Questions submitted and proposed to Messrs Powell, Adhemar and de Lisle by the Baron Maseres with the answers of these Messrs, given in their meeting on March 13, 1784
Translation of Questions remises et proposées à Messieurs Powell, Adhemar et de Lisle par le Baron Masères... found in Appel à la justice de l'État, a collection of letters by Pierre du Calvet.
[Firstly, –] Would it please the Canadiens that the English law of Habeas Corpus be solemnly introduced in Canada by an Act of Parliament; so that the power to put men in prison be exerted only by written orders signed by the magistrate who gives them, and in which written order would be expressed the cause of the imprisonment; and that the judges of the province be given the right to examine the causes expressed in these orders, and, if they were not legitimate grounds to imprison a man according to the existing laws of the province, to liberate the people, wrongfully held captive, in their prisons, either without any condition, and with or without bail, according to whether the laws would require it; and that all this procedure be in application as much for the people who would be imprisoned by the order of the governor, or the King himself, as for those who would be imprisoned by any other person?
Secondly, – Would it please the Canadiens that be restored, in the courts of justice of the province, the right to have jurors decide the facts that would be disputed between the litigating parties in civil matters, if the parties, or one of them required it, as it was in the province from September 1764, up until May 1st, 1775, when the Act of the Parliament of the year 1774, for the establishment of the government of this province, began to take force? -- And, if jurors were restored in civil matters, would it please the Canadiens, that while giving their reports, or verdicts, on the matters submitted to their decision, one required that they be, all twelve, unanimous, or rather that they claim to be so; or would it be more pleasant to the Canadiens than the decision of nine jurors, who would agree, out of the twelve, be considered sufficient to decide the matter in question according to their feeling, in spite of the opposition of the others three jurors? -- And, moreover, would it be pleasant to the Canadiens that jurors be paid by the litigating parties, or by the party which would require it, a moderate sum, like one Spanish piastre each, or half a piastre, to reward them for the time and attention which they would be obliged to give to these decisions?
Thirdly, – Would it please the Canadiens, that, in order to have the members of the Legislative Council of the province act with more liberty and zeal for the good of the province, and to make them more respectable to the eyes of the other inhabitants of the province, it be ordered in the least ambiguous and most solemn way, by an act of the Parliament, that the governor does not have the power to dismiss any member of that council from his advisory office, or even to suspend any member for a time, however short it may be, without the assent of four fifth of the members of the council, i.e. if they were twenty advisers, then sixteen among these twenties; and, in all cases, if the advisers were less than the number of fifteen, without the assent of at least twelve advisers; which assent from the advisers who would join the governor in suspending one of their fellow-members, would be signed of their hand on the registers of the council, and also on another copy that would be given to the suspended person. Always provided that the King Himself preserved the power to dismiss such adviser that he would like, when it would seem good to Him, or by an act made in His private council, or by an order signed by His hand, and contresigned by the Secretary of State.
Fourthly, – Would it please the Canadiens, that, to render the judges of the province more courageous in administering justice with impartiality, it be ordered by an act of Parliament, that none of them be removable of his office of judge by the governor of the province, under whatever pretext it may be; and also that the governor should not have the power to suspend any one of them for more than a year, nor for this amount time, or any amount time, whatever short it may be, without the assent of at least twelve members of the legislative council of the province, signed by their hands on the registers of the council, and also on another copy which would be given to the suspended judge: Always provided that the King Himself keep the power to dismiss any judge He would like, when it would seem good to Him, or by an act made in His private council, or by an order signed by His hand, and contresigned by the Secretary of State.
Fifthly, – Would it please the Canadiens, that it be declared by an act of Parliament,that the governor of the province could never imprison any person in the province, whatever the cause; not even for the most atrocious and most attested crimes: but what the duty to imprison the people who would have offended the law, and would deserve to be put in prison, belonged only to the criminal judges, and to justices of the peace, or in general to the magistrates of criminal justice? -- This law is in force in England; because the King of England does not have the right to imprison any person in England by His own order, for whatever crime it may be; not even for the crime of lese-majesty, or rebellion, which would be attested by the oath of ten eyewitnesses, or for an assassination which would be attested in the same way: but, if one gave Him information of such crimes, He would be obliged to transfer the matter to His Chief Justice of the King's Bench, (which is the higher court of criminal justice in England) or to some Justice of the Peace, or some other magistrate of criminal justice; who, after obtaining the necessary information, would send the accused person in prison, so that his lawsuit be made, in a suitable and legitimate time and place, and, if it were found guilty by a body of jurors, that he be punished, either by death, or some other punishment which the law would have attached to the crime. By this fortunate impotence, where the law of England puts the King, to imprison whoever, for whatever reason, by His own order, two great disadvantages are avoided; that is, firstly, despotism, or the absolute power to take awy the liberty of the subjects of the crown without cause, and on the simple liking of the king; and, secondly, the personal disgrace of the King, that would result from the cassation of his orders, as illegal and insufficient, by lower magistrates: because, if the King could give orders to imprison his subjects, it would need to be either of two things one; either the order would be valid in all cases, and would not be breakable by the authority of any other person; or it would not be valid in all cases, but only if the King had given the orders on a legitimate ground, and on sufficient information; and in this last assumption, it would be necessary that some lower magistrate had the right to examine whether the ground were legitimate or not, and if the information was sufficient or not, and to break the order of the King if the ground was not legitimate, or the information not sufficient. In the first assumption, the King would be the absolute Master of the liberty of all his subjects; and in the second, the personal character of the King for justice and wisdom could suffer from disgrace, by the cassation of the orders which He would have given and signed: which would also be a great evil for the kingdom, as well as for the king, though less than the horrible despotism which would result from the first assumption. To avoid these disadvantages, the King never puts any person in prison by His own order; and it seems that it would be reasonable to declare by an act of Parliament, that the governor of the province of Quebec will equally not be able to imprison any person in this province by his own order.
These five articles, so important to the happiness and the salute of the colony, were discussed with all the maturity and coolheadedness of an enlightened policy. Messrs the deputies, guided by their lights and the sharp feelings of their patriotism, supported them of their unanimous vote: on their private behalf and in their respective individualities, they even went as far as expressing the most sincere desire of the institution of a House of Assembly, based on a general plan, the sole measure which they admitted being able to put the good administration of Canada on a fixed and respectable foundation. I was present during these decrees: I tasted a certain consolation, in communicating them all to my compatriots by 36 specimens of these five articles, which I dispatched them by the first vessels: by the most interesting means, they can, undoubtedly, but confirm them.
Mr. Maseres, in proposing these five articles, provided to the most urgent needs, to what was absolutely necessary; having regard to the little concertation that reigned in the province, he did not see it fit to increase, with a hope of success, the objects of the present requests: but if patriotism and the voice of the common interests were to suddenly bring back all souls to the unity of feeling, (a happy revolution, that today I dare to promise myself for Canada) I boldly move forward the idea that the happiness of the province would require at less the addition of the three following articles:
- The representation of Canada by the appointment of six members, according to the plan sketched in my Lettre à Messieurs les Canadiens.
- The subtraction from the authority of the governor, of the power to break, or even to suspend the lawyers, the prosecutors, the notaries, and the other legal professionals, on the same clauses stipulated for the judge as a chief.
- The decision of drudgeries left to the judgement of the legislative body, and taken away from the governor, who would then deprived of the means of molesting the poor farmers, by arbitrary and inapropriate injunctions.
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