SESSIONAL PAPER No. 18 the natural equality among men is so admirably preserved, and the lowest subjects of the state admitted to more than an equal share of the supreme judicial authority. I have been actually informed that a canadian gentleman would think himself degraded, and more hardly used by being submitted for life or limb to the judgment of his tradesmen, than if he were put to the question and tortured by the king's authority. If the difficulties were liquidated and the way more open, I humbly submit to your Majesty, that some other points should be previously settled, before the forms of mere civil and criminal justice can be legally conceived. What form of civil government is fittest to be adopted in that country is doubtless a question of policy and state; notwithstanding which, it seems no less manifest, that any given form of civil government will take effect and influence in a thousand ways, upon any scheme to be designated, of civil and criminal justice. Religion also, so far as it affects the state and becomes an object of establishment or toleration, seems to be a matter of policy and state; and yet it is sufficiently obvious what a multitude of laws must follow upon any given establishment or toleration, more or less according to the degrees in which the religion is incorporated with the state. What public revenue is to be established in a new province is, perhaps, a question merely political; but when decided, it generally draws after it a system of laws peculiar to itself and an appropriated tribunal. The same observation holds, in a certain degree, of the police of a country. Being totally uninformed of your Majesty's royal pleasure touching these important articles, I feel it extremely difficult to state any certain scheme of civil and criminal laws, or any which must not receive deep and material alterations for that which your Majesty shall be pleased to determine on those heads. There are, at the same time, certain principles which seem, in my humble opinion, to claim your Majesty's gracious attention, as the basis of any new laws to be made in Quebec. pro The Canadians seem to have been strictly entitled by the jus gentium to their perty, as they possessed it upon the capitulation and treaty of peace, together with all its qualities and incidents, by tenure or otherwise, and also to their personal liberty; for both which they were to expect your Majesty's gracious protection. It seems a necessary consequence that all those laws by which that property was created, defined, and secured must be continued to them. To introduce any other, as Mr. Yorke, and Mr. De Grey emphatically expressed it, tend to confound and subvert rights instead of supporting them. When certain forms of civil justice have long been established, people have had frequent occasions to feel themselves and observe in others the actual coercion of the law in matters of debt and other engagements and dealings, and also in the recompense for all sorts of wrongs. The force of these examples goes still further and stamps an impression on the current opinion of men and puts an actual check on their dealings; and those who never heard of the examples or the laws which produced them, yet acquire a kind of traditional knowledge of the legal effects and consequences of their transactions, sufficient and withal absolutely necessary for the common affairs of private life. It is easy to imagine what infinite disturbance it would create to introduce new and unknown measures of justice; doubt and uncertainty in the transaction; disappointment and loss in consequence. The same kind of observation applies with still greater force against a change of the criminal law, in proportion as the examples are more striking, and the consequences more important. The general consternation which must follow upon the circumstance of being suddenly subjected to a new system of criminal law, cannot soon be appeased by the looseness or mildness of the code. From these observations, I draw it as a consequence that new subjects, acquired by conquest, have a right to expect from the benignity and justice of their conqueror the continuance of all these old laws, and they seem to have no less reason to expect it from his wisdom. It must, I think, be the interest of the conqueror to leave his new subjects in the utmost degree of private tranquillity and personal security; and, in the 6-7 EDWARD VII., A. 1907 fullest persuasion of their reality, without introducing needless occasion of complaint and displeasure, and disrespect for their own sovereign. He seems, also, to provide better for the public peace and order, by leaving them in the habit of obedience to their accustomed laws than by undertaking the harsher task of compelling a new obedience to laws unheard of before. And if the old system happens to be more perfect than any thing which invention can hope to substitute on the sudden, the scale sinks quite down in its favor. It should be remembered that the scheme of government and laws for Canada, was conceived by a wise court in a cool moment, untainted with private passion or public prejudice. The principles of humanity and the views of state combined to suggest that plan which might serve to build a flourishing colony upon. The plan was improved, from time to time, by the wisdom and experience of succeeding times, and not left to become obsolete and unfit for the progressive state of the province. Although the foregoing observations should be thought just, as a general idea, yet circumstances may be supposed, under which it would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and strong, as the conquered can set up to their private rights and ancient usages. Hence would follow every change in the form of government which the conqueror should think essentially necessary to establish his sovereign authority and assure the obedience of his subjects. This might possibly produce some alteration in the laws, especially those which relate to crimes against the state, religion, revenue and other articles of police, and in the form of magistracy. But it would also follow, that such a change should not be made without some such actual and cogent necessity, which real wisdom could not overlook or neglect ;-not that ideal necessity which ingenious speculation may always create by possible supposition, remote inference and forced argument-not the necessity of assimilating a conquered country in the article of laws and government to the metropolitan state, or to the older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several parts of the empire; unattainable, and, as I think, useless if it could be attained :-not the necessity of stripping from a lawyer's argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws:--not the necessity of gratifying the unprincipled and impracticable expectations of those few among your Majesty's subjects who may accidentally resort thither, and expect to find all the different laws of all the different places from which they come, nor according to my simple judgment, any species of necessity, which I have heard urged for abolishing the laws and government of Canada. The foregoing thoughts are humbly submitted to your Majesty, as general and abstract propositions, liable to be much altered in the application, by what your Majesty may think fit to resolve upon the matters of policy and state which have appeared to me in some degree previous considerations to any plan for the administration of civil and criminal justice, and upon which I have not presumed to offer any opinion. All which is humbly submitted to your Majesty's royal wisdom. PLAN OF A CODE OF LAWS FOR THE PROVINCE OF QUEBEC; REPORTED BY THE ADVOCATE-GENERAL, JAMES MARRIOTT, LONDON, MDCCLXXIV.1 TO THE KING'S MOST EXCELLENT MAJESTY. May it please your Majesty, WHEREAS your Majesty was pleased, by your order in council of the 14th of June, 1771, to direct that several reports and papers relative to the laws and courts of judicature of Quebec, and the present defective mode of government in that province, should be referred to your Majesty's advocate, attorney, and solicitor-general to consider the same; to 1 The Report of Advocate General Jaines Marriott, though not found among the State Papers, was published in 1774, under the title here given. The latter part of the report, pp. 129-246, is chiefly con SESSIONAL PAPER No. 18 take to our assistance other persons, as we shall think fit, for the purpose of giving informations, and to prepare a general plan of civil and criminal law for the said province :1 and by a farther order, dated 31st July, 1772, reciting the former order, your Majesty was pleased to direct, that the advocate, attorney, and solicitor-general should make a separate report thereupon to your Majesty in council, with all convenient speed. In most humble and dutiful obedience to your Majesty's commands, I have the honour to report, that I have perused and considered attentively the papers referred, and have obtained several very useful informations. It is with the utmost diffidence I now venture to lay before your Majesty in council the result of the reflections which have arisen in my mind upon this subject: perplexed as it is, and so very extensive, both in its matter and in its consequences, to your Majesty, and your government, it would be full of danger to lay down any opinions (not only of what the law is, at large, but what the law ought to be; which is the great question referred) too positively, in relation to a country so remote from home, and to a people, their laws, and customs, with which your Majesty's subjects here are so little acquainted; I cannot, therefore, offer these thoughts otherwise than merely problematically, and as in deliberation, with submission to superior wisdom; and I shall readily accede to any better reasonings which may be set forth in any other report of the law servants of your Majesty, and in which we might unite. It is observable, that the several reports hitherto made and referred to us, do not agree in opinion; but so far as they do not oppose each other in matter of fact, so far we may venture to try to frame some sort of opinion on the ground of those facts which are laid before us. Notwithstanding that there ever has been, among men of reflection, a great variety of sentiments upon the subject of general legislation, and that such subjects require the life of a Plato or a Montesquieu to discuss, and the experience of ages to confirm them, it seems to be nearly certain, upon the ordinary experience of mankind (an observation very necessary and applicable to the progressive state of Canada) that wants make manners, and that manners make laws, interpret and controul them in every age and in every government: on the other hand, that laws, in a certain degree, can change the manners of a people, is not to be doubted; because their manners alter with the increase and circulation of property, on which the laws have a visible influence: that in a state of society, where the numbers are few, the wants simple, and the property free from the intricacies of commerce, the laws of that society also are few and simple. The government of a people in such a state represents the government of a private family. It is therefore impossible to form a general code of civil and criminal law for any people, without its being subject to change in the progress of civil society; nor can it be effective without its being adapted to the immediate wants of the people, and not inconsistent with the tone of their manners: but it is clearly the interest of the governing power, for its own preservation, to watch every change of circumstances, to follow expediencies as they arise, and to model its laws according to the position of the subject, and the views of that leading policy which is the wisdom of states, and the spirit of legislation. Father Charlevoix,* in speaking of the administration of justice in Canada, in 1663, bewails the time when arbitrations were no longer decisive, dictated by good sense and the laws of nature; that it was a singular reflection, and humbling for mankind, that the precautions which a wise and great prince thought proper to take to banish fraud, and establish justice, by a new code for the colony, were the encrease of the one and the weakening of the other. The truth is, the colony was changed, and the laws followed. cerned with religious questions, which are only of incidental significance for the constitutional history of the Province, and is therefore omitted. The foot-notes designated by the signs *, †, ‡, &c., are contained in the report; those added by the editor are designated by numerals as usual. As may be gathered from the report, Marriott, had little sympathy with the policy which eventually dominated the Quebec Act and his examination before the House of Commons during the debate on that bill is an interesting bit of legal fence to avoid revealing his opinions of the measure. See "Cavendish's Debates on the Quebec Bill", pp. 163-169 and 172-176. James (afterwards Sir James) Marriott was Advocate General from 1764 to 1778, when he was appointed Judge of the High Court of Admiralty, a position which he held till 1798. *Lib. viii. p. 370, 371. 1 See note 1, p. 296. 6-7 EDWARD VII., A. 1907 In forming the preliminary propositions, in deliberation, to serve as a basis of a code of laws for the province of Canada, it must be taken for granted, as a first and clear position, that the great and sudden change of the political and relative circumstances of the country of Canada makes a farther change of its laws absolutely necessary. It is not an ideal necessity which I mean, not the hope of attaining any perfection which may exist in speculation only, but it is a necessity in fact. The laws and people of Canada are already changed; nor can a previous questiont be supposed of the political expediency. After the representations of the board of trade in the strongest terms, the reports of the governor, chief justice, attorney-general' of the province, and correspondence with the secretary of state, annexed in the papers referred; and after your Majesty's order in council hath declared the necessity of a new system, by setting forth, that the present mode of government in the province is defective, and commanding your Majesty's law servants to prepare a general code of law for the same, and to call upon all persons we may think fit for information; such an ample reference precludes all brevity and reserve, and lays your Majesty's law servants, in my conception, under an indispensible obligation, however painful, to enter into every possible consideration upon a large scale, and to bring the whole subject in one prospect before your Majesty, that your Majesty, in your great wisdom, may weigh upon the most extensive informations the grounds of some probable system. This latitude is the more necessary, because, if hasty and ill digested regulations should be adopted, upon any mistaken notions of men and things, the evils already felt by your Majesty's government will increase beyond the power of a remedy. The relative positon of the colony in its actual and possible views, being well considered, and all facts being well stated and established, the reasonings will easily follow. To know what Canada wants, it is very proper to consider the relation in which it once stood to France, and the relation in which it now stands with respect to Great Britain. This colony was settled with views of policy and commerce, by a mission of Jesuita only, upon pretence of religion, and supported in opposition to the early claims of the British crown, as it was natural to a military government, upon military principles. On a view of the civil establishment of this colony in its infancy and progress, which appears from a perusal of the French commissions‡, nothing can be more simple, or formed with greater latitude than the general and indefinite powers granted to the French officers, to whom it was entrusted. The whole government, in its original state seems to have been left to the influence which military force** has over the bodies, and, which a system of religion, dazzling in its ceremonies, and operating forcibly on the imagination, has naturally over the minds of men *, whose employinents and wants leave little time for reflection. The common law or custom of Paris, was to be their rule, by the edict of Lewis XIV. To this general system have been added a number of royal edicts, regulations of the superior council, ordinances of intendants, &c. which form the law peculiar to the province***; and although it appears upon the authority of Canadian lawyers, that many parts of the law of the custom of Paris have not at any time been executed in the colony; yet the state of the colony has been the only reason of it; and that no cases have yet arisen as objects of those parts of the law of the custom of Paris which have not been executed. +Report of the attorney-general. Vide Creation du conseil souverain de Quebec, 1663. ** Histoire philosophique et politique des etablissemens et du commerce des Européens dans les deux Indes, tom. vi. p. 142. Tous les colons y devoient sans exception une obeissance aveugle à une autorité purement militaire. * Ibid. p. 157. La necessité rendit soldats tous les Canadiens. *** La coûtume dé Paris modifiée par des combinaisons locales forma le code de ses loix. Ibid. 146. 1 See note 1, 258. For Report of Attorney General, see p. 258. SESSIONAL PAPER No. 18 In the condition described, the colony of Canada at the peace of Versailles', was ceded to the crown of Great Britain, absolutely, with no restriction but such as regarded the preservation of private property, or had a view to certain modes of religious worship, or rituals, in case they were permitted by the laws of the country, which now became sovereign. One hundred thousand subjects in this ample manner (to use the words of the treaty) transferred from one sort of government to another, totally different in manners, languages, laws, and religion, must necessarily suffer a violent alteration. It is very observable, that in the XLIId article of the capitulation for Montreal and Canada, the demand was, that the Canadians shall be governed according to the custom of Paris, and the laws and usages established for that country. This is neither granted nor refused, but reserved. The answer is, "they become your Majesty's subjects. The consequence is, their laws are liable to be changed. But until the system of laws of the ancient inhabitants should be repealed by the authority of the new sovereign power, their old system was understood by many to be in full force upon them. This is laid down, as a most certain maxim of the common law, by Mr. Yorke and Mr. De Grey, in their report; by which I suppose they meant the law of nations. That doctrine is laid down as the common law by Lord Coke, in Calvin's case. But the common law of England has nothing to do with the question; it is a matter of the jus gentium, and it depends upon the silence and presumed indulgence of a new sovereign power, as well as upon any acts whereby the sovereign's pleasure is made publicly known. There is no occasion to cite passages of Grotius §, or Puffendorff, or any other German or Dutch writers, to shew their opinion of what is possible for the sovereign power to permit by not abrogating. But much more difficulty occurred (and it was increased by the steps taken by the British government) upon the question, whether the laws, civil and criminal, of the ancient inhabitants, became binding upon the persons and properties of British subjects who came over to settle in Canada after the conquest? who have been thought to carry out with them, as it has been expressed by somebody, all the laws of England upon their backs; and who, in a more particular manner, claimed the benefit of your Majesty's proclamation, so far as it was understood to be binding, as declarative of the general laws of England, and of your Majesty's right in consequence, with the advice of your Majesty's privy-council, to make laws for any conquered country ceded to the crown, exercised by your Majesty in this instance, in the same analogy as in royal grants or charters, heretofore of any unsettled lands and territories belonging to the crown, acquired by occupancy of the subject; the conditions of which grants have been the result of the royal pleasure, having regard to the fundamental laws of England. The fact appears to be, that a proclamation has been issued by your Majesty, with the advice of your privy-council, so long ago as the 7th of October 1763; setting forth, that in the interim, until a provincial assembly could be called, all persons inhabiting the said colony may confide in your Majesty's royal protection for the enjoyment of the benefit of the laws of the realm of England; and for that purpose your Majesty had given power to the governors of the said colony, to erect, with the advice of their councils, courts, of judicature and public justice. As the com nission* of the governor of Quebec", is almost in every article a direct. copy of the commission of the governor of New York in 1754, and of the commissions of the governors of the rest of your Majesty's colonies, modelled doubtless upon those granted upon their first settlement; so it should seem as if this proclamation had been copied inadvertently, and in the hurry of office, from some former proclamation relative Article IV. Sa M. tres chrêtienne cede et transporte le tout au dit roi, et à la couronne de la Grand Bretagne, et cela de la manière et dans la forme la plus ample, sans restriction. § Report of the attorney-general. *Vide printed Collection, p. 93, 102, 239, 250. 1 See the Treaty of Paris, 1763, p. 73. 2 See Articles of Capitulation of Montreal, p. 8. 3 See Report of Yorke and de Grey, p. 174. 4 See Proclamation of Oct. 7th, 1763, p. 119. 5 See Commission of Governor Murray, p. 126. e |