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new constitution gave rise to a famous suggestion contained in an opinion which Dorchester obtained from Chief Justice William Smith. The proposal was in reality one for the federation of British North America (see Nos. LIII; LIV). However, the time was not ripe and the Constitutional Act was passed in 1791 (see No. LV), which provided for the division of the province by an Order-in-Council. This Order was duly issued on August 24, 1791. In September, Dorchester was appointed Captain-General and Governor-in-Chief of both provinces. Houses of Assembly were established in each new division.

The documents given below illustrate the various difficulties which led to the drawing up of a new constitution.

XXVIII

THE QUEBEC REVENUE ACT, 1775

(15 George III, c. 40.)

An Act for amending and explaining an Act, passed in the fourteenth year of his Majesty's reign, intituled "An Act to establish a Fund towards further defraying the charges of the Administration of Justice and support of the Civil Government within the Province of Quebec, in America."

Whereas by an Act passed in the fourteenth year of his Majesty's Preamble. reign (intituled, “An Act to establish a fund towards further defraying

the charges of the administration of justice and support of the Civil Gov-Clause in Act ernment within the Province of Quebec in America"), it is amongst other 14 George III, things enacted, that if any goods, chargeable with any of the duties in the recited. said Act mentioned, shall be brought into the said Province by land carriage, the same shall pass and be carried through the Port of Saint John's, near the River Sorrel; or if such goods shall be brought into the said Province by any inland navigation other than that upon the River Saint Lawrence, the same shall pass and be carried upon the said River Sorrel by the said port, and shall be there entered with, and the said respective rates and duties paid for the same to such officer or officers of his Majesty's customs as shall there be appointed for that purpose; and if any such goods, coming by land carriage or inland navigation, as aforesaid, shall pass by or beyond the said place before named, without entry or payment of the said rates and duties, or shall be brought into any part of the said Province by or through any other place whatsoever, the said goods shall be forfeited; and every person who shall be assisting, or otherwise concerned in the bringing or removing such goods, or to whose hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit treble the value of such goods; to be estimated and computed according to the best price that each respective commodity bears in the town of Quebec at the time such offence shall be committed; and all the horses, cattle, boats, vessels, and other carriages whatsoever, made use of in the removal, carriage or conveyance of such goods, shall be forfeited and lost, and shall and may be seized by any officer of his Majesty's Customs, and prosecuted as thereinafter mentioned: And whereas there is reason to apprehend that the regulations and restrictions contained in the said hereinbefore recited clause, so far as they relate to the bringing of rum, brandy, or other spirits into the Province of Quebec by land carriage, may, without further explanation, operate to the prejudice and disadvantage of the commerce carried on with the Indians in the upper or interior parts of the said Province: We, your Majesty's most dutiful and loyal subjects, the Commons of Great Britain in Parliament assembled, do most humbly beseech your Majesty that it may be enacted; and be it enacted by the His Majesty's King's Most Excellent Majesty, by and with the advice and consent of the subjects may Lords Spiritual and Temporal, and Commons, in this present Parliament bring, by land assembled, and by the authority of the same, That it shall and may be law- or inland navi. ful to and for all his Majesty's subjects freely to bring, carry or convey, by any ports of gation, into land, carriage, or inland navigation, into any ports of the Province of Quebec not Quebec, not heretofore comprehended within the limits thereof by his heretofore comprehended Majesty's Royal Proclamation of the seventh of October, one thousand in the Royal seven hundred and sixty-three, any quantity of rum, brandy, or other Proclamation spirits, anything contianed in the before-recited Act of Parliament to the 1763, any contrary thereof in any wise notwithstanding.

114 George III, C. 88. (See No. XXVI.)

of Oct. 7,

quantity of rum, brandy,

etc.

XXIX

INSTRUCTIONS TO GOVERNOR CARLETON, 1775'

[Trans. Shortt and Doughty.]

4. And whereas by an Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual provision for the "Government of the Province of Quebec in North America," it is enacted and provided, that no person, professing the Religion of the Church of Rome, and residing in the said Province, shall be obliged to take the Oath of Supremacy required by an Act passed in the first year of the reign of Queen Elizabeth, or any other Oaths substituted by any other Act in the place thereof; but that every such Person, who by the said Statute is required to take the oaths therein mentioned, shall be obliged, and is thereby required, under certain Penalties, to take and subscribe an Oath in the form and Words therein prescribed, and set down; It is therefore Our Will and Pleasure, that you do administer to each and every Member of Our said Council, being a Canadian, and professing the Religion of the Church of Rome, and cause each of them severally to take and subscribe the Oath mentioned in the said Act passed in the fourteenth year of Our Reign, intituled; "An Act for making more effectual provision for the "Government of the Province of Quebec in North America;" and also cause them severally to take an Oath for the due Execution of their places and Trusts, and for their equal and impartial administration of Justice.

5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Council, you are from time to time to transmit to Us, by one of Our Frincipal Secretaries of State, the names and Characters of such persons, Inhabitants of Our said Colony, whom you shall esteem the best qualified for that Trust; And you are also to transmit a duplicate of the said Account to Our Commissioners for Trade and Plantations, for their Information.

6. And if it shall at any time happen, that by the death or departure out of Our said Province, of any of Our said Councillors, there shall be a Vacancy in Our said Council, Our Will and Pleasure is: that you signify the same to Us by one of Our Principal Secretaries of State, and to Our Commissioners for Trade and Plantations, by the first Opportunity, that We may by Warrant under Our Signet and Sign Manual, and with the Advice of Our Privy Council, constitute and appoint others in their stead.

7. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite, as likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them.

8. You are to permit the Members of Our said Council to have and Enjoy Freedom of Debate and vote in all Affairs of Public Concern, that may be debated in Council.

9. And Whereas by the aforesaid Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual provision for "the Government of the Province of Quebec in North America," It is further enacted and provided, that the Council for the Affairs of the said Province, to be constituted and appointed in Manner therein directed, or the Major Part thereof, shall have power and Authority to make Ordinances for the peace, Welfare, and good Government of the said Province with the Consent of Our Governor, or, in his absence, of the Lieutenant Governor, or Commander in Chief for the time being; provided, that no Ordinance shall be passed, unless upon some urgent Occasion at any Meeting of the Council, except between the first day of January and the first day of May. And Whereas the State and Condition of Our said Province

1 These Instructions were sent by Lord Dartmouth to Carleton on January 7th, 1775. They were rendered necessary by the passing of the Quebec Act, 14 George III. c. 83, to which reference is made throughout. Sections 1 to 4, 23 to 29 and 39 to 56 of these Instructions are omitted.

do require, that immediate provision should be made by Law for a Great Variety of Arrangements and Regulations essentially necessary to the Government thereof; It is therefore Our Will and Pleasure, that you do within a convenient time issue Summons for the Assembling of Our said Council in their Legislative Capacity either on the first day of April next, or as soon after as may be convenient, in Order to deliberate upon, and frame such Ordinances, as the Condition of Affairs within Our said Province shall require, and as shall, in your and their Judgement, be fit and necessary for the Welfare of Our said Province, and the Territories thereunto belonging.

10. You are nevertheless to take especial Care.

That no Ordinance be passed at any Meeting of the Council, where less than a Majority of the Council is present, or at any time, except between the first day of January and the first day of May, as aforesaid, unless upon some urgent Occasion; in which Case every Member thereof resident at Quebec, or within fifty Miles thereof shall be personally summoned to attend the same.

That no Ordinance be passed for laying any Taxes or Duties, such Rates and Taxes only excepted, as the Inhabitants of any Town or District may be authorized to assess, levy and apply within the said Town or District, for the making Roads, erecting and repairing public Buildings, or for any other purpose respecting the Local Convenience and Economy of such Town or District.

That no Ordinance touching Religion, or by which any punishment may be inflicted greater than Fine or Imprisonment for three Months be made to take effect, until the same shall have received Our Approbation.

That no Ordinance be passed relative to the Trade, Commerce, or Fisheries of the said Province, by which the Inhabitants thereof shall be put upon a more advantageous footing, than any other His Majesty's Subjects either of this Kingdom, or the Plantations.

That no Ordinance respecting private property be passed without a Clause suspending its Execution, until Our Royal Will and Pleasure is known; nor without a saving of the Right of Us, Our Heirs and Successors, and of all Bodies politic and corporate, and of all other persons, except such as are mentioned in the said Ordinance, and those claiming by, from, and under them; And before such Ordinance is passed, proof must be made before you in Council, and entered in the Council-Books, that public Notification was made of the Party's Intention to apply for such Ordinance in the several Parish Churches, where the Lands in Question lye, for three Sundays at least successively, before any such Ordinance shall be proposed; and you are to transmit and annex to the said Ordinance a Certificate under your hand that the same passed through all the Forms above mentioned.

That no Ordinance shall be enacted for a less time than two years, except in Cases of imminent Necessity, or immediate temporary Expediency; and you shall not reenact any Ordinance, to which Our Assent shall have been once refused, without express leave for that purpose first obtained from Us, upon a full representation by you to be made to Us by one of Our Principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their Information, of the Reasons and Necessity for passing such Ordinance; nor give your Assent to any Ordinance for repealing any other Ordinance, which hath passed in your Government, and shall have received Our Royal Approbation, unless you take Care, that there be a Clause inserted therein suspending and deferring the Execution therof, until Our Pleasure shall be known, concerning the same.

That in all Ordinances imposing Fines, Forfeitures or Penalties, express Mention be made, that the same is granted, or reserved to Us, Our Heirs and Successors for the public Uses of the said Province, and the Support of the Government thereof, as by the said Ordinance shall be directed; and that a Clause be inserted declaring, that the Money, arising by the Operation of the said Ordinance, shall be accounted for unto Us in this Kingdom, and to Our Commissioners of Our Treasury for the time

being; and audited by Our Auditor General of Our Plantations, or his Deputy.

That all such Ordinances be transmitted by you within six Months after their passing, or sooner, if opportunity offers, to Us by One of Our Principal Secretaries of State, and Duplicates thereof to Our Commissioners for Trade and Plantations, for their Information; that they be abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is introductive to a new Law, or does repeal a Law then before in being; and you are also to transmit in the fullest manner the Reasons and Occasion for enacting such Ordinances, together with fair Copies of the Journals of the proceedings of the Council, which you are to require from the Clerk of the said Council.

11. In the Consideration of what may be necessary to be provided for by Law within Our said Province, as created and established by the aforesaid Act, Intituled, "an Act for making more affectual Provision for "the Government of the Province of Quebec in North America," a Great Variety of important Objects hold themselves forth to the Attention of the Legislative Council.

12. The Establishment of Courts, and a proper Mode of administering Civil and Criminal Justice throughout the whole Extent of Our Province, according to the Principles declared in the said Act "for making more effectual Provision for the Government thereof," demand the greatest Care and Circumspection; for, as on the one hand it is Our Gracious purpose, conformable to the Spirit and Intention of the said Act of Parliament, that Our Canadian Subjects should have the benefit and use of their own Laws, Usages and Customs in all Controversies respecting Titles of Land, and the Tenure, descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of the personal property of Persons dying intestate; so on the other hand, it will be the duty of the Legislative Council to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the decision in all Cases of personal Actions, grounded upon Debts, Promises, Contracts, and Agreements, whether of a Mercantile or other Nature; and also of Wrongs proper to be compensated in damages; and more especially where Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations residing at Quebec, or who may resort thither, or have Credits, or Property within the same, may happen to be either Plaintiff or defendant in any civil Suit of such a

nature.

13. Security to personal Liberty is a fundamental Principle of Justice in all free Governments, and the making due provision for that purpose is an object the Legislature of Quebec ought never to lose Sight of; nor can they follow a better Example than that, which the Common Law of this Kingdom hath set in the provision made for a Writ of Habeas Corpus, which is the Right of every British Subject in this Kingdom.

14. With regard to the Nature and number of the Courts of Justice, which it may be proper to establish, either for the whole Province at large, or separately for its dependencies, and the times and places for holding the said Courts, no certain Rule can be laid down in a Case, in which the Judgement must in many Respects at least be altogether guided by Circumstances of local Convenience and Consideration.

15. In General it may be proper, that there should be a Superior or Supreme Court of Criminal Justice and Jurisdiction for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever, to be held before the Chief Justice for the time being at such times and places, as shall be most convenient for the due and speedy Administration of Justice, and the preventing long Imprisonments; the said Court to be called and known by the name of the Court of King's Bench; That, for the more orderly establishment and Regulation of Courts of Civil Jurisdiction, the Province of Quebec, as limited and bounded by the

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