Report of Attorney and Sollicitor General, relative to the Civil Government of the province of Quebec
SOURCE(S) : Documents relating to the constitutional history of Canada, 1759-1791, p. 251-257. Also reproduced at solon.org without original footnotes.
To the Right Honourable the Lords of the Committee of Council for Plantation affairs.
MY LORDS, — In humble obedience to your Order of the 19th of November last wherein it is recited, that his Majesty having been pleased, to refer to your Lordships several memorials and Petitions from His Majesty's Subjects in Canada as well British and French, complaining of the several Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature, and other Civil Constitutions; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report made thereupon by the Lords Commissioners for Trade and plantations dated 2nd September last and finding that the said Lords Commissioners had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, That said Memorials Petitions, and Reports (which were thereunto annexed) should be referred to Us, to consider and Report Our Opinion, and observations thereon, together with such alterations to be made in what is proposed in the said Report of the Lords Commissioners for Trade and plantations, and such other regulations & propositions, as we should think fit to suggest for the forming a proper plan of Civil Government for the said province of Quebeck; and to that end we were directed to take into our Consideration such parts of the annexed report of Governor Murray, upon the state of the said province as relate to the Civil Government thereof whilst the same was Annexed to the Crown of France, And were also required to send for Lewis Cramahé Esquire Secretary to Governor Murray and Fowler Walker Esquire Agent for the said province of Quebeck, who were Ordered to attend us from time to time, to give us such further Lights and information as might be requisite for the purpose aforementioned.
We have perused the several papers referred to us, together with the said two Reports and have also been attended by the Gentlemen named in your Order; and upon the whole matter, beg leave humbly to submit to your Lordships such Reflections as have occurred to us in the Course of that imperfect consideration, which we have been Able at this Busy Season of the year to give to the Great subject of the Civil Government of Quebec and the propositions made by the Lords Commissioners of Trade and plantations.
My Lords, it is evident that Two very principal sources of the Disorders in the province have been. 1st The attempt to carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Canadian Advocates or Sollicitors to Conduct their Causes, nor Canadian Jurors to give Verdicts, even in Causes between Canadians only, Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgement; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them.
The second and great source of disorders was the Alarm taken at the Construction put upon his Majesty's Proclamation of Oct. 7th 1763. As if it were his Royal Intentions by his Judges and Officers in that Country, at once to abolish all the usages and Customs of Canada, with the rough hand of a Conqueror rather than with the true Spirit of a Lawful Sovereign, and not so much extend the protection and Benefit of his English Laws to His new subjects, by securing their Lives, Libertys and propertys with more certainty than former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Decent Alienation and Settlement, which tend to confound and subvert rights, instead of supporting them.
1st To the first of these Evils the Order made by your Lordships on the 15th of November last founded on the Report of the Lords Commissioners of Trades and plantations, requiring the Governor & Commander in Chief of the province (by an additional Instruction) to Publish an Ordinance for admitting Canadian Jurors, in the several Cases therein expressed, and for permitting Canadian Advocates, Attorneys, and Proctors, under proper regulations, provides an adequate Remedy.
2nd To the Second Evil the Lords Commissioners of Trades and plantations by their Report, have applyed themselves with great Care, ability and Judgement, to suggest Remedys, by pointing out the defects in the late Ordinance of September 1764 and reforming the Constitution of Justice; We concur with their Lordships in the objections made to the Ordinance; And upon the several articles of Plan laid Down in that report, the following observations Occur to Us, both for the Confirmation and Improvement of them.
1st The first Article proposes a Court of Chancery consisting of the Governor and Council, who shall also be a Court of Appeals, from whom an appeal will lie to the King in Council; By this Article Lords of Trade very rightly mean to Invest the Governor and Council with Two different Jurisdictions; The One as a Court of Equity, to give relief originally in that Capacity the other as a Court of Errors, to review in the second Instance the Judgements of the Court of Common Law, mentioned in the next Article.
2nd The Second Article proposes a Superior Court of Ordinary Jurisdiction, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Justice should preside, Assisted by three puisne Judges; These are required to be conversant in the French Language, and that one of them particularly should be knowing in the French usages.
This proposition appears to us well conceived; and we submit to your Lordships, whether it may not be advisable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learning, Integrity and Conduct, who may prove of the greatest of assistance to English Judges. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethren. The new Judge of Vice Admiralty for America has appointments of £800 per Annum.
3d The Third Article relates to Terms for the sitting of the Superior Court at Quebec, either according to the Terms appointed at Westminster, or as may be more convenient. This matter must be accommodated to the Seasons, Climate and convenience of the people in their Tillage and other General employments, therefore it seems proper to be left to the future Judgement of the Governor Chief Justice, and Principal servants of the Crown, entrusted with the Government of the province and ought to be fixed by Ordinance.
4th The Fourth Article proposes four Sessions of Assize, Oyer and Terminer, and Gaol Delivery at Quebec, with like special Commissions, once or oftener in the year at Trois Rivieres and Montréal. We submit to your Lordships, that it may be unnecessary to lay down any particular Rules for holding four Sessions in the manner mentioned at Quebec; because all Civil and Criminal Causes arising in that District may be tried at Bar in Term time, or (as the legal Expression is) in Bank By Order of the Judges, or under the General powers of the supreme Court, As to the Circuit Courts to be held once, or perhaps twice in the year (which seems better) at Trois Rivieres and Montréal, We think, that it may be proper to require that the Judges shall continue in each of those places, at the least, for a Certain Number of Days to give time and opportunity for the resort of partys and the convenient Dispatch of Business, in like manner as was done by Henry the 8th in establishing the Courts of Great Sessions for Wales, and by the Parliament in his late Majestys Reign, when the Circuit Courts were settled for Scotland.
5th The Fifth Article recommends the Distribution of the province into three Countys or Districts, of which, Quebec, Montreal and Trois Rivieres shall be the three Capital Towns, and that an Annual sheriff be named for each.
We are humbly of the opionion that this Distribution of the province is more natural and convenient than the plan lately followed by the Governor and Council, and it will be more agreeable to the People, as it is confortable to their Ancient Division of the Country. But considering the difficulty of procuring English and protestant sheriffs, especially at Trois Rivieres (where at present only Two persons who are half pay Officers reside thus qualified) it may deserve consideration whether such Sheriff should not serve longer than one year, till such time as the gradual increase of Inhabitants may facilitate an Annual Rotation; or whether the Annual Sheriff of Quebec may not also serve that office for Trois Rivieres. This will oblige him, to appoint two Deputys or under Sheriffs, that is one for each District, And if this method be taken, the Sheriff may be made an Annual Officer, because Quebec can afford sufficient number of proper persons to supply the Rotation, and Montreal. (it is agreed) Can do the like.
6th The Sixth Article proposes to give the Justices of Peace in the three several Districts, at their General Quarter Sessions, Power to determine finally all causes not exceeding the value of Ten pounds (the Title to Lands not being in Question) with a Jury where it exceeds Five pounds and without one where it falls under that sum, it gives also to Two Justices in Petty Sessions, similar Authority in similar cases, where the value of the matter in dispute is not more than Forty Shillings. The latter Authority appears to us well proposed; but we submit, whether it may not be better to reserve the Jurisdiction in matters exceeding that value as far as Ten pounds to be determined in Quebec, By proceeding in nature of the Civil Bill in Ireland before the Judges of the superior Court, or by proceeding in Nature of the summary Bench; Actions at Barbadoes, and in like manner in the Circuit Courts at Trois Rivieres and Montreal twice in the year; The value of Ten pounds is considerable in such a colony and the reputation of the Justices of Peace is, as yet scarce enough established for such a Jurisdiction; Under this Article We beg leave to suggest that in the Commission of the Peace for each District it may be useful and popular and endear his Majesty's Government to his new Subjects; if one or Two Canadians should be appointed Justices, with the others who are British, particularly if Protestants can be found fit for that Office.
7th The seventh and last point mentioned in the Report of the Lords of Trade, on which we shall observe, is that Article wherein they propose, that in all Cases where Rights and Claims are founded on events prior to the Conquest of Canada and several Courts shall be Governed in their proceedings, by the French usages and Customs which have heretofore prevailed in respect to such property.
This proposition is undoubtedly right, as far as it goes, in respect of Cases which happened, antecedent to the Conquest, antecedent to the Conquest; but we beg leave to take Occasion from hence, to enlarge a little on this subject of Rule of Judgement to be observed in the Courts of Quebec as it is of the greatest moment to the honor and Justice of the Crown, and to the Peace and prosperity of the Province.
There is not a Maxim of the Common Law more certain than that a Conquered people retain their ancient Customs till the Conqueror shall declare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence; and therefore wise Conquerors having provided for the security of their Dominion, proceed gently and indulge their Conquered subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained the force of Laws, It is the more material that this policy be persued in Canada; because it is a great and ancient Colony long settled and much Cultivated, by French Subjects, who now inhabit it to the number of Eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by his Majesty in this province will answer all the ends of their trust, both as to the King and to the people, if their conduct in Judicature be modelled by the following General Rules.
1st First in all personal actions grounded upon Debts, promises, Contracts and Agreements, whether of a Mercantile or other nature, and upon wrongs proper to be compensated in damages, to reflect the the substantial maxims of Law and Justice are every where the same. The modes of proceeding and Trial, and perhaps in some degree also strict Rules of Evidence may vary, but the Judges in the province of Quebec cannot materially err, either against the Laws of England, or the ancient Customs of Canada; if in such Cases they look those substantial maxims.
2nd Second in all suits or Actions relating to Titles of Land, the Descent, Alienation, Settlements and Incumberances of Real property, We are humbly of opinion, that it would be oppressive to disturb without much and wise deliberation and the Aid of Laws hereafter to be enacted in the province the local Customs and Usages now prevailing there; to introduce at one Stroke the English Law of Real Estates, with English modes of Conveyancing Rules of Descent and Construction of Deeds, must occasion infinite confusion and Injustice. British Subjects who purchase Lands there, may and ought to conform to the fixed local Rules of Property in Canada, as they do in particular part of the Realm, or in the other Dominions of the Crown. The English Judges sent from hence may soon instruct themselves by the assistance of Canadian Lawyers and intelligent Persons in such Rules, and may Judge by the Customs of Canada, as your Lordships do in Causes from Jersey by the Custom of Normandy; It seems reasonable also, that the rules for the Distribution of personal property in Cases of Intestacy and the modes of assigning and Conveying. It should be adhered too for the present.
3rd Thirdly in all suits entertained before the Governor and Council, as a Court of Chancery or Equity, it is obvious that the General Rules of Law and Justice must be the same as in the other Courts, according to the subject matter of the suit with this difference only, that the relief is more compleat and specific and adapted to supply the Defects, or ally the Rigor of those Rules.
4th Fourthly in Criminal Cases, whether they be Capital Offences or misdemeanors, it is highly fitting (as far as may be) that the Laws of England be adapted in the Discription and Quality of the offence itself, in the manner proceeding to charge the party Bail or detain him. The Certainty, the Lenity of the English Administration of Justice and the Benefits of this Constitution will be more peculiarly and essentially felt by his Majesty's Canadian Subjects, in manners of Crown Law, which touch the Life, Liberty, and Property of the Subject, than in the conformity of his Courts to the English Rules of Real and Personal Estates.
This Certinty and this Lenity are the Benefits intended by his Majesty's Royal proclamation, so far as concerns Judicature. These are Irrevocably Granted and ought to be secured to his Canadian subjects, according to his Royal Word. For this purposes it may not be improper upon the appointment of a new Governor with a new Commission revised and Considered by your Lordships, to direct that Governor to publish an explanatory proclamation in the Province, to quiet the minds of the People as to the true meaning Royal proclamation of October 1763 in Respect to their local Customs and usages, more especially in Titles of Land and Cases of Real property.
5th Fifthly in Rules of process and the Practice of the Courts. We beg leave to suggest, that it may be expedient to order the new Chief Justice, with the assistance of the other Judges, to be appointed and the Attorney General of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, and the convenience of the Suitors. The Forms of proceeding out to be simple easy and as summary and expeditious as may consist with the advancement of right and the protection of Innocence, useful hints may be taken not only from the supreme Courts of Westminster, but from the practice of the Court in Wales, and from many of the Colonys. Some time will be necessary, before such a plan can be framed and experience alone can perfect it. As soon as they shall have prepared it, the Governor and Council may enact it by an Ordinance and transmit the same in the accustomed manner, to be laid before his Majesty for his Royal approbation.
All which is humbly submitted &c
William DE GREY
April 14th 1766
Endorsed:— Report of the Attorney and Sollicitor General, relative to the Civil Government of the province of Quebec. 13th May 1766.
Read at the Committee and the Board of Trade Ordered to prepare a draught of an additional Instruction thereupon &c.
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