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their local Customs and usages, more especially in Titles of Land and Cases of Real Property.
5th Fifthly in Rules of process and the Practice of the Courts. We beg leave to suggest, that it may be expedient to order the new Chief Justice', with the assistance of the other Judges, to be appointed and the Attorney General' of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, and the convenience of the Suitors. The Forms of proceeding out to be simple easy and as summary and expeditious as may consist with the advancement of right and the protection of Innocence, useful hints may be taken not only from the supreme Courts of Westminster, but from the practice of the Courts in Wales, and from many of the Colonys. Some time will be necessary, before such a plan can be framed and experience alone can perfect it. As soon as they shall have prepared it, the Governor and Council may enact it by an Ordinance and transmit the same in the accustomed manner, to be laid before his Majesty for his Royal approbation. All which is humbly submitted, &c.
April 14th, 1766.
WM. DE GREY.
ORDINANCE OF 1766
[Trans. Shortt and Doughty.]
An ORDINANCE, To alter and amend an Ordinance of His Excel lency the Governor and His Majesty's Council of this Province, passed the Seventeenth Day of September, 1764.
Whereas by an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, made and passed the Seventeenth Day of September, 1764, Intitled, An Ordinance for regulating and establishing the Courts of Judicature in this Province; His Majesty has most graciously been pleased to signify His Royal Will and Pleasure therein, by an additional Instruction to His said Excellency the Governor, "That the Welfare "and Happiness of His loving Subjects in this Province, which will ever be "Objects of His Royal Care and Attention, do require that the said Ordin"ance should be altered and amended in several Provisions of it, which "tend to restrain His Canadian Subjects in those Privileges they are in"tituled to enjoy in common with his natural born Subjects:" And therefore it is His further Royal Will and Pleasure, That it should be declared, And by His Honour the President of His Majesty's Council by & with the Advice, Consent & Assistance of His Majesty's Council of this Province, and by the Authority of the same, It is hereby Ordained and Declared, That all His Majesty's Subjects in the said Province of Quebec, without Distinction, are intituled to be impannelled, and to sit and act as Jurors, in all Causes civil and criminal cognizable by any of the Courts or Judicatures within the said Province.
And for the more equal and impartial Distribution of Justice, Be it further Ordained and Declared, by the Authority aforesaid, That in all civil Causes or Actions between British born Subjects and British born Subjects, the Juries in such Causes or Actions are to be composed of British born Subjects only; And that in all Causes or Actions between Canadians and Canadians, the Juries are to be composed of Canadians only; And that in all Causes or Actions between British born Subjects and Canadians, the Juries are to be composed of an equal Number of each, if 1i.e. William Hey. For his commission, see below, No. XIII.
2i.e. Francis Maseres, who was appointed Attorney-General for Quebec in March, 1766.
it be required by either of the Parties in any of the above mentioned Instances.
And be it further Ordained and Declared, by the Authority aforesaid, That His Majesty's Canadian Subjects shall and are hereby permitted and allowed, to practise as Barristers, Advocates, Attornies and Proctors, in all or any of the Courts within the said Province, under such Regulations as shall be prescribed by the said Courts respectively for Persons in general under those Descriptions.
And be it further Ordained and Declared, by the Authority aforesaid, That this Ordinance shall continue in Force until His Majesty's Pleasure be further known herein; and that so much of the said Ordinance of the said Seventeenth of September, 1764, as is not hereby altered and changed, shall and is hereby declared to be temporary only.
GIVEN by the Honorable PAULUS AEMILIUS IRVING, Esq.; President of His Majesty's Council, Commander in Chief of this Province. and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of Quebec, this 1st Day of July, in the Sixth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Sixty-six.
P. AEMIS. IRVING.
CONSIDERATIONS ON THE EXPEDIENCY OF PROCURING AN ACT OF PARLIAMENT FOR THE SETTLEMENT OF THE PROVINCE OF QUEBEC (BY BARON MASERES); LONDON, PRINTED IN THE YEAR MDCCLXVI
[Trans. Shortt and Doughty.]
Upon these reasons we may conclude1, that the exercise of the Catholic religion cannot, consistently with the laws of Great Britain, be tolerated in the province of Quebec.
Yet that it should be tolerated is surely very reasonable, and to be wished by all lovers of peace and justice and liberty of conscience.
By what authority then shall it be tolerated? This is the only question that remains. Shall the King alone undertake to tolerate it? Will it be adviseable that he should exercise, though for so good an end, a power of dispensing with the laws? Will it not give room to a thousand censures and odious reflections and comparisons? The authority of Parliament seems to be a much safer foundation to establish this measure upon, in a manner which neither the new English inhabitants of the province can Contest, nor the French Catholics suspect to be inadequate.
The next great difficulty that occurs, is the settlement of the laws, by which the province of Quebec is for the future to be governed. The law upon this subject seems to be this; 1st, That the laws of the conquered continue in force till the will of the conqueror is declared to the contrary; this follows from the necessity of the case, since otherwise the conquered provinces would be governed by no laws at all. 2dly, That after the declaration of the will of the conqueror, the conquered are to be governed by such laws as the conqueror shall think fit to impose, whether those are the old laws by which they have been governed before, or the laws by which the conquerors are governed themselves, or partly one, and partly the other, or a new set of laws different from both. 3dly, That by the conqueror is to be understood the conquering nation, that is, in the present case, the British nation; that consequently by the will of the conqueror is to be understood the will of the British nation, which in all matters relating
Maseres argued that certain unrepealed Statutes (e.g., The Elizabethan Act of Supremacy) complicated the religious situation in Canada.
to legislation is Expressed by the King and Parliament, as in all matters relating to the executive power it is expressed by the King alone; that therefore the Parliament only have a power to make laws for the province of Quebec, or to introduce any part of the laws of Great Britain there, or to delegate such a power of making or introducing laws to any other hands, notwithstanding it may happen that in fact such a power may inadvertently have been delegated to the governor and council of the province by a private instruction of the King alone. For if the contrary doctrine were true, that the King alone had the whole legislative power in the province of Quebec, it would follow, that not only all the conquered Canadians, but all the new English settlers there, would become slaves or subjects to an absolute and arbitrary government, the moment they set their foot there.
It is therefore to be wished, that an Act of Parliament might be obtained that at once declared what laws should take place in the province of Quebec, whether the laws of the conquered, or the laws of Great Britain, or some of the laws of the conquered, and some of the laws of Great Britain; Or whether any other laws should be introduced there, more peculiarly fitted to the circumstances of the province; and if any, then what laws should be so introduced: Or, if this detail be thought too troublesome for the Parliament to enter upon, and their informations concerning the state of the province should be deemed to be as yet too imperfect to enable them to go through such a business with propriety, then it is to be wished that an act of Parliament may be obtained, by which such a legislative power of making laws and ordinances for the good government of the province might be delegated to the governor and council, as has been already exercised by them by virtue of an instruction from the King alone. By such a delegated parliamentary authority, they may enquire into the state of the Canadian laws and customs already in force there, and may revise them and reduce them into writing, and enact such of them as shall be found beneficial to the province, and fit to be continued; and may introduce such parts of the laws of England, as they shall think to be for the advantage of the province; and likewise as occasion offers, make such other new laws and regulations as shall be necessary for the good government of it: And in so doing they will have a due regard to the heads of advice suggested by Mr. Attorney Yorke, and to such other intimations and instructions as the government shall think proper to communicate to them. And lest this legislative power should be abused or injudiciously executed by the governor and council, there might be a clause in the act of Parliament directing them to transmit these several laws and ordinances to the King and Privy Council in England, to be by His Majesty in council allowed or disallowed, as his Majesty shall see cause. Only they should be in force till disallowed, and, if not disallowed within a certain time, as for instance two years, they should then be in force for ever, unless repealed by act of Parliament. Laws and ordinances founded on such a parliamentary authority will easily find obedience from the people, which it is to be feared no others will; and the judges of the province will carry them into execution with ten times as much spirit and confidence as if they were doubtful of their legal validity.
Suppose a Criminal in Canada to be guilty of an offence that is capital by the laws of England, but is not so by the laws of Canada that have hitherto been received, (a supposition that is no way difficult, as the criminal law of England abounds with capital offences), in what manner shall such a man be punished, unless there is a parliamentary declaration determining the punishment that shall attend his crime? Could any lesser authority warrant the infliction of death for such a crime? Or would any judge chuse, though he should be sure of never being called to account for it, to pass such a sentence without the highest authority? But if the punishments of crimes be settled by authority of Parliament, whether immediately by the Parliament itself, or mediately by ordinances made by the governor and council of the province, by virtue of a legislative authority
communicated to them by act of parliament, the judges will be under no other difficulty what punishments to inflict upon the several criminals, that come before them, than they are in Great Britain itself.
Some persons are of opinion, that the laws of Great Britain do at once take place in a conquered province, without any authoritative introduction of them, either by the King, or Parliament. But this opinion seems destitute of foundation, and is sufficiently refuted by the advice of the learned Mr. Yorke', His Majesty's attorney-general, who has advised that the Canadians should be permitted to retain their own laws, relating to inheritances and the alienation of their real estates, which would be impossible without an act of Parliament for that purpose, if the whole System of the laws of England did ipso facto become the law of the province upon its being conquered, or ceded to the Crown. Indeed, the whole system of the laws of England, taken in the gross, and without a selection, would be by no means a blessing to the Canadians. The game-laws, the poor-laws, the fictions and subtleties in various sorts of actions and conveyances, the niceties arising from the doctrine of uses, and the tedious and operose instruments founded on them, would really be a great misfortune to them; and from their novelty and strangeness, would be thought to be a much greater. This doctrine therefore of the instant validity of the whole mass of the laws of England throughout the conquered Province cannot be true. And if the whole system of those laws is not valid there, then certainly no part of them can be so. For if they are, then who shall distinguish which of them are valid there and which are not?
It may therefore be concluded, as at first, that none of the laws of England are valid in the conquered province ipso facto by virtue of the conquest,or cession, without a positive introduction there by a sufficient` authority and this sufficient authority seems, for the reasons already mentioned, to be only the Parliament of Great Britain.
As to the erecting an assembly in that province, it is a measure which probably will not for some years to come be found expedient. If an assembly were now to be constituted, and the directions in the governor's commission, above alluded to, were to be observed, by which none of the members elected there are to be permitted to sit and vote in the assembly they have subscribed the declaration against Popery, it would amount o an exclusion of all the Canadians, that is, of the bulk of the settled habitants of the province-An assembly so constituted, might pretend to be a representative of the people there, but in truth it would be a representative of only the 600 new English settlers, and an instrument in their hands of domineering over the 90,000 French. Can such an assembly be thought just or expedient, or likely to produce harmony and friendship between the two nations? Surely it must have a contrary effect.
On the other hand, it might be dangerous in these early days of their submission, to admit the Canadians themselves to so great a degree of power. Bigotted, as they are, to the Popish religion, unacquainted with, and hitherto prejudiced against the laws and customs of England, they would be very unlikely for some years to come, to promote such measures, as should gradually introduce the Protestant religion, the use of the English Language, of the spirit of the British laws. It is more probable they would check all such endeavours, and quarrel with the governor and council, or with the English members of the assembly, for promoting them. Add to this, that they are almost universally ignorant of the English language, so as to be absolutely incapable of debating in it, and consequently must, if such an assembly were erected, carry on the business of it in the French language, which would tend to perpetuate that language, and with it their prejudices and affections to their former masters, and postpone to a very distant time, perhaps for ever, that coalition of the two nations, or the Reiting down the French nation into the English in point of language, afections, religion, and laws, which is so much to be wished for, and which 1 See No. X.
otherwise a generation or two may perhaps effect, if proper measures are taken for that purpose. And further it may be observed, that the Canadians themselves do not desire an assembly, but are contented to be protected in the enjoyment of their religion, liberties, and properties, under the administration of his Majesty's governor and council. If, to give a proper stability to this mode of government, it is carried on by authority of Parliament, and is properly superintended, as no doubt it will be, by the wisdom of his Majesty's Privy-Council, they will think themselves extremely happy under it. The persons who most desire the immediate constitution of an assembly, are some of the six hundred English adventurers, who probably are ambitious of displaying their parts and eloquence in the characters of leading Assemblymen.
But if an assembly is to be constituted, even this too had better be done by act of Parliament than by the King's single authority, as it is no less than severing from the general body of his Majesty's dominions a particular part of them, with respect to the purposes of making laws and imposing taxes. Could the King, if he thought proper, and a particular county of England was to desire it of him, sever that county from the rest of England, and no longer summon any of its members to Parliament, but instead thereof constitute a little Parliament in that County itself, that should make laws and lay taxes for the inhabitants of that single county? It is presumed that he could not: and the erecting an assembly in a conquered province is an act of much the same nature. It is true indeed, that some of the American charters and assemblies owe their rise to this authority but this was in the reign of the Stuarts, who were fond of extending their prerogative; and, on account of the inconsiderableness of the colonies at that time, these things were then unnoticed; so that they do not prove the strict legality of the practice. Since that time these charters have been put in practice by the colonies, and acquiesced in by the mother-country, and in some measure recognized in Parliament; and this usage, acquiescence and recognition are in truth their best support.
But if an assembly is to be constituted, in which the Catholics or Canadians are to be admitted, (as in justice and reason they ought to be if any assembly at all is to be erected), the authority of Parliament seems to be still more necessary to give validity to such a measure.
For the reasons that have been just now mentioned, it seems evident, that the measure of erecting an assembly in the province of Quebec is somewhat premature. How soon it will become expedient and proper experience only can shew. But in the mean time, however short that time may be, it seems necessary to have recourse to the authority of Parliament for settling the government of the province, and removing the difficulties that obstruct the settlement in the three great articles of Religion, Law and Revenue. It is therefore the humble request of all the gentlemen who have lately been appointed to the principal offices in the government of Quebec, to his Majesty's Ministers of State, that they would use their influence and endeavours to procure such an act of Parliament as they shall upon the whole matter think to be necessary, to remove the difficulties that have been stated, and to enable the said gentlemen to administer the government of that province in their several departments, with security to themselves, and advantage to the province.