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 against transubstantiation-From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney general of this province humbly collects it to have been your Majesty's gracious intention to assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America; he therefore conceives that the immediate revival of all the French laws lating to civil suits in this province, in the manner suggested in the fore

1 An error for "October." (See No. IV).

re

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

tenant is disposed to sell it, the rules of evidence in courts of justice, the solemnities necessary to be observed to give validity to a deed or will, and the like obvious and important matters; which would be sufficient to prevent the province from falling into confusion. And as to the nicer cases which might be omitted in such a code, they might afterwards be supplied by particular ordinances passed from time to time for that purpose.

But if this measure of making such a code of laws should not be thought adviseable, your Majesty's attorney general of this province is humbly of opinion that it would be most expedient to let the English law continue to subsist in this province as the general law of the province, and to pass an ordinance to revive those of the former French laws which relate to the tenure, inheritance, dower, alienation, and incumbrance of landed property, and to the distribution of the effects of persons who die intestate. His reasons for thinking that the French laws upon these heads ought to be revived, are as follows.

These heads of law are three in number: First,those relating to the tenures of land in this province, or the mutual obligations subsisting between landlords and tenants with respect to them. Secondly, the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring landed property. And Thirdly, the laws relating to dower, inheritance and the distribution of the effects of persons who die intestate. And these several heads of law ought, as he humbly apprehends, to be revived in this province upon separate and distinct grounds.

The laws of tenure, he conceives, ought to be considered as having been already granted by your Majesty to your new Canadian subjects by that article in the capitulation of 1760', by which your Majesty's general granted them the enjoyment of all their estates, both noble and ignoble, and by the permission given them by your Majesty in the definitive treaty of peace in 1763, to continue in the possession of them; these laws being essentially necessary to such possesion and enjoyment. Such are the laws relating to the quit-rents due by the freeholders, who hold by rent-service, to the seigniors, the mutation-fines, the right of pre-emption, and the rights of escheat in certain cases; all which constitute the principal part of the property of the seigniors.

But the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring, landed property, are not, as he apprehends, absolutely necessary to the enjoyment of the lands themselves, and therefore ought not to be reckoned quite so sacred and unchangeable as the laws of tenure themselves. Yet he conceives them to be very nearly connected with those laws, and almost dependant upon them, so that they could not be changed in any considerable degree without diminishing the value of the lands themselves, by means of the practical difficulties that would occur in making use of the new modes of conveying land that would be established in their stead; and therefore he thinks that they ought to be continued. And further, he conceives it will be the more necessary to revive or continue the French laws upon the subject, in order to prevent the introduction of the English laws upon the same subject, namely, the doctrine of estates-tail, the statute de donis, the method of defeating that statute by common recoveries, the doctrine of fines, the statute of uses, and the doctrine of uses in general, and other nice doctrines relating to real estates, which are full of so much subtlety, intricacy, and variety, that, if they were to be introduced into this province, they would throw all the inhabitants of it, without excepting even the English lawyers, into an inextricable maze of confusion. For these reasons he apprehends that the English laws upon this subject ought never to be introduced here; and that the former laws of the province relating to it ought for the present to be revived.

Lastly, as to the French laws concerning dower and the inheritance of lands and the distribution of the goods of intestates, with respect to 1 See No. II, Capitulations of Montreal, Article XXXVII.

See No. III, Treaty of Paris, Article IV.

such marriages as have been contracted, and such deaths as have happened, since the establishment of the civil government in this province, your Majesty's attorney general of this province is humbly of opinion, that those laws ought not to be considered as necessary appendages to the property of your Majesty's Canadian subjects in this province, and as having therefore been granted to them by implication in the articles of capitulation and the definitive treaty of peace; because they do not affect the property, or the rights, of the Canadians then in being, to whom alone those grants were made, but only guide and determine the course and devolution of that property after their deaths among persons that were then unborn. This, therefore, he conceives to be a matter upon which the authority of a legislator may properly be exercised. And he further apprehends, that in some time hence a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highly beneficial to this province, the present excessive subdivision of the lands, by repeated partitions of them amongst numerous families, being productive of considerable inconveniencies. But this, he apprehends, need not be done at present; and he conceives, that, if ever it should be thought adviseable to do it, it ought to be done by a full and express declaration beforehand of the time at which the proposed changes should take place, with a power given to such persons as disliked them to prevent their taking place in their respective families by express provisions and agreements to the contrary, and should be accompanied with such temperaments and modifications as should make the adopting them be in a manner the voluntary act of the persons who were affected by them. But for the present he conceives it might be better to postpone those important changes, and to revive the ancient laws of this province concerning inheritance and dower, and the distribution of intestates estates, as well as those relating to the tenures of land and the power and manner of aliening and mortgaging and otherwise incumbring it. And this one ordinance, reviving the said ancient laws relating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the tranquillity of the province, and to give satisfaction to the bulk of the Canadians: at least, he apprehends it would be enough to begin with: and if, upon trial, it should be found necessary to revive some other of the French laws that formerly subsisted in this province, it might be done by another ordinance or two, that might be passed for that purpose, when the necessity of them should become apparent. By such an ordinance as is abovementioned passed at present, and by the establishment of an easy and cheap method of administering justice in this province with sufficient expedition, he conceives that the far greater part of your Majesty's Canadian subjects would be contented. This therefore is what he humbly presumes to recommend to your Majesty as the best method which he can suggest for the settlement of the laws of this province, after the fullest consideration of this difficult and important subject.

Quebec, September 11th, 1769.

FRANCIS MASERES,

Attorney General.

XX

My Lord,

CARLETON TO HILLSBOROUGH

[Trans. Brymner, Canadian Archives Report (1890).]

Quebec, 28th March, 1770.

Herewith inclosed, I transmit to your Lordship an Ordinance', just published to correct the ill consequences of the clause therein repealed, and to put an end to the improper and oppressive use made thereof in some

'This Ordinance (No. XXI) was an attempt to correct flagrant abuses in connexion with the recovery of debts. Carleton's letter sufficiently explains the crying evils.

Parts of this Province, a measure become so necessary to the Ease and Happiness of the People, and in the end to the King's Interests, that it would have been highly injudicious to have either delayed or suspended their Relief any longer.

Your Lordship has been already informed that the Protestants, who have settled or rather sojourned here since the Conquest, are composed only of Traders, disbanded Soldiers, and officers, the latter one or two excepted, below the Rank of Captain; of those in the Commission of the Peace, such as prospered in Busines, could not give up their Time to sit as Judges, and when several from accidents and ill Judged undertakings, became Bankrupts, they naturally sought to repair their broken Fortunes at the expense of the People; Hence a variety of Schemes to increase the Business and their own Emoluments, Bailiffs, of their own creation, mostly French soldiers, either disbanded or Deserters, dispersed through the Parishes with blank Citations, catching at every little Feud or Dissension among the People, exciting them on to their Ruin, and in a manner forcing them to litigate, what, if left to themselves, might have been easily accommodated, putting them to extravagant Costs for the Recovery of very smal sums, their Lands, at a time there is the greatest scarcity of money, and consequently but few Purchasers, exposed to hasty sales for Payment of the most trifling Debts, and the money arising from these sales consumed in exhorbitant Fees, whils the Creditors reap little Benefit from the Destruction of their unfortunate Debtors; This, my Lord, is but a very faint sketch of the Distresses of the Canadians, and the cause of much Reproach to our national Justice, and the King's Government.

In my last Tour through the Country, the outcry of the People was general, the inclosed copy of a Letter I received, at my return to this Place, from a very sensible_old Captain of the Militia, is exactly the Language of all I met in this Progress, and some recent instances could be brought of their Resistance to Officers of Justice, acting illegally indeed, a strong symptom among many others of their Patience being near exhausted.

But among other Reasons, besides the foregoing, (which I am apt to believe, your Lordship will, however, think fully sufficient) that might be alleged for the Expediency of reducing the Justices of the Peace to nearly the same Power, they have in England, and of rviving Part of the ancient mode of administering Justice in this Province, there was one, which had due weight, and that was the confusion arising from so many different Jurisdictions, all acting upon different Ideas and Notions, to the great Perplexity of the honest Part of His Majesty's new Subjects, and of which the cunning and ill designing among them did not neglect to make their advantage; and if your Lordship only considers, that the new Residents here, since the Conquest came not only from all Parts of the King's extensive Dominions, but from all Parts of the World beside, there is no great Reason to wonder at that variety of sentiment in Regard to what is right or wrong, and that in general being men of no great Learning, or extraordinary abilities, they should conform their notions of Justice, to what they had formerly seen practiced, rather than to the present circumstances of things in this Province.

By the present Plan, it is intended, that the King's Judges, paid by the Crown, may in future chiefly, if not altogether, take cognizance of matters of Property, which of course, will produce a greater uniformity in the Administration of Justice, and as these Gentlemen enjoy Salaries, it will be more incumbent upon them, in point of Interest, as well as for their Honor and Reputation, to give Satisfaction to the Publick, than it ever can be upon those, who for their daily subsistence depend meerly upon the Emolument of Office, which it will consequently ever be their Interest to enhance.