Puslapio vaizdai
PDF
„ePub“

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 17632, 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 smali 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.

XXI

AN ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRATION OF JUSTICE, AND FOR REGULATING THE COURTS OF LAW IN THIS PROVINCE, 1770

[Trans. Shortt and Doughty.]

Whereas it has been found by Experience, that the several Provisions contained in an Ordinance, bearing Date the Seventeenth Day of September One thousand, seven hundred and Sixty four, and intituled, amongst other Things, "An Ordinance for regulating and establishing the Courts of "Judicature", by virtue of which certain Powers and Authorities are given to the Justices of the Peace for this Province, as well separately as collectively, to hear and determine in matters of private Property between Party and Party, instead of answering the good purposes for which they were ordained, have become an intolerable Burthen to the Subject, and proved the means of great Disquiet, Vexation, and Oppression.

It is therefore Ordained and declared, by His Excellency the Captain General, and Governor in Chief of this Province, by and with the Advice and Consent of the Council of the same, That from and after the day of the Date of the Publication of this Ordinance, all Jurisdiction, Power and Authority in Matters of Private Property, belonging to or exercised by any Justice or Justices of the Peace for this Province, or any District, Part or Member of the same, except Such as have already procured, or hereafter may procure a Special Commission for that Purpose, under the Hand and Seal of the Governor, or Commander in Chief for the Time being, shall be clearly annulled, taken away, and determined; and that from and after the day of the Date of the Publication, aforesaid no Justice or Justices of the Peace, except as before excepted, shall have any Power or Authority to hear, examine or determine any Matter of Private Property_between Party and Party, or to make, pronounce, or deliver any Judgment, Sentence, Order, and Decree, or to do any Judicial Act whatsoever touching the same. And it is further Ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, the following Clauses or Parts of an Ordinance, bearing Date the Seventeenth day of September One thousand, seven hundred and sixty-four, and intituled, amongst other Things, "An Ordinance for regulating and establish"ing the Courts of Judicature" shall be repealed, and the same are hereby repealed and absolutely revoked and made void; that is to say, "And "Whereas it is thought highly necessary for the Ease, Convenience, and "Happiness of all His Majesty's loving Subjects, that Justices of the Peace "should be appointed for the respective Districts of this Province, with "Power of determining Property of small Value in a summary way; it is "therefore further ordained and declared by the Authority aforesaid, and "full Power is hereby given and granted to any one of His Majesty's "Justices of the Peace within their respective Districts, to hear and finally "determine in all Causes or Matters of Property, not exceeding the Sum "of Five Pounds Current Money of Quebec; and to any Two Justices of "the Peace within their respective Districts, to hear and finally determine, "in all Causes or Matters of Property not exceeding the Sum of Ten "Pounds said Currency; which Decisions being within, and not exceeding "the aforesaid Limitation, shall not be liable to an Appeal: And also full "Power is by the Authority aforesaid given and granted to any Three of "the said Justices of the Peace to be a Quorum, with Power of holding "Quarter Sessions in their respective Districts every Three Months, and "also to hear and determine all Causes and Matter of Property which shall be above the sum of Ten Pounds, and not exceeding Thirty Pounds, "Current Money of Quebec, with Liberty of Appeal to either Party to the Superior Court or Court of King's Bench;" and all and every other Ordinance or Ordinances, and all and every Article, Clause or Sentence, in them and every of them, by which any Jurisdiction, Power, or Authority,

to hear and determine in Matters of Private Property between Party and Party, is given, limited and Appointed to any Justice or Justices of the Feace, for so much as concerneth the same, shall also be repealed, and the same are hereby repealed, and absolutely revoked and made void.

And it is further ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, if any Justice or Justices of the Peace, or any other Person whatsoever, shall offend or do anything contrary to the Purport, true Intent, and Meaning of this Ordinance, he or they so offending, besides being liable to answer the same in a Criminal way, Shall also forfeit and lose, unto the Party grieved by any Thing so done, his, her, or their treble Damages, which he, She, or they shall sustain and be put unto by means or Occasion of any Thing so done as aforesaid; the same to be recovered in any of the Courts of Record in this Province, by Action of Debt, or in any other way, and Manner, according to the known and Established Practice of the Court in which such Action shall be brought.

Provided always, That nothing contained in this Ordinance shall extend, or be construed to extend, to take away, determine, or abridge any of the Powers given and granted to any Justice or Justices of the Peace for this Province, by Virtue of His Majesty's Commission of the Peace to them directed, or to restrain or hinder them in the exercise of any other Powers to them limited and appointed by any other Ordinance or Ordinances, save and except such as relate to the Administration of Justice in Matters of private Property, between Party and Party only: but such Justice or Justices of the Peace is and are hereby further authorized and required to do and execute all and every matter or Thing to him or them enjoined by Virtue of the said Commission of the Peace, and also to hear and determine all Penalties and Forfeitures arising from the Breach of any Ordinance or Ordinances, and to proceed therein in the same Manner as he or they would have done if this Ordinance had not been made.

And provided also, That nothing herein contained shall extend, or be construed to extend to reverse, alter, or suspend any Judgment or Judgments already pronounced or given by any Justice or Justices of the Peace, upon which no execution has yet been Awarded; or to supersede, vacate. alter, or suspend any Writ or Writs of Execution already awarded, and not yet returned; but the said Justice or Justices of the Peace is and are hereby further authorized and required to award Execution upon such Judgments already pronounced and given, and the Provost Marshal is hereby authorized and required to enforce the same, and also to proceed upon such Writs of execution as are already awarded and not yet returned, and to levy the Debt and Costs and make such Return to the Justice or Justices awarding the same, as he would have done before the Publication of this Ordinance.

And whereas the providing an Easy, plain, and summary Method of proceeding for the Recovery of small Debts, with a due Regard at the same Time to a certain Degree of Solemnity and Deliberation, which ought ever to accompany the Administration of Public Justice, very much contributes to promote Industry, and to support and Encourage useful Credit:

It is therefore ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, all Manner of Disputes and Differences between Party and Party for any Sum not exceeding Twelve Pounds Currency of this Province, except as is hereinafter excepted, shall be heard, tried, and adjudged before the Judges of the Courts of Common Pleas for the Time being only, who are hereby authorized and required to take Cognizance thereof, and the same to hear adjudge and finally determine as to them shall seem just in Law and Equity, any Ordinance or Ordinances, or any Clause, Matter or Thing in them or any of them contained, to the contrary hereof in any wise notwithstanding.

[ocr errors]

And whereas some Inconveniences have arisen from the present Practice of adjourning the Court of Common Pleas from Quebec to Montreal, and from the want of a fixed, settled, and Established Court for the hear

« AnkstesnisTęsti »