wanting people to insinuate to them that they could not rationally expect Redress from a Council, one half of which at least was Composed of Dealers in Wheat & Meal Mongers.-2 1 The reasons for dissent given by A. Mabane, F. Baby, and Saml. Holland will be found in Q 17-1. p. 324; the opinion of Attorney General Monk in Q 17-1, p. 318; and that of Jenkin Williams in Q 17-1, p. 315. 2 That Haldimand's suspicion of the grain merchants was really unfounded, and that he was virtually holding them responsible for an unusual dearth of food products in the face of an unusually large consumption, was afterwards abundantly proved even from his own despatches. The grain merchants were ultimately prohibited from either buying or selling grain, yet the price was not lowered; the bakers |