Dear Sir

XLIII

FINLAY TO NEPEAN

[Trans. Shortt and Doughty.]

Quebec, 13th february, 1787

Tho' we have been a month in Council we have not as yet debated on any one Ordinance: the Chief Justice has proposed three; they lie on the table. The draught of a Militia Law is now before a committee; that, and the regulation of the Courts of Justice are objects of the first moment.

A well establish'd Militia will secure the Province, and if the King's Ancient subjects (comprehending the Loyalists) can but have English Law' for the rule of decision of English causes, as laid down in his Majesty's 12th Instruction, they'll be contented and happy: but our Judges of the Common Pleas set their faces against the introduction of English law in all cases whatsoever; They say that they are warranted by the Quebec Act to declare and to uphold, that the intention of the King and Parliament was, that no Law but French Law should subsist in Canada, the English Criminal Law excepted.

Some people affect to call the King's Natural born subjects, new Canadians-He who chose, say they, to make Canada his place of residence lost the name of Englishman. The Old Canadians are those we conquer'd in 1760 and their descendants, the new Canadians are composed of emigrants from England, Scotland, Ireland, and the Colonies now the United States: by the Act of the 14th' of his present Majesty they are converted into Canadians, and Canadians they must ever remain. This doctrine is pleasing to the Noblesse or gentry of the Country, who will not easily get rid of French prejudices;-but to cherish a predilection for every thing that is french, is not, in my opinion, the most likely means to make Englishmen of the Canadians. It is held here by some of His Majesty's natural born subjects, that the natives of this Province ought, as much as is possible, to be kept unmixed and unconnected with the other Colonists, to serve as a strong barrier, between our Settlements and the United States, "Its inhabitants are numerous, and by Religion, Language, Laws & Customs "are the class of men the least likely to coalesce or unite with the neigh"bouring States of America."

Unless the Canadians can be brought to perceive that it is their intrest to be attached to Great Britain, they will lean towards that Government which they may erroneously have conceived best calculated to promote their welfare; we ought not to forget their lukewarmness in 1775-the better sort of the people in general, and the Clergy, behaved well, but we had little or no assistance from the peasantry, and all this arose from the insinuations of the Colonists, touching the supposed intention of the King and Parliament in passing the Quebec bill: it seems at present the wish of those who prefer french Law, and french Customs, to inculcate, that if we introduce the English Commercial Law, the Estates and property of the Canadians will be annihilated, and this has had an effect, and has produced some applications to Lord Dorchester, praying him to prevent the introduction of English Law in any case. These applications were founded on

error.

Your ever obedient and most humble servant,

1 See Dorchester's Instructions (1786), Art. 12 (No. XLII). See No. XXV.

HUGH FINLAY.

XLIV

ORDINANCE RE PROCEEDINGS OF CIVIL COURTS,
30 APRIL, 1787

[Trans. Shortt and Doughty.]

An Ordinance to continue in Force for a limited Time an Ordinance made in the 25th Year of His Majesty's Reign, intituled, “An Ordinance to "regulate the Proceedings in the Courts of Civil Judicature,and to "Establish Trials by Juries' in Actions of a Commercial Nature, and "Personal Wrongs, to be compensated in Damages," with such additional Regulations as are expedient and necessary.

Be it Enacted and Ordained by His Excellency the Governor, and the Legislative Council, and by the Authority of the same, it is hereby Enacted and Ordained, That an Ordinance made and passed the Twenty fifth of April, in the Twenty fifth year of His Majesty's Reign, intituled, “An "Ordinance to regulate the Proceedings in the Courts of Civil Judicature, "and to establish Trials by Juries in Actions of a Commercial Nature, and "Personal Wrongs, to be compensated in Damages," and every Clause and Article therein contained, be continued, and the same is hereby continued from the expiration thereof to the end of the Sessions of the Legislative Council which will be held in the Year of our Lord 1789.

And whereas Additional Regulations are at this Time found to be expedient and useful; Be it further Enacted by the same Authority, That in every Instance where the Fact is not verified by a Verdict of the Jury, but by other Proof, or the Testimony of Witnesses, the same shall be inserted in the Record of the Cause, that in case of Appeal the whole proceedings may go up to be adjudged in the Superior Tribunal, as regularly and as fully as the same was before the Court of Common Pleas.

And wherever the Opinion or Judgment of the said Court of Common Pleas is pronounced upon any Law, Usage, or Custom of the Province, the same shall in like manner be stated upon the Minutes or Record of the Court, and referred to, and ascertained, that the real ground of the Opinion or Judgement may also appear to the Court of Appeals, and upon all Opinions conceived by any Party to be to his Injury, he shall be allowed his Exception, to be preserved in the Minutes; all which Proceedings shall be transmitted under the Signature of the Judges, or any Two of them, and the Seal of the Court, that all His Majesty's Subjects, and especially His Canadian Subjects, by these means may be protected in the Enjoyment of all the Benefits secured to them for their Property and Civil Rights, by the Statute passed in the 14th year of His Majesty's Reign intituled, “An "Act for making more effectual Provision for the Government of the "Province of Quebec, in North America," and by the Ordinances abovementioned.

And be it further Enacted by the Authority aforesaid, That in all Cases adjudged in the Provincial Court of Appeals, where the same may be appealed to His Majesty in His Privy Council, and where their Opinion or Judgment is pronounced on any Law, Custom or Usage of the Province, the same shall in like manner, and for the same Reason as herein before mentioned, be stated upon the Record, or referred to and ascertained.

And, in all Causes of which the Common Pleas have Cognizance above Ten Pounds Sterling, the same shall be proceeded in, heard, and determined only in regular Terms, consisting of the First Fifteen Days (Sundays and Holidays excepted) in the Months of January and July, and the last Fifteen Days of March and September, Yearly, the First Return Days whereof shall always be the First Day of the Term, and the rest of the Return Days, and the General Rules of Practice, such as the respective Judges of the Common Pleas shall fix in a Formulary.

1 In 1785 provision for trial by jury in civil cases was introduced into "The ordinance regulating the Proceedings in Courts of Civil Judicature" (see Shortt and Doughty, p. 529). This Document expands the regulations.

And, to take away all Doubts and Scruples with respect to the Right of Appeal in any Cause before the said Courts of Common Pleas. Be it enacted and Declared by the same Authority, That the Court of Appeals shall be deemed and adjudged to have an Appellate Jurisdiction, with all the Power necessarily annexed to such Jurisdiction; and that it shall henceforth belong to the Provincial Court of Appeals to determine the Question when security shall be requisite, and the sufficiency thereof, and the Admission, Dismission, or Remission of Appeals, and the supply of the Defects of the Record and of the Effect of the Appeal as a Supersedeas of all or any Proceedings in the Lower Courts for the stay of Execution on the Judgment of the same, or any Process of the nature of Execution, with Authority also to make Rules and Orders, to regulate, effectuate and accelerate the Proceedings in all causes of Appeal, for the Advancement of Justice, and to prevent unnecessary Delays and Expence in the same.

And, where Appeals are brought by Executors, Administrators, Curators, Tutors or Guardians, the Plaintiff shall not have Execution, nor any Process in the nature of Execution, without such security first given as the Court of Common Pleas in their Discretion shall direct, to refund the Damages and Costs, in case the Judgment shall be reversed, together with such Costs as the Court of Appeals may award.

And, for the more convenient Dispensation of Justice in small Causes. It is enacted and Ordained by the same Authority, that it shall and may be iawful for his Excellency the Governor, or the Commander in Chief of the Province for the Time being, by and with the advice and consent of His Majesty's Council, to appoint by Commission such and so many Persons as he shall Judge fit, and for such Parts of the Province as he shall think proper, to hear summarily, and to determine finally, without Appeals, all Matters of Debt of Ten Pounds or under; and it shall likewise be lawful for His Excellency the Governor, or the Commander in Chief for the Time being, by and with the Advice and Consent of His Majesty's Council, to regulate the Fees to be taken by the Persons so commissioned, and by their Subordinate Officers, and to direct a mode of proceeding for them, whereof, and the extent of their Jurisdiction respectively, a Notification shall be published in the Quebec Gazette, for the Information of all Persons whom it may concern.

Whereas there are many Thousands of Loyalists and others settled in the Upper Countries above Montreal, and in the Bays of Gaspy and Chaleur, below Quebec, whose ease and convenience may require that additional Districts should be erected as soon as Circumstances will Permit;It is Enacted and Ordained by the Authority aforesaid, That it may be lawful for the Governor or Commander in Chief for the Time being, with the Advice and Consent of the Council, to form, by Patent, under the Seal of the Province, one or more new Districts, as his Discretion shall direct, and to give Commission to such Officer or Officers therein as may be neces sary or conducive to the ease and convenience of His Majesty's Subjects residing in the remote Parts of the Province.

And be it further Enacted by the Authority aforesaid, That no Process of Attachment, except in the case of the Dernier Equippeur, according to the usage of the Country, shall hereafter be issued for Attaching the Estate, Debts and Effects of what Nature soever, of any Person or Persons whomsoever, whether in the Hands of the Owner, the Debtor, or a Third Ferson prior to Trial and Judgment, except where there be due Proof on Oath (to be indorsed on the Writ of Attachment) to the Satisfaction of one of the Judges of the Court issuing the same, that the Defendant, or Proprietor of the said Debts and Effects, is indebted to the Plaintiff in a Sum exceeding Ten Pounds, and is about to secrete the same, or doth abscond, or doth Suddenly intend to depart from the Province, with an Intent to Defraud his Creditor or Creditors, and that the Defendant is then indebted to the Plaintiff, and he doth verily believe that he shall lose his Debt, or sustain Damage, without the Benefit of such Attachment.

Provided always, That nothing herein contained shall be construed to the Prejudice of the Rights of Landlords, in their legal Course, for the

Recovery of Rents, according to any former Mode of Proceeding by any Law, usage, or Custom whatsoever; and provided also, that whenever the Defendant or Debtor shall either pay the Debt and Costs, or give Security to the Sheriff or Officers for the goods so attached, as in Cases of Bail on Personal Arrests, subject to Justification in Court to answer the Value of the Goods, and abide the Judgment of the Court, the same shall be fortlıwith restored; and for that Purpose the Defendant or Debtor shall be allowed Forty Eight Hours, after which Period, if the Debt and Costs be not paid, nor Security given, the Goods so seized shall remain attached, and held by the Sheriff or Officer to answer the Judgment of Law.

Be it further Enacted by the Authority aforesaid, That the additional Regulations hereby Enacted shall be in force until the end of the Sessions that shall be held in the Year of our Lord 1789, or as long as the Ordinance hereby renewed; and that the Ordinance passed in the Twenty-fifth year o the Reign of his present Majesty, intituled, "An Ordinance for granting a "limited Civil Power and Jurisdiction to His Majesty's Justices of the "Peace in the Remote Parts of the Province" be no longer in force than until Such Small Jurisdictions as by this Act are authorized shall be actually erected.

Enacted and Ordained by the Authority aforesaid, and passed in Council under the Public Seal of the Province, at the Council Chamber, in the Castle of St. Lewis, in the City of Quebec, the 30th of April, in the 27th Year of the Reign of our Sovereign Lord George the Third, &c &c &c, and in the Year of our Lord 1787.

By His Excellency's Command.

XLV

ORDINANCE RE CRIMINAL COURTS, 30 APRIL, 17871
[Trans. Shortt and Doughty.]

An Ordinance to Explain and Amend an Ordinance for establishing Courts of Criminal Jurisdiction in the Province of Quebec.

Whereas it is expedient that public Officers should be established in the several Parishes of this Province, under the Denomination of Peace Officers; It is Enacted and Ordained, by his Excellency the Governor and the Legislative Council, That all and every the Captains, and other Officers of Militia in the said several Parishes of this Province, duly commissioned by His Excellency the Governor, or the Commander in Chief for the Time being,and likewise the Serjeants named and appointed by the said Captains and other Officers in the respective Parishes, be, and they are hereby declared to be Public and Peace Officers within their respective Parishes and authorized and enjoined to do and exercise all and singular the Duties and Services of Public and Peace Officers within their respective Parishes according to Law.

And be it further Enacted by the same Authority, That it shall be Lawful for the Commissioners, or Justices of the Peace, assembled in Quarter Sessions, or by a Majority of the same, and they are hereby required, as soon as conveniently may be ,to name and appoint such and so many Persons as they may think sufficient, within the Towns and Banlieus of Quebec and Montreal, for carrying into Execution the orders and Decrees of the several Courts, and to preserve the Public Peace therein, every of which Persons so appointed shall faithfully perform the Duties of the Offices for which he may be so appointed for the space of one year; previous to the expiration whereof it shall be the Duty of the said Commissioners or Justices of the Peace annually to appoint others to serve in their stead, and to increase or diminish the number first appointed, as to them shall appear to be most for the Public Weal and Safety; and that no such 1 This is an amendment to the Ordinance of 4 March, 1777 (No. XXXII.)

appointment shall be valid in Quebec or Montreal, and their Banlieus respectively, in the Case of a Civil or Military Officer, or in any Person in Priest's Orders, or in the Profession or Practice of Physic or Surgery, or any Miller, Ferryman, Schoolmaster, or Student of any College or Seminary, or any Person not of full Age: or for neglecting or refusing to perform the said Office or Offices there shall be the Forfeiture of Twenty Pounds, to be recovered in any Court of Record, with Costs of Suit, by Bill, Plaint, or Information, in which no Essoign, Wager, of Law, or any more than One Imparlance, shall be allowed.

(signed)

DORCHESTER.

30 April, 1787.

XLVI

DEBATE ON LYMBURNER'S EVIDENCE

[Trans. Shortt and Doughty.]

On May 16, 1788, Mr. Powys moved in the House of Commons, that Mr. Adam Lymburner, Agent of that section of the population in Canada, French and English, desirous of having a House of Assembly, &c., be heard at the Bar of the House in support of the petition from Quebec of 24th Nov., 1784'. Mr. Lymburner being admitted read a paper pointing out the defects of the system of laws then administered in the Province and the need for a remedy. This paper is given in Canadian Archives Q. 62 A-1, pp. 1-101. After he had withdrawn, a debate followed which is quite fully reported in Hansard, Vol. 27, pp. 511-533. The substance of the debate, however, is given in the following summary from The London Chronicle (May 15-17, 1788).

"Mr. Powys entered into a detail of circumstances and the allegations contained in the petitions. He stated it as the general wish of the Canadians, that some determinate code of laws should be established in that Province, and that they might not henceforward be subjected to the sole ordinance of a legislative Council, appointed by the Crown, and removable at the pleasure of the Crown. They wished to have a House of Assembly instituted in the province, and the English laws in general extended to them. He observed, that they had not the privilege of Habeas Corpus; at least it was not a part of their constitution, though it might be occasionally allowed them. They were deprived of the trial by Jury, except in a few instances. As to the Council, above alluded to, it ought not to exist; for, in the opinion of the best informed and most elegant historian of the present age (Mr. Gibbon), where the legislative power is appointed by the executive department, it is a sure criterion of a despotic government. The petitioners wished to be put on the same footing with the provinces of Nova Scotia and New Brunswick, which have a House of Assembly, and partake of the blessings of English laws. He thought their request was just and reasonable, and merited the attention of the House. He concluded with moving, That it is the opinion of this Committee, that the petitions from Quebec merit the serious and immediate attention of the House.

Sir Matthew White Ridley seconded the motion. The laws, he said, were in Canada vague and undefined; and wherever this is the case, very great abuses are the consequence. He hoped, that if the House should not find time in the remainder of this session to come to any ultimate decision on the subject, they would at least adopt a resolution that might give the Canadians good reason to hope for a determination in their favour in the succeeding session.

The Chancellor of the Exchequer agreed with the Hon. Mover, that the

1 See No. XXXVIII.

In Nova Scotia a House of Assembly was constituted in 1758 (see Selections from the Public Documents Relating to Nova Scotia, Halifax, 1869). A House of Assembly was provided for when New Brunswick was constituted a province in 1784 (see Dominion Sessional Papers XVI, No. 70).