SESSIONAL PAPER No. 18 MEMORIAL OF THE JUDGES.' To His Excellency The Right Honorable Guy Lord Dorchester Captain General and Governor in chief of the Colonies of Quebec Nova Scotia & New Brunswick— &c &c. &c. The Memorial of the undersigned Judges of His Majesty's Courts of Common Pleas for the District of Quebec and Montreal. Sheweth. That on the 14th of April last, James Monk Esquire His Majesty's Attorney General for this province, on being heard as Council at the bar of the Honb The Legislative Council upon a Petition of some of the Citizens of Quebec, and others, relative to an Ordinance for regulating the proceedings of the Courts of Justice, then before a Committee of the whole Council, did, in a Speech of considerable length, deliver'd in presence of a Crowded audience, enter into a general field of declamation against the Laws and Administration of justice for this Province, charging not only the Courts of Common Pleas for both Districts, but the Provincial Court of Appeals, and even the Lords of His Majesty's Council with inconsistency in their judicial decisions; and also charging the Judges of the Court of Common Pleas for the District of Quebec with partiality in having, through grace and favor granted to John Fraser of London Merchant, what they afterwards denied to William Goodall of the House of Watson and Rashleigh in a Case of a similar nature; which last imputation is of the most serious nature and consequence to your MEMORIALISTS affected thereby, and to GOVERNMENT. That when the Attorney General was call'd upon to avow and support what he had advanced in this behalf, and specially required so to do by the Legislative Council, as well as generally, by an Honorable Member Mr. Caldwell, to bring forward any accusation whatever of partiality, other than that stated in the Questions put to him by the Council; he the said Attorney General Did, in place of answering directly to so plain a question, evade the same under pretext of consulting his Clients, as may appear by his answer of record, and having taken time, full six days to prepare himself to satisfy the Council in this respect, in place of coming forward to support so foul an Accusation, Did, at the moment of the last adjournment of the Council to wait on Your Lordship at the close of the Session, present an answer for himself and his Clients equally evasive, for all which your MEMORIALISTS beg leave to refer your Lordship to the Journals of Council and to the last Answer abovementioned. Your MEMORIALISTS therefore humbly pray Your Lordship to do them Justice, by vindicating the dignity of Government, thus wantonly insulted in their persons by the King's Attorney General, and thereby rescue their Characters and reputation from an attack of partiality so maliciously and publickly brought against them and unsupported, which may also, upon the slightest inquiry be proved to be altogether without foundation, and which is altogether unconnected with any farther inquiry or investigation Your Lordship may think proper to make into the Charges of inconsistency in the Judicial decisions of the Courts of Justice Alledged to arise from the inadequateness and uncertainty of the Laws." Quebec 1 May 1787. 1 See Q 27-1, p. 135. (signed) A. MABANE. J.C. P. for Quebec J. FRASER. J.C. P. 2 For Monk's statement, see journals of the Council; Q 27-2, p. 776. 3 As stated in Dorchester's letter to Sydney, see p. 588, the Chief Justice was appointed to investigate the matter. The record of the investigation fills 13 volumes, Q 29-1 to Q 34-2, and brings out most abundantly the very confused, inconsistent, and arbitrary system of justice administered under the Quebec Act, but without establishing any wilful corruption on the part of the judges, who were simply the victims of the system. 18-3-38 6-7 EDWARD VII., A. 1907 330 BI F THE 2 MMITTEE OF THE COUNCIL RELATING TO THE YURTS OF JUSTICE. is ELLENY THE 3: TH VORABLE LORD DORCHESTER, GOVERNOR IN CHIEF THE PROVINCE OF QUEBEC &&& . te the Cancil, relating to the Courts of Justice. metnite reference of the general subject of the Courts - a. i. end that it is Your Lordships wise and benevowen: Tum-prudence of the Colony into view, for the Its so the Flulle welfare may require, and to that end they Courts there are 5r the administration of Justice, and then josereiti us jorurring to them, as most deserving of Your an: Courts for Civil Jurisdiction. ence for instrating these Courts were passed in 1777, Civil Judicature, under the Authority of the Pee At. ne Criminal Jurisdiction' erects Sagmance of all Pleas of the Crown; and for I Vences whatsoever; to be held before the Chief Justice for Ewenting the Office of Chief Justice for the easymine the said Pleas of the Crown, and all manner kooping to the La vs of England, and the Ordinances of the gisk ve Clanet of the Province. " Coacter Sessions of the Peace in each of the two Districts P. 21 x many Cournissioners of each District, as are or shall be the Peace, who are to hear and determine all matters e Cosecos en otte Peace, and whatsoever is by them cognizable accordbe Laws N ant, and the Ornnances of the Governor and Legislative ་་་ Psp twe Dis pets at Vælve and Montreal comprehend the whole Province, and sodiy ta ing into the St. Lawrence from the South, and the Met row from the Norta, so that the Eastern District is Quebec, and the Western Mop. Fach District has a Sherif and a Coroner, Special Commissions of Oyer and To NOT PAY issue for at der and the same act provides 1- Phát tõe Captains of the Mina may arrest any person "guilty of any Breach de Pracy of my Creminal offence within their respective Parishes, and convey or vaise to be conveyed sich person before the nearest Commissioner of the Peace, to be "des with acconing to Law." (1) That this be a part of the Report For it Mr Finlay Against it Mr Mabane, Mr St Ours 11 That the Captains of Militia may, when any marks of violence Appear on the dead body Summon together six reputable householders of his Parish to inspect the same, and he shall according to their opinion report the manner and cause of such death in writing to the nearest Commissioner of the Peace that a farther Examination may be made therein if necessary. Canachan Archives, Q 27-1, p. 155. This is section B referred to in Dorchester to Sydney, se This report was made before the investigation due to the charges of Atty. Gen. Monk was under The committee appointed to report upon the Courts of Justice consisted of the Chief Justice, and Messrs Finlay, Dunn, Mabane, Fraser, and St. Ours. As will be observed however most of the work was done by Messrs. Finlay, Mabane and St. Ours. The notes 1 to 9 were placed at the foot of the pages, of father on parallel pages in the original mss., but to avoid confusion they are here given at the end of each SESSIONAL PAPER No. 18 No other Law has been passed in the Colony so to organize it, as to give effect and operation to that part of the Statute, by which the Criminal Laws of England were introduced, as the Law of the Province relating to crimes and offences. Under the two Ordinances respecting the Dispensation of Justice in Civil Causes, the Courts are Is A Court for small causes of Ten pounds sterling and under. II A Court for Causes exceeding that Sum. III Courts to hear Causes in Appeal. For Your Lordships clearer discernment of the nature of these Judicatures, the Committee beg leave to present an abstract of what appears to be most material in the Ordinances with respect to each of these Judicatures, and Is As to the Court for small Causes The Cognizance is committed to either of the Judges of the Kings Court of Common pleas. His decisions are final, and the rule Equity and good conscience, as often as Judgment is given by the default of appearance. In other cases the practice has been to determine by the Law in general, as it was understood by the Judge to apply to the case. The Court is held weekly. The process is a declaration and summons-The Return Day as the Judge directs-The proceedings are summary-Costs follow the Judgment— The Execution runs against the moveables unless screen'd by the fraud or violence of the defendant, and then against his person-It is to be executed by such person as the Judge nominates, and the Sum may be levied by installments, but all to run out within three Months. Confined to no place, the Judges alternately itinerate with their Clerk, twice yearly to the remoter settlements within the bounds of their respective Districts. II' And in all causes above Ten Pounds two of the three Judges for each District are required. This is the great Court of the Country, with original Jurisdiction; it has by the Ordinance "Full power Jurisdiction & Authority to hear and determine, all matters of Con"troversy relative to property and Civil rights" It sits weekly in each District; it may find Fact and Law, but either party has the right in certain cases of electing a trial by Jury, and the formulary of practice is of course two fold. The first process is a declaration & summons, returnable at the day a Judge directs, it goes to the Sheriff of the District on default of appearance at the two next successive Court days there is an interlocutory Judgment-There is no Jury of Enquiry; the Court assesses the damages, and gives the final Judgment; an execution follows, but in that case the plaintiff gives security to refund, if by the reconsideration of the same Court, that Judgment shall be revers'd; as it may be, where the defendant being an Inhabitant of certain remote distances, Viz' ("beyond the Long Sault on Ottawa River, or beyond Oswegatchie' in the upper parts of the province, or in or upon any place "below Cape Cat on the South side, and the Seven Islands on the North side of the "River St. Lawrence ") had not been personally summoned. Where there is proof of the defendant's intention to leave the Country, the first process may be a Capias and require bail. An issue may be raised Ore tenus; the Ordinance has the words on that subject, "That every issue in Law or Fact, to be formed in any cause, shall be made and "compleated by the Declaration, answer and replication, or by the plea, answer and "replication in Cases of abatement and bar of the said parties, plaintiff and defendant; "and that no other or further pleadings or writings by way of plea, upon such issue or "matter in Dispute, whether of Law or Fact, shall be received or admitted by the said "Courts of Common Pleas, as part of, and to be put upon the record, in any case there "instituted and to be heard and adjudged upon, any thing to the contrary notwithstand"ing-" The trial by Jury is at the option of either of the Parties in such suits as are 1 Ogdensburg, or Prescott on the Canadian side of the St. Lawrence. 18-3-38 6-7 EDWARD VII., A. 1907 "Grounded on Debts, Promises, Contracts and Arguments of a Mercantile nature "only between Merchant and Merchant, and Trader and Trader, so reputed and under"stood, according to Law; and also of personal wrongs proper to be compensated in "damages"- The Jurors are to be "Merchants or Traders of Lawful age, and also all persons of lawful age being house"holders, or occupying Lodgings of the value of Fifteen pounds per Annum rent." They are to come only from the Vicinages or Banlieus of Quebec or Montreal; The precise limits of which the Committee are not able to ascertain. The Sheriffs are annually to file two lists in the Clerks Office; the first to consist of all Merchants concerned in Trade, and the second of persons of other occupations. These lists may be remodelled by the Sheriff and Judges, and are to be open to public resort. In causes of Mercantile dispute, or actions of Damage where the total amount, sum, dealing, or matter of account, agreement or transaction between the parties, exceeds Fifty pounds, a Jury is to be struck from the first list and from the second when the Demand is of Fifty Pounds and less; and the strikings are to be in rotation, commencing for one cause where the last ended. Challenges are to be according to the Laws of England; but in Causes between natural born subjects the Jurors are to be natural born, Canadians if the parties are Canadians, and De Medietate, where they are of different Classes. The English rules of Evidence are to direct "in Proof of all Facts concerning com"mercial Matters." Depositions before a Judge, after notice to the adverse party are admissible in the case of a Witness about to leave the Province, or being sick, or not able to attend, and as the Ordinance adds, in cases of evident necessity. The Verdict is compleat, tho' but nine Jurors concur. On the Seizure of Personality in Execution, it shall be published at the Church door of the Parish, the next following Sunday, notifying the time of sale.-That sale is to be within the Parish and the time not within Eight days from the Seizure At the request of the plaintiff, the goods may be conveyed to and sold at the Capital of the District, and the Personal Estate is to be sold first The sale of the Realty is to be preceded by three Gazette Advertizements, with an interval of four Months, verbal and written proclamations at the Church door of the Parish, and a public call upon all incumbrancers to notify their demands at the Sheriffs Office The body is liable to Execution when the goods are secreted or the Seizure opposed, and to satisfy Judgments to Merchants and traders-But upon Oath of the imprisoned debtor after a months confinement, swearing himself not worth Ten Pounds, he is to have three shillings and six pence a week for his sustenance from the Creditor; with a further Augmentation to one shilling and six pence more by the discretion of the Judges, unless the plaintiff proves a concealment or substraction of effects for the purpose of fraud And Creditors have the advantage of carrying the process of execution from one District to the other. The III Civil Judicature is the Provincial Court of Appeals, It is constituted by any five Members of the Council with either the Governor, Lieu' Governor, or the Chief Justice. It has no Original Jurisdiction but only the hearing and determining Appeals in causes under Ten Pounds, where it relates to a duty to the Crown, a fee of Office or annual rent, or where a future Right is to be bound and in all cases above Ten Pounds. But the Judgment below is final, and the right to Appeal suspended upon the Appellants giving security to prosecute the Appeal and pay the Costs and damages, in case the first Judgment be affirmed. It admits of a Question, whether the Jurisdiction of the Court of appeal is not made to depend on the giving such security, The security is 1ft to the Judgment of the Court below. SESSIONAL PAPER No. 18 From the Provincial Court of Appeals, the dernier resort is to the King in Privy Council, but only in such cases under Ten Pounds as might come to the Provincial Court of Appeals, and in those above Five Hundred Pounds Sterling. The only remaining Court in the Actual execution of Authority is, The Prerogative Court, one in each of the two Districts. The Judges are constituted by Commission under the Province Seal, and are the very same persons, that now sit on the Bench of the Common pleas. Their Commissions give them power to take ye Probate of Wills relating to real and personal Estates, and Issue letters of Administration, prove Inventories and Accounts, "and to transact whatever may be legal and right for the Just Execution of all "Wills and Codicils, and touching Estates, Lands, Tenements, Goods, Chattels, Rights, "Credits and Effects of all, any and every Intestate; and to divide, apportion, appro"priate and decree the same, to such persons, and in such manner, as by Law it is per"mitted, and directed to be done." The Question implied by Your Lordship's reference requiring, not only an enumeration of the Courts, and an analysis of their powers, but what may appear to be expedient for the advancement of Justice, the Committee proceed next to that part of their Report. They are very sensible of the weight of that care and circumspection, which his Majesty recommends, for the Establishment of the proper mode of administering Civil. and Criminal Justice, in a Province so peculiarly circumstanced. The Committee therefore mean as most likely to answer Your Lordship's intention, barely to point at the most palpable defects in its present Judicature and beginning with that branch which more immediately concerns the Crown, further provision seems to be wanting Ist To introduce the subordinate and necessary Peace Officers known in the English Law, as Bailiffs and Constables. There are no Constables in the Province, and the Captains of the Militia are mere Volunteers, from whom no service can be exacted as a Duty (2) (2) On this clause, for its standing. Mr. Finlay. against it, Mr Mabane and Mr. St. Ours, who offer'd in its place the following suggestion "Mess's Mabane and St. Ours think the clause should run thus; There are no peace "Officers in the Parishes of the Province as are known in the English Law, by the "name of Bailiffs, or Constables, the Captains of the Militia being by the ordinance "authorised to act as such without an obligation enjoin'd on them to do the duty." II Suitable Justice-Halls and Prisons-The latter both at Quebec and Montreal being in a Condition neither consistent with Humanity to the Prisoners, nor safety to the Sheriffs or the Public, and having been repeatedly presented as insufficient by the Grand Juries of both Districts. III' As the Law stands there is great danger of a Defect of Public Justice, in the difficulty of obtaining freeholders to serve as grand and petty Jurors on trials in Criminal Cases. With a Freehold Estate, a competent knowledge of the English Language may be necessary; but very few unite both those qualifications, and yet there are many Inhabitants very fit for this Service who have no Freeholds (3) (3) Advanced to this length in the Report, Mr. Mabane insisted on taking in here, what he offers as his Motion in the words following, and it was agreed that a Minute be made of it. "Mr. Mabane agreeable to a Motion which he made in Council the 6th of last November, and which was withdrawn upon assurance given that the object of it would "be taken into consideration by the Committee which was to be appointed for the "Courts of Justice, finding that in the Report proposed by the Chairman no notice taken of that important necessary business, has made out, tho' very sensible of his "want of sufficient abilities the Heads of an Ordinance for promulgating to the people "of this Province the principal parts or Articles of the English Law which he will "subjoin to the Report as soon as it can be copied, for His Lordship's information. |