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6-7 EDWARD VII, A. 1907

DRAUGHT OF ORDINANCE FRAMED BY CHIEF JUSTICE SMITH.1

Draught
of an

Act or Ordinance

for the better Administration of Justice,
and to Regulate the Practice of the Law,
in the

Province of Quebec :

Now laying on the Table of the
Honorable Legislative Council.
Introduction.

The Copy of this Draught of a Bill brought into the Council by the Honourable the Chief Justice, and now laying on the Table, was procured by some Gentlemen of Quebec and Montreal, and is printed at their own expence, to prevent mistakes and to set those to right who may have erroneously conceived that it has lately been in contemplation of any person or of any set of people in this province, to procure alterations in the Laws, unfavourable to His Majesty's Canadian Subjects, affecting either their property or civil rights: and they presume, the attention paid to the preservation of both, in the proposed Bill, will dissipate every uneasiness that may have been raised on that account, in the minds of their fellow-subjects.

Quebec 12th March 1787

Draught
of

An Act or Ordinance for the better Administration of Justice, and to Regulate the Practice of the Law.

Whereas by a certain Statute passed in the fourteenth year of his Majesty's Reign, intituled "An Act for making more effectual Provision for the Government of the Pro"vince of Quebec in North America," It is among other things enacted, that all his Majesty's Canadian Subjects within the Province of Quebec, the Religious Orders and Communities only excepted, may hold and enjoy their Property and Possessions, together with all Customs and usages relative thereto, and all other their Civil Rights, in as large, ample and beneficial manner, as if a certain Proclamation and certain Commissions, Ordinances and other Acts and instruments in the said Statute referred to, had not been made, and as may consist with their allegiance to his Majesty, and subjection to the Crown and Parliament of Great Britain, and that in all matters of Controversy, relative to Property and Civil Rights, resort shall be had to the Laws of Canada as the Rule for the Decision of the same, and that all causes that should thereafter be instituted in any of the Courts of Justice to be appointed within and for the said Province by his Majesty, his Heirs and Successors, should, with respect to such Property and Rights, be determined agreeably to the said Laws and Customs of Canada, until they shall be varied or altered by any Ordinances that shall from time to time be passed in the said Province by the Governor, Lieutenant-Governor or Commander in Chief for the time being, by and with the Advice and consent of the Legislative Council of the same, to be appointed in manner in the said Statute aforementioned."

And whereas two certain Ordinances of this Province have been passed for regulating the practice in the Courts of Civil Judicature, the first of which was in force from the time of its being enacted in the seventeenth year until the twenty-fifth year of his Majesty's Reign, when a new Act was passed for that purpose with divers alterations, which is nearly expiring.

1 Canadian Archives, Q 56-3, p. 679.
2 See The Quebec Act, pp. 403-404.
3 The Ordinance of 1777. See p. 466.
4 The Ordinance of 1785. See p. 529.

SESSIONAL PAPER No. 18

And Whereas his Excellency the present Governor of the said Province hath been pleased to communicate to the Legislative Council, divers Articles of his Majesty's Instructions respecting the Administration of Justice, the twelfth article whereof is in the words following, to wit:

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"The Establishment of Courts, and a proper mode of administering Civil and "Criminal Justice throughout the whole extent of our Province, according to the prin"ciples declared in the said Act for making more effectual Provision for the Govern"ment thereof, demand the greatest care and circumspection, for as on the one hand it is "our gracious purpose, conformable to the spirit and intention of the said Act of Parliament, that our Canadian Subjects should have the benefit and use of their own Laws, Usages and customs in all controversies respecting Titles of Land, and the "Tenure, Descent, Alienation, Incumbrances, and Settlements of Real Estates, and the distribution of personal property of persons dying intestate; so on the other hand it "will be the duty of the Legislative Council to consider well in framing such Ordinances as may be necessary for the Establishment of Courts of Justice, and for the better administration of Justice, whether the Laws of England may not be, if not altogether, "at least in part the rule for the decision in all cases of personal actions grounded upon "debts, promises, contracts and agreements, whether of a mercantile or other nature, "and also of wrongs proper to be compensated in damages, and more especially where our natural born Subjects of Great Britain, Ireland or other Plantations, residing at 'Quebec, or who may resort thither, or have credit or property within the same, may "happen to be either Plaintiff or Defendant in any Civil suit of such a nature."

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And whereas the Commerce of the Province is almost intirely in the hands of Merchants who are his Majesty's natural born subjects, and it is essential to the encrease and tranquility, growth, prosperity, and strength of the Province, that the administration of Justice be regulated in such manner as to give safety, not only to all the inhabitants of the Colony, but to such of their fellow-subjects as they may have intercourse with in other parts of his Majesty's dominions, and especially in Great Britain and Ireland, from whence those supplies and credits are chiefly to be obtained, by which the raw materials and natural resources of this extensive Province are to be drawn forth into the common stock and commerce of the British Empire.

And whereas the aforementioned Ordinances, on account of the peculiar condition of the Country, under a recent change of Government, could only be laws of experiment and temporary expediency, to be altered and amended as occasion might require for perfecting the security of all his Majesty's subjects, and the said Ordinances have not given the satisfaction expected by the people for the safety of their rights and property, and especially in the proceedings that affect their important concerns of a Commercial

nature.

And whereas at the close of the late war on this continent, his Majesty was pleased in his great wisdom and grace to afford a refuge in this part of his Dominions, to many thousands of his natural born Subjects from the United States of America, who having suffered the loss of their Property for their faithful adherence to his Government and attachment to the British cause, are become objects of the national confederation, and are chiefly collected together upon divers parcels of the waste lands of the Crown, and their relief and comfort require very special Provision, suited to their circumstances, that all the inhabitants of the Colony, tho' originally of different Provinces and Governments may be United in Harmony and Mutual affection, under the Gracious and Benevolent protection of their common Sovereign;

$1 Be it therefore enacted and ordained by his Excellency the Governor and the Legislative Council, and it is accordingly hereby enacted and ordained by the authority of the same, that for the better encouragement of his Majesty's Subjects, and their Ease and convenience under a due administration of Justice, it shall be lawful for his Excellency the Governor, or the Commander in Chief of the Province for the time being, with the advice of the Council, by Patent under the Great Seal of the Province, to form one or more new Districts therein, to be afterwards Organized by Com

1 See Instructions to Lord Dorchester, 1786, 12th article, p. 555.

6-7 EDWARD VII., A. 1907 mission and Commissions for the Creation and appointment of all such Offices and Officers within the same, as may appear to be most necessary or conducive to the purposes aforesaid, any thing in any former Law or Ordinance of the Province contained to the contrary thereof notwithstanding.1

And for the security and contentment of such of his Majesty's Canadian subjects as have, or may have Property in such new District or Districts. Be it further enacted by the same authority that in all their controversies respecting Titles of Land, and the Tenures and Descent, Alienation, Incumbrance, and settlements of Real Estates, and for the distribution of Personal Property of persons dying intestate, such Proceedings shall be had therein as will give them the full Benefit and Security intended by the Statute abovementioned, and that every clause and Article in any of the said Patents and Commissions for formning Such new District and Districts, and the administration of Justice in the same to the contrary, shall as to his Majesty's Canadian Subjects be absolutely null and void.

And for amending the present Ordinances relating to the course of Judicature in Civil Causes.

$2. Be it also enacted by the same Authority, that the Courts of Common Pleas shall have no cognizance of any new cause to be legally brought in any of the Courts of Request after the erection of the same, by Virtue of another Ordinance of the present Session, entituled, " An Act or Ordinance for the relief of the poor by the Dispensation "of Justice in small Causes."

The Bill here referred to, enables the Governor by Letters Patent, to parcel out the Province into Precincts or Circles comprehending several contiguous Parishes, and to appoint in each Precinct three commissioners from the principal Inhabitants; and authorizes them, or any two of them to hold a Court of Requests once a month, or oftener if need be for the Precinct.

There is to be a Clerk for every Circle to keep an Office and give out the Summons or Process.---A Serjeant to execute the Process is in the appointment of the Commissioners.

The Court of Requests is competent for causes under £10, except in certain cause involving questions that are not proper for a summary decision.

The Court is minutely directed, and the Judgements final without Appeal, because the main object is to relieve the poor and the distant inhabitants.

For the same reason the Fees are low and the proceedings quick, and very plain and simple.

The Bill proceeds upon the Supposition, that there are public spirited Gentlemen to be found up, and down the Country, who will not refuse in turn to be Judges between their neighbours; for they are not to have authority out of their own Circle.

As it is possible that the Commissioners in some Circles, may not be able to afford to give so much of their time to their Countrymen as may be required, a fee is allowed to the sitting Judges on every Judgement; if they please to take it.

The Governor may form a Circle as soon as he finds fit Commissioners for it, and they may dispense Justice in either language.

Nothing is made a requisite qualification but integrity and a good sound understanding. The Judges will be standing Arbitrators for their Circle.

All the Officers of the Court of Requests are to be upon Oath. There are Guards against perjuries, contempts and Extortions.

Until a Parish is in some Circle, the old Course of Tournée, is to continue there, and when incircled it is to cease as to that Circle and all the Parishes it includes, and the Inhabitants be saved from all the waste of time, trouble, and charge of referring for Justice to Quebec and Montreal: and it is thus hoped that a general Spirit of useful Industry will spread through the Province, and contentment be given to all, as their differences will thus be speedily adjusted, by those to whom, as neighbours, they may have easy access, and by whom the Parties will be known.

These Commissioners are not to be Justices of the Peace, nor the Justices to be Commissioners, the confounding these Trusts in the same Person being subject to many objections, as former experience has shewn here and elsewhere, in the low Character of Trading Justices as they are called.

The Justices are to be left to their proper business in preserving the public Peace, and preventing and punishing Crimes. Private Disputes will be settled by the Commissioners in the Court of Requests for the people, by their own Countrymen, and as it were at their own Doors, and according to good Con science and their own usages, and in their own language, every man managing his own cause by himself or his friend. No Lawyers to be there, unless both Parties chuse to have their assistance.

1 Appended to this paragraph is the following marginal note, evidently inserted by Finlay when sending the draught: this first Section of ye Law. with the $7 was to introduce the Laws of England into all the upper part of the Province, and among all the old Subjects in the lower part; and leave the Canadians to the Coutume & until they should be Enlightened." Though this bill did not pass, yet in the Ordinance for continuing for a time that of 1785 to regulate the Proceedings in the Courts of Civil Judicature, being 27 Geo. III., cap. 4, a clause was introduced providing for the erecting of new Districts and for their administration. See below p. 583.

2 This is the title of a bill or draught ordinance, summarized by Finlay in the appended note, which was also introduced by the Chief Justice but which failed to pass. In the Ordinance however of 27 Geo. III., cap. 4, which continued the old Ordinance with some amendments, a clause is introduced, Respecting Dispensation of Justice in Small Causes," which secures the central object of this bill. See below, p. 583.

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SESSIONAL PAPER No. 18

And respecting the Trial of Causes above Ten Pounds sterling, and such beneath that Sum, of which the Courts have cognizance, the same shall be proceeded in, heard and determined only in regular Terms, consisting of the first 14 days, Sundays and Holydays excepted, in the months of June, August, October, December, February rules of prac and April yearly, the first return days whereof shall always be the first day of the Term, and the rest and the general Rules of Practice, such as the respective Judges of the Common Pleas may state in a formulary, and present to the Provincial Court of Appeals, who shall have authority from time to time to establish the same.

tice to be

made by Com. P. & estab. by Co. of Appeals.

And it being indispensibly requisite to the safety of Property in every suit at Law, to exclude all Legislative authority from being united with the exercise of the Judicial Power of the said Courts of Common Pleas, lest the Estates and Rights of the People should be subject to the erroneous or arbitrary opinions of the Judges.

§3. Be it enacted by the same Authority, that in 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 in the Record of the Cause, that in Case of Appeal, the whole Proceedings may go up to be adjudged in the Superior Tribunal, as regularly, and as fully as the same was before the Court below.

And wherever the opinion or judgement of the Court, 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 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 opinions conceived by any Party to be to his Injury, he shall be allowed his exception to be preserved in the minutes, all which proceedings shall be transmitted under the Signatures of the Judges or any two of them, and the Seal of the Court, that all his Majesty's subjects, and especially his Canadian subjects, by these means may be effectually protected in the enjoyment of all the Benefits secured to them for their Property and Civil Rights by the Statute and Ordinance aforesaid.

And to take away all doubts and scruples with respect to the Right of Appeal in any Cause before the said Courts of Common Pleas,

§ 4. Be it enacted and declared by the same authority, that the Court of Appeals shall be deemed and adjudged to have an Original 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 Judgements of the same, or any Process of the nature of Execution, with authority also to make rules aud 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 to strengthen the security of the subject for his Estate and Rights, even in the said Court of Appeals ;

§ 5. Be it further enacted and ordained, by the same authority, That none of the Members of the Court of Appeals shall presume to sit upon the Bench thereof, until he shall have taken an Oath before the Governor for the time being, that he will faithfully serve our Lord the King and his People, in the Office of Judge of the Court of Appeals in this Province, and that he will do equal Law and Execution of Right to all the King's Subjects, rich and poor, without any regard to any person, that he will not take gift or reward of any man that shall have Plea or Process before him, and that he will deny no man common right by the King's letters, or any other man's, and that in case any letters come to him contrary to the Law, that he will do nothing by such letters, but certify the King thereof, and proceed to execute the Law according to the best of his Knowledge and Judgement.

18-3-37

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 ;

$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 great 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 arréts, 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 ye Rule & between ye old Subjects conformable to opinion & Judgt in Appeal ded 1786. Case Grant y Gray and conform ye 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 judg ment in appeal at p. 26.

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