SESSIONAL PAPER No. 18

'the extreme severity of the weather, which makes it impossible for ships to continue 'at that time upon the coasts; are circumstances which all conspire to exclude any 'fishermen from Old England from having any share in the conduct of it.

'We further most humbly represent that, by means of the ravages and calamities of the late war, and the frequent fires that have happened in our towns, this colony is 'not as yet in a condition to defray the expences of its own civil government, and con'sequently not in a condition to admit of a general assembly. We are therefore of 'opinion that a council that should consist of a greater number of members than that 'which has hitherto subsisted in the province, and that should be composed partly of his 'majesty's old subjects, and partly of his new ones, would be a much fitter instrument ' of government for the province in its present state.

'We have reason to hope, from the paternal care which his majesty has hitherto 'shewn for our welfare, that the powers of this council will be restrained by his majesty ' within proper bounds, and that they will be made to approach as near as possible to 'the mildness and moderation which form the basis of the British government.

6

'We hope the rather that his majesty will indulge us in the above requests, because we possess more than ten out of twelve of all the seigniories in the province, and almost 'all the lands of the other tenure, or which are holden by rent-service.

'Fr. Simonnet, &c. &c.'

CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC.1

The proclama

1763.

The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proclamation, and other Promises solemnly given.

The king's most excellent majesty was graciously pleased, by his royal tion of October proclamation of the seventh of October, one thousand seven hundred and sixty-three, passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as of his colonies in America, to resort to the said province of Quebeck, and the other provinces then lately ceded to his majesty by the French king, in order to avail themselves, with all convenient speed, of the great benefits and advantages that must accrue therefrom to their commerce, manufactures, and navigation; and as an encouragement to them so to do, to publish and declare, that his said majesty had, in the letters patent under the great seal of Great-Britain, by which the new goverments in the said ceded countries had been constituted, given express power and directions to his governours in the said new colonies, that so soon as the state and circumstances of the said new colonies would admit thereof, they should summon and call general assemblies within the said governments, in such manner and form as is used and directed in those colonies and provinces in America which were under his majesty's immediate government; and that his majesty had also given powers to the said governours, with the consent of his majesty's councils of the said province, and the representatives of the people in the same, so to be summoned as aforesaid, to make,

was

1 According to Maseres, this presentation of the case of the British merchants in London, drawn up at the desire of the said merchants, in the month of May last, at the time of passing the late Quebeck bill, and of which printed copies were distributed to several members of both houses of parliament, in order to give weight to a petition against that bill which these merchants at that time presented to the House of Commons in behalf of themselves and their correspondents and friends, the British inhabitants of the province of Quebeck." "An Account of the Proceedings " &c., p.201. The petition here referred to was presented in the House of Commons by Mr. Mackworth on May 31st. See Cavendish's Debates on the Quebec Bill, pp.74-75. The "Case" as here given is taken from Maseres' Account of the Proceedings" &c., p.202. Another copy, evidently from the same source, is given in the Dartmouth papers, M 385, p.393. There is no doubt, from the style of the document, that Maseres was employed by the merchants to state their case in due form.

2 See p.119.

66 An

Provincial ordinance of

6-7 EDWARD VII., A. 1907 constitute and ordain laws, statutes, and ordinances for the publick peace, welfare, and good government of his majesty's said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies; and was pleased further to declare, that in the mean time, and until such assemblies could be called as aforesaid, all persons inhabiting in, or resorting to, his majesty's said colonies might confide in his majesty's royal protection for the enjoyment of the benefits of the laws of England; and that for that purpose his majesty had given power, under the great seal, to the governours of his majesty's said new colonies, to erect and constitute, with the advice of his majesty's councils of the said provinces respectively, courts of judicature and publick justice within the said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, ant as near as may be, agreeably to the laws of England.

1

And in pursuance of the said proclamation, and of the commission of captain-general and governour in chief of the said province of QueSept. 17, 1764. beck, granted to major-general Murray, in the following month of November, one thousand seven hundred and sixty-three, and by him received and published in the month of August of the following year, one thousand seven hundred and sixty-four, the said major-general Murray did, with the advice of his majesty's council of the said province, make and publish an ordinance of the said province on the seventeenth day of September, in the same year, one thousand seven hundred and sixtyfour, for erecting and constituting courts of judicature; and by the said ordinance did erect two principal courts of judicature, called the Courts of King's Bench, and Common Pleas ; and did by the said ordinance give power and authority to the chief justice of the province, before whom the said court of King's Bench was to be held, to hear and determine all criminal and civil causes, agreeably to the laws of England, and the ordinances of the said province; and did likewise, by the said ordinance, direct and command the judges of the said second court, called the Court of Common Pleas, to determine all matters brought before them agreeably to equity, having regard nevertheless to the laws of England, as far as the circumstances and then present situation of things would admit, until such time as proper ordinances for the information of the people could be published by the governour and council of the said province, agreeable to the laws of England.

Provincial

ordinance of November,

1764.

3

And on the sixth day of November, in the same year, one thousand seven hundred and sixty-four, another provincial ordinance was published by the said governour Murray, and his majesty's council of the said province, for the sake of quieting the minds of his majesty's new Canadian subjects, and removing the apprehensions occasioned by the said introduction of the laws of England into the said province, by which it was ordained and declared, that until the tenth day of August then next ensuing, that is, in the year of our Lord one thousand seven hundred and sixty-five, the tenures of the lands, in respect of such grants as were prior to the cession of the said province, by the definitive treaty of peace signed at Paris, on the tenth day of February, one thousand seven hundred and sixty-three, and the rights of inheritance, as practised before that period, in such lands or effects of any nature whatsoever, according to the custom of the said country, should remain to all intents and purposes the same, unless they should be altered by some declared and positive

law.

I See p.126. 2 See p.149. 3 See p.166.

SESSIONAL PAPER No. 18

Conclusion

drawn from

the king's an

And the said two ordinances have been transmitted to his majesty, the said proand never disallowed by him, and are therefore generally understood by clamation and his majesty's British subjects in the said province, to have received the ordinances by sanction of his majesty's royal approbation; and in consequence of the cient & natu- said two ordinances, together with the proclamation aforesaid of the seventh ral-born sub- of October, one thousand seven hundred and sixty-three, and the two jects. commissions of governour in chief of the said province, granted successively to major-general Murray and major-general Carleton, which seem in every part of them to pre-suppose that the laws of England were in force in the said province of Quebeck, being full of allusions and references to those laws on a variety of different subjects, and do not contain any intimation of a saving of any part of the laws and customs that prevailed in the said province in the time of the French government, we the British merchants trading to Quebeck, and all the ancient British subjects residing in the said province have been made to understand and believe, that the laws of England have been introduced into the said province, and that they have had the sanction of his majesty's royal word, that they should continue to be observed in the said province.

The petition
ers are alarm

ed at the de

We cannot therefore but express our surprise and concern at hearing that a bill is now brought into parliament, by which it is intended, that the said royal proclamation of October, one thousand seven hundred and sign of revok sixty-three, and the commission under the authority whereof the governing the king's ment of the said province is at present administered, and all the ordiproclamation, and commis- nances of the said province, relative to the civil government and adminsion to his go-istration of justice in the same, and all commissions to judges and other vernour, &c. officers of the same, should be revoked, annulled, and made void.

We humbly beg leave to represent, that many of us have, through a Credit given confidence in the said royal proclamation, and other instruments proceedby the petitioners to per- ing from, and allowed by, his majesty's royal authority, ventured to send sons residing considerable quantities of merchandize into the said province, and to give upon the faith large credits to divers persons residing in the same, both of his majesty's of the said pro- new Canadian subjects, and of his antient British subjects, who have, through clamation, &c. a like confidence in the said proclamation, resorted to, and settled them

in Canada

selves in, the said province. And that we have employed our property and credit in this manner, in a firm belief, that we should have the remedies allowed us by the laws of England for the security and recovery of it; and that if we had supposed the French laws, which prevailed in the said province under the French government, to be still in force there, or to be intended to be revived in the same, we would not have had any commercial connections with the inhabitants of the said province, either French or English. And therefore we beg leave to represent, that we think ourselves intitled, upon the mere grounds of justice, (without desiring any favour to be shewn us on the account of our being his majesty's antient, and faithful, and protestant subjects, that are attached to his royal They therefore person and government by every tie of religion, interest, and habitual duty desire that the and affection) to insist that, if it be resolved to persist in this new measure val of the of reviving all the former laws of Canada concerning property and civil French laws rights, and abolishing the laws of England that have prevailed there in their may at least stead since the establishment of the civil government in one thousand seven be postponed for some time, hundred and sixty-four, the execution thereof may at least be postponed until we shall have had sufficient time to withdraw our effects from the said province, and obtain payment of the debts which are owing to us in the same, by the remedies and methods of trial allowed and appointed by the laws of England in that behalf; through a reliance on which remedies and methods of trial we were induced to venture our said effects there, and permit those debts to be contracted. And this time, we humbly represent,

intended revi

cannot well be less than three years.

Vindication of the king's former con

duct in intro ducing the laws of England into Canada.

The same thing was done in Ireland;

6-7 EDWARD VII., A. 1907

We further beg leave to represent, that we apprehend his majesty's former conduct in introducing the laws of England into the said province by his proclamation and other instruments aforesaid, to have been in no wise unusual, or severe, or particularly harsh, with respect to his new Canadian subjects, nor to have been unexpected by them, but to have been the natural and known consequence of the conquest and cession of the country to his majesty by the late peace, according to the policy of the crown of Great-Britain on the occasion of similar conquests in former times. And we particularly beg leave to observe, that the whole law of England has been introduced into the kingdom of Ireland, in consequence of the conquest of it by the arms of England, without any the least mixture of the antient Irish laws, even upon the subjects of tenures and descents of land and no inconvenience has been found to follow from it; but, on the contrary, the similitude of laws is at this day a strong ground of union and mutual affection between the inhabitants of the two countries. And the like has been done with respect to the principality of Wales; And in Wales; in which the English law is the only law that has been allowed for more than two hundred years past and the like good effects have followed from it. And in the last century, upon the conquest of the province of New-York, then called the New Netherlands, from the Dutch, the And in New-same policy was observed, and the Dutch laws were totally abolished, and the English laws introduced in their stead, which have prevailed there ever since. And yet, at that time, the Dutch settlers in that province were very numerous, and from them much the greater part of the present inhabitants are descended. And, in conformity to these examples, we did conceive his most gracious majesty to have intended to introduce the laws of England, by his proclamation aforesaid, into the four new governments of Granada, East Florida, West Florida, and Quebeck, instead of the French and Spanish A power of doing so in laws, which had prevailed therein under the former governments. And we Canada was conceive this conduct of his most gracious majesty, to have been no way expressly reserved to the derogatory to the articles of capitulation, granted to his Canadian subjects king by the by general Amherst, upon the surrender of the whole country to his majesty's capitulation. arms in September, one thousand seven hundred and sixty1; because, when the French general expressly demanded, in one of the articles of capitulation, "That the French and Canadians should continue to be governed according to the custom of Paris, and the laws and usages established for that country, and that they should not be subject to any other imposts than those that were established under the French dominion;" the said general Amherst, in his answer to the said demand, declares, "That they become the king's subjects" thereby avoiding to tie up and preclude his late majesty, and his royal successors, from making such changes in the laws and taxes of the said province, as to his royal wisdom should seem meet.

York.

The parts of the English

We further beg leave to represent, that we are most especially anxious for the preservation of those parts of the English law which relate to matlaw which the ters of navigation, commerce, and personal contracts, and the method of petitioners most particu- determining disputes upon those subjects by the trial by jury, and likewise for larly desire to those parts of it which relate to actions for the reparation of injuries received, be continued such as actions of false imprisonment, and of slander, and of assault, and in the prov

ince.

whatever relates to the liberty of the person, and most of all for the writ of habeas corpus, in cases of imprisonment; which we take to be, in the strongest and most proper sense of the words, one of the benefits of the laws of England, of which his majesty has promised us the enjoyment by his proclamation above-mentioned, and which we apprehend to be a part of the English system of jurisprudence, to which our new Canadian fellow-subjects will not object.

1 See Capitulation of Montreal, p.8.

2 Capitulation of Montreal, articles 41 & 42; see pp.17-18 & 27.

SESSIONAL PAPER No. 18

The pro3perous con

And we beg leave to represent, that the province of Quebeck has thriven dition of the exceedingly, both in agriculture and trade, since the establishment of the province since civil government of the province, and the introduction of the English laws the introduc- into the same; having exported last year about three hundred and fifty English law. thousand bushels of corn; whereas, in the time of the French government, they exported none at all, and produced hardly enough for their own subsistence.

tion of the

The greater part of the

And we further beg leave to represent, that much the greater part of this trade of the trade is carried on by his majesty's old British subjects in the said province; province is carried on by by which they may justly claim to themselves the merit of having been the the British in- principal promoters of the late great improvement of the province.

habitants of

it.

the French laws relating to landed property.

And we further beg leave to represent, that we by no means object to a The petition revival or continuance of the former French laws concerning the tenures of ers do not ob- land, and the methods of alienating and conveying land, nor even concerning ject to the re- the inheritance of land belonging to Canadians born, or to be born, of marriages vival, or continuance, of already contracted; nor concerning dower, or the other civil rights of either men or women resulting from the matrimonial contract, so far as they relate to marriages already contracted. And we conceive that the revival of the French laws in these particulars, with full powers given to the Canadians of future times to continue them in their respective families at their pleasure by marriage-agreements, last wills, or deeds in their life-time, would be sufficient to give full satisfaction to the bulk of his majesty's new Canadian subjects, and make them acquiesce very chearfully in the general establishment of the laws of England, in conformity to his majesty's proclamation above-mentioned, upon all other matters.

Many of the British inhabitants of the

province are possessed of considerable

quantities of landed prop erty in it.

Concerning an assembly of the free

holders of the province.

And we further beg leave to represent, that several of his majesty's Old British subjects are possessed of a considerable quantity of landed property in the said province, and that others of them are daily becoming so: and hereupon we will venture to affirm, that sixteen of the seigniories of that province, and some of them the most valuable ones in the country, are in the hands of the said Old British subjects.1

And we further beg leave to represent, that, in consequence of his majesty's most gracious promise contained in his proclamation aforesaid, that, as soon as the situation and circumstances of the said province would permit, an assembly of freeholders and planters of the same should be called by his majesty's governour thereof, which, in conjunction with the said governour, and his majesty's council of the said province, should have power to make laws and ordinances for the welfare and good government of the said province, we have constantly entertained hopes that an assembly of the freeholders of the same would soon be established, and that we should enjoy the benefits resulting from that free and equitable method of government in common with the inhabitants of the adjoining provinces of North-America. The petiAnd therefore we beg leave to represent, that we have been very greatly tioners are alarıned at the alarmed by that part of the bill now before parliament, which seems to clause for es- cancel the said most gracious promise of our sovereign, and to deprive us of tablishing a legislative all hopes of obtaining the establishment of a general assembly of the freecouncil in the holders of the said province, and to establish in the stead thereof a very province. different mode of government in the said province, by a legislative council, consisting of persons appointed by, and removeable at the pleasure of, the crown; more especially as the said new mode of government, (which we presume nothing but some urgent and very peculiar circumstances of necessity can be thought a sufficient reason for adopting) is not limited in the said bill to continue for only a certain small number of years, after which they might hope to have an assembly in the said province, agreeably

1 See "List of British proprietors of Lands in the Province of Quebec, 1773." Dartmouth Papers, M 384, p.233. Twenty nine of these are designated as holding seigniories.