6-7 EDWARD VII., A. 1907 Person, for your August Family, and for the Prosperity of your Realm. Such are the feelings which lead us to subscribe ourselves, with the deepest Respect. Sire Your Majesty's most obedient Faithful The Laws of England re. lating to the writ of Habeas Corpus ad Sub jiciendum, and the Fro tection of personal Liberty, shall take place in the Province of Quebeck, A DRAUGHT OF A PROPOSED ACT OF PARLIAMENT FOR THE OR AN ACT TO EXPLAIN AND AMEND AN ACT PASSED IN THE FOURTEENTH YEAR OF THE REIGN OF HIS PRESENT MAJESTY, INTITLED, "AN ACT FOR "MAKING MORE EFFECTUAL PROVISION FOR THE GOVERNMENT OF THE "PROVINCE OF QUEBECK IN NORTH AMERICA." N.B. Mr. Powis moved for leave to bring in a bill to this effect in April, 1786.2 For the better securing the Liberties of His Majesty's Subjects in the Province of Quebeck in North America, IT IS HEREBY ENACTED by the King's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, That all the Laws of England relating to the Protection of personal Liberty by and by Virtue of the Writ of Habeas Corpus ad Subjiciendum, or otherwise, that were in force in England on the seventh Day of October in the Year of our Lord Christ one thousand, seven hundred, and sixty three, (being the Day of the Date of His Majesty's Royal Proclamation under the Great Seal of Great Britain 1 Canadian Archives, Q 56 3, p. 618. This bill was introduced into the British House of Commons on April 28th, 1786, and was evidently drawn up about the same time as the petition of Nov. 24th, 1784. It will be observed from the tenor of it that those who framed it had in view the actions of Governor Carleton in dismissing Chief Justice Livius, and of Governor Haldimand in his "short methods with dissenters," as also the opposition of these governors to the introduction of the writ of Habeas Corpus and of trial by jury in civil matters. 2 Mr. Powis, or Powys as the name is given in the parliamentary records, was a prominent member of the Opposition, usually co-operating with Fox, Burke, Sheridan, Savile, Courtney and others of that group. He took a special interest in Canadian affairs and, in succession to Sir Geo. Savile, mover of the famous resolution regarding the increasing power of the Crown, was active in pressing upon the attention of the Ministry and the House of Commons, the claims of those of both races in Canada who desired a less autocratic form of Government. The following note will indicate some of his activities in connection with the foregoing petitions: House of Commons; March 30th, 1786. "Mr. Powys having reminded the House, that he had last session of Parliament presented a petition from the principal inhabitants of Quebec, complaining of certain grievances in their legislative authority; it was then thought advisable to postpone the consideration of the subject, as government would undoubtedly remedy the complaint. He was sorry, however, to observe, that during that interval, there had been no appearance of Administration redressing the grievance of the petitioners; he therefore thought it a duty incumbent upon him to give notice, that he would, on the first open day, submit to Parliament a proposition for redress." The London Chronicle, Vol. 59, p. 308. In supporting his motion for leave to bring in this bill, he said it was chiefly intended to enforce the Instructions given to the Governors after the Quebec Act, and also to secure "an emancipation of the Legislative Council from the uncontroulable authority of the Governor, by whom they were liable to be displaced without cause assigned." Mr. Pitt, while considering that some reconstruction of the Govern ment of Quebec might be extremely necessary, yet felt that in view of the very contradictory petitions which the Ministry had received from the Province, it was premature to go into the question until Sir Guy Carleton, who had just been appointed to the Government of the whole of British North America, had reported on the condition of the country. Mr. Fox “professed himself at all times to have been an enemy to the Quebec bill, and a friend to every alteration of it which was proposed." He therefore supported the measure. Mr. Sheridan and others also supported the bill, referring to the extraordinary powers conferred upon Carleton by his new Commission and considering him as scarcely the most likely person to report in favour of diminishing his own authority. After an interesting debate the motion was defeated by 61 to 28. London Chronicle, Vol. 59, p. 407. SESSIONAL PAPER No. 18 after the 1st day of Sep for erecting four new civil Governments in the Countries and Islands then tember, 1785. newly ceded to the Crown of Great Britain, to wit, the Governments of Quebeck, East Florida, West Florida, and Grenada) shall be in force in the said Province of Quebeck from and after the first Day of next September in this present Year of our Lord one thousand, seven hundred, and eightyfive, as being one of the principal Benefits of the Laws of England that were promised in His Majesty's Proclamation above-mentioned to His Majesty's Subjects residing in the said Province. And further the said Writ of Habeas Corpus shall be granted in the Manner prescribed by the Statute made in that Behalf in the thirty first Year of the late King Charles the Second, not only in all Criminal, or supposed Criminal, Cases, but in all other Cases, whatsoever in which the said Writ or Habeas Corpus might have been granted in Term-Time by the Court of King's Bench in England, on the said seventh Day of October in the Year of our Lord one thousand, seven hundred, and sixty-three. for three months at a time by an Province in or of an invasion of PROVIDED nevertherless, that, when the Peace of the said Province shall be Suspended be actually broken, either by a Rebellion or any of His Majesty's Subjects in the said Province against His Majesty's Authority, or by an Invasion of the said Province by a foreign Enemy, but in no other Case whatsoever, Ordinance of it shall and may be lawful for the Governor in Chief, or the Commander in the Legislative Chief, of the said Province, or, in Case of his Death or absence from the Council of the said Province, for the Lieutenant Governour, or Commander in Chief, of the times of actual said Province, by and with the Advice and Consent of the Legislative rebellion in Council of the said Province, in a Meeting of the said Council in which not the Province fewer than seventeen Members of the same shall be present, to pass an Ordinance for suspending the Right of His Majesty's Subjects in the said. it by a foreign Province to the Relief afforded by the said Writ of Habeas Corpus for the Country. space of three Months, and no longer; by Virtue of which Suspension all Persons that shall have been committed to Prison by the Warrant, or order in writing, of any lawful Magistrate, in the Province having competent Jurisdiction to make such Commitments, upon either a positive Charge, or a Suspicion, of High Treason, expressed in the said Warrant, or Order, 'may be detained in Custody without Bail or Mainprize to the End of the said three Months, during which the said Ordinance for suspending the Writ of Habeas Corpus shall be in Force. And it shall also be Lawful for the Governour in Chief or Lieutenant-Governour, or Commander in Chief, of the said Province, with the legislative Council of the same, in a Meeting of the said Council, in which not fewer than seventeen Members shall be present, in case the Disturbance of the Peace in the said Province shall continue during the Space of two Months, or more, out of the said three Months of suspension of the Habeas Corpus appointed by such first Ordinance, to pass a second Ordinance at the end of the said two Months, or more, to prolong the suspension of the said Writ of Habeas Corpus for a further Time, so that it shall continue for the Space of three Month's from the Time of passing such second Ordinance; and so on from Time to Time, at the Distance of two Months or more from the Time of passing any such Ordinance, it shall be Lawful to pass another Ordinance to prolong it's Operation for a further Space of Time, so that it shall continue for the Space of three Months from the Time of passing every such preceeding Ordinance, so long as the Continuance of the Disturbance of the Peace of the Province shall make such Ordinances necessary. The Governor Province shall AND IT IS FURTHER ENACTED by the Authority aforesaid, That from of the said and after the said first Day of September next in the present Year of our in no Case im- Lord one thousand, seven hundred and eighty-five, it shall not be Lawful prison any per- in any case for the Governour in Chief of the said Province, or, in Case of son by his own Warrant, or his Death or Absence from the said Province, for the Lieutenant-Governour, order. which he may 6-7 EDWARD VII., A. 1907 or the Commander in Chief, of the said Province, (who in such cases become invested with the Powers and Privileges of the Governour in Chief, and cannot be prosecuted criminally in the Courts of Justice in the Province,) to commit any Person whatsoever to Prison for any Offence, or Cause, whatsoever by his own Warrant, or Order: but all such Imprisonments shall be made, when necessary, by the Warrants, or Orders, of the Chief Justice of the said Province, or of the Judges of the King's Courts in the said Province, or by the Justices of the Peace, or Commissioners of the Peace, in the said Province, or other Magistrates having competent Jurisdiction in the said Province, by their Warrants, or Orders in Writing, in which the Offences, or Causes, for which such Imprisonments shall be made, shall be expressed. And the said Warrants, or Orders in Writing, shall remain in the Hands of the Keepers of the Prisons to which such Offenders shall be committed, to the End that they may be produced by them as the Grounds of their Justification for having detained such Persons in Prison, either when they shall be required by the Chief Justice, or other Judges of the Province, by Means of a Writ of Habeas Corpus ad Subjiciendum, to bring up the Bodies of the Prisoners detained in their Custody, together with the Causes of their being so detained, before the said Chief Justice, or other Judges, or when they shall be sued in any of the Courts of Justice in an Action of Trespass and false Imprisonment for having so detained any of the said Prisoners. Provisoe with PROVIDED nevertherless, that nothing herein before enacted shall prerespect to the vent the Governour in Chief, or Lieutenant-Governour, or Commander in power of arresting mili Chief, of the said Province, being a Military Officer in His Majesty's regutary Officers, lar Troops, from arresting and keeping under Arrest any Officer, or Soldier, or Soldiers, in the said Troops, that is under his Command, by Virtue of any Authority have, if he he may be invested with for that purpose by any Act of Parliament for the shall be an Punishment of Mutiny and Desertion in the Army that may be then in Army, by vir Force; but he shall have the same Right to exercise such Military Authortue of any Act ity as he would have had if he had not been the Governour in Chief, or of Parliament Lieutenant-Governour, or Commander in Chief, of the said Province. for the punish Officer of the ment of mu tiny and desertion. The Mem cil shall not AND IT IS FURTHER ENACTED by the Authority aforesaid, That from bers of the Le- and after the said first Day of September next in the present Year of our gislative Coun Lord one thousand seven hundred, and eighty-five, no Member of the said be liable to be Legislative Council shall be liable to be either removed from his place and removed, or Office of a Member of the said Council, or Suspended from his Exercise of suspended by the same for any Time, how short soever, by the Governour in Chief of the the Governour of the Pro- said Province, nor in any other Manner than by His Majesty's Order in vince but only his Privy Council of Great Britain, or under his Signet and Sign-Manual by the King. counter signed by one of His Majesty's principal Secretaries of State. The Judges of AND IT IS HEREBY FURTHER ENACTED by the Authority aforesaid, the Province That, from and after the said first Day of September in this present Year of our Lord one thousand, seven hundred, and eighty-five, neither the Chief Justice of the said Province nor any of the Judges of the Courts of suspended by Criminal or Civil Jurisdiction in the same, shall be liable to be removed nour, but only from his Office of Chief Justice, or Judge, by the Governour in Chief of the by the King. said Province, nor in any other Manner than by His Majesty's Order, in His Privy Council of Great Britain, or under His Signet and Sign-Manual countersigned by one of His Majesty's principal Secretaries of State. Unless the PROVIDED nevertherless that, if an Address shall be presented to the Legislative Council shall Governour in Chief of the said Province, or, in Case of his Death or Absence address the from the said Province, to the Lieutenant-Governour or Commander in shall not be liable to be removed or the Gover SESSIONAL PAPER No. 18 Tear. Governour to Chief of the same, by a Majority of the whole Number of the Members of suspend a the said Legislative Council, setting forth some Misconduct or Neglect of Judge for some miscon Duty in the Chief Justice of the Province, or in any other Judge of the duct or neglect same, and thereupon praying that he may be suspended from his Office of of duty; in which Case he Chief Justice, or Judge, in the said Province for the Space of a Year, it may be Susshall be lawful for the Governour in Chief of the said Province, or, in Case pended for one of his Death or Absence from the said Province, for the LieutenantGovernour or Commander in Chief, of the said Province for the Time being, to suspend the Chief Justice, or Judge, against whom such Address of the Legislative Council shall have been presented, from the exercise of his said Office of Chief Justice, or Judge, in the said Province for the said Space of one year: After which Time the said suspended Person shall either resume the Exercise of his said Office of Chief Justice, or Judge, in the said Province or be Suspended from the Exercise of it for a further Time, or be intirely removed from it, as the King's Majesty shall think fit to direct in the Course of the said Year of his Suspension either by His Order in His Privy Council of Great Britain, or by an Order under his Signet and SignManual countersigned by one of His principal Secretaries of State. And if no such Signification of the King's Majesty's Pleasure on the said Suspension shall be made in the course of the Year, during which it shall continue, the said Suspension shall be at an End at the Expiration of the said Year, and the said Chief Justice, or Judge, that shall have been so Suspended, shall resume the Exercise of his said Office. And no Suspension of the Chief Justice of the said Province, or of any other Judge in the same, from the Exercise of his said Office of Chief Justice, or Judge, made by the Governour in Chief of the said Province, or any other Person therein, in any other Manner than is herein before set forth, shall be of any Validity, or Force, whatsoever. Persons admitted to act as Advocates in the Courts the Province of Quebeck Shall not be Suspended of Justice in said profes sion by any authority but that of the Judges of the Courts in which they practice, and AND IT IS FURTHER ENACTED by the Authority aforesaid, That, from and after the said first Day of September in the present Year of our Lord one thousand, seven hundred, and Eighty-five, no Barrister at Law, or other Person who has been admitted, according to the Rules and Customs established in the said Province of Quebeck, to act as an Advocate at the Bar of any Court of Justice in the said Province, shall be prohibited, or susfrom the exer- pended, from the Exercise of the said Profession of an Advocate in the said cise of their Court, for any Time how short soever, in any other Manner, or by any other Authority than that of an Order of the Judge, or Judges, of the Court in which he has acted as an Advocate, grounded either on some Misconduct in his Capacity of an Advocate in the said Court, or on a legal Conviction of some Felony, or other Offence; which Order of the Judge, or Judges, of the Court, either for excluding him perpetually from the Liberty of acting by them only as an Advocate in the said Court, or for suspending him therefrom for a by a written limited Time, shall be in writing and shall set forth the particular Fault in Order, men- the said Advocate's Conduct in the said Court, or the Offence whereof he tioning the Cause of Such shall have been legally convicted, as aforesaid, on which the said Order Suspension. shall be grounded. And an Appeal shall lie from the said Order of Prohibition, or Suspension made by the Judge, or Judges, of the Court in which the said Advocate shall have practised, to the Legislative Council of the the Judges to said Province, who, after due Consideration of the Matter, shall either the Legisla rescind the said Order, or confirm it, or mitigate the Severity of it by tive Council, and from the reducing it from a total and perpetual Prohibition to a temporary Suspendecree of the sion from the Exercise of his said Profession of an Advocate, or from a Legislative Council to the suspension for the Time mentioned in the Order to a Suspension for a King, in his shorter Time, as they shall see Occasion. And from the Decree that shall Privy Council be made herein by the said Legislative Council there shall lie a further Appeal to the King's Majesty in his Privy Council of Great Britain; where An Appeal shall lie from Such Order of of Great Britain. After the 1st Day of next September 1785, the Trial by Jury shall take place in 6-7 EDIVARD VII., A. 1907 the Matter shall be finally determined. But every such Order of Suspension of an Advocate from the Exercise of his Profession shall be in Force and take Effect, notwithstanding an Appeal shall have been made from it, until such Appeal shall have been heared and determined and a Decree shall have been made by the Court appealed to, whereby such order of Suspension shall have been rescinded, or altered. AND, whereas there are good Grounds for believing that the Introduction of the Trial by Jury into the said Province of Quebeck in Civil Actions, whenever either of the Litigant Parties shall desire it, in the same Manner in which it actually took Place in the said Province from the Month of September in the Year of our Lord one thousand, seven hundred, and sixtyfour, till the first Day of May in the Year of our Lord one thousand, seven hundred, and seventy-five, would greatly contribute to the fair and impartial Administration of Justice in the said Province, IT IS THEREFORE FURTHER ENACTED by the Authority aforesaid, That, from and after the said first Day of September in the present Year one thousand, seven hundred, and Eighty-five, the said Method of Trial by a Jury of twelve good and lawful Men shall again take Place in the said Province in all Civil Actions in the Courts of Justice in the same, whensoever both, or either, of the Parties shall desire it; but not otherwise. And, to the End that the Persons who determination shall be chosen to serve on Juries may attend their said Duty with the more Chearfulness, they shall receive, as a Reward for their Attendance and Trouble, the Sum of Half a Spanish Dollar to each Jury-Man; which Sum shall be paid to them immediately in Court as soon as they shall have brought in their Verdict, by the Party which shall have desired to have such mode of Trial, or, if both Parties shall have joined in desiring such Mode of Trial, by both the Litigant Parties equally. the Said Province in the of Civil Aetions in the same, when ever either of the parties shall desire to have it. AND, to the End that the Resolutions and Proceedings of the Legislative Council of the Province (by which the said Province is now governed without an Assembly elected by the Freeholders of the same) may be made more agreeable to the general Sense and Inclinations of the People of the same, IT IS FURTHER ENACTED by the Authority aforesaid, That, from and after the first Day of next September, in the present Year of our Lord one thousand, seven hundred, and eighty-five, the Legislative Council shall consist of not fewer than thirty-one Members, who shall be nominated and appointed by the King's Majesty, in the same Manner as the Members who now compose the said Council have been nominated and appointed by Quebeck shall Virtue of the Act of Parliament passed in that Behalf in the fourteenth consist of at Year of the Reign of His present Majesty. least thirty After the 1st Council of the one Members. FINIS PETITION OF SIR JOHN JOHNSON AND LOYALISTS.1 Copy of a Petition, intituled, "The Petition of Sir John Johnston, Bar and others in Behalf of the Loyalists settled in Canada." Dated London, 11th April 1785; and signed by Colonel Gay Johnson, and others. To the King's Most Excellent Majesty. The Petition of Sir John Johnston Baronet, and others, whose names are hereunto subscribed, on Behalf of the Officers and Soldiers of the Provincial Troops and Indian Department, who served under their Command during the late Rebellion; and of the other Loyalists, their Associates, who have taken Refuge in Canada. Most humbly Sheweth, 1 Canadian Archives, Q 62A-1, p. 339. See also "Copy of a Memorial to Sir John Johnson, from the Officers and private Men of the late Corps of Loyal Rangers, now inhabitants of the Royal Seigneurie No 2 above Catarequoiu." Q. 24, p. 262. |