Report to the Lords of the Committee for Plantation Affairs, on several papers relative to Ordinances and Constitutions made by the Governor of Quebec

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Report to the Lords of the Committee for Plantation Affairs, on Several Papers Relative to Ordinances & Constitutions made by the Governor of Quebec
Indorsed at Quebec on September 21st, 1765



To the Right Honorable the Lords of the Committee of His Majesty's most Honorable Privy Council for Plantation Affairs.

My Lords,

His Majesty having been pleased by an Order in His Privy Council to direct this Board to consider and report to your Lordship's our Opinion upon several Papers, which were humbly laid before His Majesty, relative to the Ordinances and Constitutions made and established by His Majesty's Governor of the Colony of Quebec in consequence of the Powers vested in Him by His Majesty's Commission and Instructions, We have, in Obedience to His Majesty's Commands taken these Papers into our Consideration, but before we enter into a particular Examination of them, and of the Ordinances and Constitutions to which they refer, it may not be improper for the better understanding thereof, to state to your Lordship's, what was the Mode and Form under which the several Governments in Canada were Administered from the Time of the Conquest to the publication of the present Commission, and also what is in general the form of Government approved of and Established, since it has been erected into one entire Colony by the name of Quebec.

Before the Establishment of the present Constitution, His Majesty's new Subjects in Canada, consisting of upwards of 80,000 Inhabitants, professing the Religion of the Romish Church, were entirely under military Government, the civil Government and Courts of Justice, which existed under the French Dominion were laid aside, & Justice was administered by Courts consisting of military Officers, which His Majesty's Governors had established by their own Authority for the Trial and Decision of all Matters of a civil as well as criminal Nature & which Establishments are stated to have been approved by one of His Majesty's Secretary's of State; but whether these military Courts were governed in their proceedings by the Laws of England, or by the Laws and Customs that subsisted in Canada before the Conquest, or by what other Rules, does not appear from any Papers before us.

By the Form of Government now established the civil Constitution of Quebec, like all other Colonies under His Majesty's immediate Government, and which do not depend upon particular Charters, arises out of, and is regulated by His Majesty's Commission & Instructions to His Governor, by which Commission and Instructions the Governor is authorized to appoint a Council, consisting of the Officers of Government, (who by their Offices are usually Members of the Councils in other Colonies) together with Eight other of the principal Inhabitants of the Province, which Council is to assist the Gov' with their Advice in all matters of State, and is also constituted a distinct branch of Legislature, and impowered jointly with the Governor and an Assembly of Freeholders, which he is directed to summon and call together, so soon as the Circumstances of the Colony will permitt, to frame and enact Laws for the Welfare & good Government of the said Colony, under the like Regulations & Restrictions prescribed in other Colonies; & untill such complete Legislature can be formed, the Governor is authorized, with the Advice & Consent of the Council, to make and pass such temporary Ordinances as shall be necessary & proper for the good Government of the Colony; Provided the said Ordinances are not repugnant, but as near as may be agreeable to the Laws of England, and do not extend to affect the Life, Limb or Property of His Majesty's Subjects, or to the levying any Duties or Taxes (His Majesty's Governor is further impowered by a particular Clause in his Commission to erect, constitute & establish, with the Advice and Consent of the Council, such & so many Courts of Judicature & publick Justice, with all reasonable Powers, Authorities, Fees & Privileges, as he and they shall think necessary for the hearing & determining all Causes as well criminal as civil, according to Law, & Equity, & for awarding Execution thereupon and by an Article in His Instructions he is Directed, in forming these Establishments, to consider, what has been approved and settled in other Colonies; and more particularly in that of Nova Scotia, the situation & Circumstances of which did, at the time of Establishing Courts of Justice therein, bear a near Resemblance to the situation & circumstances of Quebec.

This Power of erecting Courts of Justice, thus lodged in the Governor and Council, has ever been vested in, and exercised by the Governors and Councils of all Colonies upon their first Establishment, and was more particularly necessary & proper in the Case of the Colony of Quebec as the Governor and Council, by being upon the spot, might obtain such Information as would Enable them to judge what Methods of proceeding in such Courts of Justice would be best suited to the Canadian Laws and Customs in respect to their property, to which in good Policy we think a due regard ought to be had in all Cases, where they are not inconsistent with the fundamental Principles of the Laws of England.

Whether this Power, as well as such others as we have stated to have been vested in His Majesty's Governor by His Commission and Instructions, have or have not been properly exercised, depends upon a consideration of those Acts & proceedings, which followed the Promulgation of that Form of Government His Majesty has thought fit to Establish for this Colony; which Acts and Proceedings we beg leave to lay before your Lordships, so far as they have relation to the matters contained in the said Papers referred to us \u2014 ^And in obedience to His Majesty's Command humbly represent Our Opinion to your Lordship's thereupon.

The Establishment, which did of course and necessity immediately follow the Promulgation of the Governor's Commission, was that of a Council, which took place on the 13th of August last, & was composed of those Officers of Government, who are constituted of that Body Ex Officio by the Gov". Instructions, & of eight other Persons, whose names are mentioned in the annexed List transmitted to us by the Governor, to which he has added the Character & Qualifications of each member, expressing to us at the same Time in his Letter, which accompanied this List, the great Difficulties & Inconveniences he laboured under in forming this, as well as every other civil Establishment from the Paucity of British- born Subjects, & from their consisting entirely either of military Persons or Merchants, whom Duty or temporary Interest had led hither, & who could only be considered as Passengers, very few of them having any Property in the Province.

Under this Circumstance represented by the Governor, the Choice which he has made, must be submitted to your Lordship's; & if your Lordship's see no Objection, none occurrs to us to His Majesty's being graciously pleased to establish this Council by His Royal Mandamus to the Governor.

Immediately after the Appointment of the Council, the Governor with their Advice and Consent, issued Commissions of the Peace, a Measure that appears to us to have been necessary, and that the Commissions themselves are proper and constitutional.

As to the Qualification of the several Persons, in whom the Governor has thought fit to vest this Jurisdiction, it would be as irregular, as it is impracticable, to enter into an Examination of them here. We see no Reason to doubt, that the Governor has on this occasion made Choice of such as were best qualified for this Office, nor can we think that, under the Circumstances of the Inhabitants as represented by him, any attention ought to be given to those vague and in many respects ill founded Objections stated in some of the Papers, which we humbly laid before His Majesty, and which appears to us, considering those Circumstances, to be as unjust, as they are uncandid and indecent.

The next important and necessary Object of the Governor's attention was the carrying into Execution those Parts of his Commission and Instruc- tions, by which he is authorized and required to erect and establish so many Courts of Justice and Judicature, as he should think necessary for the hearing and determining ajl Causes, as well criminal as civil, and for awarding Execution thereupon, and as the Ordinance made and published by the Governor and Council for that purpose does conclude, in the Consideration of it, not only every Question stated in the Papers referred to us by His Majesty, but also almost every important Proposition that regards the immediate welfare of His Majesty's Subjects in that Colony, it will be our Duty to lay before your Lordships the Observations that have occurred to us upon a full mature and impartial Examination of the Ordinance itself; of the Remarks made upon it and transmitted to us by His Majesty's Governor; and of the Objections to it stated by an Agent appointed for that purpose by His Majesty's principal trading Subjects resident at Quebec.

The Courts of Judicature and the Jurisdictions established by this Ordinance,* a copy of which is hereunto annexed are as follows, Viz'. \u2014

First \u2014 A Superior Court of Judicature or Court of King's Bench, in which the Chief Justice appointed by His Majesty is to preside, and to sit and hold Forms at Quebec twice in every Year, with Authority to the said Court to hear and determine all criminal and civil Causes, agreeable to the Laws of England, allowing Appeals to the Governor and Council when the Matter in Contest is above the Value of three hundred Pounds Sterling.

Secondly \u2014 A court of Assize and general Gaol Delivery to be held by the Chief Justice once in every Year at the Towns of Montreal arid Trois Rivieres.

Thirdly \u2014 An inferior Court of Judicature or Court of Common Pleas to be held at Quebec at the same Times when the Superior Courts sits, with Jurisdiction to try and determine all Property above ten Pounds without limitation, with Liberty of Appeal to the Superior Court, when the matter in Contest is of the Value of twenty Pounds and upwards, and to the Governor and Council in cases where the Matter in Contest amounts to three hundred Pounds: all Trials in this Court to be by Juries, if required by either Party, and the Judges to determine agreeable to Equity, having regard nevertheless to the Laws of England.

Fourthly \u2014 For the Trial of Matters of Property of a small Value in a summary way by Justices of the Peace in the several Districts a Power is given to any one Justice to hear and determine without Appeal all Causes to the Amount of five Pounds; to any two Justices to hear and finally deter- mine without Appeal all Causes to the Amount of ten Pounds, and to three Justices to hear and determine in the Quarter Session all Matters of Pro- perty above ten Pounds, and not exceeding thirty Pounds, with Liberty of Appeal to the Superior Court of King's Bench.

Fifthly \u2014 For keeping the Peace and executing the Orders of the Justices in respect to the Police, every Parish is to elect once a Year six Persons to serve as Bailiffs, out of which number the Governor is to nominate and appoint the Persons who are to act in that Capacity in each Parish.

The Duty of these Officers is to inspect the High Ways and publick Bridges, and to see they are kept in Repair, to arrest and apprehend Crim- inals against whom they have Writs or Warrants, to act in the Character of Deputy Coroners, and to decide in a summary way upon all Disputes con- cerning the breaking or repairing of Fences.

This, may it please Your Lordships is the general Plan and outline of this Establishment.

But before we enter into a particular Examination of these several Judicatures and Jurisdictions separately considered, it may not be improper to observe to your Lordships that in the Gov", remarks upon the sev'. provisions of this ordinance there is a note upon that part of it which Directs the holding Courts of Assize at Montreal in the following words, viz*.

"We find which was not at first apprehended that the Court of Assize "proposed to be held at Montreal twice in every Year, will be attended "with much Expence to the Crown, and therefore that Establishment "shall be cancelled."

This remark we find by the proceedings of the Gov'. & Council has been represented, by them to refer to another Ordinance since promulgated directing that all Giand and Petty Jurys to be summoned to serve at any Court of Record, Court of Assize & gen'. Gaol Delivery shall be summoned & returned from the body of the Province at large which Ordinance tho' purporting to be a Gen'. Regulation was however plainly intended to remove from Montreal to Quebec the trials of those persons charged with the violent assault & wounding Mr. Walker of Montreal and therefore we shall leave it to His Majesty's Judgm'. & decision upon the Circumstances of that case which we have already humbly submitted to His Majesty and shall return to the consideration of the Genl. Ordinance of the 17th of Sept upon which it may not be improper to make a short observation or two.

First. Upon some erroneous general Principles, which seem to have been adopted by those who framed this Ordinance:

Secondly. Upon the very loose and imperfect manner in which it is drawn.

The principal error by which the Framers of this Ordinance seem to have been misled, is, that the native Canadians are under such personal Incapacity, and their Laws and Customs so entirely done away, as that they cannot be admitted either as Suitors or Advocates to participate in common with the rest of His Majesty's Subjects of the Advantages of that System of Justice in respect to Matters of Property, for the Administration of which the Superior Court seems to have been instituted, for though they are admitted to serve indiscriminately as Jurors in this Court, yet it is evident from the express mention of the peculiar Privileges they are to Enjoy in the inferior Court, that it is intended neither that their Customs and Usages in Questions of Property should be allowed of in the Superior Court, nor themselves be admitted to practice therein as Proctors, Advo- cates or Attornies.

This Distinction and Exclusion seem to us to be as inconsistent with true Policy, as it is unwarrantable upon the Principles of Law and Equity, which do not, we apprehend, when Canadian Property acquired under the French Government is concerned, operate against the Admission in a Court of Justice, of such Laws and Customs of Canada as did heretofore govern in cases relative to such Property: Neither do we conceive what foundation there is for the Doctrine, that a Roman Catholick, provided he be not a Recusant convict is incapable of being admitted to practice ia those Courts as a Proctor, Advocate or Attorney even independent of Y*. opinion of His Majesty's Attorney and Solicitor General in a late Report made to us, a Copy of which is hereunto annexed, that Roman Catholics &c. in Canada are not subject to any of the Incapacities, Disabilities or Penalties to which Roman Catholics in this Kingdom are subject by the Laws thereof.'

As to the manner in which the said Ordinance appears to have been Drawn up, which is the second Question which has Reference to it in the general Consideration, it is our Duty to observe, that it is in many Parts so far from having that Accuracy and Precision that ought to have been particularly attended to in the framing an Ordinance of so great Import- ance, and upon the Construction of which the Life, Liberty and Property of the Subject depend, that it is very Deficient even in those common Forms and modes of Expression, that are Essential and necessary in Laws of the most trifling signification, and the want of which has frequently been esteemed a sufficient Ground of Repeal.

Whether these obvious Defects in the manner of framing this Ordinance are to be attributed to the Neglect or the Inability of the Officers in the Law Departments of this Colony, we cannot take upon us to say: but from whatever cause it proceeds, it is a Circumstance of very great Importance to the Welfare and Interest of the Colony, & does in our Opinion merit your Lordships Animadversion ; for as your Lordships will have seen already from the Powers vested in His Majesty's Governor, to what a great Variety of Difficult and important Objects they apply, it must necessarily occur to your Lordships, that a great deal depends upon the Industry, Vigilance and Ability of those Officers, with whose Concurrence he must Act, and upon whose Advice and Assistance he must in great measure depend, in forming the various Establishments incident to a new Colony.

Having said thus much with regard to the general Principles of this Ordinance & the imperfect manner in which it is framed, we shall proceed to submit to your Lordships as briefly as possible the Observations, which have occurred upon the several Parts of it, as they relate to the particular Judicatures and Jurisdictions thereby established.

The Objections stated to the Constitution & Jurisdiction of the Super- ior Court or Court of King's Bench, are,

First\u2014 That there is no Qualification prescribed for the Jurors. Secondly \u2014 That there is no Provision made in respect to Bail in matters bailable by the Laws of England, or for securing to the Subject the Right he has to a Writ of Habeas Corpus.

Thirdly \u2014 That as by this Ordinance all Persons are to serve as Jurors indiscriminately, an entire Jury of Canadians may be impannelled, in Cases where the matter in Question is between a British-born Subject and a Canadian.

As to the first of these Objections, it does not appear, that the Quali- fication of Jurors (if proper in itself) was necessary to be provided for by this Ordinance; but we submit to your Lordships, whether such a Measure, though recommended by the Practice here, as well as in the other Colonies, is not of doubtful Policy in the Colony of Quebec, where so few of the British- born Subjects have any Freehold, and who would consequently by such a Regulation be excluded from serving on Juries.

With respect to the second Objection we cannot but be of Opinion, that the Laws of this Kingdom relative to Bail and Writs of Habeas Corpus, which we conceive have been adopted in all the other British Colonies, ought to be made a part of the fundamental Constitutions of the Colony of Quebec.

The third Objection does also appear to us to be equally well founded, for although we think, that whatever tends to perpetuate a Distinction between British born Subjects and Canadians, (which Juries de Mediatate certainly do) ought to be avoided as much as possible, yet under the present Circumstances of this Province, we are of Opinion, it would have been advisable to have enacted, that in all Cases where the Action lay between a British-born Subject and a Canadian, an equal number of each should have been impannelled upon the Jury, if required by either Party.

The great Objection stated to the Constitution of the Inferior Court of Common Pleas is its having a Jurisdiction in Matters of Property, without any Limitation as to the Amount of the Value of the Actions cognizable in that Court, and it is alleged, that the necessary consequence of this will be, that all Matters of property will be tryed and adjudged in this Department, and thereby the Influence and Authority of the Superior Court in great measure set aside.

In whatever light this Objection is considered, the Weight of it must stand confessed; and when we consider, that no Provision is made for the Appointment and Support of proper Judges in this Court, and that such Judges will therefore be probably men of very little Knowledge and Experi- ence in the Laws, it does appear to us, that such a Constitution and Juris- diction is highly improper, a fundamental Defect in the Ordinance sub- mitted to your Lordships consideration, and makes it unnecessary for us to trouble your Lordships with the many other Objections, that might otherways be stated to the particular Regulations prescribed for this Court; which, however well intended for administering to the Canadians that Justice in Matters relating to their Property, which it was erroneously supposed they could not be admitted to obtain in the Superior Court, is however, we conceive, unconstitutional, and would be grievous to the Subject.

As to the Jurisdiction in Matters of Property given by the Ordinance to the Justices of Peace, in their several Districts, it does not appear to us in the general Plan and Policy of it to be liable to Objection being conform- able to what has been adopted and approved in other Colonies; but we think such Jurisdiction is extended to cases of too great Consequence and Value to be decided by such a Judicature, especially in those Instances where no Appeal is allowed.

These, may it please your Lordships, are the principal and fundamental Errors and Defects in the constitution of the Courts and Jurisdictions established by this Ordinance; and if the Objections shall appear to your Lordships to be well founded, we trust your Lordships will not hestitate to advise His Majesty to signify His Royal disallowance of the Ordinance in Question.

The Consideration, which necessarily follows the Presumption that His Majesty will think it advisable to annul this Ordinance, leads to that Form and Constitution of Judicature, which it may be proper to substitute in the place of it; but before we submit to your Lordships such general Propositions as have occurred to us upon this important Con- sideration, it is our Duty to request your Lordship's attention to one other Ordinance published by the Governor and Council of Quebec, which in the matter of its Provisions is connected with that for establishing the Courts of Justice, and is referred to in the Papers which are the Ground of this Report.

This Ordinance is intituled "An Ordinance for ratifying and confirming "the Decrees of the several Courts of Justice established in the Districts "of Quebec, Montreal and Trois Rivieres, prior to the Establishment of "civil Government throughout this Province upon the 10th Day of August "1764,"^ and it enacts, that all the Orders, Judgments or Decrees of the Military Council of Quebec and of all other Courts before the Establishment of civil Government shall stand approved, ratified and confirmed, except in Cases where the Matter in Dispute Exceeded the Sum of \u00a3300 Sterling ; in which case an Appeal is allowed to the Governour and Council, provided such Appeal be entered within two months, and in cases where the matter in dispute amounts to five hundred pounds, an Appeal may be further prosecuted before His Majesty in Council; WHEREUPON, we beg leave to observe to your Lordships that however necessary or advisable it might have been to make some Regulation of this kind, with a view to preventing litigious and vexatious Suits, yet when we consider the Nature & Constitu- tion of the Courts^ whose Decrees are thus confirmed and ratified, we can by no means approve of that Confirmation being extended to Decisions of Matters of Property to so large an amount as \u00a3300; and we think that the time allowed for Appeals in Matters of Property of a greater Value is much too limitted, especially as there are none of the usual Exceptions with respect to Infants, absentees. Persons non Compos mentis, or under other natural Disabilities; and therefore we must recommend to Your Lordships His Royal Disallowance of this Ordinance.

We shall now beg leave to lay before Your Lordships a general Sketch or outline of such a System of Judicature, as we conceive may be reasonable and proper for the Colony of Quebec, in case His Majesty shall think it advisable to abrogate the Constitution framed by the Governor and Council : and, if Your Lordships shall upon mature consideration approve of this Sketch, as a Ground of a more complete Plan, we conceive such Plan may be carried into Execution, either by Instruction to His Majesty's Governor to frame an Ordinance agreeable thereto, or by directing His Majesty's Servants in the Law Departments here to prepare the Draught of an Ordinance for that Purpose, to be transmitted to the Governor, and finally ratified and passed by him, agreeable to the Powers contained in his Com- mission under the Great Seal.

The propositions we offer to Your Lordship's Consideration are as follows, viz'

That for the Administration of Justice and Equity under this Con- stitution, the following Courts should be established, viz' First \u2014 A Court of Chancery consisting of the Governor and Council, who should also be a Court of Appeals, conformable to the directions of His Majesty's Instructions, and from whom an Appeal would lye to His Majesty in Council.

Secondly \u2014 A Superior Court of Judicature, having all the Powers, Juris- dictions and Authorities of the Court of Kings Bench, Common Pleas, and Court of Exchequer in Westminster Hall, in which Court a Chief Justice, appointed by His Majesty during Pleasure, should preside, and be assisted by three puisne Judges.

That this Court, as well as the Court of Chancery, should sit at the Town of Quebec, and be governed in their sittings and Times of meeting by the Terms observed in Westminster Hall, or if that shall be found inconvenient by such others as shall be best adapted to the Situation and Circumstances of the Colony.

That the Chief Justice and the Assistant Judges shall hold a general Court of Assize, Oyer and Terminer, and general Gaol Delivery 4 Times in the year in the Town of Quebec, and shall also once in the Year, or oftner, if thereunto Authorized by special Commission from the Governor, hold Courts of Assize, nisi prius. Oyer and Terminer, and Gaol Delivery at the Towns of Montreal and Trois Rivieres, in like manner and with the like Authority used and exercised in respect to the Circuit Court and Courts of Nisi Prius, and Assizes in this Kingdom, and that in order to render this Establishment more effectual and complete and to facilitate such other Regulations as may be hereafter expedient in matters of general Govern- ment, the Province of Quebec should be divided into three Counties, of which the Towns of Quebec, Montreal and Trois Rivieres to be the Capitals, and that a Sheriff be annually named by the Governor for each County, with the like Authorities and Powers belonging to that office in this Kingdom.

That for the speedy and summary Trial of Matters of Property to a small amount, the Justices of the Peace in the several Parishes and Districts have authority in their general Quarter sessions finally to determine all cases of Property, where the Title to Lands is not in question, above the sum of 40 shillings and not exceeding the sum of ten Pounds and where the value of the Matter in dispute exceeds \u00a35 Sterling to be tried by a Jury if either party requires it.

That two Justices of the Peace have Authoiity in their petty Session finally to determine in all Cases of Property, where the Title of Lands is not in question, and where the value of the matter in dispute does not exceed 40 shillings.

That in all Courts thus proposed to be established the Canadian Subjects shall be admitted to practice, as Barristers, Advocates, Attornies and Proctors under such Regulations as shall be prescribed by the Court for Persons in general under those descriptions.

That in all cases where any Rights or Claims founded upon any Trans- actions & Events prior to the Conquest of Canada shall come in question, the several Courts shall admit and be Governed in their proceedings by the French Usages and Customs, which heretofore have prevailed in Canada, in respect to such property.

That to render these Provisions effectual, Care should be taken, that not only the Chief Justice, but also the puisne Judges should understand the French Language; and that one of those Judges at least should be well versed in the French Customs and Usages above mentioned.

As to the peculiar Jurisdiction of such Courts as we have recommended, the nature of their Process and the Rules of their Proceedings, it would ill become us to attempt to suggest either what they should be, or by what Authority established: Whoever His Majesty shall think proper to entrust with the framing those acts or Ordinances, by which these Constitutions, if approved, are to be established, will be the best Judges of what will be necessary and proper in these Respects, ^ and therefore we have Only to add, that we hope that, by such a Form of Constitution and Judicature, the Peace and Happiness of that Colony, which has been unfortunately inter- rupted, will be restored, His Majesty's natural born Subjects assured of the Enjoyment of their Rights and Privileges to their full Extent, and the minds of the new Canadian Subjects relieved from that anxiety and uneasiness, so strongly yet so Dutifully expressed in their Address to His Majesty^; and which Anxiety and uneasiness appears to us to have been entirely excited by the extraordinary Proceedings of the Grand Jury of the District of Quebec, whose conduct in publickly arrainging' in an irregular Presentment, the Justice and Policy of Acts of Government passed under His Majesty's Authority, and submitted to His Decision, and the Assuming Powers belonging only to Legislature, does appear to us to have been indecent, unprecedented and unconstitutional.

All of which is most humbly submitted.

DARTMOUTH
SOAME JENYNS
JOHN YORKE
J. DYSON.

Whitehall. Sept. 21, 1765. Indorsed. Quebec.

Notes

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