SESSIONAL PAPER No. 18 Four Terms in the Year Established. the same shall in like manner, and for the same Reason as hereinbefore mentioned, be stated upon the Record, or referred to and ascertained. And, in all Causes of which the Common Pleas have Cognizance above Ten Pounds Sterling, the same shall be proceeded in, heard, and determined only in regular Terms, consisting of the First Fifteen Days (Sundays and Holidays excepted) in the Months of January and July, and the last Fifteen Days of March and September, Yearly, the First Return Days whereof shall always be the First Day of the Term, and the rest of the Return Days, and the General Rules of Practice, such as the respective Judges of the Common Pleas shall fix in a Formulary. Appellate And, to take away all Doubts and Scruples with respect to the Right of Jurisdiction Appeal in any Cause before the said Courts of Common Pleas. of Court of Appeals, touching Security. Where Executors & appeal, the Plaintiffs to give Security to refund be fore Execution issues. Small Causes. Be it Enacted and Declared by the same Authority, That the Court of Appeals shall be deemed and adjudged to have an Appellate Jurisdiction, with all the Power necessarily annexed to such Jurisdiction; and that it shall henceforth belong to the Provincial Court of Appeals to determine the Question when security shall be requisite, and the sufficiency thereof, and, the Admission, Dismission, or Remission of Appeals, and the supply of the Defects of the Record and of the Effect of the Appeal as a Supersedeas of all or any Proceedings in the Lower Courts for the stay of Execution on the Judgment of the same, or any Process of the nature of Execution, with Authority also to make Rules and Orders, to regulate, effectuate and accelerate the Proceedings in all causes of Appeal, for the Advancement of Justice, and to prevent unnecessary Delays and Expence in the same. And, where Appeals are brought by Executors, Administrators, Curators, Tutors 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 Judgment shall be reversed, together with such Costs as the Court of Appeals may award. Respecting And, for the more convenient Dispensation of Justice in small Causes, Dispensation It is enacted and Ordained by the same Authority, that it shall and may of Justice in be lawful for his Excellency the Governor, or the Commander in Chief of the Province for the Time being, by and with the advice and consent of His Majesty's Council, to appoint by Commission such and so many Persons as he shall Judge fit, and for such Parts of the Prov ince as he shall think proper, to hear summarily, and to determine finally, without Appeals, all Matters of Debt of Ten Pounds or under; and it shall likewise be lawful for His Excellency the Governor, or the Commander in Chief for the Time being, by and with the Advice and Consent of His Majesty's Council, to regulate the Fees to be taken by the Persons so commissioned, and by their Subordinate Officers, and to direct a mode of proceeding for them, whereof, and the extent of their Jurisdiction respectively, a Notification shall be published in the Quebec Gazette, for the Information of all Persons whom it may concern.1 New Districts the remote Whereas there are many Thousands of Loyalists and others settled in the may be formed Upper Countries above Montreal, and in the Bays of Gaspy and Chaleur, by Patent for below Quebec, whose ease and convenience may require that additional Districts should be erected as soon as Circumstances will permit ;—It is Enacted and Ordained by the Authority aforesaid, That it may be lawful for the Governor or Commander in Chief for the Time being, with the Advice and Consent of the Council, to form, by Patent, under the Seal of the Province, one or more new Districts, as his Discretion shall direct, and parts of the Province. This clause embodies the essential features of the bill ruentioned in §2 of the draught ordinance of the Chief Justice; see p. 576. Attachments in certain Cases only. Proviso. These Addi lations to be in Force for Two Years. 6-7 EDWARD VII., A. 1907 to give Commission to such Officer or Officers therein as may be necessary or conducive to the ease and convenience of His Majesty's Subjects residing in the remote Parts of the Province 1 And be it further Enacted by the Authority aforesaid, That no Process of Attachment, except in the case of the Dernier Equippeur, according to the usage of the Country, shall hereafter be issued for Attaching the Estate, Debts and Effects of what Nature soever, of any Person or Persons whomsoever, whether in the Hands of the Owner, the Debtor, or a Third Person prior to Trial and Judgment, except where there be due Proof on Oath (to be indorsed on the Writ of Attachment) to the Satisfaction of one of the Judges of the Court issuing the same, that the Defendant, or Proprietor of the said Debts and Effects, is indebted to the Plaintiff in a Sum exceeding Ten Pounds, and is about to secrete the same, or doth abscond, or doth Suddenly intend to depart from the Province, with an Intent to Defraud his Creditor or Creditors, and that the Defendant is then indebted to the Plaintiff, and he doth verily believe that he shall lose his Debt, or sustain Damage, without the Benefit of such Attachment. Provided always, That nothing herein contained shall be construed to the Prejudice of the Rights of Landlords, in their legal Course, for the Recovery of Rents, according to any former Mode of Proceeding by any Law, usage, or Custom whatsoever; and provided also, that whenever the Defendant or Debtor shall either pay the Debt and Costs, or give Security to the Sheriff or Officers for the goods so attached, as in Cases of Bail on Personal Arrests, subject to Justification in Court to answer the Value of the Goods, and abide the Judgment of the Court, the same shall be forthwith restored; and for that Purpose the Defendant or Debtor shall be allowed Forty Eight Hours, after which Period, if the Debt and Costs be not paid, nor Security given, the Goods so seized shall remain attached, and held by the Sheriff or Officer to answer the Judgment of Law. Be it further Enacted by the Authority aforesaid, That the additional tional Regu Regulations hereby Enacted shall be in force until the end of the Sessions that shall be held in the Year of our Lord 1789, or as long as the Ordinance hereby renewed; and that the Ordinance passed in the Twentyfifth year of the Reign of his present Majesty, intituled, "An Ordinance "for granting a limited Civil Power and Jurisdiction to His Majesty's "Justices of the Peace in the Remote Parts of the Province" be no longer in force than until Such Small Jurisdictions as by this Act are authorized shall be actually erected. Enacted and Ordained by the Authority aforesaid, and passed in (signed) J. W. MEARNS C.L.C. 1 This clause embodies the chief features of §1 of the draught ordinance of the Chief Justice; see p. 575. 2 This was the Ordinance of 25 Geo. III., cap. 5. SESSIONAL PAPER No. 18 ORDINANCE RE CRIMINAL COURTS.1 ANNO VICESIMO GEORGII TERTII REGIS. CHAP. VI. An Ordinance to Explain and Amend an Ordinance for establish- Whereas it is expedient that public Officers should be established in the several Parishes of this Province, under the Denomination of Peace Officers; It is Enacted and Ordained, by his Excellency the Governor and the Legislative Council, That all and every the Captains, and other Peace Officers Officers of Militia in the said several Parishes of this Province, duly comappointed in missioned by His Excellency the Governor, or the Commander in Chief for the Country Parishes. the Time being, and likewise the Serjeants named and appointed by the said Captains and other Officers in the respective Parishes, be, and they are hereby declared to be Public and Peace Officers within their respective Parishes, and authorized and enjoined to do and exercise all and singular the Duties and Services of Public and Peace Officers within their respective Parishes according to Law The same to And be it further Enacted by the same Authority, That it shall be Lawful for the Commissioners, or Justices of the Peace, assembled in Quarter Sessions, or by a Majority of the Majority of the same, and be appointed they are hereby required, as soon as conveniently may be, to name for the Towns. and appoint such and so many Persons as they may think sufficient, within the Towns and Banlieus of Quebec and Montreal, for carrying into Execution the orders and Decrees of the several Courts, and to preserve the Public Peace therein, every of which Persons so appointed shall faithfully perform the Duties of the Offices for which he may be so appointed for the space of one year; previous to the expiration whereof it shall be the Duty of the said Commissioners or Justices of the Peace annually to appoint others to serve in their stead, and to increase or diminish the number first appointed, as to them shall appear to be most for the Public Weal and Safety; and that no such appointment shall be valid in Quebec or Montreal, and their Banlieus respectively, in the Case of a Civil or Military Officer, or in any Person in Priest's Orders, or in the Profession or Practice of Physic or Surgery, or any Miller, Ferryman, Schoolmaster, or Student of any College or Seminary, or any Person not of full Age or for neglecting or refusing to perform the said Office or Offices there shall be the Forfeiture of Twenty Pounds, to be recovered in any Court of Record, with Costs of Suit, by Bill, Plaint, or Information, in which no Essoign, Wager, of Law, or any more than One Imparlance, shall be allowed. (signed) DORCHESTER Enacted and Ordained by the Authority aforesaid and passed in Council under the Public Seal of the Province, at the Council Chamber, in the Castle of St Louis in the City of Quebec, the 30th day of April, in the Twenty seventh year of the Reign of our Sovereign Lord George the Third, by the Grace of God of 1 Canadian Archives, Q 62A-2, p. 644. This Ordinance is an amendment of 17 Geo. III, cap. 5, given at p. 471. Private. Right Honb Lord Dorchester. 6-7 EDWARD VII., A. 1907 Great Britain, France- and Ireland, King, Defender of the (signed) J: WILLIAMS C.L.C. SYDNEY TO DORCHESTER.1 WHITEHALL 20th Sept 1787. MY DEAR LORD, I think it necessary to accompany my Public Dispatch with a few Lines of a more private and confidential kind. The Subjects contained in your various Dispatches are of very important and interesting natures. The Merchants who trade to Quebec naturally take part with their British Correspondents. But in the few Conversations I have had with them, they have restricted their Complaints almost entirely to the want of Goals and Officers to secure their Debtors, hinting, however, that they would wish to have the English Commercial Laws prevail instead of the Coûtume de Paris. I am clear that the Canadians have a right to retain, if they choose it, the Laws guaranteed to them by the Capitulation, and that Merchants who trade with them ought to content themselves with the Laws of that Country, as well as with those of every other with which they deal. The Disputes in the Legislative Council are extremely disgusting, not to say dis graceful, to the Government. Protests are of ancient Use in the House of Lords, but I do not see with what propriety they are introduced into the Legislative Council of Quebec. The Protest of Mr. Pownall against the excluding Strangers, seems to me a very extraordinary Proceeding, and that in which the Speech of the Chief Justice of the Common Pleas is censured, is a direct attack upon the freedom of Debate, and in that instance unprecedented, ] believe, by any proceeding of any Assembly whatever. Some means must be found of preventing this kind of animosity and personality between the King's Servants in the Province, as it is impossible for any Government to subsist under such Circumstances. The Behaviour of the Attorney General towards the Judges of the Common Pleas, seems to have been extremely improper, even if they deserved the imputations which he so unsparingly cast upon them, but if in the Event he cannot make good his charge, he must certainly appear very untit to continue in his Office. 1 Canadian Archives, Q 28, p. 44. In another despatch, dated Sept. 14th, Lord Sydney discussed in an official form the points here touched upon in a more confidential manner. Dorchester is informed that, though it is not the intention at present to change the constitution of the Province, yet His Majesty will be advised to make a change in the tenure of land in the Province. See Q 28, p. 28. 2 At a session of the Legislative Council Jan. 22nd, some sixteen citizens presented a petition requesting permission to attend the debates of the Council, when Col. Caldwell moved that every Member of the Council shall have leave to introduce any Gentlemen to hear the Debates at any time, except when the House is ordered to be cleared.” This motion, however, was defeated by ten to eight, all the French members voting against it. On Jan. 25th, Mr. Pownall recorded his protest, his reasons being that every British subject had a right, upon due application, to hear the debates of the Legislature which passed the laws governing him. He pointed out also that the idea which had prevailed previously, (See note 1, p. 329) that the members were bound by their oath to debate all measures in secret, was no longer held, and also that it is necessary to dissipate the suspicion with which their secret proceedings were regarded by the general public. See Q 27-2, pp. 964 & 570. This refers to the famous arraignment by the Attorney General. James Monk, of the administra tion of justice in the Canadian Courts of Con.mon Pleas This criticism was made in the course of an address before the Legislative Council, on April 14th, 1787, when Mr. Monk was acting as counsel for the Canadian merchants, in support of their petition on behalf of themselves and other merchants in Britain, against a proposed ordinance introduced by Mr. St. Ours to regulate proceedings in the courts, after that of the Chief Justice had been voted down." Mr. Monk's statements were taken up in the Council and the proceedings eventually resulted in a very extensive investigation before the Chief Justice, the minutes of which till 18 volumes in the Canadian Archives; Q 29 1 to Q 34 2. SESSIONAL PAPER No. 18 All the Disputes seem to tend to a Division of the Province into two, with a Lieutenant Gov to each, under the Governor, I wish your Lordship had given me your thoughts upon that Subject, as well as upon any other plan of adjusting the differences subsisting in the Province, and unfortunately among the Officers of the Crown: You must be better able to form a decisive opinion upon the spot than We can here, and your long experience and general knowledge of the Province would give the greatest weight to your opinion. The Rights and the opinions of the antient Inhabitants of Canada, must be attended to in every thing like a change of the Government, otherwise under the shew of giving a free Constitution, We are really practicing Tyranny. Your Lordship will see by my official Dispatch,' that the King's Servants have no immediate Thoughts of proposing any alterations in the Quebec Act. No Plan of an Assembly has been suggested by any one, and indeed it would, under the present Circumstances, be very difficult to form such a one as would not be liable to very great objection. But I foresee, as well as your Lordship, that in proportion as the number of British and Loyalists increases in the Province, the applications for one will grow more frequent and pressing. I am, my dear Lord with great truth and regard, DORCHESTER TO SYDNEY.? SYDNEY. Quebec 13 June 1787. My Lord, I transmit herewith The Minutes of Council upon State business from the 24th October 1786 to the 2 June 1787. both inclusive. The Report of a Committee of Council relating to the Courts of Justice. The Report of a Committee of Council relating to Commerce and Police. The Report of a Committee of Council upon Population, Agriculture, and the Settlement of the Crown lands. The Journals serving for a Report of the Committee of Council for the Militia and the high roads and Communications. The Journals of the Legislative Council. A set of printed Copies of twelve Ordinances passed during the last Copy of a letter from the Lieutenant Governor, dated 10th March 1787. The great bulk of the Minutes of the Legislative Council was occasioned by a considerable warmth and much altercation, which prevailed among the members from their meeting; very nearly to the end of the session, when they became more composed, and separated in tolerable good humour, with each other at least in appearance Two parties have subsisted in this province ever since the Civil Law was introduced here in 'Sixty four, the one zealous for English Laws and 1 Referred to in note 1, p. 586. 2 Canadian Archives, Q 27-1, p. 112. The capital letters in the margin refer to the reports and proceedings embodying the investigation of the existing condition of the Province which Dorchester was required to make on returning to Canada. See note 2, p. 520. Those portions of the reports, &c., bearing on the constitutional changes which were being advocated, are given among the documents which follow, and need not be specially referred to here. They will all be found in vols. Q 27-1 and 27-2. |