XIV 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 me 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 1 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 Your Lordship's GUY CARLETON. 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. * * I am &c HILLSBOROUGH. XVIII To the Earl of Hillsborough 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. XIX ATTORNEY GENERAL MASERES' CRITICISM OF GOVERNOR CARLETON'S REPORT ON THE LAWS OF THE Your Majesty's attorney general of this province approves that part of the foregoing report which gives an account of the constitution of the government of this province during it's subjection to the French king, and believes the said account to be true in most particulars; but he cannot assent to that part of the said report which suggests to your Majesty the expediency of reviving the whole of the French laws in civil matters, for the following reasons. In the first place, he thinks it will be a deviation from that plan of conduct which your Majesty has hitherto thought fit to pursue with respect to this province ever since the conquest of it by your Majesty's arms in 1760, which he conceives to have been, to endeavour to introduce the English laws and the English manner of government into it, and thereby to assimilate and associate this province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jeffery Amherst, to whom this province was surrendered, to keep up, from the first moment of the conquest, all the courts of justice that were at that time in being in the colony, and even the several officers that composed them, upon the same footing on which they then subsisted. But as your Majesty's said general did immediately suppress all the former jurisdictions, and erect military councils in their stead, and in the articles of capitulation refused to promise the inhabitants of this province the continuance of the custom of Paris, and the other ancient laws and usages by which they had been governed, though requested in that behalf by the French general;-and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new Canadian subjects even in the delicate and important article of the free exercise of their religion, only so far as the laws of England will permit;-and as your Majesty, by your royal proclamation of the 7th of November, 1763, did encourage your British and other ancient subjects to go and settle in this and the other new-erected governments, and did promise them, as excitement thereunto, the immediate enjoyment of the benfit of the laws of England;-and as your Majesty did afterwards, by your commission of vice admiral of this province granted to General Murray, expressly introduce all the laws of the English courts of admiralty into this province; and by your commission to the same gentleman to be captain general and governour in chief of this province, did direct him to summon an assembly of the freeholders and planters in this province, and in conjunction with them to make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws of England were already introduced there; and did in other parts of the said commission allude to divers of the laws of England as being already in force here, as particularly the laws relating to the oaths of abjuration and supremacy, and the declaration agains transubstantiation-From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney genera of this province humbly collects it to have been your Majesty's gracious in tention to assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America; h therefore conceives that the immediate revival of all the French laws re lating to civil suits in this province, in the manner suggested in the fore 1 An error for "October." (See No. IV). going report, will have at least the appearance of a deviation from the plan of conduct which your Majesty has hitherto adopted, and of a step towards a preference of the contrary system of keeping this province distinct from and unconnected with, all your Majesty's other colonies in North America: and this appearance he humbly conceives to be itself a considerable inconvenience, and very fit to be avoided, unless very strong reasons of justice or policy made such a measure necessary, which he does not conceive to be the case; for, on the contrary, he apprehends that the said total revival of the custom of Paris, and all the other French laws relating to civil suits, will be attended with the following additional inconveniencies. In the first place, it will make it difficult for any of your Majesty's English subjects to administer justice in this province, as it will require much labour and study, and a more than ordinary acquaintance with the French language to attain a thorough knowledge of those laws. In the next place, it will keep up in the minds of your Majesty's new Canadian subjects the remembrance of their former government, which will probably be accompanied with a desire to return to it. When they hear the custom of Paris, and the parliament of Paris, and its wise decisions, continually appealed to as the measure of justice in this country, they will be inclined to think that government to be best, under which those wise laws could most ably be administered, which is that of the French king; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of disaffection to your Majesty's government, and in a disposition to shake it off on the first opportunity that shall happen to be afforded them by any attempt of the French king to recover this country by force of arms. And in the third place, it will discourage your Majesty's British subjects from coming to settle here when they see the country governed by a set of laws, of which they have no knowledge, and against which they entertain (though perhaps unjustly) strong prejudices. Your Majesty's attorney general of this province is further of opinion, that the body of your Majesty's new Canadian subjects are by no means either so distressed or so discontented by the introduction of the English laws into this province as they are represented in the foregoing report: at least he has seen no proofs of either such great distress or high discontent. What he has principally observed to be the subject of their complaints has been, either the expence or the dilatoriness of our law-proceedings; which he therefore conceives stand in need of reformation: and he is of opinion, that to establish three courts of general jurisdiction in all matters criminal as well as civil in the province, to sit every week in the year (with a very few exceptions) in the towns of Quebec, Three Rivers, and Montreal, would be the most adequate remedy for these complaints. And as to the substance of the laws which are to be henceforwards admitted in this province, he conceives that the best way of all to settle these would be to make a code of them, that should contain all the laws of every kind, criminal as well as civil, that were intended to be of force here, to the exclusion of all other laws, both French and English, that were not inserted in the said code; by which means all pretence would be taken away both from the French and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even though it should be very imperfectly executed, and many important articles should happen to be omitted in it; provided only that those things that were inserted in it were useful and reasonable, and set forth in a clear and proper manner: because he apprehends that the rules so inserted would be sufficient to govern at least all the common cases that would happen in the ordinary course of human affairs, such as descents in the right line, the right of representation in grand-children whose parents are dead, the dower of widows, the rents and services due to seigniors, the obligations and duties due from them to their tenants, the seignior's right to the common mutation fines, his right of pre-emption of his tenant's land when the |