6-7 EDWARD VII., A. 1907 $6. And be it also enacted by the same authority, That it shall be sufficient to disqualify any Member of the Legislative Council from sitting as Judge in any Cause of Appeal, that he is interested in the event of it, or related to either of the parties interested in the same, or that he is a Judge of either of the Courts of Common Pleas, or that he was absent at any former hearing in such Cause of Appeal. And because his Majesty's Canadian Subjects cannot suffer detriment by trials. according to the English Laws and course of practice in controversies in which they are not concerned, between his Majesty's natural born subjects, who have also their predilection and attachments to the modes of trial conformed to their own customs, and in deference to his Majesty's instruction above recited ;1 §7 Be it also enacted, That as often as the Party plaintiff in a cause, being one of his Majesty's natural born subjects, shall commence his Action against another person that is not one of his Majesty's Canadian subjects according to the course of the common Law, the same Cause shall proceed to the end thereof in the same course, and have all its legal consequences and effects, as if the same had been begun and prosecuted in the Common Pleas of Westminster-Hall, as nearly as the condition of the Province will permit; and for the fullest security of his Majesty's Canadian subjects in the enjoy ment of the ancient Laws, Usages and Customs of Canada, every such suit shall abate whenever the defendant shall plead or alledge that he is one of his Majesty's Canadian Subjects, or descended from any person that was so at the Conquest, in the paternal or maternal line, and the question of fact, whether he is or is not, shall be tried and determined by the Court without a Jury, and if the facts shall be found for the Defendant by the Court in manner aforesaid, judgement of non pros shall be entered against such Plaintiff for the Defendant, and the Defendant recover his Costs. $8. And be it also enacted by the same authority, That in all causes where the Sheriff is a party, or shall appear to the Court to be exceptionable and not indifferent between the parties in any cause, the process shall go to the Coroner. $9. And where Appeals are brought by executors, administrators or guardians, the Plaintiff shall not have execution nor any process in the nature of execution, without such security first given as the Court of Common-Pleas in their discretion shall direct, to refund the damages and costs in case the judgement shall be reversed, together with such costs as the Court of Appeal may award. And whereas grea! inquietudes have arisen in the Colony within four years past, respecting certain processes against estates and effects, seizing and arresting the same, and divesting the proprietor thereof without previous trial and judgement at law between the parties, which proceedings pass in France under the name of saisie arrêts, and saisie exécution, tho' they are there exercised under special guards, would be very mischievous if practiced against the poor inhabitants of this province, and especially as the Sheriffs and the subordinate executive agents are not yet under any bonds with sureties for their demeanor, and it is more expedient in so infant a country to leave Creditors in general to the caution prudence requires against negligent confidences, than to introduce the rapid measures of ancient and populous nations against complicated frauds and bankruptcies. $10. Be it further enacted by the same authority, That no such process shall hereafter be issued except for attaching the estates and effects of persons concerned in traffic, and only then for debts exceeding the Sum of Fifty Pounds Sterling, after Oath before the Judge issuing the same, of the amount of the debt and of the demand of payment thereof, and that there is good cause to apprehend the loss of the debt without such process, which oath shall be indorsed thereon. 1 In connection with this clause there is inserted the following marginal note:-"To introduce the Com. Law of England as y Rule & between y old Subjects conformable to opinion & Judg' in Appeal ded 1786. Case Grant y Gray and conform y new Subjects or Canadians to ye Coutume de Paris & Civil Laws." This refers to the judgment delivered by the Chief Justice and which gave rise to much discussion. It is referred to in the letter from Chief Justice Smith to Nepean, see p. 569, also in that of Finlay to Nepean, see p. 572. The judgment of the Court of Common Pleas is given in Q 27-1, p. 28, and the judgment in appeal at p. 26. SESSIONAL PAPER No. 18 And the seizure to be afterwards made shall remain in the hands of the Sheriff, subject to such orders as the Court may afterwards take respecting the same. But whenever the Owner thereof shall either pay the debt and costs or give security to answer the value of the same, and to abide the judgement of the Court, the Estate and effects so seized shall be forthwith restored. And in the prospect that the aforementioned amendments and alterations in the Civil Jurisprudence will suffice with the provisions already made by the former Ordinances until experience shall direct to such improvements as the case of all his Majesty's Canadians to subjects whether Canadian or others may require for the perfect establishask y Eng. ment of their property, rights, and interests, and for promoting their muCom. Law. tual affection and the general tranquillity of the province, by the removal of every jealousy and discontent injurious to the King's government and the common welfare ; Be it therefore enacted by the same authority, That the Act or Ordinance passed in the twenty-fifth year of his Majesty's Reign, intituled, "An Ordinance to regulate the proceedings in the Courts of Civil Judicature, and to establish trials by Juries in "Actions of a commercial nature, and personal wrongs to be compensated in damages,"1 so far as the same is not altered and amended by the provisions in this Act above contained, shall continue to the day of April, which will be in the year of our Lord one thousand, seven hundred and eighty-nine, at which time this Act for making the several amendments therein aforementioned shall also expire. Finis EXTRACT FROM PROCEEDINGS OF COUNCIL.2 Monday 26th March 1787. His Honor The Lieutenant Governor, and all the Other Members above. (William Smith Esq. C. J., Mr. Harrison, Mr. Mabane, Mr. De Lery, Mr. Fraser, Mr. Grant, Mr. Baby, Mr. Holland, Mr. Boucherville, Mr. Finlay, Mr. Collins, Mr. Pownall, Mr. Bellestre, Col. Caldwell, Mr. De St. Ours, Mr. De Longueuil, Sir John Johnson, Dupré.) The Chief Justice presented a Protest signed by him and the eight other Members against the Vote of the Council upon the Question of the 22 instant for the Committment of the Bill for the better Administration of Justice, and to regulate the practice of the Law. Read the same. ne-Ordered to be translated, and entered on the Journals. THE PROTEST. First Because the refusal to commit the Bill, implies a disapprobation of every part of it as incapable of being so altered as to retain a single Clause, and amounts as clearly to a rejection of every paragraph of it, as if each had been Separately Voted to be struck out; and it was so explained and understood, and that intention avowed by every Speaker against the Committment. Second-Because the regulations for the Administration of Justice in all the Courts of Common Pleas, as well as in the monthly Court of Appeals, were so obviously expedient to the eye of meer abstract Theory, as to require only to be read to be approved and might have been contended for by the Judges without any disparagement of Character or Office, and served for no mean defence against the clamours and complaints, to which Courts where the Judges find both law and fact are obnoxious; and especially in such a Country as this, where they also hold the mighty trust of settling the Question, what was or was not, the custom and usage, as well as the Law of the Colony antecedent to the Conquest. 1 See p. 529. 2 Canadian Archives, Q 27-2, p. 645. At the session of the Legislative Council, on March 22nd, the Chief Justice moved, with reference to his bill "for the better Administration of Justice, and to regulate the practice of the Law," "That this bill be committed to a Committee of the whole Council for Friday the 30th instant," and the motion being put it was defeated by ten to nine. At the next meeting of the Council the Chief Justice and his supporters registered their protest. See Q 27-2, p. 643. 18-3-37 6-7 EDWARD VII., A. 1907 Third--Because one of the best securities for the permanent duration of the privileges granted by the Statute commonly called the Quebec Act to His Majesty's Canadian Subjects is their ready manifestation of a correspondent liberality to his Maj sty's Native born Subjects thro' the Voice of that Legislature which the Statute erects, of which His Majesty has constituted so many of the Canadian Gentlemen to be Members. The Bill pointed to a measure for shewing such a disposition with ut the smallest Infringement of the Benefits granted by the British Parliament to themselves and it had succeeded if only one of them had given his Voice for the Committment, the question being decided by the Chair. Fourth-Because the postponing the relief which according to this Bill the Governor was to be enabled to afford to the American Loyalists settled on our Frontiers, to us appears inconsistent with the Interests of the Crown, and repugnant to every motive of sound policy as well as the Sympathy we ought to have for those, who with so much honor to themselves have sacrificed every consideration of Private Interest to their faithful affection for their Sovereign and the British Cause, and to whom as Subjects of tried Loyalty and men of Arms this Province may one day be obliged to look for its defence and protection; to say nothing of what became the King's Servants here to have done for Sufferers of such distinguished merit, in Obedience to the Royal commands communicated to General Haldimand by a Letter from Lord North of which the following is a Copy. Whitehall 24th July 1783. "The distressed situation to which many of His Majesty's faithful Subjects in the "Provinces and Colonies now the United States of America are reduced by adhering to "their Loyalty and supporting the British Constitution, has induced His Majesty to "afford them every encouragement due to their zeal and sufferings, and as Numbers of "those deserving Loyalists may wish to settle in Quebec it is His Majesty's pleasure "that every assistance and support should be held out to them." Fifth -Because the Bill was framed to heal the divisions and animosities which have so long subsisted in the Colony to its disgrace and detriment, and we are fearful that the rejection of it will not only revive a Spirit, which as a party one in the trite game of selfish ambition and avarice, for petty consequence, place and profit, is always contemptible, and sometimes harmless, is nevertherless to the last degree dangerous, in a Country of mixed Nations habits and languages, where the name of party, if the contest respects the substantial interests of the Crown and nation will be changed into the serious discrimination of the Loyal and the disaffected: and we are the more anxious for the general harmony as the discords by increasing the debility of the province, pre-disposes it to become a Theatre for the Malignant Machinations of the internal mal contents of Great Britain and the hostile views of foreign powers. Sixth-Because without some regulations to quiet the murmurs against the course of administring Justice which has obtained here for years past, expressed in the Reports on our Table, from the Magistrates and Merchants of the Province, and the complaints to the King's Ministers by the Merchants of London, the commerce and settlement of the Colony cannot advance, in the course necessary to give it strength for its own security, and cover the two other Provinces,' fortunately for all of them; committed to the wisdom and vigilance of the noble Lord, who is so well disposed and qualified to raise them to safety and prosperity if their own cheerful co operation shall not be wanting. Last-Because thro' the whole of the debate for the noncommittment of the Bill, which has had but a single reading it being the course of this Council contrary to Parliamentary usage to commit it before a second reading) nothing was offered in our opinion of the least weight against the Bill, unless there be supposed good cause for the insinuation of the Honourable Judge of the Common pleas, who was alone it, that 1 Referring to Nova Scotia and New Brunswick, now placed under the general administration of Lord Dorchester. See note 2, p. 550. SESSIONAL PAPER No. 18 the Preamble was exceptionable on account of its having recited that part of the Quebec Act, excluding the Religious houses and communities from the benefit of the Laws and usages given to other Catholics; to which the Speaker added his regret at the bare mentioning in conversation without doors as another matter tending to dissatisfy the Catholick Inhabitants the King's late gift or intended munificence out of the Estates of the dissolved and banished Order of Jesuits to an Individual, meaning The Right Honourable Lord Amherst. Respecting which we are persuaded and think it just to declare, that the ill temper and Spirit implied by the suggestion, as existing in the Colony, has as yet neither that degree of Inveteracy nor extent to require any t mid condescensions from the Executive and Legislative authority subversive of the Government; and we conceive that if the fears of the Speaker really had any foundation, the Bill stood for that reason upon the stronger ground, not only for the Committment he opposed, but the enacting it to all the Extent of its objects for gratifying the reasonable expectations of His Majesty's good and Loyal subjects, for the promoting the population of the Country, and the Speediest removal of every cause of discontent upon the interesting points of commerce, and the right Adminis ration of Justice; without which no people can exist in safety and peace, and a Commercial people the least of all others. We lament therefore the loss of this Bill as embarrassing if not defeating the provisions expedient for the interests of the Crown, as unfriendly to the Commerce of the Nation as distressing to the Loyalists who have fled to our Borders for refuge, and have the most unexceptionable claim, at least to Legislative regulations for their comfort, as tending to distract the minds of the Inhabitants with Jealousies, to the reducing of the force of the Colony; and as the consequence of all, the exposing of it to the operation of foreign principles, smoothing the way to an Invasion. And this Protest we make in vindication of ourselves to His Majesty and his Representative, and with the sinc rest desire to preserve the tranquility of the Province and the Interest of every order of Men in it, Protestants and Catholics, by all the means that may consist with our duty to the Crown, and a warm and affectionate regard for the general weal of the British Empire. Quebec. Monday. 9. o'Clock A M 26th March 1787. (signed) WM SMITH JOHN. COLLINS. GEO. POWNALL WILLIAM GRANT In 1770 Lord Amherst had petitioned for and been promised the Estates of the Jesuits. See Q 56-3, p. 846. But during the year 1787 quite an agitation arose to have these estates devoted to education. See various petitions and papers in Q 35, pp. 62-116. See also the very full reports on the Jesuit Estates contained in vols. Q 50-A, 50 B, 50-C, 50-E, 50-F, 50-G, 1 & 2 and 50-H. * When the Ordinance of 27 Geo. III., cap. 4, which follows this document, had passed, Messrs Harrison and Holland "prayed leave to strike out their names from this Dissent; the ends for which they signed the same being obtained in the Ordinances which have been passed this session by the Council. And it was ordered accordingly." Q27-2, p. 654. 6-7 EDWARD VII., A. 1907 ORDINANCE RE PROCEEDINGS OF CIVIL COURTS 1 ANNO VICESIMO SEPTIMO GEORGII TERTII REGIS. CHAP. IV. An Ordinance to continue in Force for a limited Time an Ordinance made in the 25th Year of His Majesty's Reign, intituled, “An Ordinance "to regulate the Proceedings in the Courts of Civil Judicature, and to "establish Trials by Juries in Actions of a Commercial Nature, and "Personal Wrongs, to be compensated in Damages," with such additional Regulations as are expedient ad necessary. Be it Enacted and Ordained by His Excellency the Governor, and the Legislative Council, and by the Authority of the same, it is hereby Enacted and Ordained, That an Ordinance made and passed the Twenty fifth of April, in the Twenty fifth year of His Majesty's Reign, intituled, "An Ordinance "to regulate the Proceedings in the Courts of Civil Judicature, and to es "tablish Trials by Juries in Actions of a Commercial Nature, and Personal "Wrongs, to be compensated in Damages," and every Clause and Article therein contained, be continued, and the same is hereby continued from the for Two Years. expiration thereof to the end of the Sessions of the Legislative Council which will be held in the Year of our Lord 1789. The former Ordinance to be continued In Cases where there is Fact to be in Record. And whereas Additional Regulations are at this Time found to be exno Jury, the pedient and useful; Be it further Enacted by the same Authority, That in serted in the every Instance where the Fact is not verified by a Verdict of the Jury, but by other Proof, or the Testimony of Witnesses, the same shall be inserted If the Judg. in the Record of the Cause, that in case of Appeal the whole Proceedings ment be upon may go up to be adjudged in the Superior Tribunal, as regularly and as any Law, Custom, or Usage fully as the same was before the Court of Common Pleas. of the Province, the same to be stated upon the Record of Pleas. be allowed. And wherever the Opinion or Judgment of the said Court of Common Pleas is pronounced upon any Law, Usage, or Custom of the Province, the same shall in like manner be stated upon the Minutes or Record of the the Common Court, and referred to, and ascertained, that the real ground of the Opinion or Judgement may also appear to the Court of Appeals, and upon all Exception to Opinions conceived by any Party to be to his Injury, he shall be allowed If the Judg. his Exception, to be preserved in the Minutes; all which Proceedings shall ment be upon be transmitted under the Signature of the Judges, or any Two of them, and any Law, the Seal of the Court, that all His Majesty's Subjects, and especially His Canadian Subjects, by these means may be protected in the Enjoyment of all the Benefits secured to them for their Property and Civil Rights, by the Statute passed in the 14th year of His Majesty's Reign intituled, “An Act "for making more effectual Provision for the Government of the Province "of Quebec, in North America," and by the Ordinances above-mentioned. Usage or Custom of the Province, the same to be stated upon the Record of the Common Pleas. Excep tion to be allowed. And be it further Enacted by the Authority aforesaid, That in all Cases adjudged in the Provincial Court of Appeals, where the same inay be in the Court of appealed to His Majesty in His Privy Council, and where their Opinion or Judgment is pronounced on any Law, Custom or Usage of the Province, The Same Appeals. 1 Canadian Archives, Q 62A-2, p. 634. The rival bills of the Chief Justice, representing the English element, and of St. Ours representing the French interest, were defeated, with the result that the Council fell back by compromise upon the renewal of the Ordinance of 1785. However, in the amendments introduced into this, while passing through Committee, there were embodied many of the most important features of the measure introduced by the Chief Justice. The interesting progress of the bill through the Committee, with the numerous amendments proposed and defeated, may be followed in the Journals of the Council. See Q 27-2, pp. 737-761. 2 See p. 529. |