such Arable or Meadow Land belonging to such Defendant or Defendants, at the proper Season, immediately after the reaping or mowing the same, and before any Part of the Produce thereof shall be removed and carried off, and of such Produce, whether of Corn or Hay, to set apart so much as in his Discretion he shall think sufficient to discharge the whole of the Writ so to him directed, and the same to sell upon the Land for the most Money that he can get, leaving the overplus, if any there be, upon the Land, for the use of the Defendant or Defendants.

And it is further Ordained and Declared by the Authority aforesaid, that if any Defendant or Defendants, or any Person or Persons by his or their Direction, after Notice to him or them of the coming of such Bailiff or other Person as aforesaid upon the Land (which Notice he is hereby required to give) shall make any Resistance, or prevent his coming upon the Land to execute the Writ, or otherwise disturb him in the execution of it, or shall remove or carry away all or any of the parcels of Corn or Hay, so as aforesaid set off, without having first satisfied the Whole of the said Writ of Execution, he or they so offending shall pay and forfeit, over and above the Sum so commanded to be levied, the Sum of Ten Pounds Currency of this Province, to be recovered in a Summary way, before one of the Judges of the Court issuing the said Writ of Execution, by the Person against whom such Offence shall have been committed, or any other Person who shall sue for the same.

Provided also, and it is hereby further Ordained and Declared, by the Authority aforesaid, That it shall and may be Lawful for any Judge or Judges issuing any Writ of Execution in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, upon due Proof before him or them made of the distressed Circumstances of the Defendant or Defendants in the Action to indorse upon the same his or their Order to the Bailiff, or other Person as aforesaid, commanding him to levy and raise the same by Installments, in such Proportions, and at such Days and Times as to him or them shall seem meet.

Provided nevertheless, That the whole of the Time so allowed, and given, shall not exceed the Space of Three months from the day of the Date of issuing such Writ of Execution; and provided also, that if it shall appear, upon due Proof thereof made before such Judge or Judges issuing such Execution as aforesaid, that the Defendant or Defendants hath, or have, at any Time after the Service of the Declaration and Writ of Summons as aforesaid, conveyed away or secreted all or any Part of his or their Goods, or Effects, in order to defeat the Plaintiff or Plaintiffs of his, her, or their Demand, that then and in such Case it shall and may be lawful to and for the said Judge or Judges immediately to award a Writ of Execution against the Body or Bodies of the said Defendant or Defendants, directed to the Bailiff or other Person as aforesaid, commanding him to arrest the said Defendant or Defendants, and him or them to convey to the Common Gaol of the District, there to remain till such Debt and Costs be fully satisfied, or other Order be made by the said Court for his or their Deliverance.

And whereas it may be of still further Utility and Convenience, and the means of extending the Benefit of these Regulations more generally throughout the Province, to constitute and appoint other Jurisdictions, by which Disputes of a still inferior Nature may be terminated, as well in the Towns of Quebec and Montreal, as in other parts of the Province remote from the Courts of Justice; It is further Ordained and Declared by the Authority aforesaid, That it shall and may be lawful to and for any Person or Persons as well within the Towns of Quebec and Montreal, as in other remote Parts of the Province, being thereto specially appointed by Commission under the Hand and Seal of the Governor, or Commander in Chief for the Time being, to hear and determine, and also to award Execution in all Causes where the matter in Question shall not exceed the Sum of Three Pounds, Current money of this Province, so as the Title of Lands be not drawn in Question in any such Proceedings, in as full and ample manner as any Judge or Judges of either of the Courts of Common

Pleas are hereby authorized and impowered to do in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, any Thing to the Contrary hereof in this Ordinance notwithstanding; and the Person or Persons so as aforesaid appointed by Commission, as well in the Towns of Quebec and Montreal, as elsewhere within the Province, are hereby authorized and commanded, in the Execution of the Powers to them entrusted of hearing, determining, and awarding as aforesaid, to keep and observe all the Rules, and Regulations herein prescribed, limited, and directed, to the Judge or Judges of the Courts of Common Pleas, in the Exercise of their Jurisdiction, in matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, and to conform to the same, both in their Judgments and Process, as fully and perfectly as if the same were herein particularly set forth at large and enjoined; and all Bailiffs of Parishes, or other Persons to whom any Writs of Summons, Warrants of Execution, or any other Process whatsoever, in matters where the Cause of Action shall not exceed the Sum of Three Pounds as aforesaid, shall be directed by any Person or Persons so appointed, as aforesaid, are hereby authorized and required to pay due Obedience to the same, and cause the same to be executed, and Returns thereof to be made to the Person or Persons so appointed, issuing the same as they would do or make to any Judge or Judges, of the Courts of Common Pleas, if such Process had issued from him or them; provided that Such Person or Persons as shall be appointed for this purpose within the Towns of Quebec and Montreal shall not sit or hold any Court for the hearing and determining Matters within their Jurisdiction on any Friday, but on some other Day in every Week, according to their Discretion other than Friday, or in such Vacation as aforesaid.

And whereas great and manifold Inconveniences and Losses have arisen to the Proprietors of Real Estates in this Province, by having their Houses and Lands taken in Execution and exposed to sale for the Payment of small Debts, and also from the hasty and informal method of setting the same to sale, even in cases where the extent of the Judgment will admit of no other satisfaction;

It is further Ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication of this Ordinance, no Process whatsoever shall be awarded for the sale of any House or Houses, Land or Lands, Tenement or Tenements, upon any Judgment or Judgments, where the Original Cause of Action shall not exceed the Sum of Twelve Pounds Current Money of this Province; and that from and after the Day of the Date of the Publication aforesaid, no Houses, Lands, or Tenements, taken in Execution upon any Judgment or Judgments obtained in His Majesty's Supreme Court of Judicature for this Province, or upon any Judgment or Judgments obtained out of the Courts of Common Pleas in Quebec or Montreal, shall be extended or sold by the Provost Marshall, or any Person whatsoever, unless the Personal Property of the Defendant or Defendants in the Action shall be found insufficient.

And it is further Ordained and Declared by the Authority aforesaid, That upon the issuing of any Writ of Execution for the sale of any Houses or Lands, or so soon after as may be, the Provost Marshal of the District in which such Houses or Lands shall lie or be shall cause the same to be advertized in the Quebec Gazette, both in English and French, and therein set forth, as near as may be, the Quantity and Condition of such Houses and Lands, together with the Terms and the Day of Sale, which Day of sale shall not be till Six Months after such Publication, and at the same Time, or so soon after as conveniently may be, he shall also cause a true Copy of the said Advertisement, both in English and French to be sent to the Head Bailiff of the Parish where such Houses or Lands shall lie or be, who is hereby ordered and required to fix the same upon the Door of such Parish Church, and to re-place the same, so often as it shall be removed, defaced, or rendered illegible by Time or Accident, and also to publish and declare the Contents thereof every Sunday at the Door of the said Church immediately after Divince Service, both in the Morn

ing and Afternoon, that the same may be fully known and understood by the Inhabitants thereof, for which the said Bailiff shall receive, out of the Produce arising from the Sale the Sum of One Spanish Dollar, to be paid by the Provost Marshal and allowed in his Accounts.

Provided always, and it is hereby, and by the Authority aforesaid, further Ordained and Declared, That from and after the Day of the Date of the Publication aforesaid, all Houses and Lands against which any Writ or Writs of Execution shall be awarded for the sale of the same, shall be taken to be, and they are hereby and by the Authority aforesaid, declared to be obliged and bound in Law to pay and satisfy all and every Judgment or Judgments, which shall and may be obtained against the Owner and Proprietors thereof, from the Day on which such Judgment or Judgments shall be pronounced or given; and that no Mortgage, Sale, or Assignment, or any Deed of Conveyance, or any Disposition without Deed whatsoever, howsoever, or to whomsoever, made after the Day on which such Judgment or Judgments shall be pronounced or given as aforesaid, shall defeat, avoid, suspend, or delay the Force and Operation of such Judgment or Judgments; but all and every such Mortgage, Sale, Assignment, Deed, and Disposition, shall be taken to be, and all and every of them are and is hereby declared to be fraudulent, as against the said Judgment, Creditor or Creditors, and to have no Validity, Power, Operation, or Effect whatsoever, to the Prejudice of such Judgment Creditor or Creditors.

And lastly, It is further Ordained and Declared by the Authority aforesaid; That all Judges and other Persons authorized to administer Justice, issuing any Writ of Execution, as well where the Cause of Action shall exceed the Sum of Twelve Pounds as aforesaid, as where it falls short of, or is equal to that Sum, shall and they are hereby authorized and required to mark upon such Writ of Execution the Day on which Judgment was given in the Cause, and if Two or more Writs of Execution shall be issued upon Judgment given the same day, against the same Defendant or Defendants, and so marked upon the Writs, such Execution shall have the same Privilege, and be satisfied in the same Proportions, and the Provost Marshal, Bailiff, or other Person, to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and commanded, after the sale of the whole of such Defendant or Defendants Real and Personal Estate, where the Said Writs shall be awarded against both, in case the same should not be sufficient to satisfy the whole of the said Judgments, to pay over and divide the Neat Produce of such Sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their respective Judgments. (Signed) GUY CARLETON. 1 February, 1770.

XXII

CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC,

17741

[Trans. Shortt and Doughty.]

The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proclamation, and other Promises solemnly given.

The king's most excellent majesty was graciously pleased, by his royal proclamation of the seventh of October, one thousand seven hundred and sixty-three, passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as

1 This document has been selected out a number, as it provides a good summary of the case for the minority in Canada.

2 See No. IV.

of his colonies in America, to resort to the said province of Quebeck, and the other provinces then lately ceded to his majesty by the French king, in order to avail themselves, with all convenient speed, of the great benefits and advantages that must accrue therefrom to their commerce, manufac tures, and navigation; and as an encouragement to them so to do, to publish and declare that his said majesty had, in the letters patent under the great seal of Great-Britain, by which the new governments in the said ceded countries had been constituted, given express power and directions to his governours in the said new colonies, that so soon as the state and circumstances of the said new colonies would admit thereof, they should summon and call general assemblies within the said governments, in such manner and form as is used and directed in those colonies and provinces in America which were under his majesty's immediate government; and that his majesty had also given powers to the said governours, with the consent of his majesty's councils of the said province, and the representatives of the people in the same, so to be summoned as aforesaid, to make, constitute and ordain laws, statutes, and ordinances for the publick peace, welfare, and good government of his majesty's said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies; and was pleased further to declare, that in the mean time, and until such assemblies could be called as aforesaid, all persons inhabiting , or resorting to, his majesty's said colonies might confide in his majesty's royal protection for the enjoyment of the benefits of the laws of England; and that for that purpose his majesty had given power, under the great seal, to the governours of his majesty's said new colonies, to erect and constitute, with the advice of his majesty's councils of the said provinces respectively, courts of judicature and publick justice within the said colnies, for the hearing and determining all causes, as well criminal as civil according to law and equity and as near as may be, agreeably to the laws of England.

And in pursuance of the said proclamation, and of the commission of captain-general and governour in chief of the said province of Quebeck, granted to major-general Murray, in the following month of November, one thousand seven hundred and sixty-three, and by him received and published in the month of August of the following year, one thousand seven hundred and sixty-four, the said major-general Murray did, with the advice of his Majesty's council of the said province, make and publish an ordinance of the said province on the seventeenth day of September, in the same year, one thousand seven hundred and sixty-four, for erecting and constituting courts of judicature; and by the said ordinance did erect two principal courts of judicature, called the Courts of King's Bench, and Common Pleas; and did by the said ordinance give power and authority to the chief justice of the province, before whom the said court of King's Bench was to be held; to hear and determine all criminal and civil causes, agreeably to the laws of England, and the ordinances of the said province; and did likewise, by the said ordinance direct and command the judges of the said second court, called the Court of Common Pleas, to determine all matters brought before them agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and then present situation of things would admit, until such time as proper ordirances for the information of the people could be published by the governour and council of the said province, agreeable to the laws of England.

And on the sixth day of Nevember, in the same year, one thousand seven hundred and sixty-four, another provincial ordinance was published by the said governour Murray, and his majesty's council of the said province, for the sake of quieting the minds of his majesty's new Canadian subjects, and removing the apprehensions occasioned by the said introduction of the laws of England into the said province, by which it was or

1 See No. VI.

2 See No. IX.

dained and declared, that until the tenth day of August then next ensuing that is, in the year of our Lord one thousand seven hundred and sixtyfive, the tenures of the lands, in respect of such grants as were prior to the cession of the said province, by the definitive treaty of peace signed at Paris, on the tenth day of February, one thousand seven hundred and sixty-three, and the rights of inheritance, as practised before that period, in such lands or effects of any nature whatsoever, according to the cus tom of the said country, should remain to all intents and purposes the same, unless they should be altered by some declared and positive law.

And the said two ordinances have been transmitted to his majesty, and never disallowed by him, and are therefore generally understood by his majesty's British subjects in the said province, to have received the sanction of his majesty's royal approbation; and in consequence of the said two ordinances, together with the proclamation aforesaid of the seventh of October, one thousand seven hundred and sixty-three, and the two commissions of governour in chief of the said province, granted successively to major-general Murray and major-general Carleton, which seem in every part of them to pre-suppose that the laws of England were in force in the said province of Quebeck, being full of allusions and references to those laws on a variety of different subjects, and do not contain any intimation of a saving of any part of the laws and customs that prevailed in the said province in the time of the French government, we the British merchants trading to Quebeck, and all the ancient British subjects residing in the said province have been made to understand and believe, that the laws of England have been introduced into the said province, and that they have had the sanction of his majesty's royal word, that they should continue to be observed in the said province.

We cannot therefore but express our surprise and concern at hearing that a bill' is now brought into parliament, by which it is intended, that the said royal proclamation of October, one thousand seven hundred and sixty-three, and the commission under the authority whereof the govern ment of the said province is at present administered, and all the ordinances of the said province, relative to the civil government and administration of justice in the same, and all commissions to judges and other officers of the same, should be revoked, annulled and made void.

We humbly beg leave to represent, that many of us have, through a confidence in the said royal proclamation, and other instruments proceeding from, and allowed by, his majesty's royal authority, ventured to send considerable quantities of merchandize into the said province, and to give large credits to divers persons residing in the same, both of his majesty's new Canadian subjects, and of his antient British subjects, who have, through a like confidence in the said proclamation, resorted to, and settled themselves in, the said province. And that we have employed our property and credit in this manner, in a firm belief, that we should have the remedies allowed us by the laws of England for the security and recovery of it; and that if we had supposed the French laws, which prevailed in the said province under the French government, to be still in force there, or to be intended to be revived in the same, we would not have had any commercial connections with the inhabitants of the said province, either French or English. And therefore we beg leave to represent, that we think ourselves intitled, upon the mere grounds of justice, (without desiring any favour to be shewn us on the account of our being his majesty's antient, and faithful, and protestant subjects, that are attached to his royal person and government by every tie of religion, interest, and habitual duty and affection) to insist that, if it be resolved to persist in this new measure of reviving all the former laws of Canada concerning property and civil rights, and abolishing the laws of England that have prevailed there in their stead since the establishment of the civil government in one thousand seven hundred and sixty-four, the execution thereof may at least be postponed until we shall have had sufficient time to withdraw our effects from the said province, and obtain payment of 1i.e. The Quebec Act (No. XXV).