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Third inconvenience.

The expen

dilatoriness

of the English law proceedings are the principal subjects of the com

6-7 EDWARD VII., A. 1907 sions, continually appealed to as the measure of justice in this country, they will be inclined to think that government to be best, under which those wise laws could most ably be administered, which is that of the French king; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of disaffection to your Majesty's government, and in a disposition to shake it off on the first opportunity that shall happen to be afforded them by any attempt of the French king to recover this country by force of arms.

And in the third place, it will discourage your Majesty's British subjects from coming to settle here when they see the country governed by a set of laws, of which they have no knowledge, and against which they entertain (though perhaps unjustly) strong prejudices.

Your Majesty's attorney general of this province is further of opinion. siveness and that the body of your Majesty's new Canadian subjects are by no means either so distressed or so discontented by the introduction of the English laws into this province as they are represented in the foregoing report: at least he has seen no proofs of either such great distress or high discontent. What he has principally observed to be the subject of their complaints has been, either the expence or the dilatoriness of our law-proceedings; which he therefore conceives stand in need of reformation: and he is of opinion, that to establish three courts of general jurisdiction in all matters criminal as well as civil in the province, to sit every week in the year (with a very few exceptions) in the towns of Quebec, Three Rivers, and Montreal, would be the most adequate remedy for these complaints.

plaints of the

Canadians.

To erect three royal courts of general jurisdiction

to hold their

sittings

weekly.
To make a
code of laws

for the use of
the province.

To revive the old French

laws relating to landed pro perty and the

And as to the substance of the laws which are to be henceforwards admitted in this province, he conceives that the best way of all to settle these would be to make a code of them, that should contain all the laws of every kind, criminal as well as civil, that were intended to be of force here, to the exclusion of all other laws, both French and English, that were not inserted in the said code; by which means all pretence would be taken away both from the French and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even though it should be very imperfectly executed, and many important articles should happen to be omitted in it; provided only that those things that were inserted in it were useful and reasonable, and set forth in a clear and proper manner: because he apprehends that the rules so inserted would be sufficient to govern at least all the common cases that would happen in the ordinary course of human affairs, such as descents in the right line, the right of representation in grand-children whose parents are dead, the dower of widows, the rents and services due to seigniors, the obligations and duties due from them to their tenants, the seignior's right to the common mutation-fines, his right of pre-emption of his tenant's land when the 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 crde, 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 of the effects ordinance to revive those of the former French laws which relate to the of intestates, tenure, inheritance, dower, alienation, and incumbrance of landed property,

distribution

SESSIONAL PAPER No. 18

Laws of

tenure.

of aliening and incumbring landed property.

His

and to the distribution of the effects of persons who die intestate. reasons for thinking that the French laws upon these heads ought to be revived, are as follows.

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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 1763, to continue in the possession of them; these laws being essentially necessary to such possession 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.

Laws relating But the laws relating to the power and manner of aliening, mortgaging, to the manner 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 this subject, in order to prevent the introducThe practice tion of the English laws upon the same subject, namely, the doctrine of of the English estates-tail, the statute de donis, the method of defeating that statute by laws upon 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 . highly incon- are full of so much subtlety, intricacy, and variety, that, if they were to be province. 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.

this subject

would be

venient to the

Laws of inheritance and dower, and

the distribu

tion of the effects of intestates.

Lastly, as to the French laws concerning dower and the inheritance of lands and the distribution of the goods of intestates, with respect to 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 defin itive 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

1 See Capitulation of Montreal, article 37, p. 16, also p. 26.

2 See Treaty of Paris, especially the 4th article, p. 74, and p. 85.

6-7 EDWARD VII., A. 1907 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 modifica tions 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 neces sity 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.

SESSIONAL PAPER No. 18

REPORT OF LORDS COMMISSIONERS FOR TRADE AND PLANTATIONS RELATIVE TO THE STATE OF THE PROVINCE OF QUEBEC.1

QUEBEC.

1769.

July 10th

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

My Lords,

3

Your Lordships having been pleased by your Order of the 28th of September 1768, to refer unto us two Letters to the Earl of Hillsborough, one of His Majesty's principal Secretaries of State, from sundry Merchants of London trading to, and deeply interested in the Province of Quebec, humbly recommending, that a full Legislature may be speedily granted for that Province; and that a number of His Majesty's Roman Catholic Subjects there may be admitted into the Council and House of Representatives"; and your Lordships having also further thought fit to refer unto us a Report made by His Majesty's Advocate, Attorney and Solicitor General, upon the heads of a Plan for establishing Ecclesiastical Affairs in that Province, and to direct us to consider the said Papers, together with the present State of the said Province, in respect to the Administration of Justice, religious Establishments, and Revenue; and to report to your Lordships our Opinion, whether it may be advisable for His Majesty to direct an Assembly to be convened, and, if so, under what regulations and limitations such Assembly should be constituted, and what may be proper to recommend to their Consideration for the Welfare and interest of the Province in the several points above mentioned; We have, in pursuance of your Lordships said Order, taken the subject matter thereof into our Consideration, and beg leave to report to your Lordships.

That the Objects of examination and discussion, pointed out in your Lordships Order of reference, and upon which we are directed to report our opinion, appear to us to be of the greatest importance to the present and future Welfare of that Colony; and therefore, though the unsettled State of it's Government, the Jealousies and apprehensions on all hands represented to exist in the minds of the new Subjects on this Account, and the obstruction and embarrassment arising therefrom to the administration of public Affairs there, were circumstances, that did all concur to evince the necessity of some speedy reform; yet on the other hand, when we viewed the proposition of the

1 Canadian Archives Q. 18 B., p. 7.

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When this report was drawn up in 1769 a policy of great secrecy with reference to the future govern ment of Quebec had just been adopted, with the result that between this time and the passing of the Quebec Act in 1774, few of the reports dealing with the policy of that measure are to be found among the State Papers. This report was prepared for the information of the Lords of Council and a copy of it was sent in a secret and confidential" despatch from Hillsborough to Carleton, Dec. 1st, 1769, to secure his opinion of the proposals. The general character and purpose of the Report is thus expressed :“This Paper will not only fully inform you what Regulations and Reform are proposed in respect to the future Government of this important Colony, but will also point out to you the Arguments and Reasoning by which it is endeavoured to support the several Propositions." Its secrecy is indicated thus:-" This Report is sent to you in the greatest Confidence, and therefore you should be careful not only that no part of it is communicated to any other person, but that in conversing upon the subject of any Difficulties or Doubts that may arise, you do avoid the Appearance of their being other than the Result of your own Reflections; and I am particularly to desire that you will bring back the Copy of the Report with you, without suffering it to fall into any other hands whatever." Q. 6, pp. 129-30.

2 These letters have not been found, but they probably reflect a movement at the time in the Province of Quebec, as indicated in a letter from Carleton to Shelburne, Jan. 20th, 1768, (see p. 206), as also in his letter of Aug. 4th, 1768. In the latter he states that a few persons, who had been endeavouring to get up a petition for an Assembly, having failed, had apparently dropped the project.

3 This paper is contained in a Report of the Board of Trade to the Privy Council, dated May 30th, 1765, and is entitled, "Heads of a Plan for the Establishment of Ecclesiastical Affairs in the Province of Quebec." This is referred to in the representation of the Board of Trade of Sept. 2nd, 1765, see p. 171. It is given in full in the recently received but uncalendared volume Q 18 A, p. 88. See also Appendix No. 4 to this Report, p. 274.

6-7 EDWARD VII., A. 1907 Merchants in it's full extent, and saw the difficulties, that in the present peculiar State of this Colony would attend the making such a reform in it's civil constitution, as would give full satisfaction to the new Subjects, without violating those principles, upon which the British Government is fundamentally established; we did not think ourselves justified in making any report to your Lordships, or giving any opinion upon a matter, that His Majesty's former Councils had not thought fit in their great wisdom, even upon the fullest consideration, to take any resolution upon, without proceeding with the greatest circumspection, nor without the fullest information, that could be collected, as well from the correspondence of His Majesty's Servants there, as from the examination of persons here, who have been resident in, and are well acquainted with the affairs of Quebec.

The time, that has elapsed since the date of your Lordships order, has made it necessary for us to say thus much, lest your Lordships should impute to us a delay, which, if unnecessarily created, would not fail to subject us to your censure, in the case of an important part of His Majesty's Dominions suffering every inconvenience and disadvantage, that can arise out of a very imperfect, inadequate and defective Constitution, where the Inhabitants of it, consisting of above eighty thousand brave and loyal Subjects, do, by the nature and form of such Constitution, and the most unwarrantable Doctrines and Opinion founded thereon, Stand prescribed from every privilege, and denied every right, the possession of which can alone ensure their affection, and fix their attachment to the British Government.

How this comes to be the case in Quebec will be more fully seen by the following narrative of what has been established in respect to the Civil Concerns of that Colony, since it passed under His Majesty's Dominion; and from thence your Lordships will be enabled the better to judge of the propositions we shall submit to you, as the ground for such a reform in the Constitution of this Colony, as may consist with Justice and Equity, and we hope. be the means of for ever securing the possession of it to the Crown of Great Britain.

On the eighth of September 1760, Canada with it's dependencies was surrendered to His Majesty by Capitulation,' in which it is Stipulated, that the Inhabitants both Laiety and Ecclesiastics shall become subjects of the crown of Great Britain, reserving the free exercise of their Religion, and the entire possession of their property under all descriptions.

On the tenth of February 1763 the definitive Treaty of Peace was signed at Paris; by the fourth Article of which, Canada with all its dependencies is ceded to the crown of Great Britain, and His Majesty agres to grant the liberty of the Catholic Religion to the Inhabitants of Canada, and that he will consequently give the most precise and most effectual orders, that His New Roman Catholic Subjects may profess the worship of their Religion according to the Rites of the Romish Church, as far as the -Laws of Great Britain permit.

In October 1763 His Majesty was pleased by Letters Patent under the Great Seal to appoint the honorable James Murray Esquire to be Governor of this Colony, the limits of which are thereby fixed and ascertained, and it's former name of Canada changed into that of Quebec.

By these Letters Patent, and by the Instructions from His Majesty, which accompanied them, the Governor is authorised and impowered,

First. To appoint a Council to assist him in the administration of Government, consisting (according to the usage and constitution of other Colonies) of twelve persons, eight of which to be chosen from amongst the most considerable of the Inhabitants and Persons of property in the said Province, and the remainder to be composed of the principal Officers of Government.

Secondly, To Summon and call, with the advice and consent of the said Council, as soon as the situation and circumstances of the Province shall admit, a general

1 Capitulation of Montreal; see p. 8.

2 Treaty of Paris; see p. 73.

3 Commission to Governor Murray; see p. 126. 4 Instructions to Governor Murray; see p. 132.

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