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COMMISSION OF THE CHIEF JUSTICE, 1766
[Trans. Shortt and Doughty.]
GEORGE THE THIRD, by the Grace of God, of Great Britain, France, and Ireland, KING, Defender of the Faith, and so forth; To our Trusty and well beloved WILLIAM HEY, Esquire, Greeting.
Know, ye, that we having taking into our Royal Consideration, Your Loyalty, Integrity, and ability, Have, assigned, Constituted, and appointed, AND WE, do hereby assign, Constitute, and appoint, you, the said Commission WILLIAM HEY, our Chief Justice of, and in our Province of Quebec in to be Chief America; To enquire by the Oaths of honest and lawful men of the Justice of the province aforesaid, and by other lawful ways, Methods, and means, by Quebec. which you can or may the better Know, as well within liberties as without, of whatsoever Treasons, misprisions of Treason, Insurrections, Rebellions, Murders, Felonies, Homicides, Killings, Burglaries, Rapes of Women, Unlawful Congregations and Assemblies, words spoken, Misprisions, Confederacies, False Allegations, Trespasses, Riots, Routs, Escapes, Contempts, Falsities, Negligencies, Concealments, Maintenances, Oppressions, Cham- Power to porties, Deceits, and other Misdoings, Offences, and Injuries whatsoever, inquire of all as also of the accessaries thereto within the province aforesaid, as well felonies, and within liberties as without, by whomsoever and howsoever had, done, per- other offences; petrated, or Committed, or which hereafter may happen to be done, per
petrated or Committed, and by whom, to whom, when, where, and how,
and of all other articles and Circumstances, the premises, or any of them, and the same any wise Concerning: And the said treasons and other the premises to hear to hear and determine and determine, according to the law and Custom of that part of our King- according to dom of Great Britain called England, and of our said province of Quebec, the laws of hereafter to be made. THEREFORE WE Command that, at such certain England and days and places as you shall appoint, You make diligent inquiry of the of the province premises; and all and singular the premises you hear and determine; and hereafter to the same do and fulfil in form aforesaid, doing therein that which to be made. Justice doth belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made: Saving to us our Amerciaments and other things thereby to us belonging; for we will Command all and every our Sheriffs or provost Marshal's of our province aforesaid; That at such certain days, and places as you our Chief Justice shall make known to him, them, or any of them, they cause to come then and there before you such and so many honest and lawful men of our said province as well within liberties as without, by whom the Truth of the matter may be the better Known and inquired of.
AND FURTHER, KNOW YE That we have assigned, Constituted, Power to and appointed, and by these presents, do assign, Constitute and appoint deliver goals you, the said WILLIAM HEY, our Goal of our Province aforesaid, of the of prisoners prisoners therein hereafter to be to deliver. AND, therefore we Command confined. you that, at such Certain days and places as you shall appoint, you come to our Court-House of our said Province the Goal in our said province of the prisoners hereafter therein to be to deliver, doing therein what to justice doth, or may, belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made; saving to us our amerciaments and other things thereby to us belonging: For we will Command all and every our Sheriffs and provost Marshals of our said Province of Quebec that, at such Certain days and places as you our Said Chief Justice call make known to him, them, or any of them, they Cause to Come then and there before you our said Chief Justice all the prisoners of the same Goal and their attachments.
AND FURTHER KNOW YE That we have assigned, Constituted, Power to hear and appointed, and by these presents, do assign, Constitute and appoint all civil suits
mixt, either between the
King and a subject, or between subject and subject.
YOU, the said WILLIAM HEY, Our Chief Justice of Our Supreme Court whether real, of Judicature of our said province of Quebec, to inquire by the oaths of honest and lawful men of the province aforesaid, and by other lawful ways, methods and means, by which you can or may the better Know, as well within Liberties as without, of all civil pleas, actions, and suits, as well real and personal, as mixed, between us and any of our Subjects, or between party and party, by whomsoever had, brought, sued and Commenced, and of all other articles and circumstances the premises, or any of them, any wise Concerning: and the said pleas, actions, and suits, and every of them, to hear and determine in manner and form aforesaid, doing therein that which to Justice doth belong and appertain according to the Laws and Customs of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations of our said province of Quebec, hereafter in that behalf to be Ordained and made. THEREFORE WE Command you that, at such Certain Days and places, as you shall appoint, you make diligent inquiry of the premises; and all and singular the premises to hear and determine in manner and form aforesaid, doing therein that which to justice doth belong or appertain according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations, of our said province of Quebec hereafter in that behalf to be made: FOR WE will Command all and every Our Sheriffs or provost Marshal of our province aforesaid that at such Days and places, as you our Said Chief Justice shall make Known to him, them, or any of them, they Cause to Come then and there before you, such and so many honest and lawful men of our said province, as well within liberties as without, by Whom the truth of the matter may be the better Known.
This Office to
the King's pleasure and the Chief
TO HAVE, HOLD, AND EXERCISE the said Office of our Chief be held during Justice of and in our Said province of Quebec, for and during our Royal Will and pleasure and your Residence within our Said province; Together with all and Singular the Rights, profits, free priviledges, and Emoluments to the said Office belonging, in as full and ample manner as any other Chief Justice of any of our provinces of America HATH heretofore held and Enjoyed, or of right ought to have, hold, or Enjoy, the same with full power and authority to hold the Supreme Courts of Judicature at such places and times as the same may or ought to be held within our said province.
dence in the Province.
IN TESTIMONY whereof we have Caused these our Letters to be made patent and the Great seal of our said province of Quebec, to be hereunto Affixed, and to be entered on record in one of the Books of patents in our Registers Office of Inrollments of the said Province WITNESS Our Trusty and well beloved. The Honble. Guy Carleton, Esquire, Our Lieutenant Governor and Commander in Chief in and over our said province of Quebec and the Territories thereon depending in America, at our Castle of Saint Lewis in our said City of Quebec, The Twenty-fifth Day of September in the Year of our Lord one Thousand seven hundred and sixtysix, and in the Sixth Year of our Reign.
(Signed) GUY CARLETON'.
1 Murray was recalled to England in April, 1766, but he continued to hold his office as Governor. Sir Guy Carleton was appointed his deputy on 7 April, 1766, with the title Lieutenant-Governor. He acted under the Instructions given to Murray (No. V) until he was appointed Governor in 1768, when he received a new set of Instruc tions addressed to himself. For his work in Canada, see A. G. Bradley, Life of Lord Dorchester.
REMONSTRANCE OF MEMBERS OF COUNCIL TO CARLETON' [Trans. Shortt and Doughty.]
Quebec, Octor. 13th, 1766.
We, the underwritten Members of His Majesty's Council for the Province of Quebec, think it our indispensible duty to communicate to you our sense of the method lately adopted of calling together only a part of the Council: The bad consequences which may arise from Practice are manyfold; But as you are pleased to signifye to Us by Coll. Irving that it was accident, & not Intention, it is needless for us to enumerate them.
We would be wanting to ourselves, & Others in the same Circumstances if we did not remonstrate against an opinion lately insinuated, as if Mandamus's from Brittain suspended Appointments to the Council made by Govr. Murray. We apprehend his Commission & Instructions, by which he was authorized to constitute a Council & to make choice of the Persons, to be to all Intents, & purposes, a Mandamus to each of Us, provided His Majesty did not disapprove of Us, when reported to Him by the Governour: The many Difficulties which for Two Years we had to encounter in a new Establishment for a Province under very peculiar circumstances, perhaps entitle us to some Reguard: At any Rate tho' His Majesty may have an undoubted Right to encrease the number of his Council by granting Mandamus's to whom He pleases, it is to be presumed that by so doing there is no Intention to deprive Us either of our Right to Precedence, or to a Seat in Council: A late event on the Departure of Govr. Murray is a proof of the contrary.
If by the Constitution or Custom of the Colonys the number of the Council is restricted, Mandamus's are in that Case to be regarded only as an Order for the Admission of the Persons named therein, Provided there is a Vacancy.
If the Deference which we feel for every Manifestation of the Will of our Sovereign has prevented us from objecting to any person possessed of a Mandamus from being sworn into the Council, We apprehend that if the Council is at present, or hereafter may be restricted, The Councillor last admitted is to be considered as the Supernumerary.
We have the honr. to be wth. the greatest respect Sr. yr. most obedt. hble. Servts.
As Lieutenant Colonel Irving has signified to you, that the Part of my Conduct, you think worthy your Reprehension, happened by Accident, let him explain to you his Reasons for so doing, He had no authority from
But that there may be no further Doubt, I hereby make known to you, that I both have and will, on all Matters which do not require the Consent
These two documents (Nos. XIV and XV) illustrate not only the difficulties which met Carleton in his new work, but also something of his methods.
of Council, call together such Councellors as I shall think best qualified to give me Information: and further, that I will ask the Advice and Opinion of such Persons, tho' not of the Council as I shall find Men of good Sense, Truth, Candor, and Impartial Justice; persons who prefer their Duty to the King and the Tranquility of His Subjects to unjustifiable Attachments, Party Zeal, and to all selfish mercenary views: After I have obtained such Advice, I will still direct as to me shall seem best for His Majesty's Service, and the Good of His Province Committed to my Care
I further make Known to you, and for the first time I give an Opinion, that for the present His Majesty's Council consists of twelve Members; those named and appointed immediately by the King have the Preference, next follow those appointed by Governor Murray till the Seats are all full: You will be pleased to recollect, Gentlemen, that Mr. Stewart, tho' sworn into Council after Mr. Mounier, has by Virtue of the King's immediate Appointment constantly taken Place and Precedence of you all.
I must also remind you, that His Majesty's Service requires Tranquility and Peace in His Province of Quebec, and that it is the indispensable Duty of every good Subject, and of every honest Man, to promote so desirable an End.
This System of Laws established Subordination, from the first to the lowest, which preserved the internal Harmony, they enjoyed untill our Arrival, and secured Obedience to the Supreme Seat of Government from a very distant Province. All this Arrangement, in one Hour, We overturned, by the Ordinance of the Seventeenth of September One Thousand seven hundred and sixty four, and Laws, ill adapted to the Genius of the Canadians, to the Situation of the Province, and to the Interests of Great Britain, unknown, and unpublished were introduced in their Stead; A Sort of Severity, if I remember right, never before practiced by any Conqueror, even where the people, without Capitulation, submitted to His Will and Discretion.
How far this Change of Laws, which Deprives such Numbers of their Honors, Privileges, Profits, and Property, is conformable to the Caputulation of Montreal, and Treaty of Paris; How far this Ordinance, which affects the Life, Limb, Liberty, and Property of the Subject, is within the Limits of the Power, His Majesty has been pleased to Grant to the Governor and Council; How far this Ordinance, which in a Summary Way, Declares the Supreme Court of Judicature shall Judge all Cases Civil and Criminal by Laws unknown and unpublished to the People, is agreeable to the natural Rights of Mankind, I humbly submit; This much is certain, that it cannot long remain in Force without a General Confusion and Discontent
I am with much Respect and Esteem
1 William, Earl of Shelburne, was appointed Secretary of State for the Southern Department on July 13, 1766.
2 In the earlier part of this despatch, which is here omitted, Carleton described the various laws and customs which prevailed in Canada before the British Conquest.
I had the Honor to serve His Majesty at the Board of Trade, in the year 1763, when His Ma'ty was pleased to publish His Royal Proclamation relative to the new Colonies, and, whatever the legal sense conveyed by the Words of that Proclamation may be, of which I pretend not to be a Judge, I certainly know what was the Intention of those who drew the Proclamation, having myself been concerned therein; And I can take upon me to averr, that it never entered into Our Idea to overturn the Laws and Customs of Canada, with regard to Property, but that Justice should be administered agreably to them, according to the Modes of administering Justice in the Courts or Judicature in this Kingdom, as is the Case in the County of Kent, and many other parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho' Justice is administered therein according to the Laws of England.
It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execution, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal Intention. The Distance of the Colony, the Difficulties arising from many Circumstances, unnecessary for me to enumerate, and the Differences of Opinion occasioned by various Causes, have prevented, as yet, the necessary Measures from being taken, to correct this original and fatal Mistake; But I trust I shall soon be impowered to signify His Majesty's Pleasure, to you, to carry into Execution, such as will not only releive His Majesty's new Subjects from the uncertain, and consequently unhappy Situation, they are now in; but give them entire Satisfaction for the future, by securing to them their Property upon a stable Foundation, and rendering the Colony more flourishing and happy than it has ever been.
A DRAUGHT' of An Intended Report of the Honourable the Governor in Chief and the Council of the Province of Quebec to the King's most Excellent Majesty in his Privy Council; concerning The State of the Laws and the Administration of Justice in that Province.
[Trans. Shortt and Doughty.]
.His excellency has thought fit to mention only one method of settling the laws of the province, which he strongly recommends to his Majesty, as the only way of doing justice and giving satisfaction to the Canadians, which is, to continue the laws of England with respect to criminal matters, but to revive the whole body of the French laws that were in use there before the conquest with respect to civil matters.
Wills, Earl of Hillsborough, was appointed first Secretary of State for the Colonies on the creation of that Department in 1768.
2 Francis Maseres drew up a draft report on the state of law and justice in Quebec, which was handed over to Carleton on 27 February, 1769. Carleton did not approve of it and another report was drawn up containing his own ideas, which are those of this document. The entire report has not been found, and we are indebted to a record by Maseres from which this extract has been taken.